educators and the law: implications for the professional development of school administrators and...

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Educators and the Law: implications forthe professional development of schooladministrators and teachersDoug Stewart a & Paul McCann ba Queensland University of Technology , Brisbane, Australiab Catholic Education Office , Brisbane, AustraliaPublished online: 19 Dec 2006.

To cite this article: Doug Stewart & Paul McCann (1999) Educators and the Law: implications for theprofessional development of school administrators and teachers, Journal of In-Service Education, 25:1,135-150, DOI: 10.1080/13674589900200074

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Educators and the Law: implications for the professional development of schooladministrators and teachers

DOUG STEWARTQueensland University of Technology, Brisbane, AustraliaPAUL McCANNCatholic Education Office, Brisbane, Australia

ABSTRACT In recent years school administrators and classroompractitioners have had to provide an increasing range of specialistservices to their school communities. Such services require sophisticatedknowledge, understanding and skills; all being provided against abackdrop of heightened accountability being demanded of professionalsgenerally. In this regard, recent research shows that school communitiesexpect their administrators and teachers to be experts in all mattersaffecting the school from the moment of their first appointment. Themanagement of the many legal matters that impact on school policies andpractices, is one area where educators are expected to have, from theoutset, specialist knowledge and skills. It is questionable, however,whether from their pre-or in-service education and training, thateducators are professionally equipped to manage the increasing range oflegal matters facing schools. This article examines the implications for theprofessional development of educators that arise out of the growingimpact that the law has on school policies and practices.

Introduction

In recent years school administrators have had to adjust to newparadigms of leadership and management, and classroom practitionershave had to adjust to an increasingly changing curriculum and pedagogy.This transformation has been driven by a rapidly changing world andsociety while shifts in government policies resulting in devolution ofdecision-making and administration bring many management andleadership practices closer to the local level. A major consequence ofthese changes has been the requirement for school administrators and

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teachers to increase their knowledge, skills and understandings across anever-increasing range of specialist concerns. As Couzens & Couzens (1995,pp. 11-12) have so aptly commented:

Survival in an increasingly complex, changing and globalenvironment, sets us on a never ending learning curve as weconfront new situations and problems and simply have to handlethem well to remain viable.

Moreover, these developments have occurred against a backdrop ofincreasing accountability being demanded of those in the professionsincluding those in education. In this regard government intervention ineducation has become apparent, with demands being placed on the schoolsystem to respond more directly to a changing economy and economicstructure, and the need for growth and competitiveness. This interventionhas been experienced in the secondary school for some time, andparticularly in the primary school with such issues as cyclic testing andbench marking (McGraw, 1995). At times, this changing environment, withits range of conflicting expectations, has placed additional stress onschool administrators. There is, for example, the paradox of providing aholistic education geared to the needs and abilities, as well as the care andconcern of the individual child or student while, at the same time, strivingto meet the demands of a perceived narrow conceptualisation of theeducation process (O’Donoghue et al, 1994).

A further consequence of societal change is the necessity foreducators (i.e. the school administrator and classroom practitioner) toprovide an increasing range of services requiring specialist knowledge.This is evident, for example, in the management of those aspects of thelegal system which impact on school policies and practices. In this regard,there has been, during the past decade or so, considerable growth inStatute and Administrative Law, as well as the Common Law and equityissues associated with such matters as children’s rights, that impact onschools.

This article explores a number of these concerns and concludes thatin order to meet the demands created by having to manage those areas oflaw that impact on school policies and procedures, school leaders andteachers need to engage more positively in preventive legal riskmanagement. It is argued that to implement such policies, schoolprincipals not only require a sound knowledge of theories associated withleadership and change they also need a knowledge of the law they areexpected to manage. Moreover, in view of the rapid and constant nature ofthe changes affecting schools, it is posited that the knowledge needed byadministrators and classroom practitioners necessitates a new emphasisbeing accorded professional training at both pre- and in-service stages.The article begins with an overview of leadership theories then moves to abrief discussion of professional development, and concludes with aconsideration of present and emergent areas of law influencing schools.

