The Problem with strip searching is that we have a problem with strip searching

This years' Supreme Court decision in Safford Unified School District #1 v. Redding was a sexy one for the press. It involves the strip searching of a teenage girl by female school employees at the direction of a vice principal in an effort to see if she was hiding any pills. Naturally, the media would be happier if it involved some corporal punishment or lesbianism, and no doubt readers of this blog would as well, but, compared to a case about anti-trust or interpreting pre-emption clauses, this is the Holy Grail and I can already picture the Wednesday Night movie. Although I just posted on Miranda, with the Supreme Court's calendar winding up for the year, one more won't hurt. I might even get around to a year end summary in a few weeks.

Of course, the established media (so, excluding bloggers, etc.) does not really cover Supreme Court, or actually any legal cases in any kind of analytical fashion; they almost never go into the legally reasoning underlying an opinion, but cover only the broad decision, subject to political spinning. They do this for good reason. They are after a share in the market and they correctly surmise that most people don't want to know nitty gritty details, particularly if dressed in some esoteric jargon, as court cases usually are.

Yet, I do believe that there is a moderate ground and that some people do want to know something more than just the headlines about these cases. Many blogs do that, some written or hosted by law professors, but I'm not going to engage in a blow by blow account here either, but just lay out the main arguments like so many after dinner mints on a bed so that I can also blather about what interests me - the political and ideological anchors surrounding most of these judge's ankles, and, the social values underlying these cases that say more than the decision.

I wasn't following this case, although I had heard it was coming up. I learned of the decision when one of my left leaning friends (he called himself a kind of socialist during the last election, admitting that his deep hatred of Bush had made him so irrational - his word - that if all Republicans and Democrats had suddenly switched parties the night before the election, he would have still voted straight Democrat) wrote me the other day to mock Justice Thomas for dissenting in this case for finding it okay to "strip search" a girl. I wrote back that unlike my peers, I was unable to come to a conclusion about what I thought about the case without reading it. Although a sarcastic and condescending reply, it was appropriate, and, at risk of singing my same old song, it is partiality to political parties or movements which makes us even more gullible and obtuse than nature would have it.

When I did read the decision, later that day (to my relief, it was not one of the longer ones, even with four judges opining) I wrote to my friend to say that I agreed with the majority's judgment, but not for the reasons given by Justice Souter and that Justice Thomas' opinion (actually part dissent and part concurrence with the majority), with which I disagreed, actually had a lot of reason in it, in some ways more reason than the others. He certainly applied more analysis as you can only see by actually reading the opinions. One thing he didn't seem to be concerned about as some media outlets (and my friend) implied, was a desire to see young girls stripped and searched. One could argue, reading his opinion, that he shows more concern for young people than any of the other judges.

There is irony in this case too. For Justice Thomas, who came to this court through a gauntlet of sexual hysteria in his confirmation process (and, as I have written before, I believe the stunningly mild allegations about him were true, but were also completely irrelevant to his fitness to be a judge), seemed alone of the justices to analyze it without sexualizing the issue and by applying a set of principals he has long stood for and pragmatism. For that, he would, of course be criticized in our culture, because we tend to sexualize, or over-sexualize, anything we can and then publicly recoil from it as if "those" people are at it again.

Apparently, if you don't sexualize the strip search of a female student, you should be horse-whipped out of the Supreme Court, possibly in the minds of many if not most Americans. No doubt empathy for the young girl played a large roll in the opinions of the other eight judges who did not side with Thomas. The question is, one conservatives want answered, is will our empathy towards students in general lead us to "babying" them in ways that will, in the end, harm them. Justice Thomas believes so.

Reading the headlines, even the stories written about this case, and likewise the television coverage, one gets the feeling that this poor sweet high school girl was taken by a group of predator-like school officials, and stripped bare before them to pointing and laughter for no good reason. Not so. You can easily picture her nude, red cheeked, with one arm across her breasts and one covering her private parts. Not what happened, of course. And, she certainly wasn't picked out of the school directory by pathological monsters either.

As Justice Souter himself pointed out, a week earlier a student reported to the principal and vice principal that some students were bringing weapons and drugs into school. The student had taken one of the pills himself and it made him sick. He later gave the vice principal a white pill he had gotten from a friend of the claimant (Savana Redding) named Marissa and told him that other students were planning on taking the pills at lunch. At this point, I hope, this case doesn't seem like it's about sex anymore to you, because it really wasn't. It was about drugs and weapons.

