Absence
Our Office receives a number of applications in connection with absence
from classes. The Act on Public Education and its implementing decree
tell little about what can be regarded as absence, i.e. the specification
of the contents of this legal institution is missing from the relevant
legislation. However, the legal consequences of absences are rather severe,
therefore it is important to clarify what this idea stands for. Pursuant
to the decree, if a student misses a lesson or a dormitory session, he
or she must bring a note on their absence. The provisions governing the
excusing of the absence of a student must be resolved in the organisational
and operating regulations of the educational institution. Thus, two aspects
follow from the wording of the legislation: on the one hand, every time
a student misses a class, it is regarded as an absence; on the other hand,
an act may only be regarded as an absence if the student is missing a
class.
Parents indicated in a number of complaints that the Codes of Conduct
in the school of their children contained stipulations regarding the exceeding
of a certain number of latenesses as unexcused absences. However, on the
basis of the above, being late for a class may not be regarded as an absence.
Therefore the stipulation of the Codes of Conduct in this regard are injurious,
students who are late must be sanctioned with other disciplinary actions.
Thus we have informed the parents that if a provision with similar contents
is found in the Codes of Conduct of a school, students and parents have
the right to suggest the amendment of the Codes of Conduct.
The unlawful stipulation described above threatens additional educational
rights. Unexcused absences entail severe legal consequences pursuant to
legislation since Paragraph (3) of Article 75 of the Act on Public Education
states that the legal student relationship of a pupil ceases - save for
pupils of mandatory school age - if that pupil was absent from the mandatory
sessions of the school in excess of the time set forth in legislation.
| A student contacted us
because their student legal relationship was terminated due to the
number of unexcused absences from lessons. Part of these unexcused
lessons resulted from latenesses since the Codes of Conduct contained
a rule that exceeding of a certain number of latenesses entails
unexcused absences. In the particular case, we initiated the amendment
of the provision of the Codes of Conduct concerning students who
are late for class, in a way defining the consequences of being
late for classes in compliance with legislation. The initiative
was accepted. (K-OJOG-196/2001) |
A similar issue is raised by students being sent out from classes. The
consideration of misbehaviour of students in a class is a complex issue
since this not only constitutes the non-fulfilment of a student's own
obligations, but also disturbs the appropriate conduct of a class, hinders
the prevalence of fellow students' right to learning and the performance
of work by the teacher. Therefore it is reasonable not to leave such behaviour,
constituting a breach of obligations, without consequences. However, sending
out may not be used as a sanction. It is our position that sending out
may only be used if it is necessary in order to protect others' rights
or the student's other rights. We believe that a student may not be sent
out from class for the mere absence of equipment, thus it may not result
in either excused or unexcused absences. In any given instance, it is
the right and obligation of the teacher to decide whether a student should
be sent out or not. We believe that being sent out from class may only
limit the right of a student to take part in a lesson as long as it is
necessary. That is, no matter in what minute of the lesson is a student
sent out, it may not last automatically until the end of the lesson. At
the same time, the supervision of the student sent out must be ensured.
| A principal asked our
Office to examine a few points in the organisational and operating
regulations of the institution because they might have infringed
some of the students' educational rights. The organisational and
operating regulations stipulated that if a student fails to meet
their obligations in spite of a warning, the teacher might send
them out from class. If this happens before the 30th minute of a
lesson, then it will be marked in the diary as an excused absence.
The organisational and operating regulations elsewhere resolved
that if a student fails to bring the equipment set forth in the
local syllabus of the particular subject to a lesson, then they
might have to spend the lesson at a location and in a manner determined
by the teacher teaching the particular subject, while this absence
will be marked in the diary as an excused absence. We informed the
principal that we found the provisions of the organisational and
operating regulations injurious in line with the above. (K-OJOG-227/2001) |
It is apparent from the above cases that the lack of a definition of
absences threatens the enforcement of students' rights, therefore we brought
a legislation-drafting proposal to the Minister of Education in 2002.
Legislation resolves the justification of an absence from a class as a
primary obligation. If an absence is not justified, it will be regarded
as an unexcused absence. Excused and unexcused absences partly entail
different consequences. The act attaches the most severe legal consequence
to the unexcused absence of students above mandatory schooling age since
the student legal relationship of a student above mandatory schooling
age ceases if absent from more than 30 lessons without justification,
provided that the school warned the student or the parent of a minor student
about the consequences of unexcused absences in writing on at least two
occasions. It is a safeguard that parents must be notified twice if the
number of unexcused absences increases since a parent will only be in
a position to meet their responsibilities related to the teaching and
education of their child if they receive proper information.
| The student legal relationship
of a student contacting our Office ceased because the number of
unexcused absences exceeded 30. We concluded that the termination
of the student legal relationship took place in contradiction with
the legislative stipulations since the institution failed to meet
its notification obligation. Therefore we turned to the head of
the institution with an initiative for the school to ensure the
restoring of the student legal relationship and to enable the student
to meet their study obligations prescribed for the 2000-2001 academic
year before commencing the new academic year. The principal accepted
our initiative and provided an opportunity for the complainant to
demonstrate their knowledge at as repeat examination. (K-OJOG-196/2001)
A student missed a large number of lessons in the
first two months of the 2000-2001 academic year without any justification,
therefore their student legal relationship was terminated. The parent
was only informed in the month of November that their child had
28 unexcused lessons. We concluded that the school met its notification
obligation of two occasions as stipulated by legislation. However,
the student was of mandatory schooling age at the time of the first
unexcused lesson, therefore the school should have notified the
parent upon the first unexcused absence according to the legislation.
The institution failed to do so, thus - since the student had been
studying in another school since then and was not willing to return
- we turned to the head of the institution with an initiative to
pay the utmost attention in every case to the fulfilment of the
notification obligation in connection with unexcused absences. The
school accepted our initiative. (K-OJOG-269/2001) |
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