Prevention of Instructor-Caused Student Claims in Private Postsecondary Schools: A Risk Management Primer for Owners and Directors

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1 Prevention of Instructor-Caused Student Claims in Private Postsecondary Schools: A Risk Management Primer for Owners and Directors By Keith Zakarin, Esq. As a lawyer exclusively engaged in the representation of private postsecondary schools, I sometimes think of myself as a pathologist. I m all too often consulted after a student insurrection has degenerated into litigation. Lawsuit defense is expensive, not just in attorney s fees but also in the thorough waste of management time responding to discovery, appearing for depositions and dealing with adverse publicity. With the benefit of a pathologist s hindsight in the aftermath of many struggles, I m pleased to say that the good news is that student claims are largely preventable. Doing so requires recognition of some core principles, the courage to act decisively, and the implementation of sound risk management policies. Core Principle Number One: Instructor Misconduct is the Root of Almost All Student Lawsuits Virtually every big lawsuit begins with instructor misconduct. Understanding why this is so requires recognition of the nature of most students of private postsecondary school. Most do not have histories of personal success in education or in life. Most are full adults, many with families, jobs and competing responsibilities. Many have histories of claim-and-blame behavior, such as worker s compensation claims, welfare dependency, and the like. Such students may be accustomed to getting what they want by playing the victim, refusing to take responsibility for their own choice. An sense of entitlement may be present. All these behaviors mask a deep insecurity and fear that after all the money borrowed for their tuition, they may end up not succeeding, again. Now add to this volatile mixture the unique nature of many instructors. Many are not professional educators, but rather are technical professionals choosing, for personal reasons, to take jobs as instructors at lower pay. They are unfamiliar with the principles of preparing students for entry-level positions. They don t understand the characteristic insecurity of the students, and they chafe under the tight constraints of modular education. They are prone to making comments like In the real world, you ll be doing X, but here, we re teaching you X-lite. They may, particularly after being criticized, disparage the school s administration, curricula, equipment or facilities.

2 These sorts of comments and actions are positively incendiary around private postsecondary students, particularly in vocational schools. These students bond with their instructors far more closely than in traditional education. The students will conclude that the education they re getting is substandard, and will distrust the administration s response. Among the students there will be those with the ability and the experience to organize the others into insurrection. So what s a school owner or director to do? Core Principle Number Two: Adjust Instructor Expectations and Behavior My experience is that most schools do a terrible job of ensuring that instructors understand the nature of entry-level, modular education administered to insecure students. They assume that technical proficiency will translate well enough into instructional competency, given the sufficiency and organization of the curricula. Big mistake. Rare indeed is the new instructor who is familiar with the natures of modular education or vocational school students. They misunderstand the personal attention required to be provided to the students as a license for fraternization. They assume that entry-level instruction requires the same sophistication of equipment and facilities found in some workplaces. They assume a level of academic freedom by and large absent from vocational education. The First Adjustment: Ensuring Instructor Understanding of the School s Mission Vocational education is different. Its mission is to prepare students for entry-level positions in a career. Vocational schools, particularly accredited schools, are outcomedriven entities focused on ensuring that graduates obtain meaningful employment in the field in which the students are being trained. This requires a high degree of standardization of curricula and instruction. Daily lesson plans and tight schedules are universal, while nevertheless requiring all students to achieve mastery of the information and skills of the module being taught before moving on to the next module. Sometimes the curricula and skills taught are necessarily general, the better to prepare students for the greatest possible range of employment. New instructors often chafe under this regime. They may be accustomed to a greater degree of workplace freedom, or believe that the curricula, equipment or facilities are too basic for the best employment. If they tell your students these opinions, their confidence will be undermined, perhaps irreparably, and there will be an insurrection.

3 Schools need to ensure that every new instructor understands that the purpose of the instruction is to deliver that education and skills contained in the curricula, and not their ideas of what the education and skills should be. They should be told how much care and feeding went into the development of the curricula, how that translates into outcomes, and the consequent importance of standardization in presentation. They need to understand that this process is not inconsistent with extemporaneous delivery, but that the content and instructional method is not subject to debate within the classroom. Above all, they need to know that any negative comments to student regarding the school, the curricula, the facilities or the administration is absolutely forbidden, upon pain of termination of employment. The Second Adjustment: Implementation of a Non-Disparagement Policy Ensuring that instructors do not cause claims by voicing criticisms to students is impossible without elevation of the issue to the level of written, strictly enforced policy. That policy has two elements. The first is an absolute prohibition on the expression to students of criticism of anything associated with the school. The second is the creation of an internal channel for the expression to management of suggestions or criticism. Here s the policy statement I recommend: Positive Representation of the College to Students The College values your views on ways to improve all of the services we provide to our students. Our open door policy is designed to provide a means to share you ideas and views with us. The quality of the experience and education students obtain here is powerfully influenced by the attitude of instructors and other employees. If you are positive and confident, and speak well of the quality of the education, curricula, instruction, facilities and administration, our students will also be positive and confident. If, on the other hand, students are exposed to criticism by employees, however well-intentioned, about the quality of the education, curricula, instruction, facilities or administration, their confidence will be undermined and their education may be impaired. For these reasons, we expect all employees to voice concerns and constructive criticisms solely to management, and never, under any circumstances express views to students that are in any manner critical of the education, curricula, instruction, facilities or administration of the College. Violation of this rule will result in disciplinary action, which may

