COVID-19 is forcing an evaluation of all aspects of a school and its operations in light of how well it can meet these unprecedented challenges; the school’s constitution must enable rapid and innovative responses to change rather than be an obstacle.
A school’s constitution (and associated rules) is the substantive document that identifies a school and empowers the governing body to, lead, control and operate the school. It can, in certain instances, also define the ownership of the school.
The Western Australian Guide to the Registration Standards and Other Requirements for Non-Government Schools (2020) puts this quite succinctly: Section 160(1)(a) (of the School Education Act 1999 (WA)) requires the governing body to have ownership, management or control of the school. It is the constitution that gives the governing body these powers. But what happens if a school needs to amend its constitution in order to accommodate new ideas or major strategic changes in direction?
According to the Australian Charities and Not for Profits Commission (ACNC) in their Fact Sheet: Changing Your Governing Rules-Incorporated Charities, ‘Following your charity’s rules is important, but they have to work for your charity. Sometimes it will be necessary to change the rules to support new ways of doing things or to improve your governance structures.’
Under normal circumstances, strategic governing bodies should set aside time at least annually to review their constitution not just to accommodate jurisdictional or federal changes or even new directives from the Australian Securities and Investments Commission (ASIC) or the Australian Charities and Not for Profits Commission (ACNC). Schools need to assess their constitution annually, or at the very least biennially, against their strategic risks and their strategic plan to ensure that their constitutional rules support their mission and their definition of who they are, as well as being supportive of ‘new ways of doing things.’ An outdated or poorly constructed constitution could actually stymie growth and positive change.
McKinsey & Company in High performing boards: What’s on their agenda? suggested that high performing school governing bodies do the basics but spend much more time on strategy - evaluating the allocation of resources, adjusting strategy based on changing conditions, assessing whether the strategy stays ahead of the trends, debating strategic alternatives, and engaging with innovation. In Failure of School Boards: One of 12 Key Risks, we wrote that one of the key components of effective school governing body performance was to ensure that sufficient governing body time and resources were directed towards strategic issues.
Failing to review your constitution and, if necessary, update it in line with changes to legal requirements or new strategic directions based on changing conditions, would be considered to be a high strategic risk.
A key outcome of the COVID-19 challenges is forcing an examination of how well the current governing body is able to meet these challenges, and the role that the constitution has in supporting or hampering the best possible response. Does the constitution require all governing body members or most members to be alumni or have children at the school or be a member of a particular community, and does that best meet the needs of the school? Should there be more explicit criteria for some positions on the governing body, such as financial or strategic expertise?
The current extraordinary situation has also highlighted gaps in a school’s constitution and charters which may not have been addressed through the expertise of governing body members, and hence has resulted in blind-spots: are there sub-committees which should be tasked with addressing strategic areas that were currently left untended? Sub-committees could have explicit requirements to regularly review the school’s business continuity plan, as well as review the strategic risks and control measures, then report back to the governing body. Does the constitution provide for the governing body being able to draw on experts from outside the school that could address these issues? Does the constitution allow for experts outside the governing body to be brought in to sit on those sub-committees?
During our current international and national situation regarding the COVID-19 pandemic, it is also time for school governing bodies to review their constitutions to ensure that their school has the applicable rules that allow it to educate children in a digital teaching environment
For example, if there are definitions within the constitution that relate to terms such as “teach” or “educate”, do they need a slight amendment to include online or digital teaching and learning? In addition, some schools may define the school by having a physical address. Although somewhat pedantic, this may not necessarily be totally accurate if the school is now operating in a digital environment.
More specifically, are the governing body meetings still occurring at the minimum frequency as noted within the rules of the constitution? Are the various sub-committees still meeting? Are there allowances within the constitution to accommodate meetings and voting that takes place on-line, or perhaps even by proxy?
If the current situation regarding COVID-19 and flattening the curve means that schools will need to reassess how they care for and teach students, and this will be for a period of time of more than a few weeks, perhaps it is time for governing bodies to review their constitutions to allow for this ‘new ways of doing things’.
Most states and territories provide school constitutional models, such as this one from Tasmania, that can be adopted and adapted by schools. However, many of these are for independent public schools (IPS) only. The various Associations of Independent Schools do the same and some also provide checklists for non-government schools that assist them to meet constitutional registration standards. These documents are usually available on the ‘members only’ section of their websites.
However, it is important to note that not all schools are established under their state or territory Association Incorporation Acts or the federal Corporations Act 2001. Some schools are incorporated under other pieces of legislation such as the Uniting Church in Australia Acts and there are some that have been established under their own Act. The powers and responsibilities of the school governing body in those cases can vary considerably from the norm.
Nonetheless, it is essential for schools to understand that they cannot have a ‘one size, fits all’ approach to their constitution. They cannot simply adopt a standard government model on the presumption that a single Act can determine the content. This is because registration requirements in each state or territory, that are determined through the relevant education act and/or regulations, and the requirements of either ASIC or the ACNC also need to be addressed.
Some of the criteria that schools should have in their constitution include a statement:
Some jurisdictions also require a statement within schools’ constitutions that acknowledges and welcomes the participation of a child’s parents/guardians in the education of their child. Statements such as these will not necessarily be found in standard (non-school) model constitutions.
The ACNC in their Fact Sheet: Changing Your Governing Rules- Incorporated Charities produce a simple list of ‘What to Do’ and ‘What Not to Do’ when dealing with changes to constitutions. This is a brief summary.
What to Do
What Not to Do
Please note that the school may also need to notify some jurisdictional registration bodies of constitutional changes.
Changing constitutional rules can be a simple task if for some minor changes, however, all changes take time. Governing bodies need to be aware that any changes could take between two to three months to determine, vote in and then submit for approval to the relevant body. In addition, schools should always consider seeking professional counsel before changes are put to a vote.
Colin, Biggers and Paisley (Lawyers) in their article Why is good school governance so important? outline the following questions that school governing bodies need to ask in relation to their constitution and the rules of governance.
Schools are working feverishly to ensure that children continue to be educated and that staff continue to teach and care for their students in what for most schools is currently a digital teaching environment. Governing bodies are working to ensure that their schools meet their financial obligations, restructure school fees to assist struggling families and support their principals who are leading this massive paradigm shift in teaching and learning.
With all of this going on, it is possible that governing bodies may focus heavily on just keeping the school solvent and may put strategic planning to the side for now. There is nothing wrong with focusing on the crisis during a time of crisis. But at some point, in order to reassess new risks in the current and future learning climate, strategic planning, and this may include a necessary constitutional review, will need to return to the board table as part of the monthly discussions.
Just as homeowners around the country during this period of social isolation are clearing house or renovating, governing bodies, even if they meet online, should also be doing some of the same.