Education policy: ethical and legal considerations

If you work in education at any level, you’ll need to have a clear understanding of the policies of the institutions you’re connected with, as well as the ethical and legal considerations underlying them. If you work in policy development, or aim to contribute to it, then being aware of these issues is vital.

This article explores the frameworks around education policies, addresses key ethical challenges, and identifies the legal parameters that you need to keep in mind when you engage with them. It won’t give you all the answers, but it will help you to think through the major concerns that are likely to impact your work.

A brief history

In order to understand the ethical and legal issues pertinent to education today, it’s useful to be able to consider them in their historical context. Education in the US didn’t develop in an organized way, but coalesced out of different models invented by early European immigrants, most of whom were simply trying to do the best they could with very limited resources.

Some used established educational models from the Netherlands, Germany or the UK as templates, but those were still in their infancy and had very different priorities from those that dominate today. Others were based on religious schooling models developed by different religious groups such as the Catholic Church in the West and Southwest and the Quakers in New England. It wasn’t until 1867 that the Department of Education was set up with the aim of drawing all this together and setting nationwide standards, a project that can at best be considered only partially complete today.

Initially, the aim of standardized education was simply to provide training for the workplace (or, in the case of girls, for homemaking). Literacy and numeracy were quickly added as vital skills, followed by a gradually increasing emphasis on science, history and foreign language learning (though the latter does not yet apply in all learning institutions). To supervise this, and to ensure student welfare, the current hierarchy of education policymaking developed.

The structure of education today

Education today broadly consists of three layers: federal, state and local. The federal government aims to take a hands-off approach as much as possible, and sees its role as that of overseeing access and filling in gaps in the system. It is not just the Department of Education that does this. Other departments also play a role, such as the Department of Agriculture, which oversees the provision of school meals.

Some education policy is developed at the state level, but this is relatively infrequent compared with change at the local level. The most significant role of state governments concerns the provision of funding. This may favor certain types of schools over others, and may offer more or less support for different disadvantaged groups, thereby constituting a sort of indirect policymaking, as it has a heavy influence on the choices available to schools and school districts.

The bulk of education policy is established by school districts, and at that level, there is far more input from educators themselves, and also from parents. Charter schools, however, have a lot more control over their own policies, as long as they meet certain standards. Again, funding is an influence on policy, as they need to follow the basic rules set by the federal government if they want to be eligible for federal funding.

The aims of education

While it might seem obvious what education is for, if you try talking to people from a different cultural background or even just a different region, you’ll probably find that they come up with a different answer. Parents often differ from teachers in their perceptions of what’s important. To an extent, the different types of schools operating across the country allow for some flexibility around this, but some consensus is necessary in order to facilitate the federal funding arrangement.

It’s broadly agreed that as well as imparting knowledge, education should provide children with basic research and critical thinking skills, as well as social skills and the preparation they need to go on to college or enter the workforce. The local element in education policymaking helps it to take account of differences in the labor market in different places, as well as different cultural factors in different parts of the country. Charter schools, meanwhile, often serve minority cultural groups.

• Access for all

Fundamental to the agreement between the federal government and education boards and providers at every level is a commitment to ensuring that education is made available on an equal basis to every child, regardless of sex, race, religion, disability or ability to pay. Charter schools are allowed to focus on specific religious groups, but will not receive federal funding if they discriminate against other students on the basis of religion, and school districts must make sure that there is sufficient provision available for all. School districts need to base policy on local demographics to determine where additional provision is needed. On top of catering to the distinct needs of particular student groups, they need to factor in geographical issues and how far students have to travel to reach school.

• The NEA Code of Ethics

While various different organizations within the field of education have their own ethical guidelines, probably the most widely used resource of this sort, especially by teachers, is the National Education Association (NEA) Code of Ethics. This is split into two parts, addressing the obligations that schools and teachers have to students and those that they have toward the educational profession.

Although it’s relatively short, and designed to be memorable rather than to cover every eventuality in detail, it makes a great starting point for thinking about these issues, and a useful list to reflect on when struggling with a complex issue. When rules appear to conflict with one another, it will help you to work out where your responsibilities lie.

• Encouraging learning

One principle that most educators hold to is that the teaching that can be carried out at school is only part of the educational project. They believe that part of an educator’s duty is to instill a love of learning itself, and that students should be given the tools with which to pursue it. As such, you should encourage children to pursue learning independently, providing guidance on where to find resources, and not withhold information from them unless it is essential to do so for the purposes of health and safety or safeguarding (for instance, if a student professes an interest in finding out how to make bombs).

Balancing this, however, is a need to protect students from misinformation, and especially the kind of viral misinformation that forms the bedrock of internet conspiracy theories. Doing this successfully hinges on giving them the skills to identify it, which begins with prompting them to ask questions that will help them to analyze the reliability of any given piece of information. This balancing act needs to be taken into account in policy around school computer use (including the decision as to whether or not to apply filters, and in what ways to do so) and the setting of homework.

If you study one of the doctorate education programs offered by Rockhurst University, you’ll benefit from training that places a high value on both ethics and learning for its own sake. This course encourages you to embrace diversity within your student population and support diverse approaches to the acquisition of knowledge, helping your students to take the initiative.

• Health and safety

Educators have a legal and ethical duty to ensure that, as far as is reasonably possible, students are able to learn in a safe environment where they do not face any serious hazards to their health. This is an area that has been frequently discussed since the onset of the COVID-19 pandemic, as new information has emerged about the short-term and long-term risks that the disease presents to children. This presents a good example of why policy in this area needs to be made at a local level, and sometimes at the level of individual schools.

