When Can Reporting Suspected Child Abuse Create Legal Liability for the School?

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


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.