Judge, Jury & Headmaster

In which a report in the Independent provides yet more evidence of systematic stupidity and rampant bansturbation amongst the managerialist classes…

Teachers angry over reinstated pupils as exclusions increase

There has been a sharp rise in the number of pupils excluded from secondary schools, taking the annual total to more than a third of a million.

But teachers’ leaders are angry that more than 100 pupils successfully appealed against their exclusion and were allowed back into their classrooms. Headteachers said this was undermining their attempts to instil discipline in schools.

Huh? Okay, before we get into this, lets actually look at the numbers.

There were 343,840 exclusions last year, a 4 per cent rise on the previous year and the equivalent of one in every 10 pupils, national statistics pubished yesterday showed. The number of permanent exclusions for serious disruptive behaviour or assault fell by 3 per cent to 9,440…

…The proportion of successful appeals against exclusion rose by 9 per cent to about a quarter, with 130 out of the 240 pupils involved being reinstated.

So we’ve got 343,840 exclusions in total, 9,440 permanent exclusions, 240 pupils appealing a decision (most likely on a permanent exclusion) of which 130 won their case – and that’s ‘undermining [Headteachers’] attempts to instil discipline in schools’?


John Dunford, general secretary of the Association of School and College Leaders, said: “I find it astonishing and worrying that more than half of successful exclusion appeals result in the pupil being returned to the same school. Heads need and deserve better support than this if they are to maintain the standards of discipline that society expects. It is undermining schools’ ability to discipline.”

Well, yes, there are some worrying elements to this story, but these have rather more to do with Dunford’s ‘Do what the headmaster wilt shall be the whole of the law’ attitude than with the relatively small number of cases in which exclusions are overturned on appeal.

Let’s get a bit of perspective here. Based on these figures, a mere 2.5% of decisions to permanently exclude a pupil were appealed and only 1.3% of all such exclusions were overturned on appeal – not exactly a huge percentage of all permanent exclusions then, let alone of the total number of exclusions on the year.

Then there’s the business of these appeals, themselves.

So we’re clear, what were talking about here are appeals to [notionally] independent panels, which all local authorities, and voluntary-aided/foundation schools are required to provide by law, that hear only appeals against permanent exclusions after a final decision to exclude a pupil has been taken by a disciplinary panel made up of governors of the school from which they’re being excluded.

No I don’t know what you think goes on in these appeals hearing – one suspects the impression that some in the teaching profession would like to give is somewhere along the lines of the scene in the Blues Brothers where Jake grovels for his life, in a storm drain, before a gun-toting Carrie Fisher – but these are actually formal hearings held before and formally constituted and [notionally] independent panel.

And who sits on these panels?

Well, under the current regulations, an exclusion appeals panel must consist of either three or five individuals who are:

(a) persons who are eligible to be lay members;

(b) persons who are, or have been within the previous five years, head teachers of maintained schools; and

(c) persons who are or have been governors of maintained schools, provided they have served as a governor for at least twelve consecutive months within the last six years, and who are not teachers or head teachers.

For a three person panel, one of each category is required and for a five person panel it must be one lay member and two members from categories (b) and (c).

Eligibility for lay members is defined as follows:

…a person is eligible to be a lay member if he is a person without personal experience in the management of any school or the provision of education in any school (disregarding any such experience as a governor or in any other voluntary capacity).

While eligibility for the ‘experienced in education’ category is defined by a set of exclusions under which Panel members cannot be:-

(a) any member of the authority or of the governing body of the school in question;

(b) the head teacher of the school in question or any person who has held that position within the previous five years;

(c) any person employed by the authority other than as a head teacher;

(d) any person who has, or at any time has had, any connection with –

(i) the authority or the school, or with any person within paragraph (c), or

(ii) the pupil in question or the incident leading to his exclusion,

of a kind which might reasonably be taken to raise doubts about his ability to act impartially.

