Legal Cases in Education: Some Samples

THE FOLLOWING ARE HYPOTHETICAL AND FICTIONAL CASES and the decisions rendered for each case are, of course, ‘unofficial’ and subject to scrutiny by legal experts. Nonetheless, the article somehow gives educational managers and administrators a glimpse on how to address school problems that involve legality.

Case #1: Germany
ALEXANDER PARIJS, a skilled Belgian professor, was accepted to teach General Knowledge in Grundschule Schulkamp, a primary school in Hamburg, Germany. Parijs, being a former seminarian who got his MA from Catholic University of Leuven in Belgium, is a devoted Christian. Because of his great religious dedication, he made it a ‘classroom rule’ for his students to utter Catholic prayers before and after his classes as practiced in his alma mater. He even gave away pieces of crucifix which his students must wear at least during their classes.
Eventually, this matter became known to the parents of his students and they reported to the school administration insisting that Parijs must be sanctioned because his acts can be classified as gross violation of the “separation of church and state doctrine” which was guaranteed by the Constitution of Germany.
          For his part, Parijs contends that there is nothing wrong in what he is doing. Not only are his ‘classroom rules’ normally done in Free schools in Belgium, but also they are mere exercise of the basic right of “freedom of faith, of conscience, and of creed”.

Whether or not Parijs violated the German Constitution as regards the separation of church and state doctrine?

Yes. Parijs violated the “separation of church and state doctrine” provided in the WeimarConstitution of 1919, which forms part of the present German Constitution. Under Article 136 of the Weimar Constitution,

“Civil and civic rights and obligations are neither conditioned nor limited by the exercise of freedom of religion. The exercise of civil or civic rights, the admittance to public offices, are independent of religious confession. Nobody is obliged to profess his religious confession publicly. Public authority may only ask for religious affiliation as far as rights and obligations derive or an officially decreed census requires. Nobody may be forced to participate in a religious festivity, to join in religious practices, or to swear a religious oath formula.”
          Under the law, church and state must be separated in Germany. Compulsory school prayers and compulsory attendance at religious services are against the Constitution. In 1995, it was ruled that the Christian cross was not allowed in classrooms, as it violates the religious freedom of non-Christian students. The cross is allowed if none of the students objects, but must be removed in the event of an objection.
In connection to this, Article 7, the provision on education of the Constitution of Germany, states that:
(1)The entire schooling system stands under the supervision of the state.
(2) The persons entitled to the upbringing of a child have the right to decide whether the child shall attend religion classes …

In this regard, the school is considered part of the state. Though he is a Belgian, Parijs, being a professor in a school in Germany practically serving its state, should therefore not commit acts which would defy its constitutional doctrine. Doing so is indeed a violation of the law.
It is also provided that the persons who reared the child shall have the authority to choose whether or not the child shall attend classes discussing religion. In this case, Parijs, being not the one who raised the students shall have no right whatsoever to require the latter to perform religious acts.

Case #2: New Zealand
MACHETE MACAHOY, a Maori, was studying Botany in the University of New Zealand. He was an average student without failing marks. On his 3rd year in college, three of his friends died. One died as a result of a riot outside the school, the second drowned while swimming at the river, and the third committed suicide.
            Upon entering his 4th year, Machete became grumpy. He skipped classes, covered his hands and neck with multicolored tattoos and fought with a professor who made a bad remark about his tattoos. Machete was asked to go to the Dean’s office to render a decision. The Dean suspended Machete for misconduct. Subsequently, the Dean of the College talked with Machete and his mother. They made an agreement that the suspension would be lifted and Machete would be allowed to go back to the university subject to the condition that he must do well in school and should follow all the rules of the university.
            Thereafter, at a campsite and during the research hour of the students with their advisors in the forest, Machete ran naked with two of his friends. They were reprimanded by their advisors and some of the students who were disturbed by the said act filed several complaints to the College Dean.
            Before going back to school, Machete and his two friends smoked marijuana 100 meters away from the school. They were seen by a professor and brought them to the College Dean for sanction.
            Due to the said circumstances, the new Dean ordered the indefinite suspension of Machete and a possibility of expulsion after a further investigation is made. After the said order, the Dean informed Machete’s mother of the decision made.
            Machete’s mother asked for reconsideration of the said decision but to no avail. This prompted Machete’s mother to seek relief from the court alleging that the Dean’s decision was arbitrary, unfair, and therefore invalid, as it violates Sec. 13 of the New Zealand Education Act of 1989 as amended.

Whether the decision made by the dean is arbitrary, unfair, and invalid as per Sec. 13 of The New Zealand Education Act of 1989.

Yes, the decision was arbitrary, unfair and invalid.

A principal or Dean when suspending must, as a board must when exercising any of its powers, comply with the purposes set out in Sec. 13 of the Education Act, which says:
The purpose of the provisions of this Act concerning the standing-down, suspension, exclusion, or expulsion of a student from a state school is to—
(a) Provide a range of responses for cases of varying degrees of seriousness; and
(b) Minimize the disruption to a student's attendance at school and facilitate the return of the student to school when that is appropriate; and
(c) Ensure that individual cases are dealt with in accordance with the principles of natural justice.

