Guaranteeing social rights and regulating the public sector Open Access

Although the United States and Sweden are different in their government and legal structure, both countries have attempted to deter an increasing problem of bullying and degrading behaviour at schools. An unintended consequence in one country is to designate more youth as in need of special help and remove them from the classroom. In the other country we see an increased use of criminalisation and expulsion. This paper compares how each country tries to guarantee the social rights of students at school. Sweden, a social-democratic welfare state, has a history of legislating equality and safety at school, enforced by a School Inspectorate. The United States, a liberal state with a history of race segregation, relies on legislation against discrimination for bettering its school system. The paper concludes with a discussion of how law and policy change invokes embedded cultural processes that defend the autonomy of public institutions while resisting the challenges of political intervention.

Most of the indignation directed towards schools centres around worries that children are not being educated correctly or sufficiently. Today, the majority of countries around the world recognise not only the need to guarantee the output of an education but also the input, to teach students to respect the dignity of others.

This paper analyses unintended consequences of guaranteeing the safety of compulsory educational environments in Sweden as well as in the United States. Both school systems base the regulation of safety at schools on the use of moral obligation. In Sweden, this is done by the use of a frame law, which states the goal of safety from degrading behaviour and equal education despite diversity, coupled with a regulating oversight authority equipped with strong sanctions. In the United States, it is done by relying on civil rights against discrimination at a federal level together with state laws requiring dignity and respect in schools.

Passing a law, changing a policy, attempting to stop an unwanted behaviour in a public institution, such as abusive behaviour in compulsory schools, can be challenging. When we look at the history of regulative strategies directed towards businesses and citizens we see a common criticism, which is also warranted when looking at regulation of government of itself (Ayres & Braithwaite, 1992; Baldwin, 2005; Black, 2005, 2007; Gunningham, Grabosky, & Sinclair, 1998; Hawkins, 1992; Hood, James, Scott, Jones, & Travers, 1999). Generally, regulating theories neglect interest in the motivation, institutional culture, and behaviour of those regulated (Baldwin, Cave, & Lodge, 2011; Black, 1997; Scott, 2003; Suchman & Edelman, 1996). By focusing on these non-instrumental dimensions of regulation here, we attempt to throw light on why legal intervention and regulation of schools are often met by a ‘culture of resistance’, which leads to unintended consequences (Merton, 1936; Pawlak, 2011).

A ‘culture of resistance’, defined in terms of various formal and informal modes of avoidance of, or resistance to, a moral obligation (Weeks, 1981), points to a struggle over the symbolic importance imbued in law that encroaches on values intrinsic within the institution being regulated. Simply put, schools do not see themselves as potentially the ‘bad guys’, in need of oversight.

Schools, and their employees, do not accept being implicitly accused of allowing an increase in degrading student behaviour. Instead, schools argue that increased legal and regulative demands for monitoring abusive or derogatory behaviour through intensive documentation of everyday life at school take up valuable time, increase control of teachers’ behaviour in the classroom, and actually act as a de-professionalisation of their professional identity (Broadbent & Laughlin, 1997). Thus schools resist regulation and fall back on conquering not only trouble in school but also regulatory interference by looking inward for solutions and reverting to ‘sorting out’¹ what they see as troublesome students. Schools rely here on shared taken-for-granted understandings of everyday life at schools that have been built up over time (Friedland & Alford, 1991; Jennings & Greenwood, 2003; Powell & Colyvas, 2008; Scott, 2008).

The argument presented in this paper is based on documentation from regulating authorities within both Sweden and the United States. In Sweden, additional material included documentation of 500 complaints filed with the Swedish School Inspectorate (SSI) between 2010 and 2013, focus-group interviews with 60 teachers, in-depth interviews with eight principals, ethnographic work at eight schools in Sweden between 2010 and 2013, and ‘going along’ on ten SSI inspections. In the United States, without a strong oversight institution, the state of New Jersey, declared the best of all states in its programme for safety at school, was chosen for specific analysis of complaints filed concerning violation of ‘dignity codes’ in school. Material also included the results of the study of implementation of state bullying legislation and district policies commissioned by the US Department of Education (EMT, 2013).

The empirical work gathered in the Swedish study allows for a deeper analysis of everyday life at school and cultures of resistance. The active work of the SSI and the intensive development of coercive legal tools to re-regulate a decentralised school system in Sweden provided us with a unique empirical situation not available in the United States. Yet comparison of the two systems shows that despite Sweden’s heavier legal arsenal, schools in both systems find ways to turn legal intervention into blaming the student and protecting themselves.

The second part of this paper provides an account of guaranteeing safety at schools in Sweden and in the United States. The third section discusses failures of legal intervention and the unintended consequences of cultures of resistance found in Sweden and the United States.

