A Court of Appeal judge has said schools risk “over-complicating and over-legalising” decisions on exclusions if they give “undue focus” to a pupil’s ethnicity and background.
A headteacher said her school had been “vindicated” after a landmark ruling that her academy acted lawfully when it permanently excluded a boy of black Caribbean heritage following “violent” behaviour.
The boy, who has special educational needs, was 15 when he was permanently excluded after alleged violent incidents against fellow pupils.
But his mother challenged the decision as a breach of the public sector equality duty (PSED) set out by the Equality Act 2010.
She accused the school of not giving due attention to her son belonging to a racial group the DfE has acknowledged is “disproportionately” excluded, or to his special needs.
The mother said the permanent exclusion on her son’s record was “prejudicial”, and “affected the way that he felt about himself”.
The school has since spent four years and “tens of thousands of pounds” defending itself in court.
The PSED says public authorities must “have due regard to the need to…eliminate discrimination, harassment, [and] victimisation”. They must also “advance equality of opportunity” between people with protected characteristics and others.
Protected characteristics include having a disability, or being from a minority ethnic background.
Black Caribbean pupils nationally have among the highest exclusion rates (0.18), while rates among mixed white and black Caribbean pupils are even higher at 0.24 – far higher than the 0.11 rate across all pupils.
The DfE has previously acknowledged black Caribbean boys experience “continued disproportionate exclusion”.
Timeline of exclusions and court process
The boy was permanently excluded in May 2021, following “two separate assaults on fellow students”.
A panel of school governors later decided he should not be reinstated.
An independent review panel from the local authority upheld the recommendation, but did recommend a reconsideration as it found “some concerns about its reasoning”.
The governor panel reconsidered the case, but again decided the boy should not be reinstated.
The boy’s mother later launched a case at the High Court, challenging the lawfulness of this decision. A judge dismissed her claim.
A Court of Appeal judge has now ruled the judge was “right to reject the PSED challenge”.
Focus on PSED could be ‘unhelpful’ in exclusions
The court heard evidence the headteacher and governors had “considered” the requirements of the Equality Act when deciding whether to exclude the boy.
But the Court of Appeal judge expressed concerns “an undue focus on [the PSED] may risk over-complicating, and over-legalising, the decision-making process in exclusion cases”.
“A focus on the requirements of the PSED in the context of an individual exclusion decision is liable to be distracting and unhelpful.”
The judgment said the “proper focus” for decision-makers was instead the “individual circumstances of [the pupil’s] case” such as his actions and the risk of harm to others.
“There will certainly be cases where the seriousness of the pupil’s conduct and/or the harm to the school of allowing them to remain will be such that it can make no difference that they belong to a high-risk group or that they may have received inadequate support in the past.”
Exclusions ‘last resort’, says head
The boy had already been temporarily excluded multiple times, including twice for violence. He had also received “extensive educational and pastoral support”.
The headteacher, who cannot be named, said the exclusion had “as always” been a “last resort”.
“Sadly, there is a misconception, often encouraged by those with axes to grind, that heads have an incentive to exclude.
“In reality, the very opposite is true. Following a very nasty incident, it took four years and tens of thousands of pounds to be finally vindicated in what was factually a very straightforward case.”
Because the child’s family received legal aid, it is understood the school will not be able to recover its legal costs.
Case ‘an ordeal’ for school
The head said despite the academy having “supportive governors, experienced staff and a record of not giving in to pressure”, the case had been “an ordeal.”
“I fear less well-placed schools might succumb to unwarranted pressures … potentially risking student safety. I hope our case will encourage them.”
Richard Wilkins, legal director at Russell Cooke solicitors who represented the school, said he hoped the case was “useful guidance on disciplinary decisions concerning vulnerable or ‘over-represented’ groups, which frequently trouble school leaders”.
A spokesperson for the Coram Children’s Legal Centre (CCLC) which represented the boy’s family, said: “We were disappointed. CCLC has noted the judgment and will continue to consider the implications for the rights of children facing school exclusion.”
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