Supreme Court Tosses Child Welfare Fourth Amendment Case

Nearly a decade ago, a state child protective services worker and a county deputy sheriff interviewed then 9-year-old S.G. at her Oregon elementary school about allegations that her father had sexually abused her. They did not have a warrant or parental consent to conduct the interview. S.G. eventually stated that she had been abused. Her father stood trial for that abuse, but the jury failed to reach a verdict and the charges were later dismissed.

S.G.’s mother subsequently sued on S.G.’s behalf for damages under 42 U.S.C. §1983, alleging that the in-school interview breached the Fourth Amendment ’s proscription on unreasonable seizures. The District Court granted summary judgment to the officials and the Ninth Circuit affirmed.

The Court of Appeals first ruled that seizing S.G. absent a warrant, court order, parental consent, or exigent circumstances violated the Constitution. But the court further held that the officials were entitled to qualified immunity from damages liability because no clearly established law had warned them of the illegality of their conduct. The court explained that it had chosen to rule on the merits of the constitutional claim so that officials would be on notice that they could not dispense with traditional Fourth Amendment protections in this context.

This blog discussed this issue (but not this case) in an oft-visited 2005 post here.

In a very strange turn of events, the U.S. Supreme Court--which considered an appeal in this case--vacated the Ninth Circuit's decision concerning the applicability of the Fourth Amendment to child welfare "searches and seizures" but upheld qualified immunity for the defendant child protective services worker and county deputy sheriff.

In other words, the Court basically said that regardless of whether or not the Fourth Amendment applies in child welfare searches and seizures. the defendants had qualified immunity and could not be sued for interviewing S.G. without her parent's permission. The Court refused to answer whether or not the Fourth Amendment applies to such interviews. That issue will await another day and another case to be decided by the Supreme Court.

The full decision can be found here.

Harvard's Berkman Center Sells Out to the Man - AGAIN

Once again, Harvard's Berkman Center for Internet and Society has sacrificed the public good for the large corporate interests which fund this so-called "academic research center." Fed at the special interests trough by some of America's most powerful Internet corporations such as AT&T, Google, Microsoft, and AOL, Berkman has been openly hostile to victims of online exploitation and child pornography. (See this blog's Cyber Conflict of Interest - Harvard Law School's Berkman Center Calls Online Threats to Children Overblown)

Not surprisingly, Berkman is at the forefront in criticizing French President Nicolas Sarkozy's effort to impose Internet regulation through the framework of the Group of 8 industrialized countries.

Early next week, G-8 leaders will urge the adoption of measures to protect children from online predators, to strengthen privacy rights and to crack down on digital copyright piracy. This effort is fiercely opposed by some Internet companies and apparently their main academic spokesperson, the not-so-independent Berkman Center.

Before an audience that included top executives of some of the world’s largest Internet companies, including Google, Facebook, Amazon and eBay--all of whom underwrite the Berkman Center--Sarkozy explained: “The universe you represent is not a parallel universe. Nobody should forget that governments are the only legitimate representatives of the will of the people in our democracies. To forget this is to risk democratic chaos and anarchy.”

Yochai Benkler, Berkman Center's faculty co-director, told Finance Minister Christine Lagarde of France that he thought the French approach to online copyright protection was “the wrong way to go.”

“You can make the Internet safe for Lady Gaga or Justin Bieber, or you can make it safe for the next Skype or YouTube,” he said, asking her to relay that message to the G-8 leaders in Deauville.

Making the Internet "safe" for Skype or YouTube also means maintaining an unregulated and perversely open Internet where child molesters thrive and child sex abuse images--and increasingly movies--are widely available with little impunity for the perpetrators and consumers of such material. ISPs are free to delete logs and records of illegal activity, Facebook and other online content providers are immune from liability for assembling limitless archives of child pornography, and cutting edge technology like Google Hello is employed to facilitate the online exploitation of children.

France has gone further than many other Western countries in pushing for what Mr. Sarkozy has called a “civilized Internet.” Among his initiatives are a so-called three-strikes law that threatens persistent digital pirates with the suspension of their Internet connections. Another new French law authorizes the government to filter out Web sites containing illegal content like child pornography.

The G-8 communiqué, which is still being finalized by the G-8 leaders’ sherpas, or policy emissaries, is not expected to contain specific prescriptions like these. Instead, it will include broad pledges to deal with privacy, piracy and child protection, the people with knowledge of the talks said.

