British Journal of Sociology of Education

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Theorising Education Law and Childhood:

Constructing the ideal pupil

Daniel Monk

To cite this article: Daniel Monk (2000) Theorising Education Law and Childhood: Constructing the
ideal pupil, British Journal of Sociology of Education, 21:3, 355-370, DOI: 10.1080/713655361

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British Journal of Sociology of Education, Vol. 21, No. 3, 2000

Theorising Education Law and Childhood: constructing the

ideal pupil

DANIEL MONK, Department of Law, Keele University, UK

Introduction
Over the past 15 or so years, Education Law has evolved into a legitimate category of
academic law and legal practice. No longer simply an aspect of public, welfare or family
law, it now has its own specialist practitioners, legal associations, case reports and
journals[1]. Much of the existing academic work focuses on the rights and responsibilities
of parents, schools, governors and local education authorities (LEAs). More critical
approaches have explored the theoretical, political and social con icts underlying the
changing roles of LEAs and parents (Meredith, 1992; Barron, 1996; Cooper, 1997), and
identiŽ ed the tensions between policies that emphasise both enhanced consumerism and
central regulation (Harris, 1993, 1998).
While this article draws on much of this work, it differs radically in that it is not
concerned primarily with the structure of education, its content or the competing rights
and responsibilities within it. Rather, it endeavours to present theoretical readings of
aspects of education law and practise in order to explore notions of childhood[2]. Its
central premise is that education law determines not simply where and how children
should be educated, and by whom and for how long, but that it operates as an
increasingly important site for and provides signiŽ cant insights into contemporary
deŽ nitions and understandings of childhood.
This article focuses in particular on how education law responds to and deŽ nes
appropriate pupil behaviour. Section 9 of the Education Act 1997 introduced a new
category, that of children with ‘behavioural difŽ culties’. This term is not deŽ ned by
statute, but the provisions indicate that it includes excluded children and children with
special educational needs (SEN) (Monk, 1997), and it is these two educational and legal
responses or practises that are the central focus of this paper. Both these practises have
received much political and public attention, and have been the object of frequent recent
statutory intervention and litigation.
The well-documented dramatic increase in school exclusions has been perceived as a
matter of concern by a variety of legal, educational and child welfare commentators, and
as a problem that requires government attention and action (Blyth & Milner, 1996;
Children’s Legal Centre, 1996; Childright, 1996; Brereton, 1997; Cabinet OfŽ ce, 1997;
ISSN 0142-569 2 (print)/ISSN 1465-334 6 (online)/00/030355–16 Ó 2000 Taylor & Francis Ltd
356 D. Monk

Department for Education and Employment, 1997; Sinclair, 1997). Alongside the
increased use of exclusions has been the development of programmes and a new legal
framework for children with special educational needs (Wedell, 1990; Harris, 1997).
From a relatively marginalised role and over a short space of time, special educational
needs have become a legitimate and in uential factor in all policies regarding childrens’
social and educational development and welfare (Audit Commission, 1992; Department
for Education and Employment, 1997).
The aim in this article is not to criticise these responses to child behaviour from a
particular ideological or functional perspective, but, rather, to offer theoretically in-
formed readings of these practices and, in particular, to trace the contingent nature of
these responses. This article draws on two theoretical approaches, and examines
exclusions and special educational need separately from the perspectives that they
present. It draws Ž rst on Foucauldian theories of governance and discipline to identify
the techniques of government that these practices invoke and, second, on autopoietic (or
self-referential systems) theory to explore the limits to communication between these two
practices. While these approaches are quite distinct, they are similar to the extent that
they both present post-structural critiques of grand totalising narratives. A consequence
of this similarity is that inherent within both approaches is a perception that the
‘excluded child’ and the ‘child with Special Educational Needs’ represent not so much
‘real’ children, but ‘contingent discursive constructs’ (O’Donovan, 1993, p. 90) or
‘semantic artifacts’ (King & Piper, 1995). While within theories of governance these
constructs can be understood as products of social and political discourses, within
autopoietic theory these constructs perform as particular systematic communications.
SigniŽ cantly, these constructions are not mutually exclusive, and children very often
occupy more than one of these legal categories. For example an excluded child is also
a ‘child with behavioural difŽ culties’, frequently a child with SEN and, beyond education
law, arguably always a child ‘in need’ and all too often a child ‘in care’ (Children Act
1989, sections 17 and 31, respectively). Yet within each category or framework, the
child’s conduct is explained, and responded to in distinct, and often con icting, ways. A
recurring theme throughout this article is the way in which these practises and
constructions reveal the extent to which the problems that they endeavour to resolve are
not simply those of individual children, but of society and a particular social order.
Consequently, they serve to demonstrate the inevitable limit to which these responses can
ever represent totalising understandings or solutions to child behaviour.

