Exclusion on the grounds of academic attainment – is it lawful?

In 2014, St Olave’s Grammar School in Orpington, Kent, was rated ‘Outstanding’ by OFSTED, a rating which was reflected in a more recent Statutory Inspection of Anglican and Methodist Schools (SIAMS) in May 2017.

It achieved A-Level Results far above the national average with 75% A* or A, and 96% A* to B.

However, by late summer 2017, St Olave’s was the subject of widespread media coverage. Its exceptional results were quickly overshadowed by a furore of activity surrounding St Olave’s refusal to allow a number of students to return to the school to continue their A-Level studies into Year 13, as a result of poor academic attainment by the end of Year 12.

The students’ parents took legal action against St Olave’s, alleging that the school’s refusal to allow these students to return amounted to an unlawful exclusion. Whilst it was accepted that students could be subject to academic selection prior to commencement of their A-Level studies, it was argued that it was not lawful to exclude students once the course had commenced on the grounds of academic attainment.

On 1 September 2017, St Olave’s retracted its decision and reinstated the students. Incidentally, in November 2017, the School announced that the Head Teacher would be leaving at Christmas.

The question posed by this case, therefore, was whether the refusal to allow the students to return to their studies mid-way through the A-Level course, as a result of academic attainment, amounted to an unlawful exclusion. Although the legal action was withdrawn by the parents and a judicial determination was not specifically made in this case, we can see no circumstance in which such action would be lawful.

The law surrounding exclusions is very clear. An exclusion can only be made for disciplinary reasons. Exclusion on the grounds of academic attainment is therefore unlawful. In St Olave’s case, the exclusions issued to the students were permanent. Permanent exclusion is an exceptional decision reserved for the Head Teacher, which should only be taken in the most extreme circumstances for example where there has either been a serious breach of the school’s behaviour policy or otherwise a longstanding course of conduct resulting in persistent breaches. Even then, permanent exclusion should be considered as a last resort and only if the conduct of the student involved would seriously harm the education or welfare of others, if that student were to remain at the school.

Whilst we do not know the specific backgrounds of each student at St Olave’s, it is fair to say that the bulk exclusion of perceived under-achievers amounts to an unlawful exclusion and it remains to be seen how schools who may have adopted similar practices (whether intentionally or otherwise) but have so far not been challenged will respond. One option may be to tighten up behaviour policies, particularly in respect of behavioural expectations of students studying in Years 12 and 13 and set out clear sanctions for such behavioural practices in the event of breach. I can see some issues arising from this, not least in respect of allegations of a ‘back door’ approach to attainment exclusion.

Another approach may be to increase minimum entry requirements for A Level Courses. 

In response to the St Olave’s case, a Department for Education spokesperson said

“All schools have a responsibility to provide a high quality education to every pupil and ensure there is no limit to their potential. Students enrolled in a sixth form cannot be removed because of academic ability. 

The law is clear on this and we expect all schools to follow it. We will be taking action to remind headteachers of their responsibility on this point.”

It is clear therefore that however schools respond to this case, if a decision to exclude is made part way through an A-Level course (or indeed at all), schools will be expected to have consideration not only for lawfulness of their decision but also the principles of natural justice when making decisions. 

This article was originally published in January 2018 in Salad Days (https://www.saladdaysmag.uk/).

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