Restorative Justice and School Discipline - Case Study Example

Education assessment No 1. Part 14 of the agreement between Mary and the Flowering Gums sets out the procedure for disputes resolution between the University and an employee, as far as the procedural requirements are concerned*1. This Clause is introduced to provide an option for resolution of disputes through arbitration. Under the procedures specified, the employee is required to report his/her dispute to the Vice Chancellor and/or the relevant Union, so that a determination can be made about the seriousness of the dispute. If the complaint is deemed to be of a sufficiently serious nature, it may be referred to the Australian Industrial relations Committee by either party. If however, the dispute is not that serious yet requires action, the employee is required to contact a member of management. If no resolution is reached within a week, the Disputes Committee is to be convened to deal with the issues raised in the dispute in an appropriate and bring about a resolution. However, what is particularly important to note are the provisions of Section 52.4, which states that until the procedures specified in Clause 51 have been completed, the employee must not “change work, organization or staffing of the work if such is the subject of the dispute or take any other action likely to exacerbate the dispute.”*2 The decision of the Commission is to be accepted as final and would need to be implemented by the University. (a) In response to Andrew Chu’s case, the question is whether the student has suffered any significant disadvantage after his education at the University and whether the failure to write properly in English has impacted adversely upon his career prospects, thereby rendering his investment in his education a waste. This is not the case – since Andrew has taken up a Business course and moreover has secured a job in Hong Kong at a standard business graduate’s salary, the course at the University has served its purpose quite adequately and any limitations arising from not learning English properly are not causing harm to Plaintiff, neither can the University’s lack in this regard be claimed as wrongful conduct, since Andrew’s case was not in English studies. Liabilities under tort are increasingly being restricted by the Courts. For example in the case of New South Wales v Paige (2002) NSWCA 235, it was stated: ‘Compensatory damages for administrative error are available only in very limited circumstances.’*3 In this case, an employee tried to claim damages in tort after termination of employment and Andrew Chu’s claim in tort arises after his education at the University has been completed, therefore there may be no such duty of care arising out of the law from the University. Neither would Andrew be able to bring any claims against the University on grounds of discrimination, under the provisions of the Disability Discrimination Act of 1992 (CTh)*4 in regard to his inability to communicate effectively in English, because he has not been refused admission neither have his job prospects been affected, and no discernable harm can be seen to have been suffered by the Plaintiff. A recent policy paper on Higher Education also identified the pressures upon Universities and consequent deterioration in quality standards, largely due to the excessive and restrictive regulatory and reporting demands and existing funding arrangements.*5 As a result, the University is in a good position to plead its case that Andrew Chu has not been disadvantaged in any way, and there is no deliberate intent by the University to harm him. (b) As a member of the Academic faculty at the University, Mary has entered into this agreement and has agreed to “support and implement initiatives and reforms approved by the University which is intended to improve quality of service to students….”*6 Therefore, she is considered a member of the team at the University where efforts are to be made to improve overall performance, secure increased funding and improve the University on an overall basis. It is understandable if Mary has concerns about the quality of instruction that is being given at the University and it may be true that students are not being provided with adequate instruction in English and are being admitted without being adequately qualified. While Mary’s concern for the students is laudable, however, the agreement she has signed placed certain obligations upon her. Firstly, she is expected to contribute to the overall progress of the University. However, in the event she has a dispute about the admission procedures, it is necessary that she bring these concerns to the attention of the management and that appropriate action be taken by them. She is obliged to wait out the process and in the meantime, not do anything to exacerbate the situation. However, by jumping the gun when she has not even received a reply from the Vice Chancellor and gone through the procedure specified in Part 14, she has publicized an issue that should have first been sorted out internally with the University. As a result, she has caused damage to the University’s reputation. However, this in itself cannot constitute grounds for immediate dismissal, since it does not construe “serious misconduct” on Mary’s part*7 and she will entitled to be given the appropriate period of notice of termination depending upon her tenure of employment as specified in Section 49.1 of the agreement. The question of the veracity of Mary’s claims arises only if the University wishes to take action against her for libel or slander. However, the University may take action against Mary for breach of terms of contract and her fiduciary duty to the University. Alternatively, it may choose to retain her and initiate a process of enquiry into the concerns she has expressed and introduce reform measures to improve quality of education. In this manner, Mary may also be persuaded to provide an additional statement to the same Paper about these measures, so that the public is informed of this through clarifications in the Sydney Herald, so that this is also an effective retraction of the damaging letter she wrote. Ans 2: Section 8(1) of the University of New South Wales Act (1989) specifies that a Council of the University must exist and under Section 2, this Council will be the governing authority whose functions are conferred upon it through the Act. While the Academic Board is responsible for administrative matters pertaining to academic issues, it is the Council that is responsible for issues of governance such as those that arise out of the Vice Chancellor’s actions. Thus, an Australian University statute vesting management power in a Council would support the Council’s power over various parts of the University.