DOUG STEWART & PAUL MCCANN

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Changes in Perspectives of Leadership

Early theories of leadership centred around the model of scientificmanagement propounded by Taylor (1911). Since the early part of thepresent century, considerable attention has been devoted to identifyingthe traits of ‘Great Man’ who were perceived as model leaders. Suchstudies, however, gave way in the late 1960s and 1970s to a focus onvarious styles of leadership. These theories sought to determine whetherleaders were person or task oriented (Fiedler et al, 1977).

In more recent times, however, leadership has been examined from atransformational perspective (Hallinger, 1992). This perspective, which iscommonly associated with the work of Burns (1978), has been taken upmore recently by a number of researchers (see, for example, Leithwood &Jantzi, 1990; Leithwood & Steinbach, 1993), It is interesting to note, too,that Sergiovanni (l990, 1992), Senge (1994), and Duignan & Bhindi (1997)have expanded on this perspective of leadership by adding ethical andmoral dimensions to its interpretation. Such perspectives have beensummarised by McCann (1996) as follows:x The leader is a person of vision, and one who can communicate that

vision to others involved in the organisation. Through dialogue thevision is transformed into a shared understanding of the purpose andmission of the organisation by the stakeholders involved. It is a visionwhich is in harmony with the beliefs, values, cultural and symbolicaspects underpinning the organisation, as well as the cultural normsand community standards which the leader serves.

x The idea of density of leadership is important in this perspective whichespouses collegiality – as opposed to congeniality, where persons mayinteract and operate from a norm base out of kilter with theorganisation and which may operate to its detriment. The perspectivealso posits a belief in shared responsibility, collaboration, consultation,discernment and shared decision making. It is in essence a perspectivewhere the gifts and abilities of all are nurtured and respected.Importantly, the leader is not seen as an authoritative figure and poweris based on acquired status – that which evolves from the process ofworking with others in the organisation as it strives to achieve its goals.It is not based on an ascribed status – that which relates to title andposition within the hierarchical structure of an organisation. Thus,power is seen as power with, power to and not power over.

x Employees’ places within the organisation are based on a covenantalarrangement where the rights of all are respected, and where sharedcommitment overrides a supervisory model based on psychologicalrewards, bureaucratic regulation and legal reprisals.

x Leadership is bound up with the notion of organisations being learningcommunities, where the professional and personal development of


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those in the organisation are carefully planned to foster theorganisation’s ability to meet its purpose, and where learning is seen asa life long process (Davis, 1996; MacNeill, 1996).

This perspective of leadership has a number of implications for theprofessional development of those involved in the processes of education.The first of these concerns the personal and professional development ofschool and system administrators. The perspective, as outlined here, willchallenge many to examine carefully the principles, beliefs and values onwhich their personal philosophy of education and leadership is based. Formany this will require a transformation. Covey (1989), and Kuczmarski &Kuczmarski (1995) see this development as an inside out transformationwith the consequent creation of an interdependent leader; one verydifferent to the popularly perceived ‘strong’ leader. This leader will alsoneed to be in open communication with others to gain a shared vision.One might legitimately ask whose vision or paradigm of the world, or whatvision and paradigm of the world is the driving force behind sharedvision? Some argue, (e.g. Angus, 1989) that leaders are themselves theproduct of a social structure of society that is inequitable and that they, inturn, perpetuate that inequitable structure by maintaining that vision andparadigm of the world. While this may be true to some extent, there areother forces operating in society which challenge the status quoparticularly in relation to individual rights.

Noted researcher and commentator, Hugh Mackay (1997) maintainsthat in order to withstand the vast changes that are occurring incontemporary Australia, three main coping mechanisms have emergedThe first is one of strict regulation, in which we restructure our sense ofsecurity by codifying everything and imposing ever more rules andregulations. He sees the second coping mechanism as an “increasinglyintense escapism” and concludes that the third and the only healthycoping mechanism is the return to the instincts of the herd. In this latterprocess, the inherent worth of each and every individual is given duerecognition and acceptance.

