In a major victory for student right, the Supreme Court has ruled that the strip search of a 13-year-old middle school student was unconstitutional. The Court ruled 8-1 with only Justice Clarence Thomas voting with the school in the case. For an earlier column on the case, click here. However, the justices also voted to protect individual school officials from such lawsuits.
The Court ruled in the case of Savana Redding, who in 2003 was a 13-year-old student strip searched by the teachers at Safford Middle School in Arizona in a mad search for her hidden drug stash. . . Ibuprofen.
In this case, the vice principal had discovered prescription-strength ibuprofen pills on one of Reddings’ friends. That friend then accused Redding of providing her with the pills: typical flipping of an Ibu-head.
Redding was pulled from class by a male vice principal, Kerry Wilson, who led the interrogation and had a nurse and his assistant strip her and search her. No drug were found in her underwear or bra (despite the fact that underwear searches have proven successful with lawyers recently).
The Ninth Circuit ruled that “[c]ommon sense informs us that directing a 13-year-old girl to remove her clothes, partially revealing her breasts and pelvic area, for allegedly possessing ibuprofen … was excessively intrusive.”
In his majority opinion, Souter held:
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. See Brief for National Association of Social Workers et al. as Amici Curiae 6–14; Hyman & Perone, The Other Side of School Violence: Educator Policies and Practices that may Contribute to Student Misbehavior, 36 J. School Psychology 7, 13 (1998) (strip search can “result in serious emotional damage”). The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances.
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 have banned them no matter what the facts may be, see, e.g., New York City Dept. of Education, Reg. No. A–432, p. 2 (2005), online at http://docs.nycenet.edu/
docushare/dsweb/Get/Document-21/A-432.pdf (“Under no circumstances shall a strip-search of a student be
conducted”).
There was great concern about the case going to this Court which has repeatedly ruled to strip students of protections and rights. While the Court ruled that the search was unreasonable, it also ruled that individual school administrators could not be sued.
In what is likely his last opinion on the Court and a worthy swan song. Not only did Souter go out defending the liberty interests of students, but he showed his ability to unify the Court (with the exception of course of Thomas). Justice David Souter held that the search was “embarrassing, frightening and humiliating” and violated her subjective expectation of privacy. However, Souter also held that the division over the case shows that immunity is appropriate in this case. Only Justices John Paul Stevens and Ruth Bader Ginsburg dissented from saying that school’s vice principal, Kerry Wilson, could not be held financially liable.
Justice Clarence Thomas continued his consistent opposition to such individual rights, particularly when invoked by students. In a signature line, he wrote “[p]reservation of order, discipline and safety in public schools is simply not the domain of the Constitution. And, common sense is not a judicial monopoly or a constitutional imperative.”
Souter’s decision is also likely to add to the regret of his departure for civil libertarians. This is particularly the case given Sonia Sotomayor’s prior rulings against student rights, here.
For the Souter opinon, click here 08-479.
For the Thomas dissent, click here
For the full story, click here.
A fantastic read….very literate and informative. Many thanks….what theme is this you are using and also, where is your RSS button ?
Mike:
I totally concur.
At some junction often the best conclusion in discussion is an understanding that certain fundamental expectations about the topic are simply different. That doesn’t necessarily make one wrong on either side, just that the premise(s) will lead to different conclusions.
And yes, we both want the best for the individual in society is strong individual liberties that are protected from encroachment.
Til later . . .
Gary
Gary,
We’ve reached the point where we will have to just agree to disagree. Many of the points you made I disagree with:
“My fear about the sociopath taking over in a Libertarian Society is far less than yours.”
“I don’t concede that it is a fundamental defect at all, and with a little thought (presuming it is even found to be a mathematical modeling instability at all), the problem can addressed within an expanded application of the base libertarian principles.”
“I can’t say yet, but just as an example, it is also possible that the monopoly question, in a truly free market, it is a self limiting possibility, that the abused consumer base would eventually revolt, or that competitors would eventually make a concerted major thrust to break such a monopoly”
“There is less to manipulate in a libertarian system, decision making and control is far more distributed and harder to glom.”
