Protecting Kids: Yes or No to Strip Searches?
by Jim Mason • May 13, 2019
Lawyers like me turn into crystal-ball-gazing soothsayers whenever we have a petition pending in the Supreme Court.
It becomes an obsession. Like uncertain suitors, we interpret every sigh, every smile, and every fan-cloaked furtive glance with hope and trepidation. All in the noble quest to win the fair hand of at least four black-robed coquettes who share the same first name: Justice.
So fair warning, I’m about to let my nerdy Supreme Court–freak flag fly to explain why you should tune into the Supreme Court’s website at 10 a.m. EDT on May 20, 2019.
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But first—a recap.
I.B. was 4 years old when CPS investigator April Woodard came to her preschool to investigate a report of a bruise on the girl’s neck. Neither the investigator nor the preschool notified I.B.’s mom. Seeing no visible bruises consistent with the report, Ms. Woodard nevertheless removed all of I.B.’s clothes and took color photos of I.B.’s private areas with her county-issued cellphone. Finding nothing, Ms. Woodard closed the investigation as unfounded.
I.B.’s mother, Jane Doe, a disabled Army veteran, did not learn about the strip search until a week later when I.B. said, “Mommy, do you remember when the woman with white hair came to my school? I hope she doesn’t come again, because I don’t like it when she takes all my clothes off.”
Jane Doe sued Ms. Woodard in federal court for violating I.B.’s Fourth-Amendment right not to be searched without consent or a court order.
The trial court ruled that Ms. Woodard is immune from paying damages. The court said it was not clearly established that it is wrong for a state official to strip search and photograph a 4-year-old child’s naked body without her mother’s permission—or even knowledge.
The United States Court of Appeals in Denver agreed.
Jane Doe decided to ask the United States Supreme Court to take her case. Her Colorado-based lawyer, Theresa Sidebotham, called me to ask if we’d be willing to file a friend-of-the-court brief, urging the Supremes to take the case.
A few days later in a phone conference with Theresa and Jane Doe’s Supreme Court advocate, Scott Keller of the D.C. law firm Baker Botts, I was persuaded to help.
To the Supremes: Stop! In the Name of Love
Every year, the Supreme Court receives about 8,000 petitions. Of those, it only choses to accept 80 to 90 for review. Because of these long odds, HSLDA routinely turns down requests to file amicus briefs at this stage, preferring to wait until the Court takes a case so we do not needlessly expend our limited resources.
So why did we choose this case?
First, the general Fourth Amendment issue is one we have been working on for a very long time. As we told the Supreme Court:
In the early days of the modern homeschooling movement, we discovered that child-welfare investigators routinely avoid interacting with parents at the beginning of an investigation by going to the child’ps school or pre-school, as was done in this case. But because homeschooled children are at home when they are at school, child-welfare investigators could not routinely avoid parents. This led to many distressing encounters at the front door of homeschooling families’ homes, often simply because they homeschooled at a time when it was not as accepted as it is today.
Second, we have been working on the specific issue of unwarranted strip searches of children since 1994:
From its founding in 1983, HSLDA has assisted thousands of families in protecting those interests during these encounters, often commenced in response to anonymous or malicious hotline tips that later prove to be unfounded. HSLDA was lead counsel in Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), in which the Ninth Circuit held that the nonconsensual entry into the home and subsequent strip search of the children violated the constitutional rights of that homeschooling family, and that both rights were clearly established in 1994.
And, we told the Court, after all these years, we are still working on the strip-search issue on behalf of a homeschooling family in Kentucky:
HSLDA is currently representing a homeschooling mother in Kentucky whose six children were strip searched by a child-welfare investigator. After the investigation was closed as unfounded, we sued the investigator, who was responding to a non-emergency report that the mom had left her children in the car for less than ten minutes the day before while she ran into Cobbler’s Café to buy the kids some muffins on the way to karate practice. Curry v. Kentucky Cabinet for Health and Family Services, 3:17CV-730 (W.D. Ky, filed 2017).
I.B.’s case is of great importance to HSLDA because if it is taken by the Court and resolved in her favor it could put a halt to this horrible, yet routine, practice.
Subjecting children to strip searches in nonconsensual, non-emergency circumstances is almost always more harmful to the children than the harm their caregivers are alleged to have caused. This unacceptable practice of child-welfare investigators remains far too common, even in the face of many federal cases and years of academic research.
Third, one of the reasons the Supreme Court itself gives for why a case is important enough to be granted one of those coveted 90 slots is when there is a “split in the circuits.” In plain English, there are 12 circuit courts of appeals dividing the country into geographic regions. When these courts decide the same legal issue, but some say “black” while others say “white,” there is a split in the circuits that can only be resolved by the Supreme Court to ensure uniformity across the land.
Four circuit courts have said that CPS investigators may be held liable for damages when they strip search a child in violation of the Fourth Amendment, including the Ninth Circuit in HSLDA’s Calabretta case. Two have said they may not be held liable. And some, like the circuit court in Denver, just can’t decide.
This split bodes well.
Another factor that Supreme Court nerds know helps a case get taken is that the counsel of record is known to the Court. I.B.’s Supreme Court advocate, Scott Keller, is the former solicitor general of the State of Texas. He has been counsel of record on 80 Supreme Court briefs and has argued 11 cases before the Court.
The Court trusts lawyers like Scott not to waste its time with frivolous petitions.
Come on in. The water’s fine!
While most petitions do not get amici support at this stage, when a case does get that support it really helps. Amici file their briefs 30 days after the petition asking the Court to take the case has been filed. I.B.’s case attracted seven amicus briefs, including ours.
But the number, while impressive, is less important than who filed. One of the more prominent briefs was filed on behalf of “Cross-Ideological Groups Dedicated to Ensuring Official Accountability.” Included in the 14 groups were Alliance Defending Freedom (where my former boss, Michael P. Farris, is now CEO), the ACLU, and the NAACP. The Court tends to pay attention when highly regarded, ideologically diverse organizations agree on an issue.
All the cool kids know . . .
Lawyers who win their cases at the court of appeals often choose not to file a brief in opposition to a cert petition at the Supreme Court. They know the odds are heavily in their favor that the Court will not take the case anyway. They reason that dignifying a petition by filing an opposition gives the petition too much credibility. And if the Court is interested in the case, it will order them to file an opposition, so they really lose little by disdainfully ignoring a petition.
In I.B.’s case, the CPS investigator’s lawyer did not play this game but filed an opposition, suggesting that even he thinks there’s a good chance the Court will take the case.
. . . SCOTUSblog.com Rocks!
Finally, if you want to feast on all things Supreme Court, SCOTUSblog (Supreme Court of the United States blog&mdahs;a news site not affiliated with the Court) is a lavish smorgasbord of news, nerdy analysis, statistics, videos, tips, and—relevant to our discussion—the home of Petitions of the Week.
That’s right: I.B.’s petition was selected by SCOTUSblog as one of three petitions of the week on April 19, 2019. These respected Supreme Court aficionados think I.B.’s petition has a legit shot.
I.B.’s petition has been put on the Supreme Court’s schedule for consideration at its May 16, 2019 conference. One of three things can happen at that conference. The justices could deny the petition. But if at least four of the nine justices want to hear the case, they will grant the petition and order full briefing on the merits. Or, they could set it over for another conference if they want to think about it longer.
Whatever the justices decide, the Court will post an order on its website at 10 a.m. ET on Monday, May 20, 2019, which is where I’ll be, constantly hitting refresh until the order appears.
I hope to see you there too.