Student Rights

Free legal help for students, parents & caregivers

Suspensions

Suspension Process

1. Principal’s decision

The principal has to decide whether a stand-down is justified on any of these grounds:

  • Gross misconduct which is a harmful or dangerous example
  • Continual disobedience which is a harmful or dangerous example
  • Behaviour risking serious harm if the student is not suspended

The principal doesn’t have to involve your parents before a suspension, but it is a good idea.

You remain suspended until the process ends at step 5. You can’t attend school until the board of trustees holds a suspension meeting, when the principal’s decision will be reviewed.

2. Informing parties

The principal must immediately inform your parents, the Ministry of Education and the school board about the decision to suspend and the reasoning behind it

3. Notification of suspension meeting

There must be a suspension meeting. The board must tell your parents the time and place of the meeting as soon as possible. At least 48 hours before the meeting, they must give your parents:

  • Information about the meeting procedure
  • A copy of the principal’s report (giving reasons for the suspension) and any other materials to be considered
  • The possible outcomes of the meeting (see step 5)

The meeting must be held within 7 school days of the suspension, or 10 calendar days if the suspension is within 7 days of the end of term. They day you were suspended is not counted. The meeting can’t be delayed beyond this, even if everyone agrees.

4. Suspension meeting

At least half the board must attend. The principal can attend but can’t be involved in making a decision. Your parents can attend with you and can take support people to help put their view to the board.

There are no formal rules about the format of the meeting – it’s up to the board. Usually, the principal starts by reading their report. They should not recommend what the board should do. Next, you or your parents can put forward your side of the story and why you should be allowed to stay in school.

5. Board decision

The board can make one of the following decisions:

Lift suspension without conditions

Lift the suspension with conditions

Extend the suspension with conditions

Exclusion (if under 16 years old)

Expulsion (if over 16 years old)

The disciplinary process is over and you can return to school full time.

You can return to school full time but you must comply with ongoing conditions. If you don’t, the board can hold another meeting to reconsider their decision.

You must not attend school. You will be required to comply with conditions which are meant to help you return to school. You can return when either the conditions are met or the time period ends.

You must not attend school. The principal must try to arrange enrolment in another school within 10 school days. If they fail to do so, they must inform the Ministry of Education.

You must not attend school. Neither the principal nor the Ministry have to help you find a new school.

Stand-downs vs Suspensions

 

Stand-down

Suspension

Purpose

Allow schools, students and families time to evaluate the problems that have occurred

Formal removal of a student from school so the board of trustees can make a decision

Who initiates?

Only the principal or acting principal can stand-down a student

Initiated by the principal, but board of trustees must make the final decision

Criteria

  • Continual disobedience or gross misconduct that is a harmful or dangerous example
  • Behaviour likely to cause harm to the student or other students

Length

Short term. Maximum of 5 days in a school term or 10 days in a school year

A suspension can be extended for a ‘reasonable period’. It extended for 4 weeks of more, the board must monitor the student’s progress

Can it be shortened?

Yes – at any time before the stand-down expires and for any reason, the principal can shorten it

The board of trustees can choose to lift the suspension, either with or without conditions

When does it take effect?

The principal can send the student home for the rest of the day, but the stand-down or suspension starts the following day

What information should the principal provide?

Immediately, the principal must tell the parents that the student has been stood-down, why, and for how long. They must provide information sheets about stand-downs

Immediately, the principal must tell the student’s parents, the board of trustees and the Ministry of Education that the student has been suspended and why

What information should the board provide?

n/a

As soon as possible, the board must provide parents with:

  • The time, place and procedure of the meeting
  • The principals’ report
  • Any other material to be discussed
  • The possible outcomes

Can the student attend school?

Not usually while they’re stood-down or suspended. But the principal must consider any reasonable request to allow the student to attend school for a particular period, e.g. for an exam

 

The meeting

Who is it with?

The principal

The board of trustees

Is it compulsory?

No, the principal doesn’t have to call a meeting. However, if the parents request a meeting, the principal must arrange one as soon as possible

Yes, but parents do not have to attend. If they do attend (which is recommended), they can bring a support pterson.

