The Courts Must Take Action on Educational Malpractice

When members of the U.S. Supreme Court return from their three-month vacation this October, they will hear several major education-related cases. Issues on the docket include Biden’s income-driven student loan repayment plan, school choice, a memorandum on parental behavior, race-based school admission, displaying the Ten Commandments in classrooms, the Bible as a teaching tool, and two cases relating to transgender students.

What you won’t see are any cases of educational malpractice.

That’s not because school performance is outstanding or that there are no constitutional questions regarding the quasi-fiduciary duties of educators and associated personnel.

If anything, revelations like 50 percent of UCLA’s med students failing standardized tests on emergency medicine, internal medicine, family medicine, pediatrics or that just 36 percent of fourth graders are competent at grade level math argue there are significant problems with the system.

If you were in a hurry, you could build a case with just those issues. However the current ideological indoctrination crisis is at least equally if not more compelling.

Faculty and other educational positions across the country are requiring statements regarding how prospective hires will support “diversity, equity and inclusion” (DEI) initiatives in their research, teaching, and other duties. Accreditation boards are injecting DEI and social justice into the curriculum, faculty hiring decisions and the background noise of all assignments, lectures, and course instruction.

The Guide for Inclusive Teaching at Columbia as of March 26, 2018 encourages the following,

If instructors find themselves teaching a course that focuses exclusively on dominant perspectives (for example, Western, white, heterosexual), they should strive for transparency, encouraging students to consider why that is the case and inviting critique.

This document is promoted by the American Association of Physics Teachers (AAPT).

Given the limited time students spend in any classroom, is it any wonder that many fail to learn the subject matter if this is the planned pedagogy even in STEM fields? If that wasn’t enough, what this kind of teaching fails to deliver in reliable subject knowledge, it makes up for by interjecting racism into the curriculum.

In higher education, many students are also required to join professional organizations that have missions and directives for members to adopt and promote ideas like multiculturalism.

Were there studies showing that all student came away from such social justice-infused educational environments with improved comprehension in the subject matter being taught, that would make for a compelling argument, but as the evidence of the med students and fourth graders attest, that is not the case.

This is educational malpractice down to the bone.

Surely students or their families have grounds for a lawsuit, right? Well, no. Malpractice, as we would think of it in terms of medical care, involves proving that:

  1. There is a “duty of care” from the practitioner to the plaintiff;
  2. The practitioner was negligent, violating that duty;
  3. The negligence caused harm;
  4. And the result was losses or damages to the plaintiff.

That’s not how it works when it comes to our school systems. Educational establishments get special treatment.

When students have tried to sue schools based on these principles of professional negligence, the courts have repeatedly rejected their lawsuits.

Case law is littered with the likes of Donohue v. Copiague Union Free School District, where a high school graduate couldn’t understand enough English to write a job application, Bittle v. Oklahoma City University, where a law professor failed to provide instruction by being late, ending classes early or canceling class with no make-up opportunities, and Jennifer Keeton v. Augusta State University, where a counseling grad student was ordered to attend a re-education program because her Christian beliefs were deemed incompatible with being a “multiculturally competent counselor.”

As a noteworthy and appalling aside, the American Civil Liberties Union (ACLU) and the ACLU of Georgia filed a brief supporting Augusta’s right to force students into re-education programs based on the American Counseling Association’s code of ethics which states that it is unethical for a counselor to impose their beliefs on a client. The irony that it’s ok to force counselors to change their beliefs on the grounds that it would be unethical for a practicing counselor to attempt to change a client’s beliefs is stupefying.

Despite many of these cases involving institutes of higher education where students pay exorbitant amounts for the privilege of educational malpractice, the courts fail to uphold student interests.

Courts site the reasons for their rejections as issues like:

  1. The practical difficulties of having uniform standards when educational theories cover a broad scope;
  2. The impossibility of proving schools are responsible for academic shortfalls;
  3. That favorable judgments would inspire cascades of further educational malpractice lawsuits;
  4. And particularly in places of higher education, judges are loath to meddle with academic freedom.

