Education Malpractice?

  [I wrote most of this blog last spring, but held off completing it until after the Eighth Circuit Court of Appeals issued its decision in Baker v. Bentonsville.]

Last spring I had a flood of calls from Iowa parents asking if they could sue a school district, area education agency, or an employee of either for “education malpractice.” The short answer is probably not because the courts have refused to recognize a cause of action for education malpractice. 

Malpractice is a tort (a civil wrong) based on reasonableness and fault. Under tort law, an individual who has suffered because of the improper conduct of another person or entity may sue for money damages. The purpose of tort law is to balance a plaintiff's claim to protection from harm against the defendant's freedom of action. Malpractice focuses on the duty owed to the recipient of the professional service and whether that duty has been breached, causing injury. See DeMitchell, T., King, S., & DeMitchell, TA. 2022. Educational Malpractice: Is it a tort whose time has come? 32 U. Fla. J.L. & Pub. Pol'y 253, 262.

Educational malpractice complaints are generally brought under the theory of negligence and focus on the reasonableness of the conduct of school officials in providing the basic functions of teaching, supervising, placing, and testing students in relation to academic performance.  

Between 1982 and 2023, Iowa’s state and federal courts and the Eighth Circuit Court of Appeals have issued 66 decisions involving educational malpractice claims. I have briefly summarized four of them below. 

1986 Moore v. Vanderloo, 386 N.W.2d 108, 113-15 (Iowa 1986). 

In the Moore decision, the Federal District Court for the Northern District of Iowa recognized three categories of educational malpractice. 

1. Basic academic instruction or misrepresentation of the level of academic performance,
2. Placing or failing to place a student in a specific educational setting, 
3. Supervision of student performance. 

In denying relief to the plaintiffs, the court gave five policy reasons for its refusal to make any of these categories actionable:

1. the absence of an adequate standard of care, 
2. uncertainty in determining damages,
3. the burden placed on schools by the potential flood of litigation that would probably result, 
4. the deference given to the educational system to carry out its internal operations, and 
5. the general reluctance of courts to interfere in an area regulated by legislative standards.

The court also posited that educational malpractice claims "would force the courts blatantly to interfere with the internal operations and daily workings of an educational institution" which would be contrary to academic freedom and the autonomy of schools. 

2001 Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 121 (Iowa 2001). 

In Sain, the Iowa Supreme Court dismissed the educational malpractice claims of a former Cedar Rapids Community School District student who was being recruited to play Division I college basketball. He filed suit against the District after losing his scholarship to play basketball for a major college when it turned out that one of the courses he took on the advice of his high school guidance counselor had not been accepted by the NCAA Clearinghouse. The student filed an action claiming that the guidance counselor breached a duty to provide competent academic advice concerning the student’s eligibility to participate in Division I sports as a freshman. In finding against the student, the court held that the school district had no duty to provide a list of courses for approval to the NCAA.

2020 Richardson v. Omaha Sch. Dist., 957 F.3d 869, 872 (8th Cir. 2020)

The Eighth Circuit Court of Appeals denied relief to the parents of a child with disabilities who claimed that the school had engaged in educational malpractice in violation of the ADA and § 504 when it failed to ensure that their child was not bullied. In finding against the parents, the court stated that Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the ADA, 42 U.S.C. § 12131-12165, do not create general tort liability for educational malpractice. 

The court explained that when alleged ADA and § 504 violations are based on educational services for disabled children, the plaintiff must prove that school officials acted in bad faith or with gross misjudgment," and further explained:

In order to establish bad faith or gross misjudgment, a plaintiff must show that the defendant's conduct departed substantially from accepted professional judgment, practice, or standards so as to demonstrate that the persons responsible actually did not base the decision on such a judgment. Bad faith or gross misjudgment requires more than "mere non-compliance with the applicable federal statutes." The non-compliance "must deviate so substantially from accepted professional judgment, practice, or standards   as to demonstrate that the defendant acted with wrongful intent." 

