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2007/21 Should school teachers break up fights between students?<BR>

2007/21 Should school teachers break up fights between students?


What they said ...
'There is no immutable rule that a teacher should physically intervene in a fight between students'
Victorian Civil and Administrative Tribunal

'Our impression from watching the video is that [Mr Moran] appears inexplicably absent from the centre of the action for the three minutes of video footage prior to the occurrence of the fight itself'
Victorian Civil and Administrative Tribunal

The issue at a glance
On August 12, 2007, it was reported that the Victorian Civil and Administrative Tribunal (VCAT) had reinstated a Victorian teacher, Mr Peter Moran, who had previously been deregistered by the Victorian Institute of Teaching (VIT).
Mr Moran had been deregistered for his supposed failure to attempt to stop a fight between a number of female students at Langwarrin Secondary College in 2002.
VCAT found that Mr Moran's lack of intervention was an error. The Tribunal also considered that Mr Moran had been negligent in not ascertaining the extent of one girl's injuries. However, VCAT concluded that neither was of sufficient severity to warrant Mr Moran's deregistration. VCAT also criticised the Victorian Department of Education and Training for its failure to provide guidelines for teachers as to when and how they should intervene in fights between students.

Background
The events which occurred around the fight between female students at Langwarrin Secondary College in 2002 remain disputed.
Mr Moran claims that he attempted verbally to prevent the fight and that he asked other students to get additional teachers to assist him. He was apparently outside the range of the surveillance camera in the area and there is no corroborating student evidence of his claims. Mr Moran also claims that teachers at the school had been warned not to make physical contact with students.
The school's principal judged that Mr Moran should have 'moved into the students' to break up the fight. He contacted the Education Department's conduct and ethics branch. He thought Mr Moran had breached his duty of care.
The Education Department, which was later supported by the Industrial Relations Commission, dismissed Mr Moran and the Victorian Institute of Teaching cancelled his teacher registration.

The Victorian Civil and Administrative Tribunal
VCAT was created on 1 July 1998 and amalgamated 15 boards and tribunals to offer a single body for dealing with a range of disputes..
VCAT deals with disputes about:
purchase and supply of goods, credit, discrimination, domestic building works, guardianship and administration, disability services, legal profession services, residential tenancies and retail tenancies.
VCAT also deals with disputes between people and government (State/Local) in areas such as:
land valuation, licences to carry on businesses (including travel agents, motor car traders and others), planning and environment, State taxation and many other government decisions (such as Transport Accident Commission decisions, freedom of information issues and Victorian Institute of Teaching).

Victorian Institute of Teaching
The Victorian Institute of Teaching is a statutory authority for the regulation and promotion of the teaching profession in Victoria established by the Victorian Institute of Teaching Act 2001.This Act was repealed with the proclamation of the Education and Training Reform Act 2006 on 1 July 2007. The Victorian Institute of Teaching continues in operation under and subject to the Education and Training Reform Act 2006 after 1 July.
The Institute operates along similar lines to other regulatory bodies, such as the Medical Practitioners Board of Victoria, the Legal Services Board and the Nurses Board of Victoria.
It registers teachers working in Victorian government, Catholic and independent schools. Like other professions occupying positions of trust and responsibility, teachers are required to be registered in order to practise their profession. All practising Victorian school teachers must be registered by the Institute.
The Institute is governed by a twenty member Council, the majority of whom are practising teachers from government, Catholic and independent schools.
The Institute:
registers all teachers to ensure only qualified people are employed in Victorian schools;
promotes the profession of teaching to the wider community;
works with teachers to develop standards of professional practice;
supports teachers in their first year of teaching with a structured induction program;
approves and accredits pre-service teacher education courses that prepare teachers;
investigates and makes findings on instances of serious misconduct, serious incompetence or lack of fitness to teach.
It was in this last capacity that VIT became involved in the case of Mr Peter Moran.