While academic freedom is no small matter, look at where we are now. The lack of accountability from professors, educators, administrators, accreditators, even when they are actively running programs of bigoted social justice indoctrination is revolting. Citizens and students have more protection from buying a lemon car than they do from education gone wrong.

Yet the stakes of educational malpractice are arguably much higher. In the case of post-secondary education, it can cost a single individual student hundreds of thousands of dollars.

When the final accounting is done for the price of our current state of pervasive educational malpractice, it won’t just include the misspent tuition and fees. It will also be counted in lives lost to incompetent medical and other professionals who failed to pass basic tests in their fields.

Should we console ourselves that at least some of the deceased may have felt like they had representation, at least for a time?

Image by sorapop — Adobe Stock — Asset ID#: 522383351 & “You’ve learned nothing” added by Jared Gould

Discussion

  1. Dr. Ed

    ” is unethical for a counselor to impose their beliefs on a client.”

    Keeton never argued otherwise.

    Instead, what she said was that if she had a gay client — who wanted to talk about gay issues — she’d find the client a different counselor whom she thought would be better able to help the client.

    Fundamentally, there is nothing wrong with that — in fact, ethical rules require it. A lot of rape victims become counselors, and no one makes an issue of the fact that they shy away from male clients. And all Keeton said is that she would keep the client’s best interest at heart by finding someone who could better help this particular person than she.

    The APA’s attitude was that she instead had to be brainwashed into abandoning her personal religious values. That other values be imposed on her…

    That’s what’s so scary about this.

    Reply
  2. Dr. Ed

    “As a noteworthy and appalling aside, the American Civil Liberties Union (ACLU) and the ACLU of Georgia filed a brief supporting Augusta’s right to force students into re-education programs based on the American Counseling Association’s code of ethics which states that it is unethical for a counselor to impose their beliefs on a client.”

    It’s actually far worse than this, and the ACLU truly ought to be ashamed of itself for either not realizing what the real issue was, or ignoring a “civil liberty” issue that it once would have instead defended — which it once did defend…

    Without going too deeply into the weeds here, the First Amendment of the US Constitution, as incorporated by the Fourteenth Amendment of the US Constitution (and a whole bunch of decisions by the US Supreme Court) prevents a state university from “prohibiting the free exercise” of a religion. Again without going deeply into the weeds, a citizen does not necessarily have the right to “practice” a religion (e.g. human sacrifice) but you have an absolute right to “believe” whatever you want to.

    Hence Pastafarianism is a legitimate religion — you have the right to believe that the Lord is a “Flying Spaghetti Monster” (or something like that) and the state does NOT have the right to force you to believe otherwise. There is no requirement that your religion be correct, or even logical — and it was the sad history of the Puritans hanging Quakers on Boston Common that led to a consensus that the government ought not be imposing religious tests upon the populace.

    Augusta State University is a public university, a subdivision of the Georgia State Government, and hence ordinarily there’d be no issue here. She could have opened her Bible, pointed to Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”) and that would be the end of it.

    The difference here is that the American Psychological Association, being a private organization, has the right to engage in religious discrimination. And it does — it disqualifies anyone who holds the religious belief expressed by Leviticus 18:22 — all observant Jews and Christians, and Muslims as similar values are expressed in the Koran.

    The problem is that the APA is a state actor — like with the ABA and law schools, APA approval of a psychology program is a prerequisite for the program’s graduates to obtain state licensure. And as a state actor, the APA no longer has the right to engage in religious discrimination — it becomes bound by the same rules the state is!

    Keeton lost because Augusta State was in a no-win position — if the program had respected Keeton’s rights, its other graduates would no longer be able to obtain state licenses and hence as an agent of the APA, it had the right to deny her Constitutional rights. The court avoided asking the next question — if the APA had the right to deny her Constitutional rights — which it doesn’t…

    Keeton sued the wrong party — she should have sued the APA and thrown in an anti-trust complaint for good measure. In other words, either the APA is a state actor denying her Constitutional rights, or it is an illegal monopoly conspiring to deny her Constitutional rights, and either way she wins…

    The larger issue here is that the Georgia State Legislature should “fix” this mess by legislative fiat — it ought to play hardball with the APA.

