Page 4-Friday, July 6, 1979-The Michigan Daily
Michigan Daily
Eighty-nine Years of Editorial Freedom
420 Maynard St.. Ann Arbor, Ml. 48109
Vol. LXXXIX, No. 38-S News Phone: 764-0552
Edited and managed by students
at the University of Michigan

Educators should be held
liable for what they teach

Contract accord
fortunate for city
THE CITY AND it's non-uniformed workers
reached a reasonable compromise on a two-
year contract last Saturday, sparing Ann Arbor a
strike that would have cost too much and gained
too little.
Starting out at extremes, negotiators worked
vigorously to beat a midnight Saturday deadline.
City workers belonging to the American
Federation of State, County, and Municipal Em-
ployees (AFSCME) had voted earlier in the week
to strike if an acceptable agreement was not
reached before the contract ran out.
But a strike would have cost the union $18,000
per day mainly in lost wages, according to an AF-
SCME official, and would have disturbed many
crucial city services. Both the city and the union
should be commended for their around-the-clock
bargaining which saved money and headaches.
While the two sides began negotiations far apart,
the inclusion of reclassification of certain jobs
and pay scale realignment made the two-year,
seven per cent wage increase contract accep-
table. Without that section, which means more
money for about a third of the 305 AFSCME city
workers, the pact would have barely offset in-
flation. The seven-per cent wage hike is in com-
pliance with President Carter's wage-price
guidelines, but is somewhat unrealistic, con-
sidering today's spiraling cost of living.
The city was fortunate in averting a costly
strike. The hard work and' long hours of
negotiation expended by a few people saved the
entire city from the hassles and aggravation of a
strike by city workers.
BUSINESS STAFF
LISA CULBERSON ......................... Business Manager
ARLENE SARYAN...... Sales Manager
BETH WARREN........................... Displa Man ager
BETH BASSLER......Classified Manager
STAN BERKMAN .............. National Advertising Manager
RANDY KELLEY .................... Operations Supervisor
PETE PETERSEN ...... ........ Advertising Co-ordinator
SUMMER EDITORIAL STAFF
ELIZABETH SLOWIK
Editor-in-Chief -
JUDY RAKOWSKY ....................... Editorial Director
JOSHUA PECK .............Ar Editor
MARK PARRENT Supplement MITCH CANTOR
Editors
PHOTOGRAPHY STAFF
MAUREEN O'MALLEY ................... Chief Photographer
JIM KRUZ...,.....................-..... StaffPhotographer
LISA KLAUSNER ......................... StafflPhotographer
- SPORTS STAFF
GEOFFL ARCOM .....Sports Editor
BILLY SAIN ....E.r.. uie Sports Editor
BILLY NEFF ........................Managing Sports Editor
IAN PERRIN ........................ManagingSports Editor

On June 14, 1979, seven middle-
aged (and older) men blocked for
a long time to come any chance to
reform public schooling radically
by means of educational
malpractice suits. The seven are
members of New York's Court of
Appeals, which has considerable
influence on the thinking of other
state courts throughout the coun-
try.
The case, Donohue vs.
Copiague Union Free School
District, concerned Edward
Donohue, who was graduated
from Copiague Senior High
School on Long Island in 1976,
without, his lawyers claim, "even
the rudimentary ability to com-
prehend written English on a
level sufficient to enable him to
complete applications for em-
ployment."
DONOHUE couldn't even read
a restaurant menu. He is, in sum,
a functional illiterate. Yet
Donohue was routinely promoted
from grade to grade, and there
was no evidence of any discer-
nable effort by teachers and
school officials to systematically
remedy his learning deficiencies.
Donohue and his parents sued
for for $5 million in damages on
the grounds of educational
malpractice. The case drew con-
siderable national attention, par-
ticularly from school
professionals whomwere fearful
that a Donohue victory would
unleash a torrent of similar suits.
Relieving these anxieties,
Judge Matthew Jasen, writing
the court's unanimous opinion.
noted that the state constitution
does not require school districts
to insure that each pupil receives
a minimum education.
THIS RAISES an intriguing
constitutional point. If the state
compels a child to go to school for
a certain number of years-with
quite severe sanctions on parents
who disobey rthis man-
date-should there not be a
corollary responsibility on the
school's part to actually educate
each one of those captive souls?
But there has never been a clearly
stated constitutional right to
receive an effective education.
Judge Jasen did say that there
may indeed be such a
phenomenon as "educational
malpractice." If, he said,
educators are viewed as
professionals-like doctors,
laywyers, architects, and
engineers, who are liable to such
suits-then it is conceivable they
could be held responsible for
violating a legal duty to care for
their students.
But, the judge hastened to add,
proving a malpractice charge
against teachers and ad-
ministrators "might be difficult,
if not impossible."
IN ANY CASE, the Court of
Appeals stated, the courts should
not "as a matter of public policy
entertain such claims." Why?
Because if courts accepted
educational malpractice suits,
they would have to sit in review of

