Wenk v. O'Reilly, No. 14-3334 (6th Cir. 2015)Annotate this Case
The Wenks have a 17-year-old daughter, M, who has an IQ of 70 or below, and requires special education services. M attended high school in Grandview Heights, under an Individualized Education Program (IEP), as required by the Individuals with Disabilities Education Act, 20 U.S.C. 1400. In 2011, teachers expressed “concerns” about M’s father’s treatment of M. An administrator’s report to Franklin County Children Services (FCCS) included statements and behaviors by M that were thought to indicate sexual abuse and many comments about father’s physical appearance and demeanor. FCCS concluded that the allegations were unsubstantiated; the police department dropped its criminal investigation. In a suit under 42 U.S.C. 1983, the Wenks claimed that the report was filed in retaliation for their advocacy to change M’s educational plan, in violation of their First Amendment rights. The district court denied the school administrator qualified immunity. The Sixth Circuit affirmed, but denied the Wenks‘s motion for fees and costs for defending the appeal. The right to be free from retaliation for exercising First Amendment rights was clearly established at the time of the report and a reasonable official would have understood that filing a child abuse report in bad faith violated those rights.