B. Bateman's legal corner: Educational malpractice
What was Barbara Bateman discussing in the original SET of 1985 and what do know about malpractice in 2025?
Editor’s note: In the 1980s print version of Special Education Today, Barbara Bateman contributed columns offering legal observations about special education. Here SET is reprinting the contents of one of those columns that appeared in 1984 on page 14 of volume 1(5). Contemporary experts David Bateman and Mitchell Yell current status of the issue of malpractice that B. Bateman discussed in her column and offer their contemporary analysis of the ideas and the topic. Readers will find Barb’s column first and then Mitch’s and David’s analysis immediate after it.—JohnL
B. Bateman’s 1984 column on “Educational malpractice”
Few special educators have been fortunate enough to have had formal training in the potential legal liabilities arising from our professional activities. As a result, fears of possible legal consequences are exaggerated in some areas, while undue complacency exists in others. And in all a degree of uncertainty and confusion prevail. The feared pitfalls are many.
Can we be sued for defamation for what we write in student records? For invasion of privacy, if we question parents’ child-rearing practices? For negligence if an orthopedically handicapped child falls, or for battery if we restrain an abusive child? Teachers wonder if they can lose their jobs for truly informing parents of all their rights under the Individuals with Disabilities Education Act. Administrators fear the legal costs of required services for which they have no dollars.
And among all these fears, none is more pervasive or less well understood than “educational malpractice.” Educational malpractice is a subtype of negligence that alleges that a professional educator, like an M.D. in medical malpractice, has not used reasonable care in practicing her or his profession and has thereby harmed a student. Many of us have heard of the Peter W. case, in which a high school graduate attempted to sue the San Francisco schools for failing to teach him to read. However, the court refused to allow the suit on the grounds that schools have no legal duty to ensure that children attain basic academic skills. To prevail in any negligence suit, the plaintiff must prove four elements: (1) the defendant owed a duty of care to the plaintiff; (2) that duty was negligently breached; (3) the breach was the proximate cause of (4) the injury. It is always for the judge (never the jury) to determine whether, in a given case, the first element—duty—is present. If there is no duty, then the case is dismissed. To date, all courts of record have followed Peter W.; none has recognized a duty on the part of schools to teach children (i.e., make certain that they attain certain skills). Therefore, today there is no such legal entity as educational malpractice.
Why have courts refused to say that schools have a duty to teach? None of the reasons speaks well for educators. Judges fear a “flood of litigation” from the disgruntled public. They also fear that successful suits would bankrupt the schools. And, most significantly, they note that educators have no standards by which courts could judge an allegedly negligent practice.
Perhaps the door to educational malpractice has been opened a wee bit by B. M. v. Montana, in which the Montana Supreme Court broke new ground by recognizing educators' duty to use reasonable care in testing and placing children. Clearer professional standards may exist for testing and placing than for teaching, but this distinction has not yet been recognized by other courts. If it is, then educational malpractice may become a reality.
D. Bateman’s and M. Yell’s 2025 observations
Forty years after Barbara Bateman wrote her column on educational malpractice, the concept still has not been realized. To help understand the contemporary status of the idea of educational malpractice, we need to put her column into historical context. Part of the context comes from an historic case decided by the US Supreme Court. Another part comes from many individual court holdings in the lower courts.
Historic Rodriguez decision
The Supreme Court in Antonio Independent School District v. Rodriguez (1973) established that education is not a federal constitutional right. It is primarily the duty of individual states to establish and maintain public education systems. The Tenth Amendment of the U.S. Constitution reserves to the states all powers not delegated to the federal government in the first nine amendments, including the governance of education. Although the U.S. Constitution does not guarantee a right to education, the state constitutions fill that gap, making education a state constitutional responsibility in some form in all 50 states.
Supreme courts in many states have interpreted their state constitutions as providing a right to education. Nonetheless, K-12 schools, are still largely immune from claims of malpractice. As of this writing, Rodriquez has not been overturned. However, many state supreme courts have interpreted their state constitutions to provide a right to education.
Cases in the lower courts
Given that in the US states have authority regarding education, it is valuable to look across individual cases that have brought malpractice or similar charges in the lower courts.
Attorneys, physicians, and accountants can be sued for malpractice. Teachers can be sued for violating students’ rights and for negligent actions that cause student injury. Teachers have also been sued under Section 1983 for failing to implement accommodations written into a student’s IEP (Doe v. Withers, 1993) and for violating a student’s privacy rights under the Family Educational Rights and Privacy Act (L.S. v. Mount Olive Board of Education, 2011). However, teachers and school districts remain insulated from claims of educational malpractice.
