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Zero Sense - Elizabeth Unexplained
Lots of data but no answers
Zero Sense
Warren is usually the one who posts about court cases, but this one got to me. Maybe it’s the hormones kicking in or maybe because I remember all too well what it was like to be a 13 year old girl, but the case the Supreme Court heard yesterday about the strip searching of a middle school girl by school administrators has me pretty shocked and appalled. (See http://www.csmonitor.com/2009/0422/p02s04-usju.html and http://news.bbc.co.uk/2/hi/americas/8011312.stm)

I consider myself fairly conservative on the whole law-and-order front. I expect authority figures to show some restraint, but I’m pretty willing to cut them some slack if they’re making a reasonable effort to enforce the rules. The problem with this case is by my reading the school officials involved seemed really unclear on the concepts of restraint, responsibility and common sense. I’m not a lawyer, but this seems to be an ‘unreasonable search’ to me – a girl with no previous disciplinary problems was strip searched because another student who was caught with prescription strength ibuprofen said she got the pills from this girl when questioned by school officials. This was done without the prior knowledge or consent of the parent. Sounds pretty unreasonable to me. Will the court find it unconstitutional? I sure hope so, because strip-searching middle school students without their parents present is just not something I think I want to have happen for any reason.

It’s not just the constitutional issue that has my attention. This case is just filled with so many things that irritate me. It’s hard to know where to start… I guess I’ll roughly follow the sequence of events.

A girl (not the one searched in the case) was caught in school with prescription strength ibuprofen. OK, it’s bad to have prescription drugs that aren’t yours. You ought not to be taking prescription drugs that aren’t yours, even ibuprofen, and I have no issue with the school wanting to enforce this. (On the other hand I am more than a little disturbed to learn that students aren’t allowed any over-the-counter painkillers in many schools, for reasons that if not immediately obvious will soon become clear.) Sure, asking her where she got them in reasonable. On the other hand, this is not yet something to get hysterical about. It is ibuprofen after all; anyone with $10 can get a big bottle of the stuff. As someone who has felt the effects of endometriosis since the age of 13, getting high is not the first thing I’d assume a middle school girl would want with illicit ibuprofen for. In fact, I am reasonably certain that you can’t get high on ibuprofen alone. Of course the school board is claiming as part of their defense that their staff doesn’t have the pharmaceutical knowledge to make decisions about the relative dangers of drugs. OK, but the school nurse was involved in the subsequent search of a girl. So, the school board is saying their school nurse doesn’t know anything about a painkiller as common as ibuprofen. That’s not exactly confidence inspiring.

The girl who got caught with the pills, when pressured, named another girl as having given her the pills. The girl she named has never been in trouble before and was an honor student. This is the girl the case is about. She gets called to the administrator’s office and is perfectly happy to answer questions and to have her bag searched. This is all fine and reasonable. However, when they didn’t find anything there, they then took the girl to the nurse’s office and did a strip search, including having her move her underwear aside, without so much as contacting the girl’s parents first. That is not OK in my book. This was a 13 year old girl going through puberty (a very un-fun and self-conscious time for girls) and they did a strip search all on nothing more than a statement made by another girl who had no incentive to be truthful. The girl says she was traumatized by the search, and I think most girls of that age would be. Her mother reported the school authorities to the police and eventually sued them for damages. That sounds like a reasonable reaction to me. Strip searching a young teenager on such flimsy grounds sounds like child abuse to me, especially since they did not contact the girl’s mother first. The school board says in defending the actions that they were making ‘on the spot decisions’. I don’t think that argument holds water. You had time to march her over to the nurse’s office, but not to call her mother? I’m not buying that one. Oh yeah, and they never found any pills on the girl they searched, so basically it looks like they put an innocent girl through the humiliation of a strip search, but that’s almost beside the point.

