Teacher-misconduct: code dilemma for school leaders

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Teacher-misconduct: code dilemma for school leaders
Rachel Dubsky
University of Northampton
Paper presented at the BELMAS conference, Sunday 13 July 2014, Stratford on Avon.
ABSTRACT
Current policy in England, with regard to teacher misconduct, is such that school
leaders have to decide what to refer to the NCTL conduct panel and what can be
dealt with in-house.
Consistency of referral thresholds and subjectivity of interpretations regarding what
constituted ‘serious misconduct’ was already a demonstrable issue before GTCE
abolition. Now, school leaders’ duty to refer is reduced to only consideration to
refer (despite continuing legal duty to report safeguarding issues) accentuating and
intensifying debate and confusion.
This paper explores the significance of shared understandings of what constitute
‘appropriate boundaries’ – the most commonly referred area of misconduct. It
suggests that even within a single shared context there is distinct lack of consensus
in interpreting and practicing such boundaries.
If school leaders rely on the panoptic accountability of the NCTL code for maintaining
‘appropriate boundaries’ and conduct, climates of anxiety and mistrust are inevitable
yet without meaningful protection for any in the community. Alternately, Sachs’
concept of Active Professionalism may offer opportunities for school leaders to
engage their whole community in a locally developed, context-meaningful code.
Since National Teaching Standards were first issued (DfEE, 1997), they have included
regulations for professional conduct.
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Following the operational establishment of the GTC in 2000, these codes of conduct were
profession-led. The disciplinary function of the Teaching Council meant that educational
settings should refer to them cases both of professional incompetence and of misconduct.
Since the operational conclusion of the GTCE (after its 2011 abolition), their regulatory role
regarding competence has been entirely devolved to school leaders and now only the most
serious misconduct should be referred - to the NCTL. Cases that are unlikely to lead to
prohibition should be handled locally (TA, 2012b; NCTL, 2013a; DfE, 2013b). The regulatory
scope of the GTCE was broader and more flexible than that of the NCTL, from whom the
only available sanction is a lifetime prohibition from teaching.
To quantify this: Only 4% of the 214 teachers prohibited (by the GTCE) in relation to
misconduct between 2001 and 2012 are now allowed to teach again, with another 3%
applying unsuccessfully for reinstatement.1 (DfE, 2013c)
Interestingly, in responding to a subsequent freedom of information request (DfE, 2013d),
the DfE chose to provide information additional to that requested for the stated purpose of,
“showing the increase in prohibition orders which have occurred in recent years”;
Suggesting the importance to the official narrative of demonstrating a tighter ‘clamping
down’ on teacher misconduct.
In this response (op cit), the DfE documents 1303 referrals for misconduct between April 1st
2012 to October 30th 2013. Of these, 86% were considered not to require further action or
fell outside of the jurisdiction of the NCTL. This leaves only 14% of cases as appropriate
referrals. Of those appropriate referrals - those that reached hearing stage - 76% led to
prohibitions. These 143 cases constitute 11% of the total cases referred. This very small
proportion of appropriate referrals might be considered to illustrate schools’ uncertainty as
regards what constitutes ‘serious misconduct’, as well as an anxiety that should any
misjudgement occur it should be on the side of caution; logical uncertainties and anxieties
within an official narrative that emphasises increasing severity.
1 Only GTCE prohibitions have been included in this data because the two year minimum prohibition period post-
GTCE means that teachers prohibited by the TA/NCTL will only now - 2014 - be beginning to become eligible to
apply to convince a panel to lift their prohibition.
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Consistency of referral thresholds and subjectivity of interpretations regarding what
constituted ‘serious misconduct’ was already a demonstrable issue before GTCE abolition:
Research into GTCE casework in 2011 (Saunders, Jennings, Singleton and Westcott, 2011,
p13) found ‘incompetence’ often incorrectly referred as ‘misconduct’, and questioned the
motivation behind these referrals as pragmatic – due to lower verification thresholds for
misconduct allegations in comparison to those for incompetence. They found “no
consistently used criteria for making allegations” (p1) and did not consider the casework to
be nationally representative (p2).
