The United States Court of Appeals for the Sixth Circuit issued a decision last April that has caused very considerable concern in the school community. As you may be aware, the Sixth Circuit has jurisdiction over cases arising within the State of Michigan and several surrounding states.
In Schott v. Wenk, a case involving a school district in the Columbus, Ohio area, the Court concluded that a mandatory reporter who has reasonable cause to suspect child abuse, may, nevertheless, be held liable for the reporting. The Court held that a person who is the subject of such a report may bring a legal proceeding alleging that the report was filed in retaliation for the exercise of a protected right. The National School Boards Association, along with other national education groups, have filed what are referred to as “amicus curiae briefs”, asking the United States Supreme Court to review the decision of the Sixth Circuit.
There is a legal adage that “bad facts make bad law”. The Schott v. Wenk case appears to well exemplify this principle. In Schott, the high school aged student was “cognitively disabled” and had “major communication and social skills deficits”. While attending a co-taught social skills class, the student commented that her father (who was a nurse) “puts her tampons in her” and “puts cream on her vagina”. These comments, and the mention of other possibly inappropriate actions on the part of the father, were recorded by one of the teachers but not reported to the child protection agency at the time.
More than a year after these events, Defendant Nancy Schott was hired as the Director of Pupil Services for the school district. Ms. Schott soon had reason to meet with the student’s father on several occasions. The father was not in agreement with certain actions/inactions on the part of the school district and contacted the Ohio Department of Education to discuss his concerns. These concerns were, in turn, shared with Ms. Schott.
At about the same time as the contact was made with the Ohio Department of Education, the two teachers who had knowledge of the student’s comments in the social skills class brought the information to the attention of Ms. Schott. Sometime later (the exact timing is unclear), Ms. Schott called the child protection agency office to report possible child abuse. The Court’s comments indicate that Ms. Schott somewhat embellished the information she had received from the teachers in making this delayed report. Nevertheless, it would appear that even the undisputed facts would have supported, if not required, the filing of the report of possible child abuse.
In its decision in Schott, the Sixth Circuit Court of Appeals has added a layer of consideration to the mandatory reporting of child abuse. In addition to determining whether there is reasonable cause to suspect abuse, a reporter must now consider whether he/she harbors any feelings about the person that may play a part in the decision to make a report.
The holding of the Sixth Circuit will provide a mandatory reporter with what the National School Boards Association aptly referred to in its brief as a “Hobson’s choice”. The person must either follow the legal obligation to immediately report a reasonable suspicion of child abuse, or refrain from reporting if the mandatory reporter is concerned that his/her feelings about the individual may have factored into the decision to report.
It must be emphasized that the immediate issue here does not concern a report that is filed in bad faith. If a person files a report without having reasonable cause to suspect child abuse or neglect, the false reporting is actionable under existing law. What the Schott case involves, however, is a dual consideration. Under the holding of the Court, a mandatory reporter who has reasonable cause to suspect child abuse may, in a limited circumstance, be sued by the person against whom the report is filed. The person bringing suit would have the burden of proving that the report would not have been filed but for the exercise of the protected right, which led to the alleged retaliation.
We will continue to track the Schott case and report once it is determined whether the Supreme Court will hear the case. In the interim, we would advise that if a mandatory reporter has reasonable cause to suspect child abuse or neglect, a report must be filed.