The school is arguing that they are the protector of its students' health and safety, which includes protecting students from both illegal and over-the-counter drugs. Apparently that protection does not include protection from searches that are practically sexual abuse. (Strip searching a pubescent girl is not the same emotionally as strip searching an adult female in my book.) The school’s lawyer says, "We just have to ask ourselves, as a policy matter, do you really want a drug-free environment? And if you do, then there are going to be some privacy invasions when there is reason to suspect that those drugs are being dispensed on campus, that they're being used by students." To answer his rhetorical question, I do not want a drug-free environment badly enough to allow my little girl (or anyone's little girl) to be strip searched. If the school district wins the case, it’s something else to consider when I ask myself if I’m willing to send Margaret to public schools. The current zero-tolerance craze does not seem to be healthy. Actually, I suspect that what happened here was that the administrator was so sure they’d find drugs they were embarrassed when the bag search turned up negative, and made the decision to go ahead with the strip search based more on a bruised ego and a need to show how in control they were than any desire to safeguard the students. That would fit with my own experience with school administrators, which was not positive in spite of the fact that I was one of those kids who never got in trouble. At this point I think I’m more worried about protecting my daughter from overzealous, power-mad school officials than protecting her from drugs. I think teaching her that illegal drugs are illegal for a reason will be a lot easier than teaching her that she can’t always trust the people she’s supposed to be able to trust and what to do if someone abuses their authority in various ways.
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firstfrost From: firstfrost Date: April 23rd, 2009 03:08 am (UTC) (Link)
I agree that the search was appalling.

I do wonder whether "it’s something else to consider when I ask myself if I’m willing to send Margaret to public schools" is the right question, though. This was a public school - but that's the only reason it's even in the courts at all. Private schools can set whatever policy for searches that they want, whereas public schools are at least mildly limited by being an arm of the government; the legal arguments here are about the Fourth Amendment and unreasonable search and seizure.
psychohist From: psychohist Date: April 23rd, 2009 04:32 am (UTC) (Link)
I don't think it's that simple. Private school officials do not have qualified immunity, which public school officials do have, and which they are asserting prevents this case from even going to trial. Private schools also don't have sovereign immunity, which protects public schools from facing regular tort suits - I think the only reason this suit can be brought against a public school is because 42 USC 1983 waives sovereign immunity in this case.

I think that means it would be easy to get this case to trial against a private school, whereas it hasn't even gone to trial yet against a public school.
greyautumnrain From: greyautumnrain Date: April 23rd, 2009 07:29 am (UTC) (Link)
The alternative I was primarily thinking of was home-schooling, not private schools, which would certainly solve the issue.
psychohist From: psychohist Date: April 23rd, 2009 05:56 am (UTC) (Link)
Additional links; look for docket 08-479

Transcript of arguments: http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html

Grant of certiorari: http://www.supremecourtus.gov/orders/08grantednotedlist.html

My first reaction before reading these was that when one teen girl is caught with drugs and accuses another teen girl, the most likely assumption should be that the first girl is trying to get the second girl in trouble, and that the school officials were pretty incompetent if they thought it was strong evidence that the second girl was actually guilty. For some reason, only Justice Ginsberg seems to get at this point in the arguments. I wonder what makes her different from the other eight justices here? Could it be that she's the only one who has ever been a teenage girl?

I'm actually pretty appalled - albeit not surprised - at some of the things I see in the transcript.

For example, on pp50-51 of the transcript, Justice Souter essentially argues that it would have been okay for the school officials to go further and do a "cavity search" - essentially, sexually molest the girl - if the drug had been potentially deadly, despite the hearsay nature of the evidence.

Then, on p54, Justice Kennedy fails to distinguish between "suspicion", which is what the school officials said they had, and "probable cause", which is the rather higher level of evidence need to arrest someone. He ignores Justice Ginsberg's attempt to point out the distinction on p55, though Justice Scalia manages to do so on p56; I hope that was because Scalia is a more senior justice, and not because he's male.

Finally it seems to Justice Breyer on p57 "a logical thing when an adolescent has some pills or something, they know people are looking for them, they will stick them in their underwear." Even if that's logical, which I question, it does not follow that an adolescent who does not have pills in her purse has them in her underwear instead.

I guess I'd feel more comfortable if I thought more than two justices were reading all the way to the end of the 4th amendment - you know, to the part about "particularly describing the place to be searched". Heck, the girl with the drugs didn't even allege that the other girl actually had any drugs on her, much less where she was carrying them - just that she'd gotten them from the other girl.

And, uh, wasn't there a qualified immunity question presented, too, as well as the fourth amendment question? How come nobody asked anything about that?
mathhobbit From: mathhobbit Date: April 23rd, 2009 11:18 am (UTC) (Link)
The thing that boggles me is that the school board is defending these actions. It would be *so easy* for them to declare a scapegoat and wash their hands of the problem.

