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Supreme Court confronts conflict between constitutional rights and protecting children

Robert Barnes
Washington Post Staff Writer
Monday, February 28, 2011; A13

In Oregon, a 9-year-old girl was escorted from class to a school conference room, where a child-welfare caseworker and a police officer questioned her about whether her father had touched her inappropriately. After two hours of questioning, she finally said he had, a statement she later recanted.

In North Carolina, a 13-year-old was pulled out of class for a closed-door meeting with police officers and the principal, where he was urged to do the right thing and eventually implicated himself in a recent burglary. He was not given his Miranda rights because the interview at the school was not considered official police custody.

Both cases are on the Supreme Court's docket this month as justices continue to parse how the Constitution applies to children. Justices repeatedly have established "that youth are different from adults and, accordingly, should be treated differently by the courts," said Bill Grimm, senior attorney for the National Center for Youth Law in Oakland, Calif.

The Roberts court already has confronted a number of high-profile cases. It decided that school policies and the need for order can trump a student's right to free speech, and it determined that school officials went too far in strip-searching a 13-year-old girl in a search for drugs. It has ruled that a minor cannot be sentenced to life without the possibility of parole for a crime short of murder.

And the court soon could determine whether California may ban the sale of violent video games to those under 18.

That case and others highlight the conflict between constitutional rights and the desire of government to shield children from harm.

Chief Justice John G. Roberts Jr., the only member of the court with young children at home, described the quandary during oral arguments in the video game case. He read a graphic description of a game that encouraged beheading and setting victims on fire and added: "We protect children from that. We don't actively expose them to that."

But the sharp difference of opinion on how to protect children is particularly striking in Camreta v. Greene, the Oregon case that the court will hear Tuesday.

At the center is Nimrod Greene, charged with fondling the 7-year-old son of his employer. The father told police that Greene's wife, Sarah, had expressed concern for her daughters when her husband had been drinking.

That is what led to the school interrogation of 9-year-old "S.G," as court papers call her. Her family says the girl was badgered into lying about her father. She was placed in foster care before being returned to her mother.

Nimrod Greene accepted a plea agreement in which he did not contest the charge involving the young boy, and all charges involving his daughter were dropped. He served no jail time, and the family filed a suit against the case worker, Bob Camreta, and Deputy Sheriff James Alford.

While the U.S. Court of Appeals for the 9th Circuit ruled that the two men were entitled to immunity for their official actions, the court also said their questioning of the girl had violated the 4th Amendment's ban on "unreasonable search and seizure." The court said that because there was no emergency, the men should have gotten either a warrant from a judge or the mother's consent before conducting the interview.

The case has prompted an outpouring of conflicting opinions from groups and agencies whose primary interest is in the well-being of children.

Supporting the Oregon officials are the Obama administration, 40 states, school boards, district attorneys and the National Association of Social Workers.

Oregon Attorney General John R. Kroger told the court in his brief that providing a judge with probable cause for a warrant in child-abuse cases is often impossible without interviewing the victim. It should be obvious, he said, why parental permission is not always an option.

"Protecting children from abuse is one of society's fundamental goals," he wrote. "The government has a compelling interest in conducting child-abuse investigations in a manner that is least likely to be traumatic for the child and is least likely to taint disclosures of abuse."

But the other side of the question is represented by 18 amicus briefs joined by 70 groups across the political spectrum arguing that the 9th Circuit should be upheld. The case raises important questions about parental rights and the rights of children, they said.

"The fact that the seized person here was a 9-year old girl requires, as a matter of constitutional law, more vigilance about protecting individual liberty from state abuse," the Center for Individual Rights said in its brief.

It will be the court's first major case involving child-protection services in more than two decades, advocates say.

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