To See or Not to See: Juridification and Challenges for Teachers in Enacting Policies on Degrading Treatment in Sweden

ABSTRACT

This article examines the juridification of education in Sweden with a particular focus on changes in the legal regulation of schools’ measures to combat degrading treatment. In Swedish schools, any degrading treatment must be reported to the head teacher who, in turn, has an obligation to report it to the governing body. Based on interviews with municipal officials, school leaders, teachers and other school staff in seven schools in two municipalities, we describe and analyse how expanding bureaucratic layers of formalisation and documentation, as well as insecurity and pressures from external accountability, have transformed pedagogical challenges in terms of what teachers see and how they act on what they see.

KEYWORDS:

• Juridification
• degrading treatment
• teacher professionalism
• policy enactment

One of many challenges that teachers face on a daily basis involves a range of more or less urgent problems concerning order, bullying, harassment or degrading treatment. In their work, teachers strive to establish a safe environment where children can learn skills, knowledge, norms and values. For over 50 years, since around the same time as Heinemann (1972) introduced the term bullying, student and child rights and integrity have been high on the international political agenda, eventually manifested in the UN Convention on the Rights of the Child. Overall, this development – the evolving awareness of children's vulnerability in school and the ambition to ensure child rights and integrity – is a form of social progress.

In the Swedish context, this ambition has materialised in the form of a policy of zero tolerance, requiring that schools provide a safe school environment free from bullying and degrading treatment (The Swedish Schools Inspectorate, 2016). The challenge is immense: hundreds of children are obligated to spend year after year in a cramped facility without troubling each other with derogatoriness, ridicule or shoving. The fact that bullying and degrading treatment is increasing (The Public Health Agency of Sweden, 2018) and the vast rising number of complaints filed with the Swedish School Inspectorate on issues of degrading treatment (The Swedish School Inspectorate, 2019) may be regarded as illustrating this challenge. Teachers take on this difficult challenge with a broad repertoire of pedagogical tools based on research, theory, experience, and tacit knowledge. They deal with chaos and unpredictability in contexts where no single method, plan or manual applies.

In this paper, we draw attention to how changes in the legal regulation of the Swedish school system, introduced partly to respond to international agreements on human rights (SOU, 2004, p. 50), have transformed the ways in which teachers take on this challenge. Our focus is on problems of juridification (Blichner & Molander, 2008; Veitch et al., 2018). As noted by Tavolari, juridification “points to a process of transformation: something that was not considered to be legal or integrated into law in a broad sense begins to be considered so” (Tavolari, 2018, p. 94).

Juridification is a development where judicial means become dominant in contexts that previously relied on informal procedures or where intuitive forms of everyday communication, action, norms, and values become reified by legal logic (Habermas, 1987). While the school, at least in a more general sense, always was legally regulated (Loick, 2014), the Swedish Education Act of 2010 has been described in terms of juridification (Fransson, 2016; Novak, 2018; Ryffé, 2019).

Habermas (1987) has depicted juridification as a dilemma: on the one hand, the expansion of legal structures may improve the situation of disadvantaged groups, at the same time these legal instruments may fail to achieve their ends and overall, such development may cause a range of negative effects on social practices and group members. Juridification is used as an overarching concept capturing the expansion of judicial means such as the insertion of different regulations. Blichner and Molander (2008) distinguish five dimensions of juridification:

First, constitutive juridification is a process where norms constitutive for a political order are established or changed to the effect of adding to the competences of the legal system. Second, juridification is a process through which law comes to regulate an increasing number of different activities. Third, juridification is a process whereby conflicts increasingly are being solved by or with reference to law. Fourth, juridification is a process by which the legal system and the legal profession get more power as contrasted with formal authority. Finally, juridification as a legal framing is the process by which people increasingly tend to think of themselves and others as legal subjects. (Blichner & Molander, 2008, p. 328)

In this paper, we bring forward observations in line with these dimensions. Based on interviews with municipal officials, school leaders, teachers, and other school staff in seven schools in two municipalities, we seek to illuminate and explore challenges in teachers’ daily work in times of juridification, focusing on how teachers see and act in response to problems related to degrading treatment¹ in the new policy context. In particular, we focus on how expanding bureaucratic layers of formalisation and documentation, as well as insecurity and pressures from external accountability, have added new or “second-order” challenges to teachers’ work.

