Worthy of mention is the literacy lawsuit out of the Sixth Circuit. In the case of Gary B. v Whitmer (2020), the court held that as a matter of first impression, the 14th Amendment Due Process Clause provided the student plaintiffs with a fundamental right to a basic education, meaning one that provided access to literacy. The students had filed suit alleging that they had been denied access to literacy on account of their races in violation of the 14th Amendment Due Process and Equal Protection Clauses. One month after the decision was handed down, a rehearing en banc was granted in May 2020. In June 2020, prior to rehearing, the state of Michigan reached a settlement with the students which included $95.4 million in future funding earmarked for literacy, a $280,000 damage payment to be split among the seven student plaintiffs, and the creation of two task forces in Detroit to pursue quality education for students in Detroit.
While the lawsuit starts a new precedence regarding the duty of public schools toward students, implementing the terms of the settlement faces hurdles. Governor Whitmer has vowed to introduce legislation providing the $94.5 million in funding for literacy, but such legislation must make its way through a Republican-controlled legislature. What is important for jurists is that precedent on the duty to provide access to literacy has been established.
Lawsuits under Federal Law (Section 504, ADA, IDEA, and Section 1983)
Federal antidiscrimination laws, such as Section 504, ADA, and Title IX of the Education Amendments of 1972, allow parents to sue a school district for violation of their child’s rights under those laws. In successful suits, parents have been able to secure a court order commanding the school to take steps to comply with the law, and at times they have been awarded monetary damages (see Chapters 5 and 9).
IDEA also allows parents of special education students to file a lawsuit when they believe their child’s rights under the law have been violated. Except for unusual circumstances, parents are required to exhaust administrative remedies (e.g., due process hearings) available to them before they pursue a court action under IDEA. If parents prevail in a court action under IDEA, they may recover their attorney fees and/or be reimbursed for private school tuition or compensatory education for their child (see Chapter 4). Parents typically have not been able to recover monetary damages under IDEA.
In addition to claims filed under Section 504, ADA, and IDEA, an increasing number of lawsuits are filed against schools and school personnel under Section 1983 of the Civil Rights Act of 1871. In accordance with Section 1983, any person whose constitutional rights (or rights under federal law) have been violated by a government official may sue for damages in federal court, and the official may be held liable for the actual damages. Section 1983 lawsuits often are referred to as “constitutional torts,” and, similar to common torts, the court decides whether there was a duty to a student, whether the duty was breached (i.e., the student was deprived of their rights under constitutional or federal statutory law by a public official), whether the student suffered injury, and whether the breach of duty was the proximate cause of the student’s injury. A student whose civil rights were violated under Section 1983 may sue the school board, principal, teacher, and/or the school psychologist responsible in federal court, thereby bypassing any state law granting school personnel immunity from liability during performance of their job duties.
A number of student lawsuits concerning school disciplinary actions (e.g., illegal search and seizure, unreasonable corporal punishment) have been filed under Section 1983. School officials may have qualified immunity from Section 1983 lawsuits. The standard for qualified immunity applicable to government (school) officials is as follows: “Government officials performing discretionary functions are shielded from liability for civil damages unless their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known” (Harlow v. Fitzgerald, 1982, p. 817). Hummel et al. (1985, p. 78) suggested that school personnel generally will not be held liable in Section 1983 lawsuits as long as they are “acting clearly within the scope of their authority for the betterment of those they serve” (e.g., Landstrom v. Illinois Department of Children and Family Services, 1990).
Professional Malpractice
Professional malpractice suits are civil lawsuits (torts) filed against individual practitioners under state statutory and common law. Professional malpractice occurs when, in the context of a psychologist–client relationship, a client suffers harm and it is determined that the harm was caused by departure from acceptable professional standards of care (Bennett et al., 2006). The likelihood of a psychologist being sued for malpractice is small. Over a 20 year period, under 2 percent of psychologists had a malpractice suit filed against them (Novotney, 2016). As noted, whether an individual school-based practitioner is immune from liability under state law during performance of their job duties varies from state to state. Psychologists in private practice, however, can be held liable for malpractice in all states.
When a professional–client relationship exists and the psychologist is acting in a professional capacity, they are expected to provide “due care,” or a level of care that is “standard” in the profession. To succeed in a malpractice claim, the plaintiff must prove four facts: (1) a professional relationship was formed between the psychologist and plaintiff so that the psychologist owed a legal duty of care to the plaintiff; (2) the duty of care was breached; that is, a standard of care exists and the practitioner breached that standard; (3) the client suffered harm or injury; and (4) the practitioner’s breach of duty to practice within the standard of care was the proximate cause of the client’s injury; that is, the injury was a reasonably foreseeable consequence of the breach (Bennett et al., 2006).
How does the court determine the standard of care? In most cases, the courts look to the profession itself to identify the customary standard of care used by others in the same field. Expert testimony may be used to establish the customary standard of care. In addition, codes of ethics may be presented as evidence of the parameters of accepted practice. Sometimes the client’s condition is a key factor in determining the expected standard of care (e.g., acceptable and reasonable actions in handling a suicidal adolescent). If the psychologist is not qualified to work with a particular type of problem situation, they are obligated to refer the client to someone with appropriate training (Bennett et al., 2006).
According to Woody (1988), the key words related to defining the appropriate standard of care are ordinary, reasonable, and prudent. Ordinary pertains to what is accepted or customary practice. Reasonable relates to the appropriate and adequate use of professional knowledge and judgment. Prudent means the exercise of caution, not in the sense of being traditional or conservative, but rather maintaining adequate safeguards.
Risk Management
School psychologists should be familiar with the term risk management.