Question:  My child is a special education student. Last week he was tied to his chair and came home from school with bruises on his arms and his neck. What should I do?
   

Answer:  Remember my mantra – if it is not in writing – it did not happen.  In situations involving claims of physical abuse, I would also add – a picture is worth 1000 words. Just as school staff have a legal responsibility to report suspected child abuse, parents also have a moral responsibility to protect their child from physical and mental abuse.

In terms of what to do, my recommendations are to first talk to their child and try to obtain the facts surrounding the incident. Sometimes it is helpful if another trusted person is present. If it appears that the child has been subjected to some physical harm, the harm has to be treated by a doctor immediately and the injuries well documented. Some emergency rooms have photographic equipment. If not, a disposable camera will work well. The mandatory reporting laws that require school staff to report suspected parental child abuse also applies to physicians who see patients who may have been abused by school staff. In my experience “the system” is not as vigilant as they could be when the suspected abuser is a school staff person, particularly if a special education student is involved. If the professionals are not willing to contact the police, the parent can make a report on their own.

As to dealing with the school, in my opinion the appropriate response is a well-written certified letter describing the incident (with extra set of photos – not the originals!) and asking for a copy of the “incident report” that should be created whenever a student is harmed. The letter should be addressed to the Superintendent of Schools, with a copy to the Secretary of the Board of Education marked for “distribution to the board”. This will insure that there is never a claim that those with the power to do something about what is now an arguably “hostile and unsafe educational environment” that they did not have actual notice of the incident. If there is ever a second incident, this letter will also become the basis for a claim that the school administration had actual notice of the abuse, and failed to insure the child’s safety.

Wishes to retain legal counsel to assist in the above tasks is up to each parent. If the parent wishes to consider filing a legal action, they should contact attorneys with educational law and tort claim experience. When I analyze claims of physical or mental abuse for the purposes of deciding if I will pursue the case, I look at many factors. I am interested in what type of witness the student will make, the severity of the harm and the long-term effects of the harm the student suffered, if what happened can be considered outrageous and shocking the conscience of the community, etc. I also want to know if there were prior incidents involving this child or classmates and what actions, if any, the school has taken against the employee. I need to consider if the person(s) responsible for the harm are claiming that they were reasonably restraining a student who was presenting a risk of harm to himself/herself or others. I also look at whether or not the parent gave express permission in the IEP for the school staff to use physical force on their child. If a suit is filed, when the facts clearly favor the parents and their child, the school district (or their insurance carrier) may well elect to quietly settle the claim. This allows the school to avoid adverse publicity and the risk of a large jury award. Similarly, it allows the parents to avoid the risk of not prevailing in court and subjecting themselves and their child to the drawn out and emotionally draining trial process.
 

John Brower, JD
Education Law Center, PLLC
Education Law Center, PLLC · 810-227-9850 · www.michedlawcenter.com 

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