The Blumenfeld Education Letter January 1995

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The BlumenfeldEducation Letter

Vol. 1 0,No. 1 ( le tte r # 101)

"My People Are Destroyed For Lack Of Knowledge" HOSEA 4:6

January 1995EDITOR: Samuel L. BlumenfeldThe purpose of ftilS newsletter is to provide knowledge for parents and educators who want to save lhe children of America

from the destruct ive forces that endanger them Our chi ldren in the publ ic schoolsare at grave riskin 4 ways: academical ly,spiri tual ly,moral ly. and physical ly - and only a well informed public wil l be able to reduce lhese r isks.

"Vli!hout vision, the people perish."

The NalepaCase: Educators C an Now Cause the D eath of a C hilda n d Get Aw ay WithIt

Back in April 1990, we published the

following story from the Detroit News of 3/27/90 under the title "Boy Hangs Self AfterSeeing Suicide Film in School" It reads:

An g..year~1d boy hanged himself on 3/24/90in Canton, Michigan, ore day a fte r s ee in g a film onsuicides shown to his dass, Stephen Nalepa wasfound by his brother Jason about 9:30 p.m., Saturday,dangling by a belt from his bunk bed, his feet barelyan inch. off the floor.

Stephen's slvxked parents, l.any and DebbyNalepa, said their son's hanging may have been anaccident inspired by a movie on suicides shown 10 hisclass Friday at Gallimore Elementary School in Can-

Debby Nalepa said Stephen stayed home towatch a vintage movie, Titanic, but became bored andwent upstairs to play, About 9:30 p.m., she sent herolder son, Jason, to get Stephen.

"That's when we heard this blood-curdlingscream," Larry Nalepa said. "I ran upstairs andfound Jason hying to hold Stephen up.

"His feet were only this far from the floor,"Nalepa said, belding his forefinger and thumb barelyan inch apart. H I took him down, and Debby startedCPR (cardiopuhnonary resuscitation) while Jasondialed 911. EMS came quickly and worked. on him awhole hour; but it was too late."

Stephen, who had an IQ of 130, was an outgoing

child who played soccer and basketball, collectedbaseball cards and took art and music classes.

On Nov. 8, 1990, the Nalepas filed awrongful death cause of action in WayneCounty Circuit Court against the followingparties involved in the production, distribu-tion, and showing of the film: EncyclopediaBritannica (distributor), Osmond Produc-tions (producer), the Wayne Oakland Li-brary Federation (which obtained the film

from defendant Wayne County Intermedi-ate School District, and which distributedthe film to the Plyrnouth-Canton Commu-nity Schools), the Plymouth-Canton SchoolBoard, Dr. Jacqueline Hisey (school psycholo-

~II The Blumenfeld Education Letter is published rnonth1y. Original material is ropyrighted by The Blumenfeld Education Letter.

II Permission to quote is grante:l provided proper credit is given. Readers are encouraged to order and distribute additional copies ofthose newsletters they believe should be sent to legislators, columnists, talk shows, pastors, etc. Subscription Rate: 1 year $36.00.I Address; Past Office Box 45161, Boise,. Idaho 83711. Phone (208) 3224440.

I

ton."A sequence in the movie depicts a child who is

depressed trying to commit suicide by hanging froma belt am being saved at the last minute," DebbyNalepa said "Less than 24 hours later, this happens."

Stephen had neva' played with belts before andwasn't depressed like the chikl in th e movie, said hismother, a nurse at Garden Gty Osteopathic Hospital ,who tried. in vain to revive him..

"He was always imitating and mimicking be-cause he was always so adept a t every thing." she said.

"The principii told me the essence of th e movie is toshow that life is worth living, but what really angersme is she admitted she had not even screened the filmto see if it is appropriate for 8-year-olds."

Three officials at Plymouth-Canton Commu-nity Schools said they had never heard of the movieand refused 10 romment.


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Education Letter. .Pg. 2 , January 1995

gist), Shirley Spaniel (executive director ofelementary education), Jane Armstrong(Stephen's teacher), Norma Foster, and AliceBrown (second-grade teachers who showedthe film to the three second-grade classes).On May 16, 1991 the Nalepas' attorneysrequested a trial by jury but were denied itby the court.

