A crack in the educational malpractice wall: with performance standards in place, will courts soon recognize an individual's right to competent instruction in the classroom?

As a former school law attorney (Terri) and a former superintendent (Todd), we were constantly concerned about potential liability when a student's constitutional rights may have been violated or when a student was physically injured.

However, if we received word of a potential lawsuit because a graduating high school senior could read only at an elementary-grade level, we knew it was an empty threat. While educators can be held liable for infringing on students' rights and for negligence that causes students physical harm, educators do not have a legal responsibility to educate students. In other words, educators can be sued for providing inadequate supervision, but not for providing inadequate instruction.

In the past, the lack of agreed-upon standards for teaching practice and public policy regarding financial responsibility formed the basis for the failure of lawsuits for educational malpractice. However, it has been 31 years since the landmark case Peter W. v. San Francisco Unified School District first grappled with the issue of educational malpractice. The court ultimately denied relief to the 18-year-old plaintiff student who claimed he graduated from high school reading at an elementary-grade level. This decision set a precedent that has been followed in subsequent educational malpractice cases.

Since that time, research on teaching and learning has informed instructional practices and public policy has shifted to requiring accountability for public education. Federal legislation, notably No Child Left Behind, and follow-on state legislation have created a high-stakes environment in which consequences are attached to student test scores. Accountability for educational outcomes has become the new public policy, leading to the possibility that the barriers to a lawsuit for educational malpractice now may be crumbling. As educational accountability increases, the time is right to revisit a possible case for educational malpractice. As the saying goes, forewarned is forearmed.

Standard of Care

Malpractice holds professionals to accepted and required standards of care when working with their patients or clients. Generally, professionals who engage in alleged professional misconduct or who allegedly lack appropriate skill resulting in injury may be liable for malpractice.

Malpractice often is distinguished from other wrongs committed by professionals in that it deals with the quality of the services rendered. Professionals are held accountable through malpractice for failure to perform in accordance with skills required for their jobs. Professionals are expected to use a standard of care recognized by their profession as appropriate, based on the training received and the commonly held set of practices associated with the service rendered. Failure to exercise the accepted standard of care may form the basis for malpractice if the negligent delivery of the service is the legal cause for an injury.

Professionals, such as physicians and attorneys, are held individually accountable through malpractice suits when their professional actions fail to conform to acceptable practices, resulting in personal injury. However, educators are not required under threat of malpractice, as other professionals are, to perform their duties in accordance with the standard of care observed by their profession despite the fact educators are, and consider themselves to be, members of a learned profession.

The standard of care requirement has been one of the major barriers to successful educational malpractice suits. The seminal malpractice case is Peter W. v. San Francisco Unified School District. The plaintiff was an 18-year old student who had recently graduated from high school but could only read at the 5th-grade level. He argued the school district had a duty to provide him with an adequate education and the district breached that duty, harming his chances for future success.

The California Supreme Court held that education had no readily acceptable standards of care and that the science of pedagogy was "fraught with different and conflicting theories of how and what a child should be taught." In other words, the state's highest court ruled no standards of teaching exist that guide our profession, unlike medicine or law.

The court also stated it could not allow educational malpractice suits to proceed upon public policy grounds. In an effort to protect the schools and their limited budgets, the court held the schools in California already were enmeshed in major litigation and did not want to pile on more potential litigation. In addressing the impact of potential malpractice suits on public schools, the court ruled: "The ultimate consequences, in terms of public time and money, would burden them--and society--beyond calculation."

Professional Duty

Three decades after Peter W. erected a barrier to educational malpractice lawsuits, we now have standards for students and standards for curriculum. We are developing sets of standards for teaching through the National Board for Professional Teaching Standards, research and interstate compacts.

In addition, most professional associations have defined in various terms of vagueness what a teacher should be able to do as a demonstration of best instructional practices. Arguably, a body of professional knowledge gained through research and collective professional wisdom is accepted by the various professional organizations to define what instructional duty is owed to students.

The second barrier of public policy concerns also shows signs of weakening. First, the high-stakes drive of No Child Left Behind has placed the issue of accountability clearly on the public agenda. Second, in 1998, California citizens passed Proposition 227, titled "English Language in Public Schools." This legislation opened the door to educational malpractice in that it allows parents or guardians to sue teachers who do not provide "nearly all classroom instruction" in English.

