Abstract
The authors examine the relationship between ethics, law, and policy with the intent of distinguishing between as well as denoting the intersection of ethics, law, and policy as situated in education. Distinguishing between legal and professional ethics, the nature of legal ethics as practiced in adherence to the law and professional ethics as presented in adherence to professional and/or institutional codes of ethics specific to educational cultures is examined. Ethical awareness and sensitivity as related to ethical behavior is examined in contrast to ethical deceit and ethical self-interest. Ethical misconduct is examined, focusing on ethical drift, ethical missteps, conflict of interest, partisanship, and psychological basis for unethical behavior. Exemplars of ethical misconduct are presented and the legal consequences of unethical behavior in education are discussed.
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Notes
- 1.
As contributing authors to an edited work that reflects a cross-national or diverse global perspective on education and the law, we are sensitive that the discussion set forth in this chapter on education, ethics, and law and the legal consequences of unethical behavior will be viewed differently by educational and legal professionals as well as political/policy professionals from nation states in other regions of the world, and equally sensitive to the different perspectives that define the legal consequences of unethical behavior in educational institution/settings in those nation states. With this in mind, the positions on ethics and legal consequences of unethical behavior that we discuss are based on a belief that other countries or national states, in similar fashion to the United States, have educational institutions and court systems as well as political/policy frameworks that function in cultural contexts. In terms of the legal system in other nation states, it is Recognise that whereas the United States has a judicial branch of its government, other national states have a comparable legal system pursuant to the constitutions and workings of those nation states. That said, we believe the points presented in our discussion have merit for educational, legal, and political/policy professionals in the U.S. and other nation states.
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The following is provided to further explain the types of law (see Dzienkowski 2016):
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Statutory law, e.g., the United States Congress and state laws enacted by legislatures, affect educators. Examples include statutes governing educators’ obligation to report suspected abuse and neglect of children; requirements for educators to address needs of special needs students; federal requirements for researchers to submit applications to Institutional Review Boards (IRB) for review of research including human subjects.
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Case law is typically considered in adjudicating cases in the courtroom. For example, a judge may need to interpret the meaning or application of existing law, resolve conflicts between laws, or fill gaps in existing laws. Such rulings by the court become legal precedent or case law.
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Regulatory law in education speaks to regulations promulgated by federal and state government agencies . As example such under the United States system of law, federal and state agencies have the authority to establish enforceable regulations. Public agencies must follow strict procedures when they create regulations (e.g., providing public notice and opportunity for public comment about drafts of regulations).
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Constitutional law, e.g., the U.S. Constitution and state constitutions, include numerous provisions that pertain to social work practice. Examples concern citizens’ right to privacy and protections against improper search and seizure (which are important in residential treatment programs) and protections against cruel and unusual punishment (which are important in juvenile and adult correctional facilities).
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Executive orders are the responsibility of chief executives in federal, state, and local governments (e.g., a president, governor, mayor, or county executive) may issue orders that resemble regulations. This authority is usually based in federal and state statute .
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- 4.
Malfeasance as used in this context of education is the commission of an act that is illegal or wrongful and intentional. Improper and/or illegal acts by a public official in an educational setting such as a school or university are determined as an act of malfeasance when the act violates public official’s duty to follow the law and act on behalf of the public good (see Woods 2013).
- 5.
By moral character we mean a collection of virtues or vices that enable or inhibit the accomplishment of good conduct (see MacIntyre 2007, for further discussion of moral character).
- 6.
Bazerman et al. (1998) proposed the “want/should” distinction to describe intrapersonal conflicts that exist within the human mind.
- 7.
Legal responsibility of schools:
Under the law, schools have an affirmative duty to identify, locate, and evaluate students who they suspect may have a disability, in order to evaluate them for potential eligibility for special education services (see IDEA 2004, 20 U.S.C. § 1412(a) and 334 C.F. R. § 300.111). Schools must maintain a system of notices, outreach efforts, staff training, and referral processes designed to ascertain when there are reasonable grounds to suspect disability and the potential need for special education services. (http://www.rtinetwork.org/learn/ld/legal-implications-of-response-to-intervention-and-special-education-identification)
- 8.