The most significant post-GTCE change for school leaders is that where they previously had
a duty to refer serious teacher misconduct (regardless of that teacher’s current employment
status (GTCE, 2009b, p3)), now they must only consider whether or not to refer – if that
teacher has resigned or been dismissed (TA, 2012, p5; NCTL, 2013b, p5). However, the
distinction between misconduct and safeguarding remains, and schools are required to
report concerns about safeguarding to the ISA (TA, 2012) as they were under the GTCE.
Even in parliament (Hansard, 2011), debate illustrates real confusion between ongoing legal
duty to refer issues relating to safeguarding to the ISA, and a lesser requirement to
‘consider’ referral with regard only to misconduct not relating to safeguarding.
It is within this context of confusion and ambiguity that school leaders must decide what
should be dealt with in-house, what should be referred to the ISA and what constitutes such
serious misconduct that it should be referred on for prohibition.
At a legal level, what constitutes an abuse of a position of trust is covered by the Sexual
Offences Act (2003), but at the level of professional sanction, what constitutes an abuse of
position or ‘departure from the personal and professional conduct elements of the Teachers’
Standards’ is less clear.
The Teachers’ Standards retains phrases such as “at all times observing proper boundaries
appropriate to a teacher’s professional position” (DfE, 2013, p10). ‘Appropriate professional
boundaries’ have been a (non-defined) code of conduct requirement since 2009 (GTCE,
2009, p8) - but what constitutes ‘appropriate’ remains ambiguous.
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Several teaching unions raised the lack of definition around such regulatory concepts as a
major concern. The NUT complained that conduct guidance was “often so vague and
exposed to value judgement that it will be very difficult in some cases for teachers to know
when they may be considered to have acted improperly” (2009, point 6). The whole code
was seen as “riddled with vague statements that are open to wide interpretation and abuse
and therefore put(s) teachers at risk” (NASUWT, 2009, np).
This is significant because analysis2 of the 200 conduct panel records generated and made
available online between 1 May 2012 and 31 January 2014, shows that of those sanctioned,
56% were prohibited for misconduct that included ‘inappropriate teacher-student
boundaries’. The vast majority of these (49% of total prohibitions) related to teacher-student
relationships that were considered too close.
Maintenance of ‘appropriate boundaries’ between teachers and students is then a
requirement that is both lacking in definition and results in a greater number of teacher
prohibitions than any other area of teacher misconduct.
The whole-school INSET data this paper will now draw upon stems from exploring staff
understandings of what constitutes ‘appropriate teacher-student boundaries’ in the particular
setting of an Independent boarding school with a majority of staff resident. Once a shared
definition had been agreed, staff (in groups of 8-9 people to which they had been randomly
allocated) applied their agreed definitions to evaluate levels of propriety in a range of
hypothetical scenarios (designed to be conceivable in their setting).
Figure 1. Scenarios evaluated for propriety 3
Sam At the Head’s request, Sam provides a student with Oxbridge tutoring on a Sunday
morning. The tutoring takes place in Sam’s home.
Jo Jo invites a 6th form student to the cinema over exeat to catch re-runs of a classic
film they’ve talked about in class.
2 Analysis as part of the author’s doctoral studies
3 NB: Teacher names were intentionally selected to be gender neutral to attempt to avoid influencing
the evaluation of propriety based on a given teacher gender.
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Pat Pat’s teenage children (who are students at Pat’s school) often bring school-friends
home. When they stay over for the night, Pat joins them for a couple of beers in front
of the t.v. before bed.
Chris Chris coaches the U18 tennis squad and often drive students back to their home, in
a personal car, alone – with parental consent.
