Legalism and Education

Lawyer Philip K. Howard, in the New York Times, has an interesting take on education reform:

Law has a noble pedigree in setting educational goals, as happened 50 years ago with desegregation. Using legal dictates to specify how to achieve those goals, however, has had the opposite effect - it has basically killed the human instinct and judgment needed to run a school.

Law is brilliantly ill suited as a management system. Law is rigid and leaves no room to adjust for the circumstances. Once the idea of rule-based management takes root, the bureaucracy grows like kudzu. Teachers and principals spend the day tied up in legal knots. ...

A legalistic culture becomes poisonous, transforming what should be a cooperative enterprise into a viper's nest of competing entitlements, as people start parsing the rules to get their way. What matters, students quickly learn, is not right and wrong, but what you can argue. The principal's authority deteriorates under all these legal demands - by teachers, custodians, special education students, any students or parents who think they could have been treated better.

Just as an aside, there was a school of governance in ancient China known as the Legalists (principle proponents: Shang Yang, Han Feizi, Li Si) which attempted to create a perfectly harmonious society by legislation: if everyone followed the law, which would be written in great detail to cover most contingencies, then society would be at peace and prosperous. The rules for bureaucrats in particular were very strict, because the system would not function if functionaries overreached or micromanaged, but if officials stuck to their duties, and carried them out in accordance with the law, all would be well. Punishments and rewards were both crucial in this system. It's an interesting combination of Daoist harmony, Confucian bureacratism and realpolitick statecraft (Machiavelli compares quite nicely to the Legalists). Legalism was the foundation for China's first Imperial dynasty, the Qin (3c bce) and has shared its reputation for draconian punishments; like the original laws of Draco, while the punishments described were indeed harsher than convention what they really did that was so shocking was apply those laws consistently and without favor, extending the government's authority into new realms. The Han dynasty, when it succeeds the Qin, makes only slight revisions to the Qin code and bureaucratic system, mostly recreating feudal privileges and reducing (not eliminating) state slavery (and the ambitious projects such labor enabled) and maiming punishments. Legalism is a very present strain in our own time: the belief that conflict and bad judgment can be eliminated entirely through micromanagement.

Howard has a solution, though:

Guarding against incompetence or unfairness can be accomplished far more effectively with human oversight than with legal central planning. Give someone the authority to act as a check and balance. And if we don't trust those in charge now, then let's set up parent-teacher committees with the power to review disciplinary and employment decisions. Parents and teachers know what's going on, and who's good and who's not.

The legalistic approach was mainly a byproduct of reforms from the 1960's, intended to guarantee individual fairness. But fairness in cooperative enterprise requires balancing of different interests, and a preoccupation with legal rights has achieved not fairness but a general decline of order, civility and achievement.

Schools depend on the energy, skill, judgment, humor and sympathy of teachers and principals. Liberate them to draw on all their human traits. Then liberate some of us to hold them accountable. Throw most of the rules overboard. Let law set the goals and basic principles, not dictate daily decisions.

Part of the problem is our legal system, which he does not address. If a dispute reaches the courts, as it so often does, the remedy becomes precedent and is often written into policy. There's a great deal of preventive rule-making as well: setting rigid standards, particularly for safety, so that failures are"impossible" and therefore liability is avoided. He also doesn't make an argument that I would have expected: the cost savings in reduced bureaucratic entanglements amount to spending more money on education. Unless failures become liabilities..... ouch, that's circular.

I'm deeply sympathetic to Howard's aims: greater flexibility and more realistic accountability; community involvement instead of legalism. One of my favorite ideas, though I've never seen it put into practice, is the Teaching Square technique, where a non-hierarchical group of teaching faculty visit each other's classrooms both to give feedback and learn from each other's techniques. Even my second-to-least-favorite HNN blogger, Thomas Reeves, has recently suggested a more open, mutual and cooperative approach to evaluating teaching. It would be harder, in a college setting, to engage the community: in primary and secondary ed, that means involving parents, but we can't do that legally in post-secondary education....

Non Sequitur:"professor b." has some interesting fulminations on students' decision-making and our role in facilitating the resulting tradeoffs. [via Siris]