Educational Malpractice in the USA

Copyright 2000 by Ronald B. Standler

Table of Contents

Introduction

overview of cases

1. Child with normal intelligence who was misclassified as retarded (i.e., denied the opportunity to receive an education).
   Hoffman v. Board of Education, 410 N.Y.S. 99 (1978), rev'd, 400 N.E.2d 317 (N.Y. 1979)(normal child [i.e., IQ between 90 and 100] with speech defect misclassified and spent 11 years in classes with retarded children [i.e., IQ less than 75]);
   Tubell v. Dade County Public Schools, 419 So.2d 388 (1982);
   Doe v. Board of Education of Montgomery County, 453 A.2d 814 (Md.App. 1982)(pupil with dyslexia put in class for retarded children for seven years);
   Torres v. Little Flower Children's Services, 474 N.E.2d 223 (N.Y. 1984)(Spanish-speaking ward of the state with reading disability misclassified as borderline retarded, sent to regular public schools for eight years, where he never learned to read English.);
   Agostine v. School District of Philadelphia, 527 A.2d 193 (Pa.Cmwlth. 1987)(Pupil with learning disability placed in classes for mentally retarded pupils.).
   
   
2. Pupils who were graduated from high school despite being functionally illiterate and unable to earn a living. These cases are sometimes labeled "failure to teach", a label that is misleading, as explained below.
   Peter W. v. San Francisco Sch. Dist., 131 Cal.Rptr. 854 (1976);
   Donohue v. Copiague Union Sch. Dist., 408 N.Y.S.2d 584 (1977), aff'd, 407 N.Y.S.2d 874 (1978), aff'd, 391 N.E.2d 1352 (N.Y. 1979);
   Hunter v. Board of Education, 439 A.2d 582 (Md.App. 1982);
   Denson v. Steubenville Board of Education, 1986 WL 8239 (Ohio App. 1986).
   
   
3. Pupil with normal intelligence and a learning disability (e.g., dyslexia) received no special instruction, therefore was denied an effective and appropriate education.
   D.S.W. v. Fairbanks, 628 P.2d 554 (Alaska, 1981);
   and many subsequent cases. Because I specialize in education law for neither handicapped nor retarded pupils, I am not familiar with this extensive area of law.
   
   
4. Student who attended college on an athletic scholarship for four years, but acquired no useful intellectual skills.
   Jackson v. Drake University, 778 F.Supp. 1490 (S.D.Iowa 1991)(Basketball player recruited by University.);
   Ross v. Creighton University, 740 F.Supp. 1319 (N.D.Ill. 1990), aff'd, 957 F.2d 410 (6thCir. 1992)(Basketball player with standardized test scores in the bottom 1/5 of high school students was given an athletic scholarship. During four years at University, "he maintained a D average and acquired 96 of the 128 credits needed to graduate. However, many of these credits were in courses such as Marksmanship and Theory of Basketball, and did not count towards a university degree.").
   Incidentally, both Jackson and Ross alleged that the coaching staff offered to prepare term papers for them (i.e., the coaches aided and abetted plagiarism), but the courts ignored these serious allegations.
   
   
5. Physician (or other health care provider) who allegedly committed medical malpractice blames university for inadequate instruction.
   County of Riverside v. Loma Linda Univ., 173 Cal.Rptr. 371 (1981)(County hospital sought reimbursement of half of a medical malpractice settlement from the medical school who was supervising the people who were negligent.);
   Swidryk v. St. Michael's Medical Center, 493 A.2d 641 (N.J.Super. 1985)(First-year resident who was sued for medical malpractice sues residency program for educational malpractice.).
   
   
6. Victim harmed by negligence of D₁, sues the school or college that educated D₁. This is a third-party educational malpractice claim, in which the victim was allegedly a third-party beneficiary of the education of D₁.
   Salter v. Natchitoches Chiropractic Clinic, 274 So.2d 490 (La.App. 1973)(Patient, who was injured by chiropractor in Louisiana, sued five defendants, including the Palmer College in Iowa. The suit against Palmer College was dismissed for lack of personal jurisdiction.);
   Moore v. Vanderloo, 386 N.W.2d 108 (Iowa 1986)(Moore was injured by the alleged negligence of a chiropractor, so Moore also sued the Palmer College, from which the chiropractor had graduated four years before Moore's injury.);
   Moss Rehab v. White, 692 A.2d 902 (Del. 1997)(White was killed in an automobile collision. White's estate sued the driving school that trained the driver of the automobile that caused the fatal collision.).
   