In our discussion and conclusion of the paper, we argue that a face-allegiance to moral obligations in law and compliance through satisfying procedural documentation produces a rhetoric of ‘zero tolerance’ to abusive behaviour, but increases sorting of students. A buffer layer of employees, special assistants to teachers in Sweden, and school resource officers in the United States, has expanded over the last twenty years. The buffer employees put distance between teachers and students and instead of decreasing, this actually increases the segregation of students. We suggest that though it is often portrayed in the literature that there is a distinction between two types of institutional functioning of law and regulation – the symbolic functioning, where messages are sent, and the instrumental function, where controls are imposed – they are in fact intertwined. Analysis of the reaction to law and regulation in schools shows that the unintended consequences of the behaviour and motivation of school personnel reveal a struggle both over the symbolic status of professional authority and instrumental control of everyday life at school (Carson, 1974; Garland, 2012; Gusfield, 1963). The consequences of reaction, while satisfying the demands of teachers’ authority, augment the numbers of students categorised as ‘in need of special help’ in Sweden and as ‘subjects for expulsion’ in the United States.

During a short period of time, 1990–1993, Sweden managed two abrupt changes in the compulsory school system: de-centralisation of the national compulsory school system and the introduction of privately run, but publicly funded, charter schools. The beginning of the 1990s found Sweden moving from a tightly controlled national system with few private schools, to a de-centralised, municipality-run school system. Private schools were not a widespread competitive alternative to municipal schools until a 1992 law provided them with public funding. These publicly funded charter schools are called Independent schools and must be approved by the Swedish Schools Inspectorate. They follow the same national curricula and syllabuses as do the municipal schools. Since the 1990s, parents can choose among tuition-free schools for their children, whether municipal or private. By 2014 around 17% of compulsory schools were charter schools and attracting almost 14% of all compulsory school students. Indirectly, Swedish municipal schools were forced to compete for students. Budgets for schools were determined by the number of students in the school.

Ten years later, in the face of sinking academic results, increased rates of truancy, and teachers leaving their profession, schools became a political question. When a new centre-right government won the national election in 2006, school reform, through strengthening national regulation of compulsory schools, was at the top of the political agenda.

One of the measures taken by the new government included a Bill expanding the rights of students (Gov. bill 2005/06:38) by allowing better protection of students against discrimination and other degrading behaviour (Regeringskansliet: U06.017, 2006). By introducing the concept of ‘degrading behaviour’² into the national Education Act, all forms of degrading treatment in school, not only those covered by Swedish laws prohibiting discrimination, were now included. In 2006, Sweden appointed the first Child and School Student Representative (BEO). The BEO was charged with providing information about the discrimination act, helping schools prevent bullying and other abusive behaviour, overseeing schools’ efforts, and representing students who had been bullied in legal proceedings against the school.

In 2008, the Government created an independent Swedish School Inspectorate (SSI) and removed the responsibility for School Inspections from the Swedish National Agency for Education SNAE.³ This rapid action to institute a strong Swedish School Inspectorate showed not only a clear lack of trust in the ability of the SNAE to supervise schools but also dissatisfaction with the failure of schools to meet the goals set out in the national legislation.

A new Education Act (2010) was also part of the school reform programme. The new national Education Act (2010) specified the obligations of all compulsory schools to ensure that all incidents of degrading behaviour are reported and acted upon at all levels of school administration. Possible legal sanctions were introduced as sanctions for schools that neglected their obligations. SSI has the capacity to temporarily or permanently shut down a charter school and to take over administration of a failing municipal school.

Although Sweden has not returned to a national school system, these reforms resulted in clearer learning goals, clearer performance requirements, more stringent qualification requirements for teachers, and stricter supervision.

Teachers originally opposed the muncipalisation of schools. Against their choice, they were forced into a de-centralised school system. Local school politicians and administrators found themselves with wide discretion in running municipal schools but with little actual experience and hostile teachers. The revisions of the Education Act (1985) specified national goals of education but left the choice of means to local interpretation. There was little or no oversight by the national government. In effect, Sweden gave a mandate to the municipalities and local heads of schools to do as they saw fit.⁴ A state investigation in 2007 revealed that a division of responsibilities between the national government, the municipal level, and the local school was still not clear. An SNAE report from 2011 pointed out that there were strong indicators that municipalities did not take national goals as a mandate but instead saw goals as a long-term vision. A recent government evaluation (SOU, 2014) of the municipalisation reform summarises the effects of decentralisation as a failure (SOU, 2014, p. 21). The reasons given for the failure were that municipalities, heads of schools, and teachers had no opportunity to prepare themselves for the mandate. In addition, follow-up and evaluations by local authorities did not work and the SNAE ‘for reasons of principle’ did not give support to school organisers and teachers.

Even though the government reform programme starting in 2008 was designed to tighten up and constrain the excessive power and responsibility for schools in the hands of municipalities, it did not show any immediate effects. Local school authorities, heads of schools, and teachers were thrown from a school system with a decentralised management by objective into a centralised performance-based management. The motivation for a stricter management of schools by the national government, while still not reverting to nationalising compulsory schooling, rested on the idea that the national government had the responsibility to guarantee that all schools in Sweden were equal and were offering the same quality of education to all children in Sweden.

