Disciplinary Measures in the School Environment
Schooling institutions play a crucial role in the social, intellectual, civic, and cultural development of children, as it is within the school environment that they acquire the cognitive, social and emotional skills necessary for a successful transition into adulthood. The specificities of the school environment justify not only the granting of a significant set of rights to the children enrolled but also the imposition of broad duties that should guide their behaviour within primary or secondary educational institutions, as outlined in Portugal’s Student Statute and School Ethics Code.
The Student Statute is complemented by each school’s internal regulations, whose primary function is to further develop the provisions of the Student Statute and adapt its rules to the specific circumstances of each institution. These internal regulations may establish additional rights and duties beyond those listed in the legislative framework.
Student duties are of particular importance, as repeated violations or behaviours that significantly disrupt the normal functioning of school activities or relationships within the educational community may constitute a disciplinary offense, leading to the imposition of disciplinary sanctions.
The Dual Nature of Disciplinary Sanctions
Disciplinary measures can be classified into corrective and punitive sanctions. Corrective measures, such as being sent out of the classroom or transferred to another class, serve pedagogical, preventive, dissuasive, and reintegrative purposes. Punitive measures, such as suspension or expulsion, in addition to pedagogical goals, also pursue purely punitive objectives. The list of corrective measures provided by the Student Statute is not exhaustive, allowing for other corrective measures to be included in the school’s internal regulations as long as they serve similar purposes. However, the list of punitive measures is strictly defined by the Student Statute, and no new punitive measures can be created through internal regulations.
Since disciplinary offenses can vary widely, the Student Statute does not prescribe specific sanctions for particular offenses. Instead, schools have discretionary power when applying disciplinary sanctions. Nevertheless, in determining the appropriate sanction, the specific nature of the offense must be considered, taking into account the seriousness of the violation, mitigating and aggravating circumstances, the student’s level of guilt and maturity, and their personal, family, and social circumstances. While schools have administrative discretion in deciding on disciplinary measures, this discretion cannot result in arbitrary actions. Disciplinary sanctions must be proportional to the offense committed and always align with the best interests of the child.
Corrective and punitive measures can be applied cumulatively. This means that a corrective measure aimed at addressing the behavioural tendencies underlying the offense may be supplemented with a punitive measure if the severity of the offense warrants it. The imposition of disciplinary measures does not exempt the child from potential civil or criminal liability. If the child is over 12 years old and their conduct constitutes a criminal offense, the school administration must notify the Public Prosecutor’s Office. If the child is under 12, the matter must be referred to the Commission for the Protection of Children and Youth.
The Disciplinary Process
Corrective disciplinary measures, due to their pedagogical purpose and the lesser severity of both the measure and the conduct that triggered it, do not require a formal disciplinary procedure, and they must only be applied by the appropriate authority. In the classroom, the teacher is responsible for issuing warnings or ordering a student to leave the classroom, while outside the classroom, any teacher or non-teaching staff member may issue a warning. Other corrective measures, such as class transfers, can only be implemented by the school’s headmaster.
Punitive measures, due to their severity, must be preceded by a formal disciplinary procedure, which includes the mandatory hearing of the student’s legal guardian, who represents the child. Only the school’s head has the authority to impose punitive measures, except for recorded reprimands, which may be issued by the teacher. The implementation of disciplinary measures is generally the responsibility of the class director, although multidisciplinary teams may be assigned to assist students with greater difficulties.
Means of Contesting Disciplinary Sanctions
Disciplinary sanctions are not absolute or unchallengeable. The student’s legal guardian may contest a sanction if it was imposed by an incompetent authority or if the sanction is deemed inappropriate or disproportionate to the specific offense. There are two possible ways to contest a disciplinary sanction: within five working days of the final decision, the guardian may file a hierarchical appeal to the school’s general council. Alternatively, they may pursue a legal challenge in the administrative courts.
Disciplinary Offenses in Private Schools
The Student Statute applies only to students in public primary and secondary schools, not to those attending private institutions. Private schools operate under contractual agreements with the student’s legal guardians, and their disciplinary authority stems from this contractual relationship rather than public law. Consequently, the rights and duties of students, as well as the consequences of disciplinary offenses, are defined solely by the school’s internal regulations, though these should refer to the provisions of the Student Statute.
Private schools enjoy significant discretion in applying disciplinary measures, as the relationship between parents and the institution is voluntary and contractual. The disciplinary powers of private schools are limited only by general contractual principles, including good faith, good morals, and public order, as well as the personal rights of the child.
Ivo Morgado