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Back to Oct. Ed Reporter

Education Reporter
NUMBER 165 THE NEWSPAPER OF EDUCATION RIGHTS OCTOBER 1999

Invasive Exams Violate Civil Rights of 59 Girls
School district held accountable

SCRANTON, PA -- U.S. District Judge A. Richard Caputo ruled on July 27 that the East Stroudsburg School District violated the Fourth Amendment rights of 59 6th grade girls who were given genital exams without parental consent in 1996. The exams occurred at the J.T. Lambert Middle School (see Education Reporter, June 1996 and October 1998). The judge ruled that the exams constituted "unreasonable searches," and said he "could not identify a compelling government reason to examine the genitals."

Two days later, the jury returned a verdict against the district, awarding a total of $60,000 in damages, or $7,500 for each of the eight student plaintiffs in the lawsuit. The jury did not award damages to the parents. The physician who performed the exams reached an out-of-court settlement with the girls families.

The ruling is an important victory for parental rights, as reports of similar exams conducted on schoolchildren around the country continue to surface. John Whitehead, president of the Rutherford Institute, which represented the plaintiffs, said: "This case illustrates the increasing violation of students rights and the usurping of power by schools against the rights of parents. The judge and jury have sided with common sense by condemning this kind of unconscionable abuse against students, and we hope this decision will put a stop to such violations by officials in schools across the country."

Rutherford is considering filing suit in a similar case in Oklahoma, where three- and four-year-olds were forced to undergo invasive genital exams without parental consent. (See Education Reporter, Feb. 1999.)


Case History

On March 19, 1996, 59 6th grade girls, ages 11 and 12, were examined by a local pediatrician hired by the school district in what was called a "state-mandated" physical. The girls were instructed to undress, and their requests to phone parents or opt out of the exams were denied. When efforts to obtain a satisfactory response from the school failed, the parents of one of the students met with Rutherford attorneys, who filed suit on May 10 against the pediatrician, the school nurses, and the East Stroudsburg School District. The families of seven other girls eventually joined in the litigation. After three years of depositions and controversy, the court proceedings began in July.


The Trial

The three-week trial included testimony from doctors, state and school officials, the girls and their parents. While Pennsylvania state law requires that students undergo health exams prior to entering kindergarten and during the 6th and 11th grades, the director of the state Department of Health admitted during testimony that school physicals do not require genital exams.

Several doctors testified in support of the pediatricians actions, but others condemned the practice of conducting genital examinations in school, stating that it "violates the girls confidentiality and privacy" and stressing that "such matters should be confidential." (Pocono Record, July 15, 1999)

One of the girls told the court that, although she had received a physical from her private physician and that the paperwork was forwarded to the school, the school nurse claimed the form could not be found and forced her to undergo the eam anyway.

Other witnesses indicated that the consent forms failed to explain that the physicals would include gynecological exams. When the girls found out, many of them asked to be excused, and some begged to call their parents. They testified that school officials denied their requests, and even blocked the doors and windows to prevent them from leaving the examination room.

According to the July 14 Pocono Record, one mother testified that she had specifically requested to be present during her daughters physical, and had checked the appropriate box on the consent form. Despite several follow-up calls to the school, she was never notified of the exam. "I was home all day, and no one called to say [my daughter] was having a physical," she told the court. "I filled out the form saying I wanted to be present." She added that she would never have permitted a genital exam "at her [daughters] age," and that when she questioned school officials, "they tried to shift the blame onto the parents."

The court also heard testimony that the school violated the Pennsylvania school code by conducting nearly three times the number of exams per hour than the code allows. (Pocono Record, July 16, 1999) School nurse Cynthia Dougherty, one of the defendants, admitted that "every school nurse is aware of four [allowable exams] per hour," but that the pediatrician "probably did 10 an hour."

During closing arguments, an attorney for the plaintiffs contended that the exams were done "illegally, 15 an hour," despite state regulations. Another lawyer called the exams "a sham" and of "no medical value or use."


Goals 2000 Connection

Nationally syndicated columnist Kathleen Parker observed in the Washington Times on August 5 that both the Pennsylvania Department of Health and Department of Education supported the school districts actions, claiming that they "were as required by applicable laws and regulations." She connected those laws and regulations to what she called the "monolithic Goals 2000: Educate America Act. "

Pennsylvania State Representative Sam Rohrer has repeatedly cited, as the source of abuses such as the East Stroudsburg incident, the first of the eight National Education Goals contained in Goals 2000, which states: "By the year 2000, all children in America will start school ready to learn." Rep. Rohrer notes that the reauthorization of the federal statute known as Title I, which was established in 1965 to provide funding for additional education services for poor children, is now being used along with Medicaid to provide medical services in the schools to almost every child.

Kathleen Parker sums up the feelings of many parents and concerned citizens: "It seems ridiculous that we need a federal judge and jury to tell us what should be obvious to anyone with an ounce of sense," she wrote. "In more reasonable times, schools provided nurses to tend to skinned knees and cut fingers. Now, under the ever-expanding guise of protecting the children, we employ doctors to perform the most intimate procedures, with or without regard to parental wishes."



 
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