Excellent post. I wonder what happened to the rhetorical flourishes of the Tinker days, condemning the act of turning public schools into "enclaves of totalitarianism." Because in point of fact, when it comes to zero tolerance policies and common sense in discipline and security, they all too often are.

All I can say is that if something similar had happened to one of my sisters when they were 13 (many years ago), the big question for the courts would be whether to charge my father for murder, for manslaughter, or to give him a commendation...

I wouldn't tolerate murder, but if your father had punched the guy, hard, I'd vote to acquit.

Epee, I agree with your qualifications. In fairness to Wilson, he had two female employees do the search.

Poor Clarence Thomas. Only he is willing to fight the righteous battle to protect our children from the grave danger of teenage girls carrying Motrin around in their bras.

Epee, I agree with your qualifications. In fairness to Wilson, he had two female employees do the search.

Considering how prevalent cases of same-sex molestation/abuse of children are, I've always failed to understand why it's somehow assumed that making child strip in front of an adult of his/her own gender is any better than one of the opposite gender.

As a former teacher I am usually in Thomas's corner regarding his love for in loco parentis.

Not this time.

I love the way CT cited some prior SC boilerplate about the "war on drugs" near the conclusion of his dissent.

It is pretty embarrassing that the Supreme Court has even bought into that asinine, misleading terminology.

Question for the legals out there:

Now that it's been ruled upon, is it "clearly unconstitutional?"

I guess what I'm asking is that, going forward, with this ruling as law, then is qualified immunity out the window on future searches of this nature?

"Why is it so hard for the Court to understand that there is a distinction between bad policy choices and breaches of the Constitution? Is Thomas the only one who gets this?"

All 9 of the Justices "get this." In the area of civil liberties, Thomas simply has an incredibly restrictive view about what the Constitution actually prohibits, one not shared by most living human beings, including Antonin Scalia. Reasonable people can disagree about the reach of applications of Constitutional provisions, though in this case I'm tempted to suggest that Thomas is simply unreasonable.

-- is qualified immunity out the window on future searches of this nature? --
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Ahh, you've found the violation/remedy widget!
.
School administrators enjoy qualified immunity for searches of this nature.
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FWIW, Congress pulls the "hollow law" stunt from time to time too. It's against the law for the government to do [e.g., snoop w/o a warrant], but there is no penalty.

In the area of civil liberties, Thomas simply has an incredibly restrictive view about what the Constitution actually prohibits, one not shared by most living human beings, including Antonin Scalia.

Probably because he considers history and original meaning. Does anyone really believe the states would have ever surrendered their power to the U.S. Supreme Court to second guess their laws and constitutions?

All 9 of the Justices "get this." In the area of civil liberties, Thomas simply has an incredibly restrictive view about what the Constitution actually prohibits, one not shared by most living human beings, including Antonin Scalia. Reasonable people can disagree about the reach of applications of Constitutional provisions, though in this case I'm tempted to suggest that Thomas is simply unreasonable.

Untrue. Thomas does not have an "incredibly restrictive view" in the area of civil liberties. He does with respect to students in schools.

Thomas does not have an "incredibly restrictive view" in the area of civil liberties.

Look at Hamdi, Virginia v Black. Thomas was in the 1 member minority both times. With Hamdi, Scalia sided with Stevens, and only Stevens.

An unanimous 1967 Warren Court ruling is hardly anything I would consider authoritive.

I was referring to the fact that he's married to a white woman, presumably in Virginia, where they now live.

In Virginia v. Black, the majority read the statute broadly and invalidated it because they said it punished more speech than was constitutionally unprotected. Thomas simply argued that the statute should be read to ban only that which isn't constitutionally protected, in which case it would have been constitutional.

Wasn't the question whether or not the girl should be searched, not who should do the searching.

If the law stated that students be searched by school officials when a fellow student rats on them, then the school official did the right thing. If not, then the school official should be held accountable.

The problem is that school officials are taking way to much on themselves. The girl's parents should have been called first. Had they been called, the matter could have been resolved without all this travail.

Looks like Sotomayor's "Wise Latina" method of judging cases is already in place at the Supreme Count. According to the media, all, except Justice Thomas, are lined up against strip searching search a 13 year old child.

Bueno, but was that what the case was about?

What laws do you mean "didn't exist"?

http://en.wikipedia.org/wiki/Pace_v._Alabama

Looks like Sotomayor's "Wise Latina" method of judging cases is already in place at the Supreme Count.

Yet the only non-white person was Thomas. Hmm. Guess not.

