Educational Malpractice Litigation in the United States

I: Public Education in America
Formal institutions that provided education were not part of the American landscape before the revolutionary war. Outside of large towns in New England, schools were not required by law. The government did not provide for free access to education. Yet, the vast majority of Americans in the colonies were educated to some extent and most could read the newspaper, the Bible, and compute their taxes. This level of literacy came as a result of informal institutions of education created by individuals and local government. Generally, the creation of a school or something that resembled it occurred because of a town or wealthy individuals' decision to expend resources to hire a teacher or build a school. Since the education of youth was not governmentally funded, schools were diverse in size and teaching quality varied greatly.
Even though no organized system of schools existed, the basic education of townspeople and villagers was seen as an important and integral part of daily life. In towns that could afford them, there were "dame schools" that catered to children. At these dame schools, small children were given "hornbooks" from which to learn the alphabet and prayer. Older boys went to grammar schools where they studied math, Latin, and philosophy. The wealthier of these male children would probably go on to college or university. Poor children or children in remote areas may not have had schools near them at all and most probably at most had some form of education at home where families often read and discussed the Bible out-loud. At the least, most individuals were taught to read. It is important to note that while pre-revolution colonists made no move to provide a system of schools, there is no doubt that education or at least literacy were seen important parts of life in the American colonies. Laws such as the one found in seventeenth-century Connecticut requiring children be taught to "read the Inglish tounge" existed in many of the larger towns. The goal of having a literate populace served both religious and civil purposes, and laws in the early colonies articulate this objective. In Massachusetts, citizens were to "read & understand the principles of religion & the capitall lawes of this country." Similarly, a 1696 Maryland law discussed the education of youth in "good Letters and manners." In Pennsylvania, a 1683 ordinance required children to read and write the scriptures by age twelve. This was a Connecticut law from 1642. The law was changed to add writing to it in 1647. Similar laws existed in Massachusetts. Deborah Keller-Cohen. Alternative Literacies: In School and Beyond, 14 Anthropology & Educ. Q. 299, 307(1993).

The ability to read and write in early America allowed individuals to interact with others in their community. While the opportunity to be social may seem inconsequential to Americans today who enjoy modern conveniences, the limited resources of the typical American in the seventeenth century created a society that was distinctly social and collaborative in nature. Colonial society believed reading and writing were essentially linked to speaking. It was commonly thought that "reading is nothing but speaking what one sees in a book, as if he were expressing his own sentiments, as they arise in his mind." Literacy offered the opportunity to participate in religious activities like bible reading and discussion and civil activities like letter writing and social clubs that allowed colonists to protest or communicate different ideas.

After the revolution, education was seen as a means to both strengthen American democracy and as a form of distancing itself from British culture. Early on, Thomas Jefferson advocated a "crusade against ignorance." He wanted to "establish and improve the law for educating common people...[because] general education will enable every man to judge for himself what will secure or endanger his freedom." As a member of the Virginia Assembly in 1778, Jefferson proposed legislation to guarantee three years of public schooling to all children, with advanced education for those who showed promise. This radical view of providing education to the masses was soundly rejected by his fellow assemblymen. His proposal entitled "Bill for the More General Diffusion of knowledge" was up for voting three times between 1779 and 1817. Each time Jefferson attempted to persuade the Virginia Assembly to ratify the bill for public education, it was defeated.

The mid-nineteenth century marked a major turning point for the education system in the United States. By 1880, many states passed compulsory school attendance laws for children and allotted funds for the building of schools and the hiring of teachers. Yet, enrollment was not free and most schools still lacked wide-spread supervision and retained the variations in quality, curriculum, and size that affected colonial schools. The notion of an organized statewide school system was only beginning to surface. Between 1830 and 1840, the educational reformer Horace Mann physically inspected over one thousand schools in Massachusetts and noted that the state took better care of its livestock than of its children in school. After the assessment, Mann held a series of public meetings to present a new system he called "common school." He proposed that the schools would "serve all boys and girls, and teach a common body of knowledge that would give each student an equal chance in life." Mann wanted the system to be free to the public, funded by tax dollars with standards set and enforced by the state. He thought that "education...beyond all other devises of human origin is the equalizer of the conditions of men, the great balance wheel of the social machinery." Mann's proposal was not met with enthusiasm by local governments. Clearly, his audience was keenly aware of the notions of federalism and importance of independence of local governance and the idea that a dominating state power may remove from them the authority to regulate a local function that it had controlled since colonial times created much opposition to the reform. Moreover, citizens were unhappy with the possibility of the increased tax burden required to fund Mann's vision. While Mann's ideas were resisted at first, the reformer's goals of creating free uniform education funded by taxes and a state run board of education sparked much debate about the state of education around the country. By 1840, the common public school movement had begun to take hold, particularly in large cities. The new and large wave of immigrants arriving from Europe could enroll their children in public schools in New York City that were free and open to all.