After the nurse identified the pill as prescription strenghth Ibuprofen, Marissa was called out of class and the teacher turned over her day planner which contained knives, lighters and a cigarette to the vice principal. When Marissa turned out her pockets there were several Ibuprofen's and also a blue pill which turned out to be over the counter Naproxen. Possession of these materials were not criminal, but violated the school's zero tolerance drug policy. Marissa said she had gotten the pills and planner from Savana Redding. She didn't say when she was given them or if Savana had more of them.

Marissa was given what is now called a "strip search". Justice Souter acknowledged that it was hard to give a label to the search, but he thought "strip search" was fair terminology. I don't because it is deliberately provocative, although it is half right. Marissa, and later Savana, was asked, in the presence of the female nurse and a female administrative assistant, to take off her outer clothes and shake out her bra and underwear. The court said that parts of the breast was visible. Given the description, I have trouble believing it was more than might be visible in a bathing suit and, if this school had communal showers, certainly a lot less than that.

After Marissa displayed the pills, Savana was called to "the office" (remember that dread summons?) and shown the day planner. She admitted it was hers, but said that she had lent it to Marissa and she also didn't know anything about the knives, etc. She also denied knowing anything about the pills when she saw them and denied that she was giving them to students. She voluntarily agreed to have her own stuff searched and then went through the strip search, all of which revealed nothing. None of the judges was particularly descriptive about how that part of the search happened, but it appears it was not coercive in the sense that she was ordered or directed to take off her clothes. However, in fairness, a teenager in school might feel the same coerciveness that an adult might find in a police station.

Savana's mother brought the action on her behalf claiming a 4th amendment violation; that is, her daughter was subjected to an unreasonable search by the school. I stop here for the briefest of tutorials. The 4th amendment to the constitution requires that there be "reasonable cause" for a search (or seizure) and that a warrant be obtained. Without going into detail about the many exceptions for getting a warrant that the courts have allowed which common sense, but not the text of the constitution, would seem to allow, that is all there is to the rule. Applying it to cases is the hard part, particularly as people and also judges rarely agree on what is "reasonable".

The Supreme Court has determined over time that our 4th amendment rights are determined by factors outside the text of the constitution. A lot of it has to do with a presumed expectation of privacy. For example, you are presumed to have a greater expectation in your home than in public, with a locked box than with an open bag, etc.

The high court has also repeatedly taken notice that we have schools for a reason, and that they have a mission to teach our students which could very easily be squashed by allowing them too many rights (and, no doubt, policy-wise, this is true - whether it is constitutional is another question). Thus, they have decided, without the need for a constitutional amendment, that you don't need "probable cause" to search a student, you just need what is commonly called "reasonable suspicion". How to tell the difference between reasonable suspicion and probably cause is anyone's guess. But reasonable suspicion is the same standard which would allow a police officer to pat you down for weapons on the street if his training indicated to him some probability that you might possess a weapon.

In any event, a prior case had led to the rule that a search in school is deemed permissible when the search methods are "reasonably related to the objectives of the search and not excessively intrusive" in light of sex and age and what rule was being broken. If you are thinking that this is a fairly vague standard, you are right, but many legal standards are as vague or vaguer.

Justice Souter points out that school officials, like parents, may overreact in an effort to protect their children, but that because the school is part of the state, they are prohibited from doing certain things by the 4th amendment in ways that parents are not. Finding that there was little here in the way of danger (the pills were relatively harmless, he wrote, each was like taking an Advil or an Aleve) and that although there was some small possibility of finding pills in Savan's underwear, there was not enough evidence that they would likely be there. Thus, applying the test, he could not find reasonable suspicion that she was hiding contraband or that this was a reasonable search to do considering the circumstances.

However, since the law concerning this issue did not appear to him to be well settled, and it was not clear to the school officials that they were violating the constitution, the majority ruled that the officials would get what is called "qualified immunity" and were not subject to liability (although the school might). That is, they wouldn't have to pay money damages. This, my dear readers, makes me laugh, as I wonder if Justice Souter thinks that the issue will be any clearer to the next high school principal unless the exact same fact pattern comes up. This would have been clearer - no stripping kids down to their underwear unless it is an apparent danger to their or someone else's harm, like, a weapon or a more significant drug than aspirin. While the judges are right that school officials shouldn't be put in a position where they have to decide whether certain drugs are dangerous enough to be a concern, they certainly can know that a student sitting in the office with someone watching isn't going to suddenly reach into their underwear and swallow an Ibuprofen, which will cause them to froth at the mouth and expire.

