TESOL Law Journal: January 2006 Vol 1.

January 2006, Volume 1

Vol 1 Index

Article Title
Educational Malpractice in TESOL

Authors
Joseph Jung & Paul Robertson

Bios:
Joseph Jung received his initial legal training in the U.S. He is now a professor at Dongseo University in Korea.
Paul Robertson has worked for over two decades in the EFL and profession. He is now a professor ay Dongseo University.

Abstract.
The field of TESOL is a growing social science. Hundreds of thousands of native English speakers teach English language skills to students across the globe. The vast majority of teachers are not qualified to teach English, though the number of instructors undertaking advanced certificate or degree skills is increasing. There is no precedent for the question, "Can a student sue a TESOL teacher for educational malpractice?" but the courts in the U.S, and the commonwealth countries of Australia and the UK give some insights - though differing. The question raises relevant secondary issues that go to an Educational Course providers' duty of care to provide courses that are fit for the purpose and relevant to the student's proposed course of employment.

Key words: Educational malpractice. TESOL certificates. EFL/ESL teaching. TESOL school liability. The tort of educational negligence.

Introduction & Overview
We have been asked to consider a unique question not yet considered at law. Does the law of educational malpractice extend to TESOL teachers? TESOL is the acronym for Teaching English to Speakers of Other Languages. Educational malpractice is commonly defined as the failure to adequately educate a student. Malpractice has been defined as:-

Professional misconduct or unreasonable lack of skill. Failure of one rendering professional service to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services or to those entitled to rely upon them. (Black, 1990).

First we look to the general law of educational malpractice and note the courts reluctance to entertain such cases. Courts traditionally have been hostile to educational malpractice claims, in part because evaluating a student's claim involves, according to a federal appellate court, the inappropriate "second-guessing [of] the professional judgment of the university faculty on academic matters." (Euben, 2005.)

Clearly there are 2 two areas for consideration, that known as EFL, (English as a Foreign Language) where teachers of English (native English speakers) teach English in a country where English is not the native language. The second category is ESL where teachers of English teach English to students whose native tongue is not English, but the students live (or study) in an English L1 country. Clearly this raises two very different questions that entertain different legal questions and propositions. The first question to be answered is, "What, if any qualifications, does one need to teach English?" Carmichael (2002) notes,

Murcia and Goodwin (1991, 136) touch upon the quality, or at minimum, the desired quality of a 'teacher' by saying; "The teacher is ideally a native or near native speaker of the target language…" however they qualified their opinion in so far as they limit their comment to the field of pronunciation, and it does seem to exclude the possibility that a nonnative teacher can teach pronunciation … however it is one of the isolated references to the fact and realization that 'teachers' of ESL do not need to be qualified at the outset. (Carmichael, 2002)

Lee (2005) takes the argument further by considering six requirements. Thus it would seem we are left with an unanswered debate as to what constitutes an English teacher as far as qualifications go. However, Carmichael (2002) provides a definition which we will use for the purpose of this paper.

"…native teachers of English will be referred to as 'qualified teachers or non qualified teachers.' The former are those defined as presenting an accepted university qualification beyond or equivalent to a teaching degree/license in their native country and having had at least one year's minimum foreign teaching experience of the English language. The latter are those employed as teachers of English to teach English to foreign students whilst not possessing any recognized or formal teaching qualification from a recognized/registered institution."

Two issues arise that are worthy of legal argument but can be left to another time. The definition of malpractice includes the phrase, "…rendering professional service…" An argument may exist that this excludes TESOL teachers (and applies in traditional domains such as medicine, law, engineering, etc.) Also defining the "…average prudent reputable member of the profession…" could be difficult.

Thus, we must consider if educational malpractice applies to teachers (in the wider sense of the word) in settings known as EFL and ESL, and amidst these two categories we must further consider the two groups of English teachers; those who have been qualified to specifically teach EFL or ESL studies, and those who are not qualified, yet teach. Although no clear research seems to exist as to what the percentages are of these categories, Ahn (1998) noted that in the Korean Government program of 1000 foreign teachers, only 3% were qualified in terms of being English teachers with specific qualifications that allowed them to teach English. Prima facie this suggests a vast profession whereby the majority are without professional qualifications and this raises numerous issues, both ethical and legal. Thus, whilst cases do not appear in ESL/EFL settings, there is no prima facie reason why a plaintiff could not initiate legal actions in certain circumstances.

