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The Obama Administration Explains When Advil Strip Searches Are OK
The Obama administration recently filed a somewhat encouraging amicus curiae brief in the Supreme Court case involving Savana Redding, the girl who was strip-searched when she was in eighth grade by Arizona public school officials looking for contraband ibuprofen. The brief (PDF) argues that the U.S. Court of Appeals for the 9th Circuit was right to conclude that the search violated Redding's Fourth Amendment rights but wrong to allow a lawsuit that seeks to hold the school officials personally liable. "The school officials are entitled to qualified immunity because the law was unclear at the time they acted," says the brief, which was signed by Acting Solicitor General Edwin Kneedler, joined by lawyers for the Education Department, the Defense Department, and the Office of National Drug Control Policy.
As I've said before, this is pretty much the best result that can reasonably be expected from this case. Given that the federal judges who have heard the case so far disagreed about whether the search was constitutional, it's hard to argue that Assistant Principal Kerry Wilson (who, let's face it, does not come across as a very bright guy) should have known it was not. Indeed, given the erosion of civil liberties the Court has endorsed in the name of the crusade for a drug-free America (particularly when minors are involved), it might very well ratify Wilson's decision to take the fight into Redding's underwear. I'm glad the Obama administration is urging it not to do so.
Still, Kneedler's reasoning differs from the 9th Circuit's in a couple of troubling ways. While the appeals court suggested that a highly intrusive search like this one requires an especially strong justification, Kneedler says the standard for public school searches, no matter how intrusive, should be "reasonable suspicion"; the problem in this case, he says, is that "the circumstances the school officials confronted...did not furnish reasonable suspicion that respondent was hiding those pills in her underwear or on her naked body." Kneedler also argues that the 9th Circuit "improperly substituted its own judgment for that of the school officials, as reflected in a written school rule, about whether banning possession of the pills at issue was necessary to prevent immediate risks to health or safety." Under the relevant Supreme Court precedent, he says, "the school's promulgation of a health-or-safety rule reflects its judgment that violations of the rule represent a danger to the school community, and courts should not second-guess that determination."
The implication seems to be that even the stupidest application of the most moronic "zero tolerance" policy is beyond judicial review, as long as searches aimed at enforcing that policy are based on reasonable suspicion. If a school banned bananas because students might slip on their peels and injure themselves, searching a student's pants would be OK as long as there were grounds to believe he had a banana there. If the school widened the ban to include all fruit, it would be presumptuous for courts to draw distinctions based on potential slipperiness.
To bring it back to this case, a judge would be engaging in impermissible second-guessing, according to Kneedler, if he said, "You strip-searched a 13-year-old girl because you thought she might have Advil? You've gotta be kidding me!" In Kneedler's view, the only relevant question is whether there was a good reason to believe the girl had hidden Advil in her crotch or cleavage, not whether it would constitute any sort of immediate threat to anyone's health or safety if she had.
Defending this egregious invasion of privacy, the school district says it is "on the front lines of a decades-long struggle against drug abuse among students." Which evidently includes unauthorized relief of headaches and menstrual cramps. "Remember," one of the district's lawyers told ABC News last year, "this was prescription-strength ibuprofen." This is not the sort of expertise to which courts should be deferring.
The 9th Circuit's decision is here (PDF). The administration's amicus brief is here (PDF). Other briefs in the case, Safford Unified School District v. Redding, are available here. Previous Reason coverage of the Redding case here, here, and here. Oral arguments are scheduled for April 21.
|3.26.09 @ 3:44PM|#
Given that the federal judges who have heard the case so far
disagreed about whether the search was constitutional, it's hard to
argue that Assistant Principal Kerry Wilson (who, let's face it,
does not come across as a very bright guy) should have known it was
not.
I don't expect public school administrators to be Constitutional
scholars but I do expect them to know the difference between right
and wrong.
SpongePaul|3.26.09 @ 3:55PM|#
all i can say is ...... .... .. speachless absoulutly F'ing speechless
|3.26.09 @ 4:04PM|#
This is why Madison wrote the Second Amendment. Because when
someone strip searches a 13 year old girl for possessing something
she should be allowed to possess, someone deserves to be
shot.
I think he specified this in one of the Federalist Papers. I think
it was Number: Don't touch my daughter, Dead Man.
|3.26.09 @ 4:08PM|#
Sounds like an affirmative defense for ogling
13-year-olds.