The more observant amongst you will have already figured out by now that under those rules, its not exactly difficult to come up with an ‘independent’ appeals panel that, if its not a hangman jury, is at least pretty well pre-disposed to come down on the side of the school, especially when you consider that the panel is also required to balance the interest of the appellant against those of the other pupils of the school and precluded from considering any actions taken by the school prior to the final decision of the governors to exclude a pupil, leaving only two applicable grounds for appeal:

(1) You got the wrong kid, or

(2) The decision to exclude was excessive, as in ‘the punishment didn’t fit the crime’.

Little wonder, then, that one of the more common complaints made by parents who’ve been through the appeals process is that they find themselves in an environment in which everyone but them is on first name terms or that the Council on Tribunals, a permanent standing advisory body (i.e ‘watchdog’) that oversees the procedural aspects of about 80 different tribunals, has raised extensive concerns about the operation of these panels:

6. In May 2003 the Council on Tribunals published its special report ‘School Admission and Exclusion Appeal Panels’. It repeated its previously expressed concerns about the lack of independence of these panels, their constitution, the need for greater consistency in the clerking arrangements, the need for a clear and uniform policy on training, the need for better guidance and information for parents, the need for better and more appropriate accommodation, and particular concerns about the operation of appeals for voluntary-aided and foundation schools.

9. Finally the House of Commons Education and Skills Committee looked at these issues. It reported on 22nd July 2004 – HC 58-1. They too were concerned about the system. They were complimentary about the reports of both the Council on Tribunals and the Ombudsmen, and expressed disappointment that the DfES had so far been reluctant to act on many of the Council’s recommendations. Taken together they said that “the two reports provide compelling evidence of the need to establish and enforce a common framework for the admissions and appeals process”. They were particularly concerned about the difficulties with appeals conducted by voluntary-aided and foundation schools, and in this context pointed out that “parties should be mindful of the need for the appeals process to be, and to be seen to be, independent from any admissions authority, including LEAs.”

And despite all that, schools lose a very small number of exclusion appeals and then whinge to high hell that this whole appeals business is getting in the way of school ‘discipline’ without any murmur of concern or recognition when it comes to the question of why these 130 cases have been successful on appeal and what that might say both about the conduct of the relevant schools and the impact that a wrongful exclusion may have had on the successful appellant.

And if the self-regarding attitude of a representative of the teaching profession were not enough, along comes David ‘Two-Brains’ Willetts to add his twopennorth:

David Willetts, the shadow Education Secretary, said it was “disturbing” that so many appeals were successful.

“How can you possibly maintain order when a child you have expelled from your school wins an appeal and is back in your classroom?

“It is not fair on teachers or the vast majority of children who are at school to learn without being distracted by a badly behaved minority.”

To be clear on the political dynamics here, the Tories opposed the introduction of ‘independent’ exclusions appeals panels and would rather that kids who may have been wrongfully excluded for school take their chances in court if they want to overturn a wrongful exclusion.

What neither Dunford or Willetts is displaying here is any apprehension of, or regard for, the importance of one of the core principles of the UK’s common law tradition; that of natural justice.

It is natural justice that dictates that decisions of exclude a pupil permanently from a particular school must be made subject to an independent appeal under the principle of Nemo iudex in sua causa or ‘No man may be judge in his own cause’ and because the construction of these tribunals requires that a finding in favour of the appellant must, by default, strike down the decision to exclude them from school as if it had not been taken, the only valid redress the tribunal may offer to right the wrong done to the appellant is their reinstatement at the school from which they were wrongfully excluded, unless it can be shown that there are exceptional circumstance which might reasonably preclude reinstatement.

These tribunals are not permitted to consider or rule on purely procedural defects in the process by which the decision to exclude was made and therefore cannot enter a judgement against the school on technical/procedural grounds (except, perhaps, where the original decision was taken via a process that was so so egregiously unfair as to make the entire proceedings ultra vires) and yet uphold the punishment on the grounds that the procedural failings were insufficient to merit overturning the decision to exclude other than in exceptional circumstances.

