Dispatches from the Creation Wars

The Supreme Court ruled 8-1 that a school that performed a strip search of an 8th grade girl in search of Advil violated her privacy rights (and yes, I knew without even looking at it that Clarence Thomas would be the one in dissent; he has said many times that he views schools as little more than prisons for students where the warden’s authority may not be questioned by the courts).

So why is it only a partial victory? Because while the majority found that the search was unreasonable when looking for Advil, it would be just fine if they were looking for illegal drugs. And if they had just stopped with searching her backpack without probable cause, that would be okay too.

The officials in Safford, Ariz., would have been justified in 2003 had they limited their search to the backpack and outer clothing of Savana Redding, who was in the eighth grade at the time, the court ruled. But in searching her undergarments, they went too far and violated her Fourth Amendment privacy rights, the justices said.

Had Savana been suspected of having illegal drugs that could have posed a far greater danger to herself and other students, the strip search, too, might have been justified, the majority said, in an opinion by Justice David H. Souter.

“In sum, 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,” the court said. “We think that the combination of these deficiencies was fatal to finding the search reasonable.”

The Supreme Court has long held that the probable cause standard did not apply to students in school as it applies to everyone else in society, without any constitutional justification for such a conclusion.