After careful consideration, looking at malpractice in medicine, and recent serious queries from students about the subject, my thinking about educational malpractice has changed in the past week. Let me tell you where I have come to.
The idea of educational malpractice has been around for decades, but because of a ruling 40 years ago, it has not read a real option for students until recently. Looking at the literature and discussion around the subject, the legal experts now agree that a successful educational malpractice suite is inevitable – it is no longer if, but when. So, what has changed in my thinking?
When damage is done in the medical field and an individual sues for malpractice, they sue a professional whom they trusted to do their job correctly. The talk around educational malpractice has swirled around suing institutions for the system of education that has gone wrong. In medicine, you don’t sue a medical community you sue a practitioner. In education, it has to be the same. A student doesn’t sue a university a student sues a professor.
When enrolling in higher education, an institution virtually always promises students’ that they can expect excellence in their learning experience. Professors are professionals who work at an institution, and it is the professional that is expected to deliver an excellent learning experience.
In opting to use the poorest methods available to deliver their teaching, a faculty member is not delivering excellence, and is doing direct harm to the students by having them expend their resources, time and money, for a learning experience that based on The Science of Learning, is not value for time or money.
Given what we know about The Science of Learning, for a professional to opt for the poorest method available for personal ease and convenience is nothing short of negligence (that principle has already been decided by the courts). According to the font of all knowledge (Wikipedia), “In the law of torts, malpractice, also known as professional negligence, is an "instance of negligence or incompetence on the part of a professional". And, as pointed out in a previous article about malpractice, there is no longer a defense for “just doing what everybody else is doing”.
So, if an institution is off the hook (kind of), after suing for professional negligence on the part of the professional, what can a student expect to win? That should be pretty straightforward. A normal class load, in most institutions, is about five classes a semester. In addition to the students’ legal fees, the average tuition paid for each class is about $600. There are the living expenses which average $388 per week. Finally, there is the lost income which, in Canada, is $952 per week.
Not a massive amount in terms of money, but something for a student, and something that a professor would not like to have to pay out for each of the 37 students in the class where they choose to stand and deliver.
The bigger win would be the wake-up call that this would send to the individual professionals who are responsible for teaching. Having 487 students in one class brings an institution into the picture, but for a class of fewer than 80, the individual faculty member is responsible for choosing to use a poor method of teaching. There are ways that have been proven to deliver excellence in learning for these many students using a few hours a week over and above the direct contact time.
I guess that we will have to see how the scenario eventually plays out in our society, but I would urge you, as teaching professionals, to ensure that your teaching practices minimize your own personal risk for legal action.
Jesse is a world leader in the integration of the science of learning into formal teaching settings. He is an Adjunct Associate Professor at the University of Lethbridge and Director at The Academy for the Scholarship of Learning. Huge advocate of the science of learning, he provides people with ideas about how they can use it in their classrooms. Jesse holds a PhD in Psychology from the University of Wales, Bangor.