Friday, June 22, 2007


The typical law school exam presents the student with a fact pattern (i.e., a story about two or more parties who have a dispute over something or other) and asks him to apply legal reasoning and substantive law to determine the respective rights and obligations of the parties, and perhaps determine who would be more likely to prevail in court and why. A former colleague shared the following story with me yesterday, so let's use that as the fact pattern, and then see if we can apply legal reasoning to the facts to determine the appropriate outcome:

Mrs. X is the mother of an 18-year-old high school senior, Y, who failed one of his classes due to his not completing and handing in required work. Upon learning of this, Mrs. X goes to the school, armed with a copy of the "Parents' Bill of Rights," which indicates that she has the right to be informed if her child is failing. She tells an Assistant Principal that she was not informed, and therefore Y's teacher cannot give Y a failing grade. She says that if she had been informed that Y was failing, she "would have made him do the work." The teacher disputes her contention and claims that she was informed. Y failed the previous marking period also, which his interim report card indicated.

OK, let's examine Mrs. X's claim one piece at a time, using basic legal reasoning and general principles of civil law. Does Mrs. X have a legitimate claim, and if so, is the remedy for which she is asking an appropriate one? The parental claim that "The teacher didn't tell me my child was failing, therefore she cannot fail" seems to be a fairly common one nowadays, and one must wonder if it really makes sense. Let's examine the situation in the context of a typical tort case, i.e.: Duty, Breach, Causation, Damages.


Without knowing precisely what the "Parents' Bill of Rights" says with regard to notification, it's difficult to say for sure just what the notification requirements and procedures in that school are. Let's assume for the sake of argument that it's just a generic statement like the one indicated above, and the school has standard procedures for NYC high schools for report cards, Open School, etc. The first question, then, is whether the teacher had an affirmative duty to personally reach out to the parent any time Y's average dipped below 65, or any time Y neglected to submit an assignment, and inform her of same.

Neither the Chancellor's Regulations nor the UFT Contract, nor any substantive body of law or regulatory scheme of which I am aware, explicitly creates an affirmative duty on the part of teachers to personally inform parents of a student's failing status whenever it may occur, nor of each and every individual failing grade or non-completed assignment, beyond report cards. Every school has a system for informing parents of student progress, including mid-term or marking-period report cards, progress reports or other mailings, scheduled parent-teacher conference events such as Open School, etc. Most city high schools have two intermediate marking periods (and thus two interim report cards) within each semester, therefore all parents are informed twice over the course of a five-month semester of their child's status in each class, in addition to the final report card in January or June.

Historically, personal phone calls or other correspondence to parents from teachers outside of these school-wide procedures have generally been regarded as a courtesy, an example of a teacher "going the extra mile" to help her students succeed. Parents, of course, have always been free to reach out to their children's teachers individually if they are particularly concerned, and teachers traditionally reciprocate in those individual cases. But does every teacher have an affirmative duty to reach out to every parent of every child whose average falls below 65, or who does not submit an assignment, any and every time either of these things occurs? Is it reasonable to place such a duty on the teacher?

The typical teacher has roughly 150 students across five classes; I've had as many as 170. While I keep my grades on an Excel spreadsheet and thus they are updated automatically every time an assignment is graded (or entered as a zero if it is not submitted), many teachers do not compute student grade averages until the end of the marking period. Even I sometimes don't know if a child will fail until he takes a midterm or final exam, or completes an assignment due just before the end of a marking period or semester. Either way, is it reasonable for a teacher to have to compute and monitor 150 students' grade averages every day, to personally call every parent whose child's average falls below 65 any and every time that occurs, to personally call every parent of every child who does not submit an assignment, as well as every parent whose child receives a low or failing grade on that assignment, every time an assignment comes due? Is it reasonable for the teacher who has spent hours calculating final grades to then have to personally call every parent whose child has failed a marking period or semester before filling out her report cards, which will in any case be mailed out presently?

To put it another way, is it reasonable to set a policy that a child cannot fail a class unless the parent was personally informed by the teacher in advance that she might fail?

Note that the word "every" keeps coming up here because we cannot call this an affirmative duty otherwise. What a teacher does for one student and parent as a matter of policy he must do for all. Of course a teacher can do this for individual students if he is asked by the parent, guidance counselor, administration, etc., and agrees to take on the responsibility, and he can do so on his own if he judges a student to be severely deficient, disruptive, uniquely troubled, etc., but if we are talking about an affirmative duty then it must apply to all teachers and all students in all situations.

Remember, the question is not whether teachers should or should not call parents, or whether it would be a positive and admirable thing to do. Of course they should, and of course it would be a good thing. The question is whether or not an affirmative duty exists; i.e., is the teacher required to do this in all cases, and will the parent and/or student be entitled to a remedy if he does not?

