Supreme Court Says School Strip Search Unconstitutional, But Where are the Consequences?

Fri, June 26, 2009


Six years ago, 13-year-old Savana Redding was called to the principal’s office because another girl claimed she had given her prescription strength ibuprofen in violation of the school’s strict “zero tolerance” drug policy. When school officials didn’t find anything in Redding’s backpack or other belongings, they ordered her to strip to her underwear and pull her bra and undies to the side, exposing herself, so they could make sure she wasn’t hiding any pain relievers under her clothes.

I can’t even begin to imagine how humiliated and violated I would have felt as a young teen if that had happened to me. We’re taught pretty early in school that as Americans we have certain protections and rights. Now, the Supreme Court has ruled that Redding’s Fourth Amendment constitutional rights were violated when school officials made that extremely questionable decision to ask a young high school girl to strip in the name of “zero tolerance.”

In an 8 to 1 decision, Justice Clarence Thomas being the lone dissenter, the Supreme Court ruled that the search that was performed on Redding went beyond what was called for in that situation and that, as a result, her constitutional rights had been violated.

After reading the accounts of the oral arguments, I was pretty sure the court would rule against Redding, opening the door to increasing numbers of overly intrusive searches of students. The male justices jokingly talked on the bench about how high school boys are comfortable with being naked in the locker room and snapping each other with towels, and seemed untroubled by the clear difference between locker room antics and being forced to strip in front of your assistant principal.

At the time, Dahlia Lithwick at Slate recounted:

This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to “change into a swimming suit or your gym clothes,” because, “why is this a major thing to say strip down to your underclothes, which children do when they change for gym?”

This leads [Justice Ruth Bader] Ginsburg to sputter—in what I have come to think of as her Lilly Ledbetter voice—”what was done in the case … it wasn’t just that they were stripped to their underwear! They were asked to shake their bra out, to stretch the top of their pants and shake that out!” Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.

Lithwick also reported that the justice who laughed the hardest and loudest at the idea of high school kids in their underwear was Clarence Thomas. Maybe he was just remembering his own youthful Tom Cruise moment.

After the argument, Justice Ginsburg lamented, seemingly out of frustration,They have never been a 13-year-old girl. …. It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

Some of my faith has been restored that a little common sense remains at the Supreme Court, but the justices still missed an opportunity to tell parents across the country that there will be consequences to school officials who cross this line — the justices refused to allow Redding’s case for damages against the assistant principal to move forward. So, while we can feel better about the fact that schools should not be strip searching our kids for pain relievers, if they do, there’s really no recourse.

Another thing that occurred to me is that given the kinds of questions (and jokes) raised at the oral argument, something must have happened between then and the decision’s announcement, because while SCOTUS questions don’t always reveal which way the justices are going to rule, they can be a reliable indicator.

But I have to wonder, in light of the apparent change between oral arguments and the decision, what happened to help produce this major shift in thinking?

I’d like to imagine that maybe Ginsburg had had just a little too much of her colleague’s callous remarks, that she marched herself into their chambers and had a little “talk” with all of them. I know that’s not really how the Supreme Court works, but I love the visual image of Ginsburg reminding her male peers of the teen years of their sisters or daughters or friends, and that she made them reach back into their own memories of childhood and apply some common sense to this one. I want to hold on to my fantasy mental imagine that Ginsburg turned the ship on this one by asking Chief Justice John Roberts to think about this case and imagine it was his own daughter in Redding’s position. If she was able to do that, maybe the Supreme Court has taken a slight turn in women’s favor.

A girl can dream, can’t she? After all, Ginsburg is carrying a big load for all women and girls until we get another woman on the Supreme Court.

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4 Responses to “Supreme Court Says School Strip Search Unconstitutional, But Where are the Consequences?”

  1. Karyn Beach Says:

    I thought he was a creep during the Antia Hill controversy. Now, I KNOW he's a creep. The only dissenter? It figures.

  2. Miz Q Says:

    "Qualified Immunity" provides that the Vice Principal is not liable because the law was not ABSOLUTELY clear that the strip search was a violation.

    NOW that the SCOTUS has said it IS all future violators WILL be liable.

    Per my DH the lawyer ;o)

  3. Al Says:

    Hi Joanne,

    What an interesting and thought-provoking post. It's understandable that our schools should remain a safe zone for children, but I'm wondering if the school's administrators would consider adopting a call the parents first so they could be present whenever an issue like this arises again.

    Hope all is well. Have a terrific weekend.

  4. PunditMom Says:

    Miz Q, As an attorney myself, I think that was a convenient dodge for SCOTUS. Plenty of laws that are not "clear" that get enforced every day. How it could not be clear that the search was a violation is amazing to me.

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