Hey, Kids, Leave Stephen Breyer's Underwear Alone!

Yesterday the Supreme Court heard arguments about the circumstances in which it is constitutional for public school officials to strip-search a 13-year-old girl. The Court considered some vexing Fourth Amendment issues: Does the nature of the contraband the officials are looking for matter? What about the credibility of the tipster? Must the officials have specific reason to believe the contraband—in this case, ibuprofen—is hidden in the girl's underwear? But perhaps the most puzzling question raised during the oral arguments in Safford United School District v. Redding was this: What the hell went on at Justice Stephen Breyer's elementary school?

That mystery arose when Breyer was questioning Adam Wolf, the lawyer representing Savana Redding, the girl who was searched. Breyer suggested that Safford Middle School's assistant principal, Kerry Wilson, was not "totally out to lunch" in thinking Redding might be hiding the ibuprofen pills in her crotch or cleavage:

It seems to me like a logical thing when an adolescent child has some pills or something, they know people are looking for them, they will stick them in their underwear....

In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear.

At this point, laughter prompted Breyer to quickly add: 

Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience, not beyond human experience.

Less funny than Breyer's inability to remember whether his classmates stuck things in his underwear or their own is the likelihood that the Court will overturn the 9th Circuit's conclusion that the strip search ordered by Wilson violated Redding's Fourth Amendment rights. Even Justice David Souter, who initially suggested that a strip search for the equivalent of a couple Advil tablets was beyond the pale ("at some point it gets silly," he said), later supplied a justification for this seemingly disproportionate measure: The school district could say "it needs this sort of blanket classification rule—any drug, over the counter or prescription—because when a pill is found, they're not pharmacists, they don't know what it is, and therefore they've got to have a blanket rule or they simply cannot act effectively."

Except that in this case they did know, based on the pills' "IBU 400" markings, that they were dealing with a drug that did not represent any sort of imminent threat to students' health and safety, the protection of which is the rationale for the school's "zero tolerance" drug policy. Matthew Wright, the school district's lawyer, argued that "if an administrator...in their reasonable judgment, believes that any drug poses a potential health and safety risk, because they have the custodial and tutelary responsibilities for those kids,...it is best for this Court to defer to their judgment when they believe that certain rules are important and not second-guess those rules." It seems likely, based on the Court's earlier rulings dealing with student searches and the tenor of the oral arguments, that it will accept this argument, in which case the Fourth Amendment issue will hinge not on the nature of the contraband but on whether there was adequate reason to think it might be found in Redding's underwear.

Wolf, Redding's lawyer, noted that no had claimed she was hiding pills under her clothes, there was no history of students' "crotching" drugs at her school, and the district could find only "eight cases over the course of approximately 30 years in which contraband was found in those locations." He added that "it's sort of strange credulity to think that you would have loose pills concealed against a student's genitalia....I mean, there's a certain ick factor to this." Justice Antonin Scalia, by contrast, reasoned that Redding's innocence (she did not in fact have any drugs in her possession) justified the highly intrusive search:

You reasonably suspect the student has drugs. You've searched everywhere else. By God, the drugs must be in her underpants.

In fact, as Wolf noted, schools officials had not "searched everywhere else." Before looking in Redding's underwear, they did not even look in her desk or locker (or call her mother). In any event, a series a fruitless searches would have made a less zealous Advil hound increasingly skeptical of the tip implicating Redding, which came from a fellow student who was eager to shift the blame after being caught with pills (in her pockets, by the way, not her underwear).

Still, things could be worse. And maybe they will be. Wright, the school district's lawyer, initially suggested it would unconstitutional for schools to enforce their zero-tolerance policies with body cavity searches, because there is no record of students' hiding drugs in their vaginas or rectums. But later he backtracked, saying the real problem is that school officials are not properly trained to conduct such searches. When Souter asked him whether body cavity searches would be OK once administrators and teachers had undergone the requisite training, Wright said "that's to be left up to the local governments."

A transcript of the oral arguments is here (PDF). My last post on this case, which includes links to earlier coverage, is here.

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  • Warty||

    Further down the rabbit hole we go.