    The first thing it ought to do is legislatively reverse the Keeton decision — to put a line in the legislation authorizing state universities that prohibits discrimination on religious views relative to homosexuality. The state legislature has every right to do this, and Augusta State can either comply or be shut down as the state owns the campus.

    And then see what the APA does — if the APA decides to actually no longer recognize Georgia state psych programs, then the state (a) no longer requires APA program approval for licensure and (b) no longer recognizes APA approval of psych programs — that program approval by a state entity would now be required. In order for their graduates to be licensed in Georgia, both private universities in Georgia and all universities elsewhere would have to obtain (and pay for) Georgia approval in addition to APA approval.

    If Georgia were to establish reciprocity agreements with just contiguous states, it would cause serious problems to the APA because these programs are largely regional and why should an Augusta State bother to care about APA approval when their graduates can all be licensed on the basis of the Georgia approval.

    Reply
    1. Suzannah Alexander

      Hey Dr. Ed,

      You make an interesting point here, and one that I looked into myself. I think the lack of accountability for the accreditation bodies in counseling and psychology, where there is faith and viewpoint discrimination against students, is atrocious.

      In discussing the situation with lawyers, I was informed that it would be very hard to prove that the discrimination was tied to the accreditors because they only set the standard and it is the university which is responsible the instruction and enforcement (or not) of their own rules. In sum, because they can point the finger at the university, you’d have to build a case that shows it is the accreditation itself that is the direct source of the problem such that they can’t wiggle out. While it wasn’t explicitly said, my take away was that required very deep pockets and would still be a gamble.

      Thanks for you comments too. I look for what you say here at Minding the Campus. Your perspective never fails to make me think.

      Reply
  3. Jonathan

    The courts would do well to steer clear. More proposals for judicial ovrrreach, now from the right. I wish the author well in recovering from a bad experience. A little more due diligence next time?

    Reply
    1. Dr. Ed

      OK Jonathan, would you argue the same for medical malpractice?

      How about Dr. Patrick Chavis who, amongst other things, was sued for malpractice some 27 times?

      Chavis is the minority who got Allan Bakke’s seat in medical school, and whose medical license was eventually revoked for his “gross negligence, incompetence and repeated negligent acts.” Discipline taken by the State of California so we are not talking about some right-wing bastion of racism, and finally revoked because of his horrific treatment of three Black female patients, one of whom died. See: https://www.deseret.com/2002/9/2/19675187/affirmative-action-turns-lives-into-tragedies/

      The author’s argument, which has merit, is that legal liability ought not end with Chavis.

      He clearly should never have been licensed as a physician so why shouldn’t there be liability for the professors who passed him and (notwithstanding the 11th Amendment) for the medical school which graduated him? Unlike a lot of medical malpractice cases, this is not a close call involving a good physician who might have made an honest mistake or whose judgment call in the midst of an emergency might later be identified as perhaps not the best of possible options available to him at the time.

      No, this is someone who “demonstrat[ed] an inability to perform some of the most basic duties required of a physician.” Someone who was reprimanded by a disinterested panel of peers for a forceps delivery. Someone who ignored the “horrific screaming” of his patients.

      So why shouldn’t UC Davis be sued for malpractice? They are the ones who really caused this — and they are the ones who could have (and should have) prevented it…

      Reply
    2. Patti

      Actual who should sue are the parents. In my state 50% of the property taxes are used to fund public education. We are not getting our monies worth. Not even close.

      Reply
      1. Dr. Ed

        It’s more than that Patti if you are discussing K-12.

        In addition to 50% of the property tax money, I think you will also find that your state kicks in money for K-12. This started as an attempt to balance school funding between schools funded by communities with high property tax bases and those funded by less prosperous communities — and it expanded into a “me too” handout for everyone.

        Also, how does your state finance the construction of new schools — in most states, a good chunk of that money comes from the state. And again (in most states — NH is one exception that comes to mind) teachers are part of the state retirement program and most state retirement plans are underfunded liabilities of the state. Likewise teachers participate in state-subsidized health plans.

        And then there is the Federal money — it’s a complicated mosaic that I am not going to discuss here, but there is considerable Federal money going to your local K-12 school,

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