Imagine a legal system where a final arbiter of law based his decisions upon a peculiar personal experience that occurred many decades earlier and formed his sense of normalcy? One man. One man’s experience. And the entire system of law turns upon it.
Imagine that this experience serves to provide the basis for people you don’t know to force your child to remove all her clothing and expose her genitals.
Imagine that this experience allows people you don’t know to take this action because, in their absolute and sole discretion, it seemed like a good idea at the moment. There would be no clear standard by which this demand would be judged, and no review of this discretion by someone dissociated with the event before your child was forced to do so. The only criteria was that an adult, one single adult, whose judgment in such matters is given near absolute deference though it’s subject to no tests or challenge in anticipation or preparation for making such a decision, decided that it was a good idea.
Imagine that, finding nothing hidden in undergarments or on the surface of your child’s genitalia, your child was then subject to being probed and exposed in their genital cavities.
Imagine that there was nothing, absolutely nothing, you could do to stop this from happening to your child.
Given what happened during Tuesday’s oral argument before the Supreme Court of the United States of America, this may well be the outcome of Safford Unified School District v. Redding. one of the most horrific scenarios to present itself to the court in a long time. Liptak at the New York Times captures some of the more interesting quotes:
“What this school official did,” Mr. Wolf [ACLU lawyer arguing for Redding] said, referring to the male assistant principal who ordered the search, “was act on nothing more than a hunch — if that — that Savana was currently concealing ibuprofen pills underneath her underpants for others’ oral consumption.”
“I mean, there’s a certain ick factor to this,” Mr. Wolf said.
Without intimating a view on the ickiness of what Mr. Wolf had described, Chief Justice John G. Roberts Jr. suggested that the law might treat different undergarments differently. “The issue here covers the brassiere as well,” he said, “which doesn’t seem as outlandish as the underpants.”
An “ick factor?” I don’t think “ick” quite captures the problem. But then I question whether the Chief Justice demonstrates sufficient respect for the physical integrity of teenage girls when he parses undergarments and cavalierly dismisses brassieres. Who is he to decide what part of a young woman’s body means so little when exposed to strangers?
Justice Antonin Scalia challenged him on the first point.
“You search in the student’s pack, you search the student’s outer garments, and you have a reasonable suspicion that the student has drugs,” he said. “Don’t you have, after conducting all these other searches, a reasonable suspicion that she has drugs in her underpants?”
“You’ve searched everywhere else,” Justice Scalia said. “By God, the drugs must be in her underpants.”
Fresh off announcing his strong support for the 4th Amendment in Gant, it appears that Justice Scalia used up his constitutional quotient for the day, and returned to the basic default position of when in doubt, search away.
The winner of funny statement of the day was Justice Stephen Breyer, via Tony Mauro from Legal Times:
Breyer said, “In my experience, people did sometimes stick things in my underwear.” As the audience erupted in laughter, Breyer quickly corrected himself: “Or not my underwear. Whatever. Whatever . . . I mean I don’t think it’s beyond human experience.”
Mistaken pronoun or Freudian slip? Childhood experiences return at the most inconvenient times. But the scariest assessment of the day was uttered by Justice David Souter:
“My thought process,” Justice Souter said, “is I would rather have the kid embarrassed by a strip search, if we can’t find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry.”
From this rationale, we can demonstrably prove the value of stripping young women of their undergarments and having their genitalia inspected by strangers, since every time it happens and a kid doesn’t die over lunchtime, they’ve saved another life. They have to do it for the children. They have to do it to your child. They just have to.
I can’t wait to find out what other things were found in Justice Breyer’s underpants.
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Thanks for the great post. Reading Scalia’s comments it seems that he may well have offered them sarcastically, and that he is in fact very much against such a search… time will tell.
As for Souter, well, he’s Bush 41’s worst mistake.
How nauseating!
Ick? Nauseating? This sort of things makes me want to loose the lunch I had earlier. I do sincerely hope Scalia was being sarcastic, as that is rather disgusting. Justice Souter makes me quite glad I don’t have any kids. Surely, the worth of a human life cannot be measured – but what is a human life without the dignity that is part of the human condition?
