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April 22, 2009

Supreme Court One Step Closer To Allowing Strip Searches In Schools

by Doug Mataconis

I’ve written in the past about the case of Savanna Redding, a now 19 year-old woman who, when she was thirteen years old was strip-searched by officials at her Arizona school who were convinced that she was concealing a banned substance; Advil.

As it turned out, Savanna had no drugs on her, but the strip search is something she’ll never forget, and, yesterday, her case against the school officials who did this to her was argued before the Supreme Court of the United States:

An important case at the Supreme Court sometimes informs as much about the justices as the issue at hand, and yesterday’s animated hearing on whether school officials have the right to strip-search a 13-year-old female student seemed just such a case.

Justice Stephen G. Breyer wondered if the incident was much different from the experience of disrobing for gym class. Justice Anthony M. Kennedy affirmed his deep concerns about illicit drugs. Justice Ruth Bader Ginsburg seemed at times on the edge of exasperation with her all-male colleagues. And Chief Justice John G. Roberts Jr. searched for a way to make the issue go away.

But it was Justice David H. Souter who seemed to sum up the dilemma for a majority of the court. He put himself in the place of a school official balancing the need for keeping his young charges safe from drugs while respecting the constitutional protections even middle school students should receive.

“My thought process is, I would rather have the kid embarrassed by a strip search, if we can’t find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry,” Souter said.

As ScotusBlog’s Lyle Dennison notes, the Justice’s questioning seemed to indicate that their decision in this case will be motivated by fear more than anything else:

With an undercurrent of fear running across the Supreme Court bench about drug abuse among school students, and a perception that young people will try hard to avoid detection, the Justices searched anxiously on Tuesday for a way to clarify — and perhaps to enhance — public school principals’ authority to conduct personal searches of the youths in their charge.

(…)

No more telling illustration of the Court’s mood emerged than Justice David H. Souter — whose vote would almost have to be won for student privacy to prevail – expressing a preference for “a sliding scale of risk” that would add to search authority — including strip searching — based on how school officials assessed whether “sickness or death” was at stake.

“If the school official’s thought process,” Souter asked, “was ‘I’d rather have a kid embarrassed rather than some other kid dead,’ isn’t that reasonable under the Fourth Amendment?” Stated in that stark way almost compelled agreement, without regard to whether a student singled out for a strip search was actually adding to such a risk, but was only the target of a classmate’s unverified tip.

Along with Souter, two other Justices whose votes might turn out to be crucial — Stephen G. Breyer and Anthony M. Kennedy — were plainly more concerned about the drug problem than with student privacy. Both of those Justices, in past cases involving students and suspected drug use, have suggested that students’ rights were not very sturdy.

You can read the full transcript of yesterday’s oral argument in the case here.

Given this, I find myself in agreement with Radley Balko, who says that the reports from yesterday’s oral argument are not encouraging at all for anyone who believes in civil liberties:

Can anyone think of a single incident in the last 30 years in which several children have died after ingesting drugs distributed by one of their classmates on school grounds? Before we let school principles go rummaging through the panties of underage girls, shouldn’t we be at least be able to cite a few examples?

It’s a little troubling to see how comfortable these old men (Ginsburg isn’t quoted in the article) seem to be with allowing school administrators access to the genitalia of school children based on nothing more than a hunch that they might be “crotching” some ibuprofen.

And Steve Verdon notes that the school officials could have exercised just a small degree of common sense:

The strip search was based on a snitch’s statements, something that should be taken with a shovel of salt. When you are down to the underwear and you haven’t found drugs on a student with no history of drug abuse, good grades, good attendance, and no other indicators of being a problem student maybe it is at that point that you should call the child’s parents and involve them.

I summed my own opinions about this story up last month:

I cannot imagine any circumstances where it should be acceptable for school officials to strip search a child. If there is some suspicion that a crime was committed, then the matter should be turned over the police — in which case she couldn’t have been strip-searched until she was actually placed under arrest.

It is, however, John Cole who comes away with the quote of the day on this story:

I can state that as someone with an IQ over room temperature, the fact that we are debating whether it is appropriate for school authorities to strip search kids is a sure sign that something has gone horribly, horribly wrong with this country and our sense of perspective, and I blame the war on drugs.

The fact that Supreme Court Justices, and likely a large segment of the American public, can’t recognize that makes it all even more troubling.

C/P: Below The Beltway

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11 Comments

  1. Ah yes..government schools. I just can’t wait until the government controls even more areas of our lives, like all of our health care.

    That will work out quite nicely, I’m sure.

    The death of common sense in this country has to do with a lot more than just the war on drugs.

    Comment by southernjames — April 22, 2009 @ 12:15 pm
  2. Just a clarification that I don’t recall seeing – she was required to strip to her underwear under the supervision of the school nurse, and then to pull out and shake the elastic and crotch to show nothing was stashed in them but did not actually have to remove them. A quibble, I know – to a 13 year old girl, the end result is no doubt about the same. Just wanting to establish the facts. Presumably the school district feels justified in their actions because she was allowed to keep on her underwear. I see little difference and to say “but they change clothes for gym” is no excuse.