Narratives of Governance
Childhood is the most intensely governed sector of personal existence. (Rose,
1989)
As policy responses to problematised pupils, exclusions and special educational needs tell
two very different stories of childhood governance[3]. They are often perceived as
oppositional practices, particularly when located within the language of the welfare/jus-
tice dichotomy frequently used in relation to juvenile justice (King & Piper, 1995).
Welfare advocates argue that as special educational needs programmes treat the causes
of inappropriate child behaviour and associated failure to achieve in school, increased
resources for special educational needs, together with earlier intervention (Sandow,
1990), would result in a reduction in the need to resort to exclusions (Department of
Education and Employment, 1997a, b). Conversely, others argue for stricter and more
 Theorising Law and Childhood 357

rigorously applied discipline, with disruptive pupils being excluded quickly and for longer
periods, a policy implicitly adopted in the Education Act 1997 (Hodgkin, 1997).
Underlying these contrasting approaches are distinct constructions of pupils: put simply,
the excluded child is held to be culpable for his/her behaviour and constructed as ‘bad’
and in need of punishment, while the child with SEN is constructed as ‘ill’ and in need
of treatment. In this way, the excluded child and the child with SEN to a certain extent
re ect society’s deeply ingrained notions of childhood as at times either innately evil or
innately innocent (Stainton Rodgers, 1992; Archard, 1993; Jenks, 1996). James et al.
(1998) deŽ ne these notions of childhood as ‘pre-sociological’. Nevertheless, as they argue,
this does not deny their importance and, indeed, the fact that they are both clearly
implicit within recent education legislation indicates how central they are to current
social policy and practices—despite the inherent con ict between them.
This social constructivist understanding of childhood to a certain extent challenges the
oppositional paradigms of justice/welfare, discipline/treatment and ill child/bad child,
that currently dominate public debate. For, while signiŽ cant, they obscure the fact that
both exclusions and special educational needs serve a normative function. Which is to say
that they are not only ‘responses’ to inappropriate or abnormal pupil behaviour, but that
they both play a critical role in the construction and deŽ nition of childhood behavioural
problems. Inherent within both practises is a claim to know the truth about childhood
behaviour and, consequently, they represent con icting ‘truth claims’ that are constituted
within a variety of distinct power relations—that perform as disciplinary techniques
aimed at the governance of pupils. The disciplinary techniques of government inherent
within the legal regulation of exclusions and SEN differ, and are explored below.

Exclusions and Governance

In the context of exclusions, three distinct forms of governance can be identiŽ ed:
(1) a juridical model of direct governance by headteachers and exclusion Appeal
Committees;
(2) a more subtle form of ‘government at a distance’ through parents and governors; and
(3) a form of self-governance by parents and pupils themselves.
At Ž rst glance, the practise of school exclusions presents an intensely direct and
somewhat brutal exercise of power. The power to exclude is exercisable only by a
headteacher and it is described by the government guidance circular as a disciplinary
sanction to be used ‘… in response to serious breaches of a school’s policy on behaviour
or criminal law’ (Education Act 1996, section 156; Department for Education and
Employment Circular 10/94, para. 2). The focus of the headteacher and where his
decision is challenged, the individual school Appeal Committees, is almost solely on the
behaviour of the aberrant pupil. The statutory framework for exclusions in this way
establishes a model within which the school represents a miniature society in which the
head teacher, supported by the governing body, is the law maker; the standards, or rules,
of behaviour, that they determine represent the criminal law of that society and the
excluded child, a criminal. To the extent that it emphasises commands and prohibitions,
and is exercised and experienced in a personal and local form—signiŽ cantly free of the
gaze of any external child ‘experts’—it represents a particularly direct and juridical mode
of governance. SigniŽ cantly, the framework requires the individuals involved to adopt an
intensely juridical consciousness despite the fact that none of the individuals or actors in
this process are lawyers or legally trained.
358 D. Monk

