Here is an interesting case reported in the Volokh Conspiracy with commentary by Orin Kerr. A decision at the Supreme Court level could have an effect on 4th Amendment law and search and seizure nationwide, yet it did not arise from a criminal search and seizure case. What-is-the-intent-requirement-of-the-fourth-amendment/?

This has not gone to trial or been adjudicated. The legal wrangling is dealing with the wording in the complaint. A complaint deals with allegations made by the complainant in a law suit and can be imaginative in addition to being colorful. My guess is that some attorney was casting about to make the conduct of the school so egregious that it rose to the level of a constitutional violation.

The school in question was teaching a course on medical sonography.  This included instruction on how to use an “ultra sound device” for various medical procedures. Students were expected to perform these “hands on examinations” upon each other. Some of the examination techniques could be considered invasive. The students alleged that the use of the sonograph constituted a search. The school as a public agency (or taking federal funds) came under the umbrella heading of a governmental agency and therefore required probable cause in order to conduct a search of the students.

The school argued there was no intent to collect information from the patient, the object of the search. Since there was no intent to collect information, there was no search.   If it walks like a duck, quacks like a duck …

The appellate court has thus far sided with the students and said bring it on.  I think this is entirely appropriate decision, at this stage in the case.  I also hope that ultimately  the students do not prevail.

I am not even going to go the criminal route. Think about the aftermath of a decision that says a “training session amounts to a search and seizure”. How many facets of a job do you require a candidate to demonstrate proficiency to obtain and hold that job? Is a certification exam a search? Or maybe we argue that the student has a right against self incrimination, compelled answers and poor performance will adversely affect future career prospects. You know making me show up at work and actually perform a function ….

Having been in the regulatory end of career schools I know that there are schools who are bottom feeders whose first priority is to separate the student from their money and only coincidentally deliver training.  I have also reviewed enough medical arts training schools that student participation as clinician and subject is necessary and this is made clear from the outset. Informed student consent obtained legally will likely defuse this situation.

I think anybody involved in training ought to take heed. There is a faction out there that would eliminate competency based training and evaluation.  By this time you have probably validated up the wazoo the necessity for the training and certification standards.  Now it looks like one more document is required an informed consent telling the student expectations, performance standards, and methodology that will be employed to judge successful performance in a course.

Oh, for the good old days, when the highest praise possible from a crusty old timer was, “Well, at least you didn’t fuck that up too bad!”