Justice Souter did do some legal analysis, if not much (although this was his last case) which is more than we can say for Justice Stevens who, thinking it mostly unnecessary, wrote a short concurrence, the highlight of which was "I have long believed that ‘[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitu-tional rights of some magnitude.’” There is some wisdom in that.

Of course, it was not a nude search at all and he was deliberately being provocative. We can expect more specificity from a Supreme Court Justice. However, I have no doubt that I would have been mortified if asked to strip to my underwear some some 37 years ago and that my daughter would have been mortified under the same circumstances as well just a few years ago. I'm guessing most teenage kids would although others would find it fun. In any event, Justice Stevens would have withheld any immunity for the school officials, apparently thinking them bad guys who needed to be taught a lesson. Justice Ginsburg, at present the only woman on the court, agreed with Stevens. That seems too blood thirsty to me - forcing school officials to fork over money when they were trying to do their job in protecting students. If they went over the top, and I think so, they did not do so without any reason and it was not malicious.

Thomas' opinion was quite different and he was left Rudolph-like, without any other Justices to join him in his opinion - not even good buddy, Antonin Scalia. This is no surprise. As is often true, this year, Justice Thomas was roughly four times as likely to be the only holdout on an eight to one opinion than Justice Ginsburg, the next most likely Justice to do so. That's a big number.

Justice Thomas did not find the partial strip search (what I would call it - not so hard, Justice Souter) violated the constitution. As he has written in other school cases, he really doesn't believe that school children have many constitutional rights (a position I find extreme and so far removed from the text of the constitution that it is an absurdity for a so-called "strict constitutionalist" like Thomas) but its a position that has some policy reasons behind it. But, I will let him speak for himself:

"The majority imposes a vague and amorphous standard on school administrators. It also grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge. This deep intrusion 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.”

While grudgingly acknowledging that the kids have some constitutional rights under the court's "precedents" (meaning, he doesn't think so), he notes that "(f)or nearly 25 years this Court has understood that “[m]aintaining order in the classroom has never been easy, but in more recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems. . . . In schools, “[e]vents calling for discipline are frequent occurrences and sometimes require immediate, effective action.”

As grudgingly, he applied the same test of reasonable suspicion and reasonable relationship of the search to the "crime" that Souter used, but looked at it from the school's perspective. The law recognizes, he tells us, that, unlike judges, school officials work in the actual environment and thus have a common sense understanding of student behavior that judges do not and they are allowed to make decisions based upon it.

For example, in this case, and the majority ignored these facts, the school administrators knew that quite recently a student had ingested a prescription pill he obtained from another student and spent a few days in intensive care. I'd like to highlight that - a student took one of these seemingly innocent pills and was sick enough to go into intensive care. In fact, the school had a history of on campus drug and alcohol problem that it was struggling to deal with. One of the ways they did this was to have a zero tolerance program for drugs and alcohol.

At a recent school dance, alcohol was found in the girls' bathroom and both Marissa and Savana were with a group of girls who reeked of alcohol. Another student reported having gotten sick at a party at Savana's house where she served hard alcohol. In this case, they had actual evidence of a pill from the same student who had become ill and he was the one who reported the lunchtime deadline (probably the reason, at least in their minds, that they didn't call the parents or get a warrant). The school was led to Marissa by a student who had gotten a pill from her (admittedly) and when she coughed up the other pills, she fingered Savana. Thus, neither Marissa nor Savana was picked out of a hat. There was common sense reason to believe they were dealing or at least distributing drugs that put at least one student in the hospital already. Ironic to me, not one of the judges seemed to think that the knives that were found were of much importance.

Given the lunchtime deadline, how unreasonable was this so called strip search (a term Thomas quarrels with, again not without reason - however his belief that a strip search requires nudity is also highly questionable)?

So, Thomas concludes, if there can be a reasonable suspicion that Savana had pills that might be given to other children at lunch, what is wrong with looking in places that it might be concealed, which is only the standard applied in 4th amendment cases? Certainly drugs or paraphenalia can be hidden in underwear. It's a natural place to hide it and I doubt there is a kid so innocent he doesn't know that. Even I knew it, and if there ever was an innocent teenager, it was me.

