Schools must review practices on child abuse interviews of students
School officials tend to defer to law enforcement and social workers who are investigating possible child abuse and wanting to interview students on campus. But a recent decision by the U.S. Court of Appeals for the Ninth Circuit means school districts must take a fresh look at how to respond to these requests.
On March 1, 2010, the Ninth Circuit declined to reconsider its December 10, 2009 ruling in Greene v. Camreta. In that case, the court had found that an interview of a child at an Oregon school about possible abuse by her father violated her Fourth Amendment right to be free from an unreasonable “seizure.” The decision has generated concerns, and the Oregon Department of Justice petitioned the court to reconsider. With the denial of the petition, school districts, law enforcement agencies, and child protective services (CPS) officials in Ninth Circuit states must ensure that their practices conform to the ruling, even if the Oregon Department of Justice decides to ask the U.S. Supreme Court to hear the case.
[UPDATE: On October 12, 2010, the U.S. Supreme Court granted review in the case. In the meantime, the decision still is the law in the states comprising the Ninth Circuit.]
The case
In February 2003, a CPS caseworker accompanied by a sheriff’s deputy arrived at an elementary school in Oregon’s Bend LaPine School District asking to interview a nine-year-old girl. He did not have a warrant. A counselor went to the girl’s class, told her someone wanted to speak with her, took her to a private office, and left her with the caseworker and the deputy for what became a two-hour interview.
The ruling
On appeal, the Ninth Circuit found that the seizure of the student in this case did not fall under a “special needs” exception to the Fourth Amendment’s requirements, because such an exception would only apply when there is no “law enforcement purpose” to the interview and little or no entanglement with law enforcement. The court cited the presence of the armed, uniformed deputy at the interview, the ongoing criminal investigation of the girl’s father, and the close relationship in general between CPS workers and law enforcement under Oregon law. The appeals court did find, however, that the caseworker and the deputy were entitled to qualified immunity from the lawsuit because, until this decision, the law was unclear.
What was not decided
Because a court generally considers only the case before it, and because some questions in the case were not raised in the appeal, here are three things the Ninth Circuit did not rule on:
- When an interview constitutes a “seizure.” While all the circumstances are relevant, the district court in Greene found that the key was whether or not a reasonable student would believe she was free to leave the interview. The court questioned whether any reasonable nine-year old in that interview would have thought so. This issue was not appealed.
- When a school district or school personnel could be liable. The U.S. district court’s dismissal of the claims against the district was not appealed, and the claims against the counselor depended on the district’s liability because she was sued in her official capacity.
- What if only a CPS caseworker, unaccompanied by law enforcement, asks to interview the student. The court specifically said this case did not require it to address an interview with no direct "law enforcement purpose" and no law enforcement involvement.
Implications
As California’s Contra Costa Times reported in February, Greene has generated a range of reactions. Some observers, especially in law enforcement, read it as a narrow, fact-specific decision and believe some adjustments to interview practices should help ensure future interviews are clearly consensual and therefore not “seizures” under the Fourth Amendment. In Washington, a January 7, 2010 state Children’s Administration memo and accompanying Washington Association of Prosecuting Attorneys (WAPA) guidelines to law enforcement emphasize this approach. According to CPS Program Manager Colette McCully, a policy roll-out in April will update Chapter 2000 of the Department of Social and Health Services (DHSH) Practice and Procedures Guide (see section 2331).
Other observers have been more cautious about what school districts must do to avoid Fourth Amendment problems. Some of the judgment calls involve:
- Requiring law enforcement to produce a warrant or court order, obtain a parent’s permission, or declare that “exigent circumstances” justify the interview.
- Deciding whether and when to allow consensual interviews of student without warrant, parental permission, or exigent circumstances.
- Determining the role for school personnel in helping to ensure an interview is consensual and in documenting the circumstances of the interview.
- Responding to an interview request by a CPS caseworker without law enforcement present.
Next steps
School districts should:
- Review and update their policies and practices on interviews of students by law enforcement and child protective services about possible child abuse.
- Ensure school personnel are up to date on new requirements and provided any needed tools—some districts and education associations have developed forms to present to those requesting an interview, decision-making flow charts for site administrators, or in-services.
- Not just defer to law enforcement personnel or assume they necessarily are informed of Greene and its implications.
- Attempt to meet with local law enforcement and CPS officials to work through these issues in advance.
Related issues and reminders
- The mandatory reporting obligations of school employees are unchanged. The Ninth Circuit specifically noted that nothing in its Greene decision would prevent a teacher from discussing suspected abuse with a child and then relaying information to CPS. The Washington state Children’s Administration resources on mandatory reporting are here.
- The Greene decision also presents an opportunity to review overall district policy and practices as to law enforcement interviews of students. The Greene decision concerned an investigation of a parent, not an interview where the student was suspected of any wrongdoing.
For more information or assistance
Tom Hutton
(former senior staff attorney, National School Boards Association)
206.462.6782
teh@pattersonbuchanan.com
Charles Leitch
(former prosecutor, multiple jurisdictions)
206.462.6705
cpl@pattersonbuchanan.com
Yasmeen Abdullah
(former prosecutor, Thurston County)
206.462.6772
yma@pattersonbuchanan.com
Paul Kevin
(former prosecutor, City of Wenatchee)
206.462.6714
pek@pattersonbuchanan.com
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