Tuesday, April 28, 2009

This is why we should have diversity on the court

The only sane voice, according to Dahlia Lithwick, is Ruth Bader Ginsburg, not coincidentally the only woman on the court:

Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.
I was horrified and outraged when reading this piece, seeing how completely the judges just were in their lack of empathy. The administrators went on rumor, didn't think it worthy enough to call the parents before embarking on the humilating enterprise, and all for something that's not worth it in the least. Zero-tolerance policies--which got its root in the Columbine school shootings a decade ago last week--were always an overreaction to anything bad a kid did, and this case just brings to light how insane and inappropriate the policy has become. Many articles discussing Savana Redding's story point out the discrepancy between the laws on the books, that teenagers who willingly send provocative photos of themselves to others can be prosecuted under child pornography laws yet it's perfectly legal for them to be forcibly strip searched in front of strange adults for nebulous reasons, a point that is hampered on again and again because it's just so out of whack. Both situations cause emotional turmoil, but it is the school's responsibility that they don't sanction humilation and emotional strife at the hands of its employees.

13 comments:

John said...

The highlight of that article has to be Ginsberg's quote about "nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas" being used as justification for drug tests.

Nothing in this article has answered the question that is on my mind, though: Why couldn't they get the school nurse to perform the search in the privacy of the nurse's office? You only need one person to be there to check for drugs, after all, and it should be someone who might actually have call to see people naked in their line of work. I know I'd feel more comfortable stripping for a physician than for a school administrator.

mikhailbakunin said...

The search was conducted in the nurse’s office by two female school officials – one of whom was the school nurse.

I think that if you look at the totality of the circumstances, school officials probably violated Redding’s Fourth Amendment protection against unlawful search and seizure. But there are a few relevant points Dahlia Lithwick is overlooking.

First, the T.L.O. precedent clearly states that school officials need not conform to the traditional standards of probable cause – they may only have reasonable suspicion.

Second, Adam Wolf, the lawyer for the respondent, essentially rejected the Ninth Circuit Court’s use of a “sliding scale” approach. Instead, he argued that the type of contraband is irrelevant – it shouldn’t matter whether the student is suspected of possessing over-the-counter drugs or illicit narcotics.

This is kind of an absurd argument, and it flies T.L.O..

Certainly, we would all agree that there are certain circumstances that would justify school officials strip searching a student – and it matters what those school officials are trying to find. What if a student were suspected of carrying a concealed weapon in his or her undergarments? A principal would have to be insane to place that student’s Fourth Amendment privileges ahead of school safety.

I think that’s why the justices were so hostile to Wolf’s argument.

mikhailbakunin said...

*flies in the face of

Emily said...

I was so shocked when I read this story a few weeks ago. I think it's disgusting, and there would be very few circumstances that I could imagine that would warrant a strip search of a 13 year old girl. Plus, the fact that the mother was not notified prior to the search makes me think that they knew what they were doing was wrong.

MediaMaven said...

Emily: Yeah, this story was disturbing back when I first heard about it, but I was appalled at the collective judges' reactions to the case, and their utter lack of empathy.

Mikhail: What I don't understand (and maybe you know--not willing to do the research now) is what qualifies as "probable cause". A rumor? One girl tattling? A history of bad behavior? Suspicious behavior? (Which would need its own definition.) The girl had a spotless record, but regardless, I see it too easy for a middle school kid to plant a story so an unliked kid is humiliated in school.

I have a hard time imagining a student sticking a shotgun in his underwear.

mikhailbakunin said...

Ok, this is going to be a long response . . .

Reasonable suspicion, as defined in T.L.O., is essentially more than a hunch. Obviously, that’s an extremely broad definition, which is why the Court granted this case certiorari – to determine precisely what reasonable suspicion means. One of the major questions in this case is whether the school officials should be granted immunity because the definition of “reasonable suspicion” was so murky.

You have to understand that the job of the Supreme Court isn’t to simply judge each case on its own merits – it’s to establish basic principles that give the lower courts clear guidance on how to evaluate future cases. Wolf argued that school officials need “location-specific information” in order to perform a strip search – that is, a reasonable belief (based on reliable information) that the contraband is located explicitly in the student’s undergarments. But he also dismissed the Ninth Circuits Court’s “sliding scale” standard.

By rejecting this standard, Wolf forced the justices to ignore the type of substance that school officials were searching for, and focus only on 1) the manner in which the search was conducted and 2) the information on which it was based. In other words, Wolf argued that the “nature of the infraction” – whether the child has Tylenol or Black Tar Heroin – is irrelevant . . . and, following that logic, a number of justices began treating the case as if Redding were suspected of possessing a far more dangerous substance.

