Suing schools for negligent science education?

Posted 17 December 2004 by Timothy Sandefur

↗ The current version of this post is on the live site: https://pandasthumb.org/archives/2004/12/suing-schools-f.html

In a comment regarding the Dover school board case, Grand Moff Texan asks,

Isn't teaching bad science as science an act of fraud?

Couldn't parents sue a public institution for willfully damaging their children's education?

Oh, how I wish. I've long said it's one of my dreams in life to be the first attorney to successfully sue a government school teacher for malpractice. Alas, it can't be done.

First, keep in mind that malpractice is different from fraud. I'll get to fraud in a minute. Malpractice means, falling below the appropriate level of care for a profession. The reason courts don't allow such lawsuits is, in part, because nobody knows what the "level of care" is for teachers. In Peter W. v. San Francisco Unified Sch. Dist., 60 Cal.App.3d 814 (1976), a high school graduate sued his school district on the grounds that they negligently and intentionally deprived him of basic academic skills. The court rejected this, on the grounds that "[t]here is a special relationship between students and teachers which supports [the teachers'] duty to exercise reasonable care.'" Id. at 820. (Peter W. is a California case, and I can only speak for California law on this subject, but I'm confident the rules are the same everywhere.)

But what is this "reasonable care" that the teachers must exercise? Does it include a quality education? The Court of Appeal found

in this situation no conceivable "workability of a rule of care" against which defendants' alleged conduct may be measured, no reasonable "degree of certainty that...plaintiff suffered injury" within the meaning of the law of negligence, and no such perceptible "connection between the defendant's conduct and the injury suffered," as alleged, which would establish a causal link between them within the same meaning.

Id. at 825 (citations omitted). I find this revolting to common sense. A teacher's standard of care is, obviously, to instruct students with some reasonable degree of success, as measured by objective testing standards. There is most assuredly a degree of certainty that students suffer from incompetent teachers, and there is an obvious causal link between the incompetency of teachers and their employers and the failures of their victim students.

But the Court went on with its policy explanation that it would just burden government schools too much to allow such lawsuits:

policy considerations alone negate an actionable "duty of care" in persons and agencies who administer the academic phases of the public educational process.... Few of our institutions, if any, have aroused the controversies, or incurred the public dissatisfaction, which have attended the operation of the public schools.... Rightly or wrongly, but widely, they are charged with outright failure in the achievement of their educational objectives; according to some critics, they bear responsibility for many of the social and moral problems of our society at large. Their public plight in these respects is attested in the daily media, in bitter governing board elections, in wholesale rejections of school bond proposals, and in survey upon survey. To hold them to an actionable "duty of care," in the discharge of their academic functions, would expose them to the tort claims--real or imagined--of disaffected students and parents in countless numbers. They are already beset by social and financial problems which have gone to major litigation, but for which no permanent solution has yet appeared. The ultimate consequences, in terms of public time and money, would burden them--and society--beyond calculation.

Upon consideration of the role imposed upon the public schools by law and the limitations imposed upon them by their publicly-supported budgets, and of the just-cited "consequences to the community of imposing (upon them) a duty to exercise care with resulting liability for breach," we find no such "duty...."

Id. at 825.

Pause for a moment to admire the stunning illogic of this conclusion. Because government schooling is so bad, and dissatisfies such a gigantic amount of people, as represented in "survey upon survey," it therefore follows that they cannot be held liable for their faults! Imagine this being said of a private company--an auto maker, or a toy manufacturer, produces products that are so extremely bad that they are charged in survey after survey with massive social problems; their quality is so poor that they are regarded with contempt by every social stratum--therefore the auto maker or the toy maker cannot be held liable for their wrongs? Because it would be too expensive to do so? Such a conclusion would be rejected as utterly ridiculous if advanced by a private enterprise; why should the rules be any different for a government-run enterprise? As Milton said, necessity is the tyrant's plea. The rationale for government immunity here (as in so many other contexts), if extended logically, would abolish all tort law.

I believe that government teachers hold themselves out to the public as being competent to teach students, and that when they fail to do so, they ought to be held liable for failing to do what they have promised. The fact that they are from the government--and are therefore paid even when they fail utterly to even approach doing their job competently--should not shield them from liability. Unfortunately, this remains the law, at least in California. For more, see Todd A. DeMitchell and Terri A. DeMitchell, Statutes And Standards: Has The Door to Educational Malpractice Been Opened?, 2003 B.Y.U. Educ. & L.J. 485.

Now, as to fraud. Fraud is extraordinarily difficult to prove: it requires the plaintiff to show that the defendant knew the information was false, intentionally conveyed the information, did so in order to induce reliance on that information, and then that the plaintiff was harmed by that reliance. This is very difficult to establish in court.

I know of no case alleging fraud in an educational context--of course, such an allegation would be barred by the Peter W. case--but in Brown v. Compton Unified School Dist., 68 Cal.App.4th 114 (1998), a student sued a school district for negligent misrepresentation (a step below fraud). The court held that the suit was barred by Peter W. as well as statutory protections for government employees:

Th[e] strong policy consideration [embraced in Peter W.] may outweigh the allegation that Brown undertook a change in circumstances in reliance on the school district. That question in turn raises an issue whether the school district was authorized to incur the obligation. But even if a duty to Brown were assumed, both Ms. Bonner and the school district are immune from liability for misrepresentations. Government Code section 822.2 protects a public employee acting in the scope of employment from injury due to the employee's misrepresentation. Section 818.8 extends the same protection to the employer. Brown pled, in essence, that Ms. Bonner negligently misrepresented that the science class in which she counselled him to enroll would meet NCAA eligibility guidelines.... Under sections 822.2 and 818.8 both Ms. Bonner and Compton Unified School District are immune from that negligent misrepresentation.

Id. at 117-18 (citations omitted).

So the answer is, unfortunately, no: teaching a student creationism as though it were real science does not constitute an actionable wrong, at least in California courts.

37 Comments

Flint · 17 December 2004

Pause for a moment to admire the stunning illogic of this conclusion. Because government schooling is so bad, and dissatisfies such a gigantic amount of people, as represented in "survey upon survey," it therefore follows that they cannot be held liable for their faults! Imagine this being said of a private company---an auto maker, or a toy manufacturer, produces products that are so extremely bad that they are charged in survey after survey with massive social problems; their quality is so poor that they are regarded with contempt by every social stratum---therefore the auto maker or the toy maker cannot be held liable for their wrongs? Because it would be too expensive to do so?

