Can a parent sue the school for “failing to educate” a child?
In a social and political environment that is becoming more and more litigious, it seems that people are exploring and seeking to enforce their legal rights over every aspect of their lives. I’m sure you have been told by more than one parent that they ‘know their rights’ or that ‘legally, you must do X’. Some of you may have even been threatened with being sued.
Whilst many of those outbursts can be chalked down to the heat of the moment and a level of irrationality, they pose the question – is there actually scope for parents to sue schools if their child does not receive the educational outcomes they had hoped for?
Failure to educate
Typically, ‘failure to educate’ cases are brought on the basis of negligence. The reason for this is that in the seminal case of The Commonwealth of Australia v Introvigne, the High Court stated that: “A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on school premises”.
The duty established by the High Court encompasses a responsibility on the part of the school for all aspects of students’ physical and mental wellbeing. By extension, it has been argued in some cases that the duty extends to ensuring reasonable care in the fundamental activity in which schools are engaged: the teaching of students.
Also, failure to educate cases of late have commonly involved students with disabilities, and therefore include claims in discrimination. The arguments typically take the shape of the school making reasonable adjustments to accommodate the disability but, by extension, those adjustments have resulted in lower participation in academic sessions.
Action has even been taken against some schools alleging breach of contract and misleading conduct. The argument goes that through the enrolment contract, the school had a contractual obligation to properly educate the student and it failed to discharge its obligations under that contract.
What are the prospects of success for a failure to educate claim?
Thankfully, there has not yet been a successful case where a school has been ordered to compensate a student for failing to properly educate them.
There have been numerous cases commenced against education institutions alleging a failure to properly discharge their obligation to educate and support the child, but those cases have either failed or been settled by agreement. Accordingly, the Courts have not yet made their position clear when it comes to the issue of whether a school’s duty of care extends to ensuring reasonable care for teaching its students.
You may recall the case from 2012 where a student from Geelong Grammar brought legal action against the school alleging that they had failed to properly support her through her education, resulting in her not receiving the academic score she needed to get into her desired course. The student alleged breach of contract and misleading and deceptive conduct on the part of the School.
Unsurprisingly, the Student’s case was replete with deficiencies, there was no basis for the damages she claim she made (based on remoteness of damage and her failure to mitigate) and ultimately, her application was dismissed.
There have also been multiple recent cases brought against specialist schools alleging discrimination against the student and, by extension, a failure of the school to properly engage them in the academic program which has had a negative impact on their educational advancement. These cases have, however, been settled prior to judgment, meaning that we are still without a definitive judicial position on the extent of the duties owed by schools to educate children.
Bringing a claim would be difficult
For a failure to educate case to succeed, the plaintiff would need to clear a significant number of hurdles. Given that children are taught by many teachers and sometimes multiple schools, it would be difficult for a plaintiff to point to an exact breach which has resulted in their diminished education.
Also there are innumerable reasons that a student’s academic performance can be compromised, many of which have very little to do with the school. A student making a claim against the school would need to show that there was no other reason for their compromised academic performance than the failure of the school to properly support them through their education. Unless there has been a clear and unambiguous negligent act, it is very difficult to reason from a student’s poor academic performance that there has been an educational failure.
Even if a claim of this nature were to succeed, there would be significant difficulties for a plaintiff or the Court to determine an appropriate damages amount. With a myriad of options and pathways available to success and a duty upon all plaintiffs to mitigate their loss, how does one apportion a value to the opportunity that they say they lost as a result of the school’s failure to educate them?
What can you do to protect your school?
Despite there having not been a successful case for a failure to educate claim, it is still a good opportunity for your school to review its education programs, particularly for those students with disabilities, to ensure that you are discharging your obligations to your students and meeting any requirements under legislation.
You should be engaging with parents as much as possible to monitor, report upon and make efforts to improve all students academic and personal wellbeing at your school.
Also, when considering reasonable adjustments for a student with a disability, the process should be detailed and well thought through. You should prepare and implement a Reasonable Adjustments Assessment Rubric and Behaviour Management Policy to ensure that all persons involved are aware of their obligations, are meeting them and that there is nothing being missed.
Importantly, you should also review your enrolment contract to ensure that it does not contain a term, express or implied, that makes a promise of any particular level of academic performance or achievement. The enrolment contract and school policies should emphasise that a student’s education journey is a joint effort between school and family and that all parties have responsibilities to contribute to that journey.
How can Brennan Law Partners assist?
We can help you review and improve your school’s policies and procedures, your school’s enrolment contract or advise you on meeting your requirements when making reasonable adjustments for students with disabilities.