Your Lying Eyes

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25 June 2009

Court: School Strip Searches Unconstitutional

This was a shocker for me, based on the oral arguments. The Justices, up and down the line (with the exception of Ginsburg, of course) seemed highly skeptical of the notion that they should be second-guessing school officials trying to enforce school rules. So an 8-1 decision against the school was quite surprising. But it was the lone dissenter, Justice Thomas, who made the most sense.

Now I have to admit that when I first read about this case - a 13-year old girl having to pull out her underwear for a school nurse's inspection because the vice-principal suspected she was concealing Ibuprofen - my initial reaction was that if it were my daughter this happened to I'd have been in big trouble after storming into the school and making some kind of deranged scene. So my sympathies go with the girl and with the majority's decision in her favor.

But my real problem is with school policies towards drugs. I don't believe it should be the job school officials to supervise the medications of students. If students are abusing drugs in ways that cannot be readily detected (as by the smell of alcohol or the sight of them smoking or by observing them acting in a drugged manner) then there's nothing a school official can or should do about it. There's no reason kids with valid medical needs should suffer or be inconvenienced because of the irresponsibility of other students.

But if we are going to have these stupid rules, then school officials should be able to enforce them. Stupid rules lead to unreasonable actions - that's just inevitable. And school systems are highly democratic institutions (outside of NYC) - people vote for their school boards, who make policy.

Thomas starts with the premise that the school's drug policy and its efforts to enforce it are reasonable - the same premise behind the the majority's decision. If it is reasonable for the school to search for the pill in the first place, how is it not reasonable to search in a likely place of concealment - the girl's undergarments? Thomas cleverly notes:
Redding would not have been the first person to conceal pills in her undergarments...Nor will she be the last after today’s decision, which announces the safest place to secrete contraband in school.
He has the most fun with Ginsburg's claim in her dissent that the girl's being made to sit in a chair outside the principal's office for two hours and then being searched without her parents being called constituted an abuse of authority.
The suggestion that requiring Redding to sit in a chair for two hours amounted to a deprivation of her constitutional rights, or that school officials are required to engage in detailed interrogations before conducting searches for drugs, only reinforces the conclusion that the Judiciary is ill-equipped to second-guess the daily decisions made by public administrators.
Sonia Sotomayor is often compared to Thomas, as they were both "affirmative action" nominees, both having gone to Ivy League schools no doubt based on preferential admissions policies and both were chosen for the job primarily because of their race. But she will be a very different justice. Thomas never asks questioins during oral arguments, but his writing is quite elegant. Sotomayor is rather obstreperous from the bench, and rather clumsy with the pen. Try as they might (and they try awfully hard), the Times' reporters can't quite make the woman come off like a Latina Oliver Wendell Holmes. In an article on Sotomayor's one judicial foray into the question of whether the death penalty unfairly targets minorities, she is quoted questioning the defense:
As my law clerk said to me the other day, what is the remedy? Should we just have more people sentenced to capital punishment? That’s as effective a remedy as having fewer people sentenced to capital punishment if we find that we need to remedy some overall societal inequity.
Now you and I might find that bit of wisdom barely worthy of a high-school debate team, but if you're a reporter for the NY Times it's an example of her being "deeply engaged, vocal and demanding, scrutinizing both sides and sometimes floating provocative ideas." I stand by my position on her nomination: conservatives have little to fear from her presence on the court - Obama could have done a lot more damage.


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