School officials are required to report suspected child abuse. The law recognizes that child abuse reports are based on a “suspicion” rather than a certainty. Thus the person who makes the report may be wrong. They may be mistaken about the facts, or misinterpreting them. The law protects the person who makes the report with immunity. However, none of that prevents a parent from filing suit, alleging that the report was a bad faith act of retaliation.
That’s what happened in Oswego Community Unit School District, just outside of Chicago. The parents alleged that one day after a contentious two-day IEP Team meeting a social worker conducted an invasive search of the five-year old child, which revealed a bruise. District officials then reported suspected child abuse.
The parents alleged that this was all an act of retaliation—an effort to shut up parents who were advocating for their child in a way that school officials did not like. The parents alleged two theories of liability. The court rejected one of them, but let the other theory proceed. The rejected theory was based on the assertion that the district had a “widespread pattern or practice” of retaliating against parents who advocate for their children. In support of that assertion, the parent noted one other court case alleging similar behavior in the district. The court held that this was insufficient to show a “widespread pattern or practice.” Key Quote:
A practice is not widespread if it took place two, three, or four other times.
However, the other theory was based exclusively on what happened with their child. The parents alleged that the district retaliated in a way that amounted to disability-based discrimination in violation of both the ADA and Section 504. The court allowed the case to proceed since the parents had at least alleged the three key facts they would have to prove: 1) that they engaged in “protected activity” (advocating strongly for their child); 2) the school took “adverse action” (the “invasive” search and subsequent child abuse report); and 3) these two events were causally connected. Given the timing, with the search and child abuse report coming right after the “contentious” meeting, the court held that it was plausible that the adverse action was taken in response to the protected activity.
Don’t let stories like this keep you from reporting suspected child abuse. Just be sure that you are basing your report on facts, and documenting the basis for your suspicion. Educators are only human, and will have personal likes and dislikes among the parents they work with. Sometimes you have to report suspected abuse involving a parent you like. Sometimes you have to report suspected abuse involving a parent you don’t like. Treat them the same.
The court hinted that this case might not survive a Motion for Summary Judgment, when there is actual evidence to consider. But at this stage it was only about what the parent alleged, and those allegations were sufficient to keep the case going. It’s Hamilton v. Oswego Community Unit School District 308, decided by the federal court for the Northern District of Illinois on February 26, 2021. We found it on Special Ed Connection at 78 IDELR 97.
DAWG BONE: OUR CHILD ABUSE LAWS ARE ONE OF THE FEW INSTANCES WHERE YOU CAN HAVE CRIMINAL LIABILITY FOR WHAT YOU FAILED TO DO.
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Tomorrow: is the word “proffer” part of your everyday vocabulary?