Noah Noyes: Mandated reporting needs clarity

Editor’s note: This commentary is by Noah Noyes, who was born and raised in Vermont. He has served as a teacher, school board member, and currently as a public school administrator. His opinions and views are expressly his own.

As many know, criminal charges were brought against two school administrators – a colleague and me – last summer. The charges stemmed from an alleged violation of 33 V.S.A. § 4913, Vermont’s often-called “mandated reporter” law. Nearly a year after these proceedings were first initiated, both cases have now been dismissed, but the history and experience exposes a need to address, reform and clarify this law and its administration.

Reports and investigations into potential child abuse and neglect are of greatest importance. However, this episode uncovered several systemic flaws with current practices. It is critical that we address these flaws in order to keep kids safe to the best of our ability and ensure consistent response. I am hopeful that the parties and agencies involved will examine existing legislation with a critical lens and make adjustments to help educators and others in this important work.

I suspect that many professionals designated as mandated reporters would appreciate if the Vermont Legislature examined 33 V.S.A. § 4913 with the intent of removing the ambiguity contained in this law. I suggest that a definition of “reasonable cause to believe” would be helpful guidance for us all. Many other states have included such clarification in their statutes regarding mandated reporting. A degree of discretionary judgment is now built into the language of the statute; and yet a school administrator can find herself or himself defending this statutory guided discretion in a criminal court – this is so, even in cases where there was full disclosure to every interested party as to the allegation and the investigation conducted. Courts and attorneys in Vermont have declared that this statute is not clearly understood numerous times. I urge the Legislature to remove the ambiguity so that Vermont’s mandated reporters clearly understand our duty and can fulfill it accurately and consistently.

The law enforcement investigation into this matter contained numerous oversights and inconsistencies. The handling of this matter violated Vermont State Police policies, the Vermont Rules of Criminal Procedure (specifically V.R.Cr.P. #3), and Vermont Law (specifically 20 V.S.A. § 2061). Vermonters deserve law enforcement practices that are accurate, thorough, compliant with regulations, and based in integrity. The initial press release on this matter contained inaccurate information as did subsequent media interviews with law enforcement officers. The fundamental premise of our judicial system and our civil liberties rely on appropriate and lawful policing, and Vermonters should settle for nothing less.

The Vermont State Police and prosecutor’s office spent nearly a year and untold amounts of resources and taxpayer money pursuing this case. It should also be noted that these charges of “failing to report” were pursued despite the fact that no child abuse or neglect was ever substantiated in this case by any of the several agencies involved in investigating it. Vermonters should insist that our limited resources are better utilized in other ways related to public safety. Again, there is nothing more important than child safety, education, and protection, but this case clearly demonstrates that funds which are scarce and unfortunately not available in many clearly important instances (i.e. early intervention, counseling, art, music … all of which are suffering and being routinely slashed from school budgets) are being used to literally no remedial end. While I respect our branches of government and their decision-making authority, I do not respect or appreciate how schools have to scrape by for hot-lunch programs, while untold piles of money are used to pursue a baseless case.

A large amount of inaccurate or incomplete information was published by various media outlets across Vermont. Additionally, several agencies openly published the name of the teacher involved in the allegation despite the fact that this teacher was cleared of any misconduct and never faced charges of any kind. There were volumes written about the accusations and allegations and a brief paragraph covering the ultimate outcome. Contemporary journalism seems to have given up on the idea of due process in favor of drama and uninformed judgments regardless of whose expense the headlines come at. Vermonters deserve complete, factual, and balanced reporting.

To be clear, I take my responsibilities as an educator, mandated reporter, and adult who is responsible for the safety and well-being of students very seriously. It is always on the forefront of my mind. I raise these issues in hopes that it will lead to more clarity for mandated reporters, better use of our precious limited resources, and improved coordination between agencies of education, child protection, and law enforcement. The educators that I know do everything in their power to protect and serve children. It is time to give mandated reporters better tools to do this important work with clarity, confidence, and recognition of good faith.

An opportunity exists to examine these issues and make improvements to our current systems. Let’s take advantage of this chance to work together to build a better and stronger Vermont.

A revised version of this commentary was posted at 11:27 on April 14, 2014.

Comments

  1. “It should also be noted that these charges of “failing to report” were pursued despite the fact that no child abuse or neglect was ever substantiated in this case by any of the several agencies involved in investigating it.”

    But the case wasn’t about child abuse — it was about your failure to report.

    Having read this over, I still don’t see what, precisely, is ambiguous about “MANDATORY REPORTING.” Both the state expense and the erroneous press reports could have been avoided if you had simply done the mandatory reporting, no?

    • Noah Noyes :

      Thanks for your response. The statute is currently written as follows:

      “who has reasonable cause to believe that any child has been abused or neglected shall report or cause a report to be made in accordance with the provisions of section 4914 of this title within 24 hours.”

