Document Type
Article
Publication Title
Marquette Law Review
Publication Date
1996
Volume
80:1
First Page
1
Abstract
(Excerpt)
Imagine that you are eighteen and you have just graduated from high school. Even though you have no cognitive disability and have spent twelve years of your life attending public schools, you are functionally illiterate. If your predicament was caused by negligent educators, your action for educational malpractice would be called a "failure to educate" case and it would be denied.
Or, imagine that you enter a public school kindergarten class and you are examined by the school's psychologist. On the basis of a verbal intelligence test, the psychologist concludes that you are mentally retarded. In reality, you have an obvious speech defect. The psychologist recommends that you be placed in a class for the mentally retarded. It is difficult to determine your mental ability because your speech defect makes verbal communication difficult. Therefore, the psychologist recommends that your intelligence be re-evaluated within two years. Your educators ignore two achievement tests indicating that you have a higher than average potential for learning. You spend twelve years in classes for the mentally retarded. After twelve years have passed, you are given a second intelligence test that indicates that you have an IQ of 94. You are not retarded. If you brought an action for educational malpractice, it would be called a misclassification case and it would be denied.
The facts described in the two preceding paragraphs are taken from Peter W. v. San Francisco Unified School District, a failure to educate case, and Hoffman v. Board of Education of the City of New York, a misclassification case. The courts that decided these two seminal cases on educational malpractice concluded that educators do not owe their students a duty of care when instructing, evaluating, and placing them.
Approximately two decades have passed since these cases were decided. Although much has changed in these two decades, much has remained the same. Students continue to suffer mental and emotional harm caused by the tortious conduct of their educators. Educators still owe no duty of care to their students for harm that is not physical. If Chief Justice Warren was correct when he wrote in Brown v. Board of Education that education is "required in the performance of our most basic public responsibilities," we must acknowledge the relationship between inadequate schools and children who are unable to become good citizens.
Comments
Available at: https://scholarship.law.marquette.edu/mulr/vol80/iss1/3/