June 25, 2009

That strip search was unreasonable — and unconstitutional — but it was not unreasonable for the school authorities not to know that.

Said the Supreme Court today in Safford Unified School District v. April Redding:
"What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear," Justice David Souter wrote in the majority opinion. "We think that the combination of these deficiencies was fatal to finding the search reasonable."...

The court also ruled the officials cannot be held liable in a lawsuit for the search. Different judges around the nation have come to different conclusions about immunity for school officials in strip searches, which leads the Supreme Court to "counsel doubt that we were sufficiently clear in the prior statement of law," Souter said.
School officials enjoy immunity from lawsuits for damages when the case law isn't clear enough that they should have known what they were doing is unconstitutional. Presumably, this case makes it clear now, and school officials can't be looking for drugs in a girl's panties unless they've got more information about the power and the quantity of the drugs and some reason to think the drugs are in the panties — more information than the accusation from another student that the girl had given her drugs.

Justices John Paul Stevens and Ruth Bader Ginsburg disagreed with the part about immunity, and Justice Thomas, standing alone, disagreed that the search was unconstitutional:
"It was eminently reasonable to conclude the backpack was empty because Redding was secreting the pills in a place she thought no one would look," Thomas said.

Thomas warned that the majority's decision could backfire. "Redding would not have been the first person to conceal pills in her undergarments," he said. "Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school."
Thomas leads the pack in deference to school authorities. Remember Morse v. Frederick, the "Bong Hits for Jesus" case? There, dealing with free speech rights, he wrote:
In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students. And courts routinely deferred to schools’ authority to make rules and to discipline students for violating those rules. Several points are clear: (1) under in loco parentis, speech rules and other school rules were treated identically; (2) the in loco parentis doctrine imposed almost no limits on the types of rules that a school could set while students were in school; and (3) schools and teachers had tremendous discretion in imposing punishments for violations of those rules....

To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools.... 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. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.

52 comments:

TRO said...

Yes, because everyone needs the Courts to tell them it is wrong to strip-search a 13 year old girl at school in search of Advil.

Sofa King said...

Wrong? No. Unconstitutional? Perhaps.

"Not Everything Wrong is Unconstitutional"

TRO said...
This comment has been removed by the author.
bagoh20 said...

What happened to this girl is far worse than any threat justifies. It's not like she had anthrax and someone had good proof.
-
If I walked up to security at an AC/DC concert and said: Hey, that Justice Ginsburg over there just offered me some Vicodin, I doubt it would be cool to strip search her against her will.
-
Something feels incredibly inhuman and dystopian about what happened to this little girl.

A simple unsupported accusation by another person should never be sufficient unless severe danger is involved and there is no other way to mitigate it. Especially from a kid with nothing at stake for lying (at least in the young mind).

TRO said...

Yeah, yeah, I understand there is a difference but that was not my point. If these so-called educators had known it was wrong the constitutionality of it wouldn't have come up. Here anyway.

To twist your phrase, "Not Everything Constitutional Is Right"

That Creepy Old Man said...

Hey, little girl, do you have Advil?

bagoh20 said...

If they refused to strip search her, what was at stake? She would be supplying the some kids with a harmless substance. Just how out of control could that get?

OOOh, soon everyone would be popping Advil and nobody would ever have any proof it came from the "pusher"?

I'd take my chances on that, before getting in some little girl's panties without telling the parents. Maybe, I'm jut weird that way.

traditionalguy said...

Schools administrators gone wild needed a limit set to counter their bogus line about being required to enforce all rules without any discretion used on the school administrators part. They are a disgrace to legal system, and Souter had to say it before the System would listen.

tim maguire said...

"Ignorance of the law is no excuse. Unless you are the law, in which case it's ok."

Got it, thanks for the clarification.

TMink said...

bagowater wrote: "What happened to this girl is far worse than any threat justifies.'

Any threat? Really? I can agree with you given the particulars of this case, but any possible threat? Are you serious or just exaggerating to make your point?

And what are your thoughts of how she was harmed by a strip search? Embarassed? Oh my goodness yes, but I need your help to understand the harm.