T he L e th a l F ilm

The film, entitled "Nobody's Useless,"is about a child named Andy who had a legamputated. after falling in a bam where hewas forbidden to play. In the film, Andyattempts to commit suicide twice, once byhaving a friend push him into a body ofwater while tied inside a burlap sack, andonce by attempting to hang himself with anoose .around his neck, attached to the raf-ters in a barn. Andy's friend attempts topush the bail of hay on which Andy wasstanding so that Andy would be hung. In themovie, Andy was saved by his friend's olderbrother, who happened to walk into the barnat a fortuitous time. The movie ends with

Andy enjoying new-found acceptance fromfriends and family.On March 23, 1990, Stephen Nalepa's

second grade class viewed th e film alongwith two other second-grade classes. Ency-clopedia Britannica had recommended thefilm for grades 4 through 9.

Tea ch e r s Ig n o reO w n Ru l e s

Why was the film shown to secondgraders, and why weren't parents notifiedthat the film was going to be shown? BothShirley Spaniel, the executive director ofelementary education and the plaintiffs'expert Dr. Bumis Hall, Jr., of Wayne StateUniversity, agreed that the film was not anappropriate resource for use in Stephen's

second-grade social studies curriculum.According to Hall:

Using. or pennitt ing th e use of, the film "No-body's Useless" for second grade students withoutpreviewing, without requiring or receiving approval

or without preparation of students would constitutea serious breach of duty amounting to gross negli-gence on the part of the teachers and administratorswho are Defendants in this lawsuit.

Accorcling to the complaint

All of the rules were broken when the film"Nobody' s Useless" was shown to the second gradestudents at Gallimore School without preview, with-out approval from the principal and with question-able, if any, relationship to the curriculum it was

supposed to support .... Attempted suicide is a con-fusing concept to introduce to young minds. It is anunderstatement to say that the introduction of at-tempted suicide is controversial. Defendants hadcertain procedures to follow if potential confusion orcontroversy might arise from the use of certain "edu-cational materials." None of these procedures werefollowed and th e most devastating personal injury toan elementary student followed.

\ 'Vas S te p he n S u ic id a l?

What about Stephen Nalepa? Was he atall suicidal? At the insistence of DebbyNalepa, Stephen had been referred to theschools' psychologist, Dr. Jacqueline Hisey,for testing because he was a "bright boy withpoor work production." The testing wasdone in November 1989, using the WechslerIntelligence Scale (WISC-R), Bender-Gestalt,and the Kaufman Test of EducationalAchievement (K-TEA). The report states:

The kindergarten te acher ... found that Stephenwas enthusiastic, as well as an interesting. creativeboy when involved in activities that he enjoyed, suchas art However he needed to "tend to work." . .. Hewas seen by th e agency social worker who diagnosed"performance anxiety" and who thought Stephenmight qualify as Errotionally Impaired under specialeducat ion guidel ines. Stephen is now a second graderand continues to have the same problems that

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E d u c a t i o n L e t t e r , P g . 3 ,January 1 9 9 5

prompted the initial Child Study referral. His presentteacher, like his previous teachers, describe him as abright boy with good skills who produces very little.

. . Stephen approached th e performance itemswith logic and insight. His languagewas mature andthought processeswell organized and devoid of anyloose tangential thinking .... In the interview he

stated that school was "too easy" but then he didn'tknow why he had trouble getting his work done ....His stated interests are age appropriate. He likeshockey, soccer and collecting basebal l cards. Whenconfronted about some inappropriate language atschool he said he learned it from an older boy.

Stephen, on th e WISC-R,obtained a Verbal IQ of123 in the Superior range, a Performance IQ of 132, inthe Very Superior range and a Full Scale IQ of 131, alsoin th e Very Superior range of intellectual functioning.. . . His performance in Object Assembly is outstand-ing and Stephen's explanation was ''I like to dopuzzles." The high was a result of motivation, superb

planning strategies and puzzle experience .... He hasgood understanding of rouse/effect and ca n s eq ue n-tially put events together into a meaningful whole .... In essence, Stephen is very well endowed intellectu-ally and uses his intelligence efficiently.