*8 The power of delegation of authority to appoint or dismiss belongs exclusively to the Board or Council, as established in the case of Blanchard v Lansing Community College.*9 The members of the Board or Council have an obligatory fiduciary duty of loyalty to the University as a result of which they are expected to exercise due care and good faith in actions that should ensure the best interests of the University.*10 One of the “fundamental fiduciary relationships” as identified by Finn is that which exists between the “Community (the people) and the State and its agencies.”*11 In the case of a University, this relationship requires University councilors who are also considered public officials to make an accounting to the University in the case of a breach of their fiduciary duty. Fiduciary duty does apply on the part of the Councilors*12 and they are obliged to make the kind of decisions that are the best for their organization. This also imposes obligations upon them to use the powers given to them to ensure that the University is not functioning in a manner that is in breach of its statues, as the Vice Chancellor is doing. *13By not taking any action on the Vice Chancellor, the members of the Council have been guilty of a breach of fiduciary duty and they are obliged to account for this. University Council members have certain statutory functions relating to knowledge discovery which will determine fiduciary and negligence duties. The council members also have a duty of care to the University and the Courts are likely to require that these council members discharge their fiduciary duties with a level of care and skill. This would involve taking action against the Vice Chancellor, because they are obliged to set out on the quest for information and where necessary, to take action as may be appropriate in the best interests of the University, which in this case would mean dismissal of the Vice Chancellor and commencement of legal action against him. Sections 11A and 11B of the University of Tasmania Act 1992 (Tas) has spelt out management obligations of council members. In the case of New South Wales v Lepore and Another, the Court held that the University was not vicariously liable and owed no duty of care to the pupils on the misconduct of one of its teachers.*14 However, in this case, the same principle cannot be applied to the council members, since they have a non delegable duty of fiduciary care and duty and this will obligate them to act against the Vice Chancellor. Otherwise, they will be considerate to be in violation of their duties. The case of Lepore will, however, apply in the case of the students and academic members. While a student may commence against Professor Ripoff on the grounds of exclusion from the University in violation of the University’s procedures of expulsion, such an action will be bought in tort and will require a Plaintiff who has been personally victimized by the Professor. He can then claim that Professor Ripoff is liable for violation of direct duty of care to ensure that the procedural requirements of the University and its policies on expulsion are strictly followed. If Professor Ripoff’s arbitrary actions are not opposed and action taken by the Council members, then any action against professor Ripoff can also be directed against them, for their breach of duty of care to ensure that the best interests of the University are served by an adherence to the procedural requirements that have been set out after careful deliberations. But neither the students or academic members can bring an action against Professor Ripoff when there is a Council in place that is obligated to take action on these allegations. The students and academic members can file their complaint with the Council and it is up to the Council to investigate these allegations and take action against Professor Ripoff for his flagrant violations. In fact, skimming off the University accounts and benefiting through his land transactions would be deemed to be ethically in violation of the Vice Chancellor’s fiduciary obligations and he can be held directly liable for the violation of his duty. In the event that the students and others bring their complaints to the notice of the Council and no action is taken by the Council within a reasonable period of time to take action against the Chancellor and stop his activities, including bringing legal action against him, then the student and academic community can bring suit in tort and breach of fiduciary duty against the Vice Chancellor. They will also be entitled to take action against the Council members for breach of their fiduciary duties. The causes of action that were relevant in the Lepore case, of vicarious liability under tort and the non delegable duty of care under tort will be relevant and applicable in this case. Gleeson J specified in this case that an employer is “vicariously liable for a tort committed by an employee in the course of his or her employment.”*15 The Vice Chancellor is considered an employee of the University and is subject to the control of the Council members. Since in this instance, the damaging acts and breach of fiduciary duty of the Vice Chancellor are arising directly out of his employment and are also impacting directly upon the interests of the University, especially by the diversion of the University funds, it is mandatory for the Council members to take action against him. The Vice Chancellor’s actions cannot be deemed to be his personal acts which are not directly related to his employment, on the contrary, they are arising out of an abuse of his position. Therefore, the students and academic members must first bring their complaint to the Council for action according to procedures spelt out in the University regulations, failing which both the Vice Chancellor and the council members could be liable under common law of tort and breach of fiduciary duty. Ans 3: Surveys that have been conducted on drug use among students shows that 52% of senior school students have tried cannabis and 15% report that they use it regularly*16. Therefore, the concerns the school has about the use of drugs among its students would appear to be well grounded. In order to prevent the disciplinary and other problems that arise out of drug use by students, many school bodies are resorting to expelling students who pass on drugs to other students. This reduces a young person’s opportunities in life and is a causal factor in other related problems.