The twitterverse erupted in response to this story in yesterday’s papers about a student suing her former school Geelong Grammar for compensation, saying that it provided inadequate support to enable her to do sufficiently well on her final exams to be accepted to study law at Sydney Uni:
Seeking compensation in the Victorian Civil and Administrative Tribunal, she said her final secondary school score was too low to study law at the University of Sydney.Of her time at Geelong Grammar, she said: ”I didn’t ever feel I was getting the support I needed to really excel.”
Ms Ashton-Weir boarded at the school in 2008 and 2009 but finished her secondary studies at a TAFE college in Sydney. She is in the first year of a double degree in arts and sciences at the University of Sydney.
Her mother, Elizabeth Weir, is also suing the school for lost income and other expenses.
She said she gave up her chocolate fortune cookie business – which she had expected to make $450,000 over three years – because her daughter moved from Geelong to live with her in New South Wales.
Some might cynically observe that some lawyers in hindsight might have preferred to miss out on the ‘benefits’ of this career, but generally there have been pretty harsh assessments of the idea of litigating a school over this sort of issue. I can’t resist pointing out that someone alerted the media to this story, and my bet is that it was the girl or her parents. Given the response, I wonder whether she now considers that was a good decision?
It is not difficult to imagine why schools would be considered a target of litigation. They are charged with important tasks of educating children and preparing them for life and further study. Schools have a more and more involved role in the lives of students. And particularly where the schools in question are private or independent schools, the whole relationship is complicated by a commercial element. Finally to the extent that the school relationship is a legal or contractual one (again, most often with independent schools), the relationship is a complicated one – the person who is required to adhere to the rules and who receives the benefit of the school’s services is often not the person that has a legal contractual relationship with the school.
From a dispute resolution point of view, the position of the school in society has shifted (with some exceptions). Once upon a time, it was very much governed by a sense of community or overriding relationship between the school, children and parents. Now increasingly, people are more attuned to expecting particular outcomes, particularly where they are paying substantial fees for the service of educating a child. However, the overriding relationship still exists. Despite the very good work that many schools do, it can be difficult to determine just where particular responsibilities fall when there is a dispute.
As an example, one of the most common substantive complaints that I have heard levelled against schools is the failure to protect a child from bullying. This is often argued to support a reduction or remission of fees that should be payable. However conceptually this is a difficult element to regulate. How far is it reasonable to expect a school to go to prevent bullying? A school might have limited resources for supervision in the playground and bullying is, by its nature, an activity which seeks secrecy. And the actual wrong in this situation is the behaviour of another student or students. It is not unheard of (and more common than you would expect) for a child identified as a ‘bully’ (or more particularly his or her parents) to raise their own complaints about the treatment of their child.
In truth many of these cases ultimately don’t proceed as (unlike in the Geelong Grammar case) the child is normally the only one who would be able to give evidence of the fact. And most parents acting in the interests of their children would not want to put their child through the ordeal of giving evidence in court. So such cases are only likely to proceed somewhere like VCAT where the rules of evidence are relaxed enough to allow evidence to be permitted from parents or where the child at the centre of the story is old enough to agree.
This doesn’t guarantee that the child will be protected from harsh treatment, and one is reminded of the case of a negligence claim against a school where a young girl had been raped on an overseas excursion. The hearing prompted outrage when the barrister acting for the school questioned the ex student at length about the way that she dressed and put into evidence surveillance footage of her going to night clubs and parties (upon her return from the trip).
This path towards increasing litigation and formal dispute resolution in areas which have traditionally been ill-accustomed to it can also be seen in increased litigation regarding clubs and associations and other community organisations. I don’t expect the trend to reverse. And it inevitably means that schools and community organisations are forced to protect themselves by becoming less flexible and more procedurally rigid.