Teachers Council Code of Ethics Summit

	Contents Introduction Texts of the presentations to the Summit Hon Trevor Mallard, Minister of Education The Ethical Teacher Notes on a Code of Ethics for New Zealand Registered Teachers The Code of Ethics as Shield, Sword, and Guide Ethics in Early Childhood Teacher Registration, Professional Discipline and Police Vetting

Teacher Registration Professional Discipline and Police Vetting

Introduction

Part 10 of the Education Act 1989 deals with teacher registration. The pending Education Amendment Bill will introduce a parallel and intertwined system of professional discipline, dealing with complaints of misconduct and serious misconduct against teachers. The outcome will be that, in cases of teacher misconduct, more disciplinary options than de-registration will be on the table. Also, competence and impairment issues will be resolved within the same system, allowing for outcomes more appropriate to those problems.

In what follows, it is not intended to deal with all the procedural details of the registration regime, nor of the proposed disciplinary scheme. So far as procedures are concerned, these are easy enough to discern from the Act and Bill itself, as well as from the various publications available from the Teacher Registration Board ("TRB"). Nor is it necessary to deal with the general natural justice issues that will inevitably arise (the need for a tribunal free from bias, and the need to "hear the other side", requiring that full notice of all allegations be given with an appropriate opportunity to respond). These are part of the general body of administrative law, and there is nothing unique about their application in the teacher disciplinary context. That said, the issue of appropriate specificity charges made by the TRB against a teacher has been discussed in one High Court judgment, and this will be noted below.

The principal aim here is to focus on the substantive questions that arise uniquely in education law: on what types of grounds may a person be refused registration, de-registered, or subjected to disciplinary sanctions under the new regime? And how does the registration regime intersect with the proposed disciplinary regime? A number of subsidiary questions also arise, particularly as to the fundamental rights of teachers to live their own private lives as they see fit, and in relation to their classroom performance and style.

Before examining these questions, the basic structure of the registration and discipline regimes must first be outlined.

Teacher registration

All schools must employ teachers with practising certificates (or with "limited authority to teach"). There are some limited exceptions (ss 120A and 120B). To get a practising certificate one must be a registered teacher. A practising certificate is essentially a statement that one is registered (in one of the three categories of registration described below). Certificates must be renewed every three years, meaning that teachers are more rigorously examined on a continuing basis than, say, lawyers. According to s 127(5) if the TRB is not satisfied that a registered teacher applying for a certificate has "satisfactory recent teaching experience", it may give notice that it intends to treat registration as having expired. This means that the criteria for registration are effectively being re-applied every three years, at certificate renewal. The difference between the registration process and the renewal process is that character and fitness will not normally be in issue on renewal, having already been demonstrated initially. Only if fresh material, communicated since registration to the TRB, puts character and fitness in issue will that need to be traversed. But the requirement to satisfy the board as to "satisfactory recent experience" at renewal time does mean that issues of misconduct can surface, either directly through information about misconduct being given to the TRB by employers or indirectly through the unwillingness of principals to provide the requisite affirmation of satisfactory teaching for one of their employed teachers. (The TRB7 Renewal Form requires the provision by applicants for renewal of affirmations of satisfactory teaching from principals or senior teachers.)

Registration and renewal are conferred, on application, by the TRB.

The criteria for registration in s 122 are that an applicant:

1. is of good character;
2. is fit to be a teacher;
3. is satisfactorily trained to teach; and
4. has satisfactory recent teaching experience.

There is allowance for provisional registration under s 123. This is for persons who cannot satisfy (d), who will mainly be new teachers without experience. There is also the possibility of registration subject to confirmation, which is available for those experienced teachers whose experience is not recent (s 124). Requirements (a), (b) and (c) are constant through all categories of teacher registration.

Registration may (but not must) be cancelled under s 129 if obtained by mistake or fraud - which does sometimes happen, generally because applicants know that accurate information would result in rejection of their application and so some doctoring is required.

Registration may (but not must) be cancelled under s 129(2) if the TRB is satisfied that the teacher:

1. is not (or is no longer) of good character,
2. is not (or is no longer) fit to be a teacher,
3. is not a satisfactory teacher, and
4. is not (or is no longer) familiar enough with current curricula and procedures in the general education system.

It will be noted that (a) and (b) in the above list replicate the criteria for registration in the first place. Although the power to de-register is expressed as if it were discretionary - "may" not "must" - it would seem inescapable that a person who falls within (a) and (b) must be de-registered. To the extent there is room to manoeuvre in borderline cases of misconduct, it surely lies at the earlier stage of deciding whether or not the teacher's conduct reveals bad character or unfitness. It would seem odd to find a person's conduct does indicate bad character or unfitness, and not to then deregister that person. My examination of TRB decisions over the last two years suggests, as one might expect, that there is no case of this happening.

On the other hand, to foreshadow a point we come to in the section on discipline of teachers (as opposed to deregistration of them), it is not unthinkable that misconduct, even serious misconduct, might in some contexts be of a type that does not reflect on character or fitness to an extent that threatens registration. That would be a case where a disciplinary sanction of a lesser order than de-registration might be considered.

The third criterion, (c), is different from the first two. To get registration, one must be satisfactorily trained. But to avoid de-registration one must be a satisfactory teacher, and that is obviously different from merely being satisfactorily trained. Similarly, the fourth deregistration criterion relates to one's effectiveness as a teacher and not to one's training. There is therefore room, in cases (c) and (d), for the exercise of discretion, since failing criteria (c) or (d) is not tantamount to being ineligible for registration in the first place. Indeed, the Act recognises this possibility by allowing a cancellation under (c) or (d) to be followed by a simultaneous "registration subject to confirmation" under s 124(1): that is, as if the person were an experienced teacher whose experience is not recent.

Competence issues arising under s 129(2) (c) and (d) may rise to the level where a person is not "fit to be a teacher". But (c) and (d) may also be relevant where it is not competence that is in issue, but non-performance or unfamiliarity with necessary material.

Under s 129(2A) cancellation is not at the TRB's own motion. It is to be considered only at the request of a principal or chief executive, or (where a principal's own registration is in issue) at the request of the school board or governing body. The exception is that if the TRB believes a teacher has committed an offence punishable by 12 months imprisonment or more. In that event the TRB may consider the matter on its own reference. Note, however, that the effect of s 127(5), discussed above, is to provide another avenue that threatens registration, viz: when the board is not satisfied, at renewal time, that a person has satisfactory teaching experience.

The usual natural justice obligations apply in all these cases, and are partially replicated (unnecessarily, since they would apply anyway) in s 129(3). The critical questions will usually be what natural justice requires in context.

Registered teachers may apply for practising certificates (s 130). These show registration status ("full" under s 122; "subject to confirmation" under s 124; "provisional" under s 123).

Certificates last three years, or until registration is cancelled under s 129 or deemed expired under s 127(5).

There is a separate category of registration available under s 130A - a "limited authority to teach". This is available for persons without formal teaching qualifications but with skills and experiences that are appropriate to "advance the learning of a student or group of students". The criteria with which we are interested here are the same for this category: they must be of "good character", "fit to be a teacher", and "likely to be a satisfactory" one. Training does not enter into it.. These authorities can be cancelled on a showing that the criteria no longer apply.

Registration is handled by the TRB. The pending Bill will transfer registration and deregistration functions to the proposed New Zealand Teachers Council.

The issues that arise for consideration from the above are: what counts as behaviour indicating a person is not of good character or not fit to be a teacher? Before turning to that it is necessary to sketch out the proposed disciplinary regime which will be superimposed.

Professional discipline and the New Zealand Teachers Council

The Education Amendment Bill has, at the time of writing (September 5, 2001), been reported back from the Education and Science Committee and is likely to be enacted in its current form. For present purposes the salient points are that it will establish a New Zealand Teachers Council (NZTC) that will have various statutory functions. These are to include the teacher registration functions of the TRB (which it therefore replaces). Further, it will exercise disciplinary functions and exercise sanctions relating to competency. It is the disciplinary functions that concern us here.

