Law & Courts

Justices Weigh School Interviews on Sex Abuse

By Mark Walsh — March 01, 2011 4 min read
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The U.S. Supreme Court today took up what potentially could be a major test involving the rights of children when interacting with the police and other government investigators in schools.

But in the case over whether school interviews of children by investigators constitute unreasonable “seizures” under the Fourth Amendment, the arguments today quickly stumbled over procedural issues.

“It just seems like the whole case has evaporated,” Justice Ruth Bader Ginsburg told Oregon Attorney General John R. Kroger early in the arguments in Camreta v. Greene (Case No. 09-1454). She was referring to the fact that the child in the case, identified as S.G., has not sought money damages from the two investigators who were found to have violated her rights.

The justices spent much of the hour debating whether the appeal presented a live case or controversy, as required by federal law. By the end, the court seemed inclined to throw out the appeal or set aside a federal appeals court ruling which had held that child-abuse investigators must have a court order or parental permission to interview a child at school about potential sex abuse at home.

Kroger said setting aside the ruling by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, would be acceptable since it would wipe the warrant or parent consent requirement off the books.

“Child-protective workers face an enormous burden to acquire a warrant before even talking to the child,” Kroger said.

The Obama administration was the state’s ally before the high court, with Acting Principal Deputy Solicitor General Leondra R. Kruger urging the justices to “correct the mistake the 9th Circuit made in this case.”

“What we have is a decision that changes the legal landscape for child-protective workers who are doing their best to protect children,” Kruger said.

She also said that wiping out the 9th Circuit decision would be acceptable, although that would put up a roadblock to the development of clear legal rules that could guide investigators.

Carolyn A. Kubitschek, the lawyer representing S.G. and her mother, said several times today that overly zealous child-abuse investigations could be harmful to children.

The state’s position is that “there are no limits, no constraints” on what investigators could do in interviewing a child in school, Kubitschek said.

In the case from Bend, Ore., 9-year-old S.G. was pulled from her classroom one day in 2003 and taken to a school office, where she was 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 their father were later dismissed. The father did accept 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 mother says 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 improperly. The school district was dismissed as a defendant in earlier proceedings.

The justices today eventually did get around to exploring the merits of in-school interviews of potential child-abuse victims.

Justice Antonin Scalia wondered, only half-seriously, whether faced with hurdles over removing schoolchildren to a private room to be interviewed, they would be forced to sidle up alongside them in school hallways to inquire about abuse.

Justice Stephen G. Breyer asked whether it constituted a “seizure” under the Fourth Amendment when students were confined to class by school officials for misbehavior.

Kubitschek said most interactions between school personnel and students (as opposed to state investigators) would be governed by cases that give school authorities wide disciplinary latitude.

There seemed to be little sympathy on the court for the idea that the 9th Circuit was right on the merits and that such child-abuse interviews would require a search warrant or parental permission.

“It’s hard to swallow that if a child is asked [in circumstances similar to this case] and says she is being abused, that it is unreasonable” for state investigators to take the next steps in an investigation, Justice Sonia Sotomayor said.

A decision in the case is expected by June. On March 23, the court will take up another case involving the police and schools. In J.D.B. v. North Carolina (No. 09-11121), the justices will consider whether a student interviewed at school about suspected neighborhood thefts should have been given a Miranda warning.

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