Dahlia Lithwick reports on the oral arguments at the Supreme Court, involving a 13 year old girl stripped-searched because she had been falsely accused of giving ibuprofen to other students:
Adam Wolf, the ACLU lawyer who represents Redding, explains that “the Fourth Amendment does not countenance the rummaging on or around a 13-year-old girl’s naked body.” Wolf explains that he is arguing for a “two-step framework,” wherein schools can use a lower standard to search “backpacks, pencil cases, bookbags” but a higher standard when you “require a 13-year-old girl to take off her pants, her shirt, move around her bra so she reveals her breasts, and the same thing with her underpants to reveal her pelvic area.” This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to “change into a swimming suit or your gym clothes,” because, “why is this a major thing to say strip down to your underclothes, which children do when they change for gym?”
This leads Ginsburg to sputter—in what I have come to think of as her Lilly Ledbetter voice—”what was done in the case … it wasn’t just that they were stripped to their underwear! They were asked to shake their bra out, to stretch the top of their pants and shake that out!” Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.
But Breyer just isn’t letting go. “In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear.”
Shocked silence, followed by explosive laughter. In fact, I have never seen Justice Clarence Thomas laugh harder. Breyer tries to recover: “Or not my underwear. Whatever. Whatever. I was the one who did it? I don’t know. I mean, I don’t think it’s beyond human experience.” […]
You see, we now have school districts all around the country finding naked photos of teens and immediately calling in the police for possession of kiddie porn. Yet schools see nothing wrong with stripping these same kids naked to search for drugs. Evidently teenage nakedness is only a problem when the children choose to be naked.
Scott at Lawyers Guns and Money breaks down how the vote is likely to go (Scalia is likely to vote for student’s privacy rights, incidentally, while this will probably be the second time Alito has favored the state strip-searching little girls).
Three points:
1) Yet anther example of how the drug war has eroded sanity.
2) Yet another example of why a Court with only one woman on it is a court that’s unable to fairly administrate justice.1
3) Yet another example of why Democratic presidents appointing “centrist: judges while Republicans appoint far-right judges creates right-wing outcomes, not balance.
- Yes, women aren’t always more connected to reality on these issues than men; I’m sure Camille Paglia, for example, would see nothing wrong with Breyer’s logic. But this isn’t a question of absolute difference; it’s a question of odds. A Court with 4 or 5 women on it would be substantially less likely to have Ginsburg be the only Justice appalled by Breyer’s rationalization. [↩]
4. Yet another example of how the school system really, really sucks.
I’m bracing myself for another brilliant, scathing Ginsburg dissent that makes me want to cry because SHE’S THE ONLY PERSON WHO FUCKING GETS IT.
That last paragraph from Lithwick is great, by the way.
1. Great title.
2. IBUPROFEN? The one that most girls I know use at least once a month for period pains?
3. I always have some codeine-and-something tablets with me (I suffer from shingles – yes, shingles, like an old lady). Guess that makes me a very dangerous criminal (me and all those old ladies with shingles).
Marta,
Many schools now require students to deposit all medications with the school nurse and to have him/her dispense them as needed, in order to avoid the students’ sharing medications improperly (though given how stupid and unfocused I seem to have gotten as I get older, I do wish I’d stockpiled Ritalin and other ADD medications when I was around people I knew to be taking them). So it’s not that ibuprofen is being made illegal; it’s that the student was accused of breaking the school rules by sharing/selling her medication to others. In particular, a prescription drug (as this was, and as ADD drugs are) is illegal for a non-medical-professional to distribute.
The big concern in the case is the invasiveness of the search given the slimness of probable cause. The Fourth Amendment (along with the First) is not very strong in schools because authorities are dealing with minors rather than adults, and because schools are considered a special environment in which order is more important than freedom. But there are still some constraints on how much school administrators can violate students’ rights.
Who are we to get in the way of Breyer turning his fantasies of molesting little girls into reality? Maybe he’ll step down to take a job at a school if this passes.
How did
turn into
Now, when I was in grade school the only time I was in the girls’ locker room was in my dreams. But the guys took off their clothes and changed into their bathing suits or gym uniforms in a pretty matter of fact fashion. In my day we didn’t just get down to our underwear, we got naked in the process. However, nobody strutted around or stood around looking bored but fabulous. I’m guessing that’s Breyer’s experience as well, given that he’s even older than I am. If anyone’s imagination is running away from themselves it would appear to be Dahlia Lithwick, not Justice Breyer.
And frankly, Jake, your snarky little comment is unjust to say the least. Accusations of perverted fantasies ought to have at least SOME justification other than displeasure with someone’s political stance.
Jake,
That seems unfair toward Breyer — he was talking about the plausibility of kids’ hiding things in their underwear, not the objective desirability of watching a 13-year-old girl strip to her underclothes and then shake out her little training bra and underpants.
His immediately preceding comment was, “It’s not like you have any studies on this. But I mean, I hate to tell you, but it seems to me like a logical thing when an adolescent child has some pills or something, they know people are looking for them, they will stick them in their underwear. I’m not saying everyone would, but I mean, somebody who thinks that that’s a fairly normal idea for some adolescent with some illegal drugs to think of, I don’t think he’s totally out to lunch, is he?”