The proposed NZTC will receive complaints about teacher conduct, although complaints are ordinarily to be made to the employer of the teacher (s 139AP). The employer must refer complaints of serious misconduct to the NZTC (s 139AK).

The Complaints Assessment Committee

The NZTC must refer all conduct complaints to its own Complaints Assessment Committee. This is a subcommittee of the Council which may (but not must) include a non-member of the NZTC. The CAC has investigative powers, as well as final powers to resolve a complaint. There is also a Disciplinary Tribunal (DT) which is discussed below. The options available to the CAC for resolving a complaint are these: (s 139APB(2), paraphrased):

1. by dismissing it.

   This would be possible in all cases, whether of alleged misconduct, or incompetence and impairment.

2. referring the teacher for a competency review; and
3. referring teacher to the "impairment process" which may involve assistance with an impairment that affects performance.

   These outcomes relate, of course, to competence and efficacy problems, not misconduct. Of course, one complaint may have elements of competency as well as misconduct.

4. in misconduct complaints, by concluding an agreement with the teacher that involves:
   1. censure;
   2. imposing conditions on the practising certificate (eg, requiring supervision or professional development);
   3. suspension of practising certificate for a specified period or until conditions are met; and
   4. annotate the register of teachers in a specified manner.

The CAC may refer a matter to the Disciplinary Tribunal at any time. The CAC must refer a matter to the DT if it is satisfied on reasonable grounds that there has been serious misconduct. The DT is the second, "upper level", disciplinary committee of the NZTC. It must include at least one member who is not on the NZTC.

Since a finding on reasonable grounds of serious misconduct must be referred to the DT, it follows that the remedies in (d) above are available, by agreement with the teacher, only for matters that do not rise to that level. It is critical to recognise that the ability to impose sanctions for misconduct is by agreement with the teacher.

The CAC must also investigate reports of teachers who have convictions for an offence punishable by more than 3 months imprisonment. It may refer these matters to the DT if it believes that the conviction "may warrant action" by the DT. One imagines that this will be where the convictions disclose serious misconduct, where there cannot be a consensual resolution, or where in the case of misconduct an agreement cannot be reached for censure, perhaps because the facts, or their significance, are denied by the teacher.

The Disciplinary Tribunal ("DT")

When the DT is seized of a matter (alleged serious misconduct, or a conviction that may warrant action) it may hold a fact-finding hearing in which all relevant natural justice protections apply. The following sanctions are available to it (s 139AS, paraphrased):

1. it may do anything the CAC could have done;
2. it may censure the teacher;
3. it may impose conditions on a practising certificate;
4. it may suspend the practising certificate for a period, or until conditions are met; and
5. it may annotate the teacher's entry in the register of teachers in some way.

   Note that to this point the DT's powers replicate those of the CAC, save that the DT may impose these sanctions coercively, while the CAC can only do so by agreement with the teacher.

   In addition the DT has these additional remedial powers:

6. to impose a fine of up to $3000;
7. to require deregistration;
8. to order party and party costs; and
9. to order costs to the Teachers Council.

The relationship between the CAC and DT is broadly analogous to that between the Human Rights Commission or the Privacy Commission, on the one hand, and the Complaints Review Tribunal on the other. The latter has the coercive and the quasi-judicial responsibilities; the former attempt mediation and conciliation. There is a difference, of course, in that the CAC has the consensual power of censure and suspension of a practising certificate. These do not have analogues in the other jurisdictions.

The interaction of the discipline and registration regimes

Essentially, the CAC/DT process is about misconduct, competency and impairment. Serious misconduct is for the DT only. A range of penalties is now available, of which deregistration is one. The effect is that there will be two routes to deregistration: serious misconduct found by the DT, and findings by the full NZTC that a person is not of good character, not fit to be a teacher, not a satisfactory teacher, or not up to date with the curriculum (these being the current TRB powers, which NZTC will inherit).

There is every reason to believe that serious misconduct will often, if not mostly, be indicative of a lack of good character and fitness to be a teacher. But deregistration is only one of the potential outcomes for misconduct (both serious and "ordinary" misconduct) that the DT finds to have occurred. Presumably it is anticipated that serious misconduct generally leads to de-registration, while ordinary misconduct may not. As written, even serious misconduct has the potential for a fine and not de-registration, and perhaps there will be cases of serious misconduct where the registration criteria are not self-evidently implicated. The effect of the reforms will therefore be to institute a gradation of penalties such that it appears there may be "censure-worthy" and "fine-worthy" misconduct, perhaps even serious misconduct, yet which is not serious enough to warrant deregistration. This replicates the position in other professions.

Grounds for discipline or deregistration

Putting the criteria together from the registration and discipline contexts, the relevant ones for present purpose are: lack of good character, unfitness to teach, and serious misconduct.

There must be overlap if not outright duplication in these concepts, since character is manifested and revealed in conduct, and serious misconduct will mostly indicate bad character and hence unfitness. But it is not necessary to go that far, and - consistent with the apparent legislative intent - we must envisage serious misconduct that does not place character or fitness in question to such a degree as to warrant deregistration, only a fine and costs.

An examination of recent (last two years) TRB cases on deregistration or failed applications to register indicates several broad categories of grounds:

• convictions;
• assaults on students;
• sexual contact or interaction with students;
• possession of internet child pornography; and
• miscellaneous.

The third and fourth categories may of course also involve convictions, but need not do so. The significance of a conviction is that it will have brought matters to the attention of the school or TRB, but the underlying facts of a matter may reach the relevant authorities in other ways.

The categories just mentioned will each be discussed below. First, a general inquiry into the meaning of "misconduct" and "serious misconduct" is necessary.

The meaning of misconduct and serious misconduct

These terms are relatively simple and unadorned, compared to equivalents in other professions. The Medical Practitioners Act 1995, s 109, for example, allows penalties for "professional misconduct", "disgraceful conduct in a professional respect" and "conduct unbecoming a practitioner that reflects adversely on the practitioner's fitness to practise medicine. The Law Practitioners Act 1982, s 112, allows penalties for "misconduct in his professional capacity"; "conduct unbecoming" and "negligence or incompetence in his professional capacity" of "such a degree or so frequent as to reflect on his fitness to practise as a barrister or solicitor or as to tend to bring the profession into disrepute". Convictions, in each case, are a separate ground for consideration of disciplinary action.

The category of "conduct unbecoming" is explicitly designed to reach conduct that is not connected with professional practice but reflects adversely on the person's fitness to be a practising member of the profession, such as the case of sexual misconduct by a lawyer in connection with the babysitting of children (a decision of the New Zealand Law Practitioners Disciplinary Tribunal dated 19 May 1985, referred to in Cullen v The Preliminary Proceedings Committee (HC Wellington AP 225/92, McGechan J).

The Education Act, if amended as proposed, will contain just a prohibition on misconduct and serious misconduct simpliciter. What are the implications of this? First, the omission of the adjective "professional" before misconduct obviates the need for a separate category of "conduct unbecoming". Conduct in the private lives of teachers is generally acknowledged to be more than relevant to their registrability and suitability - see discussion below. Private conduct is therefore assuredly relevant. But it must be private conduct that has a bearing on fitness to teach, character, and suitability to be in charge of a classroom of children or to be working amongst children.

Second, what is the definition of misconduct? In professional disciplinary cases, definitions tend to be circular, such that misconduct is essentially a deliberate departure from accepted standards, thus begging the question what those standards are. In medical cases, especially, there is often a further need to distinguish negligence, even bad negligence, from professional misconduct.

