Johnston Withers: Teachers and the Law

"Today's Teacher - Caught In The Crusher" By Graham Harbord and Greg Crafter

1. Where is the Teacher?
Changing social and political forces are bringing about increased pressure on the work of teachers. These forces are also creating a more complex and difficult legal environment for teachers to operate within.

Initially we entitled this paper "The teacher - caught in a pincer movement". We did this because we had identified two or three major forces which appeared to be attacking the traditional role and independence of the teacher. As we discussed these issues further, however, we found that there are at least five major forces which are together acting more as a "crusher", compressing the scope of action of the teaching profession. These 5 major forces are dramatically changing the fundamentals of the provision of public education in Australia. As we consider specific legal problems confronting teachers for the future, it is also necessary to understand the broader social forces which are impacting on the role of teachers generally.

The Australian education system has very much followed the English model. Whilst we no longer design our school buildings with a steep pitch on the roof or an ample fire place in each room we remain strongly influenced by major British policy thrusts . The most dramatic in the last two decades being the Thatcher Government's agenda for school reform. The conflict between the central government and local government (the principal education provider in the UK) gave rise to many of these policies in a tug for power over schools (this situation did not then exist in Australia) however, these policies have proven to be irresistible to the Australian States, and Federal Governments over the last decade.

At the risk of over simplifying the strategy it can be described as follows:-
1. Establish a vigorous debate about school standards and the lack of objective measurement of student achievement particularly in the areas of literacy and numeracy.

2. Mandate standardised testing of all students at set year levels.

3. Release to the public the results of the tests in the form of 'League Tables' in a way which allows the inference to be drawn that there are identified achieving schools and that there are non achieving schools.

4. Provide grant maintained status for those schools that choose to accept a much greater responsibility for the overall management and conduct of the business of running their own school.

5. Provide 'hire and fire' authority to the school.

6. Build the equity component into the grant to self managing schools in contrast to system wide equity policies and programs, in particular those relating to the staffing of schools.

7. The drift from so called under achieving schools to achieving schools follows. In addition there is a student movement from Government to non-Government schools.

8. Those families who are unable to pay the costs associated with seeking out alternative schooling or are not discerning with respect to educational opportunity, remain in schools which have in the main lost their social mix and community standing.

9. We contend that the result within a generation is an undereducated strata of students. This strata is very large in numbers.

10. Simultaneously youth wages are deregulated and often clothed in training programs. Adult wages and conditions are market place directed and the powers, role and relevance of the trade unions are greatly diminished.

11. It is possible to conclude that the continuum of education policies described provide an outcome not dissimilar to that of a century ago - a well educated minority and an undereducated relatively powerless majority.

If these policies in their entirety are translated into the Australian context then the lot of the Australian teacher will be mightily challenged. Many teachers will be assigned tasks that are impossible to fulfil and the very structure of teacher's work will be redefined. In addition the status of the teaching profession will be lowered and brought into conflict with the communities they serve.

Australia's post 1970's policies aimed at universal education opportunity will simply become a dream.

A quote from the Senate Report into the teaching profession in Australia entitled "A Class Act" published in March 1998 summarises the feeling of many, if not most, teachers today:-

"The first fifteen years of my teaching career I was able, through my professional associations, my Union and my involvement in school based committees, to have a positive effect on the level and standard of education I have been able to offer my students or at least I feel as if that were the case. In the last few years I feel as if I have effectively been disenfranchised from the decision making processes at all levels." (at page 29).

The Senate Report concluded that the professional status of teachers in Australia is declining. The report stated that there was a low value placed on teaching in Australia today. It referred to dominant policies and social forces such as economic rationalism as devaluing the role of teachers. Work (such as teaching) that cannot be easily counted and measured in monetary terms is perceived as having a lesser value than other work. In addition, the majority of teachers are women and the teaching profession could be said to suffer from the low status accorded to the work of women in our society. Children also are given a low status in our society and those professions which work with children in general are not accorded the same value as other professions.

