Overview
The current literature in public school law
contains several articles dealing with the possibility of a new
wave of educational malpractice emerging in the future.
DeMitchell and DeMitchell (2003) Is this prediction an accurate
one? The purpose of this month’s commentary is to explore the
possibility of parents, on behalf of their children, bringing a
failure to learn/academic damages tort action against
public school officials. In the today’s environment of student
academic testing and professional accountability, on what
foundation would they build such a claim? What are the
implications for educational policy?
Step one of this month’s commentary briefly
summarizes, extends, and connects two of last year’s
commentaries (educational malpractice and teacher
evaluation). Next, the discussion looks at the impact of:
(1) Debra P. v Turlington (1984), (2) educational finance
litigation post-Rodriguez (1973), and (3) No Child
Left Behind Act (NCLB) 2001 which, when linked
together with issues of educational malpractice and teacher
evaluation and performance assessment, may indicate a foundation
upon which future parents might build a failure to
learn/academic damages claim.
Educational Malpractice. In November
of 2003, my commentary focused on a discussion of educational
malpractice. “Educational Malpractice and Academic Damages” (November,
2003) The central purpose of the piece was threefold. First, to
show that the current boundaries of administrator/teacher
liability are broader than ever before, as promotion from grade
to grade and receipt of a high school diploma are contingent on
a student passing a statewide academic competency test. Second,
to demonstrate how accountability for student academic
progress, performance, and achievement now functions as a major
criterion in evaluating the professional productivity of
administrators and classroom teachers (see, e.g., the
Code of Virginia 22.1-292 [2003]). Third, to propose that future
administrators and classroom teachers might be subject to court
action if students fail to learn what the state requires them to
learn, as evidenced by poor performance on statewide academic
tests and/or the entire school loses its accreditation. Based on
my research I concluded that while plaintiff parents in 1970’s
malpractice cases (e.g., Peter W. [1976],
Donohue [1979]) failed because of the absence of a legally
cognizable and enforceable “right of general education students
to an appropriate education,” a new brand of educational
malpractice claim (argued on a failure to learn/academic
damages negligent tort theory), might be possible.
Teacher Evaluation. In December of
2003, a related commentary entitled “Teacher Evaluation
2004” concluded that today’s public school students must
be exposed only to classroom teachers who are both highly
qualified (i.e., academically prepared, fully
certified, and endorsed in their subject field), and
competent (i.e., demonstrate a sustained record of
effective classroom performance). As such, the need to retain
quality classroom teachers and to remove those who
are not is of utmost importance to every public school
system in this nation. To be successful in this endeavor, I
stated, local school boards must have in place and consistently
implement a continuous process of teacher evaluation (i.e.,
performance assessment). In my opinion, if this goal is
not accomplished it adds one more opportunity for parents of
students who have failed statewide academic competency tests
and/or have failed end of course examinations to successfully
argue a failure to learn/academic damages tort action.
Debra P. and Procedural Due Process.
It is well established that public school students possess both
liberty and property interests in their education; and, that
these interests fall under the protection of the Fourteenth
Amendment’s due process guarantee. Goss v Lopez (1975) In
Debra P. v Turlington (1984), the United States Court of
Appeals for the Eleventh Circuit applied procedural due process
to students required to take and pass statewide competency
tests. To treat all students fairly and successfully avoid legal
difficulties, the following elements of due process must be
present: (1) adequate and timely notice of [a] what
students are required to learn (some courts have specified 2 to
5 years as adequate notice), [b] the fact that they will be
tested on that material, and [c] when they will be tested on the
material; (2) opportunities to remediate deficiencies;
and (3) opportunities for parents on behalf of their kids
and students themselves to discuss test results.
Public School Finance Post-Rodriguez
(1973). In the 1980’s and 1990’s state courts were busy
hearing challenges to state public school finance systems.
Scott v Commonwealth (1994) In these cases judges
applied the following standard: a determination was made as to:
(1) whether or not a student has a “right to education” under
the state’s constitution, (2) the meaning of the specific
language of the state constitution’s education clause (e.g.,
“thorough and efficient education,” “an efficient system to
achieve a general diffusion of knowledge,” “a sound basic
education,” “a high quality education,” etc.), (3) the magnitude
of a state’s constitutional duty to implement and support
education of all children of school age, and (4) whether or not
the state is meeting its obligation. Dayton (1992) This
triggered an overall shift in state legislative policy toward
establishing minimal standards to achieve “adequacy of
educational opportunity for all children,” and to measure
“outputs and not inputs.” It was during this period that state
legislatures worked to set in place statewide student academic
standards, and to mandate statewide testing programs to measure
the effectiveness of these standards. The overall intent in the
states was to guarantee that all students of school age
throughout the state receive some “benefit for their educational
opportunities.” Vacca and Bosher (2003)
Implementation of NCLB. A very
comprehensive (700 pages) and time-consuming federal education
statute, NCLB has had a major impact on professional
accountability both at the state level and in local public
school systems. Briefly summarized and generally stated the
results of NCLB implementation likely to have an impact
on producing future failure to learn/academic damages claims
are:
·
Consistent reliance on statewide student and local
student academic progress and achievement data to make
day-to-day administrative decisions and long-range budgetary and
policy decisions.
·
Sustained use of student test data-driven
decision-making, especially at individual school building and
classroom levels.
·
Emphasis on narrowing achievement gaps in
specified student groups.
·
Required use of student test data (separated into
identified subgroups) to demonstrate and track “adequate yearly
progress.”