A 2016 case came close to setting a standard that would have advanced the concept of educational malpractice. Seven students who attended public schools in Detroit sued the state of Michigan, alleging officials were responsible for their failure to learn due to severe shortages of books and materials, a lack of skilled teachers, and school buildings in poor condition. The plaintiffs argued these conditions deprived them of access to literacy. A judge for the U.S. District Court for the Eastern District of Michigan dismissed the case without a hearing, ruling the students' rights had not been violated and there was no constitutional right to literacy.
On appeal, a three-judge panel of the U.S. Circuit Court of Appeals for the Sixth Circuit ruled 2-1 in Gary B. v. Snyder (2020) that students have a right to a basic minimum education, defined as the opportunity to learn to read. In other words, the court held that there was a fundamental right to literacy under the U.S. Constitution. This decision would have allowed students to sue for such deprivations in federal court.
Following this ruling, the plaintiffs and the state of Michigan reached a settlement. The settlement included individual awards of $40,000 to each of the seven student plaintiffs for their education, $2.72 million in funding to support literacy programs in Detroit schools, and the creation of two task forces to monitor the quality of education in Detroit and advise the Michigan Governor on education reform. The Governor also agreed to propose legislation providing at least $94.4 million in literacy program funding for Detroit schools.
However, the ruling was later vacated when the full Sixth Circuit reheard the case en banc1 in Gary B. v. Whitmer. The full circuit determined that the case was moot because the original complaint had been settled. Because the ruling was vacated, it set no precedent. However, other courts may look to the initial Sixth Circuit panel's reasoning in future cases, and the settlement agreement itself may be considered relevant in future litigation.
A 2025 lawsuit in Massachusetts, S.C. et al. v. Calkins, et al. (2025), presented a different angle on educational malpractice, leveraging consumer protection laws rather than malpractice claims. The lawsuit accused prominent literacy experts Lucy Calkins, Irene Fountas, Gay Su Pinnell, and their publisher, Heinemann, of deceptive marketing practices. The defendants were authors of widely adopted reading curricula published by Heineman.2 The plaintiffs, two Massachusetts families, alleged these experts knowingly promoted ineffective reading curricula while ignoring decades of research supporting more effective instructional methods. They claimed the discredited “three-cueing” approach to decoding harmed their children’s literacy development, forcing them to invest in private education and tutoring. The lawsuit also implicated Heinemann’s parent company, HMH, and Teachers College at Columbia University, seeking damages and injunctive relief to provide evidence-based early literacy curricula free of charge.
Attorney Ben Elga argued updates to the curriculum were akin to charging consumers for a manufacturer’s defects, a practice the attorney called “outrageous.”3 Critics have long challenged these programs, which dominated American schools and contributed to low reading proficiency rates. Journalist Emily Hanford’s investigative work, including Sold a Story, brought national attention to these controversies. Although Calkins later revised her Units of Study curriculum to include phonics instruction, critics deemed the changes insufficient. Meanwhile, Fountas and Pinnell largely defended their work, though major districts like New York City have abandoned that programs.
This lawsuit marked a novel legal strategy, shifting the focus from educational malpractice to deceptive marketing. By framing school districts as victims of misleading claims, the case underscored the broader push for evidence-based reading instruction. It coincided with growing state-level adoption of phonics-based curricula aligned with the “science of reading” and may set a precedent for holding publishers accountable for the effectiveness of educational materials. Unfortunately, the case was dismissed because the judge concluded that adjudicating the case would require an inappropriate judicial evaluation of educational methodologies, a domain traditionally reserved for educators and academic institutions (cf., Schwartz, 2025).
Summarizing across cases, legal analysts have found little support for malpractice charges. Writing in 2018 for the Brookings Institution, Mark Dynarksi discussed malpractice. He reported that a review of 80 malpractice cases over the past 40 years in which educational malpractice was alleged found that only one case was successful, and that success was because of wording in one state’s constitution. Todd DeMitchell, Stefanie Fossey, and Terri DeMitchell (2022) asserted federal and state courts have constructed a sturdy wall against the recognition of educational malpractice lawsuits. However, they argued a confluence of events may erode this wall.
Summary
Given that determinations of the right to education are the province of individual states in the US, accusations of malpractice seem to have few chances of success. Even with the legal developments in the Detroit and Massachusetts cases, no similar cases have been brought in the realm of special education.
If US courts eventually determine there is a federal right to education, this could allow educational malpractice claims in special education. The lack of litigation in this area suggests legal advocates may need to take a more proactive role in challenging educational neglect, particularly in cases where schools fail to provide legally mandated services under the Individuals with Disabilities Education Act. Future cases will be critical in determining whether courts are willing to erode the legal barriers that currently prevent educational malpractice claims.
Although it seems doubtful educational malpractice will become widely recognized, only time—and more court cases—will tell. The remaining question is, “Who will bring the next case?”