“It is in complexity that immoral people can “play the system”, there is simply less play in a libertarian system.”
Now we disagree on all of the above points and while I could muster arguments against it, it would devolve on my opinion vs. yours and in truth one of us could be wrong, or we could both be wrong and there is too little evidence for a Libertarian system even coming into play to provide for “for instances.” While I believe I’m right, I’m also fully aware that that belief is based on my opinion and view of the world. You probably feel the same and neither of us can provide actual facts to prove our propositions.
Yet this dialogue has been fun for me and I hope for you. We must always, in my opinion, constantly assess and reassess our
concepts about the world. You have given me much food for thought also and I can see that I need to review my premises and my arguments. Like you, not as a retreat per se, but as a renewal to see which have become stale and which need to be revised.
The happy part of this is what we both agree on. We both are strong for people’s liberties and against the encroachment of any entity on those liberties. We may see the politics and social constructs from different perspectives, but when it comes down to basics, we’re on the same side. I’m looking forward to further discussions on other issues.
Mike
Mike:
My fear about the sociopath taking over in a Libertarian Society is far less than yours.
I can see the possibility of runaway success, driven by whomever, sociopaths or just avaricious businessmen, causing it to crack, but that is only at the highest levels of success within the society, where influence by mass scale is the enabling component.
I don’t concede that it is a fundamental defect at all, and with a little thought (presuming it is even found to be a mathematical modeling instability at all), the problem can addressed within an expanded application of the base libertarian principles.
My concession is not that it actually is a problem with libertarianism, but rather I can see it could be, and requires some more thought on it on my part before I feel competant to take a stand.
I can’t say yet, but just as an example, it is also possible that the monopoly question, in a truly free market, it is a self limiting possibility, that the abused consumer base would eventually revolt, or that competitors would eventually make a concerted major thrust to break such a monopoly, creating products that are cheaper, better, are compatible with the monopolizer’s products, or the monopolizer gets so bloated and complacent it implodes from its own inefficiency (ala soviet union, even PRChina, possibly Iran). Or any number of other possible selflimiting outcomes that I have not had time to consider.
I am not saying this will happen, I am just saying these are natural also plausible possibilities of entropic self-limitation.
But at the more normal levels of domestic life, sociopaths would have a far tougher time manipulating the system and manipulating people in any legal sense.
Sure there can be con men, abusers and narcicists, but they can exist in any system of govt; the target question here is would they prosper anymore under libertarianism, and I would say not.
There is less to manipulate in a libertarian system, decision making and control is far more distributed and harder to glom.
Libertarianism in its simplicity is harsher in many ways, but also purer in its blatant realism to the society’s members. They know they can’t expect to get away with the same inefficient/lie-to-yourself crap, and plan accordingly.
It is in complexity that immoral people can “play the system”, there is simply less play in a libertarian system.
Gary,
I understand your argument, Mike’s attempting to shed light on what I consider the blind spots in your thinking much better than I would. I did read your article, and it’s obviously well thought out and written. At one point I could have gone through line by line and agreed with every single one. Believe me when I say I know where you’re coming from, I had the same blind spots myself.
What I was saying in my last comment is that your reading of the Churchill quote was based on your own bias rather then on historical and social context. If we’re going to quote great men at each other, let’s make sure they were saying what we think they were saying.
I’ve been on a kick lately about using words accurately. You can ask my wife, I spent most of Thursday correcting her that I was Barbecuing not grilling.
Gary,
Thank you for considering the issues I raised regarding Libertarian governance. To reiterate, I would actually love to see a world where we could have such a society. I style myself as an iconoclast and as we’d both agree I would fit best in a Libertarian framework, where presumably people would be non judgmental of others.
