A case about more than just a haircut
Recently the Nation watched with interest as Lucan Battison successfully took St John’s College to the High Court after being suspended for refusing to cut his hair.
Most of the public discussion has focused on whether schools should be able to require students to cut their hair. However, the case itself focused more on the technical lawfulness of school rules under the Education Act 1989, and the statutory processes which a school is required to follow when considering disciplinary action.
We have summarised the case below, and provided some general comments about how schools can avoid or minimise the risk of having disciplinary decisions based on non-compliance with school rules challenged.
Battison v Melloy & the Board of Trustees of St John’s College
Lucan Battison is a year 12 student at St John’s College, a state-integrated Catholic school for boys in Hastings. One of the school’s rules is that the uniform is to include:
Hair that is short, tidy and of natural colour. Hair must be off the collar and out of the eyes. (Extremes, including plaits, dreads and mohawks are not acceptable).
In early May 2014, the newly appointed Principal, Mr Melloy, spoke to the students at assembly about the rule after noting that several 1st XV players had long hair. He then spoke to Lucan specifically warning him that he may be suspended if his hair was not cut. A week later a teacher dismissed Lucan from the classroom for the length of his hair.
The next day, Lucan’s parents met with the Principal who insisted Lucan’s hair be cut, Lucan refused but offered to tie it back, and was subsequently suspended until the Board could hold a meeting.
The Board met a week later (with Lucan, his solicitor, and others present) and decided that Lucan would be allowed back to school on the condition that he cut his hair short to “an acceptable length to the Principal”. This effectively extended the suspension.
In 1974 the Court of Appeal decided a case on near identical facts.1 The Court said that courts should decline to intervene unless the principal’s decision that behaviour was an “injurious or dangerous example” was plainly unreasonable (i.e. absurd). Based on the New Zealand Bill of Rights Act, the UN Convention of Rights of the Child, and some High Court decisions since, Collins J declined to follow this precedent feeling that these modern developments required him to give more weight to the rights and interests of the student.
Principal’s Decision to suspend:
Section 14(1)(a) of the Employment Act 1989 empowers a principal to suspend a student whose conduct is a harmful and dangerous example i.e. it is so egregious that it impacts on the welfare and attitude of other students. Collins J concluded that the Principal did not comply with this section because:
The degree of Lucan’s continued disobedience was not great enough to warrant a suspension and there had not been a correlation between Lucan’s behaviour and the punishment.
Less serious disciplinary sanctions were not explored e.g. banning from 1st XV duties. Even if Lucan’s continued disobedience was a harmful and dangerous example to others, suspension should only be a last resort.
Section 13(b) requires that penalties minimise the disruption to attendance. The Principal did not consider this requirement.
Section 14(1)(a) requires sound objective evidence of the negative outcomes of Lucan’s disobedience. The potential that Lucan’s conduct might be a harmful or dangerous example was not enough and there needed to be evidence that the conduct actually had this effect and that suspension was necessary to protect other students from such behaviour. The Judge said that a teacher being upset by Lucan’s hair, and other students watching Lucan’s disobedience did not meet this high threshold.
Disciplinary Board’s Decision:
Collins J said that the Board’s decision to continue the suspension was also unlawful because it did not comply with section 14(1)(a) of the Act and/or was unreasonable. He said:
They made the same mistakes as Mr Melloy discussed above; and
They thought Lucan’s behaviour “could” undermine discipline/set a harmful example – which falls short of the criteria of being “a harmful or dangerous example”; and
The conditions imposed for Lucan’s return were unreasonable because:
Requiring Lucan to cut his hair “to the Principal’s satisfaction” went beyond the rule; and
They didn’t consider whether Lucan’s offer to tie his hair back was effective compliance as it “appeared to be short, off the collar, above his ears and out of his eyes” as required by the rule. The Judge makes a distinction between a requirement that hair be “cut short” and “is short” as stated by the rule.
Lawfulness of the hair rule
Lucan raised numerous issues with the rule being lawful based on its inconsistency with various statutes and conventions on rights and freedoms. Collins J found it unnecessary to decide on those issues because he found that the rule was unlawful as it did not meet the requirements of the common law. The rule was ultra vires because section 72 of the Act, which gives the power to schools to make rules, only permits rules which, among other things, are certain. He reasoned that:
The rule must be sufficiently precise to allow students and parents to fully understand its requirements and arrange their affairs to avoid breaching the rule;
The rule must not be entirely at a Principal’s discretion as it would be arbitrary e.g. a rule that hairstyles “not be extreme” is vague and standardless and therefore uncertain;
- Lucan and a hairstylist gave evidence that his hair (when tied in a bun) is “short”. Reference was also made to the fact that Lucan’s hair length had only this year been an issue in spite of him wearing his hair the same length previously. The point from that being different views about whether hair is short underscore the potential for the rule to be prone to subjective interpretation and “considerable scope for uncertainty”.
Lawfulness of Hair Rules in general:
Collins J declined to decide on the lawfulness of hair requirements in general. He suggested that the School would need to give careful consideration to students’ rights to autonomy, individual dignity and freedom of expression under section 14 of the New Zealand Bill of Rights Act.
Things for schools to consider
The case sets a high standard for school rules, from drafting through to taking disciplinary action based on them. The key points to consider are:
How we can help
Jackson Russell is experienced in dealing with all aspects of legal issues facing educators, including drafting school rules, advising on disciplinary matters and employment issues. Despite the outcome of the above case, the Court recognised that Principals need to be able to enforce appropriate levels of behaviour and standards. We have experience in working with schools to avoid issues like those which led to the decision against St John’s College.
1 Edwards v Onehunga High School  2 NZLR 238 (CA).
The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.
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Glenn Finnigan, PARTNER