Wolf’s argument was foolish because most people seem to be outraged over the fact that school officials went overboard in looking for a substance that wasn’t particularly dangerous. Wolf suggested that it doesn’t make any difference what the officials were searching for – but it intuitively does make a difference. If the officials had been looking for a deadly weapon, I think it’s reasonable to assume that they would’ve been on much sturdier ground.

The crazy thing was that Wolf’s entire argument was premised on the fact that school officials didn’t search Redding’s personal belongings enough before moving on to the strip search. Wolf explained: “I suppose if you . . . are certain that somebody possesses a drug and you have searched everywhere, perhaps you have generated location-specific information. I would readily agree to that.”

In other words, if school officials have ruled out other locations, they can logically assume that the contraband is in the student’s undergarments. But, since the school officials didn’t search Redding’s desk or locker, they had no reason to search her undergarments.

So, Wolf was arguing that the search was too intrusive . . . but ultimately not intrusive enough to be self-justifying.

By the way, I don’t know where you got “shotgun” from. A shotgun is not what comes to mind when you talk about “concealed weapons.” There are lots of weapons that are small enough to fit in your undergarments.

mikhailbakunin said...

You said, "The girl had a spotless record, but regardless, I see it too easy for a middle school kid to plant a story so an unliked kid is humiliated in school."I agree, but let me play devil’s advocate.

First, I’m not sure there was any reason to suspect that Marissa had malicious intent. The girls were very close friends, and the assistant principal seemed to be keenly aware of this fact.

Second, I wouldn’t say that Savana had a “spotless” record. School officials based their suspicions on more than just Marissa’s word. At the school’s homecoming dance six weeks earlier, several of the chaperones had suspected Marissa and Savana of drinking alcohol and smoking cigarettes. Another student, Jordan, alleged that Savana’s family had provided the students with alcohol prior to the dance. (This could be one reason why school officials were hesitant to call Savana’s mother prior to the search.) Jordan’s mother also charged that “certain
students” in Savana’s clique had brought drugs and weapons on school grounds, though neither she nor Jordan ever specifically identified Savana. When school officials initially approached Marissa, she was holding Savana’s planner, which contained cigarettes and several small knives (later found to belong to Marissa).

It’s true that Marissa’s statements were the only thing clearly linking Savana to the prescription drugs, but there was other evidence - including additional statements from students, parents, and teachers - suggesting that she had been drinking and smoking on school grounds.

petpluto said...

First, I’m not sure there was any reason to suspect that Marissa had malicious intent. The girls were very close friends, and the assistant principal seemed to be keenly aware of this fact.Should the fact that there was a prior relationship between the girls really mitigate the fact that it is high school, loyalties do shift rapidly, and that even the best of friends may throw suspicion on one another to avoid getting in trouble?

My personal problem with the scenario you describe (and I don't doubt any of the facts you've laid out) is that unproven suspicions make up one of the main pillars for why this particular girl was thoroughly strip searched. If there had been actual proof that this girl in particular had prescription drugs in school before, if she had been found to have been drinking at a school dance instead of suspected of being drunk at a school dance, and if every other area of her personal property had been checked first, I would still find this strip search excessive but I wouldn't be as dumbfounded by it.

I know I'd feel more comfortable stripping for a physician than for a school administrator.I think I would have been severely pissed off and uncomfortable either way.

mikhailbakunin said...

Should the fact that there was a prior relationship between the girls really mitigate the fact that it is high school, loyalties do shift rapidly, and that even the best of friends may throw suspicion on one another to avoid getting in trouble?Absolutely.

If there had been actual proof that this girl in particular had prescription drugs in school before . . .Do you agree, though, that school officials need to be able to search students in order get that proof?

What do you think the standard should be? Is it ever okay for school officials to strip search students?

petpluto said...

. .Do you agree, though, that school officials need to be able to search students in order get that proof?I think my answer depends a lot upon what makes up 'reasonable suspicion'.

If 'reasonable suspicion' is "a student said something", then no. Especially not for items that aren't an immediate threat, especially not without searching everything else, and especially not without informing a parental unit.

Is it ever okay for school officials to strip search students?In extreme circumstances, I can grant that strip searches on school grounds are a necessary evil.

But I think that the strip search should be the final step in extreme cases after all other steps have been exhausted, and I think there should also be different degrees to which strip searches should be taken. I don't think that it is need to search a student's undergarments for what was essentially a couple of Advil. In fact, unless some immediate bodily harm is of consequence, I think that is going overboard.

John said...