Trey

bagoh20 said...

TMink,

Congrats on getting the id reference.

I was obviously referring to the threat posed here, since I said Anthrax would be different.

The harm is obvious, if not then why even require clothes. If it happened to you or your daughter, I think you would get it.

Why even have a reasonable search protection at all. What's the harm if cops just walk up and drag you in for a strip search anytime someone simply accuses you doing something relatively harmless. It's just a little embarrassment.

I assume then my hypothetical with Ginsburg is fine.

Shanna said...

Ridiculous. School authorities need to start using some damn common sense.

ramfeezled said...

"Redding would not have been the first person to conceal pills in her undergarments," [Thomas] said. "Nor will she be the last [...]"

Um, except she wasn't a person who concealed pills in her undergarments at all. Clumsy statement from Justice Thomas.

Ann Althouse said...

@ramfeezled

He said "she would not have been"... that is, if they'd found drugs... He used the conditional. Perfectly not clumsy.

ramfeezled said...

I agree that "would not have been" is appropriately conditional, but I'm not prepared to give a pass to the "will" in the second clause. I would have said, "...nor would she have been the last."

But then, I am known among my surprisingly few friends as a pedantic ass.

Freeman Hunt said...

Maybe the administrators were tired of working in education, and this was their way of making an advertisement for homeschooling.

Too much immunity and power for school officials.

Not unreasonable to not know that? Give me a break.

Christy said...

My, my. The courts don't think much of the intelligence and decency of school authorities, do they?

TMink said...

Bag, I do get the embarassment, but I do not get the harm. Embarassment is a common human emotion, but I do not see it harming people unless the embarassment is persistent and done by people who the victim expects to protect them.

Honestly, I do understand harm, I just consider many things more harmful than a wrongful strip search.

If it were my daughter, I would be very angry and I would demand a public appology to my from the school officials. I might also work to get someone fired.

But I think the stupidity far outweighs the harm.

Thanks for talking about this, what do you think?

Trey

Smilin' Jack said...

That strip search was unreasonable — and unconstitutional — but it was not unreasonable for the school authorities not to know that.

And not just school authorities. I myself often used to grab and strip-search little girls on the street, because, you know, someone might have said they might be holding drugs. And when I was arrested, I would just explain to the judge, "Hey, even school authorities don't know that it's unreasonable to strip-search little girls--how could I possibly know?" And he'd agree, and let me go.

Now I'll have to find another hobby.

Joseph said...

Qualified immunity is way too broad and way too often a default compromise in cases like this--yes, its unconstitutional, but no, you're not liable. If we want school officials to devote any consideration to basic rights of students, they need to know that they will be held liable for their misconduct. Maybe apply against the school officials the zero tolerance policies they so love to enforce against students. I would hope the principal should at least have to find a new job.

bagoh20 said...

TMink,

The harm is the degradation of the individual inherent in search, and strip is the most degrading of all. Degradation has enormous power, it is always a tool of tyranny at some point in the process.

Maybe some of our legal minds here can explain, better why search is protected against, but it seems self-evident to me.

Even if the child liked being strip searched it would be offensive to a society that values the liberty of the individual to allow the state or even private entities to do it to a child without parental approval.
That's how I see it.

I am curious though, my law versed friends, what is the historic basis for protection from search. Why is it so offensive to our system as argued originally. Isn't it the British use of it to degrade the Americans?

John Althouse Cohen said...

"Not Everything Wrong is Unconstitutional"

This slogan is true, but isn't much help in trying to figure out what's unreasonable under the 4th Amendment.

Aaron said...

This is just another example of how our schools have screwed up priorities. like none of us want guns in schools, but soon that becomes throwing a good kid out of school for having an unsharpened plastic knife. Or a kid accidentally forgets he has a gun in his truck, remembers, and turns it in, but is still thrown out. sheesh.

Ditto on drugs. of course no one wants drugs in our school but advil? Really? are they scared she is going to cure people's headache? yes, yes, i know it is prescription strength, but here is a hint: if you want the same strength take a bunch at the same time.

and yeah, i wouldn't have granted immunity. apparently we get a free peek in our system, sort of like how a well behaved dog gets one bite. It was insanity to go to those lengths to out of a fear of advil. it was so obviously wrong, that the school should have known better.