As we have seen, it is very difficult to find an affirmative duty for teachers to always inform parents whenever any individual child underperforms in school. It would just not be reasonable to expect teachers to do this for every student in every case, nor would it be an efficient use of a teacher's time and resources. We have report cards, we have Open School, we have all sorts of academic intervention services in the schools including guidance counselors. It is not always clear to a teacher that a child may fail until the teacher sits down to compute all of her students' grade averages at the end of a marking period. There is no reason why periodic report cards cannot satisfy the notification requirement. And whether a child passes or fails should be determined by his own ability and performance, not the teacher's non-pedagogical procedural compliance.

The issue also raises the question of the student's duty to be aware of his requirements and do his work, and the parent's duty to be aware of the child's work habits and progress. Recall the discussion in a previous post concerning entitlements and obligations. Every relationship between individuals, whether in a public or private context, involves reciprocal rights and duties; never are all the rights and entitlements vested in one party with all the duties and obligations placed upon the other. No system could function under such conditions. Recall also that minors are not immune from tort or contract liability based on their age. If any breach of duty has occurred here, the student has breached his affirmative duty (remember, he is in the best position to avoid the risk) to know and meet the requirements of that particular class, the intention of which is in any event for his own benefit.

The parent's claim that she "would have made him do the work" if she had known of his failing status is interesting in a couple of different ways. In the context of duty, it implies that the parent does not have a duty to see to it that her child does his work as a general matter, and in the case of this particular parent, would only do so if she is informed that he is failing. The claim obviously begs the question, why would the parent not do that anyway? Although it is not strictly at issue in this case, what is the parent's duty with respect to her child's academic performance in the first instance? (The claim also raises interesting causation issues, which are discussed infra.)

It therefore seems that, under the common law tort analysis, the teacher has no affirmative duty to personally inform the parent of the student's academic status beyond report cards and similar standard school-wide procedures. However, even if there is a duty on the part of teachers to keep parents informed in the fashion suggested, was that duty breached in this case?


Obviously, if there is no duty, there can be no breach. It is usually more arduous to establish a duty than to establish a breach of that duty, but assuming there was a duty in this case, the question then is whether the teacher fulfilled her obligation.

Unfortunately, more facts would be needed to make a definitive determination of a breach of affirmative duty. We know that the student failed the interim marking period and that this was indicated on his previous report card. The teacher claims to have informed the parent of the child's failing status, but by what means and precisely when are unknown, as is the nature of that information. The question may hinge on whether the report card itself satisfies the notification requirement; if it does, that ends the inquiry and there is no breach of duty.

However, the question may also hinge on whether it is reasonable to believe that the parent did not know that the child was failing, or in danger of failing, the course. The parent has already implied that she did not monitor the child's academic performance and was not concerned about "making him do the work," but that can mean several things. It could mean that she honestly believed the child was doing fine and did not need monitoring, but the interim report card would make that unlikely. It could also mean the child simply lied to her about his status and she believed him. Or it could mean that the parent, as mentioned above, does not see it as her responsibility to do that at all, unless she is personally informed by the teacher that the child is in danger of failing. Although the student's overall academic record is unknown, the interim report card should have been enough for the parent to know that the child was in trouble in that class.

Now, let us assume that the parent knew, but that the teacher still neglected to call and thus breached her affirmative duty to inform the parent that the child was about to fail. If we limit the inquiry to the teacher, we therefore must ask whether the teacher's breach of duty, and nothing else, caused the child to fail the class.


The classic test of causation in both tort and criminal cases is the "but-for" test. But for the defendant's actions (or negligence), the injury/loss would not have occurred. Then there is the additional element of proximate cause (the so-called, and self-explanatory, "Hitler's mother" problem). This is obviously the most difficult element for the parent to establish. If the student's grade is the measure and result of his performance (and let's assume, arguendo, that it is), the teacher's calling or not calling the parent has no direct impact on that; i.e., even if the teacher had a duty to call the parent and failed, the child still underperformed and still did not submit the missing work. The teacher calling the parent, by itself, would not have changed that. In other words, it is certainly possible (perhaps likely) that the child would have failed even if the teacher had called the parent, thus the "but-for" test fails rather quickly. The proximate cause of the student's failure is simple, and obvious: He did not do his work.

Hence the parent in this case attempts to establish causation by claiming that she "would have made him do the work" if she had known he might fail. (Which again begs the question, how does a parent not already know that her child might fail if he does not do his work?) This cannot possibly satisfy the "but-for" causation test, because it is not only indirect, but vague and hypothetical. There is obviously no way to know, with any degree of certainty, precisely what the parent would have done or said or what effect it would have had on the child, let alone that it would have averted the failure. Not only would we have to assume, with 100% certainty, that the parent would actually have done what she said she would, but that it would have had the effect she claims it would have had. That's a lot to assume; far too much to establish causation.

Even if the parent could establish causation, would it be appropriate to change the student's grade and pass him for the year, as a direct remedy for the teacher's failure to call the parent?


