Administrative Discretion in Education

Preface

My purpose in assembling this collection of papers is to provoke a tremor in the field of educational administration by focusing explicitly on the centrality of the Aristotelian notion of phronesis—practical wisdom or judgement—as the foundation of administrative life and decision making. Such a purpose is retrospective, and requires that inquiry into educational administration be reset away from narrowly described positivist and quantitative analyses to a focus on the normative character of such inquiry, and to the integration of the empirical and normative facets of administration. Such a reconceptualization rests on the presupposition that phronesis is the hallmark of administrative action— in effect, that the use of judgement is the calculus of decision making, and that this should become the focus of academic inquiry into administrative life and administrative practice.

The Starting Point

My interest in discretion as a feature of administrative life began as a doctoral student in the Department of Education at the University of Chicago. In 1968, doctoral study in educational administration at the Midwest Administration Center relied heavily on perspectives from other disciplines in the social sciences and on the belief that the heuristic methods of those disciplines would enable doctoral students to bring discipline-based conceptualizations and methods of inquiry to questions in education. As a consequence, doctoral students were encouraged to cross the campus to other departments, and to acquire knowledge and understanding of the epistemology and research methods of such disciplines, so that these approaches might frame or at least influence doctoral dissertation research. My contemporaries variously engaged studies in economics, sociology, psychology and social psychology; some earned master’s degrees in these disciplines as well as their doctorate. One received two doctorates: one in education, the other in sociology.

This was also the time when scholars were questioning the possibility of a value-free social science, a position that I had already privately begun to question. My concern focused on the appropriateness of seeking a value-free social-scientific approach to questions of educational practice, believing as I did, and still do, that education as a social endeavour was and is inherently normative, hence value-laden and not value-free. So, while my excursion initially took me to the department of sociology, I then found my niche in the curriculum of the law school, which I believed would be more compatible with studies in education because law—also a normative body of knowledge and practice—would enable me to pursue and develop my emerging interest in the intersection of law and education.

In 1968, however, the city and university of Chicago, and more broadly the United States, were cauldrons of social dissent. Fuelled by the civilrights movement and the nationwide opposition to the war in Vietnam, the social context had become increasingly polarized and litigious. Issues of student rights inter alia, percolated through the courts. These decisions, in particular, drew my interest because, during my MEd at the University of British Columbia, I had developed an interest in issues of students’ rights. Reading these US decisions, however, I became aware of the tension between the oft-mentioned discretion of school officials and the emergent claims of students to rights under the US Constitution. In many cases, while assessing and sometimes affirming the rights of students, the courts explicitly reaffirmed the discretion of school officials in their management of schools. As a result, I came to appreciate the pervasive presence of discretion in judicial decision making as well as in administrative life.

My sojourn in law school exposed me to a variety of legal perspectives, central among which came from the seminar offered by Kenneth Culp Davis called Discretionary Justice. I registered in this seminar and was then exposed to Davis’ book of the same title as the seminar (1969), exposure that prompted me to propose a connection between school discipline and Davis’ conceptualization of discretionary justice (Manley-Casimir 1971). In turn, this provided a framework for my dissertation, directed at the use of discretion in the administration of discipline in a south Chicago high school. Using a case-study approach, the dissertation investigated the exercise of discretion by two disciplinarians responsible for handling trouble cases referred to them by classroom teachers. The study used methods of data collection gleaned from the literature of the early Chicago School of Sociology. Unrealized by me at the time, the study anticipated the development of qualitative research methods, including participant observation, document analysis and focused interviews; these provided the data for the study—methods now more generally accepted as features of qualitative research.

Returning to Canada with the dissertation incomplete, I chipped away at the data analysis and writing while working full-time first in Edmonton, then in Regina and then back in Edmonton, before joining the Faculty of Education at Simon Fraser University in 1974. It was at Simon Fraser that I eventually completed the dissertation (Manley-Casimir 1976). While in Regina, however, I stumbled upon B. A. Grosman’s book, The Prosecutor (1969), in the Regina Public Library and later John Hogarth’s book on the sentencing practices of Ontario magistrates (1971). These studies focused on the play of discretion in, respectively, prosecutorial and magisterial work.