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-479.pdf
RonF,
You’re mistaking Lithwick’s point. The male justices were claiming that because girls are changing in the locker rooms, having to be naked at school in front of other people isn’t a big deal. Lithwick was pointing out that girls generally aren’t standing around naked (as they would have to do in a strip search); they’re wriggling around trying to minimize the amount of skin exposed while getting from one outfit to another. And I will back her up on that — there’s a reason why adult women can get out of a bra without taking off their shirts, or change in the backseat of a car without more than a millisecond’s flash of flesh, and it’s borne of those middle school experiences.
In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear.”
And this is a cause for levity? Nobody ever put anything down your pants as a prank or harassment when you were a kid?
When I was 13 years old I was subjected to an “initiation”. I ended up having to walk about a mile with pine needles, Ben Gay and peanut butter stuffed in my underpants.
Interesting that the court spectators and other justices seemed to think that concept is funny, but asking someone to shake out their underwear is awful.
Interesting description by Justice Ginsburg. When I heard the word “strip-search” used I thought that the girl actually had to get naked. I really don’t see the Federal case in having to shake out your bra and panties (I presume in front of a female teacher/administrator) without having to remove them.
This is neither here nor there, because my opinion of the case doesn’t hinge on the gender of the student nor do I think a strip search is in any emotional, psychological, social or legal way similar to changing in the locker room, but most middle school girls do not change their clothes in a “pretty matter of fact fashion.” They go through incredible contortions to avoid giving anyone any glimpse of their bodies. I spent the entire semester we did swimming in constant mortification because I had to actually take my underwear off in the same room as other people. No one showered naked. Everyone showered afterward in their swimsuits and then got dressed as hurriedly as possible. And that was in high school. I was well into adulthood before I could change in a locker room in a “pretty matter of fact fashion,” and I don’t think I’m that unusual for a woman.
PG, it seems to me that Lithwick’s point was pretty explicit; she thinks Justice Breyer has an image straight out of a porn movie in his mind when he considers what happened in this case. That’s nuts.
I do think Breyer’s line of questioning indicates he doesn’t think changing for gym is a big deal. Most teenage girls would very strongly disagree. I can’t really speak to what the experiences of younger teenage boys are – I’m sure it’s worse for fat kids and kids just generally lower on the social pecking order – but I do think Ginsburg is better positioned than the other justices to understand/remember the sheer mortification many teenage girls have toward their bodies, even those who might appear to have perfectly acceptable bodies, and especially at that 12, 13, 14 age when you think you are either not developed enough or way too developed.
RonF,
No, she thinks Breyer has an inaccurate idea of how girls change in gym that causes him to believe a 13-year-old girls shouldn’t have any problem with stripping to her underwear and then shaking that underwear out. As Lithwick, chingona, I and every other woman I’ve seen comment on this has mentioned, girls and boys are socialized differently in this respect and it’s an indication of either ignorance or stupidity about the lives of girls to assume that they’re as nonchalant about exposing themselves to others as boys are. If you’re not getting that, I really don’t know what else to say.
Hold on, I’m getting ahead of myself. Let me look at that article.
RonF,
I recommend reading the transcript of the oral argument so you actually have the context for all of this. The big question in Fourth Amendment cases is reasonableness, and what Justice Ginsburg quite understandably find insane is the idea that it’s reasonable to make a girl who’s never had a prior disciplinary problem strip to her underwear, then shake out her bra and underpants — which exposes her breasts and pubic area — based on another student’s claim that the girl has been handing around drugs and the fact that the drugs weren’t found in a search of the girl’s locker, backpack and pockets. Do you think it’s reasonable to then demand that the girl strip to show that she in fact doesn’t have ibuprofen shoved up her vagina? Or should the school perhaps consider that the accusing student was mistaken or lying?
ETA: If you’re going to completely change a comment to which people are responding, please either use a strikethrough of the old comment or note that you have changed it.
As a 42 year old man, I would find a stripsearch to be humiliating. I’m pretty sure that a large percentage of the American population would be humiliated by being stripsearched. Breyer really doesn’t know this? He really doesn’t know that being stripsearched is different than quickly changing in a locker room? I don’t believe that.
Even if we grant that teenage girls regularly change clothes in locker rooms without a hint of mortification (which is laughably untrue), that still has nothing to do with a strip search. Changing in a locker room is nothing at all like being forced to take your clothes off and have your nearly naked body closely inspected by stern adults you probably don’t feel very fondly towards while you pull out and shake your bra and panties.
Because someone else said you had painkillers.
And I do want to reiterate that girls are NOT blithe about changing clothes in their locker rooms. No girl makes it through middle school or junior high without perfecting the art of removing and replacing a bra while still wearing a tshirt. Not to mention changing shirts entirely without showing an inch of upper body skin.
O.K. After reading that over:
The school has an interest in ensuring that drugs (whether OTC, prescription or illegal) are not distributed among the students outside of the control of the faculty and administration.
They have a responsibility to the public in general and to the kids’ parents specifically to have policies regarding this and to enforce them.
It’s quite reasonable to presume that a kid might stash illicit drugs in their underwear if they don’t want to get caught holding them.
There needs to be some way of searching a kid to see if they’ve done that. Having a girl shake out (without removing) her bra and panties in front of an adult female to do this seems reasonable to me. Taking them off completely would be a step too far. As far as calling her mother and having her come over – if to be there as a witness, fine, but what happens if she’s not available? And I wouldn’t let her do the search, as she might simply grab the drug and then deny her kid had it.
