Recently seven students attending public schools in Detroit sued the state of Michigan in a Federal district court. Shortages of materials, not having skilled teachers, and poor conditions of their school buildings had deprived them of access to literacy, which, they argued, is essential in order to enjoy the other rights enumerated in the Constitution.
Owner - Pemberton Research
Former Brookings Expert
From a research perspective, the case is interesting because the students (their law firm, at least) argued explicitly that evidence-based literacy programs are available and codified by the Institute of Education Sciences’ ‘What Works Clearinghouse,’ and, indeed, the suit names various reading programs supported by evidence that the state of Michigan did not use in Detroit schools.
The judge agreed that conditions in Detroit schools were ‘nothing short of devastating,’ but he ruled against the students because, he argued, a right of access to literacy is not among the fundamental rights in the Constitution. The case is being appealed to a Federal circuit court.
The students in the Michigan lawsuit were making their case at the Federal level, and for a judge to create a new right at that level is a tough ask. Why not argue at the state level that the school district (or, in this case, the state managing the district) was guilty of malpractice? The answer is that chances of winning are miniscule at that level. The K-12 education system has been nearly immune from claims of malpractice. A recent scan covering the past 40 years found 80 cases alleging education malpractice, and only 1 was successful (that it was successful could be traced to particular wording in the Montana state constitution).1
Doctors, lawyers, accountants, and financial advisers can be and are sued for malpractice. (One study reported that about half of surgical specialists were sued for malpractice at least once within a six-year period.2) Unlike doctors, lawyers, and other service providers, individual teachers are hired and monitored by districts and most decisions about curricula and materials are made at district levels. But why not sue districts? The answer is that such suits will probably lose. The reason is succinctly put by DeMitchell and DeMitchell: ‘While educators can be held liable for infringing on students’ rights and for negligence that causes students physical harm, educators do not have a legal responsibility to educate students.”3 (Emphasis added.)
That districts and their schools do not have a legal responsibility to educate students might come as a surprise to parents and taxpayers who gave K-12 public schools $634 billion a year as recently as 2014, a sum of money that might lead them to believe that the responsibility to educate students is at least implicit if not obvious.4 It raises the question of how districts came to be immune.
The power of precedent
Part of the answer is that courts follow precedent, the doctrine of stare decisis. Courts have a logical structure for assessing if malpractice occurred: did the provider have a duty to deliver a service (a ‘duty of care’), did they breach that duty, and was the breach the ‘proximate cause’ of injury or damages. Answering these questions is straightforward for simple cases in medicine. For example, a doctor prescribes a drug, that drug injures a patient, and the information about the drug specifically noted that it should not be used for patients having that condition. The doctor had a duty to the patient, breached it, and an injury resulted.
Malpractice is a failure to deliver what a reasonable professional would consider an appropriate service.
Now consider a student who recently graduated from high school, with no condition such as dyslexia that would have hampered his ability to read, but he cannot read. Did his schools commit malpractice? Two landmark cases in the seventies focused on nearly exactly this situation, one in California and the other in New York. Together, the two cases have provided a basis for courts to reject education-malpractice claims for decades.
In 1976, a student, Peter W, brought a lawsuit against the San Francisco school district, alleging that the district committed malpractice because it graduated him from high school when he could only read at a fifth-grade level. A California appeals court ultimately ruled against Peter W. The court concluded it could find no workable basis for imposing a ‘duty of care’ on the school district.5 The court also expressed reluctance to identify schools as a proximate cause of Peter W’s poor education outcomes. The court said that an education is the product of a host of factors, and it was not possible to identify how much each contributed. Even if the court had found that schools had a duty of care, Peter’s malpractice claim would have failed because his poor reading ability could not be causally linked to ineffective teaching.
The court in the 1979 New York case, Donohue vs. Copiague School District, also declined to find malpractice, but for a different reason. The court first noted that ‘If doctors, lawyers, architects, engineers and other professionals are charged with a duty owing to the public whom they serve, it could be said that nothing in the law precludes similar treatment of professional educators.” Having found that a duty of care exists for schools, the court then argued that it was not up to the court to decide on these issues. The court said that finding that schools committed malpractice “would constitute blatant interference with the responsibility for the administration of the public school system lodged by Constitution and statute in school administrative agencies.”6
The implications of the two cases are at odds. The California case did not find a duty of care but did not express reluctance to ‘interfere’ with school administration. The New York case did find a duty of care but expressed reluctance to interfere with school administration. However, between these two cases, future courts had plenty of basis to dismiss malpractice claims–either there’s no duty of care (citing California) or courts should not get involved in these kinds of claims (citing New York).