   
7. Student alleges that school or college failed to stop cheating by other students.
   Gally v. Columbia University, 22 F.Supp.2d 199 (S.D.N.Y. 1998).
   
   
8. Private vocational school allegedly failed to adequately educate – or train – students, who were then unable to find employment in their new specialty.
   Blane v. Alabama Commercial College, 585 So.2d 866 (Ala. 1991);
   Cavaliere v. Duff's Business Institute, 605 A.2d 397 (Pa.Super. 1992);
   Matulin v. Academy of Court Reporting, 1992 WL 74210 (Ohio App. 1992);
   Tolman v. Cencor Career Colleges, 851 P.2d 203 (Colo.App. 1992), aff'd, 868 P.2d 396 (Colo. 1994);
   Alsides v. Brown Institute, 592 N.W.2d 468 (Minn.App. 1999).
   
   
9. A private school sued a parent for unpaid tuition, the parent counterclaimed for breach of contract, fraudulent misrepresentation, educational malpractice, ....
   Village Community School v. Adler, 478 N.Y.S.2d 546 (1984);
   Wrightwood School v. Fritz, 1999 WL 240727 (Conn.Super. 1999).
   (The same thing happens when attorneys sue their clients to collect unpaid legal fees: the former client counterclaims for legal malpractice.)

1. B.M. v. State, 649 P.2d 425 (Mont. 1982)(plaintiff used specific feature in Montana Constitution and statutes to make a valid claim for educational malpractice).
   
   
2. Snow v. State, 469 N.Y.S.2d 959 (1983), aff'd without opinion, 475 N.E.2d 454 (N.Y. 1984)(plaintiff alleged medical malpractice, not educational malpractice).
   
   
3. And there are cases involving fraud or breach of contract, not educational malpractice, in which students have won.

Discussion of Three Early Cases

  Plaintiff's allegations of negligence on the part of Palmer College of Chiropractic are as follows:
  1) In teaching methods and techniques of cervical and spinal manipulations and adjustments which are contrary to accepted medical standards.
  2) In teaching methods and procedures of healing or treating patients which fail to conform to the minimum standards required by the local, state, and national medical associations.
  3) In failing to properly instruct chiropractors as to the potential hazards and dangers of improper cervical or spinal manipulations or adjustments.
  4) In encouraging the practice of chiropractics within this Parish and State, contrary to the constituted statutes and laws of this state. In encouraging the conduct of practices which may be harmful, dangerous and injurious to public health and welfare.

274 So.2d at 491.

After briefly reviewing civil procedure of personal jurisdiction, the court stated:

  Plaintiff makes a persuasive argument that although one or two of the activities of Palmer College in Louisiana may be insufficient for personal jurisdiction, when all are combined and considered together they show the defendant has engaged in a 'persistent course of conduct' in this state in connection with its business which is that of operating a college of chiropractic. Nevertheless, we conclude that it would offend traditional notions of justice and fair play and the respective conveniences and inconveniences of the parties, if a college or other institution of education could be sued in any state where its students have caused injury while using, or attempting to use, the knowledge, methods and procedures taught by the college. To hold otherwise would mean that in all kinds of actions based on malpractice in various fields, such as medicine, law, engineering, architecture, dentistry, etc., the colleges attended by the respective alumni could be sued in the state where the injury occurred. We do not think such a result was contemplated by the federal cases cited above. It could result in a serious inconvenience and expense to our institutions of higher education if they had to defend these suits in states thousands of miles from their domiciles.

274 So.2d at 493-494.

This Louisiana appellate court held that the tort of educational malpractice would be burdensome to colleges, therefore it should not be allowed. The court ignored the obvious comparison that manufacturers of products are routinely hauled into court in all fifty states to defend products liability cases. There may be good reasons for not recognizing educational malpractice cases against colleges, but protecting colleges from potential inconvenience is not one of them. Many colleges, including the Palmer College, deliberately attract students from all fifty states, so they should be subject to jurisdiction in all fifty states.