The first half of the 20th century presented the tax-supported public school on its way to resembling the modern American public school system. Primary school was free and generally offered eight years of instruction. Local school boards continued to make all important decisions about personnel and curriculum. Most American schools at this time were taught around the "the three Rs." This method was "basic skills" oriented and relied heavily on recitations and spelling bees. However, this curriculum failed to accommodate the changing population in American cities where most new enrollees could not speak the English language. Educational experts felt that the curriculum's reliance on verbal studies and academic subjects was the wrong way to educate children. Instead of focusing on scholarly subjects like history and English for everyone, they advocated setting children on "tracks" that were often vocational and introduced "numerous specialized occupational programs for children who were expected to become industrial and commercial workers, domestic workers, and housewives." Children were categorized through the use of intelligence tests that were supposed to "identify students' innate, fixed intelligence." The children were then taught according to the results of their tests. Using this process labeled "progressive," the school systems tried to absorb millions of children in the hopes of preparing them for the real world. The plans turned studies away from academic subjects, restricting those topics only to students who were thought to be college-bound. It soon became clear that "progressive education" was not going to work either. When a mayor in New York City implemented the "Gary Plan" that rotated children from vocational facilities within their school, immigrant parents rioted during the 1917 mayoral campaign enraged that their children were being denied the chance to prepare for higher education. With aptitude tests and the assignment of vocational or academic tracks becoming mostly standard by the 1930's and 1940's, public school access was nearly universal.

While education reform was happening for white Americans, African American children continued to face immense difficulty gaining access to public education. Prior to the Civil War, African Americans who lived in the South were mostly slaves and had little or no access to education at all. Even in the North where blacks were entitled to go to public school, they were separated from whites and usually placed in limited and inferior facilities. In 1849, Roberts v. City of Boston upheld educational segregation. Benjamin Roberts had tried and failed to enroll his daughter at several white primary schools. Eventually, she enrolled at a black school that was located past five white schools in the same neighborhood. Roberts brought suit under an 1845 law that permitted the recovery of damages from the city for students who were illegally excluded from public schools. The Massachusetts Supreme Court found that in "classifying the children, [the school committee] have not violated any principle of equality, inasmuch as they have provided a school with competent instructors for the colored children, where they enjoy equal advantages of instruction with those enjoyed by the white children." It wasn't until Brown v. Board of Education in 1954 that separate was finally deemed unequal.

The task of "Americanizing" immigrants from numerous distinct cultures was not the only driving force that led to the massive expansion and reformation of the American public school system in the 19th and first half of the 20th century. Plainly evident in the work of educational reformers, Brown's judicial analysis and even the poorly thought out and ultimately discriminatory efforts to categorize children as vocational or academic is the Jeffersonian ideal that education is the foundation for successful daily life, democracy and meritocracy where even a person born into the poorest family may prove his worth. Even though there eventually came a backlash in the 1950's and 1960's criticizing the lowering of standards when public schools became hyper-focused on "real world" skills, the public school retained some semblance of the Jeffersonian ideals of developing policies that attempted to accommodate the educational needs of a large and growing population. While the progeny of wide-spread singling out of children as inherently more or less intelligent continues to haunt the American educational landscape, one viewpoint on this is that what may have been at the root of this inequitable treatment was the intention to educate every child with the ultimate goal of forming law-abiding, useful adults who would be successful in life. Indeed, even with some misguided steps, education has always been an important ideal within the American perspective.

Bibliography:
San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973).
Bernard, Sheila Curran & Sarah Mondale, School: The Story of American Public Education, 22 (Beacon Press 2001).
Id.

