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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.
source:
A Crack in the Educational Malpractice Wall
October 2007
The School Administrator
There it is, in a nutshell.
Educators have no legal responsibility to educate.
Parents have a legal responsibility to deliver their children to public schools staffed by educators who have no legal responsibility to educate.
This is why it's acceptable for schools to locate 100% of all failures to learn in the student, not the administration, the curriculum, or the teaching.
coming right up:
my trip to the edu-attorney
educational malpractice in the USA
Educational Malpractice: If Our Children Aren't Learning Who Should Be Held Accountable?
Galen Alessi: blaming the child
6 comments:
This is not really all that different than other societal issues. The Supreme Court ruled that the police have no legal responsibility to protect you from crime. And many states and cities require you to hand over to the police any guns you'd use to protect yourself.
The issue, though, is badly phrased. A better statement would be:
Based on JUDICIAL precedent, courts have found that given present law, educators have no legal responsibility to educate. But legislation could change that.
Similarly, at least some court has found in CA that parents do have a legal responsbility to deliver children to said schools. But again, legislation could change that.
Legislation has merit. Many states in the country do have legal protection for homeschoolers: by LAW. Not by judicial finding.
Getting law changed isn't easy. It's nigh impossible, but it's still possible. Ward Churchill managed it. Perhaps that is where the effort should be concentrated.
I have absolutely no idea where to concentrate my efforts, especially given the fact that I'm in the thick of Dorner's Logic of Failure.
I don't think the analogy to the police holds, quite.
It seems to me that the performance of police is somewhat to quite a bit more transparent than the performance of schools.
Also, the culture is different.
People spent their childhoods in schools; as adults, they have transference.
That was one of the things that made Ed so different here in Irvington. Because he is a teacher -- and probably because he's a professor, which puts him, in theory, at the top of the hierarchy -- he doesn't have transference.
When he told me that a couple of years ago it was liberating. I still had quite a lot of transference myself at that point.
The argument of the article is that the law has changed; NCLB has opened the door to liability.
I asked an education attorney about this a couple of years ago.
Will post tomorrow.
"NCLB has opened the door to liability"
That was my thought a few years ago, but I think it would take very special circumstances. The most likely case would be for high stakes testing where students wouldn't get their high school diploma. If students were continually promoted year after year with passing grades, but then completely fail the high stakes test, they could try to place the blame on the schools. But this would be a procedural issue, not a failure to teach issue. (Unless, that is, one could document a specific case where they had a student sit around all day and do nothing.)
The only law I could see helping education is one that allows full parental choice.
Well, the article indicates that a lawsuit based on NCLB might now be possible in the judicial framework. But whether NCLB opened the door or not, the issue is:
we have the right to kick the door open ourselves, in our dates, by passing laws of the same kind. Be they homeschooling laws, or laws that say "performance of public school students is the responsibility of the school" etc. Write those laws at the local or state level, and then you know you can sue, not merely know that you have to find a specific, odd, individual test case.
I'm desperate -- desperate, I tell you! -- to learn more about public policy and political science.
The Dorner book (I'll post excerpts) makes it impossible for me to figure out (at the moment) what would and would not be a useful change - as well as a change without catatrophically bad unforeseen consequences...
gosh, I better just post some passages to show you what I'm saying
That said, I support laws granting choice. Period.
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