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Having just taught a class last night on tort liability in education, I thought it’d be fun to construct a hypothetical argument for a class-action case of educational malpractice [NOTE: I am fully aware that educational malpractice has been argued successfully in an actual court of law once, maybe twice, over the course of American judicial history]. Ed. Mal. is essentially a special class of negligence claims, and the elements of a negligence case are (c’mon Scott, Justin, etc…sing along with me!): duty, breach, cause harm.
DUTY: “Reasonably prudent person in the same or similar circumstances…” That’s the legal mumbojumbo. The specifics here? I’d argue that the standard of care owed to public schoolchildren these days is to provide learning conditions and practices that best develop (quoting language from the Partnership for 21st Century Skills) the “skills, knowledge and expertise necessary to succeed in work and life in the 21st century.”
BREACH: Are those conditions and practices in place? I’d say “no.” Conditions? Maybe. Student:computer ratios are lower than they’ve ever been (in the aggregate), but I would say that teachers (again, in the aggregate) are not prepared to teach 21st century skills and dispositions. Practices? Well, there’s plenty of empirical evidence of how little time the average U.S. student spends using computers in schools. Try these data on for size:
But, computer use, in and of itself, is not a singular indicator of 21st century schooling practices. So, here’s some more data:
HARM: I’ll skip “cause” for now…if we can successfully argue that there has been a breach of duty, what (concrete, quantifiable) harm has been done? Tough to prove. But, what if the plaintiffs were a group of recent college graduates who were having trouble obtaining competitive jobs in the technology sector; they were regularly being beaten out by recent immigrants who were deemed to be better educated and prepared in their native countries? It seems to me that we wouldn’t have a hard time finding such plaintiffs.
CAUSE: Negligence plaintiffs carry the burden of demonstrating “cause-in-fact;” that is, but for the breach of duty, the harm would not have occurred. I guess this boils down to a question of whether the institution of public schooling is solely (largely? mostly?) responsible for the plaintiffs lack of competitiveness. There’s also the element of proximate cause…was the harm a foreseeable consequence of the nonfeasance (i.e. failure to affirmatively offer proper conditions and practices)? I would say that proximate cause is easier to demonstrate than cause-in-fact; there’s been plenty of rhetoric around the consequences of sticking with the status quo in education.
This is all, obviously, meant to be hypothetical and somewhat playful. But, I hope this post does cause (pun intended?) some discussion about what standard of care our public school students are owed? And, what are the consequences of failing to uphold our duty?
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One might consider a class action lawsuit against secondary teachers for the dullness created by the sage on the stage model. Could one argue emotional pain and suffering from being frozen in a sitting pose for hour upon hour each day?
Jon
I understand your love for the law, but this really pushes the “fear of lawsuits” mentality that is already driving our educational system. We are concerned not to get the lawsuit, so we “allow” for lack of a better word, things to happen or set out rules to guard against it. This is one of the major issues I’m dealing with on technology right now, over-structure of filters and safeguards. Heaven forbit a student would IM another to call him/her an idiot while the other 22 in the class are able to expand their understanding of tangents through on-line experiments!
Charlie is also right that we have lots of opportunities for frivolous lawsuits if we want. Although I would suggest going to higher ed. for the real sage on the stage. HS teachers are becoming more and more aware of how important involvement of the studnet is-at least in my experience.
Yes, Charlie, that cause of action would be “Intentional Infliction of Emotional Distress.”
Marshall, yes, there are “sages on the stage” at all levels. That’s why I think the idea of having recent college graduates as plaintiffs work; the whole K-16 educational system is stagnant.
Well, Jon, as usual you’ve made an interesting argument. One that’s ultimately doomed to fail, however. If parents can’t even win educational malpractice lawsuits against schools when their child graduates high school unable to read, this type of suit has even less of a chance. I like the moral imperative, though!
That’s really all I was after, here…the moral imperative. We did have a great time in class, though, discussing the “standard of care” issue. Lawyers are ethically bound to be “zealous advocates.” Doctors are sworn to “do no harm.” Educators? One of my students said she feels like it has become “Don’t screw up.” Sad commentary, but telling, I think.
