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I'll say it if Justice Souter Won't:

The Supreme Court today held that a school's partial strip search of a thirteen year old girl, including requiring her to shake out her undergarments, "exposing her breasts and pelvic area to some degree," violated her Fourth Amendment rights. School officials were looking for a prescription-strength ibuprofen (which means, in effect, 2 Advils!).

Justice Souter, writing for the Court, stated that the majority meant to cast "no ill reflection" on the the school official, assistant principal Kerry Wilson, who ordered the search. Well, it should have. The combination of drug hysteria and the tyrrany of petty government officials is rarely a pretty sight. Unfortunately, the Court also held that no monetary damages could be awarded against Wilson and other school officials.

(FWIW, I'm not a Fourth Amendment expert, but as a matter of policy I would never let school officials strip search a child. If the incident is serious enough to merit police attention, say because school officials think the student is distributing heroin, call the police (who, among other things, have some training in probable cause and restrictions on searching without a warrant) and let them handle it. If the incident involves, say, possession of ibuprofen, which is neither illegal [it would be illegal if the girl didn't have a prescription, but that's not noted in the opinion, and in practice, prescription ibuprofen is just a double dose of regular ibuprofen] nor dangerous but only against school policy, handle it some other way.)

UPDATE: Two related questions: (1) If school offcials had conducted a body cavity search, instead of just a strip search, would Justice Thomas have still dissented? I'm not confident that there is anything in his reasoning that suggests otherwise.

(2) If this had been a private school, rather than a public school, and a similar search had been undertaken, also without parental consent, would the private school officials be criminally or civilly liable?

Related Posts (on one page):

  1. Crime Severity and Constitutional Line-Drawing:
  2. I'll say it if Justice Souter Won't:
Thales (mail) (www):
Excellent post. I wonder what happened to the rhetorical flourishes of the Tinker days, condemning the act of turning public schools into "enclaves of totalitarianism." Because in point of fact, when it comes to zero tolerance policies and common sense in discipline and security, they all too often are.
6.25.2009 1:50pm
GMUSOL05:
Thomas's dissent is absolutely pathetic.
6.25.2009 1:51pm
cirby (mail):
All I can say is that if something similar had happened to one of my sisters when they were 13 (many years ago), the big question for the courts would be whether to charge my father for murder, for manslaughter, or to give him a commendation...
6.25.2009 1:53pm
Dan28 (mail):
The fact that seven justices voted for qualified immunity for the principal is a disgrace. Kudos to Stevens and Ginsberg. There should be criminal laws passed against this kind of behavior.
6.25.2009 1:54pm
davidbernstein (mail):
I wouldn't tolerate murder, but if your father had punched the guy, hard, I'd vote to acquit.
6.25.2009 1:55pm
epeeist:
I agree that IF a strip-search is to be done, the police should be involved unless there is genuine (student &parent/guardian) consent to school official doing so (e.g. to possibly avoid police involvement) or it's one of those hypothetical super-emergency situations where the student allegedly stole another student's life-saving medication and that other student is dying before your eyes.

I mean in any other context a school official who stripped students would be suspected of and probably arrested and charged with, being a pedophile. Is this the new defence, "No, officer, I wasn't stripping the child for sexual purposes, I was looking for drugs, I got an anonymous tip..."
6.25.2009 1:55pm
davidbernstein (mail):
Epee, I agree with your qualifications. In fairness to Wilson, he had two female employees do the search.
6.25.2009 1:57pm
davidbernstein (mail):
Epee, I agree with your qualifications. In fairness to Wilson, he had two female employees do the search.
6.25.2009 1:57pm
Kelly (mail):
Poor Clarence Thomas. Only he is willing to fight the righteous battle to protect our children from the grave danger of teenage girls carrying Motrin around in their bras.
6.25.2009 2:00pm
Melancton Smith:
In our enlightened age of sexual freedom and tolerance, is there a difference what gender person performed the strip search? Couldn't a lesbian strip searcher have been as inappropriate as a heterosexual male strip searcher? What if the strip searcher was a gay male?
6.25.2009 2:02pm
GMUSOL05:

Epee, I agree with your qualifications. In fairness to Wilson, he had two female employees do the search.


Considering how prevalent cases of same-sex molestation/abuse of children are, I've always failed to understand why it's somehow assumed that making child strip in front of an adult of his/her own gender is any better than one of the opposite gender.
6.25.2009 2:02pm
JB:
Epeeist,
"I mean in any other context a school official who stripped students would be suspected of and probably arrested and charged with, being a pedophile. Is this the new defence, "No, officer, I wasn't stripping the child for sexual purposes, I was looking for drugs, I got an anonymous tip...""


Precisely. If possible (I don't know the exact circumstances), I would have filed sexual molestation charges as soon as I heard about this.
6.25.2009 2:03pm
A Law Dawg:
As a former teacher I am usually in Thomas's corner regarding his love for in loco parentis.

Not this time.
6.25.2009 2:04pm
New World Dan (www):

as a matter of policy I would never let school officials strip search a child. If the incident is serious enough to merit police attention, say because school officials think the student is distributing heroin, call the police

If there's an incident that serious, the first step is to call the parent. Then call the police.
6.25.2009 2:08pm
Henry679 (mail):
I love the way CT cited some prior SC boilerplate about the "war on drugs" near the conclusion of his dissent.

It is pretty embarrassing that the Supreme Court has even bought into that asinine, misleading terminology.
6.25.2009 2:11pm
Observer:
Why is it so hard for the Court to understand that there is a distinction between bad policy choices and breaches of the Constitution? Is Thomas the only one who gets this?
6.25.2009 2:11pm
Paper Nuncio:
Question for the legals out there:

Now that it's been ruled upon, is it "clearly unconstitutional?"

I guess what I'm asking is that, going forward, with this ruling as law, then is qualified immunity out the window on future searches of this nature?
6.25.2009 2:11pm
J. Aldridge:
If facts ruled this would never be a Fourth Amendment issue.
6.25.2009 2:14pm
Thales (mail) (www):
"Why is it so hard for the Court to understand that there is a distinction between bad policy choices and breaches of the Constitution? Is Thomas the only one who gets this?"

All 9 of the Justices "get this." In the area of civil liberties, Thomas simply has an incredibly restrictive view about what the Constitution actually prohibits, one not shared by most living human beings, including Antonin Scalia. Reasonable people can disagree about the reach of applications of Constitutional provisions, though in this case I'm tempted to suggest that Thomas is simply unreasonable.
6.25.2009 2:17pm
Baelln1:
"...because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability.."

_______

Very convenient. All government officials (even local school nurses &sports coaches) now enjoy significant immunity in violating the rights of citizens if there is any question of 'clarity' of the right (??)

Of course, the courts formally question the 'clarity' of the Bill-of-Rights {..and countless other laws} on a daily basis in thousands of varied cases and issues. Certainly there are major questions about the clarity/meaning of the 1st &2nd Amendments.

Naturally, average citizens enjoy no similar immunity from government ad hoc opinions about unclarified law, especially in crystal clear SCOTUS 5-4 pronouncements.

Quite a precedent.
6.25.2009 2:17pm
cboldt (mail):
-- is qualified immunity out the window on future searches of this nature? --
.
Ahh, you've found the violation/remedy widget!
.
School administrators enjoy qualified immunity for searches of this nature.
.
FWIW, Congress pulls the "hollow law" stunt from time to time too. It's against the law for the government to do [e.g., snoop w/o a warrant], but there is no penalty.
6.25.2009 2:21pm
ruuffles (mail) (www):

Thomas simply has an incredibly restrictive view about what the Constitution actually prohibits

I'd like to know what he thinks of Loving v Virginia, which was unanimous.
6.25.2009 2:22pm
J. Aldridge:
In the area of civil liberties, Thomas simply has an incredibly restrictive view about what the Constitution actually prohibits, one not shared by most living human beings, including Antonin Scalia.

Probably because he considers history and original meaning. Does anyone really believe the states would have ever surrendered their power to the U.S. Supreme Court to second guess their laws and constitutions?
6.25.2009 2:23pm
ruuffles (mail) (www):

Probably because he considers history and original meaning.

Loving overturned Pace v Alabama which was decided in 1883 and I doubt similar laws didn't exist at the turn of the 18th century.
6.25.2009 2:26pm
David M. Nieporent (www):
All 9 of the Justices "get this." In the area of civil liberties, Thomas simply has an incredibly restrictive view about what the Constitution actually prohibits, one not shared by most living human beings, including Antonin Scalia. Reasonable people can disagree about the reach of applications of Constitutional provisions, though in this case I'm tempted to suggest that Thomas is simply unreasonable.
Untrue. Thomas does not have an "incredibly restrictive view" in the area of civil liberties. He does with respect to students in schools.
6.25.2009 2:26pm
J. Aldridge:
I'd like to know what he thinks of Loving v Virginia, which was unanimous.

An unanimous 1967 Warren Court ruling is hardly anything I would consider authoritive.
6.25.2009 2:28pm
ruuffles (mail) (www):

Thomas does not have an "incredibly restrictive view" in the area of civil liberties.

Look at Hamdi, Virginia v Black. Thomas was in the 1 member minority both times. With Hamdi, Scalia sided with Stevens, and only Stevens.
6.25.2009 2:29pm
David M. Nieporent (www):
Probably because he considers history and original meaning. Does anyone really believe the states would have ever surrendered their power to the U.S. Supreme Court to second guess their laws and constitutions?
Yes. That was the purpose of the 14th amendment. That you parrot some commentary from a non-lawyer, non-historian blogger who pulls a few quotes out of context from one 19th century legislator, and somehow miss this salient point, is embarrassing.
6.25.2009 2:30pm
ruuffles (mail) (www):

An unanimous 1967 Warren Court ruling is hardly anything I would consider authoritive.

I was referring to the fact that he's married to a white woman, presumably in Virginia, where they now live.
6.25.2009 2:30pm
J. Aldridge:
Loving overturned Pace v Alabama which was decided in 1883 and I doubt similar laws didn't exist at the turn of the 18th century.

What laws do you mean "didn't exist"?
6.25.2009 2:32pm
David M. Nieporent (www):
In Virginia v. Black, the majority read the statute broadly and invalidated it because they said it punished more speech than was constitutionally unprotected. Thomas simply argued that the statute should be read to ban only that which isn't constitutionally protected, in which case it would have been constitutional.
6.25.2009 2:33pm
finman:

Why is it so hard for the Court to understand that there is a distinction between bad policy choices and breaches of the Constitution? Is Thomas the only one who gets this?



I agree. The school district should fire the principal, but I don't see how her Fourth Amendment rights were violated. Is there a hidden "comfort clause" or "non-embarrassment" clause hidden somewhere that I'm missing? As for "probable cause", there did appear to be one, as there was testimony against her.

Terrible principal, terrible superintendent if he let the principal keep his job, but I don't see a Fourth Amendment violation. But like Bernstein, I'm not a Fourth Amendment scholar.
6.25.2009 2:34pm
erp:
Wasn't the question whether or not the girl should be searched, not who should do the searching.

