Saturday, July 12, 2008

Highlights from Redding v. Safford Unified School District

I have, as long-time readers know, the odd hobby of reading judicial opinions, and Ace pointed me to the recent decision on the Savana Redding case, in which sanity at long last has prevailed (but only by a 6-5 vote and only by overturning multiple lower courts' decisions).

Briefly, you can sum up the case like this:

1. School officials had a zero-tolerance policy against drugs on campus -- including Advil.

2. They caught a student with prescription-strength Advil, thanks to a tip from another student who said she had it and said several kids were planning to get it from her at lunch.

3. She said a different student, honor student Savana Redding, had given her the ibuprofen. There was no other evidence to implicate Savana.

4. So the school officials called Savana in and searched her backpack and personal belongings, and found nothing.

5. Whereupon they strip-searched the child, forcing her to expose her genitalia, lest she be hiding that mother of all evil...ibuprofen.

I have comments about the way in which this case relates, in my opinion, to my long-held belief that putting our children's education in the hands of the government rather than leaving it to the marketplace, is insane on practically every level, for half a dozen different reasons; but those being political opinions, I'm going to put the on the politics blog instead of here. Here I just want to include my favorite bon mots from the opinion. (I get a huge kick out of the evisceration of stupid opinions that you tend to get when a court is called upon to resolve a dispute that is patently absurd on its face; and any attempt to say that an assistant principle ought to be allowed to get away with having a thirteen-year-old girl strip-searched for ibuprofen, is the very embodiment of "patently absurd on its face.")

My single favorite bit is the parenthetical comment here (the emphasis is added), which takes advantage of the fact that Idiot Wilson had tried to argue that the school had a pressing interest in doing whatever it took to find the ibuprofen because they thought Savana might be (gasp) distributing, i.e., passing them out to other students:

Here, the public school authorities adopted a disproportionately extreme measure to search a thirteen-year-old girl for violating a school rule prohibiting possession of prescription and over-the-counter drugs. We conclude the strip search was not reasonably related to the search for ibuprofen, as the most logical places where the pills might have been found had already been searched to no avail, and no information pointed to the conclusion that the pills were hidden under her panties or bra (or that Savana’s classmates would be willing to ingest pills previously stored in her underwear).

Another good zinger here:

As the Court pointed out in T.L.O. [that is, the landmark Supreme Court case New Jersey v. T.L.O., which established that students retain their Fourth Amendment rights even when attending public school], a school is not a prison; the students are not inmates. See 469 U.S. at 338. We hasten to note, however, that if Savana had been accused of a federal crime, she would have been entitled to more legal protections that she received here. See 18 U.S.C. § 5033 (“Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer shall . . . immediately notify the Attorney General and the juvenile’s parents, guardian, or custodian of such custody.”); United States v. C.M., 485 F.3d 492, 499 n.1 (9th Cir. 2007) (noting that “the officer must also advise the parents that they are permitted to speak with their child before the child is interrogated”).

Idiot Wilson's defenders tried to say that he ought to have immunity from lawsuits because there was no previous case in which a school official ordered a child strip-searched on suspicion of possession of ibuprofen, and therefore the courts had never explicitly said, "You're not allowed to do that," and therefore he couldn't be expected to know better. Yes, that is indeed the level of personal responsibility that a lot of people think should be expected of the persons to whom you are forced, by compulsory education laws and by school zoning laws that don't let you choose your own children's schools, to entrust your children. Fortunately the Ninth Circuit is not quite that lost to reason, and is aware of the fact that T.L.O. requires school officials to apply reason and common sense; and thus we get this trenchant passage:

As of 1985, when the Supreme Court issued T.L.O., the legal framework was clearly established that would put school officials on notice that a strip search was not a reasonable measure to use on a thirteen-year-old girl accused by an unreliable student informant of having ibuprofen in violation of school rules...The Safford authorities conducted their search almost twenty years after the Supreme Court’s instructions issued in T.L.O. A reasonable school official, seeking to protect the students in his charge, does not subject a thirteen-year-old girl to a traumatic search to “protect” her from the danger of Advil. Indeed, the school officials’ actions here were so patently in defiance of the considered approach T.L.O. dictates, that it is little wonder that we can find no case presenting identical facts...The T.L.O. Court expected no less of those to whom we entrust our children, leaving teachers to “regulate their conduct according to the dictates of reason and common sense.” 469 U.S. at 343. Simply put: “It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity.” ...

Justice Hawkins's dissent does have a couple of decent points in it. Unfortunately, those of his points that are worth making, do not actually serve to defend the sanity and reasonable of Wilson -- they serve to highlight problems inherent in the reasoning and guidelines of T.L.O. itself, which problems are, I believe, intrinsic to the whole problem of government-operated compulsory education, and therefore not solvable by the courts. Though, I'll grant you, the Supreme Court of the mid-'80's would have been hard put to it to solve a playground dispute on the rules of tic-tac-toe without confusing itself into logical incoherency; and so if somebody wanted to argue that a competent Court could have done a better job than the 1985 collection of black-robed morons, I'd certainly be willing to listen to the case. But, whether you and I could come up with a better approach than T.L.O. or whether T.L.O. is the best jurisprudence that could have been crafted under the circumstances...either way, that is a topic for the politics blog.


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