23 April 2024 - PPT - Lesson 7 - Learner Misconduct (1).pptx

Education Law & Policy: Learner Misconduct WEEK 3: 23 APRIL 2024 LESSON 7  2 Learner Misconduct Lawfulness  Is there a law or rule?  Is the rule consistent with law and Constitution?...

Education Law & Policy: Learner Misconduct WEEK 3: 23 APRIL 2024 LESSON 7  2 Learner Misconduct Lawfulness  Is there a law or rule?  Is the rule consistent with law and Constitution?  Has the person the authority to act? (SASA empowers school authorities to discipline learners, but it is beyond the law to delegate this authority to a learner.) Reasonableness  Proportional, not arbitrary/irrational, public interests served greater than individual rights infringed Fairness  Procedural issues/fair process  Legal Concepts 3 (Roman-Dutch Law – Latin terms)  Ultra Vires - acting outside of legal authority/ beyond one’s mandate  Audi alteram partem - no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.  4 Legal Framework relating to Learner Misconduct SASA - Minister of Basic Education  Section 8 Code of conduct  Section 8A Random search and seizure and drug testing  Section 9 Suspension and expulsion  Section 10 Prohibition of corporal punishment  Section 10A Prohibition of initiation practices Legal Framework relating to Learner Misconduct  National regulations/policy/guidelines e.g.  Guidelines for the Consideration of Governing Bodies in adopting a Code of Conduct (includes Due Process requirements)  National Policy on the Management of Drug Abuse by Learners in Public and Independent Schools and Further Education and Training Institutions i.t.o. NEPA (Minister)  6 Legal Framework relating to Learner Misconduct Provincial Regulations – MEC  Misconduct of Learners at Public Schools and Disciplinary Proceedings PN 6903 (Gauteng) Provincial policy - HOD  E.g. Circular 74/2007 management of suspension and expulsion School Code of Conduct - SGB Classroom Rules - Teacher  7 Section 8 - Code of Conduct 1) Subject to any applicable provincial law, a governing body of a public school must adopt a code of conduct for the learners after consultation with the learners, parents and educators of the school. 2) A code of conduct referred to in subsection (1) must be aimed at establishing a disciplined and purposeful school environment, dedicated to the improvement and maintenance of the quality of the learning process.  8 Section 8A Random search and seizure and drug testing at schools 1) Unless authorised by the principal for legitimate educational purposes, no person may bring a dangerous object or illegal drug onto school premises or have such object or drug in his or her possession on school premises or during any school activity. (2) Subject to subsection (3), the principal or his or her delegate may, at random, search any group of learners, or the property of a group of learners, for any dangerous object or illegal drug, if a fair and reasonable suspicion has been established – (a) that a dangerous object or an illegal drug may be found on school premises or during a school activity; or (b) that one or more learners on school premises or during a school activity are in possession of dangerous objects of illegal drugs.  Section 8A Random search and seizure and drug 9 testing at schools 3)(a) A search contemplated in subsection (2) may only be conducted after taking into account all relevant factors, including - i) the best interest of the learners in question or of any other learner at the school; ii) the safety and health of the learners in question or of any other learner at the school; iii) reasonable evidence of illegal activity; and iv) all relevant evidence received. b) When conducting a search contemplated in subsection (2), the principal or his or her delegate must do so in a manner that is reasonable and proportional to the suspected illegal  Section 8A - Random search and seizure and drug 10 testing at schools 5) Any dangerous object or illegal drug that has been seized must be - a) clearly and correctly labelled with full particulars, including - i) the name of learner in whose possession it was found; ii) the time and date of search and seizure; iii) an incident reference number; iv) the name of person who searched the learner; v) the name of the witness; and vi) any other details that may be necessary to identify the item and incident; b) recorded in the school record book; and c) handed over to the police immediately to dispose of it in terms of section 31 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).  11 Section 9 - Suspension and expulsion from public school (1) The governing body may, on reasonable grounds and as a precautionary measure, suspend a learner who is suspected of serious misconduct from attending the school, but may only enforce such suspension after the learner has been granted a reasonable opportunity to make representations to it in relation to such suspension. (1A) An SGB must conduct disciplinary proceedings within seven school days (2) A learner at a public school may be expelled only- a) by the Head of Department; and b) if found guilty of serious misconduct after disciplinary proceedings contemplated in section 8 were conducted.  12 Section 10 - Prohibition of corporal punishment (1) No person may administer corporal punishment at a school to a learner. (2) Any person who contravenes subsection (1) is guilty of an offence and liable on conviction to a sentence, which could be imposed for assault.  13 10A Prohibition of initiation practices (1) No person may conduct or participate in any initiation practices against a learner at a school or in a hostel accommodating learners of a school. (2)(a): Any person who contravenes subsection (1) is guilty of misconduct and disciplinary action instituted against such a person in accordance with the applicable code of conduct, prescribed in Ss 8 and 18A of this Act and Schedule 2 of the EEA.  14 Corrective Measures  Corrective measures or disciplinary action must be proportional or commensurate with the offence or infraction. (Don’t use a hammer to crack open a nut)  Corrective measures must be consistently applied.  