Educational Conflict and the Law (1986)

David Milman

• Éditeur: Routledge
• Année: 2017
• ISBN:
  9781351105187
• Édition: 1
• Sujet: Bildung
• Sous-sujet: Bildung Allgemein

Published in 1986 this book considers how relationships within the education system are growing more complicated as staff, pupils and parents are increasingly aware of their legal rights and willing to assert them. It discusses possibilities for conflict such as growing teacher militancy and an emphasis on staff development and appraisal causing tension. The book also considers moves towards accountability and the increasing involvement of governors and teachers presenting further sources of conflict. Finally, it looks as truancy and other pupil difficulties involving legal issues.

Teachers, headmasters, and other concerned parties are frequently unaware of the precise nature of their rights and responsibilities. However, underlying and regulating all educational activities is educational law as set out in various Acts of Parliament. This book provides a comprehensive overview of educational law from 1986 and discusses how it relates to controversies in education. It covers all aspects of the topic including the administrative arrangements, the independent sector, multiracial education and teachers' contractual obligations.

Chapter One

EDUCATION AND THE LAW: INTRODUCTION

THE SURVEY DEFINED

The aim of this work is to analyse how English law has dealt with (and in some cases generated) educational conflict. It will necessarily involve a survey of the many facets of education in this country, ranging from nursery to higher education. The rights and duties of the various pieces comprising the education jigsaw - e.g. parents, children, l.e.as., etc, will also be analysed. This book is not intended to provide a handbook for teachers governing every legal issue which might crop up in the course of their day to day duties.(1) Nor is it designed as an encyclopaedic work specifically for practitioners.(2) Rather it is hoped that this book, without getting too bogged down in the complex relationship between law and education,(3) will stimulate interest in this field whether on the part of administrators, teachers, parents, practitioners or academics. From a more positive viewpoint the author’s aim is to highlight current trends in the field of education law, whilst in the final chapter an attempt will be made to put forward explanations why education related litigation is becoming increasingly common. Comparative material from other jurisdictions will be utilised “to assist this analysis.

Before embarking on this project it is felt that a cursory introduction to some of the institutions mentioned in this book would prove useful to some readers, as would a brief guide to the sources of education law.

Educational institutions

Prior to 1944 education was divided into two stages - elementary and higher. The Education Act 1944 s.7 instead mapped out the now familiar three stages, consisting of primary, secondary and further education. Although the present author has his reservations about such a simplistic analysis it is nevertheless a useful starting point.

Primary education is provided for the age group 5-11 who in turn may be sub-divided into infants and juniors. Education for children below the age of 5 is classified as nursery education. From 1964(4) onwards the neat division between primary and secondary education was complicated by the establishment of middle schools catering for the age groups 8-12 or 9-13. These have proved a doubtful success and their current status is in doubt.

Secondary education now covers the age range of 11-16.(5) The philosophy of the Education Act 1944, based as it was on both the Spens and Norwood Reports of 1938 and 1943 respectively, was to split children in this category into three groups according to the type of school. Thus grammar schools would be reserved for the academically bright pupil who was capable of passing an 11-plus examination. Technical schools were designed for those having a more practical trait. Finally the “residue” were allocated to secondary modern schools. This rigid categorisation began to break down in the 1950s and 1960s with the introduction by some l.e.as. of comprehensive education. Under this new regime there was to be no 11 plus examination and children of all ability ranges were to attend the same schools, though streaming within those schools was still possible. It was this trend towards comprehensive education which provided a major boost for education litigation, with many comprehensive plans being fiercely contested by parents in the courts.(6) The celebrated Tameside Case(7) of course had its origins in disputes over comprehensive education. The pro-comprehensive lobby appeared to have won a complete victory with the passing of the Education Act 1976, which compelled l.e.as. to introduce comprehensive schemes. However this victory was short-lived because the Labour-inspired 1976 Act was repealed by the Conservatives, 1979 Education Act. Since 1979 an uneasy truce has settled on the battlefield with some l.e.as. retaining selection and others considering its reintroduction though this possibility may be blocked by the threat of further legal actions by parents, many of whom now support the existing comprehensive regimes.

The third form of education envisaged by the 1944 Act was given the label “further” education. This was intended to cover virtually any form of instruction after compulsory school age (now 16). Today this label could be most aptly applied to a sixth former or a student at a college of further education. However technically this umbrella phrase could also cover adult education and what is now commonly called higher education.