    But to me it is utterly and totally ridiculous and appalling that school officials would have the authority to order a strip search based only on one unsupported verbal tip. As I understand what happened, one student was caught with one pill, and she implicated another student, who then implicated this girl. Would ANY of us submit to a strip search of this kind on such flimsy evidence, let alone allow our children to submit to it?!? This didn’t even involve any law enforcement officials, to my knowledge – this was just school officials acting on their own.

    When asked, the district’s lawyer asserted that the district had the authority to do so. One of the Justices asked if that authority even went so far as a body cavity search. The response was that school staff weren’t trained for that – which presumably means that if they HAD had training for that (God forbid!), this poor girl might have gotten the rubber-glove treatment to boot. Truly frightening.

    Comment by SC — April 22, 2009 @ 1:19 pm
  3. Changing clothes for the gym is the same as an authority figure demanding a strip search of middle school child? Really? Based on an accusation from another child? Without police involvement?

    Really?

    So when should the Fourth Amendment finally come into the picture?

    I wonder if it would effect the vote if someone accused Justice Breyer of muling Advil at his health club, and they shook out his boxers.

    Comment by Akston — April 22, 2009 @ 2:09 pm
  4. Doug,

    I don’t see how you managed to write about this today. For the first time since 9/11, I’ve been too angry to place reasonable words to my thoughts on a topic.

    All I can manage to say at this moment is if that had happened to my daughter, I’d be composing this message from a jail cell.

    Comment by Stephen Gordon — April 22, 2009 @ 5:12 pm
  5. It is totally ridiculous. What a nightmare for the parent. I am interested to know what the white hous eposition is? They would have filed something as friend of the court? Do they want to give all rights to the schools at the expense of our children’s rights?

    Comment by Fatima — April 22, 2009 @ 6:16 pm
  6. For the Christian Conservatives reading this:

    Imagine this scenario. Your 13-year-old daughter comes home from school crying. You find out that the girl who lost the leading role in the upcoming school play to your daughter reported her to the gym teacher for sneaking some Tylenol into her clothing. She also has minor blood smears on her clothing.

    “Everybody” knows the teacher is a lesbian, except for school administrators and parents like you who don’t hang out with these sorts of people very often (editorial note: Jesus is reported to have hung out with prostitutes). What no one knows is that this particular lesbian is also a sexual predator. Most aren’t, but your child is the one who received the unlikely draw of the cards.

    I realize that your daughter would never sneak a Sudafed, much less a Tylenol. She’s a really good girl and you have every last reason in the world to feel proud of her.

    Think about how your will feel when you end up telling your daughter the following: “What they did to you is horrible. It’s OK, honey, though. God will know that you are a virgin on your wedding day, even if your husband can’t find that proverbial proof.”

    Likewise, it could be your 13-year-old son who was taken advantage of by some male perp. They are talking about body cavity searches in reports about this case right now.

    Any parent, Republican or Democrat, liberal or conservative, who isn’t pissed off about this case doesn’t deserve the space I allow dead flies on my flyswatter.

    As I stated before, if this had happened to one of my children, I’d be writing this from jail.

    Comment by Stephen Gordon — April 22, 2009 @ 9:34 pm
  7. As I said over at Below the Beltway, either charge them with or sue them for sexual assault of a minor.

    Comment by tfr — April 23, 2009 @ 8:00 am
  8. I realize that Tinker vs. Des Moines School District was a free speech case, but Justice Fortas’s words about how children do not shed their constitutional rights at the schoolhouse gate should apply here, too. It’s unsettling to hear this argument, and the questions of the Justices, and wonder why they can’t see the forest for the trees. This case is not about drugs (and being someone who carried Advil in her purse consistently since she was in 5th grade, I cannot see how one Tylenol pill is going to hurt), and while I respect your position, Stephen, I don’t think it’s even about an adult’s potential sexual abuse of a minor. I think it’s about how much power we’re letting the government have over our children without the presence of the parents. Why weren’t her parents called, or given the opportunity to be there during the search? Of course, I don’t agree with the search in the first place, and certainly not resulting from such flimsy “evidence.”

    Parents already have such little say about what goes on at school, where their children spend 40 hours a week. Why are we letting the government parent our children? I really hope the Court can come to some kind of common sense before the opinion is written.

    Comment by Kathryn Rebecca — April 23, 2009 @ 8:23 am
  9. It seems with each passing year that our culture becomes ever more hysterical about safety. Cradle to grave security at all costs. The result is that we end up slightly more secure in increments at a tremendous cost of liberty and civil rights. We end up secure from everyone except the agents of security, the government.

    Comment by Akston — April 23, 2009 @ 8:47 am
  10. tfr,

    Although it doesn’t involve criminal charges, that’s pretty much what Savanna’s suit against the school district is all about.

    Comment by Doug Mataconis — April 23, 2009 @ 12:51 pm
  11. What they need to do is get rid of their Zero Tolerance Policy bullshit.

    Comment by Aimee — April 24, 2009 @ 9:52 am

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