When I was about 16, a friend asked me to return a hash pipe to another friend - I was very reluctant to do it because I didn't do drugs (I still don't even know what hash is) and I was sure that I, of course, would be caught as soon as left the donut shop we were in. Although I was not a drug person (you never would have guessed to look at me) I did believe that people had a right to do it if they wanted to (still do). So, idiot that I was, I shoved the pipe down my underwear. No more than ten steps outside I was stopped by the police who pulled right up to me and my friend (who had given me the pipe) as if it were a movie and we were asked for identification. I had none, and said, given my jockey shorts full of hash pipe - "Hominahominahomina". If my friend hadn't had identification on him, I might have been frisked, illegally or not, and subject to a lot of punishment and embarrassment (and confirming many people's suspicion that I was a drug addict).

Thomas doesn't need my story. He rattled off a long list of evidence that this is where people hide their drugs. He also spent a lot of time rattling off the proof of the dangers of abuse of prescription drugs to children in schools, which did not seem to concern anyone else. The statistics are alarming, including that 1 out of 5 high school students admit to using prescription drugs without a medical reason, that prescription drugs amount to nearly 1 out of 4 of drug related emergency room visits and 1 out of 5 drug related deaths. Had Justice Thomas had another couple of weeks to write his opinion, he would have had much more evidence from very recent Congressional hearings about how dangerous some over the counter painkillers are supposed to be (I personally know one young woman who died from taking too many). While it is easy to point out that prejudice, bias and other bad attitudes can be hidden by seeming compassion, Justice Thomas' opinion seems to me to be more compassionate in many respects than his brethren's. It recognizes the need to let school's control their charges and protect them from harming themselves.

As I said at the outset, there is a lot of reason in what he writes, even if I end up in disagreement. However, Thomas sometimes surprises even conservatives with how far he is willing to go in his conservative ideology. He argues that it doesn't matter at all what the rule infraction was, just so long as it was against school rules. Thus, I can very reasonably conclude, that even if the infraction was hiding a note in class in a bra, a partial strip search would have been acceptable to him. I have trouble with that. The nature of the infraction should matter. I have the same problem with the Supreme Court okaying the police handcuffing people for traffic violations, a case Thomas cites to support his position.

Thomas might argue with me that his preferred standard - that is, the school stands in the shoes of the parents - in loco parentis - would mean that a secreted note isn't sufficient grounds for a partial strip search. Of course, this refers to a concept that is not much in vogue these days - the “societal understanding of superior and inferior” with respect to the “parent and child” relationship".

But, in the end, that standard is as vague and ambiguous as the "reasonable suspicion" standard the majority used. Who knows what a parent would do. A parent who subscribes to Thomas's way of thinking, or Souter's. But, that being said, Justice Thomas does make a reasonable argument that the courts should not be substituting their inexpert judgement of which pills are dangerous enough to justify a "partial strip search".

After pointing out some dangers of Ibuprofen and Naproxen, Thomas also writes "If a student with a previously unknown intolerance to Ibuprofen or Naproxen were to take either drug and become ill, the public outrage would likely be directed toward the school for failing to take steps to prevent theunmonitored use of the drug." Does anyone doubt that is true? In fact, it is likely in this litigious environment that Savana's mother would be suing the school for personal injuries. Many would agree with her.

Nor is Thomas ignorant of all the wacky policies, particularly "zero-tolerance" policies that schools come up with. He gives a long laundry list of them, and a solution. To keep the "judiciary from essentially seizing control of public schools . . ." and to allow "teachers [to] again be able to ‘govern the[ir] pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn’” by making “‘rules, giv[ing] commands, and punish[ing] disobedience’” control must be returned to the legislatures and school boards to make the decisions. They are empowered by the parents who vote for them.

After all Justice Thomas must constantly remind us -- this is still a democracy, isn't it? Parents who aren't happy with the system can home school or use private schools, or, in the end, move. Of course, many would object that those are remedies for the wealthy and not available to most people. More's the reason to get wealthy, I expect he would say.

I've chosen this case, not because I agree with Thomas, which I don't, but because it highlights the same old way that the media covers cases and the same old way we are trained from youth to respond politically. I have no doubt that many liberals I know would have the same knee jerk reaction to Thomas's opinion (in some cases, simply believing he's evil). No analysis or consideration necessary. On the other hand, Thomas' belief that any small violation of school rules justifies stripping a student to their underwear is just absurd and also shows what happens when you are fixated on a political ideology.

