Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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.
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Those pushers are usually packin' heat, you know. That's a reasonable expectation. Now where could a thirteen year old girl hide a pistol on her person?
I mean, a gun - now that 'could have posed a far greater danger to herself and other students' than a joint or a dose of ecstasy, right?
I just got to get me a job in school administration, now that they threw me out of the Catholic Church.
Posted by: Gingerbaker | June 26, 2009 9:30 AM
/snark on
Ah, the Court always does such a nice job explaining to future authoritarians how better to cover their collective asses.
You simply need to broaden your stated objectives in conducting the invasive search and seizure.
1. You must write down that you suspect the teen-aged girl of possessing "prescription-strength painkillers of various kinds, to include but not limited to ... , along with other illegal and/or harmful substances."
2. You must also allege/suspect that she may be distributing these dangerous substances to other students.
3. And of course, you must write down that you have probable cause (probably information from a confidential informant- another administrator, perhaps) that the girl is hiding the dangerous contraband in her underwear and/or body cavities.
Super! Thanks, Supreme Court, for clearing that up for authority figures everywhere. We can probably just print up a form that can be filled out by one of the secretaries. That will make it much more efficient and less time-consuming. All that burdensome paperwork, you know.
Now, we can get down to business, snatching kids and strip-searching them with no warrants, no police or court involvement, and with no downside or checks on power whatsoever.
What a great victory for truth, justice, and the American way!
/snark off.
Posted by: threetorches | June 26, 2009 9:36 AM
Clarence Thomas is quite the embarrassment. A glaring failure of affirmative action. Let's hope Sotomayor will help even that out at least.
Posted by: MikeMa | June 26, 2009 9:37 AM
I was sitting (not inching, sitting) in downtown detroit post-tiger game traffic yesterday when i heard this discussed on NPR. it was reported as an 8-1 decision there, and (like Ed) I immediately knew (believed I knew - it was confirmed at the end of the story) who the lone dissenter was. I do remember hearing that Justice Ginsburg mentioned during the arguments that her colleagues, all men, had failed to appreciate what Ms. Redding had endured.
“They have never been a 13-year-old girl,” Justice Ginsburg said. “It’s a very sensitive age for a girl. I don’t think that my colleagues, some of them, quite understood.”
Apparently one of them still doesn't understand.
Posted by: dean | June 26, 2009 9:39 AM
The case went pretty much according to precedent, which apparently is too much for Clarence. From the invaluable SCOTUSblog wiki:
Posted by: kehrsam | June 26, 2009 10:05 AM
Where are all the conservatives and their faster-than-light righteous indignation!?!? The government forces students to go to school, shouldn't there be profound protections of the individual rights of students? Isn't the conservative movement all about protecting individual (corporations) from the abuses of big government (with the exception of control of sex)?
Posted by: Lorax | June 26, 2009 10:14 AM
Rights don't apply to teenagers because "won't somebody please think of the children?!!!" The "reasoning" is that we have to limit the rights of teenagers in order to protect them because, you know, they might do something dangerous that adults would never, ever do like using drugs or having sex. And of course minors are powerless to stop the abuse of power. That's why I think the voting age should be lowered to 16. That wouldn't affect this particular victim who is only 13, but I think it could go a long way in changing the atmosphere of schools in general.
Posted by: catgirl | June 26, 2009 11:26 AM
I'm not a violent sort of guy. I believe in the law and due process.
That said, if some sick pervert strip searched my daughter or one of my sons at school, I'd be hard pressed not to kick his/her sorry ass - consequences be damned! I'd be willing to risk a jury trial on that one.
This decision just gave cover to any scumbag with a fetish for underage children to strip them naked and cop a feel with only the flimsiest justification.
Posted by: Ken in Tucson | June 26, 2009 11:27 AM
This is f**ked up in so many ways.
Why is it that people with a little bit of authority feel the need to abuse it in such a sick way? I'm a teacher and there's no way in hell I'd want to strip search someone. If that suddenly becomes part of the job description, I'm done. She can keep the advil.
Posted by: Eric | June 26, 2009 11:53 AM
Catgirl,
I hate to break it to you, but polls (and my personal experience as an educator) have shown that the under 18 crowd are more likely to give up rights than attempt to defend them. They aren't big fans of 1st amendment rights for speech and religious beliefs they don't agree with, I regularly see them arguing against the 4th amendment (usually making the "I don't have anything to hide argument). Polls have shown them willing to give up free speech and 4th amendment rights for "protection," they also show that nearly half believe that the government has the power to censor the internet.
---------------------------
Ed,
Just curious, are you saying you disagree with T L O?