Challenges to the decisions of Appeal Committees in the courts are rarely successful.
To be more precise, judicial review of these decisions is effectively limited to issues of
procedural fairness (Harris, 1998a; Parsons, 1999; Monk, 1997) and, as the recent
OFSTED report found, schools are scrupulous in adhering to procedural requirements.
For example, in a recent judicial review case in which a pupil was permanently excluded
for being overheard swearing in the playground by a teacher, the High Court held that
the exclusion was neither unreasonable nor disproportionate (R v Board of Governors of Stoke
Newington School, ex p M [1994] ELR 131). While surprising, the decision was justiŽ ed, and
arguably correctly so, on the grounds that statute gave headteachers and governors a
wide degree of discretion in determining a schools acceptable standards of behaviour (In
this particular case, the school was a traditional boys catholic school and the refusal to
reinstate the ‘foul-mouthed’ pupil was upheld primarily because he refused to apologise,
and this lack of remorse was felt to undermine the core ethos of that school). This
approach re ected and served to uphold the broader government policy of diversity in
education and the associated policy of increased parental choice of school. There is,
however, a clear tension between the policy of encouraging diversity and the guidance
in the government circular, which states that exclusion should be an extreme measure of
‘last resort’, and while the Education Act 1997 now requires schools to have regard to
the guidance, the government was reluctant to interfere more directly with the discretion
of head teachers and governors (Monk, 1997).
The tension between central government’s desire to distance themselves from schools
and simultaneously to regulate them re ects deeper problematics of government. For the
wide discretion of headteachers and governors, and the involvement of parents in the
development of school disciplinary policies, is not simply a form of unregulated
independence, but a discreter form of governance—government at a distance. This is
particularly clear in connection with parents, but looking solely at the parental role here
should not be taken as suggesting that LEAs or teachers have an insigniŽ cant role
(Cooper, 1997).
Parental involvement in matters of discipline has been enhanced directly through their
increased representation on governing bodies and through measures that ensure a
heightened degree of accountability. Indirectly, and in an uneven way, their in uence is,
at least in law if not in practice, enhanced by the increased  exibility in the choice of
school. Their new enhanced role represents a technique of government at a distance as
it is informed by both a political calculation and an ideological expectation of how parents think
and behave. As Vikki Bell (1993) comments, ‘laissez-faire is not so much practised as
used’. The calculation is that parental knowledge is likely to favour, and demand, a
return to a ‘common-sense’ (for which read traditional) form of tough, no nonsense
discipline; in contrast to the perceived progressive/liberal expertise of local government
and the teaching profession. (In a similar way, their enhanced control over sex education
is informed by a calculation that they will favour a traditional form of moral and sexual
values (Monk, 1998). The expectation is that parents are, or at least should be,
responsible for the behaviour of their children[4]. This expectation is re ected in the
legal procedure regulating exclusion appeals that, signiŽ cantly, deŽ nes the ‘relevant
person’ for exclusion proceedings as the parent and not the pupil, and in demands for
increased parental responsibility for the behaviour of their children in school through
measures such as home–school contracts (Harris, 1998b, p. 404). Consequently, the
practise of exclusions constructs not only good and bad pupils, but also good and bad,
or responsible and irresponsible, parents. Those parents who attempt to defend the
 Theorising Law and Childhood 359

behaviour of their excluded child, as opposed to accepting their responsibility and

showing the appropriate degree of remorse and shame, may often experience an acute
sense of stigmatisation. SigniŽ cantly, ‘parent power’ in the context of exclusions then
gives little power to the parents of excluded children and, indeed, emerging evidence
suggests that they feel powerless and ignored (Parffrey, 1997). It can be argued that these
parents are in a sense excluded from the category of normal or acceptable parenthood.
A signiŽ cant consequence of the potential difference between how parents are
expected to act and how they actually do act is that while within current dominant
political discourses parents are often held responsible for the anti-social activities of their
children, in exclusion proceedings irresponsible parenting is no defence for the pupil and,
indeed, the excluded pupil is dependent on the irresponsible parents for his/her
representation in the proceedings. This is a notable example of one of the many
differences between education law and child law, and demonstrates the contingent
meanings and uses of the concept of parental responsibility.
A third technique of government, that of self-governance, relates to both parents and
pupils themselves. This refers not to the ideological expectation that parents will behave
in a particular way, but to more subtle attempts to actually materially affect the
behaviour of parents. For alongside the endorsement of autonomous parent power,
which often has unforseen political consequences (Cooper, 1997; Monk, 1998), recent
statutory provisions and policy developments such as home/school agreements and,
particularly, parenting programmes represent an attempt to inculcate a norm of a
particular form of parental responsibility. A similar approach can be seen in attempts to
include pupils themselves in the process of upholding school discipline policies through
school councils. While parent training programmes and an enhanced role for pupils in
developing and upholding school discipline are generally characterised as progressive
welfaristic measures, it is questionable the extent to which they genuinely embrace
democratic principles of participation or indeed enhance pluralism within schools (Smith,
1997).

Special Educational Needs and Governance

The practice of SEN tells quite a different story of governance. Special educational need
can be perceived as a ‘soft’ welfaristic response to children with behavioural difŽ culties
and one that serves to ‘correct the rigours of the school’ (McGillivray, 1997, p. 4).
Central to this characterisation is the fact that it is blame free—at least to the extent that
the pupil is not held to be in any way culpable. (The nature of parental responsibility in
the context of SEN is rather more complex and discussed later.) SEN as a social practice,
however, explicitly challenges traditional forms of learning-through-discipline. Indeed,
within progressive narratives, it represents the successful end-point in an historical
movement away from practices such as corporal punishment and Victorian dunces hats.
According to this narrative, it represents a more humane but also, crucially, a more
knowledgeable method and, consequently, both a more effective method for enabling
pupils to learn and a solution to the problems of aberrant pupil behaviour.
From a Foucauldian and post-structural perspective, it represents not so much a
humane and progressive response, but rather simply another schema of power/knowl-
edge; an alternative disciplinary process for the governing of pupils (Hunter, 1996; Rose,
1996). This approach enables programmes for special educational needs to be under-
stood as a particularly invasive technique of government that, in contrast to the juridical
system of punishment, actually endeavours to enable those pupils whose behaviour has
360 D. Monk

been problematised to perform in accordance with a set of normative calculations as to

