Thursday, June 25, 2009

Justice Thomas: A Little Empathy Please!

Today, the Supreme Court ruled 8-1 that school officials in Safford, Arizona violated the constitutional rights of Savana Redding when they subjected her to a strip search. School officials, acting on a tip from another student, suspected that Savana (who was then 13-years-old) possessed a prescription equivalent of two Advil tablets. School policy prohibited students from possessing any prescription or over-the-counter medication without prior consent.

School officials first searched Savana's backpack, but they found no evidence of drugs. Next,
[They] asked Savana to remove her jacket, socks, and shoes, leaving her in stretchpants and a T-shirt. . .which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.
Savana's mother sued the school district, arguing that the search violated Savana's Fourth Amendment right against "unreasonable searches and seizures." The Supreme Court agreed.

The Court, however, held 7-2 that school officials did not infringe a "clearly established" right. This part of the ruling immunizes school officials from a damage award. Justice Stevens and Justice Ginsburg dissented on the immunity issue.

Justice Thomas: Pathetically Unempathetic
Justice Thomas agreed with the immunity ruling, but he supplied the lone dissent to the Court's conclusion that the search violated the Constitution. In his dissent, Thomas robotically states that: "Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment."

This argument, however, distorts the substance of the Court's ruling. The Court did not "second guess" school officials. Instead, it enforced the constitutional rights of students -- rights held by "all persons" against state intrusion. Thomas's description of the Court's important role in the protection of individual liberty as the annoying micromanagement of school administrators shows a great disrespect for the Constitution and the Court.

Thomas's dissent is even more troubling when one considers that he and six other justices concluded that the school officials did not violate a "clearly established" right when they conducted the search. Generally, government officials are immune from damages unless their behavior violates a right that was "sufficiently clear" in preexisting law. The Court concluded that the diversity of judicial opinions on the legality of strip searches in the lower courts counsels against a finding that the right was clearly established at the time of the search.

This portion of the ruling proves the often ignored or misunderstood fact that constitutional law is not always clear and precise and that the facts and precedent related to a particular case will not always compel a single outcome. As the majority states, there are "numerous" "well reasoned majority and dissenting opinions" that reach a different conclusion on strip searches than the Supreme Court.

These divergent outcomes arise because the law in this area applies a flexible standard. Under this standard, a search is "permissible. . . 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. . . ." Reasonable judges, however, can reach different conclusions about the "reasonableness" or "excessiveness" of a search.

Because the relevant standard supports multiple, logical outcomes, then empathy could influence a judge's decision without making the ruling an unreasonable or improper statement of "the" law. In fact, the test used in this area calls explicitly for empathy. It forces judges to determine whether a search was too intrusive in light of the student's "age and sex."

Accordingly, the majority considered Savana's subjective reaction to the search and held that: "Savana’s subjective expectation of privacy against [the] search is inherent in her account of it as embarrassing, frightening, and humiliating." In other words, the Supreme Court found a Fourth Amendment violation in part because it recognized and took into consideration Savana's emotional response to the search. The Court's ruling, therefore, rests explicitly on judicial consideration of Savana's feelings, emotions and her perceived vulnerability during the search. This part of the ruling displays the type of empathy that President Obama says he seeks in a Supreme Court justice, and 8 justices, including four of the conservatives, subscribed to it.

In addition to considering Savana's reaction to the search, the Court also discusses the emotional impact of strip searches upon adolescents in general. Citing to psychological literature for support, the Court finds that:
Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be. . . .
If this is true, then, given the flexibility of the relevant test, Thomas could (and should) have shown empathy for Savana. Instead, Thomas has written an opinion that trivializes individual liberty and defends the interests of school officials who were apparently so exercised over the possible presence of Ibuprofen at the school that they forced a young girl to display her breasts and pelvic area to gazing and searching adults.


Anonymous said...

