January 2006, Volume 1

Vol 1 Index

PDF E-Book pps 24-30

Article Title
Regulating the Unregulated TESOL Industry

PDF Version

Author
Tom Davidson

Bio:
The author has worked for over a decade in the Legal and EFL profession. He is now an attorney for the Time Taylor Corporation, and advisor to various government EFL programs. davidson@time-taylor.com

Abstract.
TESOL teaching is rapidly advancing on many fronts. University courses offering Ma TESOL programs are proliferating. The greater majority are well presented - a few are run with less than qualified staff. TESOL certificate courses appear daily and are operated by anyone who can buy or build a web site. Job offerings increase daily across the web. The dangers fraught with accepting a job over the Internet are many for, despite general beliefs that laws exist; there is no effective law to compel truth in TESOL job advertising. The TESOL industry is one of the fastest growing industries in the world - yet it operates in a legal vacuum and thus requires the industry to self regulate. It thus also seems incumbent upon TESOL course providers to add a TESOL Law component to their programs to help fill he legal void.

Key words: TESOL. Ma TESOL courses. TESOL Certificates. TESOL legal courses.

Introduction
It is estimated there are up to 2 million people involved directly or indirectly in the TESOL field across the globe, (Robertson, 2005). This figure includes non-native speakers of English who work in their native country teaching English. This category also includes university teachers and academics, plus affiliated workers including publishers and recruiters. Over the next decade it is anticipated this number could double as the demand for EIL, English as an International Language takes stronger hold. As China and other third world or less developed countries advance, he need for English in the Business sphere will increase, causing a surge in the demand for both teachers of English and materials.

But as English as a second or foreign language increases its cancer like domination across the globe, it will encounter greater propensities for legal problems. These legal problems, which will cover such areas as industrial law, contract law, Internet law, can be divided into two main categories which can be further subdivided.

Category One: Legal Problems - ESL countries

Category Two: Problems - EFL countries

Somehow this profession has slipped under the radar screen of regulation or self-regulation. This oversight has been and will be disastrous to the advancement of this field of social science. Whilst it can be argued that regulation (laws in place) are adequate to govern this growing field, I submit that only category one countries can be included in this proposition. Category two countries, those that make up the bulk of the second language learning, do not have satisfactory laws or legal systems in situ to respond to growing demands of this social science.

The Case for Self Regulation vs. the Status quo.

The Case for Regulation:
Regulation in terms of this article include (a) a code of ethics that is supported by all those in the profession (b) accepted courses of legal study for the TESOL industry (c) establishment of a Board who sets the legal standards for the industry.

The first proposition I submit is that the TESOL profession is unique but has yet to be accepted as a serious social science. The back packing image of the profession is still too prevalent and may continue to be that way for at least another decade. According to Nunan, quoted in Robertson, (2005:13)

In most EFL countries such as Japan and Korea, there is the 'native speaker syndrome., i.e. the notion that if you can speak the language you can teach it.

Teachers of English, native speakers, are being invited in their tens of thousands each year to foreign countries to teach English. The dominant suppliers of English teachers are Canada, USA, UK, Australia and New Zealand. Other countries include South Africa, The Philippines, and Hong Kong.
Countries that invite native teachers of English are too numerous to list, but major TESOL programs are run by the governments of Japan, (J.E.T.), 1 Hong Kong (NET), 2 Korea (EPIK) 3 and Taiwan (Government program.)

An examination of the contract from Korea shows the differences between what would be called a transparent contract in western legal systems and a non transparent, vaguely worded document that will lead to problems that can only be settled in favor of the employer. The problems with these programs has been well discussed, see Carless (2004) Ahn, (1998). This also raises the cultural communication conflicts discussed by Dash (2003) (Li, 2004) (Mangubhai, 1997) and (Robertson, 2005a), though this adjunct needs separate consideration.

Japan is unique in that it allows foreigners to join unions. See for example the Berlitz Union 4 and the General Union 5. This in itself is a quasi form of self-regulation - for at least in the case of the employer employee, there is recourse for help for wronged employees.

It is submitted that any globalized industry which operates without any form of regulation, (self regulation or written law) as in the TESOL profession, is doomed to be viewed by non-English speaking countries as a backpacking profession which is an ideal situation for the non-native speaking country because it prevents any serious attempt at establishing a recognized profession, the consequence of which would be the raising of meagre salaries and better legal treatment and or working conditions of foreigners who teach English. Davidson (2002) noted the importance of having a field of recognized social science experts, yet 4 years later, no steps have been taken to implement serious change.

