Ombudsmen have no power to reverse schools' decisions, writes Ben Mills, legal education co-ordinator with YouthLaw Tino Rangatiratanga Taitamariki, a free legal service for children and young people nationwide.
Last week the Ombudsman released a report criticising Hutt Valley High School, the Education Review Office and the Ministry of Education among others for their part in an appalling incident of extreme violence in 2007.
According to Mai Chen, "complaining to the Ombudsman is an effective way to resolve problems". Yet the Ombudsman's report concluded a four-year process.
Few people have heard of the Ombudsman, let alone would be able to explain that their jurisdiction extends to unresolved complaints about school Boards of Trustees.
The Ombudsman's own website states they can take between 50-84 working days to resolve complaints. But of greatest significance is that Ombudsmen have no power to force public entities to reverse a decision.
Make no mistake, the Ombudsmen perform a crucial democratic role in reviewing government decisions and making recommendations to Parliament. They perform their functions diligently and thoroughly, and give proper consideration to natural justice by providing all parties ample opportunity to respond to comments and criticisms. They also provide an alternative to expensive and protracted legal action.
But for school complaints an Ombudsman review takes too long, which can mean students are out of school for months.
Mai Chen is right in at least one respect: court must be the last resort. But even this is not available to many students and their parents: it costs too much and takes too long.
Irrespective of cost and time is the welfare of the child, which again is rarely best served by such measures - often, that time is better spent simply finding a new school.
Consider this example. A 13-year-old boy is being bullied at school. One day he lashes out against the bully, and is suspended from school.
The Board of Trustees tells the parents other students have implicated their son as the main bully, but won't say who this information has come from.
They won't allow the student or parents any support representatives, and because the boy isn't suitably remorseful, he is excluded.
This example is real. Not only does the lack of fairness and the approach of the board make the school's actions illegal, but there are very few options available to the family.
The Ministry of Education is too often reluctant to get involved.
A complaint to the Ombudsmen might indeed eventually resolve the matter, but now the student has been out of school for four months and is considerably behind with school work.
Furthermore, if the Ombudsman recommends that the school re-enrol the student, the original bullying problem hasn't yet been resolved. And there is no way, other than taking the school to the High Court, to force the school to fulfil its legal obligations.
Last year there were 1606 exclusions and expulsions from schools. Seventy-seven per cent of excluded students (under 16) are out of school for at least a month, and 39 per cent for at least three months.
While some of the blame sits squarely on the shoulders of schools and the Ministry of Education, it is the overarching lack of substantive accountability in the Education Act 1989 which is at issue.
There must be an independent body which is able to review school actions and quickly make a decision about the fairness of those actions, with a view to ensuring that students are out of school for as little time as possible.
The Ombudsman's recently released report details a number of recommendations to prevent the poor responses to the incident at Hutt Valley High School from happening again.
While things like mandatory anti-bullying policies and consideration of victim's views in decision-making are both desirable and relatively uncontroversial, they still fail to address the systemic problem of the lack of school accountability and access to justice for students and their families. Only with an education appeals tribunal, with timely processes and the power to legally force schools to change decisions, will students and their parents be able to ensure fair decision-making.
"Closure" for victims and their families may be one thing, but when it comes four years after the incident in question and still doesn't address the lack of school accountability, perhaps we need to look at the system as a whole, rather than individual cases.
Schools expect their students to follow the rules. If schools themselves won't follow the law, what kind of education are we really providing?
YouthLaw can be contacted on 0800 UTHLAW.