School Business Affairs November 2020

38 NOVEMBER 2020 | SCHOOL BUSINESS AFFAIRS LEGAL ISSUES In the face of COVID-19 and the move to virtual, remote, or blended learning, a new round of legal concerns may emerge. Virtual Liabilities: Transforming Crisis Online Learning to Robust Online Learning By Ali Carr-Chellman, Ph.D., and Charles J. Russo, J.D., Ed.D. B efore the outbreak of the COVID- 19 pandemic, traditional learning environments were increasingly under the microscope as reformers called for significant change to education in the United States (Ravitch 2020). Various stakeholders—including policy makers, poli- ticians, parents, and taxpayers—pressed for increased accountability and improved stu- dent performance. Concerns over the quality of K–12 education led to a limited number of unsuccessful educational malpractice cases in which parents sought to render school boards and teachers liable when their children failed to learn. In the face of COVID-19 and the move to virtual, remote, or blended learning, a new round of legal concerns may emerge. After a brief background on virtual or remote learn- ing and a review of the law of educational malpractice, this column offers recommen- dations to help education leaders ensure high-quality teaching and learning for stu- dents during the COVID-19 pandemic and beyond and to help leadership teams avoid liability by developing strong instructional programs that are more likely to stand up to parents’ malpractice claims. Virtual or Remote Learning Virtual or remote learning can be traced to the establishment of DAVI (Department of Audio-Visual Instruction) as a part of the National Education Association (AECT 2001). DAVI provided the foundations of distance learning, which in its early days was what most thought of as correspon- dence courses. Those courses—which were primarily “taught” through written docu- ments often sent back and forth through the U.S. Postal Service—eventually became popular in prison education and rural exten- sion programs. Distance education began to transform as options emerged when the use of corre- spondence classes gave way to radio, record albums, TV, filmstrips, video, and eventually present-day forms of learning management systems carrying entire online learning expe- riences to individuals via the Internet. Indeed, virtual learning has progressed quickly and astonishingly. And as the tech- nology has evolved, opportunities for new legal liabilities have followed. Educational Malpractice The term “malpractice” is most often used when injured parties sue profession- als—typically those working in one-to-one relationships with clients, such as physicians or lawyers—for allegedly failing to meet appropriate standards of care. The first educational malpractice claims arose in the 1970s when parents sought to hold boards and educators liable when their children did not do well in school. Other than some limited success in dis- putes involving students with disabilities ( M.C. on Behalf of J.C. v. Central Regional School District 1996a, 1996b; Snow v. State 1983,1984), and children whose rights are clearly identified and protected by statute, most notably the Individuals with Dis- abilities Act (IDEA), courts overwhelm- ingly reject educational malpractice claims. In fact, in a case from higher education, a federal trial court judge in Illinois mused that education malpractice is “a tort theory beloved of commentators, but not of courts” ( Ross v. Creighton University 1990, 1327). In what is considered the leading case on educational malpractice, parents in Califor- nia sued the board of education when their son graduated from high school, although he could read only at the fifth-grade level BBOURDAGES/STOCK.ADOBE.COM