Legal Report September 2009
U.S. JUDICIAL DECISIONS
SEARCHES. The U.S. Supreme Court has ruled that the strip search of a middle school student violated her Fourth Amendment right to be free from unreasonable search and seizure. The Court ruled that the school’s zero tolerance policy for drugs on campus did not justify the search.
In October 2003, 13-year-old Savana Redding was called to the principal’s office. Kerry Wilson, assistant principal, showed Redding a day planner that contained several knives, lighters, and a cigarette. Redding admitted that the day planner was hers but said that she had loaned it to a friend several days before. Wilson then showed Redding five pills—four prescription- strength ibuprofen tablets and one over-the counter naproxen pill. Wilson told Redding that she had been implicated in the possession and sale of the pills, which could not be brought onto school grounds without prior permission. Redding denied knowing anything about the pills.
Wilson then asked to search Redding’s belongings. She agreed. After a search of Redding’s backpack turned up nothing, Wilson instructed a female administrative assistant to take Redding to the school nurse’s office and search her clothing for the pills. The assistant and the nurse searched Redding’s outer clothes, but they still did not discover any pills. Redding was then asked to take her outer clothes off and was told to pull her bra and underwear away from her body to ensure that no pills were being concealed inside them.
Redding’s mother sued the school district, claiming that the strip search violated her daughter’s Fourth Amendment right to be free of unreasonable search and seizure. The school district requested summary judgment on the grounds that, as an arm of the federal government, the school had qualified immunity against lawsuits. (Qualified immunity shields government officials from liability so long as their actions do not violate statutory or constitutional rights that would be clear to a reasonable person.)
The U.S. District Court for the District of Arizona granted the summary judgment, ruling that the school did not violate Redding’s constitutional rights. Redding appealed the decision.
The U.S. Court of Appeals for the Ninth Circuit overturned the lower court’s ruling. The appellate court determined that the search was not allowed under the Fourth Amendment and that the school had no right to qualified immunity because the school should have known that the search was unjustified. The school district appealed the ruling.
The U.S. Supreme Court ruled that the search of Redding’s backpack and her outer clothing was justified under a school policy that strictly prohibited the nonmedical use, possession, or sale of any drug on school grounds. However, the Court determined that the strip search was not justified by school policies.
In the written opinion of the case, the Court explained that “the content of the suspicion failed to match the degree of intrusion…. Wilson 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 [Redding] was hiding common painkillers in her underwear.”
The Court determined that the individuals involved were protected from liability by qualified immunity. However, the Court instructed the lower court to revisit the issue of whether the school district should be absolved of liability. Justices John Paul Stevens and Ruth Bader Ginsburg dissented from this portion of the decision, arguing that the individuals should be held liable for their actions in the case. Ginsburg wrote that the facts of the case establish that “Wilson’s treatment of Redding was abusive, and it was not reasonable for him to believe that the law permitted it.”(Safford Unified School District v. Redding, U.S. Supreme Court, No. 08-479, 2009)
SEXUAL DISCRIMINATION. An employee who was fired after being accused of sexually harassing a coworker can sue his employer for sexual stereotyping, a form of sexual discrimination, according to recent appellate decision. The company did not conduct an investigation into the incident and told the alleged perpetrator that he probably did commit the harassment because he was a man.
In early 2003, Carl Sassaman was hired as an elections administrator at the Dutchess County Board of Elections in Poughkeepsie, New York. In October 2004, a printing error meant that the election ballots had to be reprinted. The excess cost meant that Sassaman’s boss, David Gamache, had to request additional funds from the state legislature.
Gamache was embarrassed by the error and blamed Sassaman. Gamache demoted Sassaman to elections specialist and promoted another employee, Michelle Brant, into Sassaman’s former position. Sassaman and Brant initially got along well. However, according to Brant, the relationship soured after Sassaman asked her out and she refused. Brant eventually accused Sassaman of stalking and harassing her. Though Sassaman denied these accusations, evidence showed that he called her at home, sent her notes, and, on one occasion, logged into her work e-mail account to read her messages.
After Brant complained to Gamache, he contacted the Dutchess County Sheriff’s Office and requested an investigation. Gamache did not launch an internal review or discuss the issue with Sassaman. The police concluded that there was no evidence to support criminal charges.
Gamache called Sassaman and told him that he would be terminated if he did not resign. Sassaman later testified that Gamache told him that he didn’t have a choice because he was afraid Brant would sue him. Gamache also told Sassaman, “You probably did what she said you did because you’re male, and nobody would believe you anyway.”
