— Lyn Stoesen, News Staff

NASW's Legal Defense Fund has filed a number of friend-of-the-court briefs that address legal issues of concern to social workers. NASW joined a brief related to the testimony of clinical social workers as sentence mitigation specialists as well as a brief related to civil rights remedies in peer sexual harassment cases. The association also filed a brief supporting gay and lesbian parents who seek court review of child custody matters.

The LDF also filed a brief asking the United States Supreme Court to accept a case addressing psychotherapist-patient privilege, and another in the Ohio Supreme Court addressing the confidentiality of physician-patient communications regarding abortions for minor patients.

Social histories and expert witness testimony

In Davis v. Alabama, a death penalty case before the state's supreme court, NASW and its Alabama Chapter have filed a brief arguing that petitioner Jimmy Davis, Jr., received ineffective assistance of counsel and should be granted a new sentencing hearing.

The brief notes that "Davis's trial counsel's preparation for Davis's sentencing did not include even a minimally adequate investigation of Davis's background."

"Trial counsel conducted only brief and cursory discussions with Davis, his mother, and two other relatives shortly before trial and made no effort to obtain publicly available records concerning Davis or to otherwise investigate his background," the brief states. "Trial counsel also did not engage the services of an investigator, or a social worker or other mitigation specialist, to pursue such information."

According to the brief, evidence shows that Davis was a severely abused child and that facts about his childhood were readily discoverable.

The brief states that legal precedents "confirm that the passage of time between [Davis's] childhood abuse and commission of a crime as a young adult does not lessen its impact, and certainly does not support a conclusion that he was not prejudiced by his trial counsel's ineffectiveness in failing to uncover it."

Peer sexual harassment

NASW has joined a brief in a case before the U.S. Supreme Court, Fitzgerald v. Barnstable School Committee, related to access to civil rights remedies in peer sexual harassment cases in education.

The case involves an elementary school student who was sexually harassed by an older student on a school bus in Massachusetts. The school district declined to place the older student on a different bus or to place an adult on the bus to monitor for harassment. A Court of Appeals for the First Circuit upheld the school's motion for summary judgment based on a Title IX claim but declined to consider the parents claims under Section 1983, ruling that Title IX preempts additional claims.

The Supreme Court case questions whether Title IX precludes the enforcement of constitutional claims through section 1983; NASW and amici argue that it does not.

Section 1983 provides a federal judicial remedy for violations of the Fourteenth Amendment, which establishes the equal protection clause. Title IX prohibits sex discrimination in educational programs and activities receiving federal funding.

"Title IX and the Equal Protection Clause do not protect a 'virtually identical' set of rights," the brief argues. "In Title IX, Congress created an independent source of protection against sex discrimination, supplementing and enhancing the protections of the Equal Protection Clause."

The brief concludes that the Supreme Court should reverse the circuit court decision and allow the student's parents to proceed on equal protection claims under Section 1983.

Parental rights

In White v. White, NASW and its Missouri Chapter filed a brief arguing that separating children from their psychological parents ruptures attachment bonds and deprives children of financial support.

The case is before the Missouri Court of Appeals; NASW argues that a circuit court's dismissal of the case was detrimental to the interests of the appellants, two children of same-sex parents.

In the case, both women in a couple conceived a child using the same sperm donor and they raised the children as co-parents. The brief argues that the court should allow the children "the opportunity to show that granting custody and visitation in favor of their psychological parents, and compelling the payment of child support by their psychological parents, would be in their best interests and in the best interests of similarly situated children in Missouri."

The brief states that when a child has siblings, the formation of healthy sibling bonds is critical to the child's development; that during parental separation and other family transitions, children benefit from the maintenance of health sibling bonds; and that separating children during family transitions can cause both immediate and long-term emotional and psychological harm.

"Decades of social science and child development research confirm the correctness of holding that children's best interests may compel parentage, custody, visitation, and support awards to preserve children's relationships with siblings and with psychological parents — no differently than with biological or adoptive parents," the brief concludes.

Psychotherapist-patient privilege

NASW and its Louisiana chapter filed a petition for writ of certiorari in the case Auster v. United States asking the U.S. Supreme Court to hear a case in which "the Fifth Circuit improperly sidestepped application of the psychotherapist-patient privilege by redefining the meaning of confidentiality within a private therapy session."

The brief notes that "NASW supports review of the decision . . . so that this Court may resolve a split that has developed among the federal circuit courts regarding an exception to the psychotherapist-patient privilege."

The brief makes four arguments:

• The case is the "appropriate vehicle to resolve the split in the federal circuit courts over an exception to the psychotherapist-patient privilege for threats made by patients";
• The psychotherapist-patient privilege is not automatically waived when a psychotherapist makes a mandated report;
• Auster and the split in the federal circuit courts reinstates uncertainty that was rejected in the 1996 U.S. Supreme Court decision Jaffee v. Redmond; and
• Certainty and uniformity in the federal privilege is required because the law also informs state courts.

"By granting review and resolving the split in the federal circuits, this court can return [uniform application] and consistency to [the psychotherapist-client] privilege for [NASW's] members and other mental health professionals throughout the country, as well as for the patients that they treat," the brief argues.

Confidentiality for minor patients: NASW and its Ohio chapter joined a brief in the case Roe v. Planned Parenthood Southwest Ohio Region urging the Ohio Supreme Court to reject the plaintiff's request to review medical records of non-party minor patients. In this case the parents of a minor who obtained an abortion are suing Planned Parenthood. As part of the lawsuit, they are requesting access to all of Planned Parenthood's medical records for treatment rendered to minors although these patients are not involved in the lawsuit.

The brief argued that disclosure of non-party medical records damages the physician-patient relationship and deters minors from seeking timely and safe medical care; and that minors have a constitutional right to privacy in their medical records that is not overcome by the plaintiff's interest in those records.

"[T]he disclosures plaintiffs seek would violate the confidentiality of physician-patient communications, undermining the provision of medical care to all Ohio residents and chilling minors from accessing critical medical treatment . . . ," the brief states.

"[T]he patients whose medical records plaintiffs seek have a federal constitutional right to privacy in those records. Plaintiffs fail to demonstrate any actual need for the records, much less a need that can overcome the significant threat to public health and the invasion of privacy inherent in the disclosure," the brief continues.

"This court should not permit discovery that will result in an invasion of privacy and chill minors from seeking timely, high-quality health care," the brief concludes.

Get more information at the NASW Legal Defense Fund's Amicus Brief Database.