Internet information
Student management guidelines from the Victorian Department of Education and Training can be found at http://www.eduweb.vic.gov.au/edulibrary/public/schadmin/Management/6-16.pdf
This includes the following guidelines on the restraint of students:
'Regulation 22 of the Education Regulations 2000 states: "A member of the staff of a State school may take any reasonable action that is immediately required to restrain a student of the school from acts or behaviour dangerous to the member of staff, the student or any other person."
The regulation authorises 'reasonable' action which is 'immediately' required to 'restrain' a student. In less serious cases, the reasonable action would involve a warning or instruction to the student not to proceed. In more serious cases where a person faces an imminent threat of injury due to the student, the reasonable action could involve the physical restraint of the student.
The object of the restraint is to avert the danger to some person. It should therefore be measured (i.e. reasonable in the circumstances) and removed once the danger has passed.'
The full text of these guidelines can be found at http://www.eduweb.vic.gov.au/edulibrary/public/schadmin/Management/6-16.pdf

The Victorian Institute of Teaching has prepared a draft code of conduct for teachers. The draft was issued in April 2007. This includes previsions which relate to teachers' duty to protect students from physical harm. The full text of this draft can be found at http://www.vit.vic.edu.au/files/documents/1151_Draft-Code-of-Conduct_post-feedback.pdf
Please note that this is a pdf file and requires Adobe Acrobat Reader.

On August 12, 2007, the ABC ran a radio news story which gave a brief overview of the VCAT decision in the Moran case and the opinion of Mary Bluett of the Australian Education Union on the issue.
This news report can be found at http://www.abc.net.au/news/stories/2007/08/12/2002735.htm?section=justin

In December 2005 New York's United Federation of Teachers replied to a query from a new teacher as to how, if at all, he should intervene to break up student fights. The reply indicates the same level of uncertainty that appears to apply in Australia.
The full text of this question and answer can be found at http://www.uft.org/new_teacher/news/breaking_fights/

The Lexington Education Association (LEA) is a Massachusetts-based teachers union. The LEA sought legal advice of the respective obligations of school districts and teachers in stopping fights. The full text of this advice can be found at http://www.lexed.org/Documents/Sundries/TchrInfo/StudentFights.htm#2
Many of the points made are relevant to the Australian situation.

Arguments against school teachers breaking up fights between students
1. Teachers intervening in fights between students could put the students at risk of greater harm
It has been suggested that any teacher attempting to intervene physically to break up a fight between students is in an extremely difficult situation.
Where students have not responded to a verbal command to stop fighting some degree of force may be necessary. However, exerting such force could in itself cause injury to the students.
There is also the possibility that the teacher's actions might be interpreted as having been excessive and may result in disciplinary action being taken against the teacher.
This point was made in an editorial published in The Age on August 12, 2007. The editorial, referring specifically to the case of Peter Moran, stated, 'If Mr Moran had put himself between the girls as they fought ... what if one or more was injured as a result? Teachers at his school had been warned never to touch pupils, so how would security footage of the fight be interpreted if it showed a large male teacher man-handling teenage girls?
Could Mr Moran have been dismissed as a result of physical intervention? Quite possibly.'

2. Teachers could be injured while intervening in fights between students
Intervening in a fight between students could put teachers themselves at risk of physical harm.
The principal of a Victorian primary school recently delayed dismissing students and called the police after a previously expelled 11-year-old was found to be hanging around outside the school gates as the school day was ending.
The principal stated, 'I acted properly and appropriately at the time in the interest of student safety...When the police arrived we dismissed the children.'
The expelled student later commented to The Herald Sun, 'It's crap, all the teachers are weak. I bash them all.'
This incident indicates that it is often not appropriate for a teacher or teachers to physically intervene in the supposed interests of student safety. Such action may actually exacerbate a situation and may put the teacher or teachers in the way of physical harm.
On August 19, 2007, The Age reported the case of Claude Tomisich, an experienced teacher who ten years ago suffered a spinal disc prolapse after attempting to break up a fight between two students only to have his path blocked by a number of more senior students.
Mr Tomisich stated, 'For almost 18 months I was in extreme, if not, excruciating pain. I could not sit for periods longer than 10 or 15 minutes and lifting anything heavier than a textbook aggravated the condition.'
There are those who have argued that teachers cannot be expected to put themselves at risk in the name of breaking up student fights.
 