Research on the Juridification of Teacher Professionalism in Scandinavian Countries

In the early 2000s in Sweden, Kolfjord (2002) observed an increasing tendency to submit school conflicts among students to the legal system. This research documented how the legal system transformed and redefined students’ understanding of events into legal categories and logics (Kolfjord, 2002). In the Nordic context, researchers have begun to acknowledge juridification of education and its effects on the work of teachers and head teachers in recent years. Colnerud (2014a, 2014b) analysed and discussed how legal statutes in schools nowadays regulate interpersonal relations that had previously been considered pedagogical issues and how the traditional pedagogical language and concepts that describe, analyse, and interpret school practice have become increasingly judicial.

Bergh and Arneback (2016) analysed Swedish national policy documents and found changing preconditions for teachers’ professional work and a tension between decentralised moral responsibility and external control based on nationally formulated rights and obligations. In Sweden, Runesdotter (2016) also observed how the obligation to document all incidents of degrading treatment (representing a potential risk of developing into complaints from students and parents to the SSI) causes frustration among school leaders and teachers as it takes considerable time from more important pedagogical issues. According to Hult and Lindgren (2016), complaints and the obligation to write reports on degrading incidents have made Swedish teachers’ traditional, embodied knowledge of how to handle student conflicts insecure. Their results indicate that teachers may have to develop new forms of professional knowledge in contexts characterised by accountability and risk (Hult & Lindgren, 2016). Møller and Ottesen (2016) addressed the issue of whether external judicial regulation challenges teachers’ professional ethics in Norway. Their findings indicate that although formal regulations are important, teachers and head teachers lean more on their own ethical values than on the law or on formal regulations.

Overall, these studies have documented that juridification has changed working conditions for teachers and head teachers, but more research is still needed to describe these transformations in detail. In this paper, we acknowledge the suggestion by Karseth and Møller (2018) that “further research should … examine if and how legal regulation and the current accountability policy context are taking teachers’ relations and responsibilities in new directions” (p. 13, emphasis added). Our particular contribution focuses on teacher challenges in the enactment of policies on degrading treatment in Swedish schools. In the next section, the legal changes in Sweden in this field are described.

The new Juridified Policy Context

Student and child rights and integrity have been on the political agenda in Sweden for many years and in the 2000s, legislation was put in place to further equal rights and to protect students and children from degrading treatment and discrimination (SFS, 2006:67). A strict ban on discrimination, harassment and other degrading treatment was hence introduced in the Child and Student Protection Act of 2006, which also included an obligation to counteract and prevent such behaviour and to investigate and take necessary action to prevent further abuse (SFS, 2006:67; Prop., 2005/06:38; SOU, 2004:50). The governing body of a school that does not fulfil these duties may be sued for damages. In such a process, the student representative BEO (Barn- och Elevombudet, the Child and School Student Representative) pleads the student's case with the governing body and the school as counterparties. When the Education Act was implemented in 2011 (SFS, 2010:800), these regulations concerning degrading treatment were incorporated, and today the Education Act also includes regulations referring to discrimination and harassment. Degrading treatment may take the form of derogatoriness, rumours, ridicule, ostracism, threats, hitting and kicking (The Swedish National Agency for Education, 2019). In Sweden, as noted above, all schools are regulated by a policy of zero tolerance towards degrading treatment.

Since 2008, the BEO has been connected to the Swedish Schools Inspectorate (the SSI) with a mission to inspect and ensure that schools and governing bodies abide by the current legislation and regulations (Carlbaum, 2016). This government agency emphasises individual rights, the rule of law and educational quality and equity through a juridified inspection regime (Hult & Segerholm, 2016). Governing bodies, head teachers, and teachers are held accountable, which means that “the pedagogical domains of action are opened up to bureaucratic intervention and judicial control” (Novak, 2018, p. 69). If a school does not abide by the relevant rules and regulations, the SSI may issue sanctions that entail fines for governing bodies.

The Education Act (SFS, 2010:800, chapter 6) expanded the regulations concerning discrimination, harassment and degrading treatment with an obligation for the governing body to establish routines and procedures to receive and investigate complaints from students and parents. Of special interest for this paper is the regulation that explicitly specifies that school staff is responsible for reporting any degrading treatment to the head teacher, who in turn has an obligation to report it to the governing body (Chapter 6, Section 10). This regulation has changed governing body and school staff practices, and has also increased the share of decisions involving critique and sanctions from the SSI and BEO when it comes to complaints about degrading treatment (Carlbaum, 2016). In addition, if a student feels that he or she has been offended by representatives of a school or governing body, then the burden of proof that no degrading treatment occurred lies with the governing body (SFS, 2010:80, chapter 6, §14).