It is likely, however, that the line between negligence / incompetence and misconduct will not play a large part in the field of teacher discipline. There are several reasons for this. First, teacher incompetence does not have the immediate and dire consequences that medical error (and sometimes legal error) has, and so it will not have produced immediately obvious harm. So claims of negligence will be few, because much is undetected or so diffuse and delayed in its effect as not to come to the attention of authorities. Second, because the NZTC procedures explicitly extend to competence reviews, this will enable teachers whose teaching ability is questioned to be channelled down that path when appropriate, rather than the disciplinary path. Finally, registration may be denied or cancelled for not being a satisfactory teacher. When competence problems rise to that level, there is no need, as in the fields of law and medicine, to seek to package them as "misconduct" in order to make out the statutory ground for action against the teacher.

A useful definition of "misconduct" is drawn from the American Corpus Juris Secundum Vol 58 (1948) at 8181, cited in the New South Wales case of Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200:

Both in law and in ordinary speech the term "misconduct" usually implies an act done wilfully with a wrong intention, and conveys the idea of intentional wrongdoing. The term implies fault beyond the error of judgment; but it does not necessarily imply corruption or criminal intention, and, in the legal idea of misconduct, an evil intention is not a necessary ingredient. The word is sufficiently comprehensive to include misfeasance as well as malfeasance, and as applied to professional people it includes unprofessional acts even though such acts are not inherently wrongful. Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences.

Classroom conduct that is challenged as misconduct, is in practice, likely to be sexual contacts with children, assaults, or dishonesty in dealings with students. There is indeed some of this, but much of the relevant case-law on TRB matters concerns out-of-class conduct (some of it still "in-school", such as thefts of school property or internet use).

Misconduct, then, is wrongful, improper or unlawful conduct of a kind that is sufficient to deserve the consequences attached to it. The consequences - ultimately deregistration - are designed for the protection of students and potential students. In deciding what is and what is not misconduct, and serious misconduct, the CAC and DT will therefore be required to decide whether the conduct is such that the person should not be entrusted with students at all, whether conditions should be attached to their continued status as a registered teacher, or whether it is sufficient that the conduct be condemned through censure or fine. In the latter cases the disciplinary bodies would need to consider whether the lesser sanctions (than deregistration) will be such as to attain the overall goal of student safety. In making that assessment they can appropriately consider other legitimate goals such as the desirability of "second chances" where appropriate, the need to retain competent teachers within the profession, and the degree of possibility that "one-off" offences will not be repeated. This is legitimate, because misconduct that is admitted but explained in a way that suggests it will not reoccur may be consistent with continuing fitness to teach. But this obviously depends on careful factual assessments, all against the critical background of student safety. My assessment of TRB decisions it that this is kept firmly in mind and the standard of decision-making is high.

Some insight into the relevant standards may be gained from the various categories of TRB case over the past two years.

Criminal convictions

The Act requires registrars of courts to advise the TRB of the convictions of persons believed to be, or to have been, teachers, where the offence is punishable by 3 months imprisonment or longer (s 138A). Note that it is irrelevant what the actual sentence was; it is the maximum potential sentence that is the trigger. This remains the case under the new Bill as well, but there is to be an added requirement that teachers report their own convictions to the NZTC within 7 days (proposed s 139AN).

Note that the TRB's power, on its own motion, to consider de-registration of a teacher upon conviction arises only when a conviction carries a maximum 12 month penalty. This does not mean that convictions on lesser penalty offences are irrelevant; only that they do not themselves trigger the TRB's consideration of de-registration. The circumstances leading to the conviction may well lead the employer of the teacher to request consideration of cancellation, and then the fact of the conviction may be considered by the TRB (s 129(2A)) regardless of the length of sentence.

The general test is that a conviction can be used as an indicator that the teacher is not of good character or that he has committed an act amounting to misconduct. In the leading Canadian case of Abbotsford School District 34 Board of School Trustees v Shewan & Shewan (1986) 70 BCLR 40, discussed below, the Supreme Court of British Columbia explained: "Breaches of the Criminal Code - by a teacher are examples of objective facts indicating improper behaviour. By themselves, they may be sufficient to reach a finding of misconduct".

The fact of a conviction cannot be used as a simplistic pre-determining factor. In other words the TRB can not fetter its discretion by holding that a conviction will be grounds for dismissal or refusing registration. All will depend on the nature and context of the conviction. The TRB decisions reveal that it takes this proper approach.

This was, however, put in issue in Mrs C v Teacher Registration Board [2000] DCR 803. A teacher who had been convicted of a criminal offence of dishonesty appealed to the District Court against the TRB's cancellation of her registration. The Court referred the decision back to the TRB holding it had focused too much attention on the fact of the conviction to the detriment of considering the statutory criteria themselves. This case confirms, therefore, that a criminal conviction does not automatically disqualify a teacher from practicing and each case must be determined on its own merits. There can be no argument with that. That said, the TRB decision in that case, upon which the judge was commenting, did not strike me as having unduly emphasised the fact of the convictions to the exclusion of other matters. It is true that the TRB did say "the convictions themselves raise serious questions about X's character and fitness to be a teacher" - but on any view they plainly did. Also, the Board went on to say that it was also influenced by what it regarded as misleading explanations of the offending given by the teacher. The difficulty seems to be the lack of countervailing information put to the TRB by the teacher that might have explained the convictions or put the facts in a better light.

In any event, it is clear enough that the simple fact of a conviction is not in itself a ground for deregistration: it is what the conviction and the facts leading to it disclose about fitness and character that is important.

The TRB has published guidelines as to the effect of convictions on registration. These record, as they must, that any conviction will bring the issues of good character and fitness into question. But they make clear there is no automatic equation; all will depend on the character of the offence.

The guidelines suggest that convictions for a lesser period than 12 months do not threaten registration, but as noted above this does not follow from the Act itself. Indeed the fact that court registrars are required to report three month offences suggests all imprisonable offences are potentially relevant.

The guidelines set out the following matters to which particular attention will be given:

• the type of offence in relation to the teacher's role with children and community expectations;
• the number of offences;
• time since last offending;
• efforts made to demonstrate good character since last offence;
• testimonials provided; and
• whether convictions were declared by applicant

The TRB has a draft set of guidelines that teacher training institutions may use to indicate to student teachers, at the outset of training, the effect that convictions may have. The guidelines require applicants to disclose convictions (obtained from the Department for Courts). Failure to disclose would render persons liable for dismissal from the training program. It is, of course, the TRB and not training institutions that has the statutory task of determining registration, and any preliminary screening of this type is a matter for the training institution. It breaches no law by screening out applicants with convictions since having a conviction is not a prohibited ground of discrimination.

Of the TRB decisions made available to me from 1999 to 2001, the following are examples of decisions about convictions (the descriptions "A", "B" etc are my own labels since there is no other means of identifying these decisions apart from the names of persons concerned, which were deleted in the copies made available to me):

Case A: An application for provisional registration in 1998. Applicant had convictions from 1981 through to 1987 for dishonesty (24 offences), drugs (4 offences), violence (3) and miscellaneous (including escaping from custody). There were four periods of imprisonment. Applicant had stated on her application form that she had never been convicted (the form excludes minor traffic violations). Her subsequent explanations were (a) that she thought they were no longer relevant, being 12 or more years old; (b) that she thought convictions were all wiped after 10 years; (c) that she was pressured when filling in the form because she was in a group situation; and (d) that she was afraid of losing her job if she revealed them. Applicant had "glowing testimonials" and appeared to have made "hard-won changes to her life" but TRB had no difficulty in declining registration on the grounds that the convictions revealed a significant character flaw, as did the failure to disclose them along with contradictory explanations given for non-disclosure. The TRB considered the applicant made excuses rather than took responsibility for her actions. The same reasons also meant she was not fit to be a teacher.

Case B: Teacher stole money from school tuck shop. There was no conviction as he was granted diversion by the Court. Teacher expressed regret and argued his discovery had led to soul searching which would see him commit no more offences in future. TRB held he was not fit to be a teacher, nor of good character. The soul searching was noted to have been prompted by his being caught, and was regarded as a self-serving statement. The TRB concluded the criteria for deregistration were made out, and invited submissions on whether deregistration should follow. The Education Review of August 10, 2001 indicates that the teacher was duly deregistered (and his name is given).