      Caledonia County Deputy State’s Attorney Maria Byford was quoted as saying “Because the legislature hasn’t defined it, we’re all grappling with it”.

      The ambiguity lies in the fact that the term ‘reasonable cause to believe’ is not defined and relies on some amount of discretionary judgement on the part of the reporter. Each reporter may have his or her own definition and standard for this threshold, yet there is a criminal penalty associated with this mandate.

      In this case, the court ruled that there was insufficient evidence to meet the standard of ‘reasonable cause to believe’ which would have triggered the mandated report requirement. Additionally, the court ruled that ‘reasonable cause to believe’ is comparable to the ‘probable cause’ standard in criminal cases, which was further defined as ‘more likely that it occurred than not’.

      Given all of this information, it defies logic that no agency would have sufficient evidence to substantiate the allegation, but to assert that sufficient evidence existed to trigger the mandated report requirement which essentially all rely on a equal evidentiary standard.

      It is also clear that numerous agencies involved in this case all interpreted that law differently, which again speaks to the need for clarity.

      • Noah Noyes :

        You may also wish to read additional literature on this topic. I recommend:

        “Reasonable Suspicion of Child Abuse: Finding a Common Language”

        By: Benjamin H. Levi and Sharon G. Portwood

      • I’m still not understanding the problem.

        Since you lack the training or experience to evaluate an allegation, surely your role is simply to report the allegation to those with the training and experience to evaluate the allegation, no?

        • Karl Riemer :

          No. It takes no special training or experience to discern extremes. Sometimes foul play is obvious. Sometimes false witness is obvious. In this case, the adults had “reasonable cause to believe” there was no merit to the accusation, that the “crime” was, in fact, malicious, manipulative misrepresentation. The law allows, and common decency requires, that not be turned into a criminal investigation. The law requires, and common decency concurs, that if there’s any doubt, call in the cavalry. And, of course, there’s usually doubt. But saying every childish utterance should automatically trigger a police investigation is ludicrous.

  2. Julie Hansen :

    I was going to pass on this commentary, but as an administrator and a teacher, I just can’t because it makes us all look bad. The law is not ambiguous; perhaps you and Ms. Tucker chose an erroneous interpretation.

    The point of a third party, qualified to make appropriate inquiries and determinations, is to protect everyone.

    • Noah Noyes :

      Julie,

      It is regrettable that you feel that my piece reflects poorly on educators – that certainly was not the intent. I am glad that you feel sound in your interpretation of this mandate – I know many who don’t. Do you disagree that the term ‘reasonable cause to believe’ is ambiguous or involves discretion?

      It may be helpful to know that the court’s assessment of the case was entirely supportive of my interpretation of the law, which would suggest that it was not ‘erroneous’ as you suggest.

      It is worth noting that school administrators are required by law under Title 16 to investigate such allegations.

      I reiterate that the purpose of my piece is to improve our existing systems and bring clarity to this issue. I am sorry you disagree with my perspective, but hope you will consider my points.

      -Noah

  3. Julie Hansen :

    For me the key word is mandatory. I don’t know anyone who doesn’t understand that word.

    I only think it makes us look bad because when schools make mistakes it is better just to admit it and move on. Blaming the law feels a bit unseemly.

    I was very sorry for your travails and continue to believe they would have been avoided by noting that we are mandatory reporters.

    I think the law is there to protect children first and teachers second, but ultimately everyone is better off but telling what you have been told to the proper third party.

    • Karl Riemer :

      “when schools make mistakes it is better just to admit it and move on”
      would be the correct course of action if the school (meaning the administrators) had made a mistake. They did not. That’s why they were exonerated.

      Nor did the State Police and State’s Attorney necessarily make a mistake. They pursued a case they (let’s assume) thought had merit.

      I can’t even find fault with the legislature. It’s easy to say “reasonable cause to believe” should be precisely defined. That would be great. Practically speaking, though, that’s a tall order in these cases.

      The only clear error I see is yours. Noah Noyes uses far too many words to speak a simple truth: you say mandatory reporting = mindless reporting of every allegation. The law says otherwise. The law says every allegation must be investigated, and if found to be at all credible reported. You say it’s better not to think, only repeat, and let others think. That’s an arguable position, but it’s your strategy for passing on responsibility; it’s not what the law requires. By misconstruing the law to fit your strategy, and criticizing another administrator for failing to do the same, I’d say the only one looking bad here is you.

  4. walt amses :

    If an internal investigation found no “reasonable cause to believe” abuse had occurred, there was no “mandatory” reporting necessary and Mr. Noyes and his colleagues were needlessly subjected to a nightmare. “Mandatory” is not the key word, “reasonable” – in all its ambiguity – is.