"I had a reasonable suspicion officer. And I'm the
principal!"
Fucking sickening.
kinnath|3.26.09 @ 4:13PM|#
There is a peculiar feature of wise and educated people. They
have the ability to rationalize behavior that the typical
five-year-old could tell you is just plain wrong.
The school employees should have been arrested on sexual assault
charges. There should be no immunity against civil proceedings. If
the judicial system says otherwise, we are approaching the need to
replenish the tree of freedom.
New World Dan|3.26.09 @ 4:20PM|#
Oh, hell, people lose all sense when a school gets involved in things like this. If a cop strip searched a 13 year old girl looking for advil, this case would have already been settled in favor of the plaintiff. And you don't search/interrogate kids without contacting their guardian. Mark this up as one more reason government run schools are a bad idea.
|3.26.09 @ 4:26PM|#
I remember a time when alleged violations of the 4th amendment
were met with painstaking scrutiny and deference to the alleged
victim.
Now it seems that, especially with young people, the standard is
something like "so I raided your locker, went to your house, shot
your pets, and searched your orifices with a broomstick. The burden
of proof is on you to tell me why that's a violation!"
|3.26.09 @ 4:31PM|#
Unfortunately, we still have no information about "..When Advil Strip Searches Are OK", contrary to this article's title. The brief filed by the Administration doesn't specify that, and neither does the 9th Circuit's decision. Both agreed that the search violated the girl's 4th Amendment rights. So ... when exactly is it OK?
|3.26.09 @ 4:34PM|#
Mark this up as one more reason government run schools are a
bad idea.
I don't see how that has anything to do with it. You think there is
more liberty in a private school? Aren't government administrators
subject to much more scrutiny?
|3.26.09 @ 4:40PM|#
If a school banned bananas because students might slip on
their peels and injure themselves, searching a student's pants
would be OK as long as there were grounds to believe he had a
banana there.
What about pointed sticks?
|3.26.09 @ 4:43PM|#
the law was unclear at the time they acted
I'm calling bullshit on that one. The fourth amendment isn't
written in Greek, and neither are the state's child molestation
statutes.
-jcr
Parochial Pop|3.26.09 @ 4:43PM|#
Aren't government administrators subject to much more
scrutiny?
I declare with 100% confidence that someone this ignorant would not
have been hired as a private school principal.
Those folks face actual consequences if they enrage parents.
|3.26.09 @ 4:44PM|#
And I highly doubt private school administrators would be extend qualified immunity.
anarch|3.26.09 @ 4:48PM|#
Tony, parents who approve this style of pedagogy should be at liberty to hire a strip-searching principal and pay his salary themselves. The rest of us shouldn't be forced to do so.
The Angry Optimist |3.26.09 @ 4:49PM|#
There may or may not be more "liberty" in a private school,
Tony, if you carry a narrow definition of liberty. However, what
there is in a private school, if this happened, the parents would
have the liberty to file suit. Also, if a school
screwed up in this fashion, parents have the
liberty to stop paying for that school's
operation.
As it stands now, there is no liberty to recover damages and there
is no liberty to cease funding de facto molestation.
In a private system, there would be a range of school options, from
hippy-dippy, wear-and-say-what-you-want college-like schools to
Catholic-schools on steroids, so trying to evaluate private v.
public school "liberty" is a non-starter.
|3.26.09 @ 4:52PM|#
The brief filed by the Administration doesn't specify
that,
Actually, it does.
It says strip searches are OK whenever a school official claims to
have a reasonable suspicion that a zero tolerance policy of any
kind may have been violated. No warrant, no contacting the parents,
no nothing. Just peel off, dearie, and wiggle your undies around
for us.
Oh, and in the highly, highly unlikely event that this unbelievably
lax standard is violated, no holding anyone personally
responsible.
That whole "Well, at least Obama will be better on civil liberties"
fig leaf is wearing awfully thin, isn't it?
Elemenope|3.26.09 @ 4:55PM|#
RCD --
This whole "I expect him to unilaterally repeal the doctrine of
official immunity yesterday!" thing has already worn thin.
|3.26.09 @ 4:55PM|#
I'm still wondering why so many fauxtarians stooped to voting
for this guy. Even some self-proclaimed anarchists were registering
to vote for the very first time just so they could pull the handle
for Hope® and Change™.