Ibuprofen doesn’t seem too horrible a drug to me. But every school I know of either requires a parent’s signature to permit their kid to be given it by the school adminsistration or just refuses to dispense it at all, and all of them ban the kids from bringing it in on their own and self-medicating. In Scouts it’s a National rule that kids cannot carry or dispense (self or otherwise) any drug except for a couple of very specific exceptions (for asthma attacks and anaphylaxsis due to stings). So if it’s that big of a concern, it seems reasonable that they should be able to search for it. If it’s not that big of a concern, then get rid of the rule.
As far as the effect it had on this young girl’s psyche, the whole experience seems to have affected her badly. I have to wonder how much of that was the actual incident and how much of it was due to people telling her what a victim she was and literally making a federal case out of it? I’m not offering an opinion on what the answer is to that, mind you. I don’t know the timelines involved.
So what should the school do? Not search? But as I pointed out school policies seem to treat ibuprofen as a dangerous substance. Look at it from this point of view: at what point does the school’s liability for controlling it’s distribution on campus stop? At what point can they say “that’s all we can do” – and then, I suspect, wait for someone else to sue them because they didn’t do enough to stop it.
Oh, and the kid who made the false accusation should be busted big time.
Finally; there are serious questions here. Too bad Dahlia’s distaste for the politics (and possibly gender) of some of the justices leads her to draw false analogies and absurd commentary that tempts one to disregard them.
Being strip searched is completely different than changing in a locker room, and I will add to the chorus of women saying that adolescent girls do not change matter of factly and take active steps to be as clothed as possible at all times during the changing process.
Being strip searched includes: 1) knowing that you are being accused of an offense; 2) taking off your clothes when other people are not taking off their clothes; 3) taking off your clothes while others, who are clothed, are watching you intently; 4) not knowing when or where or how this is going to end.
As to #4, I mean, how is this child to know that they’re not going to stick their fingers up her vagina/anus? They didn’t find anything in the backpack, so they checked the pockets, they didn’t find anything in the pockets, so they make me take off my pants, they didn’t find anything when I took off my pants and shirt, so they make me shake out my bra/panties – don’t you think that girl is sitting there going – when they don’t see anything fall out of my bra/panties are they going to stick their fingers up my vagina to check? I mean, isn’t it logical at that point to be scared as shit that that’s what’s coming next? Just because they didn’t actually do it doesn’t mean that the threat wasn’t there, or that the girl would have felt as safe (or unsafe) as she would have taking off her clothes in the locker room (where everyone else is also doing it, and where others are politely pretending to pay no attention to your body, and where there is an expectation that you will get to change as quickly as you can/want to without someone touching you against your will.)
As to #2, I would think that everyone can agree that taking off your clothes in a place where everyone else is also taking off their clothes is completely different than being forced to take off your clothes when no one else has to. You are much more vulnerable and embarrassed when you are the only one standing there naked.
This is just dumbfounding me. I don’t think I can continue to discuss this politely.
PG – all good points. So, then, tell me this: what should the school do? Search and the kid gets all upset for what turns out in this case to be no good reason. Don’t search and maybe the kid DOES have some drugs that she gives to someone else that for one reason or another can’t tolerate it. Take the word of a troublemaker accusing a kid who’s never been in trouble before and maybe that good kid really hurts someone badly with the first serious mistake they’ve ever made. Give the school the leeway to say “This kid’s word is dependable and this kid’s word isn’t” and you introduce subjectivity and personal bias that can be expressed in various ways – including racist or class-based ones, or on the basis of whose parents have the most money and can make the most trouble.
And understand that I hate “zero tolerance” policies. They rip away the ability of school authorities to use judgement and common sense. But I see why they were created; it’s not to protect the kids, it’s to protect the administration from lawsuits.
Let’s remember this; the court’s job is not to decide what the law should be. It’s the court’s job to decide what the law IS. What is the law? If the law is that the school can do this search but that has unacceptable consequences it’s the legislature’s job to fix that, not the court. The school authorities should not be punished if they acted within the purview of the law, and if the law is written so poorly that the school authorities didn’t clearly know what they could do and what they couldn’t that’s again the responsibility of the legislature.
I believe that possession of child pornography should be a crime.
I also believe that forcing a child to strip as you watch should be a crime, since it seems to me to be much much worse.
It frightens the fuck out of me that there is any disagreement on this, and makes me doubt the basic humanity of the people doing the doubting.
—Myca
My understanding is that most schools don’t want kids to have any medications on them because if they see a kid pop a pill from across the room or down the hall, they don’t want to have to try to figure out if it was something illicit or not. Or at least, that was the origin of the rule. But it seems to have taken on a life of its own, in which it is enforced for its own sake. Rather than use a punishment that would match the seriousness of the rule broken, ibuprofen is treated the same as an illegal street drug or a stolen prescription drug. All in the name of “zero tolerance.”
Personally, I’d like to see the rule thrown out. I think it’s ridiculous. But even if we keep the rule, I think we can tell school administrators to exercise reason and restraint and common sense in enforcement. If the purpose of the ibuprofen ban isn’t to protect kids from ibuprofen but to make teachers’ lives easier, then perhaps it is okay to stop once you’ve searched her locker, her backpack and her pockets.
Yes. Forcing a 13 year old girl to strip in front of several adults is only damaging if people make a big deal out of it?
I am fucking flabbergasted at the arrogance.
—Myca
And I pretty much had PG’s reaction at 20 to that part of your comment. I thought about addressing it, but I cannot do so without losing it, so I’ll just leave it at that. Well, not quite. Are you seriously telling me you would be okay with someone doing this to your daughter?
I thought the court’s job was to determine whether the law violates the girl’s fourth amendment rights against unreasonable search and seizure.