  • ||

    Justice Antonin Scalia, by contrast, reasoned that Redding's innocence (she did not in fact have any drugs in her possession) justified the highly intrusive search:



    Justice Scalia asked a question that allowed Redding's lawyer, Wolf, to respond and paint the search as absurd by noting that they had not "searched everywhere else." Whether you think he believes in the hypothetical he posed or whether he asked it in order to allow the response is presumably another issue. It does seem that the question helped Redding, though.

  • ||

    While the assholes were down there, did they check to ensure her virginity too? Don't want some poor bloke to get damaged goods you know.

    Christ.

  • ||

    there is no record of students' hiding drugs in their vaginas or rectums.

    There is no *recorded case* merely because they have not bothered to look. Clearly an egregious dereliction of duty.

    Mandatory daily (or more frequent) body cavity searches must be instituted, immediately!

  • ||

    Except that in this case they did know, based on the pills' "IBU 400" markings, that they were dealing with a drug that did not represent any sort of imminent threat to students' health and safety

    You are giving these cretins way too much credit, Jacob.

    I wonder if a ruling against Redding will lead to more strip searches which will lead to enough parents freaking out to stop it? Or if there may be a Kelo effect, where state and local governments outlaw the strip searching just because there's a lot of public outrage?

    It cannot hurt your chances for re-election as state senator to say "this ruling is insane and I will sponsor legislation so that school officials cannot molest your children!"

  • matt2||

    "strange credulity" = AWESOME

    I know we got to keep "tow the lion" but can we keep this one too? Please?

  • ChrisO||

    Home schooling looks better by the day...

  • ||

    You reasonably suspect the student has drugs.

    Based on uncorroborated hearsay evidence, from a student who actually does have contraband in her possession, and who has been "encouraged" to save herself by ratting out her "supplier".

    Any judge in America would have signed off on that warrant.

  • the innominate one||

    if strip-searching adolescents is outlawed, only outlaws will strip-search adolescents

    if strip-searching adolescents is not outlawed, I'm getting a job as a high school administrator

  • ||

    Cavity searches? will they still be virgins afterwards?

  • ||

    How about we have a zero tolerance policy for school officials asking students to take their clothes off?

    Are we gonna let them search students' bedrooms for contraband on such flimsy suspicions too?

    I guess I forgot about that little * at the bottom of the bill of rights that reads "*except when it's for the children."

  • T||

    Any judge in America would have signed off on that warrant.

    Yup. Besides, I thought we already knew the 4th amendment doesn't apply to the kiddies.

  • ||

    the io, that basically was what I had written before thinking better of it.

  • BeesInTheBrain||

    Having school age children is a fun and interesting adventure. So far we have had a child cussed out and physically assaulted by a teacher and been told that it was an appropriate response by the teacher. Been told another child would be held out of class until he was given Ritalin or another similar medicine. Had a teacher call our house drunk to complain about the same child. Had a child almost suspended from school for "stealing" a hamburger from the lunch line until he got a note from another kid confirming that he had given him his hamburger. Received a letter from the school threatening legal action under truancy laws because I hadn't excused an absence. The list could go on and on. Personally I believe schools are one of the most dangerous government institutions out there. Basically unlimited power, a captive audience and absolutely no over site. They can do what ever they want and other than home schooling your child, which has it's own pitfalls, there is absolutely nothing you can do to protect them.

  • the innominate one||

    James Ard - I don't let common sense and good taste stop me.

    :)

  • High Every Body||

    Richard Vernon: What if your home... what if your family... what if your dope was on fire?

    John Bender: Impossible, sir. It's in Johnson's underwear.


    See? He was onto something.

  • ||

    Bees, parents can't make excuses in our system, only doctors.

  • ||

    I think Breyer meant that he stuck things in his own underwear. Presumably he is referring to his hand.

  • ||

    See? He was onto something.

    So Breyer went to Shermer High School?

    "I taped Larry Lester's Stephen Breyer's buns together."

  • ||

    In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK?

    Because there's no difference, no difference at all, in you searching your house for something you mislaid, and a cop searching your house for evidence of a felony.

    Christ, what a fucking idiot.

