"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things."

~ Niccolo Machiavelli, historian and writer

Wednesday, April 20, 2011

'Educational Malpractice' Revisisted

Interesting news out of the US at the moment - some faithful readers may recall a post from way back in the way back on the issue of whether tere was such a thing as a tort of educational malpractice in Canada- the answer being, much as we might wish it were otherwise, pretty much a resounding NO.

And while I remain unsure how much (if any) practical difference it may ever make here, it's interesting to see that the US Supreme Court has formally asked the US Solicitor General's office for its position on whether a parent can bring a negligence claim against a school district that allegedly failed to identify a high school student's disabilities.

Sounds a bit like our old friend, "educational malpractice", doesn't it?

The story goes something like this:
According to court papers, when the student was in 10th grade, her teachers became concerned that her work was "gibberish and incomprehensible" and that she had failed every class. The school district referred the girl to a mental health counselor, who recommended that the student be evaluated for learning disabilities. The district did not follow the recommendation, and it promoted the girl to the 11th grade. [Ed. Note: Sound familiar?]

The mother later made a request for an individualized education program for her daughter, and the district determined that the girl was eligible for special education services for a learning disability.

The mother brought an administrative claim under the IDEA, arguing that the school district failed under the law's "child find" requirement to identify the girl's disabilities sooner. That requirement obliges states to ensure that all children with disabilities who are in need of special education services are identified, located, and evaluated.
This is where the story really diverges from the Canadian situation in that (as I've previously noted on more than one occasion) although Nova Scotia (and other Canadian provinces) uses much of the wording from the American legislation (IDEA), our Education Act has none of its teeth. Nor do we have any of the built-in as-of-right administrative law remedies you will see below.
An administrative law judge largely sided with the family, ordering as much as 150 hours of compensatory tutoring for the girl's lost educational opportunities. However, the judge refused the family's request for a private school placement at public expense.

The school district appealed that ruling in federal district court, arguing among other things that if the family prevailed, students with disabilities would be able to bring "educational malpractice" claims against districts.

The district court rejected the school district's arguments, and a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, also sided with the family.

In a 2-1 decision in March 2010, the 9th Circuit panel rejected the school district's arguments that the IDEA did not authorize claims where there was no affirmative refusal to act on the part of district officials. The majority held that there was a broad jurisdictional mandate under the federal special education law, and that in this case there was "willful inaction" on the district's part in the face of numerous "red flags" about the student's disabilities.
Although there was one dissenting voice in the US Court of Appeals decision, the parents certainly do appear to be making headway.  It will be very interesting to see where this case eventually ends up (as in how the US Supreme Court - which would be the equivalent of the Supreme Court of Canada - decides) and, if the parents are successful, whether or not there will be any language in the decision which might be useful for Nova Scotian Canadian parents.

Don't hold your breath though - apparenlty the Solicitor General's office typically takes several months to respond to a request for its views in any given case and the Court's decision itself could take much, much longer. 

Still, something to keep an eye out for - Compton Unified School District v. Addison (Case No. 10-886).

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