Children’s Rights should include the Constitution’s #4

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It had begun as an ordinary school day in Bend, Ore. for a nine-year-old girl I’ll call Sharon. But in the afternoon, she suddenly was removed from her classroom by school officials and escorted to another room in the school where she was met by two men, one of them a uniformed deputy sheriff carrying a gun.

In an affidavit and during a deposition in connection with a lawsuit she and her mother filed, Sharon told of how, for two hours, she was interrogated relentlessly. When she did not give the men the answers they wanted to hear. She was too scared to leave the room, too scared even to ask for a glass of water. She realized that the only way out was to lie.

Had Sharon been suspected of committing a crime, no one could do this to her without what is known in law as “probable cause.”  But, of course, Sharon was not a criminal. On the contrary, the two men thought that maybe Sharon had been sexually abused, and this seemed to them the most expedient way to find out.

So with no probable cause and no permission from any court, one man questioned Sharon about the most intimate aspects of her life, while the other – the man with the gun – watched.

This botched interrogation led only to lies and confusion. As the Ninth Circuit Court of Appeals makes clear in its excellent decision in the case, it set off a cascade of error that caused even more trauma to Sharon including a strip search, a highly traumatic medical examination and several weeks consigned to Oregon’s chaotic system of foster care. 

The family sued. And on March 1, their case, Camreta v, Greene, will become the first major case involving child protective services in more than 21 years to be argued before the U.S. Supreme Court.

The violation of Sharon’s right to be free from unreasonable search and seizure has brought together the Southern Poverty Law Center on the left and the Family Research Council on the right. And the Battered Women’s Resource Center and the American Coalition for Fathers and Children. And National Advocates for Pregnant Women and the Eagle Forum and the Clinical Social Work Association and the Pacific Justice Institute.

They are among the 70 organizations and experts who have signed on to 18 “friend of the court” briefs supporting Sharon and her family. What all these organizations are seeking is simply a guarantee that innocent children will have the same constitutional rights as suspected criminals.

As the attorney for Sharon and her family (and volunteer vice president of my organization) Carolyn Kubitschek, has written: “The idea that persons suspected of wrongdoing should have more rights to freedom and privacy than persons whom the police know to be completely innocent is contrary to the United States Constitution.”

The Ninth U.S. Circuit Court of Appeals agreed. That court refused to be seduced by the party line CPS agencies use whenever they want to trample on civil liberties: If you support civil liberties you’re putting parents rights ahead of children’s rights; only if you cast aside those liberties are you somehow standing up for children.

The Court of Appeals recognized that Fourth Amendment rights are a vital protection for the children themselves.

Citing a law review article on the topic, the decision notes that:

Of the 3.6 million investigations conducted by state and local agencies in 2006, only about a quarter concluded that the children were indeed victims of abuse. … This discrepancy creates the risk that “in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help.”

So it’s no wonder that among the scores of organizations supporting Sharon and her family are groups like the  Juvenile Law CenterCenter for Children’s Advocacy at the University of Connecticut, Penn State University’s Children’s Advocacy Clinic,  Lawyers for Children, the Columbia Law School Child Advocacy ClinicLoyola Civitas ChildLaw Center and others – including the Juvenile Rights Project from the family’s home state of Oregon – groups that represent children in individual child welfare cases and/or impact litigation. They know that standing up for full Fourth Amendment rights means standing up for children’s rights.

The Court of Appeals ruling did not ban police officers from schools, nor did it ban questioning children away from or without the permission of their parents. The court ruled only that before someone believed to be a victim of child abuse could be interrogated at school, any one of these conditions must be present:

-A parent has given permission.

-Authorities have received a court order.

-The danger is so great that there is no time to get a court order – in which case authorities are free to act without one.

This already is how it’s done in many states, none of which reports the sky having fallen as a result. But authorities in Oregon object to even these minimal checks and balances. They want the unlimited right to interrogate children at school whenever they want for as long as they want based on no more than – and these are their own words - “speculation and hearsay.”

The Court of Appeals was right. Children never should be traumatized based on mere “speculation and hearsay.”

On one point those who support this unlimited state power are right. In one of their briefs they write, “children have a right and a compelling interest to be safe from abuse and neglect.”

Indeed they do.

-Children have a right to be safe from the abuse of needless two-hour interrogations about the most intimate details of their lives overseen by armed police officers.

-Children have a right to be safe from the abuse of needlessly being torn from their mothers and consigned for several weeks to the chaos of foster care. 

-Children have a right to be safe from strip searches and medical exams which, in any other context, would in themselves be a form of sexual abuse.

-And children have a right to at least as much Fourth Amendment protection as  accused criminals.

Richard Wexler is Executive Director of the National Coalition for Child Protection Reform. NCCPR has created a special website with resources and information about this case: www.camretavgreene.info