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Educational malpractice: Faculty beware

Educational malpractice: Faculty beware Should a student be enFaculty programsd to damages if a professor of international affairs reallocates her class time to discuss current developments in North Korea, if a biology professor uses less than state-of-the-art microscopes in his laboratory section, or if a school's computer network frequently goes down during a distance education course? Should professors put disclaimers on their syllabi or label them "preliminary"? Maybe so, according to some recent educational malpractice cases in which students have sued their schools and professors for failure to provide them an adequate education.

Courts traditionally have been hostile to educational malpractice claims, in part because evaluating a student's claim involves, according to a federal appellate court, the inappropriate "second-guessing [of] the professional judgment of the university faculty on academic matters."

Accordingly, most courts reject general educational malpractice claims. In Bittle v. Oklahoma City, for example, a state appellate court rejected a law student's claim against Oklahoma City University and its board of trustees. The student's grade point average fell below the minimum required by the school, and it dismissed Paul Bittle. He sued, alleging that his dismissal was caused by the poor performance of his constitutional law professor, who arrived late to class, discharged class early, canceled class, and provided no make-up classes or academic counseling. The court found "no specific agreement . . . for the provision of particular educational services beyond the provision of an adequate legal education," and so dismissed Bittle's suit.

Nevertheless, courts generally will consider educational malpractice claims where specific agreements provide for particular educational services, so long as such consideration does not tread upon, as one court explained, "the nuances of educational processes and theories." Such judicial intervention is especially likely when courts consider student claims against for-profit enterprises.

A recent case involving a proprietary institution raises the specter of serious consequences if the court's reasoning "crosses over" to the traditional academy. Former students at Brown Institute, a Minnesota trade school specializing in computer training, sued the institution for educational malpractice. On the positive side, the state Supreme Court rejected claims it described as related to the "general quality of the instructors and the education [students] received," because to determine whether the school failed to provide an "effective education" would "force" the court to enter into an "inappropriate review of educational policy and procedures."

At the same time, however, the court permitted a number of contractual claims involving what it described as "specifically promised educational services." According to the court, these claims included complaints that instructors were "frequently tardy," "absent," and wasted class time on "personal problems"; that the school failed to provide "hands-on training" on "specific types of computers"; and that the school "failed to deliver the number of hours of instruction described in the materials given to students." These surviving legal issues appear to involve the general quality of education and could have far-reaching implications for the traditional academy.

Moreover, not only may educational malpractice cases be gaining more traction, but students may also be enFaculty programsd to significant monetary damages. Keith Sharick, a fourth-year medical student, sued his Florida university when he failed his final required course-a rural rotation in general medicine-and was dismissed from his program. At trial, the jury ruled that the decision of Southeastern University of the Health Sciences to dismiss Sharick was arbitrary and capricious. Based on this unusual jury verdict, the court found it "appropriate to consider the possibility of lost future earnings" in addition to tuition reimbursement. The dissenting judge expressed concern that Sharick would be awarded "a lifetime's worth of future income for a potential career in an unknown field from a degree not yet obtained." The Florida Supreme Court declined to hear an appeal of the ruling.

One commentator observed that school programs "that culminate in a diploma or professional degree [are] not like a used-car business." However, as more colleges and universities act like businesses-students are "clients" or "consumers," education is a "product"-the less deferential courts may be to the professional judgment of educators and the institutional autonomy of colleges and universities. We must therefore work together to create an intellectual, not simply an economic, "marketplace" on our campuses.

Donna Euben is AAUP counsel.