In the years following America’s financial crisis, more and more Americans are looking to higher education, whether in the form of traditional degrees or career training, to try to improve their employability. Though many of those who have obtained additional education and training have successfully parlayed such skills into new jobs, many others have failed for a variety of reasons to secure the new job they were hoping for when they enrolled (or re-enrolled) for additional education. The present state of the economy and job market could lead, and has led, to the initiation of litigation by disgruntled or unhappy students seeking redress for their inability to find work or for an alleged defect in the education and/or training they received. In addition, there have been attempts by some individuals to pursue claims against educational institutions for damages they claim were indirectly caused by the institution, through either faulty education or faulty training. Though usually couched as claims for fraud, negligence, or breach of contract, almost all such claims constitute “educational malpractice”—a claim virtually universally rejected by American courts. See, e.g., Dallas Airmotive, Inc. v. FlightSafety Int’l, Inc., 277 S.W.3d 696, 699 (Mo. Ct. App. 2008) (“Missouri, along with most other jurisdictions that have considered the issue, has found that educational malpractice claims are not cognizable because there is no duty.”); Papaspiridakos v. Educ. Affiliates, Inc., 2013 WL 4899136, at *3 (E.D.N.Y. Sept. 11, 2013); Page v. Klein Tools, Inc., 610 N.W.2d 900, 905 (Mich. 2000).
What Is Educational Malpractice?
Claims brought against educational institutions can vary widely from simple negligence to breach of contract to violations of a particular state’s consumer-protection act. Courts have repeatedly held, however, that the label placed on a claim against an educational institution is not dispositive of its true nature. Jamieson v. Vatterott Educ. Center, Inc., 473 F. Supp. 2d 1153, 1159 (D. Kan. 2007) (quoting Alsides v. Brown Inst., Ltd., 592 N.W.2d 468, 473 (Minn. Ct. App. 1999)). Generally speaking, any claim against an educational institution constitutes a claim for educational malpractice if the claim “raises questions concerning the reasonableness of the educator’s conduct in providing educational services.” Dallas Airmotive, 277 S.W.3d at 700 (citing Christensen v. S. Normal Sch., 790 So. 2d 252, 255 (Ala. 2001)). Likewise, “if the claim requires an analysis of the quality of education received and, in making that analysis, the fact-finder must consider principles of duty, standards of care, and the reasonableness of the defendant’s conduct, the claim is one of educational malpractice.” Id. The following are other claims that fall under the general rubric of educational malpractice:
- failure by the institution to educate or train effectively (see, e.g., Christensen, 790 So. 2d at 255;
- an institution providing inadequate, substandard, or ineffective educational services (see, e.g., Jamieson, 473 F. Supp. 2d 1153 (quoting Alsides, 592 N.W.2d at 473); and
- a request that a court or other judicial body evaluate the course of instruction or method of teaching adopted by an institution.(See, e.g., Dallas Airmotive, Inc. v. FlightSafety Int’l, Inc., 577 S.W.3d 696, 700 (Mo. Ct. App. 2008) (citing Vogel v. Maimonides Acad. of W. Conn., Inc., 754 A.2d 824, 828 (Conn. Ct. App. 2000)); Lawrence v. Lorain Cnty. Cmty. Coll., 713 N.E.2d 478, 480 (Ohio Ct. App. 1998); Andre v. Pace Univ., 655 N.Y.S.2d 777, 779 (N.Y. App. Div. 1996).
In rejecting such claims, courts across the country have relied on basic policy grounds first enunciated by a California appellate court:
On occasions when the Supreme Court has opened or sanctioned new areas of tort liability, it has noted that the wrongs and injuries involved were both comprehensible and assessable within the existing judicial framework. . . . This is simply not true of wrongful conduct and injuries allegedly involved in educational malfeasance. Unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught, and any layman might—and commonly does—have his own emphatic views on the subject. The “injury” claimed here is plaintiff’s inability to read and write. Substantial professional authority attests that the achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified.