I wish the girl had had Vicodin or Novocaine, something you couldn't obtain in anything like the same quantity without a prescription, instead of ibuprofen.

But that would be like Heller wanting a machine gun than a simple handgun, no?

David M. Nieporent wrote: "Yes. That was the purpose of the 14th amendment. That you parrot some commentary from a non-lawyer, non-historian blogger who pulls a few quotes out of context from one 19th century legislator, and somehow miss this salient point, is embarrassing."

What "non-historian blogger" are you talking about, and what quotes were out of context are you referring to?

If the law states that students be searched by school officials when a fellow student rats on them, then the school official did the right thing. If not, then the school official should be held accountable.

State law has no power to make legal a search that is forbidden by the fourth amendment.

"Probably because he considers history and original meaning. Does anyone really believe the states would have ever surrendered their power to the U.S. Supreme Court to second guess their laws and constitutions?"

Ah yes, J. Aldridge's one man crusade against the national government and Reconstruction. In point of fact, the states *did* surrender some of this power when they ratified Article I, Section 10 of the original Constitution. They reserved the rest in the Tenth Amendment, though subject to the supremacy clause. They surrendered a lot more in the Fourteenth Amendment. The incorporation contrarians have been debunked, as have those who believe the Slaughterhouse Cases were correctly decided. You also will probably trot out a selective citation of John Bingham at this point, and ignore the clear evidence presented by Akhil Amar and others that the privileges or immunities clause, as a matter of plain text, original meaning and history, incorporates the Bill of Rights along with other provisions of the original Constitution. Of course, you don't even need to believe the P or I clause has any meaning to believe that the conduct here was a clear violation of due process.

The school district should fire the principal, but I don't see how her Fourth Amendment rights were violated. Is there a hidden "comfort clause" or "non-embarrassment" clause hidden somewhere that I'm missing?

No, but there is a prohibition against unreasonable searches

GMUSOL0: "Considering how prevalent cases of same-sex molestation/abuse of children are, I've always failed to understand why it's somehow assumed that making child strip in front of an adult of his/her own gender is any better than one of the opposite gender."

Sorry to bust your fantasies, but opposite sex molestation/abuse is far more common than same sex abuse. But thanks for the stereotypical slur against gay people -- it's always good to be reminded there people like you out there.

As this case demonstrates, Justice Thomas thinks that whatever the state of the law was when the constitution was written (later amendments aside) is ipso facto correct, even if the courts in intervening years have concluded it was not.

I'll believe that the day he votes to overturn Loving v Virginia.

You forgot "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof..."

There is no license for the court to do what had been withheld of them to do.

Hmm, maybe you missed this part too:

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Court is expressly licensed to decide what the Law (which plainly include the Constitution itself) means.

Fortunately, SCOTUS did not apply the drugs exception to the constitution, even if Thomas wished to. Nor did they apply 'unruly schoolkid' exception. Considering both were in the facts (as was the case with bong hits 4 jesus), this is a rather remarkable decision.

Does Justice Thomas mean to suggest Ibuprofen is a gateway drug in his dissent? He does recognize that Ibuprofen is not at the front of the prescription drug problem... but then why mention gateway drugs at all?

The Court is expressly licensed to decide what the Law (which plainly include the Constitution itself) means.

Now I understand you: Article III, Section 2 no longer exists!

insults.net

Weren't many of you surprised by the decision? Justice Ginsburg's comments about the need for women on the bench, and Justice Souter's interrogation of the student's lawyer, led many people to think that no violation of the 14th amendment would be found. Maybe oral argument isn't as good a guide to decisions as many people think.

If this had been a private school, rather than a public school, and a similar search had been undertaken, also without parental consent, would the private school officials be criminally or civilly liable?

Wouldn't that depend on the contract between the parents and the school, espcially as far as civil liability is concerned?

50 years from now, I certainly hope we don't still have reason to be concerned about men strip-searching women or vice-versa. The gender shouldn't make a bit of difference in a civilized society.

David: "Thomas does not have an "incredibly restrictive view" in the area of civil liberties. He does with respect to students in schools."

If true, then why? I don't see anything in the constitution that says that school kids get a more restrictive interpretation. There is literally nothing in it that one could even imply that young 'uns get less protection. So where does Thomas get two difference standards for people?

(1) If school offcials had conducted a body cavity search, instead of just a strip search, would Justice Thomas have still dissented? I'm not confident that there is anything in his reasoning that suggests otherwise.

I'm not sure where Thomas would draw the line either. He's very much an authoritarian in the context of schools.

(2) If this had been a private school, rather than a public school, and a similar search had been undertaken, also without parental consent, would the private school officials be criminally or civilly liable?

