Since the Peter W. v. San Francisco Unified Sch. Dist. (1976) case, lawsuits brought under educational malpractice have uniformly failed. Will the push for increased teacher accountability, the development of teaching standards, and the use of VAM models resurrect educational malpractice as a viable tort? Should it be resurrected?
Since VAM's are psychometrically incoherent (you can't use a student assessment to infer teacher effectiveness--please see Greg Camilli's work), I doubt they will be the vehicle. "Educational malpractice" is not defined, nor do I think it can be defined. To be blunt, teaching is far more complicated and nuanced than surgery.
So, my response is no. And we're starting to see that courts agree, at least when it comes to teacher tenure cases based on VAMs.
Thanks Catherine. Four years ago I co-authored an article on educational malpractice and VAM. Our position follows your position regarding the the highly questionable use of VAM for high stakes personnel decisions. Four years later, after a number of states are using VAM as a portion of mandated teacher evaluation protocols, I wonder if there is a movement toward using malpractice as a lever for personal teacher accountability for harm caused by a breach of a duty. As we articulate standards for teaching we define the duty (instructional) owed to students. If we use VAM as a vehicle that seeks to establish a link between what student outcomes should be attained will it be used to establish causation.
I am currently reading Mark A. Paige's Building a Better Teacher: Understanding Value-Added Models in the Law of Teacher Evaluation (2016). He has an excellent analysis of the cases (e.g., Cook v. Stewart) that review the constitutionality of VAM models.
Your comments are most helpful.
Best,
Todd
Todd,
I think your points are quite timely (and, since the idea was floated 4 years ago, maybe ahead of time!). There does seem to be a movement to use accountability as a lever in tort. Indeed, it seems that the increase in lawsuits linked to these measures suggests that folks are exploring these theories. At the very least, these "innovations" in accountability invite the prosecution of these theories. An analogy would be the school finance suits that used NCLB's accountability measures as a means to demonstrate a failure to meet constitutional duties. As you note, the civil action of a tort is defined - by tort definitions (duty, failure to follow that duty, and cause of injury).
This dialogue is very helpful.
Thanks! Mark
Thanks Mark for your response. I know that you have studied (including your latest book) this issue of the use of VAM in high stakes personnel decisions. It does seem to me that when state laws require the use of VAM type models for the evaluation of individual teachers and not just curricular evaluation for alignment purposes, that an argument for a student individual remedy for "failure to learn" may assist the viability of educational malpractice as a remedy. it may provide a legal veneer for using this statistical model to demonstrate that a duty was breached and that the breach was the cause of the injury.
I don't support this argument given the highly questionable current use of VAM. But as seen in several court cases that you have discussed regarding VAM, a law using VAM may pass constitutional muster as rational (as in meeting the rational basis test) but may not be reasonable.
Thanks for joining the conversation
Best,
Todd
I agree, Todd -- the use of VAMs and teacher evaluations as a means for some sort of malpractice is problematic on a number of levels! But their introduction to the policy discussion has captured attention of those seeking to "reform" things.
Best, Mark
I personally believe there is no correlation between teacher evaluation purported to be based on student learning, and student outcomes. With rare exception, the teacher evaluation process is to determine employment, nothing else. Will the teacher be granted a contract at the end of the evaluation process? Will "tenure" be granted at the end of the evaluation process? Again, employment is the the ultimate goal of evaluation. To tie this officially adopted practice of determining teacher effectiveness to any type of malpractice accusation is absurd. In totality, the bargaining agreement between the teaching staff and administration is about teacher conditions, not student improvement.
Hi Richard,
I just completed research on the use of value added models in evaluation and employment decisions, largely concluding that this is a bad idea. Most of it is in the work the book, "Building a Better Teacher: Understanding value added models in the law of teacher evaluation" (Rowman & Littlefield, 2016).
Todd, I have to add one more thing on this string -- I think your question about a viable legal theory is a good one - even if the educational malpractice idea does not ultimately succeed, it certainly is possible that litigants can bring that claim and survive a summary judgment motion at the trial court level. If plaintiffs can get by this stage, the stakes are raised quite a bit. Although I think Catherine's point is well taken (that some courts have decided to not view tenure in a similar lens), there is an important procedural distinction to note. The plaintiffs' theory of the case in Vergara was adopted by the trial court. It is conceivable that a trial court could read into certain facts some sort of malpractice. Trial courts are becoming more "active" in educational policy (See recent CT school finance case).
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