Canton 's OBE Cu rricu lum

VVhatwas the cause of Stephen's inat-tentiveness, his slowness in getting the workdone? Perhaps it had something to do withthe school's curriculum. The Plymouth-Canton Schools had adopted Outcome-BasedEducation and Mastery Learning in 1982 Infact, a six-page Board of Education PolicyStatement of Oct. 2h, 1982 (policy No. 3709)outlines the district's Philosophical Principlesand Practices. It states:

Mastery Learning assumes that virtually allstudents can learn, and that learning can be improvedgreatly, providing favorable learning conditions are

present. In its "Statement of Philosophical PrinciplesUnderlying Outrorre-Based Schooling," the Networkfor Outcome-Based Schools claims that almost allstudents a re c ap ab le of achieving excellence in learn-ing the essentials of formal schooling and that th e in-structional process can be changed to improve learn-ing.

The fact that Stephen found school to be"too easy," is an indication that he was boredwith the dumbed-down OBE curriculum.But it was obvious that he was highly intel-ligent, and that is why he was tested on themorning of his death to see if he qualified for

the Talented and Gifted Program. If he weresuicidal, would there not have been someindication of emotional trouble that morn-ing? According to his parents, Stephen wasnot at all suicidal. He died of asphyxiationby hanging, in an act of imitative self-injury.

MIS. Egan 's Affidavit

Nor was Stephen the only child who

had sought to imitate what he had seen in thefilm. The Plaintiffs had obtained an affidavitfrom Mary Jane Egan, another parent whohad a son at the Gallimore School Theaffidavit, sworn to on Sep. 9, 1992, reads:

I, Mary Jane Egan, make this Affidavit based onpersonal knowledge and am competent to testifyregarding the facts stated herein:

1. My son, James Egan (jimmy), ha s been astudent in the Plymouth-Canton schools from 1983through the present.

2. He was a student at Gallimore school from1983 through 1988.

3. While he was a student at Gallimo re sch oo l,Jimmy saw the movie "Nobody's Useless."

4. Shortly thereafter, my daughter Janie tele-phoned me at work and said that Jimmy had just triedto kill himself by climbing on top of a freezer in th ebasement, tying a noose around his neck and pre-tmding to jump. When I carne horre and asked whyJimmy had done this, he said because the boy did it inth e movie Jimmy had seen at school.

5. I went to Gallimore school and told th eprincipal, Joyce Deren, what Jimmy had done athome.

6. Mrs. Deren said that Jimmy's actions couldnot possibly be connected to the movie and she saidI was making fa r too much of the situation.

7. Mrs. Deren further said that the school boardbelieved "Nobody's Useless" was an excellent film.

Apparently, the film had been shown

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Education Letter, Pg. 4 1 January 1995

for a number of yearswith no roncem on thepart of the educators for its possible negativeeffects on the students. An affidavit fromEncyclopedia Britannica stated that the fihnwas released for distnbution in 1980 and thatby 1990 it had been shown to at least 1,800,000children without a claim ever having beenmade by anyone against the distributor.

Educational M alpractice

However, an affidavit from child psy-chiatrist Dr. David Shaffer o f Columbia Uni-versity's College of Physicians and Surgeons,left no doubt that a film of this kind couldproduce tragic results. Dr. Shaffer stated:

I have conducted extensive research and studieson adolescent suicide and foreseeable acts of imita-tion and have examined the incidence data for suicideamong eight year old children.

I have conducted a psychological autopsy con-cerning the death of Stephen Nalepa which occurredon or about March 2 4, 1 99 0,[and] I have viewed thefilm "Nobody's Useless" and am aware that StephenNalepa viewed that film on or about M arch 23, 1990.

It is my professional opinion that there is aprobability that un.ier appropriate ciraunstaoc'es anelementary school student who viewed the film

"Nobody's Useless" could attempt to imitate thesuicide scenes depicted in the fihn. It is my profes-sional opinion that th e death of Stephen Nalepa on orabout March 24, 19 90 resulted because he viewed thefilm "Nobody's Useless" the previous day.

