An average North American student is in school for 1,170 hours each year. Parents and guardians place their trust in the education system daily as kids are shuffled onto school buses. The system sets out to cultivate its students by providing fundamental skills for success in life beyond the classroom. When less than positive experiences start coming home with your child, where can you turn? Perhaps your child is a non- native English speaker, failing in school due to a lack of ESL support; or, the school curriculum is misaligned with your understanding of separation of church and state. The issues that parents and students have with school curriculum and teacher criticism are plentiful.


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If you find yourself in a contentious position with your child’s school; first, file a written complaint with the school district (not the school). Next, set up a face-to-face meeting with school district personnel to request a formal investigation at the meeting. Seek advice from an attorney who can work with you through the process. To understand the process it is also worth your time to research precedent.

Good Teaching vs. Good Learning: Where the Line Blurs

Malpractice is a term most associated with medical or legal situations. Based on professional negligence, the premise of “malpractice” is that a legal obligation to provide a service does not meet a reasonable standard. In educational malpractice, a teacher owes a duty to provide a service (teaching), performed according to set standards, and if the teacher fails, this “breach of duty” could be the potential basis of a lawsuit.

Educators can be guilty of pushing kids with emotional or learning disabilities “through the system” by awarding them inflated (non-merit based) grades, while these same students’ low standardized test scores demonstrate an obvious discrepancy in mastery of grade-level skills. Often, this phenomenon is attributed to “poor test-taking skills,” when in reality the issue at hand is the impact of test scores on subsequent prestige and/or funding. Higher test scores bolster a school’s reputation, after all.

In a Failure To Launch scenario, a student might eek through the years, semi-literate upon graduation, and with diploma in hand land with a thud in the family’s remodeled basement. Who is at fault?

Precedent Rules

For those seeking damages in educational malpractice suits, the likelihood of adjudication in your favor is challenging. Proving that a teacher, or a school district, bears responsibility for a student’s poor academic performance is almost impossible, given the variables in the equation. For example, a student is responsible for self-motivation, and a willingness to participate in the learning process. Furthermore, the home environment – which greatly impacts a student’s well-being – is not in the purview of a school’s responsibility.

Much to the dismay of parents grappling with a child’s lack of success in school, fighting the school district on curriculum is no easy feat. Let us examine why judges often reject educational malpractice cases.

In 1992, the U.S. Court of Appeals for the Seventh Circuit summarized four public policy grounds used to reject educational malpractice claims as such:

  1. Lack of a satisfactory ‘standard of care’ by which to evaluate an educator;
  2. Inherent uncertainties about causation and the nature of damages in light of such intervening factors as a student’s attitude, motivation, temperament, past experience, and home environment;
  3. Potential for a flood of litigation against schools;
  4. Possibility that such claims could embroil the courts into overseeing the day-to-day operations of schools.

There are numerous examples of precedent in which the court ruled on the side of the school system. A couple of landmark cases:

In 1976 a student who graduated high school with remedial literacy skills sued the district in Peter W v San Francisco Unified Sch. Dist., 131 Cal. Rptr. 861. The judge stated, “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.”

San Antonio Independent School District vs. Rodriguez from 1973, based on school funding inequality blocking equal rights to education—the Supreme Court rejected education as a fundamental right under the federal Constitution.

Is a Change in the Air?

A current case in Rhode Island, Cook v. Raimondo, offers a present-day glimpse of public school parents vs. Rhode Island. The case purports the state’s egregious failure to provide an adequate education, faulting the state for its “failure to fulfill its duties under the U.S. Constitution.” There is no explicit guarantee of education in the Constitution, however. The Plaintiffs, in this case, are arguing that Rhode Island is unevenly denying “equal protection under the law” as per the Fourteenth Amendment by not providing equal education for all. This is a new tack in argument intended to make headway for the first time in four decades.

Curriculum Dissenters Making National News

There are exceptions to the rule, though. Look toward Encinitas, California in 2015 where a parent group hired attorneys to fight the San Diego school district’s curriculum. The issue at hand was the Ashtanga yoga curriculum taught in the classroom. The school believed the program promoted exercise, healthy eating and aided in stress reduction for the student body. The parent uproar posed a religious question with those arming the insurrection stating, Ashtanga Yoga taught the children to worship the sun god, Surya, a Hindu deity, while any vestiges of Christianity had previously been wiped from the curriculum. And, how was that fair? The end result: “The 4th District Court of Appeal upheld a decision by the San Diego County Superior Court that, while yoga has religious overtones, the program run by the Encinitas program is ‘devoid of any religious, mystical or spiritual trappings.’’’

In 2016, Cobb County, Georgia, an in-school yoga program also created backlash amongst parents who believed yoga promoted non-Christian beliefs. The opposition to in-school yoga forced change in that the district removed the Sanskrit greeting “Namaste” and all mandalas from coloring books. The yoga curriculum stands.

To summarize, the Federal Government’s role in education today is to enable equal access to education for all and safeguard the constitutional rights of students and teachers. By allocating funds to the school districts adhering to certain protocols mandated by the federal government, a level of control is in place. However, “federal courts cannot make common laws for states.” The onus in establishing and regulating curriculum lies with the state.

According to attorney Mark Steven Kamleiter in St. Petersburg, Florida, “The key to winning ‘due process’ cases is very definitely, what I call ‘case selection.’ These cases are very hard to win, often because there is a certain hearing officer bias toward the public schools. After all, they are doing the ‘best they can.’ That does not mean that the right cases, with the right facts and with strong evidence cannot be won. Many cases are lost because parents do not retain skilled attorneys....”