3. Teachers intervening in fights between students could be accused of sexual molestation
It has become not uncommon for teachers to be accused of sexually molesting young people in their charge and there have been a number of high profile cases in which the teachers concerned have been found guilty of having sexual relations with students.
Australian law works specifically to protect children from the sexual attention of teachers. The age of consent is set two years above that for the rest of the community in any relationship between a teacher and a student.
The teacher code of conduct currently being drafted by the Victorian Institute of teaching (VIT) states:
'A professional relationship will be violated if a teacher:
a. has a sexual relationship with a student
b. uses sexual innuendo or inappropriate language and/or material with students
c. touches a student inappropriately'
The prohibition against touching a student 'inappropriately' may well make some teachers, especially male teachers, reluctant to break up a fight involving female students.
The following scenarios were posted on Herald Sun columnist Andrew Bolt's blog site. They are an argument against Bolt's criticism of Peter Moran for not having intervened to stop the fight.
'Scenario 1:
In a no-holds barred all female brawl, fists and feet and bodies flying around, a brave and capable male teacher steps in to break it up.
In so doing, he inadvertently grabs one of the girls on the breast and another is pushed-breast first into his face. In reaching to grab one girl by the waist, she suddenly moves and his hand winds up in her groin.
Scenario 2:
There were enough witnesses and friends of the girls so accidentally touched, that the Department decides to lay charges against the teacher. They claim he sexually molested the girls. The girls claimed he used the brawl to cover his deliberate fondling and touching.
His days as a teacher are over. His life ruined.'

4. Teachers cannot be expected to intervene to break up student fights without appropriate guidelines on when and how to do so
It has been argued that teachers cannot be expected to act without clear guidelines to indicate when intervention to break up a fight between students is appropriate and what form this intervention should take.
This point was made in an editorial published in The Age on August 12, 2007. The editorial was making a general point, but did so with specific reference to the Peter Moran case. It stated, 'Without proper official guidelines, he [Mr Moran] was damned whether he waded in to the fight or not.
Mr Moran, a teacher with more than 25 years' experience, may have been wrong in the course of action he took, but without guidelines his school, the department and the VIT were wrong to deny him the ability to make his living in the classroom. Such guidelines should be written as a matter of urgency. Teachers and their students need the clarity they could bring.'
A number of Los Angeles school districts sought a legal opinion on the question of what guidelines should be provided for teachers in the breaking up of student fights. The opinion stated, 'Student fights and other volatile situations carry physical and psychological consequences for both staff and students. Individual teachers should not have to bear the burden of making ad hoc decisions on whether to intervene or not. While hard and fast rules are not practical, both teachers and administrators would benefit from clear policies and protocols. Such guidelines would help to establish that the teacher is acting within the scope of employment in intervening or refraining from intervening - an important element in maintaining immunity from personal liability. Moreover, guidelines will also protect teachers from possible disciplinary action by clarifying the school system's expectations.
If your school district has not promulgated such policies and protocols, you may wish to encourage the district to do so. Teacher input is essential in developing those policies and may best be secured through the collective bargaining process.'

5. It should be up to the judgement of the individual teacher whether to intervene in fights between students
It has been claimed that any guidelines put in place to suggest how a teacher might deal with fights between students would still have to leave it to the discretion of the individual teacher as to how he or she should react. According to this line of argument, the level of risk to both students and the teacher could really only be ascertained by the teacher at the time. Therefore the judgment as to what action it is appropriate to take can really only be made by the teacher at the scene of the fight.
Ms Deb James, the general secretary of the Victorian Independent Education Union, has stated that any protocols should not be prescriptive and that teachers had to be able to exercise their professional judgement as situations unfolded.
Ms James noted, 'What they need is for that decision to be respected and supported.'

