Education Malpractice – Has the time come for a new cause of action?

The deficiencies of the Baltimore City Public School System are not news.  Since the 1980s there have been multiple cases and commissions focused upon the serious shortcomings of BCPS.   However, recent reporting by WBFF Fox 45 News’s Project Baltimore has uncovered a level of failure in Baltimore City Public Schools that is beyond even the imagination of the most pessimistic or cynical critic.

For example, Project Baltimore has found that 2017 state testing data showed that not one student in 13 of Baltimore City’s 39 high schools was proficient in math. In January 2018, nearly half of the buildings in the school system had heating problems; students were sitting in classrooms where inside temperatures were in the 40s.

With each round of litigation in the 1980s and 1990s, more money has been shoveled into BCPS.  Today, BCPS receives approximately $16,000 per student annually, the fourth highest amount of any school system in the United States.  Yet, the children of Baltimore City continue to receive a substandard education.

Teaching is supposed to be a profession.  Other professionals, such as lawyers, doctors and accountants, are subject to liability for malpractice.  If a hospital system had 13 of 39 hospitals where no patients survived, there is no question that malpractice actions would put it out of business.  But, the courts have shielded teachers and schools from liability for malpractice.

In 1982, the Court of Appeals of Maryland refused to recognize a cause of action of educational malpractice.  See Hunter v. Board of Education, 292 Md. 481, 439 A.2d 582 (1982); see also Doe v. Board of Education, 295 Md. 67, 453 A.2d 814 (1982).  No other state has recognized such a cause of action.  However, various commentators have suggested that the time has come for a new generation of school-related litigation.  See, e.g., James S. Liebman, Perpetual Evolution:  A Schools-Focused Public Law Litigation Model for Our Day, 117 Colum. L. Rev. 2005 (2017); Ethan Hutt and Aaron Tang, The New Education Malpractice Litigation, 99 Va. L. Rev. 419 (2013).  Project Baltimore’s shocking revelations raise the question as to whether Hunter and Doe should be reconsidered by the Court of Appeals of Maryland.