STATE OF CALIFORNIA
CALIFORNIA COMMUNITY COLLEGES
CHANCELLOR'S OFFICE
1102 Q STREET
SACRAMENTO, CA 95814-6511
(916) 445-8752
HTTP://WWW .CCCCO.EDU
February 25, 2002
Wilma McLeod, Ph.D.
Vice President of Student Services
Modesto Junior College
435 College Avenue
Modesto, CA 95350-5800
Re:
Legal Opinion 02-03 Child Abuse Reporting
Dear Dr. McLeod:
You have asked a number of questions regarding minors (unemancipated persons under 18 years
of age) who are attending classes at Modesto Junior College. You advised us that the College
enrolls approximately 200 students under 18 years of age each year.
We regret the delay in responding to you, but staffing constraints have affected our ability to
respond as quickly as we would like. We will respond to your questions separately below.
1. What, if any, responsibilities do we have in terms of mandated reporting of issues relating to
physical and emotional abuse of under aged children?
The Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq., hereafter "Act") is a
comprehensive scheme of reporting requirements aimed at increasing the likelihood that child
abuse victims are identified. The Act defines its intent and purpose as "to protect children from
abuse and neglect." (Pen. Code, § 11164(b).1) "These statutes, all of which reflect the state's
compelling interest in preventing child abuse, are premised on the belief that reporting suspected
child abuse is fundamental to protecting children. The objective has been to identify victims,
bring them to the attention of authorities, and, where warranted, permit intervention." (Stecks v.
Young (1995) 38 Cal.App.4th 365, 371.)
The primary duties of reporting are included in section 11166, a copy of which is enclosed. The
basic responsibility is to make an immediate report (or report as soon as possible by telephone)
"whenever the mandated reporter, in his or her professional capacity or within the scope of his or
her employment, has knowledge of or observes a child whom the mandated reporter knows or
1
All section references are to the Penal Code unless otherwise noted.
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Wilma McLeod, Ph.D.
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February 25, 2002
reasonably suspects has been the victim of child abuse or neglect." (Section 11166(a).) The Act
requires that suspected child abuse and neglect be reported by mandated reporters to the county
welfare department or any police, sheriff, or county probation department that is designated by
the county to receive mandated reports. If the report is made by telephone, the mandated
reporter must prepare and send a written report within 36 hours of receiving the information.
Persons who are mandated reporters must report as required. Other persons, who are not
mandated reporters, but who have knowledge of or observe a child whom they know or
reasonably suspect has been a victim of child abuse or neglect may report the abuse to the above
agencies.
Employers of mandated reporters are required to ensure that such employees know their
obligations under the Act. Thus, "any mandated reporter . . . prior to commencing his or her
employment, and as a prerequisite to that employment, shall sign a statement on a form provided
to him or her by his or her employer to the effect that he or she has knowledge of the provisions
of Section 11166 and will comply with those provisions." (Section 11166.5(a).)
Generally, the Act provides absolute immunity for mandated reporters from civil or criminal
liability for making the required or authorized report. (Section 11172(a).) If mandated reporters
fail to make required reports of incidents of known or suspected child abuse and neglect, they
may be subject to criminal prosecution. (Section 11166(b).) A nonmandated reporter of known
or suspected child abuse or neglect also has immunity from civil and criminal liability unless
there is proof that the reporter made the report knowing that the report was false or made the
report with reckless disregard for the truth or falsity of the report. (Section 11172(a).)
2. What members of the campus community are mandated reporters?
We enclose for your information a copy of section 11165.7 which lists all mandated reporters.
As you will note, the definition of "mandated reporter" includes "teacher." We are aware that the
words that are used in the Penal Code seem to reflect a K-12 structure more than a community
college structure. For example, community colleges are typically referred to as "colleges," not
"schools." Community colleges usually refer to "faculty" or "instructors," not "teachers."
