Adding on to Adam B's front page diary, I wanted to add some thoughts and select out some additional quotes.
The settled law is that you can no longer order a strip search of teenage girls for ibuprofen with some vague suspicions. Seems like it wouldn’t be the most difficult thing in the world to agree on, but hey, this is America. Notable right-wing justices Antonin Scalia, John Roberts, and Samuel Alito were all on board with the majority opinion, but unfortunately, it wasn’t unanimous: Clarence Thomas decided to come down on the side of the school and say there was no constitutional problem here at all.
Some clips from the opinions:
Souter's official opinion:
Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution
Both key parts of the ruling: the note here is that Souter is saying that since we're talking painkillers and not ecstacy, there's a different standard for constitutional justification. And that of course, makes a lot of sense: schools still have a lot of zero-tolerance policies on drugs and weapons, and they inevitably lead to these big ugly cases where a kid is strip-searched for some freaking Advil, or suspended for a butter knife to go with their lunch.
Now, I think that even for more dangerous drugs, a reasonable expectation of privacy can still go on - every kid with suspicions of drug use doesn't abandon all privacy during the schoolday. But what's important here is that the Court is giving schools back the responsibility to distinguish between threat and safety, and closing down a part of the system that gave us schools so eager to cover themselves that they instituted Kim-Jong Il style policies.
And as for needed specific information of drugs concealed in underwear, well, that's a good ruling as well. It may seem like this just tells kids how to hide their stash, but you know what? I'd rather live in a country where kids got high occasionally on weed that had spent the day in their ass crack than one where kids had to expose said ass-crack on demand of school officials.
This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing.3 If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today. If Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack, it would not justify any search worth making. And the look into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing.
Souter's keeping his decision limited here: the argument made is there was enough suspicion to justify a search of pockets and bags based on another student saying "I got these pills from this kid." This is more about building a sense of what the 4th amendement protects, and affirming that your right to dignity on your person extends even further than your rights to be free of searches generally. There's something legally worse about strip searches than bag searches, and while that's always been the case, it's nice to see it confirmed.
Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure.
I love the smell of empathy in the morning. When you hear the Rushes of the world talk about how empathy isn't a key factor in determining the law, they're lying (or just stupid, probably.) When the Court has to judge the subjective expectation of privacy in terms of what is embarassing, frightening, or humiliating, it actually requires thinking about how someone else feels. The law requires this, and again, even conservative justices are backing this portion of the decision. It's that easy.
Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and havebanned them no matter what the facts maybe
Thank God Souter trashes that "well, kids are used to being undressed because of gym, so they void all rights to privacy" bullshit.
Petitioners suggest, as a truth universally acknowledged, that "students … hid[e] contraband in or under their clothing," Reply Brief for Petitioners 8, and cite a smattering of cases of students with contraband in their underwear, id., at 8–9. But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off.
I like this privacy guarantee too: the school's argument that hiding contraband in their underwear is just something kids do, therefore, we can search any kid is such a huge, sweeping claim that it deserved to be shot down. This isn't like claiming 'terrorists hide bombs in their underwear, so we can have strip searches at maximum security prisons,' this is like claiming 'Arabs hide bombs in their underwear, so we can strip search them at airports.'
The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.
Nothing really new, just more empathy.
So that's Souter. What about the arguments coming from the losing side, the army of one man against student privacy, Clarence Thomas:
This deep intrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which "the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order
Thomas doesn't really think that students have any rights in school, it seems, or at least, wants to limit their redress to the courts. Strip searches seem like they would fall a little bit outside the routine business of school administration, but evidently, Thomas thinks they should be par for the course; not only legal in specific cases, but in fact, generally available as an option for school administrators without any major legal standard.
A "search of a student by a teacher or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." T. L. O., supra, at 341–342 (footnote omitted). As the majority rightly concedes, this search was justified at its inception because there were reasonable grounds to suspect that Redding possessed medication that violated school rules.
Thomas spends a big chunk of his opinion talking about how generally, a search would be okay under the 4th amendment before gradually getting to the point about the strip search. Nobody's really arguing about the justification of a search of bags for drugs in this circumstance, just the degrading nature of the search involved. So he's just sort of stalling here.
Thomas goes on to cite the majority's reasoning as to why this wasn't an extraordinary circumstance (pills not that dangerous, not that many in question, etc.) and then dismiss it:
Each of these additional requirements is an unjustifiable departure from bedrock Fourth Amendment law in the school setting, where this Court has heretofore read the Fourth Amendment to grant considerable leeway to school officials. Because the school officials searched in a location where the pills could have been hidden, the search was reasonable in scope under T. L. O.
He's arguing that just because it's possible to hide pills in your crotch, the school has a right to search your crotch, period. As long as there's enough suspicion for a search at all, you have no special protections against abject humiliation.
Nor will she be the last after today’s decision, which announces the safest place to secrete contraband in school.
Yep, he's worried about a plague of students smuggling painkillers in their underwear. Like I said above: I'd rather live in a nation with students smoking ass-crack weed than a nation where students were required to present their ass-cracks for inspection.
And of course, note that Thomas draws no distinction between illegal drugs (marijuana), school contraband (Advil), and dangerous narcotics (crack cocaine). It seems reasonable to draw the conclusion that Thomas believes that if a school banned swear words, students could be strip-searched for ass tattoos.
But don't let me put words into his mouth:
In such an environment, something as simple as a "water pistol or peashooter can wreak [havoc] until it is taken away." Ibid. The danger posed by unchecked distribution and consumption of prescription pills by students certainly needs no elaboration.
Looks like strip searches are okay for water pistols and peashooters as well.
And our esteemed judge even has a way for students and parents to object to policies they don't like:
Restoring the common-law doctrine of in loco parentis would not, however, leave public schools entirely free to impose any rule they choose. "If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move."
Just move! That's a straightforward and easy way to resolve a problem with school administration that every family can easily take care of. The message here is that the courts do not protect the rights of students. Period.
Luckily for us this time, even Scalia and Alito don't give teenagers the ass-end of the Constitution that blithely.
