The 6th Circuit Court of Appeals has held that the making of a child abuse report is an “adverse action.” According to the court, this is true whether the report is true or false. Thus if the report is made in retaliation for the exercise of protected rights, it is an act of illegal retaliation. The critical question then becomes motivation. Key Quote:
Under this rule, then, a report of child abuse—even if it is not materially false and there is evidence in the record that could support a “reasonable basis” to suspect child abuse—is actionable if the reporter made the report “at least in part” for retaliatory motives.
This is a decision sure to cause some anxiety among educators who are legally required to report child abuse. The court took that into account, but still held that even a truthful report of child abuse is “actionable” if improperly motivated.
How would the court conclude that your report is improperly motivated? In this case, the court was required to assume the truth of the allegations in the complaint. That’s because the Director of Pupil Services/defendant in the case had filed a Motion to Dismiss based on an assertion of “qualified immunity.” To assess a MTD, the court assumes that the allegations in the complaint will turn out to be true. The court also is required to review the evidence in the light “most favorable” to the party opposing the Motion. The question then becomes: is there any possibility that the plaintiff can prevail in this case? Is there a legitimate “cause of action” here?
Here, the court said that there was a case. The complaint alleged that the report of child abuse was embellished and in some parts entirely fabricated. Furthermore, the court cited a few emails the defendant had sent that “suggest that she harbored animus against [the plaintiff] as a result of his advocacy about [the child’s educational plan.” The court held that the complaint should not be dismissed. Moreover, since the law on this is “clearly established” the director of pupil services who reported the alleged abuse was not entitled to qualified immunity.
This case may go to the Supreme Court. NSBA (National School Boards Association) has filed a brief asking the Court to take up the case and reverse this decision. The Circuit Court’s decision is the first high level court to identify a non-malicious report of child abuse as an “adverse action,” thus opening the door to retaliation lawsuits. The Supreme Court will consider taking up this case on September 28th.
Here in Texas we live in the 5th Circuit, and this decision by the 6th Circuit does not create a binding precedent for us. Nevertheless, the case should serve as a caution.
You have to report suspected child abuse. You have to do it if the parent is your best friend. You have to do it if the parent is a constant thorn in your side. But let this case be a caution: be sure that your report sticks to the facts. Do not embellish or fabricate those facts. Relay the facts that caused you to make the report honestly, completely, and promptly.
The case is Wenk v. O’Reilly, decided by the 6th Circuit on April 15, 2015. We found it at 65 IDELR 121.
DAWG BONE: YOU HAVE A LEGAL PROBLEM IF YOU DON’T REPORT CHILD ABUSE. SOMETIMES YOU HAVE A LEGAL PROBLEM WHEN YOU DO.