Berkman's presumed objection to such inherently broad and oblique international policy statements perhaps says the most about its true motives; a world in which its rich and powerful patrons can continue to act with impunity, free from regulation and the scrutiny that only democratically elected governments can provide.

Berkman, whose motto is "We seek to be an honest broker in the conversations about the future of the Internet and related technologies" is truly a gilded fox guarding a big and powerful chicken coop. Berkman underwriter Eric E. Schmidt, the executive chairman of Google, echoed his apparent lackey, Berkman's Yochai Benkler, when he argued that technology, rather than regulation, could take care of many of the challenges facing the Internet: “Before we decide there is a regulatory solution, let’s ask if there’s a technological solution,” Schmidt said. “We will move faster than any of these governments, let alone all of them together.”

Shame on you Berkman and all the esteemed academics who feed at your richly stocked table, including apparently the entire oligarchy of the Harvard Law, Business and Divinity schools listed here.

More on this issue can be found in the New York Times here.

Second Circuit Nixes Student Newspaper's Sex Ed Cartoon

In late December 2004 or early January 2005, the faculty adviser of the Ithaca High School newspaper, The Tattler, excised a cartoon and article written by a former IHS student entitled: “Alumni Advice: Sex is fun!” The cartoon depicted a doorway with the phrase “Health 101” written over the door. Near the doorway, a teacher pointed to a blackboard that contained eight drawings of stick figures in various sexual positions with the phrase “Test on Monday” written on the blackboard underneath the drawings.

In the February 2005 issue of the newspaper, The Tattler editors sought to print the same stick-figure cartoon that was previously rejected. This time, the editors proposed that the cartoon accompany a more serious article entitled: “How is Sex Being Taught In Our Health Class?” Once again, the faculty adviser refused to allow the cartoon to be published in the newspaper. However, she did permit the accompanying article (without the cartoon) to appear in the February issue.

The student editors sued claiming that: (1) the school district unlawfully required them to submit articles to a faculty advisor before they could be published; (2) the school district unlawfully prohibited the publication of a sexually explicit stick-figure cartoon in the February 2005 issue of The Tattler; and (3) the school district unlawfully prohibited on-campus distribution of an independent student newspaper, The March Issue (which was newly created by The Tattler’s editors and received no subsidy from the school), containing the same sexually explicit cartoon.

The editors sought damages for these alleged violations of their constitutional rights. They further sought a declaratory judgment that the district's “Guidelines for The Tattler Advisor and Editors” (which, among other things, included the requirement that the editors submit potential articles to a faculty adviser for review) were unconstitutional, as well as an injunction preventing defendants from adopting and implementing the Guidelines.

On March 23, 2009, the District Court granted partial summary judgment in favor of school district. In its Memorandum Decision and Order, the District Court held that The Tattler qualified as a “limited public forum,” and, therefore, that its contents were subject to “reasonable and viewpoint neutral” restrictions. Next, the Court held that pursuant to case law, the district's refusal to publish a sexually explicit cartoon in The Tattler was
reasonable and viewpoint-neutral because the cartoon was lewd and conflicted with the school’s legitimate pedagogical concerns. Third, the Court held that, pursuant to Tinker, 393 U.S. at 506, the district's refusal to distribute The March Issue was reasonable and viewpoint-neutral because distribution of the cartoon would materially and substantially disrupt the classwork and discipline of the school.

An appeal to the Second Circuit Court of Appeals followed.

In a short but significant decision, the Court found that the drawings of stick figures in sexual positions clearly qualify as “lewd”—that is, “inciting to sensual desire or imagination.” Accordingly, the school district acted reasonably in preventing the distribution of The March Issue at the high school. In addition, the Court held that the school district lawfully prohibited the publication of a sexually-explicit cartoon in The Tattler pursuant to the standards for regulation of speech set forth in Bethel School District Number 403 v. Fraser, 478 U.S. 675, 683 (1986), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988).

Finally, the Court concluded that the school district lawfully prohibited the on-campus distribution of a sexually-explicit cartoon in the independent student newspaper The March Issue, pursuant to Fraser; and that the question of whether the school district's prohibition of the on-campus distribution of The March Issue was lawful under Tinker is moot.

The interesting thing about this decision is how rapidly this body of law is becoming irrelevant. With blogs and Facebook and Tumblr increasingly occupying the majority of many high school students' time, who is even reading the school newspaper anymore? Considering the ubiquitous nature of internet pornography, sexting and other graphic displays, could these stick figure cartoons really inspire a breakdown in the educational environment?

