Rethinking education law 

to help principals and school boards

meet the growing number of disputes in education

Gracienne Lauwers (PhD)

Free University of Brussels (BE)

Vytautas Magnus University (LT)
University of Trento (IT)
Free State Centre for Human Rights (SA)
Disputes in education Judicial protection
• where are • effectiveness •recommendations
disputes resolved
INTRODUCTION
 18

13,5

4,5

0
 3 state (community) funded educational networks coexist in the Flanders

community network official subsidised network free subsidised network

organized by Flemish Community
organized by authority (town or province)
organised by private congregation or association

financed by Flemish Community

subsidised by Flemish Community
subsidised by Flemish Community
 Part 1
How and where are disputes resolved
• effectiveness • recommendations
 MANDATORY M-Decree (special needs)
CONSULTATION ‚reasonable
adjustments’ (2014)

• reasonable adjustments
Decree on Equal • pedagogically (not) feasible
Education
‘Student
Rights
Opportunities (2002) • pedagogical-based standard
Commissi
on’ • educationally (not) necessary
• alternative
Decree Decree
Regarding a
Framework for Equal
Opportunity and Equal
Treatment Policy in
Flanders (2008)
 MANDATORY CONSULTATION
with the
CONSULTATION examiner

MANDATORY
CONSULTATION
with the internal
appelate body HEI
‘Student
Rights
Commissi
on’
 MANDATORY
MANDATORY CONSULTATION CONSULTATION WHEN
with the examiner IMPOSING
CONSULTATION (rights of defendant)

MANDATORY MANDATORY
CONSULTATION
CONSULTATION BEFORE THE INTERNAL
with the internal APPELATE BODY
appelate body HEI (rights of defendant)
‘Student
Rights
Commissi
on’
 MANDATORY
MANDATORY CONSULTATION
CONSULTATION WHEN MANDATORY
with the
CONSULTATION examiner
IMPOSING CONSULTATION
(rights of defendant) (rights of
defendant)

MANDATORY MANDATORY
CONSULTATION
CONSULTATION BEFORE THE INTERNAL
with the internal APPELATE BODY
appelate body HEI (rights of defendant)
‘Student
Rights
Commissi
on’
 MANDATORY CONSULTATION MANDATORY MANDATORY
with the CONSULTATION WHEN MANDATORY EVALUATION
CONSULTATION examiner IMPOSING
CONSULTATION CONSULTATION
(rights of defendant)
(rights of (evaluation report)
defendant)
APPEALS COMMISSION
MANDATORY MANDATORY
CONSULTATION (rights of defendant)
CONSULTATION BEFORE THE INTERNAL
with the internal APPELATE BODY
appelate body HEI (rights of defendant)
‘Student
Rights
Commissi
on’
 Part 2
Effectiveness
 MANDATORY CONSULTATION MANDATORY MANDATORY
with the CONSULTATION WHEN MANDATORY EVALUATION
CONSULTATION examiner IMPOSING
CONSULTATION CONSULTATION
(rights of defendant)
(rights of (evaluation report)
defendant)
APPEALS COMMISSION
MANDATORY MANDATORY
CONSULTATION (rights of defendant)
CONSULTATION BEFORE THE INTERNAL
with the internal APPELATE BODY
appelate body HEI (rights of defendant)
‘Student
Rights
Commissi
on’
 CONSULTATION with the
Council of State examiner
MANDATORY APPEALS (for public schools)
Labour Court
EVALUATION COMMISSION (for non-public schools)
CONSULTATION

MANDATORY
CONSULTATION
with the internal
appelate body HEI

Mandatory
consultation

Council of State (for

public schools)
Court first instance (for Council
non-public schools) of State

MANDATORY
CONSULTATION WHEN Mandatory
IMPOSING
(rights of defendant) consultation
Council of State (for
public schools)
Court first instance (for
MANDATORY non-public schools) Council of State (for
CONSULTATION public schools)
BEFORE THE Court first instance (for
INTERNAL APPELATE non-public schools)
BODY
(rights of defendant)
1. Psychological factors in decision making

• use examples that readily come to mind or

memory

• assumptions and past experiences don't always

match the law

• biases

• ….

2. Knowledge about the complexity of applicable laws and rules

MANDATORY CONSULTATION MANDATORY MANDATORY

with the CONSULTATION WHEN MANDATORY EVALUATION
CONSULTATION examiner IMPOSING
CONSULTATION CONSULTATION
(rights of defendant)
(rights of (evaluation report)
defendant)
APPEALS COMMISSION
MANDATORY MANDATORY
CONSULTATION (rights of defendant)
CONSULTATION BEFORE THE INTERNAL
with the internal APPELATE BODY
appelate body HEI (rights of defendant)
‘Student
Rights
Commissi
on’
3. Financial resources to cover the expenses
4. Skills to deal with the complex structure of organs, commissions, special courts, ordinary courts

CONSULTATION with the

Council of State examiner
MANDATORY APPEALS (for public schools)
Labour Court
EVALUATION COMMISSION (for non-public schools)
CONSULTATION

MANDATORY
CONSULTATION
with the internal
appelate body HEI

Mandatory
consultation

Council of State (for

public schools)
Court first instance (for Council
non-public schools) of State

MANDATORY
CONSULTATION WHEN Mandatory
IMPOSING
(rights of defendant) consultation
Council of State (for
public schools)
Court first instance (for
MANDATORY non-public schools) Council of State (for
CONSULTATION public schools)
BEFORE THE Court first instance (for
INTERNAL APPELATE non-public schools)
BODY
(rights of defendant)
 Part 3
Recommendations
 Mandatory
consultation

mandatory consultation out of ordinary court

general court structures
procedures - Raad van State
- Rechtbank eerste aanleg
- Arbeidsrechtbank
 Council of State
MANDATORY APPEALS (for public schools)
Labour Court
EVALUATION COMMISSION (for non-public schools)
CONSULTATION
CONSULTATION with the examiner

MANDATORY
CONSULTATION
with the internal
appelate body HEI

Mandatory
consultation

Council of State (for public

schools)
Court first instance (for non-
public schools)

Council
of State

MANDATORY
CONSULTATION WHEN
IMPOSING
(rights of defendant)
Council of State (for public
schools)
Court first instance (for non-
MANDATORY public schools)
CONSULTATION
BEFORE THE INTERNAL Council of State (for public
APPELATE BODY schools)
(rights of defendant) Court first instance (for non-
public schools)

Mandatory
consultation
• political underlying reason

• historical autonomy of schools

• mandatory consultation

• public funding for litigation

• composition according to pillars affiliation

and not expertise and not chosen by
disputing parties

rights of stakeholders
 CONSULTATION with the
examiner
Council of State
MANDATORY APPEALS (for public schools)

EVALUATION COMMISSION
Labour Court MANDATORY
(for non-public schools)
CONSULTATION CONSULTATION
with the internal
appelate body HEI

Mandatory
consultation

out of court general

Arbitration court

Council of State (for

public schools)
Court first instance (for Council
non-public schools) of State

MANDATORY
CONSULTATION WHEN
Council of State (for
IMPOSING
public schools)
(rights of defendant) Court first instance (for
non-public schools)

MANDATORY
CONSULTATION
BEFORE THE INTERNAL Council of State (for
APPELATE BODY public schools)
(rights of defendant) Mandatory Court first instance (for
consultation non-public schools)
Thank you.