Calling all lawyers

[trinityvixen]

I have a few questions about this ruling.

Let me start by saying that it is amazing, given the kinds of questions even the liberal SCOTUS justices were asking, that they ruled as they did. I'd also like to add, as many on progressive blogs have been doing, that I, too, was certain before I read the details of the ruling that Thomas would be the lone dissenter, proudly trumpeting the rights of school districts to strip-search tweeners at any moment for any reason. So, hurrah, SCOTUS actually managed to rally and say, no, you can't strip search a teenage girl because some other teenage girl felt like getting her in trouble and passed on a rumor that the first girl was packing heat Advil. (Thomas' dissent is giving me the creeps, so I'll leave it to you guys to read about it rather than going into it myself.)

But I still have a couple of questions:

1) The school officials have been granted immunity from, I assume, civil prosecution despite SCOTUS having found that the officials violated the girl's rights. Since Justice Thomas is so certain that every mixed signal = everyone breaking the law, won't this not deter schools from doing such searches in the future, despite their unconstitutionality, because they know they can't be sued?

2) The school district is not immune. Is it really the best way to stop this kind of adult-power-tripping madness to say that individuals can demand students be officially pantsed but that only the school can be sued for it? Honestly, wouldn't it better to say the school should be ashamed for not disciplining this person or that one but that the real problem was that person deciding to take the law into their own hands?

Basically, what I, the non-lawyer, get out of this is the following:
School teachers/administrators cannot strip search students...but there won't be any personal penalty if they do. The school district will be liable, however, meaning that the victims of these administrators will be in the oh-so-enviable position of suing a public school. So victims of this kind of unwarranted and now definitely unconstitutional assault will get to chose between letting the incident slide or bankrupting the center of education for their fellow students. Won't that be fun.

Comments

[edgehopper.livejournal.com]

1. Not entirely correct. The rule of qualified immunity is that if the law governing the official's conduct is unclear, then the official is immune from a civil penalty.

So the law was unclear before, and this particular principal is off the hook. But next time a principal pulls this stunt, he'll be liable--as he should be.

2. Thomas's dissent is based in his general belief that students have essentially no rights (see also Morse v. Frederick), so, not as creepy as it might look. I think he's taking the principle too far here, and I don't think that principle applies in a public school, but I can respect it. Because he's been consistent in student rights cases, I was also certain he'd be the lone dissenter.

3. It was a good opinion for Souter to go out on, and I'm quite happy he made the point that the pills we're talking about were the equivalent of 2 OTC Advil and an Aleve (side note--the school nurse couldn't identify the blue pill as naproxen? Fire her for incompetence!)

[trinityvixen.livejournal.com]

In regards to #1--I understand that we can't retroactively punish this principle, but it really grates that we can't since that person was the problem in the first place. I hope he never gets another job being in charge of kids again. I wonder if Thomas with his paranoia about this being a "lesson" to future troublemakers ever considered how a school official who got away with abusing a student will behave now that he's been cleared from ever being held accountable..

Thomas's dissent is based in his general belief that students have essentially no rights

Dude, that is creepy. People have rights. I understand that, for the sake of order, those rights can be scaled back, but there is a line. And that bar is not set at "nothing." Thomas' opinion that it is just because a person is in school/a teenager is fucking creepy, as in "it makes him sound like a total creep." Especially when taken to its logical end as he did with this dissent where he was basically okaying strip searches of kids for any reason whatsoever and implying that every teenager is hiding drugs up his/her ass/cooch.

In this case, officials had searched the girl's backpack and found nothing, Thomas said. "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," he 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."

CREEP. Y.

[chuckro.livejournal.com]

Thomas's dissent is based in his general belief that students have essentially no rights

And, as I've noted before, the law and society back him up on that. Until your 18th birthday, you are an object that is the property of your parents, that the state may effectively exercise eminent domain on in certain cases.

It shouldn't be that way, but that's the way it is.

[trinityvixen.livejournal.com]

Thomas' dissent in this case casts him in a rather perverted role. Sure, he may have the strength of sentiment and some law behind him, but the court can rule when that law goes too far. It did. Even authoritarian-friendly conservative justices recognized that this was beyond the pale, but Thomas did not. His arguments for the school having the right to own the bodies of its students (rather than more reasonable access to their personal effects--lockers, backpacks, etc.) puts him on the side of saying students can be stripped--literally--for whatever reason. The fact that this was over Advil is besides the point except in that it demonstrates how very little it takes to set off abuse.

