Flattening the Governance Curve: Building Governance-Herd Immunity for Schools

A great deal has already been written, said and thought about the World Health Organisation declared Covid 19 pandemic and its impacts on public health, mental health, business, the economy and society (amongst other topics). What might we say about its impacts on school governance? A great deal.

The potential exposure of schools and their boards is substantial at a time when schools continue to charge fees (albeit discounted for many already) whilst the school’s offering looks completely different from usual and members of the school community are suffering a range of pressures (job losses, isolation, schooling responsibilities for their children). It is to be expected that this will increase, not decrease, families’ expectations of the school. For boards this demands ever greater vigilance in relation to understanding and navigating those expectations.

The highest concern at a board level is how to fulfil the fundamental legal ‘duty of care and diligence’ that rests on school board members. In the pre-Covid 19 world (how gloriously benign that world seems now bathed in the soft yellow light of hindsight!), this duty always required board members to apply rigour in their decision-making and vigilance in their conduct. It demanded that board members pay attention to a range of very ordinary matters – fully preparing for, attending and participating in board meetings, being thoroughly informed about the school and ensuring that decisions taken by the board were based on sound, relevant and complete information.

These challenges were great enough for part-time volunteer school boards in a pre-Covid 19 world, but are only more difficult in the present environment. In the present Covid 19 environment now confronting school boards, and the future that will follow it, this means:

(a) Deciding, consciously, on credible and reliable sources of information

In the earliest weeks of the Covid 19 crisis, school boards struggled with decisions about whether to ‘lockdown’ in response to parent concerns or whether to faithfully follow the directions of the Federal Chief Medical Officer, the relevant equivalent in their State or Territory, or some other ‘authority’. Typically, board members were on a wide attitudinal spectrum from ‘we must close now’ to ‘we must not do anything other than what the authorities tell us’ depending on their own personal risk appetite and personally preferred sources of information.

It is to be expected many more difficult decisions confront school boards, including once the world returns to a less ‘socially distant’ reality: Standing down key staff; Re-employing key staff; When to reopen the school in ‘traditional’ face-to-face mode; What the ‘new normal’ traditional face-to-face mode looks like; the list goes on.

Throughout this crisis it is essential that boards consciously identify and make explicit (including in their meeting minutes), the basis for each and every decision taken. Unfounded and unreliable sources of information abound in this environment. When your board asks itself which sources of information should be accepted, apply the ‘Look the Judge in the Eye’ test. Imagine you are in a court of law. Look the judge in the eye as you tell him/her which sources of information you relied upon. Do you feel more comfortable if the answer is the State or Federal health and/or medical authorities in the school’s region or a popular social commentator in the popular press or social media ether. The answer is obvious.

(b) Clarifying the rationale for every decision

Even adopting the recommendations of recognised sources of authority may on occasion conflict directly with the views of a large minority, or in some cases even a small majority, of the school community. We saw this firsthand as public health authorities exhorted – even directed – schools to stay open and many families were simultaneously baying for the closure of schools.

It is critical that boards spend sufficient time deliberating on the rationale for their decisions, considering the many ramifications of those decisions from every angle, irrespective of the recommendations of the adopted credible sources. Whether the board has the courts of law on side when it comes to the legality of their decisions, is cold comfort if families abandon the school now – or next year – for lack of confidence in the school’s decisions.

As an example, irrespective of whether families chose early to withdraw their children from the classroom or only once schools were directed to close, fee-paying parents quickly started to expect discounts. Put into the position of having to participate in managing their children’s education and not receiving the same usual high level of school offerings for their children, parents are not cognisant – and perhaps are unmoved – by the bulk of overhead costs that have not abated for the school. It is of little comfort that the decision taken by the board was reasonable if, next year, the school is unable to open its doors for loss of enrolments.

The rationale for each decision must be fully thought out, clear and well communicated to the school community. Remember, by contrast with the board, the school community are NOT required to accept only “credible” or “reliable” sources of information. If the school does not clearly and carefully communicate the rationale for its decisions, there will be plenty of others – no matter how lacking in credibility or reliability – who are prepared to step in and fill the void with damaging misinformation.