*17 Although some schools have commenced random drug testing, some experts are of the view that random drug testing at schools is likely to damage the trust and communication between the staff and the students.*18 According to Father Norden, the very motivation of the schools for conducting random drug testing is suspect, since contrary to their claims that it is the welfare of the student that underlies their actions, the reality may be that the schools are concerned about their reputation, and this is more so, at the schools that cater to the higher income groups. In a recent ruling, the measures undertaken by a West Australian Company to introduce drug testing was supported by the WA Industrial relations commissions*19. But according to Senior Commissioner Andrew Beech, mere testing of an employee to determine the presence of drugs was not in itself an adequate measure of the fitness of the employee in the performance of his/her work, therefore any decisions made or penalties issued on the basis of the drug tests was likely to be deemed discriminatory. Similarly drug testing in school also raises the problems of discriminatory action. For example, if a student has tested positive for cannabis or marijuana use, this is not necessarily an indication that his school performance is likely to suffer or that he was abusing the drugs on the school premises. For example, cannabis remains in the blood stream for a period up to three weeks after it has been used, therefore even when a student tests positive, this is not necessarily an indication that such use occurred within the school’s jurisdiction and the school will have no authority to control or dictate a student’s activities over the weekends, which would be a gross invasion of privacy. Invasion of privacy is one of the most important legal issues that have been raised in the content of mandatory drug testing. In the context of a student’s conduct and performance at school, the intrusive examination into a student’s personal habits is a gross violation of his/her privacy and the right to refrain from disclosing his/her private activities to the school authorities. In fact, mandatory drug testing has been fiercely resisted even at the workplace. The practice of testing for drugs at the workplace raises questions about how far an employer should be permitted to probe into an employee’s lifestyle. The question that has been raised is whether such tests are in fact necessary from the employer’s point of view for job performance, or whether they are an unjustified invasion of an employee’s privacy.*20 Most mandatory drug testing is performed on urine samples, which in turn calls for close supervision, which would indeed cause embarrassment to students and create a cause of action for an invasion of privacy*21. But where adults have a measure of control and have raised objections to mandatory drug testing at the workplace, students do not have the option of leaving or walking away from a school that imposes mandatory drug testing upon them, since young people are not treated on par with adults. This raises the issue of forcing them to submit to drug testing against their will. Since the school intends to make participation in cultural and sporting events dependent upon drug testing, students are not provided with the freedom of choice to reject the test if they so choose and this places an obligation to them to submit to the tests, without which they will not be allowed to participate – which lays the school open for charges of discriminatory conduct and not respecting the free will choices and individual rights to privacy of the students. Moreover, due to the young age of the students, some of them may not be completely aware of what is going on and will not be in a position to give their informed consent to drug testing, which raises significant legal issues of the school acquiring information through forcible or uninformed consent. Since many schools resort to expulsion if they discover that students are distributing drugs, this can often impact disastrously upon the future of the students*22. There is also scope for legal action being taken against the school for discrimination in the event that a student is discharged from the school on the basis of testing positive on drug tests which may not be completely reliable. The reliability of drug tests has also been an issue of concern. Although sufficient care and precautions may be taken, there is still the possibility of a fast positive or negative results*23. For example a negative result may be obtained even when a person has taken drugs if diuretics are used or large amounts of water are ingested to flush away the residues of drugs in the blood stream. Similarly, false positive results may occur when the person being tested is taking some medication or even after consuming herbal tea. Therefore, schools relying upon drug tests are likely to face sticky legal consequences, especially if a student is dismissed on the basis of a false test. There will be heavy damages that may have to be paid if a school has dismissed a student on the basis of a positive drug test which may be later proved to be wrong, because the school will have to pay damages for wrongful expulsion, discriminatory conduct and an unjustified invasion of privacy. The school will become legally liable for several causes on tort and interference with a student’s right to privacy and freedom in pursuing their education. While drug use may be increasing, the procedure for drug testing will have to be carefully considered before any action