Still, some standard needs to used. Ultimately, Justice Stevens was right in my mind, it should not take a constitutional scholar to realize that this wasn't appropriate action by the school. With Marissa and Savana sidelined, how hard would it have been to have called the kids' parents and have them come to school. At least have them in the room when the outer clothes come off (presuming they have a parent). If what occurred is so serious an infraction that it is a crime, then call the police and let them get a warrant upon probable cause, not reasonable suspicion, like they are supposed to under the words of the fourth amendment. If it it not that serious, well, then the kids will get away with it like they usually do.

I'm not advocating that the school needs to go to court to do most searches. There's a big difference between searching a kid's locker, a desk, a back pack or a daily planner and having them strip to their underwear. We all know this.

Of course, this case is a big win for kids who want to hide drugs in their underwear. They all no now that this is the place to hide a few drugs. But, frankly, they already knew that and I doubt that there was a lot of strip searching going on in this country anyway. I could be wrong, but you'll have to prove it to me.

So, ultimately, I agree with you, Justice Souter, as you sing your swan song -- the "strip search" should not have been done, at least without parents present, and their should not have been liability against the school officials. But, you did not draw a bright enough line and you do not apply the constitution, but your own set of values. Strip searches like these should not be done without real probable cause. Period. If it is a serious enough matter, then school officials, who aren't trained to investigate shouldn't be doing it.

But, I like this case, because it also aptly demonstrates that constitutional cases are often more about culture than they are about "law". It reveals an underlying cultural weakness which was never discussed, even though it is impossible to separate from the decision. I'm talking about our cultural hyper-sexualization of the human body. I don't abstain myself from its effects - I'm as hung up about nudity as the next guy. But, really, from our fear of female breasts at the beach (while we snicker about other cultures where women cover their hair), parents' fears that their children will see naked people on cable tv or the internet, to the Janet Jackson incident, it just gets silly. Young kids, raised naked, bathed naked, running around the house naked, one day wake up and realize that they are naked and that they should be ashamed of it. Clothes have some important purposes like warmth and containing bodily secretions, but shame shouldn't be one of them. Admittedly, it is not as bad as it once was, but we still maintain this Noadic shame about our bodies that seems to be increasing lately even as the technological revolution makes it possible to share nudity with everyone around the world.

When I was growing up, the high school showers were open. Kids showered together (not me - too hung up, shy and ashamed). I believe it was the same for the girls' showers. Perhaps that has changed. I don't know - I'm a blogger, not a social scientist. But, it would seem that it would be a better world if people weren't so ashamed of their bodies, or gag because a mother is breast feeding her kid (like I do).

We manage to go to a doctor and we take off our clothes in front of them to whatever extent is required. We undergo gynecological and rectal exams. Why is it more embarrassing to get into your underwear in front of a school nurse while they look for drugs? Times change and the mores with them. My daughter used to go to high school in her pajamas, something that would have been the utmost in mortification when I was a kid. People wear skimpy bathing suits on the beach and go to restaurants in shorts now, but we still act as if the sight of even a partially exposed female breast in front of a nurse is shocking and that these kids were put through a shameful situation. Without this sense of shame that we instill in our children, there would be no case. Arguably, in a more perfect world, there should not be. But, we don't live there. We live here and this is the culture we have. Cultures are more based on experience and custom, not logic. That is true with respect to the law as well, as Justice Oliver Wendell Holmes once more eloquently wrote.

Whatever rule of law might be applied, Justice Souter seemed to believe that a strip search was not appropriate in our culture given what the concerns were. Most of the judge's agreed. Thomas did not seem to be as affected by that particular cultural shame, or, at least found it wanting giving his concerns about drugs, democracy and school efficiency. Ultimately, it did not matter which legal standard was used, Souter's or Thomas's, because in each case, a judge could simply decide what was "reasonable," or "appropriate," or what a parent would do in that circumstance. I am sure both Justices Souter and Thomas understand that their views of the law are inseparable from their cultural influences. If not, then they could not be more wrong.

I'll leave this post with a last word about Justice Souter who has given us the court, chosing not to die in it at some justices do. He was certainly an unusual man for a number of reasons. He is known, of course, for being appointed by a Republican-Conservative and then for usually voting with liberals. He was the original "stealth" nominee, in refusing to answer many questions the Senate put to him in his hearing. He is an old school nerdy intellectual who seemed out of place in Washington and more suited to his small hometown in the mountains, a feeling with which I quite easily identify. I doubt anyone would say he didn't seem to be a decent man who worked relentlessly on his craft and that is something. I'll miss his sharp engagements in writing with Justice Scalia as they battled for cultural control of the court.