what is appropriate behaviour. This approach does not suggest that special educational
needs programmes are necessarily negative or are in con ict with children’s welfare, but
rather requires us to contextualize and interrogate welfare-based assumptions and expert
calculations as to what is in a child’s best interests. By doing so, this approach serves to
challenge a perception of SEN as a programme for the achievement of self-realization
(Hunter, 1996). This is to say that in the problematising of certain pupils behaviour and
in the establishing of the ideal norm for pupils, programmes for special educational needs
are not simply a response to individual need, but are the result of a complex concat-
enation of social, cultural and economic calculations and interests. Consequently, the
needs of special educational need are not solely or necessarily synonymous with the needs
of the pupil (Tomlinson, 1981; Barton & Tomlinson, 1984; Barton & Oliver 1997). As
Galloway et al. (1994) comment: ‘whether a child’s attainments or behaviour are seen as
evidence of SEN depends on what parents, employers and government expect from the
educational system’.
It is, perhaps, informative to talk of the ‘discovery of Special Educational Needs’, in
a similar way as child sexual abuse has been (Parton, 1985), as a means to understanding
the conditions of possibility underlying the increase in public and political concern and
the growth of the SEN industry, in order to appreciate how the increasing use and
support for SEN programmes re ects not simply a progressive welfare-based agenda, but
more complex power relations, shifting perceptions of problematic children and changing
deŽ nitions of educational failure (Barton & Oliver, 1997).
In practise, social and political perspectives are largely excluded, as special educational
needs programmes are heavily grounded in the scientiŽ c discipline of developmental
psychology (Bart, 1984; Stainton Rodgers, 1998). Within this discipline, and in particular
as a result of the in uence of Piaget’s work, child development and learning are
conceptualised as natural processes in which children acquire cognitive competencies
according to universal and stratiŽ ed sequences based largely on age (Jenks, 1996, p. 23;
Sutton, 1981). This ‘ideology of development’ (Jenks, 1996) or ‘developmentalism’
(Stainton Rodgers, 1998) constructs boundaries between the social categories of adult
and child, and implicitly equates adult intelligence with a neutral scientiŽ c rationality.
Critical analyses of these theories highlight how, within this ideology, ‘the development
of thought is indifferent to the actual content of thought’ (Venn & Walkerine, quoted in
Jenks, 1996, p. 25) and that, as Jenks (1996, p. 25) describes: ‘real children are subjected
to the violence of a contemporary mode of scientiŽ c rationality which reproduces itself
at the expense of their difference’. The use of the word violence by Jenks clearly invokes
a Foucauldian notion of discipline and provocatively suggests that the practice of SEN
can be understood as a form of mental corporal punishment. While this is a challenging
suggestion, it is signiŽ cant that whereas parents who demand a diagnosis of SEN merely
because their child fails to satisfy their expectations is a scenario that is gradually being
perceived as potentially abusive, diagnosis by the experts is rarely perceived in that way.
The scientiŽ c claim to truth successfully hides the exercise of power (Foucault, 1980).
These critical analyses of developmental psychology have a particular resonance with
the legal deŽ nition of special educational needs. Section 316 of the Education Act 1996
deŽ nes special educational needs in three ways, where a child has:
(1) greater difŽ culty in learning than the majority of children of his age; or
(2) a disability that either prevents or hinders him from making use of educational
facilities of a kind generally provided for children of his age (in schools within the
area of the LEA); or
 Theorising Law and Childhood 361

(3) if under the age of 5, a child would have special educational needs by the time he
reaches school age unless special provision is made.

Within the Ž rst category, which has implications for all of them, the assessment of special
educational needs is dependent on the identiŽ cation of what is normal for a child of a
particular age. Yet these norms, established through detailed surveillance of children in
clinics and schools, represents little more than ‘a standard based upon the average
abilities or performances of children of a certain age in a particular task or a speciŽ ed
ability’ (Rose, 1989, p. 142). The importance attached to the ability to ascertain the truth
of the normal child upholds the ideology of development and ensures that, in the context
of special educational need, the positive aspects of difference are highly problematic
(Barton & Tomlinson, 1984; Barton & Oliver, 1997). Indeed, while the government
Code of Practice on the IdentiŽ cation and Assessment of Special Educational Needs
acknowledges that all children may at some stage have a special educational need
(Government Code of Practice 1994), the emphasis is on treatment as opposed to
recognising the challenge that behaviour that deviates from the norm presents for
educators.
The second category in the legal deŽ nition of special educational needs,
that of disability, ensures that the diagnosis of a psychological disorder or
syndrome is often crucial in the assessment of special educational needs. As a
consequence of this, it serves to legitimise an in uential role for clinical and child
psychology experts in disputes (Harris, 1997) notably similar to the role of medical
experts in child abuse cases. Psychological illness confers a legitimacy on behaviour that
deviates from the norm. However, it is a conditional legitimacy in that there is an
implicit recognition that it is an undesirable state (Bart, 1984). One consequence of the
medical/psychological or ‘within-the child’ construction of special educational needs is
that historical and cultural factors are excluded from the assessment. For example, the
ideal Victorian child who was seen and not heard could today quite possibly be perceived
as withdrawn and suffering from a communication disorder, and consequently treated
and not praised.
Despite the fact that there is now a considerable body of sociological or contextual
explanations of SEN, in practice these approaches have had little impact on the deŽ nitive
authority of science (Slee, 1995, 1997; Stainton Rodgers, 1998). An example of this is the
recently discovered ‘epidemic’ (Slee, 1995, p. 167) of Attention DeŽ cit Disorder (ADD).
Diagnosis of ADD is dependent on a child displaying a number of behavioural attributes,
such as: often not appearing to listen when spoken to; often losing things such as pencils
and school assignments; disliking tasks such as homework; running about in situations in
which it is inappropriate; being easily distracted; leaving a classroom seat when being
seated is expected; being noisy when taking part in quiet leisure activities (Silver, 1997).
The medical response to these symptoms is the controversial, but increasingly used, drug
Ritalin, prescriptions for which have increased in England from 2600 in 1992 to 92,000
in 1997 (Stuftaford, 1999). This practise illustrates the extent to which social pathology
is treated as individual illness, and demonstrates how medical knowledge and expertise
operate as a technique of modern government that serve to legitimise the problematisa-
tion of child behaviour that deviates from the norm (Rose, 1996; Tyler, 1997; DeGrand-
pre, 1999, Diller, 1999).
The third category within the legal deŽ nition of special educational needs that
concerning the child aged under 5, indicates that one of the purposes of special
362 D. Monk

