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A near-consensus in the strip-search case

By Len Rieser on Jul 3, 2009 08:01 AM

“Strip search case splits court,” the Inquirer reported after the oral argument in Safford Unified School District v. Redding last April, noting that the justices had expressed “sharp differences” in their views. 

This, you might remember, was the case in which the assistant principal of Savana Redding’s middle school got a tip suggesting that she might be carrying ibuprofen. School officials searched Savana’s backpack and outer clothing; when they found nothing, they had her take off her clothes and “pull out” her bra and underwear -- after which, having still found nothing, they let her go.  (For more details, see my earlier blog on the case. )

But when the decision came out last week, it turned out that the Court had pretty much overcome its differences – at least on the question of whether the search violated Savana’s rights.  

Justice Souter, for the majority, said that the fact that ibuprofen is not that dangerous, plus the fact that there was no reason to suppose that she was carrying the drug in her underwear, meant that the school did not have the right to go beyond backpack and outer clothing to “an exposure of intimate parts.”

All but one of the other justices agreed, including several – Roberts, Scalia, Alito -- whom one might have expected to come down the other way. (There was some disagreement on a secondary issue, involving whether the school officials could be sued for damages; Justices Stevens and Ginsburg said yes, the rest no.)

Only Justice Thomas saw no problem with the search. His comments echo his opinion a couple of years ago in the “Bong Hits 4 Jesus” case, in which – citing a string of 19th-century cases granting schools almost unlimited authority to punish students – he argued that children have no First Amendment rights in school. No one joined him that time, either.

And yet, not all of Thomas’ dissent in the strip-search strikes me as extreme – which is why it seems surprising that no other justices signed on.   He argues, for example, that the fact that the pill that Savana was suspected of carrying was a common painkiller was irrelevant. If a school can legally ban students from carrying drugs, he argues, then school staff should have the right to enforce the ban without having to worry about being second-guessed by judges who see some drugs as more dangerous than others. And, he argues, the fact that no pills were found in Savana’s backpack actually created a reason for the more intrusive search: “[i]t was eminently reasonable to conclude that the backpack was empty because Redding was secreting the pills in a place she thought no one would look.”

I don’t agree with Justice Thomas on these points, but they don’t seem entirely outlandish either. And what if (as Justice Souter asked during the argument) we had a case in which it was completely unclear what the pills were, so that there was a greater possibility of danger? What if there had been lots of previous instances of students hiding contraband in bras or underwear? What if (as Justice Breyer kept suggesting, somewhat awkwardly, during the argument) the student had been asked to change into a gym suit, rather than “strip-searched”? Perhaps some of these situations will present themselves, and the outcome, when they do, may be different from that in Savana’s case.

Finally, speaking of awkward, thank heavens for the one woman on the Court, Justice Ginsburg – who, the transcript reveals, came to the rescue when her male colleagues had difficulty discussing (much less appreciating the impact of) what had happened to Savana. (Justice Breyer, especially, became quite tongue-tied, asserting at one point that when he had been in school, “people did sometimes stick things in my underwear – [Laughter.] Or not my underwear. Whatever.”)  One can speculate that Justice Ginsburg may have been even more emphatic behind closed doors. What better illustration could there be of the value of a diversity of life experience among judges and justices?

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Comments (1)

Submitted by Samuel Reed III on July 3, 2009 5:43 pm

Len thank your for this timely coverage. Free Speech is so complicated. The HBO documentary, Shouting Fire: Stories from the Edge of Free Speech, present some interesting first ammendment debates for schools and communities.
http://www.hbo.com/docs/programs/shoutingfire/index.html  Did you view this documentary? If so what did you think about it.

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