If the law stated that students be searched by school officials when a fellow student rats on them, then the school official did the right thing. If not, then the school official should be held accountable.

The problem is that school officials are taking way to much on themselves. The girl's parents should have been called first. Had they been called, the matter could have been resolved without all this travail.

Looks like Sotomayor's "Wise Latina" method of judging cases is already in place at the Supreme Count. According to the media, all, except Justice Thomas, are lined up against strip searching search a 13 year old child.

Bueno, but was that what the case was about?
6.25.2009 2:37pm
[insert here] delenda est:
It looks like an unreasonable search with barely probable cause (and none as defined in US Constitutional jurisprudence) without a warrant to me. Now I'm not an American at all but that sure looks like a Fourth Amendment violation to me.
6.25.2009 2:40pm
ruuffles (mail) (www):

What laws do you mean "didn't exist"?

http://en.wikipedia.org/wiki/Pace_v._Alabama
6.25.2009 2:41pm
Melancton Smith:
David Nierporent wrote in response to J. Aldridge:

Probably because he considers history and original meaning. Does anyone really believe the states would have ever surrendered their power to the U.S. Supreme Court to second guess their laws and constitutions?
Yes. That was the purpose of the 14th amendment. That you parrot some commentary from a non-lawyer, non-historian blogger who pulls a few quotes out of context from one 19th century legislator, and somehow miss this salient point, is embarrassing.


I was about to say the same thing. J. Aldridge believes that the only restrictions that the 14th Amendment applies is that a state cannot tyrannize a citizen of another state unless they also tyrannize their own citizens.
6.25.2009 2:41pm
ruuffles (mail) (www):

Looks like Sotomayor's "Wise Latina" method of judging cases is already in place at the Supreme Count.

Yet the only non-white person was Thomas. Hmm. Guess not.
6.25.2009 2:42pm
Bob White (mail):
I wish the girl had had Vicodin or Novocaine, something you couldn't obtain in anything like the same quantity without a prescription, instead of ibuprofen. I don't think what the drug was mattered a whit to Justice Thomas, whether it was ibuprofen or vicodin or heroin, merely that possession of it was both illegal and against school policy.
6.25.2009 2:43pm
ruuffles (mail) (www):

I wish the girl had had Vicodin or Novocaine, something you couldn't obtain in anything like the same quantity without a prescription, instead of ibuprofen.

But that would be like Heller wanting a machine gun than a simple handgun, no?
6.25.2009 2:45pm
erp:
Wasn't the question whether or not the girl should be searched, not who should do the searching.

If the law states that students be searched by school officials when a fellow student rats on them, then the school official did the right thing. If not, then the school official should be held accountable.

The problem is that school officials are taking way to much on themselves. Had the girl's parents been called first, the matter might have been resolved without all this travail.

Looks like Sotomayor's "Wise Latina" method of judging cases is already in place at the Supreme Count. According to the media, all, except Justice Thomas, are lined up against strip searching search a 13 year old child.

Bueno. We all know that Justice Thomas put pubic hair on Anita Hill's coke can, so it's an easy segue to wanting to strip search 13 year olds as one of Volokh Conspirators has suggested in a comment above.

Absolutely disgusting.
6.25.2009 2:46pm
J. Aldridge:
David M. Nieporent wrote: "Yes. That was the purpose of the 14th amendment. That you parrot some commentary from a non-lawyer, non-historian blogger who pulls a few quotes out of context from one 19th century legislator, and somehow miss this salient point, is embarrassing."

What "non-historian blogger" are you talking about, and what quotes were out of context are you referring to?
6.25.2009 2:48pm
Oren:

Very convenient. All government officials (even local school nurses &sports coaches) now enjoy significant immunity in violating the rights of citizens if there is any question of 'clarity' of the right (??)

I think it's more important to ensure (as the Court did) that no future school official will violate the rights of students than to be punitive about correcting the violation in this case. That is, it's more important (IMO) to get things right going forward.

I'm very pro-student rights (and I agree with DB about calling the police to handle things when there is a real risk) but large settlements that come out of the school district's pockets do nothing for me -- they either increase taxes or spend less on actual education.
6.25.2009 2:49pm
Oren:

If the law states that students be searched by school officials when a fellow student rats on them, then the school official did the right thing. If not, then the school official should be held accountable.

State law has no power to make legal a search that is forbidden by the fourth amendment.
6.25.2009 2:50pm
Oren:

The school district should fire the principal, but I don't see how her Fourth Amendment rights were violated. Is there a hidden "comfort clause" or "non-embarrassment" clause hidden somewhere that I'm missing?

The 4A turns on the reasonableness of the search which, in turn, turns on how invasive it is. It's not hard to imagine a scenario (the instant case among them) in which a cursory search might be quite reasonable but a cavity search unreasonable.

Strip searches by officials of the opposite gender are presumptively unreasonable on the same grounds.
6.25.2009 2:52pm
Thales (mail) (www):
"Probably because he considers history and original meaning. Does anyone really believe the states would have ever surrendered their power to the U.S. Supreme Court to second guess their laws and constitutions?"

Ah yes, J. Aldridge's one man crusade against the national government and Reconstruction. In point of fact, the states *did* surrender some of this power when they ratified Article I, Section 10 of the original Constitution. They reserved the rest in the Tenth Amendment, though subject to the supremacy clause. They surrendered a lot more in the Fourteenth Amendment. The incorporation contrarians have been debunked, as have those who believe the Slaughterhouse Cases were correctly decided. You also will probably trot out a selective citation of John Bingham at this point, and ignore the clear evidence presented by Akhil Amar and others that the privileges or immunities clause, as a matter of plain text, original meaning and history, incorporates the Bill of Rights along with other provisions of the original Constitution. Of course, you don't even need to believe the P or I clause has any meaning to believe that the conduct here was a clear violation of due process.
6.25.2009 2:53pm
Oren:


An unanimous 1967 Warren Court ruling is hardly anything I would consider authoritive.

Aside from the fact that that "the Judges in every State shall be bound thereby", sure.
6.25.2009 2:54pm
MQuinn (www):

The school district should fire the principal, but I don't see how her Fourth Amendment rights were violated. Is there a hidden "comfort clause" or "non-embarrassment" clause hidden somewhere that I'm missing?

No, but there is a prohibition against unreasonable searches
6.25.2009 2:57pm
Gilbert (mail):

Thomas simply has an incredibly restrictive view about what the Constitution actually prohibits


I think this is an inaccurate way to understand his philosophy--it's not about broad/restrictive, it's about activism/modesty. As this case demonstrates, Justice Thomas thinks that whatever the state of the law was when the constitution was written (later amendments aside) is ipso facto correct, even if the courts in intervening years have concluded it was not. That makes him activist in the same sense that those terms are used against liberal judges -- he has very little compunction about changing the law if he thinks it is wrong.
6.25.2009 2:58pm
Randy R. (mail):
GMUSOL0: "Considering how prevalent cases of same-sex molestation/abuse of children are, I've always failed to understand why it's somehow assumed that making child strip in front of an adult of his/her own gender is any better than one of the opposite gender."

Sorry to bust your fantasies, but opposite sex molestation/abuse is far more common than same sex abuse. But thanks for the stereotypical slur against gay people -- it's always good to be reminded there people like you out there.
6.25.2009 3:00pm
J. Aldridge:
Aside from the fact that that "the Judges in every State shall be bound thereby", sure.

You forgot "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof..."

There is no license for the court to do what had been withheld of them to do.
6.25.2009 3:03pm
ruuffles (mail) (www):

As this case demonstrates, Justice Thomas thinks that whatever the state of the law was when the constitution was written (later amendments aside) is ipso facto correct, even if the courts in intervening years have concluded it was not.

I'll believe that the day he votes to overturn Loving v Virginia.
6.25.2009 3:03pm
J. Aldridge:

In point of fact, the states *did* surrender some of this power when they ratified Article I, Section 10 of the original Constitution. They reserved the rest in the Tenth Amendment, though subject to the supremacy clause. They surrendered a lot more in the Fourteenth Amendment.

Sure they did, like no state shall pass "Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts."

These negatories were never used as a ruse to claim powers over every day affairs of the people through legislation and statutes. The 14th amendment is no different, it is simply a negatory.

John Bingham:

There are other negative provisions in the Constitution of the United States; for example, the express negative provision that no State shall pass any law impairing the obligation of contracts. By virtue of your judiciary act, as it has been in force from the foundation of the Government to this day, that limitation upon the power of the States is uniform, and whenever or where ever any State has undertaken by legislative enactment or by constitutional provision, if you please—I care not which—to impair the obligation of contracts, that wrong has, by the operation of your law, been righted.
6.25.2009 3:10pm
Oren:

You forgot "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof..."

There is no license for the court to do what had been withheld of them to do.

Hmm, maybe you missed this part too:

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Court is expressly licensed to decide what the Law (which plainly include the Constitution itself) means.
6.25.2009 3:13pm
rick.felt:
Sorry to bust your fantasies, but opposite sex molestation/abuse is far more common than same sex abuse. But thanks for the stereotypical slur against gay people -- it's always good to be reminded there people like you out there.

Well, heterosexuals are far more common than homosexuals. So unless you have information that shows that a given heterosexual is no less likely than a given homosexual to molest a child, can the outrage, okay? (not saying that it's not true - I have no idea. But no need for the blown gasket, friend).
6.25.2009 3:13pm
Randy R. (mail):
Fortunately, SCOTUS did not apply the drugs exception to the constitution, even if Thomas wished to. Nor did they apply 'unruly schoolkid' exception. Considering both were in the facts (as was the case with bong hits 4 jesus), this is a rather remarkable decision.
6.25.2009 3:14pm
Whadonna More:

Melancton Smith:
In our enlightened age of sexual freedom and tolerance, is there a difference what gender person performed the strip search? Couldn't a lesbian strip searcher have been as inappropriate as a heterosexual male strip searcher?

I had that conversation with the nurse who was called in to "witness" my physical exam with a male doc. She lamented that she could be doing other work if I'd been seeing the openly gay woman doc in the practice.
6.25.2009 3:15pm
Philip Miles (mail) (www):
Does Justice Thomas mean to suggest Ibuprofen is a gateway drug in his dissent? He does recognize that Ibuprofen is not at the front of the prescription drug problem... but then why mention gateway drugs at all?
6.25.2009 3:17pm
Interlocutor (mail):
Wow, Thales is either the same person as J. Aldridge, or the screenname used by the former Miss Cleo.
6.25.2009 3:19pm
J. Aldridge:
The Court is expressly licensed to decide what the Law (which plainly include the Constitution itself) means.

