Savanna Redding: Almost a Victory. Almost. (Update)

Following the rather strange, borderline bizarre, comments made during oral argument, the odds seemed stacked against Savanna Redding.  Despite a set of facts that strained rational acceptance, from its outset on its path to the Supreme Court, it appeared as if blind deference to school officials, no matter how patently offensive and intrusive and disgusting their decision, would win the day.

The good news is that it didn’t.  Justice Souter, writing for an 8 to 1 majority (with Clarence Thomas dissenting), held that school administrators went over the line when they strip-searched Savanna.

Its indignity does not outlaw the search, but it does implicate the rule that “the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” T. L. O., supra, at 341. Here, the content of the suspicion failed to match the degree of intrusion. Because Wilson knew that the pills were common pain relievers, he must have known of their nature and limited threat and had no reason to suspect that large amounts were being passed around or that individual students had great quantities. Nor could he have suspected that Savana was hiding common painkillers in her underwear.When suspected facts must support the categorically extreme intrusiveness of a search down to an adolescent’s body, petitioners’ general belief that students hide contraband in their clothing falls short; a reasonable search that extensive calls for suspicion that it will succeed.

And so this means that school administrators should stop forcing teenage girls to bare their genitalia on demand?  No.  It doesn’t say that.  Rather, the best Souter can come up with is that it was unreasonable under the particular facts of this case.  Your daughter’s mileage may vary.

David Bernstein at Volokh was the first to express his disdain for this tepid decision in a post aptly entitled “I’ll say it if Justice Souter Won’t.”

Justice Souter, writing for the Court, stated that the majority meant to cast “no ill reflection” on the school official, assistant principal Kerry Wilson, who ordered the search. Well, it should have. The combination of drug hysteria and the tyranny of petty government officials is rarely a pretty sight.

It’s become increasingly difficult to determine whether the effort to avoid offense is what makes these decisions, even when they ultimately come out on the right side, so distasteful.  Would it kill them to be honest?  Would it destroy the fabric of society to proclaim an assistant principal disgraceful for his rush to strip search a 13 year old girl for anything short of weapon of mass destruction?

And if you thought Souter’s luke-warm, apologist critique of this conduct fell short of the mark, consider Justice Thomas’ dissent:

The majority imposes a vague and amorphous standard on school administrators. It also grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge. This deep intrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which “the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order.”

In other words, Thomas would allow petty tyrants to do as they please, holding that courts have no business “second-guessing” their actions.  Did anyone mention to Clarence Thomas that “second-guessing” the actions of government officials is one of the primary reasons we have courts?

While I appreciate Bernstein’s ridicule of Souter’s opinion as much as the next guy, it falls far short of the mark as far as I’m concerned.  It’s not that I disagree with the two points raised, but that this failure runs far deeper than its lack of recognition of drug hysteria and the tyranny of school administrators.  I’ve certainly done my share of complaining about both.

The decision stands for the court’s willfully turning a blind eye to the rights of everyone, students included, to fundamental personal security from those who feel empowered to decide when, how or if we are to be subject to the compulsion of government force.  Whether it’s a 13 year old girl being forced to comply with the orders of an assistant principal, or a 50 year old man being forced to comply with the orders of a beat cop, it doesn’t matter.  Whether it’s a search for ibuprofen, heroin or a switchblade, it doesn’t matter.  There is a reason why our Constitution requires those people who believe themselves empowered by the might of the government to compel people to comply with their orders to present their views to a neutral magistrate first, before simply doing as they please.

This decision merely side-steps this fundamental problem.  By parsing the details, in a particularly egregious case, the Court has managed to eke out the right outcome, but for the wrong reasons.  Ironically, this is where Clarence Thomas gets it right.  The majority, in its effort to be mushy and apologetic, does impose a “vague and amorphous standard.”  A “reasonableness” standard offers no direction, and a reasonableness standard left to the discretion of the very people least inclined to be capable of being reasonable is absurd.  Is Souter suggesting that Kerry Wilson, the same assistant principal that he simultaneously exculpates with his “no ill reflection” comment, was an unreasonable person?  It must be so, as he concluded that Wilson’s decision to strip search Savanna was unreasonable, and hence Wilson’s judgment can’t be trusted.  Yet the decision leaves it up to the Wilson’s of the world to decide what is reasonable?

