ERIC Number: EJ780251
Record Type: Journal
Publication Date: 2007
Reference Count: N/A
The Way We Were--Or Are Again?
Howard, J. Paul R.
Education Canada, v47 n4 p30-32, 34 Fall 2007
When the author first started working in the education law field, about 20 years ago, representing school boards and their officials, he always kept at the ready a half-dozen or so judicial decisions that expressed an attitude of judicial deference that many judges, including some of the Supreme Court of Canada, often displayed toward the decisions of educators. So if a case turned on, whether a particular pedagogical policy was appropriate or whether an educator had exercised her professional judgment properly, the author would readily refer the court to one of these pronouncements. These were what he called his "educator deference" cases. The thread that ran through his educator deference cases was a recognition by the courts that in some instances they lacked the functional expertise required to resolve the question at issue. These judges had stepped back from the merits of the particular case before them and had considered the larger issues of functional competence and relative expertise. These judges had asked themselves: "who should be deciding this question, the educators or the courts?" However, things changed. As the 1990s progressed the author found that he no longer had much need to refer to his educator deference cases--because no one was listening to them anymore. The argument that one should give some deference to the professional judgment of educators in education matters--because, after all, they are the educators--found such disfavour, or just disinterest, with courts and tribunals, that its persistent advancement became sadly quixotic. Educators today cannot, and should not, assume that the courts and administrative agencies will automatically defer to their decisions. However, it is fair to say that the pendulum has begun to swing back, and that the courts are again prepared to acknowledge the relative expertise of educators and to defer to their professional judgment where their decisions follow due process and are based on sound educational principles. (Contains 5 notes.)
Descriptors: Judges, Civil Rights, Principals, Courts, Court Litigation, Foreign Countries, Childrens Rights
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Publication Type: Journal Articles; Reports - Descriptive
Education Level: N/A
Authoring Institution: N/A
Identifiers - Location: Canada
Identifiers - Laws, Policies, & Programs: Canadian Charter of Rights and Freedoms