4 include immediate termination of employment. Implementing this policy requires more than publishing it in the handbook. It requires placing it actively into the culture of the school itself, and telling instructors why the policy is essential to the students success. Implementation also requires exercising the courage to fire instructors that violate the policy. Once instructors understand how the policy works and why it is important, the violators will do so only intentionally. Show no tolerance when this occurs, unless you re interested in spending lots of quality time with your lawyers. Acting quickly is essential. Once an instructor spins up the students, your ability to repair the situation may be limited. Core Principle Number Three: Avoid Stupid Hiring Practices Many of the really monumental student lawsuits and class actions were instigated by instructors that should never have been hired in the first place. By way of example, there are instances of schools unknowingly hiring individuals with lengthy histories of civil suits. Some of these applicant s litigation histories have been so atrocious that they had already been deemed vexatious litigants by the courts. I know of instances in which schools have unknowingly hired instructors who were convicted felons or fugitives. Once people like this get into your classroom, watch out. There are some simple and inexpensive things you can do to avoid these horrible situations. First, check resumes for gaps in employment, and verify references before offering the job. Often a school gets into this fix because it s in a rush. An instructor has just been fired or quit without notice, and you ve got a classroom of students in need of an instructor. A charismatic person shows up to apply, with a resume that - on quick review - seems great. Avoid the temptation to hire quickly! Don t be deterred by the difficulties in checking references. Many companies have a very sensible policy of not commenting on prior employee s work habits or behavior, out of fear of defamation suits. This is easy stuff to pierce. Just ask: Is the employee eligible for rehire? If you get any hesitation, be afraid, be very afraid, of hiring the applicant. Additionally, gaps in resumes are critical omissions. They almost always have meaning. Track them down in the interview, and get to the truth. Finally on this point, do litigation checks on all prospective instructors. Any attorney service or lawyer can do this for you quickly and relatively cheaply. Look back five years and search for civil suits, excluding divorce and bankruptcy. I m not telling you to refuse employment to anyone who has brought a suit. Rather, the point I m making is to look for a history of repeated resort to the courts, particularly against prior

5 employers. I had a case once in which the employee had sued every prior employer! (This was discovered, unfortunately, only after he d sued the most recent school to hire him) The lesson to take from this is to obey the maxim: Slow to Hire, Quick to Fire! Core Principle Number Four: Empower Instructors, but Prevent Fraternization This one may seem a tad ironic in light of the other principles, but it s a big one. It s crucial from a risk management point of view (and for other good reasons) for instructors in vocational schools to be very powerful in the classroom. Why? Students are often adept at claim-and-blame behaviors. They may be inclined to blame the school, their fellow students, the equipment, or the instructors for the feelings of insecurity they are beginning to experience during the training. The instructor needs to administer tough love in the career school classroom in order to guide the students to acceptance of personal responsibility for their success, and to learn the social skills necessary for workplace behavior. Students will often try to get around the instructor by complaining to administration. The rule here is very simple: Never openly take the side of a student against an instructor. Eroding the authority of instructors rewards complaining behavior and encourages insurrections. Where the instructor is wrong, tell her privately. Do not meet together with the instructor and student, unless it s to support the instructor s position. Fraternization is a big risk at career schools. The intense face-to-face interaction that creates such great educational value brings with it the risk of crossing the line between the professional and personal. Once that line is crossed, the instructor loses authority, and depending on the conduct, could open up the school to a variety of legal claims. There is no good reason for students and instructors to be social friends. All interaction outside the classroom (including lunches, etc) should be strictly prohibited. This is another one of those lines, that when transgressed, should met with stern discipline or termination of employment.

6 Behind every one of these principles has been a lawsuit. These cost the schools lots of money and time. Although risk management requires more than application of these four principles, their use will take your school a long way towards spending more time with your business, and less time with your lawyers. About the Author: Keith Zakarin is a Partner of Kaye, Rose & Maltzman, LLP, and is exclusively engaged in the legal representation of private postsecondary schools and colleges. He owns a vocational school in San Diego, and is Legal Counsel to the California Association of Private Postsecondary Schools.