educational needs is to prepare children for the move from nursery to school, a moment
that marks the end of care-free childish games and the beginning of adult-like work in
the form of a particular type of learning. The distinction between work and play, with
the trivialisation of the latter, is learnt at an early age and indicates the role that
education has in preparing children for a particular social role (Sherman, 1997). Again,
this challenges the individualistic, or ‘within-the-child’, and scientiŽ c conceptualisation of
special educational needs, for in this context it serves to ‘assist’ children in the transition
from the social category of ‘infant’ to that of a ‘pupil’.
To summarize then, in contrast to exclusions, in connection with SEN, the normative
function is expressed through the neutral language of science, as opposed to the sovereign
like commands of a headteacher. It re ects the shift from repressive juridical control to
a more intimate and invasive techniques of government at a distance through the
medical gaze (Rose, 1989, 1996; Tyler, 1997). Indeed, the fact that while parents
generally challenge exclusions but they plead for special educational needs, is itself
indicative of this shift and of the invasiveness of this form of government as it
demonstrates the internalisation of the psy-disciplines. As Rose (1989, p. 208) comments,
‘The tension generated by the gap between normality and actuality bonds our personal
projects inseparably to expertise’. Being alert and ready to identify a special educational
need within one’s child is sometimes perceived as an indication of a responsible parent;
in this way, notably, the parent of a child with SEN is a ‘good’ parent in stark contrast
to the parent of an excluded child. However, the fact that in law children are dependent
on their parents for challenging decisions regarding SEN exacerbates the fact that some
underprivileged childrens needs are often overlooked and they are more likely to be
excluded, and conversely other children are pathologised merely for not fulŽ lling
parental expectations. SigniŽ cantly, there is little indication of parents as a collective
group with enhanced power demanding increased resources for SEN. Rather, these
claims are individualised and, in this way, parents of children with SEN to a certain
extent share the excluded child’s parents experience of marginalisation and powerless-
ness.

Autopoietics
The central premise of autopoietic (or self-referential systems) theory is its conceptualisa-
tion of modern society being comprised of various functionally differentiated and closed
systems (such as law, science, religion, economics and politics) (Teubner, 1993; King &
Piper, 1995; King, 1997). External facts are understood within each system according to
their own functional understanding of the environment, and this understanding takes the
form of a particular binary coding. (For law, lawful/unlawful; for science, true/false; for
religion, right/wrong; for economics proŽ t and loss.) An important consequence of this
differentiation is that genuine communication between them is impossible. From an
autopoietic approach, the ‘excluded child’ and the ‘Child with SEN’ are not ‘real’
children but semantic legal artifacts; which is to say that, despite the intensely complex
and multifarious ways in which they can be understood, they are perceived in law
according to the binary coding of lawful and unlawful.
Autopoietics differs from the analysis of governance in that it focuses not on the
disciplinary nature of exclusions and special educational needs, but rather characterises
them as systems, or elements within systems, of communication. Autopoietics tells
us very little about the political or social purpose of exclusions and SEN; nor does
it not lend itself to a children’s rights agenda (King, 1997). It is not therefore a
 Theorising Law and Childhood 363

critical emancipatory theory. However, it does provide a particular way of appreciating

the restrictive possibilities of legal communication. So while it does not challenge the
existing organisation of society, the distribution of power and resources, or the rightness
and authority of the law and legal institutions, it does however challenge the meaningful-
ness of how the forms and functions of these arrangements are often understood
(Murphy, 1994, p. 248). Consequently, it is critical to the extent that it identiŽ es the
practical consequences of functional conceptualisations of children and has important
implications for inter-agency cooperation and ‘joined up’ policies.