My interest in the use of discretion in administrative decision making has continued since then, first at Simon Fraser and more recently at Brock University. I have developed and regularly taught graduate-level courses on this topic and have supervised graduate students working on aspects of administrative life in educational organizations. Their work is the basis of some of the chapters in this volume. In addition, I have served as an academic administrator both at Simon Fraser and at Brock; as a result, I have substantial direct experience of the role and importance of discretion in academic administration. So, this collection brings together some of my own writing on discretion and related topics, the work of graduate students, some of whom I had the privilege of supervising, and the work of others that tends to touch on this area.

The collection is not, however, exclusive and many readers will be able to document other organizational contexts in which officials exercise discretion in their daily interactions with the public. Lipsky’s work on street-level bureaucracy (1980) in particular, speaks to the pervasiveness of discretion in the interactions of lower level officials when they represent the organization directly to the public. More recently, the work of Keith Hawkins (1992) on the uses of discretion extends the discussion of discretion into both legal and organizational contexts.

In addition, there are a number of avenues of further research suggested in the following pages. One of particular concern to me is the role that emotions such as compassion play in influencing decisions involving the exercise of discretion. Compassion in many situations can be a generous and influential factor in deciding the appropriate course of action for an administrator to take, but can also have the effect of subverting resolve and undermining integrity.

Organization of the Collection

In Chapter 1, Nora Findlay addresses the dilemma identified by Davis that where law ends, discretion begins. Her chapter provides an excellent introduction to the volume because it is contemporary, growing out of her doctoral work at the University of Western Ontario. It provides an extensive review of the notion of discretion and applies this to the persistent problem of discipline in schools. Her discussion ranges widely over the language and functions of discretion, incorporating appropriate literature from both Canada and the United States, as well as pertinent decisions from both legal cultures. Concluding with a discussion of the oft-invoked and judicially endorsed criterion that decisions should be made in the child’s best interest, Findlay sets out the difficult discretionary problem of determining the child’s best interest in particular circumstances.

Chapter 2, Discretion in School Discipline, reports my own dissertation, completed many years ago at the University of Chicago. It was first published in Interchange, v. 8, (1/2) 1977/78, pp. 84–100 by the OISE Press. Republished with kind permission from Springer Science+Business Media B. V. June 23, 2011. The paper reports an empirical investigation of the exercise of discretion by two disciplinarians in a south Chicago high school. The analysis of the decision-making practices of the two disciplinarians caused me unwittingly (that is, without recognition until after the dissertation was completed) to stumble into cognitive psychology and to engage aspects of attribution theory—an aspect of the dissertation that regrettably I did not follow up.

Chapter 3 is based on Mary Hall’s PhD dissertation, completed at Simon Fraser University, in which she investigated the role of discretion in decisions made by school administrators about youth violence in schools. Hall examines the widespread assumption that youth violence occurs often in schools—a view fed by high-profile cases of such violence—and the ineffectual zero-tolerance response of school systems to such violence. Hall’s research shows how district policy is, in fact, complemented by the exercise of administrative discretion.

Chapter 4 reports Owen Webb’s MEd thesis, completed at Brock University, in which he investigated student perceptions of discretion in school-discipline proceedings. What is unique about his study is that the student perspective and voice is frequently absent from other studies. So, Webb’s work begins to fill this void, and he goes on to argue in favour of a restorative-discipline approach to matters of student discipline.

Chapter 5 by Michael Heilmann reports his graduate study of the perspectives of school principals on discretion and decision making. His work offers an overview of discretion and provides insight into the decision-making process that is used by school principals. Heilmann considers decision-making models and the controls or limitations placed on principals’ discretion, and proposes a discretionary spiral as a conceptual model to reflect his research findings.

Chapter 6 by Meyer, Macmillan, and Northfield reports their serendipitous findings of the role of discretion and conscience in principals’ decision making about difficult matters of principal succession. In conducting a larger SSHRC-funded study, these researchers uncovered the presence of discretion and conscience in the approaches their principals took to decision making. Their paper is an important validation of the presence of these elements in administrator decision making. This article originally appeared in The Journal of the Commonwealth Council for Educational Administration and Management, (ISEA) v. 37 (3), 2009, pp. 21–37. Reprinted with permission.

