School Exclusion and the Right to Education

Ali v United Kingdom – 40385/06 [2011] ECHR 17 (11 January 2011) Summary

The European Court of Human Rights has held that the exclusion of a student from school during the investigation of a criminal offence, and subsequent removal of the student from the school’s roll, did not constitute a violation of the right to education under Article 2 of Protocol No 1 to the European Convention.

Facts

The applicant is a British citizen born in 1987, who had been attending a ‘maintained’ secondary school.

The applicant, along with two other students, was considered a suspect in relation to a fire in a classroom at the school.  The applicant was subsequently charged with arson in relation to the fire and entered a not-guilty plea.

The school advised all three students that they were not to return to the school until the police investigation into the fire was completed.  Originally a specific period of exclusion was not specified, however this was later specified, and then extended until the proceedings were concluded.  There were various procedural issues regarding the exclusion.

The school provided support for the applicant’s studies during his exclusion.  It sent the applicant work in mathematics, English and science and allowed him to attend the school to complete his examinations.  The school also set work for the applicant during his exclusion, but the applicant’s parents did not attend the school to collect this work.

The prosecution against the applicant was subsequently dropped, and upon receiving official notification of this the school wrote to the applicant’s parents inviting them to attend a meeting to facilitate the applicant’s re-integration.  The parents did not attend this meeting and as a result the Head Teacher wrote to the applicant’s parents advising that the applicant was being removed from the school roll.  He was then removed from the roll.

The applicant was due to begin the first term of his GCSE studies in September 2001, but did not attend school.  His family later attended the school, after the applicant had been removed from the roll, and ultimately the applicant decided he wanted to return to the school.

The school advised that the applicant’s name had been removed from the roll, his place had been allocated to another student and the school was now oversubscribed in his year level.  A few months later the applicant was accepted into another school.

The applicant issued a human rights claim against the school, claiming that his right to education had been violated contrary to Article 2 of Protocol No 1 to the Convention, which states as follows:

No person shall be denied the right to education.  In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The applicant was ultimately unsuccessful in the domestic courts, with the House of Lords holding that there was no violation of Article 2 of Protocol No 1 as there was not a systemic failure of the education system.  He then brought this claim in the European Court of Human Rights.

Decision

The Court found that Article 2 of Protocol No 1 guarantees a right of access to educational institutions as well as the possibility of receiving official recognition for the studies.  However, this does not include the right to access a particular educational institution.

The Court also found that schools are entitled to use disciplinary measures such as suspension or expulsion in order to ensure compliance with the institution’s internal rules.  It found that these disciplinary measures are inherent in any organised schooling system and allow schools to achieve their purpose, being to educate their students.  However, rules regarding exclusions and the way in which they are imposed must be foreseeable and proportionate to the aim being pursued.

The Court held that the applicant was entitled to access to an educational institution or facility which provides an education in accordance with the national curriculum.

It held that the exclusion in the circumstances was in pursuit of a legitimate aim and was therefore justified and also foreseeable, despite the procedural irregularities.

The Court stated that, in determining whether not an exclusion results in the denial of the right to education, it will consider whether there is a fair balance between the exclusion and the justification.  This will include considering factors such as:

• the procedural safeguards in place to challenge the exclusion and to avoid arbitrariness;
• the duration of the exclusion;
• the extent of the co-operation shown by the pupil or his parents with respect to attempts to re-integrate him;
• the efforts of the school authorities to minimise the effects of exclusion and, in particular, the adequacy of alternative education provided by the school during the period of exclusion; and
• the extent to which the rights of any third parties were engaged.

The Court found that in this case the applicant’s exclusion did not involve a denial of the right to education and was not disproportionate to the legitimate aim pursued.  The school had attempted to reintegrate the applicant at the earliest opportunity, but the applicant’s parents were not cooperative.  The school had also offered the applicant educational resources and alternative educational arrangements, but these were not accessed by the applicant.

Relevance to the Victorian Charter

Although the right to education is not protected under the Victorian Charter of Human Rights and Responsibilities Act 2006 at present, this case demonstrates that, where there is a legislative basis for the right to education, this right will not be violated due to a temporary exclusion of a student from a school, provided this is justified and proportionate.  This is particularly so where the school takes measures to provide alternative educational support to the student during the period of the exclusion.

The decision is at www.bailii.org/eu/cases/ECHR/2011/17.html.

Mandy Lister is a volunteer lawyer with the Human Rights Law Resource Centre