If you were going to vote, and couldn't stand McCain, Paul, Barr,
Baldwin, Keys, Nader or McKinney, at least you could have written
in Mickey Mouse! Sheesh.
The Angry Optimist |3.26.09 @ 4:55PM|#
I don't know what I'm going to do when I have children. Now I
have to teach them "It doesn't matter who says to take off your
clothes...just say no...even if it's the authorities".
Perfect.
Xeones|3.26.09 @ 4:59PM|#
Speaking as the dad of a little girl, i think it shows incredible self-restraint on the part of Savana's parents that Assistant Principal Kerry Wilson is still drawing breath. Were i in their shoes, that would not be the case.
|3.26.09 @ 5:02PM|#
TAO,
My current tack is to teach the kiddo to politely insist on calling
the police. I don't trust the police either, but I hope the
escalation might convince the school to contact me.
Thin hopes, I know, but I'm at a loss otherwise.
|3.26.09 @ 5:08PM|#
That whole "Well, at least Obama will be better on civil
liberties" fig leaf is wearing awfully thin, isn't it?
Is it? If it were McCain or Bush as POTUS, what kind of brief would
they have filed? Would they have argued that the search was
improper and violated her rights?
I think they would have said the search is absolutely appropriate
and that her rights weren't violated. So yes I think Obama is
better (marginally better, but better nonetheless).
|3.26.09 @ 5:16PM|#
If it were my daughter, this would be a death penalty case. If
some pervert teacher strip searched my 13 year old, I would put a
bullet in their heads and asked questions later.
What is appalling about this is not so much that it happened, but
that it happened and the school is so arrogant that it would fight
all the way to the Supreme Court to keep from admitting they are
wrong about anything. Honestly, is there anything a school could do
that they would admit was going too far?
Paul|3.26.09 @ 5:40PM|#
"Remember," one of the district's lawyers told ABC News last year, "this was prescription-strength ibuprofen."
Now, like the previous thread on how bright doctors must be because
it's like, really hard to get into med-school, let's have a
discussion about how tough it is to get accepted into law
school.
Paul|3.26.09 @ 5:41PM|#
Is it? If it were McCain or Bush as POTUS, what kind of
brief would they have filed?
What the school district wants to know is, what kind of briefs are
your daughters wearing?
|3.26.09 @ 5:43PM|#
Keep feeling Tom, there is a figleaf there somewhere. You are really reaching. This case in inexcusable and if you think that obama isn't in effect as bad as any position, you are living in denial. Stop falaciating Obama.
MNG|3.26.09 @ 5:54PM|#
Where's all the usual conservative outrage at the 9th,
huh?
Maybe they could let us know what their favs would do in this case,
like WWAD (What Would Alito Do)?
http://caselaw.lp.findlaw.com/data2/circs/3rd/024532p.pdf
MNG|3.26.09 @ 5:55PM|#
John
Let's hear if for the 9th Circuit, huh? C'mon John, hell yeah for
the 9th!
Cabeza De Vaca|3.26.09 @ 5:58PM|#
"let's have a discussion about how tough it is to get accepted
into law school."
I don't think it is intelligence, so much as having any sense of
right & wrong. When you put your job ahead of the rights of a
13 year old girl, not to be strip searched & molested. You have
become a moral monster. If there is a hell, I hope pieces of shit
like this principal & lawyer burn in it.
MNG|3.26.09 @ 6:03PM|#
ChicagoTom
What would a McCain brief have been like? Well, McCain lavished
praise on Alito,
http://www.usatoday.com/news/politics/election2008/2008-05-06-mccain-judges_N.htm
and here is Alito's fun quote on this issue (just for conservatives
like John):
Justice Alito
"In sum, the District Court erred in
denying the defendants' motion for
summary judgment. I share the majority's
visceral dislike of the intrusive search of
John Doe's young daughter, but it is a sad
fact that drug dealers sometimes use
children to carry out their business and to
avoid prosecution. I know of no legal
principle that bars an officer from searching a child (in a proper
manner) if a
warrant has been issued and the warrant is
not illegal on its face."