Among other things, these changes have resulted in new documentation practices in schools and governing bodies in order to fulfil accountability demands and extensive discussions on what to report, when to report, how to report, and about who determines whether degrading treatment has taken place or not.

In the following, we present the conceptual tools that we draw on in order to explore how teachers deal with these challenges.

Conceptual Tools: Juridification, Conflicting Logics, and Policy Enactment

Jürgen Habermas's theory of communicative action and the theory of system and lifeworld belong to the most influential sociological attempts to explain and understand modernity. Lifeworld refers to fundamental processes of cultural reproduction, social integration, and socialisation through communication. The system includes processes of rationalisation by way of steering media such as money and administrative power that colonise the communicative infrastructure of the lifeworld causing reification effects. According to Habermas (1987), contemporary societies and social situations are simultaneously experienced from a lifeworld and a system perspective.

We draw on Habermas's ideas on juridification as a type of model case of reification; the increase in formal law and the particular form of “bureaucratization that sets in when ethics is replaced by law” (Habermas, 1987, p. 318). Habermas identifies four historical phases of juridification beginning in the 17th and 18th centuries: the first shaping the bourgeois state, the second leading to the constitutional state and the third producing the democratic constitutional state after the French Revolution. Our focus here is on the final phase – the juridification of the democratic welfare state – and more specifically juridification of school. It is important to acknowledge Habermas's emphasis on the fact that school – just like family life, but contrary to areas such as labour market – was not “constituted in legal form” from the beginning: school and family have been “opened to bureaucratic intervention and judicial control” (Habermas, 1987, p. 369).

… in these spheres of the lifeworld, we find, prior to any juridification, norms and contexts of action that by functional necessity are based on mutual understanding as a mechanism for coordinating action. (Habermas, 1987, p. 369)

While this notion of the school as pre-legal and pre-political has received criticism (Loick, 2014), we argue that this description of juridification is, in fact, relevant in relation to teacher's work to combat degrading treatment. Overall, Habermas's basic framework is tangent to Englund's and Solbrekke's ideas on conflicting logics in teacher professionalism (Englund & Solbrekke, 2015). Englund and Solbrekke (2015) identified a conflict between the logic of professional responsibility and the logic of accountability in an educational context framed by marketisation, New Public Management and juridification. Reviving older discussions on professionalism and accountability, these two logics draw attention to, among other things, issues concerning the purpose of accountability, the social relations of answerability, and what is accounted for and how (Ranson, 2003). Solbrekke and Englund's basic intention is to “clarify responsibility in a climate of accountability” (Solbrekke & Englund, 2011, p. 851). The logic of professional responsibility, which to some extent resembles the lifeworld, is based on a professional and moral mandate where school actors possess discretion and are trusted to make situated judgements concerning how to encounter dilemmas in everyday work. Here, implicit language and embodied knowledge is developed and used in relation to teaching and socialisation and to resolve local pedagogical problems.

The latter logic, the logic of accountability, parallels Habermas's notion of the system and is built on radically different principles where external control and standardised practices serve to govern the work of professionals and where transparent and formal modes of language become an important governing tool (Englund & Solbrekke, 2015). This logic is based on legal and economic rationality and are explicitly linked to political aims and compliance with decisions from external and superior instances and agents. Whereas responsibility implies a pro-active, voluntary moral obligation assumed by the professional to be and act for another, accountability “emphasises the duty to account for one's actions, and concerns what is rendered to another”, i.e., a “contractual obligation” framed through reactive processes of control (Solbrekke & Englund, 2011, p. 854).

As conflicts and tensions evolve between these co-existing and overlapping logics of professional work, the logic of accountability increasingly becomes a threat to the logic of professionalism (Englund & Solbrekke, 2015; Solbrekke & Englund, 2011). The conceptual framework of these conflicting logics facilitates our exploration of challenges in teachers’ daily work in times of juridification.

Hitherto, theoretical ideas on social and professional change at a rather abstract level have been presented, however, we also need theoretical tools that render possible a more specific analysis of the actual enactment of policies on degrading treatment in school.