Now I understand you: Article III, Section 2 no longer exists!
6.25.2009 3:20pm
Randy R. (mail):
Just check the FBI stats, which conclude that child abuse is far more common among straights than with gays, and in more proportion than the actual population. Or go here for a full discussion of the studies:

So why didn't you or anyone else ask GMU for proof to back up his claim about the 'prevalence' of gays molesting kids? The fact that this nonsense still goes unchallenged means that it's fairly commonly held as a belief. I wish I could can the outrage, but I don't see anyone saying to jews they should can the outrage over the blood libel or any other traditional slurs used against certain minorities.
6.25.2009 3:22pm
methodact:
insults.net
6.25.2009 3:26pm
hawkins:

which conclude that child abuse is far more common among straights than with gays


Arent there a good percentage of "heterosexual" offenders who abuse the same gender?
6.25.2009 3:26pm
Craig Oren (mail):
Weren't many of you surprised by the decision? Justice Ginsburg's comments about the need for women on the bench, and Justice Souter's interrogation of the student's lawyer, led many people to think that no violation of the 14th amendment would be found. Maybe oral argument isn't as good a guide to decisions as many people think.
6.25.2009 3:33pm
Tom952 (mail):
Excellent post.

The threat to the school by the suspected Advil didn't come close to warranting the search. And even if the accusation had involved heroin, the matter is best referred to the police who are the trained to establish probable cause before proceeding.
6.25.2009 3:34pm
martinned (mail) (www):

If this had been a private school, rather than a public school, and a similar search had been undertaken, also without parental consent, would the private school officials be criminally or civilly liable?

Wouldn't that depend on the contract between the parents and the school, espcially as far as civil liability is concerned?
6.25.2009 3:37pm
Randy R. (mail):
"Wouldn't that depend on the contract between the parents and the school, espcially as far as civil liability is concerned?"

I guess that would depend if there was a school policy and whether they officials adhered to it. I would guess that most private schools don't have any sort of policy regarding strip searches, because that would imply that they are needed, and who wants to send their kids to schools that strip search the kids?
6.25.2009 3:40pm
Abercrombie:
50 years from now, I certainly hope we don't still have reason to be concerned about men strip-searching women or vice-versa. The gender shouldn't make a bit of difference in a civilized society.
6.25.2009 3:41pm
Careless:

Just check the FBI stats, which conclude that child abuse is far more common among straights than with gays, and in more proportion than the actual population. Or go here for a full discussion of the studies:


Going to the site you linked to I learned that 60% of offenders in the Groth and Birnbaum study would have sex with either men or boys. That's a lot higher than I would have guessed.
6.25.2009 3:43pm
Randy R. (mail):
David: "Thomas does not have an "incredibly restrictive view" in the area of civil liberties. He does with respect to students in schools."

If true, then why? I don't see anything in the constitution that says that school kids get a more restrictive interpretation. There is literally nothing in it that one could even imply that young 'uns get less protection. So where does Thomas get two difference standards for people?
6.25.2009 3:43pm
Bob from Ohio (mail):

That was the purpose of the 14th amendment.


The purpose of the 14th amendment was to protect freed slaves and overturn Dred Scott.

The broad language may protect other people and apply in other situations. That is certainly what the courts have ruled. But that was not the purpose of the amendment.

If California and the other northern states that ratified the 14th thought for a moment that it would apply to anything other than race, it would not have been ratified in its current form.
6.25.2009 3:44pm
New World Dan (www):

(1) If school offcials had conducted a body cavity search, instead of just a strip search, would Justice Thomas have still dissented? I'm not confident that there is anything in his reasoning that suggests otherwise.

I'm not sure where Thomas would draw the line either. He's very much an authoritarian in the context of schools.

(2) If this had been a private school, rather than a public school, and a similar search had been undertaken, also without parental consent, would the private school officials be criminally or civilly liable?

I really can't picture any kind of criminal liability here. There was no malicious intent. Civil liability, for a private school, would be strictly a matter of local law as they wouldn't be bound by constitutional guarantees. I could see a strong case for breaching the expected standard of care. Either way, if it were up to me, I would throw out the whole concept of qualified immunity.
6.25.2009 3:45pm
Philistine (mail):
@Prof. Bernstein:


If school offcials had conducted a body cavity search, instead of just a strip search, would Justice Thomas have still dissented? I'm not confident that there is anything in his reasoning that suggests otherwise.



Footnote 3 of Thomas' dissent seems to suggest he does not disagree with the Court's prior distinction of body cavity searches.

Though I agree, there is nothing directly in his reasoning which would suggest a basis to distinguish.
6.25.2009 3:47pm
Randy R. (mail):
Careless: "Going to the site you linked to I learned that 60% of offenders in the Groth and Birnbaum study would have sex with either men or boys. "

I dont' see where you got that. Here's the full quote:

Using the fixated-regressed distinction, Groth and Birnbaum (1978) studied 175 adult males who were convicted in Massachusetts of sexual assault against a child. None of the men had an exclusively homosexual adult sexual orientation. 83 (47%) were classified as "fixated;" 70 others (40%) were classified as regressed adult heterosexuals; the remaining 22 (13%) were classified as regressed adult bisexuals. Of the last group, Groth and Birnbaum observed that "in their adult relationships they engaged in sex on occasion with men as well as with women. However, in no case did this attraction to men exceed their preference for women....There were no men who were primarily sexually attracted to other adult males..." (p.180).


So actually, in this study, there were no men who were homosexual who were convicted of child molestation in Massachusetts.
6.25.2009 3:50pm
Careless:


So actually, in this study, there were no men who were homosexual who were convicted of child molestation in Massachusetts.

Right, but 60% of them were fixated or bi. Note that I didn't use the word "homosexual" and I did so with good reason.

But given that this started as a discussion of whether or not using same-gender strip searches was an effective precaution. These numbers indicate that it's not a particularly effective one, at least with male-male situations.
6.25.2009 3:54pm
epeeist:
I'm glad some others noted the possibility of same-sex pedophilia. It's not anti-gay or homophobic or whatever to assert the factual truth that some child sexual abuse is same-sex any more than it's e.g. anti-Catholic to say that some child sexual abuse was committed by priests (both same and opposite-sex) or anti-Islamic to protest abuse by an imam specifically or general treatment of children in some countries or whatever. If it's true it's true.
6.25.2009 3:54pm
Gilbert (mail):
@Bob from Ohio

The purpose of the 14th amendment was to protect freed slaves and overturn Dred Scott.

The history does not support your assertion. Those were two contemporary problems, but the animating concerns of Congress at the time were much more numerous and abstracted than that.
6.25.2009 3:56pm
Careless:
Anyway, the point is that it seems like the thing(s) that cause homosexuality are different from the thing(s) that cause child molestation, but there winds up being an overlap in behavior
6.25.2009 3:56pm
Dave N (mail):
Several comments on tangential points raised:

1)Erp wrote, "We all know that Justice Thomas put pubic hair on Anita Hill's coke can." I am not sure I know that, since Justice Thomas vehemently denied doing so. I know that Anita Hill alleged that it happened--but I also think she had some serious credibility problems.

2)Randy R. wrote:
Sorry to bust your fantasies, but opposite sex molestation/abuse is far more common than same sex abuse. But thanks for the stereotypical slur against gay people -- it's always good to be reminded there people like you out there.
I think the statistics bear out that, overwhelmingly, pedophiles are male, regardless of whether their attraction is towards boys or girls.

That said, I also firmly believe that most pedophiles who prey on boys are not homosexual in the sense that they are also sexually attracted to adult males. And Randy R. is correct in the sense that lumping pedophiles who prey on boys with the larger homosexual community is just as unfair as lumping pedophiles who prey on girls with the larger heterosexual community.
6.25.2009 4:00pm
Anderson (mail):
Presumably the decision was horse-trading: the Roberts wing got on board provided qualified immunity was allowed, Souter and Breyer accepted that as better than nothing, and Stevens and Ginsburg called bullshit. While Thomas was Thomas.

Any thoughts on the school district's prospects? Given the decision of the Court, I'd guess no liability for them either.

But at least Savana has obtained a decision that may protect other young people.
6.25.2009 4:01pm
Melancton Smith:
Bob from Ohio wrote:

The purpose of the 14th amendment was to protect freed slaves and overturn Dred Scott.

The broad language may protect other people and apply in other situations. That is certainly what the courts have ruled. But that was not the purpose of the amendment.

If California and the other northern states that ratified the 14th thought for a moment that it would apply to anything other than race, it would not have been ratified in its current form.


That bald assertion begs for documentary evidence.
6.25.2009 4:03pm
CMH:

(2) If this had been a private school, rather than a public school, and a similar search had been undertaken, also without parental consent, would the private school officials be criminally or civilly liable?


Certainly not under a 1983 claim: as far as I'm aware, the courts have pretty consistently held that private schools aren't state actors for 1983 purposes.

So civil liability will depend on the common or statutory law of the states, mixed in with any immunities that states may still afford to private schools. I'd guarantee that there's nothing remotely resembling unanimity on this question.
6.25.2009 4:04pm
Melancton Smith:

That said, I also firmly believe that most pedophiles who prey on boys are not homosexual in the sense that they are also sexually attracted to adult males. And Randy R. is correct in the sense that lumping pedophiles who prey on boys with the larger homosexual community is just as unfair as lumping pedophiles who prey on girls with the larger heterosexual community.


Agreed. They are vile animals that need to be put down.
6.25.2009 4:05pm
Dave N (mail):
Oh, and on the legal issue of qualified immunity, it seems to me that the principle is entitled to qualified immunity because the prohibition was not "well established."

However, like the late brokerage giant E.F. Hutton, when the Supreme Court speaks, people listen. A school administrator doing a strip search after today could not claim qualified immunity--the case means that the rule is now "well established" for qualified immunity purposes.
6.25.2009 4:06pm
AnthonyJ (mail):
The fact that a same-sex search has a non-zero risk of molestation doesn't mean it's a bad idea — it's a reasonable idea as long as the risk is lower, which is true (well, in this case at least. Molestation is also characteristically male, so it's possible that it's lower risk to use a woman to search a boy).
6.25.2009 4:11pm
Frater Plotter:
I really can't picture any kind of criminal liability here. There was no malicious intent.
So if I pull down your pants "without malicious intent" -- say, just because I'm curious whether you're wearing any underwear today -- I shouldn't be charged with a crime?

Come off it. Sexual assault is sexual assault -- the intent to disrobe someone against their will is malicious intent.
6.25.2009 4:13pm
ruuffles (mail) (www):
@Anderson

Presumably the decision was horse-trading: the Roberts wing got on board provided qualified immunity was allowed, Souter and Breyer accepted that as better than nothing, and Stevens and Ginsburg called bullshit. While Thomas was Thomas.

