kitchen table math, the sequel: Willies Water Slides

Monday, January 10, 2011

Willies Water Slides

What would the community response be if you had a water slide company in town that hurt most of its customers? Let's say two thirds of its customers are hurt in the normal course of using 'Willies Water Slides'. Would you shut 'em down? Would you sue them for gross negligence? Would you go there for entertainment?

In the law there's a concept of gross negligence defined as depraved indifference. Failing to post exit signs is negligence. Chaining the exit doors is gross negligence. It's a craven act. It's depraved. One child hurt, out of a hundred, at Willies could be due to negligence. Two out of three? Well that's depraved. You wouldn't stand for it.

Shift gears. In public education something like 30% of high school students don't graduate. 35% of entering college students are receiving some form of remediation. Two out of three of our kids are being damaged by the public education system. It's really no different than Willies is it? Why is our response to this travesty so muted? Actually is there any response at all? Not really.

Every year our political 'leadership' acknowledges the failure as evidenced by their renewed requests for increases in budget to fix the problems. Every year the evidence is that the 'water slide' is still hurting kids. Every year administrators cycle kids through the demonstrably failed system, wishing for a different result. Wouldn't reasonable people agree that this is a depraved act of indifference?

Why do we let this go on? Shouldn't the community response to this negligent act be as loud and active as it it would be if 'Willies' was hurting your kids?


ChemProf said...

It would be hard to get a lawyer interested in taking this case, because the precedent is generally that schools don't have an obligation to produce results. It is like the legal requirements for the police -- if the police don't show up in time to help, you can't sue them for failure to protect you. Fundamentally, in our system, if you can't sue, that's the same as saying that you don't have any kind of contract or expectation of a particular result.

Anonymous said...

It's a bit of a myth that you can't 'sue' the government. There are limitations for a suit that is seeking monetary relief but if you don't sue for damages you can sue.

There are exceptions for gross neg ligence as opposed to ordinary negligence where ordinary negligence is tantamount to incompetence. Note that intentionally submitting students to a known hazard is easily 'gross' negligence

There are also exceptions for breach of contract which I would submit is happening in most districts.

Bottom line, concentrate on GROSS negligence during the execution of a contract breach and seek something other than money, then you've got a shot.

Anonymous said...


Attack the food chain. Sue the consultants, publishers, and ed schools.

concerned said...

Paul B,
You're exactly right! There's an interesting case regarding math program selection in Seattle that you might like to read about here:

If we just throw up our hands and wrongly assume that there's nothing we can do - the outcome for our children will never improve.

ChemProf said...

You can sue, sure, the Seattle math issue was somewhat successful, but the suit revolved around the school district failing to follow its own procedures. Not about a failure to educate. When suing the government, your options are pretty limited.

Then again, I'm firmly in the "save your own" camp, and am also in California, where the courts have said schools have a legal right to ask children in public schools any question (including age-inappropriate questions about sexuality) without parental notification, forget about approval.

Anonymous said...

The Seattle case is interesting but narrowly cast. If you get into the weeds with this issue (which is where the school systems want you to be) you end up with incremental change and nothing more.

Here's an example....

I hate to hang curtains. I never, never, never, want to get into it with my dear wife over curtains. The debate will focus on what kind of curtains. If I compromise, I'll still be hanging curtains.

The proper debate, for me, is whether or not to have them at all. But my wife, being much smarter than me, will always maneuver me into the 'types of curtains' debate before I even get out of the gate.

Same thing for schools. Argue in the weeds and you'll get more weeds when what you really need is a brand new garden.

Catherine Johnson said...

educational malpractice

We've had decades of case law all finding against parents.

I learned this when I asked a SPED attorney when parents of regular-ed kids would be able to sue.

Catherine Johnson said...

Paul - I'd like to put you on the Irvington Parents Forum.

We've had an amazing turns of events recently.

A number of us have pushed the issue of student achievement so intensely for so long that the district is now mentioning student achievement, too. In the past, this being an affluent district where the kids always score better than urban kids, the administration sniffed at scores & score-grubbing parents.

We also have fantastically high taxes, as you can imagine; the school doubled taxes in 10 years' time with no measurable gains in achievement.

The school also hired its first curriculum director 10 years ago.

We've had a curriculum-and-instruction director for 10 years with no measurable gains in student achievement.

This fall, the superintendent asked the school board to vote approval for her to hire a new director of curriculum & instruction **before** the budget process got underway. In other words, she wanted to lock the position in & make cuts elsewhere.

