Other blogs discussing the oral arguments in the case I blogged about yesterday.
- You’re Reading Too Much Into It, an interesting blog about politics and pop culture, starts by discussing Breyer’s infamous remarks and segways into critiquing the Daily Show’s sexist reporting from Sweden and a comedian who badgered her into performing on stage. What connects all of this is how our society treats women as objects to be looked at. (Plus there’s a clip from “Coupling” that I really enjoyed, less for the political relevance than for the clever use of 90’s phone technology as a prop for farce.) Hard to summarize, well worth reading.
- Amanda at Pandagon gets to the heart of the matter:
What’s traumatic about strip searches and sexual assault isn’t that someone touched or saw something previously untouched or unseen. It’s the horror of having someone use your nudity and your sexuality as a weapon to degrade and humiliate you. And anyone who’s been subject to the routine degradation and humiliation dished out by sadistic school administrators has a pretty damn good idea of what was going on here.
- So was the goal really degradation and humiliation, or was it to find contraband? Jacob at Hit & Run points out something I didn’t know: school officials didn’t even search the student’s desk or locker before strip-searching her. The strip-search wasn’t a last resort, it was a first resort.
- Also from Jacob at Hit and Run:
Wright, the school district’s lawyer, initially suggested it would unconstitutional for schools to enforce their zero-tolerance policies with body cavity searches, because there is no record of students’ hiding drugs in their vaginas or rectums. But later he backtracked, saying the real problem is that school officials are not properly trained to conduct such searches. When Souter asked him whether body cavity searches would be OK once administrators and teachers had undergone the requisite training, Wright said “that’s to be left up to the local governments.”
- Scott at Tapped has several good points that defy a one-sentence summary, so go read his post. And then go read Scott at Lawyers Guns and Money, where he breaks down how the Justices are likely to vote.
- The Agitator, responding to a comment by Justice Souter, writes:
Can anyone think of a single incident in the last 30 years in which several children have died after ingesting drugs distributed by one of their classmates on school grounds? Before we let school principals go rummaging through the panties of underage girls, shouldn’t we be at least be able to cite a few examples?
- It’s pretty obvious to most “Alas” readers, I think, that part of this story is that eight of nine Supreme Court Justices are male. Historiann points out that this aspect has seemingly escaped the notice of most mainstream newsmedia. (Via Feminist Law Profs.)
- Rad Geek expresses a thought similar to what my all-too-infrequent co-blogger Myca said in comments.
- TechnologyWoman argues that what happened to Redding was an assault.
- SCOTUSblog has a useful summary of the background of this case.
TechnologyWoman may be using a non-legal meaning for assault; there was no touching nor attempt to do injury, so neither battery nor assault under the usual common-law understanding of these terms. If the family had filed a tort lawsuit, the obvious one would be for intentional infliction of emotional distress, in which the student’s feelings of fear, humiliation, etc. would be highly relevant. Her feelings are not really at issue for either criminal or tortious assault.
I’d really like to see an analysis about the extent to which we should be sex-conscious rather than sex-“blind” in making and applying these rules. Even the existing Supreme Court precedent on such school searches, T.L.O., refers to an inquiry of whether the search was appropriate based in part on the age and sex of the student. For someone like me who is very committed to sex-neutrality as a principle (and is the reason I think prohibiting SSM is actually unconstitutional, not just unfair in a moral sense), these considerations complicate how we talk about the case.
Well, there are different nudity norms for girls and boys. It is different to ask a 13 year old boy to take off his shirt than to ask a 13 year old girl to take off her shirt. One could argue whether that is true of truly pre-pubescent kids who do not actually have physically different chests (does the fact that we put little girls in swimsuits with tops, even though their chests look the same as boys’ create enough of a difference, or is the difference only relevant when the child actually has breasts). But I don’t think one can reasonably argue that asking a male v. a female to remove all upper body clothing is the “same” request.
In addition, boys and girls have different norms in terms of underwear. Women and girls’ underwear is often much more revealing than boys’ underwear. Most boys now wear boxers, which are much less revealing than girls’ underwear or the “tighty whities.” I can imagine that a boy whose parents won’t buy him boxers might be pretty damn embarassed and humiliated to be forced to strip to his tighty whities.
In any event, it’s not just a difference in perceived vulnerability to sexual assault (perceived by society or perceived by the individual being forced to strip). It’s also a difference in what parts of an individual’s body are considered private, and how much of those parts of the body is revealed by this type of search.
Emily,
Agreed that the existing norms are different, and I’m uninclined to work out my social ideals on innocent children (despite my terrifying my parents when I myself was a child by saying that I planned to psychologically experiment on my own offspring and see how the boys managed if I dressed and coiffed them the same as the girls, etc.). It’s more a question of at what point we can say the social norms have shifted enough that it’s OK for the law to reflect that.
For example, women as domestic workers and men as wage earners is a social norm, but one that’s diminished tremendously and with conscious effort on the part of feminists (both male and female). The law no longer reflects that norm and so far as family law goes is quite sex-neutral (with the exception of letting people of the same sex marry, and of course we’re seeing that shift as well).
Should we be devoting any sociopolitical energy to the idea that girls oughtn’t feel embarrassed about showing their chests or toward the development of a boxer equivalent for girls (wearing “bloomers” was revolutionary for first wave feminists, and pants for second wavers)? Or is this norming toward the male itself problematic, and we instead ought to examine whether boys should be so freely displaying their chests?
A law that’s too far ahead of social norms will be disregarded and disrespected, so I’m not advocating that the law pretend that current norms regarding exposure of one’s body are the same for boys and girls, men and women. I’m more wondering if we should ideally have a law that doesn’t feel the need to distinguish, and in order to achieve that, should be moving social norms in a gender-neutral direction.
PG,
I think you are a lawyer, so you might be interested to know that your comment motivated me to go look up the definition of “intimate parts” in VA law (where I practice). It’s relevant with respect to sexual battery (a misdemeanor) as well as a number of child abuse charges. Anyway, according to the VA code, “‘Intimate parts’ means the genitalia, anus, groin, breast, or buttocks of any person.”
Theoretically, a man’s breast is an “intimate part” though I can’t say that I’ve ever heard of a prosecution involving unwanted touching of a man’s breast, and have some question about whether it would lead to a conviction for sexual battery. It would be an interesting case.
I think that it would be really hard, at least for me, to advocate that girls be freer with respect to showing their bodies, because I really do think it would be more likely to make them vulnerable to assault or humiliation than maintaining their privacy, especially in middle school. It’s hard for me to imagine an environment where crude comments about middle school girls’ bodies are not present. For me, that is kind of definitional to what middle school was/is and why it was/is a horrible time for most kids. I don’t think it should be, of course, but I think we are a LONG way from a place where girls can be more comfortable with their own nudity and that encouraging them to be so is not a wise first step. It’s hard enough to be proud of your body as a grown woman, with all the messages swirling about how female bodies should be; it’s virtually impossible for someone who doesn’t even know what her body is like yet, whose body is constantly changing, etc.
I do, however, wonder about little girls’ swimsuits. Personally, I’d probably put my little girl in a one-piece, but I really don’t understand the two-piece suits for little girls with little bra pieces that clearly serve no purpose. If you’re willing to go two-piece, there’s no reason not to just let her run around in the bottom half. I could see myself dressing my little girl at the beach in only the bottom half of a swimsuit. But I think at some point before she began to develop breasts, she would probably receive enough messages about it being inappropriate that she wouldn’t want to. Even if they don’t come from me (I’m thinking 6-8 yrs old?).
I wrote about it here: look, but don’t touch.