Policy Enactment

Policy including legal regulation such as the Education Act is not simply implemented and followed. It requires people doing the “work of governing” (Clarke, 2012). While the problems of implementation and the discretion of street-level bureaucrats have been recognised and studied for a long period of time (Lipsky, 1980), Ball et al. (2012) provide another perspective on how we can understand policy. The concept of “policy enactment” draws on a different epistemological underpinning where policy is not implemented from the top-down in any linear manner but rather carried out in the local daily works and practices of people and their interaction and interconnection with “text, talk, technology, and objects” (Ball et al., 2012, p. 3). Ball et al. did extensive empirical work in schools to understand the local enactment of educational policies in concrete practices. They regard school organisations as complex and “precarious networks of different and overlapping groups of people, artefacts, and practices” (Ball et al., 2012, p. 143) and their view of policy implementation is equally dynamic.

Policy enactment draws attention to how policy constantly moves in a non-linear manner, made sense of, mediated, struggled over, re-ordered, re-invented, displaced, and possibly ignored either in a conscious or unconscious fashion. It involves both adaption and rule-following as well as reinterpretation. Two important concepts are interpretation and translation (Ball et al., 2012; see also Callon, 1984; Lendvai & Stubbs, 2006). Interpretation is the initial process of reading and decoding whereby teachers try to make sense of the policy text as a preparation for particular forms of action. Translation is the next phase, where the policy is actually transformed into action. This process involves the local (subjective) interpretation of policy through displacement and dislocation where teachers are constituted as both creative inventors and compliant in the sense that they are “captured” by policy (Ball et al., 2012, p. 48). Tentatively, these two phases of enactment give rise to different kinds of challenges, because teachers are obliged to interpret and act on new regulations related to degrading treatment.

Notes on Data and Method

In order to explore challenges in teacher daily work and how teachers observe and act on problems related to degrading treatment in times of juridification, in 2017 we conducted interviews in two municipalities (invented names March and May) and seven schools (also invented names). In addition, we also drew on a range of documentary sources produced in these contexts. We deliberately chose two municipalities with regional centres larger than 75,000 inhabitants and schools in each municipality with many and few registered incident reports. For this paper, we analysed 35 interviews (n = 76):

• 10 school officials representing governing bodies;

• 9 head teachers in eight interviews;

• 34 fifth-grade and eighth-grade teachers in nine focus group interviews;

• 23 individuals involved in equal treatment groups in eight focus group interviews.

The interviews lasted 60–90 min and were fully transcribed. In our reading, we focused on informants’ views on the school activities to combat degrading treatment and what kind of challenges they, at different levels in the school organisation, perceived that these new ways of working had created.

We engaged in a form of immanent critique focusing on “both the empirical behaviour constituting social practices and the explicit self-understanding of their members according to standards that are, in some sense, internal to those practices themselves” (Stahl, 2013, p. 7). In particular, we paid attention to the views of informants who were able to identify implications or interpretations of regulations that have remained unacknowledged thus far. We then used these new interpretations to inform a critical discussion of policy and actual practice (Stahl, 2013). We processed the interviews by reading them thoroughly and, using theoretical tools, searched for instances and interview statements in which we detected expressions related to challenges. In the first instance, we did this individually, and we then discussed the results collectively in order to review the findings. In this analysis, the overall Shakespearian-like allusion found in the title: “to see or not to see” was used, which was used by one of our first informants. The analysis was thus deliberately selective in the sense that we illuminated certain data and voices from informants and omitted others in the process of identifying challenges. However, our selection of data for this study represents the range of challenges that were identified within the entire material. As such, this basic conceptual idea of “to see or not to see” emanates from data in what may be termed as an abductive strategy of “progressive focusing” that allowed us to adapt and reduce the line of inquiry and “to give more concentrated attention to the emerging issues” (Parlett & Hamilton, 1972, p. 18). To see or not to see is given empirical grounding in the following section.

Challenges in Teacher Enactment of Policies on Degrading Treatment

The presentation of the findings is initiated by explaining how matters of seeing and not seeing hold implications for challenges related to the enactment of policies on degrading treatment.