Posted by: dogmeatIB | June 26, 2009 12:07 PM
Is it any surprise that they believe rights are not worth standing up for when obedience and submission has been drilled into them their whole lives? Of course they don't worry about giving up their rights when they don't have any to begin with. They should be given the right to vote and they can vote as they wish. If they really want schools to suppress all of their rights, then they can vote to support that. But maybe if they have some control over their own circumstances, they will care more about doing something. We shouldn't say that they shouldn't be allowed to vote just because they would vote wrong.
Posted by: catgirl | June 26, 2009 12:44 PM
Only Justice Clarence Thomas would have ruled the search constitutional. “Preservation of order, discipline and safety in public schools is simply not the domain of the Constitution,” he wrote.
Did he say where in the Constitution it says it doesn't apply on any specific part of US soil? Oh, and did he say how schools, both public and private, have managed to stay pretty safe without strip-searching teenage girls?
“Redding would not have been the first person to conceal pills in her undergarments,” he wrote. “Nor will she be the last after today’s decision, which announced the safest places to secrete contraband in school.”
Wow, this guy's amazingly eager to get in high-schoolers' undies, isn't he?
I gotta say, I really can't argue with Thomas' legal reasoning -- because he doesn't have any! It's all just "Screw the Constitution, screw the law, screw all those longstanding notions of basic decency, don't you understand we're all in danger??!!?" Aren't courts supposed to put a brake on hysteria?
“We can only hope that this decision does not compound the problem further,” Mr. Wright said, “by emboldening more students to smuggle such contraband into the nation’s schools.”
Translation: "Omigod teenagers are so devious and dangerous we have to declare martial law and turn our schools into prisons before they gang up and destroy America!!!" Good Gods, this degree of paranoia and hate is just ridiculous -- and worse in a school official.
Someone needs to sit these authoritarian morons down and remind them that a) pat-down sesarches aren't exactly useless, and b) anything more invasive than that requires a WARRANT!
I get the feeling the majority knew this scrip-search was flat-out wrong, but they still don't have the guts to really push back against all those decades of "WAR ON DRUGS ELEVENTY-ONE!!!11!!!!" hysteria.
Posted by: Raging Bee | June 26, 2009 1:02 PM
We shouldn't say that they shouldn't be allowed to vote just because they would vote wrong.
I didn't say they shouldn't be allowed to vote because they would vote wrong, I said you're likely to be very disappointed with how they vote.
I am curious though, by what criteria would you establish 16 as the voting age? What makes a 16 year old as responsible as an 18 year old and more responsible than a 15 year old?
Is it any surprise that they believe rights are not worth standing up for when obedience and submission has been drilled into them their whole lives?
Also, where do you get that this is necessarily the case?
If they really want schools to suppress all of their rights, then they can vote to support that. But maybe if they have some control over their own circumstances, they will care more about doing something.
Additional points. First, all high schools have student governments, most of those student governments have some say in rules and guidelines for the schools. In the last two districts where I taught, the site council or school representative council (different terms for basically the same thing) had elected student representatives who had fully voting rights, could propose site rules and guidelines, etc.
Posted by: dogmeatIB | June 26, 2009 1:13 PM
Not before the Court, but as a thought experiment:
Let us assume that she was accused of concealing something really dangerous, such as a condom -- something that the Court implicitly concedes would have been sufficient grounds for a strip search. Let us further assume that she refuses to cooperate.
Would the school have been justified in performing a cavity search if she had cooperated?
Would the school have been justified in forcibly strip-searching her if she had not cooperated?
Would the school have been justified in forcibly performing a cavity search if she had not cooperated?
If any of the answers to the above were "no," would the school officials have been personally liable in those cases?
Posted by: D. C. Sessions | June 26, 2009 2:27 PM
My "administrator's stance" is, if we have enough evidence to suggest that a strip-search is warranted, then bring in the cops...
Posted by: dogmeatIB | June 26, 2009 2:33 PM
dogmeat: That is the policy in the Districts I've been involved with. If an invasive search is required, they're going downtown.
RB:
Well, duh!
Posted by: kehrsam | June 26, 2009 3:20 PM
From Thomas' opinion:
"The reasonable suspicion that Redding possessed the pills for distribution purposes did not dissipate simply because the search of her backpack turned up nothing. 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."
Er, how is this any different from the standard conspiracy-crackpot argument that absence of evidence constitutes evidence of a coverup? (e.g. "The reasonable suspicion that 9-11 was an inside job did not dissipate simply because study of the publicly available evidence turned up nothing. It was eminently reasonable to conclude the available evidence was inconclusive because the government was secreting the crucial clues in a place they thought no one would look.")
Posted by: Marcus | June 26, 2009 3:30 PM
Marcus,
It fits in quite well with the conservative "well you must have done something wrong or the police wouldn't want to talk to you" meme.
Posted by: dogmeatIB | June 26, 2009 3:34 PM
Isn't it interesting that the generation which first fought to protect the civil rights of minors when they were minors has produced so many jurists and politicians perfectly willing to abrogate them now that their children are minors?