BTW, Scott (et al.), tomorrow is VCU’s bigg-ish annual School Law conference. Ralph Mawdsley will be presenting about educational malpractice in a standards-based policy climate. I’ve seen this written elsewhere; if plaintiffs never win ed. mal. cases becuase the courts can’t identify a true standard of care, does that change where schools are expected to get students to proficiency; i.e. isn’t that, then, a standard of care? I’ll see what Mawdsley has to say…
Oh, I know the song. Let me point you to what one of my students did in this youtube video: http://www.youtube.com/watch?v=NwQWZ0FBr1Y (skip the first 40 sec.)- I have others as well, but most of them are not posted online.
Here are my thoughts. I will probably post more over at the Edjurist tomorrow.
First, on the malpractice issue more broadly, you are right on that it is a loser case. However, I have a couple thoughts. First, in special education it is not such a loser case. Because of the IEP, and possible failure to implement it, education malpractice does sort of exist if schools fail to implement IEPs properly – since some of those IEP include technology issues, there might be a winner there, although that is probably a different kind of technology than you are thinking of. Secondly, there has been talk of the possible rise of educational malpractice for years, but with NCLB some pretty solid scholars have stated they think it has a chance to become reality. I am pretty sure I remember at ELA a couple years ago in a session with T.K. Daniel (Ohio State) and Mark Gooden (Cincinnati) they were saying educational malpractice lawsuits are on the horizon because of the starkness of the data coming out of NCLB. So far I have not seen one, at least not a successful one, but that doesn’t mean one won’t happen in the next few years. Unlikely, but possible if you had the right wording in the state constitution. However, I agree with Scott, if it is possible at all it is going to be based on test scores, not technology.
On your case, the problem is in the Duty. If you could get a solid Duty, you could probably make the case for breach, injury and causation. But, there is no duty to make kids technologically literate … in fact, there is no real duty to make sure kids learn anything at all. There is a duty to keep the kids safe, to provide reasonable supervision, etc. … you can even go with in loco parentis as a duty, but no duty to educate. Learning, in the eyes of the law, is the kids’ responsibility — which obviously is a statement that has some interesting problems within it.
Now, you could create a duty to make kids globally competitive and technologically literate, if you wanted, but it would take a statute to do it and your best bet would be at the State Legislative level. They would be reluctant to open schools to that kind of liability though, so in reality you are probably looking at a constitutional amendment, probably at the state level. So … um … yeah good luck with that.
But your points are valid. The courts are just not the place you need to be looking here. This is something that a legislature or state department would be much better equipped to handle … at least they would listen. You bring an educational malpractice case these days and you are thrown out on a motion to dismiss the minute you step in the door … so you wouldn’t even get to present your data or even so much as catch of whiff of the jury.
That video is hilarious, Justin. I imagine your students had a miserable time demonstrating their learning that way; you’re so cruel.
Don’t know is you were writing your comment while I was replying to Scott’s comment, but I’m eager to see what Ralph Mawdsley has to say tomorrow. Once you’re at UK, you’ll have to come to our School Law conference (http://www.cepionline.org/law_conference/2008/index.html). It moves around the state each year, but Lexington’s not too far.
Sorry I was writing when you posted last. Yeah, I would be interested to hear what Ralph has to say on it too – that is the kind of solid scholar that is starting to talk about this issue. I am sorry I am not coming to the VCU conference this year (a little busy with the dissertation). But, I want to come one of these years and will make an effort to next year – I will try to put a proposal in to present as well. Are you willing to take us out to the hippest restaurant Richmond has to offer?
Hippest. OK. Most authentic? Here it is: http://www.buzandneds.com/ Hope you like BBQed roadkill!
I think I could handle that menu. I like how their menu offers “meat only” – I mean, really, why do you need the sides, you are there for the meat. But, I love the “Buz Beer” on tap. Makes me think of this: http://www.youtube.com/watch?v=xEuoD-0j1DY — Next time you are there you will have to try it and see if it tastes like coffee.
“I gotta pee just thinking about it.” Classic.
First, I’m delighted to find this site.
Second, you might find it amusing that Einstein’s definition of “insanity” is precisely Deweys’ definition of “obstinacy”, which the great philosopher counterposes against “discipline”.
Third, it’s a wonderful gambit, your malpractice challenge. But you know very well that it’s a jurisprudential absurdity for a host of reasons, e.g. “the compulsory environment of the school”; court dicta observing that “schooling is not so much a right as a duty imposed upon the individual in the interest of the State”; the obviation of personal responsibility in expert systems such as public schooling; the (increasingly embarrassing) problem of defining “education”, etc. Still, yours is a great heuristic device, and I admire the humor of it. Besides, it’s a really viable teaching tool.