    • Noah Noyes :

      Mr. Amses-

      Thanks for your response. You have captured the essence of my position perfectly.

      -Noah

  5. John Greenberg :

    I too am confused by this. To be clear at the outset, I write as someone with NO knowledge of the subject!

    Noah Noyes says, in one of his comments: “it defies logic that no agency would have sufficient evidence to substantiate the allegation, but to assert that sufficient evidence existed to trigger the mandated report requirement which essentially all rely on a equal evidentiary standard.”

    This seems to me precisely backwards, and if I’m right, that’s where the confusion lies. As far as I can see, there’s no prima facie reason that the standard SHOULD be the same, and indeed, there’s good reason to suggest it shouldn’t.

    As I understand this, the statute requires mandatory REPORTING, which then allows OTHER individuals to investigate the charge. The downside of using too little evidence to trigger reporting is that those charged with investigating will have to look into cases where there is nothing to be found. But I gather all of this takes place outside of the public’s view, so those who might have been charged are not necessarily disturbed in any way by excessive reporting if nothing comes of the report. The downside of under-reporting, on the other hand, is precisely what the statute is intended to prevent.

    On the other hand, the threshold for actual substantiation of a reported charge needs to be higher, since otherwise, we would risk convicting folks who are actually innocent, so there IS a significant incentive to raise the threshold at least to “probable cause.”

    One last point seems relevant. Those who are being asked to report are NOT officials whose credentials require any expertise in making these determinations. Those to whom they make the reports, at least theoretically, DO have more expertise is these matters. For this reason alone, it again makes sense that the threshold for reporters be LOWER than that for those charged with further investigation.

    • Noah Noyes :

      Hi John,

      This is exactly the issue, and confusion, that is on the table.

      In this case, the court ruling equated the standard of ‘reasonable cause to believe’ to the standard of ‘probable cause’ and defined both as something akin to ‘more likely than not…’

      This lack of clarity around the standard at which a report is required is the issue that I am attempting to raise. There is great ambiguity around the standard, which clearly involves discretion, yet we have affixed a criminal penalty to it.

      As written by Levi and Portwood in 2011:

      “…mandated reporting statutes arguably violate the first essential element of due process. They are, in the words of the U.S. Supreme Court, “so vague that men of common intelligence must necessarily guess at [their] meaning and differ as to [their] application.” ”

      Would we allow legislation to be written that stated that “motorists shall not drive with excessive speed” without defining parameters for such? Doubtful. The enforcement would be entirely subjective and discretionary – just as is the case with this legislation.

  6. Jason Farrell :

    To me these cases have illustrated the difference between what one reasonable person believes a law says, or should say, and how that differs from what another reasonable person concludes it says, or means.

    From the beginning of this case I’ve contended that it’s reasonable for a person to read this law and conclude it allowed for discretion in reporting. The statute (33 V.S.A. § 4913) undeniably includes the phrase “who has reasonable cause to believe”. In fact, the phrase, “MANDATORY REPORTING” is not found (in caps, or otherwise) in the statute.

    While people may wish this ambiguity away, I believe that those who condemn these two reasonable people for not reporting simply continue to refuse to acknowledge the fact that ambiguity exists in the law, as written.

    Instead of accepting what a reasonable person could understand to be the law’s instruction, they argue in favor of what they believe the law should say, or mean. Once people acknowledged and accept that a reasonable person could conclude something different than they have (that ambiguity exists), then there it may be possible for the legislature to provide needed clarity.

  7. Julie Hansen :

    Well, we are responsible for other people’s children. What I read in all of these responses is a protection for the teacher and the institution. Our duties are to the children we serve.

    I am guessing that we would not agree on this issue.

    Schools should convene with child services to determine their policies and be clear about the duties of each person.

    • Noah Noyes :

      Julie,

      Nobody is arguing against child safety in any way – who would do such a thing?

      I think the points that folks are making are as follows:

      1. The law is ambiguous as written.

      2. DCF reporting of 100% of accusations may be the approach of some, but it is far from what is required by the statute.

      Child safety encompasses far more than DCF reporting. Most schools have many layers of policies, procedures, and staff to provide safe, nurturing, and developmentally appropriate supports for all students.

      A case could be made that reporting frivolous, trivial, or spurious complaints actually causes potential harm by unduly burdening already overextended agencies. I am confident that many child protective services staff would agree with this point. The danger is, of course, that legitimate cases go unattended due to lack of capacity.

      Please understand that I feel strongly that every complaint be taken seriously and investigated immediately and thoroughly – however school policies and procedures, and existing harassment statutes and protocols are the first lines of defense – and should be.

      Kids should be kept safe from all dangers, but relying on the DCF hotline as your only means of doing so is not appropriate or effective.

      I am in no way advocating against child safety, nor do I think anyone here is either.

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