However, we believe that words like "schools" and "teachers," as used in identifying mandated
reporters under the Act, should be broadly construed to give effect to the purpose and intent of
the Act. Therefore, "teachers" would include community college instructors who are in a
position to observe child abuse and neglect.
A broad interpretation of "teacher" is consistent with the 1989 conclusions of the California
Attorney General who considered whether a teacher of ballet at a private ballet school was
required to report instances of child abuse under the Act. (72 Ops.Cal.Atty.Gen. 216 (1989).) At
the time, the Act defined "child care custodians" who had a duty to report instances of known or
suspected child abuse, as opposed to the current term of "mandated reporter."
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Wilma McLeod, Ph.D.
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February 25, 2002
The private ballet school held an "Authorization to Operate as a Private Postsecondary
Educational Institution" issued by the California Department of Education, and met the federal
Department of Health, Education and Welfare's definition of an "institution of higher education."
The school accepted students beginning at eight years of age as well as persons in adult classes.
The school focused on preparation for performance as opposed to "academic" instruction, and
the instructors were primarily former professional ballet dancers. In addition, the school
conducted introductory dance sessions/classes at local public schools.
The Attorney General noted that the purpose of the Act was "to detect and prevent child abuse."
The ballet school teacher was thus "in daily contact with persons under the age of eighteen. It
would also seem fair to say that because of the nature of ballet classes, the ballet teacher would
be in a special position to observe instances of child abuse." (72 Ops.Cal.Atty.Gen. at p. 218.)
However, the Attorney General still looked to the language of the Act to determine if the ballet
teacher should be included within the scope of "teacher" under the Act. Because "teacher" was
not defined in the Act itself, the Attorney General concluded that the term must be interpreted
"according to its usual, ordinary and generally accepted meaning" and noted that the Act was not
limited as to "particular subjects, knowledge, or skills." (Id. at p. 221.)
The Attorney General also noted:
"Without intending to suggest that the meaning of the word 'teacher' as found in
the Act is without bounds and mandates a reporting duty on any person who
happens to impart some knowledge or skill to a child, we do not accept the
proffered limitation that it applies only to teachers in K-12 schools. We find
nothing in the statutory language of the Child Abuse and Neglect Reporting Act
to support such a limitation on the plain meaning of the word 'teacher.' Second, it
bears noting that the particular private Ballet School that has been described does
not operate free from all governmental oversight. It is 'licensed' by a state agency
to operate as a Private Postsecondary Educational Institution in California . . . and
its credentials permit it to participate in the Student Tuition Recovery Fund and to
apply for other student financial assistance programs. In its operation, it deals
with students as young as eight years of age, whom it owes as much a duty of care
and supervision as does a public or private K-12 school." (Id. at p. 225.)
The Attorney General expressly rejected the notion that the type of academic preparation of the
teachers affected their inclusion: "But most important, we cannot accept the notion that a ballet
teacher at the School would not be a type of trained 'professional' upon whose judgment and
experience the Legislature relied to report known or suspected instances of child abuse. Such a
person is professionally in contact with children on a regular and continuous basis . . . and deals
with them in a setting where evidence of child abuse may be uniquely readily apparent." (Id. at
p. 225.) The private nature of the institution was rejected as a basis for exclusion from coverage
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Wilma McLeod, Ph.D.
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February 25, 2002
by the Act. The Attorney General concluded: ". . . a person who teaches ballet at a private ballet
school is a 'teacher' and thus a 'child care custodian' as defined by the Act, and therefore has a
mandatory duty to report instances of child abuse under it." (Id. at p. 226.)
The Attorney General noted that the types of persons who were required to report child abuse
had expanded over the years: in the beginning only physicians were required to report. Indeed,
after the Attorney General's 1989 opinion, the scope of mandated reporters has been significantly
expanded. At present, it includes such persons as district attorney investigators, firefighters,
animal control officers, and even commercial film processors. Based on the scope and purpose
of the Act, its legislative development, and the Attorney General's analysis that underscores
professional contact with children, we conclude that it applies to those community college
"teachers" whose scope of employment places them professionally in contact with children on a
regular and continuous basis where evidence of child abuse or neglect would be readily apparent.
