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School Nurse Immune to Suit Over Genital Exam, Court Rules

A school nurse who conducted a visual inspection of a young student's genital area because the student complained of itching and discomfort was entitled to immunity from a lawsuit challenging the action as an illegal search, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, unanimously overruled a federal district court decision that had rejected qualified immunity for nurse Karen Sliwowski.

The case involved a 2009 incident at Mt. View Elementary School in Davidson County, Tenn. A 6-year-old student complained of irritation in her genital area, and a school secretary called in Sliwowski and observed the visual exam conducted by the nurse. Sliwowski did not touch the student but did ask her to lower her pants and spread her legs so the nurse could check for irritation, court papers say. The nurse later testified she did not suspect any sexual abuse of the student.

The student's parents did not consent to the exam, and they sued the school district and the nurse alleging that the exam was an illegal search under the Fourth Amendment. The suit said the student was "confused, humiliated, and frightened" by the exam.

A federal district court in Nashville held that the exam was an unreasonable search, and it denied immunity to Sliwowski based on cases outlawing strip searches of students for contraband. The lower court said prior precedents "made clear that ordinary common sense puts school administrators on notice that a search of a student's naked body grossly offends the student's sense of decency, self respect, and bodily privacy."

But in its March 27 decision in Hearring v. Sliwowski, the 6th Circuit court panel said it was not clearly established that a nurse's visual inspection of a student's genital area when done for medical purposes constituted a search.

"A critical factor distinguishes this case from the more typical strip-search cases," the appeals court said. "Namely, it is clear that Sliwowski's visual inspection of [the student's] genital area was not an investigation for contraband, but rather was an attempt to assess [the student's] medical condition."

"Existing precedents did not give Sliwowski fair warning that her medical assessments were subject to the Fourth Amendment's reasonableness requirement, and accordingly the right at issue was not clearly established," the court said.

Although it granted qualified immunity to the nurse, the appeals court expressed no view about whether there was a constitutional violation in the case, which could still affect the liability of the school district. It sent the case back to the federal district court.

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