By NAT HENTOFF
day-to-day implementation of
educational policies.
This, in non-legal language, is
a copout. It has been well
established, for instance, that the
courts have the power, and the
obligation, to make sure that the
students' First Amendment
rights of speech and press are not
violated by the schools. And this
requires, in specific cases,
judicial review of day-to-day im-
plementation of school policies
concerning student publications,
and students' free speech sym-
bols (buttons, armbands, etc.) in
the classroom.
Actually, the main reason that
courts in other states as well as in
New York recoil from
educational malpractice suits is
"If the state compels I
chilI to go to school for
(a certain n themar of years
-with quite severe san--
tiots or parents ho dis-
obev this mandate-shoud
there nt b e a corollar'v
responsibilit y of the
schools' part to ac tally'
.drcare ea-h onfe of those
ap tie sottls-
their fear that even if a particular
case cries for the awarding of
damages-like Edward
Donohue's -a single favorable
decision will open the floodgates
and maybe bankrupt the school
system. In other words, permit-
ting lifelong damage to certain
students is preferable to the
economic risk of making
educators liable for their more
horrendous mistakes.
JUDGE JASON suggested that
children and parents in
Donohue's poignant condition
press their grievances through
administrative procedures, all
the way up to the State Com-
mission of Education. But this is
the kind of advice one gives to
people who believe in the tooth
fairy. To admit the validity of any
grievance of this sort, the
wielders of the administrative
machinery would have to confess
their own complicity in what has
happened to the sinking child.
With this setback to the hope of
using educational malpractice as
a way to shock the schools into
recognizing that it could cost
them dearly to continue
disregarding children, only one
route to redemption remains.
And that is getting rid of
malpracticing teachers and ad-
ministrators-whether they have
tenure or not.
A useful, and indeed moderate,
model of precisely how this

process can work has been un-
derway in Salt Lake City since
1974. As described by Diane
Divoky in the teachers
magazine Learning, Salt Lake
City's teacher evaluation and
remediation program was
created by the school ad-
ministration and the teachers'
union.
AS A FIRST step it provides
remedial aid for teachers who
are failing. One of the most
crucial signs that indicates a
teacher needs help is that the test
scores of his or her students are
consistently below those of com-
parable children. Among others,
says Divoky, are: "poor
classroom management, lack of
planning, (and) lack of rapport
with youngsters."
Once the principal decides that
the failing teacher has to be
"remediated," a team is assem-
bled: the principal, a learning
specialist, and two teachers
chosen by the union. One of the
teachers is selected because of
his or her teaching skills: the
other is there to make sure that
the teacher-on-trial gets full due-
process protection during the
time of the testing.
Members of the team observe
and counsel the failing teacher,
and write periodic reports that go
to the teacher and the principal.
After two months, if the teacher
has substantially improved, the
testing by performance is overIf
not, there is another three mon-
ths of team-directed remediation
If the teacher is still inadequate
at the end of that period, heor she
is fired-with 30 days notice. Of
some 80 teachers who have been
through the procedure in Salt
Lake City, 15 have bees
dismissed, or have resigned.
BUT DAMAGING adults can
be made accountable, and not
only in Salt Lake City. In Seattle,
after $150,000 had been spent in
litigation costs to remove a
teacher permanently from a
classroom, a system was set up
by which administrators
regularly evaluate teachers,
place those found to be un-
satisfactory on probation. and
given them detailed guidelines on
how to improve their performan-
ce. If the teachers fail their
probationary period, they have to
go into some other line of work.
After all, there has neven been
any comprehensible reason why
incompetent educators have to be
kept on. It doesn't happen in
automotive plants, newspaper of-
fices, or any other work-
place-except politics. Ye
teachers and administrators
have had special immunity fora
long time. Now that the New
York State Court of Appeals has
ruled that they can't be sued for
educational malpractice, the only
route left is by way of Salt Lake
City and Seattle.
Nat Hentoff writes a
monthly column on educa-
tional trends for the Pacific
News Service.