Ethnic Cleansing in America

Americans don’t have to travel to Bosnia, South Africa or the West Bank to appreciate the legacy of ethnic cleansing, apartheid or aboriginal territorial disputes. Those injustices can be found right here at home in New York state. Yesterday, with barely any notice, the United States Supreme Court ruled that land recently purchased by Oneida Indians for economic development on the long recognized Oneida reservation can never again become sovereign Indian land. Invoking high minded but ultimately hollow legal principles like “laches, acquiescence, and impossibility,” the Court found that the national government’s indifference, the great increase in property values, the predominantly non-Indian population now residing in the area, the impracticability and disruptive practical consequences of returning land to Indian control, the burden on the administration of state and local governments and the adverse affect on neighboring land owners justified stripping the few remaining Oneidas of tribal sovereignty over their land. At the founding of the United States, the Oneida's homeland comprised some six million acres in what is now central New York. By 1920, only 32 acres continued to be held by the Oneidas. The Supreme Court’s current justification for “wrongs which occurred during the early years of the Republic” provide little rectitude for a nation dedicated to righting many of the historical wrongs around the world.

Social Workers and the Fourth Amendment

It should come as no surprise that social workers and other child welfare workers are covered by the Fourth Amendment to the United States Constitution. What might be surprising is that the most conservative federal district courts are taking the lead in defining this new and rapidly evolving constitutional mandate, most notably the Tenth Circuit Court of Appeals (covering Wyoming, Utah, Colorado, New Mexico, Oklahoma and Kansas).

Applicable to the states through the Fourteenth Amendment's Due Process Clause, the Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." Because the Amendment focuses on safeguarding persons from unwarranted intrusion, and not on regulating the behavior of particular governmental actors, the prohibition against unreasonable seizures extends to civil, as well as criminal, investigations by the government.

In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), the Tenth Circuit Court of Appeals held that there is no social worker exception to the Fourth Amendment. In Dubbs, eight pre-school children enrolled in the Head Start program were subjected to intrusive physical examinations, including genital examinations and blood tests, on school premises without parental notice or consent.

Also in 2003, the Seventh Circuit Court of Appeals, in Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), held that the strictures of the Fourth Amendment apply to child welfare workers, as well as all other governmental employees. In that case, a private Christian elementary school and a student's parents sued several child welfare caseworkers under the Fourth and Fourteenth Amendments after the caseworkers interviewed a student about corporal punishment without a warrant or the consent of the school or parents.

A Fourth Amendment analysis is based on the totality of the circumstances in determining whether a reasonable person would have believed that he was not free to terminate an encounter with government. Some of the factors considered include:

1) the threatening presence of several officials;
2) the brandishing of a weapon by an official;
3) some physical touching by an official;
4) use of aggressive language or tone of voice indicating that compliance with an official's request is
compulsory;
5) prolonged retention of a person's personal effects;
6) a request to accompany the official to the station;
7) interaction in a nonpublic place or a small, enclosed place;
8) and absence of other members of the public.

In the Tenth Circuit Court of Appeal's most recent decision issued last week, Jones v. Hunt, 2005 WL 1395095 (10th Cir. 2005), the court analyzed a sixteen year old girl's encounter with child welfare social workers "through the eyes of a reasonable sixteen year old" child.

After concluding that the alleged encounter constituted a seizure, the court then reviewed whether the seizure was reasonable which depends on the context in which it took place. With limited exceptions, a search or seizure requires either a warrant or probable cause.

In this case, the court found that the social worker's actions "violated the most minimal standard of which we can conceive." The court held that where no legitimate basis exists for detaining a child, a seizure is plainly unreasonable. The court further found that this standard was clearly established as far back as 1994 when it held, in Doe v. Bagan, 41 F.3d 571 (10th Cir. 1994) that a seizure of a nine year old boy was justified at its inception because a victim of child abuse had identified him as her abuser and a ten minute interview with a social services caseworker was reasonably related in scope to determining Doe's role in the incident.

In a critical footnote in Jones v. Hunt, the court noted that "we do not imply that a social worker investigating allegations of abuse or neglect necessarily requires a warrant, probable cause, or exigent circumstances before questioning a child on public school property. Where a social worker merely conducted an interview of a child at a public school, and thus did not remove the child nor interfere with the sanctity of the private home, we have applied the Terry standard." (a search of a child by a government official is reasonable if "justified at its inception" and "reasonably related in scope to the circumstances which justified the interference in the first place")

The court concluded "it may be that the Terry standard applies even where a social worker removes a child from her parents' custody at a public school following a legitimate investigation into child abuse and neglect."

Should the Fourth Amendment apply to the day to day workings of social workers in child welfare investigations? Do social workers understand and apply this constitutional mandate in your jurisdiction?