My conclusion is based on an examination of theincidence data for suicide am:mg eight year old dul-dren in the United States; the similarity betweenStephen's death and the scene depicted in the film;and the close proximity in time between Stephenviewing th e film and his death.

It is my professional opinion that StephenNalepa's death on March 23 , 1990 would no t haveoccurred had he not viewed th e film "Nobody ' sUseless" th e p re vio us day. It is my professionalopinion that th:re is nothing in th e psychologicalautopsy which I conducted o f Step hen N a lep awhichwould suggest that he was suicidal or that his deathwould have occurred had he not seen the film"Nobody's Useless." It is my professional opinionthat prior to viewing th e film "Nobody's Useless"Stephen Nalepa was rot suicidal am that his death

constituted an act of imitation.

It seemed like an open and shut case.The educators were guilty not only of negli-gence in their failure to protect the healthand safety of a student, but they were guiltyof educational malpractice in showing a filmto second graders which the distributor hadrecommended for 4th to 9th graders. Inaddition, the educators had failed to obtainparental approval before showing this obvi-ously emotionally charged film. Also, aparent had warned the principal of the factthat her son had imitated the suicidal child inthe film and had almost killed himself. Andconsidering the fact that educators are con-

stantly reminding us of how much betterthey know child psychology than those of uswithout teaching degrees, one would haveexpected them to be especially cautious inwhat they exposed their young charges to.Thus, the picture we get of the Plyrnouth-Canton educators is one of ignorance, in-c ompete nc e, c are le ss ne ss ,and unprofession-a1ism. No wonder the public has lost faith inpublic education.

In addition, we expect educators to be

able to foresee the possible co nsequences o fschool activities that arouse strong emotionalreaction on the part of the students.

Thus, Stephen's educators had a duty toforesee the possible imitative actions that an8-year-old viewer of the film might engagein. And inasmuch as Stephen was com-pelled to see the film, and that the relation-ship between Stephen and the educators wasrustodial, their duty was to make sure thatthey did nothing that could harm any childin their charge including one who might imi-tate the character in the film.

T h e C op y..c a t E ffe c t

One of the reasons why the news mediahave tended to play down teen suicides is

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Education Letter, Pg. 5, January 1995

because of the copy-cat effect. It is widelyknown that even adults are subject to thecopy-cat effect. But children are foreverimitating others in their games and play. Foreducators to pretend that such imitation is sorare that no cautions need be taken to protectchildren from their own imitative tenden-des is to suggest that other motives wereinvolved in their lapse of ordinary caution.

Early in the litigation, the court dis-missed the case against Encyclopedia Bri-tannica because its relationship to the de-ceased was too remote. They were notStephen's custodians, That was the sameargument used by the manufacturers of"Dungeons and Dragons" in Watters v 1SR(1990), in which the parents of a youngsterwho had committed suicide blamed "Dun-geons and Dragons" as the cause. The courtruled in favor of the manufacturer becausethe latter was not the custodian of the young-ster at the time of his death or at any othertime in proximity to his death.

However, in Stephen Nalepa's ease, theeducator-custodians actually showedStephen the film that led to his death. Butshouldn't Encyclopedia Britannica have

warned th e educators of the possible nega-tive effects of the film on very YOtmg chil-dren, just as drug manufacturers dutifullywarn users of the possible side effects of adrug, and cigarette manufacturers are re-quired. to warn smokers of the possible harm-ful effects of smoking?

To sum up the Plaintiffs' case: the edu- And so, the defendants' case rested oncators were guilty of gross negligence of the denial of the duty to protect the childtheir custodial duty to care for the well-being from possible harm resulting from viewingof their students; the educators failed to fore- th e film, that such duty resembles teachersee the possible harmful consequences of malpractice which the state of Michigan doesshowing the film to impressionable 8-year- not recognize as a theory of recovery, a ndolds; the defendants could not possibly seek that requiring the teachers to engage in em-

I! the protection o f th e First Amendment in sorship of instructional materials violatedthis case since the child had been compelled their FIrst Amendment rights to freedom of

! to view the film and the film itself was rec- s p e e c h . Would a jury have absolved theI ommended fo rolder children. defendants 00 the basis of these fIirnsy argu..