This Louisiana case is generally ignored in law review articles on educational malpractice, probably because the reported opinion does not mention the specific words "educational malpractice" and also because the case was decided on procedural grounds, rather than on the merits.

The following case is often, but incorrectly, said to be the first reported educational malpractice case in the USA.

    Unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught, and any layman might--and commonly does--have his own emphatic views on the subject. The 'injury' claimed here is plaintiff's inability to read and write. Substantial professional authority attests that the achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified. [footnote deleted]

    We find in this situation no conceivable 'workability of a rule of care' against which defendants' alleged conduct may be measured [citation deleted], no reasonable 'degree of certainty that . . . plaintiff suffered injury' within the meaning of the law of negligence (... referring to Rest.2d, Torts, § 281), and no such perceptible 'connection between the defendant's conduct and the injury suffered,' as alleged, which would establish a causal link between them within the same meaning. [citation deleted]

    These recognized policy considerations alone negate an actionable 'duty of care' in persons and agencies who administer the academic phases of the public educational process. Others, which are even more important in practical terms, command the same result. Few of our institutions, if any, have aroused the controversies, or incurred the public dissatisfaction, which have attended the operation of the public schools during the last few decades. Rightly or wrongly, but widely, they are charged with outright failure in the achievement of their educational objectives; according to some critics, they bear responsibility for many of the social and moral problems of our society at large. Their public plight in these respects is attested in the daily media, in bitter governing board elections, in wholesale rejections of school bond proposals, and in survey upon survey. To hold them to an actionable 'duty of care,' in the discharge of their academic functions, would expose them to the tort claims--real or imagined--of disaffected students and parents in countless numbers. They are already beset by social and financial problems which have gone to major litigation, but for which no permanent solution has yet appeared. [citation deleted] The ultimate consequences, in terms of public time and money, would burden them--and society--beyond calculation.

Peter W. v. San Francisco Sch. Dist., 131 Cal.Rptr. 854, 860-861 (1976).
Quoted with approval in Donohue v. Copiague Union Sch. Dist., 407 N.Y.S.2d 874, 878-879 (1978)(calling the Peter W. opinion "comprehensive and well-reasoned".)

And second, the court did not want to inflict more problems on the beleaguered schools, particularly with the "limitations imposed upon them by their publicly-supported budgets."

Id. at 861.

The court at 862 tersely disposed of plaintiff's allegations that the school made a fraudulent misrepresentation to the parents about their child's performance.

    Finally, the plaintiff's complaint must be dismissed because of the practical impossibility of demonstrating that a breach of the alleged common law and statutory duties was the proximate cause of his failure to learn. The failure to learn does not bespeak a failure to teach. It is not alleged that the plaintiff's classmates, who were exposed to the identical classroom instruction, also failed to learn. From this it may reasonably be inferred that the plaintiff's illiteracy resulted from other causes. A school system cannot compel a particular student to study or to be interested in education. Here, the plaintiff is not totally illiterate and his academic record indicates satisfactory achievement in several subjects. In addition to innate intelligence, the extent to which a child learns is influenced by a host of social, emotional, economic and other factors which are not subject to control by a system of public education. In this context, it is virtually impossible to calculate to what extent, if any, the defendant's acts or omissions proximately caused the plaintiff's inability to read at his appropriate grade level.

Donohue v. Copiague Union Sch. Dist., 407 N.Y.S.2d 874, 881 (1978).

Judge Suozzi wrote a dissent to Donohue, which dissent is not law, but gives what I believe is a better description of what the law should be.

