Maria Refors Legge har undersökt skollagens bestämmelser om kränkande behandling och vad som är gällande rätt i fråga om skolornas ansvar att skydda elever mot denna typ av kränkningar.
Maria Refors Legge
Professor Pernilla Leviner, Stockholms universitet Professor emerita Wiweka Warnling Conradson, Stockholms universitet Professor Ann-Christin Cederborg, Stockholms universitet
Professor Håkan Gustafsson, Karlstads universitet
Skolans skyldighet att förhindra kränkande behandling av elever: En rättsvetenskaplig studie
Abstract in English
This doctoral thesis examines schools’ responsibility to prevent degrading treatment of children and students under the Swedish Education Act. With the support of empirical studies, the aim is to examine and problematize whether the provisions in the Education Act against degrading treatment can be regarded as effective. The purpose also includes reflecting on factors that could potentially increase the effectiveness of the degrading treatment provisions. Using a theory of effective legislation, the thesis argues that effective laws should be a central objective in all legal systems. If laws are ineffective, there is a risk that the shortcomings they are intended to remedy remain unfulfilled and the goals they are designed to meet are not realized. The word ”effectiveness” referred to in the thesis is based on three criteria, namely:
Purpose (what goals the law is expected to achieve);
Context (how well the law fits into a legal system in general);
Design (how the goals are intended to be realized, by what means this will take place, and how this information is communicated).
It is argued in this thesis that the purpose of the Education Act’s provisions against degrading treatment are three in total, namely: 1) to work actively to prevent degrading treatment, 2) to educate children about their human rights, and to 3) bring about a school environment with zero tolerance against degrading treatment, bullying and harassment. It is also argued that one of the provisions – the goal of zero tolerance against degrading treatment – does not lend itself to effectiveness, as it is impossible to fulfil.
Whilst the Education Act fits well into the international legal context framed by the United Nations Convention on the Rights of the Child, there are several contextual problems in relation to the Swedish Discrimination Act and the Swedish Constitution (Sw Regeringsformen) that lead to ineffectiveness. The context flaws regarding the Swedish Discrimination Act and the Swedish Constitution mainly concerns norm collisions and overlapping regulations.
Finally, certain design flaws affect the overall effectiveness of the provisions against degrading treatment contained in the Education Act. For instance, the fundamental concept of degrading treatment is not explained, and the width of the responsibility for Swedish schools is not made clear.
Regarding the factors that could potentially increase the effectiveness of the degrading treatment provisions it is argued in the thesis that it should be made clear by the legislator that there is no goal of zero tolerance against degrading treatment in the Education Act, but a responsibility for the schools to work actively to prevent degrading treatment and to educate children about their human rights. It is also argued that the Education Act should be merged with the Discrimination Act when it comes to provisions against degrading treatment and harassment in schools, mainly to avoid norm collisions within the legal context of the Education Act. Lastly it is argued that the design of the Education Act could be improved by explaining important concepts such as degrading treatment and responsibility.