Thanks for the clarification, MB. What I read didn't specify the details of the search itself, other than the shaking of her underwear.

Wolf rejected the sliding scale, eh? I can't say I regard that as a smart move. There should be a difference in protocol based on the threat level of the contraband being searched for, otherwise administrators may have to start treating every incident as if it were a bomb threat.

I may regret taking this stance at some point in the future, but I do think that the administrators should have searched her personal effects before searching her person. If the contraband was being treated as a serious threat regardless of what it actually was, wouldn't it be important to rule out every possible hiding place (and also potentially discover other contraband?)

By the way, I don’t know where you got “shotgun” from. A shotgun is not what comes to mind when you talk about “concealed weapons.” Perhaps, but where's the humor in imagining someone with a Saturday Night Special tucked in their boxers? It's much funnier to imagine someone saying "Hey, is that a 12 gauge in your pocket, or are you just REALLY happy to see me?"

Speaking of weapons, why the heck would someone carry several small knives in their day planner? Would the metal in the binding hide them from the metal detector?
Boy, school sure has gotten rougher since our day.

mikhailbakunin said...

Hmm . . .

We all seem to agree that a) school officials should exhaust all other possibilities before resorting to a strip search; b) ‘reasonable suspicion’ must be defined more clearly; and c) the standard for ‘reasonable suspicion’ should be based on a sliding scale - with a lower threshold for more dangerous substances.

I think the school could’ve reasonably argued that the prescription strength ibuprofen posed an immediate threat to the students’ health. Another student, Jordan, had apparently become violently ill after ingesting these pills (a fact confirmed by his mother). School officials had a realistic concern that a) students were taking these pills not for any medicinal reason, but simply to get “high,” and b) taking these pills in excess could cause illness or death.

Still, prescription strength ibuprofen clearly isn't the same as heroin.

...

Anyway, it’s easy to define terms like ‘reasonable suspicion’ negatively. The real task is to determine what reasonable suspicion is - not just what it isn’t. The Supreme Court has to create a positive standard that can be consistently applied. And if they want to obviate the need for further clarification, they need to consider marginal cases as much as general cases.

While we may all agree that the school officials were wrong to strip search Savana Redding, this doesn’t really answer the broader question before the Court.

What is the rule here?

I don’t think it’s sufficient to just say, “In certain extreme cases, school officials can strip search students if they have reasonable cause and they’ve exhausted all other possibilities.” We’ve added some qualifiers, but this still seems like a very vague and unsatisfying rule.

Also, I now feel it’s entirely appropriate to conceal a shotgun in your underpants. Consider this my retraction.

MediaMaven said...

Hi.

I agree with the rest of you, especially John. What I have read of this case did not remotely go into the detail that Mikhail included; I wasn’t under the impression, from Lithwick’s article, that the slide scale approach was nixed; a shame, since we all seem to agree that it does matter what school officials are looking for. A weapon is obviously a much bigger deal than (over-the-counter) drugs.

It’s quite a jump to go from “backpack” to “underwear”. I can imagine that if Redding allowed the administrators to check her backpack, she *might* have allowed them to check her locker, but pretty much everyone will draw the line on undressing to find contraband. Also—and maybe Petra would know this—would the school need to notify parents if they intended to go through any student’s personal belongings? What if the child objected? Is that defined by school district/state? (I’m trying to remember my own high school’s rules, as this topic came up a few times, but I’m drawing a blank.) In this case (which at the time I wanted to mention), the mother was notified, albeit after the infraction was caught. (I also think this story is ridiculous, but that is another entry).
The stories I read on this case (including the ones linked above) specifically mentioned she was a good student—yes, something that is very much open to interpretation, but I took it on face value for the purpose of this post. God knows “good student” doesn’t translate into “perfect” or “responsible” or “law-abiding”, but the reports never mentioned her previous infractions (therefore making her more sympathetic and simplifying the case).

Anyway, it’s easy to define terms like ‘reasonable suspicion’ negatively. The real task is to determine what reasonable suspicion is - not just what it isn’t. The Supreme Court has to create a positive standard that can be consistently applied.This makes me think of the famous phrase for pornography—we know it when we see it. I also see this standard being applied to profanity (though I know the Supreme Court recently ruled on that regarding broadcast standards).

By the way, I don’t know where you got “shotgun” from. A shotgun is not what comes to mind when you talk about “concealed weapons.” There are lots of weapons that are small enough to fit in your undergarments. I was going for the humor (hence why it seemed so ridiculous). But I also know nothing about guns—the little I know is from video games, and GoldenEye isn’t a game that touts concealed weapons.

Thanks for the clarification on the case and the law, Mikhail.