I'm not a lawyer, but I'm still willing to hazard a guess. For tort law to work, the definition of a "wrong" needs to be fairly clear. If you wish to sue Ford because their wheels fall off, you'll get little if any philosophical debate about the essential rightness of retaining wheels. If you sue Ford because they have selected such unsightly paint colors as to represent a disfigurement of the automotive landscape, you'd have somewhat more difficulty. I personally have difficulty imagining the teaching of *anything at all* that some sizeable group of people won't take exception to. It's not even clear whether NOT preaching religion in science classes is considered by the majority to be a blessing or a curse! Along these same lines, consider that nearly any event from history can teach us a lesson, yet no history class can cover every event. People here in Alabama disagree rather violently about how the War of Northern Agression/Civil War (even the NAME is political) should be presented. They wave flags and prattle about their heritage, which is surely important. Isn't it? I think most of us noticed, while we attended school, that all students found some courses easier than others, and that all courses had a range of performances by students. I wouldn't be surprised if some high schools, for various reasons, extended less hand-holding than others. There is a difference between making an education available to someone determined to take it, and forcing that education onto someone unenthusiastic about absorbing it. Any properly-run school will have dropouts and flunkouts. I have to wonder what "survey upon survey" asked. Faced with the question "Can high school education be improved?" who among us would answer in the negative? Sure, as the court wrote, there are debates about how schools *should* be run, taking place in the media, in school boards, in contested elections. But this does NOT necessarily mean that the school educates poorly, only that HOW schools should educate is the topic of energetic debate. Should proponents of every educational whim and fad be granted access to the courts? What kind of redress could they be granted? Isn't that properly a political question, not a legal issue? As for teaching "Bad science", that's another dangerous notion. Yesterday's best science has always looked bad today, as surely as ours will look bad tomorrow. The best we can ask is that we teach (at the secondary school level) the prevailing view of the majority of scientists, at a high level, as reflected in refereed publications. None of this is to say that there are no incompetent teachers; they are all too common. This is probably due (at least largely) to recruitment and retention functions. Teachers are "those who can't" as the saying goes. The notion of being able to sue schools for delivering bad education is a terrible, unworkable idea. The notion of attracting and paying good teachers and weeding out the losers, not nearly so easy to implement perhaps, would probably work much better...

Strange Doctrines · 17 December 2004

How come no sovereign immunity reasoning in these decisions?

Mark Perakh · 17 December 2004

I am inclined to disagree with some of Tim's notions. I am not a lawyer so my judgment may be off the mark from a legal standpoint, but I approach it from the commmon sense standpoint. If teachers could be sued for malpractice it'd open the door to all kinds of false accusations. In every class there usually are bad students and even the best teacher cannot make them absorb the material. Such a dunderhead, having failed the exams, would be able to sue the teacher for alleged malpractice. Imagine what a mess it would create. Teachers would be terrorized by dumb students who would threat teachers with lawsuits. Here is a story from my experience. At CalState Univ. Fullerton I was teaching a special course for the upper division. At the semester's end students are filling out questionnaires where they anonymously evaluate lecturer's performance. One student gave me a very high mark saying I was the best teacher she ever had in her life. She also wrote that she did not believe in anonymous evaluations and signed her full name, S. As it happened, she failed the exam and I had to give her F. She came to my office and made a scandal accusing me of deliberately giving her F because I allegedly enjoyed causing suffering to students and harbored a personal anymosity to her (which of course was nonsense). She farther claimed that there was a conspiracy agains her in which besides me also the dean and the department chair were involved. The sheer absurdity of her claim led to the prompt dismissal of her accusation. But what would happpen if she did not go too far and limited her complaint to accusing only me and not the dean and the chair? I'd need to spend a lot of effort and time on disproving her claim. Now, add to this the ability to sue and imagine wnat a havoc it would cause in schools and universities.

Timothy Sandefur · 17 December 2004

Obviously I disagree strongly with Flint. Exactly the same arguments could be employed to bar lawsuits against lawyers, doctors, or any other profession or any other corporation that engages in business. Nor would the possibility of allowing lawsuits against incompetent teachers mean the end of discretion on behalf of the teachers. It would simply mean that there is some floor below which a purported teacher may not fall withou being held legally accountable. That principle is inherent in the legitimacy of tort law to begin with.

Like Flint, and like the California Courts, Mark Perakh says that allowing such lawsuits would cause havoc in the schools. So what? Again, the same argument could be applied to bar lawsuits against any other commercial enterprise. If the difficulty of dealing with potential lawsuits were a legitimate argument against the possibility of lawsuits, then I see no reason that Unocal or Ford or Tyco should not also be immune from lawsuits. Imagine the amount of effort and time a corporation must face in dealing with legal allegations! If that's a good argument, why shouldn't we all be immune from lawsuits?

Holding teachers accountable in tort would not interfere with their legitimate discretion any more than holding other enterprises or practitioners liable interferes with theirs. But teachers, like these other practitioners, hold themselves out to the public as being capable of performing a service. When they fail to do so, they ought to be legally accountable to their victims.

Timothy Sandefur · 17 December 2004

Strange Doctrines asks "How come no sovereign immunity reasoning in these decisions?" Peter W. was brought under the Tort Claims Act, which allows suits against the government in some cases:

the doctrine of governmental immunity from tort liability was abolished in Muskopf v. Corning Hospital Dist., 55 Cal.2d 211 (1961)...Muskopf further established that governmental liability for negligence is the rule, and immunity the exception.... [ I]mmunity from liability is not expressly granted by any provision of the 1963 Tort Claims Act which succeeded Muskopf; and...one provision thereof makes defendant district vicariously liable for any tortious conduct of its employees which would give rise to a cause of action against them personally. The thrust of these observations is that defendants do not have statutory immunity from the negligence liability with which the first count would charge them. However, Muskopf holds that liability is the rule, and immunity the exception, only "when there is negligence."

Peter W., 60 Cal.App.3d at 819-20. Thus the court had to confront the issue of whether there was a duty, to determine whether the employees would be liable, to determine whether the Tort Claims Act applied, to determine whether the suit could proceed. A bit complicated, but it seems square. Of course, the different contours of different states' tort claims acts would mean that an educational malpractice claim would work differently in different states. But as is clear from my original post, I think sovereign immunity is a sham anyway.

Rick · 17 December 2004

Education is there for the taking. If the majority of the students are succeeding but some are not who is at fault? The teacher or the student? You cannot make someone learn. I am not a teacher but I do coach basketball to young kids (8 - 10). Some of them do well others still have no clue despite running the exact same plays for two months. You cannot make someone learn.

Comparing teaching malpractice to private business does not hold up. The car manufacturer analogy is apples and oranges. If you want to compare the two then you would have hold the manufacturer responsible for the user of the product. Do you think Ford should be responsible when someone wrecks their truck trying to do 90 around a curve?

I agree that teachers should be held to standards, but some responsibility for learning must be on the student. If the whole class is doing badly then the teacher is at fault.

Timothy Sandefur · 17 December 2004

Agreed. And of course the car manufacturer should not be liable for reckless driving; teachers should likewise not be liable for students who refuse to study or try to learn. But that doesn't change my argument.

Flint · 17 December 2004

I (and Mark, I think) tried to argue that we need some standards that are commonly agreed on, simply to apply and not political in nature. And this requires a very clear description of the concrete responsibility of the professional. Imagine if every time someone was found guilty, that individual's lawyer were sued for malpractice. Should we say "so what?" or would this be impractical.