Based on similar reasoning, we believe that "classified employee[s] of any public school," who
are included by section 11165.7(a)(4) as mandated reporters, includes community college district
classified employees if their scope of employment places them in similar contact with children
on a regular and continuous basis such that evidence of child abuse or neglect would be readily
apparent.
In addition to community college instructors and classified employees whose duties place them
in a position to observe potential instances of child abuse or neglect, the Act applies to
community college counselors. Education Code section 72621 addresses the confidentiality of
information disclosed during student counseling. This section provides in pertinent part:
"Any information of a personal nature disclosed by a student 12 years of age or
older in the process of receiving counseling from a school counselor as specified
in section 72620 is confidential. Any information of a personal nature disclosed
to a school counselor by a parent or guardian of the student who is 12 years of age
or older and who is in the process of receiving counseling from a school counselor
specified in section 72620 is confidential. The information shall not become part
of the student record, as defined in section 76210, without the written consent of
the person who disclosed the confidential information. The information shall not
be revealed, released, discussed, or referred to, except as follows: . . .
(b) Reporting of child abuse or neglect as required by Article 2.5 (commencing
with Section 11165) of Chapter 2 of Title 1 of Part 4 of the Penal Code."
(Emphasis added.)
We read the foregoing as establishing the basic confidentiality requirement that in turn is subject
to "required" reporting under the Act. If counselors were not otherwise required by the Act to
report child abuse and neglect, the exception noted above would not refer to the requirement to
report. (We also note that K-12 counselors are subject to a similar exception from the
confidentiality requirement when child abuse or neglect is involved. See, Ed. Code, § 49602.)
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Wilma McLeod, Ph.D.
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February 25, 2002
Finally, in 1991, the Act was amended to add the following individuals to the list of those who
must report under the Act: "administrator[s] or employee[s] of a public or private organization
whose duties require direct contact and supervision of children." (Ed. Code, § 11165.7(a)(8).)
This addition is broad enough to encompass all community college employees whose scope of
duties fit within that definition.
Although you have not specifically asked about College obligations concerning the reporting
requirements, we want to point out the provisions of section 11166.5(a):
"(a) On and after January 1, 1985, any mandated reporter as specified in Section
11165.7, with the exception of child visitation monitors, prior to commencing his
or her employment, and as a prerequisite to that employment, shall sign a
statement on a form provided to him or her by his or her employer to the effect
that he or she has knowledge of the provisions of Section 11166 and will comply
with those provisions. The statement shall inform the employee that he or she is a
mandated reporter and inform the employee of his or her reporting obligations
under Section 11166. The employer shall provide a copy of Sections 11165.7 and
11166 to the employee."
3. What processes must we have in place to give notice to students (potential victims or suspects)
of our reporting requirements?
The Act does not provide for a specific notice regarding reporting under the Act to potential
victims or suspects.
4. What are the reporting or notification requirements for registered sexual offenders? Do we
have a requirement to inform students that sexual offenders might be participants in campus
activities and events including overnight travel for field trips or extracurricular activities?
Before addressing your specific questions, we recognize that our system is a very inclusive one
which makes itself available to a wide variety of individuals. The admission system does not
generally question students about their backgrounds, their motives for attending college, or their
conduct that does not directly affect college attendance or activities. While it is expected that the
vast majority of students present no particular risks to other students, the same open access that
gives the system its uniqueness may embrace persons whom other students, and particularly
younger students, may be surprised to encounter. Apart from advising students of the potential
presence of sex offenders, we believe there is merit in informing younger students who may be
contemplating attendance of a variety of realities of attending college so as to frame reasonable
expectations and to maximize the potential for student success. For example, younger students
may not fully understand the rigors of college-level work, that pedagogical reasons may lead to
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Wilma McLeod, Ph.D.
