Brian Rudman: Schools and their rules are not above the law

It's always great to see someone standing up to a bully. That Hastings schoolboy Lucan Battison also won the confrontation with his St John's College principal is the icing on the cake. As a child of the hippie era, when short hair was the oddity, it's hard for me not to see principal Paul Melloy's decision to deprive a pupil of a month's education because of the length of his hair as antediluvian.

And contradictory, coming as it did from an organisation that dresses its senior authority figures - all male - in gorgeous frocks and worships a God who, in every picture I have seen, sports a magnificent head of shoulder-length locks.

Amusingly, the High Court was provided with a school photo of Byron Fergus, the chairman of the school's disciplinary committee, sporting a mane of hair much grander than Lucan's offending locks. It was taken in 1988 when Mr Fergus was a member of St John's senior basketball team.

In the High Court, Justice David Collins had no difficulty in ruling that the school's reaction to Lucan's refusal to cut his hair was, to paraphrase, over the top - and illegal.

It seems a requirement of the job that headmasters are wont to obsess about trivial matters. At my primary school, our otherwise avuncular headmaster had a bee in his bonnet about boys' shirt-tails not firmly tucked into their shorts. One of my brothers was a perennial offender. At the weekly assembly, following the flag-saluting ceremony, came the march of the sartorially challenged. The week's worst miscreants were paraded around the ranks of their assembled schoolmates. It's a long time ago, but I seem to recall the worst offender each week having to lead the procession, with one of the headmaster's fishing sinkers hanging from his shirt-tail as an act of humiliation.

Presumably it was a case of returned World War II soldier-teacher adapting the disciplinary tactics of his military career. At least there was no suggestion of depriving kids of an education as occurred in the recent Hastings stand-off. What both episodes highlight is the need to monitor publicly funded schools to ensure these little empires stick to the laws of the land.

Following Lucan's victory, there's been much doom and despondency from the principals and their allies. Mt Albert Grammar headmaster Dale Burden was firing from both barrels, attacking the parents for going to court. "You back the school, you don't back your belly-aching teenager on everything."

Secondary Principals' Association president Tom Parsons warned that schools would have to "lawyer up" to ensure their rules "are watertight", and worried about costs.

Television celebrity psychologist Nigel Latta joined in, opining that parents were increasingly resorting to lawyers "when they don't get the answer they want" and that "is wrong". He supported young people pushing limits, but not to the extent of going to court.

It's as though we should turn a blind eye to educators acting illegally because, after all, we're only talking kids.

The critics miss Justice Collins' basic point. That the decisions to suspend Lucan were unlawful because they did not comply with some pretty basic requirements of the 1989 Education Act. This act permits a principal to suspend a pupil as a last resort "if she or he is satisfied on reasonable grounds that the student's gross misconduct or continual disobedience is a harmful or dangerous example to other students at the school".

Justice Collins said "principals must ensure that serious disciplinary consequences are reserved for truly serious cases. There must be a correlation between the offending and the punishment". He said other options were open to Mr Melloy, such as prohibiting Lucan from representing the school until he cut his hair.

Mr Melloy also overlooked the need to minimise the disruption to a pupil's attendance at school. Justice Collins rejected the idea that the length of Lucan's hair constituted "a harmful and dangerous example to other students".

While acknowledging the challenging nature of a principal's job in endeavouring to enforce appropriate levels of behaviour and standards, "it is also important for principals to exercise their disciplinary powers in accordance with the way Parliament has prescribed".

In other words, the school had ignored basic requirements of the Education Act, not least the need to consider the rights of the pupil.

As for the controversial hair rule, Justice Collins says he "resisted the temptation to try and resolve" whether it infringed pupils' individual rights. He said he didn't have to, as the school rule itself was "unlawful because it breaches the common law requirements that rules, such as the hair rule, be certain".

Noting that Lucan's hair had become an issue only with the arrival of Mr Melloy as principal, he observed "that others at the school might in the past have not thought his hair breached the hair rule".

He said that as delegated legislation, the hair rule "must be sufficiently precise to allow students and parents to fully understand the rule's requirements".

In a little sting in the tail, Justice Collins said that while "deliberately refraining" from commenting on the legality of any hair rule, he advised the school, in deciding whether to continue having one, "to give very careful consideration as to whether any hair rule would breach a student's rights to autonomy, individual dignity and his rights of expression affirmed by ... the NZ Bill of RightsAct".

It was a timely reminder to our educators to catch up and move on. The Bill of Rights Act has been around for nearly 25 years. It's time schools rules, and the administration of them, recognised this.