However, I can see a lawyer being sued for clear and obvious dereliction of duty - failure to show up, failure to prepare for the case, being drunk in court, etc. But as Rick says, when most students succeed and some learn nothing, whose fault is it? If we make teachers legally liable for students who do not learn, we may engineer a situation where students are automatically given high grades and passed, regardless of how ignorant they are, simply to avoid lawsuits. Or alternatively (depending on a few precedents) teachers may begin allowing only the most brilliant and accomplished students to pass.

So we need to define teacher competence in such a way that (1) it can be observed and (fairly) accurately measured on the job; and (2) we all agree that we are observing and measuring competence as opposed to a difference of opinion about "new math" or "intelligent design." As Mark implied, neither failure to learn, nor failure to pass, should grant legal standing. There will ALWAYS be students who don't learn, don't pass, or both. Teacher incompetence is an administrative issue, not a legal issue.

RBH · 17 December 2004

Tim Sandefeur wrote

Holding teachers accountable in tort would not interfere with their legitimate discretion any more than holding other enterprises or practitioners liable interferes with theirs. But teachers, like these other practitioners, hold themselves out to the public as being capable of performing a service. When they fail to do so, they ought to be legally accountable to their victims.

Unadulterated bullshit, in my less-than-humble opinion. I was a professor for 20 years, and my job was to provide as stimulating and appropriate an educational environment as I could. My job was not to ensure that every student learned. Some did, some didn't. And that was their responsibility, not mine. "Learning" is something the student does, not something a teacher does to a student. Student performance is a far-from-reliable proxy for teacher performance. Unless there are established and agreed norms for what a teacher is supposed to do by way of providing an appropriate learning environment, putting it into a tort context will have no effect but to drive anyone with half a brain further away from teaching as a career. Medical tort law focuses not on outcomes but on the appropriateness of the treatment and procedures performed; some patients die even when treated appropriately (ask me, who has run on a volunteer emergency squad for over 30 years), but not all die of iatrogenic causes. RBH

Timothy Sandefur · 17 December 2004

We would all love to be immune from lawsuits.

Bonster · 17 December 2004

The concept of suing teachers for malpractice is misguided. As several commenters have posted, student learning is related to student behavior as much, if not more than, teacher behavior.

My job as a high school science is to provide students the opportunity and materials they need to learn. If they do not do the assigned work, they will not learn. In the medical field, a doctor can prescribe the right medication, but if the patient doesn't take it, the doctor is not responsible.

The analogy with Ford or other companies is faulty on a couple levels. First, the "product" offered by public schools is difficult to define. Is it quality instruction, or is it educated students? The two are not necessarily linked. Second, the students (Are they the customers, or are the parents? Who should evaluate the quality of a teacher?) are required by law to be in an educational setting. This is not true for virtually any other good or service in our country. No one is required by law to buy a car. Education in the US is not voluntary. That changes the dynamic. There will be a certain part of the student body who is in the classroom, because they have to be. If a student realizes the year after he graduates that his 1.0 GPA will not get him too far, can he sue?

I have heard students say that they got bored while taking a standardized test that was adminstered to assess the school's annual yearly progress under NCLB. They filled in the answer sheet randomly. This test had little or no consequences for the individual taking the test. How do you assess student progress accurately? It's very difficult.

Finally, I'd like to stand the arguement on its head. Imagine a system in which teachers were paid by student performance on tests. If I, as a teacher, documented my lessons to show that they were in line with standards, both state and federal; my methods were supported by the best educational research; and my classroom was specifically equiped with the best educational equipment, but an individual student did NOT learn enough to raise my pay, could I sue the student for loss of wages?

P.S. Thanks to all the contributors here. I enjoy the blog.

Engineer-Poet · 17 December 2004

First, I would like to recommend the following education blog: Professor Plum. His "relentless rants" about pedagogy and the triumph of "progressive" ideology over scientific appraisal of ed practice will resonate with everyone concerned about the prospect of miseducation of science students in creationism, ID or other non-science nonsense.

Second, what RBH said. Nobody pays teachers enough to buy malpractice insurance, and who is going to take a job which almost guarantees bankruptcy to everyone who isn't judgement-proof? Cui bono? Only the lawyers.

There are few enough smart people going into K-12 teaching that it makes no sense at all to add further disincentives. Adding some respect to the job, like better pay, better hours, better working conditions and 100% support from the system against violent, threatening or disruptive students might get people out of other lines of work and into teaching. So might a system which allows people with math and science skills to teach for a few years rather than as a career. To attract good people, the job needs good attractions - these are sorely lacking.

I'd be far more sanguine about lawsuits aimed at school districts which adopt creationist curricula (or "whole language" reading, or fuzzy arithmetic). Turning out AP students unable to pass the AP biology exam would be adequate proof of lack of preparation, and adding creationism only to the non-AP bio class would be proof that it was substandard. Injunctions against the curriculum seem far more reasonable.

Last, if a teacher taught creationism in biology class, and it was not part of the curriculum, there are disciplinary options available.

Timothy Sandefur · 17 December 2004

I understand these concerns, but keep in mind that in a world in which teachers are liable for malpractice, they would not be liable for every student who failed--the teacher would still be free to raise as a defense to a lawsuit the fact that the student didn't study, or the fact that the tests are faulty, or any of these things. And the existence of tort liability would not mean that the teacher would lose all discretion over how to teach. Doctors and lawyers have wide discretion to practice their professions, even though they can be sued for malpractice, and when they are sued, they can bring up as a defense facts like, the patient was at fault for his own bad health, or what have you. Were teachers liable for malpractice, they would be just as free as a doctor to defend themselves on the grounds of comparative negligence, or whathaveyou. Bonster sees this when he writes "If [students] do not do the assigned work, they will not learn. In the medical field, a doctor can prescribe the right medication, but if the patient doesn't take it, the doctor is not responsible." Exactly. If a student sued a teacher for malpractice, and that student had "not do[ne] the assigned work," then it would be relatively easy for the teacher to win that case.

It is simply not true, however, that students are always at fault for failing to learn. There are incompetent teachers. We know this because teachers give awards to each other for "excellence," which means that there must be some teachers who are not excellent. Teachers go to seminars and colleges to study different, allegedly more-effective teaching methods. If some methods are more effective, then some others must be less effective. And if that is true, then using a less effective method may sometimes be negligent.

Bonster writes that the analogy to an auto manufacturer is faulty because "the 'product' offered by public schools is difficult to define. Is it quality instruction, or is it educated students?" It is a reasonable education. That may seem vague, but all tort definitions are vague, and this does not seem to me appreciably more vague than the definitions of duty owed by doctors or lawyers. (In fact, it protects a teacher's discretion.) But I think it is perfectly reasonable to say that if a student graduates from high school illiterate, that there is a prima facie case of negligence there (which could, of course, be rebutted by a showing that the student failed to do the work, and so forth).