To See or Not to See

A representative of school management in the municipality named March, a former head teacher with more than 30 years’ experience of working in the school sector, gave a long answer to the question: “Which were the biggest challenges at that time around 2010? [i.e., at the time of the new Education Act]”. The informant began to talk about the problem of interpretation (Ball et al., 2012) and particularly the new segment about reporting potential incidents of degrading treatment to the head teacher and to the governing body: “the great dilemma or difficulty of when and what to report” (Official 7, March).

Because in the beginning, the legislation did not offer any clear picture about this, it was said that it should be reported. And then the question was whether a judgement ought to be made about what qualifies as degrading treatment or what is merely an incident or a small brawl or a dispute or an accident … ? (Official 7, March)

Eventually, the informant explained that the legal system made it clear that teachers, head teachers, and other school staff are not supposed to make any judgement at all: everything that can be perceived as degrading treatment is to be reported.

And then the number of incidents during a day that, according to the law, must be reported increases in a manner that it is almost impossible for the organisation to manage. Consequently, there is an important discrepancy between the intentions of the legislation when it comes to managing a process of imposing fines—which it comes down to in the end—and the management of these issues in the school where these incidents occur on a daily basis. (Official 7, March)

Process of imposing fines are part of a formal legal process of investigation where lawyers from the government agencies the SSI or BEO, i.e., external legal experts situated at a spatial and emotional distance whose power and formal authority is enhanced (Blichner & Molander, 2008) might interrogate teachers and head teachers about incidents that they must be able to identify retroactively: “How come you said that, how come teachers did not react to that incident on that particular occasion back on 11 January 2014?” (Official 7, March). In this context, the informant explained, “When the law takes over the management of these issues [a number of] side effects are produced” (Official 7, March). These effects concern teacher reactions and “the level of what they see and not see” (Official 7, March):

[In a situation where] everything that you see must be documented because it might later be seized upon as degrading treatment even if it was an accident, then teachers would probably have to do this a lot. Then the choice for a teacher—or a human being—is to see or not to see. If you say that you did not see, well then you did not see. If you saw and reacted, but you did not produce any documentation, well then you are toast [laughter]. Here we have a side effect that I find extremely negative because it produces an intuitive or unconscious mode of action, or at least it could. (…) Because at the system level this is wrong since you give an incentive that is negative, a line of action that is unconsciously negative, that is how I react on this matter. What you want when people see something is that they react intuitively and based on experience. Intervene, or maybe just correct, ‘no, this is not ok, here you are, like this’. But if this leads to paperwork that, during the course of a day, produce not only one but 10 or 15 documents of a number of pages that have to be sent somewhere, well of course the unconscious reaction in daily work are negative. This is my personal conviction. Then, I can only wish that there are teachers—and there probably are—who react and who choose not to document everything with the risk of eventually getting their fingers slapped by some lawyer somewhere. (Official 7, March)

This informant's response and the Shakespearian allusion about whether “to see or not to see” functioned as an invitation to explore challenges mentioned in other informants’ responses concerning teacher daily activities to combat degrading treatment in times of juridification.

Challenges Related to Seeing – and Acting on What You See

With the Education Act (2010:800) and the obligation for teachers and head teachers to report whether a student had been subjected to degrading treatment that also followed, governing bodies had to establish routines to receive these reports and to take responsibility for investigations and measures taken by schools. Eventually both municipalities made clear that all incidents should be reported when a student feels offended without the teachers evaluating the seriousness of the incident.

Both municipalities translated (Ball et al., 2012) the reporting obligation in the regulation into digitalised forms for school staff to fill in. Such forms may contain information concerning the name of the school, who offended the student (an adult in school or a student/students), description/categorisation of the incident, who recognised the incident, the offended student's gender and school class, date, etc.

However, most of the schools have struggled with trying to establish where to draw the line for what to report and what not to report. Our interviews for this study were performed 5–6 years after the implementation of the Education Act of 2010, and some of the teachers told us that when the incident reporting system was initiated they reported many more incidents than they do today. As one of them concluded “[Today] we use our own intuition (…) you can't write up everything, like we did for a while.” (Fifth-grade teacher, Sloan School)

The obligation to write reports also enables certain ways of “seeing” degrading treatment that may have a paradoxical side effect. This obligation may force teachers under pressure to decide not to see incidents because there is no time to gather all the details and fill in the form. The risk expressed by the previously-quoted official concerning the negative incentive not to see turns out to be one aspect of how the policy was translated into practice. One teacher described it as a “scary change”:

I’m afraid … the change that I sometimes see, and I can actually feel, is that if something is happening down the corridor and I’m on my way somewhere else and I know that I won't have the time to sit down and write that incident report, and I don't remember who that student is—I chose to not see. (…). Earlier, as soon as something happened, you just went there [and sorted it out]. Now, I know that I may be called to account and I know I have to document it all and I don't have the time. Therefore, it is a scary change. (Eighth-grade teacher, Goji Berry School)

Seeing and reporting incidents also means that a teacher must straighten out what happened with the students involved and inform the students’ school mentors and their parents.

