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.
“Giving the government a superior interest is the Socialist view of the relationship between individuals and society.
Basically saying the individual is inferior to the collective.”
Well Gary, there no misunderstanding or misstatement in fact there.
Except all of it.
Giving the government a superior interest in this instance is not socialism. IT IS AUTHORITARIANISM. Authoritarianism is top down rule making imposed by force and is the political model of choice for fascists and dictators everywhere – including the unconstitutional criminals in the GOP. Socialism is an economic system where certain segments of the economy, but not necessarily all, are controlled as to best benefit all of society – like health care and energy – you know, those two segments of the economy fascist thieves have been screwing with modern society for years just to make their private profits to the detriment of all. Did I mention the innocent lives lost to pay for that blood money? Your misuse of the term socialism and your automatic assumption and resulting implication that socialism is somehow against individual rights when it’s NOT is wrong factually and indicative of your agenda (and protecting anyone’s rights isn’t it). That’s pure propaganda you’ve been swallowing there Gary and your regurgitating that nonsense helps no one. Unless you’re getting paid for it. Your misapplied terminology and grossly inaccurate implications reveal your either tacit or unwitting support of the Necon agenda to demonize progressives (by implied association with a wrongly demonized economics term) in anyway possible. Including calling an authoritarian action a socialist action in an attempt to smear progressives.
Now what would be your reason for doing that?
1) Complicity with the Neocon agenda
2) Ignorance of the Propaganda You’ve Been Fed and/or Ignorance In Fact
3) Deliberate Deception
That pretty much sums it up. So which is it? Mistaken or taken or complicit?
To The Regulars:
It appears we may have coordinated (and possibly multi-member team) troll attacks now. This is another example of increased sophistication in attempting to insert Neocon memes and tropes into discussions under the guise of reasonableness much like the disingenuous language Mike S. has cornered other trolls with recently. If so, that’s a good sign for us. It means we’ve moved up from freelancers to paid professionals. It means they are wasting resources battling us (to little but often hilarious effect). Be ready for the possibility of increased conflict.
Justice Thomas said:
“[p]reservation of order, discipline and safety in public schools is simply not the domain of the Constitution.”
What a fundamentally wrong decision to assert.
The preservation of order, discipline and safety in any public arena is absolutely the domain of the Constitution.
The Constitution defines the outer limits of the government’s capability to infringe upon the citizens’ personal rights and freedoms.
What makes this situation even most reprehensible, is that students are by law compelled to attend public schools, by virtue of that compulsion alone they should be afforded at minimum the same rights and expectations of personal privacy.
As a libertarian I am appalled that even the current standards of strip searching are considered Constitutional. Giving such superior weight to a “governmental interest” in contrast personal liberty interests is a slippery slope and a travesty. Giving the government a superior interest is the Socialist view of the relationship between individuals and society.
Basically saying the individual is inferior to the collective.
Thomas is saying that if it is not in the Constitution it does not count. Humm, maybe he better look at part of the same document which does not benefit him. Such as the right to own people as property and something about not being able to vote and all of the other Horse S*** that he seems to have benefited from, oh well. Too bad he is too stupid.
A wrong and no remedy, wow, who would have thought that this was ever possible? I guess the decision is based upon public dollars having to be paid. Oh my.
So Scalia will be in Dallas tomorrow. Yippie.
Mespo72,
Thank you for your analysis.
In today’s young people’s urban lingo, *creep* might fit Justice Clarence Thomas quite well.
Here’s the meat of Souter’s opinion:
“The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that “the search as actually conducted [be] reasonably related in scope to the circumstances whichjustified the interference in the first place.” 469 U. S., at 341 (internal quotation marks omitted). The scope will bepermissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id., at 342.
Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil,or one Aleve.4 He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.
Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. 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. But non-dangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School stu-dents of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even de-termined when Marissa had received the pills from Sa-vana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.
In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to thestudents from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.”
Anyone think of Solomon and splitting the baby? Souter doesn’t think strip searching a 13 year old American grade school student whose only “crime” was possessing two Advils and an Aleve under some misguided all or nothing drug policy is outrageous or violative of the Amendment’s standard–unreasonable. Oh, really. Put this search at prestigious St. Alban’s Academy in Georgetown where the Justices’ grandchildren frolic and see if the Black Robes are so tolerant of the “judgment” of school officials. We give “high degrees of deference” (Souter’s words) to our public servants at our peril, and this gang of drug war fear-mongers just gave away the whole store. And to add insult to injury, the majority holds that school officials may be protected by that oldest of excuses, “I didn’t know the law.” So much for the presumption that everyone knows the law and that ignorance is no excuse. Some ignorance , it seems, is more equal than others. I am going to try that excuse in my next bank robbery case, too. Perhaps the most blockheaded comment is this one:
“The unconstitutionality of outrageous conduct obviously will be unconstitutional, this being the reason, as Judge Posner has said, that “[t]he easiest cases don’t even arise.” K. H.
v.Morgan, 914 F. 2d 846, 851 (CA7 1990). But even as to action less than an outrage, “officials can still be on notice that their conduct violates established law . . . in novel factual circumstances.” Hope v. Pelzer, 536 U. S. 730, 741 (2002).”