  • the innominate one||

    Epipen - I thought it was glue, though I've forgotten the movie. Please remind me.

  • ||

    What is this 4th Amendment of which you speak?

    I honestly believe it should be removed from the Bill of Rights because it is irrelevant, and has been for some decades.

  • ktc2||

    Oral arguments?

    I'd suggest they were anal arguments at best.

  • ||

    The pill could have been cyanide, anthrax powder in compressed form, or some sort of nano-bot delivery system. How is a school administrator to know?

    To be on the safe side, they should have just shot her.

  • ||

    Incompetence is no impediment!

  • BeesInTheBrain||

    On a slightly related note am I the only one who is wondering if the FBI agents who were suspended for spying on teen girls changing aren't kicking themselves in the butt for not saying "We had reports of them sharil Midol and wanted evidence on where they were hiding it."
    http://www.postchronicle.com/news/original/article_212224695.shtml

  • ||

    they should have just shot her.

    And stuffed her dead body in the furnace.

  • The Octobama||

    "In fact, as Wolf noted, schools officials had not "searched everywhere else." Before looking in her underwear, they did not even look in her desk or locker (or call her mother)."

    I heard that last night. They went straight to the panties.

    If that had been my daughter. I'd be in jail right now.

  • ||

    But later he backtracked, saying the real problem is that school officials are not properly trained to conduct such searches. When Souter asked him whether body cavity searches would be OK once administrators and teachers had undergone the requisite training, Wright said "that's to be left up to the local governments."

    So if the only thing stopping the state from molesting your children with full cavity body searches is training, I only have one question, who pays for the training? If the State does, what a hoot! "Hey pedophiles, not only will we let you molest these kids, no questions asked (as long as you can tie it to drugs...mmmm'kay), we will train you how to do it."

    If SCOTUS rules for the State, as far as I am concerned, they should be forever called the pedophile court.

  • Dave Krueger||

    When I was growing up, if you wanted to poke around kids naked genitals you had to either be a doctor or be playing doctor.

  • ||

    Epipen - I thought it was glue, though I've forgotten the movie. Please remind me.

    Andrew: I taped Larry Lester's buns together.

    Brian Johnson: That was you?

    Andrew: Yeah, you know him?

    Brian Johnson: Yeah, I know him.

    Andrew: Well, then you know how hairy he is. And when they pulled the tape off, most of his hair came off and some - some skin, too.

    Claire Standish: Oh my God.

  • ||

    In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear.

    So this is what goes for erudite jurisprudence for which I am supposed to hold respect what these stupid cocksuckers say? Is he serious? So Breyer, because you were a fucking freak of a child, that is going to justify spreading the labia of a tween looking for fucking ibuprofen?

    And Scalia:

    You reasonably suspect the student has drugs. You've searched everywhere else. By God, the drugs must be in her underpants.

    ...yeah, except when they aren't you stupid homophobic, pedophilic fuck.

  • Fun Quote of the Day!||

    Vice President Joseph Biden watches students perform the roles of "Dirt," "Rain," "Roots," and "Trees" at a tree-planting ceremony and concludes: ""Great job, trees. Dirt, you did a good job."

  • Dr. Shrink||

    "spreading the labia of a tween"

    I think this unnecissarily graphic description says a lot about you, Tony.

    Now tell us about her tight, sweet, little pink asshole. You know you want to.

  • ||

    Troy:

    As I said, it's silly to read into a question by a judge how they think or how they vote. Justices often ask hypothetical questions with which they don't agree in order to elicit a response. This happens particularly often when they feel that one side hasn't made its best response to an argument of the other side, and they want to prompt them to make it.

    I will note that Scalia was on the good side (search not allowed) of the 5-4 released today about searching a car. Note that the man had drugs.

    The usual civil libertarian wacky Stevens, Scalia, Thomas, Souter, Ginsburg five person majority. Like Kyllo.

  • ||

  • ||

    I think this unnecissarily (sic) graphic description says a lot about you, Tony

    1) It's Troy, not tony.

    2) That's the fucking point. Hello! We are talking about molesting kids for fucking ibuprofen.

    3) I have the balls to put in my email address douche bag.

