| Courts have been consistently unwilling to recognize claims of educational malpractice, regardless of whether such claims were brought against public or non-public schools. The reasons given are: difficulty establishing the elements of negligence (duty, breach of duty, causation, and injury) and public policy concerns, such as a discomfort with recognizing a new tort, a fear of a flood of litigation should such claims be recognized, a reluctance to interfere in the day-to-day operations of schools, and a fear of the financial burden that would be placed on schools should such claims be recognized. Parents who have not been satisfied with the educational services provided by non-public schools have tried to advance claims packaged as breach of contract actions, but courts are unwilling to assess the quality of an educational program, regardless of the legal theory of recovery used to advance such claims. Nevertheless, the stated contracts between non-public schools and parents of their students may have the potential to provide a basis by which students and their families can seek relief for inadequate educational services. Most courts are willing to apply the criteria articulated in the New York case Paladino v. Adelphi University and The Waldorf School (1982) when deciding whether to recognize a claim alleging inadequate educational services advanced via contract theory. Although the language used in the criteria allows for some interpretation, most courts strictly interpret the exception stated by the court in Paladino. At least one state, Nevada, has broadened the scope of the language to include relatively vague promises of educational services, such as "appropriate individualized reading instruction and adequate diagnostic and remediation services [emphasis added]" (Squires v. Sierra Nevada Educational Foundation, 1991, p. 7). "Appropriate" and "adequate" are terms other courts deemed too subjective to qualify under the criteria set forth in Paladino . The Nevada case may foreshadow the direction in which courts will proceed in terms of holding non-public schools accountable for providing educational services. However, the case is fifteen years old, and not many reported cases even refer to Squires. |