But from a perspective of forty years of hindsight, courts now have ‘interfered’ on a wide range of school-related issues. As of this writing, 46 states have had court suits about education funding.7 In one of those suits, for example, the New Jersey Supreme Court ordered the state to ensure schools in disadvantaged districts operated full-day kindergartens, provided support to develop literacy in early readers, encouraged parent involvement, limited class sizes in elementary schools, and provided a range of social and support services.8 So much for not ‘interfering’ with school administration. Special education, accommodations for students with disabilities, drug testing in schools, vouchers for private schools—courts have tackled all these topics.
Teachers can be linked to education outcomes
The past two decades also have seen the emergence of a broad array of studies that are able to identify causal links between schools and teachers on the one hand and education outcomes on the other. I wrote previously about studies that identified causal links between education spending and education outcomes.9 More recently, several articles have argued that student test scores required by No Child Left Behind and the ‘Every Student Succeeds Act,’ coupled with their use to rank teachers through ‘value-added models,’ can be a basis for proving malpractice.10 What these scholars emphasize is that so-called ‘value-added’ models yield causal estimates of teacher contributions to a child’s education, and therefore can be evidence that some teachers are ineffective at educating children.
A value-added model uses data on test scores, student characteristics, and classroom characteristics, and estimates how much individual teachers contribute to the increase in test scores from one year to the next. Because the models account for student and classroom characteristics, such as whether students are from disadvantaged households or are learning English as a second language, in principle they create a level playing field for each teacher. If a school district is aware that a teacher is ineffective based on estimates from these models, yet does not remove the teacher the classroom, and indeed continues to assign students to the teacher, the argument is that the district can be found to have committed malpractice and be required to pay damages for deficient learning outcomes.
Hutt and Tang (2013) consider and reject arguments districts might advance about using value-added models to identify ineffective teachers. For example, they note that many states and districts only count a fraction of the value-added score in rating teachers (for example, currently in New Jersey, 35 percent of a teacher’s evaluation depends on test scores). But not basing the entire ranking on the value-added score does not rule out using the value-added score as a causal estimate of teacher effectiveness. It means only that states and districts can admit other factors into teacher rankings. More generally, districts could defend their continued employment of ineffective teachers by arguing that it is customary (‘everyone does it’), or that ineffective teachers need to be tolerated because replacing them is costly and burdensome. To the first point, Hutt and Tang note that districts essentially would be arguing that they are not committing malpractice because lots of districts commit malpractice. To the second point, the employer, the district, would be blaming their own hiring and firing processes for the ineffective teachers they hire and do not fire.
Technical arguments that value-added models do not represent causal effects of teachers ultimately may be where battles are fought. Reardon and Raudenbush point out that in the formal science of causal inference, estimates of teacher effectiveness from value-added models are causal only if it is assumed that students essentially are randomly assigned to teachers.11 Violations of the assumption undermine the claim of causality, and it is easy to imagine, for example, that principals do not randomly assign students to teachers.
A recent scan covering the past 40 years found 80 cases alleging education malpractice, and only 1 was successful.
Also, value-added models are statistical constructs. As the public saw before with the tobacco industry and lung cancer, and as they are seeing now with debates about whether human activity is contributing to global warming, estimates from statistical models are always subject to uncertainty. The statement ‘X causes Y’ is really a statement that ‘the evidence is strong that X causes Y,’ and observers can attach different meanings to ‘strong.’ If a district uses a value-added model to rank its teachers, that model will yield estimates for each teacher that have uncertainty attached to them. How much uncertainty depends on factors such as classroom sizes, characteristics of students, the number of available years of data, and the kind of statistical model that is estimated.