MNG|3.26.09 @ 6:06PM|#
Another fun fact: the girl strip searched in the case where
Alito approved (he disagreed with noted civil libertarian
Chertoff!!!) was TEN years old.
Conservative judges: gotta love 'em.
|3.26.09 @ 6:16PM|#
Keep feeling Tom, there is a figleaf there somewhere. You
are really reaching.
How exactly am i reaching?
By stating the obvious? That Bush or McCain would have filed a
brief that went the other way? I believe they would have said that
the search wasn't a violation of her 4th amend. rights.
You know who is reaching? People like you and RC Dean who want to
pretend that Obama is not at all better when it comes to civil
liberties/rights just because he isn't where you would prefer him
to be. (And don't think that irony of you of all people -- who
believes in indefinite detentions and denying access to courts for
terror suspects -- being pissed about Obama not doing enough for
civil rights violations is lost on me)
Like I said...he is marginally better. (And by no means would I
call him "good" or even "acceptable" on most of these issues) . The
search was unacceptable and Obama took that position -- now whether
the perpetrators should be able to be sued is not as clear cut and
although I personally believe that the administrators should not be
granted immunity for this, it is not a completely unreasonable
position to believe the opposite in this case.
Now if you would like to offer your opinion why you think Bush or
McCain would take a similar position as Obama did in this case
please feel free to state so, otherwise STFU u partisan hack.
Neu Mejican|3.26.09 @ 6:38PM|#
RC Dean,
I concur with Chicago Tom on this one.
You're just blowing smoke up your own ass with that.
Neu Mejican|3.26.09 @ 6:41PM|#
BTW,
As a someone who has worked in schools for most of my career...you
don't need to go all the way to the constitution to know that this
was wrong. I have never worked in a district that would not have
required a parent to be present for the search in a case like
this...and it will be right there in the policy manual.
The people involved should be fired for incompetence, that includes
the nurse who conducted the search.
|3.26.09 @ 6:42PM|#
I have never worked in a district that would not have
required a parent to be present for the search in a case like
this
That's the part that puzzles me the most about this case.
Children can't even be questioned by the cops without a guardian
present, but some school administrator can strip search a child
without even notifying their parents?
How is that even possible?
|3.26.09 @ 6:42PM|#
Sorry, RC Dean ... not quite right. Quoting from the
brief:
I. The court of appeals correctly concluded that the search of
respondent violated the Fourth Amendment but applied an erroneous
standard in reaching that result
A. Targeted searches in the public schools must be supported by
reasonable suspicion and, where they are particularly
intrusive, must meet specific requirements
1. In T.L.O., this Court concluded that the "reasonable suspicion"
standard properly accommodates the unique considerations in the
public school context
2. T.L.O. is properly construed to impose two
specific limitations on the conduct of a highly intrusive student
search
B. The search in this case did not satisfy the T.L.O.
standard because petitioners lacked reasonable suspicion
that the contraband was hidden in a location that a strip search
would reveal
C. The Ninth Circuit's flawed approach creates a Fourth
Amendment standard that conflicts with T.L.O. and is unacceptably
indeterminate
II. The school officials are entitled to qualified immunity because
the illegality of the search was not clearly established
=end quote (my emphasis)=
I will retract my previous statement regarding a complete absence
of "exactly" "When Advil Strip Searches Are OK". I will, however,
modify it to muse at the bald-faced temerity of the headline, when
the Administration's brief, in fact, says that the 9th Circuit
erred and that the search should not have been considered
to be legal under the "reasonable suspiscion" test.
Neu Mejican|3.26.09 @ 6:47PM|#
R C Dean | March 26, 2009, 4:52pm | #
The brief filed by the Administration doesn't specify that,
Actually, it does.
It says strip searches are OK whenever a school official claims to
have a reasonable suspicion that a zero tolerance policy of any
kind may have been violated. No warrant, no contacting the parents,
no nothing. Just peel off, dearie, and wiggle your undies around
for us.
Having just read the brief, I can add...
RC Dean, you're full of shit on this one.
|3.26.09 @ 7:11PM|#
I particularly like the brief's support for a very Libertarian
principle:
Teachers and school administrators are not law enforcement officers, and a multi-variable test that shifted depending upon the circumstances of each search would require them to discharge "a task for which they are ill prepared, and which is not readily compatible with their vocation." Vernonia, 515 U.S. at 664. Indeed, it was precisely those considerations that prompted this Court in T.L.O. to reject a requirement of probable cause. 469 U.S. 343 (reasoning that adoption of the "reasonable suspicion" standard "will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense").
