School accountability: should we let the courts decide?

We need a court of education to judge schools, says Bernard Andrews – Ofsted, despite its tinkering, will never work

A court of education could provide much fairer judgements on schools than Ofsted, argues Bernard Andrews

There is a paradox at the heart of Ofsted. On the one hand, Ofsted’s defenders claim that its frameworks and handbooks aren’t prescriptive. After all, they do not say precisely how a school should go about ensuring that "leaders have a clear and ambitious vision for providing high-quality, inclusive education and training to all", nor do they explain what is meant by "a clear and ambitious vision". "Schools are free to choose how they achieve these things," Ofsted would say. 

And, on the other hand, if a school gets it wrong, people will be fired.

“OK,” the defenders may respond. “Even if the frameworks are prescriptive, are there any teachers who think that education should not be ‘high-quality’ and ‘inclusive’? Don’t all children deserve an outstanding education?”

Of course, education should be high-quality and inclusive. But what is it that makes this, and other sentences contained in the Ofsted framework, true?

Our assumption might be that the meaning of these sentences is determined by some empirical or scientific facts about schools, that whether teaching is ‘high-quality’ is determined by some empirical fact about teaching, that whether ‘learners are resilient to setbacks’ is determined by some empirical fact about the learners.

If this is the case, all that schools would need to do is work out what these empirical facts are and somehow recreate them.

But it is this mistaken assumption that leads schools to justify bonkers policies on the grounds that this is what Ofsted wants. School leaders become fixated on a particular way of doing things – triple marking, learning styles, only 10 minutes teacher talk and so on.

And unfortunately for Ofsted, simply rejigging and rewriting the framework according to which they make these judgements cannot solve this problem. It will inevitably result in new fixations – perhaps this time schools will all be producing "knowledge organisers" and referencing cognitive load in every lesson plan.

Ofsted and the language of accountability 

In order to fix our accountability system, we need to correct the mistaken assumption at its root: it is not things or situations which determine what words mean, but the rules for the use of words which determine the things and situations that the words can signify. 

The meaning of "learners are resilient to setbacks", for example, is not determined by some fact about the students themselves, but by the rules for the use of that phrase, which are given by the practices in which the phrase is used.

Because Ofsted’s approach does not appear to recognise this fact, instead of encouraging teachers to improve their teaching, its pronouncements are paradoxically both too vague and too specific to be of benefit. The only change that Ofsted can bring about is the creation of jargon, new slightly perverse and isolated ways of using words.

It is this isolation from ordinary language which is the problem. Consider the strange meaning that the words "outstanding" and "good" have in educational circles. I cannot substitute this new meaning into other contexts. (When Jesus asked his disciples, "Why do you call me good?", he wasn’t taking umbrage at not being graded "outstanding".) It’s no surprise that Ofsted’s frameworks, like so many other social indicators tend to, as Donald Campbell wrote, "distort and corrupt the social processes it is intended to monitor."

So, what is the solution to this problem? How do we establish whether a school is providing high-quality education? How do we encourage the improvement of teaching?

The key is to have an accountability system which is built upon an understanding of how language actually works. Since it is the rules for the use of words which determine the things the words can signify, we need to understand those rules as they are exhibited in ordinary language, in actual cases. That a certain teaching approach has value is determined by reference to the meaning of the various justifications for its value. Thus, what is important is not prescribing certain behaviours, but describing the various justifications and the rules for the use of those justifications.

A case for the courts?

All the prescriptive powers of Ofsted, the powers to legislate or mandate what counts as good education, should be given to a form of judiciary. Our common understanding of what counts as good education could instead be revealed and developed through something akin to case law. In case law or common law, laws arise as precedent. When there is disagreement as to what the law is, past decisions are synthesised with the current facts. Precedent is applied in context, taking into account similarities and differences with past cases.

Imagine a system in which teachers were able to take educational disputes (rather than only criminal or civil ones) to a court which would decide whether triple-marking was most likely detrimental to the education of the children. Or which would decide whether a parent’s expectation that a school would provide music lessons was reasonable, or whether "flattening the grass" was educationally just or unjust, or whether the "principle of subsidiarity" ought to apply in a school's decisions to isolate students.

Over time, our courts of education could develop a body of well-justified norms and expectations that must be considered by teachers, but which could be transgressed if new information came to light which justified a different course of action.

Our current system is prescriptive and develops in awkward and ungainly leaps: such a system would better reflect pedagogical knowledge, which grows organically and incrementally, which is responsive and descriptive.

Ofsted's role could be reduced to that of a police force, merely investigating whether schools are compliant with this body of knowledge (and other relevant law) and when they're not, taking schools to the courts of education (or other relevant authority).

While I applaud Ofsted’s efforts at a consultation on its new framework and its engagement with teachers more generally, our accountability system should be nothing but consultation and debate.

We need a system in which justice, reason, reasonableness and persuasion in good faith are given priority, and where these virtues are defended against political or economic self-interest, and against the powers of misinformation and sloganeering. This is surely an ideal of any education system.

Bernard Andrews is a secondary school philosophy teacher

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