The decision, Ochshorn v. Ithaca City School District, can be read in full here.

Lesson 1 for Presidential Candidates: No daycare for sex offenders

The Minneapolis City Pages' reported yesterday that presidential candidate Tim Pawlenty pardoned sex offender Jeremy Giefer in October 2008 so his wife could open a day care center in their home.

This is the same home where Giefer was having sex with his daughter for six years prior to his pardon. He would often make his daughter have sex with him or perform oral sex on him as a favor before he would give her permission to do things. He put her on birth control when she was 15 years old so that she wouldn't get pregnant when he raped her without a condom. The abuse started when she was 9 years old.

This is the same wife who Giefer was convicted of raping in 1994 when she was 14 years old. (They later married).

This is the same daughter Giefer conceived through the statutory rape of a 14 year old girl.

Pawlenty's so-called "extraordinary pardon" was extraordinary in many ways.

Message to campaign staff: review Willie Horton ad, take two aspirins and call me in the morning.

At least Horton got a life sentence. Giefer only served 45 days.

Facebook - 7.5 MILLION users under age 13

According to newly released figures from Consumer Reports, an estimated 7.5 million Facebook users are children under the age of 13, out of the 20 million or so minors who use Facebook each year. Also among this group of minors using Facebook, more than 5 million were 10 and under. A Consumer Reports survey found that their accounts were largely unsupervised by their parents, exposing them to malware or serious threats such as predators or bullies.

Facebook requires users to be at least 13 years of age, according to their terms of service.Facebook warns children under the age 13 against registration. Unfortunately, it is way too easy for kids to create a Facebook account simply by entering in a fake birthday - it's the site's only screening process to check a user's age. Facebook does not require any formal identification to sign up.

Tough Talking Prosecutors Betray Girl Bullied to Death

The case involving the death Phoebe Prince drew wide attention when tough talking prosecutors brought felony charges against six students at South Hadley Massachusetts High School, saying that they had tormented Phoebe, a newly arrived Irish immigrant, after she briefly dated the two male defendants.

Now those same prosecutors have apparently caved in their effort to hold those accountable for Phoebe's death. Last week, criminal charges against students in the bullying of 15-year-old Phoebe, who hanged herself last year, were largely resolved when three former students were placed on probation and a statutory rape charge against another was dropped. If they satisfy their probation, the charges will be dismissed and they will not have criminal records.

According to the regional district attorney, David Sullivan, the defendants “have accepted responsibility for their actions and admitted that they engaged in criminal conduct toward Phoebe Prince in the weeks, days and hours before she took her life.”

* * * * BIG DEAL* * * * 

Accepting responsibility without consequences = utter and complete prosecutorial failure.

In the most moronic statement--and a fitting epitaph to this entire miscarriage of justice--Sullivan said that the prosecution had sent an important message: “these cases signify that bullying and harassment will not be tolerated in our schools.”

Huh? How is a few month's probation and a clean record an "important message" for what is essentially incitement to murder? Perhaps children in South Hadley don't appreciate right from wrong in this new digital age. Unfortunately Mr. Sullvan's "intolerance" does nothing to advance either responsibility or justice.

Gay Civil Unionists and Religious Adoption Agencies Clash

The AP reported here that "gay rights groups are urging Illinois lawmakers not to let Catholic adoption agencies turn away gay couples," arguing "agencies that get state money to care for children should not be allowed to reject anyone who would be a good parent." When Illinois' gay civil unions law takes effect next month, Catholic adoption agencies "may face lawsuits or lose state funding" if they turn away gay couples. Groups including The Civil Rights Agenda and Equality Illinois are pushing for a law allowing "them to refuse to place children with gay couples on religious grounds."

Highlights of the CAPTA Reauthorization Act of 2010

The Child Abuse Prevention and Treatment Act (CAPTA) Reauthorization Act of 2010 (S.3817) was signed into law on December 20, 2010, as Public Law 111-320.

The act leaves funding for discretionary grants (research, training, technical assistance, information collection, and program innovations) and for basic State grants at the old authorized level of $120 million in FY 2010 and at "such sums as may be necessary" for FY 2011 through 2015. A new funding section regarding allotments of the basic State grant funds for improving child protective services establishes a minimum State grant of $50,000, with additional distribution based on child population. For the Community-Based Prevention Grants, the act extends the existing funding level of $80 million in FY 2010 and "such sums" for FY 2011 through 2015. 