(my emphasis, again)
And therein lies the Libertarian problem. However sweet it may
sound, and I dearly love the sound of it, when left up to each
individual, degrees of "reason and common sense" will vary greatly,
and do not provide the stability provided by laws that address the
same issues. This case is an example.
|3.26.09 @ 7:38PM|#
James Butler,
Do you not understand that someone acting under the cover of a
government position is acting in the same manner as a police
officer? If they thought a search needed to be undertaken, they
should have called in the police and allowed the officers to make
the judgment regarding the legality of the search. Douchebags like
you probably think that if my employer thinks I might have taken
cash from the register they can strip-search me without fear of
recourse.
|3.26.09 @ 7:41PM|#
"this was prescription-strength ibuprofen."
Just what drug the idiots thought the child might have on her is
utterly irrelevant. It could have been 100% uncut heroin, and that
wouldn't change the fact that it was still merely
alleged.
-jcr
|3.26.09 @ 7:41PM|#
Hey, man ... I didn't write the brief or the laws going back 20 years that support it. Why don't you read the brief yourself and try to think reeeal haaard about what it means for you and your over-eager employer, hm?
|3.26.09 @ 7:42PM|#
Douchebags like you probably think that if my employer
thinks I might have taken cash from the register they can
strip-search me without fear of recourse.
What? You mean all the porn videos that are scripted on precisely
that premise are wrong?
-jcr
|3.26.09 @ 7:44PM|#
Oh man! LOL! Now I've got to hunt down porn that uses hairy adults as students in a public school strip search sexfest! Pass the lubricant!
Cabeza De Vaca|3.26.09 @ 8:02PM|#
"And therein lies the Libertarian problem. However sweet it may
sound, and I dearly love the sound of it, when left up to each
individual, degrees of "reason and common sense" will vary greatly,
and do not provide the stability provided by laws that address the
same issues. This case is an example."
What the fuck are talking about? Libertarians wouldn't allow strip
searches on children regardless of what the laws of the last 20
years say. So there is no libertarian problem.
|3.26.09 @ 8:06PM|#
The search was unacceptable and Obama took that position -- now whether the perpetrators should be able to be sued is not as clear cut and although I personally believe that the administrators should not be granted immunity for this, it is not a completely unreasonable position to believe the opposite in this case.
Practically speaking he is no better. The fact that he thinks the
search was wrong is of little use when he opposes any legal
consequences for those responsible for the search. Typical Obama:
all bark and no bite towards those who violate our rights. Just
like with telecom immunity and the warrantless wiretapping
program.
|3.26.09 @ 8:10PM|#
James Butler,
Libertarians oppose drug laws and public schools, so this case
wouldn't have happened under a libertarian regime. It's hard to
imagine any case where a law supported by libertarians would
require strip searching a 13 year old girl to enforce.
|3.26.09 @ 8:10PM|#
JB,
No, but my son is. I'm not in any danger of the hypothetical
situation I proposed, but it's cute that you thought I was. I can
only suggest you re-read the Fourth Amendment and then get back to
the adults as to how much prior case law has either strengthened or
diminished the Constitution.
|3.26.09 @ 8:15PM|#
Hey, man ... I didn't write the brief or the laws going back
20 years that support it. Why don't you read the brief yourself and
try to think reeeal haaard about what it means for you and your
over-eager employer, hm?
Having been an employer in a retail establishment myself, and
having my livelihood depend on knowing what searches would open me
up to legal liability, I can say confidently that you're full of
shit. Even going through a girl's purse with her watching would be
considered cause for a lawsuit (the difference being that I
couldn't hide behind sovereign immunity of course).
|3.26.09 @ 8:19PM|#
John-David: Hint: You probably aren't a student at a public
school.
Ah. So by complying with the compulsory schooling laws, you consent
to giving up your 4th amendment rights? That's a handy
workaround!
Fluffy|3.26.09 @ 8:38PM|#
Hey James Butler, you stupid ass -
The administration brief does, in fact, specifically and explicitly
outline the circumstances in which a strip search of a 13 year old
[or a child of any age, actually] would be OK - and it does so in
the very section you choose to highlight, you asshole.
