A recent case brought by a disgruntled parent against a private school highlights the need for schools to be cautious about the information contained in their marketing material.
A Melbourne mother recently accused Brighton Grammar School of breaching the Trade Practices Act 1974 (Cth) by not teaching her son to read properly. She claimed that the school’s marketing material promised to address her son’s reading problems but failed to do so.
News reports of the case set out the following history: the son struggled with reading and writing from Prepatory grade when he was enrolled at government run Albert Park Primary School. By Grade 1 he was one year behind his classmates in reading and was diagnosed by specialists with a range of learning difficulties. At the beginning of Grade 4 the mother moved him to Brighton Grammar where he stayed for three years. The mother discovered by Grade 5 that her son’s reading had not improved and that he was not reading words but memorising them. She hired a tutor and the problems with the child’s phonetics were addressed within 6 weeks. The mother took legal action against Brighton Grammar on the basis that the school failed to deliver on its promise. The case was settled on 15 August 2006 on confidential terms.
This case has the potential to encourage more litigation against schools. Parents might have recourse to the courts if they are dissatisfied with their children’s performance and the child’s school failed to meet their expectations. Such a legal precedent could apply not only to academic performance but also to music, sport and other forms of tuition.
Schools traditionally have not been seen as businesses. However, the fact that independent schools can charge up to $20,000 each year makes them commercial enterprises. Independent schools must observe the Trade Practices Act 1974 (Cth) (“TPA”) and equivalent State legislation. Section 52 of the TPA stipulates that a corporation shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive. S52A of the TPA provides that where a corporation makes a representation with respect to a future matter and it does not have reasonable grounds for doing so, the representation shall be taken as misleading. The obligation is on the school to show that it had reasonable grounds for making the representation. As claimed in the case of Brighton Grammar, an independent school’s promotional material could breach the Trade Practices Act if its content misleads or deceives.
Literature produced by independent schools might contain promises of future performance or predictions. The non-fulfilment of a promise when the time for performance arrives is misleading by reason of the TPA, unless the person making the promise can demonstrate that there were reasonable grounds for making the promise.
Promotional material may contain representations that families of prospective and current students rely on to influence their decision to attend or remain enrolled at a school. Examples include making promises about the academic results students will achieve, guaranteeing improvement of a particular skill such as essay writing or making assurances of advancing musical or sporting abilities. Intention is not relevant to whether something is misleading. Representations, if without reasonable foundation may give rise to claims if they prove to be incorrect.
Misleading conduct can be verbal as well as written. Accordingly, staff in schools should be educated on how to communicate with parents and how to represent the school’s abilities. Staff and schools should:
- be aware that statements made by staff are attributed to the school;
- not make any misleading representations about the results the school services may provide;
- be informed that remaining silent can amount to misleading conduct; and
- not make guarantees about the academic or other results parents can expect from the school.
Schools are entitled to publish material about the academic and extra curricula activities they offer. The Brighton Grammar case serves as a warning however for independent schools to review their promotional material to avoid being sued by disgruntled parents. Regardless of the competition for enrolments, schools should be encouraged not to make individual promises or unachievable claims about the educational excellence their students will reach once enrolled. This way schools can be protect themselves by selling an opportunity for their students to achieve high results, not a guarantee that it will occur.
For further information, please contact Leneen Forde on +61 3 9608 2243 or l.forde@cornwalls.com.au
