ChildLaw Blog

By now the story of Savana Redding is well known, at least to readers of this blog where we have been discussing this case for almost a year.

After escorting 13-year-old Savana Redding from her middle school classroom to his office, an assistant principal accused her of distributing over-the-counter pain relief pills to fellow students. Savana denied the allegations and agreed to a search of her belongings. Finding nothing, the assistant principal then sent Savana to the school nurse for a strip-search. That search also turned up nothing.

Savana’s mother filed suit against the school district and the staff members who authorized and participated in the investigation alleging that the strip search violated Savana’s Fourth Amendment rights. Claiming qualified immunity, the staff members moved for summary judgment. The District Court granted the motion, finding that there was no Fourth Amendment violation, and the en banc Ninth Circuit reversed.

The case was appealed to United States Supreme Court. As we reported in April, Savana's case wasn't looking very good at oral argument where the mostly male justices reacted skeptically to her claim. Alas we, along with most commentators, were wrong. Last week, a near unanimous Court held that the strip search violated Savana’s Fourth Amendment rights.

The court recognized that for school searches, “the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause.” T.L.O., 469 U. S., at 341. Under the resulting reasonable suspicion standard, a school search “will be permissible … when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id., at 342. The required knowledge component of reasonable suspicion for a school administrator’s evidence search is that it raise a moderate chance of finding evidence of wrongdoing.

The Court found that while there was sufficient suspicion to justify searching Savana’s backpack and outer clothing, the suspected facts pointing to Savana did not indicate that the drugs presented a danger to students or were concealed in her underwear and therefore there was insufficient suspicion to warrant extending the search to her underwear.

The search necessarily exposed Savana's breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. Savana’s subjective expectation of privacy is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation is indicated by the common reaction of other young people similarly searched, whose adolescent vulnerability intensifies the exposure’s patent intrusiveness. Its indignity does not outlaw the search, but it does implicate the rule that “the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’” T.L.O., supra, at 341.

Perhaps the Court best summed up its position as follows:

Here, the content of the suspicion failed to match the degree of intrusion. Because the assistant principal knew that the pills were common pain relievers, he must have known of their nature and limited threat and had no reason to suspect that large amounts were being passed around or that individual students had great quantities. Nor could he have suspected that Savana was hiding common painkillers in her underwear. When suspected facts must support the categorically extreme intrusiveness of a search down to an adolescent’s body, petitioners’ general belief that students hide contraband in their clothing falls short; a reasonable search that extensive calls for suspicion that it will succeed. Nondangerous school contraband does not conjure up the specter of stashes in intimate places, and there is no evidence of such behavior at the school;

In other words, stop acting like power crazed morons. Sometimes a Motrin is just a Motrin.

News Alert: in a surprising decision Supreme Court ruled today that school strip-search of student was unconstitutional - more on this soon

USSC Update - IDEA permits reimbursement for private sped services even though child never attended public school Link

Legislators call for DA's removal after OK pedophile gets 1 year in jail in plea deal for raping a 4 year old girl Link

More on this important topic from the Miami Herald:

A first detailed look at the youngest foster children on mental-health drugs offers a disturbing glimpse into the state's failure to heed a 2005 law -- and its own policies.

Florida child-welfare administrators are largely ignoring a host of rules put in place to protect children from potentially dangerous -- and sometimes unnecessary -- drugs, according to a detailed state review of the records for more than 100 young foster children who are being given powerful psychiatric medications.

Caseworkers under contract with the state Department of Children & Families are failing to comply with almost every benchmark governing the use of psychotropic medication among foster children, according to the DCF report, obtained Tuesday by The Miami Herald.

Recent revelations come only four years after state lawmakers passed legislation to curb the use of mental-health drugs among children in state care. The law requires, among other things, informed consent from a parent or judge, second-party review of doctors' prescriptions for the youngest children, and annual reports to the state Senate.

Among the most troubling findings, child advocates say, is the state's almost complete failure to seek a second opinion from a psychiatrist under contract with DCF before administering mental-health drugs to the youngest children in state care -- younger than age 6.

Front-line social workers, judges and child welfare administrators, how are you addressing this issue in your states?

Editorial "seldom is there a reason not to impose maximum penalties on [child] predators" who scar victims forever Link

Judge Sotomayor's ruling in this recently decided child pornography case might be an issue in her upcoming confirmation hearing. The defendant, Jon David Falso (shown at right), is also the first target in our firm's effort to seek civil damages for victims of child pornography utilizing Masha's Law, the legislation we helped create in 2006. A civil trial is scheduled for February 2010. The defendent's attorney in our case vows a fight to the Supreme Court possibly giving a newly confirmed Justice Sotomayor another chance to consider the case of confessed and convicted child pornographer Jon David Falso.

1st Amendment rights for high school student MySpace parody sites create district court split - 3rd Cir to resolve Link

Case Update: 3rd Cir prevents parent from reading Bible during public school kindergarten favorite book program Link

Arlington county bar director / lawyer caught in child sex sting disbarred by DC COA & will serve 1 year in prison Link

Unlike the Harvard Law School Berkman Center cyber white wash from earlier this year, a recent American Academy of Pediatrics scientific study found that a history of childhood abuse and a provocative online identity increase the risk of Internet exploitation for girls.