I'm not a wimp when it comes to law enforcement. i like the death penalty. i am not so keen on the exclusionary rule. i think miranda is a bunch of claptrap. but we all have to draw lines somewhere.

Donna B. said...

TMink,

The embarrassment may not have been persistent, but it was done by people the girl looked to to protect her.

The harm is that they betrayed her trust. It will take much longer to get over that.

Cedarford said...

It seems there is a serious need for "lines" that won't be crossed without parental consent. Corporal punishment is generally now verboten. I'd add certain privacy lines - no strip or body cavity searches of kids. No "confessions" intimidated out of kids by over-enthusiastic teachers, rent-a-cops, or real cops that have legal consequences or disciplinary measures of such a nature as to impact a student's life.

And "petition" to school boards or distant State legislatures isn't exactly the best path for kids with special medical needs requiring a hypodermic injector or unusual religious needs that may get short shrift with locals wanting zero tolerance and a return of horse whips or a cabal of lawyers 300 miles distant in the State Capital.

At the same time, American schools are in terrible decline, particularly in both heavily black schools, now many Hispanic underclass dominated schools - from lack of motivation and disruption due to unchecked disciplinary problems.

And part of that is drug peddling, and one of the prime, usual hiding spots is in the suspected student's underwear. So you can't just tip all the way to "rights" of juvinile offenders or suspects.

1. Call the parent or guardian, get permission to search.
2. If they cannot be contacted, call the cops and/or child protective services.
3. Recognize that cops and child protective services will likely come for a case of suspected ILLEGAL DRUGS. They will not come for some stupid "zero tolerance" strip search for "concealed" Midol or Advil, or some kid "suspected" of having a banned pack of mint candy in their training bra.

Aaron said...

Btw, if you check the opinion (http://www.supremecourtus.gov/opinions/08pdf/08-479.pdf) it was all over a 400 mg pill of advil.

I looked at the big bottle i keep at my desk (a leftover from when i used to do manual labor). Each pill is 200 mg. A doctor told me that an adult like me can take 4 of those safely. not sure how much a 13 year old girl can take, but i am going to go out on a limb and say that it probably wasn't going to kill her.

TMink said...

Bag, I completely agree with your legal analysis.

It is just that I can think of so many things that would be much more harmful to a child that age. Honestly, I have talked to a dozen people about things that were worst in the last two days. Being a psychologist who does a lot of work with abuse survivors likely has skewed my perspective on things.

I am probably straining at a gnat.

Trey

Aaron said...

Btw, i am sure you guys are smart enough to know i am not a doctor myself, and that what is good advice for me might not be good advice for you. But we do live in an overly litigious society, after all.

knox said...

I wonder if Savana has a friend named Kristafer.

Sofa King said...

This slogan is true, but isn't much help in trying to figure out what's unreasonable under the 4th Amendment.

There's really nothing that's much help in trying to figure that out.

Anyways, it helps insomuch as it is a reminder that some things that may be "wrong" from a moral sensibility (e.g., lying to someone to gain consensual access to their premises) are not automatically unconstitutional. Constitutional rules are based on moral considerations but are not themselves moral commandments.

Jim said...

If a school official strip-searched my daughter looking for Advil - even to the point of having to jump up and down to prove she hadn't hidden them in her vagina, they wouldn't have to worry about what the courts thought.

They wouldn't make it out of the parking lot....

This was a couple of power-mad school officials humiliating a little girl. This was about power and the abuse of it to prove to this little girl that they could do anything they wanted to her and get away with it.

These are vile "human beings" and should be not only fired, but drummed out of society.

They're damn lucky that wasn't my daughter.

Kirk Parker said...

"... their bogus line about being required to enforce all rules without any discretion used on the school administrators part."

Yes indeed. Or, as I always say, "It sounds to me like you're describing a minimum-wage job there."

Joe said...

What strikes me is this is exactly the type of irrational abuse of authority and power that our founding fathers were protesting against.

