Law & Courts

High Court to Weigh Police Questionings at School

By Mark Walsh — October 19, 2010 6 min read
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The U.S. Supreme Court has agreed to decide whether authorities seeking to question students at school about possible sexual abuse at home require a warrant or parental consent.

Also last week, the justices heard arguments about the potential liability for manufacturers over the side effects of childhood vaccines, in a case being watched closely by those who suspect a link between vaccines and autism.

The sex-abuse case from Oregon, accepted Oct. 12, has important implications for schools as well as for police and child-protection investigators because educators typically cooperate with such warrantless interviews, and many investigators view schools as a natural and reassuring place to question children suspected of being abused by a family member.

“Congress ... could have said ... that no vaccine manufacturer may be held civilly liable if the vaccine is properly prepared and accompanied by proper directions and ... warnings.” Justice Ruth Bader Ginsburg

“The child feels more comfortable in the school environment than they would in a child-advocacy [agency’s] office or a police station,” said John E.B. Myers, a professor at the McGeorge School of Law at the University of the Pacific, in Sacramento, Calif. “But it is also just the most convenient place [for investigators] to get to the children where they are outside of the control of their custodians.”

Accepted for review were the cases Camreta v. Greene (Case No. 09-1454) and Alford v. Greene (No. 09-1478), involving events in February 2003, when a caseworker and a deputy sheriff went to an elementary school in the Bend-La Pine school district in Oregon to interview a 9-year-old girl whom they suspected to be a victim of sexual abuse by her father, who had been arrested a week earlier in the alleged abuse of a 7-year-old boy.

According to court papers, the investigators arrived at the school, explained they were there to interview the student, and asked for a private room. A school counselor pulled the student, identified as S.G., from class. The investigators talked to her for some two hours. Later, the caseworker pursued the investigation, and the father was indicted on sexual-abuse charges involving S.G., although the charges were later dismissed. (The father did enter a so-called Alford plea to charges involving the 7-year-old boy, in which he maintained his innocence but acknowledged that there was sufficient evidence for a guilty verdict.)

The mother sued the caseworker, Bob Camreta, and the deputy sheriff, James Alford, over the interview that took place at school, as well as over later actions in which her children were removed from her custody temporarily. The suit also named the Bend-La Pine district and the school counselor as defendants, but those claims were dismissed by a federal district court and were not challenged on appeal.

The federal district court upheld the interview at school of S.G. by the caseworker and the deputy sheriff as “objectively reasonable.”

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held in a December decision that the at-school interview violated the student’s Fourth Amendment right to be free from unreasonable “seizure.” The involvement of law-enforcement officials in the interview raised “traditional” Fourth Amendment concerns, the court said, and the interview could not be conducted without a warrant, parental consent, a court order, or the special circumstances that sometimes arise in a situation dangerous to officers.

The 9th Circuit court went on to hold that the two investigators were entitled to qualified immunity because they could have believed that they were not violating a clearly established right of the student to be free from such a seizure at school.

The caseworker and the deputy sheriff nevertheless each appealed the underlying ruling to the Supreme Court, which granted review and will hear oral arguments early next year.

Twenty-seven states filed a friend-of-the-court brief on the side of the two investigators, urging the high court to take up the case. So did several California groups, including the California School Boards Association, because they are in the 9th Circuit and will have to abide by the appellate court’s ruling unless it is overturned.

Mr. Myers of McGeorge Law School helped draft the California groups’ brief and is the author of a legal textbook on evidence in child-abuse cases. It has been standard procedure for the past 25 years for state child-abuse investigators to be accompanied by a police officer to interview children at school, especially when the suspected abuse is in the home, he said.

Vaccine Liability

The vaccine case involves whether parents can sue in state courts over design defects in child vaccines, or whether a federal vaccine law precludes such claims.

While the case doesn’t directly involve autism, the lawsuit has the close attention of the autism community. Many parents believe that thimerosal-containing vaccines and the vaccine for measles, mumps, and rubella are a cause of autism in their children.

Most scientific research has failed to find such a link, and the U.S. Court of Federal Claims—a special court in Washington sometimes referred to as the “vaccine court”—has held in several test cases that there is no persuasive evidence for a link.

The issue in the case before the Supreme Court, Bruesewitz v. Wyeth Inc. (No. 09-152), is whether a provision of the National Childhood Vaccine Injury Act of 1986 precludes liability for certain claims against vaccine manufacturers even if the vaccine’s harmful side effects were avoidable.

Hannah Bruesewitz suffered seizures and has had developmental disabilities since having a bad reaction to a diphtheria-tetanus-pertussis (DPT) vaccine known as Tri-Immunol as an infant in 1992.

Lawyers for the family contend that the vaccine, developed in the 1940s, had long been superseded by a more modern design, but that the drug manufacturer declined to change its DPT vaccine’s design because it viewed the economic costs as outweighing any potential gain in market share. Wyeth, now part of Pfizer Inc., withdrew Tri-Immunol from the market in 1998.

“[T]he whole idea behind Congress’ scheme was to balance having vaccine supply available with providing a generous form of compensation to those persons who would be injured,” David C. Frederick, the lawyer for the Bruesewitz family, said during oral arguments.

Many parents have been dissatisfied with the federal compensation system created under the 1986 law and have sought to sue drug manufacturers in state courts. A friend-of-the-court brief filed on the family’s side by groups such as Autism One and the National Autism Network argues that “the compensation program is not working as Congress intended.”

Kathleen M. Sullivan, the lawyer representing Wyeth, suggested during the arguments that if the justices permit state tort lawsuits against vaccine manufacturers, the autism community is prepared to flood the courts.

“There are 5,000 claimants in vaccine court now who claim there is a relationship between the mumps, measles, and rubella vaccine and autism,” Ms. Sullivan said. “They have lost all six test cases, and when the individual cases are resolved, that is 5,000 potential claimants in state courts.”

"What the pediatricians here say is that, if you win, ... the result could be driving certain vaccines from the market, and basically, a lot of children will die." Justice Stephen G. Breyer

The justices appeared divided over the case.

“If Congress had wanted to [make it clear there could be no liability for design defects], they could have said simply that no vaccine manufacturer may be held civilly liable if the vaccine is properly prepared and accompanied by proper directions and adequate warnings,” Justice Ruth Bader Ginsburg told Ms. Sullivan. “Congress didn’t make that statement.”

But Justice Stephen G. Breyer cited a friend-of-the-court brief on Wyeth’s side by the American Academy of Pediatrics and other medical groups, which argued that “by eliminating the threat of most lawsuits, the Vaccine Act has kept manufacturers from abandoning vaccine production.”

Justice Breyer told Mr. Frederick: “What the pediatricians here say is that, if you win, we’re turning this over to judges and juries instead of the [Food and Drug Administration] and other specialized agencies, that the result could well be driving certain vaccines from the market, and basically, a lot of children will die.”

Justice Elena Kagan did not participate because she worked on a federal brief while she was U.S. solicitor general. That leaves the potential for a 4-4 tie, which would automatically affirm the lower-court ruling in favor of Wyeth.

A version of this article appeared in the October 20, 2010 edition of Education Week as Supreme Court to Weigh Questionings at School; Hears Case on Vaccines


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