The brief says, in a section you personally quote:
B. The search in this case did not satisfy the T.L.O. standard
because petitioners lacked reasonable suspicion that the contraband
was hidden in a location that a strip search would
reveal
This means that according to the terms of this brief, if the
petitioners had NOT lacked reasonable suspicion, the search would
have been OK.
This means that the headline does not demonstrate even the least
little bit of "temerity", but is absolutely accurate: the brief
explains when strip searches of schoolchildren by principals and
teachers are OK.
And therein lies the Libertarian problem. However sweet it may
sound, and I dearly love the sound of it, when left up to each
individual, degrees of "reason and common sense" will vary greatly,
and do not provide the stability provided by laws that address the
same issues. This case is an example.
You would have to look long and hard to find any libertarian who
thinks that persons exercising the police power [and make no
mistake about it, a public employee conducting an involuntary strip
search in the pursuit of contraband is exercising the police power]
should be guided by their own discretion and not by law. So there's
actually no "libertarian problem" here at all.
Neu Mejican|3.26.09 @ 10:02PM|#
Fluffy,
Correct me if I missed it/misread it, but the brief places a higher
bar on searches than you suggest. It also requires an immediate
danger...which makes a search like this one unreasonable even if it
were to meet the other provisions.
No?
Did I misread that?
Neu Mejican|3.26.09 @ 10:05PM|#
Here it is...
A strip search in the public schools is therefore permissible only if there is reasonable suspicion both that the student possesses contraband and that such a search will reveal it. Second, T.L.O. limits strip searches to the category of infractions that implicate rules designed to prevent immediate
risks to health or safety.
anarch|3.26.09 @ 10:15PM|#
immediate risks to health or safety
Such as that the child might swallow, or produce, import,
manufacture, compound, deal in, dispense, sell, or distribute God
knows how many stashed ibuprofens.
I fear we're still SOL.
T|3.26.09 @ 10:47PM|#
limits strip searches to the category of infractions that
implicate rules designed to prevent immediate risks to health or
safety.
And you honestly think drugs don't qualify? How sweet. What country
do you live in?
|3.26.09 @ 11:22PM|#
NM, this is the same administration that just sicced the DEA on a medical marijuana dispensary because they messed up their sales tax reports and thus fell into the category of being "inconsistent with state laws". You pretty much have to interpret any statement coming out of that den of fiends in the most statist way possible.
|3.27.09 @ 1:33AM|#
I think he specified this in one of the Federalist Papers. I
think it was Number: Don't touch my daughter, Dead Man.
Yes, if this had been my daughter the debate would be whether or
not I had committed justified homicide in removing one Assistant
Principal from the gene pool, not whether or not he was
substantially confused about the appropriateness and
Constitutionality of his strip-searching my child.
|3.27.09 @ 2:33AM|#
so you can't be a child molester and become a principal? But you
can be a principal then become a child molester? The rule of law,
you gotta love it.
Wow, molesting children....all in the name of, maybe, keeping
people from getting high.
So, the opionion is going to read something like, "sure we dislike
pedophilia,...but, ABC v. XYS, says that we gotta allow the
pedophilia. Else, stari decisis will crumble."
I get the distinct feeling that this SCOTUS would approve of the
Nuremberg defense. After all the law trumps all.
PFJ|3.27.09 @ 3:27AM|#
"Both agreed that the search violated the girl's 4th Amendment
rights. So ... when exactly is it OK?"
This is an easy one. Never.
|3.27.09 @ 10:37AM|#
You know who is reaching? People like you and RC Dean who
want to pretend that Obama is not at all better when it comes to
civil liberties/rights just because he isn't where you would prefer
him to be.
C-Tom, Neu Mejican - I have no idea what kind of brief that would
have been filed by a McCain DOJ. I doubt it would have been any
better, but I honestly don't see how it could have been any
worse.
Look past the PR to what the Obama DOJ actually argued:
While the appeals court suggested that a highly intrusive
search like this one requires an especially strong justification,
Kneedler says the standard for public school searches, no matter
how intrusive, should be "reasonable suspicion";
They disagreed that a higher standard was needed. They claim all
you need is a reasonable suspicion. Reasonable suspicion of what?
