All education professionals know that they are legally obligated to
report suspected child abuse or neglect to child welfare authorities.
Although we encourage schools to report abuse whenever they have
reasonable cause to believe it has or will occur, you should make sure that
you are not making a report in retaliation for parents’ advocacy on behalf of
their disabled children. Two recent cases show the difference between
permissible and retaliatory reporting.
In Wenk v. O'Reilly, 115 LRP 16032 (6th
Cir. 2015), a federal court held that a
school administrator could be sued after
she reported the father for suspected
child abuse. After a hostile IEP meeting,
the special education director sent an e-
mail to other educational members of the
student’s team saying that she hoped
“we have laid groundwork for future
meetings that will help eliminate his long
time assumption that"what he wants; he
gets," and speculating that the father
was “purposely removing his email
access as a way to force us to spoon feed
[him] information". After the meetings,
the father called the state department of
education to discuss his concerns about
his daughter’s IEP. The special education director then called state child
welfare officials and reported that the father was "unkempt" that staff
members had described the father as "creepy" and that he made their "skin
crawl" they were "fearful of meeting him", and that from her observations,
he was "verbally aggressive, bullies other staff and becomes upset when
things don't go his way". The special education director told the state
officials that "as aggressive as dad is at school and with staff, [she] can't
imagine him acting any different at home".
The father filed suit against the special education director claiming that
she called the state to retaliate against him for his advocacy on behalf of his
child. The special education director filed a motion to dismiss. The Court
held that the lawsuit could proceed. The judges explained that a report of
child abuse qualifies as retaliation under the First Amendment if the parents'
advocacy plays any role in the decision to report. The court pointed out that
the administrator's critical comments about the father in emails that she
sent to other district employees after IEP meetings suggested that she
"harbored animus" toward him. "Although [the administrator's] report did
contain some true allegations, the facts taken in the light most favorable to
[the parents] suggest that she embellished or entirely fabricated other
allegations, including those that most clearly suggested sexual abuse" the
court concluded.
In contrast, Smith v. Harrington, 65 IDELR 95 (N.D. Cal. 2015)
provides an example of a school that was found not to have retaliated
against a special education parent after he filed multiple complaints about
disability harassment.
According to the district's records, the parent angrily reacted to a
classmate's mother taking candid photos, "burst" into district offices in an
aggressive manner, and interrupted another child's IEP meeting in the
school library to yell at the principal.
The reports by the principal and the school psychologist also showed
that they had a good basis for their concern about the student. When the
father would engage in angry and paranoid behavior, it would distress the
student, causing her to begin cowering on the floor to avoid her father.
Educators walk a fine line in reporting suspected abuse or neglect by a
special education parent. Recent state and national cases have caused some
law enforcement agencies to urge reporting upon any suspicion, while
lawsuits like these demonstrate the other side of this difficult area. If you
suspect abuse and do not report it, you have violated NEB. REV. STAT. § 28-
711. However, your motivations for filing the report matter: if you are
motivated even in part by a desire to get back at a parent who is making
your life difficult, you could be found to have violated the parent’s civil
rights.
There is lawsuit pending in Nebraska regarding teachers’ obligations
under the reporting statutes. The North Platte Education Association filed
suit against North Platte Public Schools regarding the district’s practices and
procedures for contacting administrators and parents before making a report
to HHS or law enforcement. While the lawsuit is still in the beginning
stages, the underlying issues make it one worth monitoring over the next
school year. Of particular interest to us is the involvement of the NSEA and
its legal counsel. While this is a unique case with other issues at the
forefront, it highlights the importance of the reporting requirements for
everyone involved in the educational process.
With any special education issue, especially those involving reporting,
it is always better to find out the answer before you take action. Feel free to
contact Karen, Steve or Bobby or your school district's attorney to be sure
that your district is complying with IDEA and Rule 51 of the Nebraska
Department of Education.