MALPRACTICE IN EDUCATION: A LEGAL STUDY

Purpose of the Study. Malpractice in education is a topic of vital interest to educators, students, parents, and the community at large. Outcomes of malpractice court cases in education have great potential for shaping the future of education. It was the purpose of this study to build a hierarchy of negligence cases in education.; Procedures. Research procedures were divided into general library and law library searches. General library procedures entailed utilizing resources such as the Education Index, the card catalogue, and the ERIC and DATRIX computer search services.; Legal research involved search sources such as the legal encyclopedias, the National Reporter System, the various law reviews, NOLPE materials, and the legal dictionaries.; Results of the Investigation. The doctrine of sovereign immunity acted as a bar to litigation charging school systems with negligence for many years. This doctrine has eroded considerably as a result of legislative and judicial action. Such action opened the way for negligence litigation in education.; The earliest cases charging negligence dealt with the failure of school systems to provide a safe place. Courts have found a duty of care leading from the school to the student in this area. Failure to adhere to that duty, with the resulting physical injury, led to judicial findings of negligence and damage awards. School systems were also held liable for maintenance of a nuisance or hazard.; A duty of care exists in the area of supervision, the next level of the hierarchy. If an injury is proximately caused through violation of the duty to adequately supervise, the courts will show little reluctance in finding negligence and awarding damages.; In litigation concerning counseling and testing procedures, the third level of the hierarchy, courts have required school systems to develop tests to be used with bilingual, bicultural students; to refrain from using testing as a device for tracking students permanently; and to provide properly trained personnel to conduct testing programs. The enactment of PL 94-142 has already had a great affect on this area.; Schools have been held liable for failure to instruct in the proper safety techniques in science labs, shop classes, and physical education classes. Judicial decisions in this level of the hierarchy required that the age and ability of the students, as well as the degree of difficulty of the task, be considered before activities are assigned.; The last level of the hierarchy dealt with litigation charging academic malpractice: failure to instruct in the basic skills. The cases are few in number, and none have been successful. Among the reasons stated by the courts for dismissing these claims are: the courtroom is not the proper forum for evaluating such claims; fear of a "flood of litigation should the claim be recognized; the difficulty of showing a causal connection between the school's failure to teach and the student's failure to learn; and the lack of standards against which to measure alleged negligence.; Conclusions. Educators must be aware of their tort liability for their negligent acts and/or omissions that are the proximate cause of injury to their students. The possibility of being held liable in the very near future for academic negligence is quite real and should receive much coverage. Identification and remediation of those practices which could lead to a charge of malpractice is of great importance. Standards for the profession, especially in the area of instructional practices, must be developed by educators before the courts assume this responsibility.; Malpractice in education is still a viable issue, despite its apparent lack of success. The temper of the courts may soon change; there is truth in the old adage: "to be forewarned is to be forearmed."...