The Sixth Circuit recently decided the case, Wenk v. O’Reilly, where the Court found that Dr. Nancy Schott, the Grandview Heights City School District’s Director of Pupil Services, violated the parents’ First Amendment rights by retaliating against them with a report to Children’s Services, when they advocated, on their daughter’s behalf, for additional special education services.
At the time of the events that led the parents to file their legal claim under 42 U.S.C. §1983, the student was 17 years old and identified with a cognitive disability as well as severe communication and social skill deficits. Beginning in 2009, two of the student’s teachers allegedly became concerned about potential sexual abuse of the student by her father based upon the student’s statements at school. One of the teachers testified that a former high school principal, the school psychologist and the former Pupil Services Director, “all … told us to just document this information and until we had solid evidence of abuse, we should not contact children’s services.”
Dr. Schott became the Director of Pupil Services for the District in 2011. She met twice that Fall with the parents who were asking for more opportunities for social interactions at school and other changes to the student’s Individualized Education Program (“IEP”). Following the latter of those meetings, Dr. Schott participated in two email exchanges that the Court reported in its opinion:
On October 20, 2011, Schott emailed the staff present at the October 19 meeting to report that “[w]hile it was an emotion [sic] charged event, I am hopeful that we have laid groundwork for future meetings that will help eliminate his long time assumption that ‘what he wants; he gets.’ “
On October 24, 2011, Schott responded to an email from [a teacher], which reported that Wenk had asked to be taken off an email notification system for parents, that Schott “wonder[ed] if he [is] purposely removing his email access as a way to force us to spoon feed [him] information.”
At some point, the two teachers came to Dr. Schott with information they had compiled over the past two years. They also allegedly reported that the student recently commented in class that she was, “not going to have sex anymore because it hurt.” Both teachers later testified that neither ever reported this specific information to Dr. Schott. Dr. Schott, however, claimed this was the “trigger” for a report to Franklin County Children Services (“FCCS”). She consulted with the District’s attorney and the Superintendent before calling. The attorney advised her to make the call. In her report to FCCS, Dr. Schott recounted information reported by the teachers and the student’s alleged statement about not wanting to have sex. Dr. Schott indicated that all of the information that she reported to FCCS came from the two teachers. It was, however, unclear when she learned of the information she reported to FCCS. She testified that she was first informed of the allegations about the father in a meeting with teachers two days before making the call and also that she learned of much of the information three weeks earlier. There was conflicting testimony by the teachers related to what information was actually shared with Dr. Schott. In her report to FCCS,
Dr. Schott also conveyed information unrelated to the abuse and based upon her personal knowledge, that the father was unkempt, “creepy” and had drastic changes in mood. She also reported the father to be verbally aggressive – bullying staff and becoming upset when things did not go “his way.” The FCCS and a related criminal investigation by Grandview Heights Police both resulted in findings that the allegations were unsubstantiated.
The Court found that there was ample evidence Dr. Schott was motivated, at least in part, by a retaliatory motive to make the child abuse report about the father. Dr. Schott called FCCS within three weeks of a contact from the Ohio Department of Education, reporting a complaint from parents and offering assistance, which Dr. Schott declined. In addition, Dr. Schott’s emails after her meetings with parents suggested she harbored animus against the father based on his advocacy for the student’s educational program. The Court also found that, “[a]lthough Schott’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 district court noted numerous inconsistences between what [the two teachers] testified they told Schott – Schott’s only source of information for the allegations – and what she reported to FCCS, namely that “neither Hayes nor Sidon ever told Schott that [the student] talked about how she would not have sex again because it hurt …” The Court further commented on the irrelevant personal statements about the father as further support for an improper motivation for her report to FCCS.
Dr. Schott attempted to convince the Court that, as a “mandatory reporter” under Ohio laws related to the reporting of child abuse and neglect, she was required to make the report to FCCS and that she was not motivated to retaliate against parents based upon their First Amendment rights. She pointed to the fact that Ohio imposes no good faith requirement on mandatory reporters and provides absolute immunity from civil and criminal liability for those reports.
The Court rejected her argument based, in part, on her delay in making the report (3 weeks after learning of the allegations) when the applicable statute requires an immediate report. It further noted her embellishment of the facts and an entirely false allegation as well as the Court’s conclusion the District and its former administrators did not see the bulk of the allegations as having been sufficient to trigger a report. Finally, the Court held that immunity under §1983 is governed by federal law and that state law cannot provide immunity from suit for a federal constitutional violation.
Despite the final outcome in this case, the Court provided guidance to mandatory reporters who are faced with statutory reporting obligations and are balancing the rights of persons exercising federally protected rights. Basically, mandatory reporters need to be able to demonstrate they would have made the report of child abuse even in the absence of the protected conduct – something Dr. Schott was unable to do. Reporters need to show they reported non-fabricated allegations, in good faith, that they believed establish reasonable cause to suspect child abuse and that they did so immediately.