ETA: To clarify, when we are talking about applying the fourth amendment to a particular situation, I fail to see a clear distinction between saying what the law should be and what it is. Inevitably and appropriately, it is a matter of interpretation.
FYI, here’s the dissent from the 9th Circuit:
THOMAS , Circuit Judge, dissenting:
I must respectfully part company from my friends in the majority. As we have said “[i]t does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity.” Calabretta v. Floyd, 189 F.3d 808, 819 (9th Cir. 1999) (internal quotation marks omitted).
Thirteen-year-old Savana Redding, an honor roll student with no prior disciplinary problems, was required to strip, exposing her breasts and pubic area, in a fruitless search for — at worst — prescription strength ibuprofen. 1 Savana had no history of drug involvement of any type, nor was she alleged to have any connection to illegal drug distribution. Rather, school officials based their actions entirely on uncorroborated statement by a student that Savana had given her a few ibuprofen tablets. The school officials did not suspect that the pills were something other than ibuprofen. The nurse recognized the pill immediately as an ibuprofen tablet. At no point did the school officials ask Savana’s mother to be present for the search, nor did they permit Savana to call her mother or any other relative during her two and a half hour detention. School officials discovered nothing in the search. Given these circumstances, I would hold that the unwarranted intrusion on Savana’s privacy violated the Fourth Amendment.
FOOTNOTES
1 The school makes much of the fact that the ibuprofen tablets were “prescription strength.” However, the policy upon which the school relies for justifying the strip search specifically includes over-the-counter medications. There is nothing in the record to indicate that Savana was being strip searched because the ibuprofen was “prescription strength.” Rather, the record seems to indicate that school was just searching for generic “pills.” The “prescription strength” tablet was 400 mg; the over-the-counter tablets, marketed as Advil or Motrin are 200 mg. In any case, Savana has consistently denied that the pills were hers, and the school does not contend that the pills possessed by the other student were, in fact, Savana’s.
The majority and I agree that the proper standard for evaluating the constitutionality of the search is dictated by New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985). In applying this standard, the majority holds that the strip search of Savana was (1) “justified at its inception” and (2) “reasonably related in scope to the circumstances which justified the interference in the first place.” T.L.O., 469 U.S. at 341 (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)) (internal quotation marks omitted). I disagree on both counts.
School officials may have had sufficient information to perform some kind of search of Savana for prescription-strength ibuprofen. There is little question that a search of Savana’s backpack and her pockets would be constitutionally permissible, given that Savana’s friend and classmate Marissa had reported that Savana had provided her with the ibuprofen. But the appropriate inquiry is whether a strip search was justified at its inception. See, e.g., Phaneuf v. Fraikin, 448 F.3d 591, 597-600 (2d Cir. 2006); Cornfield v. Consolidated High Sch. Dist., 991 F.2d 1316, 1321 (7th Cir. 1993).
The only credible connection between Savana and an impending distribution of prescription-strength ibuprofen was Marissa’s statement that Savana had provided her with the pills found on her person. However, our sister circuits have concluded — properly in my view — that student tips alone are insufficient to support a constitutionally permissible strip search. See Phaneuf, 448 F.3d at 598-99 (“While the uncorroborated tip no doubt justified additional inquiry and investigation by school officials, we are not convinced that it justified a step as intrusive as a strip search.”); Williams v. Ellington, 936 F.2d 881, 888 (6th Cir. 1991). To overcome this legal difficulty, the school attempts to additionally justify the search on the basis that (1) Jordan falsely reported that Savana, several months prior, had a party at her home at which alcohol was served; (2) Savana admitted to owning a planner — later discovered to contain cigarettes, lighters, and a knife — that she had given to her friend Marissa. 2 The school does not explain how this information sufficiently corroborates and supports a strip search for pills. Indeed, the Second Circuit recently held that violation of a school’s tobacco policy cannot be the basis of a strip search for another drug. Phaneuf, 448 F.3d at 599-600; see also Cornfield, 991 F.2d at 1321 (“‘Justified at its inception’ in the present context does not mean that a school administrator has the right to search a student who merely acts in a way that creates a reasonable suspicion that the student has violated some regulation or law.” (emphasis in original)). Under the school’s reasoning, it is difficult to see how any student who was identified by Marissa would be safe from a strip search by school officials.
FOOTNOTES
2 As I noted earlier, Savana has consistently denied, both to the school officials, and to the court under penalty of perjury, that she supplied the pills to Marissa. She affirmatively declared that she had never brought prescription pills to school and had never given any pills to any student. She denies that any of the objects found in the planner were hers. She affirmatively alleges that she knows that the objects were owned by Marissa. She denies that alcohol was served at her house, and the school has essentially conceded that this was false accusation.
In order to justify such an invasive procedure, school officials must be required to show more than the circumstances presented in this case. See Cornfield, 991 F.2d at 1321 (“As the intrusiveness of the search of a student intensifies, so too does the standard of Fourth Amendment reasonableness.“).
Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). The Tenth Circuit has called them “terrifying.” Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir. 1993). The Eighth Circuit has called them “humiliating.” Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982). Strip searches of children pose special concerns. Cornfield, 991 F.2d at 1321 (“no one would seriously dispute that a nude search of a child is traumatic”); Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604 (6th Cir. 2005) (“Students of course have a significant privacy interest in their unclothed bodies.”). In addition, we must be aware of the fact that the potential for humiliation is particularly acute for a thirteen-year-old girl. See Calabretta, 189 F.3d at 819; Cornfield, 991 F.2d at 1321 n.1 (“As children go through puberty, they become more conscious of their bodies and self-conscious about them. Consequently, the potential for a search to cause embarrassment and humiliation increases as children grow older.”); Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) (“youth . . . is a . . . condition of life when a person may be most susceptible . . . to psychological damage”).