Case C: Application in 2000 for limited authority to teach: Convictions from 1989 to 1996 for shoplifting, incest, cultivation and possession of cannabis. TRB met with applicant and daughter. Principal of school supported applicant, who was frank about her convictions and her alcoholism, for which she was receiving treatment. Applicant gave details about her own past and appears to have impressed the Board with her commitment to continue receiving help and support. Board was sufficiently impressed to grant the limited authority for one year, valid only at the school where she was working.

Case D: Application for registration in 1999: Convictions from 1993 to 1996 for male assaults female, assault, common assault, excess blood and breath alcohol (two charges); leaving children under 14 without reasonable supervision. Facts surrounding some of the convictions were vigorously contested by applicant in oral hearing before Board; events surrounding the "leaving children" offence included the admitted drinking of a bottle of Mississippi Moonshine before leaving children aged 9 and below. Applicant continued to maintain his actions were acceptable. Registration declined: not fit or of good character.

Case G: Deregistration. Teacher had convictions in 1994 and 1995, for offences over 12 months imprisonment, so TRB instituted reconsideration of registration. Convictions were for sums of money stolen from employer (Auckland College of Education). TRB held that the fact of the convictions raised serious questions about the teacher's moral character and fitness to be a teacher. Board also pointed to a misleading explanation, and evasive answers in questioning by the Board. This is a case subsequently appealed and referred back to the TRB.

Dishonesty but no conviction

Case E: Application for deregistration, based on admitted theft of $400 from school funds (no conviction ensued and decision does not reveal why). An explanation was proffered which suggested that the money was to buy items for the benefit of students, but the fact that some of the items were perishable cast doubt on this. Teacher was Maori, and TRB considered "as a matter of policy" whether the desirability of a greater number of Maori teachers in the profession, fluent in Te Reo, militated in favour of leniency. Rightly, the Board concluded that "there must be limits on what people find acceptable within the profession". This is patently the right approach, and it would be an insidious and ultimately counterproductive leniency if lesser standards were tolerated to any degree for teachers whose skills made them scarce.

Case F: School funds used to purchase a variety of items, including cigarettes, by teacher. Claimed to be for students (including cigarettes, which were said to be for weaning students off drugs). Explanation not accepted. Teacher deregistered, commenting on lack of honesty and frankness. At least a partial altruism in the teacher's actions was acknowledged, but did not overshadow the dishonesty.

Assaults

Case O: Teacher kicked student in the pants in classroom. Context was that class was a difficult and disruptive one, and that teacher, whose skills were acknowledged as "tremendous", was profoundly apologetic. It also appears that a court appearance ensued, although the decision gives no details as the outcome apart from noting its chastening effect. Decision was not to cancel registration, and to accept assurance that conduct would not reoccur.

Sexual misconduct and relationships with students

It is self-evident that any criminal conviction for sexual misconduct with a student is sufficient grounds, in the employment context, for dismissal and, in the disciplinary context, for de-registration. This has been the consistent approach of employers and the TRB, as one would expect. In a sense, this is just an instance of a conviction being a basis for disciplinary action. The substance of this particular type of conviction is self-evidently relevant.

In the following cases there were convictions followed by inevitable deregistration:

Case H: Serious indecencies on boys leading to substantial prison term

Case I: Indecent assault on boys in class room leading to prison term

Where there is no conviction, but behaviour of a lesser order suggesting a sexual motivation, the position is different and requires evaluation.

Case J: A teacher had written a letter to a student marked "for your eyes only", displaying an attraction to the student albeit with no sexual references save for the comment: "I enjoy having our short conversations with their innuendo. Still a little concerned about the fact you know such things but perhaps this is why you appeal to me". This teacher was, when de-registration was being considered by the TRB, deeply apologetic and remorseful and had amassed considerable references as to his abilities. The TRB nevertheless considered that these testimonials and remorse did not outweigh the effect of the letter as an indicator of the teacher's unfitness to be a teacher. This seems the appropriate response: though the sexual innuendo in the letter was muted, there was enough to know that there was a sexual element to the teacher? interaction with a 13 year old student. Further, the teacher's explanation that he was seeking to assist the student indicated, despite his remorse, that he did not totally accept that what he did was wrong.

Case K: A teacher was known to inappropriately touch students by, on occasion, lifting the backs and fronts of their shirts, and cuddling some of the girls in a way that caused them to feel uneasy. The teacher resigned when confronted with concerns about one of these incidents, having previously been warned about contact. The principal requested de-registration, and the TRB de-registered for "inappropriate contact" and unsatisfactory professional boundaries". There were other categories of unfitness involved in this case apart from the sexual ones.

Case L: Teacher (female) had a "sexual relationship on one occasion with a 12 year old male pupil in her class". Had self-reported incident. TRB found conduct abhorrent and deregistered; noting that an application for re-registration after a considerable stand down period was possible, with evidence of counselling and therapy.

Case M: Teacher had been acquitted of a criminal offence on a girl student. Evidence included acknowledgment of a kiss, in which each put their tongue into the mouth of the other. TRB deregistered on the strength of the admitted kissing incident, cancelling the teacher's registration.

Case N: Criminal charges brought against teacher for sexual assaults; acquittals on all charges. These not considered further by TRB. A further allegation of inappropriate behaviour at a camp was not considered worthy of further consideration. Remaining allegations were essentially of over-familiarity with students. Teacher accepted his behaviour was inappropriate. Board considered the threshold of unfitness and bad character were not reached. Teacher's practising certificate had expired, and he could not get required testimonial of satisfactory teaching from principal for renewal. Case resolved in this way: application for renewal of practising certificate declined on grounds he was not a "satisfactory teacher". Teacher able to reapply for registration subject to confirmation. Board indicated that ultimate full registration would depend on it being satisfied that he had taken appropriate steps as recommended by NZEI to remedy inappropriate behaviour.

The above cases indicate an appropriate response by the TRB, with which few would have concerns. Of course, the lack of detail in some of the cases as to what occurred - perhaps understandable if prurient details are to be avoided - means that the threshold at which de-registration is not an option, as in the last case, cannot be discerned with precision from its reasons.

US cases take a broadly similar approach to sexual issues.

In Padilla v South Harrison R-11 Sch Dis, 181 F.3d 992 (8th Cir. 1999) a teacher was accused of sexual misconduct with a student and he was charged with immoral conduct and engaging in inappropriate sexual intercourse with a minor. He was acquitted of all charges but the school did not renew his contract due to remarks he made under cross-examination. When asked if it was appropriate for a person in his position to have a sexual relationship with a minor Padilla replied, "Yes, I'd imagine it would be acceptable. If they're not in school or they're out of school and so long as the relationship was consensual." Padilla sued the school for not renewing his contract. On appeal the Court found that his testimony was not constitutionally protected speech and the school could refuse to renew the contract on these grounds.

The sexual misconduct does not necessarily have to result in a conviction for a teacher to be seen as unfit to teach students because of dubious sexual conduct. In Forte v Mills 250 AD 2d 882 (App Div 1998 NY) a teacher was dismissed for poking and nudging his female fourth and fifth grade physical education students and flicking their bra straps. The Court stated that:

Concerning the penalty imposed, dismissal is appropriate where a teacher, having been repeatedly warned against physical contact with students, fails to avoid such contact which, regardless of its purpose, may be interpreted by those students as sexually suggestive or harassing.

Hamm v Poplar Bluff R-1 School District 955 SW 2d 27 (Mo App SD 1997) is another example of questionable sexual behaviour leading to the dismissal of teacher. In this case a 14-year-old girl was found at a teacher's house after midnight. The teacher answered the door wearing only his boxer shorts. The Court found that the school was justified in finding such behaviour immoral so as to render him unfit to serve as a teacher. It demonstrated conduct and poor judgment such that there would be concern about similar conduct in the future.

