Untangling the knot of legal protection in education
Inaugural lecture
Legal protection in education is something of a neglected child: oddly split between administrative law and civil courts. Brechtje Paijmans is calling attention to this issue as Professor by Special Appointment of Conflict Resolution and Legal Protection in Education.
Parents choose a good school for their children only to face surprises later. Say Abel attends a state school, while his neighbour Ben goes to a Christian or ‘special’ school. Both are expelled for misconduct.
Set in stone
‘At a state school, if you don’t appeal an expulsion within six weeks, the decision is set in stone and cannot be challenged anywhere,’ says Paijmans. ‘At a special school, that formal appeal is possible but not mandatory.’ Parents don’t know this, and schools often don’t either.
Abel and Ben
Suppose both sets of parents contest the expulsions. Abel’s parents lodge an objection in time. Neither family reaches an agreement with the school. Abel's parents must then go to the administrative court because state education is state provided. Ben’s parents, however, must turn to the civil court because special education is a private initiative.
Two routes
These two routes are more than a technicality. Administrative courts view education cases differently from civil courts. ‘Take children who need extra support, for whom the law explicitly requires the school to draw up a written development “perspective”,’ says Paijmans. ‘In an Amsterdam dispute, the civil court interpreted the law “loosely” and ruled that the school had offered the pupil some “perspective”. An administrative court would almost certainly have applied the law literally.’
Legal inequality
For Paijmans, this compartmentalisation signifies legal inequality. She herself can’t be put into a box. Early in her career she switched from teacher training to law school, becoming a lawyer instead of a teacher. She practised liability law, earned a PhD in 2013 on schools’ duty of care and later specialised in education law.
Strange cases
This isn’t as big a leap as it might seem. ‘As a liability lawyer, I handled cases about PE accidents or late diagnoses of dyslexia. That led me deeper into education law.’ Since then, she has seen odd things. ‘Last summer, a civil court ordered a school to issue a diploma to a boy who had a 5.4 for Dutch [the pass rate is 5.5, ed.]. But a diploma carries social weight.’ In her view, the court should never have done this.
Great suffering
The bigger problem, Paijmans argues, is that legal protection in education is fragmented, opaque, hard to apply and, above all, not easily accessible for parents and children. ‘Parents in Amsterdam-Zuid will probably assert their rights, but in Rotterdam-Zuid it’s a different story. Cases about failed exams make headlines, but there’s far more suffering – around special needs education and children stuck at home.’
Drawing a clear line
There’s no easy solution. ‘Legal protection in education is vital,’ says Paijmans. ‘That doesn’t mean it should automatically become much more accessible. We first need to untangle the knots and make the rules clear, for schools and parents as well as for lawyers and judges. Only then can we look at how accessible this legal protection should be, from both an individual and societal perspective.’
As a professor holding the chair funded by the Education Disputes Foundation, Paijmans will focus on these issues. Meanwhile, her teaching background is coming in useful – though she never imagined standing before a room of master’s students in juvenile law teaching the Child and Education course.
Brechtje Paijmans will give her inaugural lecture ‘Balancing on the Threshold: Access to Education Law’ on Friday 12 December at 16.00.