Section 13 protects the student by precluding the principal or board from any inflexible policy deriving from the school’s charter or rules. It obliges the principal and board to consider how serious the student’s misconduct actually was. It obliges them to adopt the sanction best calculated to keep the student at school, if that is at all feasible. It stipulates a fair process. The student and any parent is entitled to know beforehand that the principal is contemplating whether to stand down or suspend.
            Supplementing those purposes are the principles applying to processes, practices, and procedures set out in rule 7 of the 1999 Rules:
Every participant in the processes, practices, and procedures dealt with in sections 14 to 18 of the Act and these rules should be guided by the following principles:
(a) The need for every participant to understand the processes, practises, and procedures.
(b) The need for every participant to treat every other participant with respect, which includes recognising and respecting New Zealand’s cultural diversity:
(c) The need to recognise the unique position of Maori:
(d) The need for every participant to be guided by the charter of the student’s school:
(e) The need for every participant to recognise that the Board has a responsibility to maintain and safe and effective learning environment at the student’s school.

The intent of this rule is to go beyond the need for the process to be fair and beyond the immediate interests of the student and the student’s parents. The intent is also to promote a respectful dialogue between the student and parents and the principal and board that accords to the wider interests of the school community a definite place.
          The need for the process to be fair, however, is basic. A principal or his or her delegate, faced with an issue of serious misbehavior that could result in a child being stood down or suspended, needs first to verify whether the student has misbehaved and in what degree. The parents should be consulted. Any admission should be sought in their presence or that of a nominee.
          The principal’s inquiry must also, as ruled in the Palmerston North High School case, extend beyond the student’s misbehavior. The reasons why the student has misbehaved, McGechan J continued to say, at 718, need also to be identified. They may point to a child at risk or in need:
“A child suddenly violent at school towards a teacher might simply be repeating violence at home, not his fault, and be capable of control. A child who behaves destructively or irrationally might be calling for help, and deserve help rather than punishment. A child who steals might be from a disadvantaged background and be hungry or lack essential clothing …[J Suing vs The Board of Trustees of Lynfield College, CIV 2007-404-002684, 7 June 2007.]
            In Machete’s case, the new Dean appears to have appreciated immediately that Machete was culpable in that primary sense of ‘gross misconduct’. Also presumably that, if he was suspended, he might even be expelled.
          Instead then of suspending him, the Dean should have contacted Machete’s mother and interviewed Machete in her presence and only then decided. To decide whether Machete’s misconduct was ‘gross,’ he had to go beyond Machete’s offence and to see the true Machete.
Despite the agreement made by the former Dean and Machete’s mother, had the new Dean tried to compare and contrast Machete’s performance during his 1st to 3rd year and the present, he would have seen that Machete had regressed only this year. The dean would have found out why Machete became uninterested in his studies.
Concerning the tattoos Machete had put on, it must have been taken into account that as in many parts of the world, tribal people, like Maori, use tattooing as a sign of mourning. Smoking marijuana, which Machete did 100 meters away from the school, may have been deemed as unlawful act, but could have been forgiven, considering that marijuana is considered as medicinal in Maori culture.
Considering that there are far more students who made violations and other unlawful acts at the start of their studies and until the end but were given the opportunity to continue their studies in the same university, it is but unfair not to allow Machete to continue his studies in the said university.
          In short, the new Dean’s decision failed to comply with Section 13. Providing a punishment as if putting Machete in the same stage as those who were delinquent from the start, the decision resulted in breaches of natural justice and as well as failure to take into account the two other purposes in Section 13.

Case #3: Germany
ANA, AN EIGHT (8) YEAR OLD CHILD was born outside of marriage. Because of the situation, her mother, Ms. Kathy, who was poor and was devastated of the fact that she had to send her child to school all by herself, decided to pull out Ana from school during her 3rd year in primary education/school.
          After two (2) years though, Ms. Kathy decided to enroll Ana in a denominational university. They went to St. Thomas Aquinas University, a reputable and decent primary school in Germany, but only to be ignored and rejected. To their dismay, Ana was not admitted to the school on the grounds that she was born outside of marriage. According to the school officials, St. Thomas Aquinas University was founded by a papal bull and thus, admitting Ana will definitely bring dishonor and bad image to the university. They further argued that Ana is too old to be enrolled in 3rd year in primary education.

Whether or not St. Thomas Aquinas University’s refusal to admit Ana was lawful.

The basic law of 1949 grants every German citizen the right to self-fulfillment. Under this 1949 German Constitution as amended on July 29, 2009, citizens can choose the type of education they prefer and have access to their preferred occupation or profession. The aim of the country’s education policy is to provide an atmosphere for its citizens to grow intellectually, personally and professionally.
Article 6 (5) 0f the 1949 German Constitution clearly provides that:
Children born outside of marriage shall be provided by legislation with the same opportunities for physical and mental development and for their position on society as are enjoyed by those born within marriage.”
          The right to education is recognized as a human right and is understood to establish an entitlement to education. According to the International Covenant on Economic, Social and Cultural Rights, the right to education includes the right to free, compulsory Primary Education for all, an obligation [of the state] to develop secondary education accessible to all in particular by the progressive introduction of free secondary education, as well as an equitable access to higher education.
Clearly therefore, the right to education involves theresponsibility to provide basic education for individualswho have not completed primary education. Furthermore, the right to education accordingly entails the obligation to eliminate discrimination at all levels of the educational system, as it is also required to set minimum standards and to improve its quality (1949 German Constitution).

WHEREFORE, premises considered, St. Thomas Aquinas University’s refusal to admit Ana as its student, on the grounds stated above, was UNLAWFUL and of no basis so as to constitute a right act.



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