Blog post

Judicial pedagogies: What do judges think education is?

Nigel Fancourt, Associate professor at University of Oxford 29 Nov 2024

Globally, courts frequently make judgments on educational issues. In some countries this has been longstanding, such as in the United States’ rulings on teaching evolution (Tennessee v Scopes, 1925) or on racial segregation (Brown v Board of Education, 1954). Elsewhere, ‘juridification’ – that is, the transfer of issues to the courts – is a more recent development. It also occurs in supranational courts, such as the European Court of Human Rights. In making judgments, judges inevitably reveal their own assumptions about education. Educationalists may grasp the definitional complexities, but judges may consider them unproblematic: one European Court judge considered ‘teaching’ to be ‘that unambiguous word’ (in Lautsi v Italy).

These ‘judicial pedagogies’ (Fancourt, 2024) require attention, having been largely overlooked in British and European educational research. This term echoes Bruner’s (1996) notion of ‘folk pedagogies’:

‘Beliefs of this kind, whether expressed by laypeople or by “experts,” badly want some “deconstructing” if their implications are to be appreciated. For whether these views are “right” or not, their impact on teaching activities can be enormous.’ (Bruner 1996)

Judges are clearly ‘experts’, if not in education, because their judgments affect education across nations – indeed continents. The following three cases from different courts exemplify the broad scope of juridical definitions of ‘education’.

Education is about more than attaining qualifications

Education has arguably become synonymous with accreditation. This, however, was rejected in English education tribunals in 2016 (Buckinghamshire County Council v SJ). This case concerned whether a local authority had (financial) responsibility for a pupil with severe learning needs who was almost certainly unable to gain qualifications. The judge interpreted education widely.

‘I reject any suggestion that the attainment of qualifications is an essential element of education. For many of those to whom the [legal provisions apply], attaining any qualifications at all is not an option. That does not mean that they do not require, or would not benefit from, special educational provision.’

To deprive an individual of education is to the detriment of society generally – even for those who are behind bars

Second, in the European Court, a 2019 case concerned the rights of Arslan and Bingöl, two Turkish prisoners serving life sentences, to online higher education courses – and therefore laptops and the internet. This raised discussion about the benefit of education, if the learners were incarcerated. The Court held that:

‘unlike some other public services, education is a right that enjoys direct protection under the Convention [on Human Rights]. It is also a very particular type of public service, which not only directly benefits those using it but also serves broader societal functions. Indeed, the Court has already had occasion to point out that ‘[i]n a democratic society, the right to education … is indispensable to the furtherance of human rights [and] plays … a fundamental role.’

Attention to laws and courts is critical in understanding many post-colonial education systems

In the 2007 case MEC for Education: Kwazulu-Natal and Others v Pillay, an Indian heritage pupil started wearing a nose-ring to school in South Africa, breaching the school’s uniform policy, so the school excluded her. Her mother argued that this was discrimination. The court agreed, and Judge O’Regan’s ruling reviewed the purpose of education from a post-apartheid perspective:

‘Education is the engine of equal opportunity. Education in South Africa under
apartheid was both separate and deeply unequal. Notoriously, HF Verwoerd
proclaimed in 1953 that – ‘Native education should be controlled in such a way that it should be in accord with the policy of the state…’

She explicitly suggested that a School’s Code of Conduct was a device for rights education:

‘…the school should provide a place in its curriculum for the Code of Conduct to be discussed with all learners in the classroom. That discussion should include a discussion of the principles on which exemptions from the rules are granted and the process whereby that happens.’

The above three cases demonstrate that judicial pedagogies around the world merit closer investigation and attention as the role of courts increases.