That is exactly what I was thinking. It's extremely plausible in light of Section 5's 8-1 vote. Also consider a 5-4 victory for the school district in the background of the Sotomayor hearings. Obama's "empathy" requirement suddenly resonates with voters.
6.25.2009 4:16pm
PD Shaw (mail):
Dave N, I'm not sure I agree that the Court has well established a principle here. I'd be curious about people's thoughts on this, because it seems to be a fact specific case. If a school official had seen the drugs being stashed or if the drugs were more dangerous, or if the child was older, we might have a different outcome, no?
6.25.2009 4:16pm
cd:
@ Anderson

Qualified immunity only applies to individual officials, so the school district may still be liable. I don't know how the Monnell issue was decided by the lower courts, but I would think that the principal has enough policy-making authority to trigger Monnell liability. I'm sure there are lots of cases on principals, so someone correct me if I'm wrong.
6.25.2009 4:17pm
CMH:

Any thoughts on the school district's prospects? Given the decision of the Court, I'd guess no liability for them either.


I wouldn't be so sure that there's no liability for the district. The liability, if any, flows from the maintenance of an unconstitutional policy or practice by the school district, and the qualified immunity "it wasn't clearly unconstitutional when I did it" defense isn't available.

Assume for the sake of argument that the school district had a blanket policy of allowing a principal or administrator to conduct a strip search for drugs or other contraband upon a single, unverified student informant. Based on that policy, the principal here strip searches Plaintiff. I can see liability here, or at least enough to get past summary judgment.

Now, there's a big assumption that the district had such a policy. Since the neither the Supreme Court nor the 9th circuit ever addressed the Monell claim, I don't know what evidence of a policy there is. No policy, no liability.
6.25.2009 4:18pm
cd:
CMH,

Would't the argument be that the principal is senior enough that my authorizing the strip search he triggered Monnell liablity? So the plaintiffs wouldn't need any more evidence of a policy than this.
6.25.2009 4:21pm
methodact:
Agreed. They are vile animals that need to be put down.
Pat Robertson was behind an effort to pass laws to kill homosexuals right before the SCOTUS took up Lawrence. Some believe that is why the Supreme Court actually allowed the Homosexuals their rights. Pat Robertson then tried to muster a religeous uprising against the High Court, which actually had to weather that storm.

Governments need scapegoats and when they admitted the humanity of homosexuals, there had to be other groups to officially hate.
6.25.2009 4:25pm
hawkins:
I assume most concerns regarding gender and strip-searches have more to do with embarrassing the child than pedophilia. Particularly in the case of adolescent girls. Perhaps the opinion, which I havent read, indicates otherwise.
6.25.2009 4:27pm
Frater Plotter:
The liability, if any, flows from the maintenance of an unconstitutional policy or practice by the school district, and the qualified immunity "it wasn't clearly unconstitutional when I did it" defense isn't available.
It doesn't rise to such a refined level as a constitutional question. A school "policy" that purports to grant staff the right to commit crimes against students should be regarded as null and void, and should offer no protection whatsoever.

A principal has no more right to strip a student than a store owner or clerk has to strip a customer whom he's accused of shoplifting. It doesn't matter one whit whether the store owner claims that this is the business's "policy", or whether the clerk is acting according to instructions from corporate: he's committing a crime, and the issue of "policy" simply does not enter into it.
6.25.2009 4:27pm
Oren:


A principal has no more right to strip a student than a store owner or clerk has to strip a customer whom he's accused of shoplifting.

Uh, is that a matter of law or your own personal opinion. School administrator do have significant in loco parentis powers. If you don't like it, propose a set of rules through your local school board that further restricts those powers.
6.25.2009 4:32pm
10ksnooker (mail):
So much freedom is sacrificed on the alter of the "drug war". The only 'war' liberals seem to approve of.

Maybe it's time ... admit defeat and withdraw.
6.25.2009 4:34pm
PD Shaw (mail):
Didn't the Court in footnote 1 state that the school policy is reasonable and beyond reproach? The objection seems to be to the conduct taken to enforce the policy.
6.25.2009 4:35pm
Vader:
At times like this I'm glad I'm not a lawyer. It's much easier for me to be sure the search was outrageous than to be sure it was illegal.
6.25.2009 4:45pm
SeaDrive:
IANAL...

If the something more or less equivalent to the search had been done by, say, her uncle, it would have been a serious crime. I don't understand what exempts a school official from the laws on child abuse.
6.25.2009 4:45pm
CMH:

Would't the argument be that the principal is senior enough that my authorizing the strip search he triggered Monnell liablity? So the plaintiffs wouldn't need any more evidence of a policy than this.


Could be. Since the Monnell claim has received such short shrift to date by the higher courts, I have no idea what theory Plaintiff has advanced so far. The Principal-As-Policymaker claim is one potential theory, but I don't know enough facts about his authority to know if this is viable or not. Even if policymaker authority hasn't been argued or won't work for whatever reason, the District can still be liable for the maintenance of an unconstitutional policy.


A principal has no more right to strip a student than a store owner or clerk has to strip a customer whom he's accused of shoplifting. It doesn't matter one whit whether the store owner claims that this is the business's "policy", or whether the clerk is acting according to instructions from corporate: he's committing a crime, and the issue of "policy" simply does not enter into it.


The distinction is that you're focusing on the liability of the principal, the store owner, or the clerk; the question left for review in this case is the liability of the School District. There is no vicarious liability in 1983 claims, so a Municipality, School District, Government Agency or similar body is only liable to the extent permitted by Monell and its progeny, and those cases pretty clearly require the maintenance of an unconstitutional policy or practice, inadequate training/supervision, or similar theories.

And as the final aside, the store owner or clerk analogy doesn't work because we're not talking about ordinary tort claims or criminal liability here, we're talking about 1983 claims. Whether or not you're correct as a matter of tort or criminal law has no bearing on the liability of a state or local government for violating the federal constitution.


Didn't the Court in footnote 1 state that the school policy is reasonable and beyond reproach? The objection seems to be to the conduct taken to enforce the policy.


Footnote 1 is referring to the school's policy of banning possession of all drugs - prescription or OTC - by students. The "policy" at issue in the School District's liability would be whatever policy or practice authorized or informed the strip search.
6.25.2009 4:55pm
DennisN (mail):
methodact:
Agreed. They are vile animals that need to be put down.

Pat Robertson was behind an effort to pass laws to kill homosexuals


I didn't think he was referring to homosexuals being put down, he was condemning child rapists. I'll go one farther. Child rapists should be impaled.

This whole same or opposite sex strip search vs. homosexuality argument is a blind tangent, I think. Most same sex child molesters do not consider themselves homosexuals, nor does the gay community, whatever the hell that is. It's the same for prison rapes.

I think we can all agree there are too many child sexual abusers out there of whatever flavour. Any strip search of a child raises the spectre of sexual abuse.
6.25.2009 4:56pm
PersonFromPorlock:
Frater Plotter:

I take your point, but government policy is Holy Writ, so it's protected under the First Amendment.
6.25.2009 5:00pm
NaG (mail):
The 4th Amendment prohibits unreasonable searches and seizures. In cases where a given search or seizure is claimed to be unreasonable, the Justices will necessarily be drawing policy preferences to reach their answer. The six-Justice majority thought it was unreasonable for a 13 year-old girl to have to shake out her underwear in front of two female school officials, on the basis of a mere tip from a schoolmate, to determine whether she was carrying legal (outside of the school) drugs, but not so unreasonable that the school administrator should have known better. Justices Stevens and Ginsburg thought that everyone should have known better. Justice Thomas thought that schools should have a lot of authority over its wards, and should be able to do just about any kind of search short of a body cavity search to keep out drugs, even (otherwise) legal ones.

Justice Thomas' absolutism is a bit hard to accept. I think more people would have gone his direction if there was more evidence the drugs were present and that the drugs were of the clearly dangerous/illegal kind. That the search of the 13 year-old was for over-the-counter pain pills based on a single tip makes it hard to justify. I also wonder if the result might have been different if the pills had actually been discovered on the kid.

Should the administrator have known better? I don't know. The War on Drugs has made a lot of school officials very totalitarian in how they enforce the rules. And, truth be told, many parents want them to be that way. To me, this seems to be the kind of case where there is no truly satisfying answer.
6.25.2009 5:01pm
A.C.:
And all over ibuprofen! As far as I know, it's perfectly legal for a 13-year-old to walk into CVS and buy a whole bottle of the stuff. And I do not know a single woman between age 18 and menopause who doesn't carry the stuff in her purse at all times.

I don't know why schoolgirls should be denied it. Why should they have to go running to a school official every time they want to pop a pill for cramps? The whole policy is evil and degrading and wrong, before you even get to the strip-search.
6.25.2009 5:03pm
Bob from Ohio (mail):

The history does not support your assertion.


It absolutely does support it. For an overview, see the Wikipedia article on the 14th Amendment.

Comments from the stray congressman does not change the basic history.


That bald assertion begs for documentary evidence.


The last paragraph is my opinion. But see Wikipedia, for instance, on the fact of the first paragraph.

Or any history of the era.
6.25.2009 5:07pm
Thales (mail) (www):
"Sure they did, like no state shall pass "Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts."

These negatories were never used as a ruse to claim powers over every day affairs of the people through legislation and statutes. The 14th amendment is no different, it is simply a negatory."

Hmm. Well, my contention was that it negates the ability of states to enforce laws that abridge the privileges or immunities of citizens of the United States, one of which is the right to be free of unreasonable searches and seizures . . . of course, Congress is empowered to make laws to enforce the provisions of section 1 of the 14th amendment through section 5 thereof. So I'm not sure what your point was, though you seem to be implicitly disputing both the validity of the holding of Marbury v. Madison and the incorporation of the Bill of Rights against the states.
6.25.2009 5:09pm
Baelln1:
"School administrator do have significant in loco parentis powers...'

___________

They have zero 'in loco parentis powers'.... under the U.S. and Arizona constitutions. Compulsory education "laws" don't even have an identifiable constitutional basis.

SCOTUS now generally says that directly violating the Constitution is not a big deal, if you work for the government at any level.... and has invented a new "immunity" standard, again with zero constitutional basis.

Government granting itself new powers seems to be a very strong trend in American history.
6.25.2009 5:16pm
Tony Tutins (mail):

(2) If this had been a private school, rather than a public school, and a similar search had been undertaken, also without parental consent, would the private school officials be criminally or civilly liable?

In general, the contracts between parents and the school authorize schools to perform all sorts of indignities on the kids. A friend of mine sends his son to a Catholic school that randomly urine tests every kid.

If not explicitly in the contract, the school might be able to stretch a contractual provision to cover strip searching.

I can't speak to criminal charges. The staff did not do this for their sexual gratification, so what would the charge be, assault?
No real damages that I'm aware of, so what would the point of suing be?
6.25.2009 5:21pm
methodact:
I'm in my element. This is my fight. I have forsworn all other vices such as drinking and drugs and gambling, etc., for many years, (because for each vice one indulges in, one's risk rises exponentially.)

Just like everone now technically qualifies under the label of terrorist, the very act of labeling comes to define some generality. Words like "predator", "prey", "abuser" are weasel words, are loaded terms, that act to agitate and demagogue with rhetoric, rather than lend clarity to the topic.