Scenarios
There are various scenarios to explore.
(a) the case of a qualified EFL/ESL teacher being sued in educational malpractice
(b) the case of an unqualified teacher being sued by a language student
(c) the case of a student in an ESL country suing his educational provider (EP.)
(d) the case of a language student in a non English speaking country suing his EP
(e) the case of a native English language teacher suing a TESOL course provider
(i) this must be further divided to on-line and attendance study
(f) although not explored here, the issue considered by Australian courts, namely, is the field of study compulsory or voluntary, also needs investigation. Private schools (non university) that supplement government learning may find a further defence here, whilst government schools, (especially where we see such programs as EPIK in Korea, NET in Hong Kong, JET in Japan) raise further issues for consideration.

U.S. Law
The first reported cases of educational malpractice were in Louisiana in 1973 and in California in 1976. Peter W. is the first reported case in the USA of what was later called "educational malpractice", although that phrase is not used in this case. The plaintiff had spent 12 years in public schools and had graduated from high school, however his reading level was allegedly only at the fifth grade level. At that time, California had a state statute requiring pupils to read above the eighth grade level in order to graduate from high school, so the school graduated him in violation of a state statute, a fact that should be evidence of the school's negligence. The court refused to recognize the claim for negligence for two reasons. First:

Unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught, and any layman might and commonly does have his own emphatic views on the subject. The 'injury' claimed here is plaintiff's inability to read and write. Substantial professional authority attests that the achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, and environmental; they may be present but not perceived, recognized but not identified (Peter W. v. San Francisco Sch. Dist., 131 Cal.Rptr. 854 (1976).

Donohue (1978) is the first case in the USA to use the phrase "educational malpractice". The opinion of the New York Court of Appeals is generally considered to be the leading case on why courts do not recognize educational malpractice as a tort. The plaintiff received a graduation certificate from a state high school, although he allegedly did not have the basic skills to complete an application for employment form. The plaintiff alleged surprise at his ignorance, but a court noted that his grades in school which included two failing grades in English, gave adequate notice to him and his parents. 407 N.Y.S. at 881, 883.
The first appellate court stated:

Finally, the plaintiff's complaint must be dismissed because of the practical impossibility of demonstrating that a breach of the alleged common law and statutory duties was the proximate cause of his failure to learn. The failure to learn does not bespeak a failure to teach. It is not alleged that the plaintiff's classmates, who were exposed to the identical classroom instruction, also failed to learn. From this it may reasonably be inferred that the plaintiff's illiteracy resulted from other causes. A school system cannot compel a particular student to study or to be interested in education. Here, the plaintiff is not totally illiterate and his academic record indicates satisfactory achievement in several subjects. In addition to innate intelligence, the extent to which a child learns is influenced by a host of social, emotional, economic and other factors which are not subject to control by a system of public education. In this context, it is virtually impossible to calculate to what extent, if any, the defendant's acts or omissions proximately caused the plaintiff's inability to read at his appropriate grade level.
Donohue v. Copiague Union Sch. Dist., 407 N.Y.S.2d 874, 881 (1978).

Most U.S. courts reject general educational malpractice claims. In Bittle v. Oklahoma City, a state appellate court rejected a law student's claim against Oklahoma City University. The student's grade point average fell below the minimum required by the school. He sued, alleging that his dismissal was caused by the poor performance of his constitutional law professor, who arrived late to class, discharged class early, canceled class, and provided no make-up classes or academic counseling.

The court found "no specific agreement...for the provision of particular educational services beyond the provision of an adequate legal education," and so dismissed the suit. However, this gives clear guidance when we look at SLA (Second Language Acquisition or SLA theory providers) who do/may offer specific agreements for language acquisition attainment and knowledge.

In Miller v Loyola, University of New Orleans 2002 WL 31256424 (La. App. 4th, 30 Sept 2002) a US court yet again dismissed the idea of a student being able to claim for alleged poor instruction and any other form of supposed educational malpractice. However, in Lowenthol v Vanderbilt University (1976), 8 PhD students successfully sued for breach of contract over poor teaching/organization: as Collis, (1990), and Lockhart (1995) note, educational malpractice can also be dealt with as breach of contract/misrepresentation rather than necessarily via the tort route.