Procedural requirements

None

  • The meeting must occur within 7 school days of the principal’s decision (or 10 days if the suspension was within 7 days of the end of term)
  • The parents must have 48 hours’ notice
  • The meeting cannot be delayed, even by agreement
  • At least half the Board must attend

What is discussed?

What led to the situation, what steps can be taken to address the student’s behaviour, and the expectations when the student returns. Parents can provide reasons why the stand-down should be lifted or shortened.

The principal’s report, the student’s version of the facts, and the board’s options. Parents and students can give reasons why the student should be allowed to stay in school.

What is a suspension?

A suspension is you’re formally removed from school by the school, initially by the principal but then by the board of trustees if the board decides to extend the suspension. Whereas stand-downs are usually only for several days, a suspension can be a week or more. Compared to stand-downs, suspensions are generally given for more serious misbehaviour, and in the most serious cases they can lead to the board deciding to permanently “exclude” or “expel” the student.

Note: In 2014, approximately 45% of suspensions were lifted at the suspension meeting (within 7 school days of the initial decision). Around 37% of students were excluded or expelled. The remaining 17% of suspensions were extended beyond the first week.

When a student can be suspended

What types of behaviour can justify a suspension?

Education Act 1989, s 14(1)

A principal can suspend you if your behaviour fits into one of the following three categories:

“Gross misconduct” and “continual disobedience” are explained in detail below.

Those three grounds are the same as for stand-downs, but suspensions are generally used for more serious cases.

D v Havill and Board of Trustees of Western Springs College (2009)

The principal, and later the board if it extends the suspension, must specifically identify which of these three grounds they believe applies to the particular case. If they don’t do this, the suspension is invalid and you can’t be prevented from attending school.

A principal must choose either to stand-down or to suspend a student, and must follow through with the required legal process for the particular course they choose – they can’t do both.

What is “gross misconduct”?

Education Act 1989, s 14(1)(a)
M & R v Syms and the Board of Trustees of Palmerston North Boys’ High School (December 1990) [2003] NZAR 705

“Gross misconduct” is serious misbehaviour. The courts have said it must be “striking and reprehensible to a high degree”, and not just trivial behaviour that children or teenagers could be expected to engage in every now and then. The misconduct must be serious enough to justify removing you from school even though this might harm your education.

Whether an incident is gross misconduct will always depend on the particular situation. For example, in a case where students on a school ski trip were suspended for drinking alcohol, the judge said that whether drinking alcohol amounted to “gross misconduct” would depend on all the circumstances, and the school had to consider questions such as who had obtained the alcohol, how much was consumed, and whether the student was drunk.

School policies can’t automatically label a particular type of behaviour as gross misconduct. The Education Act gives schools a discretion that shouldn’t be restricted by self-imposed rules that don’t allow for any exceptions. The school must allow for students’ individual needs and problems – for example:

You can’t be suspended for gross misconduct unless your behaviour amounts to a dangerous or harmful example to other students.

What is “continual disobedience”?

Education Act 1989, s 14(1)(a)
J v Board of Trustees of Lynfield College (2007)

Continual disobedience is when you regularly and deliberately ignore rules or refuse to do what you’re told. It’s not continual disobedience if you merely respond slowly or don’t do what you’re told: there must be an element of deliberate non-cooperation or defiance, and it has to happen more than once.

Continual disobedience isn’t enough by itself for a suspension or stand-down – the behaviour must also be a harmful or dangerous example to other students. The school should consider whether your disobedience would undermine discipline and safety standards in the school if you’re not suspended.

The principal’s decision

The principal has to follow the rules of natural justice – basically this means they must act fairly at all times, must listen to and consider what you have to say without prejudging the situation, and can’t rely on any information or factors that are irrelevant to the case at hand.

The principal should try to understand the context by considering any relevant information the school has and that parents may be able to provide. The principal isn’t legally required to talk to your parents before suspending you, but this may be a good idea. The information the principal has must be reliable enough to meet one of the three possible suspension grounds.

It’s the role of the board of trustees to review the principal’s decision at the suspension meeting.