Arguments in favour of school teachers breaking up fights between students
1. Adequate yard supervision is one of a teacher's specified duties
In Victoria all teachers' official duties are undertaken in the course of employment and are outlined in Order No. 165 of Teaching Service Orders, 1998. They include all curriculum activities such as:
 classroom teaching
 supervision before and after school, at recess and at lunch time
 sport supervision, supervision of sports teams in interschool contests and in other competitions approved by the school council
 supervision of visits off the school premises, excursions and camps.
In addition to their professional obligations, principals and teachers have a legal duty to take reasonable steps to protect students in their charge from risks of injury that are reasonably foreseeable.
In this context it has been argued that all teachers are required as part of their terms of employment to attempt to ensure student safety in the classroom, in the yard and on school-organised outings.
Such an obligation would appear to include seeking to break up fights between students.
The principal of another Victorian secondary college commented in relation to a similar failure by a teacher to break up a fight between students, 'When two boys were attacking each other, I believe the teacher has a duty of care to step in and break up the fight. To actually stand back and allow a student to break up the fight was unacceptable.'

2. Teachers have a duty of care toward their students which can include physically restraining potentially violent students
It is part of a teacher's duty of care to attempt to ensure the safety of students in any potentially hazardous situation. This specifically includes protecting students from the dangerous behaviour of other students. The Department's Student Management and Welfare Policy (2000) states, 'Restraining a student whose behaviour is dangerous to self or others may be required by school staff using a reasonable amount of force. A reasonable amount of force is just enough force for effective protection of self and others, and no more than is absolutely necessary.'
A similar position is adopted by the Australian Education Union (AEU) which states, 'There are times when some physical restraint of the student is the only realistic option available to teachers concerned about the safety of other students/staff.'
Edwina Burns, writing in Sydney University's student newspaper Honi Soit stated, 'Part of a teacher's responsibility is to protect the student's wellbeing and safety. If it had been primary school children fighting, they would have been stopped immediately to protect the children from physical harm. Why should this duty no longer be an imperative to act simply because the students are teenagers?'

3. Teachers have a range of actions they can take to break up a fight
It has been claimed that teachers have a variety of intervention strategies they can employ to break up a fight between students without necessarily having to physically intervene. For example, a teacher could use his/her voice to order the students to stop. A teacher could also seek the help of other teachers to defuse the situation. In the Moran case the teacher's principal apparently believed the teacher should have 'moved into the students'. This would appear to suggest he should have used his body as a block to help break up the fight once it had started or to prevent it from starting had he taken action earlier. A further implication might be that Mr Moran could have intervened physically, if need be, in a way that was least likely to cause harm to any of the students involved.
(It needs to be noted that Mr Moran claims he did tell the students to stop and that he sent other students to bring back other teachers to assist him. He was apparently not within range of the surveillance camera to have a filmed record to corroborate this and no student witnesses have come forward to support his claims. Further, the feasibility of 'moving into' the fighting group of students or those surrounding them is difficult to judge.))

4. Parents expect teachers to intervene in the event of a potentially injurious student fight
Jan McDonald Associate Professor of Law at Bond University has written, 'Primary and secondary school education is compulsory in Australia. Students are beyond the protective care of their parents while at school; during that time, the school is said to stand in loco parentis (in the position of parent) to the pupil. Students are not in a position to protect themselves from harm while at school.
Courts have therefore taken a strict view of the duty of care that school authorities owe to their students. The High Court of Australia has described this duty as non-delegable.'
In this context parents should be able to reasonably expect that all teachers will act to ensure student safety in the same way a concerned parent would.
Referring specifically to the case involving Peter Moran, Andrew Bolt noted in an opinion piece published in The Herald Sun on August 17, 2007, 'School parents were furious, a community meeting had to be held.' The conclusion Mr Bolt appears to draw is that parents at this particular high school expected the teacher to take a more active approach in the management of a fight between students.