Exclusions
Numerous explanations exist for the dramatic increase in school exclusions: from lack of
parental responsibility, progressive teaching methods, the bad example set by teachers
striking and wearing inappropriate clothes, and increased violence on television, to more
social and less individualised explanations such as the condition of school buildings,
failure to recognise and resource special educational needs, the introduction of LMS and
league tables, and underlying structural inequalities in society (Elton, 1989).
Despite these complex and con icting educational, social and political understand-
ings, in exclusion proceedings, it is only the disruptive or inappropriate conduct of the
pupil, as opposed to other aspects of the pupil or the school or broader educational
policy, that forms the central focus for consideration. This is particularly noticeable
in the workings of exclusion appeal committees, for while they have a wide degree
of discretion, the committees are not obliged by statute to consider the interests of
any of the parties involved, where they ‘decide that the pupil in question was not
guilty of the conduct which the Head Teacher relied on as grounds for his permanent
exclusion’ (Education Act 1996, section 154). Where this is not the case, the committee
must have regard to the disciplinary measures publicised by the headteacher in order
to establish whether or not the excluded child’s behaviour breaches the ‘standard of
behaviour which is to be regarded as acceptable’ (Education Act 1996, section 154, Sch 16,
para, 12A). In this way, the appeal committees can be seen to reconstitute, and simplify,
the behaviour of the excluded child within law’s coding of reality as either lawful or
unlawful.
However, appeal committees are also obliged by statute to have regard to the interests
of the pupil (as well as the interests of the other pupils at the school and the members of
staff) (Education Act 1996, Sch. 16, para. 12A). Similarly, the government guidance
encourages appeal committees to have regard to other information regarding the excluded
child, such as the possibility of the pupil having a special educational need and
the domestic circumstances of the child (Department for Education and Employment
Circular 10/94, paras. 5 and 6). However, despite these attempts to encourage
appeal committees to look beyond the ‘innappropriate’ behaviour of the child, the interests
of the child are rarely a crucial consideration in exclusion decisions. Indeed, the fact
that the consequences of exclusion for many excluded pupils are inadequate, part-time
education and increased vulnerability to involvement in crime (Childright, 1996;
Audit Commission, 1996; Parsons, 1999) indicates that exclusion is rarely, if ever, in a
child’s best interests. Rather, while other factors relating to an excluded child may be
considered, these factors are marginalised within the legal coding of lawful/unlawful and
are only relevant to the extent that they demonstrate the pupils ‘dangerousness’ to the
school and degree of moral responsibility. This interpretation is supported by the govern-
ment guidance circular itself, which advises that assessing whether reinstatement of an
364 D. Monk

excluded pupil would be ‘seriously detrimental to the education or welfare of the pupil’s
is a criterion that provides ‘a test to assist in distinguishing between serious and minor
offences’ (Department for Education and Employment and Circular 10/94, paras 5 and
6). This demonstrates clearly how information from educational and welfare discourses,
far from opening up the legal discourse to other more complex perceptions about a
pupils conduct, or being used to establish what the effects of exclusion will be, is rather
reconstituted within law in a way that reduces the complexities of the situation to a
simpliŽ ed legal communication.

Special Educational Needs

A similar process can be identiŽ ed in connection with children with SEN. As already
indicated, special educational need draws signiŽ cantly on the construction of ‘reality’
within scientiŽ c discourses. However, SEN procedures exist independently of this and, in
the reconstituting of a child with special educational needs into the legal construct of a
‘child with SEN’, there is a necessary ‘interference’ between science and legal discourse.
Indeed, the increased legitimacy and importance attached to special educational needs
in recent years, its identiŽ cation as a crucial factor in tackling the growing problem of
child behaviour and the fact that parents faced with the denial of access to special
services frequently challenge LEA decisions (Harris, 1997) has taken the concept of
special educational needs away from the contained world of the clinic and increasingly
into the courts—indeed, special educational need is now the most litigated issue in
education. The result of this interference between special educational needs and legal
discourse is that the complex medical and psychosocial issues surrounding a diagnosis of
a child are dramatically simpliŽ ed so that a child is classiŽ ed as a child either with or
without a special educational need. Similarly, while the effect of, and predictions
regarding, the possible outcome of treatment is crucial for educational psychologists,
teachers and parents, within the legal discourse, the success or failure of treatment is a
marginal issue in determining the central issue of whether or not a child has a special
educational need. In this way, the decision to statement a child again re ects legal
discourses insistence on a clear binary lawful/non-lawful division (King & Piper, 1995).