The present oversight authority, SSI, is equipped with a heavy legal arsenal. It is too early to say if heavy sanctions, increased inspections, and individual case-filed decisions, together with media coverage and publication of lists of schools on a variety of performance tasks, are enough to improve the output of schools. The SSI issues yearly reports of their work and points out that failings of the schools to comply with the Education act and criticisms meted out after inspections are still found year after year. For example, inspections done in 2014 resulted in critical findings in areas of security and acceptable school environment in 59% of compulsory primary school inspections. In retaliation for failure to meet the goals specified in law, the government responded by strengthening even further the possible economic sanctions against local authorities and heads of schools.⁵

Within the private sector, organisations that oppose regulation usually try to control the agenda, using a combination of lobbyists and money, to pedal influence and kill legislation. A first line of defence is to offer a voluntary agreement. As Saloojee and Dagli (2000), in their analysis of the Tobacco Industry’s tactics in resisting public policy on health, point out, even if voluntary agreements are attractive to governments they fail because they are not intended to succeed.⁶ Resistance to regulation is also examined by Moschella and Tsingou (2013) as to why there is only incremental change in post-crisis regulation of the financial sector. Earlier work on regulatory capture and regulatory failure is also summarised in Johnstone and Sarre (2004). Parker (2000) presents a variety of examples where regulation is at odds with market incentives or cultural practices and where ‘an organised culture of resistance can arise from policies perceived to be unreasonable’ (p. 16). At best, dealing with regulatory agencies becomes a ‘price of doing business’. That is, organisations or groups that are subject to regulation accept paying a penalty in order to continue with behaviour consistent with business as usual.⁷ Edelman and Suchman (1997) point out that the history of regulation is ‘replete with unintended consequences’ (p. 488). So much so that the authors conclude that the largest effect of the regulatory environment is not the motivation of compliance but instead the motivation of evasion.

In the public sector, one cannot simply pay a fine and continue behaviour as usual. This does not mean that the establishment of ‘cultures of resistance’ has not emerged. Instead, we suggest that ‘cultures of resistance’ exist in schools and are being accepted by regulating authorities because in some ways the tables have been turned. Schools in Sweden pay lip service to complying with legal demands for more documentation and transparency. However, schools have taken over the content in the documentation. Documentation charting measures taken to stop degrading behaviour or for providing special-needs students with help are formed so that school personnel specify causes limiting the possibility of schools to remedy the situation. Causes are usually presented in terms of cognitive limitations of the student, juvenile delinquency, or insufficient home care. A demand by schools for more psychological testing of students is being documented. ‘Worry reports’ sent by schools to social services about suspected problems in a student’s family have become part of school documentation. Visits to the school Student Health Team are documented. The response by schools to demands by regulators shows what the school can make visible. The schools agree that something is the matter but claim that it is neither the school nor their professionalism that is at fault. A school principal describes his reaction to demands made by SSI on reported abusive behaviour at school:

Informal collaboration among schools in answering formal complaints, institutionalisation of legal advisors within municipalities to prepare standard defences against filed complaints, as well as developing routine school defences blaming the student who is complaining and/or the family are all instances of the formation of a ‘culture of resistance’ to SSI as a regulating authority.

In contrast to the Swedish system, the United States has no school inspectorate responsible for the quality and safety of schooling across the country. The country relies upon a mix of federal and state legislation, which causes different states to have extremely disparate standards. In recent years, in the wake of several well-publicised school shootings and suicides linked to bullying, an increasing focus on the ability of the state to guarantee safety at school has emerged. Within the United States, the Supreme Court, beginning with the Brown vs. Board of Education decision, has consistently set a standard to the effect that each student has the right to an equal and meaningful educational opportunity (cf. Rebell, 2006). While initially this concept related primarily to school segregation, in recent years it has been extended to other areas of education, including safety. If students are either unsafe at school or being consistently harassed and bullied, it can be said that they do not have the ability to utilise their right to an equal educational opportunity. This increasing attention paid to safety at school has led to two major developments, an increased focus on harassment and bullying, and an increase in the use of law-enforcement officers at schools, also known as school resource officers (SRO).

On the federal level, the Office for Civil Rights (OCR) can hold individuals, schools, or school districts responsible for harassment but, in order to do so, the harassment must create a hostile school environment, it must be based upon a characteristic protected under US federal law, and schools must be aware of the conduct but either fail to adequately address it, ignore the behaviour, or encourage it (United States Commission on Civil Rights, 2011). Originally, the standards relating to the duties of schools in regard to bullying or harassment cases were laid out in the Davis vs. Monroe County Board of Education Case; however, in a 2010 Dear Colleague Policy Guidance letter,⁸ the OCR laid out their enforcement standards. The OCR cannot act on all behaviour at school; it can only act on behaviour related to federally protected characteristics. The only characteristics protected in US law are race, colour, national origin, sex, and disability, with both sexual orientation and religion noticeably absent⁹ (Ali, 2010; USCCR, 2011).

