Educational malpractice is commonly defined as the failure to adequately educate a student. What else can we call it when, according to the National Institute for Literacy, an estimated 23 percent of people in America (almost 50 million people) are functionally illiterate despite attending school for years. The American Council of Life Insurance reports that three quarters of Fortune 500 companies provide some level of remedial training for their workers.
Numerous dysfunctional public schools continue to compel student attendance even when it is clear that the teachers and administrators cannot educate and generations of students are not learning.
So far, plaintiffs have lost almost every case in which they have alleged educational malpractice, and had temporary wins reversed on appeal. Faye Hardy‐Lucas of Hampton University warns that courts have been very reluctant to create a cause of action for educational malpractice, citing that there is no satisfactory standard to measure an educator’s conduct, that permitting such claims would flood the courts with litigation (my emphasis), and that the courts are not equipped to oversee the day‐to‐day operation of educational institutions.
The first widely publicized case claiming educational malpractice was a 1976 suit brought by a high school graduate in San Francisco who could read only at the fifth grade level. The court found there was no duty for the state to provide a minimum level of skill and “thus no cause of action in negligence.” In other words, schools have an obligation to mandate schooling, but not to guarantee that graduates can read their own diplomas.
Former college basketball player Kevin Ross settled out of court with Creighton University in 1992 for $30,000, charging it with educational malpractice, negligent admission, and emotional distress. He earned 96 credits while taking courses such as “Marksmanship,” “Theory of Basketball,” “Theory of Track and Field,” and “Squad Participation.“ After leaving Creighton, Ross went back to school–to elementary school. Ross, who stands 6′ 9”, was learning how to read along with 2nd and 3rd graders at a Marva Collins private elementary school in Chicago.
It turned out that Ross was “schooling disabled,” not learning disabled. In just nine months at the Marva Collins school, Ross’ reading ability jumped several levels. Last seen, he was working as a janitor at the high school he starred at as a basketball player. In addition to suing his university, he should have sued the elementary and secondary schools and teachers who allowed him to slip through to the 12th grade barely able to read his own name.
Some educators basically admit malpractice by allowing inept teachers to remain in classrooms. According to the president of the school board of the District of Columbia, 50 percent of public school teachers in the District are incompetent. She backed off that statement after protests from the Washington Teachers Union, saying instead that half of high school public school teachers are incompetent. The current superintendent of D.C. schools agreed, saying that many of D.C.‘s public school teachers are B- or C- teachers who couldn’t get hired anywhere else. His predecessor called the city’s dismal scores on standardized achievement tests evidence of “educational genocide.”
It should be no surprise that, according to the D.C. State Education Agency, 37 percent of D.C. residents read at or below the 3rd grade level. Despite the blatant failure of D.C. schools, every elected official is opposed to offering alternatives to children outside the public system.
Dr. Ronald Standler, a former professor and now an attorney in Massachusetts, has suggested that torts may be appropriate for particularly outrageous failures of the educational system (e.g., classifying a deaf pupil with normal intelligence as retarded, giving a high school diploma to a pupil who is functionally illiterate). State courts now bar states from being sued for educational malpractice. As Standler points out, other professionals and corporations are held accountable in courts. Educators who say that teachers should be treated like professionals may not ever realize that dream if schools and teachers remain immune from liability for educational malpractice.