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February 25, 2002
the use of course materials that some students may find offensive, and that they are held to the
same academic and conduct requirements as all other students.
Your inquiry regarding reporting or notification requirements requires a review of recent federal
and state law. The federal "Campus Sex Crimes Prevention Act" was enacted on October 28,
2000. It amended three federal laws and triggered a recent addition to California law.
The "Campus Sex Crimes and Prevention Act" amended the "Jacob Wetterling Crimes Against
Children and Sexually Violent Offender Registration Act" to require those sex offenders who are
required to register in the state to also register, in accordance with state law, at institutions of
higher education where the person is enrolled as a student, is employed, or carries on a vocation.
The amendment takes effect October 28, 2002.
For a number of years, federal law has required colleges that receive federal aid to collect
statistics about crime, to file annual crime reports with the federal government, and to provide
certain notices to students. This law, the "Jeanne Clery Disclosure of Campus Security Policy
and Campus Crime Statistics Act," (20 U.S.C. § 1092(f)(1) was also amended by the "Campus
Sex Crimes Prevention Act." The amendment, effective October 28, 2002, requires colleges to
include the following notice:
"A statement advising the campus community where law enforcement agency
information provided by a State under section 14071(j) of Title 42, concerning
registered sex offenders may be obtained, such as the law enforcement office of
the institution, a local law enforcement agency with jurisdiction for the campus,
or a computer network address."
The notices must be included in the annual report due in October, 2003.
The "Campus Sex Crimes and Prevention Act" also amended the federal "Family Educational
Rights and Privacy Act" (FERPA), which generally prohibits the release of student educational
records without either a court order or the consent of the student about whom they pertain. The
FERPA amendments are already in effect so as to permit schools to release registered sex
offender information. (20 U.S.C. § 1232g(b)(7)(A).)
In response to the federal requirements that state law describe the expanded registration
requirements for convicted sex offenders, Assembly Bill 4 was passed by the Legislature and
signed by the Governor. (Stats. 2001, ch. 544.) That bill added section 290.01 to the Penal
Code.
Presently, persons who are required to register as sex offenders must register in the communities
in which they live. If they reside on campus, they must register with the chief of police of the
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Wilma McLeod, Ph.D.
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February 25, 2002
campus where they reside. (§ 290.2) Although information about registered sex offenders is
generally not available to the public, important exceptions apply. Police may release extensive
information about the individual, including that person's enrollment, employment or vocational
status with a community college district if the information is "relevant and necessary to protect
the public," if the information relates to a "high-risk sex offender," or if a member of the public
provides an "articulable purpose" for access to the information. (§ 290(m) and (n), § 290.4.)
Pursuant to newly added section 290.01, which takes effect October 28, 2002, to correspond with
the effective dates of the provisions described above, registered sex offenders must also register
with campus police if they are enrolled as students at community colleges, are employees of
community colleges (with or without compensation), or carry on a vocation at a community
college for more than 14 days or an aggregate of 30 days in a calendar year. Volunteers are also
covered. Thus, the registration requirement that affects only persons who live on campus is
greatly expanded. A registrant has 5 working days from beginning enrollment or employment in
which to register, and must also notify the campus police department upon ceasing the activity
(e.g., employment) that required the registration. The first violation of the registration
requirements is a misdemeanor carrying a fine of not more than $1,000. The second violation is
also a misdemeanor with a fine of not more than $1,000 and/or county jail imprisonment for not
more than 6 months. A third or subsequent violation is a misdemeanor,
punishable by a fine not to exceed $1,000 and/or county jail imprisonment for not more than 1
year. (§ 290.01.)
We hope the foregoing information is useful to you.
Sincerely,
Virginia Riegel
Staff Counsel
L 02-03
VAR:sj
Attachment
2
A full analysis of all portions of section 290 is beyond the scope of this opinion.
Legal Opinion L 02-03