Such a philosophy is central to the concept of professionaldevelopment within contemporary learning organisations where theleader is no longer perceived as the only person in the organisation whopossesses all the wisdom and knowledge. In this regard it is instructive toheed the comments of Chaleff (1995) who maintains that followers in anorganisation need not be weak or passive, but that they permit leaders toexist and give them strength. Chaleff (1995) also notes that while leadershave ultimate authority and responsibility most people in an organisationare leaders at some stage. It is noted, furthermore, that in an informationage an entirely different relationship between leaders and followers isneeded, and that in relation to employment a new social contract is beingforged. This contract is one in which work is no longer guaranteed; onewhere paternalism – or the perception that leaders and organisations willtake care of us – is gone. Chaleff argues that the new social contract willneed to be based on followers in an organisation being sufficiently


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courageous so as to: (i) assume responsibility which will enable them tocreate opportunities to fulfil their potential and to maximise their value tothe organisation. They initiate value-based action to improve theorganisation’s external activities and its internal processes; (ii) serve insuch ways that will relieve leaders of their burdens and complement theirstrengths; (iii) challenge the actions of leaders and the organisation; and(iv) participate in the transformation processes needed to bring aboutchanges in an organisation.

It is evident from Chaleff’s arguments that structures aimed atdeveloping learning communities need to be put in place so as to provideopportunities at all levels within organisations to gather and shareinformation, understandings and knowledge. Such organisations arelearning organisations which have been described by Senge (1994) in adeceptively simple statement, as organisations that are continuallyexpanding their capacity to create their future. In a definition whicheducators will closely identify with, the Karpin Report (1995) notes that alearning organisation facilitates the learning of all its members andcontinually transforms itself. Regardless of definition, Holly & Southworth(1993, pp. 3-4) maintain that schools as learning organisations possess thefollowing characteristics:

x there is a focus on students and their learning;x encouragement is given to individual teachers to be learners;x encouragement is given to collaborative learning among staff;x the school is perceived as a learning institution;x the head of the school is the head learner.Bound up with this perspective of leadership in a learning organisation, isthe expectation that organisations will clarify their purpose, establishtheir shared vision and mission, and set achievable goals in theirendeavours to reach that vision. The professional development of those inthe organisation should, therefore, be bound up with these goals. Couzens& Couzens (1995) note in this regard that building a learning organisationentails focusing people on goals to be reached and continuousimprovement in reaching these goals. Thus, there is an established linkbetween the vision, mission and purpose of an organisation and theprofessional development of those within it. Such developments also pointto the shared responsibility of the system and the local administration toprovide the necessary professional development geared to meet the needsof those at the coal face. In the school setting this relates to the classroompractitioner and the local school administrator; the principal orheadmaster.

Some Influences on Schools’ Legal Responsibilities in Relation to Changes in Society

The school, like all social institutions, has always been subject to the law.In recent years, however, with the increased awareness of their rights,


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people have taken steps to assert these in relation to educational andschool matters. Besides this, as noted previously, there has beenlegislative clarification of rights in a number of areas which, as aconsequence, take educators’ legal obligations to students and others waybeyond the earlier – but now largely discredited – responsibilitiesassociated with the doctrine of in loco parentis. Thus, for example, thelegal duty of care owed to students has expanded to any situation where aproximate relationship of educator/student exists. In a number of veryrecent cases the courts have indicated this responsibility can extend wellbeyond the school boundary and to persons not directly involved in theeducation process.

