Absence of conscience: The SCOTUS and the strip-search case

The NYTimes today reports that the SCOTUS may find it OK to strip search children at school in the absence of their parents and an attorney:

Justice Souter may have summarized the mood of the court near the end of the argument in the case, Safford Unified School District v. Redding, No. 08-479. Several justices appeared troubled by the search, but also seemed loath to second-guess school officials confronted with a variety of dangerous substances.

“My thought process,” Justice Souter said, “is I would rather have the kid embarrassed by a strip search, if we can’t find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry.”

The unserious tone of the NYTimes article is particularly grating but you can read the transcript of the oral arguments here and skip the NYT’s reporter’s snark.

In yesterday’s panel at PU, Lyle Denniston commented that the Court might decide in favor of the school district. Denniston’s analysis at SCOTUS Blog emphasizes that the Court’s decision may be driven by fear that the possibility of a drug overdose overrides a child’s rights:

It was common for members of the Court — and, especially, Justice Ruth Bader Ginsburg — to express discomfort with an Arizona prinicipal’s order for a close-to-naked search of a 13-year-old girl. But that sentiment did not appear to be as strong as the concern that drugs may be so destructive for teenagers that some surer means of detecting them had to be acceptable under the Constitution.

No more telling illustration of the Court’s mood emerged than Justice David H. Souter — whose vote would almost have to be won for student privacy to prevail – expressing a preference for “a sliding scale of risk” that would add to search authority — including strip searching — based on how school officials assessed whether “sickness or death” was at stake.

“If the school official’s thought process,” Souter asked, “was ‘I’d rather have a kid embarrassed rather than some other kid dead,’ isn’t that reasonable under the Fourth Amendment?” Stated in that stark way almost compelled agreement, without regard to whether a student singled out for a strip search was actually adding to such a risk, but was only the target of a classmate’s unverified tip.

As you know, I am absolutely appalled that a school district would conduct

  • a strip search
  • on a child
  • based on another student’s claim that the child gave them
  • ibuprofen.

By the way, according to the transcript, said strip search was performed before they searched her locker or her desk. The child’s parents were not notified before the strip search was performed. She was not allowed any civil protections at all.

This is absolutely outrageous.

To add to my wrath (and words fail me over just how angry this makes me), you can find this exchange between Justice Scalia and Matthew Wright in the transcript:

JUSTICE SCALIA: Could I come back to your distinguishing a strip search from a cavity search. What would you require before you would allow a cavity search?
MR. WRIGHT: Nothing at all. A bright line rule. I would not allow it.
JUSTICE SCALIA: No cavity search in school, no matter what?
MR. WRIGHT: We’re not even clinically trained to do that, Your Honor. I would submit that if a child has something stuffed up one of their cavities — and I assume we mean private parts, the very private parts — that the first thing to do would be to send them to the hospital. I mean, we just don’t have that clinical training.

In plain English, the school district would not allow a cavity search on a minor because they “just don’t have that clinical training.” And later, that it would be up to the “local level” to decide on strip searches.

I can only surmise one thing from this forthcoming “immolation of privacy and human dignity in symbolic opposition to drug use”: you can’t have a conscience and be a SCOTUS justice.

God forgive us all. What a disgrace.

Prior post here.

UPDATE
Betsy has more.

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6 Responses to “Absence of conscience: The SCOTUS and the strip-search case”

  1. brityank Says:

    I suppose it would be too much for the school to call in the parents, and isolate the child until they showed up? We no longer have a Justice system, but a criminal creation system!

  2. Fausta Says:

    Yes, particularly when you consider that whatever possibility might exist of the student being a danger is stopped by having the kid detained at the principal’s office until the parents show up.

  3. Pat Patterson Says:

    But, and I work in a district that had a similar problem, the contrband could have been hidden while waiting for the parents to arrive. Or as it actually happened the idiot kid decided to simply swallow all the pills he had an almost died of an overdose. Also just 30 years ago this, while not normal, was still considered perfectly legal as the concept of loco parentis hadn’t been neutered by the courts. That the schools could act in the best interests of the child, not just the ones threatened by the countrband, but also the one under suspicion.