Chapter 7 by Karla Satchwell and Chapter 8 by Sandra Plavinskis shift the focus away from schools, and those who live and work in schools, to the post-secondary sector. In her doctoral work at the University of Alberta, Satchwell investigated the role of courage in the decision making of academic deans. Her work adds a dimension to our understanding of the use of discretion, because administrative decision making places academic administrators in situations where courage is both necessary and desirable. Satchwell’s chapter complements that by Sandra Plavinskis, whose MEd thesis, completed at Brock University, cleverly foreshadows the role that academic administrators may be called upon to play in the absence of formal discretion or when the exercise of formal discretion may deny the integrity of the organization’s purpose. As Plavinskis notes:

At times, senior administrators use their discretion to engage in institutionally endorsed behaviour to fulfill institutionally sanctioned objectives. At other times, senior administrators use their discretion to engage in dissenting courses of action, contrary to the prescribed and codified policies, procedures, and norms of the institution. (Plavinskis 2006, ii)

In such cases the administrator may indeed become a guerrilla in the mi (d) st, as her title suggests, acting in the discretionary shadows of their offices to preserve the organization’s integrity or, and perhaps more importantly, to preserve their own conscience. I found Plavinskis’ analysis really provocative since it focused attention on administrative behaviour that is noticeably absent from the literature but not from lived experience. In this way, her paper makes a significant original contribution to our understanding of discretion in administrative life.

Plavinskis’ work also brought to mind a paper that I had written some years earlier in which I had connected the issue of conscience, as articulated by Green (1984), to community values and mores, and to administrative responsibility. This paper forms Chapter 9. It was first published in the Administrator’s Notebook, v. 33 (4) at the Midwest Administration Center, University of Chicago. Permission to republish granted by the University of Chicago October 2011.

In Chapter 10, Alesha Moffat, through her MEd work at Brock University, relates the discussion of discretion to her experience teaching in Nunavut in an Inuit community. As a non-Indigenous educator, Moffat examines teacher discretion from the position of an outsider in a cross-cultural setting. The paper offers a detailed discussion of trust and the need for maximum participation in a context where inequalities and power differentials exist. Moffat contends that discretion is exercised when there is a space for collaborative decision making and reciprocal trust.

Finally, in the concluding essay, I try to pull together the various conceptual elements of discretion, conscience and practical wisdom, or phronesis, into a more complete and integrated view of administrative decision making. Drawing on collaborative work with Sandra Plavinskis, the argument I make is that fundamentally these elements form the calculus of decision making in administrative life.

— Michael E. Manley-Casimir

References

Davis, K. C. 1969. Discretionary Justice. Baton Rouge, LA: Louisiana State University Press.

Green, T. F. 1984. The Formation of Conscience in an Age of Technology. American Journal of Education 94 (November): 1–32.

Grosman, B. A. 1969. The Prosecutor. Toronto: University of Toronto Press.

Hawkins, K., ed. 1992. The Uses of Discretion. Oxford: Oxford University Press.

Hogarth, J. 1971. Sentencing as a Human Process. Toronto: University of Toronto Press.

Lipsky, M. 1980. Street-Level Bureaucracy: Dilemmas of the Individual in Public Service. New York: Russell Sage Foundation.

Manley-Casimir, M. E. 1971. Student Discipline as Discretionary Justice. Administrator’s Notebook 20 (2): 1–4.

Manley-Casimir, M. E. 1976. The Exercise of Administrative Discretion in Secondary School Discipline. PhD diss., University of Chicago.

Plavinskis, Sandra. 2006. Guerillas in the Mi (d) st: A Study of Discrete Dissention among Administrators in Academe. Master’s thesis, Brock University.

1   At Law’s End: In-School Administrators’ Exercise of Discretion in Disciplinary Decision Making

Nora M. Findlay

As a teacher I possess tremendous power to make a child’s life miserable or joyous. I can be a tool of torture or an instrument of inspiration. I can humiliate, humour, hurt or heal. In all situations it is my response that decides whether a crisis will be escalated or de-escalated, and a child humanized or dehumanized.