Mo Mo bumps into one of last year’s L6 leavers (J) in a pub. J is 18 and Mo is a good
friend of J’s brother. With the acceptance of J’s family, Mo and J begin a physical,
romantic relationship.
Of the five scenarios, when groups had to agree on evaluation of propriety, the only
hypothetical teacher behaviour (HTB) deemed to maintain professionally appropriate
boundaries (PAB) was Chris. The only HTB with consensus response from all six groups
was Jo – who was evaluated with the lowest possible ranking of ‘Definitely not PAB’.
Averaged group responses to Sam, Pat and Mo were all on a par, and evaluated at only
marginally below ‘undecided’. However, all HTB other than Jo’s generated a full breadth of
evaluation, from ‘definitely not PAB’ to ‘totally PAB’. This variance in evaluation of the same
HTB was as broad as it could have been.
When staff had the opportunity to express an individual evaluation of the same HTB,
variance from agreed group evaluations was notable and there was variance within every
group. The HTB generating the most positive variance from group evaluation was Pat’s. The
HTB generating the most negative variance from group evaluation was Mo’s.
In a school with a large proportion of resident staff whose children do attend the school as
students; it is perhaps understandable that Pat’s HTB might generate the most positive
variance. This instance alone is an interesting example of subjective enactment of an
espoused or imposed professional boundary that aspires to be uniform.
We have so far considered that ambiguity and subjectivity of interpretations means there is a
“centrality of incoherence” (Ball, Maguire, Braun and Hoskins, 2011, p637) to the code of
conduct for teachers. The INSET data shared focuses on the one particular area of the code
that leads to the greatest proportion of teacher prohibitions. If the code is intended to “uphold
public trust in the profession” (DfE, 2013, p10), yet even across a single school staff with
permeated values and a strong identity, there can be such variance in understanding and
applying key aspects of the code, how can the code uphold public trust? How can it guide
the actions and reflect the intentions of teachers? Does this make inevitable that the
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responsibility (and liability) for ‘interpreting, selecting and enforcing meanings’ (Ball, Maguire,
Braun and Hoskins, 2011, p626) must fall to senior leaders? Should it? Is this a desirable
model of practice?
Where policies are developed centrally or at the top of a chain of leadership and pushed
down, “moving down the chain, the boundaries of what might or might not be done become
more permeable” (Groundwater-Smith and Sachs, 2002, p342). If the views across our
communities about what ‘professional teacher conduct’ looks like are not aligned and
understood, any teacher action is open to a range of interpretation (and misinterpretation)
that leaves all teachers exposed or constraining their behaviour in efforts at self-protection
that also constrain their pedagogy and students’ learning experiences (Sachs, 2004).
There may be a way, through the ‘devolved’ approach of current Government, which allows
schools to use this ambiguity in code requirements positively; as a space to generate trust
and engagement, supporting and developing active teacher professionalism. Through
building from an individual level within our distinct communities, we can develop context-
responsive codes that still sit within the overall framework of the DfE Teachers’ Standards.
“While parents and the wider community may have a distrust of schools in general they
have a higher regard for the school that their children attend and the teachers who work in
these schools in particular” (Groundwater-Smith and Sachs, 2002, p344). This is an
opportunity.
One of the arguments for devolving regulation of professional competence and less serious
misconduct to school leaders is that it allows for responses that are more context-relevant.
Universal rules may be considered necessary to ensure “a professional obligation” that is
profession-wide (Carr, 2005, p258). However, what those universal rules look like when
translated into practice in diverse settings will differ; and therein lies the risk. Rather than
ever-increasing anxiety about how ambiguity at a universal level will direct our practice and
shape others’ perceptions and mistrust, we have an opportunity to take charge of our own
direction by working with our communities to agree context-responsive clarifications within
the framework of the universal DfE code.
