Tag Archives: US Supreme Court

Ohio v. Clark (No.13-1352): Duty of teachers to report suspected abuse

9 Mar

Most people do not want people, especially children, abused. One means of early intervention is mandatory reporting of suspected abuse by certain groups like teachers or medical personnel. Accessing Safety lists the pros and cons of mandatory reporting:

Supporters of mandatory reporting believe that mandatory reporting can enhance victim/survivor safety by:
• linking people with services that will provide information and referrals to improve their living situations,
• getting victim/survivors away from abusers and perpetrators;
• reporting violence, abuse, and sexual assault to increase the number of cases reaching authorities and being documented, thereby increasing an understanding of the prevalence of such violence and its incidence; and
• offering an opportunity to provide training on issues of violence to professionals and persons who are mandatory reporters.
Some feel that mandatory reporting may create more harm than good. They believe that risks and consequences of mandatory reporting can include:
• retaliation by abuser/perpetrator/stalker,
• broken trust and confidentiality,
• damage to an individuals’ right to self-determination, an issue that is of particular concern when working with people with disabilities, and
• damaging the relationship between the victim/survivor and service provider, and, ultimately, leading to victims/survivors not seeking help or not returning to services…. http://www.accessingsafety.org/index.php?page=137

The U.S. Supreme Court heard arguments in Ohio v. Clark (No.13-1352).

Mark Walsh reported in the Education Week article, Supreme Court to Hear Case on Abuse Reporting: Mandatory-Reporting Laws Complicate Teachers’ Role:

The U.S. Supreme Court next week takes up a case involving an important but uneasy duty of teachers: reporting suspected abuse or neglect of their students to the appropriate authorities.
The criminal appeal of an Ohio man asks whether teachers’ obligation as “mandatory reporters” of suspected child abuse—something required of them, along with various other professionals, in all 50 states—makes them adjuncts of law enforcement when it comes to prosecuting such cases.
The case of Ohio v. Clark (No.13-1352) also examines whether a child’s statements to a teacher about abuse trigger the Sixth Amendment right of the accused “to be confronted with the witnesses against him.” That typically means such witnesses must testify in open court, where the defendant’s lawyers may cross-examine them.

Darius Clark, a 27-year-old Cleveland man, argues that his rights under the “confrontation clause” were violated when he was convicted of felony assault and endangering children based in significant part on the trial testimony of two Head Start teachers. They recounted information from a child alleging physical abuse by Mr. Clark, who was the boyfriend of the child’s mother.
The 3-year-old boy, identified as L.P., was considered by authorities to be too young and unreliable a witness to testify in court, a common situation in child-abuse cases.

“This case could have implications anywhere there are mandatory-reporting laws, which is everywhere,” said Jason Walta, a senior attorney in the general counsel’s office of the National Education Association. The NEA has filed a joint friend-of-the-court brief with the American Federation of Teachers and the National School Boards Association on the side of the state.
Eric E. Murphy, the state solicitor of Ohio, will argue before the justices on March 2 that a mandatory duty to report suspected child abuse does not, as Ohio’s highest court held, turn teachers into agents of the police.

“The teachers in this case were acting more in a teacher-care capacity, not as the police,” he said in an interview….

Reporting Abuse and Neglect: One State’s Guidelines

A case in the U.S. Supreme Court involves a teacher’s duty to report suspected child abuse and neglect. A booklet from the Ohio Department of Job and Family Services serves as a reference for educators on the legal definitions and indicators of abuse and neglect, as well as reporting procedures. Both sides of the Supreme Court case point to one or more of the procedures as bolstering their case.

