Giving effect to relevant student rights

A school board is required, as one of its primary governance objectives, “to ensure that…the school…gives effect to relevant student rights” (Education and Training Act 2020, section 127(1)(b)(ii)).

For some this might sound like an irritating legalism, yet another compliance tick-box exercise, a touch of “wokeness”. But it is a legal obligation, so it makes sense to explore what it means. And the better news is that, if taken seriously, meeting this obligation can bring greater purpose, principle, and passion to professional practice.

The “relevant student rights”, the Education and Training Act says, are “set out in this Act, the Bill of Rights Act 1990, and the Human Rights Act 1993”. Some of them are explicit, but many of them are not. Further, the Bill of Rights Act makes it clear, in its preamble and section 28, that rights beyond these three acts are also relevant: young people¹ have rights in international law through the human rights treaties the country has ratified².

The relationship between these rights is shown in Figure 1.

The obvious starting point for educational leaders is that the very existence of the country’s schools is founded on an elemental “student right” – the right to education. Sections 33-36 of the Education and Training Act mirror the right to education in international law:

Universal Declaration of Human Rights (article 26)

International Covenant on Economic, Social and Cultural Rights (article 13)

UN Convention on the Rights of the Child (article 28)

UN Convention on the Rights of Persons with Disabilities (article 24)

and in the UN Declaration on the Rights of Indigenous Peoples (article 14).

The right includes ensuring that education is available and accessible, acceptable in terms of professional, human rights and other standards, and adaptable to the needs of the individual learner and societal changes³.

The right is to an education that meets specific aims.

The Education and Training Act states these as being

1. to help each child and young person attain their educational potential…
2. to promote the development, in each child and young person, of the following abilities and attributes:
   1. resilience, determination, confidence, and creative and critical thinking
   2. good social skills and the ability to form good relationships
   3. participation in community life and fulfilment of civic and social responsibilities
   4. preparedness for work…
3. to instil, in each child and young person, an appreciation of the importance of—
   1. the inclusion of different groups and persons with different personal characteristics
   2. diversity, cultural knowledge, identity, and the different official languages
   3. Te Tiriti o Waitangi and te reo Māori (s 5(4)).

The Convention on the Rights of the Child (article 29) covers much of the same territory:

1. The development of the child's personality, talents and mental and physical abilities to their fullest potential;
2. The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
3. The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;
4. The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
5. The development of respect for the natural environment.

The right to education is a useful policy starting point for school leaders:

• What do these intended results look like, in practice and in detail?
• How can we assess they are met for each child?
• How can we develop each child's personality, talents and mental and physical abilities to their fullest potential?

There are two other dimensions to student rights and education:

• rights in education – the rights students have in school while they are being educated;
• rights through education – the rights that education delivers (e.g. rights to freedom of expression, health, work, adequate standard of living, political participation, benefit from science).

The Education and Training Act specifies the following student rights in education. The school must:

• be “a physically and emotionally safe place for all”;
• take “all reasonable steps” must be taken “to eliminate racism, stigma, bullying, and any other forms of discrimination”;
• be “inclusive” of, and cater for, “students with differing needs”;
• give “effect to Te Tiriti o Waitangi”;
• give effect to other rights in the Act, and rights in “the Bill of Rights Act 1990, and the Human Rights Act 1993” (s 127(1)).

The student rights implicit in Te Tiriti o Waitangi include

• the right to “access, when possible, an education in their own culture and provided in their own language”⁴.
• equal rights to an effective education⁵.

The Bill of Rights Act – which includes a range of human rights that apply to “students” as much as any other NZ residents – affirms most of the rights in section 127 of the Education and Training Act, and others, including:

• the right not to be subjected to cruel, degrading, or disproportionately severe treatment or punishment (s 9);
• freedom of thought, conscience, religion, and belief, and freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form (s 13, 14);
• the right to manifest that person’s religion or belief in worship (s 15);
• freedom of peaceful assembly and freedom of association (s 16, 17);
• the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise (s 21) – giving rise to sections 105 to 114 of the Education and Training Act;
• the right to the observance of the principles of natural justice (s 27);
• freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993 (s 19):
  • sex
  • marital status
  • religious or ethical belief
  • colour, race, ethnic or national origin
  • disability
  • age
  • political opinion
  • employment status
  • family status
  • sexual orientation (Human Rights Act s 21(1)).

The Bill of Rights also includes rights which, although they apply to adults and those in the legal justice system, might imply rights of students in schools which have the function of preparing young people for participation in society:

• right to political participation (s 12);
• rights to justice (humane treatment & respect, fair hearing, presumption of innocence, right to defence) (s 23, 25).

The clearest articulation of student rights in international law can be found in the Convention on the Rights of the Child – the most, and fastest, ratified human rights treaty. Many of its provisions are found are found in various forms in New Zealand laws. Four articles of the Convention stand out as having particular relevance for schools:

• “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” (UNCRC Article 3.1);
• the right to “appropriate direction and guidance” from parents, whanau and others “in a manner consistent with the evolving capacities of the child” (article 5);
• the right of “the child who is capable of forming his or her own views… to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child (article 12.1);
• the right to learn “the principles and provisions of the Convention” (article 42).

So, what are the broad implications of these “relevant student rights” for school leaders?

First, board policies should explicitly encapsulate these rights. The broadest policy on the results to be achieved by the school might, for example, look like this:

Each student will develop their personality, talents and abilities to fullest potential, and be enabled to be effective citizens of their local, national and global communities, in a learning community that respects for everyone’s rights and Te Tiriti o Waitangi.

It could drill down to specifying the rights listed above.

The school’s values – which should also be established in a clear policy – could, as suggested by The New Zealand Curriculum, include “respect for self, others and human rights” (p.10).

But policies are meaningless if they are not enacted in practice, and to make these policies work, an overall strategy is needed, developed and implemented by staff. But how can we design strategy that reduces “cognitive load”, making it more likely that it guides day-to-day practices?

One way, adopted in 2008 as part of the Human Rights in Education initiative, is to apply a “human rights and responsibilities lens” to every aspect of life in the learning community, as described by Potaka and Simpson (2012)⁶. Some of the results of such an approach have included primary and secondary students becoming powerful and knowledgeable advocates for the human rights of all, leading to greater confidence, less bullying, greater respect for the right to education and concern for others.

That goes to the heart of what our schools are for.