School in Kentucky Faces 'Malpractice' Charge

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Copyright 1988 In a case involving the theory of "educational malpractice," a Louisville, Ky., father has filed suit against the private school his son attended for nine years, contending that the school was negligent in discovering and dealing with the boy's learning disability.

Arnold Rich, on behalf of his son John, is suing the Kentucky Country Day School, charging that the school failed to give the boy the superior education for which the family had contracted.

Lawyers for the school, saying the civil suit has no merit, have asked the Jefferson County Circuit Court to dismiss the case or rule in their favor without a trial. The court last week postponed a Nov. 15 trial date to consider the motions.

Grades Began To Fall

In the suit, Mr. Rich says that his son was a good student in the 2nd through the 5th grades at Kentucky Country Day, earning A's and B's.

Then his grades began to fall, according to Mr. Rich. The boy would do some assignments but would leave them in his locker instead of turning them in. In the 9th grade, his grades were so low that he was told he would not be admitted the following year.

A psychologist who evaluated the boy concluded that he had attention-deficit disorder, a learning disability that causes children to be distracted and slow to follow directions.

School administrators were given the psychologist's diagnosis but ignored it, Mr. Rich argues.

He is seeking damages equal to the total amount of tuition he paid to the school--at least $30,850 over nine years. The suit also seeks reimbursement for the cost of diagnosing and treating the boy's condition, and for hiring tutors.

"They never recognized that he had a problem," said J. Andrew White, the Riches' lawyer. "The4question is whether there is a liability for educational malfeasance."

Administrators at the prominent Louisville independent school were not available for comment on the case last week.

Difficult Theory To Prove

The theory of educational malpractice has not been very successfully argued in the courts, lawyers said last week. In only one state has a court accepted the theory. The Montana Supreme Court held in a pl 94-142 case that a school district was negligent in failing to evaluate a child and place her in special education.

"I think the courts are afraid of the implications," said Chris Hansen, associate director of the Children's Rights Project of the American Civil Liberties Union. "There are too many possible claims out there, and it is too hard to judge whether failing to succeed in educating a child is malpractice."

Mr. Hansen argued such a case several years ago on behalf of a child who grew up in the New York foster-care system and was illiterate. The suit claimed that the foster-care agency was negligent in providing the child with at least a minimal education. But on a 4-to-3 vote, the justices of New York's highest court found the foster-care system not at fault.

In 1982, Maryland's highest court ruled that educators in the state could not be sued for improperly educating a child. The court said that allowing parents to file such lawsuits "would in effect position the courts as overseers of both the day-to-day operation of our educational process as well as its governing process."

At the same time, the court held, educators who maliciously and intentionally injure children can be sued for damages. (See Education Week, Jan. 19, 1982.)

"Some fine lines have been drawn" in educational-malpractice cases, according to Robert Pressman, a lawyer with the Center for Law and Educa8tion in Cambridge, Mass.

"I doubt," he said, "that you can square the fact that all kinds of malpractice cases--including law, medicine, and finance--have been found legitimate by the courts, while in a school setting, it is generally not accepted."

Claims of malpractice against private schools may be more likely to be considered than those against public schools, Mr. Pressman said, because by charging tuition and promising a superior education, private schools in effect enter into a contract with parents.

In higher education, the courts are beginning to recognize as legitimate such contract claims, he said.

Did School Fail?

In the lawsuit, Mr. Rich argues that when his son was finally told not to return to Kentucky Country Day after his grades in his sophomore year did not improve, it was the school that had failed.

"If they're the education specialists that they say they are, if they are qualified to receive the types of tuition and fees that they receive," Mr. Rich said in a deposition, "they should have the ability to recognize that a problem other than just laziness and irresponsibility exists."

In court documents, Mr. Rich said he was seeking the refund of tuition for the years before his son's learning disability was discovered because he chose the school as an investment in his son's future.

The suit also charges that teachers and administrators publicly ridiculed the boy's lack of achievement.

In court documents, Thomas G. Monaco, director of Kentucy Country Day's upper school, said any remarks were made to motivate the boy. He said in court depositions that he was not convinced that John Rich has a learning disability.

The Riches' conflicts with the school began in 1986, when John was in the 9th grade, the court papers state. Administrators told his father that his grades were too low and that, in consequence, he would not be allowed to return for the 10th grade.

Mr. Rich asked that his son be given another chance, he told the court. He hired tutors, sent the boy to a summer remedial program, and had him evaluated by a psychologist. The psychologist briefly prescribed the drug Ritalin, a stimulant, intended to increase the boy's attention span.

Many children who have attention-deficit disorder are intelligent, but their performance does not match their potential, educational psychologists say. According to the court documents, John Rich's i.q. is 135.

School administrators told the court that they drew up a tutoring program for the boy, and that teachers were available to work with him. His grades improved but not enough to satisfy the school's requirements, the administrators said.

John Rich transferred to Trinity High School, a Catholic school where he is now a senior. He said in depositions that his new teachers know about his learning disability and have not labeled him a lazy student. He is taking courses to improve his reading comprehension and writing, he said.

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