I do not think humans are evolved enough socially to be able to handle a Libertarian Society, without it being taken over by the sociopaths among us. While during my career as a Social Worker/Psychotherapist I actually worked with, and sometimes for sociopaths. They are most difficult people to deal with, particularly since they are generally completely charming and charismatic. Human society and human science are barely able to cope with them now and won’t be for a long time coming.
In fact we would probably agree that most of our political leaders are to a greater or lesser extent sociopathic. Set them loose in a Libertarian framework and they will tear it to shreds, while convincing many they will be implementing it.
That is of course, however, my surmise but the basis of it was set years ago in my teens, after reading Rand, being enthused by her ideas being myself an outre’ nonconformist in High School and then ultimately dismissing them not for their lack of attraction, or for ideas of human psychology, but for American History particularly Teddy Roosevelt’s battles.
(The link below leads to a great SF, very short story, by Kurt Vonnegut from 1961. This story framed my context for becoming enthusiastic about Rand and from a Libertarian perspective I think you will enjoy it.)
http://instruct.westvalley.edu/lafave/hb.html
If I owned a lot of stock in a major corporation I would expect the CEO to be profit driven in outlook. I would want her/him to keep maximizing profits and gaining market share.
That is the value neutral purpose of any business. What we’ve seeing recent years is that attitude on testosterone. In the past part of the equation was to grow the business/profits, while ensuring its future viability and sustainability. Now the object is to just increase profits and hope someone bigger gobbles you up. The trend is definitely towards creating mega-entities and thus gobbling up the entire market.
In Microsoft’s case anti-trust laws finally took notice, since their business practices evolved into greater ruthlessness. Then to the EEU also stopped them to an extent.
The question then becomes how can a Libertarian Society be structured in a way to ensure that oligarchy and corporate blackmail won’t be the ultimate undoing of its principles? I don’t know of any ideas and/or theories that would ensure this and I suspect most Libertarians would bridle at the concept.
The reality is if people like us, coming from different viewpoints can find some basis of agreement, then maybe sometime in the future we really can find a way to humanely and fairly govern ourselves allowing each person to live up to their own potential.
Mike:
On this monopoly/cartel issue, you raise some very good points here. And to be sure, looking at it top down, monopolies are almost always no good for society at large.
You assert that without some kind of meta-law, companies under a Libertarian system of government would inevitably grow larger, buy up all means for their competition to even reach their customers, proprietorize all the interfaces to using their products or services, possibly blackmail their customers against using other companies, etc., until they have achieved complete domination of subject goods and services and effectively locked out the possibility of competition.
Worse yet, you raise the more serious spectre of such companies gaining control over a commodity or service that the public simply cannot do without, and thus begin to control far more than their commercial offerings realm, into an area of national security.
And you point out that all this could be done legally under a Libertarian set of laws, since at no point did they threaten or do violence to another, and any infringements they did were all in the realm of voluntary merchantile competition.
To tell you the truth, I will have to dwell on these scenarios a little bit more in depth; your arguments have the ring of plausibility, though in the past most super-monopolies were made possible by governmental charter. You assert that this will happen even without govt’l regulation supporting it up, and without govt’l regulation keeping it down.
This is of course a claim that there is an axiomatic hole in the commercial system of free-enterprise, basically runaway success of a company (at the expense of all companies in the same field).
I would reluctantly agree that if such a total overarching success is possible in a free-market system, then that success would compromise the free market.
(But I wouldn’t say that Microsoft was that total, it was vast and ubiquitous, but there still was competition going on.)
It would seem there might be a number of libertarian laws that would be broken for such a monopoly to form. There are concerns related to the contract of adhesion, and the tragedy of the commons.
If I could not find a viable libertarian retort to this problem, I might concede to some kind of top-down law based upon libertarian principles. Libertarian law almost as a base principle does not like laws from above (edict or fiat laws), but has a faith that all meaningful complex laws are a resultant emergent phenomena from the the few base principles of libertarianism (e.g. you can do anything you wish as long as it does not harm another in the process).
In this way it seeks to keep society a self-organizing entity with as little centralized decision making as possible.
I think more about this, thanx for bringing it to my attention.