Drawing on her recent research, Dr Alison Trimble of the University of Tasmania, looks at the current challenges for school leaders navigating the legal minefield of education law.
School leaders now face an ever expanding range of legal issues, areas of law are becoming more complex, and there is a widely held perception that school stakeholders, internal and external, increasingly turn to the law to settle disputes (Butler & Mathews, 2007; D’Cruz, 2016). At the same time, school leaders’ preparation and development in education law — across all three education sectors — may not have kept pace with the growing legal demands.
Education law is formally defined as “those areas of jurisprudence that bear on the operation of … schools” (Alexander & Alexander, 2011 p2). Rather more helpfully, Gerstein and Gerstein (2004) suggest that education law is like a salad made by mixing different legal ingredients. As many practicing educators are painfully aware, nearly every field of law affects schools in some way. Contracts, torts (negligence), constitutional law, human rights and discrimination, sports and disability law contribute to the field of education law.
The importance of law and legal issues in the working lives of school principals, and the operation of their schools, has never been higher (Lock & Lummis, 2014; Teh, 2014). Whether a principal is dealing with a complaint about disability discrimination, counselling staff for unprofessional conduct, reporting a case of a student’s neglect or abuse, managing the school’s copyright exemptions, ensuring photographs in promotional materials have appropriate permissions, or assessing the risks of an out of school activity, the school principal’s education law decisions are critical to the safety and welfare of students, their families, and members of staff, as well as the smooth and effective operation of the school.
School principals, in Australia and internationally, have generally been found to possess a low level of legal knowledge (Findlay, 2007b; McCann, 2006; Stewart, 1996b). For routine legal matters which require a standard response or continuation of the status quo, this may not present great difficulties. However, when principals are required to deal with non routine legal matters, their reliance on past experience or the advice of a fellow principal, may prove problematic. That is when the availability of accurate legal advice, particularly legal advice from a qualified legal advisor, together with a willingness to accept advice, is crucial.
Recent research has been conducted in Tasmania to investigate the impact of legal issues on school principals across the government, Catholic and independent school sectors (Trimble, 2017). It focused on the areas of principals’ legal literacy (including the legal areas they deal with, the accuracy of their legal knowledge, their confidence in their own understanding of the law, and their sources of legal support); the legal context they face; negative impacts of their legal dealings, as well as principals’ views on how their legal supports might be improved.
While some findings of the study accorded with previous Australian research (McCann, 2006; Stewart, 1996), several presented new perspectives on school principals’ dealings with legal issues.
The research design was based on an online survey of school principals, together with a series of semi-structured interviews with a range of people in the Tasmanian education sector, including principals, principal supervisors, senior system leaders, administrators and a government education lawyer. It was the first of its kind in Australia to begin to address the experiences of independent school principals together with their colleagues from other systems, as well as providing a more complete and rounded picture by including the views of school leaders as well as other informed perspectives.
In terms of principals’ legal knowledge, it was found from the survey responses that principals deal with a broad range of legal areas, but their legal involvement primarily focusses on matters involving the safety and security of students and their families, and staff. Based on legal questions in the survey, the participants’ formal legal knowledge was assessed to be low, with an average score of 53% correct answers.
Nonetheless, the data revealed considerable reliance by principals on their own legal understandings as well as the advice of colleagues. The evidence revealed that many Tasmanian school leaders have access to decision support from experienced specialist advisors and lawyers, although principals from less well resourced independent schools reported a lower level of legal support than other colleagues.
The interview data also revealed a series of legal consciousness ideas (beliefs about law) held by school leaders, especially concerning defences or shields to prosecution: If I do A, because of B, then that’s okay legally. In several instances those beliefs, like aspects of the principals’ legal knowledge, were not legally accurate.
The issue of negative impacts of dealing with legal issues has previously been addressed in education law research in terms of principals’ stress. This study also examined legal stress, but recognised other negative impacts as well, including the cost of legal advice, the impact of skewed risk management, and the time cost involved.
In terms of improving legal support for principals, not all participants felt change was needed. Many of the findings involved ways to improve principals’ preparation and development; interestingly, some participants also raised the legal training of preservice teachers as ultimately affecting the principal’s responsibilities to students and staff.
Overall, the study did not recommend wholesale changes to the current education law arrangements in Tasmania. This does not suggest there are no weaknesses in the system, but rather, that such recommendations need to be treated with caution, taking due account of the varied contexts within which schools operate. Recommendations included:
• principal preparation and development should focus on core areas that impact the safety and welfare of students and their families, and school staff such as duty of care (negligence); employment; discrimination; and family law (with particular emphasis on family law)
• principals with the most experience should be strongly encouraged to participate in legal CPD so that they maintain currency of their legal knowledge and are available to share their experiences with less-experienced colleagues, and
• arrangements should be put in place to facilitate reasonable access to a lawyer for all independent school principals, perhaps through a group legal service hosted by a professional association.
Dr Alison Trimble is a Research Assistant in the Faculty of Education, University of Tasmania.