Second, Bonster asks whether students or parents are the customers. The students. Parents could assert their rights as next friends. He points out also that students "are required by law to be in an educational setting. This is not true for virtually any other good or service in our country." I fail to see how this is relevant. The government school holds itself out as being competent to educate students. It has no duty to engage in education, but once it does so, it must do so in a reasonable manner. If it fails to do so, I don't see how the fact that it refused to allow the victim to escape should somehow exonerate it!

Also, Bonster asks, "If a student realizes the year after he graduates that his 1.0 GPA will not get him too far, can he sue?" That depends. If the student was told by the school that it was just fine, then I would say yes. If the student was told that 1.0 was too low, and was encouraged to raise it, and to study, and refused to do so, then of course not--the student is at fault, not the teacher.

But then Bonster asks what seems to be the real kernel of the objectors to my argument: "How do you assess student progress accurately? It's very difficult." Certainly it is. But there are extreme cases where any objective observer would have to say that a teacher has committed malpractice. And if that is true, then it must be possible. Second, the difficulty of establishing the shortfall cannot, logically speaking, prove that shortfalls are inherently impossible, which is what the immunity rule says. Finally, there are many other contexts in which measuring progress or competency is difficult. Medicine, for example, or law. Is it incompetent for an attorney to allow his client to plead guilty when he has a chance at being exonerated? Is it malpractice for an attorney to advise his client to settle rather than go to trial? Is it malpractice for an attorney to advise his client to settle for $150,000 rather than $200,000? The fact that these questions are very difficult, perhaps impossible to answer does not justify eliminating malpractice liability for attorneys. There are just some things that are unacceptable for an attorney to do--missing a deadline for filing an appeal, for example. The same is true for teachers, and the mere fact that it would make teachers' lives harder for them to be held accountable at the bar is not a logical reason to immunize them.

Bonster asks a strange hypothetical about teachers suing students for loss of wages and so forth--I think that's really reaching. I'm proposing here nothing more extreme than the standards already applied in countless other professions, even ones where progress is hard to monitor or prove, where practitioners are subject to malpractice liability. This is not as extreme a position as people seem to think. No, since doctors can't sue patients for loss of wages, so I think Bonster's question is a bit too far fetched.

One last point. RBH's rant includes the argument that "putting it into a tort context will have no effect but to drive anyone with half a brain further away from teaching as a career." But a) if that were true, then why do people continue to go into medicine, law, and toy-making, all areas of trade where malpractice liability is a commonly accepted norm, and b) if it is true, why does this argument not also justify eliminating malpractice liability for medicine, law, and toy-making? Allowing doctors, lawyers or toymakers to be sued for negligence would "only drive away anyone from half a brain" from being doctors, lawyers or toymakers, right?

I might add that I would hope the possibility of malpractice suits would drive away teachers with half a brain. I would prefer teaching be done only by teachers with entire brains--who would thereby be less concerned about being sued for malpractice.

I challenge our readers--give me a reason that exonerates teachers from malpractice liability which would not also, with equal plausibility, exonerate other practitioners in other trades from malpractice liability. Either that, or, forthrightly explain why you think all negligence law should be abolished.

Steve · 18 December 2004

I go into court with Lawsuit 1 and my lawyer, Lawyer A, vs the other guy's lawyer, Lawyer B. We lose the case. So I sue lawyer A in Lawsuit 2, while appealing Lawsuit 1. I win the appeal, causing the other guy to sue Lawyer B for losing. In similar fashion, every lawsuit spawns two lawsuits. After several years, the entire legal system is devoted to the legal children of Lawsuit 1.

Of course that's just a fantasy. It could never happen in real life, because that would imply that God exists, and is now handing over daily operation of the universe to Douglas Adams.

RBH · 18 December 2004

Tim wrote

We would all love to be immune from lawsuits.

I'm perfectly willing to hold people responsible for outcomes over which they have control. I learned as an NCO in the military, as a professor, as an officer in the fire service, and as CEO (of an admittedly small firm!) that one cannot hold people responsible for outcomes over which they do not have control. Tim has a hammer -- sue 'em! -- and as a consequence every problem looks like a nail to him. RBH

RBH · 18 December 2004

Tim remarked

One last point. RBH's rant includes the argument that "putting it into a tort context will have no effect but to drive anyone with half a brain further away from teaching as a career." But a) if that were true, then why do people continue to go into medicine, law, and toy-making, all areas of trade where malpractice liability is a commonly accepted norm, and b) if it is true, why does this argument not also justify eliminating malpractice liability for medicine, law, and toy-making? Allowing doctors, lawyers or toymakers to be sued for negligence would "only drive away anyone from half a brain" from being doctors, lawyers or toymakers, right?

Put it in a tort context and pay a teacher like a doctor or lawyer, that is, pay them enough so they can afford malpractice insurance, or pay them like the CEO of a toy-maker (or have the school district pay for teachers' liability insurance like the toy maker's corporation), and there will be plenty of candidates for teaching. RBH

Andrea Bottaro · 18 December 2004

I think there are too many variables that go into evaluating teaching success to make legal recourse a viable solution (even if fairly approached and regulated - a near impossibility in this country).

First, unlike medicine or law, in which each patient or client is treated individually, teachers teach classes, and have to gauge their approaches and methods to maximize the success of an entire cohort of students. If in any class some students do in fact learn adequately (as is mostly the case), how can the other students in the same class who do not learn blame the teacher?

Then there is student heterogeneity and the difficulty in objectively establishing it. While a doctor starts treatment on a patient after a diagnosis that is objectively determined (and determinable) and largely depends on the doctor him/herself (or on other identifiable health care practioners who ran the tests and signed off on the results), students come to their teachers with largely variable individual skills, attitudes, and educational and personal backgrounds which do not, and most often cannot, be objectively determined. Also, a physician who takes on a new patient from a different practitioner will have a chance to review medical charts and often repeat diagnostic tests to minimize the chance of errors. A new teacher cannot review every student's past assignments and evaluations (and give new tests) to ensure the student is indeed qualified to enter the new grade (and if not, send the student straight back) - the system is inherently based on standards and trust. A physician can rely on established standards of care for each type of medical condition (and if that is properly adopted, a negative outcome does not count against the physician), but a teacher can't do the same, since there is no "standard of teaching" for each child's attitudinal and psychological profile (even if it could be determined objectively), and their competence can only be judged by outcomes.

Finally, given the inherent and often outrageous inequalities in the US school system, it is just too hard to separate what is simply the effect of a teacher's incompetence from the lack of availability of appropriate educational tools (or the result of the latter on the former). Frankly, I think this is the most important variable, and one that makes all efforts at "accountability", like The No Child Left Behind Act, just too simplistic. Until there is equality in the amount of economic investment put into each student's education, assigning blame to teachers is like blaming farmers for loss of crops due to prolonged droughts.

It is always a superficially appealing approach to judge and assign blame individually, and to think that simply maximizing individual efforts will automatically lead to the best collective outcome, but sometimes social issues require society-level approaches and structural changes, at least to eliminate the confounding variables which prevent fair individual evaluations.