Largely as a consequence of the expansion of the applicability ofeducators’ legal duty of care, some educational authorities have spelledout policy and practice requirements in written form. This may be thecase, for example, where specifications related to various sports andoutdoor activities are clearly enunciated in written documents. Suchdocuments may well provide the detailed evidence needed to rebut a casewhere appropriate policies and practices have not been complied with bythe teacher or educational institution. These examples illustrate the needfor teachers and educational administrators to keep abreast ofdevelopments emanating from decisions reached in common law cases, aswell as from regulations and specifications imposed by employingauthorities or legislative fiat.

In a number of instances Australian parliaments have by legislativemeasures enhanced the common law and thus extended individual andorganisational responsibilities and liabilities. This can be seen, forexample, in the enactment of workplace health and safety legislationwhere much of what is required under the various State statutes inrelation to setting appropriate duty of care standards has beenemphasised.

A similar situation can be seen with the application of those judicialreview proceedings which assist in the reinforcement and extension ofprocesses of natural justice to areas such as appointment and appraisal ofteachers, as well as issues involving questions of due process in thesuspension and expulsion of students. Furthermore, the increased demandto respect individual rights has resulted in the passage ofanti-discrimination legislation including provisions to protect againstsexual harassment. Such changes have had implications for, amongothers, the selection, and promotion of staff, enrolment policies in schoolsand suspension and expulsion procedures.

Traditional Model of Professional Development and Succession Planning

The traditional model of professional development and successionplanning was for teachers to undergo pre-service training and learn other


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skills while on the job – usually through one-off in-service days. Many ofthe programmes offered on these days were delivered with lecture stylelearning and little attention was given to adult learning strategies.Moreover, it was not unusual for such courses to be determined on arather casual basis with little attention being devoted to totalorganisational or individual needs. It was evident, furthermore, that thoseaspiring to leadership roles in the organisation had little preparation,limited induction and learned ‘on the run’ through the development ofskills and expertise gained from experience. In this regard Kowalski &Reitzug (1993) have noted, from their research into the relationshipbetween theoretical knowledge and practical experience, that principalsrefine their professional knowledge as they confront the many events,problems and crises which arise in the daily life of the school.

Such processes become ever more important in an information age inwhich principals and classroom practitioners alike are required todemonstrate a knowledge of a growing range of specialist concerns whichthey are expected to service (Sarason, 1982; Bookbinder, 1992; Daresh &Playko, 1992). Moreover, the place of experience in professionaldevelopment has been recognised by De Pree (1989) and Logan (1994) intheir analyses of leadership in schools. The traditional model ofprofessional development has been likened to a situation where membersare encouraged to ‘climb organisational ladders’ and, in many instances,professional and other experiences gained outside the organisation werefrowned upon and regarded as peripheral.

Many of these practices are now beginning to change and thedemands of the leadership requirements previously outlined, togetherwith the increased complexity and demands of contemporary society aredriving these changes. It is evident, moreover, that in many instancespeople have climbed the ladder to find themselves on the roof of adifferent house. The world has changed, a new paradigm is required,different demands and expectations now exist, and the older perceptionsof leadership are no longer appropriate. There is, now, general awarenessthat professional development takes on many different perspectives and amore multi-dimensional approach is required in terms of content anddelivery (Brady, 1994; Logan, 1994; McCulla, 1994).

A Suggested Model for Professional Development

A suggested multi-dimensional model for understanding the place ofprofessional development in contemporary organisations is provided atFigure 1. While it is not claimed that the model depicts anything that isstartlingly new it does posit a conceptual framework from whichprofessional development can be readily examined. The model has ametaphorical concept of a building around which four main pillars providethe basis of holistic development. Referring to our perspective of


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leadership and our belief that leadership is an essential element to bedeveloped in an organisation, the objective underpinning the model is toachieve a learning environment – one that provides well balancedmembers at all levels. To accomplish this, opportunities need to beprovided to develop individuals’ personal and interpersonal skills, as wellas their professional expertise – their ability to manage and organise theirlives. It is important, too, that the organisation’s members possess thetechnical abilities required in an increasingly technological andinformation hungry world. Most importantly for an organisation’s health,members need to have a sound knowledge of the organisation that theywork for including the cultural and symbolic aspects which underpin theorganisation and its operation.

