Some twists and turns at the Supreme Court
by Len Rieser on Apr 23 2009 Posted in Education law corner
Two important education cases were argued in the U. S. Supreme Court this week: Safford Unified School District v. Redding, concerning strip-searches of students, and Horne v. Flores, about services to English language learners.
In the strip-search case, which I discussed in an earlier blog, a student said that she got ibuprofen from another girl. The school then strip-searched the other girl (and found nothing). Outrageous, obviously. Or was it? If you read the transcript of the argument – transcripts are now available on the Supreme Court website a few hours after the argument ends, and it’s almost like being there! – you’ll see how complicated even a "simple" case can become as the Court tries to figure out where a particular approach might lead.
To pick just one question, from Justice Souter (among the most liberal of the Justices, and certainly a champion of civil liberties) to the attorney for the student:
"Let's assume … the principal doesn't know whether it's ibuprofen or not. He just knows that there's a pill and one of the other kids said this person has got pills on -- on her person. The principal says, I know as a matter of reliable fact that one student got sick, violently sick, within the past week or so on some pill; we don't know exactly what it was. We also know within a reasonable period of time from where we are now that there have been kids who died from ingesting dangerous drugs. I've got suspicion that some drug is on this kid's person. My thought process 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…. What's wrong with that reasoning under the Fourth Amendment?
Now [suppose] … they find nothing in the pockets. They find nothing in the pocket book or other garments. The only thing that's left is a strip search, and that's where you draw the line. Why do you draw the line there…?"
The English language learner case is even more complicated – as the transcript of that argument shows.
I’d been especially concerned about one of the main contentions made by the state of Arizona, which was that it shouldn’t be found in violation of a federal law known as the Equal Educational Opportunities Act (which mandates services to ELLs) so long as it was “in compliance” with No Child Left Behind.
If this argument succeeded, it seemed to me, English language learners would lose a lot of legal protection (and, by the way, they’re not exactly overly protected now). That’s because NCLB doesn’t really say much about the quality or adequacy of services; it mostly deals with standards and testing and so forth. As the situation in Philadelphia demonstrates, a state or district can “comply” with NCLB’s requirements and still offer severely inadequate programs.
But while the oral argument in the ELL case touched on lots of things, this particular idea -- much ballyhooed by Arizona on the way to the Supreme Court -- seemed a bit of a lead balloon. None of the Justices appeared all that persuaded that NCLB and the laws on education of ELL students had much to do with each other – which doesn’t really prove anything, but still caused me to breathe more easily.
There was more concern about whether a court can actually order a state to appropriate specific amounts of money to support specific kinds of educational programs; but those sorts of orders don’t occur very often, so a loss there might not be so catastrophic.
As usual, there were bits of humor from several of the Justices, a fair amount of pontificating from others, and complete silence from one (Thomas). In addition, Justice Ginsburg added a little much-needed insight, in the strip-search case, into the experience of being female. Decisions in both cases should come by June.