Here we return to the fundamental contention cited above: "No one told me he was failing, therefore he cannot fail." One does not need legal reasoning to see that this is a logical fallacy. Unfortunately, it has become a ubiquitous and convenient last-resort position for parents everywhere, an easy claim to make because it neither requires proof nor can be affirmatively proven.

The question here harks back to many of the points I have made in earlier posts, including the general reluctance to place the burden of learning on the learner or attribute blameworthy conduct to students, the idea of retroactively un-doing past events to absolve and benefit the student, the concept of failure as punitive action taken by the teacher rather than a denotation of student performance, etc. Yet as difficult as it is to find a logical justification for retroactively raising a student's grade based solely on the parent's ignorance thereof or lack of prior notification, this is most often what happens.

The bottom line is this: The fact that the teacher did not personally inform the parent in advance that the child was in danger of failing, even if the teacher had an affirmative duty to do that and breached that duty, does not alter the course of time and make it so the child actually wrote the essay or passed the exam the failure of which caused him to fail the course. It does not magically endow him with the skills and knowledge which he was heretofore unable or unwilling to demonstrate. Given the absence of direct or proximate causation, as discussed above, it would hardly be appropriate to simply change the child's grade to reflect what the parent thinks it "would have" been under some vague, attenuated hypothetical; i.e., to base the grade on something that did not actually happen. That simply makes no sense.

Sometimes in a case like this, the parent will claim that the teacher "did not give my child a chance" to either make up the work or do something else to earn a passing average, and demand that the child be allowed to submit the missing work, or do "extra credit" or somesuch, even if the term has already ended. Not for nothing, but the semester is five months long. There are roughly ninety school days over that time period. The student, over that time, has plenty of opportunities to choose whether to do his work or not, and decide how much time and effort to devote to that class and its requirements. It is absurd to suggest that any teacher, over a five-month period, does not give every child every chance to succeed and pass the course, or that teachers should be obligated to keep giving a student additional "chances" until the child and parent are satisfied with outcome. One cannot make up for five months of inaction and poor performance by writing one essay or taking one test. Students will not learn to make the most of the opportunities they are given if they know they will always be given one more.

(Personally, I do not believe in "extra credit;" you do the work you are assigned, period. If you are willing and able to do "extra credit," then you were able to do the assigned work but chose not to. You must now accept the consequences of that choice. When a failing student begs me for "extra credit" at the end of the term because it's "really important" that she pass my class for whatever reason, my response is simple: You should have considered that earlier, when you chose not to do your work. Yes, it's harsh, but it is a lesson young people must learn.)

All of this indicates a general reluctance on just about everyone's part to view academic performance, and particularly failure, as a result of the student's choices. Again, failure is generally regarded as punitive action even though it should not be. Not to belabor the point, as I've discussed this at length in previous posts, but if we are really here to teach, to educate young people on how the real world works, we do a very poor job of it by teaching them that their choices don't have consequences, that they do not and should not have to pay for their mistakes, negligence, and frankly, plain stupidity.

In the end, whether Mrs. X has a case or not, she is setting the most horrible example imaginable for her son. The lesson he will learn is thus: When things do not go your way, the proper thing to do is complain, claim ignorance, and demand to have what you did un-done, to have your mistakes corrected for you, because it must be someone else's fault, and you are entitled to the outcome you desire.


MBressi said...

Diane Ravitch wrote an op-ed piece in the New York Sun (June 14 2007) called "Stop Blaming the Educators." She is very much in agreement with you about students failing because of their! choices. One thing she says is, "Next time there is a conference about the state of American Education [...] why don't we take a hard look at why so many of our students are slackers?" She also says, "We will continue to misdiagnose our education needs until we focus on the role of students and their families." The article was reprinted in the "CSA News." It's not up on the CSA website yet. When it is, I'll email it to you. I'm sure you will find it of interest.

Jay Braiman said...

The article is here:

Jay Braiman said...

I certainly agree with Ms. Ravitch about misdiagnosing our education needs. Those who propose radical political changes like vouchers and merit pay completely miss the point.

The "Moral Hazard" article hereunder explores this issue. Kids are slackers because they can be slackers. They know that at the end of the day it won't matter; they know they're going to pass, they know they're going to graduate. Being a slacker is easier than being a conscientious student, and more importantly tends to have the same outcome.

They also know that what they can't attain through hard work and dedication they can attain through complaints and blackmail.

AND, not only are they "slackers," but too many high school kids are crybabies as well. They are weak, soft, fragile, unable to accept criticism or consequences and thus unable to truly LEARN. And if there is a word which is the opposite of "resourceful," they are that as well.

I'm sorry, but somebody has to say it. Maybe it's because I played football at a military academy all those years ago, but I find such weakness pathetic. Kids will not learn until they toughen up.