K. Educational Malpractice

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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The central mission of the public education system is to instill basic academic skills in the students it serves. There are few more important public services. School boards and teachers are, however, largely immune from liability in negligence in respect of their educational responsibilities. They are, of course, under a duty of care in respect of their students’ personal safety and property but not in respect of their educational needs and expectations.

The issue of educational malpractice arose initially in the United States.216The cases that have been brought before American courts may

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be divided broadly into two groups. The first group involves plaintiffs without identifiable learning disabilities who, nevertheless, have completed their schooling without acquiring basic reading and math skills. The second group deals with plaintiffs who have diagnosable learning disabilities, such as dyslexia, which have not been detected or, if detected, have not been addressed in an appropriate manner. Almost without exception, the claims in both groups of cases have failed at the threshold stage of an absence of a duty of care. A number of reasons have been given by American judges for refusing to entertain actions in either category. First, it is difficult to set the standard of care in order to determine if there is fault. Teaching methods and theories of learning are so diverse that it is not possible to formulate a normative standard. Second, a determination of cause-in-fact presents formidable problems. The failure of a student in a school system may be due to a wide range of social, economic, family, genetic, physical, and environmental factors operating unequally throughout the course of the plaintiff’s education. It is difficult to gauge the contribution of poor teaching to the plaintiff’s lack of academic skills. Third, the courts ought not to interfere with the educational system or second-guess the full range of budgetary, discretionary, and pedagogical decisions that must be made in the performance of statutory powers. Fourth, administrative procedures to remedy specific concerns and grievances may be available to students and their parents during the plaintiff’s schooling. Finally, educational malpractice may unleash a flood of burdensome litigation against school boards that are already under financial pressure. These reasons are certainly sufficient to proceed with caution in respect of educational malpractice...

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