Therefore, the Court of Appeals refused to allow a claim that the school had failed in its duty to educate Donohue to proceed, because "[t]o entertain a cause of action for "educational malpractice" would require the courts not merely to make judgments as to the validity of broad educational policies—a course we have unalteringly eschewed in the past—but, more importantly, to sit in review of the day-to-day implementation of these policies." Id. The Court of Appeals affirmed this position in Hoffman v. Bd. of Ed. of City of New York, 49 N.Y.2d 121, 125, 424 N.Y.S.2d 376, 400 N.E.2d 317 [1979], where it rejected the plaintiff's negligence claims based upon the Board of Education's alleged failure to properly evaluate his intellectual ability. Plaintiff sued the Board based on its continued use of the results of an evaluation performed by a school psychologist when the plaintiff first entered kindergarten in order to determine all of the plaintiff's subsequent educational placements.

In Hoffman v Board of Educ. ( 49 N.Y.2d 121) and Donohue v Copiague Union Free School Dist. ( 47 N.Y.2d 440), we dismissed complaints for educational malpractice, holding that as a matter of public policy the courts would not second-guess the professional judgments of public school educators and administrators in selecting programs for particular students. In the appeal before us plaintiff, who never learned to read despite a public school education, seeks damages from his legal custodians for his failure to receive an appropriate education.

In so doing, we note that these so-called "educational malpractice" claims have been unanimously rejected by those few jurisdictions considering the topic. See D.S.W. v. Fairbanks No. Star Bor. Sch. Dist., 628 P.2d 554 (Alaska 1981); Smith v. Alameda Cty. Soc. Serv. Agency, 90 Cal.App.3d 929, 153 Cal.Rptr. 712 (1979); Peter W. v. San Francisco Unified School District, 60 Cal.App.3d 814, 131 Cal.Rptr. 854 (1976); Hoffman v. Board of Ed. of City of N.Y., 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317 (1979); Donohue v. Copiague Union Free School Dist., 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352 (1979). These decisions generally hold that a cause of action seeking damages for acts of negligence in the educational process is precluded by considerations of public policy, among them being the absence of a workable rule of care against which the defendant's conduct may be measured, the inherent uncertainty in determining the cause and nature of any damages, and the extreme burden which would be imposed on the already strained resources of the public school system to say nothing of those of the judiciary.

It is clear from a review of case law on this issue that courts have uniformly refused, based on public policy considerations, to enter the classroom to determine claims based upon what has generally been characterized as "educational malpractice." Paladino v. Adelphi University, 89 A.D.2d 85, 454 N.Y.S.2d 868 (1982); Hunter v. Board of Ed. of Montgomery County, 292 Md. 481, 439 A.2d 582 (1982); D.S.W. v. Fairbanks No. Star Bor. Sch. Dist., 628 P.2d 554 (Alaska 1981); Helm v. Professional Children's School, 103 Misc.2d 1053, 431 N.Y.S.2d 246 (1980); Loughran v. Flanders, 470 F. Supp. 110 (D.Conn. 1979); Smith v. Alameda Cty. Soc. Serv. Agency, 90 Cal.App.3d 929, 153 Cal.Rptr. 712 (1979); Hoffman v. Board of Ed. of City of N.Y., 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317 (1979); Donohue v. Copiague Union Free School Dist., 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352 (1979); Peter W. v. San Francisco Unified School Dist., 60 Cal.App.3d 814, 131 Cal.Rptr. 854 (1976). The federal court in Loughran stated that a claim for damages similar to that asserted by the plaintiffs in the present case "necessarily hinges upon questions of methodology and educational priorities, issues not appropriate for resolution by this court."

"In educational malpractice cases, a plaintiff sues his or her academic institution for tortiously failing to provide adequate educational services; see, e.g., Peter W. v. San Francisco Unified School District, 60 Cal.App.3d 814, 131 Cal.Rptr. 854 (1976); or for tortiously failing to diagnose educational impediments. See, e.g., Hoffman v. Board of Education, 49 N.Y.2d 121, 400 N.E.2d 317, 424 N.Y.S.2d 376 (1979); see generally, D. Morgan, `Liability for Medical Education,' 8 J. Legal Med. 305, 307-15 (1987)." (Emphasis in original.)