The Canadian approach is similar. In Board of School Trustees of School District No 65 (Cowichan) v Peterson (1988) 22 BCLR (2d) 98, the Court reviewed disciplinary action taken against a teacher who had engaged in sexual activity with an 18 year old student. The student had been in the teacher's class two years previously but when the two incidents took place she was in the tenth grade at another school in the district. The teacher was suspended and then dismissed. On appeal to the Supreme Court of British Columbia the dismissal was substituted for a twelve-month suspension.

Young v The BC College of Teachers 2001 BCCA 164 is another example of a teacher being disciplined for sexual impropriety with a student though the relationship did not amount to criminal conduct. In this case a twenty-six year old teacher became involved with a sixteen-year-old student. The student attended the school but was not in his class. He coached basketball and she assisted with the basketball team. It was in this relationship that they initially became involved. The relationship involved dating and kissing. The mother became aware of this and notified the school. The school suspended and then terminated the teacher from his position and banned him from reinstatement for two years. This was the maximum penalty available. The relationship continued throughout the appeal against this sentence. The Court on appeal found that a suspension of one year plus the time that had already elapsed and the stigma from the publicity was sufficient.

Internet pornography

There have been two cases of de-registration of teachers for being found to have downloaded child pornography from the internet. In each case there was no connection to the school - that is to say the downloading did not occur on a school computer, nor at the school, but in the teacher's own time. In each case the pornography was of a type that it was illegal to possess. In one of the cases a conviction had been entered; in the other it is recorded the police were involved but there is no indication of a conviction at the time of the registration decision. In each case the TRB had little difficulty in concluding that the persons were not of good character and not fit to be a teacher, and registration was cancelled accordingly. This is the decision that the community would expect and is entirely proper.

A third pornography case involved what appeared to be legal pornography, in that it would probably have merited an R18 classification and not been "objectionable". In this case the teacher was also deregistered on the grounds of not being of good character or fit to be a teacher. Significant here was the fact that it was a school computer, and what is more, the pornographic sites were included in the list of "favourite sites", and the laptop was apparently powered up on the teachers desk during the day and available for student use. The teacher denied accessing the sites save for "three to four pictures" as an experiment to test the access-blocking function. He was not believed. Nor was he believed in several other explanations. Nothing in this case suggests that de-registration would or could follow for looking at legal pornography on the internet in a teacher's own time.

Miscellaneous

Case Z: A teacher was dismissed by a school for reasons that did not appear with clarity, apparently due in part to a confidential settlement under which the school agreed not to disclose information. An employment grievance brought by teacher against school was settled. The TRB had before it an application for a practising certificate, with a reference from the principal, but only limited information as to the school's concerns about the teacher's performance leading to dismissal. The teacher was also in a "support and guidance" program prior to his dismissal but the reasons for this were not forthcoming either. The teacher himself vigorously contested the dismissal's relevance to his registrability, emphasising the lack of particulars given to him by the school at all stages of his grievance. The issues with the teacher related to allegations of altering school reports and data about classroom achievements. The teacher had a "glowing report" from a former principal. In the circumstances the TRB decided it was more than satisfied that the teacher had satisfactory recent teaching experience. This appears to be a "balance of proof" decision. In the scale to be weighed were credible assertions of innocence by the teacher, no contrary details from the school and an apparent inability to provide them, and a glowing reference from a suitably regarded person.

Non-criminal conduct in teachers? private lives

Canadian and US authority is clear that a teacher's conduct outside the classroom can give rise to grounds for discipline or dismissal. Many cases are in a context where employment and disciplinary matters are bound together in the relevant legal regime that governs teacher employment, but that does not alter their relevance to the present inquiry which is whether private lives may affect registration or be grounds for discipline. The Supreme Court of Canada explained why a teacher's conduct outside the classroom is important to their function as a teacher in Ross v New Brunswick School District No 15 [1996] 1 SCR 825 at 857-858; 133 DLR (4th) 1 at 20-21 (SCC):

Teachers are a significant part of the unofficial curriculum because of their status as "medium". In a very significant way, the transmission of prescribed "messages" (values, beliefs, knowledge) depends on the fitness of the "medium" (the teachers) - The integrity of the education system also depends to a great extent upon the perceived integrity of teachers. It is to this extent that expression outside classroom becomes relevant. While the activities of teachers outside the classroom do not seem to impact directly on their ability to teach, they may conflict with values which the education system perpetuates.

The Ross case came about in this way. A teacher, whose classroom conduct and competence was not questioned in any way, was known in the community as a "holocaust denier" who wrote books and gave interviews on the topic. The school was in a small New Brunswick community. The parents of a Jewish student contended that the school environment was, through Ross's mere presence, "poisoned" for their daughter because anti-Semitic sentiment was present in the school. They complained to the New Brunswick Human Rights Commission that the School Board discriminated against Jewish students by employing Ross, and the matter proceeded as a Human Rights Act complaint against the School Board, not against the teacher. The existence of a "poisoned environment" was accepted by the tribunal, there being some evidence of anti-Semitic taunts at the school which it believed could be attributed to students being influenced by Ross's presence. None could be directly attributed to Ross whose own classroom performance was unobjectionable. The Board of Inquiry, equivalent to our own Complaints Review Tribunal, found discrimination by the School Board and ordered it to move Ross to a non-teaching role. There then followed a series of appeals, eventually to the Supreme Court of Canada. Ross himself was the instigator of the appeals, since the School Board, though the initial party to the complaint, did not itself contest the matter and duly complied with the initial ruling. Ross's argument was that the tribunal's order was an unreasonable limit of his freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms. Ross lost in the Supreme Court of Canada which held that, although his freedom of expression was indeed restricted by the order of the Tribunal - he was, after all, penalised by removal from the classroom on the basis of what he said outside the classroom - the restriction was no more than a reasonable limit on his rights. The important countervailing interest was the need for a safe and non-discriminatory educational environment for students. This was enough to justify the restriction. Ross then complained to the Human Rights Committee, established by the International Covenant on Civil and Political Rights, that the law of Canada permitted unreasonable restrictions on his freedom of expression. But the Human Rights Committee dismissed his complaint, again accepting that restrictions such as were imposed upon him were reasonable in a free and democratic society (Ross v Canada Comm No 736/1997, 26 October 2000). It is critical to an understanding of this case that the facts as found by the first instance tribunal included incidents of swastikas carved on desks, and the like. That is to say, there was evidence of actions towards Jewish students in the school which were accepted to be causally related to the presence of Malcolm Ross.

As La Forest J comments in the Supreme Court of Canada decision:

It is on the basis of the position of trust and influence that we hold the teacher to high standards both on and off duty, and it is an erosion of these standards that may lead to a loss in the community of confidence in the public school system. I do not wish to be understood as advocating an approach that subjects the entire lives of teachers to inordinate scrutiny on the basis of more onerous moral standards of behaviour. This could lead to a substantial invasion of the privacy rights and fundamental freedoms of teachers. However, where a "poisoned" environment within the school system is traceable to the off-duty conduct of a teacher that is likely to produce a corresponding loss of confidence in the teacher and the system as a whole, then the off-duty conduct of the teacher is relevant. (para 45)

The action/belief dichotomy

It is tempting to suggest that teachers should, in a free and democratic society, be entitled to hold whatever beliefs they like without their beliefs being a matter upon which they could be called to account as a disciplinary, employment, or discrimination matter. And there is strong authority in the Supreme Court of Canada that this is so - that without some showing that the beliefs of a teacher cause a tangible harm of some sort in the school, there is no basis for any form of restrictions on teacher beliefs.

