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Teachers Council Code of Ethics Summit
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Contents
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Texts of the presentations to the Summit
The Code of Ethics as Shield, Sword, and Guide
Paul Rishworth
Notes for presentation to
NZ Teachers Council Summit on March 21, 2003
I. Introduction
Where does the proposed Code fit in to the Education Act's scheme for enforcing professional standards'
- The Education Act 1989 now requires, by s 139AI (inserted by s 37 of the Education Standards Act 2001), that the Teachers Council must prepare a code of ethics for teachers.
- It says that the code of ethics "is binding on all teachers - and all [holders of limited authorities to teach]".
- But what does it mean to say the Code is "binding"? It is not normal for a statute to say that it is "binding" since the basic fact of our legal system is that all law just is binding -- in the sense that, ultimately, courts will enforce it. It is "binding" because various consequences can follow from infringing the law, or from invoking or relying upon it in some way. It can make sanctions possible, for example. The Crimes Act 1961 does not say it is "binding" but the fact remains that a person may be fined or imprisoned for breaching it. The proposed Code of Ethics is not to be a statute like the Crimes Act; rather, it is a code to be made under a statute. But even so, if the question is asked whether the Code will have teeth, then it is relevant to ask what the consequences are of breaching it. That is likely to be the critical question in any contested disciplinary case in which the Code is said to have been breached.
In fact, there is no explicit disciplinary power in the Education Act to impose sanctions for breach of the proposed Code of Ethics. So to say it is "binding" is really to say that it applies to teachers and holders of LATs, albeit with no explicit consequences for breach, and no one else.
- The Education Act provides for disciplinary sanctions to be imposed on teachers only for "misconduct" and "serious misconduct" (see s 139AT as to Complaints Assessment Committee's powers to sanction by consent, and s 139AW as to Disciplinary Committee's powers to impose sanctions after a hearing). Breaching the Code is not in itself a disciplinary offence.
- Contrast the Institute of Chartered Accountants of New Zealand Act 1996. That Act required the Institute both to produce a code of ethics and to make its own disciplinary rules, including the penalties. The rules that were made explicitly provide that a breach of the code of ethics is itself a disciplinary offence (alongside other offences higher in the list and presumably seen as more serious, such as professional misconduct, conduct unbecoming, negligence or incompetence reflecting on fitness, etc).
- Note that in Institute of Chartered Accountants v. Bevan [2003] 1 NZLR 154 the Court of Appeal held that the accountant was not guilty of any breach of the Institute's Rules: "rather", said the Court, "there is only a finding of a breach of the code of ethics" [para 52, my emphasis]. The Court went on to say that the penalty imposed was disproportionate to the magnitude of the breach.
- Compare also the position for health practitioners. The Code of Health and Disability Services Consumer's Rights provides, in Rule 4(2) that "every consumer has the right to services that comply with legal, professional, ethical and other relevant standards". This has the effect of making departure from those standards a matter that might lead to a finding of "breach" of the Code by the HDC. [Note, it is then a separate matter whether a complaint will be brought before the relevant professional body, such as the Medical Practitioners Disciplinary Tribunal, alleging that the doctor is in breach of the relevant statutory terms (professional misconduct, conduct unbecoming, gross misconduct)].
- Interestingly, in at least one case the Courts and disciplinary tribunal have held that a code of conduct established by the medical profession sets too high a standard, and was more than is required to avoid infringing the statutory requirements (of avoiding professional misconduct or conduct unbecoming). See MPDC v Wiles, District Court, Wellington, 24 January 2002, upheld on appeal in Director of Proceedings v Wiles France J, HC, Wellington, AP 33-02Nov 24, 2002
Considering the sorts of things that might go into a teachers' code of ethics, is this sort of approach inevitable? That is, should every breach of an ethical code count equally? Will breaching the code always be the same as misconduct? Will it just 'depend' on the facts of the particular breach?
Should a code be confined to matters that, if breached, justify disciplinary sanction? Or would that fail to serve as an aspirational and inspirational document to which even excellent teachers have constant recourse? |
II The Code as Guide
- If it is not principally a reason for imposing sanctions for bad conduct and performance, the Code is "freed up" to be both aspirational and inspirational. In this regard, a Code with some easily remembered phrases may be very effective; just as the famous bills of rights around the world have had evocative phrases that have served as rallying points throughout history - "no state shall deprive persons of life liberty or property without due process of law", for example.
- Some of the world's most successful "relational documents" - by which I mean those that serve to delineate a relationship between a government and its people, or between two peoples as in the case of the Treaty of Waitangi - owe their success and longevity to being written at a high level of abstraction, embracing ideas with which all can agree. Indeed, if some current controversies had been predicted at the time these documents were being drafted, they might never have eventuated.