One hopes it's misplaced loyalty to ones employees, and not just sheer stupidity.
psychohist From: psychohist Date: April 23rd, 2009 02:12 pm (UTC) (Link)
The school district is getting sued too. If one of their officials was wrong, then the district was wrong, and gets to pay up as well.
greyautumnrain From: greyautumnrain Date: April 23rd, 2009 11:28 pm (UTC) (Link)
A quick google search shows that the assistant principle, secretary and nurse involved are all still working at the school. Just a point of information.
dcltdw From: dcltdw Date: April 23rd, 2009 12:19 pm (UTC) (Link)
I think I agree with everything here except for this:
At this point I think I’m more worried about protecting my daughter from overzealous, power-mad school officials than protecting her from drugs.

I realize I'm in danger of nit-picking, but I'm not sure it's wholly fair/accurate to say that the administrators are doing this solely as a power trip.

That they're possibly insecure and erred in this fashion, sure. I do think your chain of thought of (paraphrasing) "we searched the purse, didn't find anything, so to prop up our egoes we went ahead with the strip search" is probably correct.

I also am quite curious about mathhobbit's point.
greyautumnrain From: greyautumnrain Date: April 23rd, 2009 11:26 pm (UTC) (Link)
I really have a hard time seeing a strip search without so much as calling the girl's mother is something they did out of genuine fear or concern for safety. It seems to me a move calculated to shame and intimidate. That's why I'm going with the power trip, because absent a subconscious need to prop of egos, I'm really at a loss as to how else this went down as it did. I will admit that I am letting my own experience with school administrators color my appraisal of the situation here, but that is what experience is for.
From: llennhoff Date: April 23rd, 2009 02:49 pm (UTC) (Link)
Unfortunately, according to Lawyers, Guns, and Money it looks like the bad guys school board is going to carry the day.
psychohist From: psychohist Date: April 23rd, 2009 06:38 pm (UTC) (Link)
I don't think it's as bad as that post makes out. In particular, Scott Lemieux is operating under the delusion that conservative justices are less likely to support civil rights than liberal justices, which is the opposite of the truth.

In particular, he misanalyzes Thomas' opinion, presumably because he doesn't understand the strict construction concept of actually reading the words in laws and in the constitution. Thomas did indeed seem to believe at the time that school students have no first amendment rights - but that's because the first amendment is worded as a restriction on Federal law, which didn't originally restrict state run organs like public schools. The wording of the fourth amendment is not so restricted, there's hope that Thomas will vote that the search is unconstitutional here, especially as he recently provided the critical fifth vote for the fourth amendment in Arizona v Gant.

Roberts and Alito also had some very tough questions for the school district's lawyer, so I don't think it's entirely clear which way they will go on the constitutional question, either - though I will grant that they have a strong record of supporting the government against the constitution in the past, something I didn't like about them, especially Roberts, all the way from their confirmation hearings.

Even Souter's and Breyer's questions are a little hard to read, as they aren't worded to differentiate clearly between the constitutional question and the qualified immunity question. They could be planning to vote for the girl on the constitutional question, and for the school board on the qualified immunity question.

I think it's clear that the vote is going to come out in favor of qualified immunity. However, I also think there's a reasonable chance that the vote on the constitutional issue will come out in favor of the constitution. That will still give the girl and her family recourse against the school board, and more importantly will still cause school districts to change their policies to prevent recurrence of this kind of thing.
psychohist From: psychohist Date: June 25th, 2009 07:54 pm (UTC) (Link)
I just wanted to note that I was right and Lemieux was not. See docket 08-479 at:


Short version: 8-1 vote that the search was unconstitutional; 7-2 that the officials had qualified immunity, leaving the school district as the sole defendant.
From: llennhoff Date: June 26th, 2009 03:28 am (UTC) (Link)
You were correct, and he admits it, although he doesn't mention you by name. :>)
jdbakermn From: jdbakermn Date: April 23rd, 2009 06:25 pm (UTC) (Link)
The thing I'm baffled about is why the school officials thought they had a right to strip search anyone. I mean, I can understand locker searches, because that's actually school property. Plus, I think there was a case brought that said they could do that. I *thought* that they couldn't open bags though.

I would expect opening a bag would require a law enforcement official. And if opening a bag requires law enforcement, a strip search definitely would.

Where am I going wrong here?
psychohist From: psychohist Date: April 25th, 2009 03:32 am (UTC) (Link)
Among other things, the constitution applies in the same way to all government officials, whether school or law enforcement.
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