I do not agree at all with such generalizations. There is a huge difference between forcible rape and statutory rape.

In the instant case, I was outraged from the day I first read about this case, and I was posting links to reports on it around the web, long before it got to the Ninth Circuit.
6.25.2009 5:24pm
Redman:
And who says we need a wise Latina on the court?
6.25.2009 5:25pm
LTR:
I wondered what will Justice Thomas do in this case in light of his concurrence in Morse and he did just what I expected. When he says to the schoolkids "No constitutional rights for you" he does mean just that. I found his opinion in Morse very satisfying as a policy matter, but not this one. I could never be that principled and consistent even when my philosophy leads to bizarre outcomes like this. Love him or hate him, once he's gone we won't see his like so soon.
6.25.2009 5:28pm
Oren:
In 1871, after the ratification of the Fourteenth Amendment, Bingham explained:

[T]he privileges or immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows. [Bingham read the first eight amendments word for word.] These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.


Cong. Globe, 42d Cong., 1st Sess. 84 app. (1871).
6.25.2009 5:33pm
Dave N (mail):
Methodact,

Since I am the only one who used the word "prey" (except when others have commented on what I wrote), what word would you prefer I use to identify people who exploit whatever power or position they have to sexually abuse children?

And yes, I agree that there is a huge difference between statutory rape and forcible rape. But both are still illegal.
6.25.2009 5:34pm
Oren:

They have zero 'in loco parentis powers'.... under the U.S. and Arizona constitutions. Compulsory education "laws" don't even have an identifiable constitutional basis.

You are right. They are granted those powers not by the either constitution but by Arizona and local statute.

Moreover, State Laws don't need a constitutional basis since States have power to do anything not forbidden to them (as distinguished from the Federal government that is one of enumerated powers, States are a form of government with general powers).

So, if you want to say that the State law that grants school administrators power (or compels public education) are unconstitutional, the burden is on you to show what provision they violate (again, as distinguished from a Federal Law, in which the burden is on Congress to show what provision of the Constitution delegates to them the power to enact that specific law).


SCOTUS now generally says that directly violating the Constitution is not a big deal, if you work for the government at any level.... and has invented a new "immunity" standard, again with zero constitutional basis.

It is a big deal. In fact, the next school administrator to do so will find themselves in a whole heap of liability.

The question is whether, before the ruling was issued, the administrator must stake their own finances on guessing what the Supreme Court will rule the 4A means or doesn't mean.


Government granting itself new powers seems to be a very strong trend in American history.

What "new power" has been granted here? If anything, less power has been granted -- school administrators can do less than they could before the ruling.
6.25.2009 5:37pm
Oren:

And all over ibuprofen! As far as I know, it's perfectly legal for a 13-year-old to walk into CVS and buy a whole bottle of the stuff.

There are plenty of legal items (knives, lighters, bubblegum, dirt bikes, skimpy/obscene/Budweiser-branded clothing) that the school can forbid as a matter of school rules. I can see no principled reason why the school must allow students to carry any legal item whatsoever onto the campus.
6.25.2009 5:41pm
Oren:


I don't know why schoolgirls should be denied it. Why should they have to go running to a school official every time they want to pop a pill for cramps?

If I were on the school board, I would vote to allow a limited list of OTC meds (advil, aspirin, caffeine) on campus without approval.

Since the duly-elected school boards thinks otherwise, I defer to their (incorrect, IMO) decision unless it can be shown to be in violation of some higher (State Law, Federal Law, Constitution) authority.
6.25.2009 5:43pm
conlaw2 (mail):
Outside of the school context, is it legal for an adult to bring a child in and have him or her strip?
6.25.2009 5:47pm
ArthurKirkland:
I salute Justice Thomas for shaking the gravitational pull of his authoritarian, social conservative pals (such as the Chief Justice, who appears to be nearly reflexively predictable as a vote for the well-heeled, those in authority, or the social conservative position).

I hope the student who squealed gets ostracized and sued.

The student who was searched should be living in the homes of those who authorized and conducted the search (after judgment-based evictions, of course). The person who authorized the search should be ostracized thoroughly. What kind of person perceives an entitlement or a reason to search a 13-year-old girl's underwear for ibuprofen based on a classmate's squealing, then acts on that delusion? The kind of person who should be ostracized.

I would call Kerry Wilson pond scum but I will not -- not because I am above such a comment, or because this venue deserves better, but because it would be unfair to congealed algae.

Another Supreme Court appointment or two, and the social conservative justices should, for the most part, be where they belong -- muttering bitterly in dissent after dissent, clinging to their dogma-based disdain for freedom.
6.25.2009 5:51pm
J. Aldridge:
Oren you highlighted the wrong text ... lemme help you out here:

[T]he privileges or immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows. [Bingham read the first eight amendments word for word.] These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.
6.25.2009 5:52pm
J. Aldridge:
Comments from the stray congressman does not change the basic history.

Especially years after the fact and when he completely contradicts everything he said before!!!!!!
6.25.2009 5:55pm
Oren:

Outside of the school context, is it legal for an adult to bring a child in and have him or her strip?

Your own child -- yes. Another's child -- no.

Aldrige, how about Sen Howard then:


the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of
speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right pertaining to each and all of the people; the right to keep and bear arms; the right to be exempted from the quartering of soldiers in a house without consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage;
and also the right to be secure against excessive bail and against cruel and unusual punishments.

. . . [T]hese guarantees…stand simply as a bill of rights in the Constitution…[and] States are not restrained from violating the principles embraced in them….The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

Sen. Howard -- Cong. Globe, 39th Cong., 1st Sess. 2765-66 (1866)
6.25.2009 5:56pm
bender:
not seeing how this isn't a constitutional issue unless this isn't considered state action. the scope of the 4th amendment is defined by society's (read: the courts') 'reasonable expectation of privacy.' this is yet another case defining what that constitutional protection extends to, with the added twist of the search being conducted by a school official on a minor. even if you argue that the 4th doesn't apply here--it's still a constitutional issue in that it's defining the reach of the 4th. or is the argument that Thomas wouldn't have even granted cert here?
6.25.2009 5:57pm
ArthurKirkland:

I can see no principled reason why the school must allow students to carry any legal item whatsoever onto the campus.


How about clothes?

By the way, I object to the reference to consumption of alcohol beverages as a vice. Moderate consumption of alcohol is more healthful than abstinence (and a strong signal of a pleasant personality). Labeling alcohol a "vice" is the type of dogma-driven foolishness that fuels the "War On Drugs."

Also, I don't understand why a student can wear a Coke or McDonald's cap but not a Flying Dog or Abita or Coors Light hat. Students can't drive until 16 but are permitted to wear Chevrolet shirts; they can't gamble until 18 or 21 but are permitted to wear MGM Grand jackets; and can't join the military before high school but are permitted to wear U.S. Army caps in grade school.
6.25.2009 5:58pm
Leo Marvin (mail):

Governments need scapegoats and when they admitted the humanity of homosexuals, there had to be other groups to officially hate.

I nominate reality show contestants.
6.25.2009 6:01pm
J. Aldridge:
Oren:


Howard made it known upfront that he had no idea what the privileges and immunities might entail, and that "it would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States," and had no desire to attempt to solve since "it would be a somewhat barren discussion." But he left it clear he was not speaking of what resident citizens of a State may claim, but only United States citizens who are "entitled to these privileges and immunities, and ask for enforcement whenever they go within the limits of the several States of the Union."

6.25.2009 6:03pm
fennel:
This post could have been more concise: "I agree with Justice Ginsburg's concurrence/dissent." I'm guessing David Bernstein tried to type this but couldn't quite bring himself to do it.
6.25.2009 6:04pm
Oren:

Moderate consumption of alcohol is more healthful than abstinence (and a strong signal of a pleasant personality).

Not proven -- it's my guess that it's a backwards correlation: healthy people drink moderately while sick people abstain because they can't handle it.


but only United States citizens who are "entitled to these privileges and immunities, and ask for enforcement whenever they go within the limits of the several States of the Union."

So the US citizen in this case cannot ask for the enforcement of here P&I's within the State of AZ? What are you getting at here?
6.25.2009 6:05pm
Oren:



Also, I don't understand why a student can wear a Coke or McDonald's cap but not a Flying Dog or Abita or Coors Light hat. Students can't drive until 16 but are permitted to wear Chevrolet shirts; they can't gamble until 18 or 21 but are permitted to wear MGM Grand jackets; and can't join the military before high school but are permitted to wear U.S. Army caps in grade school.


Because the school board said so. If you want to get elected to the school board and promulgate a more tolerant policy -- go ahead.

OTOH, if you want to argue that the Constitution protects a student's right to wear a Budweiser T-shirt, go ahead.

Just don't mix the policy with the legal.
6.25.2009 6:07pm
J. Aldridge:
Howard also made clear he was only speaking of "all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts."

Cong. Globe, 39th, 1st Sess., 2765 (1866)
6.25.2009 6:07pm
Oren:

Howard also made clear he was only speaking of

You can read it however you want, but cherry-picking quotes out of context is not

[T]hese guarantees…stand simply as a bill of rights in the Constitution…[and] States are not restrained from violating the principles embraced in them….The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.


How could he say "these guarantees are the bill of rights" and then when he says "compel the States to respect these guarantees" not be talking about the bill of rights?!
6.25.2009 6:18pm
Thales (mail) (www):
So Aldridge, what in your view does the 14th Amendment prohibit states from doing? Do you think the Bill of Rights is not enforceable in state courts?
6.25.2009 6:20pm
ruuffles (mail) (www):

This post could have been more concise: "I agree with Justice Ginsburg's concurrence/dissent." I'm guessing David Bernstein tried to type this but couldn't quite bring himself to do it.

Oh finally, a thread winner after 120+ posts.
6.25.2009 6:21pm
Ryan:
The maligning of Thomas's decision is uncalled for, and I think people do it just to make sure that everyone knows that they are, in fact, against strip searches of 13-year old girls.

The entire Ct. agrees that the search of her belongings and outer clothes were reasonable (and they would not have been had this been a police search), so it's uncontroversial that the standard for a search is lower for children in school. Kids are pretty good at hiding things they're not supposed to have to adults won't find them, and generally teachers and principals know which kids are the bad apples they have to look out for. I'm guessing that when the principal heard this girl was involved, they probably knew she was trouble.

So, the strip search was a bad idea. But I think it was reasonable under the circumstances. It would have been more reasonable had the contraband in question not been Advil, but it only has to be minimally reasonable to be constitutional.
6.25.2009 6:29pm
Steve2:
Someone asked if anyone else was surprised by the outcome. Following oral argument, I expected the school district to win, so I was very pleasantly surprised by the outcome.

Someone else asked about the school district's prospects on remand... honestly, I'd expect them to try and settle, at this point.
6.25.2009 6:33pm
Baelln1:
"So, if you want to say that the State law that grants school administrators power (or compels public education) are unconstitutional, the burden is on you to show what provision they violate...." Oren
________________

....too easy:

5th Amendment guarantees that no person (kids included) shall "... be deprived of life, liberty, or property, without due process of law.."

