Educational malpractice is a tort cause of action. Essentially, a claim of educational malpractice asserts that educational institutions and their employees breached their duty to educate plaintiffs adequately. Although educational malpractice has been the subject of much scholarly commentary (see, for example, DeMitchell & DeMitchell, 2003), it has been almost universally rejected by the judiciary. As one federal court observed, the theory is “beloved by commentators, but not the courts” (Ross v. Creighton University, 1990, p. 1327). On the whole, courts have rejected causes of action for educational malpractice against colleges and universities. However, courts have recognized charges of breach of contract against educational institutions when plaintiffs demonstrate that educational institutions failed to carry out specific promises. In light of the legal concerns arising under educational malpractice, this entry gives an overview of judicial reasoning on educational malpractice, briefly discusses the influence of malpractice claims in elementary and secondary education, and then examines the application of this tort to colleges and universities.
Reasons for Judicial Rejection of Educational Malpractice Claims
Courts generally reject educational malpractice claims for one of three reasons. First, it is very difficult to define the duty to educate, a necessary predicate for pursuing a cause of action. In general, the courts have not recognized claims of malpractice that rest on an assertion of the general inadequacy in educational programs, although they have recognized charges for breach of contract against educational institutions when claims are pleaded with particularity. Second, causation is also difficult to determine. In fact, it is almost impossible to identify all of the reasons why students fail to achieve specified levels of education; the causes could be “physical, neurological, emotional, cultural [or] environmental (Peter W. v. San Francisco Unified School District, 1976, p. 861). Further, the persons responsible for the failure to educate could include teachers, parents, or students themselves. Thus, the courts have acknowledged the difficulty of determining whether officials or other parties, including the students, may have caused the bad educational outcomes. Third, some courts have indicated a strong reluctance to insert themselves into such a contentious issue of public policy as the quality of education. The courts almost universally express strong public policy concerns as a basis for rejecting causes of action for educational malpractice against colleges and universities. The judiciary has also expressed the fear that recognizing a cause of action for educational malpractice would open a floodgate of litigation, particularly at the level of primary and secondary schools, but also in higher education.
Educational Malpractice Claims Against Public Schools
Although numerous cases have been decided in the context of elementary and secondary education, two leading suits that have been influential in setting a strong judicial trend against recognizing a cause of action for educational malpractice in higher education are worth reviewing.
In Peter W. v. San Francisco Unified School District (1976), a high school graduate sued his school board for failing to educate him properly during the 12 years he attended its schools. The student claimed, for example, that he could only read at the fifth-grade level and was unqualified for any kind of skilled job that required an ability to read and write.
An appellate court in California affirmed the rejection of the student’s educational malpractice claim, finding it almost impossible to articulate a standard of care for the purpose of defining the school board’s duty to educate. “Unlike the activity of the highway or the marketplace,” the court observed, “classroom methodology affords no readily acceptable standards of care, or cause, [or] injury” (p. 860). The court also acknowledged its strong reluctance to recognize a tort that would have exposed school boards to massive litigation. The court thought that holding boards to an actionable duty of care would have exposed them to suits from “disaffected students and parents in countless numbers” (p. 861). Moreover, the court rejected the plaintiff’s claims for fraud and intentional misrepresentation.
Likewise, in Donohue v. Copiague Union Free School District (1979), New York’s highest court rejected the tort of educational malpractice on public policy grounds. While the court was confident that a workable standard of care could have been established for educational malpractice, it feared that recognizing such a cause of action “would constitute blatant interference with the responsibility for the administration of the public school system lodged by Constitution and statute in school administrative agencies” (p. 1354).
Educational Malpractice Claims Against Colleges and Universities
Plaintiffs have filed suits for educational malpractice against colleges and universities with little success. Perhaps the leading case on the topic is Ross v. Creighton University (1992), a decision of the Seventh Circuit.
Ross v. Creighton University
In Ross, a high school student with an “academically disadvantaged background” accepted an athletic scholarship to study at Creighton University and to play on its varsity basketball team. Although he studied at the university from 1978 until 1982, he left there with the language skills of a fourth grader and the reading skills of a seventh grader. Creighton paid for a year of remedial education at a school in Chicago, where he attended classes with grade school students. Ross then attended a university in Chicago, but he was forced to withdraw for financial reasons.
