Nearly 50 years ago a California court heard a complaint from a recent high school graduate who alleged that he could not read at a level that would allow him to apply for, let alone hold, a meaningful job. He asserted that the public school district was negligent and that his prospects for a productive life were diminished by their negligence. The court disagreed and educational malpractice was cast outside the schoolhouse gate and an educational malpractice wall was erected.
In sum, both federal and state courts have constructed a sturdy wall against the recognition of educational malpractice lawsuits. However, recent advances in research on instruction, statistical analyses that some have argued can identify substandard teaching, may have cracked the wall. Thus, confluence of events may lead to demolishing the educational malpractice wall constructed over the past half century.
The authors of Raising a Cautionary Flag: Educational Malpractice and the Professional Teacher, explore the judicial reticence to recognize educational malpractice as a viable tort of negligence. They review the concept of what constitutes a professional, what is malpractice and how is it related to the professional malpractice of physicians and attorneys, and the potential responses to education malpractice. They conclude by raising a cautionary flag about breaching the judicial wall.
Todd A. DeMitchell served as a teacher, principal, and superintendent for 18 years in the public schools before joining the faculty at the University of New Hampshire where he is currently Professor Emeritus of Education Law & Labor. He was the John & H. Irene Peters Endowed Professor of Education, the Lamberton Endowed Professor of Justice Studies, and was named Distinguished University Professor.
Richard Fossey is professor emeritus at the University of Louisiana at Lafayette, where he was the Paul Burdin Endowed Professor of Education; currently he is Professor Emeritus of Education Law & Policy. Previously, he was the Mike Moses Chair of Education at the University of North Texas and he practiced school law in Alaska where he represented school districts in Aleut, Athabaskan, and Inuit communities.
Terri A. DeMitchell is a former elementary school teacher, school law attorney (California), and university instructor in literacy. She is the author of award-winning historical novels and mysteries for young adult and middle grade readers and regularly publishes papers on legal issues affecting the teaching profession.
Chapter 1: Introduction: The Teacher and Educational Malpractice: A Paradox and a
Chapter 2: The Paradox of the Teacher as a Professional and Education as a Profession
Chapter 3: Malpractice a Tort of Negligence
Chapter 4: The Early Educational Malpractice Suits: A Failed Tort
Chapter 5: Higher Education Malpractice and Breach of Contract in the Time of the Pandemic
Chapter 6: Are Cracks Forming in the Educational Malpractice Wall? Viability, Gag Orders, and VAM
Chapter 7: Raising a Cautionary Flag in Response to Viable Educational
Appendix A: Table of Cases
About The Authors
Raising a Cautionary Flag: Educational Malpractice and the Professional Teacher addresses a very timely topic, especially in light of the pandemic and the current political environment’s impact on educators. The authors skillfully and comprehensively explore all aspects of the tort of negligence and whether educators eventually may be vulnerable to malpractice claims. This book is a must read for both practitioners and legal scholars who will be enlightened by this thoughtful treatise.
Raising a Cautionary Flag is incredibly written – and timely-- book that explores an important law and policy question: can, or should, educators be held liable to a negligence claim akin to other professions, like attorneys, or doctors? DeMitchell, Fossey and DeMitchell address the matter with their customary exhaustive research and weave their analysis with all the relevant literature in law and education policy. What is more, the authors deftly craft a text accessible to the array of constituencies who should be interested in the topic, including administrators, parents, and school law attorneys. Before stakeholders form an opinion on the issue of educator malpractice, or more significantly try to influence policy or law, they should first read this book.
This book is a must read for anyone interested in the legal landscape involving educational malpractice. The authors, who are well-respected education law scholars, examine the many legal issues in both K-12 and higher education involving education malpractice. The book covers important dilemmas related to what might constitute educational malpractice and how courts respond to students who sued universities that pivoted to online instruction during the pandemic.