The Role of Law in Educational Research

Within the edusphere, many academics have addressed the question of how law encroaches upon practices. Many academics can cite instances when they perceived legal strictures to be present in an educational context. From a more qualitative standpoint, such encroachments of law within pedagogy have been linked to a broader sense of social change. There is a tendency by some academics to be critical of “administrators”, and this tendency is because some academics believe that “administrators” contribute to the goals of “neoliberalism.” The term “neoliberalism”, when applied to context of education, describes a tendency to make education into a market-like commodity. It can also mean that the socio-legal environments surrounding academic institutions create a particular type of institutional culture. Law encroaches upon pedagogy by shaping the institutional culture for what is acceptable or not appropriate.

In order to make a more mundane (and perhaps not as polemical) example of how law encroaches upon education, which can have consequences for its social contexts, think about the role of confidentiality within educational research. Social science research often requires social scientists to sign Institutional Review Board forms, which are essentially contracts that require a specific confidentiality. Depending on the social scientist’s area of study, confidentiality can be useful for protecting subjects involved in an educational study. Yet, for some social scientists, this increased emphasis on confidentiality has led to a belief that certain research is less important due to the inapplicability of a Confidentiality Waiver. To this academic, it seems like the legal system is prioritizing confidentiality over other types of research. Such a prioritization could be construed as an encroachment of law upon pedagogical research.

But, if you think about the details of what a Confidentiality Waiver entails, then you may find that the legal system is not necessarily encroaching on the pedagogy of educational research. In fact, educational institutions often attempt to shape their pedagogies upon guidelines that may be formalized through the legal system. For instance, if you were to have a Confidentiality Waiver, would you still need one for an Informant? To think about that, consider the following: Most of us are familiar with the concept of a Confidential Informant through the mainstream media. Confidential Informants, such as “an anonymous source”, occur throughout news media. In fact, the arrangement of a Confidential Informant can be formalized into a formal contract, known as a Confidential Informant Agreement Form. Use of a Confidential Informant Agreement Form can be defined as an “agreement between law enforcement (LE) and a confidential informant (CI).” The same agreements were divided into two subsets-“(i) compensation, and (ii) terms.”

For now, let’s focus on the first subdivision of any Confidential Informant Agreement. On one point, a confidential informant can be useful for a social scientist, given that some social phenomena might be more difficult to notice without having an “informant” capable of accessing these areas (e.g. networking on particular social media sites). The difficulty is that the social scientist would have to formulate a Confidentiality Waiver for the informant, and the social scientist probably would rather some sort of “whistleblower” agreement. Consider how. If you were to use a Confidential Informant Agreement, it might have the purpose of incentivizing the CI to provide information to the LE agenc[y]. The terms of such an agreement would require the CI to provide certain types of information to the LE agency. Under the terms of the agreement, an individual might provide information (such as recording of cell phone conversations during criminal activity) in exchange for certain rewards. Such rewards can include financial payment and reduction of sentences for past criminal behavior.

Given that these types of exchanges can have ethical implications, it may be that a social scientist needs certain caveats for the CI to meet before entering into a CI agreement. If you think about it carefully, a CI operates far differently from a “research subject”. While a social scientist needs a Consent Waiver to guarantee the way a research subject would potentially experience “experimenter demand”, a CI has no such protections. Instead, the CI is simply expected to offer information to the LE agency and not feel it necessary (nor angry for failing) to provide information to a “researcher”. In one sense, it may be that the Confidential Informant Agreement Form works for the social scientist because it avoids the problems associated with a “Consent Waiver”.

In order to avoid devoting too long to this question, I will end this post with some items for the reader to consider. There may be some instances where a social phenomenon will occur, but documents related to the phenomenon will be difficult to trace (i.e. if the phenomenon is non-verbal). Under these circumstances, the social scientist may need to create an ad-hoc research guideline to ensure that anyone who may be observed is aware of the observation. This may mean developing some form of “Informant Agreement”. In contrast to the CI agreement, an “Informant Agreement” can be different as a document. If you think about the differences between a CI and a research subject, you will see there are two different types of “contracts” being created. On one hand, the CI has an “agreement” with the LE agency to provide information, an offer to “enter into the contract” is more optional since the potential informant is free to refuse to “inform” the LE agency. In that sense, it can function like a traditional “contract”, where the two parties would not have to sign a document to agree to terms. The terms of the Contract are already “implied” through the words of the contract, just ask any lawyer! For the social scientist, they would need to write a new type of agreement to capture the differences between the “consent waiver” and “informant agreement”. In that sense, the social scientist is circumventing legal encroachments upon education by using the legal system itself.