The 6^th 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 28^th.

Here in Texas we live in the 5^th Circuit, and this decision by the 6^th 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 6^th 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.

When I was in law school, our torts professor told us of an opinion that opened by describing the plaintiff as “The widow Jones.”  You know right away, she’s going to win.  Otherwise, she would be “Mrs. Jones.”

Same thing in a recent Supreme Court case.  The opening line of Justice Alito’s opinion introduces us to Darius Clark:

Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town.

You just know that Mr. Clark is going down.

The Court held that a three-year old’s statements to his preschool teachers about the abuse he endured from Mr. Clark was admissible in the criminal prosecution of the man.   The case is about the 6^th Amendment and its Confrontation Clause. That’s the provision that guarantees that a person prosecuted for a crime “shall enjoy the right….to be confronted with the witnesses against him.”

In this case, the little boy did not testify, but the court admitted into evidence the statements that he made to his preschool teachers.  With that damning evidence in the record, the jury sentenced Mr. Clark to 28 years in prison.  Mr. Clark took the matter all the way to the Supreme Court, arguing that the judge never should have allowed the little boy’s testimony to be admitted into evidence.  The Supreme Court ruled that the evidence was admissible.

Mr. Clark’s argument was based on the state law that required teachers to report suspected child abuse. The argument was that this law effectively transformed preschool teachers into agents of the police.  Thus when the teachers asked the little boy about what had happened, and how he got the bruises and black eye, they were supposedly acting as agents of the police, gathering information for the district attorney.  This would make the little guy’s statements “testimonial” and thus barred from admission at the trial.

You will probably be pleased to hear that the Supreme Court easily rejected that argument, describing it as “off-base” and “inapt.”  Key Quote:

The teachers’ pressing concern was to protect L.P. [the three-year old] and remove him from harms’ way.   Like all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse. 

Teachers are not acting on behalf of the police when they question a student to determine if abuse has occurred. They are not criminal investigators hot on the trail of a suspect.  They are educators, carrying out their legal, moral and ethical duty to guard against child abuse.

It’s good to see the Supreme Court recognize that.  The case is Ohio v. Clark, decided by the Supreme Court on June 18, 2015.

DAWG BONE: THOSE MANDATORY REPORTING LAWS DO NOT TRANSFORM TEACHERS INTO COPS.