A few minutes ago, the Supreme Court of the United States handed down its big “social issue” ruling of OT08. I almost nailed it, predicting both the outcome and predicting exactly what Justice Thomas would write. I equivocated a bit, so I’m not going to give myself credit for fully nailing it.
The short of it is a school administration suspected a female student of having on her person perscription ibuprofen, which they had heard she was giving or selling to other kids. When called into the office, they found 4 pills in her belongings. They took her to the nurse’s office and had a female nurse remove and search her outer clothing, but then made her shake out her bra (briefly exposing her breasts) and open her underwear for inspection (exposing her pelvis area).
The parents sued, claiming unreasonable search under the 4th Amendment.
Today’s ruling is complex (because the specific petition has 3 major elements), but the one we care most about is the Court’s 8-1 ruling that the part of the search involving her bra and panties was unconstitutional. The majority opined that due to “societal expectations of personal privacy”, such a search can only be conducted when there is clear and compelling evidence that both contraband can be found in the private areas and that the pills posed a serious danger to other students due to their potency.
Indeed, I think it’s somewhat common sensical to ask bewilderedly, “they suspected her of carrying ibuprofen so they strip searched her???” And the Court clearly asked themselves that question and decided, like many of us, “no way”.
What complicates the issue — and thus, to me, makes it interesting – is Justice Thomas’s dissent. He makes one point that underwear is a pretty reasonable place to expect to find hidden drugs:
The majority finds that “subjective and reasonable societal expectations of personal privacy support . . . treat[ing]” this type of search, which it labels a “stripsearch,” as “categorically distinct, requiring distinct ele-ments of justification on the part of school authorities for going beyond a search of clothing and belongings.” Ante, at 8.2 Thus, in the majority’s view, although the school officials had reasonable suspicion to believe that Redding had the pills on her person, see ante, at 7, they needed some greater level of particularized suspicion to conduct this “strip search.” There is no support for this contortion of the Fourth Amendment.
It’s hard to argue with him on that point. In speaking to the requirement that the drugs pose a significant danger to the other students, Thomas argues:
Each of these additional requirements is an unjustifiable departure from bedrock Fourth Amendment law in theschool setting, where this Court has heretofore read theFourth Amendment to grant considerable leeway to school officials. Because the school officials searched in a loca-tion where the pills could have been hidden, the search was reasonable in scope
Finally, his main point is something he’s been consistent on over the years. Thomas believes school administrators must enjoy significant qualified immunity under the law in order to maintain order, discipline, and lawfulness.
For nearly 25 years this Court has understood that “[m]aintaining order in the classroom has never been easy, but in more recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems.” Ibid. In schools, “[e]vents calling for discipline are frequent occurrences and some-times require immediate, effective action.” Goss v. Lopez, 419 U. S. 565, 580 (1975); see also T. L. O., 469 U. S., at 340 (explaining that schools have a “legitimate need tomaintain an environment in which learning can take place”). For this reason, school officials retain broad authority to protect students and preserve “order and a proper educational environment” under the Fourth Amendment.
Thomas had this same argument (and indeed, quotes the text many times) in last year’s “Bong Hits 4 Jesus” case, Morse v Frederick, in which the Court re-asserted that students have limited 1st Amendment rights.
In the end, I agree with the majority that the strip search was unreasonable, and I agree with Justice Thomas that school administrators should continue to enjoy broad qualified immunity. It’s finding the balance that makes life difficult for administrators and jurists in an age of increased non-conformity and bad behavior in our nation’s schools.