In others words, what both Dunford and Willetts are arguing for is the near complete disapplication of the common law and the principle of natural justice from the education system in favour of a system in which schools become judge, jury and executioner and anyone who is wrongfully excluded from school has recourse only to the High Court, with all the attendant costs that go with it. One the key purposes of this tribunal system is to try and avoid disputed exclusions ending up in court and ensure that anyone who feels themselves to have been wrongfully excluded from school has a means of seeking (and obtaining redress) that is not contingent on their parents having sufficient disposable income to meet the costs of litigation, not to mention that these tribunals also help to keep schools out of court and, therefore, minimise costs to the taxpayer.

Far from waving around a bunch of largely unilluminating general statistics – nothing in this report explains why, and on what grounds, 130 pupils were successful in appealing exclusion decisions, both Dunford and Willetts would be better served by seeking to review and develop an understanding of why these appeals were successful and what implications they might, therefore, have for the manner in which decisions on permanent exclusions taken and reviewed on appeal. By far the best way of avoiding losing appeals on exclusions is to ensure that all such decisions are taken correctly in the first place.

Still, its not just teaching unions and the Shadow Education Secretary that can be proven to be the fount of dumb ideas:

New measures would be introduced in September compelling parents to ensure their children stayed at home for the first five days of an exclusion, Mr Knight said. Schools would be be told to set homework for pupils to stop them roaming the streets and fines of £50 would be imposed on parents if they allowed them to do so. “We want to stop fixed-term exclusions being seen by some as an unofficial holiday,” he said.

Right, so not only are 340,000 kid excluded from school each year, but now they’re also to be given homework and placed under daytime house arrest?

Anyone really think this is likely to work? Or it is more likely that we’ll see kids returning to school with an encyclopaedic knowledge of of daytime television and the appearance of an ‘excluded from school’ group on Facebook, not to mention the obvious problems facing working parents who are likely to find themselves forced to take time off work to supervise their recalcitrant teenagers or take the risk of ending the week under a slew of £50 fixed penalty notices.

How long do you think it’ll be before its discovered that this is all sufficiently ineffective to merit a further exercise in bansturbation under which parents of kids on temporary exclusions are charged with taking the plugs of any TV’s, radios or hi-fi equipment in the house, confiscating all iPods, MP3 players and mobile phones and shutting down their internet connection for the duration of their kids’ temporary exclusion, all on pain of a visit from the school exclusion (entertainment) police and yet more fixed penalty notices?

Some might think that maybe a mandatory period of attendance at a local specialist exclusion unit,  which would be similar to a pupil referral unit but handle kids under short-term exclusions, might be a more sensible and productive approach to dealing with such exclusions than a policy of homework and house arrest – at least you’d know that kids were (a) actually getting some work done and not vegging out on ‘Bargain Hunt’, chatting on MSN and surfing for porn, (b) spending their days in a properly supervised environment and (c) might just get a bit of support and an opportunity to  work through whatever issues they have that led to the their exclusion in the first place.

And finally…

Meanwhile, the National Association of Schoolmasters Union of Women Teachers called on ministers to classify mobile phones as potentially offensive weapons and to ban them from schools. Chris Keates, general secretary, of the NASUWT, told a meeting of a government task-force aiming to stamp out cyber-bullying in schools that they were being used by pupils to denigrate their teachers on internet sites such as ratemyteacher.

Sorry? Classify mobile phones as potentially offensive weapons???

Okay, it you we’re talking about the kind of house-brick mobiles that were around in the early 1980s and there was evidence of these being used to batter the crap (and dinner money) out of kids in the playground then you might have a point, but still potentially offensive weapons?

What next? A new charge of ‘assault with a deadly Nokia’?

Look, if we’re going to head down the road of banning things from school because they’re potentially offensive weapons, then we’re going to end up with kids doing their schoolwork with heavily cushioned wax crayons and the complete removal of geometry from the mathematics curriculum, not to mention the closure of all science (and domestic science) facilities and any school workshops, with all practical lessons in these classes being carried out only by teachers and only then behind a thick screen of bulletproof glass. If a mobile phone is a potentially offensive weapon, then so too are biros and pencils – trying jamming one up your nose or in your ear, hard, if you don’t believe me.

