Supreme Court Mulls Rules for Child Abuse Interviews on School Grounds

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The U.S. Supreme Court heard oral arguments today in the first of two cases this month about how state officials can interact with youths on school grounds, but it was a separate legal issue that dominated the discussion. 

Camreta v. Greene and Alford v Greene, which were combined, both involve a young girl identified as “S.G.”, who was nine years old when she was interviewed at length by a child protection worker – while an armed police officer sat silently in the room -- about alleged abuse by her father.

The court will hear arguments in another school-related case, J.D.B. v North Carolina, on March 23.

At issue in the Greene cases is the girl’s Fourth Amendment right against unreasonable seizure. Lawyers for S.G. persuaded the Ninth U.S. Circuit Court of Appeals to rule that “the decision to seize and interrogate S.G. in the absence of a warrant, a court order, exigent circumstances, or parental consent, was unconstitutional.”

However, the Ninth Circuit also determined that the petitioners in the cases – Department of Human Services investigator Bob Camreta and deputy sheriff James Alford – had qualified immunity because the violation of rights did not defy “clearly established” law.

The oral arguments largely became a referendum on whether it was appropriate for the high court to make a ruling in a case where neither side had a direct interest in the outcome. The petitioners have received qualified immunity, and the respondent, Justice Antonin Scalia said, “doesn’t care what happens. She’s moved, she is 17 years old.”

Oregon Attorney General John Kroger made an argument that S.G. has a lawsuit against Deschutes County (Ore.), which has been held in abeyance pending the outcome of the court’s decision here.

S.G.’s lawyer, Carolyn Kubitschek, immediately conceded that there was “no controversy” for S.G., and that the decision in this case would not impact the lawsuit against Deschutes County.

“Then why are you here?” Chief Justice John Roberts shot back.

“We’re not here voluntarily,” Kubitschek replied to laughter from the audience and justices.

The justices eventually turned to the Fourth Amendment issue during Kubitschek’s argument, and their questions indicated some skepticism about how to provide clarity on how non-school officials should proceed in child welfare cases.

Asked what she would recommend the court do, Kubitschek said that it should be established that a “long interview” with a child should be considered “presumptively unconstitutional” without a warrant, court order or exigent circumstances.

That prompted several questions about how length could matter, when the workers would have to get court approval for the interview before it began?

“So a child protection worker passing in the hall” could ask a child about abuse, “and that’s okay?” Scalia asked. “But a long interview is not?”

Another concern expressed by justices was over what interrogations might constitute a seizure, and which would not. Both parties in the Greene cases conceded that a seizure occurred, but Kubitschek was peppered with hypothetical examples by Justices Stephen Breyer and Scalia about different combinations of people who might ask about abuse: a nurse employed by the school, a nurse who was employed by someone else but serviced the school, a child protective services investigator who was not accompanied by police.

“We can’t adopt a rule when we don’t know what we’re talking about,” Scalia said.

"I was surprised," said Kubitschek of the justices' interest in the defining aspects of seizure. "Because both sides had conceded it I thought it was kind of off the table, but it obviously was not, it was very much on the justices' minds."

The Greene cases drew a slew of amicus briefs on both sides. The Obama administration, along with 40 states and the National Association of State Social Workers, filed on behalf of Oregon.

The administration took the view that, regardless of who the state official was, the ends justified the means when it comes to interviewing children on school grounds about abuse in the home.

“Particularly when balanced against the importance of investigating child abuse and the impossibility of doing so if probable cause or parental consent are required, the severity of the interference with individual liberty of a reasonable in-school interview is not great,” said the administration’s brief, written by Acting Solicitor General Neal Katyal.

Since public schools retain custodial authority over children during the school day, any liberty restriction imposed by an interview within the school during the day is “at most, minimal,” said the administration’s brief.

The brief continues: “Though the interview may require the child (in order to protect her privacy) to go to a special room, the interview does nothing to change the pre-existing restraints on the child’s freedom that are imposed by the school. Those restraints, which are ancillary to the interview itself, do not factor into the Fourth Amendment calculus.”

More than a dozen organizations filed briefs in behalf of S.G., including such unlikely bedfellows as Eagle Forum Educational & Legal Defense Fund and Juvenile Law Center.

The court is scheduled to hear oral arguments in J.D.B. v North Carolina in three weeks. In that case, which involves a disabled teen who was interrogated by police at school without being advised of his rights, the court will focus on the question of what constitutes being “in custody” on school grounds.