Mai Chen: Hair decision won't alter schools' ability to enforce rules

Principals should not be too worried about the impact of the High Court's decision overturning Lucan Battison's suspension for refusing to cut his hair.

The status of a school's ability to make and enforce rules has not changed.

Lucan's case is confined to the circumstances of his suspension and the school's hair rule. If schools ensure their rules are clear and take care to suspend students only in the most serious cases, there is no reason why they cannot prescribe rules for students, as they have always done.

Principals must, however, balance the need for discipline and boundaries with the rights of children protected in the United Nations Convention on the Rights of the Child, which New Zealand has ratified. The convention guarantees that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Traditionally, the court has not intervened in school disciplinary decisions, but the need to interpret New Zealand's laws consistently with its international obligations under the convention has necessitated a change in approach. The Battison decision makes clear the court no longer feels able to stand back in such cases.

The Education Act states that "subject to any enactment, the general law of New Zealand, and the school's charter, a school's board may make for the school any bylaws the board thinks necessary or desirable for the control and management of the school". The Battison decision has not created a right of challenge to school rules where none previously existed. As delegated legislation, all school rules are judicially reviewable by the court, and the act makes it clear school rules will be subject to the New Zealand Bill of Rights Act and the UN convention.

That is why the judge also said the school needed to give careful consideration to whether any hair rule breached a student's rights to autonomy, individual dignity and his rights to freedom of expression affirmed in the Bill of Rights. But these rights are not absolute and are subject to such reasonable limits as can be demonstrably justified in a free and democratic society.

For example, the US Supreme Court held, by a majority of 5-4, in 2007 that an Alaskan schoolboy was rightly suspended and his banner saying "Bong hits 4 Jesus" displayed during a school event was rightly confiscated. The justices said the First Amendment (protecting free speech) does not prevent educators from suppressing, at a school-supervised event, student speech that is reasonably viewed as promoting illegal drug use.

The Battison decision will be difficult to challenge successfully because the sole issue was about the length of Lucan's hair and he was prepared to tie it back into a neat bun. Lucan is a good student who recently won a bravery award. Nor was his hairstyle clearly and unambiguously prohibited by the school rules, the judge found. A statement that "hair must be off the collar and out of the eyes, when loose" might have made it harder for Lucan and easier for the school.

The judge also found the school got the suspension process wrong. The Education Act provides that a principal can only suspend a student on reasonable grounds that the student's gross misconduct or continual disobedience is a harmful or dangerous example to other students.

The school had failed to consider a penalty that minimised the disruption to a student's attendance at school (such as being barred from playing for the First XV). Moreover, the disciplinary committee simply endorsed the principal's decision rather than reaching an independent judgment.

Mai Chen is a partner at Chen Palmer, public and employment law specialists.