is taken, in view of the legal ramifications mentioned above. Ans 4: (a) Students are to be trained to be effective citizens while they are at school. Education is vital in a child’s life and is the dough that moulds the child’s personality and character, while also determining what kind of a person the child will grow to be and who he/she will become. A school has a responsibility to maintain a safe learning environment for its students in order that their best potential may be harnessed and in this context, the school authorities may temper the right to education with the need to maintain a safe environment in schools. Section 9 (1) of the Child protection Act 1999 in Queensland provides that a child has a right to protection from harm. Moreover the (Student Protection) Amendment Act of 2003 to Education mandates that school staff are well equipped to protect children and are obliged to report instances of suspected abuse. Case law has established that school authorities have a duty of care to safeguard the physical well being of the pupils of the school*24. In one case where the principal and teachers were not able to adequately protect a student from bullying which caused her harm, resulted in substantial damages being awarded to the child*25. Since the teachers at Green island School are aware informally that Jonathan is being bullied by the group that calls itself the “Nerd Busters”, their duty of care to protect Jonathan’s safety is heightened even more. When the knowledge of bullying exists, then it is up to the teachers to ensure that bullying incidents do not take place in the school and where they occur, they are dealt with in adequate measure. In fact, the case of Bradford Smart v West Sussex County Council*26 raised the issue of how far the teacher’s duty of care extends to protecting children from bullying. Through the decision on this case, it was established that when a school is aware that bullying is taking place, that places “a greater duty than to take reasonable steps to prevent that bullying spilling over into the school.” In this case, Jonathan has indicated that he does not wish to be in the same group of Nico and the teacher is aware of the reason for this, which placed an extra duty of care upon their teacher. However, the teacher was not able to adequately protect Jonathan who has suffered serious physical harm due to the bullying of his classmates. Therefore, the teacher has failed in the duty of care, especially in view of the knowledge of the bullying that existed. Therefore, the school will be deemed to be vicariously liable for the injuries that Jonathan has sustained and he will be eligible to damages not only for the physical harm that he has suffered but also for damages in tort for the failure of the teacher and the school to protect him from bullying and maintain a safe environment for the students. The case of Bradford Smart also laid out the guideline that where bullying exists outside the sphere of the teacher’s influence, they must take “effective defensive measures”, which the teacher did not do by leaving Jonathan alone with the bullies. (b) Traditional schools are based upon a hierarchical structure, where authoritarian control is exercised by the teachers who in turn are controlled by the principal. The entire school system is based upon rules and school administrators and personnel are concerned mostly with the enforcement of rules and the maintenance of order and discipline.*27 While the school system is supposed to be geared towards the development of children into good citizens, the authoritarian and disciplinarian systems are often counter productive to addressing the needs of children.*28 In the case of Nico, the principal’s suggestion that he be suspended for a week is likely to be viewed as punitive action and may also be deemed to be an infringement of Nico’s rights to pursue his education. Since Nico has already been identified as a child with ADHD, this implies that traditional systems of school justice may not be effective in his case. On the contrary, any punitive action against him may be viewed as discriminatory. Moreover as Sally Varnham points out, punitive measures such as these have been found to have little if any beneficial effect in maintaining the safety of the school environment and may in fact harm relationships within the school community. In effect, the principal’s action is likely to worsen Nico’s problems and accentuate the bullying behavior which is a symptom of his deeper problems. Therefore, the system of restorative justice is likely to be more effective in the case of Nico. Varnham identifies this as a system that emphasizes a repairing of the harm caused by criminal behavior. It is based on an adjudicatory process of dispute resolution that involves peer centered arbitration. Getting rid of troublemakers by asking them to stand down or suspending them places authority in the hands of school authorities. However restorative justice or alternative dispute resolution involves peer mediation where trained students function as mediators to ensure that the antisocial act is renounced while simultaneously supporting both victim and offender and arbitrating the differences between them in such a manner that an effective resolution is reached. Some of the merits of this approach that have been suggested is that it provides an opportunity to both offender and victim to air their grievances, unlike a disciplinarian system where the offender is promptly punished, or where the victim feels the teachers don’t care. The conflict is viewed as an opportunity for positive interaction to learn more about others and arrive at a resolution where one’s own viewpoint is represented. By thus imbuing Nico with responsibilities to arrive at an agreement and then put his signature on the agreement, he will be taught to accept responsibility for his own behavior and the need to control it and maintain the safety in the school, while he also gets a chance to view the situation from Jonathan’s viewpoint. In view of the damage he caused, it gives Nico an opportunity to realize that he could have suffered serious consequences which will make him appreciate the opportunity for mediation and impart greater responsibility for his future actions. Read More