Legal problems, ranging from the trivial to the serious abound in the TESOL profession when teachers embark upon a foreign sojourn. These problems are well documented on the law website (efl-law.org.)6 One well-documented example from Korea suggests that about 30 percent of foreigners suffer serious legal problems during their teaching sojourn. (Robertson, 2005) It is submitted that any profession that fails to self regulate in the face of overwhelming evidence is failing to support that profession which claims to be advancing second language acquisition teaching and learning.

The Status Quo.
Arguments exist as to leaving the status quo in place. These include the views that each country has laws in place to protect the wronged party. These laws include remedies in Contract law, remedies in Industrial matters, and civil remedies in Trade Practices areas. Most countries have a form of Legal Aid available to foreign teachers, with certain provisos that one must earn less than a threshold amount to qualify. An example of legal system at work can be seen in the well-publicized Japanese case of the university teacher, Gallagher, whose contract was not renewed. (Gallagher v Asahikawa University.) The Court decision to support the university was both well accepted by Japanese universities, and resoundingly condemned by observers.

"The Gallagher Case ruling hereby sets a dangerous legal precedent for all expatriate language teachers; it assumes that job qualification also requires the abstract concept of "foreignness." (Aldwincle, 2000)

The judge was of the opinion that a native English speaker needed a "…recent physical connection…" to his country to qualify as a native speaker. In other words, by implication, if you work in a foreign country for a period of years, you lose the necessary qualities of being a native speaker. It also effectively destroyed the slim chance of any foreigner seeking tenure on the grounds of longevity on one job. This decision is a major set back for the acceptance of TESOL as a recognized social science. Tomei (2001), whilst analyzing the decision and concluding there were three main points for Gallagher to prove her case, misses an underlying legal reasoning - namely, the Flood Gates principle. It was felt by many observers this principle was more at work than any overt cause of action.

At least one other country, Korea, has been influenced by this opinion. Government universities have introduced a University rule that foreigners may only wok for a maximum of three years at that university. This, it seems from documents obtained, 7 to have more to do to with stopping a court case that attempts to seek tenure on the grounds of long term service.

But the Gallagher case nevertheless showed that foreigners have access to the legal system and thus is an argument against any form of self-regulation. This case though, may be distinguished on the facts that it was situated in Japan where foreigners may join unions, and the union assisted in the conduct of the case. The Korean Immigration Act, on the other hand, forbids foreigners from carrying out activities such as starting or joining a union. Currently this seems to be being eased, or overlooked, as at least one foreigner has joined the Korean Teachers Union, and an unofficial union has been established.
Another case, raised by a U.S. citizen teaching in Korea, originally based on unfair dismissal, and still before the Constitutional court in Korea, is raising secondary arguments of racial discrimination and conflicting Immigration and Education laws. However, unlike Japan where unions will fund worthwhile cases, this case is being self financed and the plaintiff has no legal representation.

Areas of TESOL Beyond the Pale of Law.
One may argue that the TESOL profession is heavily Internet based due to its globalized nature. Thousands of sites exist which offer information and advice on every aspect of second language teaching. Internet law is an area of law that is still developing, and whereas the Internet is global, the laws that are being established are country specific. Although no self regulatory TESOL authority could control Worldwide Web content, it is arguable that Internet content self regulation could be included in any Code of ethics (see sample code of ethics) chat rooms and Web forums are becoming popular places for teachers across the globe to share opinions and thoughts. Two leading forums are eslcafe.com 8 and efl-law.org/forums - both of course, subject to the laws of defamation.

Hoffman, (2005) considers various issues of Internet law, including the law of defamation. In the U.S. case Barrett vs. Rosenthal, Hoffman notes,

"In sum, clearly all posters of defamatory material, as "information content providers," can be liable and 47 USC Section 230 does not change any of that liability. What the Court stated was that those who repost materials written or created by others can be held liable for defamation if they know or have reason to know of the defamatory nature of the materials. These "distributors" are not shielded from liability under the provisions of 47 USC Section 230. Further, once an interactive computer service, which includes but is not limited to those who host chat rooms, lists, newsgroups and host sites among other possible interactive computer services, learns of an allegedly defamatory posting, it too can be subject to liability and is not shielded from liability under this section unless they act "reasonably" with regard to the same."

Whilst this case shows the U.S. has active legal intervention which directly affects those in the TESOL profession, most web sites are not based in this legal jurisdiction. Thus the ruling has limited applicability to the globalized profession.

Over the next decade, as the TESOL profession grows, the following areas of general law will become more prevalent.

