Educational Insanity

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?