So far as mobile phones go in school time, its up to schools to set their own policies and I can’t imagine that many permit them to be used in the classroom. Yes, the new generation with built in cameras and video capabilities can be used to pull off the ‘winding up the teacher and videoing them losing the rag’ stunt, with the video then being uploaded to YouTube, and pupils can make use of sites like RateMyTeacher, and personal blogs, MySpace pages and Facebook groups to make offensive, libellous and harassing remarks about their teachers, which schools can (largely) prevent during school time (and using school equipment) by controlling internet access through their own net gateway.

Outside of school hours, however, there’s basically fuck all they can do other than complain to websites and service providers about offensive, harassing or libellous material – and good luck to them if the site its posted on is in the US and covered by the First Amendment as, in many cases, they’ll need a court order to get shot of the offending material – unless teachers plan to go down the road of constantly sicking the police on their daytime charges and suing kids in the High Court for libel.

Its yet more pointless bansturbation – banning mobile phones in schools isn’t going to prevent ‘cyber-bullying’, in fact to stop that using prohibition would necessitate a complete ban an children using the internet, and schools aren’t going to buy into that because, for starters, they’d all have to go out and spend a shedload of money on textbooks and a proper fucking library rather than directing kids to Wikipedia.

Catching a few of the worst of the little scrotes using the internet to hassle people and hauling their sorry asses through court might, just might, have a bit of deterrent effect, but efforts to tackle ‘cyber-bullying’ by prohibition and censorship are doomed to failure, because the one thing you can’t censor is the contents of kids’ heads and if they think you’re a miserable shite and a lousy teacher the only way you can address that is to work with them to change their perception of you and prove them wrong.

Prohibition, as ever, just doesn’t work.

7 thoughts on “Judge, Jury & Headmaster

  1. The idea of compelling parents to ensure their children stay at home is ridiculous.
    I was suspended from school once for a few days and my parents dragged me to work with them, set me up in a corner and made me get on with studying (they asked the scchool for some work for me to do). It was far more effective than if i’d been at home and made me see just how boring the world of work really is.
    I doubt there’s many kids who really get to skive through their suspensions. Most parents would be too pissed off at their kid embarassing them to give ’em an easy ride.

  2. I’ve sat on an exclusion appeals panel and you’re fundamentally correct on how well they don’t function. You’re presented with no background information other than that deemed relevant to the matter in hand by the LEA, Governors, Head Teacher et al. If you are truly impartial, then you’re set up for a massive bout of frustration as you haven’t a cat in hells chance of obtaining sufficient evidence to support an impartial decision. Consequently when the exclusion appears unjust, the only option open to many panel members is to try and argue that there was a fundamental flaw in the original exclusion process. Throw in the fact that the school invariably does a better job of presenting its case, and it soon becomes obvious that you’ve a better chance of pushing water uphill with your bare hands than the appeal has of succeeding.

  3. The whole system is tilted in favour of the school, or rather the Headteacher. By law, when children are excluded from schools the decisions must be ratified (retrospectively) by the Governing Body. Usually a small committee is formed to do this. Parents or carers are invited to attend with their child, and they may choose to do so. Evidence is provided by the school management and/or teaching staff, and this tends to be in the form of a statement from the Headteacher, often supported by written records which should have been made at the time of the incident.

    My experience has been that the Exclusions panel or committee rarely question the word of the Headteacher. Parents or Carers are faced with the daunting prospect of dealing with a system which is alien and cross-questioning people over their actions. All the while they are aware that the outcome may well have implications for their children’s personal records and daily life in school.

    As a Governor and Chair of Governors for many years I have on several occasions intervened to ask for further evidence. Sometimes I have refused to accept statements as being accurate reflections of a particular circumstance. On others I have refused to accept the punishment as being proportionate to the transgression. It is simply not the case that all Headteachers are without fault or bias. Indeed some that I have dealt with are utterly despotic (these tend to be the less able).