I would like to commend Justice Thomas for showing empathy toward thousand of Savanas who are subjected to drug abuse in our strugling pubic school system. It's clear to anyone who has a head on her shoulders that if the school officials begin to worry about your banckrupt reading of the Fourth Amendment, they would not be able to effectively protect the children from harm. But you say who cares long as some we sacrifice our children to some abstract ideals divorced from what is really good for the people.

Truly yours,
Former Drug Counselor who had seen quite a few children dying from overdose.

Nell said...

May we ask the anon drug counselor how many children s/he's seen die from an overdose of Advil? This 13-year-old girl was strip searched based on nothing more than an allegation from another student looking to divert suspicion from herself. Prior to this incident, Savana had never faced any disciplinary action in school. The assistant principal's pathetic response to Savana's stellar school record was that she had simply never before been caught.

I remember the Clarence Thomas confirmation hearings well. My theory is that Thomas's dissent in the Redding case is firmly rooted in his sick fantasy that he would have liked to perform Savana's strip search himself. Misogynistic slime. May he rot in hell.

Darren Lenard Hutchinson said...

Anonymous: I'm glad that you are a "former" drug counselor. Although you say that my reading of the Fourth Amendment is "bankrupt," even the most conservative justices on the Supreme Court agreed. The opinion was almost unanimous.

"We" are not sacrificing "our" children for "abstract ideals." The constitution protects liberty. It is the governing document of our country. Your reading of it is just as awfully dismissive of liberty as the opinion of Thomas. Sacrificing liberty in order to fight a highly unsuccessful "war on drugs" is far more dangerous to children than the parade of horribles that Thomas lists in his dissent.

If schools have a good reason for subjecting students to a search, then they have the authority to do so. Making a child strip simply because another student had Ibuprofen in a notebook is a gross violation of due process, in my opinion, though, I concede, the standard could support multiple outcomes.

Conservative David Bernstein raises a great point on the Volokh Conspiracy, when he argues that school officials should never really have a reason to strip students, and that if something that serious occurs, then they should call law enforcement, who are equipped to ascertain whether a search is necessary and to conduct it in a fashion that respects liberty. Although I am not as trusting of police as Bernstein might be, I agree with his general argument. I suspect that cops would not have stripped a teen in a quest to find Ibuprofen.

Darren Lenard Hutchinson said...

Thanks, Nell. Great points.

The Court's logic does not prevent schools from searching for dangerous drugs if they have a reasonable basis for believing a student has them -- and as long as the search is not excessively invasive. Apparently, the "former" drug counselor would subject students to a strip search regardless of the veracity of the "tip" and the danger posed by the drugs being pursued. This "standard" erases the Fourth Amendment. But, then again, the counselor believes the Fourth Amendment an annoying, abstract, and unnecessary concept.....So worthless, in fact, that the Framers apparently wasted their time putting in the Constitution.

Anonymous said...

... I can only wonder if the Court would have ruled the way it did if the school had found some crack cocaine on her. My guess is that they would not.

Also, what the school was looking for was not Ibuprofen as you said, but a controlled substance.

Anonymous said...

I don't intend,as you say, to subject school children to strip searches regardless of the verasity of the tip. What I do suggest is to allow schools to do what is necessary to protect the children from drugs. The school people are not as unreasonable as you think.

Nell said...

Anon at 9:25pm--what controlled substance? Are you the former drug counselor? I'm a former prosecutor, and perhaps my definition of a controlled substance differs from yours.

Read the court transcripts. The school was searching for prescription strength ibuprofen (that is, the equivalent of two OTC Advil tablets) -- this is NOT a controlled substance.

Nell said...

Darren, I agree that law enforcement should have been called before any strip search was conducted. Where I come from (and yeah, I live in a very blue state), if the police had been called, this search would not have taken place. In addition, Savana was held in the principal's office for several hours before the search occurred. During that time, no attempt was made to reach her parents.

Nell said...

"I can only wonder if the Court would have ruled the way it did if the school had found some crack cocaine on her. My guess is that they would not."

