Do You Have a Right Not to be Expelled From School?

Young People

If you’re a conscientious and polite pupil, the chances are you’ve never even thought you could get expelled from school. However, just when is a school allowed to show you the door?

The Human Rights Convention states that “no person shall be denied the right to education”, but is it really this clear-cut? In recent weeks a high-achieving state grammar school, St Olave’s in Orpington, hit the headlines after attempting to exclude 16 students from its sixth form. The pupils were informed over the summer that they could not return to the school after they failed to achieve B grades or higher in their AS levels.

After protests from parents and a threatened judicial review of the decision, the school has backed down. However, news has emerged of similar behaviour by other top-performing schools which have excluded students who were unlikely to achieve top grades in their exams.

So, What’s The Law?

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The Human Rights Court has already ruled that educational institutions can impose admission criteria and that it is not a denial of the right to education to limit access to students who meet the required grade boundaries. It has also established that the right to education does not rule out disciplinary measures, including temporary or permanent expulsion for misbehaviour.

However in the case of the St Olave’s sixth formers, they had initially passed academic entrance exams to gain entry to the school and there was no suggestion that they had indulged in any sort of misbehaviour. The decision to refuse to let them enter the upper sixth appeared to be based on risk of them negatively affecting the school’s excellent league table position.

As well as the Human Rights Convention, The UK is also a signatory to the United National Convention on the Rights of the Child, an international treaty. Article 3 of the Treaty states that “in all actions concerning children…the best interests of the child shall be a primary consideration.”

In all actions concerning children the best interests of the child shall be a primary consideration

UN Convention on the Rights of the Child

Parents of the excluded students argued that refusing to allow them to continue with their studies amounted to an exclusion, and was unlawful as expulsion could only be carried out for poor behaviour. The lack of an appeal mechanism against the decision could also amount to a breach of the students’ Article 6 rights – the right to a fair hearing. Their children had been left devastated by the school’s decision, and their best interests had not been taken into consideration.

The Education Act 2002 and the Education and Inspections Act 2006 both set out the provisions relating to permanent and fixed term exclusions, namely that schools can exclude pupils if they have seriously broken the school behaviour policy and where allowing them to remain would seriously harm the education or welfare of the pupil or others in the school.

And What Was The Result?

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Following the St Olave’s controversy, the Department for Education drew attention to its own guidelines on school exclusions which state that “Only the head teacher of a school can exclude a pupil and this must be on disciplinary grounds” and that the decision must be compliant with the law and “rational, reasonable, fair and proportionate”.

The DFE is very clear that “It is unlawful to exclude for a non-disciplinary reason. For example, it would be unlawful to exclude a pupil…for a reason such as academic attainment/ability”.

So yes, if you are a well-behaved pupil who poses no risk to yourself or your fellow students you have a right not to be expelled from school.

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