April 22, 2009

Educational Malpractice - Who Do We Punish and How?

Not a single case for punitive damages involving malpractice of educators against children in their care has ever been successful. The closest one involved the Ridgewood, New Jersey school district. The Third Circuit remanded it back to the District Court in the 1990s and a secret settlement ended the case. I’ve been interested in this issue since 1982, revisiting it now as child after child sees me each week in some capacity- for tutoring, intervention, social skills groups, a jam session, a surprise knock on the door, often with a goodie in hand and the request to “just hang with you.” We’ve become generic grandparents for children who seem to adopt us. Yesterday, a single mother pleaded with us to “Just take him”, “Adopt him”, “Help me. I can’t do this anymore.” The education system is out of control and seemingly oblivious to the children they have abandoned. Who should be punished? Teachers are already low man on the power totem. They largely do what they are told and usually cannot be held responsible. But it is different for others with specific clinical and legal responsibilities. If a child study team or a chief school administrator could be jailed, ruined for life, for some of the ills they cause children and their families, it would send the signal that the punishment must fit the crime. But that necessary retribution is a long way off. Think Bernard Madoff.

Getting older has not made me nicer. I want to hurt some of these people. Badly. Friday is a meeting for the boy who came to us as emotionally disturbed- when the problem was that he could not read a word and did not know the alphabet at 10 years old. There is no possible way school staff does not know this. How do I sit there and listen to the child study team make recommendations for his behavior when the kid is completely illiterate. If this was five years ago, I’d have them in a hearing so fast they wouldn’t know what hit them. I have at least 10 other kids in variations of this situation. But schools aren’t afraid of anything or anybody. Due process is a vacation for them. They giggle and socialize and get a day off plus a free show. They deserve to contemplate their navel behind bars as Big John (or Big Jane) walks up behind them. All of these mothers are overwhelmed and won’t consider suing. If they did, no attorney would take their cases pro bono. Why isn’t the denial of an education considered to be malpractice in the same way that doctors can be sued for negligence? Who is personally responsible? Who takes the hit? Money is the only thing professionals understand. So they should be forced to fork it over and be deprived of their freedom for a while, as reminders of how it feels to be powerless, poor, and unable to read their name or the road sign from the prison door to home.

I discovered Educational Malpractice while taking law courses at Teachers College with Professor Edmund Reutter in the early 1980s. Under his mentorship, I learned how to use the law library, write briefs and put together legal arguments. Knee deep in due process cases, as well as New Jersey politics at the time, I treasured his accessibility and interest. The result was a paper on Educational Malpractice and special education that continues to be requested even today. The components of malpractice were:

1. Duty-of-care. This means that there is a legally sanctioned obligation owed by one person to another. The breach of that obligation results in the liability of the actor who owes a duty of care that requires him to conduct himself so as to avoid negligent injury to the other person.
2. Proximate cause. (This is the hardest one to prove.) Whoever brings the case must be able to prove an unbroken line between the injury and the negligence of the professional. No independent cause can intervene that could cause the injury.
3. Foreseeability. The professional should be able to foresee the harm of his/her actions as measured by standards of reasonableness and prudence. If the child can learn to read but I choose not to teach him in a way he/she can learn, are my actions reasonable? No! Book ‘em, throw ‘em in jail, and throw away the keys.
4. Injury- A person is injured if any wrong or damage is done to him by another in either his person, rights, representation, or property. Special education is considered to be a form of property. Having no representation has always seemed to me to be an injury causing damage and harm to a child and his rights. So educational malpractice would also include the failure of states to have competent attorneys representing injured children, as well as the miserable way many judges handle pro se special education cases.

Two common themes in educational malpractice are money damages and special education. When money damages were requested, courts dismissed the cases. That is still true. I suggested in 1982 and continue to believe today, that if a properly designed educational malpractice case were developed, it could be successful. The five components would be:

1. A gross violation of public policy. (I think we can stop right there and go for summary judgment!)
2. Lack of access to the Department of Education for procedural due process. When a department of education relies exclusively upon the state and federal courts to enforce special education laws, educational decisions and punishments become the province of juries in tort cases and are no longer seen as purely educational in nature.
3. Someone other than the Commissioner of Education is the final arbiter of educational disputes.
4. Forcing parents and children into a court system without providing representation.
5. Having a systemic problem in which harm has flowed from negligence in the duty of care of special educators, resulting in foreseeable injury, thereby making the education agency the proximate case of the injury.

Here is a link to my 1982 paper. Please somebody. Use it. Where is that attorney, where is that firm that will do the impolitic and take this cause on?