The OCR has the ability to investigate schools and school districts in two different manners, through a complaint resolution process or a compliance review. In a complaint resolution, individuals file complaints with the OCR. Alternatively, in a compliance review, the OCR investigates the functioning of a school or school district attempting to ‘address systemic problems and seek systemic solutions’ (Ali, 2011, p. 8). In the complaint resolution process, prior to beginning an investigation, the OCR first attempts to negotiate an early complaint resolution, where the parties involved enter into a voluntary agreement to resolve the complaint. If this fails, however, the two systems are extremely comparable. The OCR first investigates the issue at hand, attempting to substantiate or reject wrongdoing. If the office finds there to be wrongdoing, it endeavours to negotiate a voluntary resolution agreement with the non-compliant body detailing the necessary steps the guilty party must take. However, only if this process is unsuccessful will the OCR resort to utilising its legal authority to enforce its judgement (United States Department of Education, 2015).¹⁰

In 2005, the OCR received only 523 complaints related to harassment; in 2010 that number reached 1016 (Ali, 2011). In 2013–2014, the OCR received over 3000 complaints related to harassment. At the same time, the OCR almost never act proactively. During the period from 2006 to 2011, it initiated only fourteen compliance reviews. The OCR stands as an arbitrator of last resort, only truly involving itself after the harassment has taken place. For example, in a school district in California, a mother filed a complaint against the school district after her thirteen-year-old son committed suicide. She alleged that her son was consistently harassed at school, and despite having knowledge of the harassment, the district failed to take sufficient action to protect the student.

The OCR found that the school officials either did know or should have known about the harassment, and also did not take sufficient steps ‘to stop the harassment, to prevent its recurrence, or to eliminate the hostile environment’ (Office for Civil Rights and Civil Rights Division, 2011), thus denying the student his right to equal and meaningful educational opportunities. In resolving this complaint, the OCR and the school district entered into a resolution agreement requiring the school district to educate and provide training to both students and staff about acceptable behaviour and appropriate responses, to update its policies relating to harassment, and to monitor the school climate regularly, in order to ‘assess and appropriately address’ the presence and consequences of harassment. However, even in implementing this agreement, the school refused to admit wrongdoing, and also suffered few consequences other than negative publicity. This case makes clear the limitations of the OCR. It cannot guarantee safety at school as it involves itself only after the fact, and even schools found to be in violation of the law suffer few consequences. The failure of the OCR to guarantee safety, and thus equal educational opportunities, has led to an immense growth in state bullying legislation.

As of June 2016, 49 states have implemented some variation of an anti-bullying or anti-harassment law. A 2011 report from the United States Department of Education (DOE) analysed bullying laws through the use of a sixteen-component framework developed to assess the strength of each law.¹¹ At the time of the report, 46 states had enacted bullying legislation, with 34 of these states covering at least nine of the department’s components, and only Minnesota’s law covering less than four of the components (Stuart-Cassel, Bell, & Springer, 2011). In 2015, a slightly different picture emerges, as states have updated and edited their laws, but the overall situation remains the same, with vast disparities in strength between state bullying laws. At the time of the report, New Jersey was one of two states to meet all sixteen of the DOE components, with a law that was ‘billed as the nation’s toughest’ (Cohen, 2011).

The New Jersey law (2010) defines bullying or harassment more broadly than the federal statutes. First, a reasonable person must know that the act will harm a student, second, the act insults or demeans a student or group, and finally, the act contributes to the creation of a hostile school environment (New Jersey Anti-Bullying Task Force, 2013). The law contains vast procedural requirements relating not only to how incidents should be reported and investigated, but also containing provisions relating to required education and training, for both students and staff (NJABTF, 2013). However, the law has no stipulation regarding investigating whether schools adhere to the requirements of this law, unless parents question the actions of a school.

The New Jersey law has only been in place for a short time. However, data are available for the first four years under the new law. These limited data show that bullying incidents have declined in the four years since the law went into effect. New Jersey schools had 9339 confirmed bullying incidents in 2012–2013, but only 6664 incidents in 2014–2015 (New Jersey Department of Education, 2015). In each year fewer than 45% of incidents investigated were found to be bullying, likely demonstrating a great deal of confusion over what type of behaviour the law actually covers. Although the number of incidents declined, the number of schools reporting incidents of bullying increased. As a counterpoint to the characteristics the OCR has jurisdiction over, the majority of NJ incidents fall into the category of other distinguishing characteristics, as opposed to sex, race, or disability. However, these statistics should not be taken at face value. If, as we have posited in this paper, a ‘culture of resistance’ has developed in both Sweden and the United States, we might expect something similar to what is shown in the above statistics. Individual schools and school districts control every aspect of the investigatory process, with remarkably limited oversight. Similarly to the Swedish case, this allows schools to adhere to requirements for documentation and transparency without truly observing the underlying goal of the law. Cases are formed such that incidents become the responsibility of one bad actor, or a lack of training for school personnel. In doing so, the schools shift the blame back onto either the student or the school management, removing responsibility from themselves. Furthermore, with fewer incidents, but more schools, this suggests that schools use incidents to demonstrate their credibility. A school with zero incidents appears suspicious, while a school with two or three incidents seems to be working to control the bad actors present in that school.