I’ve been working on a draft of a “Socratic Oath”, to be sworn by teachers a la mode the Hippocratic one in medicine. Any thoughts?
Thanks for the comment, Hugo. The institution of public schooling, IMHO, is just as much obstinate as it is insane.
The oath that sat best with my students was something to the effect of “In the best interests of the students.” Personally, I wouldn’t mind something akin to the lawyers creed of “zealous advocacy.” I wonder how many educators consciously consider themselves advocates for the kids. Then, also, since you appear to admire Dewey, there is his proclamation that “What the best and wisest parent wants for his own child, that must the community want for all of its children.” Lack of gender neutrality notwithstanding, that’s not a terrible standard of care.
Those are both considerable routes to a standard of care, yes. And thanks. I admire Dewey only grudgingly, as I think that his 50-year body of work is, for better or worse, the authentic Summa of the American creed. I dislike the Solomonic implications of the in loco parentis calculus you quote from Dewey. “The community”, in his formulation, is a euphemism for the democratic republic, and I can’t agree with equating the State and the “best and wisest parent” at any level. Jurisprudentially, as you well know and presumably teach, the educator’s guardianship authority derives in law from the parent, and not vice versa, and nor are the two co-legitimating. As a practical matter, Dewey’s game-playing with the predicated “best and wisest parent” is largely the kind of legerdemain that got us into this mess. (Who/whom?) And even if you take it back to Hebrew Law, it is plainly perverse to suggest that the State ever could be one of Solomon’s candidates for the authentic, ontological parent. He’d have split the baby first.
I appreciate your constructive derision of the school system. I personally see that system as something approaching homicidal, and I’m betting that you’re one of the few persons who might suspect that I’m not kidding.
So, after passing on the sides and washing the meat down with Buzbeer, we come to the school again, with a duty to match the wisest parents’ wishes for their children? Does it matter what obstacles the student has? Should all students be able to effectively create tangents and figure cosine at the drop of the hat? How about that wise parent that sees the ability his/her (note the gender equity, Jon) child to be an exceptional custodian, snow-plow operator, or welder? Are these the wise parents considered? My guess is no. We probably looked at those that see doctor, lawyer (help us all!), and business tycoon as the careers of choice. Honestly, didn’t you? If so, we have poorly prepared the first three for their occupations-by the way occupations that are highly needed and I have personal experience with all three lacking greatly. My point? How about vocational education – technical skills, spacial understanding, and maybe most of all social skills and the ability to be a good human being.
I’m not too keen about Dewey’s proposition either. Hugo, how far along are you in your draft of the Socratic Oath for educators? Is that something you’re willing to share?
I’d be delighted to share it with you all when I get a little farther along. I’ll tell you where I am with it. I’d thought to do it as satire, but two things hit me in the gut: in researching the recent morphology of the Hippocratic, I was distressed to learn that the medical profession has gutted it leaving only a disused husk, and nothing with any valence to speak of; so partly for that reason I came to feel that I shouldn’t be playing around with the duties of teachers—especially pedagogues.
I never wanted to propound something radical, but American schoolteachers today are so tragically enschooled in their systems-thinking that they’re inured to the routinized “wastage” (an agricultural term) of children, and to what Jefferson called schooling’s “asportation” (arch.–kidnapping) of the children of the Republic. The systems-assumptions for which teachers are selected blind them, for example, to the facial absurdity of “zero tolerance” policies, through which a well-oiled human management system is capable of licensing the absolute (zero), perfect intolerance of an adult toward a child acting as a child. This systematized (I use that word advisedly) callousness is, to me, deeply tragic. So I hardly know how to continue with the drafting of a notional Socratic Oath.
Simply to say what it ought to be—to say it deadpan and artlessly—is to engage in that literary device which is satire-by-comparison; that is, to make a mockery of what teaching has become in our society. And I don’t wish to be a part of making pariahs out of teachers, the way we have done with attorneys (or they to themselves).
In my middle age I still bring apples to teachers. They are sensei to me.
Jon, it occurs to me that it would be impossible also to establish culpability. That’s what exquisitely complex systems do: they absolve their functionaries of personal responsibility, by relegating the notion of responsibility to the heap of imponderables. No algorithm for guilt, you see. No one even to hold responsible for the Nuremberg defense, since there are no orders to follow, only a system that’s inviolable.