Corrective measures can be more severe with subsequent repeated infractions  15 Corrective measures for minor offences  Verbal or written warnings  Demerits  Supervised schoolwork linked to learner progress or improvement of the school environment  Performing tasks to assist the offended person  Replacement of damaged property  Suspension from school activities such as sport, cultural activities (Guidelines for the consideration of SGBs in Adopting a Code of Conduct)  16 Schedule 1 Offences that may lead to SUSPENSION A learner will be guilty of serious misconduct if he/she intentionally and without just excuse - a) seriously threatens, disrupts or frustrates teaching or learning in a class; b) engages in a conspiracy to disrupt the proper functioning of the school through collective action; c) insults the dignity of or defames any learner or any other person, which includes racist remarks; d) distributes, or is in the possession of any test or examination material that may enable another person to gain an unfair advantage in a test or examination;  Schedule 1 Offences that may lead to 17 SUSPENSION e) cheats in a test or examination or any other form of assessment such as assignments; f) engages in any act of public indecency; g) sexually harasses another person; h) is found in possession of or distributes pornographic material; i) is under the influence or in possession of alcohol.  18 Schedule 2 offences that may lead to EXPULSION A learner will be guilty of serious misconduct if he/she is – a) found guilty of misconduct as contemplated in Schedule 1 after having been found guilty of the same or similar misconduct on two previous occasions, fails to comply with a punishment or suspension as a correctional measure, or intentionally and without just excuse – b) Fails to comply with a punishment of suspension as a correctional measure; or c) Intentionally and without just excuse - i. forges any document or signature to the potential or actual prejudice of the school; ii. trades in any test or examination question paper or any test or examination material;  19 Schedule 2 offences that may lead to EXPULSION iii. attempts to bribe or bribes any person in respect of any test or examination to enable himself or another person to gain an unfair advantage therein; iv. engages in fraud; v. engages in theft, or otherwise acts dishonestly to the prejudice of another person vi. is in possession of, consumes or deals in any illegal substance or other harmful substance; vii is in possession of, uses or transmits narcotic or unauthorised drugs or on visible evidence of such possession, use or transmission;  20 Schedule 2 offences that may lead to EXPULSION viii. is in possession of any dangerous weapon; ix. assaults or threatens to assault another person; x. holds any person hostage; xi. murders any person xii. rapes any person; or engages in any sexual activity which amounts to an offence in law; or xiii. maliciously damages property.  21 Rights of learners in a disciplinary hearing 1. Rights to be informed of disciplinary charges, including timely access to documents 2. Right to adequate time to prepare - notice 3. Right to remain silent (self incrimination) 4. Right to be present at a disciplinary proceedings 5. Right to be represented at a proceedings 6. Right to challenge evidence (witnesses) 7. Right to an impartial adjudicator  22 Disciplinary Proceedings: Standard of Proof  Balance of probability  Misconduct is more probable than not  E.g. cheating/plagiarism in an assignment – What are the chances that two learners had the exactly same answers?  23 GDE Circular 04/2014 Section 4.1 of circular -  Corporal punishment is defined as any deliberate act against a child that inflicts pain or physical discomfort to punish or contain him/her. This includes, but is not limited to, spanking, slapping, pinching, padding or hitting a child with a hand, any other object, denying or restricting a child’s use of the toilet, denying meals, drink, heat and shelter, pushing or pulling a child with force, forcing the child to do exercise. It is, therefore, not just about caning but also refers to an assault on a person in any manner whatsoever  24 GDE Circular 04/2014 Section 5 - FORMS OF ASSAULT  The following are examples of forms of corporal punishment (assault) that are punishable:  Any physical act which may cause discomfort or pain to the learner  Using a stick/belt/cane or any object designed to threaten learners Intention to inflict bodily harm  Threatening a learner Shaking a learner  Any forms of torture Kicking  Pinching Pulling of ears  Poking at someone with a finger  Any verbal onslaught, use of vulgar language, swearing, name-calling  Insulting a learner with racial and/or sexual undertones  25  The prohibition of corporal punishment is not intended to encourage ill-discipline or disorder in schools, but is intended to encourage a culture of non-violence; of resolving conflict through dialogue and discussion and inculcating a sense of responsibility and self-discipline amongst all stakeholders in the school.  Some questions: 26 Consider the acceptability of the following school and classroom rules: 1. Learners who talk in assembly will be instructed to stand up (others are seated on the floor/ground) 2. Learners who arrive late for school for whatever reason will be required to attend detention on the same day that they arrive late. 3. Learners whose uniform is incorrect will be issued with uniform demerits by a RCL member. 4. Learners who arrive late for class will not be allowed entry to the classroom for the duration of the lesson. 5. Learners who do not complete their homework will have to attend four break detentions. 6. Learners who cheat in an assignment or test will be expelled by the Governing Body.  27 7. You are the teacher in charge of the first soccer team. It is customary to initiate new first team members by shaving their heads and make them wear short pants for two weeks at the beginning of the season. Parents and the SGB have given consent for this to happen. May you carry out this initiation practice? 8. If a parent gives you permission to use a stick to discipline his child, may you use corporal punishment on this child?  28 9. Can you see a problem with this extract from a Code of Conduct? If a learner has a phone it must be kept switched off and concealed except before and after school hours. Phones will be confiscated if they ring or are visible in a lesson, during assembly and between lessons. They may be reclaimed only by a parent/ guardian. A fine of R100,00 is payable for same day collection or the phone will be kept for five school days in the school safe and a fine of R10,00 will be payable on collection on the first occasion and thereafter R20,00. 10. May a learner agree to attend a disciplinary hearing before the SGB for a schedule 1 offence without a parent being present because he/she does not want his/her parent to know about the offence? Thank you