Home -> Law Blog Directory -> Legal Commentary Blogs -> Althouse

Legal Commentary

: Althouse

That strip search was unreasonable ? and unconstitutional ? but it was not unreasonable for the school authorities not to know that.

Said the Supreme Court today in Safford Unified School District v. April Redding:

"What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear," Justice David Souter wrote in the majority opinion. "We think that the combination of these deficiencies was fatal to finding the search reasonable."...

The court also ruled the officials cannot be held liable in a lawsuit for the search. Different judges around the nation have come to different conclusions about immunity for school officials in strip searches, which leads the Supreme Court to "counsel doubt that we were sufficiently clear in the prior statement of law," Souter said.

School officials enjoy immunity from lawsuits for damages when the case law isn't clear enough that they should have known what they were doing is unconstitutional. Presumably, this case makes it clear now, and school officials can't be looking for drugs in a girl's panties unless they've got more information about the power and the quantity of the drugs and some reason to think the drugs are in the panties ? more information than the accusation from another student that the girl had given her drugs.

Justices John Paul Stevens and Ruth Bader Ginsburg disagreed with the part about immunity, and Justice Thomas, standing alone, disagreed that the search was unconstitutional:

"It was eminently reasonable to conclude the backpack was empty because Redding was secreting the pills in a place she thought no one would look," Thomas said.

Thomas warned that the majority's decision could backfire. "Redding would not have been the first person to conceal pills in her undergarments," he said. "Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school."

Thomas leads the pack in deference to school authorities. Remember Morse v. Frederick, the "Bong Hits for Jesus" case? There, dealing with free speech rights, he wrote:

In light of the history of American public education, it cannot seriously be suggested that the First Amendment ?freedom of speech? encompasses a student?s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students. And courts routinely deferred to schools? authority to make rules and to discipline students for violating those rules. Several points are clear: (1) under in loco parentis, speech rules and other school rules were treated identically; (2) the in loco parentis doctrine imposed almost no limits on the types of rules that a school could set while students were in school; and (3) schools and teachers had tremendous discretion in imposing punishments for violations of those rules....

To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools.... If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.

Full post as published by Althouse on June 25, 2009 (boomark / email).