Even assuming that the search was justified at its inception, it is clear that the search performed by school officials was not reasonable in scope as secondarily required by T.L.O. I again agree with majority that the correct standard is whether “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.” T.L.O. 469 U.S. at 341-42. I disagree, however, with the assertion that the search of Savana’s person was reasonable in scope. It was unreasonable to force Savana, a thirteen-year-old girl, to expose her breasts and pubic area to school officials. It was unreasonable not to call Savana’s mother during the two and a half hours she was detained. It was unreasonable, given that officials had no evidence that alternative methods of concealment were employed, to probe further than her backpack and outer pockets.
The school makes much of the fact that Savana was not asked to remove her bra and underwear. School officials asked Savana to pull out her bra band to the side and shake it, which exposed her breasts. They also asked Savana to pull her underwear elastic and shake it and pull out and shake the crotch of her underwear, which exposed her pubic area. Under these circumstances, it is difficult to see how the fact that school officials did not completely undress her is of any constitutional significance. Indeed, perhaps the most alarming aspect of the school’s position is that the school officials seem to believe that strip searching of students should be considered a routine matter. Marissa was strip searched for ibuprofen (and nothing was found) prior to the strip search of Savana. When Savana’s mother complained about the search the next day, she was told by the principal that there was no problem “because we didn’t find anything.”
The school also relies on the significant interest school officials have in safeguarding the health of their students and enforcing their anti-drug policy. No one doubts the value of protecting young students from the dangers of illicit drug use. But ibuprofen, aspirin, and acetaminophen do not, shall we say, usually spring immediately to mind when we consider illegal drug trafficking operations in our schools. In any case, the societal interest in discouraging illegal drug use does not obviate our duty to find some meaningful connection to these dangers and the student who is to be deprived of her dignity. To the contrary, T.L.O. requires school officials to undertake reasonable, commensurate action in response. This common sense requirement allows parents to rest assured that their children will not be stripped and searched without their knowledge or participation for allegedly giving another student the equivalent of two Advils.
The conclusion that a strip search of a child may be constitutionally justified on the basis of uncorroborated rumor directly conflicts with the Second Circuit’s contrary conclusion in Phaneuf v. Fraikin. In Phaneuf, the Second Circuit held that the student’s Fourth Amendment rights had been violated by an unreasonable search by school officials. School officials had received a student tip that eighteen-year-old Phaneuf planned to hide marijuana “down her pants.” 448 F.3d at 593. When confronted by school officials, Phaneuf denied possessing marijuana. Id. Officials searched Phaneuf’s purse and found cigarettes and a lighter — in violation of school policy. Id. at 594. Phaneuf’s mother was then called, who conducted a strip search of Phaneuf behind a closed curtain. Even with Phaneuf’s mother present, and behind a closed curtain, the Second Circuit found the search to be unreasonable, holding that (1) officials were required to “investigate, corroborate, or otherwise substantiate” the student tip, (2) Phaneuf’s non-drug disciplinary history could not support a strip search, (3) “suspicious” denial of possession of contraband also cannot support a strip search, and (4) the connection between tobacco possession and drug possession is far too attenuated to justify a strip search. Id. at 597-600.
Savana not only had no history of drug abuse, but was an honor student with no disciplinary trouble whatsoever. In addition, unlike in Phaneuf, school officials had no cause to believe that Savana was hiding anything in her clothing. More to the point, the only connection between Savana and an impending pill distribution — aside from Marissa’s unsubstantiated tip — was possession of the planner containing cigarettes in violation of school policy.
Certainly, some strip searches have been upheld under circumstances far different from the one at bar. See, e.g., Cornfield, 991 F.2d at 1322 (justifying a search where the student, an enrollee in a behavioral disorder program and a drop-out from a drug rehabilitation program, had an unusual “bulge” in the crotch area of his pants, had previously informed officials that he had “crotched” drugs during a police raid, and was known to have possessed drugs while on school grounds); Williams, 936 F.2d at 882-83 (justifying a search when officials had (1) statements from other students witnessing the plaintiff actually using the drug, (2) a report from a teacher that the student had written notes about using drugs, (3) received reports from the plaintiff’s parent that she was using drugs, (4) a report from a student the day of the search that the plaintiff had drugs on her in a small glass vial.). These cases are quite distinguishable from the case at bar. Indeed, no federal case to examine the question extends official discretion as far as today’s holding.
The school’s strip search of Savana Redding violated the Fourth Amendment. To hold otherwise would be to conclude that her constitutional rights did, in fact, disappear at the schoolhouse gate. I would reverse the judgment of the district court.
ETA: The 2d Cir. decision in which even a kid who was found with contraband and who had had past disciplinary problems, AND whose mom conducted the strip search, was found to have had her rights violated, was a decision made by Judges Jacobs, Parker and Hurd. Hurd is a district judge appointed by Clinton, but Parker is a GW Bush appointee who’d initially been blocked by a Democrat-controlled Senate, and Jacobs is a noted conservative as well.
What this actually brings up for me, is a basic difference in the conservative and liberal understanding of ‘rights’, and that maybe the problem is that conservatives understand rights as something that must be earned.