Higher education has expanded greatly and has become more sophisticated since the days of the 1944 Act. The Robbins Report 1963 played a major part in this expansion. There are now several types of institution offering degree courses - colleges of higher education, over 30 polytechnics 46 universities and the hybrid “polyversities”. The division between polytechnics and universities can be traced back to Tony Croslands’s Woolwich speech of 1965 when he gave the go-ahead to the creation of polytechnics offering degree courses in technical subjects.(8) Prior to this time only universities could award degrees. It is fair to say that polytechnics have exceeded their original remit and now offer degrees in pure arts subjects in direct competition with universities. A major legal difference between universities(9) and polytechnics is that the former are the creation of Royal Charter and enjoy the power to grant degrees whereas polytechnics are seen as adjuncts of l.e.as. and can at the moment only award degrees for courses which have received CNAA(10) recognition. Many polytechnics resent this system of external validation and some are pressing to be converted into universities whereas others favour self validation.(11) Until recently universities had enjoyed another legal advantage in that they had the power to set up their own companies to exploit inventions whereas this freedom had been denied to polytechnics. However the Further Education Act 1985 has now rectified this anomaly by putting polytechnics on an equal footing.(12)

The simplicity of the binary system of higher education has been complicated by the growth of colleges of higher education offering degree courses.(13) Moreover, due to economic pressures and retrenchment, the development of polyversities seems inevitable in the future. The first polyversity was the “University of Ulster” which received its Charter in 1983, being the offspring of the New University of Ulster and the Ulster Polytechnic.(14) Further such unions are being actively considered at the moment.

Before concluding this whistle-stop tour of educational institutions it ought to be remembered that there is now a thriving private sector mirroring many of the institutions mentioned above. This private sector, and its curious position within the education system, will be considered in Chapter 3 but it is worth pointing out that there are now even private universities. The first of these was the University of Buckingham, which was set up in 1976 though it did not receive its Royal Charter until 1983.

THE SOURCES OF EDUCATION LAW

Education law, like most aspects of English law, is a mixture of statutes created by Parliament and case law formulated by the courts. This cocktail is supplemented by delegated legislation in the form of statutory instruments.(15)

The basic foundation is clearly provided by the Education Act 1944,(16) though of course there are a large number of amending Acts, notably the Education Acts 1980 and 1981. The 1944 Act has enjoyed the longest life span of any Education Act in this country, though it is worth pointing out that it was a less radical statute than it is often supposed to be.(17) It was the 1870 Act which first introduced the concept of local control over education in the form of the school board. The Education Act 1899 added an element of centralised influence through the medium of the Board of Education, which became the Ministry of Education in 1944 and is now the Department of Education and Science.(18) Local control was expressed in a new form by the 1902 Act which set up the local education authorities, the lynchpin of the present system. The powers of l.e.as. were then extended by the 1918 Act though much of the 1918 reforms suffered with the Geddes Axe cuts of 1922. Thus the basic structure of the modern educational system was laid before 1944 and the 1944 Act was largely a consolidation measure.

Another misconception bandied about is that R.A. Butler, then President of the Board of Education, was the sole architect of the 1944 Act. Subsequent research has shown that, although he clearly must take much credit, the role of his deputy Chuter Ede has been underestimated. Furthermore it now appears that Butler, whilst a member of the 1951 Churchill Government, favoured education cuts that would have done much to dismember his much-praised offspring.(20)

Historical controversies apart, one cannot gainsay the fact that the 1944 Act is perceived as a great landmark in the social history of modern Britain in much the same way as the Beveridge Report (1942) is regarded. Certainly the 1944 Act until recently had put an end to the religious controversies that had so dogged education for many years.(21) More importantly it firmly established the principle of free state education for all children of compulsory school age. Moreover the status of the independent sector within the system was clearly defined. Perhaps the greatest contribution of the 1944 Act was to cement the idea that the task of educating the nation’s children was to be viewed as a partnership consisting of both central and local government and the parents.

Notwithstanding this record of achievement it is now generally accepted that the 1944 Act has outlived its usefulness and that a fresh piece of consolidating legislation is required. This has been convincingly argued by Aldrich and Leighton in a recent paper(22) and the present author would lend his support to that diagnosis. Thus the structure of the 1944 Act leaves much to be desired and the matter is made worse by the mass of amending legislation. Important issues like the role of tea...