Sometimes a student may tell a teacher about degrading treatment in confidence. According to the law, however, the teacher is also obliged to act on these incidents. “Seeing” might thus imply a challenge to act. On such occasions, regulations call upon teachers to betray the student and erode the trust that allowed the student approach the teacher in the first place to talk about these problems. Such betrayals might also have paradoxical long-term effects in the sense that students stop talking to teachers about incidents of degrading treatment.

The task of incident reporting is also framed by demands for formal investigations that must succeed these reports. The next section focuses on investigations and challenges related to such modes of procedural inquiries.

Investigations: Juridification par Excellence

The legislation does not specify the content, form and scope of investigations, however the Swedish National Agency for Education offers some guidance on its website (Swedish National Agency for Education, 2019) and the SSI conducts regular inspections. May municipality was recently criticised by the SSI for inconsistencies in this respect. The SSI pointed out deficits such as:

lack of documentation (spoken investigations)

irrelevant documentation (emotional and detailed notes from conversations)

judgement about degrading treatment made prior to formal investigation

no judgement made in formal investigation

judgement not objective (executed on the basis of the subjective experience of the student concerned)

measures taken without formal investigation (PowerPoint presentation by school legal adviser, May).

Based on this criticism and with explicit reference to national regulation, May municipality strived to implement a more explicit and standardised model developed by the school legal adviser who also promoted the model in a municipal training programme for school actors. In this model, the role of the investigator is described in a set of normative and overlapping characteristics and practices including “objectivity, impartiality, target focus, efficiency, swiftness, correctness, simplicity, comprehensibility, value-free, relevant, unbiased and documentation” (PowerPoint presentation by school legal adviser, May). The purpose of an investigation according to this legal logic is to “investigate the circumstances around a reported incident in order to establish if anybody (a student) has been exposed to degrading treatment according to the Education Act” (PowerPoint presentation, May). With reference to the SSI, the school legal adviser pointed out that “there can be major differences between what is experienced as degrading and what is, in an objective school-legal sense, considered as degrading treatment – and hence leading to legal requirements for efficient countermeasures” (PowerPoint presentation by school legal adviser, May).

The school legal adviser explained that investigations, if they prove that degrading treatment has taken place, form the basis of a range of mandatory measures. Consequently, investigations must be meticulously conducted:

Of course, everyone has the right to feel offended in all possible situations, but this is about objective judgements based on the Education Act. (…) As you know, there are a lot more obligations for the school if the assessment specifies that it is degrading treatment: measures, follow-up, evaluation and documentation and … well, a lot. Therefore, you can't just habitually assess everything to be degrading treatment according to the Education Act. (School legal adviser, May)

Investigations and incident reports are supposed to document facts (i.e., what happened, which students were involved, who did what, and what the school has done to investigate and take reasonable measures). Investigations are ceremonious and extensive and they demand work that can be time-consuming. The school legal adviser in May municipality also acknowledged this problem (i.e., the problem of “finding time”, School legal adviser, May). Nevertheless, the assumption is that investigation and thorough documentation, bureaucratic rationality and order are a solution to school problems. Schools ought to:

store the documentation in a clear manner so that it is accessible to everyone, so that you can look up a student file and see the complete situation of the student. (…) Then you will be able to see the entire situation of the student. And if you think about these incidents, one thousand incidents well then there would be one thousand files. Such wonderful green files. (School legal adviser, May)

Such ideals, tangent to ideas of “good” bureaucracy and professional ethos in a Weberian sense may, however, be at odds with the logic of professional responsibility (Englund & Solbrekke, 2015). From the perspective of professional responsibility, the prospects of documenting the “complete situation of a student” without mentioning “emotional accounts” and detailed notes [that are] “without relevance” (PowerPoint presentation by school legal adviser, May) are probably scarce. The fact is that teachers seem to struggle with documentation and with how to incorporate even tiny amounts of what they know about students, groups, situations, contexts and the histories behind individual incidents. School actors consider important aspects that are disqualified by formal requirements regarding documentation, for example social relations, emotions, family conditions and the range of events leading up to the incident.