Not only did the school NOT find crack cocaine on her, they didn't find even the ibuprofen--not in her backpack, not in her outer clothing, not in her underwear, nothing, nada. The poor kid is lucky she wasn't subjected to a body cavity search. Would that have been acceptable in your "protect-students-from-drugs-at-all-costs" world, former drug counselor? The school system's only excuse for searching her at all was the completely unfounded accusations of another student.

Darren Lenard Hutchinson said...

Anonymous: You called very solid Fourth Amendment analysis "bankrupt" and "abstract." This trivializes the Bill of Rights. You might not have intend to erase liberty, but your tone conveyed a different message. And I never said that school officielas are inherently unreasonable. In fact, the constitutional test simply requires that they act reasonably. I contend, and the Court agrees, that forcing this kid to strip under the circumstances violated the law. What part of that is so bothersome?

Also, Anonymous, you contend that the results would have changed if the school found "crack cocaine." That's a pretty unsound guess. The Fourth Amendment reasonableness test does not depend upon whether the subject of a search is a criminal. Instead, it turns on whether the state official has sufficient reasons to believe that the individual is about to commit a crime or has already done so. There are many cases where evidence is suppressed because of unconstitutional searches. This is a common part of Fourth Amendment analysis.

Nell said...

I don't know about you, Darren, but I consider this decision a fairly narrow ruling. In the circumstances of this particular case, the search was unreasonable. While school officials in the future may think twice about strip searching 13-year-olds (a good thing, IMO), the ruling does not preclude future searches (including even strip searches) of students suspected of possession of illegal drugs.

Darren Lenard Hutchinson said...

Nell, I agree. If I were legal counsel for a city, I would advise schools not to use strip searches for ordinary over-the-counter drugs, unless there is some pretty strong evidence; I think the more serious the contraband (a gun or cocaine, for example), the greater the school's interest a more invasive search. The opinion leaves a lot of discretion, which is why Thomas's opinion is upsetting.

Ryan said...

This type of thing should never happen at a school. Especially to a young girl.

UNRR said...

This post has been linked for the HOT5 Daily 6/26/2009, at The Unreligious Right

liberal dissent said...

If school administrators' ability to maintain order is weakened by the Fourth Amendment, then school administrators will just have to live with it.

Darren Lenard Hutchinson said...

Liberal Dissent: People who despise rights often argue that local actors should have wide authority to do what they like.

Anonymous said...

People who despise rights ......

You probably refer only to the rights you agree with. What about the rights of the children to grow up in a safe environment. Only the people who are not familiar with reality in our school system can think that this case was a slam dunk.

Darren Lenard Hutchinson said...

Anonymous: I believe that the constitution requires states to provide safe and adequate schooling for children. So your attempt to question my commitment on this is a failure. Only people who think kids are pieces of property can think this case was NOT a slam dunk.

Also, you apparently are misunderstanding the case. The standard would permit a more invasive search depending upon the nature of the threat and the strength of the information school officials have. If school officials reasonably believed that the student had a concealed weapon or arsenic, then the search would probably have been justifiable.

Also, using kids to create a sense of fear is not attractive. The same argument that you seem to advocate here could promote cops randomly entering into everyone's homes or searching their vehicles; that would prevent and uncover crime too -- and probably lead to a safer environment. Fortunately, the Framers had the good sense not to give law enforcement -- OR TEACHERS -- a blank check to abuse citizens.

liberal dissent said...

I do not recall seeing that right listed in the Constitution.

We live in a free society. There are tradeoffs to that. I, and I would hope most Americans, are willing to make those tradeoffs.

Anonymous said...

I just reread the fourth amendment. I find nothing in it that says it does not apply to persons under 20 or, for that matter, any other demographic.

I confess to having long admired much about Justice Thomas but I am astounded by his finding here. My father was an educator and the disciplinarian for a high school of about three thousand. He never struck a child and never found need for this type search. Yet, he was feared by students and respected by authorities. He maintained discipline through consistency, fairness, and expectation of performance.

Were I on the school board of a system where a principal or other "educator" abused a student in this manner, I would seek to have that person immediately terminated from abusing "my children."

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