Suits Charge ‘Educational Malpractice’ : Illiterate, Deaf Men Say N.Y. State Misplaced Them as Children

NEW YORK —  Frank Torres, 27 and illiterate, was abandoned at age 7 and became a ward of a New York state shelter.

The shelter allegedly ignored his inability to understand English, mistakenly classified him as retarded and placed him in school programs where he couldn’t understand what was going on.

Now, he is suing the state agency that had charge of him, contending that it failed to take reasonable steps to provide him with an appropriate education.

Donald Snow, 22, is also suing New York state, arguing that he can barely read because, as a child, he was misdiagnosed by state doctors as a “hopeless imbecile” with an I.Q. of 24. In fact, he was deaf.

He spent much of his youth away from his family in mental institutions, where he contends he received little, if any, meaningful education.

Both cases fall loosely under the heading of “educational malpractice” suits.

Rulings Expected Soon

In New York and practically every other state, such cases are nearly impossible to win. But some lawyers believe that these cases may prove exceptions.

Rulings in the cases, argued recently before New York’s highest court, are expected soon.

Lawyers say the outcome may set new legal bounds on where educational malpractice ends and medical malpractice begins.

If Torres and Snow win, it could have special significance for the approximately 1 million children nationwide who are state wards in mental institutions or child care agencies and who claim that their education was neglected.

Already, Snow has gotten unusually far with his claim. His attorney, Robert Ellis, argued that he was the victim of a clear-cut case of medical malpractice with an educational consequence. He won a $2.5-million judgment at the trial level, but the award was reduced to $1.5 million by an appeals court.

Torres, represented by lawyers of the American Civil Liberties Union’s Children’s Rights Project, has not fared as well. Lower courts have sided with the state’s argument that his claim amounted simply to educational malpractice and therefore was not valid.

ACLU attorney Marcia Robinson Lowry said Torres is not accusing the state of medical or educational malpractice as such. Rather, he is arguing that the state had taken on the role of parent and had been negligent in that role, with educational consequences.

Courts around the country have almost always rebuffed any suit even hinting at educational malpractice.

In two landmark New York state rulings in 1979, Hoffman vs. New York City Board of Education and Donohue vs. Copiague Union Free School District, the state appeals court ruled simply, and bluntly, that educational malpractice complaints are for school systems, not courts, to resolve.

States Provide Avenues

Pamela Seider Dolgow, an attorney representing New York state, argued in Torres’ case that “the fact that plaintiff graduated from school without being able to read is unfortunate. However, as noted by this court in Hoffman and Donohue, not every wrong commands legal redress. For the reasons expressed by this court in Hoffman and Donohue, this is such a case.”

Courts around the country have likewise held that states give parents more than enough avenues to right educational wrongs while their children are still in school.

They have held that it’s almost impossible to pinpoint legal blame for a child’s failure to achieve educationally. Further, there are no hard-and-fast professional standards for teaching, so educators cannot be found guilty of malpractice the way lawyers or doctors can.

Courts have thus nearly always refused to grant monetary damages to parents who claim, after the fact, that their youngsters had been wronged educationally unless they can prove that state or educational authorities acted willfully or maliciously.

In Maryland, for example, an appeals court in 1983 ruled against a boy who was dyslexic but had been misdiagnosed as mentally retarded and placed in a special education class. In 1980, a Maryland court dismissed the case of Kathy Ellen Lamon, misdiagnosed and put in a class for the retarded, when in fact she was deaf. In both cases, the courts ruled the plaintiffs failed to prove malice.

Similar cases with similar rulings have occurred in recent years in California, Pennsylvania, New York and other states.

However, those rulings certainly did not mean schools can do no wrong legally, nor did they leave parents and children legally defenseless, said Ken Pawson, assistant counsel to the New York State Education Department, in an interview.

Ever since Congress passed legislation a decade ago guaranteeing equal educational opportunity to the handicapped, states were required to set up elaborate procedures to protect various rights of youngsters.

If, for example, a school district believes that a child is handicapped, it needs parental consent to test the youth. Or parents who believe their child has an overlooked handicap can force a school district to hire an impartial hearing officer to hear their case. The ruling can be appealed to the state education commissioner, and from there to court.

Those procedural rights don’t apply only to the handicapped, Pawson said. Parents can demand hearings for almost anything: If they believe that their child should have gotten a higher grade, for instance, or should have been allowed to take chemistry or an honors class.