The New Jersey law has been unable to stop bullying or harassing behaviour. This suggests that laws across the country would suffer from similar failures. The New Jersey data also support what was noted above, the OCR is unable to guarantee safety at school. We can also see that the OCR rarely dips its fingers into the individual school, or the authority of a teacher or of a particular principal. Thus new and harder laws do not directly challenge the professional role of the teacher and one can assume that new regulation was merely an attempt to satisfy local uncertainty. However, bullying laws, after the Columbine shooting, are not the only measure that has gained popularity in response to school shootings; SROs have also become an increasingly common sight at schools across the United States.

The number of School Resource Officers at schools began to increase dramatically during the mid-1990s¹² (Theriot, 2009). While it is difficult to measure precisely how many SROs exist in schools within the United States, the number likely stands somewhere between 15,000 and 20,000 (James & McCallion, 2013). In general, SROs play three major roles. First, they serve as enforcers of the law and as safety experts, second, they work to solve problems, such as bullying, which are not legal issues, but can grow into them, and finally, they help to educate students about criminal issues (Raymond, 2010). Despite their increasing and continuing popularity, the effects they have both on safety and the school environment are unclear. Studies tend to focus on the perceptions of SRO effectiveness, rather than actual results (cf. May, Fessel, & Means, 2004; McDevitt & Panniello, 2005; Theriot, 2013). A study by Na and Gottfredson (2013) suggests that there is ‘no evidence suggesting that SRO or other sworn law-enforcement officers contribute to school safety’ (p. 642). In fact, they suggest that SROs may contribute to an increase in the recording of non-violent crimes, thus increasing the criminalisation of behaviour within schools.

Difficulty regulating behaviour at schools is obvious. Both Sweden, with its use of a new SSI, and the United States’ accomplishments at federal and state levels attempt to define schools’ legal obligations by seeing that correct procedures are in place and used. The response to regulation of schools in Sweden and the United States seems instead to show the increased strength of schools who have control over the production of the documentary explanation of a particular event that is required by a regulatory agency. Attempts at both sorting students and building cultures of resistance to compliance are a logical consequence of keeping regulatory authorities at bay. Through dominating the content of the required documentary explanation of a particular occurrence, schools are able to advance their own positions by pointing out both the unique competency of the profession as educator and exposing the real culprit, the student himself and/or his/her family.

Regulating behaviour at schools or regulating behaviour of schools has fallen into the well-known paths of traditional failure of command and control regulation (Baldwin et al., 2011). If we are to come closer to specifying the means of regulating the implementation of responsive law, laws that appeal to substantive values and real outcomes, analysis must embark on questions of moral agency. That is, the system of regulation must rely on the moral agency of the schools as regulated objects.

Compliance with law differs if the attempt is to regulate input, ethical or moral agency, or output, a measurable behaviour. The blend of moral agent and measurable behaviour is a special problem for regulation authorities within the public sector.¹³ We argue that the confusion of justifying intervention in an area, input, as an ethical or moral agency, joined with evaluating output, a measurable behaviour of abusive behaviour over time, contributes to evasive everyday procedures at schools. Invoking moral agency as a cause for legal intervention promotes the idea that schools are constructed as being at fault: it is perceived that they could not or would not stop harmful behaviour; and this imputation contributes to their cultures of resistance.

During the last ten years, the focus in research on regulation has been on flexibility (Johnstone & Sarre, 2004). The flexibility focus underlines the outcome of the regulatory process as well as the adaptability of regulatory methods within the regulatory process, since it is directed towards achieving goals of regulation instead of merely a concern with compliance to prescriptive rules. Haines and Gurney (2004) contend that regulation should promote a ‘culture of compliance’ within the regulated unit. Haines and Gurney approach the definition of ‘culture of compliance’ indirectly, for example, by stating that a culture of compliance should be promoted where ‘commitment to regulatory goals is evident’ (p. 11). The flexibility approach moves away from the command and control regulation model. The more subtle focus on flexibility builds on the concept of responsive regulation that has been promoted since the mid-1980s (Ayres & Braithwaite, 1992; Braithwaite, 2002, p. 29). It also leads responsive regulation into a new version of self-regulation by inducing a ‘culture of compliance’. Simply, once a ‘culture of compliance’ is up and working, the institution in question can regulate itself. Even in accounts of the growth of self-regulation, the concept of a culture of compliance is not defined but instead considered implicit, in terms of ‘attitude sets’ (Baldwin & Black, 2007) rather than explicitly demonstrated behaviour. Parker, Scott, Lacey, and Braithwaite (2004) define a ‘culture of compliance’ as represented by an ‘internalised’ acceptance of the goals of regulation by the regulated entity.