Consider these facts:-
• Teacher's wages have fallen by approximately 25% against average weekly earnings and 21% against the Consumer Price Index in the last 20 years. ("A Class Act" supra, page 32)

• A career in teaching becomes more unattractive the longer you remain in it, in terms of salary comparisons with other professions. The salary of teachers generally peaks after only 10 years in the profession ie at about age 30. ("A Class Act" supra, page 112-115)

• The ratio of women in the teaching profession compared to men is 64.4%.

2. The Five Forces
There are at least five main social and political forces or pressures acting on the teacher today. These are:-
1. The Federal and State Governments.
2. The school as employer.
3. The students.
4. The parents.
5. The community.

Some of the key issues arising out of the increased pressure from these forces are:-
• Decision making about key aspects of the teaching profession is becoming more remote, in particular, with the Federal Government seeking to intervene on curriculum matters such as literacy and numeracy.

• Reduced Government funding to schools, meaning that schools have to rely more on funds from their local community.

• Casualisation of the teaching profession.

• The increasing trend to use fixed term contracts for teachers.

• The breakdown of centralised employment secured by Awards and Agreements, based on consultation and established patterns of practice.

• The move towards school based hiring and firing.

• Non-merit based appointments.

• Unfair Dismissals.

• Localised salary structures.

• Partnerships 21 - the attempt to make school councils more responsible for a wider range of matters.

• The exploitation of new teachers, ie, giving them a fixed term contract and the most difficult class, to see whether they shape up or not.

• Downsizing of curriculum development, behaviour support units and special needs programs.

• The impact of teacher shortages, and in particular local bargaining and deals which drain more teachers away from the Government sector.

• The closure of schools.

In combination, these five forces i.e. the Governments, the school as employer, students, parents and the community, are placing the teacher in a more complex and stressful legal environment.

3. The Federal and State
Governments Government plays a dominant role in relation to the teaching profession, more intrusive than in relation to any other profession. State Governments act as employers for the largest part of the education sector. State Governments also act as gate keepers into the profession via the respective Education Acts and through registration requirements.

In the past the Federal Government has provided substantial funding to the States for education but has not had a significant role in determining the role of teachers. The Federal Government has changed this dramatically over the past few years, adopting many of the education policies generally associated with Margaret Thatcher. One of the results of the recent interventions by the Federal Government has been the move towards standardised testing. A full discussion of this matter is beyond the scope of this paper. Moreover however one outcome of standardised testing in relation to the teacher is an increasing tendency of parents, the community and the media to blame the teacher and the school for poor results. Teachers may be blamed for low scores in literacy, numeracy or indeed the failure of a student to pass an exam. We are just now seeing an emerging trend of legal proceedings being brought against teachers, accusing them of negligence when a student does not pass an exam. Such actions are becoming increasingly common overseas and it is simply a matter of time before we see similar law suits in Australia.

A major policy direction of the Federal Government has been towards the development of the national competition policy. This has been implemented, not just in areas such as trade and commerce, but within the public service. One feature of such a policy is the application of economic criteria to the delivery of human services to the community. Unfortunately, in applying a rigid measuring stick to outcomes of teaching and indeed in seeking to use dollars as one of the key measuring sticks, the creativity and professional skills of the teacher are left out of the equation all together. There is now decreasing scope for the individual teacher to adapt curriculum to the particular needs of their students. Government, in particular the Federal Government, has been seeking both to gain more control over curriculum and then out sourcing the task of developing curriculum. The individual teacher therefore has less control over the curriculum but is more likely to be blamed for the failure of students to measure up. In particular teachers in the most 'difficult' schools are now more exposed then ever to such actions.

The Governments, through the Education Acts, have legislated that education shall be compulsory for all students up to a certain age. There is therefore an obligation on the Government to provide an appropriate education and ensure that young people do attend schools. Moreover the State has a legal obligation to ensure that students from different social classes, abilities, ethnicity, and geographic location are not discriminated against in the provision of that education.