Given that I had serious doubts that the Supreme Court reach the right outcome, I must say that it’s gratifying to know that eight of our nine top jurists think it’s wrong to strip search a 13 year old girl in a witch hunt for advil.  That will be relief to fathers across the nation.  But I can’t help but wonder what the next excuse for strip searching a 13 year old will be.

To add insult to injury, of course, the Court also held that the administrators can’t be held liable for damages, since “clearly established law” failed to show that this conduct violated the fourth amendment.  In the eyes of a 7-2 majority (Stevens and Ginsburg dissenting), this wasn’t sufficiently outrageous that one would expect the assistant principal and his posse to know that you don’t strip search a 13 year old in search of ibuprofen.  Perhaps the justices are awaiting the anal penetration of a kindergartner before reaching the true measure of outrageous governmental conduct?

Sorry, but despite the outcome on the primary issue, this is a monumentally disappointing decision.

Update:  Scott at Grits for Breakfast has posted about the case (as have many others, of course), but posed an interesting question:

A commenter over at Sentencing Law & Policy wondered, “Is the message that the 4th Amendment is a facts and circumstances question, rather than a clean cut set of doctrines?” IMO that’s exactly the message, and it’s the same one the court’s been sending on the Fourth Amendment for the last 25 years or so.

I believe that what this means is that the court is producing and encouraging result-oriented law, and to that extent I don’t think there’s much to dispute in this case.  But the problem is that 4th Amendment law has tended to be limited to either the creation of ever-increasing exceptions or, when the rare defense decision comes in, it’s a fact-bound decision that precludes easy doctrinal adaptation.  In other words, it’s either a fact-specific decision or it’s a pro-police decision.  Some message, bad or worse.

12 thoughts on “Savanna Redding: Almost a Victory. Almost. (Update)

  1. Dan

    On the one hand, I don’t think justices making a decision based on how it might impact their public image as an individual is a good thing. But on the other hand, you’d think that Thomas, who ascended to the bench amid allegations that he might be a creepy perv, would avoid writing opinions that make him seem like, well, a creepy perv. He should be embarassed, as should the rest of them save STevens and Ginsberg who are afraid to hurt the feelings of the lowlife assistant principal.

  2. Shawn McManus

    Thomas shouldn’t frame his arguments based on allegations against him or anyone else. Instead, he should focus on what the law states and base his argument around that.

    (Not to beat my chest here but…) As far as administrators not being held liable, no law would protect any school official that conducted a strip search of one of my daughters. I have a hard time thinking that any jury would convict a father who stood on the desk of a vice principle like Wilson either.

  3. Joel Rosenberg

    The more and more I look at the insanity of this case, the more and more I feel that there really needs to be some sort of legal framework under which vigilantism, under some circumstances, is lawful, as oxymoronic as I know that sounds.

    That aside, having read the decision, yeah — way too much wiggle room for future pervs. What if, next time, it’s three aspirin instead of two Advil? Aspirin, after all, is a much more dangerous drug.

  4. Windypundit

    I’m just waiting for it to be peanuts. More kids die from allergic reactions to peanuts than from drugs like Ecstasy. We have to protect the children…

  5. rumpole

    My impression of this case is that the two wings of the court did a deal to swap votes. The liberal wing agreed to vote for no liability in return for the conservative wing voting for an unreasonable search.

  6. SHG

    It seems quite possible, though it’s interesting to imagine that in the trade-off of law and order against family values, even the conservatives would find it palatable to strip search a 13 year old girl for ibuprofen. Then again, didn’t anyone tell Justice Thomas about the deal?

  7. Rumpole

    Justice Thomas was not told about the deal because everyone knows that Thomas is a man of principal.

  8. Jeff Gamso

    And, as Scalia has implied but never quite said (at least not on the record), Thomas is a “nut.” He’s also the only one who’s never found an outcome so distasteful he won’t vote for it.

  9. Jeff Gamso

    The real problem is that we (i.e., the courts) never took the warrant requirement seriously. The 4th Amendment, they tell us, has a “preference” for warrants. Searches without warrants are “per se unreasonable” except when they’re not. And, anyway, even if there’s no warrant and no exception and nothing reasonable about the search, there are good faith rules and inevitable discovery and circumstances sufficiently exigent or maybe it’s just not a search, so that the 4th becomes a parlor game rather than a check on police excess.

    Rather like the grand jury, it’s far more valuable in theory than in practice.

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