Forcibly strip-searching a 13 year old girl for fucking Ibuprofen is okay because she’s a child. Her age means that she hasn’t earned the right to choose who sees her naked.
Torturing suspected terrorists is okay because they’re terrorists. Their suspect status means that they haven’t earned the right to not be tortured.
Denying gay citizens equal rights is okay because they’re gay. Their sexual immorality means that they haven’t earned the right to equality.
I think the liberal framing is more that rights are rights precisely because they don’t have to be earned.
It’s a digression, and one I don’t want to go into … maybe I’ll make a separate post or something … but damn, I just find the mindset that would find forcing a child to strip to be anything other than evil inconceivable. And scary. Really scary.
—Myca
PG,
Thanks for posting that. In part of my response to Ron at 23, I started to go into this whole thing about why a girl might violate policy and bring ibuprofen to school anyway, and then I remembered that she didn’t even violate any rules. She did – even by the absurd standards of zero tolerance – NOTHING WRONG. All you have to do, apparently, to deserve to be subjected to a strip search in school, is show up for school.
No school that I ever went to had a rule against aspirin, ibuprofen or acetaminophen. While caffeine pills were frowned upon, I don’t recall anybody being busted for that. This was all during the height of 80’s Nancyist “Just Say No!!!!!!!!” anti-drug hysteria. The schools I went to still managed to bust kids for dealing or having pot, cocaine, alcohol, etc. Without ever once committing a stripsearch. And without ever making students feel like they were living in a police state.
And now we have people who went to school in the same environment that I did implementing “zero-tolerance” (hah!) stripsearch-ready policies. What the fuck is wrong with my generation? Or did I just go to very unusual schools? Eh, the answer to that doesn’t matter. “Zero-tolerance” (hah!) policies are ineffective at meeting the stated goal. They are good at really giving that wonderful feeling of living under unreasonable authoritarian rule, though. So I guess “zero-tolerance” (hah!) has that going for it.
@30:
I graduated highschool in 2008. Current school policies, including “zero-tolerance” on drugs, were and are fantastic for creating that feeling of “unreasonable authoritarian rule.” Quite a few people, including myself, carried ibuprofen or acetaminophen for headaches or whatever, and gave those drugs to other students. Getting caught with those substances would result in being suspended, and was equivalent to being caught with weapons or other sharp objects. This taught kids to hate authority figures (especially law enforcement) and to argue for legalization of drugs. At no point did those policies actually deter anyone I knew from carrying over-the-counter medications or other contraband in classes. We just made sure not to get caught with our oh-so-dangerous ibuprofen or scissors – which were just as bad as alcohol and switchblades.
Yeah, basically. Same policy here, 2000 graduation.
Though I seriously doubt anyone would have tried to enforce it with any vehemence.
@Myca, #28: I would like to see that as a post of its own. I’d also like to see it plastered on every billboard in America until people get a clue what rights are.
Myca @ 28 — just a request to read Phaneuf v. Fraikin, 448 F.3d 591 (2d Cir. 2006) before categorizing all conservatives as not believing in students’ civil rights and liberties. Some do, many don’t.
I would have thought a lot of conservatives would oppose a search like this. This seems like classic “nanny state” overreach, as well as interference with parental authority. I guess I also would have thought that the gut, instinctual reaction of most people who are parents would be “Not to my kid, you don’t,” regardless of their ideological orientation.
The strip search of a vulnerable teenager without the presence of an adult ally/guardian is appalling.
What I keep coming back to, though, is the ibuprofen. Girls can have need of pain relievers, on-hand and accessible, in order to mitigate debilitaing cramps. It seems that Ginsburg is more likely to be sensitive to all the gender-specific issues in this case than the men.
RonF writes:
Of course asthma and anaphylaxsis drugs require very very prompt administration, but frankly, this girl may have also needed pain relivers on hand for unexpected, sudden, and intense pain, not wanting to have to publicly excuse herself from class to go get meds from the school nurse (whom you suspect might not be very symptathetic, considering the treatment she DID get!) for her period. She was legally a child, but growing into an adult body with adult-body needs.
It seems that there should be a registraion process for teens to have needed, low-consequence drugs on-hand.
And I also wonder if the media interest in this case is a little voyeristic?
When thinking about this strip search you can imagine either as an observer of the event or as personnaly experienceing the strip search. I’m in the latter camp, and find it horrifying. It sounds like maybe some other people imagine it as observing the event externally. I wonder if the mind’s-eye viewpoint shapes the opinion on the case.
marmalade,
And I also wonder if the media interest in this case is a little voyeristic?
The news media tends to take a strong interest in school-related cases that go to the Supreme Court because they figure their target audience of middle and upper class 25-45 year olds will want to know what schools are allowed to do. There was tremendous media interest in the recent “Bong Hits 4 Jesus” case, for example, and several years ago in the cases that allowed schools to conduct drug testing on students involved in extracurricular activities.
Most middle and upper class people, especially white ones, don’t have much reason to care about the 4th Amendment because they’re rarely in situations where they have to fear unconstitutional searches and seizures of themselves or their property. So you don’t see the same level of coverage for a case like Herring, which further claws back the Warren Court’s rule that evidence found in improper searches is not admissible in court. The growing exception to this class-based imperviousness is the public school environment, where the children of the middle and upper class are under the control of government agents who treat all kids as potential delinquents. Quite often the plaintiffs in these school cases are well-off kids of well-educated people, as in the “gifties vs. ‘tards” 7th Circuit case that limited kids’ free speech while on school grounds, where the plaintiff’s mother was the lawyer who argued the case.