Ross sued Creighton for educational malpractice, negligent admission, and negligent infliction of emotional distress. The plaintiff also claimed that Creighton officials breached their contract to provide him with meaningful educational opportunities in exchange for his promise to play varsity basketball for the university. After a federal trial court dismissed his suit, Ross appealed.
Citing a host of precedents from other jurisdictions, including Peter W. and Donohue, the Seventh Circuit reasoned that the state of Illinois, where Ross brought suit, would reject a cause of action for educational malpractice. The court cited problems with defining a standard of care and determining causation, expressing major public policy concerns about recognizing a tort that would embroil the judiciary in the day-to-day operational actions of educational institutions. This last concern was particularly troubling in the university setting, because the court pointed out that “it necessarily implicates considerations of academic freedom and autonomy” (p. 415). Similarly, the court rejected Ross’s negligent admission claim, in which he argued that university officials had a duty to admit only students who were reasonably qualified and able to perform academically. The court saw serious public policy problems with recognizing a tort for negligent admission.
The Seventh Circuit next rejected Ross’s claim for negligent infliction of emotional distress. Because it had already refused to recognize a cause of action for negligent conduct, the court maintained that the claim for negligent infliction of emotional distress must be dismissed as well.
Turning to Ross’s breach of contract charge, the court observed that he could not repackage his educational malpractice claim as one for breach of contract if he was simply attacking the university’s general quality of education. However, the court decided that Ross had alleged a violation of a specific promise to provide specified academic services to him so that he could participate in a meaningful way in the university’s academic program. Accordingly, the Seventh Circuit ruled that Ross’s “specific and narrow claim that he was barred from any participation in and benefit from the University’s academic program” could be resolved by the trial court “without second-guessing the professional judgment of the University faculty on academic matters” (p. 417). The court thus remanded the breach of contract claim to the trial court for further adjudication.
Other Educational Malpractice Suits Against Colleges and Universities
In addition to Ross, other plaintiffs filed educational malpractice suits against colleges and universities with courts dismissing virtually all of the claims. For instance, at issue in Blane v. Alabama Commercial College (1991) was an educational loan that a woman took out to enroll in a computer and clerical course at a for-profit business college. The woman charged that college officials offered a course to provide her with the skills she would need to compete in the computer and clerical job market but that after completing the course, she was unable to find employment in those fields. In her suit, the woman sued the college for fraud, breach of contract, and educational malpractice. Affirming an earlier dismissal of the claims, the Supreme Court of Alabama agreed that because there was no evidence that college officials guaranteed her a job, the woman could not file suit for fraud or breach of contract. As for her educational malpractice claim, the court refused to recognize such a cause of action.
In Hendricks v. Clemson University (2003), the Supreme Court of South Carolina refused to recognize a negligence claim that a former student filed against his university for erroneous advice that he received from an academic advisor. As a result of the advisor’s mistake, the student was unable to obtain NCAA eligibility to play varsity baseball. The court declined to recognize a duty of care flowing from academic advisors to students, citing educational malpractice cases from other jurisdictions (including Peter W. and Ross).
Previously, the Supreme Court of Kansas rejected claims by former students against their university for allegedly violating state consumer protection law by falsely stating in its catalog that its court reporting program was accredited. In addition, the plaintiffs brought claims against the university for the allegedly poor quality of the court reporting program. In rejecting both claims, the court decided that there was no evidence that the plaintiffs relied on the university’s inaccurate statement about the court reporting program’s accreditation status (Finstad v. Washburn University of Topeka, 1993). As for the claims that the program was inadequately conducted and supervised, the court characterized the allegations as educational malpractice, a cause of action that it refused to recognize.