Just as the spread of COVID-19 varies across the nation, so each school district faces different weather-related risks, earthquake risks, etc. A more commonplace issue, however, is the need to keep school premises in good condition to reduce the risk of injury or exposure to mold and fungus, and this is often a pertinent concern for schools faced with difficult decisions over how to allocate funding.

• Confidentiality and safeguarding

Related to health and safety, but subtly different, is the obligation to safeguard students. This refers to the need to protect students from exposure to dangerous influences (such as terrorist organizations that recruit young people online) and to do as much as is reasonably possible to protect them from abuse when they are outside school premises. This can present ethical challenges when considered alongside the principle of confidentiality. This is vital to maintaining a trusting relationship between teachers and students, and to ensuring that children have trusted adults outside the home in whom they can safely confide.

Teachers should be aware that sharing children’s secrets with their parents or guardians can sometimes put them at risk of violence, and they should not assume that it’s possible to tell which households might be dangerous in this way. They should also recognize that sharing a child’s concerns about being bullied with the alleged bully, even if this is done as part of a genuine effort to de-escalate the situation, can increase the risk of the child being victimized at school. In these kinds of situations, it’s vital to take a lead from the child and to only take action with their consent. An exception to this rule applies, however, where an educator has cause to suspect that a child is being abused at home or in another context outside of the school, in which case the police should be contacted and professionals trained in handling such situations can take over.

• Appropriate subject matter

What sort of subject matter is appropriate in schools? This is one of the biggest battles of our age and it highlights the differences in thinking that complicate discussions of ethics. Controversy surrounds both sex education and the teaching of science. Where the former is concerned, there are arguments over the best way to protect children, whether by shielding them from temptation or giving them the information they need to reduce risks. Although the weight of scientific evidence clearly weighs in favor of the latter approach, not everybody places the same value on it, and some religious people feel that spiritual dangers, not just material ones, need to be taken into account.

This spiritual concern is particularly prominent in discussions about education on sexual and gender minorities, who do not enjoy the same protection from the federal government as other minority groups. On the other side of the discussion, there are concerns that a failure to educate in this area leaves such minority students at increased risk of bullying, as well as less knowledgeable about how to protect themselves.

In regard to science, the federal government obliges schools to present a variety of theories to students – but what counts as a legitimate scientific theory? The usual view is that, in accordance with the scientific method, it must be falsifiable. However, some lobby groups have succeeded in arguing that theories that do not accord with this rule also deserve consideration, so in some states students are encouraged to consider ideas that the bulk of the scientific community consider to be deeply misleading.

• Freedom of speech

Part of the argument for the teaching of contentious ideas is rooted in the constitutional right to freedom of speech and expression, but this is already a complicated area in the context of education. In schools with state or federal funding, teachers obviously have to bear in mind the requirement for the separation of church and state, so they cannot express religious views in the classroom (though they can still talk about religion if careful not to give particular perspectives undue emphasis). They also need to be aware, like everyone else, of hate crime laws. In practice, the right to freedom of speech has to be balanced by due consideration for the avoidance of harm, along with consideration for the aims and ethics of the profession. Even when teachers are addressing its constitutional importance, they cannot behave as if it were absolute.

It doesn’t take much imagination to realize that students’ right to freedom of speech cannot be given free rein either. The important thing to recognize in both these contexts is that freedom of speech does not mean freedom from consequences. Students need to learn that highly inappropriate speech will be met with disciplinary measures. They also need to learn that the exercise of their rights has an impact on the rights of others, and why that matters. Navigating free speech issues in the context of education can be an excellent opportunity to do this.

• Discipline

The use of corporal punishment in schools is a highly contentious matter, despite being established as legal under federal law in 1977 (Ingraham v Wright). It is forbidden in all schools only in Iowa and New Jersey, but is forbidden in federally funded schools in 33 states, with those that practice it being concentrated in the South. No school is obliged to use it, so in states where it is permitted, it remains a matter of individual school policy.

Research shows that it is disproportionately used against African American children and children with disabilities, so if it does form part of your school’s disciplinary policy, it’s important to monitor it to make sure that it doesn’t contribute to discrimination. Other forms of discipline also present a risk in this regard, so keeping track of who is being punished and what for is essential to ensuring that, regardless of how much care has been taken in the design of the policy, it is ethically applied.

• Liability

If an educator, school, school district or even state fails to abide by the established legal obligations to students, who is responsible? This is a complex legal question that in some cases (e.g., Florida’s ban on teachers referencing LGBTQ+ people) has the potential to go all the way up to the Supreme Court. In the event of an apparent conflict of policies made at different levels, it is always the one made at the highest level that carries the most authority.

However, because this can take years and a significant expenditure of money to establish in a court, ordinary educators may hesitate to diverge from policy established at a lower level. This is where unions such as the NEA and American Federation of Teachers (AFT) play a significant role, backing up teachers who are unsure how to balance their legal responsibilities or perceive a conflict between their legal and ethical organizations. By joining a union whose ethical stance is in line with their own, teachers gain leverage that they would not have as individuals. They also get access to advocacy, even if, as individuals, they have limited means. This provides a degree of protection against lawsuits, and ensures that schools or school districts shoulder responsibility where appropriate.

Conclusion

When you have a solid grasp of the different types of issue at play in education policy development, together with a clear idea of what you think the priorities should be, you’ll be well equipped to handle difficulties and to ensure that no matter what, you can consistently deliver the best for the students you serve.