Timothy Sandefur · 18 December 2004

Steve suggests that malpractice law acts like a chain reaction: that if a plaintiff loses his case, he'll just sue his lawyer, and then if he wins, the other side will sue his lawyer. But, in fact, attorneys are already subject to malpractice liability under the current law, and this does not happen. Yes, losing clients sometimes sue their lawyers, and lawyers gripe about their malpractice insurance rates and the prospect of being sued. But society does not allow these gripes to erase malpractice liability for lawyers, and for good reason. So it should be the same for teachers complaining about the burden if they were to face malpractice liability. RBH says that we should not hold people responsible for outcomes over which they have no control. I agree, and the law agrees, and if a teacher were sued for malpractice, it would be the burden of the plaintiff to prove that the teacher was responsible for the wrong; if the teacher was not responsible, then he would be found "not guilty" and go about his business. RBH also argues that the problems of education would be solved by raising teacher pay yet again. Okay. But that doesn't refute my argument that they should be liable for malpractice. Andrea Bottaro, however, makes some interesting points. First, he says that doctors or lawyers treat with clients, while a teacher has a whole class, meaning that teachers must "gauge their approaches and methods to maximize the success of an entire cohort of students." That's true. But notice that this is a standard of care---that is, an effective teacher must "gauge his approach and method to maximize success." This suggests that if a teacher does not gauge his approach in this way, he has fallen below the standard of care of a reasonable teacher, and ought therefore to be held negligent. Nor do I think that the large number of students makes a difference. The Tyco toy company sells to a large number of children, a heterogeneous group. They are, nevertheless, held to certain standards, and if they fall below those standards, they are liable in tort. It's a good point that "a physician who takes on a new patient from a different practitioner will have a chance to review medical charts . . . [but] a new teacher cannot review every student's past assignments and evaluations (and give new tests) to ensure the student is indeed qualified to enter the new grade . . . " But 1) my government schools kept thorough records on my background which teachers could review, and 2) I don't see why a teacher could not use this as a defense if he were sued. So far, most of the responses I've got are merely things that a teacher could raise as a defense---not a justification for per se immunity from negligence lawsuits. Life is hard for a lot of practitioners in a lot of trades, and life would be easier if a lot of practitioners in a lot of trades could be immune from lawsuits. In any case, if it is impossible for a teacher to go back into the file and ensure that a student is qualified to enter the grade, then this fact would be relevant to establishing the standard of care, but it is irrelevant to the question of immunity. Bottaro then writes

A physician can rely on established standards of care for each type of medical condition (and if that is properly adopted, a negative outcome does not count against the physician), but a teacher can't do the same, since there is no "standard of teaching" for each child's attitudinal and psychological profile (even if it could be determined objectively), and their competence can only be judged by outcomes.

But we've been told several times here that competence can not be judged even by outcomes! Anyway, the courts have indeed held that there is no "standard of teaching." If that is the case, then the simple conclusion is that teachers, all teachers, have no idea what the hell they're doing. Are we willing to draw that conclusion? I'm not. I had some outstanding teachers, who practiced some extremely effective methods of teaching. That some methods are more effective and others less means that there simply must be a standard of care. Add to this the fact that teachers get awards for being "teacher of the year" and whatnot. One teacher in my high school got award because all of his students passed the AP exam with 5s. Was that an accident? Did he not deserve the award because he simply took a guess at it and the kids all happened to get 5s? Or was he a good teacher because he used effective methods, and accomplished objective outcomes that allowed his competence as a teacher to be judged? I think the latter, which means that what a teacher does in a classroom does make a difference. If that is true, and if some teachers are better teachers than others, then there must be a standard below which the law ought not to allow a teacher to fall---or we ought to ask why teaching is different, or why there are standards for equally difficult professions. So far the only answers I've heard are "teaching is hard," and "malpractice insurance is expensive," and "kids are at fault for their own lack of education," and "teachers don't have one-on-one clients." None of these answers work, though, because other professions are hard, too, and malpractice insurance is expensive for them, too, but we don't say that these facts exonerate the practitioner; if the client is at fault for his own wrong, then that's a defense to negligence, not a reason for immunity; and other professions that don't have one-on-one clients are also subject to liability. RBH says that I "[have] a hammer." Well, maybe so. I deeply resent government-run education. The state comes to these homes and forces these kids, against their will in many cases (including my own) into a government school, which is often a dangerous, and always an unpleasant place. It staffs these classrooms with incompetent, union-represented teachers who can rarely be fired, sued, or otherwise held accountable. It often promulgates hideous educational fads like "whole language reading," and teaches kids politically expedient nonsense, and even creationism, while failing to introduce them to the basics required by our society. It prepares these kids for failure, promotes them up to the next grade when they should not be there, and then sends them out into the world unable to make a living---and all of this is done as a favor to the kids, we're told, or as a favor to republican government. There are many heroic and obvious exceptions, but in too many schools, kids are being told the worst lie you can tell someone: they are being told that they are educated. And then our society, suffering worse every day from this government failure, lionizes the school system to such a degree that we make them immune from lawsuits for their own malpractice---something practically no other profession gets. When a doctor holds himself out to the public as a qualified and capable doctor, he is legally required to act as a reasonable doctor would. When a lawyer holds himself out to the public as a competent lawyer, he is legally required to act as a reasonable lawyer would. When a pedestrian on the street sees someone get hit by a car, and rushes to give the person first aid, the law requires the pedestrian to act like a reasonable pedestrian. Truckdrivers, florists, airline pilots, psychiatrists, radio show hosts, football players, are all subject to being sued for negligence. But not teachers. Not even the most incompetent place-filling teacher, ignorant of the subject matter and unable to teach it to a child, can be sued. I find that mortifying. I wish, indeed, that I had a hammer. If I did, I'd hammer in the morning, and I'd hammer in the evening, all over this land.

RBH · 18 December 2004

Tim wrote

RBH also argues that the problems of education would be solved by raising teacher pay yet again. Okay. But that doesn't refute my argument that they should be liable for malpractice.

That's a misrepresentation of what I said. I argued that if we are to expose teachers to malpractice suits for outcomes over which they have no control, then we'd have to pay them well enough so they can afford malpractice insurance, as we do the doctors, lawyers, and toy makers Tim mentioned as analogs to teachers who are exposed to tort law. RBH

Steve · 18 December 2004

"Steve suggests that malpractice law acts like a chain reaction"

Well, that's a little ambiguous. I don't know how the context of the thread here modifies the interpretation of my post, because I didn't read the thread, it looks lengthy and boring. But as far as what I meant when I wrote it, I didn't mean such law would create this situation, I was just amusing myself after reading Douglas Adams's The Salmon of Doubt yesterday at 3rd Place, maybe the coolest coffee shop in Raleigh, if you ignore Tango Night at Helios, which you really can't, and which is, by the way, tonight.

Ed Darrell · 18 December 2004

Teachers get sued all the time. A standard feature of teacher membership organizations is insurance to pay for the defense of such suits. What planet are you guys on, again?