We question whether in the future, with the increase of litigation against teachers, Governments themselves might be more exposed to legal action as a result of their failure to meet better education standards. This could come about through lack of appropriate funding, increased class sizes, lack of suitable facilities and perhaps lack of a safe or appropriate work environment.

4. The School as Employer
Through both their education policies and amendments to the industrial relations system, both Federal and State Governments are placing more obligations and responsibilities on the school as employer. As a result, this is creating a far more insecure employment environment for the teacher.

School based hiring and firing will be an increasing trend in the future. This is likely to severely reduce the career opportunities of teachers. It may also lead to more nepotism and the appointment of teachers on the basis of criteria other then their actual teaching skills.

There is likely to be more localised salary structures and workplace agreements based on individual schools. A result of this is an increasing disparity between those schools situated in the wealthy areas and those in the poorer areas.

There is an increasing trend to providing fixed term contracts for teachers. This has been endemic in the TAFE sector where in some cases employees have been on 12 month contracts for 15 years or more. Suddenly they are told at the end of their latest contract that their job will be advertised and there is no guarantee that they will get appointed for the next 12 months.

This trend is to fixed term contracts coupled with an increase in the casualisation of the teaching profession. Teachers may be hired for the week or a day. The resulting job insecurity places far more teachers at risk. For instance we know of cases where teachers have been threatened by students in the classroom but have been too afraid to inform the principal, for fear that they themselves will be blamed and will not be offered a further contract.

There is an increasing trend in schools to exploit new teachers. Increasingly a teacher's introduction to the profession is by way of a 3 month or 6 month contract. They are given the most difficult class. If they do not shape up then they are not offered any further work. The influence of budgetary factors appear to dominate staffing policies that result in the employment of so called 'cheaper' teachers.

Casualisation of the teaching workforce in addition opens the space for political agendas to be realised with appointments of more pliable educators.

Schools are being forced to rely more on external funding sources to purchase facilities which are an integral part of the work of teachers. The consequence of reduced Government funding to public schools is that school buildings and equipment are not properly maintained or replaced. This can lead to unsafe work environments and unsafe facilities for the students, such as furniture collapsing, electrical wiring becoming exposed, gymnasium equipment being faulty etc. The school itself may become more liable to teachers under the relevant occupational health and safety legislation. Similarly, teachers and schools could become more exposed to negligence actions by students and parents, as a result of a poorly built or maintained physical environment.

5. The Students
There is a much greater diversity these days in relation to the domestic arrangements of students. A far greater number are now not living with both of their natural parents. Teachers are having to become much more aware of and responsive to the domestic situations of the students they are teaching.

The nature of classes have changed significantly over recent years, with a greater diversity of students from various backgrounds including students with disabilities. There is a much heavier onus on the teacher to properly deal with this diversity with a concurrent decline in provision of the necessary support structures. Failure to properly teach all students can lead to legal proceedings on the base of racial discrimination or disability discrimination.

Students are much more aware of having legal rights themselves. Sometimes students can use this as a threat against the teacher. Teachers are much more exposed now to potential actions by students for sexual harassment or assault.

Teachers themselves are more at risk of being subject to violence and assault by students in the classroom. They have had to become much more familiar with aspects of the criminal law and what action they can or cannot take in their own defence.

6. The Parents
An effect of the decreasing status of teachers as a profession is that they are more likely to be challenged by parents in relation to the adequacy of their teaching. We have already mentioned that, overseas in particular, parents are becoming more proactive in initiating legal action against teachers for the failure of their children to pass exams. It is likely that teachers may become much more exposed to being sued for professional negligence in the future.

Teachers have much greater responsibilities now in relation to various extra-curricular activities. Such activities include school camps and excursions outside of school hours. Often these are on a much more 'adventurous' basis than before. As a result if accidents occur, teachers are more likely to be sued by parents for any personal injuries and damages arising from that accident. This can include such matters as students being exposed to sunburn for instance.

More and more, schools are having to provide clear strict policies which will guide the behaviour of teachers and students and which in turn can be used as a defence against accusations by parents.