That these Justices have so much trouble finding an outrage here tells me quite a bit about them, and next to nothing about outrage. I suspect they couldn’t find there own petards with a map, guide, and an anatomy book. Human dignity took a shot here and this gang that couldn’t shoot straight didn’t even see it fall.
Advil. They strip-searched an 8th grader for Advil. Ludicrous.
Well another right without a remedy. What a negotiation session that must have been in chambers. This opinion reads like a committee report and is just as helpful. Put it back on the shelf until we get a court that cares as much about individuals, as say, government institutions and bureaucrats.
“It is the old practice of despots to use a part of the people to keep the rest in order; and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages.” –Thomas Jefferson to John Taylor, 1798. ME 10:44
George,
That was a very interesting post. Thanks for the quote from L.Ron. I hope you post here again.
Another case upholding students rights that Sotomayor joined, which was decided before the Supremes decided the “Bong Hits 4 Jesus” case, upheld the right of a student to wear:
“The T-shirt, through an amalgam of images and text, criticizes the President as a chicken-hawk president and accuses him of being a former alcohol and cocaine abuser. To make its point, the shirt displays images of drugs and alcohol.”
http://en.wikipedia.org/wiki/Guiles_v._Marineau
See also, here.
The opinion left open the possibility of strip searches on better facts … noting the lack of danger of the particular item and the fact there is no real evidence she had it hidden on her person factored into their analysis. It also noted a search of her backpack and outer clothing was reasonable based on the say-so of another student and the fact she was at a party where alcohol was served (one at school, one at home).
I also find “Sonia Sotomayor’s prior rulings against student rights” unfair. It is ridiculous in fact to not cite her partial dissent that honored the privacy rights of students, disagreeing with the discretion the majority would supply to strip searches of students. You know, the issue at hand! Her dissent spoke in Ginsburg-like terms about the sensitive nature of children.
He links to his analysis of her opinions that appears to cite one ruling against student rights, one limited in scope [e.g., limited to her ability to run for school office] & based on precedent. In fact, he cites an arguably pro-student rights dissent [“Sotomayor wrote a dissent that such a decision was racial discrimination, a view that was obviously not shared by her colleagues.”] She also joined an opinion akin to one recently decided by the SC giving disabled students rights to school funding.
More needs to be supplied before baldy implying Sotomayor will be less pro-student rights than Souter, especially when the opinion here is (honestly) a bit thinner than some give it credit for.
Only Justices John Paul Stevens and Ruth Bader Ginsburg dissented on holding the vice principal, Kerry Wilson, financially liable? I’m sorry, but the state is losing it’s moral authority by the second. While I applaud the overall aim of the ruling, by not punishing this overzealous school principal, or at least allowing the family to pursue civil recourse against her, the rule of law, again, seems to be ignored in favor of a “pass” for the State.
The family and their supporters may wish to acquaint themselves with the Church of Scientology’s “Fair Game” Policy in reference to Ms. Wilson. As L. Ron said: “the law can be used very easily to harass … The purpose of the suit is to harass and discourage, rather than to win – if possible, of course, ruin [the target] utterly.”
http://en.wikipedia.org/wiki/Fair_Game_(Scientology)
PS. Sorry for the Scientology cross reference. Prof. Turley’s Scientology posts have got me poking around in wikipedia.
It is a no brainer case that revealed those who need to join Toto and his master and find a brain for one of them.
Those who felt the voyeur should not be held liable were like those in the Obama administration saying torture is wrong but lets move on.
The Sotomayer case involving military coup concepts and Fitzmas was similar in that they will go all the way across the ocean to the time of George to make governmental abusers of the citizenry immune.
http://blogdredd.blogspot.com/2009/06/sotomayer-case-on-military-coups.html
The government is immune from protrusions of the eyes and other appurtenances into our privacy until we “deal with the George”.
God is Thomas’ dissent ripe for satire. Apparently he likes the inner workings of dishwashers and other matters. Oh lone dissenter! You’re the bestest.
Justice Thomas presumably was unaware of the irony in his observation that “common sense is not a judicial monopoly.”
The SCOTUS got most of this decision right, but as JT references the instigator of this travesty is held immune from
a lawsuit. I am sorry about that because although the School district can be held liable, Kerry Wilson was the real instigator of the incident. However, it might be shown in evidence that the School District’s policies were such that he felt he was doing his duty. In any event I’m happy with the precedent and hardly surprised by the Thomas dissent.
Thomas dissents, of course.
Not Even Trying for Learned, Rational or a Pretense of Respect For His Office Dept.:
What a dirty old Fascist.
Yes!