1.1 Introduction
We live in a dangerous time for teachers. The American mentality of ‘If it moves, sue it’ has been imported along with fast food and videos. Australia is now the second most litigious country in the world. Allowing for population differences, it now ranks behind only the United States. Teachers, principals and schools are now legal targets in a way that was unthinkable two decades ago. (Tronc 1996, p. 3)
Dr. Keith Tronc, one of the prominent pioneers in this relatively new area of education law research, presaged us some two decades ago about this growing phenomenon in Australia. Tronc also warns us about bush-lawyer parents who like to, often erroneously, claim their rights against a teacher or school because their child is not receiving the treatment that they are seeking (Tronc 1996; Tronc and Sleigh 1989). He also expresses concern about bush-lawyer children who stand up in classrooms and confidently state to the teacher in authority what they think they can and cannot do or say. The prevalence of this behaviour is, according to Tronc, on the increase (Tronc 1996).
There is no doubt that there is more discussion about legal matters in schools now than there was twenty years ago. It is our contention that more teachers and principals in schools are increasingly aware that their everyday activities and decisions can be the subject of a legal claim or action being brought against them by a disgruntled student and/or parent. Birch and Richter (1990, as cited in Teh 2014) observed a significant increase in cases reaching Australian courts. Our experience in engaging in conversations within a community of practice strongly suggests that many teachers are not aware of the legal protection that is afforded to them in carrying out their duties in the course of their employment. Furthermore, there are many in the teaching profession who are worried about possible legal redress being sought against them when, in fact, the law is on their side. This is not only in legal defences available to them, or in legal principles that place the liability on their employer, but moreover in the manner that judges in our Australian courts usually side with teachers and school authorities who are acting in the course of their undertakings with the best interests of the children in their care in mind (Tronc and Sleigh 1989).
It is from this premise that the authors suggest that school principals should have a sound working knowledge of the legal issues and principles that affect their daily operations as the leader in charge of managing their school community. Principals and teachers now work in increasingly uncertain and challenging environments involving complex legislative frameworks (Trimble et al. 2012). As the roles and responsibilities of principals and teachers change to meet new demands and capabilities, especially for dealing with safety and security issues, so too does the need for a sound knowledge of emerging legal issues in schools such as the impact of court orders, competing parental rights, and issues around children with disabilities; information confidentiality, records and the internet; accident and incident risk management. The legal matters that can be raised are multi-faceted and complex. These can vary from more simple cases of negligence to more complicated disputes of disability discrimination. They are numerous, costly, exhausting and potentially damaging to the reputation of the school irrespective of whether or not the plaintiff (aggrieved person) is successful.
It is becoming essential for educators to adapt, and acquire new knowledge and skills relating to child protection and aspects of criminal law, to the school management environment. Educators are being required to gain confidence and expertise in identifying possible legal problems before and as they arise based on their knowledge of various statutory, contractual and common law duties, especially the duty to take reasonable care, which underpin the educational process. They are being challenged on a daily basis to critically examine and evaluate the legal rights and obligations of various stakeholders, including students and parents, educators and administrators associated with the role of management within schools.
Consequently, there is a need for school staff, and in particular school principals, to have an appropriate level of legal literacy (Stewart and Knott 2002; Teh 2009). Stewart and Knott (2002) suggest that many principals have an inadequate level of knowledge and legal understanding because principals manage complex organisations and while they are usually time poor, they make decisions on the run and sometimes, due to competing interests, without the due care and diligence that is required. A survey of 253 public school principals in Western Australia found that the dichotomy created by decentralisation, in combination with increased external accountability, creates a perturbing dilemma for school principals who have the dual task of being instructional leaders and managers (Trimmer 2011). As instructional leaders principals have to ensure that students attain achievement standards. Simultaneously they must lead and manage the school, including compliance with requirements imposed through legislation and policy, for both educational and business aspects of management.
1.2 Education Law Principles
These requirements on educators to be knowledgeable of legal issues are not confined to Australia. Many books, journal articles, specific publications, websites and even annual conferences are being focused on education law globally. Publications by Butler and Mathews (2007), Jackson and Varnham (2007), Ramsay and Shorten (1996), Stewart and Knott (2002), Tronc (1996) and Tronc and Sleigh (1989) are being used by both educational and legal practitioners to respond to legal questions related to school law. In addition, there are journals on education and the law published in Australia, the United Kingdom, Canada, and Europe that specialise in educational law matters in their various jurisdictions (e.g. Australia and New Zealand Education Law Association (ANZELA) journal; Hopkins 2008; Knott 2010; Mawdsley and Cumming 2008; Weegen 2013), and other professional publications that provide advice to school principals on their legal responsibilities in relation to managing their educational community.
However, the predominant focus with these publications is that they espouse the position of legal findings based on either common law or from legislation. That is, they explain the law or legal principles that schools and other educational authorities need to follow to be legally compliant, and in doing so, avoid having an actionable matter brought against them. However, they do not address the question of the legal knowledge required by principals and other school leaders to be able to effectively fulfil their roles. Nor do they comment on the impact of having (or of not having) such legal literacy on their capacity or effectiveness as school leaders. This book aims to address this gap by providing an examination of legal and policy perspectives in an approach aimed at developing awareness and understanding for readers of the impact of legislative frameworks in the context of school based education and educational systems internationally. The book is organised around three main themes which are used as the organising framework for the chapters in each section. The first section of the book focuses on examination and evaluation of the legal rights and obligations of various stakeholders, including students and parents, educators and administrators and the issues and impacts experienced by educational leaders in making decisions that are legally compliant and in the educational interest of students in their care. Trimble and Cranston (in Chap. 2) examine the external and internal legal environments of schools within which principals practice in Tasmania, Australia, the legal areas they deal with, current legal preparation and development arrangements, principals’ legal knowledge and consciousness, and the legal support frameworks available to them.
As academics working in postgraduate education we are receiving increasing requests from education systems, regulatory bodies, school principals and teacher leaders for courses to assist educators to have an understanding of legislation to be able to have an understanding of the personal context of their students’ lives;...