Daily Archives: January 21, 2016

U.S. Court of Appeals: Reporting Child Abuse Can Trigger Retaliation Lawsuit

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Author: David Girard, Attorney at Law 

FACTS: A school district’s Director of Pupil Services filed a child abuse report against the father of a cognitively disabled, teenage girl.  The father claimed the report was filed by the Director in retaliation for his advocacy of a change in his daughter’s IEP.  The father then sued the Director, personally, claiming damages because such retaliation violated his first amendment rights.  The Director claimed qualified immunity as a government official claiming that her report of child abuse did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. (Wenk v. O’Reilly, 783 F. 3d. 585 (6th Circuit Court of Appeals, April 15, 2015), cert. denied (U.S. Supreme Court, January 11, 2016).)

ISSUE: Is a school administrator entitled to immunity from lawsuits arising out of the action of the administrator in filing a child abuse report?

HOLDING: The Sixth Circuit Court of Appeals held that the Director could be sued and was not entitled to qualified immunity.  The Court based its holding on the fact that the Director hadn’t demonstrated that no reasonable juror could fail to find that she (Director) would have filed the child abuse report absent the father’s free speech rights.

A report of child abuse – even if not materially false – is actionable if the reporter actually made the report “at least in part” for retaliatory motives.

DISCUSSION: Here, the Director argued that a reasonable governmental official would not recognize that by following a mandatory obligation to report child abuse she is violating federal law.  Nevertheless, citing a 2000, 9th Circuit case, (Wallis v. Spencer, 202 F. 3d, 1126), the Court pointed out that a parent’s right to be free from retaliation for exercising his First Amendment rights has been clearly established.  As such, the Director could not claim qualified immunity.  Moreover, the Court pointed out that state laws cannot provide immunity from suit for federal civil right violations.

PRACTICE TIP: Prior to filing a suspected child abuse report:

  1. Reasonably ascertain that the facts upon which you are relying are true, reliable, relevant and accurate.
  1. Do not embellish upon any facts.
  1. Report promptly when there is a duty to report.
  1. Avoid taking any reporting action which can reasonably be found to arise out of your animosity toward a parent.