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Educational Malpractice: No Judicial Backers Yet

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The two cases recently decided by the New York Court of Appeals, Torres v. Little Flower Children's Services and Snow v. The State of New York, are simply the latest in a string of lawsuits since the early 1970's that focus on the controversial issue of educational malpractice.

No lawsuit brought on such grounds has ever been won at the appellate level, authorities note, although in several states such cases have gone to the state's highest court.

The courts have consistently chosen not to become involved in evaluating educational practices. To do so, said New York's highest court in one precedent-setting case, Donohue v. Copiague Union Free School District, "would constitute blatant interference with the responsibility for the administration of the public-school system lodged by the Constitution and statute in school administrative agencies."

Public-Policy Basis

The courts have generally shied away from trying to rule on the nature of schooling on several grounds, according to Julie Underwood O'Hara, assistant professor of education law at the University of North Dakota.

The first, she said, is "the absence of a workable rule of care. In essence, the courts are saying, we don't really know what good teachers are supposed to do." The second is "an inherent uncertainty in the cause of why the child didn't learn." And the third is that "many courts have said that to find in favor of educational malpractice would put an unfair financial burden on the schools."

Particularly in the area of special education, Ms. O'Hara said, the courts have ruled that students and their parents have access to a specific administrative recourse to remedy any educational problems, and thus the problems should not be the jurisdiction of the court.

Experts point out that the broad educational-malpractice suits--3such as the 1976 case Peter W. v. The San Francisco Unified School District, one of the most widely publicized--dealt with the failure of presumably ordinary students to learn, a phenomenon that made them much more difficult to litigate. The cases that may eventually force the courts to change their stance, they say, are those based on the misdiagnosis of special-education students, particularly since the implementation of P.L. 94-142, the Education for All Handicapped Children Act of 1975, which spells out specific state and federal procedures.

'Peter W.'

The case of Peter W., which brought the issue of educational malpractice before the general public, was based on the plaintiff's allegation that he was passed from grade to grade but graduated without being taught to read beyond a 5th-grade level.

In that case, a California appellate court ruled that "the achievement of literacy in schools or its failure is influenced by a host of factors which affect the pupil subjectively from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified."

'Leery of Awarding Damages'

"Courts are very leery of awarding damages in educational-negligence cases simply because of the complex factors in teaching and learning," said Martha McCarthy, president of the National Organization on Legal Problems of Education. The courts have ruled that it is too difficult to determine what "exact duty was breached," she said.

Precedent Setting

Two other significant educational-malpractice cases, both of which were ruled on by the New York Court of Appeals in 1979, were Donohue and Hoffman v. Board of Education.

In Donohue, as in Peter W., a student sued his school district because he graduated from high school unable to read. He alleged that school officials failed to evaluate his mental ability or take adequate remedial measures to deal with his specific learning disability.

The court did not rule on the facts, but said that as a matter of public policy, the court should not entertain such claims.

The Hoffman case, decided shortly after Donohue, involved a student with a severe hearing defect. He was mistakenly diagnosed at the age of 5 as retarded. The school psychologist's recommendation for retesting within the next two years was ignored, and as a result, the student was taught in a class for retarded children.

However, when Mr. Hoffman graduated from high school, he was required to be retested in order to be eligible for Social Security benefits. He scored over 100 and consequently became ineligible to remain in an occupational-training program for the retarded.

Damages Awarded, Overturned

The Hoffman suit claimed that due to a school misdiagnosis, the student was both uneducated and unable to remain in the occupational-training program. Both the trial and appellate courts ruled in his favor and the appellate court awarded him $500,000 in damages, saying the case turned on a specific breach of duty--the failure to retest.

However, the state's highest court dismissed the case, saying "the courts of this state may not substitute their judgment, or the judgment of a jury, for the professional judgment of educators and government officials actually engaged in the complex and often delicate process of educating the many thousands of children in our schools."

"The courts have pretty much said that schools can't be held accountable for insuring that all students with varying abilities to learn attain a specified reading ability before high-school graduation," Ms. McCarthy noted.

Experts in the field are divided on whether the courts will eventually reverse their stand on educational malpractice.

Divided Opinion

Ms. O'Hara said that for any such lawsuit to be successful, the plaintiffs would have to make the distinction between misdiagnosis and educational malpractice.

"The courts have been so consistent in striking down such lawsuits that as long as they are labled educational malpractice, the courts will continue to strike them down," she said.

Ms McCarthy of nolpe agreed, saying it is "far more likely" that there will be a successful special-education negligence suit than simply a "Johnny can't read suit," because, since P.L. 94-142, "there are specific state and federal procedures that [schools] must use to test and place students. If the student can prove they weren't followed, it would be a stronger case," she said.

Increased Vulnerability

Ms. McCarthy also warned, however, that as schools spell out more clearly what is expected of students, they may become more liable to such suits.

"My personal feeling is that with all the current attention on competency legislation for students, we might also be increasing the vulnerability to education malpractice," she said. "If a state was very explicit, saying 'here is a list students should master by graduation and the institutional program will be geared to those,' and the student can show that the institutional program does not teach them, there will be a stronger basis for educational-malpractice lawsuits."

Most involved in the legal issues of education malpractice agree that at some point, the courts will have to reconsider their current stance.

"I think there's going to be a change," said Donald Snow's lawyer, Robert Ellis. "Ultimately, absolute immunity for institutions that injure people is not going to be tolerated. There's got to be a redress for injury."--at

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