One of the great difficulties of suing specifically for malpractice is that there are no generally accepted and tested methods for teaching and learning. When he was Assistant Sec. of Education for Research, Checker Finn delighted in opening his Monday staff meetings asking whether anyone had determined how humans learn, in the previous week. The answer was always "no." "Now that we've established we still don't know exactly what we're doing," Finn would say, we'd go on to discuss the federal efforts to improve education.

A teacher, sued for malpractice, might ask: "Negligent? Compared to what?"

We do have rather extensive studies which suggest correlations with successful student performance, however. The single best predictor for whether a kid will be successful in learning is the number of books in the home. The single best predictor of the number of books is the educational attainment of the parents.

So, you want to sue for malpractice? Look to the proximate cause of poor student performance: Under stimulating home environment.

On the other hand, there are certain things that teachers should not do, either because they defy the prudent teacher standard, or they are illegal. Biology teachers shouldn't teach creationism or intelligent design, because teaching that stuff falls afoul of both rules -- it's stupid, and illegal.

A teacher suggesting that kids should take up smoking marijuana at least three times a day would be similarly derelict. So would a teacher urging "abstinence only" education to sexually-active kids in danger of contracting sexually-transmitted diseases.

Tonight? On helios?

Damn! My tango shoes are out for repair!

melior · 19 December 2004

What does the fact the teachers have a union have to do with anything, if you admit they're grossly undercompensated?

Eric Albright · 19 December 2004

The teaching of science teachers should tie directly and swiftly to what the scientists find and conclude, on the appropriate levels. To this relationship the courts should be obligated to observe critically. THIS is the standard teachers of science are liable to. How well the student learns or what's his or her background is a whole 'nother game.

Kimmitt · 19 December 2004

I think the real problem is twofold: (1) Defending oneself against a lawsuit is a costly and time-consuming endeavor, and (2) a vocal minority of parents are batshit insane. Many of the posters here implicitly posit that even good teachers would endure at least one (baseless) lawsuit a semester. I agree with this.

That said, I think some basic standards of conduct should be put into place for (at least) mathematics and science classes. Among those should be whether or not the teacher presents items to the class which are demonstrably false, according to the current scientific consensus (i.e. implying that parallel lines meet after a finite distance, or that evolutionary theory has interesting or useful alternatives). Once those are in place, we could begin to talk about suits, in my opinion. But something as vague as "malpractice" . . . we'd be spending far more money on lawyers than on instruction every semester from now until eternity.

Timothy Sandefur · 19 December 2004

Kimmitt objects to the idea of malpractice liability for teachers on the grounds that "[d]efending oneself against a lawsuit is...costly and time-consuming." But, again, the General Motors Corporation spends a great deal of time and money defending itself from lawsuits, as do hospitals, and many other practitioners and companies. That fact simply cannot logically exonerate someone from liability for his malpractice. Second, Kimmitt says that a minority of parents are insane and that, as a result, "even good teachers would endure at least one (baseless) lawsuit a semester." So what? Many, many doctors deal with crazy patients, and routinely are required to endure baseless lawsuits. Many people who sue GM or other corporations are either crazy, or for some less extreme reason are bringing meritless lawsuits. Does that fact mean that we should absolve doctors and GM and everyone else from liability?

The fact that meritless lawsuits are filed is a good argument for tort reform measures such as loser-pays. It is not a good argument for completely immuzing all practitioners of an entire profession from any legal accountability. The fact that lawsuits cost time and money does not mean that we should abolish tort law, does it? As I said before, everyone would love to be immune from being sued. But society does not allow that because people who hold themselves out to the public as competent to perform a service should be held to standards of competence. The same should be true of teachers, I believe.

Now, it's true, we could say "Negligent? Compared to what?" and say that teachers simply do not know what they are doing at all. But if we do that, then we would, I think, also have to stop praising successful teachers, and stop giving them awards, and stop calling for them to have their pay increased, since adopting this view would mean that teachers are simply engaged in an act of blind luck, and what they actually do in a classroom makes no difference. I am unwilling to say that. I think some educational techniques are successful and some are not, and that some are appropriate and some are not, and that means that there is a standard of care below which to fall is negligent.

Engineer-Poet · 19 December 2004

Anyway, the courts have indeed held that there is no "standard of teaching." If that is the case, then the simple conclusion is that teachers, all teachers, have no idea what the hell they're doing. Are we willing to draw that conclusion?
— Tim Sandefur

You over-generalize. If there is no standard, it can only be concluded that a large fraction of teachers have no idea what the hell they're doing; a fraction as large as a majority might know, but they may not be sufficiently influential to establish such a standard. Given the "progressivist" nonsense amply documented at the edublogs Joanne Jacobs, Number 2 Pencil and the aforementioned Professor Plum, it should be apparent that many graduates of "ed" schools are themselves the badly miseducated victims of agenda-driven curricula. If you wanted to fix this problem, you'd start at the universities rather than the public schools. On top of this, the teachers are not responsible for the curricula selected by their districts. Neither are they responsible for the textbooks, which may be selected by a state that is not even theirs (the Texas system of approval effectively selects texts for many other states). Given all of this, I cannot see how the imposition of malpractice liability would lead to an improvement in the quality of practice by people making starting salaries in the range of $40,000 a year. It appears to me that the inevitable result would be that schools would empty as teachers quit en masse; you would destroy the profession in order to save it. Tim, could you afford to practice if you received a fixed salary of $40,000 per year and had to pay insurance? Do you seriously think that malpractice liability for teachers would not lead to a monster of ever-more-tenuous connections to whoever has deep pockets, like the asbestos mess? I'm all for getting verified best methods into classrooms (I experienced some of the best and some of the worst) and getting incompetent teachers out, but the malpractice tort system appears to be very unlikely to yield those results and the cost would be staggering. Thanks, but no thanks.

Flint · 20 December 2004

Maybe we could be like Justice Stewart and say "I can't define bad teaching, but I know it when I see it." Maybe the situation isn't quite that ambiguous, but I'm not sure.

Imagine (it's not hard -- it has happened) a teacher who goes completely around the bend, starts babbling nonsense, starts abusing children. This is clear grounds for termination everywhere, and administrative steps are taken.

Next, imagine a teacher who for some reason deliberately teaches as true, things generally accepted as false. This person may teach very effectively, but the students who perform the best on tests are the most misguided. Maybe some of our school teachers can tell me whether such people would also face administrative disciplinary action. I would expect so.

Books like "Up the Down Staircase" make the case that teachers are evaluated on the basis of many things other than their ability to teach (which may be well down the list). Conformance to rules, not making waves, passive acceptance of even the dumbest administrative decisions, sticking with the program etc. are given great weight in school systems. It has actually happened that teachers have been fired for raising the performance level of the "special class" up to the standards of the normal curriculum, thus costing schools grant money and disrupting organizations and schedules.

Tim Sandefur doesn't seem to recognize that if we have no standards of teaching and don't know what we're doing, then granting "best teacher" awards does NOT necessarily indicate good teaching, and could indicate terrible teaching. Without standards, how can we know? On what basis (and by whom) are such awards granted?