Can the principal suspend one student involved in an incident, but not another?

The principal has to consider all the circumstances and factors. Although two students may have done the same thing, it may in fact be fair to treat each student differently.

If you’ve been suspended but another student who was also involved in the wrongdoing wasn’t suspended, you can raise this issue with the board of trustees at its suspension meeting (see “The board of trustees’ suspension meeting” below). Be prepared to given reasons why you should be treated the same as the other student and be allowed to return to school; you could make some suggestions for alternative measures for the board to consider, like in-school punishments.

What are my rights if I have special needs?

Human Rights Act 1993

It may be illegal discrimination if you were suspended for behaviour that you couldn’t really help and that was the result of your disability. Even if the suspension is justified, it could still be illegal discrimination if the school didn’t have an appropriate behavioural plan for you and effectively set you up to fail.

The question to ask is whether the school has done everything reasonable to meet your needs, taking into account the school’s obligation to maintain a safe environment for you and other students.

What happens after the principal suspends a student

Principal must notify the parents, the board and the Ministry

Education Act 1989, s 18(2)
D v Havill and Board of Trustees of Western Springs College (2009)

After suspending you the principal must immediately inform your parents, the board of trustees and the Ministry of Education. The principal has to state the reasons for the suspension – this includes explaining specifically which of the three suspension grounds they’re relying on and how what you did meets that ground (see above, “What types of behaviour can justify a suspension?”).

Note: Because suspended students stay on the school roll, the principal has to take all reasonable, practicable steps to provide you with guidance and counselling, in order to minimise the disruption to your education and facilitate your return to school when that’s appropriate.

The issue then goes to the board of trustees for a decision (see below).

Education Act 1989, ss 13(b), 17A

When will the board of trustees meet and make a decision?

Education Act 1989, s 15(4)
Education (Stand-Down, Suspension, Exclusion, and Expulsion) Rules 1999, rule 15(3)

If the principal has suspended you, you stay suspended until the board of trustees holds a suspension meeting to decide what will happen. The meeting must happen within seven school days after the suspension, or within 10 calendar days after it if you were suspended less than seven school days before the end of term. The day on which you were suspended isn’t counted.

If, for example, you’re told on a Tuesday afternoon that you’re suspended, the first of the seven school days would be the Wednesday, even if a letter formally notifying you and your family doesn’t arrive for another few days.

The board has to hold the suspension meeting and make a final decision by the time limit. If it doesn’t, the suspension is over and you can go back to school. The meeting and decision can’t be delayed, even if both sides agree to put it off. The meeting can go ahead without you and your family being there (as long as the family had 48 hours’ notice).

Getting notice of the suspension meeting and other information

Education (Stand-Down, Suspension, Exclusion, and Expulsion) Rules 1999, rule 15

As soon as possible, the board must let you and your parents know, in writing, the time and the place of the meeting. The board has to make sure you get this information at least 48 hours before the suspension meeting. This 48-hour period can only be reduced if everyone agrees.

The information provided to you must be as complete as possible, and must include:

The principles of natural justice require that you get a fair hearing. If you become aware that a board member has a potential bias (for example, they’re related to someone involved in the incident), you should contact the board’s chairperson promptly to let them know this and suggest that the board member shouldn’t participate in the meeting and the board’s decision.

What if the parents withdraw the student from school before the board meeting?

Parents shouldn’t be hasty in withdrawing their child from school to avoid them being excluded or expelled, as this can in fact leave the student worse off. When a student under 16 is excluded, the principal and the Ministry of Education have some obligations to help the student find a new school. Even if the student is 16 or older and has been expelled, the Ministry has the power to direct another state school to accept the student. Withdrawing voluntarily may therefore you won’t get any help from the principal or the Ministry. For more details, see “What are my rights after I’ve been excluded or expelled?”.

Note: Principals have to enter all stand-downs, suspensions and exclusions/expulsions into ENROL, the nationwide electronic enrolment management system. When a student is suspended, the principal must inform the Ministry of Education immediately, by submitting an “Advice of Suspension” form. After the board meeting has been held, its decision must be immediately communicated to the Ministry through an “Advice of BOT Decision” form. ENROL automatically checks that the process is completed before a student is withdrawn. If a school tries to remove a student from its roll without doing this, ENROL shows a warning message, stating: “The Ministry has been advised this student was suspended by your school. Please submit the ‘Advice of BOT Decision’ form before withdrawing the student.”