    4) I didn't use any adjectives like tight, little, or pink....which makes your admonition way more descriptive than mine you stupid fuck.

  • Pop||

    "which makes your admonition way more descriptive than mine you stupid fuck."

    I think you both need help.

  • jtuf||

    You realize, if the student took a cell phone picture of the event, taking the picture would have caused a national uproar.

  • the innominate one||

    pervs!

  • creech||

    Why didn't the school administrators simply call the kid's parent(s) first? Watch her sit there and make sure she doesn't destroy evidence until the parent shows up and then get permission or not?

    Is it really unusual to think someone might hide something in one's underwear? My high school experience is that girls did hide stuff in their bras (and not just tissue paper!). One girl frequently hid her test cheat sheets there. Another I know of would put shoplifted items there, knowing the store gumshoe wouldn't pat her there if searched. Another held our phoney age i.d.s in her bra until needed. More regularly, girls kept mash notes, currency, phone numbers there when not carrying a pocketbook. How many times on tv comedies or in the movies have you seen a woman slip something in her bra so as to secret it from prying eyes?

  • razon||

    typos?

    Wolf, Redding's lawyer, noted that no --one?-- had claimed she was hiding pills under her clothes

    the school district's lawyer, initially suggested it would --be?-- unconstitutional

  • bubba||

    To play devil's advocate: If strip searches are explicitly banned, then kids *will* start sticking pills in their underwear. Contrary to the ick factor, girls could probably charge big bucks for previously concealed Advil...

    This is the fundamental problem with regulating the process (strip searches) and not the policy (zero tolerance for ibuprofen).

  • EscapedWestOfTheBigMuddy||

    Just thinking about this case send me so far into fight-or-flight mode that I get the shakes.

    And I don't have kids.

  • the innominate one||

    bubba - the decision could be rendered narrowly, avoiding the scenario you describe

  • ||

    At this point, laughter prompted Breyer to quickly add:

    The WaPo report claimed that Justice Thomas guffawed first, and others joined in. Perhaps Justice Breyer was trying to win the "get Justice Thomas to speak during questioning" contest.

  • ATF agent||

    Did you give them a full cavity search?

  • ||

    To play devil's advocate: If strip searches are explicitly banned, then kids *will* start sticking pills in their underwear.

    I could live with that. Easy.

    This is the fundamental problem with regulating the process (strip searches) and not the policy (zero tolerance for ibuprofen).

    Very true.

  • EscapedWestOfTheBigMuddy||

    To play devil's advocate: If strip searches are explicitly banned, then kids *will* start sticking pills in their underwear.



    So?

    If a school administrator is sure of this he/she/it can call the police, and they can make the arrest-and-search or don't-arrest decision.

    That's bad enough.

    But they is no way in a hell that an educator should ever be making and implementing that decision.

    Do you remember the kinds of people who ran your schools? Both of my secondary schools were run by ex-jocks whose primary interest was still the godbedamned football team. Sure they had the persistence to get a E.D, but in my high school discipline was the purvey of
    assistant principles who couldn't even manage that.

    Is anyone willing to have these people making that kind of decision for their minor kin?

  • Alan Vanneman||

    Is there anything more depressing than the spectacle of these revolting old farts pawing through this poor girl's underwear? Talk about Susanna and the Elders! Scalia has struck a few blows for civil liberaties, but listen to him here, as reported in the NYT:

    "You search in the student's pack, you search the student's outer garments, and you have a reasonable suspicion that the student has drugs," [Scalia] said. "Don't you have, after conducting all these other searches, a reasonable suspicion that she has drugs in her underpants?"

    "You've searched everywhere else," Justice Scalia said. "By God, the drugs must be in her underpants."

    And these are our wise men. Yeah, you guessed it, body cavity searches all around, with Roberts' gavel, sideways.

  • ||

    While I'm totally rooting for the student in this case, aluminum foil eliminates a lot of the "ick factor".

  • Paul||

    "it needs this sort of blanket classification rule-any drug, over the counter or prescription-because when a pill is found, they're not pharmacists, they don't know what it is, and therefore they've got to have a blanket rule or they simply cannot act effectively."