    I’d partially agree with Dunford’s concern about returning children to their schools, but for entirely different reasons. De facto if an exclusion is overturned the judgement of the Headteacher and the school’s Exclusion committee has been called into question. One might ask if many of these individuals would have the integrity to simply accept that ruling and to carry on without harbouring ill-will towards the children and their families. I doubt it.

    A decent Governing Body can keep a grip on the school and make sure that such injustices are kept to a minimum. However, I do think there is a place for advocacy here, and I would wish to see parents much better informed or represented when dealing with ‘the system’.

  4. Well, from my time working in a school I have to say that mobile phones do cause quite a bit of misery, for both teachers AND pupils, but they seem sort of unstoppable. Any sort of ban would be rsource intensive and would, like with any sort of ban, push everything underground. It’s a tricky situation, to be sure. The teachers should be able to put up with any cyber-bullying, as it’s a 21st Century version of the Boys Toilets Wall, you ask me. I feel for the kids, though.

  5. Very fair points, Chuck.

    I think the problem with Dunford’s remarks is that he is clearly arguing from the opposite standpoint to yourself and is concerned not with protecting the interests of the child who has been wrongfully exclude but the credibility and authority of the headteacher who’s judgement has been overturned.

    I was fortunate in my own days at school to have had the benefit of a headteacher, and deputies/heads of year who were nothing if not scrupulously fair, even to the most openly disciplinarian amongst them and, because many of them were actively involved in out of school and pastoral activities, to have got to know them to a reasonable extent, as I got into my final couple of years in school, outside the usual classroom/office context.

    I was, I freely admit, something of an awkward bastard at school, having always had a rather iconoclastic streak and a tendency to think for myself and question/challenge received wisdom and arbitrary authority, a facet of my own character made all the more difficult because I was also up in the top four or five in the school in terms of academic ability and had a knack of grasping things so quickly that I could be a nightmare when it came to getting me to do stuff like homework and revision, and yet still pull out top grades in tests and exams.

    What made that situation work without too much friction in the end was the out of school contact I had with a number of teachers, which meant that over time I came to respect them as individuals rather than simply falling into line with the idea that their position automatically commands respect and they came to appreciate that to get the best out of me simply required that they reason with me and give the benefit of backing up any decisions I disagreed with with the arguments that supported those decisions.

    That element of building positive relationships in schools is something that too often seems lost in all the pressure to meet targets these days, to the detriment of education as a whole.

  6. 240 pupils appealing a decision (most likely on a permanent exclusion) of which 130 won their case

    No – we’ve got around 1,000 pupils appealing (“The proportion of successful appeals against exclusion rose by 9 per cent to about a quarter”), of which 240 won their case and 130 were reinstated. I’m a bit concerned about the other 110, but maybe they were all over 16 by the time the appeal was heard.

    Of course, the statement I’ve just quoted is meaningless unless we also know what’s happened to the overall number of appeals – maybe it fell from 1400 to 1000 over the same period. Junk stats, don’tcha love ’em.

  7. A few belated comments:

    Being an absolute bastard at school was also my special interest. In fact if there had been a degree course at university I’d probably have walked it, but I did obtain a 2/1 both for Drinking and for Fornicating…

    The point of a formal Appeal is it provides an opportunity for the balance to be redressed. One has to remember that pupil records are now retained (and accessible). Thus, unjust decisions may stay on the record. In my view that is appalling.

    The astounding levels of proscription now virtually preclude any social interaction between pupils and staff. In fact the nature of school staffing has changed substantially in the last few years, with Teacher Assistants now working under the ‘supervision’ of qualified teachers – who may or may not have decent management skills.

    In the last ten years I have seen innumerable changes of policy and new initiatives. This has been immensely damaging. Teachers have spent inordinate amounts of time in coming to terms with these centrally imposed and largely pointless changes. It is the pupils who suffer.

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