Dates enacted and age requirements under compulsory education acts: Alabama1957-16, Alaska 1929 7-16, Arizona 1899 6-16, Arkansas 1909 5-17, California 1874 6-18, Colorado 1889 unavailable, Connecticut 1872 7-18, Delaware1907 5-16, District of Columbia 1864 5-18, Florida 1915 6-16, Georgia 1916 6-16, Hawaii1896 6-18, Idaho 1887 7-16, Illinois 1883 7-16, Indiana 1897 7-16, Iowa1902 6-16, Kansas 1874 7-18, Kentucky 1896 6-16, Louisiana 1910 7-17, Maine1875 7-17, Maryland 1902 5-16, Massachusetts 1852 6-16, Michigan 1871 6-16, Minnesota 1885 7-16, Mississippi 1918 6-17, Missouri 1905 7-16, Montana 1883 7-16, Nebraska 1887 7-16, Nevada 1873 7-17, New Hampshire 1871 6-16, New Jersey 1875 6-16, New Mexico 1891 5-18, New York 1874 6-16, North Carolina 1907 7-16, North Dakota 1883 7-16, Ohio 1877 6-18, Oklahoma 1907 5-18, Oregon 1889 7-18, Pennsylvania 1895 8-17, Rhode Island 1883 6-16, South Carolina 1915 5-16, South Dakota 1883 6-16, Tennessee 1905 6-17, Texas 1915 6-18, Utah 1890 6-18, Vermont 1867 6-16, Virginia 1908 5-18, Washington 1871 8-17, West Virginia 1897 6-16, Wisconsin 1879 6-18, Wyoming 1876 6-16. Department of Education National Center for Educational Statistics, State Compulsory School Attendance Laws, http://www.infoplease.com/ipa/A0112617.html (last updated 2004).

Horace Mann became secretary of education in Massachusetts at the newly formed board of education in 1837. He was the first such official in the United States. He traveled throughout the state "by riding on horseback from district to district reviewing the actual physical facility." Mann visited one thousand schools over the course of six years and wrote detailed reports on their physical condition. He found that most lacked adequate light, heat, and ventilation. In one particular school, "there were no blackboards and no standardized textbooks, so pupils spent hours memorizing or reciting passages from books they brought from home, no matter how outdated or irrelevant. One book on penmanship devoted an entire page to the proper writing of the letter O at a 53-degree slant. A geography text described a sea serpent found off the New England coast." Bernard, supra n. 5, at 26.

Even into the early 20th century it is easy to see why people were so opposed to Mann's idea of state-wide control of local schools. For example, statistics that compared federal, state, and local school funding from 1919-1920 showed the total expenditure for school funding was 83.2% by local government, 16.5% by state government and a mere 0.3% by the federal government. The funding provided by the state and local governments began to even out only in the 1960s with state surpassing local funding in the late 1970s. Notwithstanding the increase, state funding never exceeds local funding by more than 6% even into 2001. U.S. Department of Education, National Center for Education Statistics, Funding for Public Elementary and Secondary Schools, 1919-1920 to 2000-2001, http://www.infoplease.com/ipa/A0112651.html (last updated 2006).

Horace Mann is seen as "the patron saint of public education. He talked about the great leveling effect of education. Many consider that Mann's idea of public education is intertwined with Jefferson's in that both of them disliked the idea that the family you were being born into would determine your fate. Bernard, supra n. 5, at 31.

Mann's idea of common education like many of his contemporaries saw schools as being wholly non-sectarian. Common (public) schools, especially those that catered to immigrants, were to be just that-common. The children were to read the Protestant prayers and learn Protestant religious ideas. The King James Bible was read. Protestant hymns were sung and it was not uncommon for textbooks to be anti-Irish or anti-Catholic. This was part of Mann's vision was universal education and what he saw as the important "Americanization" of immigrants. Id.

Douglas J. Ficker, From Roberts to Plessy: Educational Segregation and the "Separate but Equal Doctrine", 84, 4, J. of Negro History Doctrine 301, 308 (1999).

Roberts v. City of Boston, 59 Mass. 198, 203 (1849).
Brown v. Bd of Education, 347 U.S. 483 (1954).