Responsive regulation becomes a process of sorting regulatory objects into the ‘bad eggs’ and the ‘good eggs’. The ‘good eggs’ are judged as having a ‘culture of compliance’. For those judged by regulators as ‘good eggs’ the ‘culture of compliance’ is seen as being present so that moral agency, an ideological enigma, is somehow assumed to have been incorporated into everyday practices at schools in an automatic manner. Yet even the ‘good eggs’ with the ‘right attitudes’ have not been able to stop harmful behaviour at school. Gilad (2010) sees principal-based regulation (PBR) as a type of process-oriented regulation where incorporating a learning-oriented approach, a type of mega-regulation, into process-oriented regulation, can avert weaknesses as a regulative regime. This would provide a constant loop-back regulatory information function that would stimulate continual evaluation and re-invention of local regulation in relationship to outcome.

A careful analysis of regulation strategies by Baldwin and Black (2007) notes that the development of different approaches to regulation increases understandings but leaves a ‘residual need for further engagement’ (p. 15). The residual need is seen as residing in challenges facing regulators in detecting, constructing, and responding to non-compliance.

What stands out in both Sweden and the United States is not a development of cultural compliance but instead the development of a culture of resistance, which is actually being produced by just those assumed values that are imposed by structuring the rights of students. The rights of the students imply that the school and school employees have been deficient in assuring access to social rights.

It seems that much of the work on developing strategies of regulation and worrying about compliance not only is focused on firms in the private sector but also assumes that organisations act out of a utilitarian perspective to advance the interests of the firm at the lowest possible costs. When looking at regulating moral obligation, regulatory theorists approach regulation as looking at ‘cultures’ within the organisation. But again, it seems to be an over-simple view of organisational behaviour that is based on a concept of institutionalising a ‘set of attitudes’, or socialising personnel within organisations to regulatory goals and thus producing a ‘regulation culture’. The work of both new institutionalism and critical legal studies would contend that this is a naïve position both in how organisations function and how law in action differs from law in the books.¹⁴

New institutionalists have pointed out that the analysis of human behaviour can not only rely on the assumption of a rational actor working to promote his/her interests or of a socialised normative individual, but must envisage an actor embedded in a cultural context where cultural frames affect the meaning and motivation of behaviour (Friedland & Alford, 1991). According to DiMaggio and Powell (1991), norms and conventions structure the environments of organisations and are taken for granted as legitimate. These forms make up an organisation field and affect the worldview of the organisation (DiMaggio & Powell, 1991, pp. 11–15).

Within the new institutionalism framework, Scott (2001) points out that institutional order rests on three different pillars: rule setting and sanctioning, normative, evaluative and obligatory dimensions, and cultural/cognitive shared conceptions where meaning is understood by those involved in the everyday life of institutions. Each of these pillars, used in understanding everyday life at school, offers different reasons for compliance: (1) compliance because of expedience, (2) compliance because of a moral obligation or (3) compliance because it is impossible to conceive of alternative ways of acting.

The pillars of institutional order are also relevant in discussing cultures of resistance. Much of regulation theory adapts to a rational actor view with an assumption that it is expedient to comply with regulation to avoid sanctions. Responsive law generally thinks of compliance as being morally authorised and obtained by a shared moral appropriateness of social rights in a particular context. However, the mimetic process or reproduction of behaviour, which is taken for granted as a response to circumstances of uncertainty, might generate another behaviour than that which would lead to compliance. If a school finds it cannot obtain zero tolerance to abusive behaviour because of the vagueness of the concept, or because the events involved are too complex to disentangle, or if the school cannot give each student equal access to an equal and meaningful educational opportunity, they might find other ways to comply with criteria they think are more reasonable, and rationalised as an alternative type of compliance. If many of the professionals at the school as well as both students and parents understand this behaviour, it reproduces itself and becomes institutionalised.

We maintain that it is removing a student from the classroom that is the answer found both in Sweden and in the United States; as such, it has become an ‘unintended consequence’ of misguided regulation by principle. The principle in this case is zero tolerance of degrading behaviour in school.

One of the primary ways to ‘bend’ stricter regulation to meet everyday understandings within schools is to use the legal rhetoric of compliance. By defining a student as having special needs, a situation is created where a student can be sorted out of the classroom ‘for his own good’. The student can even be ‘excluded from the classroom’ by being assigned a special assistant. By following law, by accommodating the needs of special students, schools can legitimise removing a failing or disruptive student out of what is perceived as an ‘ordinary’ classroom.