Among Ohio’s reporting procedures:
• Any school employee who has reason to believe that a child is being, or has been, abused or neglected shall immediately make an oral report of that suspicion to the local public children’s services agency. The report should include, among other information, the following:
– The identity of the caretaker or guardian of the alleged child victim.
– When and where the alleged abuse or neglect occurred, the type, extent, and duration of the alleged abuse or neglect, and the child’s current condition.
– The identity and current whereabouts of the alleged perpetrator, the relationship of the alleged perpetrator to the child victim, and the access he may have to the child. (Note: This is a key phrase pointed to by the criminal defendant to suggest teachers are serving as agents of law enforcement.)
• Immediately after making the report, the school employee shall notify the school principal that a report has been made.
• The oral report shall be followed up with a written report within five working days. That report could include additional helpful information from school records, such as the name of the family physician or other reports the school has made regarding the child.
• The booklet says that “since it is the responsibility of the [children’s service agency] to investigate alleged child abuse and neglect, school personnel shall not pressure the child to divulge information regarding specific circumstances or the identity of the alleged perpetrator.” (Note: This is a key phrase pointed to by the state to say that teachers are not being asked to serve as agents of law enforcement.)
Source: Ohio Department of Job and Family Services, Education Week. http://www.edweek.org/ew/articles/2015/02/25/supreme-court-to-hear-case-on-abuse.html#

Here is the summary of the case http://www.scotusblog.com/case-files/cases/ohio-v-clark/

Joan Meier, Professor of Clinical Law, George Washington University Law School wrote in Ohio v. Clark: Do Children’s Statements Have to Be Live Testimony:

Ohio v. Clark thus is the first case both to address children’s statements, and statements made to non-government personnel. First, because the primary purpose test requires an “objective” analysis of whether the circumstances indicated that the statements were made for “testimonial” reasons, or to seek help in an “ongoing emergency,” children’s statements are necessarily a different kettle of fish from adults’ statements. Many courts have wrestled with whether the intent of the speaker, the listener, or both must be factored into the analysis. But unlike with adults, we cannot infer children’s awareness or intent to report to law enforcement, so the objective determination of “purpose” must be made without that input…. http://www.huffingtonpost.com/joan-meier/ohio-v-clark-do-childrens_b_6057662.html
Education groups filed amicus briefs arguing the Ohio Supreme Court decision should be overturned.
The National School Boards Association reported in Legal Clips:
The National School Boards Association (NSBA) and the Ohio School Boards Association (OSBA) have joined the National Education Association (NEA) and the American Federation of Teachers (AFT) in an amicus brief in Clark v. Ohio, No. 13-1352, urging the U.S. Supreme Court to reverse the Ohio Supreme Court’s holding:
(1) that teachers are acting as agents of law enforcement when questioning a minor student regarding suspected child abuse pursuant to Ohio’s mandatory reporting law for purposes of the Sixth Amendment’s Confrontation Clause; and
(2) that out-of-court statements to a teacher in response to the teacher’s concern about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause….
First, it argues that the Ohio Supreme Court adopted an expansive reading of the Confrontation Clause that would deputize millions of school employees (including teachers, counselors, and administrators), doctors, social workers, and even ordinary citizens as agents of law enforcement, and would render the U.S. Supreme Court’s well-established “primary purpose,” test largely meaningless. –
Second, amici contend that mandatory reporting statutes do not deputize teachers as agents of law enforcement. The brief states: “The argument that statements to mandatory reporters of child abuse are testimonial under the Confrontation Clause has been raised in a number of cases, and both federal and state courts have consistently rejected it….”
Third, the brief argues: “Even if school personnel were treated as agents of law enforcement (or if the Court were to broaden the audience to whom testimonial statements can be made), within the unique context of school settings it is clear that in virtually all situations, their inquiries into a child’s injuries are non-testimonial because those inquiries are made for the primary purpose of protecting children and not primarily to advance a future prosecution….” Fourth, amici assert that by deeming teachers and other school personnel as law enforcement when engaged in their mandatory reporter duties could also have far-reaching consequences that would undermine the welfare of students and the educational process.
Finally, the brief contends “even assuming that statements made to teachers or school personnel could be testimonial in some circumstances this case can be resolved on narrow grounds because the statements at issue here were non-testimonial for at least three additional reasons….” http://legalclips.nsba.org/2014/11/25/sua-sponte-nsba-and-osba-join-nea-and-aft-in-amicus-brief-urging-u-s-supreme-court-to-reverse-ohio-supreme-courts-holding-that-teachers-are-agents-of-law-enforcement-for-purposes-of-the-sixth-amen/#sthash.vZz5Zfg4.dpuf

The Supreme Court could uphold the Ohio Supreme Court’s decision or decide the case more narrowly.