Commonwealth Jurisdictions.
Whether the wording is educational malpractice, or an action in negligence, it is clear from Australian law that courts are beginning to accept that such a tort against educational providers exists. However, one of the components of the tort is a duty of care. The House of Lords (UK) doubted a duty care went so far as to include classroom teaching. Yet in recent obiter from the House of Lords, it was noted that a duty of care was owed by a local educational office for their students' education in some limited Circumstances. (X and others v Bedfordshire City Council, 1995.)

Similarly, there is a view emanating from Australia, that with students starting to pay high educational fees, the courts will start to consider such issues as educational negligence or malpractice. Thus it is obvious that as the facts change, the courts will be able to distinguish the earlier House of Lords decision, and grant relief.

Applying the Law to TESOL
It is clear that the vast majority of native English speaking TESOL teachers are not qualified to teach TESOL. This is not to imply they are not good TESOL teachers, merely they have no recognized qualification to teach. It should be noted that most EFL countries merely require a native English speaker to have a degree from a recognized university. A few countries also require a TESOL certificate, but the value of these should be doubted in most cases.

However this on its own, ipso facto, falls far short of the requirements to commence an action in educational malpractice. The students would need to provide a substantial amount of other evidence. A first blush, the student would need to overcome some of the following hurdles to even have standing (ability to sue) let alone commence proceedings.

(i) show the teacher was not qualified
(ii) show that that teacher student relationship was one that covered a span of time (at least 3-5 years) - time in which the student could reasonably be expected to learn a L2
(iii) show that the teacher student relationship covered a suitable period each week (at least 3 lessons) for the period mentioned in (ii)
(iv) show that that student had progressed in other subjects
(v) show that his/her level of understanding of the L2 was not satisfactory given the period of time learning
(vi) and very importantly, show that other students in the care and control of that language teacher, had also failed to advance their L2 skills

In the case of a student suing a qualified teacher, the burden of proof would be far greater, for courts are reluctant to grant such actions. Further points beyond (i-vi) above would need to exist to give an action standing. Some points could well be;

(vii) show that the teacher had not undertaken any refresher courses for a substantial period of time
(viii) show that that teacher had been negligent in carrying out his/her duties
(ix) show that the passing grades written up by the teacher were wrong

A recent case in the U.S. suggests that other issues such as

(x) the teacher being frequently tardy
(xi) the teacher being frequently absent
(xii) and wasted students' time by discussing personal issues
may also be relevant in compiling a claim. In other words, subjective matters
going to the teacher's ability to teach could be relevant.

Given the nature of L2 learning and teaching across the globe, it seems clear that language teachers are with students for a short period of time - one to three years would be common. This period of time is arguably not long enough for any students to obtain a clear understanding of the L2 and be able to speak it fluently. (Bernat, 2005) (The debate as to what fluent means will not be explored here, but it would be difficult for any student to find expert witnesses to support his case.)

Of course, we note the possibility of language students studying in Australia, USA, Canada, etc, who are in a higher institution of learning in an ESL atmosphere - those students would have less of a threshold test to hurdle. In this edition, Davidsom (2005) quoting Debito (2004) discusses issues of EFL teachers having difficulty obtaining tenure, or longevity in employment, in universities in Japan and Korea. One can now see an ancillary purpose very clearly for this purpose. This rationale by Universities would be a major point in defeating a student's claim as the requisite causal connection to a specific language teacher would be absent. However, it is clear that the law very clearly favors teachers over students. Hence it is important to look to the next section, the liability of education providers.

Applying the Law to Educational Providers
Whilst suing a teacher presents formidable hurdles, taking action against the school or educational authority that hired the teacher is a more logical proposition. Schools are legal entities and have registered under various Educational laws and business practices Acts in their home country. Some schools in some jurisdictions are also covered by Trade Practice Acts as well.