    Initially, it must be emphasized that the policy considerations enunciated in Peter W., supra do not mandate a dismissal of the complaint. Whether the failure of the plaintiff to achieve a basic level of literacy was caused by the negligence of the school system, as the plaintiff alleges, or was the product of forces outside the teaching process, is really a question of proof to be resolved at a trial. The fear of a flood of litigation, perhaps much of it without merit, and the possible difficulty in framing an appropriate measure of damages, are similarly unpersuasive grounds for dismissing the instant cause of action. Fear of excessive litigation caused by the creation of a new zone of liability was effectively refuted by the abolition of sovereign immunity many years ago, and numerous environmental actions fill our courts where damages are difficult to assess. Under the circumstances, there is no reason to differentiate between educational malpractice on the one hand, and other forms of negligence and malpractice litigation which currently congest our courts.

Donohue v. Copiague Union Sch. Dist., 407 N.Y.S.2d at 883 (Suozzi, J., dissenting).

Judge Suozzi, in his dissent, also specifically identified the key issue in the case, which all the other judges ignored.

    Anyone reading the plaintiff's high school transcript would be hard pressed to describe his work as a "satisfactory completion" of a course of study.

    Having established that the plaintiff was failing numerous courses, which fact was known to school authorities, the crucial question to be resolved is whether the school had a duty under these circumstances to do more than merely promote this plaintiff in a perfunctory manner from one year to the next.

Id. at 884 (Suozzi, dissenting).

    In my view, the negligence alleged in the case at bar is not unlike that of a doctor who, although confronted with a patient with a cancerous condition, fails to pursue medically accepted procedures to (1) diagnose the specific condition and (2) treat the condition, and instead allows the patient to suffer the inevitable consequences of the disease. Such medical malpractice would never be tolerated. At the very least, a complaint alleging same would not be dismissed upon motion. In the case at bar, the plaintiff displayed, through his failing grades, a serious condition with respect to his ability to learn. Although mindful of this learning disability, the school authorities made no attempt, as they were required to do, by appropriate and educationally accepted testing procedures, to diagnose the nature and extent of his learning problem and thereafter to take or recommend remedial measures to deal with this problem. Instead, the plaintiff was just pushed through the educational system without any attempt made to help him. Under these circumstances, the cause of action at bar is no different from the analogous cause of action for medical malpractice and, like the latter, is sufficient to withstand a motion to dismiss.

Id. at 884-885 (Suozzi, dissenting).

The New York Court of Appeals recognized honestly that the tort of educational malpractice was similar to torts that courts routinely heard for malpractice of physicians, lawyers, architects, and engineers. 391 N.E.2d at 1353-54. However, the court refused to allow the tort of educational malpractice for "public policy" reasons: control of schools belonged – the court said – in the hands of the executive branch of government, not the judicial branch.

My thoughts on tort of educational malpractice

standard of care for teaching

financial drain on beleaguered schools

floodgates of litigation

... this is a poor reason for denying recovery for any genuine, serious mental injury. It is the business of the law to remedy wrongs that deserve it, even at the expense of a "flood of litigation," and it is a pitiful confession of incompetence on the part of any court of justice to deny relief on such grounds.

Prosser and Keeton on Torts, §12, p. 56 of Hornbook, (5th ed. 1984).

cited with approval in Doe v. Board of Education of Montgomery County, 453 A.2d 814, 823 (Md.App. 1982)(Eldridge, J., dissenting).

failure to teach ?

bandwagon

• Hunter v. Board of Education, 439 A.2d 582, 583-84 (Md.App. 1982)(citing five cases).
• Paladino v. Adelphi Univ., 454 N.Y.S.2d 868, 870 (1982)("The courts have uniformly refused, based on public policy considerations, to enter the classroom to determine claims based upon educational malpractice.")(citing seven cases).
• Swidryk v. St. Michael's Medical Center, 493 A.2d 641, 642, n.1 (N.J.Super. 1985)(citing nine cases).
• Moore v. Vanderloo, 386 N.W.2d 108, 113 (Iowa 1986)(citing thirteen cases).
• Ross v. Creighton University, 957 F.2d 410, 414, n.2 (6thCir. 1992)(citing fourteen cases in eleven states).
• Moss Rehab v. White, 692 A.2d 902, 906, n.7 (Del. 1997)(citing fifteen cases).
• Doe v. Yale University, 1997 WL 766845, *1 (Conn.Super. 1997)(citing twelve cases).

scholarly articles

1. John Elson, A Common Law Remedy for the Educational Harms Caused by Incompetent or Careless Teaching, 73 Northwestern Law Review 641 (1978).
   