People within organisations have their personal needs based on theirpast experiences, understandings and studies. These needs must berecognised and a variety, or what we call a scaffold of courses, workshopsand experiences need to be made available to the participants. The modelprovided at Figure 1 illustrates the complexity surrounding professionaldevelopment although there is no attempt to name all of the professionaldevelopment areas to be covered. This will, of course, depend on thechanging roles of teachers and administrators, against the backdrop of thedynamic environment in which schools now find themselves. It must benoted, too, that all the learning needs of an organisation do not necessarilyhave to be provided by the organisation itself. Participants may be able totap into professional development being offered in outside agencies suchas tertiary institutions, independent organisations, professional bodiesand the like. In fact, this model lends itself to the development ofinterconnectedness with many service providers. The only requirementwhich needs to be taken into account here is that funds will have to beprovided at the local level for members to avail themselves of theflexibility envisaged. In terms of succession planning members canrespond to emerging needs as they move within the scaffold and be betterprepared for the changing demands being placed upon them. This isparticularly the case for the school administrator, especially the schoolprincipal, who often finds herself/himself faced with what appears to be anenormous task on initial appointment, having to respond to manydemands without the previous experiences or theoretical knowledgeneeded to manage them. This situation is exacerbated in the case of theprincipal in a small isolated rural community who in many instances has ateaching load, as well as all the administrative, management andleadership functions to perform.


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Figure 1. Multi-dimensional matrix of professional development.

Leadership, Professional Development and School Law

In order to effectively manage schools in environments of complexity,specialisation and rapid change, it is necessary for the professionalknowledge of principals and teachers to be based on a sound grasp oftheories associated with leadership, management and change, as well as arepertoire of skills acquired from practical school-based experiences.However, given the range of principals’ and teachers’ responsibilities, thelevel of knowledge required for the day-to-day operations of schools isformidable Nonetheless, recent research by Thomas & Hornsey (1991) andHewitson et al, (1992) has clearly shown that school communities expectprincipals and, to a lesser extent teachers – from the moment of their firstappointment – to be experts on all matters that are brought to bear ontheir schools. However, while such expectations may exist there isconsiderable evidence that in a number of respects the training,qualifications and experience of school staff may not adequately equipthem for the wide and increasing range of professional responsibilitiesbeing demanded of them.

The considerable and growing impact of the law on school policiesand practices provides a very clear example of just one area where claimsconcerning the adequacy of the professional knowledge needed byadministrators and teachers to fulfil their responsibilities have been made.Stewart (1996, Figure 2) has provided a conceptual model of therelationship that exists between the law, specifically parliamentarylegislation and decisions of various legal tribunals on the one hand, andschool policies and practices on the other. It is worth noting, however,that despite this close relationship, as well as claims by other researchers


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(see, for example, Sungaila & Swafford, 1987; Williams, 1995) thateducation in Australia has become legalised to such an extent that itdrives massive change to school mission statements, policies andpractices, recent research has shown that Australian principals remainwoefully uninformed and ill-informed about basic legal matters affectingschool operations (Stewart, 1996).

It has also been argued that all too often the professionaldevelopment courses undertaken by principals in relation to legal mattershas resulted in no real improvement in their legal knowledge or in themanagement of legal matters in their schools (Stewart, 1996). It is evidentfrom this research, however, that legally-related professional developmentcourses are generally successful when principals or classroom teachersare directly required to establish school policies and implement schoolpractices in order to facilitate a statutory provision or a common lawdecision. Such is the case, for example, where principals have to establishmechanisms to meet workplace health and safety requirements or imposebuildings and grounds rosters to meet their common law duty of careresponsibilities.