(c) Balancing the duty of care to students and staff

When the board considers the impacts of its decisions on all stakeholder groups, the impacts of its decisions on staff cannot be over-estimated.

In such a difficult environment, most decisions will require the balancing of a series of trade-offs. Requiring staff to teach in the physical classroom attracts the risk (or at the very least the perceived risk) of physical harm to the teacher. A decision not to do so results in some types of staff who may no longer be required and so their jobs are placed at risk. The trade-off here is which is the more critical risk to accept.

Likewise, pursuing funding options for stood-down staff may present multiple alternative but equally distasteful outcomes. Strategies designed to enable the school to access JobKeeper or other funding without reflecting the reality of the workload situation could present conflicting pressures between the fees that parents are, or aren’t, prepared to continue to pay, the workload of staff in the changed environment and the entitlement of the school to access those funds.

Sometimes the best the board is faced with is making ‘the least worst’ decision.

Again, the guiding light should be as always – follow credible sources, consider all identifiable impacts, including what can be tolerated within the school’s balance sheet, and explain the rationale to the school community as far as possible.

(d) Keeping disciplined: Maintaining basic governance health and hygiene

Boards have very quickly adapted to the holding of video-based meetings on little or no notice. They have adapted quickly and, in some instances, even found efficiencies and achieved greater effectiveness in this new mode of meeting. It is to be hoped that some of the lessons learnt in a governance sense will be retained after the current extreme situation eases.

At the same time, it is critical that boards do not focus on the immediate crisis to the exclusion of the ongoing and recurring ‘business-as-usual’ matters on the board’s annual planner. Some have rightly identified that, as difficult as it is to focus on anything other than the crisis at hand, now is the very time to spend a little more board time on such things as:

  • the longer term resilience planning for the school, especially if we are to return to anything like a sustainable future as a school;
  • the board’s effectiveness – there is no greater test of a board’s culture and effectiveness than how it responds to a crisis;
  • the school’s compliance framework and culture – many organisations are concerned with some of the increased risks, like the risk of fraud, that come with the stresses of such a crisis and now is the time to spend time considering those risks.

Further, from an evidentiary point of view, it is critical that video-based meetings do not lead to a slackening of processes around the recording of the meeting’s minutes and the documentation of the reasons for decisions, the rationale and the sources of information relied upon. From a legal perspective, there is little point focusing on those matters outlined earlier in this article, if the board does not then carefully document them.

In a very practical sense, it may also be timely to consider urgently whether meetings held by video, and decisions taken in such a manner, are even permitted by the school’s Constitution. Some older Constitutions did not permit or at least contemplate the holding of meetings by technological means.

Finally, as we are now in AGM season for many schools operated as companies, it is important to act on proper legal advice about ensuring that the AGM is held – or deferred – in conformance with the pronouncements of the regulatory authorities.

There are a great many things of concern for a board to consider in this environment. But consider too that one of the great positives of this environment is the strengthening of the board’s social muscle that should result from it.

Boards are always faced with the challenge of building ‘social muscle’ – meaning the collective strength that they as a group can exert – because of the voluntary, part-time, periodic way they work. This is in direct contrast with the school’s senior leadership team that meets and works together constantly and so usually builds its own strong internal culture and ‘social muscle’.

The current ‘socially distant’ environment is, perhaps ironically, bringing boards closer together than ever. They are generally meeting more frequently (albeit from further apart) and, united by the shared challenge (and sometimes frustration) of video-based meeting platforms, share much more of their own personal perspectives and lives (as they beam in from home).

The boards that come out of this difficult time with stronger and more developed social muscle as a group are, doubtless, the boards that will also be governing schools that will in turn be stronger and more resilient for the Covid 19 storm they have withstood.

Might we use these unprecedented times to ‘flatten the curve’ and build governance-herd immunity for schools?

Elizabeth Jameson

April 2020

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