One conversation I never had with my kid over dinner: "So, honey, anything happen in school today?" "Yeah, I got strip-searched."
Last week, the Justices of the United States Supreme Court debated just that scenario, in Safford Unified School Dist. v. Redding. In the summer of 2003, a student came to the principal at an Arizona middle school and showed him a small white pill, telling him that a girl named Marissa had just given it to him. The principal confronted Marissa, who claimed that she'd gotten them from an 8th grader, Savanna Redding. He brought Savanna to his office, questioned her, and searched her backpack, finding nothing. Dissatisfied with her answers, he sent her and his female administrative assistant to the school nurse, where the latter two conducted a strip search of Savanna: they first had her remove her socks and shoes, then her t-shirt and stretch pants, and then finally instructed her to "pull her bra out to the side and shake it," then "pull her underwear out at the crotch and shake it."
Nothing was found, Savanna's parents sued, the District Court kicked it out on summary judgment, the 9th Circuit at first affirmed, then reversed en banc, and last Tuesday morning all the lawyers stood before the Supreme Court and argued about whether what happened was right. And if you're on the side that thinks that it wasn't, there's some good news and some bad news. The good news is that cavity searches of schoolchildren are probably not going to pass constitutional muster. The bad news is that just about everything short of that will.
Back in 1968, the Supreme Court held that students don't "shed their constitutional rights when they enter the schoolhouse door." Maybe not, but they get the heavily abridged Cliff Notes version of the Constitution: in 1985, the Court held that searches of student lockers could be conducted on "reasonable suspicion," rather than probable cause, in 1995 the Court upheld random drug tests for students participating in athletics, and in 2002 extended that to students participating in any extracurricular activity, which has led to the disclosure that any number of drug distribution rings were masquerading as high school math clubs.
The drug paranoia that fueled those decisions was on ample display last Tuesday. The pill in question was a prescription strength Ibuprofen, and in the full context of what happened here, there seemed some legitimacy to the argument that an unsupported and unspecific tip didn't warrant rummaging through the underwear of a 13-year-old honor student in an attempt to find the equivalent of two Advil tablets. Not much legitimacy, it turned out: Kennedy and Breyer suggested that the case could be resolved on the same basis as if the search was for meth or heroin, and Souter asked pointedly, "If the school official's thought process, was 'I'd rather have a kid embarrassed rather than some other kid dead,' isn't that reasonable under the Fourth Amendment?"
Part of the problem here was, again, the Court's desire to create a bright-line ruling, one easy for school administrators to follow. The 9th Circuit had adopted a "sliding scale" standard, in which a more extensive intrusion required a higher quantum of "suspicion." The arguments of the Reddings and of the government, as amicus, were closer to what the Court might have been looking for. The government argued for same result without the "sliding" part: essentially, a strip-search would require "greater specificity of information." The Reddings argued that the information had to focus on the students underwear: in other words, the tip had to be not that the student had drugs, but that the student was concealing drugs in her underwear. Still, given the concerns about drugs that were voiced during the argument, and that motivated the Court's earlier decisions, it seems likely that a reversal is forthcoming. If Souter and Breyer and Kennedy are expressing doubts about the 9th Circuit's decision, it's real hard to figure out where five votes to uphold it are going to come from.
A couple of observations. First, any time someone raises the issue of a "woman justice" or a "black justice" on the Supreme Court, the idea is ridiculed as an "affirmative action hire." As Clarence Thomas proved back when the Supreme Court considered the Virginia cross-burning statute a few years back, there's a purpose for doing it, though. From the tone of the questioning on Tuesday, it was clear that Ruth Ginsburg was the only Justice who came close to understanding just what an ordeal this was for a thirteen-year-old girl to go through. (If you don't think it would have been, check out the amicus brief filed by The National Association of Social Workers, documenting the traumatic effects of such searches on kids. Savanna herself became a data point on that; she developed an ulcer, and had to drop out of school.)
Second, one of the purposes of a public education system is indoctrination: the inculcation of our children in the shared values of our society. The Supreme Court's school rulings over the past quarter century had inculcated them in the belief that in any contest between the fear, real or imagined, of drugs, and the 4th Amendment, the latter has to give way. Then again, that may very well be a shared value of our society anymore.
On the bright side, though, the case has given the answer to the burning question, "Which Supreme Court Justice was most likely to have been repeatedly wedgied in high school"? That can be found on page 58 of the oral argument, in this question by Justice Breyer:
So what am I supposed to do? In my experience 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, okay? And in my experience, too, people did sometimes stick things in my underwear.
Thanks for sharing, Judge.