The court was 100% wrong as far as damages are concerned. Then again, the court doesn't believe in much of anything so I'm not terribly surprised.

bagoh20 said...

I don't know what it tells us, but I was in high school in the 70's and a substantial portion of the class including me was "medicated" most days. Pot, alcohol, coke, even occasionally LSD. I still got good grades at minimal effort and learned a lot. I don't know what effect it had on the learning, but I did enjoy the instruction and paid more attention when high. Some classes like advanced sciences were absolutely fascinating.

I knew many people who used drugs and really found little difference in their intelligence or eventual success, provided they used common sense, moderation and eventually outgrew it as a major part of their lives. Some did not to their detriment, and others who did not use, but later pick it up developed other destructive traits.

This is completely incompatible with a parent's view of their child's conduct. I would be greatly concerned if I knew my child was doing the same. It's hard to explain why when I don't regret the experience in my own life.

Similarly, I would not be happy if my daughter was having the kind of sex life I did, but that was damn fun too.

I mostly just outgrew getting high, as I did masturbation. Or maybe that's just laziness, but still.

I can't explain why I would never recommend my own pleasant experience to my child. I would strongly dissuade it. It did waste a lot of time and money, not that others who went bowling or such didn't also.

How is this on topic? The administration would never have strip searched a kid in my school in the 70's. They would ask you, and if you denied it, and it was not in your pockets, then off you go, or they might call the cops or your parents, but no school official would have ever strip searched.

Just one kid's story for background. Thanks for letting me share. Flame on.

Synova said...

To put this in perspective a little bit.

I went for a regular check up today with a new doctor (so I'd be on some doctor's list in case I get sick) and I knew a couple of things would come up. Namely... pap and mamogram.

I saw a very nice doctor but I don't think that's why he was trying to be so *nice* about bringing up those things, and he seemed really *relieved* when I basically said, "Sure, I'm supposed to get those, right?" And he agreed and said he understood that a woman needed to sort of psyche herself up for those things.

If mental preparation is necessary to let a doctor you've gone to voluntarily look at your private bits even after having children and getting used to being exposed... how do we decide that it's really no big deal to strip search a teenager against her will?

Synova said...

"If a school official strip-searched my daughter looking for Advil - even to the point of having to jump up and down to prove she hadn't hidden them in her vagina, they wouldn't have to worry about what the courts thought.

They wouldn't make it out of the parking lot....
"

And if YOU strip-searched your daughter and made her jump up and down to see if anything fell out of her vagina, the cops would take you to jail for sexual abuse.

For perspective, please imagine if a parent strip searched their child and it came up in court that a parent strip searched their child.

Brent said...

These are vile "human beings" and should be not only fired, but drummed out of society.

Jim, I agree with your "they wouldn't make it out of the parking lot" - I would do the same to defend my daughter.

But I don't agree that these were "vile" human beings. While you and I both long for a world of more morally wise free agents, our nation has come to several ridiculous impasses because of the amount of damage done to outr society by tort lawyers.

Several of my family work in the public school systems here in Calfornia - and right now it is close to hell to be a teacher or aide. Threatened with layoffs as politcal pawns and the daily threat of parental lawsuits, it's a wonder there hasn't been a statewide walk-out for the way strike for the way they are treated, and all because they have the desire to do the noble task of teaching children.

My wife is a special education teacher here in a Southern Cal school district. Last week one of the developmentally disabled boys had a fast case of diarhea that soiled his clothes before he could get to the bathroom. He was crying and distraught, but my wife's aides worked their best to clean him up. And though the parents are advised to leave a change of clothes for the kids at the school, this child's parents never did despite repeated email and mailed requests.

When his parents were called, the father said he'd be right down with clothes. The father and mother arrived, went straight to the bathroom to see their son, and then cussed out - in plain view and earshot of another class and 8 teachers - both aides for their "slow" reaction to their son's needs. My wife stepped in and told the woman that was uncalled for and then instructed one of the admin women to call security, because the mother started walking toward and literally screaming at my wife, who did not back down.

Security came and the woman pointed a finger at them and yelled at them as well. The father and mother left a few minutes later, their humiliated son still in the bathroom.

