The initial press reports about the school strip search case, Safford United School District #1 v. Redding, were that the student won. That’s not quite right.
First, some context. In 1985, the Supreme Court in New Jersey v. T.L.O. “set the standard” for evaluating school search cases; the standard was basically about reasonableness. In an opinion concurring in part / dissenting in part, Justice Stevens wrote:
One thing is clear under any standard — the shocking strip searches that are described in some cases have no place in the schoolhouse. See Doe v. Renfrow, 631 F.2d 91, 92-93 (CA7 1980) (“It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude”), cert. denied 451 U.S. 1022 (1981); Bellnier v. Lund, 438 F.Supp. 47 (NDNY 1977), People v. D., 34 N.Y.2d 483, 315 N.E.2d 466 (1974); M.J. v. State, 399 So.2d 996 (Fla.App.1981). To the extent that deeply intrusive searches are ever reasonable outside the custodial context, it surely must only be to prevent imminent, and serious harm.
Redding involved a strip search. The 9th Circuit held that the strip search wasn’t reasonable and therefore violated the Fourth Amendment. The next question was whether prior law made it clear enough that the strip search was illegal– whether “clearly established law … show[ed] that the search violated the Fourth Amendment…” A majority of the 9th circuit held that clearly established law showed the search illegal.
Now, in an opinion by Souter (Stevens and Ginsburg dissent on the immunity part, Thomas of course thinks the strip search perfectly acceptable) the court holds that, even though the search was illegal under the standard in T.L.O., because the lower court opinions went various different ways, the law wasn’t “clearly establishd” and so the school officials were immune:
The intrusiveness of the strip search here cannot, under T. L. O., be seen as justifiably related to the circumstances, but lower court cases viewing school strip searches differently are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt about the clarity with which the right was previously stated.
Stevens, beyond quoting his footnote from T.L.O., writes that the fact that some judges got a rule wrong does not mean it is unclear:
But the clarity of a well-established right should not depend on whether jurists have misread our precedents. And while our cases have previously noted the “divergence of views” among courts in deciding whether to extend qualified immunity, e.g., Pearson v. Callahan, (2009) 555 U. S., ___, ___ (slip op., at 20) (noting the unsettled constitutionality of the so-called “consent-once-removed” doctrine); Wilson v. Layne, 526 U. S. 603, 618 (1999) (considering conflicting views on the constitutionality of law enforcement’s practice of allowing the media to enter a private home to observe and film attempted arrests), we have relied on that consideration only to spare officials from having “ ‘to predict the future course of constitutional law,’ ” Id., at 617 (quoting Procunier v. Navarette, 434 U. S. 555, 562 (1978) ; emphasis added). In this case, by contrast, we chart no new constitutional path. We merely decide whether the decision to strip search Savana Redding, on these facts, was prohibited under T. L. O. Our conclusion leaves the boundaries of the law undisturbed.*
I kept thinking reading the opinions that the only possible thing that made this in doubt was the mushiness of the standard the Supreme Court set in the first place– establishing a standard like that in T.L.O. makes it inevitable the court will say the conduct doesn’t clearly violate it.
Ginsburg is blunt in her disagreement with the majority:
Here, “the nature of the [supposed] infraction,” the slim basis for suspecting Savana Redding, and her “age and sex,” ibid., establish beyond doubt that Assistant Principal Wilson’s order cannot be reconciled with this Court’s opinion in T. L. O. Wilson’s treatment of Redding was abusive and it was not reasonable for him to believe that the law permitted it.
I think I have to agree with Ginsburg on this one.
me, too.
What a gutless bunch. Giants once roamed those hallways.
Disgraceful! Adios Souter y bienvenidos a mi hermana Sotomayor . . .
Parental consent is required of just about everything…. what realm would someone think that they can strip search a kid in school and it somehow be OK?
Did the principal consult a legal opinion before doing the search and someone tell him that the courts are wishy-washy on the whole thing… just go ahead strip the girl to her skivvies and check it all out?
If someone is violated and there is no clear cut law about the violation, that now allows the violator to escape repercussions?
the above is basic rhetorical questions, but if a police officer stopped a teenage driver and strip-searched them on the side of the road, people would be all up in arms.
JDBerry:
question 1: I can’t imagine. But the Supreme Court thinks it’s possible to have misunderstood that.
question 2: Fortunately, no longer. We know the law now.
question 3: if the law is muddy, the violator can escape repercussions. That’s what qualified immunity is about.
I’m in agreement with you, Ginsburg, and Stevens.
I imagine we can anticipate seeing Ricci on Monday, that should be interesting.
I am guessing that the QI was a condition for getting Roberts/Scalia/Alito/Kennedy on board. It could have been worse.
one quick question though. Ginsberg said the “age and sex” of the child had something to do with it. What difference does it make the child was female? What if the child had been male?
Good questions, Osa. And totally fair questions. I bet it would never have gotten to the S.Ct.
Parental consent is required of just about everything…. what realm would someone think that they can strip search a kid in school and it somehow be OK?
I have to agree with JDBerry on this.
However, NMC, I think you give short shrift to the Thomas’ dissent.
Thomas notes: [Jordan Romero] reported “that a group of students [were] planning on taking the pills at lunch” and he “reported that Redding had hosted a party before the [first school dance] where she served whiskey, vodka, and tequila.”
Additionally, he admitted that he ““bec[a]me violent” and “sick to his stomach” one night and admitted that “he had taken some pills that he had got[ten] from a classmate.” The classmate is unidentifed.
“One week later, Romero handed the assistant principal a white pill that he said he had received from Glines.”
“School officials justifiably took quick action in light of the lunchtime deadline.” The school nurse identified the pill (400-mg Ibuprofen).
“A subsequent search of Glines and her belongings produced a razor blade, a Naproxen 200-mg pill, and several Ibuprofen 400-mg pills.”
“Glines claimed that she had received the pills from Redding. …. A search of Redding’s planner, which Glines had borrowed, then uncovered “several knives, several lighters, a cigarette, and a permanent marker.” …. Thus, as the majority acknowledges, …., the totality of relevant circumstances justified a search of Redding for pills.”
“Because the school officials searched in a location where the pills could have been hidden, the search was reasonable in scope under T. L. O.”
PS – Having hidden drugs on my person, back in the day, I testify here that I would never put them in my under-wear. Everyone believes me, right? That sounds reasonable, right? Nobody carrying drugs would ever put them in their under-wear. No way! Thomas goes on to make a good case that a reasonable search includes searches of places where the contraband (or items identified in the warrent) could be located. The fact that the search of her under-wear yielded nothing doesn’t make the search unconstitutional.
PSS – “strip search”. Take my word for it, this wasn’t a strip search. In a strip search, someone you have never met puts their finger where they are not invited and you are asked to cough. I’ll refrain from…..inappropriate statements. Suffice it to say, you will not enjoy it.
Conclusion: The majority comes down on the 4th amendment issue that the school officials crossed the line. This opinion would have done well if it had plainly said that school officials may not conduct “strip searches”, as defined in this case. Rather, if the school thinks that a student needs further searching, call the police and file a complaint against the student. Common police practices will uncover any other contraband (cough, cough).
PSSS – I am off to Argentina to take my shot at the birds down there. Wish me luck.
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