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The proceedings of the Commissioner for Educational Rights take place
in a legally regulated manner. The formulation of our position and the
selection of our measures must rely on legislation. Based on the applications
received by our Office and the experiences drawn from personal consultations,
we see, however, that legal conflicts arising in the area of public education
are surrounded by a number of other circumstances. Only a few institutions
runs civilised conflict management mechanisms. Another participant of
influence is represented by the system of interdependencies characterising
the world of education, the lack of information and knowledge of law,
with a particular view to how rarely educational participants realise
the importance of safeguarding rules. We believe that all these factors
contribute a great deal to the development of conflicts and may even lead
to some of these conflicts remaining latent. These factors often determine
the way problems surface. Repressed conflicts may become open as time
progresses but with less chance for their civilised resolution with emotions
pushing the real causes aside. Thus we must pay attention to these aspects
in the course of our proceedings when solving a case in legal terms.
It is a frequent experience that the majority of conflicts follow from
shortcomings in the flow of information. This is not limited to the lack
of a dialogue. In most cases, the parties involved are not aware of either
their own or the other party's rights. However, knowing these rights is
only a necessary, but not a sufficient condition of resolving conflicts
in a civilised way. It is indispensable that educational participants
possess appropriate techniques for handling these conflicts. Based on
two years of various experiences, we may claim that the vast majority
of public educational institutions have no conflict management mechanisms
allowing for the exposure and analysing of conflicts, the exploration
of their causes, and for the reaching of an agreement in order to remedy
them. Our Office therefore strives to present, with the involvement of
experts, proceedings that offer opportunities for settling disputes. Some
institutions employ a students' court, where students may initiate debates
on major issues affecting them. The employment of students' courts may
prevent certain cases artificially developing into a student v. teacher,
in other words an adult v. child, conflict. We are aware of the institution
of the chain of complaints by which students may seek help from the students
of another institution in a case that they cannot handle on their own,
since it is possible that a solution was found to a similar conflict a
few blocks away. It is our intention to release a publication featuring
the description of such techniques and the study of their effectiveness
in the Year 2002.
The world of public education is known for interdependencies so characteristic
of schools, which necessarily follow from the legislative environment.
A consequence of this is that conflicts often do not surface since the
injured party is afraid of becoming even more discriminated against as
a result of a complaint. The same situation may arise when the party in
a stronger position is averse to the solution of a problem. One reason
for this might be that teachers often experience signals from students
or parents as a loss of prestige. If a conflict becomes open, groups or
persons in a stronger position often wish to close a case one-sidedly
by abusing their dominant position. This often results in resistance,and
disobedience, and eluding the execution of a decision.
Our Office attributes particular importance to safeguard rules that are
indispensable requisites of the enforcement of educational rights. We
regard the right to receive information as such an indispensable safeguard.
Heads of institutions and teachers often believe that certain pieces of
information should not be released since they weaken their influence.
The lack of information, however, renders the educational participant
vulnerable, which is a source for further conflict. The best example for
this is the issues which encompasses the majority of conflicts between
teachers and parents - the lack of information on assessment criteria.
If a parent is unaware of the criteria to which a teacher marks and on
the basis of which the student's end-of-term or end-of-year grade takes
shape, then this parent will not be in a position to make the right decision
as a parent. A consequence of this is that the parent holds the teacher
liable in case of any dispute, thus questions the teacher's competence.
On the other hand, the teacher disputes the competence of the parent.
In such instances, wide-ranging provision of information may resolve who
is obliged to make a responsible and accountable decision, when and in
what matters. The provision of information not only protects the parent
or the student, but the teachers will not be put in a situation in which
their aptitude and the justification of their decisions need to be demonstrated.
Compliance with safeguarding procedural rules is an indispensable requisite
of the legality of any decision on the disciplinary liability of a student.
They include the reasoning of a disciplinary decision made in a case involving
a student and the provision of information on legal remedy. If the foregoing
is omitted, the operator acting in the second instance will often annul
the decision for formal shortcomings. In such instances, the decision-makers
experience the case not only as a legal loss, but also feel that the law
stands on the side of the defaulting party. Although in these instances,
the operator does not examine whether the student has breached their obligations,
an annulling decision is simply reached because a decision may only be
legal if procedural rules have been fully complied with. It is quite common,
and a situation well known among heads of institutions, for a court to
reinstate a dismissed teacher in their position, again with reference
to the formal shortcomings of a decision.
Based on these experiences, students are often expelled in order to avoid
similar situations. The principal asks a student who has committed a minor
offence, and their parents or a subordinate teacher to find another institution
in order to avoid disciplinary proceedings. There is not much that the
party concerned can do against such a notice whether that party is a student
or a teacher. There is no way to disclose evidence, to plead or to find
a legal remedy. A further symptom of these illegal proceedings is that
virtually anything can be committed in the school with the chance of striking
a deal afterwards and starting with a "clean sheet" in another institution.
This form of expelling somebody seemingly meets the interests of the stakeholders,
still the illegality of such proceedings is clear. We can only repeat
that expulsion by the use of pressure may not take place in public educational
institutions.
And finally, we have to discuss the system of students' rights. The Act
on Public Education and the Act on the protection of children's rights
resolve special rights for students and children because, as a result
of their age, they are not able to exercise their rights and protect their
interests like adults. All the Act on Public Education resolves with respect
to students' rights is that it adjusts constitutional rights to the age-specific
features of children. These are not "additional rights", but their enforcement
creates equal opportunities for children. A key principle of international
and national regulations concerning children's rights is that they are
matched with the obligations of certain adults. In the life of a school
or a nursery school this means that the teacher is the obligatory person
in the case of children's rights. A necessary feature of school life is
that students exercise a number of their rights independently. This is
the only way a student can become an educational participant who takes
part in the life of the educational institution as a party, a partner
equal to other participants. However, a passive attitude of adults to
students' rights will not suffice in this regard. Pursuant to a stipulation
of the Act on the protection of children's rights, every natural and legal
entity which is engaged in the education, training, provision and administration
of children is obliged to protect children's rights. Without the specification
of this obligation we could not speak about children's rights since their
enforcement would become impossible. It is our opinion that several conflicts
could be prevented or dealt with properly through the recognition and
acceptance of the situation described above.
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