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
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.
Betsy has more.