Court Surprises Observers: Middle School Strip-Search Unconstitutional

Surprising observers in who believed that:

it’s plain the court will overturn a 9th Circuit Court of Appeals opinion finding a school’s decision to strip-search a 13-year-old girl unconstitutional

the court found (8-1 with Thomas in the minority again) that a school’s decision to strip-search a 13-year-old girl was unconstitutional. The majority opinion was written by Justice Souter, but there were concurring opinions by Justice Stevens (joined by Ginsberg in part), and Justice Ginsberg. You can read all of the opinions here.

The majority found two important points (and one lesser point):

  1. The “strip search” of then 13 year-old Savana Redding was unconstitutional pursuant to the tests set forth in New Jersey v. T.L.O.
  2. The people who conducted the search should not be liable for their actions because the law was not clear.
  3. The appeals court should consider whether the Safford School District as a whole can be found liable.

A quick factual note: I will use the phrase strip search, because the term was used by the Court, even though the search of Redding does not meet traditional conceptions of strip searches.  Redding was not forced to get nude, but rather was told to strip to her underwear (bra and underwear) and then move her bra and underwear to assure the searchers that there was nothing in her underwear.  At no point did the searchers (both female) see her breasts and pelvic area.

On the first point, the Court found that the test established in New Jersey v. T.L.O about school searches should be applied to this case.  As Justice Stevens explains in his concurring opinion:

In New Jersey v. T. L. O., 469 U. S. 325 (1985), the Court established a two-step inquiry for determining the reasonableness of a school official’s decision to search a student. First, the Court explained, the search must be“‘justified at its inception’” by the presence of “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” Id., at 342. Second, the search must be “permissible in its scope,” which is achieved “when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Ibid. (emphasis added [by Stevens]). pg.1

In this case the Court found that the search was “justified at its inception” because the assistant received two reports that Redding was involved in distribution of Ibuprofen (against school rules). However, the search, was found to be “excessively intrusive in light of the age and sex of the student and the nature of the infraction.” In the words of Justice Souter:

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.

We mean […] to make it clear that […] reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.

The second point is where the Court divided a bit more. On this question, the Court split 7-2 (with Stevens and Ginsberg in the minority).  The majority decided that the circuit courts had been split over the past twenty years and the school administration couldn’t have known where their constitutional right to search ended. Since, they couldn’t have known that they were violating Redding’s constitutional protection from unreasonable search and seizure, they shouldn’t be held liable for their actions.

Ginsberg and Stevens disagree with this argument.  While Stevens argues that the Court made itself clear in TLO, Ginsberg argues that under most standards the principal was abusing his power by ordering the search and so should still be held liable.

The third point is that the 9th Circuit Court of Appeals did not address the question of whether the school district as whole could be held liable or not.

Thomas continues to be the strongest opponent of students rights.  This shouldn’t surprise anyone.  In Morse v. Frederick he wrote:

In my view, the history of public education suggests that the First Amendment,  as originally understood, does not protect student speech in public schools. […]

In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.

In this case, he argues:

the health and safety of the students in their charge. This deepintrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which “the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order.”

I guess we couldn’t have expected much else…

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