A legal academic to look out for

March 25th, 2015

Should St Bedes’ baggage carousel riders have been stood down? Was the punishment proportional? Should the parents have let their kids face the music? What kind of lesson are kids getting when lawyers protect them from their school’s view of conduct?

A wise academic from Canterbury has identified bad lawyering and judging as the real villains in this drama, and had the courage now unusual in legal circles, to say it clearly. the TV3 News website quotes Canterbury University dean of law Dr Chris Gallivan as saying – “It undermines the authority of the school and it makes the courts look bad, it makes lawyers look bad and it makes the parents look bad. It undermines the authority of the school.”

The judge in the case may have had little alternative but to grant the interim injunction that meant the school effectively lost. Though she appears to share the views of appeal court judges (on their right and duty to fine tune the ‘proportionality’ of decisions by lay citizens) senior judges’ appeal decisions may not have left her much room to move. Proportionality is a fashionable doctrine that conveniently justifies an infinite range of second guessing of others’ decisions.

In the clamour of views on the case Dr Gallavin’s are the only ones I’ve seen from a lawyer that essentially focuses on the feeble judging that has created the dilemma that tempted the parents. It is unfair to blame the parents when judges have created a situation in which a parent could blame themselves for failing to stick up for their child, irrespective of the bad outcomes for schools generally. The judges should have been guarding others, and they’ve failed repeatedly.

There is plenty of public recognition that schools and teachers everywhere are now tormented by choices between bad and worse – should they draw sharp behavioural boundaries, where what matters most is certainty of authority, with the ‘correctness’ or ‘proportionality’ of an individual decision being of secondary importance, or is it better just to fudge issues and let ‘mercy’ reign because the risks and costs of a fight with lawyers are just too great.

The fault lies with arrogant judging. Those responsible do not feel arrogant. They think they do good by indulging the universal human wish to look compassionate. But it is arrogant all the same. Judges who feel free to satisfy their urge to tinker with decisions retrospectively, irrespective of the costs have delivered us into the clutches of long delayed decisions, timorous authority, sensible people who simply stay away from public service, from taking school teams anywhere risky. Judges who think that achieving the ‘right’ outcome in the case before them is a judicial duty and privilege, forget their responsibility to the rule of law. Their art should always be subject to the questions – ‘but what will this do to the law – what lesson/message/rule/precedent does it propound for the thousands who look to the particular cases for guidance on how they will be treated”. Will people now know in advance whether they are on the right side of the law, or the wrong? Can people now work without routine recourse to lawyers? What practical message will be the ‘rule of lore’ conclusion from this judgment.

It should have been simple. The consequences of teachers uncertain of their authority are far worse, for all parties, than the loss of a sports event for two boys.

Perhaps too many judges who try to apply the rule of law perspective are without the mental furniture to do so dynamically. That is they fail to work through the consequences far enough to see how they affect the incentives facing the just and the prudent, as well as the unjust. But too often they do not appear to think they even need to try.

Watch out for Dr Gallavin. He is worth listening to.

Filed under Politics

Comments

Nap… sB’s was correct. Actions have consequences on others and school is where the best and hard lessons are learned w/o much bigger implications of real life. Now $ and privilege are pushing their ‘exception’ clause. They knew…they chose and one’s dad was the coach. Hmmm. This painful lesson rather than rescue could be the best last great shaping these boys need for manhood. And the lessons would be reverberated for years.

Unfortunately similar hazards exist for employers when being dragged before the ERA. The standard of behaviour required from employers is now many times greater than the standard required from employees.

An employee can be abusive, drunk, and walk off the job, and if the employer has not followed ‘due process’ to the letter when dismissing them, then the ERA will find in the employee’s favour.

It seems our courts are now preparing students to enter the work environment well equipped to focus upon their rights, and to become active participants in the ERA process.

Eventually someone will need to push back against these self distructive legal processes otherwise the barrier to employment and success for many young people will be too high.

I recall being on a BOT when we heard how this girl had had an alcoholic drink at a school camp in clear contravention of the school rules. The father faced up and said that she had only had one drink-I asked where it said that one drink was ok but two wasn’t…I recall he was very angry. I still wonder what that girl learned that day. How can schools make rules if there is a ‘greater authority who is actually not responsible for the pupils’ welfare?

Actually the problem here, unrecognized, is that schools now have gone from teaching young people reading, writing and arithmetic to being the hosts for anything that they can do to extract money from the taxpayer. Why do schools need rowing teams, rugby teams or the like when all could be done better by private individuals. Waste of taxpayer resources. Child’s play in adult format. Not education but entertainment.

Taxpayer funding hidden in all manner of means and distributed to those that take advantage.Another way of paying more teachers. Let the individual parents run their own sports and pay for them.

Robert – I can’t disagree with you more.

The vast majority (probably over 98%) of school sports are run by teachers who are not earning anything for it. There are a few teachers who get a little extra (for example a friend gets $4000 extra a year for managing 13 football teams)

Of the teachers who are paid to coach sports teams, almost all of them are funded by sponsors rather than the MOE.

The main reason that schools run sports is because it supports what happens in the class room. For example, I managed a rugby league team. If a player wanted to play for us they needed to have more than 85% attendance. Some of the students were closer to 60% attendance before the league season started. The evidence is fairly clear that students start to become at risk of failing when their attendance drops below 85%.

Students that were failing suddenly started getting good grades, simply because they were in class more often. Having the incentive of playing sport caused these student to take their studies more seriously. As a result these boys now have more options available to them than they would have had without the sport as an option.

It wasn’t the privileged students that were being helped either. It tended to be the students that didn’t have the cultural capital that tends to lead to success. School sports help to bring about the neoliberal ideal of “equality of opportunity” where everyone has a fair chance at a good start to life.

To remove sports from New Zealand schools would be to make them less effective places for students to learn, and would leave us in a worse place as a society.

As a disinterested party it seems to me discipline and order has collapsed in the majority of schools and colleges. At the narrow level it comes down to do you protect the rights of indulgent or ill disciplined schools to let off disrupters, bullies, talkers and slackers and stricter schools like St Bedes and Dio to maintain high disciplinary and academic standards. The same point applies to NCEA, NCEA from a good Auckland school is a Dio or Grammar NCEA while one from a provincial school will only have local credibility, because their is no norm referencing or scaling with NCEA.
To maintain educational or social standard therefore now requires more centralised regional or national intervention. Like Otago university deciding to buy the Cooks, Bowling Green and Gardens to close down the student excessiving boozing and convert them into lecture theatres. But just supporting St Bedes right to their own disciplinary standards really only protects the interests of a small island.