We find 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.
Page v. Klein Tools, Inc., 610 N.W.2d 900, 903 (Mich. 2000) (quoting Peter W. v. S.F. Unified Sch. Dist., 131 Cal. Rptr. 854 (Cal. Ct. App. 1976)).
Other courts addressing the viability of educational-malpractice claims have echoed these concerns and have succinctly summarized the policy considerations as follows:
Several public-policy concerns prevent the courts from recognizing a cause of action for educational malpractice. First, no satisfactory standard of care exists by which the fact-finder could effectively evaluate an educator. Second, the requisite elements of proximate cause and damage would be affected by uncertainties such as a student’s attitude, motivation, and temperament. Third, recognizing educational malpractice as a cause of action would create a huge potential for a flood of litigation against schools. Finally, recognizing educational malpractice as a cause of action would threaten to embroil the courts in overseeing the day-to-day operation of schools.
Christensen v. S. Normal Sch., 790 So. 2d 252, 255 (Ala. 2001) (citing Ross v. Creighton Univ., 957 F.2d 410, 414 (7th Cir. 1992)).
What Does a Claim for Educational Malpractice Look Like?
Because courts have uniformly rejected claims for educational malpractice, plaintiffs typically attempt to disguise their claim for educational malpractice as either a generic tort, such as negligence or fraud, or a breach-of-contract claim. Such efforts lead to confusion because “[t]he distinction between an educational malpractice claim and a cognizable negligence claim arising in the educational context may not always be clear.” Dallas Airmotive, 277 S.W.3d at 700. Therefore, an attorney representing an institution providing educational or training services must be able to parse the labels used by a plaintiff and determine whether or not its claims actually equate to educational malpractice.
To make such a determination, a lawyer should look at the object and/or focus of the claim. Does the claim, whether premised in contract or tort, focus on the adequacy of the education or training provided, the competency of the faculty, or the curriculum as a whole? Is the plaintiff claiming that the school breached a duty to provide a certain level of education or a particular outcome based on the education or training received? Is the student blaming the school for events that occurred (or didn’t occur) following the student’s graduation or completion of the program? If the answer to any of those questions is yes, then the claim is likely one for educational malpractice. As a further illustration, several real-world examples in which a plaintiff attempted to disguise his or her educational malpractice claim as a more traditional claim are instructive:
- In the wake of an airplane accident resulting in the death of the pilot and several passengers, a flight-training school was sued for negligence and breach of warranty. According to the party filing the claims, the training school breached its duty to exercise reasonable care so as not to cause physical injury by failing to alert and warn the pilot of the dangers associated with taking a certain action while in flight and by using an inaccurate flight simulator. The court recognized a duty on the part of an educator to use reasonable care to prevent injury but limited the duty to the use of reasonable care “in the course of instruction.” The court found that the claims were not the result of conduct that occurred during the course of instruction or supervision; instead, the claims focused on “the quality of instruction.” As a result, the claims were not cognizable. See Dallas Airmotive, 277 S.W.3d 696.
- A former nursing student filed suit against the owner of a for-profit school, seeking damages for breach of contract and deceptive trade practices. The student claimed the school breached promises contained in the student handbook and program catalogue by (1) failing to provide adequate classroom facilities; (2) failing to provide “qualified instructors”; (3) conducting improper student evaluation; and (4) not providing a full 50 minutes of class instruction per hour. The student further contended that the school engaged in deceptive practices by displaying a plaque indicating an affiliation with a professional nursing association. The court granted the school’s motion for summary judgment, finding that the former student’s claims were nothing more than disguised educational-malpractice claims and that the student failed to present any evidence in support thereof. See Papaspiridakos v. Educ. Affiliates, Inc., 2013 WL 4899136 (E.D.N.Y. Sept. 11, 2013).
