The Law of Higher Education. William A. Kaplin
action for educational malpractice.
The court gave four reasons for its decision:
1 There is no satisfactory standard of care by which to measure an educator's conduct.
2 The cause of the student's failure to learn is inherently uncertain, as is the nature of damages.
3 Permitting such claims would flood the courts with litigation and would thus place a substantial burden on educational institutions.
4 The courts are not equipped to oversee the day-to-day operation of educational institutions.
Citing Moore, a Missouri appellate court awarded summary judgment to a flight school that was sued for negligence after a plane, piloted by a student trained at the school, crashed, killing him and four passengers. The court in Dallas Airmotive v. Flightsafety International, Inc., 277 S.W.3d 696 (Mo. Ct. App. 2008) characterized the lawsuit, brought by the relatives of the individuals killed in the crash, as a claim for educational malpractice and stated that there was no duty on the school's part to protect students from harm related to negligent instruction. An Ohio appellate court refused to consider educational malpractice claims as well (Trutschel v. Kettering Medical Center, 2009 Ohio App. LEXIS 2862 (Ohio Ct. App. July 2, 2009)).
In addition to attempting to state claims of educational malpractice, students have turned to other theories in an attempt to recover for injuries allegedly incurred by relying on incorrect advice of academic advisors. In Hendricks v. Clemson University, 578 S.E.2d 711 (S.C. 2003), the South Carolina Supreme Court reversed the ruling of a state appellate court that would have allowed the plaintiff, a student-athlete who lost eligibility to play baseball because of the incorrect advice he received from an academic advisor, to state claims of negligence, breach of contract, and breach of fiduciary duty. The court rejected the student's argument that the university had affirmatively assumed a duty of care when it undertook to advise him on the courses necessary for National Collegiate Athletic Association eligibility, finding no state law precedents that recognized such a duty. The court also refused to recognize a fiduciary relationship between the student and the advisor, and similarly rejected the breach of contract claim, finding no written promise by the university to ensure the student's athletic eligibility.
Another case, however, demonstrates a court's willingness to entertain student negligence claims for specific acts of alleged misfeasance or nonfeasance. In Johnson v. Schmitz, 119 F. Supp. 2d 90 (D. Conn. 2000), a doctoral student sued Yale University and several faculty members, alleging that the chair of his dissertation committee had misappropriated the student's idea for his dissertation research and took credit for it himself. The student filed claims of negligence, breach of contract, breach of a fiduciary duty, and defamation. The breach of contract claim was premised on the argument that Yale had made both express and implied promises to “safeguard students from academic misconduct” (119 F. Supp. 2d at 96). The court refused to dismiss the negligence claim, stating that because the student was alleging intentional misconduct by the faculty members, it was not an educational malpractice claim. The court ruled that the student should be given an opportunity to demonstrate that Yale had a duty to protect him against faculty misconduct and that such misconduct was foreseeable. Similarly, the court refused to dismiss the claim that Yale had a fiduciary duty to the student, stating: “Given the collaborative nature of the relationship between a graduate student and a dissertation advisor who necessarily shares the same academic interests, the Court can envision a situation in which a graduate school, knowing the nature of this relationship, may assume a fiduciary duty to the student” (119 F. Supp. 2d at 97–98).
Another student claim related to educational malpractice is negligent misrepresentation or fraud. These claims tend to be brought by students claiming that an institution misled applicants or current students about the quality of its programs or the institution's accreditation status. For example, in Troknya v. Cleveland Chiropractic Clinic, 280 F.3d 1200 (8th Cir. 2002), a federal appellate court upheld a jury verdict that a chiropractic school was liable to students for negligent misrepresentation. The plaintiffs, graduates of the school, claimed that it had failed to provide the quality and quantity of clinical training that the school had promised; they filed claims of breach of contract, fraud, and negligent misrepresentation. The plaintiffs had graduated, passed the licensing exam, and had received licenses.
The jury found for the college on the breach of contract and fraud claims but found for the plaintiffs on the negligent misrepresentation claims, awarding each plaintiff $1 in compensatory damages and $15,000 each in punitive damages. Although the court upheld the compensatory damages award, it reversed the punitive damages award, stating that there was no evidence that the school knew that the false information it provided would have injured the students.
3.2.4 Defamation. Another tort asserted against postsecondary institutions, defamation, is committed by the oral or written publication of information that tends to injure a person's reputation. The information must have been communicated to some third person and must have been capable of defamatory meaning, and understood as referring to the plaintiff in a defamatory sense. Defamation claims are also asserted against officials of the institution, such as deans or department chairs, and even occasionally against students.
Defamation claims may be brought against faculty who write letters of reference for students or in the context of giving a (negative) evaluation of a student or subordinate. In such cases, the alleged defamer may be protected by the “opinion privilege” if the communication provides an opinion rather than reciting or implying facts. Defamation claims may also arise when an individual testifies in an internal grievance or appeal hearing. In most cases, courts have rejected defamation claims against institutions, although in some cases they have been more sympathetic to plaintiffs who sue individuals for defamation.
Several privileges can be raised by institutional defendants in defamation cases. One of the most important defenses against a defamation action is the conditional or qualified privilege of fair comment and criticism. An application of this privilege occurred in Olsson v. Indiana University Board of Trustees, 571 N.E.2d 585 (Ind. Ct. App. 1991). A prospective teacher, who had graduated from the university and had performed her student teaching under the supervision of one of its faculty, sued the university, claiming that a letter of reference written by a faculty member was libelous. The faculty member had described both the plaintiff's strengths and weaknesses with apparent candor.
The court ruled that the faculty member and the university were protected by a qualified privilege that may be asserted “if a need exists for full and unrestricted communication regarding matters on which the parties have a common interest or duty” (571 N.E.2d at 587). Such a privilege would cover any communication “if made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, whether legal or moral, or social, if made to a person having a corresponding interest or duty” (571 N.E.2d at 587). Noting that the university had a responsibility to prepare teachers, the court ruled that this letter of recommendation was an appropriate occasion for the use of the qualified privilege.
The scope of the qualified privilege is a matter of state law and may differ by state. A case decided by a federal trial court, applying District of Columbia law, examined that jurisdiction's case law regarding the qualified privilege in a defamation claim. In Tacka v. Georgetown University, 193 F. Supp. 2d 43 (D.D.C. 2001), a faculty member, Tacka, sued Georgetown University for breach of contract and defamation. His defamation claim was based on the use of an allegedly defamatory evaluation of his scholarly work by a faculty rank and tenure committee that was considering whether to recommend that Tacka receive tenure. The evaluation, written by an untenured professor at a university in another state, accused Tacka of plagiarizing portions of a journal article. Without determining whether the plagiarism claim was true, the rank and tenure committee recommended against tenure for Professor Tacka. Later, the University's Research Integrity Committee exonerated Tacka of plagiarism, and he was granted tenure the following year.
In its motion for summary judgment, the university claimed that the department chair's “publication”