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T h e E du ca to rs ' D e fe n se

How did th e educators defend them-selves? The defendants' attorneys first citedthe court's summary dismissal

ofthe case

against Encyclopedia Britannica which ruledthat the defendant "owed no duty to Plain-tiffs and that imitative suicide is not a fore-seeable risk of harm as an act of self destruc-tion breaks the chain of legal causation." Theattorneys then argued that "Allowing thecivil action to continue and/or the imposi-tion of civil damages against these Defen-dants would violate the right of free speechguaranteed by the First Amendment of the

United States Constitution, resulting in self-censorship of educational materials fallingwithin the curriculum of the school district."In their Argument, the attorneys wrote

The Defendant teachers involved in this litiga-tion, including Jane Armstrong, Norma Foster andAlice Brown are likewise entitled to sununa ry dispo-sition as no duty existed on their part to refrain fromshowing th e film in question. The conduct of th ePlaintiffs' decedent simply was not foreseeable togive rise to such a duty. The teachers herein cannot behe1d liable fo r th e self-destructive act o f Plaintiffs'decedent . ..

The complaint filed by Plaintiffs herein allegesduties that resemble teacher malpractice and notthose dealingwith personal injuty proximately causedby a teacher .... However, .. .Michigan Jaw does notrerognize teacher malpractice as a theory of recovery.


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ments? In any ease, the Court ruled againstthe Nalepas and in favor of the educators.

In clearing Encyclopedia Britannica, thejudge wrote:

TIle question involved is then whether defen-dant distributor [Encyclopedia Britannica] was un-der a duty to warn as articulated in plaintiff s com-plaint to avoid the contingency of an imitative suicideas allegedly occurred in the instant case. No legallycompelling nor logically persuasive authority hasbeen presented by th e plaintiff tending to establishthe. type. of duty invoked herein The weight ofauthority in cases of this sort rejects imposition ofsuch a duty, finding that no duty to warn exists, thatsusceptibility to suicide is not foreseeable in suchcircumstances and that the act of self destructiontypically constitutes a break in the chain of legal

causation . . . . Acrordingly defendant EncyclopediaBritannica's motion for SU I I 1 I I 1 a IYdisposition shall begranted. (Signed Samuel A. Turner, Circuit Judge,

Feb. 28'. 1992)

T h e E d u c a to r s W in

On Nov. 9, 1992, Judge Turner dismissedall of the complaints against all of the otherdefendants. He insisted on viewing Stephen'sdeath as a simple suicide and not an imita-

tive act resulting in accidental death by as-phyxiation. All of the evidence indicatesthat Stephen had no intention of killinghimself. Nevertheless, the judge, in a semi-literate opinion, wrote:

First, although defendants herein owed plain-tiffs' decedent a duty of reasonable care, as a matter oflaw that duty did not include an obligation to viewand thereafter decline to exhibit the subject film basedon th e contingency that a student might resultinglycommit suicide.

Second, on the basis of the record as made theCour t finds that th e result that in fact occurred (i.e, th esuicide) was not as a matter of law foreseeable.

1hird,the suicide, as a matter of law ronstituteda break in th e chain of causat ion.

The Judge also agreed with the defen-dants that they were protected by the First

Amendment to the Constitution. He wrote:

In response to plaintiffs' claims defendants-movants submit 1) that they are not beholden to anyduties such as those alleged by the plaintiff and 2) thefree speech clause of US Cost, Amend I enjoins the

type of action herein sought to be maintained. Inas-much as the first issue is, of itself, dispositive, theconstitutional question need not be reached.

Te a c h e r sD e s t r o y E v i d e n c e

The Nalepas were devastated by JudgeTurner's opinion, and took the case to theCourt of Appeals. There had been manydifficulties in this case. For example, theNalepas had had great trouble obtainingdocuments from the educators, such as thelesson plans of the teachers who had shownthe film. The complaint reads:

[The] Defendants are attempting to justify theuse of the film by representing that it was a supple-mental resource used to support the Social Studiescuniculum. 1bere is clearly a fact question as to whatcurriculum th e film allegedly supported. If the filmwas utilized as a curriculum resource, Plaintiffs areentitled to know whether Defendants Foster, Ann-strong. and Brown referred to any specific cuniculum

in their lesson plans or in the summary of their plans.Oearly Plaintiffs have substantial need of any writtenexplanation or justification regarding why th e filmwas shown, why it was unpreviewed and why sec-ond graders were required or permitted to view it.

