Protecting children's rights under the Constitution: An overview of 
Camreta v. Greene


What kind of a case would bring together the Southern Poverty Law Center on the left and the Family Research Council on the right?  Or the Battered Women’s Resource Center and the American Coalition for Fathers and Children?  How about National Advocates for Pregnant Women and the Eagle Forum?  The Clinical Social Work Association and the American Family Rights Association?

Only a case involving rights so fundamental to the protection of children that some of the most prominent advocates on the left and the right are ready to put aside their differences to join forces.

What all these organizations are seeking is simply a guarantee that innocent children will have the same constitutional rights as suspected criminals.

As the attorney for Sharon and her family, Carolyn Kubitschek,* has written: “The idea that persons suspected of wrongdoing should have more rights to freedom and privacy than persons whom the police know to be completely innocent is contrary to the United States Constitution.”

Or, as the Supreme Court ruled in another case, it is “anomalous to say that the individual …[is] fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.”[1]

But the rights accorded any accused criminal were denied to a nine-year-old girl we’ll call Sharon (known in legal papers as “S.G.”).  Sharon was removed from her classroom by school officials and escorted to another room in the school where she was met by two men, one of them a uniformed deputy sheriff carrying a gun.  They had no permission from any court; no neutral arbiter had decided first if what these men were about to do really was necessary.

For two hours Sharon was interrogated.  She was badgered relentlessly when she did not give the men the answers they wanted to hear.  She was too scared to leave the room, too scared even to ask for a glass of water.   She realized that the only way out was to lie.

Needlessly to say, Sharon was not a criminal.  On the contrary, the two men thought that maybe Sharon had been abused, and this seemed to them the most convenient way to find out.

But the botched interrogation led only to lies and confusion.  And it set off a cascade of error that caused even more trauma to Sharon including a stripsearch, a highly traumatic medical examination and several weeks consigned to America’s chaotic system of foster care.

The Ninth U.S. Circuit Court of Appeals ruled that Sharon’s Fourth Amendment right to be free from unreasonable search and seizure was violated. 

 In its opinion,[2] the Court of Appeals refused to be seduced by the party line child protective services agencies use whenever they want to trample on civil liberties - the one that says: If you support civil liberties you’re putting parents rights ahead of children’s rights – only if you trample on those liberties are you somehow standing up for “children’s rights.”

The Court of Appeals wasn’t fooled.  On the contrary, the court recognized that  Fourth Amendment rights are a vital protection for the children themselves.

Citing a law review article on the topic, the decision notes that:

Of the 3.6 million investigations conducted by state and local agencies in 2006, only about a quarter concluded that the children were indeed victims of abuse. … This discrepancy creates the risk that “in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help.”

So it’s no wonder that among the scores of organizations supporting Sharon and her family are groups like Lawyers for Children and the Loyola Civitas Childlaw Center, groups
 that specialize in representing children in cases of alleged child maltreatment.

The Court of Appeals ruling imposed only limited, reasonable restrictions on state power in these cases.  The court did not ban police officers from schools, nor did it ban questioning children away from or without the permission of their parents.  The court ruled only that before someone believed to be a victim of child abuse can be interrogated at school, any one of these conditions must be present:

● A parent has given permission OR
● Authorities have received a court order OR
● The danger is so great that there is no time to get a court order – in which case authorities are free to act without one.

But authorities in Oregon, where this case arose, object to even these minimal checks and balances.  They want the unlimited right to interrogate children at school whenever they want for as long as they want based on no more than – and these are their own words - “speculation and hearsay.”[3]

But the Court of Appeals was right.  Children never should be traumatized based on mere “speculation and hearsay.”

On one point we agree with those who support this unlimited state power.  In one of their briefs they write that  “Children have a right and a compelling interest to be safe from abuse and neglect.”[4]

Indeed they do.

● Children have a right to be safe from the abuse of needless two-hour interrogations about the most intimate details of their lives overseen by armed police officers.

● Children have a right to be safe from the abuse of needlessly being torn from their mothers and consigned for several weeks to the chaos of foster care. 

● Children have a right to be safe from stripsearches and medical exams which, in any other context, would in themselves be a form of sexual abuse.

All of these harms were inflicted on Sharon, and all stemmed directly from the seizure the Ninth Circuit ruled was unconstitutional.

The Ninth Circuit is saying only that an innocent child is entitled to as much Fourth Amendment protection from unreasonable search and seizure as an accused criminal.

On March 1, the U.S Supreme Court will hear arguments in the case, called Camreta v. Greene.

*-Carolyn Kubitschek also is Vice President of NCCPR.

[1] Soldal v. Cook County, Illinois, 506 U.S. 56, 69, 113 S. Ct. 538,548 (1992).
[2] Sarah Greene, personally and as next friend for S.G., a minor, and K.G., a minor, v. Bob Camreta, et. al., Case # No. 06-35333, Opinion, Dec. 10, 2009, available online at , p. 16300.
[3] Brief for Petitioner Bob Camreta, Camreta v. Greene, Supreme Court of the United States, Nos. 09-1454 and 09-1478, pp. 11,27.
[4] Brief of the California State Association of Counties, and League of California Cities as Amici Curiae in Support of Petitioners, Camreta v. Greene, and Alford v. Greene, Supreme Court of the United States, Nos. 09-1454 and 09-1478.