Reinvigorating Educational Malpractice Claims: A Representational Focus

Abstract

For the past twenty tears, courts have faced a wide array of claims alleging misconduct by schools and their officials. These claims have involved diverse injuries, including: negligence in permitting functional illiterates to pass through the school system; negligent misdiagnosis of learning disabilities; and failure to deliver a promised package of educational skills and services.

The judiciary has almost uniformly refused to allow recovery, in tort or otherwise, for such injuries. Some courts have conceded that, on the pleadings, a good case might be made out. Plaintiffs have nonetheless been turned away because of courts' related concerns with untrammeled litigation and with invading the province of the legislative and administrative bodies charged with operating the schools.

This Article adopts the position that such a wastebasket approach to claims of educational injury is unjustified, and should be abandoned. The Article first attempts to sort out the various kinds of cases that courts have treated identically. It then proposes that a proper focus on the kinds of representations made in the educational setting, and plaintiff's sometimes forced reliance on those representations, can aid in the resolution of these disputes without justifying judicial fears. This emphasis on representation and reliance is justified through an examination of the role that representational notions play in other areas of tort law.

Armed with the ordnance of representation, the Article then reconsiders a wide range of educational malpractice cases, suggesting approaches and solutions to problems that have thus far evaded principled analysis.

Keywords: educational malpractice, education, torts, tort law, education, schools

JEL Classification: K13, I20