Proposition 227 provides a private cause of action when educators willfully and repeatedly fail to instruct a student under the provisions of the law. This is the core of educational malpractice: A teacher owes a duty to provide instruction in a particular manner, and the breach of that duty may result in the filing of a lawsuit.

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Furthermore, NCLB requires that students be taught by highly qualified teachers and that all students will meet proficiency levels by 2014. Will the definition of highly qualified move beyond a definition of preparation to define the quality of teaching practice? In California, students have a right to be taught in English and can sue to ensure that right. Throughout the nation, students now are entitled to instruction delivered by a highly qualified teacher. A breach in the wall of protection may be occurring.

From a public policy perspective, the drive for accountability may well turn a reluctance to recognize a cause of action for educational malpractice on its head. Public policy once shielded school districts from such lawsuits. It is conceivable that legislators and the public will demand greater forms of accountability and may well turn to some limited form of educational malpractice to meet a more compelling social need than financial protection.

Customary Defenses

Should a cause of action for educational malpractice become a reality, several factors will likely impact and mitigate potential runaway damage awards. Damages could be limited to compensatory damages that would require the student receive additional schooling. This would shield school districts from some of the excessive awards associated with punitive damages. The model already exists in special education.

In addition, the traditional defenses to liability also would be available. In medicine, a surgeon may operate on a patient and follow all of the commonly accepted procedures for the operation and yet the patient may die. The death of the patient is not the measure of malpractice. Instead, the delivery of the standard of care concerning the operation is dispositive. In other words, a malpractice suit will not prevail if the patient dies in spite of the surgeon doing everything expected in the delivery of the professional service. The outcome of the rendering of professional services is not always positive.

The courts recognize that being a professional includes making judgment calls that may not always guarantee a positive result. Similarly, if educators were subject to malpractice, the core issue would not necessarily center on whether the student learned, but rather on whether the teacher's instruction was consistent with the required standards of the teaching profession.

Student behavior also may be a defense against liability. A student could not reasonably expect to blithely disregard the instructions of the teacher and then hold the teacher liable for his or her failure to learn. As with medicine, a patient must follow the directions of the physician. The patient who brings a malpractice suit must act as a reasonable person by following the directions of the physician. If a patient does not take the prescribed medication in the prescribed manner and an injury results, the patient may lose the case. Similarly, the student who does not complete assignments or does them in a slipshod fashion may jeopardize the malpractice case because of his or her contributory negligence. Simply put, failure to act reasonably by following the directions of the professional imperils the plaintiff's case.

Malpractice Defense

Should the wall of protection be breached and educational malpractice become a viable tort, it is possible the school or school district may be the defendant rather than an individual teacher. This is likely because of the context of education. Education is cumulative, with learning in one grade or class, building upon previous grades and classes. A student, such as Peter W., who graduates but cannot read beyond an elementary-school level may not be able to point to the inadequate instruction of one teacher as the cause of his or her educational injury. Consequently, the response to educational malpractice should be an institutional response.

At a minimum, school leaders will need to do the following to address potential malpractice liability:

* Hire only teachers who demonstrate mastery of the professional standards of practice.

* Target in-service activities to the accepted professional standards of practice.

* Document that teachers have taken part in the in-service programs.

* Focus the supervision of teachers on the accepted standards.

* Document student grades and completed assignments.

* Plan, deliver and document intervention strategies targeted for specific deficits.

* Save copies of rubrics used for scoring of student papers.

All must gain a broader understanding of the factors that impact learning. Those factors should be incorporated into profiles developed for each student. Learning is complex and involves many variables not controlled by teachers or the schools. These variables must be identified and noted. In addition, colleges and universities should retool their curricula to address the standards.

Though the barrier stands, the confluence of articulated standards and the full press for accountability may well breach the wall that has protected educators from litigation for malpractice. Educational malpractice could have momentous consequences for public schools and the definition of what it means to be a professional educator. Consequently, we cannot afford to believe we remain safe behind the wall as it may be starting to crumble.

Terri DeMitchell, a former school law attorney, is a children's author. E-mail: t.demitchell@ comcast.net. Todd DeMitchell, a former California superintendent, is professor of education and justice studies at the University of Hew Hampshire. He is the author of Negligence: What Principals Need to Know About Avoiding Liability Rowman & Littlefield).