Any violation of a health or safety rule, and the courts are to
have no jurisdiction to examine the propriety of that rule.
Given that's the standard they are arguing for, their argument that
the school nonetheless violated her rights is pure PR.
Was there a health-and-safety rule? Yes.
Was there reasonable suspicion that she violated it? Yes. The brief
asserts to the contrary, but, doesn't set forth any standard for
reasonable suspicion that would really support that
assertion.
The garble about "immediate danger" is just that, given that the
brief also argues that the courts may not inquire into the
legitimacy of the rule that triggers the search.
At best, the administration brief is a hopeless, self-contradictory
muddle. Its internally contradictory, with the purported higher
standards in one section gutted in another section.
Its a PR exercise. It allows them to say "we oppose this" without
arguing for a rule that would stop anyone else from doing it in the
future.
Keep in mind, what really matters here isn't the resolution of this
case, but the rule they are arguing should be applied in all future
cases. And, at the end of the day, that rule stinks on ice.
Medic|3.27.09 @ 12:16PM|#
They strip searched a minor with out the presence of her
parents.
Regardless of the ambiguity of the law, that school and their half
witted administration is responsible for their actions. That school
Nurse should have said "no, no, no!"
They violated a young impressionable girl's safe privacy and
safety.
I'd like to see how much therapy and counseling this poor child has
had to endure.
That trust link has been severed. She won't be able to fully trust
any school authority now.
Good job people.
JFC.
Where is this world going?
anarch|3.27.09 @ 2:53PM|#
She won't be able to fully trust any school authority now.
= The only silver lining, but too hard-won, and at too young an
age, imho.
|3.27.09 @ 4:38PM|#
RCDean:
Was there reasonable suspicion that she violated it? Yes. The brief asserts to the contrary, but, doesn't set forth any standard for reasonable suspicion that would really support that assertion.
The brief asserts that there WAS reasonable suspicion that the girl
HAD broken the rule, based on her "friend's" ratting her out,
however it goes on to assert that there was NO reasonable suspicion
that a STRIP SEARCH would be required to reveal the location of the
contraband, because similar contraband had been discovered in the
POCKETS of the snitch. That's the violation of the "T.L.O.
standard."
And I'm not arguing for the validity of that position, I'm just
repeating what the brief says.
The garble about "immediate danger" is just that, given that the brief also argues that the courts may not inquire into the legitimacy of the rule that triggers the search.
You might prefer it if the government were able to challenge every
local rule's legitimacy? Not me. I prefer the government to trust
us to make appropriate local decisions, even if those decisions
could and would be flawed, as the one at issue here (no
prescription drugs at school, unless administered by the school
nurse) was, in some people's perspective.
Expand your imagination to include scenarios such as a 13-year old
girl bringing a stash of Ecstacy or Oxycontin pills to school to
sell to other students. This isn't about a rule targeting 13-year
old girls who bring some prescription ibuprofen to school, and then
fail to abide by school policy by handing it over to the school
nurse for administration during the school day. It's a much broader
rule, perhaps too broad, that was intended to respond to an earlier
situation that occurred at that particular school where a student
died of a prescription pill overdose while on campus.
I'm just applying some "reason and common sense".
jbean|3.27.09 @ 4:46PM|#
Children can be interrogated by Law Enforcement representatives with out the parents being present. I know this from personal experience.
Neu Mejican|3.27.09 @ 6:06PM|#
The rule used did not pass the "immediate danger" test referred
to in the brief.
You would need a reasonable suspicion of a student violating a rule
that covers immediate danger...this rule does not.
The brief would not allow for a strip search for ibuprofen at any
point...seems consistent enough to me.
|3.28.09 @ 10:47PM|#
Jacob, nice work on this article. Especially nice were the links
to the actual briefs and other relevant material. The references
make your work true journalism--not just hearsay. We readers can
read it for ourselves.
Thank you. This is a precedent I hope that Reason continues to do
with as many articles as they can.
|4.1.09 @ 3:47PM|#
This is for Chicago Tom;
What makes you think that the Bush administration would even have
commented? Do you believe that presidents should intervene in the
daily operation of the courts? Or in the treatment of students by
school administrators? If so, why? Is there any area that you
consider outside the concern of the current POTUS, whomever that
might be?
My email address is kruelhunter@aol.com if you care to reply.
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