Mandatory Reporters of Child Abuse and Neglect https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/manda/?hasBeenRedirected=1

Mandatory Reporting of Child Abuse and Neglect 2013 Introduced State Legislation http://www.ncsl.org/research/human-services/redirect-mandatory-rprtg-of-child-abuse-and-neglect-2013.aspx

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SACNAS scientists argue the superiority of diversity when discussing Fisher v. University of Texas at Austin (Case No. 11-345)

4 Nov

Moi attended the SACNAS 2012 National Meeting in Seattle. Among the events on her calendar was a discussion with SACNAS board members about why diversity is important and the potential impact of Fisher v. University of Texas at Austin (Case No. 11-345), which is currently before the U.S. Supreme Court. Moi met with:

Lee Bitsoi, (Navajo) EdD SACNAS Secretary,      Bioethics at Harvard

SACNAS Board Members:

Luis Echegoyen, (Cuban) PhD Chemistry,           University of Texas at El Paso

Juan Meza, PhD                                               Dean of Natural Sciences,

                                                                       Professor of Applied Math,                                                                                  UC at Merced

Gabriel Montano,PhD                                        Nanotechnology/Membrane                                                                        Biochemistry                                                                        Los Alamos National Laboratory

Not only do these gentlemen do research and attend conferences in addition to teaching and other activities, they see their roles as MENTORS to those who will attempt to fill their shoes. See, Review of 2012 SACNAS National Meeting in Seattle http://drwildareviews.wordpress.com/2012/10/20/review-of-2012-sacnas-national-meeting-in-seattle/

Before discussing the SACNAS board members argument in favor of the superiority of diversity, a discussion of affirmative action is necessary.

Plessy v. Ferguson established the principle of “separate but equal” in race issues. Brown v.Board of Education which overturned the principle of “separate but equal.” would not have been necessary, but for Plessy. See also, the history of Brown v. Board of Education

If one believes that all children, regardless of that child’s status have a right to a good basic education and that society must fund and implement policies, which support this principle. Then, one must discuss the issue of equity in education. Because of the segregation, which resulted after Plessy, most folks focus their analysis of Brown almost solely on race. The issue of equity was just as important. The equity issue was explained in terms of unequal resources and unequal access to education.

People tend to cluster in neighborhoods based upon class as much as race. Good teachers tend to gravitate toward neighborhoods where they are paid well and students come from families who mirror their personal backgrounds and values. Good teachers make a difference in a child’s life. One of the difficulties in busing to achieve equity in education is that neighborhoods tend to be segregated by class as well as race. People often make sacrifices to move into neighborhoods they perceive mirror their values. That is why there must be good schools in all segments of the city and there must be good schools in all parts of this state. A good education should not depend upon one’s class or status.

The lawyers in Brown were told that lawsuits were futile and that the legislatures would address the issue of segregation eventually when the public was ready. Meanwhile, several generations of African Americans waited for people to come around and say the Constitution applied to us as well. Generations of African Americans suffered in inferior schools. This state cannot sacrifice the lives of children by not addressing the issue of equity in school funding in a timely manner.

The next huge case, like Brown, will be about equity in education funding. It may not come this year or the next year. It, like Brown, may come several years after a Plessy. It will come. Equity in education funding is the civil rights issue of this century. https://drwilda.com/2011/12/02/the-next-great-civil-rights-struggle-disparity-in-education-funding/ U.S. Supreme Court watchers are awaiting the decision in Fisher v. University of Texas at Austin (Case No. 11-345).