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Marmalade @#36: I keep coming back to this too, though the ruling isn’t dealing at all with this point. It is unreasonable to expect young teenage girls who are menstruating and may have seriously debilitating cramps to go to a nurse’s office maybe even more than once a day for several days every month and ask for a simple pain reliever than she could buy at any drug store herself. What happens when the school nurse closes her office at the end of the class day and these girls stick around for extracurricular activities. They’re not allowed to carry their own pills AND no adult to dispense them? Or do coaches become pill dispensers? Or do girls with cramps have to just go home?
RonF:
No it doesn’t.
No school in the United States spent a minute of its time worrying about anything of the sort until about 15 or 20 years ago, and there’s no real reason why they should, any more than they worry about whether or not students are distributing snack-packs or mechanical pencil refills outside of the control of the faculty and administration. Children can and do administer over-the-counter and prescription drugs to themselves in homes, libraries, stores, museums, parks, and just about every single other institution that they encounter in their daily lives, with the sole exception of schools. The current fixation of schools on trying to tend to every conceivable need that students might have and control every conceivable action that students might take, while on school grounds, is foolish and destructive.
No, there absolutely does not.
If I were to grant, solely for the sake of argument, that schools ought to be concerning themselves with whether or not kids are carrying around Motrin outside of the control of the school nurse, then it would certainly not follow from that that the school has to be able to use strip searches in order to detect violations of the policies they set. Just because something is Against The Rules doesn’t mean that you’re entitled to do anything and everything in order to find out whether or not people are doing it.
Sometimes the only way to catch someone at breaking The Rules is to use procedures that would be too costly, that would interfere too much with other more important goals that the school is trying to accomplish, or that would unacceptably violate the student’s liberty, privacy, or dignity. If so, then what you have to do is just come to terms with the fact that you can’t always enforce all of your school policies all the times, and sometimes clever kids are going to manage to get away with something that the rules say they shouldn’t do — and, well, Christ, what else is new?
“Children can and do administer over-the-counter and prescription drugs to themselves in homes, libraries, stores, museums, parks, and just about every single other institution that they encounter in their daily lives, with the sole exception of schools.”
Homes have parents. Children in libraries, stores, museums and parks generally are attended by parents. Moreover, librarians, storekeepers, docents and rangers never have been deemed to stand in loco parentis. Schools have been, which is why you see this exception.
Like just about everyone else here, when I read RonF’s comments I feel like I’m reading the words of someone who’s never managed to visit a planet where 13 year old girls actually live.
But my question is what on earth he thinks the point of bringing up Scout policy is. The scouts are a private organization. They can mandate their members dye their hair orange and carry at least six flavors of jelly beans at all times, for all I care. Furthermore, if people (of an appropriate age) wish to join a club in which people dressed up as school administrators arbitrarily command them to strip down and shake out their underwear, I wish them nothing but the best of luck, and hope it gives them what they need.
I would also add that the explanation of the role of judges misses the point. When lawmakers or constitution-writers put “reasonableness standards into the law, they are empowering judges to arbitrate disputes over reasonableness. If they don’t want judges making decisions about this, they need to spell things out in no uncertain terms.
Well, and moreover, the point is that kids have the option of opting out of scouting, opting out of clubs, etc. They don’t have the option of opting out of school, so the standards can’t be ‘anything goes’.
—Myca
Maybe teenaged girls should just stay home when they’re having periods. So they don’t have to choose between spending the day with painful cramps (and going to the office multiple times a day for their ibuprofin) or getting forced to be searched in their underwear.
And Beyer’s comments were just disgusting. At least as someone said there’s someone like Ginsburg on the panel to at least try to shake the male entitlement and sexism out of her other colleagues. Although that appears at best to be a futile and thankless task.
I just had an even worse thought, for a 13 year old girl. What if a girl getting strip-searched for having ibuprofen had in fact taken some earlier in the day, because she was having her period. I was a 13 year old girl 20 years ago, but I can still imagine the heightened humiliation of being strip searched with a pad or even just a tampon string.
Me:
PG:
I don’t know about you, but sometimes when I was 13 years old, I was at home when my parents were not. Sometime I even took an Advil when they weren’t around, and without having checked with them first.
I think you’re underestimating the amount of time 13 year olds spend outside of immediate parental supervision. But even if you weren’t, I don’t know what I’d be expected to infer from what you say here. If, when parents are around, 13 year olds aren’t generally subjected to zero-tolerance policies where they absolutely cannot consume prescription or even mild OTC drugs except through the mediation and supervision of their parents, then that would seem to indicate that the school’s policies are out of touch with what responsible 13 year olds are able to do, and in fact do, outside of the school. Which was my point.
I’m aware of the legal reasons that government schools have felt compelled to adopt this kind of policy. But I think that’s an explanation of the policy, not a justification of it, and it is absolutely not a justification of using invasive and sexually humiliating methods to ensure that it is rigidly enforced.
As for standing in loco parentis, I think it’s a funny sort of justification for imposing policies that are far more invasive and busybodying than the practices of actually-existing parents. Of course, I know the legal reasons why this is so (specifically, the threat of a lawsuit), but that’s a good reason for dealing with the out-of-whack legal situation, not a good reason for anti-ibuprofen policies.
“I don’t know about you, but sometimes when I was 13 years old, I was at home when my parents were not. Sometime I even took an Advil when they weren’t around, and without having checked with them first.”
