Learning to cope with unruly pupils

When a school is legally required to reinstate a previously excluded pupil, teachers face many ethical and practical dilemmas, writes Nicholas GrahamIf recent news reports are to be believed, a major cause of the current recruitment and retention crisis in the teaching profession is the increasing unwillingness to teach disruptive pupils.

The problem is exacerbated, say teachers and their unions, by the inadequacy of the legal powers given to head teachers effectively to discipline and, if necessary, exclude such pupils.Many head teachers complain that the procedure for excluding pupils is onerous and favours the interests of the disruptive pupil over that of the welfare of staff and other students, especially when the allegations concern actual or threatened violence.The procedure allows for an excluded pupil to appeal to an independent appeal panel, which scrutinises the head teacher's decision.

The panel assesses whether the pupil did what is alleged, and whether exclusion was an appropriate response to that conduct.

If the decision to exclude does not meet those two tests, the exclusion is overturned and the pupil reinstated.

ExcludedThe panel's decision often comes after a long, tense hearing where representations can be made by the head teacher, governors, parents and, if old enough, the pupil.

Witness statements are submitted and large bundles of documents are referred to.

Some local authorities employ a barrister to act as an independent adviser to the panel, with solicitors engaged to represent the parents and school.

The formality of the proceedings underlines the significance of the decision for both the excluded pupil's future reputation - if the appeal is dismissed and the decision to exclude is confirmed - and for the school, if the appeal is upheld and the pupil is reinstated.An order to reinstate a previously excluded pupil presents the head and governors with an extremely difficult dilemma.

How do they assuage the concerns of other parents who are worried about standards? How do they maintain discipline and credibility in the school if the sanctions imposed are seen to have been unreasonable? In cases of violence, how do they persuade the staff to continue to teach the reinstated pupil if those same staff express fears for their own and other pupils' health and safety?It is the response to that last dilemma which has concerned not only teachers and their unions, but also the Administrative Court, and, most recently, the Court of Appeal.Industrial actionSection 67(3) of the School Standards and Framework Act 1998 obliges all parties to comply with an order for reinstatement.

In the event that a governing body refuses, the pupil, in normal circumstances, would be entitled to seek an order of mandamus from the Administrative Court, compelling the governing body to reinstate.

However, in R v South Tyneside Education Department and the Governors of Hebburn Comprehensive School Ex parte Cram (1998) ELR 508, the court, exercising its discretion, refused to compel the governing body to reinstate in circumstances where the teachers' union had threatened industrial action should the excluded pupil be returned, notwithstanding the pupil's strict legal entitlement to be returned.Teaching unions have not been slow to support their members in proposed industrial action when faced with reinstated pupils.

Of note is the recent decision in P v NAS/UWT (2001) IRLR 532 where the Court of Appeal was asked to make an order requiring the teaching staff to teach a reinstated pupil when it had initially refused to do so.

The court declined to make such an order and in so doing confirmed that a legitimate trade dispute could arise in such a situation.Faced with the reality of a panel's order to reinstate and staff threats of industrial action, head teachers have attempted innovative schemes, providing the curriculum for the reinstated pupil off-site in pupil referral units, or outside the head teacher's office, or in a separate classroom with one-to-one tuition by supply teachers, thereby reducing contact with other pupils and allaying the fears of staff.Such a scheme was challenged in the consolidated appeal of L v J and W v B (The Times, 20 August 2001).

In this case, the parents of reinstated pupils argued before the Court of Appeal that the term 'reinstatement' required the head teacher to restore the status quo, that is to say, put the pupil back into the classroom setting.

Not so, said the court, with Lord Justice Laws saying: 'The notion of reinstatement could not demand a precise, or even approximate, restoration of the conditions in which the pupil's life at school was carried on before his exclusion.

There might be all manner of factors requiring different conditions.' Therefore, reinstatement could include separating the excluded pupil from the rest of the staff and pupils.ReinstatementThe more important question, for the court, was the head teacher's discretion in managing the school, and thereby imposing conditions on the reinstatement.

Was the exercise of that discretion a lawful one when the head teacher took into account the threat of industrial action?While Lord Justice Laws had some strong words to say about the apparent attempt by the teaching unions to circumvent the decision of the panels, (as the 'statutory decision-makers authorised and required by Parliament to go into the facts of cases ...') the threat of the staff to take industrial action was a relevant consideration for the head teacher to take into account when planning the way in which reinstatement should be managed.

The head teacher's obligations were to strike a balance between the interests of the reinstated pupil and the interests of the staff and other pupils, which was done in both cases before the court.But head teachers do not have complete freedom to make any arrangement for the reinstatement as they please.

When the first case came before Mr Justice Richards in the Administrative Court, he commented that how the school was responding to the reintegration was a developing situation and while the governors had acted lawfully thus far, this may change in the future.

The 'threat' that the pupil posed may subside, or the union's position may prove to be unreasonable if the pupil made good progress, or the governors and head teacher may be able to bring about change in the union's position.

The obligation upon the head teacher was to keep monitoring the situation.

As Lord Justice Laws confirmed on appeal: 'The head and the governors are required to act proportionately to any threat of industrial action.

That is they should consider what is the least derogation from the pupil's full reintegration into the school that must be conceded so as to secure the protection of other pupil's interests'.The recent consultation from the Department for Education and Skills on changes to the statutory framework for exclusions suggests that the government may strengthen the hand of head teachers, making it harder for pupils to be reinstated.

Until such time as the changes take effect, each reinstated pupil will present schools with new dilemmas.

For some pupils, the head teacher will need to work hard at meeting the 'least derogation' test; for others the important task will be to allay the concerns of staff and their unions.

Ironically, heads may welcome threats of industrial action by staff, thereby giving them greater scope in managing the reintegration process.Nicholas Graham is the principal solicitor at Oxfordshire County Council