Appeals Court Rejects Injunction Requiring Training on School Searches

By Mark Walsh — November 23, 2015 2 min read
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A federal appeals court has thrown out a trial judge’s injunction requiring a Tennessee school district to better train its school nurses to avoid unconstitutional searches and seizures of students.

The ruling stemmed from a 2009 incident in which a school nurse in the Nashville-Davidson County school system conducted a visual inspection of a 6-year-old girl’s genital area because the student had complained of itching and discomfort.

The student’s parents did not consent to the exam, and they sued the school district and the nurse alleging that the exam was an illegal search under the Fourth Amendment. The suit said the student was “confused, humiliated, and frightened” by the exam.

A federal district court in Nashville held that the exam was an unreasonable search, and it denied immunity to the nurse, Karen Sliwowski, based on cases outlawing strip searches of students for contraband.

But in a 2013 ruling, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, unanimously granted qualified immunity to the nurse, holding that it was not clearly established that a nurse’s visual inspection of a student’s genital area when done for medical purposes constituted a search. (I reported on the 2013 decision here.)

Meanwhile, the family’s money-damages lawsuit against the school district continued to trial. A jury held that the nurse did not violate the girl’s Fourth Amendment right to be free from unreasonable searches. Thus, the jury did not need to proceed to questions about whether the school district had shown deliberate indifference to the student’s rights by its failure to properly train the nurse.

Nevertheless, the trial judge issued an injunction requiring the school district to train relevant school employees on the constitutional limits “to ensure safeguards for school children’s privacy.”

The injunction would ensure that “children’s Fourth Amendment rights are not subject to the discretion of the school official in the field,” the trial judge said.

In its Nov. 20 decision in Hearring v. Sliwowski, a different 6th Circuit panel ruled 3-0 that the trial judge had erred in issuing the injunction, mainly because the family’s lawsuit had sought damages and never requested such an injunction.

Also, Judge Jeffrey S. Sutton wrote for the court, the jury had rejected the necessary factual predicate that would have given the trial judge the authority to issue such an injunction.

“The federal courts are not free-range problem solvers,” Sutton wrote.

He noted that Sliwowski had left her job with the Nashville-Davidson County district.

“The risk that [the student] would be subject to another such search is no more actual and imminent than the Chicago Cubs (or, we fear, the Cleveland Indians) winning the World Series,” said the Ohio-based Sutton.

(I’d say that is dicta and a gratuitous slap at the Cubs’ record of futility. But I’m a Cubs fan.)

A version of this news article first appeared in The School Law Blog.