In a comment regarding the Dover school board case, Grand Moff Texan asks, <blockquote>Isn’t teaching bad science as science an act of fraud?
Couldn’t parents sue a public institution for willfully damaging their children’s education?</b></blockquote>
Oh, how I wish. I’ve long said it’s one of my dreams in life to be the first attorney to successfully sue a government school teacher for malpractice. Alas, it can’t be done.
First, keep in mind that malpractice is different from fraud. I’ll get to fraud in a minute. Malpractice means, falling below the appropriate level of care for a profession. The reason courts don’t allow such lawsuits is, in part, because nobody knows what the “level of care” is for teachers. In Peter W. v. San Francisco Unified Sch. Dist., 60 Cal.App.3d 814 (1976), a high school graduate sued his school district on the grounds that they negligently and intentionally deprived him of basic academic skills. The court rejected this, on the grounds that “‘[t]here is a special relationship between students and teachers which supports [the teachers’] duty to exercise reasonable care.’” Id. at 820. (Peter W. is a California case, and I can only speak for California law on this subject, but I’m confident the rules are the same everywhere.)
But what is this “reasonable care” that the teachers must exercise? Does it include a quality education? The Court of Appeal found<blockquote>in this situation no conceivable “workability of a rule of care” against which defendants’ alleged conduct may be measured, no reasonable “degree of certainty that…plaintiff suffered injury” within the meaning of the law of negligence, and no such perceptible “connection between the defendant’s conduct and the injury suffered,” as alleged, which would establish a causal link between them within the same meaning.</blockquote>
Id. at 825 (citations omitted). I find this revolting to common sense. A teacher’s standard of care is, obviously, to instruct students with some reasonable degree of success, as measured by objective testing standards. There is most assuredly a degree of certainty that students suffer from incompetent teachers, and there is an obvious causal link between the incompetency of teachers and their employers and the failures of their victim students.
But the Court went on with its policy explanation that it would just burden government schools too much to allow such lawsuits:<blockquote>policy considerations alone negate an actionable “duty of care” in persons and agencies who administer the academic phases of the public educational process…. Few of our institutions, if any, have aroused the controversies, or incurred the public dissatisfaction, which have attended the operation of the public schools…. Rightly or wrongly, but widely, they are charged with outright failure in the achievement of their educational objectives; according to some critics, they bear responsibility for many of the social and moral problems of our society at large. Their public plight in these respects is attested in the daily media, in bitter governing board elections, in wholesale rejections of school bond proposals, and in survey upon survey. To hold them to an actionable “duty of care,” in the discharge of their academic functions, would expose them to the tort claims–real or imagined–of disaffected students and parents in countless numbers. They are already beset by social and financial problems which have gone to major litigation, but for which no permanent solution has yet appeared. The ultimate consequences, in terms of public time and money, would burden them–and society–beyond calculation.
Upon consideration of the role imposed upon the public schools by law and the limitations imposed upon them by their publicly-supported budgets, and of the just-cited “consequences to the community of imposing (upon them) a duty to exercise care with resulting liability for breach,” we find no such “duty….”</b></blockquote>
Id. at 825.
Pause for a moment to admire the stunning illogic of this conclusion. Because government schooling is so bad, and dissatisfies such a gigantic amount of people, as represented in “survey upon survey,” it therefore follows that they cannot be held liable for their faults! Imagine this being said of a private company–an auto maker, or a toy manufacturer, produces products that are so extremely bad that they are charged in survey after survey with massive social problems; their quality is so poor that they are regarded with contempt by every social stratum–therefore the auto maker or the toy maker cannot be held liable for their wrongs? Because it would be too expensive to do so? Such a conclusion would be rejected as utterly ridiculous if advanced by a private enterprise; why should the rules be any different for a government-run enterprise? As Milton said, necessity is the tyrant’s plea. The rationale for government immunity here (as in so many other contexts), if extended logically, would abolish all tort law.
I believe that government teachers hold themselves out to the public as being competent to teach students, and that when they fail to do so, they ought to be held liable for failing to do what they have promised. The fact that they are from the government–and are therefore paid even when they fail utterly to even approach doing their job competently–should not shield them from liability. Unfortunately, this remains the law, at least in California. For more, see Todd A. DeMitchell and Terri A. DeMitchell, Statutes And Standards: Has The Door to Educational Malpractice Been Opened?, 2003 B.Y.U. Educ. & L.J. 485.
Now, as to fraud. Fraud is extraordinarily difficult to prove: it requires the plaintiff to show that the defendant knew the information was false, intentionally conveyed the information, did so in order to induce reliance on that information, and then that the plaintiff was harmed by that reliance. This is very difficult to establish in court.
I know of no case alleging fraud in an educational context–of course, such an allegation would be barred by the Peter W. case–but in Brown v. Compton Unified School Dist., 68 Cal.App.4th 114 (1998), a student sued a school district for negligent misrepresentation (a step below fraud). The court held that the suit was barred by Peter W. as well as statutory protections for government employees:<blockquote>Th[e] strong policy consideration [embraced in Peter W.] may outweigh the allegation that Brown undertook a change in circumstances in reliance on the school district. That question in turn raises an issue whether the school district was authorized to incur the obligation. But even if a duty to Brown were assumed, both Ms. Bonner and the school district are immune from liability for misrepresentations. Government Code section 822.2 protects a public employee acting in the scope of employment from injury due to the employee’s misrepresentation. Section 818.8 extends the same protection to the employer. Brown pled, in essence, that Ms. Bonner negligently misrepresented that the science class in which she counselled him to enroll would meet NCAA eligibility guidelines…. Under sections 822.2 and 818.8 both Ms. Bonner and Compton Unified School District are immune from that negligent misrepresentation.</blockquote>
Id. at 117-18 (citations omitted).
So the answer is, unfortunately, no: teaching a student creationism as though it were real science does not constitute an actionable wrong, at least in California courts.