M.D.Tenn.: School nurse’s examination of 6 year old’s vagina without notice to parents was unreasonable as a matter of law

The mother of a 6 year old girl told her school teacher that her daughter had a doctor’s appointment because of a probable urinary tract infection. The school officials took it upon themselves to have the school nurse inspect the girl’s vagina without telling the parents, and this was an unreasonable search with no qualified immunity. Enough case law had developed by the time this happened that school officials were on notice it was unreasonable and excessive. The school’s reliance on “special needs” completely fails. Hearring v. Sliwowski, 2012 U.S. Dist. LEXIS 9578 (M.D. Tenn. January 26, 2012), USMJ R&R overruled:

As to whether, under these decisions, Plaintiff states a Fourth Amendment violation for the search of B.H., the Court concludes that the nature of the privacy interest here, the exposure of a 6 year-old girl’s labia, is far greater than the students’ privacy interests in T.L.O., Safford, Beard and Brannum. The nature of the search was B.H.’s pulling down her pants and underwear as well as the separation of her vaginal area before a nurse and also a school official that resulted in embarrassment and humiliation to B.H. There is proof that this search was without a medical justification or emergency, without parental consent and was contrary to professional and state standards for public school nurses. Based upon these decisions and facts, the Court concludes that Plaintiff states and proves a violation of B.H.’s Fourth Amendment right to be free from such invasive and unjustified searches of her person by a public school nurse.

The Magistrate Judge also cited the “special needs” doctrine as justifying Sliwowski’s search, as a school nurse inquiring about the need for possible medical treatment. (Docket Entry No. 69, Report and Recommendation at 12-13) (Sliwowski “was not trying to prevent an imminent injury when she examined B.H. Instead, Nusre Sliwowski was trying to determine what medical care, if any, B.H. required for her existing medical condition”).

The “special needs” doctrine applies where an important governmental interest justifies excusing the probable cause requirement of the Fourth Amendment, Ferguson v. City of Charleston, 532 U.S. 67, 76 n.7 (2001), or where compliance with Fourth Amendment standards is “impracticable.” Bd. of Educ. of Independent School Dist. No.92 of Pottawatomie County v. Earls, 536 U.S. 822, 829 (2002) (drug testing of middle and high school students). In T.L.O., the Supreme Court recognized that school officials act in loco parentis for school children and “the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause.” 469 U.S. at 341.

In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), the Tenth Circuit considered this special needs doctrine in the context of genital examinations of pre-school students who were subjected to such searches. There, the school employed an agency to conduct health examinations, but the agency had to secure parental permission for such examinations. The district court ruled that the students’ Fourth Amendment rights were violated given the absence of a medical emergency or parental consent. The Tenth Circuit held that the special needs doctrine did not apply because there was not any showing that securing a parent’s consent was impracticable. Id at 1214-15. …

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Based upon these collective authorities, the Court concludes that the fundamental dignity of a young person’s body is so obvious and the cited Supreme Court and Sixth Circuit decisions since 1984 provide more than fair warnings to school officials that such intrusive searches of students cannot be made by school officials without justification. The search of B.H. was not an emergency situation and was contrary to published national nursing standards and state educational standards for school nurses. As evidenced by her nursing supervisor, supra at 5, Sliwowski’s search was not the “proper performance of [her] duties,” Forrester, 484 U.S. at 223, that is a key rationale for qualified immunity. Applying Walker and Smith, the Court concludes that B.H.’s Fourth Amendment right to be free from such an highly invasive search was clearly established at the time of Sliwowski’s search and that Sliwowski is not entitled to qualified immunity.