2023 Baker v. Bentonville Sch. Dist., 75 F.4th 810, 815-16 (8th Cir. 2023)

A young child with impaired visual acuity had several playground accidents (i.e., tripping on a concrete slab, colliding with the foot of a child playing on the monkey bars, etc.). The school implemented a § 504 Plan with safety provisions and no further accidents occurred.  A year later, after the child was diagnosed with epilepsy, her parents filed a lawsuit against the school district claiming the district had committed educational malpractice in violating Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.  

As in the case above the Eighth Circuit said that neither the ADA nor § 504 create general tort liability for educational malpractice and further stated that in the context of children with disabilities, either bad faith or gross misjudgment must be demonstrated before there is a viable claim for a § 504 violation. Explaining that bad faith or gross misjudgment requires more than mere non-compliance with a rule; the non-compliance must deviate so substantially as to demonstrate that the defendant acted with wrongful intent. It concluded, “This rule reflects a proper balance between the rights of handicapped children, the responsibilities of state educational officials, and the competence of courts to make judgments in technical fields.”

Playground Accessibility

I recently took my niece to play at a newly constructed elementary school playground. I noticed that much of the engineered wood fiber (EWF) had been kicked out of the areas below the swings, climbing equipment and slides. The EWF seemed fluffy” and not at all compacted. As I crossed the drifts and ruts in the playground’s surface, I was glad I was wearing sturdy laced athletic shoes. 

While watching my niece, I sat on a bench and visited with a mother whose 9 year old son who was seated next to her in a wheel chair. While we talked, she kept an eye on her 7 year old son and his friend who were running across the ramps of the colorful playground structure. She told me that she wished her 9 year old  could also enjoy the playground, but that despite his good upper body strength, he cannot wheel his chair across the wood chip surface without becoming stuck after a few feet. She said that she can no longer carry him to the swings, or take his wheelchair to the ramp of the playground structure, then carry him to his wheelchair. I explained to her that the Americans with Disabilities Act requires that school playground surfaces be accessible to children who use wheelchairs and the adults who supervise them.  I further explained that a complaint could be filed with the U.S. Department of Education Office of Civil Rights or the U.S. Department of Justice Disability Rights Section to enforce her son’s right to an accessible playground surface.

Here’s a quick explanation of the ADA law that applies to school playground surfaces, and some information about how find out about the installation and maintenance required in order for a particular EWF playground surface to be “ADA compliant.”

Applicable Law

Title II of the Americans with Disabilities Act (ADA) is a statute that prohibits nondiscrimination on the basis of disability by state and local entities including public schools.  It provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 

The ADA’s implementing regulations require each newly constructed or altered facility to be readily accessible to and usable by individuals with disabilities. State and local government facilities must follow the requirements of the 2010 Accessible Design Standards. 

A school playground that has been altered or newly constructed on or after March 15, 2012, must comply with sections 1008.2.6.1 and 1008.2.6.2 of the 2010 Accessible Design Standards.

1.  Section 1008.2.6.1 of the 2010 Standards addresses access for children with mobility disabilities and for adults who cross the playground to supervise children. It requires the playground ground surface to comply with ASTM F 1951 at the time of installation and throughout the life of the playground. The playground surface under and around play equipment must also comply with ASTM F 1292. 

2.  Section 1008.2.6.2 requires that playground surfaces comply with the shock-absorption standards set out in ASTM F 1292 from the time of installation throughout the life of the playground, and requires a school district to close any noncompliant playground until it is brought into compliance.

How to find out what is required in order for an EWF playground surface to be “ADA compliant?”

1.  Obtain from the school district the name. manufacturer and vendor of the EWF product used on the playground. 

2.  Go to the website of the manufacturer or vendor and download the ASTM lab test reports for the product. Sometimes these are called “wheelchair” and “head impact” reports.

3.  Read the lab test report to find out the conditions under which the EWF was tested and passed its tests for accessibility and "impact attentuation" (shock absorption).  The product must be installed and maintained in accordance with those conditions in order to comply with ASTM F1292 and F1951.  

Note:  All of the EWF product lab reports I have read state that the product complies with ASTM F 1292 and ASTM F 1951 only if it is installed in four inch layers and compacted between each layer until a 12 inch compacted depth is achieved.