Braced for a lawsuit explosion

16th February 2001 at 00:00
Those who fear an American-style 'culture of compensation' in schools should think again - the British experience could be much worse. Chris Bunting and Jon Marcus report.

A Russian, a Cuban, an American and a lawyer are on a train. The Russian takes a bottle of vodka from his bag, pours a glass and says: "In Russia, we have so much vodka that we can just throw it away!" He opens the window and throws the bottle out.

The Cuban takes out a pack of the finest Havanas and lights one: "Well in Cuba, we have more cigars than we can ever smoke!" With a flourish, he throws the rest of the pack through the window.

Then the American gets up ... and throws the lawyer out of the window.

The joke is hackneyed but the fact that you can find a dozen similar gags in the average US joke-book sums up one of the nation's defining characteristics: its litigiousness.

It was understandable, then, that when British commentators were called upon to analyse apparent moves by the UK courts last year to intervene in the education system, they reached straight for the American casebook.

A landmark House of Lords decision gave pound;46,650 in damages for negligence to 26-year-old Pamela Phelps for the London borough of Hillingdon's failure to diagnose her dyslexia at school (see box, right). The case was greeted with dark warnings of millions of pounds being sucked out of the education system by US-style lawsuits.

Pessimists have pointed to the the new Human Rights Act and the introduction of "no-win, no-fee" payment for lawyers, prompting the Daily Mail to attack an "American culture of compensation, in which they sue anybody, everybody and everything".

But what exactly is the US experience of lawsuits in education and what can it teach us?

The stories on both sides of the Atlantic start predictably.

In Britain, education law specialists were largely unheard of until the late 1980s. John Friel, a leading barrister, has estimated that between 1907 and 1989 there were just 20 education cases in English courts.

Meanwhile, in America, many of the great advances in education were being fought out by lawyers.

The most famous example is the 1954 Brown v. Board of Education ruling, which helped kick-start the civil rights movement by outlawing racial segregation in schools. As recently as 1992, judges ordered the state of Mississippi to reorganise its higher education system because it unfairly discriminated against blacks.

But the court system has also played a key role in deciding a much wider range of educational controversies, ranging from religious worship in schools to a recent case in which a parent successfully challenged teachers' practice of reading out pupils' marks in class.

But what of the uglier side of America's litigiousness, the "culture of compensation" that has so exercised British commentators?

In fact, the data fly in the face of received wisdom. Far from being overwhelmed by negligence claims, a comparatively meagre 300 lawsuits are filed annually against America's 87,100 schools, according to America's Education Law Association.

In a survey last year by the American National Association of Secondary School Principals, two thirds of all heads said they had seen a rise in the number of law suits against them in the past 10 years. But even that purported trend is in dispute. While the Education Law Association reports that the number of lawsuits filed against schools has increased from 200 a year to 300 a year in the past five years, a study by Lehigh University claims that school-related lawsuits have actually decreased slightly since they peaked in the 1970s.

Compare that to the United Kingdom, where Christopher Reynolds, head of St Benedict's school in Derby and a member of Britain's Educational Law Association, has seen a "revolutionary change" in legal interventions in everyday school life.

"This week alone, I had two situations where I was advising governors that recent court cases would mean looking carefully at what we are doing. Five years ago, that was not the case," he said.

Jack Rabinowicz, one of Britain's leading educational lawyers, estimates that there are currently 2,500 appeals pending to special needs tribunals (compared to only 700 in 1995). About 50 of those cases will get as far as the High Court.

Appeals by parents against admissions decisions by schools jumped from 77,000 in 1997-98 to 85,900 in 1999 and are continuing to rise.

About 200 educational negligence cases - virtually unknown before 1995 - are currently working their way through the courts.

The contrast could be interpreted as a reassuring sign. After all, the Americans are further down the road that we are, aren't they? Perhaps we are set to repeat their experience of a relatively gradual increase in legal cases after a boom in the 1970s. This fits in nicely with Lord Nicholls' dismissal, in his judgment on the Phelps case, of defence fears of a rash of "gold-digging" actions.

Perhaps - but there is a more unsettling interpretation. In America, most states set limits on financial awards that can be obtained from government employees, including teachers, for misdeeds connected with their official duties.

Often the limits are so low, they barely make it worth the time to hire an attorney. In a few places teachers cannot be sued at all.

By contrast in Britain, the Phelps ruling has been widely interpreted as exposing education to the full force of legislation previously applied to professional negligence. It seems schools' treatment of pupils will be judged by rules intended to govern the way firms treat consumers.

Crucially, the Lords rejected previous precedents that protected local authorities from being sued because they were seen as public bodies conferring positive benefits on citizens. It had been argued that they might be hampered by the threat of legal action.

An education system increasingly run as a "managed market" - with an inspection system setting minimum standards, paren-tal choice of schools and legalistic home-school contracts between parents and teachers - appears to have convinced the law lords to impose a model of negligence and compensation not significantly different from that imposed on business.

While most lawyers insist it is too early to predict the consequences of the Phelps decision, the intriguing possibility is that Britain's school system may not be just following in the footsteps of the US, but pioneering an unprecedented legal involvement in education.

For parents of negligently taught children the change may be welcome. But David Hart, general secretary of the National Association of Head Teachers, warns that an increase in successful claims would not only lead to mounting legal bills for the state education system - and the taxpayer - but may also discourage schools from taking on high- risk pupils.

And that would be no laugh-ing matter.


In July 2000, Pamela Phelps (left) won pound;46,650 from Hillingdon Council, London, for the failure of teachers and educational psychologists to diagnose her dyslexia.

* The case established that teachers owe a duty of care to all students. This duty is not restricted to children with special needs, although for them, damages may be greater.

* To establish negligence the courts look at general consensus about acceptable professional practice. This helps establish whether teaching has fallen below acceptable standards. Teachers' records of their decisions are likely to be consulted.


Came into force in October last year, incorporating the European Convention on Human Rights into UK law. Key parts for schools that could provide fertile ground for lawyers include:

* Article 2 - right to education This right was affected by two recent cases. In 1986, the European commission decided that compulsory uniforms did not breach it. In 1989, lawyers decided that exclusion was not per se a violation. But it would still threaten any decision that deprived an excluded student of alternative schooling.

* Article 3 - bars inhuman or degrading punishment or treatment. Schools and local authorities can be held accountable for bullying by teachers or children.

* Article 6 - right to a fair trial New government guidelines restricting exclusion appeals panels' ability to reinstate pupils if they are accused of violent, drugs or sexual offences are already threatened by legal challenges under Article 6.

* Article 8 - right to private and family life Privacy rights might be used to argue, for instance, that teachers cannot search pupils' bags. In the US, a parent recently successfully challenged teachers' policy of reading out pupils' marks in class on privacy grounds.

* Rights to freedom of conscience and from discrimination These rights (articles 9, 10 and 14) may be used to challenge uniform or appearance rules - for instance, a Muslim girl prohibited from wearing trousers. Also what happens to a student who wears an extreme political message on hisher T-shirt?

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