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Published in Print: June 8, 2011, as High Court Sidesteps Test of In-School Queries

Supreme Court Sidesteps Test of In-School Questionings

However, ruling vacates 9th Circuit requirement on warrants, permissions

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The U.S. Supreme Court has sidestepped an important test of whether in-school questioning of students by the police or other authorities requires a warrant. The justices ruled that the case before them—involving an interrogation of an Oregon girl by authorities who believed she was a victim of sexual abuse at home—was moot.

However, in an outcome agreeable to investigators and schools, the court in its May 26 decision set aside a federal appeals court ruling that the Fourth Amendment requires investigators to have a warrant or parental consent before interviewing students in school.

Justice Elena Kagan, writing for the majority in Camreta v. GreeneRequires Adobe Acrobat Reader (Case No. 09-1454), said that because the young woman at the center of the case no longer lived in Oregon and would soon graduate from high school, she no longer faced the prospect of a warrantless police interview in school.

“When subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, we have no live controversy to review,” Justice Kagan said in an opinion joined by four of her colleagues. The overall judgment to dismiss the case was 7-2.

The case was prompted by the ordeal of a girl identified in court papers as S.G. In 2003, 9-year-old S.G. was pulled from her Bend, Ore., classroom, taken to a school office, and interviewed by a state child-protective-services caseworker and a deputy sheriff.

The authorities suspected the girl was being sexually abused at home. After lengthy questioning, the girl told the investigators that she had been touched inappropriately by her father. The girl and her sister were briefly removed from their home, but criminal charges against the father were later dismissed. The father accepted a plea agreement over abuse charges involving another child.

S.G.’s mother sued not only the investigators who questioned her daughter, but also the Bend-La Pine school district and the school counselor who had removed the girl from class. The school defendants were dismissed early in the case. The mother said in court papers that only after two hours of denying any abuse did S.G. tell the investigators what the girl believed they wanted to hear—that her father had touched her inappropriately.

9th Circuit Ruling

The suit led to a 2009 ruling by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that S.G.’s Fourth Amendment rights were violated because she had been seized in the absence of a warrant, parental consent, or other special circumstances.

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This was followed by a procedurally messy appeal to the Supreme Court by the investigators—a state child-abuse caseworker and a deputy sheriff—who won immunity from liability in this case but worried they would be hampered by the need for a warrant or parental consent in future school interviews of suspected abuse victims.

In her May 26 opinion, Justice Kagan said the high court could review a lower court’s ruling on a constitutional issue even when the appeal was brought by officials who were deemed to have qualified immunity in the case. That issue alone could be important in public education, in which many suits challenging school policies and actions are resolved on immunity grounds but often also involve a ruling on the merits of a constitutional issue.

Justice Kagan said the court was bending its usual rule that bars prevailing parties, such as the officials who won immunity in this case, from bringing an appeal. She said qualified-immunity rulings in cases in which lower courts also rule on constitutional issues “have a significant future effect on the conduct of public officials—both the prevailing parties and their co-workers—and the policies of the government units to which they belong.”

Moot Case

Justice Kagan said that after granting review of the case, the court learned that S.G. had moved to Florida. The teenager is now approaching her 18th birthday and is presumably about to graduate from high school, she said.

“S.G. therefore cannot be affected by the Court of Appeals’ ruling,” Justice Kagan said. “She faces not the slightest possibility of being seized in a school in the 9th Circuit’s jurisdiction as part of a child abuse investigation.”

Kagan said the mootness of S.G.’s underlying case frustrated the right of the investigators to appeal the 9th Circuit’s constitutional ruling. The majority vacated that part of the 9th Circuit ruling, which is significant in that it removes, for now, the requirement that investigators get warrants or parental consent for in-school interviews. (The 9th Circuit’s requirement didn’t apply to school administrators or teachers.)

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Ruth Bader Ginsburg, and Samuel A. Alito Jr. joined Justice Kagan’s opinion.

Justice Sonia Sotomayor filed a concurring opinion, joined by Justice Stephen G. Breyer, saying she agreed the case was moot, but she would not have reached the issue of whether the officials granted immunity in this case had the right to appeal.

Justice Anthony M. Kennedy, in a dissent joined by Justice Clarence Thomas, said that clarification of the court’s principles on qualified immunity and constitutional rulings was in order, but that in this case he would have dismissed the appeal.

School groups including the National School Boards Association and its Oregon affiliate had filed a friend-of-the-court brief arguing that the 9th Circuit’s warrant requirement for school questioning was potentially a burden for schools, placing them between investigators and parents.

The Oregon School Boards Association said on its Web site last week that despite the Supreme Court’s action to set aside the 9th Circuit requirement, it was urging school districts to keep policies requiring the police and other agencies to secure warrants or parental consent before permitting questioning of students on school premises.

“This issue will likely rise again,” the association said.

Still pending before the court is a case involving another issue arising out of police questioning at school. In J.D.B. v. North Carolina (No. 09-11121), the justices are weighing whether a student interrogated by the police at school about burglaries he was suspected of committing should have been given a Miranda warning.

Vol. 30, Issue 33, Page 20

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