Yesterday, my wife received a call at the school from an attorney representing the parents. The woman talking to my wife was polite and asked several questions, but when my wife asked "what is the purpose of your call?" the woman told my wife that her clients had "instructed her to consider all options available for examining potential mistreatment of their son". My wife transferred the call to the District Office.

This boy had never been a problem in any class at this school for his 3 years there, but his parents were known to be jerks to the staff.

Here's the bottom line - EVERY teacher I know (dozens)has more stories like that from just the last 2 years of teaching than all previous years combined.

Why should they put up with such crap? Why are people getting so short fused and quick to call lawyers?

School personnel are not perfect - but they are being called upon to do a publicly required job with more and more unreasonable demands.

Here's the final kicker - my brother-in-law - a 32-year teacher and coach at the same local high school told us this last Saturday that he and 3 other teachers have had it with the S**T the government is putting them through - all they want is to be good teachers - and are leaving public school teaching this year.


Sad.

bagoh20 said...

"For perspective, please imagine if a parent strip searched their child and it came up in court that a parent strip searched their child.

Exactly, what the hell has happened? We imagine the past as being a more restrictive, authoritarian time, but I'm seeing it being less "free" today.

traditionalguy said...

The atmosphere in Government schools has crossed the line 20 years ago. Instead of righteous authority punishing their violators with common sense and rewarding good kids, the unrighteous authorities now punish every kid in the miserable place for any thing that causes the Educators any trouble at all. If a bully beats up a victim, then they both get punished equally. It's like a traffic cop who sees one speeder, so he gives all 1000 drivers on that road a ticket too. In other words just oppress the hell out of everybody all the time.

Shanna said...

how do we decide that it's really no big deal to strip search a teenager against her will?


Only idiot school administrators make these rules. Half of them in my high school were coaches, who needed something to do when they weren't coaching, so they roamed the hall, harrassing people for no good reason. Stopping people in the hall because they are 5 minutes late to Calculus and making them go get a note from the teacher they had before...schools don't treat even 18 year old students as real people. They treat them like 5 year olds, except maybe vaguely criminal 5 year olds.

This whole thing is so patently insane that it makes my head spin. I remember getting my purse searched for cigarettes when I was in 7th grade (did not smoke then, don't smoke now), because somebody who I think was actually smoking decided to pin the blame on me. Nothing happened but imagine if someone had decided to do a strip search on this flimsy excuse, I would have left that school and never come back. 13 is quite young for this sort of thing. Hell, my boss had to do a pat down at the airport yesterday flying home and she has been mad about it all day.

Synova said...

If you want to know why, Brent, it's because the normal corrections of voluntary association have been destroyed.

While nearly everyone would agree that it's important to have an educated citizenry very few seem to realize that laws that remove the ability of both parents *and* schools to choose to voluntarily associate create a built in social pathology.

Yes, homeschooling and the proliferation of private schools weakens that a little but only a very very little bit.

Would the threat of a baseless lawsuit have any strength if being a douche-bag meant you got a letter from the school principal voiding the enrollment of the family? Do private schools have to keep the students of obnoxious parents who abuse the staff?

Synova said...

"Hell, my boss had to do a pat down at the airport yesterday flying home and she has been mad about it all day."

Yup.

The teachers and administrators who participated or approved could have been strip searched to show just how much of "no big deal" it was.

After all... someone was accusing *them* of something, too.

Brent said...

HOLD ON!

I am not making this up. I just got a call from a friend who is a coach for over 20 years at a middle school in a district about 20 miles from here. He just told me he is not returning to the "system" after he found that the money the State gave his district for Phys Ed and Performing Arts 3 years ago was being "returned" to the State because of the budget crisis, and so they are dropping 3 sports programs (not his) and the Band, Choir, and Art classes. He said he just told the District Superintendent he's not going through this again. My friend actually can go into the family business (concrete) so he'll be fine. But he loved teaching, at least till a few years ago.

gaywrites said...

Maybe many people here do not know the political (or at least perceived) make-up of the court, but I find it interesting that no one is railing against the conservatives about this decision. Sure people don't like the idea that these school officials were granted immunity, but if it were mostly the liberal voting bloc that gave them immunity? We'd never hear the end of it.