Schoolteachers believe they are a self-selected group of professionals, but they’re neither self-selected nor members of a profession. Long before they decided to take up the chalk, they had spent years in the front row demonstrating, for example, the kind of extreme credulity required to commit to a system that ritually stigmatizes and even expunges more than a third of its clientele—of CHILDREN. The office of Keeper of the Chalk is reserved to those who prove, again and again, their assumption that such is the natural order of things—that things somehow would come apart were this ritual child sacrifice cease to occur. At the very least, it would mean a betrayal of the idol “excellence”, as a thing can excel only in relation to another thing: in this case, the rejected schoolchildren.
Of course this formulation (or characterization) is arch, but so is schooling. And the formulation does take you to the origin of human law: the advent of prohibition resulting from intimations of the divine. Freud postulated that religion began in collective murder, probably a regicide or a clan patricide. He didn’t live to see the repeated anthropological discoveries, in digs around the world, of the underpinnings of the sacred sites of the oldest known human cultures: the bones of ritually sacrificed children, bones quite often used as lath in the temple foundations. “Religio” as the binding element. Sacrificed children as that which, by propitiating the Prohibitor, allow human beings, under law, to live among one another without devouring each other.
The system is a sacrificial system, and its functionaries—in this case teachers who select those for sacrifice—are not to blame.
Hugo, I believe you’d enjoy a similar conversation that’s developing over at Dan Meyer’s blog. http://blog.mrmeyer.com/?p=772
Infanticidal teachers? Y’all are simultaneously too smart and too far outta control for me. I am extremely interested in developing a standard of care for teachers, which, even if not legally actionable, could be used by a peer-review board (a la the AMA) to disbar the right teachers from the classroom.
Though I’m not yet ready to leap straight to 21st-century paradigms, though. There are lower infractions which need redress first — use data to inform decisions; create a culture in which students feel their interests are actualized through attendance; don’t be boring; etc.
A lot of pretty hypotheticals in this thread, no matter what comes of them.
Dan, very well. You’re right. I can’t speak for the others, but I’m just outbounding toward your same end; I’m an inveterate outbounder. Please be called to a certain gravity and solemnity, because these matters, as Jon has framed them, are so grave. And yes, infanticide is a part of the (American) historical backdrop: the U.S. did not have universal, compulsory public schooling until 1934, at which time the long Western history of (esp. female) infanticide was very fresh, to put it mildly. Look, I’m not saying this sad stuff for shock value; but if we’re going to approach a new jurisprudence, I’m sorry but we’ve got to be “counterfoil-forensic” as an old friend, now in political oppo research, once put it to me.
You can try to convince schooled teenagers of whatever authenticity you choose, but they’ll still know that they’re enschooled—that they’re schoolhoused—by force of law. By force. So whatever line you want to play out to them, in the end won’t change the fact that you begin with lying about the power differential in which you have all, and they have nothing but the food pellets you measure out to them.
You may not believe it, but I’m on your side. My point is that the system is not. The system may flatter you, but it’s as hostile to you as it is to its ostensible, principal clientele.
Jon, I spent more than an hour on the other site trying to address those people in a way that would turn them from their vanity, but it was pointless; they all seem to pine for the kind of social respect that really isn’t due people so self-absorbed and self-important as not to recognize that it is not they, but children, who are of concern. Those people are my sisters and brothers, but I can’t go through with it; I’m too old, and I don’t want to hurt them. I’ve been a teacher, and a teacher of teachers, and a teacher of teachers-of-teachers, and still I don’t know how to call these people to—I mean, they don’t understand that they’re stuck in the web alongside the children. They’re not the spider. It’s simply too late. Sorry.
Yeesh. How do you really feel, Hugo?
Dan (if you’re still out there), you wrote that you are “interested in developing a standard of care for teachers, which, even if not legally actionable, could be used by a peer-review board (a la the AMA) to disbar the right teachers from the classroom.” I would submit that a standard does not exist precisely because it would open the doors to legal action. A lawyer who does not uphold the standard of “zealous advocacy” is open to being disbarred and being sued (see e.g. Mike Nifong in the Duke lax case). The ed. mal. cases I’ve read have fallen short, in large part, because judges can’t find any standard of care to which teachers are generally held.
How do I feel? Lousy. Because I don’t want to have to teach them to bone up on systems theory and fight the imposed, expert structures tooth and nail, lest they continue to be mere functionaries content to each children and belch pay raises. I would wish to show them the existential exigency of their noble calling. But I can’t. So how do you think I feel?
Yeesh, indeed.