SCOTUS Stands Up for Human Dignity

With a vote of 8 to 1, the U.S. Supreme Court ruled today that a school district was wrong to strip-search a 13-year-old girl in an effort to enforce its zero-tolerance policy regarding all drugs, including Advil and Aleve.

The lopsided result in Safford Unified School District #1 v. April Redding (No. 08–479) -- only Justice Clarence Thomas dissented -- came as a surprise, since the line of questioning in oral arguments suggested that most of the justices were not sympathetic to the plight of a teenage girl stripped to her bra and panties in the principal's office. (Justice Ruth Bader Ginsburg seemed aghast at her colleagues' questions.)

The case involved Savana Redding, a student at Safford Middle School, who was suspected (based on the unsubstantiated claim of another student who was caught with prescription-strength ibuprofen and an over-the-counter naproxen pill) of drug possession. No drugs were found in her backpack or outer clothing, so the assistant principal ordered her to take all of her clothes off and allow school personnel to look inside her underwear.

In what may be a swan song, outgoing Justice David Souter wrote the majority opinion, saying:

...when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.

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.

In a separate opinion for himself and Justice Ginsburg, Justice John Paul Stevens wrote:

Nothing the Court decides today alters this basic framework. It simply applies [New Jersey v. T. L. O.] to declare unconstitutional a strip search of a 13-year-old honors student that was based on a groundless suspicion that she might be hiding medicine in her underwear. This is, in essence, a case in which clearly established law meets clearly outrageous conduct. 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 constitutional rights of some magnitude.’”... The strip search of Savana Redding in this case was both more intrusive and less justified than the search of the student’s purse in T. L. O.

In a partial dissent, taking issue with the Court's grant of partial immunity to the school officials who ordered and participated in the strip search of Savana Redding, Justice Ginsburg wrote:

Any reasonable search for the pills would have ended when inspection of Redding’s backpack and jacket pockets yielded nothing. Wilson had no cause to suspect, based on prior experience at the school or clues in this case, that Redding had hidden pills—containing the equivalent of two Advils or one Aleve—in her underwear or body. To make matters worse, Wilson did not release Redding, to return to class or to go home, after the search. Instead, he made her sit on a chair outside his office for over two hours. At no point did he attempt to call her parent. Abuse of authority of that order should not be shielded by official immunity.

Although he dissented with the Court's ruling that the search of Savana Redding was unreasonable under the terms of the Fourth Amendment, Justice Thomas touched on the larger cultural issue -- whether schools should have one-size-fits-all, zero-tolerance policies -- in his opinion. If one reads between the lines, one can see that Thomas is suggesting that state and local legislative bodies should begin thinking about changing these policies, which often result in expulsions and other harsh punishments for hard-working, high-achieving, well-behaved students.

Thomas notes:

Restoring the common-law doctrine of in loco parentis would not, however, leave public schools entirely free to impose any rule they choose. “If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move.” See Morse, 551 U. S., at 419 (THOMAS, J., concurring). Indeed, parents and local government officials have proved themselves quite capable of challenging overly harsh school rules or the enforcement of sensible rules in insensible ways.

For example, one community questioned a school policy that resulted in “an 11-year-old [being] arrested, handcuffed, and taken to jail for bringing a plastic butter knifeto school.” Downey, Zero Tolerance Doesn’t Always Add Up, The Atlanta Journal-Constitution, Apr. 6, 2009, p. A11. In another, “[a]t least one school board member was outraged” when 14 elementary-school students were suspended for “imitating drug activity” after they combined Kool-Aid and sugar in plastic bags. Grant, Pupils Trading Sweet Mix Get Sour Shot of Discipline, Pittsburgh Post-Gazette, May 18, 2006, p. B1. Individuals within yet another school district protested a “‘zero-tolerance’ policy toward weapons” that had become “so rigid that it force[d]schools to expel any student who belongs to a military organization, a drum-and-bugle corps or any other legitimate extracurricular group and is simply transportingwhat amounts to harmless props.” Richardson, School Gun Case Sparks Cries For “Common Sense,” Washington Times, Feb. 13, 2009, p. A1.

These local efforts to change controversial school policies through democratic processes have proven successful in many cases. See, e.g., Postal, Schools’ Zero Tolerance Could Lose Some Punch, Orlando Sentinel, Apr. 24, 2009, p. B3 (“State lawmakers want schools to dial back strict zero-tolerance policies so students do not end up in juvenile detention for some ‘goofy thing’ ”); Richardson, Tolerance Waning for Zero-tolerance Rules, Washington Times, Apr. 21, 2009, p. A3 (“[A] few states have moved to relax their laws. Utah now allows students to bring asthma inhalers to school without violating the zero-tolerance policy on drugs”); see also Nussbaum, Becoming Fed Up With Zero Tolerance, New York Times, Sept. 3, 2000, Section 14, p. 1 (discussing a report that found that “widespread use of zero-tolerance discipline policies was creating as many problems as it was solving and that there were many cases around the country in which students were harshly disciplined for infractions where there was no harm intended or done”).

In the end, the task of implementing and amending public school policies is beyond this Court’s function. Parents, teachers, school administrators, local politicians, and state officials are all better suited than judges to determine the appropriate limits on searches conducted by school officials. Preservation of order, discipline, and safety in public schools is simply not the domain of the Constitution. And, common sense is not a judicial monopoly or a Constitutional imperative.

I may be reading this wrongly, but it seems to me that Thomas is waving his finger at legislators and telling them that it is their responsibility to fix these ill-suited (if well-meaning) policies.

His opinion reminds me of what he said in his dissent in Lawrence v. Texas:

I write separately to note that the law before the Court today “is … uncommonly silly.”... If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

In both of these cases -- Redding and Lawrence -- I believe that Justice Thomas was wrong in dissenting from the Court's majority. His reasoning, however, is respectable even as it reaches the wrong conclusions.

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