   
2. Robert H. Jerry, II, Recovery in Tort for Educational Malpractice: Problems in Theory and Practice, 29 Univ. Kansas Law Review, 195 (1981).
   
   
3. Terrence P. Collingsworth, Applying Negligence Doctrine to the Teaching Profession, 11 J. Law & Education 479 (1982).
   
   
4. Gershon M. Ratner, A New Legal Duty for Urban Public Schools: Effective Education in Basic Skills, 63 Texas Law Review 777 (1985).
   
   
5. John G. Culhane, Reinvigorating Educational Malpractice Claims: A Representational Focus, 67 Washington Law Review 349 (1992).(Article emphasizes the justified reliance on representations made by educators.)

physical injury more serious than education ?

My Suggestions

Only "failure to teach" ?

duty of parents

1. The doctrine of avoidable consequences, sometimes called the duty to mitigate damages. Simply stated, the plaintiff will not be awarded compensation for damages that the plaintiff could have avoided by prudent conduct.
   
   
2. The concept of "willful blindness": the criminal defendant who should have known, and could have asked, but deliberately chose not to ask. The law regards "wilful blindness" as equivalent to knowledge. U.S. v. Jewell, 532 F.2d 697, 700-701 (9th Cir. 1976), cert. denied, 426 U.S. 951 (1976). Cited with approval in U.S. v. Lara-Velasquez, 919 F.2d. 946, 950-951 (5th Cir. 1990).

duty of pupils

duty of students

1. when they select a major subject because it is not academically demanding,
2. when they select a class because it is easy, instead of an intellectually challenging class, or
3. when they do not understand the subject matter that is being taught, even if they received a good grade in the class.

Court challenges to educational standards

1. Brady v. Turlington, 372 So.2d 1164 (Fla.App. 1979)("The rule is valid as against due process objections.").
   
   
2. Wells v. Banks, 266 S.E.2d 270 (Ga.App. 1980)(Pupils who graduate from high school (i.e., grade 12) required to demonstrate skills in reading and mathematics that were expected of a pupil entering the ninth grade. Requirement did not violate due process or equal protection rights of pupils.).
   
   
3. Northport v. Ambach, 436 N.Y.S.2d 564 (23 Jan 1981), modified, 458 N.Y.S.2d 680 (9 Dec 1982), aff'd, 457 N.E.2d 775 (1983), cert. den., 465 U.S. 1101 (1984).
   Challenge to New York State tests by parents of a mentally retarded pupil and parents of a pupil with a neurological impairment who could not do arithmetic. The court found no violation of equal protection, no violation of due process, no false stigmatizing statement, and adequate notice of the new requirements.).
   The trial court said: "The state has a legitimate interest in attempting to insure the value of its diplomas and to improve the quality of the education provided. Use of competency testing to effectuate the goals underlying those interests is within the discretion of the Board of Regents and the Commissioner."
   436 N.Y.S.2d at 569, see also 458 N.Y.S.2d at 689
   The trial court also said: "an appropriate education ... does not guarantee that [the pupil] will successfully achieve the academic level necessary for the award of a diploma."
   436 N.Y.S.2d at 569.
   The appellate court said: "The adoption of regulation with respect to graduation requirements, including basic competency examinations, to establish a standard that would make a high school diploma in this State a meaningful credential of the graduate, is clearly within the authority and power of [the Commissioner of Education]."
   458 N.Y.S. at 684.
   
   
4. Rankins v. Louisiana, 637 So.2d 548 (La.App. 1994), writ den., 635 So.2d 250 (1994), cert. den., 513 U.S. 871 (1994).
   The appellate court concluded that the examination "does not violate the equal protection clause because its administration is rationally related to the state's legitimate interest of insuring minimum competency among persons obtaining a state diploma." 637 So.2d at 555.

1. Matter of Olsson v. Board of Higher Education, 402 N.E.2d 1150 (N.Y. 1980).
   
   
2. Mendez v. Reynolds, 681 N.Y.S.2d 494 (1998).

Conclusion