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Published in Print: March 18, 2015, as Supreme Court Mulls Duty of Teachers in Abuse Reporting

Supreme Court Mulls Teachers' Duty in Reporting Abuse

Focus on proper role at core of Ohio case

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The U.S. Supreme Court waded with trepidation early this month into the legal ramifications of educators' interactions with students about possible abuse at home.

"Ohio's teachers … are horrified to learn that the Supreme Court of Ohio [views] them no [differently] than cops when they're talking to the children in their classrooms," Matthew E. Meyer, an assistant prosecuting attorney in Cleveland, told the justices in oral arguments March 2.

The state is appealing a ruling by Ohio's highest court that the state's mandatory duty for teachers to report child abuse effectively turns them into agents of law enforcement in some situations.

Jeffrey L. Fisher, a Stanford University law professor who is representing a man convicted of child-abuse charges based largely on a 3-year-old victim's statements to two of his day-care teachers, said he was not seeking to bar prosecutors from ever using the testimony of young victims of abuse.

"All we are asking for is that a state not to be allowed to have it both ways, introducing such evidence while at the same time prohibiting the defense from any form of confrontation whatsoever," Mr. Fisher said during the arguments in Ohio v. Clark (Case No. 13-1352).

The state's use of the child's out-of-court statements violated the Sixth Amendment right of the defendant, Darius Clark, to confront the witnesses against him, Mr. Fisher argued.

Education Groups Concerned

The 3-year-old, identified as L.P., arrived at his Head Start center one day in 2010 with a bloodstained eye. Two teachers at the center questioned the boy about "who did this to you?" before L.P. identified Mr. Clark, who was his mother's boyfriend.

The teachers, Ramona Whitley and Debra Jones, contacted Ohio's child-welfare agency, as they were required to do under the state's mandatory-reporter law. The agency's investigation led to charges against Mr. Clark of felony assault and endangering children.

At Mr. Clark's trial, L.P. was deemed unfit to testify, so prosecutors relied on the boy's identification of Mr. Clark in the statements to his teachers.

The Ohio Supreme Court held in 2013 that the inability to cross-examine the child violated Mr. Clark's confrontation-clause rights. The state high court went on to hold that the mandatory duty for teachers to report child abuse effectively made them agents of law enforcement because the state expected them to help identify the perpetrators of abuse.

The Ohio ruling was alarming to education groups, and the National Education Association, the American Federation of Teachers, and the National School Boards Association filed a friend-of-the-court brief urging the U.S. Supreme Court to reject that interpretation.

Mr. Meyer, arguing on behalf of Ohio, told the justices that "Ohio law does not impose upon any mandatory reporter a duty to investigate" suspected abuse.

The state had an ally in President Barack Obama's administration, with the U.S. solicitor general's office also arguing that the Ohio supreme court erred in finding that a mandatory-reporting duty turned teachers into the equivalent of the police.

"Teachers aren't in the business of prosecution," Ilana Eisenstein, an assistant to the U.S. solicitor general, told the justices. "They're not in the business of collecting evidence."

Gathering Evidence?

Some justices appeared concerned about the implications of viewing teachers as law-enforcement agents.

Justice Ruth Bader Ginsburg said that the first reaction of a teacher to signs of abuse is to "get that child out of harm's way."

"So the teacher, I would think, is not thinking about prosecution down the road," she said, but rather, " 'What can I do to assure the safety of this child right now?' "

Justice Samuel A. Alito Jr. seemed to agree that criminal prosecution is not the first thing in a teacher's mind in such a situation.

"The teacher is concerned about the safety of this child, period," he said.

Mr. Fisher pointed to the advice the state of Ohio gives to teachers in a guide on the mandatory duty to report. The guide asks all mandatory reporters to gather "information which might be helpful establishing the cause of the abuse" and "the identity of the perpetrator."

"So [the teacher] is gathering evidence," Mr. Fisher said. "That's what she's told to do."

Other justices seemed troubled that under the Ohio court's ruling, a child's statement to a teacher could be used in a criminal case without the accused having a chance for cross-examination.

Chief Justice John G. Roberts Jr. suggested that a line has been crossed when a teacher goes from asking, "Who did this to you?" and determining that person is not an immediate threat, to, "Has he done this before?"

The chief justice told Ms. Eisenstein that "it's not related to the immediate concerns or immediate safety, but seems to be designed to compile a case."

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Justice Elena Kagan said that if the student were a 13-year-old instead of a preschooler and the teacher informed the student of her mandatory-reporting duty, "it's pretty clear to both the teacher and the student that at the back of that conversation, is the presence of police."

A decision is expected by late June.

Vol. 34, Issue 24, Page 24

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