    We are not just talking only about drugs either, though this case revolves around them, guns, knives, brass knuckles etc. all fall in the same category of creating an imminent threat to the safety of the other students. This particular case was not punishment but rather a safety precaution equal to simply taking away the contents of the pockets, the belt and shoes of someone being held before formal charges are brought.

    I know this might seem odd but we also have to consider what an absolute waste of resources it would be to have a kid, suspected of hiding something on his person, simply sitting in the principal’s office. How long does the principal remain tied to his desk because he has no way of ensuring that there is no further danger?

  4. Fausta Says:

    So what you’re saying, Pat is that you’d be OK with doing a strip search on a student simply because another student claimed they were given an advil? Right away, without calling the parents, do a strip search, so the principal is not “tied to his desk”?

  5. Pat Patterson Says:

    If the student when questioned lied immediately and under these particular circumstance, as this one did and had been warned specifically and generally before the unveiling, yes! Would people have felt so squeamish if it had turned out to be speed or ecstasy(reshaped as aspirin) or a combat knife? Then the parents and a goodly portion of the public would be moaning about the lack of accountability of the schools that they wouldn’t act! We still need to be aware that the kids and the drug dealers are perfectly aware of the rules for search on campus and as I’ve mentioned before are capable and willing to disguise drugs and weapons in a variety of ingenious ways. Better to have to apologize later than at the wake!

    We are not talking about two policemen on a break who decide to break the monotony to order the next pedestrian that comes by to stop and submit to a random search because that person has dilated eyes. We’re dealing with minors who are temporarily in the care of the public schools who have an obligation to act. If the schools cannot act then that limitation must be extended to the parents as well. As both operate from a legal position that they are responsible for that child at some point during the day.

  6. Will Lugar Says:

    Pat, when did the strip-searched girl “lie immediately and under these particular circumstances, as this one did?” From all the information given in all the articles I’ve read on this case, the girl, Savana Redding, was never found to have lied.

    A fellow student, Marissa, had a day planner confiscated. Marissa had borrowed it from Savana. Pills (Ibuprofen) were found inside. Marissa had reason to lie (although she may not have) and said they were Savana’s.

    I’m not saying it couldn’t theoretically have been justified if they had taken the proper steps. I’m saying that in these circumstances, it is a clear case of poor decision making. Here’s why:

    1. Inconsistency. Marissa was not also strip-searched. She was only made to lift up her shirt. Savana, who did *not* have pills on her, *was* strip-searched. I’m not saying Marissa should have been strip-searched too. I’m not saying they went out of their way to persecute Savana. It’s simply an inconsistency, and a sign of incompetence in handling the situation.

    2. Savana’s parents were not called. This is the BIGGEST problem. I can’t imagine why they wouldn’t call the parents.

    3. It was Ibuprofen. It did not pose a health threat to the students. You cannot get high on it, either. And she certainly couldn’t distribute it while they were waiting for her parents to arrive.

    You say it was “a safety precaution equal to simply taking away the contents of the pockets, the belt and shoes of someone being held before formal charges are brought.”
    This is simply not true. A strip-search of a 13 year old can be very upsetting. We don’t know if she was at a school where students regularly undressed for showers. If she was, it’s different and in a relatively relaxed atmosphere. This was a case where she was made to undress before faculty members under suspicion. They must have seemed quite intimidating.

    “We also have to consider what an absolute waste of resources it would be to have a kid, suspected of hiding something on his person, simply sitting in the principal’s office.”
    If the school was so afraid that she was posing a threat, I don’t see how wasting some of the principal’s time is such a big deal.

    “We still need to be aware that the kids and the drug dealers are perfectly aware of the rules for search on campus”
    No, they aren’t. The idea of strip-searching doesn’t even occur to most kids. Savana had no idea something like that could happen to her, and chances are that she didn’t break any rules.