Legal Ethics No Paradigm for Educational Administrators

Abstract

Shifting Conceptions of the Ethical For most of the past two millennia, it was commonly understood that there is no important distinction to be made between and Even as recently as 30 years ago, university catalogs were likely to list courses as either ethics or morals. Regardless, in each case the content descriptors were identical. Conceptually, this lack of distinction makes sense since and morals are each simply sentences that prescribe or prohibit action. Moreover, even the law is not meaningfully separate from morality since it represents that set of rules for social engagement that those who hold the sovereignty of state wish to endorse and enforce (Kierstead & Wagner, 1992). Today in certain sectors of the professional world some of these traditional understandings are undergoing considerable change. The discussion that follows will focus on two professions in particular, education and the law. There are three reasons for singling out these two professions. First, each is one of the four historic professions. The four historic professions, teaching, lawyering, doctoring, and preaching, have been ubiquitous across several millennia and across geographic barriers. Together the historic professions serve as models for other occupational groups intent on professionalizing their organizations (Abbot, 1994; Freidson, 1988; Macdonald, 1995). Second, the relationship between the law and education has become increasingly intimate both because of the rise of civil litigation generally and because of the increase in disruptive legislation bringing state and federal authorities ever closer to micro-managing school districts (Heubert, 1977). Third, to the extent that educational administrators begin to mirror changes of attorneys in the practice of law, the more educational administrators may drift from their authoritative and traditional moral vision. A Story of a Historical Profession: Lawyering The credibility of the legal profession is waning in the eyes of the public (Rosenholtz, 1991). Educational administrators have a duty to the profession they represent to do all they can to ensure that a similar fate does not befall the educational profession. To the extent that education leaders look to the legal profession for a model of professionalism, they risk devaluation in the public's eye. Educators have a moral vision distinctly separate from the legal profession. More than anything else it is the manifest commitment to the profession's traditional moral vision that preserves the profession's credibility in the public imagination (Wagner, 1993). Still the necessity for educational administrators to rely on legal advice increasingly makes modeling the value set of the legal profession a tempting distraction. Unavoidably, today's administrators increasingly find the need to refer to legal precedent and think somewhat like a lawyer when framing policy and managing the resulting dictates of policy. As alluded to above, the law has traditionally been considered a subset of public morality (Murphy & Nagel, 2002). Criminal law is an obvious example, but all law is shot through and through with moral commitments (both good and bad, as history illustrates). Consider the law of contracts: At its core it is essentially the law of promise-keeping (Ayres & Klass, 2005; Wagner & Simpson, 2009). Similarly, tax law is about the moral rightness of funding alleged public goods and in enlightened democracies includes some redistribution of wealth reflecting concerns for distributive justice. Finally, even the law of procedure and the law of evidence both address matters of jurisdiction, venue and admissibility of evidence respectively, each in an effort to secure some measure of social justice (Bayles, 1990; Ho, 2008; Stein, 2005). Admittedly, what the law is does not dictate how attorneys ought to manage their affairs as officers of the court. …