This was strongly affirmed in the case of British Columbia College of Teachers v Trinity Western University [2001] SCC 31 where the BCCT, the equivalent of the TRB and proposed NZTC, were held to have wrongly withheld approval from the course of teacher instruction offered by TWU. The BCCT was empowered by statute to approve and certify training establishments, using statutory criteria which included the phrase "public interest". For its part TWU had been training teachers for some years in a four year program which they operated, followed by a final year practicum supervised by Simon Fraser University in Vancouver. The case arose when TWU sought approval to operate that final year itself, rather than under the aegis of SFU.

The BCCT established a committee to report on the suitability of TWU's proposed final year program, which reported favourably back to the College. However the full Board of the BCCT refused to certify the course. They were unhappy about a "contract" that all students at TWU were required to sign on their enrolment. TWU was a private Christian university, and it required its students to promise a number of things, one of which was to refrain from homosexual behaviour. The concern of BCCT was that students who signed such a contract would not make effective teachers, since they may be expected to harbour discriminatory attitudes against gay students and thus to perpetrate acts of discrimination. There was no evidence that this had ever happened, even though there were many TWU teachers in the workforce.

TWU challenged the refusal of certification in the courts. BCCT defended its decision. As can be appreciated, it was an extension of the Ross case in the sense that the implicit argument of BCCT was that teachers who believe homosexual conduct to be morally wrong (as could be inferred from their signing of the TWU contract while a student) would perpetrate discrimination. It does not appear to be argued that they would "poison" the environment at a school by their mere presence, although that is an argument that would have been available, on the basis of the Ross case (though incidents at a school would need to be relied upon, traceable or deemed traceable to the presence of a TWU teacher).

TWU won its court challenge at every level, right up to the Supreme Court of Canada, although one judge in the BC Court of Appeal and one in the Supreme Court of Canada sided with BCCT.

The Supreme Court of Canada, by a majority of 8-1 judges, held that the absence of any evidence of actual discrimination by any TWU trained teachers was pivotal. It meant that student teachers at TWU were being penalised for their beliefs. Further, there was an air of unreality about the BCCT argument. Student teachers already had four years at TWU and only a final year at SFU, and the BCCT argument depended on the proposition that the final year at SFU was necessary to "counter" anti-gay beliefs. Since most of that final year actually comprised teacher placements in schools, and since nothing transpired at SFU that was capable of being regarded as the "counter" to the impugned belief, there was a deep flaw in the BCCT case.

It is interesting to observe that the teacher registration regime in New Zealand at one time lent itself to criticisms of the same type as the Canadian courts made of BCCT's approach in the Trinity case. In 1996, at the time that it was made compulsory for schools to employ only registered teachers, the criteria for registration articulated by the TRB included the following (from its 1994 Handbook):

• promotes cultural safety;
• actively works to counter sexist and racist attitudes;
  (these two are aspects of "being likely to be a satisfactory teacher"); and
• display non-racist and non-sexist attitudes, and religious and political tolerance" (this is an aspect of being "fit to be a teacher").

Note that the statutory grounds for registration were the same then as they are now; the above were part of the TRB's statement of its understanding as to what the statutory grounds meant. There was some criticism by religious schools of mandating registered teachers in private schools, at least when allied with registration criteria in the form described above. It was not difficult to imagine that a suitably motivated TRB might withhold registration from teachers who were from a religious background in which the relevant religion contained beliefs about the role, say, of women that could be interpreted as indicating that they were not prepared to "actively work to counter sexist attitudes". So, too, fundamentalist believers in the Islamic and Judeo-Christian tradition might not be thought to be capable of displaying "religious and political tolerance". If this seems fanciful, the Trinity case in Canada in 2001 is a useful reminder of how registration boards can go on PC frolics.

At the time of the 1996 mandating of teacher registration the above concerns were mentioned in the House - see the Hansard debate at [1996] NZPD 14224-14244 on the Education Amendment Bill (No 2) of that year. For those who look up this reference, it is necessary to add that the legal opinion there referred to is not accurately portrayed by either of the politicians who referred to it. It is of interest to note that, subsequently, the TRB's interpretation of the statutory criteria for registration was altered so as to delete the phrases referred to above.

It is too simple to say, therefore, that teachers cannot be de-registered or refused registration for their beliefs. Of course, so long as beliefs remain internal, then no-one will know about them. But if articulated, it will then be known what the person believes, and this can be relevant in a number of ways. As the Ross case shows, if the beliefs are accepted to have caused tangible harm in a school of a type which a school is empowered and expected to prevent, then there can be sanction, effectively, for that belief.

Similarly, a belief that sex with children is not morally wrong would be a belief of the type for which a teacher's registration must be seriously considered. But even there, one must accept that a teacher or applicant might be an advocate for a law-change to permit, say, a lower age of consent for sexual intercourse, and that this does not mean that such a person is inclined to commit offences under the law as it stands. There ought to be no simple equation of unpopular or abhorrent belief with unregistrability. Beliefs of certain types might certainly be cause for inquiry and seeking of information and assurance by the TRB, but not for ruling a person out. If it were otherwise, one can imagine the difficult time that gay teachers would have had, and sometimes did have, in a climate where homosexuality had not attained the level of acceptance if now has. (The case of Balfour v Attorney-General [1991] 1 NZLR 519 comes to mind.) Teacher registration cannot be used to penalise people for their beliefs by denying them access to the profession. The emphasis must be on their actual or anticipated conduct in light of their beliefs. This may include, on appropriate facts, the conduct that other persons (students) are induced to engage in as a result of knowing the beliefs of the teacher.

For this reason it is also acceptable to base registration decisions on teacher attitudes to their own conduct. For example, in cases about de-registration for convictions, it is common for the TRB to have regard to the teacher's own attitude to the fact of the convictions and the incidents upon which they were based. Denial or refusal to face up to them is indicative of bad character or unfitness. In this way the attitudes of teachers are indeed relevant; but this is just to record a universal fact of human experience: that what people think about why they do, and why they did it, is highly relevant in attributing merit, demerit or blame.

Morality and actions out of school

When can teachers be sanctioned for out of school conduct that reflects on their character such that an employer or registration authority might de-register or impose sanctions? The first thing to say here is that since conduct includes expressive activities such as book-writing and art, and that this may disclose beliefs of a teacher, we rapidly come to the same sorts of questions as we have just been discussing. But where there is conduct, and not just the expression of a belief, some different considerations apply. Conduct is a better candidate for disciplinary sanctions or de-registration than mere belief. The question is whether conduct in a teacher's private life can be relevant to their teaching performance and efficacy in a school, such that it may be a reason for sanctions.

The answer, as is apparent already from the above discussion, is that out-of school conduct may well be relevant, and not just when it leads to in-school harm as the court found in the Ross case.

An illustrative example is Abbotsford School District 34 Board of School Trustees v Shewan (1986) 70 BCLR 40 (BC Court of Appeal). Mr and Mrs Shewan were a married couple who both taught at a high school. At home, and out of hours, Mr. Shewan took consensual photographs of Mrs. Shewan while she was partially nude. The couple submitted the pictures to the "Girl Next Door" section of Gallery, a pornographic magazine. The school board found out that one of these pictures had been published and suspended both teachers for six weeks without pay. The Shewans admitted that there was some indiscretion in submitting the photos but felt that the publication was consistent with community standards and therefore did not amount to misconduct. There was a lot to their argument, since there was nothing about the magazine that was illegal; it was just not to everyone's taste. The court held, however, that the question was not what the community was prepared to tolerate (the tolerance test) but what the community considered was right or wrong (the moral standards test). The moral standards are those of the community where the teacher is employed and lives, and not some other city or municipality. The key ingredient of misconduct is whether the action affects the teacher in his or her educational capacity. If it does not, then it is not an offence under the School Act. The Court however found that there was misconduct the standards of the community of Abbotsford. The Court stated that a:

[T]eacher is an important member of the community who leads by example. He or she not only owes a duty of good behaviour to the school board as the employer but also to the local community at large and to the teaching profession. An appropriate standard of moral conduct or behaviour must be maintained both inside and outside the classroom. The nature of that standard will, of course, vary from case to case. Moral standards are those of the community where the teacher is employed and lives not those of some other city or municipality.

