High Court: Teacher disciplined for calling student “little bitch” not entitled to judicial review

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The relevant disciplinary procedure was a final written warning which was issued by the private school’s board of management after the parents of a student complained that the teacher had called their child “a little bitch”. Considering the doctrine of mootness, the de minimis principle, and the waste of scarce Court resources, Mr Justice Twomey rejected Mr Dillon’s complaint.

Background

In the High Court, Pierce Dillon sought to challenge a finding by the Board of Management of Catholic University School that Mr Dillon had engaged in inappropriate behaviour towards a student (AB) in February 2015, namely by calling AB a ‘little bitch’.

As a result of this finding, a disciplinary meeting was held between the principal of the school, a nominee of the Board of Management, and Mr Dillon in March 2015 - resulting in the issue of a final written warning from the school to Mr Dillon in April 2015.

Mr Justice Twomey stated that it was relevant to note that under the express terms of this warning letter, it was to expire after 12 months and therefore by April 2016, this final written warning letter had prima facie expired.

Mr Dillon sought orders of certiorari quashing the original finding of the Board of Management and the final written warning in April 2015. Mr Dillon also sought an order of certiorari of the decision of the Board to refuse to permit him an appeal against the decision that he engaged in inappropriate behaviour.

Mootness

Since the judicial review proceedings were first heard by the High Court in June 2016 – two months after the prima facie expiry of the final written warning – Mr Dillon’s core complaint was that the final written warning should nonetheless be rendered null and void by an order of certiorari.

In this regard, the Court considered O’Donovan v De La Salle College IEHC 163 and Barry v. Fitzpatrick 1 ILRM 512.

Accordingly, since Mr Dillon’s final written warning was prima facie spent prior to this Court first hearing the matter, like the remands in custody in the Barry case, and since the nature of the final written warning was such that it did not remain on the applicant’s personnel file, unlike the suspension in the O’Donovan case, the Court found that judicial review of the decision of the Board in February 2015, and the final written warning in March 2015, should not be available to Mr Dillon on the grounds of mootness.

De Minimis

Justice Twomey stated that the de minimis principle appeared to be relevant since, “relative to the truly shocking sexual and physical abuse that occurred in the State’s schools, and which is to this day still the subject of litigation in these courts, it is clear that name calling” by Mr Dillon of AB is a minor matter. Further, “while this Court could not condone any teacher calling a pupil a ‘little bitch’ … nonetheless it should also be borne in mind that the use of coarse language is something which would, regrettably, be used by pupils on a daily basis in our school yards.”

In this regard, the Court relied on the case of Murtagh v. The Board of Management of St Emer’s National School 1 IR 482 – in which an 11 year old pupil was suspended from school for three days after writing on a piece of paper the words “Noleen Bitch Rooney” about a teacher in the school. The Supreme Court held that the suspension of a pupil for this indiscretion was not amenable to judicial review.

Justice Twomey opined that Mr Dillon’s 12 month final written warning “could be viewed in some ways as less serious than the three day suspension in the Murtagh case because there had been no actual suspension or other punishment of Mr Dillon, since the written warning was simply that, a warning” which was to be removed (and thus treated as if it had not existed) from Mr Dillon’s personnel file after 12 months.

Accordingly, the Court found that the final written warning of Mr Dillon was de minimis in nature and not an imposition of any liability.

Scarce public resources being unnecessarily wasted

Finally, Justice Twomey emphasised that the Court was cognisant of the Supreme Court’s judgment in Tracey v. Burton IESC 16, in which it was observed that Court time is a ‘scarce public resource’ which should not be ‘unnecessarily wasted’ and in particular that “Court time is not solely the concern of litigants, or their legal representatives. There is a strong public interest aspect to these issues.”

In the circumstances, Justice Twomey stated that as judicial review is a discretionary remedy it should exercise its discretion not to grant the remedy of judicial review to Mr Dillon as it was not an appropriate use of scarce public resources.

Conclusion

Justice Twomey concluded that he was not being personally critical of Mr Dillon, but that in considering whether this was a case suitable for judicial review in the High Court, considerations other than Mr Dillon’s subjective views of his treatment had to be taken into account.