The courts have uniformly refused, based on public policy considerations, to enter the classroom to determine claims based upon educational malpractice (see Hoffman v. Board of Educ., 49 N.Y.2d 121; Donohue v. Copiague Union Free School Dist., 47 N.Y.2d 440; Loughran v. Flanders, 470 F. Supp. 110, 115; D.S.W. v Fairbanks North Star Borough School Dist., 628 P.2d 554, 556 [Alaska]; Hunter v. Board of Educ., 292 Md. 481, ___, 439 A.2d 582, 585-586; Peter W. v. San Francisco Unified School Dist., 60 Cal.App.3d 814, 824-825; Helm v. Professional Children's School, 103 Misc.2d 1053).

claims for educational malpractice: Alabama, Alaska, California, Florida, Idaho, Iowa, Kentucky, Maryland, New Jersey, New York, and Wisconsin. See, e.g., Blane v. Alabama Commercial College, Inc., 585 So.2d 866 (Ala. 1991); D.S.W. v. Fairbanks North Star Borough School Dist., 628 P.2d 554 (Alaska 1981); Peter W. v. San Francisco Unified School Dist., 60 Cal.App.3d 814, 131 Cal.Rptr. 854 (1976); Smith v. Alameda County Social Servs. Agency, 90 Cal.App.3d 929, 153 Cal.Rptr. 712 (1979); Tubell v. Dade County Public Schools, 419 So.2d 388 (Fla.Dist.Ct.App. 1982); Wickstrom v. North Idaho College, 111 Idaho 450, 725 P.2d 155 (1986); Moore v. Vanderloo, 386 N.W.2d 108 (Iowa 1986); Rich v. Kentucky Country Day, Inc., 793 S.W.2d 832 (Ky.Ct.App. 1990); Hunter v. Board of Educ., 439 A.2d 582 (Md. 1982); Swidryk v. St. Michael's Medical Center, 201 N.J.Super. 601, 493 A.2d 641 (Law Div. 1985); Donohue v. Copiague Union Free School Dist., 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352 (1979); Hoffman v. Board of Educ., 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317 (1979); Helm v. Professional Children's School, 103 Misc.2d 1053, 431 N.Y.S.2d 246 (App. Term 1980); Wilson v. Continental Ins. Cos., 87 Wis.2d 310, 274 N.W.2d 679 (1979). See also Joel E. Smith, Annotation, Tort Liability of Public Schools and Institutions of Higher Learning for Educational Malpractice, 1 A.L.R.4th 1133 (1980).

See also Armstrong v. Data Processing Inst., Inc., Fla.Dist.Ct.App., 509 So.2d 1298, 1299 (1987) ("regardless of the nomenclature, the gravamen of [plaintiffs' claim] is a cause of action for educational malpractice"); Doe v. Board of Educ., Md.Ct.App., 295 Md. 67, 453 A.2d 814, 815 (1982) ("Although the appellants' argument is replete with allegations of actionable negligence it is clear that the gravamen of their suit is that of the coveted tort of `educational malpractice.'"); Hoffman v. Board of Educ., N.Y.Ct.App., 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317, 319 (1979) ("[I]t should be stated that although plaintiff's complaint does not expressly so state, his cause of action sounds in `educational malpractice.'"). A claim for educational malpractice is generally brought directly by a student against an educational institution.

The decisions concerning the allocation of educational services to children implicate the same or similar public concerns and policies as are implicated in the allocation of services for children by HRS. For example, in Hoffman v. Board of Education, 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317 (1979), the plaintiff was erroneously diagnosed as mentally retarded and was placed for virtually his entire school career in classes for the mentally retarded. In denying the student's claim for damages, the court reasoned that a tort action was not a proper tool to supervise decisions of the school authorities.

Id. at 488. A case strikingly similar to the one at bar is Hoffman v. Board of Educ., 49 N.Y.2d 121, 400 N.E.2d 317, 424 N.Y.S.2d 376 (1979), which was reviewed in Hunter. (The Does would prefer that we follow the intermediate appellate court's opinion in Hoffman which the New York Court of Appeals reversed.)