As noted by Official 7, investigations serve to determine whether degrading treatment has taken place and thus if measures must be taken. However, such objective and definitive judgements about degrading treatment are seemingly incompatible with traditional forms of professional responsibility:

The way we are socialised in our domain [the educational field] is that if someone experiences degrading treatment then it is degrading treatment. The one who is exposed to it possesses the experience of the offence. Saying “Well this is not degrading treatment” does not exist as a part of our traditional values. However, when the Inspectorate puts a question like that then they put it in a legal sense i.e., is this degrading treatment? and then we must make a legal evaluation. From the start we said, “Yes of course it is degrading treatment, if the person thinks it is, then it is degrading.” Well, did you then act as if, etc.? So now, we must have another perspective - if we decide whether it was degrading treatment or if we think it was an accident. This means that the governing body is juridified in its way of examining incidents. There is a considerable difference (…) when you bring the law into a world that hasn't dealt with this type of issue before. That is, the rigidity of the law and we were not prepared for this and are still not prepared. (Official 7, March)

Juridification is based on the “formal principle of justice” and demands in terms of “comparative consistency” (Molander, 2016, p. 32). As noted by Official 7, traditionally schools have not been regulated formally in a manner that rendered meaningful – or even made possible – this kind of objective judgement. As a sphere of action, school actors’ work has been based on the principle of individualisation (Molander, 2016), which is limitless and perfectionist in the sense that there is no end to how much a teacher can take into account and do based on all existing knowledge in order to teach or help a student. Before there has not been any particular reason to make objective judgements to settle issues of degrading treatment. Thus, prior to juridification, no motive to collect evidence that made such objective judgement possible was in play. On the contrary, signals about degrading treatment have functioned as indications of a complex challenge to be dealt with on the basis of “the principle of individualisation” (Molander, 2016, p. 33).

When Teachers Do Not See or Choose Not to See

Up to this point, we have presented some challenges that teachers and head teachers face in the process of seeing and reporting degrading treatment. Nevertheless, there are also challenges that come with not seeing and reporting degrading treatment in the context of juridification. Some of the teachers we interviewed had experienced working in a school where the SSI had criticised the school and the governing body for the way they had handled problems of degrading treatment. In some cases, it also had led to damages being paid by the governing body to a student.

When a case goes as far as granting damages, it is preceded by negotiations, or if the governing body counters the damages claim then the BEO takes it to court representing the student. Teachers who take part in this kind of negotiation report feelings of frustration and powerlessness as core pedagogical problems are handled by a “highly specialised and standardised form of legal reasoning” (Blichner & Molander, 2005, p. 16):

Teacher 1: It was incredibly frustrating also because you knew that … when you have such strong feelings for all these students. And they [the legal experts] only go for the legal.

Teacher 2: And when you know that we have done everything that we can, we have done so much that's good!

Teacher 1: And that doesn't matter, it is only the documentation that counts.

Teacher 3: I mean, to be criticised in a case like this is not a setback; this is not a struggle against the troubled person [student]. It's about that you haven't succeeded and you can't always do that. (Fifth-grade teachers, Cotoneaster School)

One part of their frustration comes from the legal, court-like situation mediating an impression of a battle between opponents, with the school on one side and the student and parents on the other. One challenge in this situation is to see beyond the dispute and focus on the needs of the troubled student, something that legal logic often fails to envision. This is evident in cases where the governing body wins the case and the SSI declares that the school has done everything by the book, but the situation for the child is still not resolved. Thus the legal dispute is effectuated and the case is closed, but the complex pedagogical challenge remains:

You have acted according to management, but that does not help the child … . You end up in a situation where, apparently, you have done everything correctly, but the child is not doing okay. Well, what do you do? (Official 6, March)

Discussion

Problems related to degrading treatment have been on the agenda for some time. This paper has illuminated and explored challenges in teacher enactment of juridified policies on degrading treatment in Sweden, and has focused on what school actors perceive as problematic aspects. At the most fundamental level, the challenge for teachers in school when it comes to problems of degrading treatment is to make all the children to feel safe. Thus the juridification of education is an attempt to tackle this specific challenge through increasing regulation. In this sense, the normative and ethical ambition in the Swedish Education Act resonates with widespread social and moral conviction among teachers, students and parents.