Mark Walsh reported in the Education Week article, Affirmative Action Case Up for Airing at High Court:

The future of affirmative action in education—not just for colleges but potentially for K-12 schools as well—may be on the line when the U.S. Supreme Court takes up a race-conscious admissions plan from the University of Texas next month.

That seems apparent to the scores of education groups that have lined up behind the university with friend-of-the-court briefs calling on the justices to uphold the plan and continue to recognize the need for racial diversity in the nation’s schools and classrooms.

Long identified as essential to the missions of many postsecondary institutions and school districts in the United States, diversity has emerged as central to our nation’s overarching goals associated with educational excellence,” says a joint brief by the College Board, the National School Boards Association, and several other K-12 groups and others that deal with college admissions.

In an interview, Francisco M. Negrón Jr., the general counsel of the NSBA and a co-author of the brief, emphasized the stakes in the scope of the issues posed in Fisher v. University of Texas at Austin (Case No. 11-345), which is set for arguments Oct. 10.

This is predominantly a higher ed. case, but our interests in K-12 diversity are not dissimilar to the interests of higher education,” he said.

Student Abigail Fisher challenged the University of Texas at Austin on admissions.

The Fisher case is one of the biggest of the court’s new term, and for now is the only education case on the docket.

It involves Abigail Fisher, a white applicant who was denied admission to the University of Texas at Austin in 2008 under the university’s “holistic review” program. That program may take race into account for the quarter of places in UT-Austin’s entering freshman class not filled by the Texas law that guarantees admission to high school students who finish in the top 10 percent of their graduating classes.

Lawyers for Ms. Fisher say that but for the consideration of race, she would have been admitted. They say that the Texas program should be struck down under the 14th Amendment’s equal-protection clause because it fails the requirement for a narrowly tailored race-conscious program set forth in the Supreme Court’s 2003 decision in Grutter v. Bollinger. That 5-4 decision involved the University of Michigan law school, and the majority opinion by then-Justice Sandra Day O’Connor expressed a desire for all use of affirmative action in education to end within 25 years….  http://www.edweek.org/ew/articles/2012/09/28/06scotus.h32.html?tkn=XUOFyffLI8gEbWxzrz2Nk2RMFlvQXv3nnePW&cmp=clp-edweek

The theory of “affirmative action” has evolved over time.

According to the Stanford Encyclopedia of Philosophy:

Affirmative action” means positive steps taken to increase the representation of women and minorities in areas of employment, education, and business from which they have been historically excluded. When those steps involve preferential selection—selection on the basis of race, gender, or ethnicity—affirmative action generates intense controversy.

The development, defense, and contestation of preferential affirmative action has proceeded along two paths. One has been legal and administrative as courts, legislatures, and executive departments of government have made and applied rules requiring affirmative action. The other has been the path of public debate, where the practice of preferential treatment has spawned a vast literature, pro and con. Often enough, the two paths have failed to make adequate contact, with the public quarrels not always very securely anchored in any existing legal basis or practice.

The ebb and flow of public controversy over affirmative action can be pictured as two spikes on a line, the first spike representing a period of passionate debate that began around 1972 and tapered off after 1980, and the second indicating a resurgence of debate in the 1990s leading up to the Supreme Court’s decision in the summer of 2003 upholding certain kinds of affirmative action. The first spike encompassed controversy about gender and racial preferences alike. This is because in the beginning affirmative action was as much about the factory, the firehouse, and the corporate suite as about the university campus. The second spike represents a quarrel about race and ethnicity. This is because the burning issue at the turn of the twentieth-first century is about college admissions.[1] In admissions to selective colleges, women need no boost; African-Americans and Hispanics do.[2] http://plato.stanford.edu/entries/affirmative-action/

Stanford provides a good analysis of the theory.

In the effort to produce diverse campuses many colleges use a “holistic” admissions policy. Scott Jaschik writes in the Inside Higher Education article, ‘Holistic’ Controversy:

The University of California at Los Angeles uses a “holistic” approach to undergraduate admissions. Each applicant is reviewed not only for test scores and grades, but for low socioeconomic status, a disadvantaged background and evidence of the ability to overcome challenges (among other qualities). Holistic admissions (used by many leading colleges and universities, some of which also consider a candidate’s race and ethnicity) is designed to evaluate each applicant as more than just a set of numbers.

