Fourth Amendment Win!

Here’s the promised discussion of the Savana Redding case:

This decision makes me happy! It’s a victory for the constitutional rights of public school students.

It also really surprises me, for two reasons:

1. From reading the transcript of the oral argument, it really sounded like the Justices — all of them except maybe Justice Ginsburg — were getting carried away in the fear of a youth drug problem, so much so that they were leaning in the direction of that danger outweighing the constitutional rights of students. Now, I agree that it’s a serious problem, to be taken seriously, but I was really worried that they were being cowed by it. They didn’t seem much to care that what they were looking for was Advil, not… meth, or Vicodin, or acid, or marijuana, or…   but the important distinction madeit into Justice Souter’s opinion (“He must have been aware of the nature and limited threat of the specific drugs he was searching for”) (Nurse, any health care contributions on that topic? How better to control that problem? Its serious health risks?)

2. I found it likely that they would, as they seem to so love doing, rule as narrowly as possible. (i.e. say that the school officials did have qualified immunity, and then decline to rule on the constitutionality of the search.) They ruled on both! (Although they didn’t agree as fully on who should or shouldn’t be granted qualified immunity.)

What they ended up deciding (the majority, anyway — Justices Stevens and Ginsburg took issue with this part) was that the various opinions that have been issued by various courts on this topic were different enough, with enough good reasoning, that it wasn’t clear to the officials conducting the search that their actions were illegal. What they didn’t decide — they’ll let the 9th Circuit do it, which they haven’t, yet – is whether the DISTRICT itself is liable.

I’m gonna go ahead and agree with Justice Stevens here. As he once wrote, “it does not take a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.”  The precedent here, referenced again and again, was a 1985 case, New Jersey v. T.L.O., that established that whole bit about the search being “justified at its inception” and “permissible in its scope” — other lack of clarity aside, these two pieces are clear and long-standing, and the officials clearly failed to meet the standards. If they wanted to institute a policy allowing such searches (which I think they’d have to do — they aren’t just inherently allowed) they should’ve had a heart-to-heart with a lawyer first. Let’s not get so hung up on technicalities that we ignore the obviousness of the wrongdoing here. It was obvious to most of us — should’ve been obvious to the school officials, too.

A few questions remain for me. One of the standards is that the search be “not excesively intrusive in light of the age and sex of the student…” — so I’m curious about the relevence of the sex of the student. Are female students more protected than male students? If so, why? (Oooh, RIP the ERA.)  Or is the point that the searching officials must be of the same gender? Nurse, is there any health justification you could throw out, even as devil’s advocate, for this kind of distinction?

ps. You may be wondering — I was — what Justice Thomas was thinking in dissenting on the constitutional issue. In a nutshell, he says that the court shouldn’ interfere in the administration of public schools (meaning that they shouldn’t enforce constitutional rights in a school context?!?) He goes on. But you get the idea.


The Supreme Court ruled the strip search of Savana Redding unconstitutional this morning. Souter wrote the majority opinion — there was no real evidence that what they were looking for posed a real danger, or that she had it… there.

It’s complicated to say what the split was, since there were several issues being decided (was it constitutional, were the officials liable, was the district liable) but it looks on a quick glance like everyone except Justice Thomas (duh) found the search unconstitutional.

The school officials are not liable for their actions. Though some dissented on this.

Is the district? Back to the lower court.


Strip Search Update

Lawyer: The Supreme Court took up the Savana Redding case (which we previously discussed)yesterday. We’ll certainly discuss the ruling, when it comes, but in the mean time, the New York Times gathered some kind of hilarious quotes from various justices trying to properly discuss the issue of who’s likely to put what in her underwear.

It seems a lot of debate went on, some of it uncomfortable and hilarious, and the term “crotching” was introduced, but I still want to know how they’re trying to argue that there wasn’t a Fourth Amendment violation. Where was the reasonable suspicion?  I don’t think a tip from a seventh-grade girl with a grudge counts.

Justice Souter also made the argument that, basically, the safety of the students is worth their embarrassment. If they had reasonable suspicion that she had a drug that actually has the potential to be harmful — okay. But they had a vague hunch that she had IBEUPROFEN. No one’s safety was at risk, and embarrassment is a mild word for the psychological effect of this sort of thing on a 13-year-old girl.  I can’t help but feel that Justice Souter’s comment implies that students somehow have less robust rights than other citizens. It’s embarrassing, yes, but students also have a right to a certain amount of privacy, just like everyone else. The police can’t come in your house because your neighbor whose tree you cut down says they should. A student — and especially one who is subject to compulsory school attendance at a public school — has all the same rights.

Now, granted, it’s possible to say that the school handled this particular case badly (their suspicion wasn’t well-founded; they went straight for the search without first asking her reasonable questions), but there is still a question to debate here – WOULD they have the right to conduct this search if the circumstances were more appropriate? It’s only with broad applicability that things like this get to the Supreme Court.

Are there alternatives? If the school has a true reasonable suspicion (side question: what constitutes reasonable suspicion in this context?)  that a student has, say, oxycontin tablets on her, and they’ve searched her locker, bookbag, and pockets, what are their choices? They could call her parents and/or send her home. I would say suspending a student for the afternoon and/or involving her parents is less extreme than asking her to strip.I’m sure there are other possibilities, too –any creative thinkers out there have an idea?

Bottom line right now: Drugs are scary, and the schools are trying hard to protect students from the harm they can cause, but that doesn’t give them the right to infringe on citizens’ constitutionally-granted liberties. If a liberty is protected, that’s because it was deemed important enough to be in the constitution, not just when it’s convenient. We’re not talking about national security here. Work a little harder. Be creative. Find ways to keep kids safe AND keep their liberties intact.