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Figure 2. A conceptual model of the relationship between the legal system andschool administration and management.In order to meet the demands placed on schools by both the growing bodyof legislation and common law matters, the commitment of all of a school’sstaff is required. It is argued here that this commitment is most effectivelyrealised when both administrative and teaching staff see their school interms of a learning organisation; an organisation in which professionaldevelopment is perceived in the holistic terms and sentiments enunciatedearlier in this article.

While many legal and educational practitioners are no doubt aware ofthe extent of law’s influence on schools it is worth reiterating some of themajor developments so as to more readily ensure that the professionaldevelopment needs of school staff are not underestimated.

It is now well recognised not only in Australia, but in the UnitedKingdom, the United States, and elsewhere, that schools have a clearlyestablished duty of care for the physical welfare of their students. Thisduty extends to periods before and after school, as well as to locationsaway from school grounds such as might be visited by a class on anofficial school excursion. The duty has also been held to cover students,and others, outside of the grounds, for example students on their way toor going home from school.

In Australia, what is clearly established is that when there is someschool/student relationship in existence and school staff know, or ought to


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know, that there are potentially hazardous situations on or off schoolgrounds a duty of care will most likely be held to exist. What is moreproblematic is the extent of the duty in terms of the time and distanceaway from the school when a duty might be held.

Of considerable concern to educators is the possibility of aneducational malpractice action being successfully brought by a student.Thus, it is being increasingly argued that a failure to teach adequately orto give misinformation in such matters as career choice might create thesituation where a teacher or school administrator or even a school systemis held to be at fault (see, for example: Ramsay & Shorten, 1996, pp.292-326; Robinson, 1998, pp. 95-114).

In relation to school management it is very important for schooladministrators, as well as classroom practitioners to be aware of theemergence of a whole range of students’ rights issues. Australia does nothave a Bill of Rights. Nonetheless, an increasing number of actions havebeen successfully concluded by students who have claimed that rightsaccorded them under legislative provisions have been ignored in someway and that this has caused them some detriment. It is clearly evident,for example, that schools which fail to protect students from physicalviolence suffered by them because of the student’s personal sexualpreference are likely to be in breach of anti discrimination legislation.Similarly, schools which ignore the due process rights of students inmatters such as suspension and expulsion and strip searching will be seento have breached a student’s rights. Other matters which are associatedwith students’ rights including access to school subjects, studentappearance, touching, and students with special needs, will all requireunique management skills and necessitate sound knowledge of the areas oflaw involved. Such an awareness is now the business of the whole schoolas a learning community.

Conclusions

Stewart (1997) has argued that the increasing involvement of the schoolswith the law necessitates urgent review of legal risk management policiesand practices. It is not usual nor necessary for school principals orteaching staff to hold law degrees. They do, however, need to besufficiently legally literate to be able to recognise when a legal problem isdeveloping in their school and how to go about correcting that problem. Itis in this context that a need for a knowledge of law appropriate to schoolsis fundamental to ensuring that both school administrators and classroompractitioners adopt preventive legal risk management strategies. Suchstrategies are future-oriented and are focused on sound management andadministrative planning, as well as appropriate professional developmentthroughout one’s career.

In this article it has been argued that the complexity of contemporarysocieties requires a sea change in educators’ attitudes to leadership and


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professional development. Further, it was noted that in one area inparticular – the influence of the law on school policies and practices – arevitalised construction of professional development, whether at pre orin-service levels, for school administrators and classroom practitioners isa present necessity. Moreover, it is contended that research and writingon school law is comfortably situated in a theoretical framework reflectingholistic leadership and professional development paradigms. The conceptof schools as learning organisations provides an exciting launching pad tothe scaffold of professional development and succession training.

Correspondence

Dr Doug Stewart, School of Professional Studies, Queensland University ofTechnology, Kelvin Grove Campus, Red Hill Post Office, Red Hill, Brisbane,Queensland 4001, Australia; Paul McCann, Catholic Education Office, GPOBox 1200, Brisbane, Queensland 4000, Australia.

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