The board of trustees’ suspension meeting

Who goes to the suspension meeting?

Education Act 1989, s 17B

The suspension meeting is an independent review of the principal’s decision to suspend you. The principal doesn’t have a role in the decision, but as a member of the board can attend the meeting.

You, the suspended student, can attend the meeting, along with your parents. You’re allowed to take someone to support or represent you, such as a lawyer, a church elder, a kaumātua, a youth worker, an advocate or a whānau member. A representative can support you and help you explain your side of things to the board.

For the board’s meeting to be valid, at least half the trustees, not counting the principal, must be there. As most state school boards have seven or eight trustees, there must usually be four or five board members present. Integrated schools more commonly have 11 or 12 trustees, requiring at least six or seven members for a valid meeting.

Note: It’s best that the student comes to the suspension meeting, as most boards like to meet the student and hear their side of the story. If the student can’t make it to the meeting, the parents could read out a letter from the student to the board.

What you can do to prepare for the suspension meeting

Before the meeting, you should plan what you’re going to say and prepare any letters or other documents that will support your case:

What’s the process at the suspension meeting?

There are no legal rules or regulations dealing with the procedure at suspension meetings. The format and process for the meeting will be decided by the board. Usually, however:

Principal’s role at the suspension meeting

Education (Stand-Down, Suspension, Exclusion, and Expulsion) Rules 1999, rules 16, 17

The meeting usually begins with the principal reading out their report for the board to consider.

The Education Act doesn’t give the principal any authority to recommend what the board should do. You and your parents will have been sent a copy of the principal’s report before the meeting, and if you find any recommendations in it you should contact the principal and ask them to take out those recommendations. If, at the meeting, the principal makes a recommendation that’s not in their report, you can raise this issue at the meeting and remind the board that it’s their responsibility to review the principal’s suspension decision and make their own decision.

Battison v Melloy [2014] NZHC 1462

The law requires the board to take all the relevant circumstances into account, to consider each of the options available to it, and to then make an independent decision.

Note: Regardless of the principal’s view that a school rule has been broken, the board should consider whether you the student in fact effectively complied with the school.

A key principle of natural justice prevents the principal from taking part in the decision about whether to lift or extend a suspension, because they’re the person who initiated the suspension. The principal is like the “prosecutor”, so they can’t also be one of the judges. Although they’re a member of the board, the principal shouldn’t remain with the board when it’s making its decision. The principal should leave the board meeting at the same time as you, your family and representatives.

If the board wants to call the principal back into the meeting to provide any other information, then you, your family and representatives should also called back in and be given a chance to question the principal.

Note: Any teacher, parent or other student who was directly involved in the incident that led to the suspension shouldn’t be involved in any of the school’s decision-making about the incident.

If the principal (or any board members) raise any new information or issues that you or your parents haven’t heard about before, you can ask for the meeting to be adjourned (put off to a later date) so that you can consider the new information, and perhaps also get advice from a lawyer. If the meeting is adjourned, parents should get back to the board as soon as possible, as the board must make their decision within the seven-day (or 10-day) time limit.

Telling your side of the story at the meeting

Education Act 1989, s 13(c)

After the principal has read their report to the board, usually the next step in the meeting is that you, your parents or your representative tell your version of what happened. The right to tell your side of the story, after having had adequate time to prepare your case, is a key principle of “natural justice”. Natural justice is specifically mentioned in the part of the Education Act 1989 that deals with suspensions and expulsions.

The board will want to hear you admit that what you did was wrong and show them that you’re willing to change. They’ll want to hear you that you’re keen to return to school, and you should give them reasons why you think you should be allowed to go back. It’s a good idea to list some practical steps that you plan to take to prevent the incident happening again. For some detailed advice on putting your case at the meeting, see “What you can do to prepare for the suspension meeting”.

