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After reading Lithwick, Savage, and Liptak, it was impossible to avoid the conclusion that the Supreme Court will uphold a principal's appalling decision to strip-search a 13-year old student because of extraordinarily flimsy evidence that she might possess ... ibuprofen. I decided to look at the transcript of the oral arguments to try to find a ray of hope that these fine reporters missed. But, alas, I came up empty: it was about as depressing as an oral argument that could involve Stephen Breyer asserting that "And in my experience, too, people did sometimes stick things in my underwear" could be. (Fortunately, this line of argument was not pursued.) Some additional random thoughts:
- What's most striking is the extent to which the justices sympathetic to the principal's arbitrary strip search relied on hypotheticals that were completely irrelevant to this case. (Perhaps one could imagine a case involving much more reliable evidence of a much more serious breach of school rules in which a strip search was arguably reasonable, but so what?) As Radley Balko notes, there's a good reason for the use of hypothetical scare stories rather than actual data: "Can anyone think of a single incident in the last 30 years in which several children have died after ingesting drugs distributed by one of their classmates on school grounds? Before we let school principles [double sic -- I mean, I don't think the word "principle" should even be used in the same sentence as this guy] go rummaging through the panties of underage girls, shouldn’t we be at least be able to cite a few examples?"
- The early exchanges with Scalia and Ginsburg in which they noted that the school's position would logically permit body cavity searches was devastating. (And makes the fact that they're overwhelmingly likely to be in dissent all the more disgraceful.)
- Another key pillar of the attempt to defend the indefensible is the invocation of the precious budgetary resources of schools. A majority of the Supreme Court seems to think that the best way of protecting budgets is to give school officials a blank check to violate the privacy and dignity of their students no matter how trivial the suspected offense. I think the best way to protect school budgets is for school boards to find officials who won't egregiously violate the rights of their students over trivial offenses.
- To follow up on this, it should also be noted that there's a significant overlap betwee the justices unwilling to countenance any fiscal remedy for violations of rights by school officials and justices who believe that we don't really need the exclusionary rule because juries will be willing routinely issue civil awards that will come out of the budgets of police departments. Sure. And why don't we also stipulate that cities can pay for these judgments with the proceeds from unicorn farms!
- Obviously, choosing a Supreme Court justice involves a complex set of criteria. But I would suggest that one non-negotiable factor for President Obama should be that any nominee be able to distinguish between wearing gym shorts and being strip-searched. This would at least make him or her an improvement over President Clinton's second appointment.