— Haim Ginott, Teacher and Child: A Book for Parents and Teachers

This paper presents a version of Nora M. Findlay’s 2012 PhD dissertation, completed at Western University, Ontario, Canada.

One of the most challenging and time-consuming aspects of the in-school administrator’s role is that of maintaining order and discipline, the twin legal imperatives that form the core of administrative practice, and without which the educational mission of the school could not be accomplished. Also inherent in the administrator’s responsibility is the obligation to ensure school safety, and fair and appropriate discipline can help to establish such an environment (Kajs 2006). Nonetheless, Bundy (2006) describes student discipline as an age old concern (2) of school principals and suggests it is one of the most contentious issues in the struggle for improving student achievement (113).

Within the context of the school setting, instances of student misbehaviour occur on a daily basis; frequently these incidents result in the

application of any one of a number of disciplinary measures. The significance of disciplinary responses to student misbehaviour cannot be understated. The substantial authority educators and administrators wield may have lasting effects upon children and youth, and research reveals school disciplinary practices may disproportionately affect minority students (Clark 2002; Fenning and Rose 2007; Mendez and Knoff 2003; Torres and Stefkovich 2009), and may contribute to early leaving of school (Mendez and Knoff 2003; Ruck and Wortley 2002). Although there often is little agreement among educators as to its purpose and goal, student discipline should be educative, corrective, supportive, and equitable. According to Kajs (2006), while discipline may be seen as retributive, preventative, or rehabilitative (18), usually it is associated with punishment (18; see also Fenning and Rose 2007), and it is against the function of maintaining school safety and preserving order in the school that administrators must balance their requirement to protect and to respect student rights in the school setting.

At the same time, decision making has been described as the sine qua non of educational administration (S. H. Davis 2004, 621), consisting of far more than the mechanical application of existing rules, regulations and various levels of school and school-related policy (Frick 2009, 50). Estimates suggest that principals can average ten activities, or some other aspect of the decision-making process, per hour (Crowson and Porter-Gehrie 1980) or can attend to nearly 150 tasks per day (Calabrese and Zepeda 1999) and, as multi-taskers extraordinaire, they make many spur-of-the-moment decisions while supervising a lunchroom or while conversing with staff or students as they scurry down a hallway. Indeed, Calabrese and Zepeda (1999) insist they often cannot afford the luxury of delayed decision making (8). Although their position as leaders of the instructional program is foundational to student achievement, Hanson (2003) maintains school administrators give most of their attention to managing the school and pupil control (95). Birrell and Marshall (2008) also surmise that much of a principal’s time is diverted from a focus on curriculum and school leadership to disciplinary issues. When they make decisions in matters of student discipline, school administrators are often required not only to problem solve but also to resolve ethical dilemmas (Cranston, Ehrich, and Kimber 2006). Many of the issues they face are intricate and multi-faceted, reflecting the complexity of the contemporary role of the school official and the challenges found in the pluralism and diversity of today’s schools (Begley 1996; Bundy 2006; Davis and Davis 2004).

Some scholars acknowledge the pervasiveness of values in administrative decision making (Begley 2003; Hodgkinson 1991) and suggest there is little support for a positivist turn in administration. In fact, Greenfield (1993) explains that the central questions of administration deal not so much with what is but with what ought to be; they deal with values and morality (194). Others, such as Hall (1999) and Torres and Chen (2006), consider values in principals’ discretionary decision making. Furthermore, Lunenburg and Ornstein (2009) maintain school officials are granted wide discretion in disciplining students (384), and every one of the twenty-eight administrators and teachers surveyed in Ackerman’s (2003) study noted the use of personal judgement and discretion in every disciplinary situation faced, regardless of the infraction (51). Manley-Casimir (1977–1978) argues that discretion is vital to administrators in their decision making, allowing them flexibility and creativity (84), and also pointedly maintains any model of administrative decision making must involve a consideration of discretion (personal communication). In a similar way, Lacey (1992) wonders if a decision can usefully be considered apart from discretion (380), and Galligan (1986) submits that it is hard to imagine a decision which does not involve some discretion (11). Hawkins (1997) contends discretion is pervasive and part of the daily behaviour of administrative officials. Justice Claire L’Heureux-Dubé, speaking on behalf of the Supreme Court of Canada in Baker v. Canada, considers it inaccurate to speak of a rigid dichotomy of ‘discretionary’ or ‘non-discretionary’ decisions, and notes that most administrative decisions involve the exercise of implicit discretion in relation to many aspects of decision making.¹

