Educational Malpractice: A Tort Is Born

This article examines the judicial justification for the nonrecognition of educational malpractice as a theory of tort liability. Section I focuses on the various factual contexts in which educational malpractice claims have arisen and analyzes the concept of duty and proximate cause in the different factual contexts. Section II discusses the common law principles which demonstrate that the analytical problems associated with educational malpractice are not new to the law. Section III examines public policy as a distinct component of the duty-proximate cause inquiry. Section IV also focuses on public policy as expressed by various state legislatures regarding the teaching profession and teacher accountability. This article concludes that educational malpractice is a viable theory of tort liability and that traditional negligence analysis and public policy support the recognition of such a cause of action. Teachers, like other professionals, should be subject to legal action when their conduct falls below an acceptable standard