Well put. Thanks.
I hate this, and I would have hated it, I think, before I had daughters, but I doubt quite as much.
Okay, fine — they think somebody’s smuggled a pill-sized nuclear weapon into the school, and they can’t find it. Check the kids; check the kids’ underpants; hell, whip out the proctoscope, if you have to. Kids’ dignity on one hand; mushroom cloud on the other? Got it.
Over, say, a joint? Who would be kidding whom? Even the morons who overdosed on “Reefer Madness” couldn’t possibly think that it would be worse for a kid to puff on a joint than to have some officious pervert yank down their underpants, could they?
But over the possibility of a hidden couple of [incredibly long and utterly vulgar string of expletives deleted] ibuprofen? And Souter’s afraid that a few of these handed out at lunchtime are going to turn the cafeteria into Jonestown? Yeah, that’d be pretty damn “awry,” as in “David Souter’s got his head up awry.”
Words fail me.
I can’t help this idea in my head about what I would do if some school administrator had ever done this to my daughter. I’m with you, Jdog.
Souter is 41’s worst mistake?
Putting aside all other non-Supreme-Court-nominee mistakes, you mean it’d be better if Souter were more like Thomas?
Joel, there are much easier and non-invasive ways to search for things like a nuclear bomb. You don’t need to strip search.
On top of that, your all forgetting something. HER PARENTS WERE NEVER CALLED.
How does that go missing in all this? Fine, you think she’s got drugs somewhere on her body, I’m ok with thinking that. But to act irrationally on it in such a manner? My god what have we, as a society, come to? Next thing they’ll be legalizing child porn, as long as it’s distributed by government employees.
While I absolutely agree that her parents should have been called, had an entirely different regimes been employed, it only makes sense if the school officials were going to engage the parents in resolving the situation rather than strip search her anyway. In other words, deal with the issue via the parents rather than perform a strip search at all. But when the school officials have chosen to strip search a child regardless, calling her parents would have exacerbated the problem for the school officials.
Sorry I’m not up to your standards of being sufficiently against perverts stripsearching children.
OK… fair enough, from MY perspective. Souter was Bush 41’s worst judicial mistake. It’ll be interesting to see which way Thomas goes on this case.
Wherever my daughter goes to school, I’m going to be certain that the administration knows that a) I’m a civil rights lawyer, and b) I exercise the living shit out of my second amendment rights.
If my daughter comes home and tells me this story, let them wonder if I’ll react with a, b, or both.
My personal experience with school districts is that it is far more effective to have them fear you than love you, common wisdom to the contrary notwithstanding.
It seems to me that since a school official is not a member of law enforcement, is not capable of enforcing laws, and has no official reason for searching a student, the appropriate path might be to file a complaint with the District Attorney complaining that the school official committed either assault or indecency with a child. Throw their butt in jail and prosecute them.
Not exactly. School officials are responsible for maintaining order and discpline within their schools, and are obliged to maintain a safe educational environment. While they aren’t law enforcement, they do possess some quasi-law enforcement type authority in the performance of their duties.
So, now schools can search kids based on ‘rumors’! Scenerio: one kid doesn’t like another kid for any knuckle head reason. The knuckle head starts a rumor and the innocent kid gets humiliated.
Sick. Scenerio: who gets to ‘strip search’ these kids? Perverts lurk in every profession.
In the medical field, when we assess a teen, we take special care (education and expertise) to maintain dignity. This girl’s dignity was not maintained. She was treated unjustly like a criminal with no human dignity. This practice will no doubt cause life long emotional harm to some teens
No Right, But Utterly Wrong
Sadly, there is an inexhaustible supply of things that are beyond heart-breaking to a parent.
No Right, But Utterly Wrong
Sadly, there is an inexhaustible supply of things that are beyond heart-breaking to a parent.
No Right, But Utterly Wrong
Sadly, there is an inexhaustible supply of things that are beyond heart-breaking to a parent.