13th Amendment expressly prohibits "involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted..." anywhere within the United States or its jurisdiction.

All state constitutions have identical or similar provisions.



Forcing kids (or adults) to spend many years of their lives directly in government institutions (or government directed institutions) without the slightest hint of judicial due process -- is a prima facie deprivation of liberty, and blatantly non-constitutional.

_________________

"All laws which are repugnant to the Constitution are null and void."

{SCOTUS: Marbury v. Madison}
6.25.2009 6:42pm
methodact:
Dave N:

This topic will probably not be resolved here, and there will doubtless be additional opportunities to address and comment on it in the future in future posts.

"Child sexual exploitation", is the generally accepted clinical term for sexual offenses against children.

But just as having to remove one's shoes in airports is more generally for the purpose of intimidation and off-putting one's psyche, so to are abuses of power in the instant case. Passive millimeter full body scans, (virtual strip searches), will be more for humiliation than security, to break down people's consciousness and individuality and to acclimate them to submit to the totalitarian power of the State, ala Stockholm syndrome.

The international conferences I attended on "child sexual exploitation", in 2001, set the agenda to raise the age-of-consent in all states uniformly and also around the world. They expressed the desire to bring that age up to 30, eventually, so I pegged them for eugenicists, for the Illuminati, for New World Order.

Their argument against any and all child pornography, was that whether real, representational, animated or written, it all served to "normalize" sexual behavior. We then saw billions of dollars spent subsequently stateside, and much money, around the world, for around-the-clock media campaigns and more, to re-educate the population, which has brought most people, as was planned, to their current way of thinking.

Since those goals are well underway, but are not achieved yet, rest assured, more reprogramming is on the way.

I once tried pasting a very abbreviated condensed version of what I believe to be the seminal work on what is actually going on with these dynamics, but EV deleted all but a paragraph or so of it, with the explanation that it was too long and would thus bore people here, who he said have a short attention span, so I'll end this comment here.
6.25.2009 6:44pm
ReaderY:
In this case, the Court held that judges should use their own judgement about the seriousness of the rules allegedly being broken in determining if a search is reasonable. Reasonableness here does not reflect the amount of evidence that a rule is being broken, but judges' view of the rule itself -- they will allow more intrusive searches for violations of rules they strongly agree with and less intrusive searches for violations of rules they mildly agree with or disagree with.

This line of 4th Amendment jurisprudence seems to be at some tension with the approach for arrests (i.e. for seizures), where the court recently held that any infraction, however slight, justifies a seizure and that judges should specifically NOT consider the seriousness of a crime in determining whether a seizure is justified, but apply a bright-line crime/no crime rule.

I think the school district was totally off its rocker for behaving as it did for an alleged offense this slight, if it is even the business of schools to interfere with parents' decisions regarding their children's health care in this type of manner. I wouldn't want this rule if I were a legislator. But nonetheless, I am uncomfortable with courts supporting searches only to enforce rules they agree with, with "reasonable" meaning whether they think the law itself reasonable, not whether, given the law, a particular kind of search is reasonable to enforce it.

Side note: The original basis of what we now call privacy involved state intrusion on parent-child relationships. I continue to find it astonishing that "privacy" has moved to a totally new direction while the original set of rights supposedly protected have essentially atrophied and disappeared, as this case illustrates. It's as if the Supreme Court first decided a case ruling that judicial pay must be raised because low judicial pay is an intrusiveness analogous to search warrants, then proceeded to abolish the actual right to have search warrants but refer to its judicial pay cases as its search warrant jurisprudence. It's a bait and switch. When constitutional rights can be abolished as easily as they are added to with each court personnel change, are liberties are wholly at the mercy of men, not laws, and none of our rights have any actual security.
6.25.2009 6:55pm
pete (mail) (www):

The entire Ct. agrees that the search of her belongings and outer clothes were reasonable (and they would not have been had this been a police search), so it's uncontroversial that the standard for a search is lower for children in school. Kids are pretty good at hiding things they're not supposed to have to adults won't find them, and generally teachers and principals know which kids are the bad apples they have to look out for. I'm guessing that when the principal heard this girl was involved, they probably knew she was trouble.


Even though I disagree with Thomas on this I understand him here and have some sympathy for the principal, even though he went overboard. It is hard to draw a line for searches of students and school officials are in a bind that they are responsible for the welfare and security of the students, legally have to follow policies like the one here that say they can't let students have semi-illegal drugs (even if it is silly that they are like here), have some (but not total or even parental authority) over the students, and face students willing to lie about what is going on.
6.25.2009 6:55pm
Oren:

5th Amendment guarantees that no person (kids included) shall "... be deprived of life, liberty, or property, without due process of law.."

You would have been shocked to find out what sort of civic service was required of citizens in the founder's era.


13th Amendment expressly prohibits "involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted..." anywhere within the United States or its jurisdiction.

You should look up the definition of servitude, they key component of which is labor.


All state constitutions have identical or similar provisions.

Any all States had public education at the time of the founding too.


Forcing kids (or adults) to spend many years of their lives directly in government institutions (or government directed institutions) without the slightest hint of judicial due process -- is a prima facie deprivation of liberty, and blatantly non-constitutional.

The words "prima facie" do not relieve you of providing citations to support your assertion.
6.25.2009 6:57pm
ArthurKirkland:
The healthfulness of moderate alcohol consumption is not proven.

Neither is gravity.

The evidence strongly favors those who perceive healthful attributes of alcohol consumption. The United States government, and certain of those who perceive a reliable pipeline to certain of God's proclamations (often those motivated by underlying prudishness), wish to supress this information and argue that all consumption of alcohol beverages constitutes a vice, but neither is government policy nor cherry-picked dogma is trump with respect to science.
6.25.2009 7:02pm
thomas the libertarian:
Thomas just voted the way he did because he's taking a principled position about the limited scope of the state. Schooling isn't and ought not to be a government function. Thomas is telling Americans: "Look, don't rely on the Constitution to stand between your kids and school administrators. If you opt into the government school system, use the political means to change thins you don't like. Or opt out. YOU need to watch out for your kids. Micromanaging your kids' school administrators isn't the job of the federal courts."

Thomas backs private schooling and school choice. He's trying, to the extent that he can, to keep government mission creep from distorting that system to a still greater degree, to keep kids from public schools from having greater rights then kids in private schools. Isn't this a libertarian opinion on those grounds?

Does anyone dispute that he's taking a more principled position than the split-the-baby majority, who says "They acted wrongly but have immunity" and enjoys getting to say "I'm against strip searches of little girls" without any of the cost of vindicating those girls??
6.25.2009 7:12pm
Oren:
Arthur, I don't know how, but you managed to turn me from someone that agreed with you to disagreeing with you by sheer bombasticity of your statements.
6.25.2009 7:30pm
Fub:
From the statement of facts:
After Romero and the nurse, Peggy Schwallier, had Savana remove her outer clothing, they told her topull her bra out and shake it, and to pull out the elastic on her un-derpants, thus exposing her breasts and pelvic area to some degree. No pills were found.
From Thomas' opinion:
Redding would not have been the first person to conceal pills in her undergarments. See Hicks, Man Gets 17-Year Drug Sentence,... Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school.
I get the distinct impression that Thomas is assuming facts directly contradicted by the actual facts of the case.

If he had written "Nor would she have been the last...", I would not have that impression. But the "Nor will she be the last ..." construction unequivocally presumes that drugs were found.

Whether this is due to bad copy editing, or is a "Freudian slip" isn't clear.
6.25.2009 7:32pm
ArthurKirkland:
about alcohol, or about adults who wish to peer into young girls' underwear?
6.25.2009 7:33pm
Brian G (mail) (www):
With Bush and Cheney gone, school officials won't be so quick to think Gestapo tactics are OK. Not surprisingly, Bush's judges think this incident was perfectly fine.
6.25.2009 8:53pm
Dave N (mail):
I see we can count on Brian G to make a Kos inspired ad hominem comment otherwise unworthy of this blog.

Oh by the way Brian, the vote was 8-1 (Chief Justice Roberts both fully joined the majority opinion) (the dissent was by Justice Thomas--who was appointed by Bush41).
6.25.2009 9:01pm
Dave N (mail):
(Chief Justice Roberts and Justice Alito both fully joined the majority opinion)

Preview is my friend.
6.25.2009 9:03pm
Bob Goodman (mail) (www):
In most states unauthorized possession of prescription drugs (other than those containing controlled substances) isn't illegal, nor is it illegal by federal law.
6.25.2009 9:03pm
Xanthippas (mail) (www):

The combination of drug hysteria and the tyrrany of petty government officials is rarely a pretty sight.


Well, I think we have finally found something we agree on.
6.25.2009 9:21pm
Bob Goodman (mail) (www):
I'm offended a case like this even gets litigated rather than the miscreant's being taken into the alley and beat up. There's no need to get technical over strip searching a school girl, this is just something that as soon as it is verified should be fixed informally.
6.25.2009 9:27pm
David M. Nieporent (www):
What "non-historian blogger" are you talking about, and what quotes were out of context are you referring to?
I'm talking about "P.A. Madison," a non-scholar of any sort, who doesn't understand the 14th amendment, and who is your only source of information on the subject.
6.25.2009 9:50pm
Cornellian (mail):
Justice Souter, writing for the Court, stated that the majority meant to cast "no ill reflection" on the the school official, assistant principal Kerry Wilson, who ordered the search.

I'm perfectly capable of regarding that power hungry petty bureaucrat with ill-disguised contempt without any assistance from Justice Souter.
6.25.2009 10:09pm
NI:
Sorry to come in late, but I have a more basic question. I've read 42 USC 1983 several times and I don't see a word in the statute that Congress actually passed about qualified immunity. In fact, the statute reads to me like strict liability: Anyone who under color of state law violates someone's rights is liable. So it appears to me that the whole defense of qualified immunity is a breathtaking example of judicial activism -- conservative judicial activism, in this case -- that effectively re-writes a statute and produces a contrary result from what the statute actually says.

By allowing a qualified immunity defense -- and then almost always finding qualified immunity even on outrageous facts such as these -- the courts have pretty much turned Section 1983 into a dead letter. Maybe Congress should find the time to amend the statute and explicitly remove qualified immunity as a defense.
6.25.2009 11:16pm
Baelln1:
[ What constitutional authority do government schools &
bureaucrats have... and what gives them any immunity ?? ]

<><><><>

"You would have been shocked to find out what sort of civic service was required of citizens in the founder's era."
{Oren}
_______________________

Gosh... I'm very familiar with the Colonial era, and never shocked by history. What "shocking" Founder's stuff are you talking about that still constitutionally applies today ??

(Apparently your point is that compulsory-education is some kind of "civil service" exempted from the 5th/13th Amendments ??) [Citation ?]

