Last week, the United States Supreme Court overturned a controversial decision by the Ohio Supreme Court holding that statements given by a preschool student to his teacher were tantamount to statements to police, and so could not be used against the alleged abuser of the child in a later criminal prosecution in which the child did not testify. The National School Boards Association (NSBA) filed an amicus curiae brief urging the Supreme Court to overturn the Ohio court’s ruling, warning of the myriad unintended consequences for educators and other school employees, and expressing concern for the safety of students if teachers were limited in their right to immediately respond to emergency situations involving suspected child abuse.
In Ohio v. Clark, a three year old boy, “L.P.,” arrived at preschool one day with eyes that appeared bloodshot. Upon closer examination, a teacher noticed that L.P. had whip marks across his face. The teacher asked simple questions, including “What happened?” and “Who did this?” L.P. told his teacher that his mother’s boyfriend, Darius Clark, had caused the injuries. School officials found extensive whip marks along L.P.’s back and torso, and called a child abuse hotline (similar to Illinois’s Department of Children and Family Services (DCFS) child abuse hotline) as required by law. Later examinations of L.P. and his sister by physicians found black eyes, extensive bruising, burn marks, and other injuries.
Clark was criminally charged and convicted in part based on the testimony of L.P’s teacher about what L.P. had told her. Under Ohio law, L.P. was too young to testify. Clark appealed the conviction, arguing that allowing L.P.’s teacher to describe L.P.’s statement when Clark was not able to cross-examine L.P. violated Clark’s right under the Sixth Amendment of the Constitution to confront the witnesses against him.
Notably, the Sixth Amendment only requires cross-examination for “testimonial” statements of non-testifying witnesses, which means that the primary purpose of the statement is to establish or prove facts potentially relevant to a criminal prosecution. Under that standard, the Supreme Court has found that a witness statement taken by a police officer at a police station is testimonial, but statements by a victim of domestic abuse to a 911 operator are not. In the case of 911 calls, the primary purpose is to provide assistance in an ongoing emergency, not to collect information for prosecution. The Clark case thus turned on whether the Court would consider L.P.’s teacher to have been acting more like a law enforcement agent collecting information for future prosecution, or a 911 operator collecting information in response to an emergency.
The NSBA’s friend-of-the-court brief argued that teachers should not be found to be collecting information for the prosecution in the context of a potentially abused child. First, teachers are mandated reporters under state laws across the country, and must report suspected child abuse to local authorities like Illinois’ DCFS. The vast majority of those reports are investigated by those authorities, not law enforcement, and very few are criminally prosecuted. Accordingly, when teachers, administrators, and other school personnel carry out their duties as mandatory reporters of child abuse, they do so to protect children. This is particular important in the case of crimes involving abuse by parents or guardians, which often create emergencies requiring immediate intervention to protect the child under his or her abuser’s care. Implicit in the argument is that school employees would be less likely to adequately investigate matters to protect children if they were concerned that they would be impeding a later prosecution or otherwise violating the law in doing so.
The NSBA also pointed out that treating teachers as “investigators” or “deputized law enforcement” agents could raise a host of unintended consequences. For example, would teachers be required to provide Miranda warnings prior to questioning students, or secure a warrant before searching a student’s property on school premises?
The Supreme Court agreed with the NSBA, and held that L.P.’s statements to his teacher were not “testimonial.” Therefore, his teacher’s testimony did not violate Clark’s Sixth Amendment rights. In addition to the arguments raised by the NSBA, summarized above, the Court was swayed that the informality of the conversation, which occurred in a lunchroom and a classroom, suggested the questioning was spontaneous and aimed at protecting L.P. in an emergency, not collecting information to use to prosecute Clark. Therefore, the Court reversed the Ohio Supreme Court.
The decision in Clark avoids the difficult questions that would have been raised for school districts if employees’ questions to students could impede later prosecution and conviction of child abusers. School districts and educators should continue to investigate suspected child abuse immediately when there is any concern, and report reasonable suspicions immediately to the required authorities, such as DCFS and law enforcement.