References
Bakuli, E. (2023). Detroit’s $94 million ‘right to read’ lawsuit settlement is finally coming through for DPSCD. Chalkbeat, 7 July 2023. https://www.chalkbeat.org/detroit/2023/7/7/23787399/detroit-public-schools-right-to-read-settlement-whitmer-emergency-management/
Calderon, A. B. B., & Ancho, I. V. (2018). Examining malpractice in the education context. Journal of Research, Policy & Practice of Teachers & Teacher Education, 8(2), 95-103. https://doi.org/10.37134/jrpptte.vol8.no2.9.2018
DeMitchell, T. A., Fossey, R., & DeMitchell, T. A. (2022). Raising a cautionary flag: Educational malpractice and the professional teacher. Rowman & Littlefield.
DeMitchell, T. A., King, S., & DeMitchell, T. A. (2021). Educational malpractice: Is it a tort whose time has come? An exploratory mixed methods study. University of Florida Journal of Law & Public Policy, 32(2), 253-291. https://scholarship.law.ufl.edu/jlpp/vol32/iss2/2
Doe v. Withers, No. 92-C-92, Cir. Ct. W. Va. (1993).
Dynarski, M. (2018). Can schools commit malpractice? It depends. Brookings Institute. 26 July 2018. https://www.brookings.edu/research/can-schools-commit-malpractice-it-depends/
Gary B. v. Whitmer, 957 F.3d 616 (6th Cir. 2020), vacated, 958 F.3d 1216 (6th Cir. 2020).
Hanford, E. (Host). (2022). Sold a story [Audio podcast]. American Public Media. https://features.apmreports.org/sold-a-story/
Klaus, A. (2024). Detroit school board approves three-year plan for use of literacy lawsuit funds. Chalkbeat, 12 June 2024, https://www.chalkbeat.org/detroit/2024/06/12/detroit-public-school-board-approves-plan-spend-literacy-lawsuit-settlement/
L.S. v. Mount Olive Bd. of Educ., 765 F. Supp. 2d 648 (D.N.J. 2011).
Meltzer, E. (2024). Lawsuit accuses famous literacy specialists of deceptive marketing. Chalkbeat, 4 December 2024. https://www.chalkbeat.org/2024/12/04/lawsuit-accuses-reading-curriculum-and-literacy-specialists-of-deception/
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
Schwartz, S., (2025). Court dismisses reading lawsuit against Luck Calkins, other ‘balanced literacy’ proponents. Education Week, 23 May 2025, https://www.edweek.org/teaching-learning/court-dismisses-reading-lawsuit-against-lucy-calkins-other-balanced-literacy-proponents/2025/05
Standler, R. B. (2013). Educational malpractice law in the USA. Author. http://www.rbs2.com/edumal3.pdf
Teh, M.-K. (2008). Educational malpractice: Legal cases and educators' views. Education Journal, 36(1-2), 137-152. Teh, M.-K. (2008). Educational malpractice: Legal cases and educators' views. Education Journal, 36(1-2), 137-152. https://dro.deakin.edu.au/articles/journal_contribution/Educational_malpractice_legal_cases_and_educators_views/20990086?file=37288084
Teh, M.-K. (2013). Educational negligence-comparative cases and trends. Education Law Journal, 14(3), 200-216. https://download.ssrn.com/15/09/15/ssrn_id2661121_code2424385.pdf
Veniero, C. A. (2021). Education’s deep roots: Historical evidence for the right to a basic minimum education. University of Chicago Law Review, 88, 899–938.
The late Barbara Bateman was a legal analyst and special educator in Creswell, Oregon. David Bateman lives in Charlottesville, VA, and is a Principal Researcher at the American Institutes for Research, and can be contacted at SpecialEdConsultant.org. Mitchell Yell lives in Columbia, SC and is the Fred and Francis Lester Palmetto Chair at the University of South Carolina. Mitch and David publish about special education and legal matters at Sped Law Blog.
Footnotes
One or a few judges of an appellate court often hear an appeal of an earlier case. Sometimes, however, all the judges of a single court may hear the appeal of a case, in which case the court is said to sit “en banc” and issue a decision en banc. Usually, an appeals court only sits en banc for especially difficult cases, ones where it seeks to “speak with a unified voice.”
See”Editorial: Fountas & Pinnell argue for reducing polarization in reading instruction” (11 September 2011), “New York city’s change in literacy instruction” (2 September 2022), and “Three version of change in reading education at Teachers College” (12 September 2023) for background about the literacy methods endorsed by Professors Calkins and Fountas and Pinnell.
We were not, of course, able to ask Barb Bateman of her opinion about this case, but at least one of us (JWL) is pretty sure that she would agree with the argument advanced by Mr. Elga.