(a) defamation
(b) false & misleading advertisements
(c) unfair trade practices
(d) teacher liability
(e) general insurance law
(f) health insurance law
(g) contract law
(h) TESOL Certificate issues (mills)
(i) Publishing standards
(j) IP theft

It may not be long before Ma TESOL courses add a law component to their courses. One could argue that failure to do so already is tantamount to negligence, for universities are training teachers to enter a profession that requires not only an academic understanding of SLA, but is a failing in their duty to prepare them legally for the rigors of living and working in an alien legal jurisdiction. Another developing area of TESOL is the developing area of business English training. This is an area where mostly unqualified English language instructors hold themselves out as experts in business English. Clearly for anyone to teach business English dictates they hold an appropriate degree that has included a business component - these can range from business degrees to law courses that are heavily accentuated on business laws.

Future Law Scenarios
One area I have not touched upon, but also requiring consideration, is the area of educational malpractice. Whilst some commentators see this a legal impossibility in so far as suing, (Standler, 2000) the alternative legal view is that TESOL is a unique profession where non-qualified teachers are allowed to each, thus opening the possibility of successful law suits.

Conclusion.
It is submitted that the case for self-regulation in category two counties is imperative. The legal problems associated with these countries are overwhelming. Formation of a group of industry leaders (e.g. universities and publishers) could be a starting point. Robertson (2004) argued that a TEFL court is necessary.

It is time to introduce a World TEFL Court. It is time that theories are put to task. Theories that lead to changes in the TEFL profession that impact across the globe need to be argued before the World TEFL court. An open court where the jury is a global profession.

Other alternatives exist. Dickey (2005) notes the need for a Code of Ethics. It may be that a Code of Ethics could be the basis for self-regulation. This is something that will take some years to establish, but I submit now is a good time to begin - for this profession is going to grow beyond anyone's expectations in the next decade,

Notes

1. JET. Japanese government funded program for foreign language teachers in Japan
http://www.mofa.go.jp/j_info/visit/jet/
2. NET Hong Kong
http://www.emb.gov.hk/index.aspx?nodeID=262&langno=1
3. EPIK. English Program in Korea. Korean government funded foreign language
teacher program
http://epik.knue.ac.kr/
4. Berlitz Union. http://berlitz.generalunion.org/global.htm
5. General Union. http://www.generalunion.org/
6. www.efl-law.org - a legal site and forum helping TESOL teachers across the globe
with free legal information
7. Seoul National University. Rules relating to the hiring and tenure of foreigners.
(translated from Korean to English)
8. www.eslcafe.com - Dave's ESL Café.

References

Ahn. Soo Wong, Park Mae Ran, & Ono S. 1996. A comparative study of the EPIK and JET program. In English Teaching. Vol. 53 No 3. pp.241-267.

Aldwincle, A,. (2000). The Gallagher court case update Feb 2, 2000. Retrieved
September 2005 from http://www.debito.org/gallagherupdate2200.html

Carless, D. (2004). KOTESOL International Conference presentation. May 2004, Pusan, S.Korea

Dash, P. (2003). Culture as an Individual Difference in the SLA Process: Significant, separate and appropriate? Retrieved October 19th, 2005 Asian EFL Journal (5)2
http://www.asian-efl-journal.com/june2003subpd.php

Davidson, T. (2002). The business of words. Whose domain? Retrieved October
31st 2005 Asian EFL Journal (4)3
http://www.asian-efl-journal.com/september_02_td.php

Debito, A. (2005). Employers Become More Sophisticated to Finding Loopholes To Undermine Job Security. Retrieved October 28th, from
http://www.debito.org/acadapartupdateOct05.html

Dickey, R. (2005). Assessing Ethical Standards for EFL Teaching Professionalism. www. (this edition) Tesol-Law-Journal, Vol,(1)
Retrieved December 26th 2005, from Http://www.tesol-law.com

Hoffman, I. (2005). Defamation on the Internet. Retrieved November 8th 2005 from
http://www.ivanhoffman.com/defamationinternet.html

Li, Ming Sheng. (2004). Culture and Classroom Communication: A Case Study of Asian Students in New Zealand Language Schools. Retrieved October 2004 from The Asian EFL Journal (6)1.
http://www.asian-efl-journal.com/04_ml.php

Mangubhai F. (1997). "Primary socialization and cultural factors in second language learning: Wending our way through unchartered territory". Australian Review of Applied Linguistics, Series S, 23-54

Robertson, P. (2005a) Teaching Overseas. The Best Legal Advice. Time Taylor, BVI.

Robertson, P. (2005b). In the Case of L2 Learning -v- Cultural Awareness. Retrieved November 1st 2005, Asian EFL Journal (7)2
http://www.asian-efl-journal.com/June_05_pr.php

Standler, R. B. (2005). Educational Malpractice in the U.S. Retrieved October 19, 2005 from
http://www.rbs2.com/edumal.htm

Tomei, J. (2001) Key Points in the Gwen Gallagher Decision. Retrieved November 22nd from
http://www.issho.org/modules.php?op=modload&name=News&file=article&sid= 220&mode=thread&order=0&thold=0