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Sunday, April 21, 2024 | Back issues
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Injunction Tossed in |School Nurse Exam Case

(CN) - A federal judge had no authority to issue an injunction after a jury found a school nurse's examination of a first-grader's genitals was constitutional, the Sixth Circuit ruled.

In 2009, Nashville first-grader B.H. complained to her teacher of pain in her genitals. A school secretary called her mother, who said that B.H. often suffered from bladder infections. The nurse did not physically examine B.H. at this time.

Two days later however, B.H. made the same complaint, and the secretary asked the school nurse, Karen Sliwowki, to see the child.

Sliwowski asked B.H. to remove some of her clothes, and she checked the girl's genitals for redness, including asking B.H. to "open her labia." B.H.'s genitals were exposed for "seconds."

The girl's mother, Melissa Hearring, was upset that the school did not ask her permission before conducting the examination, and claimed in court that the nurse and the city of Nashville violated her daughter's constitutional right to be free from unreasonable searches.

A jury ruled for the nurse, finding that no constitutional violation occurred.

Nevertheless, the trial court issued an injunction against the city's public schools, something Hearring had not requested.

The injunction "required training of the relevant Metro school employees" on constitutional limits "to ensure safeguards for school children's privacy."

After the fact, Hearring moved to amend her complaint to add a request for an injunction consistent with the one the court ordered, and the court granted the motion.

The Sixth Circuit ruled Friday that the trial judge erred by issuing the unrequested injunction.

"The court had no authority to grant an amendment to a by-then superseded complaint. The point at any rate is to give the parties, even the ostensibly benefited party, an opportunity to protest or promote the injunction before the court enters it. That did not happen," Judge Jeffrey Sutton said, writing for the three-judge panel. "If we require courts to give 'notice to the adverse party' before issuing a preliminary injunction, it follows that we should do (at least) the same before issuing a permanent injunction." (Emphasis in original.)

Furthermore, the jury ruled against Hearring, so there was no constitutional violation which would require an injunction, the panel found.

"Any authority the district court had to require the school district to create this training program stemmed only from a finding that the school district had violated the constitutional rights of its students. In the absence of any such finding, indeed in the face of a contrary finding, the court had no power to issue this injunction," Sutton said.

Even if Hearring had prevailed, the panel said, she would be unable to prove standing without being able to show that a violation was likely to occur again.

But searches of this kind are "vanishingly rare," according to the seven-page complaint.

"The only person we know of who has ever performed one, as it happens, does not have the job anymore. Sliwowski left the job not long after this incident. The risk that B.H. would be subject to another such search is no more 'actual and imminent' than the Chicago Cubs (or, we fear, the Cleveland Indians) winning the World Series," Sutton said.

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