If you don’t agree with the principal’s report and any other information the board is looking at, it’s important that you and your family put forward your version of the facts and explain why you disagree. This can make a difference to the board in deciding whether you’ll stay in school.

You may choose not to say anything about what happened. However, the board can still form a view about what happened and might draw conclusions from your silence – for example, they might think that you agree with what the principal has said. If the board does draw conclusions, they should let you know and invite you to comment, without pressuring you to provide answers or explanations.

What sorts of questions will the board ask?

When you tell your side of the story at the suspension meeting, the board of trustees is likely to ask the following types of questions (if you haven’t already dealt with these issues):

Before the meeting, parents should help make sure the student is well prepared to answer each of those questions. This doesn’t mean giving the student the answers or putting words into their mouths – it means getting them to think in advance about how they’ll respond to questions. A good way to prepare is to role-play the suspension meeting, with the parents as the board of trustees.

When and how the board makes its decision

After hearing from you, your parents or your representative, the board of trustees will usually ask you and your parents to leave the room so they can discuss the issues and make a decision. However, the board might decide to ask you all to stay so that everyone can try to reach agreement about what should happen.

The board’s decision

Key principles for the board’s decision-making

The board of trustees at a suspension meeting must:

What options does the board have?

Education Act 1989, ss 15, 17, 18(3)

The board of trustees has the following options:

In making its decisions and setting any conditions, the board has to try to minimise the disruption to your education.

Board must give written decision and reasons

Education Act 1989, s 18(3)
Bovaird and the Board of Trustees of Lyndfield College v J (2008) (Court of Appeal)

After it makes its decision, the board must write to your parents and the Ministry of Education, stating the decision and the reasons for it. The board has to explain how your behaviour met one of the statutory grounds for a suspension, and how they came to their decision (see see “What types of behaviour can justify a suspension?”). The board should keep a good record of the issues they discussed and their conclusions.

Can the board consider alternatives to a suspension or exclusion/expulsion?

Education Act 1989, ss 13, 15, 17
D v M and Board of Trustees of Auckland Grammar School (1998)

Yes. Suspensions, exclusions and expulsions are for only the most serious breaches of school rules. The rules in the Education Act provide for a range of responses for cases of varying levels of seriousness, and the board has the option of lifting the suspension and imposing various conditions.

Before it makes a decision, the board has to consider your circumstances, weigh up all the factors, and consider all options. In one court case where the board’s decision was overturned, the judge found that the board’s failure to consider the possibility of lifting a suspension, subject to conditions, meant that the school hadn’t treated the student fairly.

At the board meeting, you and your parents should be prepared to put forward alternative measures for the board to consider as possible conditions – for example:

Rights and obligations during a suspension

Will I stay on the school roll while I’m suspended?

Education Act 1989, s 17C

Yes, you stay on the roll. You’ll only be removed once you’re enrolled at another school, or are expelled or leave school (if you’re 16 or older), or are granted an early-leaving exemption (if you’re 15).

What does the school have to do during a suspension?

Education Act 1989, s 17A
Education (Stand-Down, Suspension, Exclusion, and Expulsion) Rules 1999, rule 18

If you’ve been suspended, the principal must make sure you get guidance and counselling.

While you’re out of school on an extended suspension given by the board, the principal must also make sure you have appropriate school work to do at home, in order to help you get back to school and so that any educational disadvantages are minimised.

If the board has extended your suspension for four weeks or more, it must monitor your progress by making sure it gets written reports. You and your parents must be given copies of these reports.

Can I go to school during a suspension if necessary?

Yes. The same rules apply here as for a stand-down: see “Can I go to school during a stand-down if necessary?”.

What I don’t follow the conditions of the suspension?

Education Act 1989, s 15(3)
Education (Stand-Down, Suspension, Exclusion, and Expulsion) Rules 1999, rule 20

If you don’t comply with the conditions the board has set for your suspension (or that the board set when it lifted your suspension), the principal can ask the board to reconsider its decision. The boards’ reconsideration meeting will follow the same process as the original suspension meeting, starting with the board having to notify you and your parents of the meeting 48 hours in advance.