All professionals (people with special credentials and skills including educators) have a legal responsibility to assure that everything they do meets or exceeds the generally accepted standards of due care. Thus, they are liable and may be held accountable under tort law for the consequences of any behavior which is inconsistent with those standards whether the shortcoming is the result of ignorance, carelessness or intentional conduct. This is often referred to as malpractice.
Though a few states have endorsed the notion of educator malpractice relating to the process and obligation to effectively teach certain information, a much more likely scenario is where a parent or student sues an administrator, the school and its board for a failure to provide for the physical and emotional safety of students.
Just as those with the authority to create a safe and ethical school environment must assure that all physical facilities are safe, they are responsible to take formal and specific steps to protect students from all reasonably foreseeable physical and emotional dangers from other students, faculty, staff, administrators and board members.
Thus, it is professional educator malpractice to fail to hire, train and supervise all school employees to prevent them from engaging in any form of abuse including sexual acts, harassment, bullying, discrimination and the unjustified infliction of emotional harm.
In the Josephson vs. Archer case, the head of school, Elizabeth English claimed that the student handbook signed by all parents explicitly granted her sole discretion with regard to all school matters including discipline. Thus, she claimed that she was not limited by laws requiring good faith and fair dealing or established standards of the exercise of discretion that prevent arbitrary and capricious exercise of power.
Although the mandatory arbitration clause in the Archer contract prevented the Josephsons from getting a court ruling, the “sole discretion” provision does and should not not exempt the head of school from adhering to the overriding duties of due care of a professional educator.
The focus of this standard is different than educational malpractice cases that focus on the effectiveness of teaching. This cause of action focuses on the duty of professional educators to put the well-being of their students above other personal considerations.
See Model Standards for Student Safety and Sound Discipline under the Model Standards tab.