Can what you teach land you in trouble with the law?

Recent comments by a government minister suggested teachers could be breaking the law if they fail to provide balance when teaching certain subjects, but what does the law actually say?
14th November 2020, 8:00am

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Can what you teach land you in trouble with the law?

https://www.tes.com/magazine/archive/can-what-you-teach-land-you-trouble-law
Legal Duty Teachers

"We do not want teachers to teach their white pupils about white privilege and inherited racial guilt," the equalities minister, Kemi Badenoch, told the House of Commons on 20 October.  

"Let me be clear that any school that teaches those elements of critical race theory as fact, or that promotes partisan political views - such as defunding the police - without offering a balanced treatment of opposing views, is breaking the law."

It is safe to say that no teacher wants to find themselves on the wrong side of the law - but to which law was Badenoch referring in her comments, and what can schools do to ensure they do not unwittingly land themselves, or their staff, in legal difficulty?

Legal duty on teachers?

We put some of the most pressing questions to the Department for Education, and a spokesperson has responded. 

We have reproduced the DfE responses as they were sent to Tes, and an analysis of those remarks by a legal expert follows the Q&A.

Teachers are understandably concerned about breaking the law - what is your advice to them following the equalities minister's comments?

The law is clear that schools must remain impartial. School leaders and staff have a responsibility to ensure that they act appropriately, particularly in the views they express. 

When political issues are discussed, schools must offer pupils a balanced presentation of opposing views and should not present materials in a politically biased or one-sided way. 

Subjects are not "banned". However, it is important that when teaching about politically contentious subjects, schools must uphold their duties with regard to political impartiality and should not teach contested opinions as fact.

What does political impartiality mean in relation to teaching? What's the relevant legislation, and is there any guidance on what it means practically? 

The legal requirements for schools relating to political impartiality are provided in Section 406 and 407 of the Education Act 1996, and in Part 2 of the Schedule to the Education (Independent School Standards) Regulations 2014.

(The spokesperson did not respond to the question on practical guidance.)

Do the minister's words mean teachers simply cannot teach about "white privilege" or "inherited racial guilt"? 

No. Schools are free to teach about issues like these but must ensure pupils are offered a balanced presentation of opposing views. They should not present such materials in a politically biased or one-sided way, or teach contested opinions as fact.

Are there clear guidelines for teachers for staying within these legal requirements?

The legal requirements in this area are set out in the legislation. The government is committed to helping schools understand these duties and address risks to political impartiality. 

What happens if a pupil expresses a one-sided view in the classroom - are teachers legally obligated to give the other side of the argument? Similarly, if teaching an anti-capitalist text, for example, does it have to be balanced by the opposite view - and if so how much, and when?

The duty to secure balanced treatment of political issues requires local authorities, governing bodies, headteachers and proprietors to take reasonable and practical steps to ensure that where political issues are brought to the attention of pupils in school, they are offered a balanced representation of opposing views.

Have there been any instances when a teacher has been prosecuted for breaking this law? What are the legal consequences?

The government is committed to supporting schools to meet their duties regarding political impartiality and this is an objective shared by schools and teachers across the country. 

The duties in this area are not a criminal matter, and a teacher presenting a biased view is not committing a criminal offence. 

The duties fall on local authorities, governing bodies, headteachers and proprietors to take reasonable and practical steps to ensure a balanced presentation of views. 

The secretary of state does have powers to take enforcement action where schools are in breach of their legal duties, but these have not been used in relation to these requirements and would always be a last resort. Breach of any statutory duty could also be taken into account during an Ofsted inspection.

How would you recommend schools deal with a complaint if a pupil says a teacher was in breach of the law during a lesson?

Schools should follow their normal process with regard to concerns or complaints about political impartiality.  

All schools must have a complaints procedure in place. The Department for Education has published school complaints guidance for maintained schools, academies and independent schools.


Analysis

Smita Jamdar, partner and head of education at law firm Shakespeare Martineau, says:

I think the reason the DfE's answers appear light on legal substance is that, contrary to [Badenoch's] assertion, the concerns themselves are light on substance. 

The provisions that the DfE refers to require those involved in running schools to forbid political indoctrination, defined as the promotion of "partisan political views", in the teaching of any subject (section 406 of the Education Act 1996), and to take such steps as are reasonably practicable to ensure that where school activities entail the consideration of "political issues" they are offered a balanced presentation of opposing views (section 407). 

As the DfE has made clear, these are not duties to which individual teachers are directly subject. The subjects in question are not partisan political issues and therefore not matters that must be "forbidden" under section 406. Therefore, in order for any action to be taken against a school, it would be necessary to show that: the discussion about white privilege or systemic racism was a political issue; that pupils were not offered a balanced presentation of opposing views; and that the school in question had not taken reasonably practicable steps to prevent the breach occurring. 

In practice, teachers are used to discussing what might be considered to be controversial topics with their pupils in an evidenced and reasoned way that stimulates discussion and thinking, rather than indoctrinates, and there is no reason I am aware of - other than woolly allegations of left-wing domination of education - to think they would not discuss concepts such as white privilege or calls to defund the police in the same way. I'm not really sure it's any more complicated than that. 

The minister's statement that "We do not want teachers to teach their white pupils about white privilege and inherited racial guilt" seems to me to be overreach. Teachers are free to teach about these issues, provided they do so in a balanced way - as the DfE responses above note. 

How that balance is achieved - whether in the same lesson, or at a later time, for example - are not really a legal question. If a school was challenged over an alleged breach of the duty, and the matter ended before a court, the court would look at all the circumstances to assess if overall there had been a balanced presentation of opposing views, and that would be very fact-specific."

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