School Exclusion and the Law: A Literature Review and Scoping Survey of Practice

47 Pages Posted: 13 Nov 2014 Last revised: 2 Jul 2015

Lucinda Ferguson

University of Oxford, Faculty of Law

Naomi Webber

University of Oxford - Department of Education; University of Oxford - Faculty of Law

Date Written: January 11, 2015

Abstract

Non-lawyers implement the law on permanent exclusion, particularly school management teams, with the support and guidance of local authority (LA) officers.

In this review, we evaluate the contents of, and relationship between law and practice to examine to what extent they are coherent. Divergence between law and practice is not of itself a basis for criticising the actions of non-lawyers, but instead suggests that the law might not be fit for purpose. The law should support ‘best practices’ and restrain practice that is not in the “best interests” of either the individual child at risk of exclusion and/or of other children and staff in the school.

Our discussion focuses on recent research and secondary literature, as well as our own scoping survey of permanent exclusion in schools across four LAs in the same Department for Education (DfE) Statistical First Release (SFR) region.

The second section outlines the current law, presents statistical changes in the rate of exclusions and appeals lodged over time and analyses how reforms to the law and legal framework may have affected the statistics. The third section evaluates the values that underpin the legal framework, particularly autonomy, equality, “best interests”, and participation and procedural rights. The fourth section examines current knowledge of the way in which the law is understood by various groups of non-lawyers in the exclusion process. This section also draws on findings from our scoping survey, conducted between July and September 2014. Our scoping survey highlights the potential significance of school and LA culture within this legal discretionary framework in determining the likelihood that a pupil will be excluded. In particular, analysis of individual schools’ responses regarding exclusions against publicly available data on their pupil-level risk factors and indicators of school culture suggest that school culture and disposition toward the governing law has a role to play in determining the likelihood that a pupil will be excluded. This role has not been examined to date, and our scoping survey results reveal it is a complex one, which may also be interwoven with the LA culture and disposition towards the governing law. The work of LA inclusion and exclusion officers is central to this latter issue. Finally, we highlight a number of more discrete matters for further research.

Note: Our review has been updated to include discussion of reforms introduced by the DfE's 2015 statutory guidance on exclusion.

Keywords: Permanent exclusion; English secondary schools; Education Act 2002, s51; education law; best interests; head teachers; discretion; autonomy; independent review panels

Suggested Citation

Ferguson, Lucinda and Webber, Naomi, School Exclusion and the Law: A Literature Review and Scoping Survey of Practice (January 11, 2015). Oxford Legal Studies Research Paper No. 85/2014. Available at SSRN: https://ssrn.com/abstract=2523194 or http://dx.doi.org/10.2139/ssrn.2523194

Lucinda Ferguson

University of Oxford, Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

Naomi Webber (Contact Author)

University of Oxford - Department of Education ( email )

United Kingdom

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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