NASW Weighs in on Student Strip Search Case

— Heidi Sfiligoj, News Staff

Decisions reached

The U.S. Supreme Court this summer reached a decision in the Safford Unified School District No. 1 v. Redding case, which galvanized national attention.

The Court ruled 8-1 that the strip search of a 13-year-old student violated the constitutional protection against unreasonable search and seizure. School officials subjected Savana Redding, now 19, to a search of her bra and underwear after receiving an uncorroborated tip from another student that she may have an unauthorized ibuprofen in her possession. No drugs were found. While the court held that the strip search violated the Fourth Amendment, they said the search of Redding's backpack and outer garments did not.

NASW and the NASW Arizona Chapter filed a brief in support of Redding on April 1.

"Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution, but because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability," Justice Souter stated in the opinion.

NASW's brief was cited in the majority opinion: "Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. See Brief for National Association of Social Workers et al."

NASW's brief reviewed the social science and policy literature on the emotional trauma to children subjected to strip searches.

In Kutil and Hess v. the West Virginia Department of Human and Health Services, the West Virginia Supreme Court reached a decision in favor of a same-sex couple seeking to stop a judge from removing one of their foster children because they were not a "traditional" family. The couple had expressed interest in adopting the child.

The court granted the couple's petition for a writ of prohibition against the judge who ordered that the 19-month-old girl whom the couple started caring for shortly after her birth be placed in a home with a mother and father as part of a plan toward finalizing an adoption.

NASW filed a brief in that case earlier this year, opposing the 12th Judicial Circuit Court's ruling that it is in the child's best interest to be removed from the care of her foster parents.

"Elevating the Circuit Court's view of a 'traditional' family above all other factors in placement decisions would block optimal placements for children and is inconsistent with the individualized, case-by-case determination that is required by the 'best interests of the child' standard and child welfare policy," the brief stated.

The brief pointed out that the child had formed lasting attachments to her foster parents and that there is a severe shortage of potential adoptive couples in West Virginia.

According to a June 5 article in the West Virginia Record legal journal, the court noted that it was not able to locate any legislatively assigned preference for adoption into a traditional home or any statutory definition of a traditional home for adoption purposes. Additionally, the court said there was nothing that showed the couple was not providing quality care to the child, and that the bonds the girl had forged with her foster parents shouldn't be "trivialized or ignored."

NASW's position on patient confidentiality was supported by a decision of the Supreme Court of Ohio in Roe v. Planned Parenthood Southwest Ohio Region, a case in which the parents of a minor who obtained an abortion sued Planned Parenthood. As part of the lawsuit, they requested access to all of Planned Parenthood's medical records for treatment given to minors, although those patients were not involved in the lawsuit.

The Supreme Court ruled that, under the state laws in effect at the time of their claim, the parents are not entitled to discover confidential child abuse reports or medical records of other minors who were treated at the same clinic.

The court held that a balancing test for the disclosure of confidential medical information set forth in a 1999 Ohio Supreme Court decision, Biddle v. Warren General Hospital, applies only as a defense to the tort of unauthorized disclosure of such records and does not create a right to discover confidential medical records of nonparties in a private lawsuit.

Additionally, the court determined that there is no right to recover punitive damages under a former child abuse reporting law. The court also held that amendments to the child abuse reporting law enacted in December 2008 affect a substantive right and its retroactive application would violate due process.

Last year, NASW and its Ohio chapter joined a brief in the case, urging the Ohio Supreme Court to reject the plaintiff's request to review medical records of non-party minor patients.

The brief argued that disclosure of non-party medical records damages the physician-patient relationship and deters minors from seeking timely and safe medical care; and that minors have a constitutional right to privacy in their medical records that is not overcome by the plaintiff's interest in those records.

Briefs filed

NASW, along with the Arizona Chapter, filed a motion and an amicus brief before the Arizona Supreme Court in Egan v. Hochmuth, a case addressing the custody of a child raised by a lesbian couple. The documents argue that the court of appeals underestimated the harm the child suffered by allowing her relationship with her non-birth mother to be disrupted, and called on the court to reverse the decision by the court of appeals and find that Hochmuth meets the requirements for status as in loco parentis and accordingly is entitled to visitation.

"Preventing such harm to Arizona's children is an issue of statewide concern that will only become more urgent as the number of Arizona families that include an in loco parentis parent continues to grow. For that reason, Amici urge this Court to grant review of this matter and reverse the court of appeals," the brief states.

The brief makes two arguments:

  1. Arizona courts should recognize that a parent-child bond can be established by an adult other than the child's legal parent.
  2. The court should correct the lower court's failure to recognize the severe and enduring harm children are exposed to when an established parent-child bond is disrupted.

NASW also joined a brief with the American Psychological Association in two Supreme Court cases, Graham v. State of Florida and Sullivan v. State of Florida, which challenge life imprisonment without parole for juvenile offenders as a "constitutionally disproportionate sentence."

"Research in developmental psychology and neuroscience — including the research presented to the Court in [Roper v.] Simmons [banning the juvenile death penalty] and additional research conducted since Simmons was decided — confirms and strengthens the conclusion that juveniles, as a group, differ from adults in the salient ways the court identified. Juveniles — including older adolescents — are less able to restrain their impulses and exercise self-control; less capable than adults of considering alternative courses of action and maturely weighing risks and rewards; and less oriented to the future and thus less capable of apprehending the consequences of their often-impulsive actions," the brief states.

The brief makes two arguments:

  1. Research in developmental psychology and neuroscience documents juveniles' greater immaturity, vulnerability and changeability.
  2. Sentencing the juvenile offenders in these cases to die in prison with no opportunity to demonstrate reform is a disproportionate punishment.

NASW's position is based in part on the policy statement, "Juvenile Justice and Delinquency Prevention in Social Work Speaks" (NASW, 8th ed., 2009).

NASW joined more than 50 national medical, public health and child welfare experts and advocates in filing a friend-of-the-court brief with the Texas Court of Criminal Appeals. The brief calls on the court to affirm a lower court decision finding that Texas discriminated against a pregnant woman, Amber Lovill, by incarcerating her because she was pregnant.

Lovill became pregnant while she was on probation for a non-violent crime. She successfully served more than two years of her three-year probation sentence, which included the requirement that she address her drug problem and abstain from drug use. Afterward, she experienced one relapse. Her probation officers departed from normal practice and filed for probation revocation since she was pregnant.

The brief notes that Texas defended its decision to incarcerate Lovill by relying on old stereotypes that suggest inaccurately that pregnancy "makes it difficult to comply with conditions of probation and to maintain the willpower necessary to overcome a drug addiction."

The state defended jailing Lovill in a county facility that offered no drug treatment or specialized health care. They claimed that doing so would "reduce danger to [the] unborn child" and make certain that "her child, unborn child, can be cared for in an environment where we can have some assurance that it is safe."

While the amici did not endorse the non-medical use of drugs, such as alcohol or tobacco, during pregnancy, these experts and advocates concurred that Lovill's incarceration was not justified by medical and scientific research and that it was more dangerous for pregnant women to spend their pregnancy in jail.

The brief also points out that the state's assumptions about pregnancy and methamphetamine use lack scientific basis and are inaccurate with regard to drug treatment. According to research, pregnant women are particularly determined to receive help for their drug problems and there are generally positive outcomes when they do.

The case is Ex Parte Amber Lovill, PD-0401-09. Lawyers on the brief include Cori Harbour of the Harbour Law Firm in El Paso, Texas, and Katherine Jack and Lynn Paltrow of National Advocates for Pregnant Women.