If a student in Sweden is at risk of failing a class s/he may be in need of special support during a period of his or her time at school. According to law, this should first be done within the ordinary classroom. However, the law stipulates that if there is a special reason, the support can be given in a special group (or even individually), or else the support can be given outside of the ordinary classroom.¹⁵

20% of boys and 14% of girls in the 9th grade in Sweden in 2013–2014 had a ‘Special Needs Report’ on file. Schools can also apply for extra funds from the municipality in order to accommodate those students judged as having ‘special needs’.

Besides an economic incentive for the school, there is also an incentive for a teacher with an unruly student to define that student as one with special needs, in order to justify putting the child in a special group. Interviews done by the SNAE with teachers and principals suggests that this might be the case.

In addition to sorting students out of the classroom, additional funds for students with special needs can be used to hire a classroom assistant for the student. A classroom assistant is usually employed for students with neuropsychiatric diagnoses such as ADHD. An increase in the number of classroom assistants is explained as arising from the increase in the number of students diagnosed as having neuropsychiatric problems as well as the economic incentive of central funding available for these students. There are no job qualifications specified to be a student assistant. Student assistants became a fixture in primary schools to support students who have previously been placed in special classes.¹⁶

In the United States, the culture of resistance has tended to manifest itself differently than in the Swedish situation. Rather than an increased diagnosis of children, sorting of students has occurred through the increased criminalisation of behaviour at school,¹⁷ as schools attempt to shift the responsibility for what is described as a problem of discipline from the school to the court system. This process has a considerable effect on equality within education as not all students are at equal risk of criminalisation, but rather, this process mainly affects students from low-income families or those of colour, and has become so common that it is often referred to as the ‘school-to-prison pipeline’ (Heitzeg, 2009). For example, in the 2011–2012 school year, the OCR estimates that 260,000 students were referred to law enforcement and 92,000 were subject to school-related arrests, with African-American students disproportionately represented in both cases (OCR, 2014).

Although criminalisation is one aspect of the sorting of students that occurs within American schools, a second, related, aspect can be identified in the increase in suspensions and expulsions within schools in the United States. A 2013 study suggests that more than two million students in America’s middle and high schools were suspended during the 2009–2010 school year (Losen & Martinez, 2013). Taken together, each of these processes demonstrates how schools have reacted to increased legislation surrounding school discipline.

Hirschfield (2008) suggests that there are three major facets involved in the criminalisation of school discipline. First, the increased use of formal disciplinary processes and the spread of zero-tolerance policies have decreased the use of discretion in punishments, which has led to the second facet, the ever-increasing number of suspensions and expulsions. Finally, Hirschfield suggests that schools have increasingly become places ruled by criminal justice, rather than by school discipline. Here he has made a clear link between increased suspensions and increased criminalisation. These two processes can be seen as unintended effects of regulation. Schools identify problem students and remove them from the institutional setting. In doing so, they achieve a degree of success in the world of ‘output-measured’ regulation. Further, they can be seen as doing something in an attempt to keep children safe. Yet they clearly fail to uphold both the moral and ethical principles of the law they are supposed to enforce, as they fail to teach children politeness or how to treat others with dignity.

SROs can be viewed as symbolic of the entire process of schools transferring the responsibility for school safety. While whether the mere presence of SROs increases criminalisation is unclear, they can be understood as a symbol of the changed atmosphere at schools.

There is an ideological gap between the rhetoric about equality of education and safety at school and the everyday problems of regulating the substance of the law (Lacey, 1992; McBarnet, 1981). The effect of this gap is seen in what we term ‘cultures of resistance’. These cultures of resistance can best be understood as patterns that have emerged as ways of achieving lip service to regulation within a framework that is compatible with managing everyday life in a school.

Context-relativity in regulation discards the notion of regulation as applying one-size-fits-all solutions. Regulation necessarily becomes an agent-centred approach. As regulation incorporates concern about context and agent, it inevitably needs to come to grip with the systems of values and beliefs which allow municipalities, private school owners, principals, and teachers to make sense of everyday life at school.

Yet regulation theory seems immune to developments in new institutionalism and the advancements it has contributed to understanding organisational behaviour. Why people obey the law is still treated as a debate between treating regulated entities according to a rational choice model with a ‘deterrence theory’ to obtain compliance, or else the alternative seen in terms of a ‘moral model’ based on internalising what is ‘right’ or ‘wrong’, where compliance with regulation is dependent on ‘attitude sets’ of the organisation or socialisation of organisational personnel to ‘regulation goals’. Yet new institutionalism shows that both the deterrence model and the self-regulating model neglect the taken-for-granted understandings of identity, capacity, and causality that make up the cultural frames that affect the meaning of behaviour for individuals and for society (Suchman & Edelman, 1996, p. 915).

