The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Parents' Lawsuit Against School Social Worker Can Go Forward
The social worker had reported the parents for educational neglect; the parents argue this was knowingly false, because the social worker knew the parents "were in compliance with their statutory obligation to educate their child" by home schooling.
From Abubakari v. Schenker, decided last week by Judge Robin Wilson (Conn. Super. Ct.):
The plaintiffs … allege the following facts against the defendant[,] … a social worker employed by the Hamden Board of Education and acting in her capacity as such….
The plaintiffs allege the following. During the 2016-2017 school year, the plaintiffs' minor child U.A. was enrolled at a Hamden elementary school. At a meeting of the school's pupil planning team (PPT), U.A. was identified as a student requiring special education under federal law, and an individual education plan (IEP) was put in place for the child. The PPT also had determined that U.A. would be provided special education, services, and accommodations, including a one-to-one paraprofessional to assist the child with his learning disabilities so that he would be able to transition into the Hamden Middle School and continue to succeed.
For the 2017-2018 school year, U.A. was enrolled at Hamden Middle School and during a PPT meeting in December 2017, the school officials changed his IEP, among other things, to eliminate the one-to-one paraprofessional. Because of the changes to U.A.'s IEP, the child's educational progress regressed, but the school officials continued to socially advance him through his grade. As a result of the regression, the plaintiffs requested reinstatement of the one-to-one paraprofessional and other special services and accommodations in order to reverse the regression. The plaintiffs' requests were denied….
At a PPT meeting on February 13, 2018, the plaintiff Khadijah Abubakari expressly announced that she would pull U.A. out of his enrollment in the Hamden public schools and continue to keep him out until the school district provided him with the special education services and accommodations she believed necessary to allow him to progress successfully. She further announced explicitly and on the record that beginning immediately she would be home-schooling U.A., with the assistance of professional tutoring services the plaintiffs would hire at their own expense, as is specifically provided for and permitted by [Connecticut law].
Despite actual knowledge of the plaintiffs' home-schooling of U.A. in compliance with applicable law, on March 22, 2018, the defendant knowingly and maliciously filed a false complaint with the Connecticut Department of Children and Families (DCF) claiming that the plaintiffs were educationally neglecting U.A. because he "ha[d] not been in school since February 13, 2018" and that a "[p]arent ha[d] not engaged in communication with school" and a "[p]arent ha[d] been difficult to work with at IEP mtgs. Last meeting was February 13th."
The plaintiffs claimed that the defendant's report to DCF "concealed the fact that she had actual knowledge that the plaintiffs were home-schooling their child in compliance with … Connecticut law," and alleged that, because of defendant's allegedly false report, "DCF launched an investigation of the plaintiffs and ultimately filed a petition for neglect against them in the Superior Court." The court held that the plaintiffs had adequately alleged that defendant's actions constituted tortious intentional infliction of emotional distress:
Connecticut courts have established a high threshold for successfully alleging a claim of IIED. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine." In the event that "reasonable minds" could disagree on that issue, however, the matter must be determined by the trier of fact…..
The court finds Greco v. Anderson (Conn. Super. Ct. 2000) to be both factually analogous and persuasive. In Greco, … [t]he court [reasoned] that, "I would be prepared to find that false and malicious allegations which lead to the loss of one's children and threaten[ed] the loss of one's liberty are, per se, extreme and outrageous." … [Likewise in this case,] because a motion to strike requires the court to admit all well-pleaded facts, the court concludes that the allegations of the defendant making a report to DCF, with actual knowledge that the plaintiffs were in compliance with their statutory obligation to educate their child, which report triggered an investigation and subsequent prosecution of the plaintiffs by DCF, are sufficiently extreme and outrageous for purposes of alleging a claim of IIED.
The court rejected defendant's claim of immunity under the Connecticut mandated reporter statute, concluding that the statute immunized only good-faith complaints:
The plaintiffs allege in their complaint that the defendant had actual knowledge of their decision to remove U.A. from school and to begin home-schooling the child and despite such knowledge that U.A. was being home-schooled in compliance with [state law], the defendant chose to make a report to DCF that the plaintiffs were educationally neglecting U.A. Because the plaintiffs' allegations allege that the defendant knew or should have known that such an allegation of educational neglect was false, this then suggests that the report was not made in good faith and, therefore, the qualified immunity protection for mandated reporters may not apply.
And the court rejected defendant's First Amendment defense, brought under the so-called "Noerr-Pennington doctrine":
"Broadly speaking, Noerr-Pennington immunizes activity undertaken by persons who use the official channels of governmental agencies and courts to advocate their cause, even if that cause consists of nothing more than seeking an outcome adverse to a business competitor and/or favorable to a petitioner's own economic interests." "Although the Noerr-Pennington doctrine provides broad coverage to petitioning individuals or groups, its protection is not limitless…. [P]etitioning activity is not protected if such activity is a mere sham or pretense to interfere with no reasonable expectation of obtaining a favorable ruling." … Although the referenced cases provide the general framework for the Noerr-Pennington doctrine, the defendant does not point to, nor did the court's research reveal, any cases which demonstrate the applicability of the Noerr-Pennington doctrine to the context of a mandated reporter such as in the present action…. [W]ithout adequately briefing the issues or providing relevant case law or reasoning as to how this doctrine applies to strike this count, the court cannot consider this ground for purposes of a motion to strike….