In Miller v. Loyola University of New Orleans (2002), a law student sued a university for negligence and breach of contract based on the manner in which a faculty member taught a course. The student charged that the instructor failed to order course materials in a timely manner, that she changed the course time without the permission of law school officials, that she had students make class presentations on subjects she was obligated to teach, that she gave a final examination that consisted partly of materials from the National Conference of Bar Examiners, and that her original questions contained errors. After law school officials looked into the allegations, concluding that at least some of them had merit, the student filed suit, seeking to recover the cost of taking the course and reimbursement for the cost of taking the course a second time from a different instructor. An appellate court affirmed the rejection of all of the student’s claims, declaring flatly that “Louisiana law does not recognize a cause of action for educational malpractice under contract or tort law” (p. 1061). The court also rejected the claim against the university for unjust enrichment and the claim of detrimental reliance.
Other courts have rejected educational malpractice claims regardless of whether they were filed as breach of contract or tort actions. Even so, in this regard, courts have shown themselves willing to entertain breach of contract actions against educational institutions when students were able to show that the institutions breached specific promises that qualified as contractual obligations. For example, in Till v. Delta School of Commerce (1986), a student successfully sued her for-profit business college after she enrolled based on representations that she would receive a degree in accounting that would have been equivalent to a two-year associate’s degree from a college or university and that the degree would have been transferable to another college or university. Later, the student learned that she would receive a degree in occupational studies, not accounting, and that admission to another college or university was at the option of the transferee school. At some point, the student was dismissed from the school, allegedly for “excessive tardiness and attitude problems” (p. 182).
The student then successfully sued the college for restitution of the tuition she paid. On further review, an appellate court in Louisiana affirmed in favor of the student. The panel was satisfied that the trial record provided a basis for concluding that the student had not received the educational opportunities that led her to enroll at the school. The court added that a degree in occupational studies was not even listed in the school’s catalog at the time the student enrolled.
Educational Malpractice Suit Against an Accrediting Association
Along with suits against colleges, universities, and for-profit vocational schools, at least one educational malpractice action has been filed against an accrediting association. Ambrose v. New England Association of Colleges and Schools (NEACE) (2001) was filed by seven former students against NEACE, the accrediting association for Thomas College, the institution where they obtained associate degrees in “medical assisting.” The plaintiffs enrolled in the medical assisting program expecting it to qualify them for entry-level positions as medical assistants. According to the court, the medical assisting program had no clinical component. Because clinical tasks form a large part of a medical assistant’s job, six of the seven plaintiffs were unable to find employment as medical assistants. The seventh plaintiff obtained a job but lost it due her inadequate knowledge and training.
In their suit, the plaintiffs charged NEACE with fraud, misrepresentation, and deceptive business practices based on the association’s accreditation of the college. On further review of the dismissal of all of the students’ claims, the First Circuit affirmed in favor of the defendants. In essence, the court observed that the misrepresentation claims were for negligent accreditation, a cause of action that it refused to entertain. In the court’s view, there were strong policy arguments against recognizing such a cause of action, including “the lack of a satisfactory standard of care by which to evaluate professional judgments and the patent undesirability of having courts attempt to assess the efficacy of the operations of academic institutions” (p. 499). On just such policy grounds, the panel noted, courts rejected students’ claims of educational malpractice against schools.
See also Catalogs as Contracts
- DeMitchell, Todd A., & DeMitchell, Terri A. (2003). Statutes and standards: Has the door to educational malpractice been opened? Brigham Young University of Education and Law Journal, 2003, 485–518.
- Ambrose v. New England Association of Schools and Colleges, 252 F.3d 488 (1st Cir. 2001).
- Blane v. Alabama Commercial College, 585 So. 2d 866 (Ala. 1991).
- Donohue v. Copiague Union Free School District, 391 N.E.2d 1352 (N.Y. 1979).
- Finstad v. Washburn University of Topeka, 845 P.2d 685 (Kan. 1993).
- Hendricks v. Clemson University, 578 S.E.2d 711 (S.C. 2003).
- Miller v. Loyola University of New Orleans, 829 So. 2d 1057 (La. Ct. App. 2002).
- Peter W. v. San Francisco Unified School District, 131 Cal. Rptr. 854 (Cal. Ct. App. 1976).
- Ross v. Creighton University, 740 F. Supp. 1319 (N.D. Ill. 1990), aff’d, 957 F.2d 410 (7th Cir. 1992).
- Till v. Delta School of Commerce, 487 So. 2d 180 (La. Ct. App. 1986).