There are a variety of studies on how the ideology behind law interacts with a dominant frame of cultural understandings within the regulation field and where legal goals are generally subverted or at best only slightly distorted (Handler, 2010; Hawkins, 1992). In this paper, we expose an enigma involved in regulating the rights of students at school. Regulation interferes with everyday school life. To guarantee that the rights of students are upheld, the school needs to show written documentation of the action taken in handling a complaint. In turn the documentation also can be used as written proof of why it was necessary, according to school personnel, to sort a student out of the classroom and/or school.

Regulating the legal status of students through enforcement of target performances and documentation should be seen as more symbolic than material politics. That is, legislating against discrimination, protecting the dignity of students and their safety from degrading behaviour, or guaranteeing equal education to all students symbolise basic moral and social values affirmed by the state (Garland, 2007). Garland points out that the symbolic/instrumental distinction has become a standard reference point in socio-legal literature and has become watered down from overuse (2007, p. 112). However, the concept of symbolic crusades and symbolic politics introduced by Gusfield (1963) was important in understanding collective action by groups that could not be accused of taking action in pursuit of their own political or economic advantage. Gusfield meant that it was status concern and group prestige that was at stake in legislative conflicts.¹⁸ As he stated, ‘We have always understood the desire to defend fortune. We should also understand the desire to defend respect. It is less clear because it is symbolic in nature but it is not less significant’ (as cited in Garland, 2007, p. 113).

We interpret the behaviour of school administrators described in this paper as being a consequence of ‘the cultural framing’ of schools as institutions permeated by a logic of working for the development of youth to adults. When complexity and ambiguity are introduced into the school environment with diffuse and contradictory laws, organisations look to their environment for models of compliance (Edelman & Suchman, 1997). School personnel, as such, have produced the moral rhetoric of working for zero tolerance of degrading behaviour at school. Yet the instrumental goal of the law, to stop all degrading behaviour at schools, is not met.

For those working within the schools, sorting students is routine. It has become institutionalised and is seen as reasonable. It is also a behaviour which takes the moral responsibility for unruly students in school or sinking school results from the teacher and puts it squarely on the student. Sorting students is a way of maintaining the status, authority, and professionalism of school personnel. But new students take the place of old students and the problem remains.

In this study of regulating school safety and access to equality of education in Sweden and the United States, we show the failure of flexible regulative responsiveness in meeting and understanding cultures of resistance to a moral obligation. Regulation becomes diffuse and procedures, once in place, are used as legal protection for school authorities instead of guaranteeing rights of students. Guaranteeing social rights within an institution through law and the implementation of law unwittingly positions law against the cultural frame of the institution. The traditional symbolic representation of the school and school employees as making up a good institution becomes ‘dominated’ by requirements to implement legislation that positions the authority of teachers within the classroom against rights of students. Consequently, students with increased rights at times are seen as threatening teachers’ authority (Arum, 2012).

Sorting students can sometimes help to reduce incidents of degrading behaviour. Schools can also appear to be acting in line with the law. Regulators and regulations can even appear to have succeeded. It is important, however, to remember the unintended consequences of regulation that makes sorting logical. For students who become involved in sorting procedures, the effects can last a lifetime, as they become removed from a classroom and their peers, with little or no chance to pursue an equal education. However, within the current systems at work in both Sweden and the United States, sorting is the rational, logical outcome of regulation, despite its negative consequences for equality.

In Sweden the basic requirement for regulation to be successful was missing. There was no trust between those working within schools, teachers, the local municipalities and the regulating agency, SSI. Teachers were not highly motivated after being forced, against their will, from a national school system to a local municipality school system or to privately independent schools. When schools found themselves faced with a new national regulatory agency charged with adjudicating both complaints against the schools and with school inspections, which are also armed with a legal arsenal of public criticism and economic sanctions, resistance from schools was inevitable.

In the United States, increasing concern about safety at school led to an increase in attempts to hold schools responsible for degrading behaviour, symbolised best in the stark increase in anti-bullying legislation. School resistance is manifested in more suspensions, expulsions, and SROs, which not only remove the responsibility for safe environments from schools, but also actually lead to a more unequal educational environment. In doing so, ‘Dignity’ legislation has an effect opposite to its intended consequence.

We have attempted in this paper to show both schools and regulating institutions balancing themselves on the edge of a sharp knife. On the one hand, recognition of local school authorities and employees as professionals knowing best how to use discretionary sanctions to abolish degrading behaviour at schools is insufficient. On the other hand, the regulator who discards the knowledge and culture of a professional organisation underestimates the plentiful avoidance techniques available within a culture of regulatory resistance.

Future research is needed which builds on theory from both new institutionalism and regulation in other areas of social rights, in which attempts to guarantee equal access to and quality of a public service, an instrumental goal of a symbolic legislative act, invoke professional resistance. Unintended consequences need to be better understood as resulting from embedded traditions, deeply rooted in patterns of professional identity entwined within societal institutions. Resistance reflects social processes within regulated entities and is based on on-going activities.

No potential conflict of interest was reported by the authors.