The the study's objective was to determine the risk factors for Internet-initiated victimization of female adolescents. The researchers found that abused girls were significantly more likely to have experienced online sexual advances and to have met someone offline. Having been abused and choosing a provocative avatar were significantly and independently associated with online sexual advances, which were, in turn, associated with offline encounters.

Unlike the Berkman Center's politically charged report, which was $pon$ored by industry heavyweights like AOL, LindenLab, and MySpace, the AAP professionals "indicated they have no financial relationships relevant to this article to disclose." This alone should give the Pediatric's study the credibility that Harvard Law School so sorely and blatantly lacks.

An interesting article about the Foreign Corrupt Practices Act [FCPA] made me think about international adoption agencies and their criminal liability under this federal law. According to the article FCPA, which was enacted in 1977, prohibits bribery of foreign officials. The authors offer this sage advice:

In this climate of increased enforcement, it is imperative that firms doing business in foreign markets, both currently and in the future, become familiar with the FCPA. Both the anti-bribery and books-and-records provisions present significant issues for any company doing business abroad.

In general terms, the FCPA's anti-bribery provisions prohibit companies and individuals from making payments -- or offering or promising to pay money or anything of value -- to any foreign official with the purpose of inducing the recipient to misuse his official position by directing business to or maintaining business with the payor. The anti-bribery provisions of the FCPA apply to . . . any citizen, national or resident of the United States; any entity organized under the laws of any state or U.S. territory; U.S. persons who commit acts of bribery outside of the U.S.; . . . and U.S. and foreign agents of any of these persons or entities.

Hmmmmm. This law sounds like it was MADE for the international adoption oligarchy and, in a serious note of caution for all would-be adoptive parents, those unwittingly caught in its grasp. Let's read on:

To create FCPA liability, the purpose of the payment or promise in question must have been to induce a foreign official to misuse his position. Significantly, however, the FCPA does not require the payment to actually succeed in its purpose. Companies and individuals that violate the FCPA's anti-bribery provisions are subject to impositions of fines and orders for forfeiture of assets derived from the corrupt activity.

In addition to fines and asset forfeitures, an individual convicted for violation of the anti-bribery provisions may be sentenced to prison term of up to five years.

Now that should wake you up! One international adoption agency distributed this memo entitled "Gifts for Russia" in which they clearly state (as if anyone was wondering): "These are gifts, not bribes. Gifts are part of the Russian way of doing business. With the gifts, you are recognizing the status of the people you are dealing with, and showing your appreciation for the assistance that they are giving you."

Appreciation for the assistance that they are giving you. Solid words, but sound legal advice?

Just remember, as World Child, Inc. warned clients in their agency-parent Memo of Understanding, "your American dollars are very much in demand!" "We suggest you bring a variety of bills, including approximately twenty bills each of $1s, $5s, $10s, $20s, and $50s. The rest can be $100 dollar bills. Bills that are over ten years old, are very wrinkled, or are torn or written upon, will not be acceptable." Acceptable to who?

According to the article:

Although it is clear that the FCPA prohibits bribing foreign officials or their representatives, some less obvious activities may constitute violations of the FCPA as well. Any company doing business abroad should be aware of the following examples of possible violations of the FCPA, particularly in view of the recent increase in enforcement:

• Excessive gift giving or entertaining foreign officials or their representatives.
  
• Allowing foreign officials or their staff to use company facilities for any purpose other than to demonstrate, promote or explain the services that the company provides.
  
• Employing a consultant or agent that has connections to a foreign government or agency, for the purpose of influencing that government's or agency's decisions.
  
• Passing money through an agent or consultant to a foreign official to obtain business or secure an advantage, including consulting or management contracts, or securing certain action on legislation, regulations, or other government activity.

Now I'm sure readers will let me know whether they've heard of anything even remotely similar to these (ILLEGAL ACTIVITIES) in the routine conduct of the business of international adoption. I suggest that if anything you've read here reminds you of anything you've personally experienced, witnessed or directed, call a lawyer, call the FBI, and post a comment.

And I thought corrupting international adoption with money was bad. Now we've got to worry about criminal liability for BRIBES?

Before you get too unsettled, just remember the timeless words of FOA (friend of adoption) Debbie Spivack, writing on the Focus on Adoption listserve in defense of Jeanne Smith's Reaching Out Thru International Adoption agency which placed Russian girl Masha Allen with a pedophile adoptor: "fees are for services to ensure the integrity of the process and keep corruption away." Thank goodness! That'll make a stunning defense to felony criminal charges. With Spivack as your expert witness, even the most vile international adoption agency should be able to beat this rap.

And with all this in mind, the Foreign CORRUPT Practices Act need not worry anyone, least of all internationally adopting parents with crisp one hundred dollar bills stuffed in their suitcases.