School Officials Have Immunity If They Report Child Abuse
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Under New York Social Service Law Sec. 413 as well as the law in several other states, school officials are mandated reporters of child abuse. J.H. v. County of Nassau, ___Misc. 3d___(Nassau Co. Aug. 5, 2008), Download JH.doc concerns the situation what if the school reporter is wrong. Can they be sued for defamation or in tort? The J.H. case held that they could not, reasoning:
In the instant matter, the school was required to report the alleged abuse of maltreatment of M.H. to CPS. While CPS eventually found the reports to be “unfounded”, the school was mandated to report the matter to CPS. (Rine v. Chase, 309 AD2d 796). As already provided, the school psychologist testified that M.H. told her that he was afraid to go home because he had prior physical altercations with his dad. Notably, while M.H. avers he never stated to anyone that he had prior physical altercations with his dad, M.H. did not address whether he specifically told the school psychologist that his dad threw a baseball at his head, missed and the ball hit the wall. The school psychologist was under a statutory duty to report suspected child abuse, and under the circumstances at bar, acted on reasonable suspicion. (Miller v. Beck, supra.)
The plaintiffs, in opposition, have not come forward with proof indicating that the school psychologist, the curriculum associate for Special Education, the principal and/or the assistant principal were acting with malice, ill-will and revenge, when the school contacted CPS. The plaintiffs surmise that the school acted in revenge, and/or out of fear of plaintiff reporting the school to the superintendent, as a result of the difficulty that plaintiff was having with the school on the language exempt issue. However, the plaintiffs have not produced evidence or facts, other then mere conclusions or speculation, from which a jury could infer malice. (Shapiro v. Health Ins. Plan of Greater New York, 7 NY2d 56). Suspicion, surmise or accusations will not suffice. (Escalera v. Favaro, 298 AD2d 552). “The existence of earlier disputes between the parties is not evidence of malice”. (Shapiro v. Health Ins. Plan of Greater New York, supra.) As the plaintiffs have not presented factual allegations of malice or ill will on the part of the school district or school psychologist, plaintiff’s complaint requires dismissal. (Miller v. Beck, supra.)
In light of the foregoing, the defendants’ motion is granted and therefore, plaintiffs’ action is dismissed.
Mitchell H. Rubinstein
Harvey Randall comments: Not only do school personnel enjoy a qualified immunity in connection with reporting suspected child abuse in good faith, their failure to do so may result in disciplinary action. In Hoey v PERB, App. Div., 284 A.D.2d 633, teacher aides employed by the Cayuga-Onondaga Board of Cooperative Educational Services were given specific instructions to report any concerns about classroom matters -- they were to immediately bring them to the attention of the supervisor of special education or the school principal. According to the decision, the aides becoming aware that a teacher had engaged in bizarre and inappropriate behavior of a sexual nature with one of the students. About a month later they reported the teacher's suspected conduct to one of their union representatives rather than BOCES's management. Two days later the union representative told BOCES of the aides' report. Cheryle Hoey and a number of other aides were terminated after being found guilty of insubordination for failing to follow a supervisor's directive and jeopardizing the safety of a child under their supervision by failing to timely report suspected child abuse.