Sachs’ Active Professionalism is “a strategy to re-instate trust in the teaching profession by
the community at large” (Sachs, 2003, p4). Inadequate clarity about what constitutes
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‘appropriate’ professional conduct, whilst being held accountable for ‘appropriate’
professional conduct, reduces the function of that accountability to threatened punishment
through a system of comprehensive surveillance – that includes self-surveillance. The
presented need for such comprehensive surveillance is what erodes trust (Sachs, 2011).
Using Sachs’ approach to develop a context-responsive code would mean, “debating and
negotiating a shared set of values, principles and strategies” (Sachs, 2003, p8) with full
inclusion of our entire school communities in this ongoing process to support the necessary
substantive engagement. We need to build consensus (Sachs, 2003, p12) across all factions
of the community for this approach to be successful. We need a community-agreed code,
with documented and accessible debates demonstrating openness and transparency, to re-
shape the function of our code. This will require “a rethinking of the form, content and
assumptions underpinning teacher professionalism and professional identity” (Sachs, 2003,
p13) as well as committed networks to sustain the energy and process.
“It is clear that dimensions of context greatly impact on how schools understand and
negotiate audit policy technologies and practices and, especially, the extent to which
they must shift their beliefs and dynamics to fit with, or satisfy, the performative
demands of these technologies and practices” (Keddie, 2013, p765).
Active Professionalism may offer schools a space not to shift their beliefs, but to use them -
to develop a more detailed, community agreed and understood, context-responsive code
within the top-level framework of National policy.
References:
Ball, S., Maguire, M., Braun, A. and Hoskins, K. (2011) ‘Policy actors: doing policy work in
schools’, Discourse: Studies in the Cultural Politics of Education 32(4): 625-639
Carr, D. (2005) ‘Personal and Interpersonal relationships in education and teaching: A virtue
ethical perspective’, British Journal of Education Studies 53(3): 255-271
DfE (2013) Teachers’ Standards, London: HMSO
DfE (2013b) Teacher misconduct – the prohibition of teachers, London: HMSO
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DfE (2013c) Response to Freedom of Information request, reference number 2013/0038292,
27th June 2013.
DfE (2013d) Response to Freedom of Information request, reference number 2013/0068153,
20th November 2013.
DfEE (1997) Teaching: high status, high standards, Circular 10/97. London: DfEE.
Groundwater-Smith, S. and Sachs, J. (2002) ‘The Activist Professional and the
Reinstatement of Trust’, Cambridge Journal of Education 32(3): 341-358
GTCE (2009) Code of conduct and practice for registered teachers, London: GTCE
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London: GTCE
Hansard (2011) House of Lords debate, London, 18th October 2011. Accessed on
18/05/2013 on http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/111018-
0003.htm#1110193000184
Keddie, A. (2013) ‘Thriving amid the performative demands of the contemporary audit
culture: a matter of school context’, Journal of Education Policy 28(6): 750-766
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Practice”. Accessed on 04/09/2012 on
http://www.nasuwt.org.uk/InformationandAdvice/NASUWTPolicyStatements/GTCECodeofCo
nductandPractice/NASUWT_004643
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teachers, Coventry: NCTL
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Sachs, J. (2011) ‘ Accountability, standards and teacher activism: an unholy trinity or the
way for the profession to shape the future’. Post-Primary Teachers Association. Post-
Primary Teachers Association Conference, Wellington, New Zealand, 18th – 20th April,
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2011, Accessed on 10/11/2013 on
http://www.ppta.org.nz/index.php/component/docman/doc_details/1106-accountability-
standards-and-teacher-activism-an-unholy-trinity-or--judyth-sachs
Saunders, L., Jennings, S., Singleton, S. and Westcott, E. (2011). Issues in Identifying,
Evidencing and Adjudicating Cases Referred to the General Teaching Council for England
(GTCE) for Professional Incompetence and/or Misconduct: Evidence from GTCE Casework
2001 – 2011 (Research Project SPI). Birmingham and London: General Teaching Council
for England. (Not available online – emailed direct from first author)
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Teaching Agency
The author may be contacted at Rachel.dubsky@northampton.ac.uk
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