Juridification and professional discretion in schools

Jorunn Møller, Department of Teacher Education and School Research, University of Oslo

Protection of children’s rights is a legitimate concern in school administration and practice. Since few school leaders are trained lawyers, this raises questions about how principals and teachers apply the law and how the discretionary power of the profession is justified. It has also been suggested that managerialist-influenced policies with increased focus on control and accountability have placed pressure on professional discretion in the local school.

The purpose of the reported interdisciplinary study (education and law) has been to expand our understanding of how legal regulations are transformed into professional action in the local school. In the project we have examined how school leaders on multiple levels interpret and enforce regulation aiming at ensuring adaptive education and protecting each student’s right to special needs education and a good psycho-social learning environment as required (The Norwegian Education Act, Sections 1-3, 5-1 and 9a-3).

The research concerns the relation between the development and use of legal standards, and the professional considerations which are important for both pedagogical work and legal practice. The analysis is guided by a conceptual distinction between structural and epistemic aspects of discretion and between two different logics of professionalism (organizational and occupational professionalism).

The findings demonstrate the many ethical dilemmas experienced by school leaders and teachers when attending to legal regulation and justifying their decisions. Dilemmas arise through tensions between economic conditions and the demand to individually adapt teaching to meet students’ capabilities and needs; between individual considerations and those of the student body as a whole.

In addition, the analysis indicates that when principals and teachers act in what they consider to be the student’s best interest, they rely more on their own ethical and pragmatic judgements than on legal regulations. This may have consequences for the extent to which students’ legal rights are protected.