Sunday, August 1, 2021

Va. teacher sues nurse, school over strip search


A teacher has sued the Virginia Beach School Board and select school officials over allegations that a medically motivated strip search violated her rights under the Constitution’s Fourth and 14th amendments, Courthouse News Service reports.

From the Centers for Disease Control and Prevention: “Scabies is an infestation of the skin by the human itch mite (Sarcoptes scabiei var. hominis). The microscopic scabies mite burrows into the upper layer of the skin where it lives and lays its eggs. The most common symptoms of scabies are intense itching and a pimple-like skin rash. The scabies mite usually is spread by direct, prolonged, skin-to-skin contact with a person who has scabies.”

The teacher, Donika Anderson Wagner, is seeking $622,000 in damages, saying she suffered “severe mental anguish and embarrassment” from the alleged assault and battery, false imprisonment, and civil rights violations that occurred during the search of her body by the school nurse, after she had stripped down to her undergarments.

Ms Anderson Wagner was removed from her class and led down to the nurse’s office, court documents charge, because the parent of a child at the school infested with scabies reported the child’s condition to school officials. According to Ms Anderson Wagner’s complaint, “the strip search revealed nothing—no indications of scabies or anything else unusual.”

“Because a parent or guardian of the student made an unsupported allegation, with no rational connection to the plaintiff, the defendants responded with an intrusive search,” the plaintiff says in her lawsuit. “The search was unjustified at its inception, and the nature of the search as conducted—removing Ms Anderson’s clothes to inspect her body for mites—was not reasonable to the perceived or alleged problem in its scope, and unsupported by any objective facts.”

A three-judge panel in the US Court of Appeals for the Sixth Circuit last year granted qualified immunity from a lawsuit over her searching of the vaginal area of 6-year-old student (PDF). The panel concluded that the right to be free from an unwarranted medically motivated visual examination of one’s genitals was not clearly established at the time the nurse examined the student.

The rationale in the Sixth Circuit was that a school official has qualified immunity unless plaintiffs can prove two parts of a test: (1) a Constitutional right must clearly have been violated, when the facts are viewed in a light most favorable to the plaintiff; and (2) the right must have been clearly established at the time the violation of a constitutional right occurred. The Sixth Circuit felt they didn’t have to consider the first part of the test and said the nurse was entitled to qualified immunity from the lawsuit because the school district had not clearly established the right of students’ genital areas not to be searched by medical personnel.

In other words, even if the nurse did violate the girl’s constitutional rights—Part 1 of the test for qualified immunity—Part 2 of the test still fell short, meaning that the nurse was shielded from damages in the lawsuit.

Because the Sixth Circuit, which does not apply in Virginia, by the way, could find no Supreme Court precedent on the question of qualified immunity for school medical personnel when searching a person’s body, the panel relied on Sixth Circuit case law. There, the panel wrote that it could find no direct Sixth Circuit precedent “holding that the Fourth Amendment applies to visual examinations conducted by medical professionals for medical purposes.” On the contrary, it found “some precedent indicating that the Fourth Amendment does not apply in such circumstances.”

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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