She organized all of the building principals to lobby the board as a group the night of the vote, and she won.

What was interesting, though, is that the administration now says explicitly that the CURRICULUM & INSTRUCTION director has no relationship to student achievement.


They are saying this out loud.

Now the position is justified as a compliance office. The state has "won" Race to the Top, and we have many, many, many new mandates to meet!

The whole thing really is extraordinary.

Catherine Johnson said...

Last year they had a lot of budget task force meetings. In one, all of the administrators explained what they do and how important it is.

One parent asked about the relationship between achievement and administration, and the high school principal said that there isn't any relationship between administration and student achievement.

Then he said you have to ask yourself what would have happened to students if we hadn't doubled the number of administrators.

Administrators prevent decline.

That is the rationale.

Anonymous said...

My understanding is that individual acts of malpractice are granted sovereign immunity under the rationale that governments can't be held liable for incompetence. Incompetence is viewed as simple negligence. This is why I say to get out of the weeds. Think bigger.

Gross negligence has not been granted such immunity. Under gross negligence the standard is one of acting with "depraved indifference".

For example, a police officer takes 30 minutes to respond to a 911 dispatch and a victim dies. This is incompetence, therefore negligence, therefore immune. But let's say the police chief has a policy that says all 911 dispatched officers have to make a donut run before responding to calls. This is depraved indifference, therefore gross negligence, therefore not immune.

The police chief, certainly, and possibly the entire city government has liability in this case for condoning a policy that reasonable people would agree is behavior that has a high probability of harm.

If you argue individual students or individual curricula you're in the realm of negligence. Instead, bring a class action against the entire system, arguing that it is grossly negligent. You only need two stats; graduation rates, and remediation rates.

What would you do if your town set up 2/3 of its traffic lights with green in all directions? Could you sue the officials who did this, year after year after year?

Anonymous said...

I think we had better be very careful what we wish for here ...

In 1977 the Kansas City, Missouri School District was sued "on behalf of the students." The case was about segregation and the school district lost (sorta ... early in the case the judge moved the school district from the list of defendants to the list of plaintiffs ...).

In any event, the judge was concerned that forced busing would just drive away the white students necessary to desegregate. So ... instead of busing, the court ruled in favor of shoot-for-the-moon improvements in the school district. The idea being that great schools would attract white students and thus eliminate the segregation.

The costs went through the roof. To pay for it the judge ordered property taxes increased (at one point to just a hair under 5% of assessed value!) and the state was required to ship large amounts of money to KCMSD.

We haven't heard about the great success story because there wasn't one. After ten years and huge gobs of money the school district had nice facilities, but lousy test scores. And the whites were still not transferring in. Basically, when given as much money as desired, the school district could still not educate the students it had :-(

So ... I can imagine suing some government agency over lousy educational outcomes. But I would expect the response to be much higher taxes and still no improvement. That's kinda what happened here.

-Mark Roulo

Details on the event here:

Catherine Johnson said...

Good question!

All I know is, the SPED attorney we consulted (who is a muckety-muck in the NYC SPED scene) looked at me like I had 3 heads.

"Why would a parent of a general education student want to sue?" he said.

Anonymous said...

School boards have fiduciary responsibilities! One school board's list of responsibilities that I'm familiar with was to ensure that moneys were spent 'efficiently'. Presumably this includes not throwing money out the window every day whilst simultaneously producing no change in outcomes.

Ironically, this same oath of office mentioned absolutely nothing about students or student achievement. So fight them at their own game.

Make them prove that more bucks for equal outcome is meeting their fiduciary responsibilities. Even managers at McDonalds are held to this standard.

You need to shape the battlefield. Don't let them define the terrain as administrator/curricula/money because they'll make the entire argument a subjective amorphous blob. Make them defend fiduciary/results/efficiency responsibilities.

Allison said...

What would the remedy be that you are proposing in such a suit?

Therein lies the problem. What makes you think the school district or state superintendent you'd sue would be able to enact to some benefit whatever a judge said should be done?

If it's not a financial remedy, then what, exactly is it you would hope to win in a suit, in your perfect world?

Allison said...

For example, the goal of suing the Willies would be to put them out of business, or make them feel enough pain to never be negligent again, by either financial or criminal restitution.

But most public education is mandated by the state's constitution. So even if you shut down Willies, Son of Willies would be open in a heartbeat-it's the law. And you can't hurt a state or district by making it pay out, because they'll just take the money back from their tax base--i.e. you anyway.