The Free Speech Union has learned from concerned parents and media reports that certain schools have instituted blanket bans on “joking about coronavirus” and we believe this to be an unreasonable restriction with potentially disproportionate punishments, such as being placed in isolation.
Free speech background
Any rule created by a school must comply with the Human Rights Act 1998 and the articles of the European Convention on Human Rights. Under Article 10 of the ECHR, freedom of speech can be subjected to restrictions or penalties that are 1) prescribed by law, 2) necessary in a democratic society, and 3) in the interests of (among other things) public safety, or for the protection of health. In addition, the restriction must be proportionate – it must be rationally connected to the legitimate aim and must infringe free speech rights no more than is necessary to achieve that aim.
Schools’ authority
Schools’ authority to create disciplinary rules is provided for by the Education and Inspections Act 2006.
The Department for Education has issued Guidance for full opening: schools, updated 10th September 2020, which expresses concern for the psychological wellbeing of the pupils.
Further guidance (Checklist for school leaders to support full opening: behaviour and attendance) states that schools must, when setting out their Covid-related rules:
make explicit what behaviours are now considered more serious due to the coronavirus (COVID-19) outbreak, for example purposefully coughing on someone, including any escalation points in how they will be dealt with.
The checklist (as well as the general guidance Behaviour and discipline in schools: Advice for headteachers and school staff, issued January 2016) is clear that behaviour policies must be clear, reasonable, well understood by staff and pupils, and encourage mutual respect between pupils and staff.
Concerns
1. Is the rule clear enough? What exactly is meant by joking?There is no mention of joking in the guidance and it could be argued that by banning joking a school has exceeded the guidance and created a harsher-than-recommended regime.
What is the medical/psychological basis that shows joking is likely to be harmful in the circumstances?
Does the school believe that all jokes are equally likely to cause offense? Joking, for example, about a relative of another pupil who died is clearly a more serious matter than an innocuous comment about coronavirus or lockdown in general.
The rule should state clearly what sort of joking it is reasonable to ban. Does the school think that pupils do not know where to draw the line, and therefore it must ban all jokes about Covid?
2. Is the penalty proportionate?Disciplinary penalties may apply if a pupil’s conduct “falls below the standard which could reasonably be expected of him” (s.90 of the Education and Inspections Act 2006). Therefore, “failure to follow a rule” can only be penalised if it results in conduct falling below the standard which could reasonably be expected. s.91 states that a penalty is only lawful if it is reasonable in all the circumstances. Is being placed in isolation a reasonable penalty for a benign joke? Doubtful.
3. Joking is potentially beneficialThe DfE guidance states:
The return to school allows social interaction with peers, carers and teachers, which benefits wellbeing.
It is reasonable to argue that joking has wellbeing benefits, as a normal part of social interaction – joking is a healthy coping mechanism. If preventing everyday humour is likely to create rather than prevent stress, then the policy is self-defeating. And placing a child in isolation for making a benign joke seems particularly harsh, given that many children will have spent the last six months in a form of isolation and may have a need for social contact.