Proponents of holistic admissions say that it evens the playing field for those who didn’t go to the best high schools or couldn’t afford enriching summer travel or SAT tutors. And because holistic admissions avoids automatic cutoff or admission scores for students from any group, proponents hope it can help diversify student bodies without running afoul of court rulings or attracting lawsuits. http://www.insidehighered.com/news/2012/10/31/debate-over-admissions-and-race-ucla

Many educators have long recognized that the impact of social class affects both education achievement and life chances after completion of education. There are two impacts from diversity, one is to broaden the life experience of the privileged and to raise the expectations of the disadvantaged. Social class matters in not only other societies, but this one as well.

A few years back, the New York Times did a series about social class in America. That series is still relevant. Janny Scott and David Leonhardt’s overview, Shadowy Lines That Still Divide describes the challenges faced by schools trying to overcome the disparity in education. The complete series can be found at Social Class

Moi’s discussion with Drs. Bitsoi, Echegoyen, Meza, and Montano really was a discussion framed by the scientific method. Keep in mind the good doctors are all scientists. Their argument for a “holistic” approach in college admissions is the role of diversity in scientific inquiry and their argument that diversity in scientific teams produces better results. To a man, they argue that diversity and excellence are not mutually exclusive, but highly compatible. In fact, they argue, that diversity produces excellence of result. They used examples of the impact of the SACNAS method of mentoring young scientists who were selected for mentoring using a “holistic” appraisal of their qualifications. With mentoring and support these young scientists blossomed. The bottom line is that in order for this society to find the answers to problems which vex society, there must be a diverse set of skills and minds to problem-solve.

The question which this society has to answer is how to provide a good education for ALL despite their race or social class. The SACNAS scientists fully support a “holistic” approach approach to college admissions.


Is there a ‘model minority’ ??                                               https://drwilda.com/2012/06/23/is-there-a-model-minority/

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Possible unintended consequences of the U.S. Supreme Court’s ‘Obamacare’ ruling

12 Jul

Mark Walsh has an intriguing Education Week about the aftermath of the U.S. Supreme Court’s “Obamacare” decision and its possible impact on education. In Ed. Law Challenges Loom After Health-Care Ruling, Walsh writes:

Legal analysts say that part of the U.S. Supreme Court decision on the federal health-care law will encourage states to challenge education laws and other federal aid programs and legislation passed under Congress’ spending power, a pivotal aspect of the historic ruling.

The justices ruled 5-4 to uphold a key provision of the Affordable Care Act—the requirement that individuals purchase a health-insurance policy with at least a minimum level of coverage—as a valid exercise under Congress’ taxing power. But the court effectively ruled 7-2 that the states could not be threatened with the loss of their existing Medicaid funding if they refused to participate in the law’s expansion of the federal health-care program for the poor.

That portion of the June 28 decision in National Federation of Independent Business v. SebeliusRequires Adobe Acrobat Reader (Case No. 11-393) could open the door to lawsuits over the spending strings attached to federal programs—or even the conditions for securing federal waivers under the No Child Left Behind Act, some commentators say….

Mr. Bagenstos of the University of Michigan noted that some federal education laws, such as the ESEA, have relatively frequent reauthorizations and revisions, leading to uncertainty about when conditions are first imposed. And other federal laws that come with conditions on the states, such as Title IX, are not grant programs per se but anti-discrimination statutes.

The rules aren’t tied to any particular funds” under such statutes, he said.

Mr. Bagenstos does not believe that the state challenges he predicts ultimately will be successful. But the Medicaid ruling could alter the dynamics of state-federal relations over such things as federal waivers for the No Child Left Behind Act, he said.

A state could say, ‘Look, if our waiver gets denied, we’re going to court,’ ” Mr. Bagenstos said.