5. Many teachers accept that it is their responsibility to protect students, including from each other
It has been claimed that many teachers accept that intervening in student fights in an attempt to protect students from harm is part of their job.
Referring specifically to the case involving Peter Moran, Andrew Bolt stated in an opinion piece published in The Herald Sun on August 17, 2007, that the VCAT judgement noted, '(T)here was significant ill-feeling between the (teacher) and other members of staff as a result of this incident.' The implication was that other teaching staff at Peter Moran's school believed he should have acted differently. (There was no supporting evidence offered in the Bolt piece to demonstrate that this was the case.)
Some other reported instances of teachers intervening in student fights indicate that the teachers concerned accepted this as one of their responsibilities.
Mr Claude Tomisich, who was injured while intervening in a fight between students was reported in The Age as stating that despite his continuing pain and the large number of scans and treatments that followed the incident, he had no regrets about attempting to break up the fight and preventing a student from being more seriously injured.

Further implications
The question of the extent to which a teacher should intervene to break up a student fight is a more complicated matter than it may at first appear. In such a situation the teacher is the final link in a chain of responsibility that runs from the relevant Education Department, through the school administration to end with the individual teacher. The chain may also include other teachers.
There are actions all along the chain that might reasonably be expected to be taken. For example the Victorian Civil and Administrative Tribunal has suggested that guidelines need to be generated to assist teachers judge when they should intervene and how. The creation of such guidelines would presumably to the responsibility of the Department and individual schools, with the Department requiring the guidelines be formulated and individual school administrations doing so.
It has also been suggested that other support mechanisms might be put in place to assist teachers in situations of potential risk, such as when performing yard duty. One suggestion is that teachers be given mobile phones so that they can readily call for assistance. It has also been suggested that teachers might perform yard supervision in pairs. Such decisions are presumably the responsibility of individual school administrations.
It is also the responsibility of school administrations to ensure that a proper yard supervision roster has been drawn up and that those appointed to supervise specific areas actually do so.
In the Moran case it appears that the teacher allocated to supervise the area where the fight occurred was absent and no one had been asked to cover the supervision of that area. It is also worth noting that though the school had surveillance cameras in place it is not clear how they were used. It would appear that they were either simply recording instruments generating footage that could be checked after an incident had occurred or if they were meant to be actively monitored this did not happen on the day of the fight.
Finally there is the responsibility of the individual teacher. There appears to be a general presumption, if not an overt requirement, that as part of a teacher's duty of care toward students he or she will attempt to break up fights. However, as the VCAT noted there are no guidelines as to how this should ideally be done and even if there were it should presumably be up to the professional judgement of the teacher on the scene how to apply such guidelines. Mr Moran has apparently suggested that in being deregistered and dismissed he was being treated as a scapegoat. Whatever the accuracy of his claim, it would appear that he was far from the only person with a level of responsibility in the disputed fight which occurred at Langwarrin Secondary College in 2003.

Newspaper items used in the compilation of this issue outline
The Age: August 12, page 14, editorial, `Teachers' dilemma: damned if you do, damned if you don't'.
The Age: August 12, page 1, news item by William Birnbauer, `Fight teacher reprieved'.
The Age: August 19, page 8, analysis by William Birnbauer, `Teachers in the front row when students square off'.
Herald-Sun: August 23, page 5, news item (peripheral interest only - ref to primary schoolboy who allegedly threatened students) by Mike Edmonds, `Boy, 11, forces school lockdown'.
Herald-Sun, August 17, page 29, comment (on case of teachers at Langwarrin Secondary and Alia colleges) by Andrew Bolt, `Teacher trouble'.
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