Without a Warrant: Greene v. Camreta

In December of 2009, the Court of Appeals for the 9th Circuit ruled that a social worker and police officer violated a student’s and her parents’ 4th Amendment rights by interviewing the student at school without a warrant, probable cause, parental consent, or exigent circumstances. For more detailed information about the case, please see our recent Legal Alert.
This ruling presents particular concerns for Districts and school officials. Can a social worker without a law enforcement official interview a student on campus without providing a warrant, having probable cause, exigent circumstances or parental consent? What are the school official’s specific obligations, if any, under the ruling?
Fortunately, the Court’s holding does not expressly place upon school officials an obligation to ensure the legality of a potential child abuse investigation by law enforcement. However, schools are charged with the protection of their students under the doctrine of in loco parentis. Therefore, schools do have a distinct interest in taking reasonable steps to ensure the rights of their students are not obviously violated. Most likely, a decision about whether or not to allow an interview of a student by a police official, and even a social worker, would be justified if a school official reasonably relied on the investigator’s assurances that the interview was proper and legally sufficient.
In addition, the Court of Appeals relied heavily on the fact that Oregon statutory law places obligations on both law enforcement and social workers to cooperate and participate in investigations of child abuse and neglect. This entanglement, coupled with the presence of the police officer at the interview, implicated the student’s and parents’ 4th Amendment rights. The court did not indicate whether the interview would have been permissible if the social worker had interviewed the student alone. Unlike Oregon law, California law does not directly involve law enforcement agencies in an investigation by Child Protective Services. However, social workers are mandatory reporters under California law, and must report suspicions of child abuse and neglect to the appropriate law enforcement agencies. Furthermore, some California social workers have expressed the opinion that they act in a law enforcement capacity when conducting child abuse investigations. Until a case is brought before the court, school districts should consider treating social workers investigating suspicions of child abuse and neglect the same as other law enforcement officials.
The California School Board Association (“CSBA”) has created a sample policy (BP5145.11), which can be accessed by school administrators through the CSBA website (www.csba.org). This policy takes a conservative approach and recommends schools have law enforcement officials fill out a form verifying their identity and the legitimacy of the interview. However, some attorneys assert that school officials are justified in relying on representations by law enforcement officials that the interview is proper. Districts must decide which approach best suits their needs and the interests of their students. The best protection for Districts is to adopt reasonable policies and ensure school staff know about the policy and consistently follow it.
There have already been indications that this ruling will be appealed to the United States Supreme Court. KMTG will continue to monitor the status of the case and provide updates on any important legal changes.

By Jessica Carriger