Legal Constructs
As legal constructs, the ‘excluded child’ and the ‘child with Special Educational Needs’
both simplify, individualise and depoliticise complex issues. This serves to marginalise
and overlook the signiŽ cant implications of gender (Monk, 2000), race and class in the
composition of the children within these categories (Blyth & Milner 1996; Barton &
Oliver, 1997). Similarly, while factors such as the curriculum, bad or inappropriate
teaching and failing schools, as opposed to failing pupils, are identiŽ ed as crucial factors
in understanding the conduct and attainments of pupils (Elton, 1989), and indeed are
high on the political agenda (Department of Education and Employment, 1997b), in the
legal construction of the excluded child and the child with SEN these factors are deemed
irrelevant. For example, the possibly uninspiring and rigid nature of the curriculum is
never a relevant factor in explaining the lack of interest or aptitude of a pupil, in the legal
context of special educational needs or the disruptive behaviour of a pupil in the legal
context of exclusions (Russell, 1990; Visser, 1993) despite the fact that the curriculum has
a signiŽ cant impact on the construction of notions of ability (Furlong, 1993).
 Theorising Law and Childhood 365

‘Working-Together’?
Despite the fact that both the excluded child and the child with special educational needs
represent simpliŽ ed legal constructs, the similarities between the two practices, and
consequently the possibility of genuine communication between them, are severely
limited as neither of them operate solely within the realm of legal discourse. Rather, in
each case, their construction is a result of interference with other discourses and other
systems to the extent that they are not simply legal constructs, but more complex hybrid
constructs of more than one system.
In the case of special educational needs, this is predominately with educational
psychology, and in the case of exclusions with localised school morality. The result is that
identical information regarding the facts concerning a particular child are reconstituted
anew within each system of communication as ‘the facts’ regarding a child’s behaviour
are utilised for distinct purposes. For example, in the context of exclusions, behaviour is
perceived in accordance with a moral coding, explicit within a schools behaviour policy
as either right or wrong, whereas behaviour in the context of SEN is coded according
to the scientiŽ c system as either a true or false indication of a SEN. One consequence
of this is that within the moral coding of exclusions the focus is on what a child has done,
while within the scientiŽ c coding of special educational needs the focus is on what a child
appears unable to do. In this way, information regarding a child’s conduct in special
educational needs is not an end in itself, as it often is in the context of exclusions, but
rather a possible symptom of a condition requiring treatment. Similarly, while the effect
of a child’s behaviour on other pupils is often the crucial factor in the decision to exclude,
it is often irrelevant in the assessment of special educational need. Consequently, while
an excluded child may be categorised as a child with SEN, and many are, and it is often
argued that more should be (Sinclair, 1997; Department of Education and Employment,
1997a, b), in social practice and in law, as well as in theory, there exists not one ‘real’
child but two distinct problematised objects of concern constructed and functioning
within two separate systems.
This observation is particularly signiŽ cant because of the critique it presents of the
suggestion, frequently made in the context of social policy development, that closer
collaboration and communication between the relevant professionals and agencies will
result in, and is necessary for, a more ‘child-centred approach’ (Sinclair, 1997). This
policy, expressed in numerous guidance documents, urges professionals and agencies to
‘work together’, and most recently underlies the new provision in the Education Act 1997
that requires local education authorities to assist and coordinate schools responses to
children that come within the new category of children with ‘behavioural difŽ culties’
(Monk, 1997)

Interference with Economics

Alongside the understandings of exclusions and SEN within the systems of morality,
science and law, a further way in which these practises are perceived is through the
system of economics. Economics plays an increasingly signiŽ cant role within the
education system as a whole, particularly as a result of the post-1979 market-
based reforms. These notably have had the effect of constructing parents as consumers
rather than passive recipients of services (Bash & Coulby, 1989; Harris, 1993; Barron,
1996). Similarly, the shift of power from LEAs to individual schools through LMS
366 D. Monk

and opt-out provisions increased competitiveness, and has resulted in pupils being
perceived in terms of value and expense.
A critical example of this process of ‘interference’ between economics and education
is demonstrated by the calculation of how widespread special educational need is. Among
educational psychologists there is little consensus, largely due to the lack of any clear
deŽ nition; indeed, research undertaken vary in their conclusions to the extent that
between 2 and 60%, and even 100%, of pupils may at any one time be considered to
have a special educational need (Galloway, et al., 1994). However, in the context of
government policy, following the recommendations of the Warnock Commission, the
Ž gure of 20% has been established (Department of Education and Employment, 1997a).
The result, in practice, is that while information regarding the severity of a pupil’s
behaviour in the clinic is used to distinguish between one disorder and another, the same
information in schools and for LEAs is used to determine whether or not resources can
justiŽ ably be allocated, or indeed whether there may be an easier or cheaper option such
as exclusion. One effect of this is that there is little consistency in diagnosis between
different schools (Thomas & Davis, 1997).
In the context of exclusions, a number of critical commentators challenge the assump-
tion that the rise in exclusions re ects changing behaviour among children. They argue,
most plausibly, that it simply ‘is not feasible that children’s behaviour could have deterio-
rated so much within so short a space of time’ and that the increase is a result of the market
based system which ‘creates winners and losers … And acts against those problematic and
underachieving pupils who are expensive to educate’ (Berridge & Brodie, 1997, p. 5).
Consequently, pupil behaviour is problematised not solely on the basis of discipline but, in
addition, on account of their effect on the school in league tables and resources.
Autopoietic theory is of particular use here. First, it enables us to identify how the
excluded child is constructed within the economic system, i.e. how the excluded child is
reconceptualised within the economic coding of proŽ t/loss. Second, it suggests that if the
number of exclusions is rising because of the economic loss that these children cause, as
is suggested by the effect they have on the schools ‘success’ in league tables, their ability
to be able to ‘compete’ in the market and their demand on resources, then it is by
measures that accord with the economic system of communication that attempts to
reduce exclusions should be framed. While the government has refused to penalise
schools Ž nancially for exclusions, it is notable that it has, however, announced that ‘the
method of calculating the performance data in school league tables will be changed so
that schools will not be able to beneŽ t from excluding under-achieving children’ (Harris,
1998, p. 406). This is not to suggest that Blair and Blunckett are closet autopoieticians,
but it is signiŽ cant that this policy implicitly appears to acknowledge that requesting or
directing schools to consider the welfare implications of exclusions has little meaning or
value in a system of education based increasingly on value rather than need.

