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.
Both the state and the education groups say the Ohio high court ruling sets a dangerous precedent by holding that teachers are acting as arms of law enforcement in some of their routine interactions with their students. Mandatory-reporting laws are mostly geared toward alerting child-welfare authorities, who address abuse and neglect allegations with a range of civil tools and interventions, the state and the groups point out.
Jeffrey L. Fisher, a Stanford University law professor who was appointed by the U.S. Supreme Court to represent Mr. Clark, responded in an interview that a teacher’s role can shift under mandatory-reporting laws depending on the circumstances.
The first duty may be to ensure that an abused child receives medical treatment or is removed from immediate harm. But a teacher can also be cast in the role of the initial investigator of an apparent crime, Mr. Fisher said.
“If prosecutors are told that teachers can essentially stand in for the students
‘Who Did This to You?’
The U.S. Supreme Court case involves Mr. Clark, who moved in with his girlfriend and her two young children in 2008. One day in 2010, after caring for the children the night before, Mr. Clark dropped L.P. off at the boy’s Head Start center.
According to court papers, one of L.P.’s teachers, Ramona Whitley, noticed that the boy was acting reserved and that his left eye appeared bloodshot and bloodstained.
L.P. first told Ms. Whitley that he had fallen and hurt himself. But the teacher looked at his face in better light and saw what she described as “red marks, like whips of some sort.” When another teacher, Debra Jones, asked L.P., “Who did this to you?,” the boy replied several times, “Dee.”
The teachers asked whether Dee was “big or little,” trying to ascertain whether L.P. was referring to another student or to an adult. Once they discerned that Dee was the boyfriend of L.P.’s mother, the teachers reported the incident to a state child-abuse hotline. Mr. Clark was investigated and charged with felony assault of L.P., felonious assault of L.P.’s younger sister, and counts of endangering children and domestic violence.
A state trial judge found L.P. unfit to testify at Mr. Clark’s trial after the boy gave inconsistent statements at a pretrial hearing. But the court permitted the teachers to testify about L.P.’s hearsay statements to them about who caused his injuries. Mr. Clark was convicted on all but one charge and was sentenced to 28 years in prison.
A mid-level state appellate court reversed the conviction, ruling that the testimony from the teachers about L.P.’s statements violated Mr. Clark’s Sixth Amendment right to confront and cross-examine the witnesses against him.
The Ohio Supreme Court affirmed the appeals court, ruling last year that the two Head Start teachers were agents of law enforcement because Ohio law imposes a duty on all school officers and employees, including administrators and employees of child day-care centers, to report actual or suspected child abuse or neglect.
While “the primary purpose of reporting is to facilitate the protection of abused and neglected children rather than to punish those who maltreat them,” the state high court said, “it is clear that the General Assembly considered identification and/or prosecution of the perpetrator to be a necessary and appropriate adjunct in providing such protection, especially in the institutional setting.”
Thus, the court said, when teachers suspect and investigate child abuse “with a primary purpose of identifying the perpetrator” under the mandatory-reporting statute, “any statements obtained are testimonial for purposes of the confrontation clause.”
The word “testimonial” is important to this area of law. In a 2004 decision, in Crawford v. Washington, the U.S. Supreme Court held that the confrontation clause bars the admission into evidence of the statement, or out-of-court “testimony,” of a witness who does not appear at trial, unless that witness is unavailable to testify and the defendant had a prior opportunity for cross-examination.
The high court has held that statements made by a witness during a police interrogation would usually be testimonial in nature, and thus they couldn’t be introduced in court unless a defendant had an opportunity to cross-examine the witness.
The court, however, has ruled that statements made by a crime victim to a 911 operator or by a dying victim to police officers identifying an assailant were not testimonial—and thus could be used in court without cross-examination—because they were meant to assist the police during an ongoing emergency.
The justices have not ruled on when out-of-court statements made to people other than those in law enforcement—such as teachers—may be considered testimonial.
Mandatory reporting laws in the states go back to the 1960s, the friend-of-the-court brief of the NEA, the AFT, and the NSBA points out.
The brief notes that child abuse was not as widely recognized as a societal problem until 1962, when a pediatrician named C. Henry Kempe and his colleagues published an article in the Journal of the American Medical Association titled “The Battered-Child Syndrome.”
The article led to an array of proposals for doctors and other professionals who saw children on a regular basis to report suspected abuse to state child-welfare authorities. By 1967, every state and the District of Columbia had enacted such a law, typically covering medical professionals, educators, and social workers. (Eighteen impose a reporting duty on anyone who suspects abuse of a child.)
The NEA’s Mr. Walta says the laws have had a focus on child protection, not on criminal prosecution. The laws are also structured in a way that does not deputize teachers and other school personnel as law-enforcement agents when it comes to suspected child abuse.
“Treating teachers, administrators, and other school personnel who have this mandatory-reporting duty as law-enforcement personnel would compromise the integrity of the process,” Mr. Walta said. “It would compromise interactions between teachers and kids. And it would mean that when a student is talking to his teacher, he is effectively talking to the police.”
The friend-of-the-court brief from the three education groups also notes that educators are not trained as police officers. Treating them as law-enforcement agents under the confrontation clause could lead to court rulings that would consider them as such for the constitutional rights of students, such as search and seizure and self-incrimination, the brief says.
Mr. Fisher, of Stanford Law School, counters that the facts of Mr. Clark’s case demonstrate that L.P.’s teachers were not merely questioning the boy to make sure he was out of danger, but to elicit who the perpetrator of the abuse was and pass that information along to the authorities.
The teachers’ report of abuse directly triggered an investigation by the Ohio Department of Child and Family Services in conjunction with the police, which led to Mr. Clark being charged and convicted.
Mr. Fisher also points to guidelines that Ohio provides to educators about their duty to report abuse.
The guidelines, among other things, instruct teachers generating reports of child abuse to provide “as much information as you can,” including “when and where the alleged abuse … occurred,” “the circumstances surrounding the alleged abuse,” and “the identity and current whereabouts of the alleged perpetrator.”
“There is no doubt that teachers address everyday bumps, scrapes, and disciplinary issues without any thought of law enforcement,” Mr. Fisher said. “But teachers, like police and others, act with different motives at different times.”
Mr. Murphy, the Ohio state solicitor, points to different passages of the state guidelines on mandatory reporting for educators, including one that tells them, “It is not your responsibility to determine if abuse or neglect is in fact occurring or if any of the circumstances surrounding suspected incidents of abuse or neglect actually happened.”
Another passage says, “Since it is the responsibility of the [social-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.”
“The mandatory duty is a duty to report, not a duty to investigate,”Mr. Murphy said. “I think that is a critical distinction.”
Richard D. Friedman, a law professor at the University of Michigan, has written widely about the confrontation clause and even runs a blog devoted to such issues, The Confrontation Blog.
He filed a friend-of-the-court brief, with another professor, on Mr. Clark’s side that says statements by very young children may often be probative of the alleged crime, but “are far from certainly accurate.”
“When you have a 3-year-old, that child is not capable of being a witness for the purpose of the confrontation right,” Mr. Friedman said in an interview. “To be a witness involves some understanding of the consequences of one’s statements. That requires a lot more sophistication than a 3-year-old is likely to have.”
A decision in the case is expected by late June.