Notably, many of our informants welcomed new and stricter legal regulations that gave a “clear signal from the legislature, Swedish society and government agencies about where they stand in this matter” (Official 3, May). These informants perceived the new obligation to report incidents of degrading treatment as reasonable in order to come to grips with the fact that students may be exposed to many incidents of degrading treatment during a school day that otherwise had only resulted in occasional reprimands, but “taken together constitute a totally unacceptable situation for the student” (Official 3, May). According to some of our informants, increased regulation of teachers’ work on reporting incidents through reporting systems may have some pedagogical potential in terms of detecting degrading treatment. Here, juridification in the form of formalisation of previous practices serves to qualify pedagogical work. For example, in an educational context characterised by increasing mobility, i.e., in a context where large numbers of pupils, teachers and principals regularly change schools, old modes of embodied knowledge or informal documentation may often be insufficient and systematic documentation may allow schools a better method of assembling and storing knowledge on individual pupils and interventions.

These are important observations that help nuance our discussion and acknowledge that the juridification of education is not just the making of a bureaucratic iron cage; it is also a moral struggle to safeguard the rights, safety, and protection of children exposed to degrading treatment and engaging in these struggles may include functional implications for the professional groups involved.

Having said that, the primary focus in this paper has been to explore a range of second-order challenges that follow from juridification. Overall, this development implies a transformation of teacher activities to combat degrading treatment from a pedagogical challenge to a judicial challenge primarily oriented towards objective representations of past events. We have identified challenges related to processes of interpretation and translation of legislation (Ball et al., 2012). We have shown how these two phases of enactment give rise to different kinds of challenges as teachers are obliged to interpret and act on bureaucratic regulations related to degrading treatment.

Teachers have to interpret the legal demands in order to determine whether every incident occurring during the school day should be reported as degrading treatment. Different interpretations then transform into different challenges: reporting has certain consequences (e.g., time-consuming activities of documentation including administration of evolving digital reporting systems, discussions with colleagues and students and communication with parents demanding careful balance and precision). Not reporting has other consequences (e.g., risk-taking in terms of accountability since every incident has the potential to later become part of a complaint on degrading treatment reported to government agencies such as the SSI or BEO). Thus to see or not to see incidents is not only an issue of teachers’ attention and immediate subsequent action or mindful anticipation – it is a choice that involves a range of strategic and defensive considerations that, in a profound manner, alter teachers' professional gaze, understanding, and practice. Here, the formal bureaucratic regulations about obligations to report, investigate, and take measures, as well as provisions on fines and burden of proof are not aligned with traditional modes of professional responsibility. Instead, teachers are struggling to find some fixed sense in the text that can be translated into practices that conform to ideals of external bodies and texts. As such, the old challenge – framed as a moral responsibility to the child – is complemented by new challenges in terms of managing and avoiding potential accusations of malpractice executed through external control. Juridification thus marks the beginning of a form of instrumentalization that leads to a managerial life world – a shift from the professional “knowing when to see” to the juridified “knowing when (not) to see”.²

Overall, teacher work appears to be circumscribed by legally-fuelled mistrust involving important second-order challenges. Given the fact that teachers traditionally work on the basis of the principle of individualisation (Molander, 2016), they are well aware that their work is (always) imperfect. This notion of imperfection is intrinsic to their professional responsibility and something that teachers must always deal with. What is new here is that external agents are now making important decisions and they are making them based on information that teachers know is insufficient.

Acknowledgement

The authors would like to thank Professor Anders Molander for valuable discussions.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by Umeå School of Education, Umeå University; The Swedish Research Council for Health, Working Life and Welfare: [Grant Number 2015-00654].

Notes

1 Degrading treatment is a term used in the Swedish Education Act, denoting “a behaviour that, without being discrimination according to the Discrimination Act, violates a child's or a student's dignity” (SFS, 2010, p. 800 ch. 6, §3). There is no absolute delineation between bullying, harassment, and degrading treatment. Degrading treatment covers them all. Discrimination on the other hand is about degrading treatment or disadvantage towards an individual based on his/her gender, religion, ethnicity, age, sexual identity, or disability.

2 We have borrowed this evocative phrase from one of the reviewers.