In addition, Plaintiffs are unable, without un-due hardship, to obtain the substantial equivalent ofthe writ ten explanations by other rreans, The threeDefendants testified at deposition that they destroyedtheir lesson plans. Thus, the only evidence pertainingto the lesson plans and/or why the film was shownwould be found in documents supplied to the inves-tigator employed by the Defendants' insurer in or

about March, 1990.At her August, 1991 deposition, Defendant

Foster admitted that sh e had prepared a write-up, inMarch, 1990 which is a dose recollection of what wasin her lesson plans regarding the showing of the film.She then destroyed her lesson plans. When Plaintiffs'counsel attempted to inquire as to the contents of thewrite-up, defense counsel objected and refused toallow Ms. Foster to answer the question.

Foster admitted that she copied both Social

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Education Letter, Pg. 7, January 1995

Studies and Health curriculum when she prepared awrite-up of activities surrounding the showing of th efilm. Indeed, Foster herself confused the writtensummary with her lesson plans and subsequentlychanged sworn interrogatory answers. Initially, Fostersaid she gave her lesson plans to her principal thenchanged and said she gave a written summary of the

plans to her principal.Defendant Annstrong [Stephen's teacher] alsotestified at deposition that sh e had destroyed herlesson plan book for the 1989-1990school year. Shehas no recollection of what was in her lesson planbook for the day th e fihn was shown, March 23, 1990.

Defendant Brown testified at deposition thatshe had prepared handwritten notes regarding whythe film was shown and gave them to Ms. D ere n,theprincipal of Gallimore School. The . handwri~ensUl11I11aI)'included pages from th e curriculum whichdealt with the subject, and thus came out of her lessonplans, but she could not recall th e content of the

summary. She has not retained her lesson plans.

Obviously, the lesson plans were de-stroyed by the defendants because theycontained incriminating evidence. Suchdestruction of evidence is known as obstruc-tion of justice. Half of Nixon's staff went tojail for that, and the President himself wasforced to resign for obstructing justice. Also,what teacher destroys her lesson plan bookfor the entire preceding year? "The teacherscannot recall what was in their lesson plans,they have destroyed the lesson plans, theyadmittedly prepared summaries based onthose lesson plans, and their attorney wouldnot let them testify at deposition as to thecontents of the summaries which they pre-pared," stated the Plaintiffs' counsel.

The "HeaHh" Cu rricu lum

On Aug. 9, 1991 , the Court ordered theDefendants to produce copies of all writtenexplanations, descriptions, justifications, orwritings of any kind prepared by the defen-dants pertaining to the showing of the film.It seems that the film had been shown in ron-junction with the second grade health cur-riculum, in particular, the feelings and

emotions.section. The feelings and emotionssection is part of DBE's affective domain.Professor Benjamin Bloom, godfather ofOutcome-Based Education, asserted that itwas necessary to get to the children as earlyas possible. He wrote in his Taxonomy

concerning the affective domain:

The evidence points out convincingly to the factthat age is a fa cto r operating against attempts to e ffe cta complete or thoroughgoing reorganization of atti-tudes and values ....

The evidence collected thus far suggests that asingle hour of classroom activity under ~ .co~i-tions may bring about a major reorgaruzanon mcognitive as well as affective behaviors.

Were the educators at the GallimoreSchool trying to prove the correctness ofBloom's theory by showing the film to sec-ond graders? And had Stephen Nalepaexperienced a major reorganization in cog-nitive as well as affective behavior becauseof his viewing the film?

finally, on November 2 3, 1 9 94 ,the Courtof Appeals announced its decision. It dis-missed the Nalepas' case against all of thedefendants. The Court had decided that the

school district and the superintendent were"entitled to absolute governmental immu-nity from tort liability when acting withinthe scope of their authority .... The film dealtwith mental health issues, about which ourstate has evinced a concern," ConcerningEncyclopedia Britannica and the rest of thedefendants, the judges wrote:

We find that Encyclopedia Britannica did notundertake a service to benefit the schools or thechildren. Thus, we agree with the circuit court thatdefendant Encyclopedia Britannica did not owe plain-tiffs or Stephen a duty of care.