It is relatively simple to see the claims that these schools make on their advertising paraphernalia. Some schools even publish their own teaching materials which make outrageous claims as to learning a second language. (Indeed it is easy to see Publishers making unsubstantiated claims on their covers pertaining to English language learning and the contents of their books.) This goes beyond the legal conept of 'puff.' But in the U.S. we can see a new direction in court thinking developing:

A Florida appeals court has ruled that a family may sue a school district … for allegedly false representation in marketing materials that the public school in the area was "cutting-edge." (Frank, 2003)

Education providers clearly know the qualifications of those they hire and know the content of their own advertising. As of yet, and somewhat surprisingly, educational providers in most EFL zones are not required to display the qualifications of their foreign teachers such that a parent could make an informed decision as to enrolling his child at that school. An example of an educational provider deceiving the parents of the students is seen with a leading foreign language high school in South Korea which employs four native English speakers as language teachers. Not one is qualified to teach English, yet this private school, under government contract and subject to the Education Act of Korea, has a higher burden of legal responsibility to employ only those who are well qualified to teach. In this case, the parents of the school collectively could sue the school in educational malpractice where a student has failed to graduate to a higher-level university.

Another area is the student / university relationship, where the legal burden to provide courses fit for the purpose is greater. Some countries, namely Korea and China, employ non-qualified teachers from English speaking countries to teach English. This is a cost effective exercise, but the long term may show this to be legal folly. A student would have more likelihood of success in commencing an action against such a provider, and it wouldn't be surprising to see such actions commence in the near future. Of course there are threshold requirements to satisfy, but should not be beyond the pale of achievement.

A further area of concern is the TESOL Certificate / TESOL Masters providers. Teachers can undertake studies for a Certificate, yet a cursory glance shows that most of the course providers do not meet the basic legal requirements to be called Educational providers. Only two non-university courses appear to have the legal pre-requisite to be called TESOL certificate providers. Though beyond the scope of this article, Internet Law and educational providers is an area that needs closer examination.

In the last five years, universities have begun extensive programs of education in Ma TESOL studies. Some require attendance, some via the Internet. The majority offer excellent courses. One provincial Australian university in New South Wales, Australia, challenged by the student who alleged professional negligence and educational malpractice as the university instructor failed to show more than a limited knowledge of EFL issues and complete lack of understanding of Asian EFL cultural issues, counter threatened the student with a defamation suit in order to prevent the suit from proceeding. The counter claim was without foundation, and based on bluff. Yet this shows the extent legal departments of universities will go to stop/hinder students' legitimate actions.

However, the US courts are skeptical of claims under consumer protection legislation as being merely another attempt at asserting educational malpractice (for example, Finstead v Washburn University of Topeka 845 P.2d 685, Kan. 1993). The student is clearly a consumer of the educational service offered by the Higher Educational Institution under a contract to educate, but, at least in the USA and despite the generally rather higher level of tuition fees charged to students in US Higher Education, the student is far from being 'an empowered consumer' in terms of being able to rely on consumer protection legislation. Given that such US consumer protection legislation generally requires evidence of fraud and intentional misrepresentation, students do not succeed against the Higher Education Institutes (for example, Lidecker v Kendall Coll, 550 N.E. 2d 1121, Old. App. Ct 1990 and Villarread v Art Institute of Houston 20 S.W.3 d 792, Tex. App. 2000). However, as far as TESOL teaching goes, one may argue that a teacher teaching with no satisfactory qualifications goes someway to intentional misrepresentations.

Grading.
One well-known phenomenon is private schools giving artificially inflated results to students. This situation is prevalent in Korea, especially in the University sphere, where foreign teachers are required to pass all students with varying levels of a pass grade. The case of Donohue clearly shows that schools or universities who persist in this practice of manipulating grades can leave themselves to an action whereby the student sues the University or school if the student fails to show a reasonable level of proficiency in the L2, where a pass grade has been awarded, and provided other factors support the action. This issue will be discussed further in a separate article.

English Testing Services
TOEIC-TOEFL-TEPS-IELTS
Although beyond the scope of this paper, but worthy of examination, is the generating legal view that course providers such as the above, who charge substantial educational fees, may be open to an action in educational malpractice (in EFL/ESL countries especially) where certain conditions are met by the plaintiff. Given the increasing amount of schools and universities running these courses, it is believed that the standard of care provided by the teacher/school running these course(s), is something that the courts could consider if the student fails to obtain a satisfactory score.

