January/February 2016

Ask the Staff: Current cases to define qualified immunity

Shanell Bowden, who served as a law clerk for IASB’s office of General Counsel this past autumn, answers this edition of Ask the Staff. She is a graduate of The Ohio State University’s Moritz College of Law and is originally from the Chicago area.

Should I be worried about the recent cases related to qualified immunity when reporting suspected abuse and neglect of students?

Answer: Not necessarily. Cases regarding qualified immunity and mandatory abuse and neglect reporting have been appearing more frequently in courts. The decisions in these cases can have a major impact on qualified immunity.

Qualified immunity protects state or federal actors from lawsuits claiming that they violated a clearly established statutory or constitutional right that a reasonable person would have known about. Recent cases pertaining to the issue of qualified immunity for mandatory abuse and neglect reporting include Ohio v. Clark and Wenk v. O’Reilly. Many school officials are concerned that these decisions could have the effect of discouraging school officials from exercising their mandatory reporting requirements, which would ultimately have a negative impact on students.

In Ohio v. Clark, 135 S.Ct. 2173 (2015), the lower courts found that the teachers acted as agents of the state because of mandatory reporting laws. However, the U.S. Supreme Court rejected this idea and ruled that the school officials should not be considered law enforcement agents. This decision was a victory because if school officials were reclassified as law enforcement officials across the nation, then current liability standards around mandatory reporting requirements may have needed examination here in Illinois. The current role for school officials remains to prevent additional harm to students, and this role continues to be protected by qualified immunity.

In Wenk v. O’Reilly, 783 F.3d 585 (2015), the lower courts ruled that a school official was not entitled to qualified immunity for reporting a parent’s alleged child abuse to children’s services. The parent claimed that school officials reported him in retaliation for his exercise of his First Amendment rights to advocate for his child’s needs at school. This case concerns the school official community because it demonstrates that mandatory reporting laws may not protect them from First Amendment retaliation claims. It creates the possibility that reporting child abuse may be a constitutional violation if the parent’s advocacy or any other exercise of the parent’s First Amendment rights played a part in the decision to report.

While this case does not apply in Illinois (it originates in the Sixth Circuit Court of Appeals, which includes Kentucky, Michigan, Ohio, and Tennessee), a petition for certiorari (a document asking the U.S. Supreme Court to review the decision) has been filed in Wenk v. O’Reilly. If the petition is granted, the decision would affect Illinois. The National School Boards Association filed an amicus brief (friend of the court) to offer information about the impact of this decision upon school officials. As of the date of publication, there was no decision whether the U.S. Supreme Court would grant the petition. It is wise for schools to stay up-to-date with this case.

As with any legal topic, it is important that school officials consult their board attorneys and stay updated and trained on any changes regarding qualified immunity and mandatory reporting of abuse and neglect to students.