Sassaman sued Gamache and the board of elections for sexual discrimination, claiming that he was fired on the basis of sexual stereotyping. The U.S. District Court for the Southern District of New York found in favor of Gamache, describing his comments as “stray” and “ambiguous” and ruling that they were insufficient to taint the decision. Sassaman appealed the ruling.
The U.S. Court of Appeals for the Second Circuit ruled that while Gamache could not be held personally liable under federal law, the case against the election board could proceed. The court ruled that Gamache’s statement, along with the fact that he did not launch an internal investigation could provide proof of sexual stereotyping.
In the written opinion of the case, the court noted that “an employer may not rely on an alleged fear of a lawsuit as a reason to shortcut its investigation of harassment and to justify an employment decision adverse to the punitive harasser;” that in itself violates the law.
The case parallels the Supreme Court’s June decision (Ricci v. DeStefano) regarding the New Haven Fire Department’s rejection of a test for promotion because it feared that minority members of the force would sue since only whites passed the test. In that case also, fear of litigation did not justify reverse discrimination. (Sassaman v. Gamache, U.S. Court of Appeals for the Second Circuit, No. 07-2721-cv, 2009)
U.S. CONGRESSIONAL LEGISLATION
CHEMICAL FACILITIES. A bill (H.R. 2868) intended to increase security at chemical facilities has been approved by the House Homeland Security Committee. It is now pending in the House Energy and Commerce Committee.
According to statements made by lawmakers who introduced the bill, H.R. 2868 would make the Chemical Facility Anti-Terrorism Standards Act of 2006 permanent. (The law will expire at the end of this year.) H.R. 2868 would extend existing law, and maintain current Department of Homeland Security (DHS) regulations on the subject, by establishing standards and procedures for security vulnerability assessments and site security plans.
H.R. 2868 differs from existing law in urging facility owners to adopt inherently safer technologies. The measure would not allow DHS to mandate the use of such technologies. Instead, before DHS can require such changes, it must first notify Congress of the ramifications of making the switch. Such changes would be prohibited in cases where using inherently safer technologies would require the facility to cut production or fire employees.
In a statement of support for the bill, Chairman for the House Energy and Commerce Committee’s Subcommittee on Energy and the Environment Rep. Ed Markey (D-MA), noted that “by requiring the highest risk facilities to switch to safer chemicals or processes when it is economically and technologically possible to do so, this legislation will make our communities less vulnerable.”
FOOD SAFETY. A bill (H.R. 2749) that would give the Food and Drug Administration (FDA) greater regulatory powers over the U.S. food supply has been approved by the House of Representatives. It must now be taken up in the Senate.
Under the bill, facilities that process, hold, or manufacture food would be required to pay an annual fee of $500 to the FDA. That money would be used to fund inspections, testing, standards development, risk assessments, and regulatory-compliance inspections. The measure would also require that companies that transport or package food maintain a registry detailing the origin of a food product and they would have to have a system for tracking it throughout the distribution chain.
H.R. 2749 would authorize the FDA to demand emergency recalls of tainted foods, quarantine foods to a certain geographic location, and seize food items that might pose a danger to public health.
The bill also includes whistleblower protections for those who provide information to the government about conduct constituting a violation of the act.
AIRPORT SCREENING. An amendment to the appropriations bill for the Transportation Security Administration (H.R. 2200) would limit the use of whole-body imaging technology for airport screening.
Under the amendment, such imaging could not be used as the sole or primary method of screening, but it could be used after another method, such as a metal detector, indicated that further screening was necessary. Those chosen for additional screening by the whole-body imaging technology must be offered a patdown as an alternative.
The amendment also stipulates that the images generated by the screening may not be stored, transferred, shared, or copied in any form.
H.R. 2200 has been approved by the House of Representatives and is pending in the Senate Commerce, Science, and Transportation Committee.
NONCOMPETE AGREEMENTS. A new law (formerly H.B. 173) would make noncompete agreements legal in Georgia if agreed to by the public in a referendum. The law is not allowed under the Georgia Constitution so, to take effect, it requires a public vote to change the constitution. Under the law, a former employee could be restricted from conducting activity that would compete with a former employer for a certain amount of time and within a specific geographic location. Former employees could also be prohibited from hiring or attempting to hire employees away from a former employer.
BACKGROUND CHECKS. A new law (formerly H.B. 289) enacted in Utah would allow the state to conduct criminal records checks of volunteers who provide services to vulnerable adults.
This column should not be construed as legal or legislative advice.