Justice & Compensation for Students and their Parents - Education Malpractice & Malpractice Alternatives

To begin Cancer season, putting the past in the past by sharing my law review comment research on education claims in the United States, including the education malpractice claim. In this episode, parents, teachers, and students are invited to learn about the historical and legal roots of education lawsuits in the United States. We discuss education from a "macro-systems-collective" level to understand micro-actions we can take in our local communities to solve local education issues. The first part of this show gives an overview of tort law in general, including intentional torts, negligence, and strict liability claims. Then, it talks about negligence claims, including what they are and how they show up in a professional setting as "malpractice." Then, the history of how two professions (medicine and teaching) have addressed service quality issues is examined. History makes it clear that the law reflects the values of the people who write the laws. This includes the idea that high-level legal decisions often have more to do with morals, ethics, and value-driven goals rather than with "strict" legal analysis (even though legal analysis on both sides shows different ways to get to the same answer). Once in the zone of education malpractice, this episode talks about why most education malpractice claims are denied (as a matter of law, courts don't look into the facts because "what has been decided, stays decided"). And, since these cases aren't allowed, what tort, legal, political, and social alternatives lawyers, parents, teachers, and students should know about so they can effectively advocate for their personal interests. The legal options are broken down into four groups, each with an example from case law. These four tort law alternatives are: (1) general negligence (instead of professional negligence "malpractice"); (2) negligent misrepresentation; (3) negligent supervision; and (4) recasting education malpractice claims as medical malpractice claims, especially for our students with documented special needs like ADHD. There are two statute-based options, which are: (1) A claim based on the 14th Amendment's Due Process or Equal Protection clause; or (2) A claim based on an education law, like Title VII. NOTE: Since the writing of the paper discussed in this podcast (2019-2020), there have been additional developments in this area, specific to curriculum taught in schools. These topics may be covered again in next weeks episodes on starting private schools, homeschool rights, and addressing issues in the public education system. Because not everyone can afford private school or homeschool, listeners are encouraged to consider using and improving upon existing processes in our current public school system.