With a reduction in funding of welfare by Governments, teachers and schools are becoming increasingly the initial and sometimes the only contact point for parents in distress. This is a particular feature of those schools whose students are drawn from ethnic groups with little knowledge of the English language and little understanding of those Government services which they may be able to access. Teachers themselves are often having to counsel and provide basic legal advice to parents who are in a domestic crisis.

7. The Community
There are increasing pressures from the community on the education system and on teachers. This is often reflected in increased media attacks on teachers and schools in areas which do not achieve the results of the 'good' schools.

Increasingly, the community is wanting the Governments to set up league tables which rank schools according to very narrow criteria such as SSABSA results. The question that arises as to what are the rights of schools, teachers and indeed students to privacy in relation to such information.

The local school community is being forced through lack of Government funding to take on more of the funding role of schools. In addition school councils are now expected to take on more complex tasks such as placing building works or contracts for computers out to tender. They are also required to have a much better knowledge of accounting and financial systems. Again, this is increasing the gap between the richer and poorer communities. Those schools based in a community where surplus money is simply not available to be donated to the school and where the pool of expertise for what may be required in running a school council is simply not available, fall further and further behind in the standard of education that can be offered to students of those schools. Again, this will have a dramatic impact on the role of teachers in those schools and their ability to perform their work. At the end of the day, the teacher will bear the brunt of the blame.

8. Conclusion
The result of teachers being positioned in this 'crusher' of five separate forces in our society is that a new teaching profession is emerging which is more vulnerable to and operating in a more complex and stressful legal environment than has ever been the case in the past. Attached to this paper is an Appendix for example, setting out some of the legislation which now affects the role of the teachers in South Australia.

It is submitted that teachers, and their unions must be supported and advised by progressive elements of the legal profession in the face of these developments.

The challenge for teachers and their unions is to resist and turn around the Thatcher like policy agenda which is dominating the direction of education decision making and continue to drive public opinion in Australia today. Failure to do this will leave teachers more vulnerable to legal action arising from a range of social pressures.

We would like to conclude on a positive note and reaffirm the fundamental importance of educational opportunity for a fair, just aand prosperous society with the following quote from Edwina Kennedy, the Chair of the National Children's Bureau in the UK:-

"Our best hope for the future is education. It has changed my life and I still get a lump in my throat when I attend diploma or graduation ceremonies. However, still too few people from disadvantaged backgrounds are going onto college or university.

Education has always been a source of social vitality and the more people we can include in the community of learning, whether in further or higher education, the greater the benefits to us all. The very process involves interaction between people; it is the means by which the values and wisdom of a society are shared and transmitted across generations. Education strengthens the ties that bind people, takes the fear out of difference and encourages tolerance. It helps people see what makes the world tick and the ways in which they, individually and together, can make a difference."

APPENDIX
Legislation affecting Teachers in South Australia
• Children's Protection Act (SA) (1993)
• Competition Policy Reform (SA) Act (1996)
• Competition Policy Reform Act (Cth) (1995)
• Criminal Law Consolidation Act (SA)
• Disability Discrimination Act (Cth) (1992)
• Equal Opportunity Act (SA) (1984)
• Freedom of Information Act (SA)
• Industrial and Employee Relations Act (SA) (1994)
• Occupational Health, Safety and Welfare Act (SA) (1986)
• Public Finance Act (SA) (1987)
• Public Sector Management Act (SA) (1995)
• Racial Discrimination Act (Cth) (1975)
• Senior Secondary Assessment Board of SA Act (1983)
• Sex Discrimination Act (Cth) (1984)
• Summary Offences Act (SA) (1953)
• Trade Practices Act (Cth) (1974)
• Workplace Relations Act (Cth) (1996)
• Workers Rehabilitation and Compensation Act (SA) (1986)

In addition Australia is a party to the following international conventions which have implications for the teaching profession:
• The International Covenant on Economic Social and Cultural Rights;
• The Convention on the Rights of the Child;
• The International Covenant on Civil and Political Rights;
• The International Declaration on the Rights of the Disabled Person.