[wellgull.livejournal.com]

The law, maybe. The US does not have a uniform culture, whatever we like to pretend.

[bigscary.livejournal.com]

The law most emphatically does not back him up on this. He is completely wrong, and should be laughed at.

[edgehopper.livejournal.com]

On #1: Here's the problem--change the fact scenario just slightly, by making the drug crystal meth. I don't think you'd get 5 justices to invalidate that strip search, because then you're talking about a really dangerous drug. The holding here is really that to progress to a strip search, you need a more serious level of danger or proof of criminal activity to make it reasonable--not that strip searches are never allowed. Since there's no good bright-line test, and there wasn't even a clear rule about the higher standard required for strip searches until this case, the principal gets off the hook.

On #2: Look up the "in loco parentis" doctrine in Wikipedia. Thomas's view, while you may find it abhorrent (and I just think it's wrong), was actually the dominant doctrine until that case about black armbands on students during Vietnam. Schools act in place of parents, and children have no rights against the school that they wouldn't have against parents. Parents have the right to strip-search their children; therefore schools do too.

[trinityvixen.livejournal.com]

I'm aware of what "in loco parentis" means and how it is used in school discipline, but we do draw limits to how far we allow schools to parent our children--we have permission slips and the like for anything and everything that doesn't consist of in-classroom teaching. Teachers are not allowed to hit students at public schools, even though parents are allowed to spank. That's one example of the limit. There are limits, actionable ones. We've just defined another with strip-searching kids. The fact that Thomas sees no limit to what any stranger can do (this was not a teacher, this was an administrator and a nurse, people who probably hadn't interacted with this girl more than a few times, if ever) to a child on school grounds is still fucking creepy. The fact that he's not alone doesn't make it less so, it just means that there are a lot of creepy people out there.

[avram]

Tinker v Des Moines was forty years ago. Is there some reason for Thomas to be supporting a legal doctrine that was declared obsolete while he was still an undergrad working on a BA in English lit?

[edgehopper.livejournal.com]

It wasn't declared obsolete as to 4th amendment search and seizure. Students have stronger free speech rights than rights against drug searches, as repeated cases about random locker searches and mandatory drug testing have shown.

[wellgull.livejournal.com]

Aside from his desire to turn the clock back to before the 1960s?

[bigscary.livejournal.com]

The law remains unclear, with at least a two-factor (neither bright-lined) test:
Factor one is the dangerousness of the contraband sought. Where the line falls is somewhere north of ibuprofen, but where exactly we know not, and we have no guidance at all on non-drug contraband (commentators mentioned weapons, including weapons of convenience). Factor two is locational and directed suspicion. This is a little fuzzier, but it seems like neither (at least at the ibuprofen level, and possibly higher up) "Girl X has Y" nor "There exist girls hiding Y in their underwear" would be sufficient to search the underwear of any particular girl.

What we're left with, at the end, seems to be everyone's favorite rule, the reasonableness test. In which case we have the rule that it is unreasonable to (a)semi-strip-search a (b)girl for (c)ibuprofen based on another student's statement that she has it without (d)particular indication that it's secreted somewhere requiring some level of stripping. That's two binary tests (where (b) and (d) are not binary things get even more hairy -- should deference be given to the particular body/privacy issues of a TG teen? What about a specific but anonymous tip, or a teacher's absolute belief that the student has the contraband, but no particularity as to location), and two scalar tests.

We're not sure what happens at other variables on those tests. We're very far from a bright line. On the other hand, administrators are now on notice that the outer bound of the hyper-invasive prison-school has been found.

[edgehopper.livejournal.com]

Let me clarify one thing on Thomas--he is generally more libertarian on civil rights for adults (see, e.g., Raich v. Gonzales), so you can't pigeonhole him as a "the government can do whatever wants in all circumstances" justice.

[trinityvixen.livejournal.com]

The thing is? He's pro-authoritarian. The fact that he's libertarian on civil rights only proves that he doesn't immediately count the government as an authority. But most authorities? He sides with them. And that is scary.

[wellgull.livejournal.com]

I'm not sure Raich is the best example to cite--doesn't Thomas generally object to all post-bellum Commerce Clause jurisprudence? He's absolutely right that on that interpretation, the Clause has basically no limit, but I'm not entirely convinced that he reached this position for the right reasons.

[bigscary.livejournal.com]

Bullshit that his dissent in Raich says anything about his views on civil rights. It's a commerce-clause decision (one I disagree with, but not at all strongly) to the very bone. Thomas would have no problem with the state of California torturing Raich to death for smoking pot if it so chose.