And when you did, it was your parents’ problem. If they had left drugs around where you could take them, and you self-administered and suffered ill consequences, they could be criminally liable for neglect and lose custody of you. Ditto if the child comes to harm when left unattended in libraries, stores, museums and parks. In schools, on the other hand, parents are supposed to leave the kids to others’ supervision, and have a cause of action against the school if the kid comes to harm.
I’m not sure how you’re differentiating between an explanation and a justification. The schools do this not because of the joys of disrupting the school day in order to search the students, but because the people who run the schools are held responsible for what happens there.
I don’t know how permissive your parents were, but if my sisters had told my parents that I was holding something that was contraband to have in our home (e.g., cigarettes), they would have had no compunctions about not just requiring me to strip to my underclothes, but doing a body cavity search as well. Parents have no legal obligation to respect the privacy of their minor children, only perhaps a moral one (part of their duty to raise a functional adult is teaching why it’s important to respect others and their privacy). Ditto obligations to respect their children’s freedom of speech, religious conscience, etc. Some states still allow parents to engage in corporal punishment of children. You might be horrified by parents who tell their kids that they have to go to church or be polite to Aunt Rose “so long as you’re under my roof,” but most Americans aren’t.
I object to what the school does here because it’s the government doing this, and our Constitutional rights exist to protect us from the government, not our parents.
I’ve taught 13-year-olds. This was at a summer program, where I had the kids from just after breakfast until just before dinner, including supervising them at lunch, and it was a 12-kid class with a teacher and a TA, and when they weren’t with me, they were with an RA, and I’d usually talk to the RA at least once a day to catch up on what was going on, so I knew these kids pretty well. Some of them I would trust to carry prescriptions around, no problem. Others, I really wouldn’t. There was one kid who couldn’t always remember not to eat foods he was allergic to. I assume that, at home, he just ate whatever was put in front of him. At lunch, I always made sure to check his plate to make sure he hadn’t taken anything with peanuts. He’d never had to do ingredient checking for himself before, and so he didn’t always remember to do it.
Rules like this are for the protection of the kids, who don’t always know how to take care of themselves, because they’re kids. It creates a hassle for the kids who are mature enough to be trusted, but that’s what pretty much all school rules do.
And obviously, a strip-search to enforce it is ridiculous.
I might digress a bit here… but families do have the option of homeschooling, so they can opt out of public school if they choose. I urge any freedom loving person to be wary of government schools (this strip search case is just the tip of the iceberg). There are families of all types that homeschool, right-wing conservatives, left leaning liberals, and anything in between. In addition to the traditional one parent at home teaching while the other is supporting the family, there are families with 2 working parents and single parents who are homeschooling. The bottom line for all families is to find a system that works for them.
I know of no 13 yr old girl that would be willing to strip to her underwear in front of her teachers or other adults, much less shake those same clothes out and risk loosing what little dignity she had remaining. This sort of thing is not painless and trivial for a girl of this age. It obviously had a lasting effect on her, so much that she went from being an honor student to eventually dropping out of school.
“Those who would give up Essential Liberty to purchase a little Temporary Safety deserve neither Liberty nor Safety”
Panda
Ha. I have friends that home-schooled their kids. They’d go to home-schooling conferences where they’d find right-wing conservatives, left leaning liberals — and not much in between. Bible-thumpers and granola-eaters. They said it was kinda like being at an early Indigo Girls concert.
Sure, but that’s not a choice that the child involved can make on his or her own. There are ways to avoid going to a public school, but those ways are unavailable for most families and even more unavailable for most children.
—Myca
Panda,
Justice Thomas made the “you could homeschool” point in his opinion in the “Bong Hits 4 Jesus” case, and even his fellow conservatives called foul on that as a way to avoid violations of one’s liberties:
I particularly like the rhetorical contrast created between “freedom-loving people” and those who send their kids to “government schools” (note to Panda: even a subtle linguistic attempt to draw a comparison between how, say, Native American or Australian Aboriginal children were treated in “government schools” and how fundamentalist Christians think their children are treated today is a pretty shoddy and offensive analogy, so I see what you did there.)
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Oh look! Another Ginsburg dissent!
The Supreme Court rules that perpetuating past pregnancy discrimination in the form of reduced pension benefits is a-okay.
Update: The USSC has ruled in favor of the girl, finding that the strip search was an illegal violation of her 4th amendment rights, but has not allowed her to recover financial damages from the school.
I haven’t read the case yet; that’s all i can say on it.
Shows that making predictions based on oral arguments is chancy at best, and probably altogether foolish.
Who wrote this silly post, anyway? :-P
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I read several comments that basically were saying that “No junior high or high school girls ever undress in a locker room like it’s no big deal.”
Actually, that’s inaccurate. My junior high and high schools had many girls who were very comfortable prancing around the locker rooms in the nude and showering in front of the other girls. We had girls at my junior high and high schools that would sometimes stand around totally nude chatting with their friends in the girls locker rooms, and we also had girls who were very shy and who hated having to shower in front of other people and tried to get out of it as often as they could. It’s a myth that all teen girls feel awkward changing in locker rooms, but of course their are a lot that do feel that way.
With all of that said…
There’s a huge difference between showering and changing in a locker room and being strip searched!!!
In a locker room your only one of maybe 20 to 40 girls who are all doing the same thing, changing and showering, which are everyday experiences and are necessary.
In the case of a strip search you are being singled out and stared at which is humiliating at any age, especially when your being accused of wrong doing.
Personally, I’m disgusted that anyone would dare to compare being strip searched with showering and changing clothes!