Conclusions
Highlighting the normative purpose of exclusions and special educational needs, and the
systematic closure inherent in both practises, challenges the perception of them as
representing in any way totalising solutions to the problem of aberrant pupils. Both fail to
incorporate an appreciation of their contingent nature and, in particular, how the
construction of these problem or ‘other’ pupils is essential for the construction of the
normal child. Jenks identiŽ es the increased concern about children, their behaviour,
standards of education and learning abilities as a re ection not of any dramatic change in
 Theorising Law and Childhood 367

childrens behaviour, but rather a re ection of complex concerns and deep-rooted anxieties
for the future of society and, of particular relevance in this context, suggests that ‘the
identiŽ cation of anomalies is integral to the establishment of social order’ (Jenks, 1996, p.
129). Consequently, increased efforts to help, cure or punish ‘anomalous’ pupils, as evident
from spiralling increase in the number of children being excluded or treated for a special
educational need, does not result in a reduction in the number of problem children;
indeed, arguably the opposite. Rather, these attempts re ect an ever increasing desire to
govern children and, underlying these practices, are complex and  uid anxieties regarding
the nature and uses of the concepts of youth and childhood (Jenks, 1996; James & Prout,
1997; Wyn & White, 1997).
Perceiving the practices of exclusions and special educational needs as neither inherently
good nor bad, but rather as alternative attempts to govern childhood raises difŽ cult
questions that are often obscured or hidden from public debate. In particular, they
challenge policy-makers to ask not ‘what is the best way to respond to children who behave
or learn inappropriately?’, but rather ‘what is appropriate behaviour for a child?’. In other
words, it requires a shift of focus away from attempting to solve the problems of a minority
of children towards addressing the more complex issues and interests that underlie the
construction of the normal child. Yet, signiŽ cantly, the acknowledgment of the contingency
of childhood itself often presents a challenge to, and for, public and policy responses, for
the perception that the behaviour of an increasing number of children constitutes a
problem is often characterised as an essential and unquestionable common-sense ‘truth’
and one that justiŽ es, demands and requires a solution. Consequently, one of the chal-
lenges facing policy-makers is to develop re exive structures that preclude oversim-
pliŽ cation and systematic colonisation of the issues to include a genuine form of child
responsiveness. This article has demonstrated how law, despite its purely functional
appearance, is heavily implicated in these processes and restrictive understandings of
childhood. Consequently, it not only challenges the ever increasing juridiŽ cation of
educational disputes, but hopes to encourage dialogue between sociologists of education
and critical lawyers.

Acknowledgments
Earlier versions of this article were presented at the Critical Legal Studies Conference
(Dublin, 1997), a University of Warwick Law Department staff seminar in March 1998
and the American Law and Society Conference (Chicago, 1999)—the latter facilitated by
a grant from the British Academy; the author would like to thank those present for their
comments. Particular thanks to Davina Cooper, Michael King and Carl Stychin for
their advice and suggestions on earlier versions and to the anonymous referees for their
comments.

Correspondence: Daniel Monk, Department of Law, Keele University, Keele, Staffs ST5
5BG, UK

NOTES
[1] The Education Law Association (established in 1991), Education Law Reports (Ž rst issue, 1992), Education Law
Monitor (Ž rst issue, 1993), Education and the Law (Ž rst issue, 1988), Education, Public Law and the Individual (Ž rst
issue, 1996) and Education Law (Ž rst issue, 2000).
368 D. Monk

[2] ‘Childhood’ here refers to a contingent social construct, as opposed to a biological reality. Consequently,
it is quite distinct from ‘children’ and draws on the growing body of academic literature that seeks to
explore and understand childhood from sociological perspectives (Jenks, 1996; James et al., 1998; Stainton
Rodgers, 1998).
[3] Governance in this sense is a reference not to state or government policy, but to the Foucauldian notion
of governmentality to describe the wide range of disparate practices and techniques by which individuals
are regulated and simultaneously regulate themselves (Hunter, 1996; Rose, 1996).
[4] While the term parent yis used, in practise it is often the mother. For a genderd reading of the effects of
the educational reforms of the 1980s, see David (1991).

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