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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
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www.michedlawcenter.com
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