The act authorizes grants to public or private agencies and organizations to develop or expand effective collaborations between child protective service entities and domestic violence service entities to improve collaborative investigation and intervention procedures; provide for the safety of the nonabusing parent and children; and provide services to children exposed to domestic violence that also support the care-giving role of the nonabusing parent.

The act includes provisions for several new studies and reports to Congress on such topics as:

• Shaken baby syndrome


• Efforts to coordinate different organizations' programs and activities related to child abuse and neglect


• The effectiveness of citizen review panels in examining State and local child protection agencies


• How provisions for immunity from prosecution facilitate and inhibit individuals' reporting of child abuse or neglect

The CAPTA Reauthorization impacts child welfare in a number of other areas by:

• Encouraging family participation in case planning and placement


• Encouraging former child abuse victims to serve on citizen review panels and Children's Justice Act task forces


• Requiring that newborns diagnosed with fetal alcohol spectrum syndrome receive appropriate referrals to CPS by health-care providers


• Not requiring reunification of a child with a parent if the parent commits sexual abuse against the child or another child of the parent or if the parent is required to register with a sex offender registry


• Mandating criminal record checks for other adults living in homes of prospective foster and adoptive parents


• Requiring enhanced data reporting by States


• Reauthorizing the Adoption Opportunities Program and the Abandoned Infants Assistance Act

The full-text of the legislation can be found here.

Zero Tolerance = Zero Results

A recently published research brief by Child Trends, Multiple Responses, Promising Results: Evidence-Based, Nonpunitive Alternatives To Zero Tolerance, suggests that zero tolerance school discipline policies have not been proven effective by research and may have negative effects, making students more likely to drop out and less likely to graduate on time. Instead, the brief recommends the use of nonpunitive disciplinary action, such as behavior interventions, social skills classes, and character education.

Unfortunately, no one told law student Jason Fuller who just wrote a law review article in the Akron Law Review entitled Corporal Punishment and Child Development which argues that "lawmakers and child welfare workers should pay more attention to the research suggesting that physical discipline can be helpful."

Fuller links everything from the "rise in juvenile assaults and youth homicides" and the oft bemoaned "problems and inadequacies in today's kids" to the "tremendous decrease of spanking during the past fifty years."

Fuller's article is apparently what passes for "scholarship" at an institution which was recently ranked 127 out of 143 law schools. (As a University of Michigan alum I also note that he's an Ohio State grad which more than anything probably explains most of this article).

Fuller goes on to posit that although "spanking is a primitive discipline method. . . a child’s mind is also primitive. . . . kids learn from the tangible to the intangible—from the concrete to the abstract. It is during the tangible, concrete stages when physical discipline seems to be the most helpful."

He concludes:

In this light, perhaps it makes sense why youth dysfunction is increasing at the same time that corporal punishment is decreasing. To function in society, people must learn to control themselves enough to not break the law or harm other people. While not every child learns this the same way, a number of them seem to learn it through at least some corporal discipline—a tangible tool that can complement their primitive learning stages.

Fuller's polemic takes on everyone from the Swedes (who banned corporeal punishment in 1928) to the "so-called treaty" known as the U.N. Convention on the Rights of the Child and the American Academy of Pediatrics warning ominously that "it's happening in America too."

That "it" is the apparently permissive attitude which has led to the outlawing of corporal discipline in "schools, foster homes, public institutions and daycare facilities through the country." Worst of all, "social workers are even being trained to condemn it when on private home visits."!!

Bemoaning the fact that America looks more like Sweden than Singapore where "schoolteachers corporally punish
unruly students, parents cane their children, and the government whips adults as criminal punishment," Fuller explains "it is not a question of whether a parent spanks, but how she spanks. Families with the worst outcomes tend to spank inconsistently or in frustration.Families with the best outcomes (Authoritative families) tend to spank constructively, when necessary to enforce their high demands."

He concludes

All children have a right to learn in a way they can understand. But if we ban spanking, we risk robbing some of them of the fundamental human right to learn and mature normally.

Given the dearth of law jobs out there, Mr. Fuller is perhaps best suited for employment in a public school system in the Commonwealth of Pennsylvania. Either that or District Attorney of Wyoming County or a judge in Luzerne County.

In other words, Go East Young Man and Grow Up with the Country.

Read the full ChildTrends report here.

Fuller's screed can be found here.