Posted by: Julian | June 26, 2009 3:36 PM
dogmeat
That pretty much describes at least half the country anyway. Go up against any cop in any case with a jury and you can predict the outcome before it even starts. Ask random adults what they think of criminals being turned loose because they invoked the fifth. (Yes, we know that isn't how the fifth amendment works. Lots of people seem to think it's a Get out of Jail Free card.)
Ask people what makes it ok for a cop to search someone.
The kids think that way because their parents think that way.
Hell, ask most adults to name 5 constitutional protections...ANY 5. I'd bet you 9 out of 10 couldn't do it.
If not being ignorant was a requirement for voting, some states, including mine, would need one polling station. Where the workers spent most of the day lonely and bored out of their skulls.
Not that I support 16 year olds voting either. I'm just saying that most adults aren't any better. ;)
Posted by: JThompson | June 26, 2009 3:44 PM
catgirl: To be frank, I think that the restricted nature of minor rights has more to do with the historical formulation of minors, even within this country, as a special type of property of their parents or guardians, and less to do with a "protect the children" thinking.
Posted by: Julian | June 26, 2009 3:51 PM
JThompson,
I wasn't saying that teenagers are more or less aware of their rights than adults, simply pointing out that the hope that they would vote in favor of laws/politicians that would protect those freedoms isn't supported by the evidence.
Posted by: dogmeatIB | June 26, 2009 4:03 PM
D. C. Sessions:
1) a condom is not dangerous. It might be illegal for an underage person to buy one, but I doubt it's illegal to possess and at most would be a civil, not criminal, action.
2) changing the hidden item to something actually dangerous, the item can be an immediate danger to self or others (gun/knife/bomb), it can be a more distant danger (heroin), or just something illegal (which generally but not always will overlap with the 2nd category).
3) if she's cooperating, then I don't think a cavity (or even strip) search is necessary (I'm reading cooperating as 'yes, you caught me, here it is').
4) If she is not cooperating and the school has _credible_ evidence that the student actually has the dangerous item in her possession, unless it's a bomb that is about to go off or a pistol or somesuch, then the correct path of action is to clear the immediate vicinity (ie evacuate the school) and then contact police AND parents. Besides, any item that is dangerous to others will probably not be in a body cavity.
5) If the item is not actually dangerous to others but is not something that would pose a threat to others, say an actual narcotic (not Advil), then you isolate the student under watch, call the parents and start expulsion procedures.
6) If it is a hard narcotic or something highly illegal (yes, that's open to interpretation), then you call the parents, initiate expulsion procedures, and call the police to initiate criminal investigation with personnel _actually trained in body searches_.
Unless the school employee doing the cavity search had received specific training in performing full body searches, the answer to all your questions is 'no'. And frankly, I would have voted for liability to any school employee that did otherwise. In this case, there was _no_ immediate threat to self or others, even with the false testimony given by her classmate. What was the rush to immediately search her? It's not like the bell ringing meant they had to let her go to the next class.
Posted by: Hanspeter | June 26, 2009 9:38 PM
Good. Hopefully they'll start videotaping the stripsearches and putting them on the Internet.
Posted by: Weenie Beenie Pudding and Peas | June 27, 2009 3:29 PM
Hanspeter: In what state is it illegal for a minor to buy a condom? that's terrible. i live in california, where birth control pills and abortions are free to minors, w/o parental consent. as it should be.
anyway, back to the subject at hand...how is this not a clear-cut case of child abuse? the teachers who performed the searches were not "exercising independent decision-making power," according to the saint louis beacon. so they will not be punished. the assistant principal who ordered the searches will not be punished because of the "uncertainty of the law." they should be in jail. and why is advil not okay to have at school? this whole thing makes no sense. if a cop wanted to search this girl, they would need waaaay more probable cause than that. and they would have to suspect her of holding something that's ACTUALLY ILLEGAL. if i were this girl, i would have called 911 and told them my teachers where attempting to sexually assault me.
remember: no one has the right to search you w/o probable cause. if a cop stops you and questions you, you may ask if you are being detained. if the answer is "no," you may leave. if the answer is "yes," you have the right to now why. if the answer is "yes," DO NOT answer any questions. repeat after me: "I'm going to remain silent, I want to see a lawyer." this is your answer to every question they ask, with one exception: if they want to search you, then you say "i do not consent to a search." say it LOUD. embarrassingly loud. this way, anyone who witnesses the unconstitutional search of your person/property will know what they're seeing. i wouldn't count on it, but someone might even come forward to testify to it.
you have protection against self-incrimination and illegal search/seizure. they are your 4th and 5th-amendment rights. USE THEM.
Posted by: ari | July 2, 2009 1:59 PM