L. Kristen Schneider, San Jacinto College – Central Campus
**This is the first of an ongoing series of member contributions written by TEXAAN members for TEXAAN members. Schneider also addressed advisor liability in a session at the 2017 TEXAAN Annual Conference.**
Show of hands, how many of us entered the academic advising field in order to trick and deceive students, resulting in extra time to graduate, increased student debt, or even lost scholarships? Hopefully no one answered yes to that! But when our actions and the advice we provide lead to these very results, then we, as well the institutions we represent, may face a lawsuit by a disgruntled student.
For over 45 years, various courts in the United States have been considering the claim of educational malpractice in public school systems and higher education. For many policy reasons, perhaps most of all the difficulty of defining what amounts to a “good education,” the courts have been reluctant to hold institutions or their representatives (such as faculty, staff, and administration) liable for this claim.
In more recent years, there has appeared a trend of new claims that the courts are willing to consider. For advisors, the most notable claims include negligent misrepresentation and breach of contract. It is in these areas of the law that advisors may find themselves held accountable for wrong advice, even when given to a student in good faith.
To understand advisors’ legal exposure and develop effective ways to minimize it, a quick review of the case law in this area helps. The claim of educational malpractice was first famously recognized in the California case of Peter W. v. San Francisco Unified School District.[i] In this case, the plaintiff graduated high school but had only a fifth grade reading ability. He claimed that the school and its teachers were negligent in teaching him, and in passing him to the next grade level with such deficient skills. This resulted in his being unable to find employment upon graduation.
To establish a claim in any malpractice suit, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, that the defendant failed to satisfy that duty, and that the failure caused injury to the plaintiff physically, emotionally, and/or financially. The court in this case found that the school district did not owe a duty of care in educating the student, other than not physically harming him. The court reasoned that defining a workable standard of duty was too difficult given all of the variables involved that can affect education, such as student motivation, home life, teaching style, etc.
While Peter W. involved a secondary school, a seminal case for higher education is Ross v. Creighton University.[ii] In this case, Continue reading