School lawyers blame ministry in Asperger's expulsion

Legal action taken against a school which expelled a teenager with Asperger's should be directed against the Ministry of Education for not providing the school with adequate funding, lawyers for the school argue.

The 14-year-old, known as pupil A, was thrown out of Auckland's Green Bay High following a row with a teacher over a skateboard 10 months ago.

His family took the school to court over its decision, saying his behaviour last July did not amount to gross misconduct and the school had used the incident as an excuse to remove him from its care.

But a lawyer for the school, Richard Harrison, yesterday told a judicial review into the decision at the High Court at Auckland that the principal was concerned for the safety of pupils and her staff, as well as wanting to ensure other students' lessons were not disrupted by A's "unpredictable" behaviour.

The school had tried repeatedly to gain extra funding to provide appropriate education and supervision for A, but had been turned down.

The school had struggled on the resources available to it, but staff had gone "above and beyond" to engage with A, Mr Harrison said.

"What they couldn't cope with was the unpredictability, the eruptions," he said.

"The school can't be held responsible for doing their best but not getting funding."

It could be argued the Ministry of Education should be the respondents to the dispute, he said, given the lack of resources provided to the school and the fact there was no secondary age special needs school in the Auckland area to provide suitable education for pupils such as A, something Mr Harrison described as a "major issue".

However lawyer Simon Judd, acting for the family, said resources were not the issue at stake, but whether A's behaviour over the skateboard row constituted gross misconduct of the kind to warrant an expulsion.

"You can't use punishment of a 14-year-old student as a way of dealing with the problem you've got in getting funding from the ministry. That's just not fair and it's not permitted under legislation," he said.

Pupil A's behaviour did not amount to gross misconduct, Mr Judd said, arguing that if another pupil had done the same thing they would not have been expelled. It also had to be taken in light of A's Asperger's.

"A reasonable principal, knowing the history and knowing the issue with this student, could not have reasonable grounds for saying this particular incident that happened on that day, in itself, was enough to justify the suspension."

Judge Justice John Faire reserved his decision until tomorrow at the earliest.