The Nature of Discretion

Discretion Defined

Black’s Law Dictionary defines discretion as wise conduct and management; cautious discernment; prudence and individual judgement; the power of free decision making (Garner 2009, 534). Galligan (1986) envisions discretion as requiring judgement, in particular good judgement, exercised within a sphere of autonomy (8). However, he does underscore the requirement of defensibility when he focuses on discretionary power as the ability to choose amongst different courses of action for good reasons (7). Discretion positively confers power upon officials when they require more freedom than a detailed system of rules allows (Galligan 1986, 2). In the absence of rules, then, each case must be considered on its own merits, and, as a result, discretion will be exercised differently in different cases (Jones and de Villars 2004, 192). While Grey (1979) maintains discretion cannot objectively be construed as being right or wrong (107), he believes it is usually coupled with a duty, although the duty simply may be to exercise the discretionary power or to act honestly and in good faith (108). Mullan (2001) pictures discretion in administrative law as being a continuum, characterized at one end by extremely broad, unstructured discretion, while at the other end of this spectrum, there are provisions that depend upon the application of legal terms sharply defined either in the statute itself or by clear common law principle (108).

Many reasons exist for the delegation of discretionary power, including the difficulty involved in creating rules to cover all eventualities, in identifying all factors which must be applied in particular circumstances, and in addressing the complexity of issues in modern bureaucracies (Jones and de Villars 2004, 86). Discretion is necessary because of the vagaries of language, the diversity of circumstances, and the indeterminacy of official purpose (Galligan 1986, 1) and, as shown in Baker v. Canada, may be exercised to fill in legislative gaps.² LaViolette (2007) argues, however, not all judicial discretionary decisions are able to fill these gaps in any coherent, consistent and policy driven way (667), citing advances in reproductive technologies and changing social conditions with respect to parenting as examples of current gaps which present challenges for family law reform.

The Language of Discretion

The language used in legislation delegating discretionary power provides the basis for its exercise. When a statutory power or authority is conferred by the use of the word may, Sullivan (2008) explains, the implication is that the power is discretionary and that its recipient can lawfully decide whether or not to exercise it, whereas the use of the word shall by the legislature imposes an obligation (70). The use of may does not preclude obligation (71), but Sullivan (2008) argues that the issue is not the meaning of the word, but, in more recent case law, the degree (73) and scope (74) of the discretion conferred. Focusing on the relational and conditional aspects of discretion, Mullan (1993–1994) alludes to the broad, subjectively worded grant of discretionary power (176), while Wade and Forsyth (2009) comment upon the subjective element in all discretion (355).

Requirements for Discretion

Discretion is not absolute. As Jones and de Villars (2009) contend, very few discretions are completely unfettered (87), and legislation usually enumerates the factors which delimit the amount of the discretion delegated (88). In Roncarelli v. Duplessis, the Supreme Court of Canada outlined the parameters for discretion when Justice Ivan Rand ruled on its behalf that there is no such thing as absolute and untrammelled ‘discretion, ’ or action that is taken on any ground or for any reason that can be suggested to the mind of the administrator.³ The guarantees enshrined in the Canadian Charter of Rights and Freedoms also act as a limitation on the scope of discretion and the matter of its exercise (Mullan 2001, 122). In Baker v. Canada, Justice Claire L’Heureux-Dubé identifies rights and freedoms guaranteed under the charter as factors that may have to be taken into account in the exercise of discretion.⁴ In articulating guidelines for the judicial review of discretion, the court not only recognizes the deference that is usually given to discretionary decision making, but also points out:

[Although] discretionary decisions will generally be given considerable respect, discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.⁵

Acting Reasonably and in Good Faith

Additionally, Wade and Forsyth (2009)