- It doesn't have to be all like this, of course, but one should always be wary of descending into the detail that is provoked by attempting to resolve strictly contemporary controversies. The US right to bear arms might be seen in that category. The suggestion that the Code might descend to details such as (for example) whether it is OK to cuddle children in schools should be resisted. These things are so contingent on facts and circumstances that it makes no sense to write them into Codes, either as a no-contact or yes-contact rule. The general principles that apply can be stated at a much greater level of abstraction. It might focus on the things that people agree, otherwise there is a risk that the Code will be impossible to produce.
- In general, the Code as guide might perhaps aim to set out principles underpinning the professional responsibilities of teachers to the various stakeholders such as students, parents, colleagues, employers, the profession, and the community. While some of these stakeholders can and must be seen as having important reciprocal obligations to teachers, the Code is not in my opinion the best place for getting into that. It is a code for teachers. Other groups might be well served by codes as well, but that is not the present issue.
- The opportunity is there for the Code to be something that is inspirational in the sense that it is constantly referred to by even good teachers. It can be more than a statement of bad things to avoid.
III Code as Sword
- Realistically, many invocations of the Code will be in the disciplinary or employment context.[4] Here it is important to recall that the statute sets the triggers for disciplinary action by the Teachers Council committees: the concepts of misconduct and serious misconduct are central. The Code will be a strong guide to what can count as misconduct. But breaching the Code is not itself a disciplinary offence.
- From another perspective, responsibilities for professional development, if placed in a Code, can underpin claims to appropriate resources and opportunity. That is to conceive the Code as a sword in the hands of teachers and their associations.
IV Code as Shield
- What I meant by this is that, through the setting of national standards of teacher responsibility, there might be some protection for teachers from what might otherwise be the vagaries of community sentiments. I had in mind cases where, in their private lives, teachers engage in activities that are in some way unacceptable to the school community. Sometimes, in these cases, the teachers are simply exercising their right to live as they see fit. The real conflict is over the "world view" as to whether what the teacher is doing is acceptable. These can be difficult cases.
- At the seminar I proposed some questions for discussion. Most of these are based on real life cases in NZ or overseas. I also spoke about the US teachers who were suspended for putting up anti-war posters (the Iraq war) in their classrooms. I think there was general agreement that this seemed very harsh. Might it be something that a Code of Ethics could speak to. I read out the US National Education Association code, which has as its very second article "shall not unreasonably restrain the student's access to varying points of view". How might we approach a case of a person who put up a pro-War poster in New Zealand?
Consider:
A teacher is, out of hours, a Moslem spokesman and makes statements in support of Al Qaeda. Parents and students complain that they feel uncomfortable about him being in the class room (though he makes no reference to his beliefs while in the class room). Is it misconduct? Unethical? Is such a teacher committed to the eradication of discriminatory attitudes'
What if the teacher is, out of hours, campaigning for the legalisation of cannabis' Or against the extension of marriage to same-sex couples' Or a holocaust denier? Or espousing the view that married women should not work outside the home? Or the part-owner of a video store that has, alongside numerous regular videos, a small "adult" (R 18) section? Or if she espouses creationism and writes books criticising evolutionary theory? What if she is a coordinator of a peace activist group, and on mail outs gives her school email address as a contact?
Is any of this misconduct? Is any of this ground for dismissal or sanction? What is the relevance of community feeling in the locality of the teacher? Might a code of ethics speak to these situations as a matter of national policy? Might it be a "shield" for teachers, as well as a potential "sword"?
In short: where does the freedom of belief and expression for teachers intersect with legitimate interests of the school? |
- I attach a chapter from the 2001 publication of the NZ Law Society entitled "Recent Developments in School Law" by John Hannan, Patrick Walsh and myself. This chapter, which I wrote, deals with what was then the proposal for a Teachers Council. Some of the section numbers mentioned have changed but what was enacted in late 2001 is pretty much the same as the proposals that existed at the time the chapter was written in September of that year.
- Finally, I suggested - not entirely facetiously - that the "best maybe the enemy of the good". That is, that there may be a risk that the aspirations for the Code are so grand that it becomes a huge task to prepare it. What I meant by this is that there may be profit in compiling a first draft for circulation so as to elicit comments and chart a way forward, even if it is abandonment of the first draft and preparation of a second. The US Constitution took a few months, admittedly full time; the Treaty of Waitangi took a few hours. Perhaps the differences there owe much to the degree of abstraction in the latter document. But ethics are, in a sense, an abstraction - of principles that ought to be reflected in conduct. The so-called Golden Rule of "do unto others ?" is a justly famous example. Perhaps they work best when they are easily remembered.
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