- An apprentice linesman brought an action alleging that a trade school he attended negligently failed to instruct him on the proper method to climb utility poles during a three-week course on climbing utility poles. Specifically, the plaintiff claimed that the defendant assumed a duty to teach him the fundamentals of pole climbing and was negligent in performing that duty. The court affirmed the grant of summary judgment to the trade school based on its finding that the plaintiff’s claims were really claims for educational malpractice. See Page v. Klein Tools, Inc., 610 N.W.2d 900 (Mich. 2000).
While claims against the overall effectiveness of an educational program are barred, courts have recognized claims against educational institutions in some narrow contexts. For example, some courts have upheld claims “against an educational institution for breach of contract, fraud, or misrepresentation, if it is alleged that the institution failed to perform on specific promises it made to the student and the claim would not involve an inquiry into the nuances of educational processes and theories.” Alsides v. Brown Inst., Ltd., 592 N.W.2d 468, 473 (Minn. Ct. App. 1999) (citing Ryan v. Univ. of N.C. Hosp., 494 S.E.2d 789, 791 (N.C. Ct. App. 1998)). For example, the Connecticut Supreme Court noted two exceptions to the general rule prohibiting educational-malpractice claims:
There are, however, at least two situations wherein courts will entertain a cause of action for institutional breach of a contract for educational services. The first would be exemplified by a showing that the educational program failed in some fundamental respect, as by not offering any of the courses necessary to obtain certification in a particular field. The second would arise if the educational institution failed to fulfill a specific contractual promise distinct from any overall obligation to offer a reasonable program.
Gupta v. New Britain Gen. Hosp., 687 A.2d 111, 120 (Conn. 1996) (internal citations omitted).
Likewise, courts have found that claims asserting intentional torts, such as fraud or deceptive trade practices, do not fall within the general bar for educational-malpractice claims. For example, if an institution claimed to have certain credentials or affiliations that it did not actually possess, a plaintiff could succeed in avoiding summary judgment under the educational-malpractice doctrine. See Thomas v. Nat’l Coll. of Va., Inc., 901 F. Supp. 2d 1022, 1032–34 (S.D. Ohio 2012); see also Christensen v. S. Normal Sch., 790 So. 2d 252, 255–56 (Ala. 2001) (noting that the plaintiff could maintain a fraud claim if properly pleaded and supported with evidence).
Defending a Claim of Educational Malpractice
As one can infer from the discussion above, the defense of an educational-malpractice claim can be summed up in two basic steps: (1) determining whether the claim is actually one for educational malpractice and (2) establishing, through discovery, that the claim, however labeled, is actually one for educational malpractice. The first step is fairly straightforward and can be determined by answering a couple of simple questions:
- Who is the client? If the client is an institution whose primary focus is education or training of any kind, the attorney should be on alert for potential educational-malpractice claims.
- What is the true substance of the claims? For purposes of answering this question, the attorney should ignore the labels put on the claims pled and attempt to discern the actual basis of the plaintiff’s claims. What is the plaintiff truly complaining about?
After analyzing these two questions, the attorney should have a good idea whether the claim sounds in educational malpractice.
If the claims asserted by the plaintiff do sound in educational malpractice, the next step is to tailor discovery in the case to reveal that fact. While this can sometimes be done through carefully crafted interrogatories (and possibly, but more rarely, requests for admission), the plaintiff’s deposition will be key in establishing that a claim falls within the rubric of educational malpractice. Ideally, the attorney should steadily parse the language of the complaint until the deponent admits or otherwise acknowledges that the underlying basis of his or her claim—whether for negligence, fraud, or breach of contract—is that the institution failed to properly educate or train him, her, or someone else, or that the institution’s program is subpar, resulting in the injuries alleged in the complaint. Once accomplished, the case should be ripe for summary judgment based on the authority referenced herein.
Keywords: mass torts litigation, educational malpractice, tort, breach of contract, negligence
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