Pushing the envelope
So I'm at the market the other day, and I run into one of my buddies from the PD's office. "What's going on?" he asks.
"Oh, I'm upset," I pouted. "I was thinking of retiring from the practice of law to become a high school principal, but now the Supreme Court comes along and says I can't strip-search 13-year-old girls."
He nodded. "Trying that line out for your blog?"
"Yep," I confessed. "What do you think?"
He mulled it over for a moment. "It works," he finally agreed.
Whether the Supreme Court's decision last week in Safford Unified School District v. Redding does anything besides provide me with a mildly tasteless opening for a post is another matter. When I'd blogged about the oral argument a couple months ago, I'd written that the challenge for the Court was to "create a bright-line ruling, one easy for school administrators to follow." They sort of did -- a school principal who orders a strip search from this point on does so at his peril, except in the most extreme cases -- but the route taken was a somewhat tortuous one.
The key case in this area is New Jersey v. T.L.O, a 1985 decision which recognized that schoolchildren had attenuated Fourth Amendment rights: rather than probable cause, the standard for a police search, a school official need only show a reasonable suspicion of criminal activity before conducting a search. T.L.O. involved the search of a purse, and the Court had no difficulty here concluding that the search of Savana Redding's bookbag, and even of her clothes, was proper. In doing so, though, it explored the dichotomy set up in T.L.O., and clarified some of the terminology. "Probable cause," it explained, exists when it raises a "fair probability" of discovering criminal activity, while "the lesser standard for school searches could as readily be described as a moderate chance of finding evidence of wrongdoing."
It's not even apparent that the Court would have had to go into that; even under T.L.O.'s relaxed standard, all the Justices save Thomas agreed that a confluence of factors rendered the search improper: the substance was a painkiller, rather than a more dangerous drug; while there were examples of students hiding contraband in their underwear, there was no evidence of students doing that with "nondangerous contraband"; and there was no evidence supporting any suspicion that Savanna was doing so:
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. We think that the combination of these deficiencies was fatal to finding the search reasonable.
I'd also written at the time that only Justice Ginsberg seemed sensitive to what a strip search would've meant to a 13-year-old girl. Well, that goes in the error bag. The Court noted that "Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating," and cited research into the psychic damage that such searches do, and that such searches are "so degrading" that a number of communities ban them outright.
What's somewhat amusing is that after spending several pages discussing how outlandish the search was and how it lacked any basis, the majority proceeds to tell us that "in so holding, we mean to cast no ill reflection on the assistant principal." That becomes the focus of the rest of the decision, and the real dispute among the justices. This is, after all, a civil suit, not a criminal case, and the focus shifts from whether somebody did something wrong to whether somebody should have to pay for it. In civil rights law, unlike most personal injury cases, the answer to the first question is not dispositive of the second. School officials enjoy a "qualified immunity," i.e., in order to impose liability on them, the unconstitutionality of their actions must be "clearly established." Justices Stevens and Ginsberg believe that the search here meets that test, but the other Justices don't, and the district court's grant of summary judgment to them is affirmed. The case is remanded back to the lower courts to determine the question of the school district's liability. The school district can't be held liable under a respondeat superior theory; the plaintiffs will have to show that the search resulted from a "policy or procedure" adopted by the district. That can get complicated -- what area of law can't? -- but there's a good chance that Savana Redding's victory was Pyhrric -- her claim that the school officials were wrong in searching her was vindicated, but it's not going to put any money in her pocket.
But it's a victory nonetheless. Despite the Court's declaration that strip searches should be reserved for extreme situations, a school official would have to be out of his mind to order one in the wake of the decision.