Thursday, June 25, 2009

Keep Your Clothes On

Supreme Court Says Strip Search of Juveniles Unconstitutional:

WASHINGTON (AP) -- The Supreme Court ruled Thursday that a school's strip search of an Arizona teenage girl accused of having prescription-strength ibuprofen was illegal.

The court ruled 8-1 on Thursday that school officials violated the law with their search of Savana Redding in the rural eastern Arizona town of Safford.

Redding, who now attends college, was 13 when officials at Safford Middle School ordered her to remove her clothes and shake out her underwear because they were looking for pills -- the equivalent of two Advils. The district bans prescription and over-the-counter drugs and the school was acting on a tip from another student.
This is one of those moments when I'm happy admit I was totally, 100% completely wrong in my prediction. Based on previous cases and the tone of the oral argument back in April, I assumed there were five, maybe six justices ready to greenlight strip searching kids (remember Justice Breyer's wistful reminisces "when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear,")?

But I was way off (or, I should say, reason prevailed mightily) in the 8-1 decision. Only Justice Thomas disagreed, in a 21-page dissent that was twice as long as the majority. In it he called for a complete return to the doctrine in loco parentis when kids are at school, and in which he dramatically warned that this decision "surrender[ed] control of the American public school system to public school students,"). Not even Scalia could go there.

But here's what Souter wrote for the eight (addressing the changing for gym argument brought up by Breyer in April):
"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...Parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment."
That last line is why this decision was actually a split ruling, 8-1 that the strip search violated the 4th amendment, and 7-2 that the school officials who ordered the search should be entitled to qualified immunity for their actions. In other words, they can't be held liable for ordering a search they did not know to be unconstitutional.

The case is Safford v. Redding (2009). The court ends its term next Monday.

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