Notes From D.R. | Random Thoughts on the Passing Scene

Supreme Court Justice Clarence Thomas has taken so many unfair shots over the past two decades that it seems strange when one hears legitimate criticism of the man. However, Thomas deserves the heat he has received for his bizarre dissent in a June 25 ruling concerning the rights of public school students.

Thomas was the only Justice who rejected the court’s logic in Safford Unified School District v. April Redding. The case concerned Redding’s daughter Savana, who was a 13-year-old honor student at Arizona’s Safford Middle School in the fall of 2003. Another student had accused Savana of distributing prescription-strength ibuprofen (Advil) in violation of school policy; the school’s assistant principal summoned Savana to his office and questioned her about the other student’s allegation. Savana denied the claim, and allowed the assistant principal and his female administrative assistant to search her backpack. After they failed to find any weapons of mass pain relief, the administrative assistant, acting on the assistant principal’s orders, took Savana to the (female) school nurse’s office; both women searched Savana’s outer clothing, but failed to find any Advil. “Finally,” Justice David Souter wrote in his majority opinion, “Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.”

Humiliated by the strip search, Savana informed her mother; she sued the school district and the administrators involved in the search, arguing that Savana’s Fourth Amendment rights had been violated. Federal judge Nancy Fiora ruled against the Reddings, as did a three-judge panel of the US District Court of Appeals for the Ninth Circuit; however, the full Ninth Circuit panel later ruled that the strip search was in fact a violation of Savana’s rights. The school district appealed to the US Supreme Court, which ruled 8-1 that the district crossed the line. (Souter and five colleagues also ruled that school administrators technically could not have known that the search was unconstitutional, though Justices John Paul Stevens and Ruth Bader Ginsburg dissented on this point.)

Souter correctly noted that “…the content of the suspicion failed to match the degree of intrusion. [The assistant principal] knew beforehand that the pills were…common pain relievers…He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills…Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. [School administrators] suggest, as a truth universally acknowledged, that ‘students … hid[e] contraband in or under their clothing’…[but] when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear…In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.”

Not so in Thomas’ mind. In his stinging (and unfortunately wrongheaded) dissent, Thomas argued that “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…”

While Thomas may have a point about the general need to limit the role of the courts when it comes to the establishment of public school policies and the enforcement thereof, he’s mistaken with regard to this case. If school administrators are implementing disciplinary policies that effectively violate students’ Constitutional rights, why shouldn’t judges second-guess those policies?

Thomas incredibly claimed that school administrators “…had reasonable grounds to suspect that Redding was in possession of prescription and nonprescription drugs in violation of the school’s prohibition of the ‘non-medical use, possession, or sale of a drug’ on school property or at school events.” What reasonable grounds? The word of one student, a student who was apparently disgruntled with Savana? Why would that student have automatic, undisputed credibility? (Thomas noted that another student had accused Savana of serving alcohol at a party, a claim the girl disputed. Again, is this enough to justify a strip search?)

Thomas wrote that “…The reasonable suspicion that Redding possessed the pills for distribution purposes did not dissipate simply because the search of her backpack turned up nothing. It was eminently reasonable to conclude that the backpack was empty because Redding was secreting the pills in a place she thought no one would look…Redding would not have been the first person to conceal pills in her undergarments…Nor will she be the last after today’s decision, which announces the safest place to secrete contraband in school.” Thomas evidently chose to ignore Souter’s point that it was not in fact reasonable to continue the search because “nondangerous school contraband does not raise the specter of stashes in intimate places.” Also, does Thomas really believe that, as a result of this ruling, public school children from California to Connecticut will start bringing all the drugs they can fit under their clothes to class? Seriously.

Thomas asserted that “Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment” before delving into a series of 1980s-era War on Drugs arguments of dubious relevance to this particular case. He also absurdly proclaimed, “By deciding that it is better equipped to decide what behavior should be permitted in schools, the Court has undercut student safety and undermined the authority of school administrators and local officials. Even more troubling, it has done so in a case in which the underlying response by school administrators was reasonable and justified.”

Thomas must have had a bad day. His dissent defends the concept of in loco parentis, but this concept is questionable when it comes to public schools. Do we really want public school administrators—some of whom may be motivated by prurience or prejudice—to have a unchallenged right to order strip searches for students based on unsubstantiated allegations of drug distribution?

Thomas remains an underrated Justice and a role model for conservatives of color, but his wisdom went missing in this case. Savana Redding was essentially raped without force, treated like a third-class citizen by overzealous, clueless school administrators. I never thought I’d say this about a conservative judge, but Thomas should have shown some empathy.