But courts applying a ‘reasonable person’ standard might conclude that a teacher who has been among the lowest-ranked teachers for each of the preceding years based on a value-added model is indeed ineffective, especially if that finding is corroborated by other evidence such as classroom observations oand the quality of the teacher’s lesson plans. Courts deal with uncertainty all the time and a preponderance of evidence means only that the evidence points to the same conclusion, not that it is perfect.12
Malpractice suits serve a dual purpose of providing remedies to persons that have been harmed and deterring the harm itself. If more education malpractice cases were to be judged in favor of plaintiffs (students), the remedy presumably would be the value of lost earnings arising from weaker academic skills. Chetty et al. studied relationships between value-added and adult outcomes and found clear evidence that teacher value added was related to whether students attended college, the quality of colleges attended, and future earnings. Their estimates and estimates from the burgeoning literature on value-added seem like a reasonable basis for courts to set remedies.
In addition to direct costs of litigation and paying damages, the threat of malpractice may heighten scrutiny of value-added scores per se. Districts could opt to take defensive actions such as not making value-added scores public or try to make scores hard to know in other ways. As public organizations, however, states and districts are under pressure from various ‘freedom of information’ laws to make scores public and appearing to dodge scrutiny may be unappealing.
Scrutiny also might generate defensive reactions already alleged to have happened when test scores began to be used for school and teacher accountability. For example, districts might encourage teachers to narrow curricula to focus on reading and math, spend more time ‘teaching to the test,’ and be reluctant to test innovative methods because of their potential downside. Whether and how much this happens are empirical questions. A recent rigorous analysis of medical-malpractice reforms found that doctors improved their quality of care when the standards of care were raised but did not later reduce quality of care if the legal threat associated with malpractice was lowered by a reform like capped damages.13 If education followed the same pattern, districts and teachers would put more attention on teaching quality if malpractice risks associated with employing ineffective teachers escalated.
How might districts and schools take positive actions to deter being found to have committed malpractice? Obviously, focusing on ineffective teachers is part of deterrence. Districts could tighten their criteria for dismissing ineffective teachers (as the District of Columbia Public Schools has done with its IMPACT teacher-rating system), provide high-quality professional development for their teachers, and promote the use of sound instructional approaches in classrooms. Research plays an important role here. Malpractice is a failure to deliver what a reasonable professional would consider an appropriate service. Research showing various practices are more effective than other practices is part of the definition of the ‘appropriate service.’
The seven students in Detroit were arguing that their schools should have grounded literacy instruction in evidence-based practices—what schools delivered was not an appropriate service. Even if courts ultimately decide there is no fundamental right to literacy, the idea that teaching and instruction should be guided by research and evidence is sound.
The author did not receive any financial support from any firm or person for this article or from any firm or person with a financial or political interest in this article. He is currently not an officer, director, or board member of any organization with an interest in this article.
See Melanie Natasha Henry, ‘No Child Left Behind - Educational Malpractice Litigation for the 21st Century.’ California Law Review (2004); Todd DeMitchell, Terri DeMitchell, and Douglas Gagnon, ‘Teacher Effectiveness and Value-Added Modeling: Building a Pathway to Education Malpractice, Brigham Young University Education and Law Journal (2012); Ethan Hutt and Aaron Tang, ‘The New Education Malpractice Litigation,’ Virginia Law Review vol. 99, 3 (2013); Stijepko Tokic, Rethinking Educational Malpractice: Are Educators Rock Stars? Brigham Young University Education and Law Journal, 105 (2014).
Formally, the property that students essentially be randomly assigned to teachers is that students that share the same characteristics are essentially randomly assigned. Assigning students based on their observable characteristics such as previous test scores does not violate the randomness assumption. https://cepa.stanford.edu/sites/default/files/reardon%20raudenbush%20EFP%20VAM%20paper%20resubmission.pdf. Rothstein’s finding that teacher value-added models predicted prior achievement of their students also suggests that students are not being randomly assigned to classrooms. See https://eml.berkeley.edu/~jrothst/publications/rothstein_VAM_EFP.pdf.
The Federal Judiciary Center first published a reference manual for courts on interpreting scientific evidence in 1994 and the manual is now in its third edition. https://www.fjc.gov/sites/default/files/2015/SciMan3D01.pdf.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5417553/pdf/nihms819115.pdf (p. 25: “it appears that the relationship between health care quality and changes in clinical malpractice standards works in an expansionary direction only. That is, once physicians provide a high level of quality, they may maintain such practices even when the law may loosen its expectations at a later date. In contrast, physicians who provide a quality of care that is below what is expected by the law raise their practices to meet the higher expectations set by the law.”)