<><><>

"You should look up the definition of servitude, they key component of which is labor." {Oren}
_____________________

No, the common law definition is any "service" or labor performed involuntarily for a period of time (term). Section 1584 of U.S. Title 18 says the same. Physical "labor" is not a requirement. If I force you to sit in a room reading Shakespeare plays for a year... or just staring at the wall -- you are involuntarily 'serving' my wishes & commands. The 13th expressly prohibits that.

<><><>

"... all States had public education at the time of the founding too." {Oren}
_________________

No. The overwhelming standard was private & sectarian religious schools. Government school dominance did not arise until well into the 19th Century; compulsory-education (elementary level) did not bloom until the late 19th Century.

<><><>

"The words "prima facie" do not relieve you of providing citations to support your assertion." {Oren}
_________________

I directly cited the U.S. Constitution. If you have contradicting citation, I'm very eager to read it.
6.25.2009 11:30pm
Oren:

I directly cited the U.S. Constitution. If you have contradicting citation, I'm very eager to read it.

You cited words that you think mean one thing but mean another. Education is not servitude, and I will eat my hat if you find a single authoritative source suggesting that it is.
6.25.2009 11:58pm
David Schwartz (mail):
Justice Thomas will not be the last person to beat his wife.
6.26.2009 12:44am
Cornellian (mail):
After Romero and the nurse, Peggy Schwallier, had Savana remove her outer clothing, they told her topull her bra out and shake it, and to pull out the elastic on her un-derpants, thus exposing her breasts and pelvic area to some degree.

A better scenario would have been the girl calls her parents on her cell phone and her father, an attorney, notifies the school officials that they'll be facing a charge of sexual assault on a minor if they go ahead with that outrageous demand that she remove her clothes just because they think a couple of Advils are missing. I would have liked to see whether the school officials would be willing to take that path.

Failing that I would have liked to see the girl simply walk out of the school rather than accede to that demand and lets see how the school fares in the court of public opinion if they try to take any action against her as a result.
6.26.2009 12:53am
DennisN (mail):
Cornellian:
A better scenario would have been the girl calls her parents on her cell phone


No school is going to allow that. It would simply be confiscated.

Failing that I would have liked to see the girl simply walk out of the school rather than accede to that demand


That's a lot to ask of a 13 year old, particularly if she had been trained, as most of our kids are, to respect authority.
6.26.2009 1:04am
Kirk:
DennisN and Cornellian,

As long as we're playing the wish game, I'll wish she had had some serious self-defense training and the confidence to use it.
6.26.2009 3:12am
Karl (mail):
The history does not support your assertion.



It absolutely does support it. For an overview, see the Wikipedia article on the 14th Amendment.

Comments from the stray congressman does not change the basic history.



That bald assertion begs for documentary evidence.



The last paragraph is my opinion. But see Wikipedia, for instance, on the fact of the first paragraph.

Or any history of the era.


Actually, the history of the era shows that incorporation, race, etc., were discussed by the legislature prior to passing and were written about in the newspapers.

So if you were awake and read the newspapers you might know something about it. People like to think the Supreme Court foisted incorporation, etc., on them, when, in fact, it was the legislature. It was voted on.

If you don't think the states give up power, look at the 17th amendment. The right to appoint U.S. Senators was taken away from the legislatures and given to the people by the people. Why? Most of the state legislatures were corrupt.
6.26.2009 4:21am
Cornellian (mail):
Failing that I would have liked to see the girl simply walk out of the school rather than accede to that demand

That's a lot to ask of a 13 year old, particularly if she had been trained, as most of our kids are, to respect authority.


I don't fault her for not walking out, I'd just like to see the school try to take any action against her if she did.
6.26.2009 4:31am
methodact:
...who wish[es] to peer into young girls' underwear?
Well, let's.

"When fear is ascendant, it is easy for theories to catch on that blame some evil other for the ills of our society and that assume that anyone who does not share this viewpoint is deluded. Theories become popular that see the contemporary distortions in human beings as built into the structure of reality, as an inevitable feature of human nature or of complex social organizations, or even as a result of bad genes or evolution or brain structure." ~~ Rabbi Michael Lerner
Who will instill the empowerment, a children's ombudsman? They, (we, all of us) have been sold a big, bad boogeyman. Shame is the name of the game. Girls are desexualized and therefore robbed of an essential part of their humanity. The net effect of this, now that we have now endured a decade of extreme sexual repression, is now boys look at girls as dirty. Chats and forums abound, where girls and ladies are called "sluts" and "whores", routinely, in regular passing conversation.

The Stoning of Soraya M. (2008), is one example of contempt for females that's catching up fast to our culture.

The prohibition against child pornography has grown from actual depictions of sexual abuse to include images of nudes and underwear/swimsuit models and now drawings and texts. Prohibiting that material, instills guilt, shame, angst, and is often traumatic. It is akin to a virtual form of genital mutilation, which is the same disdain, only a difference of a matter of degrees. Literal genital mutilation on girls, amounts to extreme torture. Because it is generally performed in a non-sterile environment, and completely without pain-killers, many die. All scream in unbearable pain. It is estimated that as many as two-thirds of the females in just one African nation, have undergone female genital mutilation. It happens to an estimated millions of girls a year, the forced cutting away of the clitoris, and where often the labia is removed too. Those parts are deemed just entirely too shameful for a decent young girl.

The Fall 2003, AMICI - Newsletter of the Sociology of Law Section of the American Sociological Association, gives us a look at the global campaign against the practice, but also contains an article relevant to school authorities strip-searching students: "Understanding Law in Relation to other Forms of Authority". It begins with the quote:

"Legitimacy becomes a subject for discussion only when it is disputed." ~~Hans Blumenberg
The issue also notes that:

"[T]he sociology of law is committed to theoretically substantiated and methodologically sophisticated empirical investigations as the central means of studying the dynamics of law-in-society."
How fast is our descent? In 1988, Willem Dafoe played Jesus, in The Last Temptation of Christ (1988). In 2009, he stars in Antichrist opposite Charlotte Gainsbourg, who as a child actress, gave us many delightful nude scenes in her films. Antichrist shows Gainsbourg's character slicing off her clitoris.
6.26.2009 7:11am
sham-wow:
"That's a lot to ask of a 13 year old, particularly if she had been trained, as most of our kids are, to respect authority."
==========================================================

Really? Most teachers I know complain constantly that parents are always making excuses for their precious babies.

God forbid a teacher actually tries to enforce discipline. They'll be dragged into a lengthy administrative (if not legal) battle for inflicting emotional harm.

I never thought I'd say it, but the more I see and hear, the more I blame parents, most of whom today are of the opinion that their children are incapable of bad behavior, and thus, undeserving of punishment by school officials.
6.26.2009 9:08am
Seamus (mail):
The net effect of this, now that we have now endured a decade of extreme sexual repression, is now boys look at girls as dirty.

Repression? You keep using that word. I do not think it means what you think it means.
6.26.2009 9:46am
Seamus (mail):
I once tried pasting a very abbreviated condensed version of what I believe to be the seminal work on what is actually going on with these dynamics, but EV deleted all but a paragraph or so of it, with the explanation that it was too long and would thus bore people here, who he said have a short attention span, so I'll end this comment here.

Too late. (Also, if you're serious about wanting not to bore people, you ought to think about providing an English translation for sentences like "[T]he sociology of law is committed to theoretically substantiated and methodologically sophisticated empirical investigations as the central means of studying the dynamics of law-in-society.")
6.26.2009 9:53am
methodact:
Seamus:

Fair enough. The Sociolgy/Lsw disciple examines actual evidence indepth, and not just regurgitate pap platitudes.

In other words, that discipline is less likely to act as apologists for the government as easily as others who simply parrot government hype.

Going further outside, is the example of the government's touting of the Neda video to push the Green Revolution while suppressing the Torture pictures and media from its citizens. Hence "Half of the American citizenry is now explicitly pro-torture", according to Glen Greewald's cite of a recent poll from The Washington Post/ABC News.

The sociology/Law approach would need to examine those pictures, if not the actual torture. Likewise, The government bans the very evidence of their claims against child porn, so people accept the government's story, hook, line and sinker.

The shame feeds on itself.
6.26.2009 10:44am
Virginian:

Repression? You keep using that word. I do not think it means what you think it means.


Kudos for the "Princess Bride" reference. What a great movie!
6.26.2009 11:07am
A.C.:
Back to my point about how the whole Advil thing is ridiculous. Perhaps we need more people on school boards who remember what it is like to be a 13-year-old girl. But for the many, many men here who have not had the experience, just imagine trying to sit through class with severe menstrual cramps. If you haven't had the experience, these can approach the severity of the early stages of appendicitis. Now, imagine that to do anything about them, you have to march to the front of the room and explain the problem to the boy's basketball coach who teaches algebra. In front of everyone. And risking the possibility that he won't believe you and will just send you back to your seat.

Of course girls will bring Advil (or Midol or whatever) to school. And of course there will be "dealers" if it is treated as contraband... girls will discuss things with other girls that they are mortified to discuss around adults (and men in particular). The school created the problem in this case. It's not as if the drug has any recreational use.

If everyone can carry their own Advil, openly and in the original containers, then it's actually easier to spot the kids who are dealing the drugs that deserve contraband treatment.
6.26.2009 11:23am
methodact:
Sexual repression, made to feel guilty about one's human sexuality or those associated body areas and hence, uncomfortable with nudity.
6.26.2009 11:39am
Virginian:

If everyone can carry their own Advil, openly and in the original containers, then it's actually easier to spot the kids who are dealing the drugs that deserve contraband treatment.


To prevent the obvious potential problem of carrying illegal drugs in Advil bottles, the school could require that Advil only be carried in a blister pack that clearly indicated that it was Advil. I am sure Advil would be happy to sell these, if they don't already.
6.26.2009 11:40am
Fub:
David Schwartz wrote at 6.26.2009 12:44am:
Justice Thomas will not be the last person to beat his wife.
Thanks. Wish I'd thought of that example. It starkly illustrates the effect of his shift from pluperfect past subjunctive to future indicative mood in that paragraph.

Had Thomas actually presumed contrary facts, he would not have been the first judge to justify reasoning by altering facts. Nor will he be the last.
6.26.2009 12:32pm
DennisN (mail):
sham-wow:
"That's a lot to ask of a 13 year old, particularly if she had been trained, as most of our kids are, to respect authority."

Really? Most teachers I know complain constantly that parents are always making excuses for their precious babies.


Are your children taught to disregard authority? Anyone here? Mine are not.

Yeah, it's a real problem, but if she had been one of the defiant brats, this lawsuit might never have arisen.

God forbid a teacher actually tries to enforce discipline. They'll be dragged into a lengthy administrative (if not legal) battle for inflicting emotional harm.

I never thought I'd say it, but the more I see and hear, the more I blame parents, most Many of whom today are of the opinion that their children are incapable of bad behavior, and thus, undeserving of punishment by school officials.