·
Use of individual school and classroom level
student test data to evaluate what each student knows (including
a determination of when, where, and how a student has learned)
in an effort to conclude whether or not each student has
actually received “an educational benefit.”
·
Use of test data to eliminate the practice of
“social promotion” of students where it still exists.
·
Use of disaggregated student data to change
classroom-teaching methodologies and to require the sole use of
effective and proven teaching methodologies.
·
Use of student test data to individualize student
learning (i.e., teach students at his/her learning level
and conducive to their learning style) to improve the academic
achievement of every student.
·
Use of student test data to refocus training and
retraining of teachers to be “more effective and efficient’ with
each student.
·
Use of student progress and achievement data to
create “optimal teaching conditions” in every classroom.
·
Reassignment of more qualified, experienced,
effective, administrators, classroom teachers, and other staff
members to “failing schools” in an effort to improve the
educational opportunities of students in those schools and to
raise levels of achievement.
·
Use of student test data as a major criterion in
removing administrators, classroom teachers, and other staff
members whose performance is consistently substandard.
·
Training and assignment of “school turn around
specialists” to school buildings where student academic progress
and achievement are judged as consistently substandard.
·
Use of student test data to create and implement
individualized student enrichment programs.
·
Use of student test data to create and implement
individualized student remedial programs.
·
Holding school administrators, classroom teachers,
and other staff members directly accountable for student
progress and achievement.
·
Elimination of tenure status and the
implementation of performance contracts (3 to 5 years in
duration) for all administrators and teachers.
·
Rewarding school administrators, classroom
teachers, and other staff members for student progress and
achievement.
·
Use of school system and individual school report
cards to keep parents and the community fully informed regarding
student test data, number of qualified administrators and
teachers, student disciplinary statistics, and other such data.
·
Reexamination of state funding levels and local
school system budgetary priorities in an effort to provide
educational benefits to all children of school age (including
homeless children).
Policy Implications
In my professional opinion, the information
presented above demonstrates that the potential does exist for
parents and students to build a foundation for a failure to
learn/academic damages claim. The elements to build such
a claim seem to be in place. At the same time, however, state
law and policy-makers and local school officials have been and
are moving forward on a very positive path toward: (1) providing
equal access to meaningful and measurable educational
opportunities and benefits for all children of school age, and
(2) establishing and enforcing accountability (with enforceable
consequences) of local school boards, superintendents,
principals, classroom teachers, and other staff members for
student academic achievement. As the recently published results
of the Commonwealth Education Poll here in Virginia
showed, popular support for the statewide Standards of
Learning (SOL’s) test program has continued to increase.
Thus, to demonstrate a resolve to “stay the
course,” the following suggestions are made for consideration of
possible inclusion in clearly worded local school system policy:
·
As an integral part of the school system’s
curriculum, all students will be taught what the state requires
students to learn (i.e., the material upon which all
students ultimately will be tested.)
·
Classroom teachers are expected to use student
test data to construct, plan, and implement lesson plans.
·
Administrators, teachers, and other staff members
are expected to strive to accommodate the diverse social and
educational needs of each student.
·
All administrators, classroom teachers, and other
staff members are subject to a formal, consistently applied, and
data-driven system of professional evaluation, performance
appraisal, and employee productivity.
·
Student test data will function as a major
criterion for evaluating the productivity of all administrators
and classroom teachers.
·
All students will be held directly accountable for
their academic progress as shown by individual test results.
·
Remediation and enrichment programs will be
implemented and open to all students.
·
All administrators, classroom teachers, and other
staff members will be held directly accountable for student
academic progress and achievement.
·
Student academic test data (both progress and
achievement) will be factored into all employment decisions.
·
The school board intends to hire, place, retain,
and reward administrators, classroom teachers, and other staff
members who are both highly qualified and competent in their
professional specialties.
·
The school board reserves the right to assign and
reassign all administrators, classroom teachers, and other staff
members to schools and positions in individual schools for which
they are qualified and where their particular skills and
abilities are needed.
·
All parents (as well as the community at large)
will be kept fully informed of student academic progress and
achievement.
One final thought is in order. The threat
of possible future litigation is not a reason to change course
from a direction that is improving educational opportunities for
all children.
Resources Cited
Code of Virginia (2003 Cumulative
Supplement) 22.1-292
Commonwealth Education Poll (VCU Center for
Public Policy, 2004)
Dayton, John, An Anatomy of School
Finance Litigation, Educ. Law Rptr. (December 3, 1992)
Debra P. v Turlington, 730 F.2d 1404 (11th
Cir. 1984)
DeMitchell, Todd and DeMitchell, Terri,
Statutes and Standards: Has the Door to Educational
Malpractice Opened? 2003 B.Y.U. Education and Law Journal
485 (2003)
Donohue v Copiaque Union Free School
District, 391 N.E.2d 1352 (N.Y. 1979)
Goss v Lopez, 419 U.S. 565 (1975)
No Child Left Behind Act 2001 (NCLB)
Peter W. v San Francisco, 131 Cal Rptr. 854
(Cal. App. 1976)
San Antonio I.S.D. v Rodriguez, 411 U.S. 1
(1973)
Scott v Commonwealth, 443 S.E.2d 138 (Va.
1994)
Vacca, Richard S., “Educational
Malpractice,” CEPI Education Law Newsletter (November, 2003)
_______________, “Teacher Evaluation,” CEPI
Education Law Newsletter (December 2003)
_______________, and William C. Bosher,
Jr., LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS,
Sixth Edition (LexisNexis, 2003)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