With respect to th e r ema in in g defendants - theprincipal, teachers, counselors and other staff mem-bers - we conclude that although a duty of careexists, that duty does not extend to the actions of thesedefendants, which allegedly caused Stephen's death.

Although Michigan recognizes a teacher'seomrron law liability for a student's injuries proxi-

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Education Letter, Pg. 8 , January 1995

mately caused by the .teacher, public policy must beconsidered in detemrining to what type of actionsthat duty extends. . . . Michigan law is clear that theduty does not extend to educational malpractice. . . .

The rationale for declining to recognize cIaimsof teacher malpractice stems from the collaborativenature of the teaching process. See Ross v CreightonUniversity. . . . For a positive result to obtain, bothteacher and student must work together. The ulti-mate responsibility for what is learned, however,remains with the student, and many considerations,beyond teacher misfeasance, ca n factor into whethera student receives the intended message . . ..

Even if the harm appears to flow from the al-leged malpractice, for public policy reasons, we wouldstill decline to recognize a duty. We agree with th eSuprerre Cour t of Wismnsin's statement in anothereducational malpractice case:

"Even where the chain of causation is oomplete

and direct, recovery may sometirres be denied ongrounds of public policy because . . . allowance ofrecovery would enter a field that has no sensible orjust stopping point." . . .

Further, we oonclude that recognizing this causeof action could lead to a flood of litigation whichwould be detrimental to our already overburdenededucational system. . . . Finallywe do no t wish toembroil our courts into overseeing th e day-to-day op-erations of our schools.

We conclude that th e decision to show th e filmwas based. on academic factors, Therefore, any causeof action arising from that decision must fit within the

educational malpractice genre. As a result, we agreewith the trial court that th e remaining defendants'duty of care did not extend to utilizing an allegedlyimproper teaching device. . . .

Plaintiffs' complaint is dismissed.

they engage in blatant and outrageous edu-cational malpractice. The state judicial sys-tem operates not to protect children, but toprotect educators.

Thus, parents should be aware that when

they put their children in the hands of publiceducators, they are putting them at graverisk In fact, the Nalepa case provides home-schoolers with a very strong argumentagainst any government regulation of theirchildren's education, for the governmenteducation establislunent cannot be held li-able for educational malpractice.

A P ro m is in gLi fe L o s t

On Saturday morning. March 24, 1990,the last day of his life, Stephen Nalepa wastested to see if he qualified for the talentedand gifted program. Terri Michaelis, theprogram coordinator, provided an accountof how Stephen behaved. She wrote:

Mrs. Nalepa also asked me to comment on myrecollection of Stephen during the testing on March24th. I picked up the students at the front of theschool. Stephen first came to my attention when Icalled the roll from my list to see if I had everyone Ishould. Stephen corrected my rnisprommdation ofhis last name self-confidently. He sat directly in frontof my desk. He was active during testing with a lot ofmoving in his seat during the test. There were threeshort breaks while testing, during which he movedabout with others and chatted at my desk. He triedhard and seemed to want to do well. He finished thetest. 'The whole group left chatting and my memoryis that Stephen was glad the test was over and as eageras th e rest of th e group to go home and play on asunny Saturday. My memory of Stephen is that of a

bright energetic second grader.

In other words, the educators can causeirreparable harm to a child and get awaywith it because the state does not recognizeeducational malpractice to be a cause of legalaction. Apparently, educators need thisprotection, because what

isbeing taught in

sex education can lead to harmful conse-quences for many students, and how read- Despite all that the courts did to clearing is taught in most public schools dearly the educators of any wrongdoing, Debbycauses the reading disability known as dys- Nalepa knows that if Stephen had not seenlexia, and the drugging of children with that film in class on March 23, 1990, he'd beRitalin may also cause serious harm to some alive today.children. So the educators need all the Jimmunity they can get from the courts as

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The Blumenfeld Education Letter January 1995

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Transcript of The Blumenfeld Education Letter January 1995