In high school (in New York), I was taught mathematics by a member of the State Board of Regents, who constructed the final exam. My teacher WROTE the math part of that exam. He taught strictly to the exam: Today, students, we will study question #2. Take the number after the word "and", divide by the number after the word "but"... His students performed amazingly well, and he won all kinds of awards. But his tenure on the Board of Regents rotated out, and suddenly nearly all of his students failed! Turns out all any of them ever knew was how to beat a specific test. None of them knew math. Note that the Regents Exams are a Standard.

Next, imagine that this math teacher is taken to court for malpractice. Can his shelf full of awards be used against him, as evidence of incompetence? What remedy should be sought? Should he be fired? Told to teach how math works generally? Demoted within the organization? Fined? What role does the union play here?

I don't think the problem here is that incessant lawsuits by the parents of failing students would gum up schools and courts and enrich only lawyers. The problem is that there is no consensus as to what 'good teaching' means. Some teachers are great with gifted students and let the slower ones flounder; others are just the opposite. Some are good with younger or older students, and incompetent outside their 'sweet spot' age range. And even here, the sense of level of competence is in the judgment of the administrators, whose priorities are not necessarily the same as the students or their parents.

These problems are best handled at the political and administrative levels. The court is simply the wrong tool for engineering improvement in the educational system. Even obvious incompetence agreed to by everyone can be handled at this level.

This is not to say that teachers should be granted immunity from lawsuits. Only that standards cannot be enforced where they are not clearly defined. And that makes this a situation where we should be very careful what we wish for. In large parts of the US, the majority of parents believe that teachers are incompetent NOT to be teaching in science class that God created us.

Ed Darrell · 20 December 2004

E. D. Hirsch dealt with the issues of knowledge standards years ago with his "cultural literacy" arguments. You can't call a kid "educated" in economics if he can't read the headlines in today's newspaper that talk about a "bull market" and he doesn't know that the headline talks about stocks being up.

Yet, "bull market" doesn't appear in many high school texts, nor is it tested on the Texas social studies exam.

What's a teacher to do?

Yes, some standards are possible. But each human learns differently -- some learn uniquely. That is why smaller classrooms produce dramatic results in achievement, while foolilng around with "teacher accountability" doesn't.

The issue is whether we are willing to make scientific examination of what works in the classroom and what doesn't. Reducing classroom size so kids get more personal attention raises achievement of almost all students. Whipping teachers doesn't.

Those who advocate whipping teachers are not interested in raising scores, I conclude.

Pierre Stromberg · 20 December 2004

Really fascinating comments. But I think the trap many of you are slipping into is the obsession with teacher behavior. That's trying to close the barn door after the horse has left.

I think it'd be far more interesting to investigate the possibility of litigation against the curriculum committees responsible for introducing creationism. A school district can always practice plausible deniability when dealing with a lone creationism teacher. There were elements of this during the Roger DeHart affair in Burlington, Washington during the 1990's.

A curriculum committee wouldn't have that luxury. They're paid by the school with the expectation that they do indeed have the skillset necessary to determine what curriculum is best suited for student consumption. If it can be shown that they're expressly ignoring established scientific results to promote creationism or to slander/libel evolutionary biology, then that indeed would be an interesting case to pursue.

Pierre Stromberg, Former President
Pacific Northwest Skeptics

Mike S. · 20 December 2004

I may have missed it if someone mentioned this above, but it seems to me that another analogy to the corporate world is that of competition - Ford may suffer in the courts if it makes a faulty wheel that causes harm to someone, but it will also lose profits if it makes a distinctly inferior product even if it meets acceptable safety standards. Finding ways to introduce more competition into the public schools is a more tractable problem, both politically and legally, than introducing tort liability.

It seems to me that liability for providing a reasonable learning environment (i.e. safety, working restrooms, adequate supply of textbooks, etc.) might be a reasonable thing to sue for (which would entail suing the principal/superindentent/district, not the teachers), but I'm with those who think the teaching standards are too ambiguous to be improved by the threat of lawsuits.

Jack Krebs · 20 December 2004

Pierre's point is very good. Furthermore, if we follow the paper trail back from the curriculum committees we may wind up at the state school boards, which sets the standards which are used by many schools as the foundation of the curriculum.

As Pierre writes, "If it can be shown that they're expressly ignoring established scientific results to promote creationism or to slander/libel evolutionary biology, then that indeed would be an interesting case to pursue." This may very well be the place we will be in Kansas in a few months. If the state Board were to pass something resembling the suggested ID-influenced revisions to the standards, one might consider arguing that the state board had expressly ignoring established science, and that irrespective of their intent, they were failing in their duty to provide an acceptable education.

Kimmitt · 21 December 2004

The fact that lawsuits cost time and money does not mean that we should abolish tort law, does it?

Of course it does -- if current tort law lead to the result of the quantity of meritless lawsuits in every endeavor which one would expect with regard to teacher malpractice, then it would be painfully obvious that we would have to scrap it immediately and start over.

Great White Wonder · 21 December 2004

Yes, Kimmit, and also if current tort law leads to the senseless slaughter of millions of puppies it should be scrapped immediately.

Timothy Sandefur · 22 December 2004

Some concluding thoughts on the subject The law of negligence says that if you have a duty to do something, and you don't do it, and someone suffers as a result, that person can sue you. What the "duty" in question is often differs. As far as malpractice law goes, it means that a professional must act up to the "standard of care" in the profession. Doctors, for instance, are required to perform up to a certain standard of care. That does not mean that doctors are liable every time a patient dies; far from it. Doctors have discretion to act as their professional judgment dictates. But that judgment can't exceed certain boundaries. If a doctor prescribes arsenic instead of aspirin, then the doctor has performed below the standard of care and is liable for malpractice. Attorneys are also liable for malpractice---an attorney has wide discretion to act as his legal judgment dictates. (In fact, in some ways a client is not allowed to control his own case; his lawyer has the only say!) Nevertheless, certain things are just considered such shoddy performance that a lawyer can be sued. Missing a deadline for filing an appeal, for instance. This branch of law exists so that those who hold themselves out to the public as capable of performing certain tasks are legally required to live up to some standards. If they don't, they impose costs on other people, and tort law exists to return those costs to the wrongly-acting person. When the doctor prescribes arsenic, the patient suffers, and the law exists to make the doctor pay some measure of that suffering, rather than imposing that cost on the innocent patient. It escapes me why teachers should not have to live up to any legal standards. Psychiatrists, florists, truckdrivers, hockey coaches, skiing instructors, milk haulers---every profession I can think of has some enforceable legal standard of practice. But there are none for teachers. As I've said already, the explanations for this that the commenters here have offered fall very short of explaining why everyone else should be liable, but not teachers. In fact, the justifications offered---such as, that it would just be too costly for teachers to face liability---would, if taken to their logical conclusion---mean the abolition of tort law. Kimmit is willing to see that happen, but I take it that none of the rest of us wants to live in a world in which doctors are free to prescribe arsenic by accident and get away with it, just because requiring them to live up to professional standards would impose costs on them. Engineer-Poet likewise argues that tort law is just too expensive: "could you afford to practice if you received a fixed salary of $40,000 per year and had to pay insurance?" Well, as a matter of fact, I do live on a fixed salary of $59,000 per year. My firm pays my insurance (which, if they didn't have to, they could pay to me instead). Many lawyers in private practice make pretty mediocre pay and to have to pay for malpractice insurance. That fact does not change the fact that negligence law exists for a reason, and should exist, even though it's expensive. In fact, probably all schools maintain liability insurance already for those areas of liability for which they are currently liable. Another justification offered for teacher immunity is that there is no standard of care. Engineer-Poet writes that