Stay tuned.

Ping-Pong Post: Strip Search

The basic case: a 13-year-old girl was strip-searched because the school suspected that she had prescription-strength ibeuprofen pills. Why did they think this? Because another 13-year-old girl said she did. And if there’s any creature we know to be super-loyal, it’s the 13-year-old girl. They also claim to have seen her acting “unusually rowdy” at a dance a few months earlier. Which to them means she was intoxicated at that time. She had no disciplinary record.

Nurse: It should be noted that this was part of a “zero-tolerance” drug policy. To me that says it was clearly meant to be an example in a way, or a strong statement. A misguided one, I’d say, but . . . I’d bet that ibuprofen wasn’t really the reason they did it.

Now, off to the Supreme Court!

Lawyer: It sounds as if they were doing it on principle, rather than in service of an actual laudable goal. Which definitely isn’t a good start if they wanna win this one.

Leaving aside for a moment the specifics of this case, let’s just think a minute about the basic principle in play here: restrictions and intrusions are acceptable, to a point, if the goal they accomplish is sufficiently important. Right? We allow x-rays, pat-downs, the “foot strip” search, and to be asked to remove any kind of bulky garment at the airport, in the name of safety, because the risk has been established. But we don’t allow law enforcement to break into private homes without a warrant. What we’re looking at here is going to fall somewhere on that continuum: the goal is keeping ALL illegal drugs out of schools. Just how far are we as a society willing to go to achieve that?

Nurse: Let’s not forget that kids are required by law to go to school, but no one has to go to the airport.

Lawyer: I think that’s a large part of why we’ll accept so much intrusion at the airport, when things like this make us bristle so hard.  I don’t know if there’s an absolute standard here — only what society will and will not accept. Also, I’d venture to guess that how far we’ll go should be different for narcotics and hallucinogens than for a pill the strength of two advil.

Here’s a quote from the article:

“Her assertion [that she has no disciplinary record] should not be misread to infer that she never broke school rules,” the district said of Ms. Redding in a brief, “only that she was never caught.”

Lawyer: WHOA THERE. Come again? So under school rules, I guess all students are guilty until proven innocent? There is NO goal that warrants that assumption.
Is there any case in which a strip search would be appropriate? Tough to say.
A pat-down? Sure. A locker search? You could convince me.

Nurse: I’d say honestly, no! Also, this student states that she wasn’t asked if she was carrying drugs before she was searched.

Lawyer: Yes, that was clearly a mistake. No one seems to claim that that particular piece was acceptable.

Nurse: AND, I’m not a psychologist, but it seems to me to be common sense that being strip searched at school would be traumatic for an adolescent who might have body issues and social insecurties.
Lawyer: So there are really three questions here.
1. Was the school wrong to search this girl in this way?
2. Is it ever okay for a school to search a student in this way?
3. Is a lawsuit against the school and/or its officials an acceptable, appropriate way to deal with this issue?
I think you’re going to have a tough time convincing any of us that the answer to #1 is no. It seems pretty clear that they overstepped, unless they have some good evidence they haven’t mentioned yet.

Nurse: But we need to think about why! Why is this an overstep? Would it be an overstep if it wasn’t done to a young teenager? If it wasn’t in a place that the law mandates she be? If they really thought she was using or selling dangerous drugs? I guess some of this is #2.

Lawyer: #2 is tricky. If a student comes out of the bathroom with a bloody nose and a lot of energy and has a previous arrest for cocaine, can we search her? What about if a teacher in the bathroom heard sniffing and thinks she might’ve seen a little plastic bag go down the girl’s shirt? The problem, of course, is that things like this always end up with a resonableness standard in them, which has to be vague, but is, well, vague, which opens the door to abuse.

Nurse: I still don’t think a strip search is appropriate. I really don’t. I think we have to find other ways– a bathroom monitor, a locker search, fine. That actually leads me to another question– some school athletic programs have random drug screenings. Is that ok? Is it ok if it’s done to the whole student body? How is that the same and/or different?

Lawyer: Well, at a minimum, an athletic program is opt-in, where school is not. But I think the goal there is perhaps even more complicated, especially given the headlines in baseball this last year or two… a whole new post on that, I think, at some point.
And as for #3 — well, what are her other options? Anything that get to the supreme court like this clearly isn’t about the money. It’s about clearing up an important principle in the laws that govern our society. So I’m going to say yes, it’s appropriate. The argument against it is that a successful lawsuit like this will encourage more lawsuits. But as long as there’s doubt about what’s acceptable, I think the lawsuits are actually a good thing — they’re allowing society to correct itself.

Nurse: But she’s suing for financial damages? I don’t know that that seems appropriate, really. I understand the need to challenge the practice under the law, but how does money enter the picture?

Lawyer: Money money money. That’s how our system is structured – that’s how you challenge the behavior. If the school or the official is forced to pay punitive damages, it’s only really to establish the inadmissibility of the behavior, and to deter others from disregarding the ruling against it. And when you think about it, in many cases, that basically works.

Nurse: Also, she was strip searched by the school nurse and a secretary. Is that either of their jobs? Does that undermine the role of the nurse? I sure think it does. You can bet that girl never went to the nurses’ office for help after that.

Lawyer: Agreed. That’s not right. But then, it also wouldn’t be right for it to be one of her teachers. Or a guidance counselor. I wonder what would’ve happened if the nurse had refused to participate. Likely they’d have recruited another female staff member. But at least a point could’ve been made. I’ll be surprised if the school wins this case. You can quote me on that.