Defining the Standard of Care
U.S. Courts repeatedly assert that evaluation of education is impossible in a courtroom. As the courts noted, good teaching does not guarantee good learning, since the pupil and his/her parents control many of the factors in learning. Another fear is the floodgates principle. Some courts say that recognizing the new tort of educational malpractice will "open the floodgates of litigation", which will burden the courts. It is submitted, in relation to TESOL educational malpractice, that this belief is merely a point for consideration, but not a dominant point, and merely one of many. Thus courts in the U.S.A, will at some future time find it possible to clearly define what the duty or standard of care is between teacher and student. Of course, in EFL legal jurisdictions, that scenario is more complex, but arguably progressive courts will consider educational malpractice and be influenced by other legal jurisdictional findings.

Conclusion
Can we say that TESOL teachers will never be sued in educational malpractice? Whilst the answer is not definite, there seems a good probability that the answer will be no in the short term. As for the long term (a decade or more away), given the movements in legal thinking in both the U.S., jurisdiction and Commonwealth jurisdictions, it is not unreasonable to think that claims in TESOL jurisdictions for educational malpractice or negligence will not succeed.

Whilst courts are reluctant to impose an unreasonable standard or duty on a teacher, the case of TESOL may well be distinguished, for there are a certain significant percentage of teachers who are not qualified to teach. They are, as is their employer, holding themselves out as a language teacher, which said holding out arguably carries a duty of care. Laws that cover corporations and go to false and misleading advertising are well positioned to be used.

Of course, TESOL is global. Hundreds of legal jurisdictions are involved. Whilst it is difficult to see an action in educational malpractice brought in Asia with its Confucionist traditions, in the seminal article on the Confucionist influence on education in Asia, Robertson, (2003) implies a legal challenge is no longer out of the question.

"…it is also argued that the influences of Confucius and Mencius are but a part of a system that was seen as leading to the country's 1997 economic demise, for these principles restricted the true ability of a Korean to develop him or herself for it was the application of the Confucian top down system in all walks of life that is

now undergoing substantial change. Changes since 1997 may now mean that any direct influences attributable to the aforementioned are being refashioned by socioeconomic events."

One area of educational malpractice that does seem more likely is that of a TESOL teacher suing his TESOL Certificate / degree provider. Some of these courses, it is argued, are vague in nature, and fail, at times, to consider the legal implications of a TESOL teacher taught in one jurisdiction, who would reasonably be foreseen to go to foreign jurisdictions to teach, and thus to be prepared for such foreign teaching experience.

Although best left to a follow up article, the comprehensive findings of Bernat (2005), namely that,

89% of respondents agreed with the statement that "It is best to learn English in an English-speaking country", recognizing the inherent value of learning language in an immersion-type setting, where there is a greater exposure to the foreign language, its culture and its people

suggest that language learners (non English native speakers) who in greater numbers will visit English speaking countries to learn English, will place greater legal demands on those ESL language providers.

In summary, it is difficult to envisage actions blossoming within the next decade, however, as TESOL becomes more and more an accepted social science, the likelihood of legal actions arising in TESOL educational malpractice increase.

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United States Legal Cases:
Bittle v. Oklahoma City. 2000 OK CIV App 66
Southwesthttp://www.oscn.net/applications/oscn/
deliverdocument.asp?
citeid=49096
Donohue v. Copiague Union Sch. Dist., 407 N.Y.S.2d 874, 881 (1978).
Hunter v. Board of Education, 439 A.2d 582, 583-84 (Md.App. 1982)
Paladino v. Adelphi Univ., 454 N.Y.S.2d 868, 870 (1982)
Swidryk v. St. Michael's Medical Center, 493 A.2d 641, 642, n.1 (N.J.Super. 1985)
Moore v. Vanderloo, 386 N.W.2d 108, 113 (Iowa 1986)
Peter W. v. San Francisco Sch. Dist., 131 Cal.Rptr. 854 (1976).
Ross v. Creighton University, 957 F.2d 410, 414, n.2 (6thCir. 1992)
Moss Rehab v. White, 692 A.2d 902, 906, n.7 (Del. 1997)
Doe v. Yale University, 1997 WL 766845, *1 (Conn.Super. 1997)

Australian and U.K. Cases:
Education Reform Act (1990) New South Wales
Nike v High Court Australia (C.L.R. 1990)
Perre v Appand (1993) High Court Australia (C.L.R)
Trade Practices Act 1974 (Cth. Australia)
Grant, Woolley, Staines, & Grant v Victoria University of Wellington unreported, 13
November 1997