If there is no standard, it can only be concluded that a large fraction of teachers have no idea what the hell they're doing; a fraction as large as a majority might know, but they may not be sufficiently influential to establish such a standard. Given the "progressivist" nonsense amply documented at the edublogs Joanne Jacobs, Number 2 Pencil and...Professor Plum, it should be apparent that many graduates of "ed" schools are themselves the badly miseducated victims of agenda-driven curricula.

Agreed; the Progressive educational agenda is one of the most glaring examples of almost profession-wide negligence, in my opinion. But this appears to me to only be an argument in favor of such liability. Engineer-Poet is saying that because there is so much negligence going on, the teachers ought to be immune from facing the consequence of that negligence---which is exactly the theory embraced by the California Court of Appeal, and which I say does not follow. California courts have allowed liability on an enterprise-wide basis; in Sindell v. Abbott Laboratories, 26 Cal.3d 588 (1980), the Court allowed liability against eleven drug makers for a proportionate share of the victim's damages based on the fact that they all produced the same faulty drug:

In our contemporary complex industrialized society, advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer.... [A]s between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury. Here...plaintiff is not at fault in failing to provide evidence of causation, and although the absence of such evidence is not attributable to the defendants either, their conduct in marketing a drug the effects of which are delayed for many years played a significant role in creating the unavailability of proof.... Where, as here, all defendants produced a drug from an identical formula and the manufacturer of the [drug] which caused plaintiff's injuries cannot be identified through no fault of plaintiff...we hold it to be reasonable...to measure the likelihood that any of the defendants supplied the product which allegedly injured plaintiff by the percentage which the [drug] sold by each of them...bears to the entire production of the drug sold by all for that purpose.

Id. at 610-12. Now, if the courts are willing to find liability on such a vast basis against so many companies producing so much of the faulty drug, why should we adopt Engineer-Poet's argument that the wrongs committed by government "educators" are so vast that they can't be redressed by the courts? I am not saying that malpractice for teachers would solve the education crisis. It most certainly would not, and Engineer-Poet is absolutely right that the real change has to come in the universities that teach teachers how to teach (supposedly). But that doesn't change my argument, I don't think. Those who claim to be professionally competent ought to be professionally competent. Flint, however, appears ready to throw in the towel on teachers being competent:

Tim Sandefur doesn't seem to recognize that if we have no standards of teaching and don't know what we're doing, then granting 'best teacher' awards does not necessarily indicate good teaching, and could indicate terrible teaching. Without standards, how can we know? On what basis (and by whom) are such awards granted?

Of course I realize that. Are we ready to say that that's what's actually happening? I think the folks who hand out those awards are not, and my own experience with truly skilled teachers suggests to me that there really is such a thing as competence in teachers, and that some really do know what they're doing. At least, they claim to, and that's all that matters. (And I'll add that it's possible that when a group claiming to be teachers hands out an award certifying a teacher to be a competent, skilled teacher, that group could be liable for misrepresentation or negligent referral or something, so even saying that teachers are all just lucky fools whose behavior in the classroom is irrelevant---which seems to be Flint's point---doesn't get them off the hook!) I believe that there is a consensus, at some broad level of what good teaching means. And if those standards are not clear enough, then it is the responsibility of the teaching profession to develop them. Every other profession has a code of responsibility, after all. That could be done by, in Ed Darrell's words, "mak[ing] scientific examination of what works in the classroom and what doesn't." Why does every profession except teachers have the duty to make such an examination? Speaking of Mr. Darrell, he thinks I want to whip teachers. Fine, make the most of it. What I'm arguing is that teachers who act below a basic level of professional competence ought to be liable for it like every other profession. If Mr. Darrell thinks that negligence liability against doctors is "whipping doctors," and negligence liability against lawyers is "whipping lawyers," and negligence liability against plumbers and electricians and shorthand reporters---all of whom can be sued for falling below standards of professional competence---is "whipping" them, then that's fine. But, again, do we want to live in a world without negligence liability? I don't. When a person claims to be able to do a job, I think it's good that we require that person to do the job with some basic level of skill. As Prosser and Keeton put it,

Professional persons in general, and those who undertake any work calling for special skill, are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability. Most of the decided cases have dealt with surgeons and other doctors, but the same is undoubtedly true of dentists, pharmacists, psychiatrists, veterinarians, lawyers, architects and engineers, accountants, abstractors of title, and many other professions and skilled trades [including pilots, nurses, chiropractors, X-ray technicians, optometrists, opticians, karate teachers, and travel agents].... The formula under which this is usually put to the jury is that the [professional] must have and use the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing.... The courts have been compelled to recognize that there are areas in which even experts will disagree...[and courts will not decide these disagreements]. This does not mean, however, that any quack, charlatan, or crackpot can set himself up as a "school" and so apply his individual ideas without liability.

Prosser & Keeton, Torts §32 at 185-87 (5th ed. 1984). Except, that is, in the care and feeding of the infant human mind.

Flint · 22 December 2004

Flint, however, appears ready to throw in the towel on teachers being competent:

Unless, of course, Tim read the entire context of my post, in which I agreed that certain behaviors are clearly below what are broadly considered minimum standards, and which a agree should be subject to legal action. I then provided a real-life example of what I regard as a (perhaps criminally) negligent teacher, whose students learned essentially nothing yet who won awards due to a trick. I was hoping Tim would mention whether this person should be regarded as legally liable. But no comment. I think it's a legitimate question whether the courts should be best used AFTER minimum clear standards of teaching competence are established, or whether the courts should play a role (through a series of precedents) in *defining* those minimum standards. Any comment here?

Great White Wonder · 23 December 2004

Their coming! Their coming! The conservative christian evangelical lawyers are coming! http://mediamatters.org/items/200412220004 From the rotting lips of rich white evangelical windbag Jerry Falwell:

Imagine God raising up an army of attorneys, far more than the ACLU has, to stand up for religious freedom in America. This is a positive thing. It's an encouraging thing. Why do we always have to be on the defense? We have declared war on the left, and we're going to sue the hide off of everybody, everybody, who tries to inhibit the liberties of our children and our families from worshipping and honoring the Lord, as we in America are constitutionally allowed to do.

Bring it on, Jerry.

Great White Wonder · 23 December 2004

Man, that is some shameful spelling on my part. Forgive me.