Do I think these arguments are going to be successful in the courts? Ultimately, no,” he added. “But these are arguments that are going to take a while to work their way through the courts.”http://www.edweek.org/ew/articles/2012/07/12/36scotus.h31.html?tkn=PPTFLaYDB9dQxlfFlrIbQ3taERAkJIQPVmNa&intc=es

The possible reason for concern about education law suits is the portion of the Supreme Court’s majority opinion which deals with the possible coercive aspects of Medicaid expansion.

Health Reform GPS has an excellent summary of the case in Summary of the U.S. Supreme Court decision in the case of National Federation of Independent Businesses et al. v. Sebelius, Secretary of Health and Human Services, et al.. Here is the portion of the case Walsh writes about:

The Constitution simply does not give Congress the authority to require the States to regulate. That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.” Majority, p. 47-48. “When, for example, such conditions take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the States to accept policy changes.” Majority, p. 50. Furthermore, the Medicaid expansion “accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage.” Majority, p. 53-54. However, “nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand the availability of health care, and requiring that States accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.” Majority, p. 55. http://healthreformgps.org/resources/summary-of-the-u-s-supreme-court-decision-in-the-case-of-national-federation-of-independent-businesses-et-al-v-sebelius-secretary-of-health-and-human-services-et-al/

It is important to understand the U.S. Legal system in order to understand why there might be unintended consequences from the court’s decision.

Mark F. Radcliffe and Diane Brinson of DLA Piper LLP (US) have written an excellent Findlaw article, The U.S. Legal System. The portion about the U.S. Supreme Court explains the role of precedent.

Supreme Court Review

There are two ways to get a case reviewed by the U.S. Supreme Court: by appeal and by certiorari . The losers in certain types of cases – for example, cases involving claims that state statutes are unconstitutional – have a right to appeal to the Supreme Court.

For most cases, though, there is no right of appeal to the Supreme Court. However, a party who has lost a case at the federal Court of Appeals level can file a petition for certiorari with the Supreme Court. A petition for certiorari is a document explaining why the Supreme Court should review a case. If the Supreme Court grants certiorari , the appeal proceeds. If the Court denies it, the Court of Appeals’ decision stands.

Thousands of petitions for certiorari are filed each year and most are denied. The Supreme Court is likely to grant certiorari on a case only if the case involves a matter of national interest or the Court believes that it must decide the case to resolve conflicts among the Circuit Courts and create uniformity in federal law.


An appellate court’s decision on an issue is binding on lower courts in the appellate court’s jurisdiction. Thus, an appellate court’s decisions are “precedent” that the lower courts in the appellate court’s jurisdiction must follow (apply).

Example: In Effects Associates, Inc. v. Cohen , the United States Court of Appeals for the Ninth Circuit held that the grant of a nonexclusive copyright license can be implied from the copyright owner’s conduct. This decision is binding on the federal district courts located in the Ninth Circuit. Those courts are not free to decide that a nonexclusive copyright license cannot be implied from conduct.

A lower court’s decision is not binding on a higher court. In fact, appellate courts frequently reverse decisions made by trial courts to correct the trial courts’ “mistakes of law.”

Because the United States Supreme Court is the “highest court in the land,” the Supreme Court’s decisions are binding on all courts in the United States. http://library.findlaw.com/1999/Jan/1/241487.html

The litigation may just be beginning.


Online symposium: The Bar Review version of NFIB v. Sebelius http://www.scotusblog.com/2012/07/online-symposium-the-bar-review-version-of-nfib-v-sebelius/

The Roberts Court and the Role of Precedent                               http://www.npr.org/templates/story/story.php?storyId=11688820

The Nature and Timing of the U.S. Supreme Court’s Interpretation of Precedent                                                                            http://www.bsos.umd.edu/gvpt/CITE-IT/Documents/Hansford%20etal%202002%20Nature%20and%20Timing%20of%20t%20US%20Supreme%20Court.pdf

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