    The fucking school nurse wouldn't be able to identify an Ibuprofin pill? Ladies and gentlemen, I submit to thee: it's again a good time to start fondling the firearms.

  • Paul||

    To play devil's advocate: If strip searches are explicitly banned, then kids *will* start sticking pills in their underwear.

    What's your point? There's no strip search rule at Paul's castle, yet by god, if the po-po suspected that the P-Dogg was holding, I'd probably get a strip search. What am I really trying to say?

    If school officials suspect drug activity, they aren't law enforcement. They can go through the same channels everyone else does. Call the police, let the police determine if there's reasonable grounds for a search, and go from there.

    If I were to find out that school officials strip-searched my daughter, I'd take a flamethrower to the school.

  • ellipsis||

    All in all it's just another brick in the wall.

  • ||

    Narcotic mules are known to ingest drug packets to get past the cops. Once we've finished with the strip searches and body cavity searches, I think we next need to perform intensive imaging with x-ray and CT to make sure the drug isn't hidden in the GI tract. OMG, maybe they SWALLOWED the ibuprofen?! Perhaps the FIRST step should be gastric lavage to check stomach contents before the pill is absorbed and evidence lost!!

  • ellipsis||

    And BTW, whether or not underwear can be searched is a very serious matter, but beside the point. Menstrual cramps can be nasty (so I've observed) and denying relief from them in the name of some distant WoD is inhumane.

    A high school diploma is worth two sacks of shit in this country anymore. Why let your kids be subjected to this crap for said diploma? Private school or homeschool all the way.

  • Jonas||

    2 things:

    I can imagine this becoming the topic of a pornographic film. Some teen girl gets called into the principal's office where she's accused of hiding drugs in her coochie so the principal has her do a strip routine and declares her innocent after thoroughly... umm... "searching" her vagina. And then another scene where she takes him to the SCOTUS and one of the justices has a flashback to his school days when beautiful young women stuck their hands down his pants. And I'm sure they'd come up with a nice pun of a title, but I can't imagine what it would be.

    Also, I'm increasingly convinced that the only reason this case made it to the SCOTUS is so that 8 old men would have an excuse to sit around listening to details about some pre-teen's genitals at length.

  • anarch||

    Okay, who can link us to a pro-cop site or a pro-SCOTUS site or a pro-assistant-principal or an anti-ibuprofen site where the comments champion this policy?

  • Suki||

    Shakes little fist at HEB! [Naga, did I do that right?]

    I was all in the Breakfast Club groove last night and did not see this post until tonight!

  • ||

    Justice Breyer, is that a bottle of ibuprofen in your pants, or are you just happy to see me?

  • ||

    I could never be an attorney before the supreme court. I wouldn't have the self-restraint to keep from screaming at them.

    -jcr

  • ||

    I really wouldn't suggest that it is right to assassinate a SC justice who thinks diving into a 13 year old girl's panties is justifiable under ANY FUCKING circumstances. But I certainly would have to think that it might constitute justifiable homicide if I was on the jury.

  • ||

    Is there ANY case in which it would be reasonable for a school official to strip search a student?

    If an offense is that serious, shouldn't law enforcement officials be involved (even with all the problems THAT brings)?

  • Stagman||

    You can never tell which way a court or a judge is leaning based on the questions they ask. A hard question can either mean that 1) the judge is going to rule against the party he asked the question to or 2) he is going to rule in favor of them and the hard question is designed to give a good answer that the judge can use in his opinion.

  • Invisible Finger||

    The most entertaining thing in the world is when government tries to intellectualize its own stupidity.

  • ||

    Actually, it sounds like Scalia's comments were mostly over-the-top reducto ad absurdam "You gotta be kidding me"-style arguments, to show how ridiculous this sitution is.

    At least I hope so. Both he and Thomas have been pretty good to the 4th amendment recently, considering.

  • ||

    I read the transcript of the oral arguments, and only two justices indicated that they found the search over-the-top.

    And, compared to Redding's lawyer's work in the successful 9th Cir. en banc appeal, I think her attorney's performance didn't help her or the cause of liberty.

    I suspect that the search will be upheld.... but I'll be completely digusted and disappointed if it is.

  • chuanchuan||

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