The Court went on to explain why out of school conduct is important, stating:

The reason why off-the-job conduct may amount to misconduct is that a teacher holds a position of trust, confidence and responsibility. If he or she acts in an improper way, on or off the job, there may be a loss of public confidence in the teacher and in the public school system, a loss of respect by students for the teacher involved, and other teachers generally, and there may be controversy within the school and within the community which disrupts the proper carrying on of the educational system.

Another example of behaviour that is not illegal but is still found to impair a teacher's effectiveness was quoted in Shewan. In Peace River North Sch Dist 60 Bd of Sch Trustees v Olson (13th June 1983) a teacher had turned a blind eye to stolen property being stored in her house and had condoned the use of hash and marijuana by others while they were guests in her house. The Board of Reference found that condoning this behaviour was a "failure of her duty to her employer, to her broader constituency, the community and her profession - this conduct not only undermines her ability to do her job in this community, it also erodes the ability of the schools to deliver the standard of education that the community is entitled to expect".

Where a teacher is acquitted of criminal charges, the implications on the moral conduct of the teacher can also be grounds for dismissal or suspension. In Woo v Putnam County Bd of Educ 504 SE 2d 644 (W Va 1998) a teacher was accused of selling of marijuana. At his trial he successfully asserted the defence of entrapment and a jury found him not guilty. However, during his testimony he admitted that for a couple of years he had smoked marijuana at home in the evenings on a regular basis. He denied any use of marijuana during work hours or school activities and no such use was alleged. However, newspaper articles were published about his case and a petition was established requesting he not be reinstated. The court found that his notoriety was sufficient to impair his ability in the classroom and therefore the refusal of the school board to reinstate him was legitimate.

Teacher's free speech

The above discussion showed that it is possible that teachers may face disciplinary or registration sanctions for engaging in conduct, whether inside or outside the classroom, that they claim a right to engage in. For example, the right to freedom of expression as in Ross or Shewan. In this section I examine that issue more directly.

The starting position is that school authorities are entitled to determine the curriculum that will be taught, and expect teachers to teach it. There can be no claim to "academic freedom" to depart from or augment the curriculum that is determined by the competent authority. This is clearly established in the "rights-based" jurisdictions of North America, and the converse proposition is even less tenable here where there is no strong tradition of freedom of expression and a somewhat less rigorous judicial approach. The grey area is in the choice of language and methods to deliver the curriculum, and in the variety of viewpoints expressed. Essentially the competing principles here are between (a) the classroom as a forum for the pursuit of truth in the "market place" of ideas, and (b) the classroom as a forum for the inculcation of community values. On the latter model, there is more room for oversight and control of teacher in-class expression.

In the US the prevailing view is the latter - although with education being a state mater there is room for differences between states. When presented as federal constitutional cases, there is scope for a uniform standard to be set by the Supreme Court as the highest federal Court, but there has been no standard-setting case and in any event the factual differences between cases are always such as to preclude a definitive statement about the rights of teachers to freedom of expression in their classrooms. Some recent cases in the circuits give the flavour.

In Lacks v Ferguson Reorganized Sch Dist R-2 147 F 3d 718 [127 Educ L Rep 568] (8th Cir 1998) a teacher's contract was not renewed after she ignored warnings about not allowing students to use profanities in class work. This included the use of the words "fuck", "shit", "ass", and "bitch". This case was really about students not being allowed to use profanity but is properly seen as a teacher's free speech case since it was at the teacher's instigation that plays were read using these words. There was held to be no constitutional right to use these words and hence her dismissal could not be faulted on the grounds that it was unconstitutional.

A series of United States cases establish that a teacher's free speech rights are subordinate to the legitimate pedagogical concerns of a school as "public schools have a legitimate pedagogical interest in shaping their own secondary school curricula" Kirkland v Northside Independent School District 890 F 2d 795 (5th Cir 1989). The first of these cases was Miles v Denver Pub Sch 944 F 2d 773 (10th Cir 1991) where a teacher made a comment in the classroom about a rumour that two students had been seen having sexual intercourse on the tennis courts. The teacher's classroom comments were not protected by the First Amendment.

In Kirkland v Northside Independent School District 890 F 2d 795 (5th Cir 1989) a teacher changed and used a history reading list without the prior consent of the school administration, contrary to school policy. Again, this action was not constitutionally protected: "The first amendment does not vest public school teachers with authority to disregard established administrative mechanisms for approval of reading lists."

A further case is Boring v Buncombe County Bd of Educ 136 F 3d 364 (4th Cir 1998) where a teacher chose a play for a state-wide competition that the school thought contained inappropriate subject matter. The superintendent transferred the teacher for failing to utilise the proper approval mechanism. The Court held that the teacher had no recourse as her actions were not constitutionally protected.

This line of authority was continued more recently by the Colorado Supreme Court in Board of Education of Jefferson County School District R-1 v Wilder 960 P 2d 695 (Colo 1998). A teacher was found to have no recourse against the school firing him for showing an "R" rated movie to his logic and debate class without obtaining approval. The film contained full frontal nudity, oral sex, masturbation, profanity, cocaine abuse, and graphic violence.

Homosexuality

In the United States the test for whether a teachers private conduct gave rise to grounds for dismissal was whether their private conduct resulted in a material or substantial disruption in the schools activities. In Weaver v Nebo School District 29 F Supp 2d 1278 (D Utah 1998) it was found that an openly lesbian teacher and volleyball coach could not be dismissed for expressing her sexual orientation outside the classroom. To prevent her from being openly lesbian would be an impermissible infringement of her First Amendment rights. Of course, in New Zealand any contrary suggestion is simply out of the question since sexual orientation discrimination is unlawful under the Human Rights Act.

A teacher's right to free speech about homosexuality has been found to be properly restricted in the teaching environment by the United States Court of Appeal. In Downs v Los Angeles Unified School District 228 F 3d 1003 (9th Cir 2000) a teacher posted a response on a bulletin board to a notice on a separate bulletin board recognising Gay and Lesbian Awareness Month. The court found that the bulletin boards were a manifestation of a school board policy to promote tolerance. The bulletin boards were not "free speech zones", but instead were vehicles for conveying a message from the defendant school district. The court noted that the school district may formulate that message without the constraint of viewpoint neutrality. As such, the court concluded that the school district did not violate plaintiff's free speech rights by putting up their notice while precluding the plaintiff's notice.

Code of ethics and teacher discipline

The proposed NZTC will have a range of statutory functions under the proposed new s 139AD of the Education Act, in addition to teacher registration and discipline. Among them is the development of a code of ethics for teachers. Already the TRB had been working on the preparation of such a code (see "Performance Measures and Targets" in the TRB's Annual Report and Financial Statements to June 2000 and see also www.teacherethics.org.nz). The code is also addressed in the proposed s 139AH where it is said that it will be "binding on all teachers who hold a practising certificate and on all authorised persons". The code is to be prepared after consultation with "those who will be bound by it", an onerous requirement given the 82,000 or so registered teachers in New Zealand. The code is to be brought into effect by signature of the Chairperson of NNZTC and notice in the gazette. The proposal in the original Bill that it require to be signed off by the Minister was rejected by the Select Committee, on the basis that this would not send the same message of professional autonomy over professional standards.

The code, though mandated by legislation, is not regarded as secondary legislation. It will not be subject to the Regulations Disallowance Act 1989 or the Acts and Regulations Publication Act 1989. That also means it will not be printed in the official series of regulations.