With the exception of one minor correction above, we are in complete agreement. The situation is desperately out of control.
6.26.2009 1:02pm
Oren:

As long as we're playing the wish game, I'll wish she had had some serious self-defense training and the confidence to use it.

No reason to. She should have just flat refused and sat there.
6.26.2009 1:21pm
Dan Weber (www):
Thomas is telling Americans: "Look, don't rely on the Constitution to stand between your kids and school administrators. If you opt into the government school system, use the political means to change thins you don't like. Or opt out. YOU need to watch out for your kids. Micromanaging your kids' school administrators isn't the job of the federal courts."

I can almost buy this. Almost.

I think school boards should have wide latitude in what rules they set. However, being government-run, there are things that they should not be able to do. Thomas's suggestion that local elected officials should take care of this ignores the fact that democracy is no guarantee of freedom. One function of courts is to stop democracies from infringing rights of individuals.
6.26.2009 1:23pm
FlimFlamSam:
Maybe I have a very minority opinion here, but I think the fact that states have compulsory attendance laws makes a big difference here. The state is forcing this child to be in school and forcing the child to abide by the rules and regulations of the school.

Consider a Terry stop. You are only subject to the Terry stop because you chose to walk around out in public. But the police and school administrators can go much further than a Terry stop on people who are not willingly in public.

I realize that the Court has never felt that children are entitled the full gamut of civil liberties enjoyed by adults, and there is much sense to this, but where the state is already invading their rights by forcing them to be somewhere, it seems to me the state should have less, not more, authority to force other things upon them, such as searches.

Suppose, for example, a city passed a law that every citizen had to leave his house once a week and present for a Terry frisk outside the house. People would flip out, and the Supreme Court would doubtless correctly hold this unconstitutional. Yet that is exactly the situation children in school deal with on a regular basis.
6.26.2009 5:00pm
methodact:
Presented like a Children's Ombudsman. :-)
6.26.2009 5:17pm
pete (mail) (www):

The state is forcing this child to be in school and forcing the child to abide by the rules and regulations of the school.


Depending on what state you are in the amount of force varies wildly. Texas for instance only requires that you educate your kid somehow. Children are not compelled to be in public school, just that they are getting some form of education.

Here is a homeschool law webpage with a quick summary of how much regulation there is by state.
6.26.2009 5:35pm
FlimFlamSam:
pete,

States cannot constitutionally forbid homeschooling or private schooling, but the economic reality is that most parents cannot provide those educational options to their children even if they'd like to.
6.26.2009 5:51pm
Laura(southernxyl) (mail) (www):
"She lamented that she could be doing other work if I'd been seeing the openly gay woman doc in the practice."

I've seen many female OBGYNs over the years. None were openly gay, as far as I knew. All called a nurse into the room when I was examined.

Although I am no longer a spring chicken, I do remember some things about being in middle and high school.

I remember the total disconnect between what we learned in civics class regarding our rights, and our actual rights while we were in school. It really was like doublethink. Someone mentioned having to take his shoes off in airports - no one makes you go to an airport, like they make you go to school until you're at least 16.

There's also a total disconnect between what they tell kids starting in kindergarten, about how their bodies are private, that they own them, that no one has the right to touch them, etc., and then at 13, the kid has to strip to her underwear and so forth over her no doubt tearful objections. In fact, all of that you-own-your-body stuff could make such an experience more traumatic.

Finally, the in-loco-parentis stuff should be balanced by the realization that the adults are in a position of power over the kids and that they need to be very sure that they are not abusing it. Your boss can demand that you strip-search because he suspects you have secreted a paper clip in your underwear, and you can tell him to go to hell. A middle school student can't do that.
6.26.2009 8:42pm
Baelln1:
"Education is not servitude, and I will eat my hat if you find a single authoritative source suggesting that it is." {Oren}

________

Geeez..... government "compulsory-education" is the issue here, not education in general. (...could you be a bit more disingenuous ??)

There is absolutely zero constitutional authority for government "compulsory-education" in the U.S.


If you disagree, please dispense with the tap-dancing -- and post the citation(s) demonstrating your position.
6.27.2009 10:34am
Philistine (mail):

There is absolutely zero constitutional authority for government "compulsory-education" in the U.S.


Sure there is. The 10th Amendment.

Compulsory education is a state issue--regulated at the state level. (For example, Pennsylvania's Constitution provides: "The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.")
6.27.2009 11:05am
Oren:

Geeez..... government "compulsory-education" is the issue here, not education in general. (...could you be a bit more disingenuous ??)

Funny that you didn't cite a source.


There is absolutely zero constitutional authority for government "compulsory-education" in the U.S.

This is the last time I'm going to explain this.

The Federal gov't needs constitution authority to do things.

The State gov'ts can pass any bill that is not forbidden to them.

That's what the tenth amendment says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States ...". IOW, the States are granted the right to do ANYTHING NOT EXPLICITLY FORBIDDEN to them.


This is a fundamental principle in the
If you disagree, please dispense with the tap-dancing -- and post the citation(s) demonstrating your position.

The 10A serves well enough. Lochner is also on point:


There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere.

(from the Supreme Court's opinion in Lochner).
6.27.2009 11:33am
Oren:
Here's another opinion of the Supreme Court on the power of MA to mandate compulsory vaccination under its general police power.

Note how, in both this case and Lochner, the plaintiff's main argument is that the State is barred from doing what they did by the 14A. No one ever raises questions of enumerated powers with the States because they are not governments of enumerated powers.
6.27.2009 11:36am
Oren:

The authority of the state to enact this statute is to be [197 U.S. 11, 25] referred to what is commonly called the police power,-a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained frained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and 'health laws of every description;' indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. Gibbons v. Ogden, 9 Wheat. 1, 203, 6 L. ed. 23, 71; Hannibal &St. J. R. Co. v. Husen, 95 U.S. 465, 470 , 24 S. L. ed. 527, 530; Boston Beer Co. v. Massachusetts, 97 U.S. 25 , 24 L. ed. 989;New Orleans Gaslight Co. v. Louisiana Light &H. P. &Mfg. Co. 115 U.S. 650, 661 , 29 S. L. ed. 516, 520, 6 Sup. Ct. Rep. 252; Lawson v. Stecle, 152 U.S. 133 , 38 L. ed. 385, 14 Sup. Ct. Rep. 499. It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument. A local enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict with the exercise by the general government of any power it possesses under the Constitution, or with any right which that instrument gives or secures. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L. ed. 23, 73; Sinnot v. Davenport, 22 How. 227, 243, 16 L. ed. 243, 247; Missouri, K. &T. R. Co. v. Haber, 169 U.S. 613, 626 , 42 S. L. ed. 878, 882, 18 Sup. Ct. Rep. 488.


Short Version: The State's can pas any law that does not contravene the US Constitution or violate the rights secured therein.

I'm sure there are enough citations in there for you.
6.27.2009 11:39am
Oren:
s/State's/States.
6.27.2009 11:39am
Baelln1:
... good-- some progress made in this casual dialectic.


We now agree the Federal government has no constitutional authority to impose compulsory-education.

(...though the U.S. Department of Education and Department of Justice still have not received that word)

State government authority to do so is the remaining issue, but your statements on that seem contradictory.

_______________

You state the Federal government requires U.S. Constitution authority to do stuff... but state governments are not similarly restricted: ["Short Version: The State's can pas any law that does not contravene the US Constitution or violate the rights secured therein." {Oren} ]

So the ONLY restriction upon the exercise of state government power is the national (U.S.) constitution (???)

What then is the purpose of the many detailed state constitutions ?

State constitutions are actually chock full of restrictions on the state government powers; those constitutions exist for the same general reasons the U.S. Constitution. No reasonable person could argue otherwise.

Your oddly truncated version &intrepretation of the very brief 10th Amendment (... ignoring: " or to the people") is equally illogical. It absolutely does NOT say the States are granted the right to do "ANYTHING NOT EXPLICITLY FORBIDDEN" to them; it is primarily a restriction on the federal government.

___________________

The Lochner decision supports my position, not yours. It sharply restricted general police power of the states under the 14th Amendment and U.S. Constitution. So where does Arizona government get the police authority to impose compulsory-education on its citizens... or grant school bureaucrats special power to conduct warrantless searches of citizens... in face of the federal Bill-of-Rights (??)

__________________

You wander off on some strange "public health" tangent, since you are unable to find any state constitutional justification for "compulsory-education". They are entirely different issues.

'General-police-power' is a vague term of convenience in some legal argumentation --- it is not a practical reality in the United States. All government police power here is highly restricted by U.S. federal &state constitutions (... at least when government actors choose to obey them).

___________________

Since this school strip-search incident took place in Arizona, take a few minutes scanning the full Arizona state constitution -- you will not find the slightest hint of compulsory-education authority. But you will find solid guarantees of personal liberty ... which you agree exist in the U.S. Constitution.

Arizona government can build all the schools, libraries, parks, airports, boat marinas, etc that they want --- but they cannot legally force people to use them.

______

[P.S.] ....relax, nobody else here is interested in this issue -- and any that might be would reflexively agree with you

:-)
6.28.2009 10:06pm
Oren:

So the ONLY restriction upon the exercise of state government power is the national (U.S.) constitution (???)

What then is the purpose of the many detailed state constitutions ?

They are restrictions of the State by the State itself. The voters of AZ could eliminate all such restriction by calling a Constitutional convention and rewriting it however they please, thus it cannot reasonable be said to restrict them.


State constitutions are actually chock full of restrictions on the state government powers; those constitutions exist for the same general reasons the U.S. Constitution. No reasonable person could argue otherwise.

Of course not. Except that those restrictions are made in broader "police powers" (more aptly called "general powers") not enumerated powers.

Of course, if you want to cite ANY AUTHORITY WHATSOEVER that might suggest that the AZ Supreme Court (I remind you, they are the final arbiter of what the AZ Constitution means) has ever held compulsory education to violate the liberty protected by that document, I would love to hear it.


The Lochner decision supports my position, not yours. It sharply restricted general police power of the states under the 14th Amendment and U.S. Constitution.

Right. Note that it took a positive declaration (The States shall not do *****) to limit those powers.

Again, if you want to argue that compulsory education violates the 14A, go ahead. You will find no support for that assertion anywhere in the history of US law or politics. (Note that compulsory public education is a violation, see Pierce v. Society of Sisters -- you are absolutely free to send your kids to private school.)


'General-police-power' is a vague term of convenience in some legal argumentation --- it is not a practical reality in the United States. All government police power here is highly restricted by U.S. federal &state constitutions (... at least when government actors choose to obey them).

Except that the State Constitution operate under the "allowed if not forbidden" regime whereas the Federal Constitution operates under the "only the powers expressly enumerated" regime. Those are very different.

A State (meaning the whole government, the State Supreme Court include) can do as it pleases so long as it doesn't violate the US Constitution or the will of Congress (provided Congress has legislated something within its enumerated powers).
6.29.2009 9:38pm

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