DennisBeaverMay 14, 2016 • By Dennis Beaver

When under the care of a physician, dentist, or hospital, we are owed a duty due care — they must meet the standards of their profession. Failing–negligent — with resulting significant harm, a medical malpractice lawsuit can be the result.

Most of us are responsible for our negligence which leads to harm. The fear of being sued — or losing a professional license — keeps us on our toes.

But there is one glaring, incredibly frustrating and dangerous exception with life-long consequences that Arcata reader, Terry, discovered when his son was about to graduate from high school:

“He could not read anywhere near the 12th grade level! I asked the school district to pay for a reading tutor, but they denied all responsibility. In speaking with my attorney about the possibility of a lawsuit, I was told that schools can’t be sued for educational malpractice, the failure to teach kids reading — or anything else!

“Is that true? Or, as this is a small county, are the lawyers afraid to take on this type of a suit?” he asked.

Even though many parents and some educators feel that the educational establishment should be accountable for graduating functionally illiterate students, in general, schools cannot be sued for educational malpractice. At most, if they fail or refuse to administer required tests, federal or state funding may be withheld.

Why aren’t educators held accountable for the quality of the educational services they provide our children?

You would think that the high school principal who hands diplomas to kids who can’t read would be pulled by the ear into the Superintendent of Education’s Office and told to write 300 times:

“I promise not to graduate students from my school who can’t read. I also promise to brush my teeth and wash behind my ears.”

Unfortunately, that’s not the way it works, as we learned from Dr. Todd A. DeMitchell, Professor of Education in the Department of Education and the Justice Studies Program at the University of New Hampshire.

“This very issue was the subject of a landmark San Francisco Case — Peter W — in 1976 that began the debate about educational malpractice,” DeMitchell explained, adding, “And the facts are so similar to what your reader, and parents across America are complaining about.”

“Peter W graduated from high school but could barely read or write at a fifth-grade level. He was allowed to advance year after year yet no efforts were undertaken by teachers to provide remedial help. The lawsuit was an effort to hold the authorities who run the schools responsible.

“There have been many efforts to address this problem of high schools graduating functionally illiterate kids through litigation, but virtually all of these lawsuits have been dismissed by the courts,” De Mitchell pointed out.

Why? How do the courts justify giving a get-out-of-jail free card to schools and teachers? Through taxes, we are paying to educate our children. Schools assume an obligation to equip kids with the tools to approach adult life, and that means being literate.

“Your point is well taken,” DeMitchell replied. “It seems to be common sense. Kids attend school and should graduate literate. While educators can be held liable for infringing on students’ rights and for negligence that causes physical harm, there is no legal responsibility to educate students.

“In other words, educators can be sued for providing inadequate supervision, but not for providing inadequate instruction. It isn’t that such cases are impossible to prove in court, rather, it’s the courts who are running from them, afraid of opening a floodgate of litigation,” DeMitchell believes.

“The door to holding schools responsible in court for a failure to educate is gradually being forced open, but the real focus needs to be on the role parents have in creating a learning-rich atmosphere at home,” DeMitchell strongly maintains.

“The human brain is hard-wired to learn. We know that children who grow up in a verbally rich environment do better in school. Years of experience and research proves that when we read with our kids, when they learn at their mother’s knee, they succeed in school.

“Holding a book together, learning to turn the pages, taking a child shopping, pointing out colors, and asking, ‘What are those?’ helps to develop skills which make reading fun, and thereby encourage learning. We need to talk with our children as the ability to understand language in early years–especially multiple languages spoken at home — is simply marvelous!

Finally, DeMitchell offers hope for children of poverty:

“Books–reading and literacy–this is the path out of poverty. Surround your kids with reading materials. It is the greatest gift you can give them.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.