But when Justices Scalia, Roberts, Alito and Kennedy grant immunity (and Thomas would have had he not found the search CONSTITUTIONAL), no one makes a peep.

And not only that, but no one gave credit to arguably the two most liberal justices on the court, Stevens and Ginsberg, for getting it right and arguing that the school officials shouldn't have been given immunity.

Smilin' Jack said...

These are vile "human beings" and should be not only fired, but drummed out of society.

Now, now--let's remember that an educator's job entails long hours under poor conditions with minimal respect and low pay. The opportunity to strip-search little girls was one of the few enticements the profession had to offer. Now that that perk has been taken away, why would anyone want to be a teacher anymore?

I predict that this short-sighted SC decision is going to lead to an even steeper decline in the educational standards of our country. If you don't believe me, just look at the difficulty the Catholic Church is now having in recruiting priests, for similar reasons.

Pogo said...

Brent,
Wanna know why it's this bad?

Teachers are reaping what the union had sown.

phx said...

Schools administrators gone wild needed a limit set to counter their bogus line about being required to enforce all rules without any discretion used on the school administrators part. They are a disgrace to legal system, and Souter had to say it before the System would listen.

Church right there.

Synova said...

"I find it interesting that no one is railing against the conservatives about this decision."

I haven't noticed anyone supporting the decision... what, exactly, do you want people to do?

Zach said...

This might be an example of judicial empathy playing a role in the decision.

Most of the Justices (I assume) have had reasonably prosperous lives, were good students at good schools. They think of the situation from the perspective of the student being searched, or her parent.

Justice Thomas grew up very poor and went to a Catholic school (although he was raised a Baptist). It made a strong enough impression on him that he converted, and subsequently attended the seminary.

I attended public schools and my mom taught in them; it's my impression that when a school goes bad, it's because administrators can't keep order. Catholic schools, of course, are known for being very strict about this.

Is there a better candidate to find such a search constitutional than a judge who escaped terrible schools by attending schools with strict discipline?

Jim said...

Brent -

"School personnel are not perfect - but they are being called upon to do a publicly required job with more and more unreasonable demands."

I'm going to take a deep breath before I respond to this, and while I do I will acknowledge that the very best teachers can and do have extraordinarily tough jobs to do under trying circumstances; however...

(strap in)

I don't give a damn.

Not in general, but with respect to this particular case absolutely none of what you're saying has any relevance whatsoever.

I don't care if they work long hours. I don't care if they have tough jobs. I don't care if their wife hates them. I don't care if their children call them names. I don't care if their family pet defecated on their favorite pair of shoes that morning. I don't care if someone cut them off in traffic and they wound up in a 5-car pileup before they got to work that day. I don't care if they had to take a taxi that cost them $50 because their car had to be towed.

I DON'T CARE.

None of that excuses strip-searching a little girl and making her bounce up and down to prove there was nothing in her vagina.

Let me repeat: they made her bounce up and down to prove there was nothing in her vagina.

They're not law enforcement officers. They're not medical personnel. They had no right to ask the girl to get naked.

NONE. AT ALL. UNDER ANY CONDITIONS.

If you can't figure out that you have no business forcing a little girl to get naked then you have no business anywhere within 100 miles of one.

If you can't pass that test, and want to push it even further to make her bounce up and down to prove there was nothing in her vagina, then you have no business anywhere within 100 miles of another human being.

It's common sense. It's a sense of decency. It's understanding that you're not God. You're a low-level bureaucrat with no rights to see an adult naked, let alone a little girl.

There is no excuse. There can be no excuse. There never will be.

The second we start to even think that there might be something that would excuse this sort of abuse, we've given up our humanity.

Joan said...

Where did the naked, jumping-up-and-down story come from? SCOTUSWiki and the Cato website say the girl was in her underwear, which was moved aside. Isn't that bad enough?

A Lawyer Mom's Musings said...

"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."

-- umm, right.

And Clarence Thomas's oft-cited poverty-stricken family could have "simply" moved or private-schooled it, too.