The distinction between sexual misconduct and sexual abuse is significant in legal and other terms, however the two terms may be used interchangeably in certain contexts. The prevalence of sexual misconduct in schools is of concern to students, parents, school administrators and the courts (Shakeshaft 2004, 2013). An intentional act of sexual misconduct on the part of a teacher toward a student is considered malfeasance and actionable in courts of law.
- 9.
Title IX of the United States Education Amendments of 1972 (“Title IX”), Public Law No. 92–318, 86 Stat. 235 (June 23, 1972), codified at 20 U.S.C. §§ 1681–1688 is a Federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities receiving and Federal funding must comply with Title IX. Under Title IX, discrimination on the basis of sex can include sexual harassment or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion. Sexual violence is inclusive of sexual misconduct such as engaging in sexual relations with a minor (see https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html)
- 10.
First Amendment, found in the Bill of Rights in the U.S. Constitution guarantees freedoms concerning religion, expression, assembly, and the right to petition (see https://www.law.cornell.edu/wex/first_amendment).
- 11.
The Family Educational and Rights and Privacy Act (FERPA) (20 U.S.C. § 1232 g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. (see https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html)
- 12.
On self-deception, Dolovich (2002) notes:
This tendency to self-deception may be the single biggest obstacle to integrity. It prevents honest scrutiny of our own motives, requires that certain ideas be permanently excluded from our minds, and prevents us from fitting comfortably, without tension, into ourselves. The practice of self-deception thus precludes the possibility of becoming an integrated whole, a state of being which is the essence of integrity. (p. 1658).
- 13.
The term university counsel as used herein is treated as synonymous with attorney or lawyer. University counsel holds a law degree from an accredited institution.
- 14.
Partisan is commonly used to describe people who fit a dictionary definition of a “partisan,” that is, those who are adherents to, or aligned with, a specific “political party, faction, cause, or person”. Legal professionals (lawyers, university counsel) and educational professionals (administrators, researchers) may be partisans in the social-psychology sense (i.e., adhering to a specific political, financial, ideological affiliation) without complying with the partisanship principle (i.e., pursuing that client’s cause as far as the law allows). The distinction is significant because critics of the dominant view reject the partisanship principle but acknowledge that lawyers are partisans in the sense of being aligned with a particular side of a matter. For purposes of this chapter, partisan and partisanship speak to being in a position or relationship subjectively due to positions of power or politics (see Perlman 2015, p. 1643).
- 15.
The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232 g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools and educational organisations that receive funds under an applicable program of the U.S. Department of Education.
- 16.
The Programme for International Student Assessment (PISA) is a worldwide study by the Organisation for Economic Co-operation and Development (OECD) in member and non-member nations of 15-year-old school pupils’ scholastic performance on mathematics, science, and reading (see https://www.oecd.org/pisa/test/). Its influence on countries’ policy of student assessment is the range of ways in which PISA is influencing countries education policy choices. Policy-makers in most participating countries see PISA as an important indicator of system performance; PISA reports can define policy problems and set the agenda for national policy debate; policymakers seem to accept PISA as a valid and reliable instrument for internationally benchmarking system performance and changes over time; most countries – irrespective of whether they performed above, at, or below the average PISA score – have begun policy reforms in response to PISA reports.
- 17.
Title IX, as discussed previously, sets Federal guidelines for sexual misconduct and provides for appropriate institutional action. A review of this law should be considered in concert with local and state laws pertaining to illicit relations between a teacher and student.
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Jenlink, P.M., Jenlink, K.E. (2018). Education, Ethics, and the Law: Examining the Legal Consequences of Unethical Judgment. In: Trimmer, K., Dixon, R., S. Findlay, Y. (eds) The Palgrave Handbook of Education Law for Schools. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-77751-1_6
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