That said, as a code promulgated under a statutory power, it is still subject to all the inherent limitations of statutory powers: that is to say, the code may not be drafted in such a way that it unreasonably limits rights of teachers or others in a manner inconsistent with the New Zealand Bill of Rights Act 1990. In any event it is likely that the code will not be drafted with the specificity that might raise potential conflicts with the Bill of Rights. It will be its application to specific circumstances that raises this as a possibility. (Just as, in the Trinity case, the whole BCCT case against the TWU teaching program was constructed on the basis of the words "public interest" in a statute. The argument was that it was not in the "public interest" to have TWU-trained teachers in the public school room. Now, no one could be heard to complain about the words "public interest" in the statute; it all comes down to how those words actually come to be applied in context. So it will be with a code of ethics, where actual text is likely to be fairly anodyne.)

What is the relation of the proposed code to the registration and disciplinary process?

The Code may be seen as the expectation of teacher conduct, such that deviations from it are capable of being seen as misconduct. The code is a prescription, such that persons will know where they stand before acting. Reading it will enable persons to predict whether certain types of conduct are proper, or improper, to engage in. Obviously it will not exhaust all the possibilities of serious misconduct, which may well lie in actions that the code simply does not speak to.

Though the Bill speaks of teachers being "bound" by the code, it does not confer powers of sanction for breach of the code as such. Sanctions are attached to misconduct, as detailed above. Still, the fact that some behaviours may be proscribed by the code may legitimate action taken by employers to deal with certain types of conduct before it escalates. In that respect a code will be helpful and its existence give added support for prophylactic measures to be taken in relation to teachers.

Police vetting

Several sections of the pending Bill concern "police vetting", a term that is not defined. The NZTC is to coordinate police vetting (proposed s 139AZ). Police vets are required by the NZTC in relation to persons seeking registration or practising certificates; and by employers in relation to new and existing non-teaching and unregistered staff, as well as in relation to contractors who work regularly at a school during school hours (ss 78C and 87CA).

It is odd that the term "police vet" is not defined. At a minimum a police vet is a statement of a person's past convictions, but how much wider it might go is not made clear in the Bill. There seems to be a view that it will include concerns held by police about possible criminal activity that has not been proven. This is a sound view, for if vets were just supposed to unearth convictions, one would expect the Bill to use the term "conviction", which it does use elsewhere.

There is obvious scope for conflict and difficulty over the breadth of vets. Those who are required to seek vets are required to refer the information received to the subject of the vet for validation. They may not act adversely upon the information until it is validated, or until a reasonable opportunity has been given for validation but the person has failed to validate the information.

What is to happen when the person contests the information, and does not wish to validate it? The Bill does not speak to this possibility. And what, exactly, might "adverse action" be? In the case of the TRB it would be deregistration or refusal of an application. The TRB, of course, has a procedure available for the determination of relevant facts, and the contesting of information disclosed in police vets can occur within that framework. In other contexts it would seem that the adverse action must be such as is possible within the applicable law relating to the teacher or applicant: perhaps the non-employment of the person, the redeployment of an employee, the suspension or dismissal, or reference to the TRB/NZTC.

Interaction of employment law and registration/disciplinary issues

The processes of employment grievances and professional discipline and registration are conceptually separate. But the facts giving rise to one may also give rise to the other. This raises the question which proceeds first. One assuredly has to.

There is no intrinsic or legal reason for either type of proceeding to await the outcome of the other. The subject is discussed by McGechan J in Thomson v Teachers Registration Board (HC Wellington CP115/00 29 June 2000) in which the judge dismissed the plaintiff's application to have the TRB enjoined from hearing a deregistration matter until after the Employment Court had heard his employment dispute. But, he said, the decision was not a precedent that that particular order of resolving the matters was always appropriate. The key was that there was no overriding prejudice or injustice in the TRB proceeding to deal with the matter in the ordinary course. Nothing required that it wait until after the Employment Court hearing.

In Richardson v Teacher Registration Board (HC Wellington CP135/99 11 June 1999 Ellis J) the plaintiff sought to restrain the TRB from dealing with her pending deregistration matter while she pursued an appeal to the Employment Court against a determination of the Employment Tribunal. The judge was sceptical that she was wise to seek to have the TRB hearing after the EC hearing, since the latter was a restrictive form of appeal with limited ability to inquire into the facts by way of a fresh hearing. So she might have done better in having the TRB hearing first. In any event, the judge ruled that the first inquiry on her injunction application should be into the position of potentially affected students, since the plaintiff was in a teaching position and any delay by the TRB in concluding the inquiry into her registration could have impact on students. The judge sought information on the current position with Ms Richardson's teaching and was satisfied by an affidavit filed recording her current employer's view that there was no risk. On the next point, which was where the balance of convenience lay in considering the injunction, he was not persuaded. He therefore declined the injunction, and ordered that the TRB matter should proceed as soon as reasonably possible for all concerned.

Procedure of the TRB and particulars of charges

The TRB is empowered to set its own procedures subject to the requirements of the Act and of natural justice. Its decisions reveal that it adopts the practice of determining from initial information whether matters are sufficiently serious that deregistration should be proposed, and then notifies the teacher accordingly of the risk that the teacher is facing. In the Thomson case, noted above, a second issue concerned the degree of detail that the TRB should give at the initial stage of referring to the teacher a complaint received from an employer. The TRB had advised the teacher of a request for deregistration made by the school and sought submissions from him upon that request. The plaintiff complained that the TRB had not particularised the charges against him and that he was being required to make submissions without sufficient details as to what was in issue. The TRB's response was that it would ordinarily particularise the complaint after receiving a teacher's response, at which stage there would be opportunity for further submissions from the teacher. McGechan J could see merit in each side's position, but ruled that in the circumstances natural justice required some particularisation of the charges at the preliminary stage. It appeared that the information sent by the school, and sent on by the TRB, was voluminous.

The order was that the TRB provide a list of the particular matters it considers to be of concern based on the materials it had received from the school. This was "to take the form of particulars as such are understood in litigation generally, not being simply broad headings, but not needing to be refined to provision of supporting evidence".

Discussion problems

1. A high school teacher from a conservative religious tradition is known in a small community for views on the role of women - that married women ought not to work, and that all women should aspire to marriage and hence that education is not as important for girls. Parents of female students complain that a person who holds such views will not be as diligent a teacher of female students as of male students. Parents also complain that the presence of the teacher, who does not share his views in the school, encourages playground taunts from male students to female students about their worth and prospects. What advice should one give the complaining parents about the possibility of recourse?
    
2. A high school teacher always has an open Bible on her desk. She is known in the community as a Christian of strong beliefs. She does not propagate her belief in the class room, but if asked by students why she has it there tells them it is because of her beliefs, and that it symbolises for her the fact that "God is with me in all I do, including as I teach you [her class]." A parent complains about this: what is the school's response?
    
3. Teacher in his own time and on his own computer maintains a satirical website which lampoons a variety of subjects, including religion and Maori treaty claims. This is widely known in the school community - not through the teacher's publicity, but widely known nonetheless. In the teacher's own classes as well as some others, discussions of race relations (when they arise) have taken on a frivolous nature with frequent references to material found on the web pages. Graffiti has appeared in the school echoing some themes from the website, and there have been complaints from Maori parents. How should the principal deal with such complaints?
    
4. A teacher is stopped by a police officer in the weekend for a routine random breath test. He is found to be wearing women's clothing. This becomes known in the (small) school community. Does cross-dressing impact upon fitness to teach? How relevant is it that the majority in the community think it does?
    
5. A 50 year old teacher, who has tried for promotion to more senior positions many times, makes a complaint to the Human Rights Commission that lack of success is due to racial discrimination. His complaint is dismissed. He writes a number of letters to school authorities and Ministry officials comparing his treatment to that of Jews in Nazi Germany, and comparing the authorities to Nazi officials. He also encloses a newspaper clipping about a "man who snaps" who "kills seven employees". Is this a matter affecting registrability that should be notified to the TRB/NZTC? [See Toronto Board of Education v OSSTF [1997] 1 SCR 487.]

---

About Us || Registration || Conduct & Competence || Teacher Education || Non Teacher Police Vetting || Policy
Communication || Home || Accessibility