Why don’t legislators pay more attention to the facts when they attempt to adjust the law on exclusions, wonders Richard Bird.

From barred to worse

Parliament has been tinkering again with the law on exclusions. One can only wish that education legislation was more influenced by a study of the facts. The top level exclusion figures for 2009-10 made the headlines but there have been few signs of purposeful analysis of the figures.

From a legal point of view, the very term exclusion makes clear thinking more difficult. The courts (up to the European Court of Human Rights) have repeatedly made clear that even expulsion from a school is not, in law, ‘exclusion’ from education and still less is temporary suspension.

Even if it is unlikely to influence legislation, though, the evidence is worth pondering. For example, the proposed abolition of independent appeals panels in the present Education Bill looks less desperately necessary when one realises that the number of appeals has fallen to 10 per cent of expulsions.

The figures also provoke questions about a major concern raised by the Children’s Commissioner: expulsion rates for children of black-Caribbean heritage. The default assumption is that this is a manifestation of institutional racism in schools.

The figures are certainly high; black-Caribbean boys are excluded at four times the rate for white boys. Perhaps more startling, black-Caribbean girls are excluded at the same rate as white boys. For all groups boys’ rates are higher than girls.

Mixed-race white-Caribbean children have similar rates. But if it is race, why are black-African boys expelled half as often as black-Caribbean? And does that explanation hold for the group with the highest exclusion rate of all: Irish Travellers? What other factors are we missing?

Again, if it is simply race, why do Pakistani boys have twice the rate of Indian boys and Bangladeshi boys higher still? Why do Asian girls have the lowest exclusion rates of all?

There are knee-jerk answers but they leave the question: if schools are institutionally racist, how is it that they discriminate in this finely nuanced way? These things should matter to legislators.

Where lies the problem?

If the problem is the schools, then it may be sensible to take power away from them or insert more checks and balances. If the problem lies in the community, then for a generation or so legislators may have to strengthen schools so they can contribute to instilling social discipline.

Seventeen per cent of expulsions are for assault on other pupils and seven per cent for assaults on staff. Some 29 per cent are for persistent disruptive behaviour and 22 per cent of suspensions are for the verbal abuse of an adult.

And if legislators ask whether suspension and expulsion work? Unfortunately one can never know how many children are deterred from misbehaviour by expulsion but it seems that at least 50 per cent of all suspensions are one-off – those children are deterred for that calendar year at least.

Other questions with no simple answers emerge from the figures. Academies expel 0.3 per cent of their pupils and maintained schools appear to expel 0.1 per cent. Are these figures a sign that academies are less well disciplined? Or do they feel empowered to be more ruthless? It is important that legislators do not choose an answer according to their prejudices.

Boys’ rates of exclusion double between the last year in primary and first in secondary. Why? Conversely, why do girls wait until year 8 before they go off the rails? Why do exclusion rates fall away in year 11? Have all the trouble-makers been expelled? Have youngsters grown up and take things more seriously with the approach of GCSEs? Or is it the sight of freedom that brings peace?

SEN confusion

Sadly, since it is controversial, the figures for special educational needs are unhelpful because no distinction is made between learning SEN and behavioural SEN. One might expect a higher rate for the latter but legislators should not draw conclusions from these data.

Finally, what are legislators to make of a difference of four per cent between the rates of expulsion for schools in the highest 10 per cent of free school meals and the lowest 10 per cent? Or the virtual plateau from 30 per cent to 90 per cent? Is there only a connection between exceptional poverty and misbehaviour? Is this the ‘underclass’? Do the free school meals in some way shed light on the race figures?

Constant legislative tinkering does not refine response. Murphy’s Fifth Law applies: “If you mess around with something for long enough, it will break.”

• Richard Bird is ASCL's legal consultant
  

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