This Article considers whether denial of a cause of action for educational malpractice is consistent with recognized tort principles and the general policy considerations underlying those principles. After briefly summarizing three lawsuits in which the cause of action has been advocated and rejected, it explores the collision between theory and policy that permeates the decisions. The Article suggests that refusal to recognize the cause of action is incompatible with accepted tort principles, and that a cogent theory supporting nonrecognition cannot be articulated within the confines of the accepted principles and the general policies upon which those principles are based. If special policies justifying nonrecognition exist, then that result should be legislatively prescribed, rather than judicially pronounced in a manner that is antithetical to the recognized, traditional tort principles.
Robert H. II Jerry, Recovery in Tort for Educational Malpractice: Problems of Theory and Policy, 29 U. Kan. L. Rev. 195, 212 (1981)