School managers increasingly find themselves between the rock and the hard place when it comes to admitting or excluding disruptive pupils. The forced admission or reinstatement of such pupils can split a school community apart and frequently threatens to disrupt the education of all pupils at the school.
Years of cost cutting and unsympathetic reorganisation by government are the real problem. The way forward can't, however, be to disregard the rights and needs of individual pupils. The statutory appeals machinery is frequently clumsy, insensitive and, more often than not, ineffective. Bad decisions need to be challenged but it is a mistake to deal with this as exclusively an issue of teachers' rights.
In the notorious Cram case*, the school and local authority, threatened with industrial action by teachers, tried to deal with an obviously silly decision to readmit G by "educating" him outside the classroom. Mr Justice Ognall subsequently ruled out this "solution": "It is accepted that" they "have a statutory duty to provide G with education suitable to his requirements.
It is also "accepted that" they "have not, in fact, reintegrated G into the normal curriculum of full-time mainstream teaching at Hebburn School. Accordingly, there is a clear prima facie breach of the statutory duty imposed upon the" school "to educate G according to the requirements of the Law. Additionally, there is a clear non-compliance with the direction of the school Exclusion Panel..."
Some of my best friends are teachers. I am married to a primary head. Some with long memories may recall my part in the getting the left leadership of the Inner London Teachers' Association back into the NUT. But this stuff about having to break the law because teachers are threatening industrial action is very iffy indeed.
The NASUWT is overplaying this hand and will, sooner rather than later, come a cropper but probably not before it has lured several thousand innocent teachers into its ranks by macho posturing. You have only to read Ognall J's judgment in the Cram case, and that of Harrison J in R v The Secretary of State for Education and Employment and the Governors of Southlands Community School ex parte 'W' to know the writing is on the wall.
There is nothing new about such threats. Some 25 years ago, soon after starting work at Brent Law Centre, I represented a very bright black boy who had been expelled for the crime of setting off the fire alarms, of which offence he was obviously innocent. He was reinstated. He was then hounded out of the school by staff bullies led by the headmaster. I choose my words carefully and use them with moderation. There were, of course, many decent teachers in the school who tried to defend the boy. The chair of governors and director of education at that time later admitted to me that the worst decision they had ever made was not to accept the headmaster's resignation on the night the boy was reinstated.
The point of this anecdote is simply to remind everyone that some exclusions are wrong and are rightly reversed on appeal. In such cases it is not legitimate to try to block the return of the child.
Winning reinstatement of an unfairly excluded pupil is a relatively rare event. This is particularly true when one is operating within the hopelessly enfeebled arrangements applicable to voluntary and grant-maintained schools. Even when parents do win, the outcome is often unsatisfactory, because the machinery lacks what is needed to achieve effective reconciliation and reintegration.
It is county schools, particularly those serving the most deprived catchment areas, who have to carry the can of inappropriate forced admissions and reinstatements. Indeed, the least appropriate schools for such placements are the most targeted.
Some reinstatement decisions are plainly ill-advised, even stupid. They should be contested and, in appropriate cases, resisted. The problem is that schools simply don't have the advice to hand that they need to do this effectively .
In both cases mentioned above, the courts (and, in one case, the Secretary of State as well) decided, as a matter of discretion, not to enforce the law against the schools. Mr Justice Ognall explained his position thus:
"Having regard to all those factors, I am satisfied that in all the circumstances this is a case where, irrespective of the strict legal merits of the applicant's contentions, a proper exercise of my discretion leads me compellingly to the conclusion that the relief sought should be refused. In both cases, a key factor was that the young people concerned had satisfactory alternative schools available to them."
The underlying problem here is well understood by all except government. Years of cost cutting, thinly disguised by the clamour of special needs integrationists, has resulted in a substantial increase in the number of poorly resourced and inappropriate mainstream placements of problematic pupils. At the same time, a curriculum straitjacket and a marketplace approach to public education have all but eliminated the flexibility mainstream schools need if they are to cope with such pupils and have sapped their will to try.
* Patrick Lefevre is the co-ordinator of the Brent Community Law Centre * *R v (1) The South Tyneside Education Department and (2) The Governors of Hebburn Comprehensive School ex parte Peter Cram (as Guardian Ad Litem for