I really can't picture any kind of criminal liability here. There was no malicious intent. Civil liability, for a private school, would be strictly a matter of local law as they wouldn't be bound by constitutional guarantees. I could see a strong case for breaching the expected standard of care. Either way, if it were up to me, I would throw out the whole concept of qualified immunity.

Careless: "Going to the site you linked to I learned that 60% of offenders in the Groth and Birnbaum study would have sex with either men or boys. "

I dont' see where you got that. Here's the full quote:

Using the fixated-regressed distinction, Groth and Birnbaum (1978) studied 175 adult males who were convicted in Massachusetts of sexual assault against a child. None of the men had an exclusively homosexual adult sexual orientation. 83 (47%) were classified as "fixated;" 70 others (40%) were classified as regressed adult heterosexuals; the remaining 22 (13%) were classified as regressed adult bisexuals. Of the last group, Groth and Birnbaum observed that "in their adult relationships they engaged in sex on occasion with men as well as with women. However, in no case did this attraction to men exceed their preference for women....There were no men who were primarily sexually attracted to other adult males..." (p.180).


So actually, in this study, there were no men who were homosexual who were convicted of child molestation in Massachusetts.

I'm glad some others noted the possibility of same-sex pedophilia. It's not anti-gay or homophobic or whatever to assert the factual truth that some child sexual abuse is same-sex any more than it's e.g. anti-Catholic to say that some child sexual abuse was committed by priests (both same and opposite-sex) or anti-Islamic to protest abuse by an imam specifically or general treatment of children in some countries or whatever. If it's true it's true.

Anyway, the point is that it seems like the thing(s) that cause homosexuality are different from the thing(s) that cause child molestation, but there winds up being an overlap in behavior

Presumably the decision was horse-trading: the Roberts wing got on board provided qualified immunity was allowed, Souter and Breyer accepted that as better than nothing, and Stevens and Ginsburg called bullshit. While Thomas was Thomas.

Any thoughts on the school district's prospects? Given the decision of the Court, I'd guess no liability for them either.

But at least Savana has obtained a decision that may protect other young people.

(2) If this had been a private school, rather than a public school, and a similar search had been undertaken, also without parental consent, would the private school officials be criminally or civilly liable?

Certainly not under a 1983 claim: as far as I'm aware, the courts have pretty consistently held that private schools aren't state actors for 1983 purposes.

So civil liability will depend on the common or statutory law of the states, mixed in with any immunities that states may still afford to private schools. I'd guarantee that there's nothing remotely resembling unanimity on this question.

Oh, and on the legal issue of qualified immunity, it seems to me that the principle is entitled to qualified immunity because the prohibition was not "well established."

However, like the late brokerage giant E.F. Hutton, when the Supreme Court speaks, people listen. A school administrator doing a strip search after today could not claim qualified immunity--the case means that the rule is now "well established" for qualified immunity purposes.

I really can't picture any kind of criminal liability here. There was no malicious intent.

So if I pull down your pants "without malicious intent" -- say, just because I'm curious whether you're wearing any underwear today -- I shouldn't be charged with a crime?

Come off it. Sexual assault is sexual assault -- the intent to disrobe someone against their will is malicious intent.

Dave N, I'm not sure I agree that the Court has well established a principle here. I'd be curious about people's thoughts on this, because it seems to be a fact specific case. If a school official had seen the drugs being stashed or if the drugs were more dangerous, or if the child was older, we might have a different outcome, no?

Any thoughts on the school district's prospects? Given the decision of the Court, I'd guess no liability for them either.

I wouldn't be so sure that there's no liability for the district. The liability, if any, flows from the maintenance of an unconstitutional policy or practice by the school district, and the qualified immunity "it wasn't clearly unconstitutional when I did it" defense isn't available.

Assume for the sake of argument that the school district had a blanket policy of allowing a principal or administrator to conduct a strip search for drugs or other contraband upon a single, unverified student informant. Based on that policy, the principal here strip searches Plaintiff. I can see liability here, or at least enough to get past summary judgment.

Now, there's a big assumption that the district had such a policy. Since the neither the Supreme Court nor the 9th circuit ever addressed the Monell claim, I don't know what evidence of a policy there is. No policy, no liability.

Agreed. They are vile animals that need to be put down.

Pat Robertson was behind an effort to pass laws to kill homosexuals right before the SCOTUS took up Lawrence. Some believe that is why the Supreme Court actually allowed the Homosexuals their rights. Pat Robertson then tried to muster a religeous uprising against the High Court, which actually had to weather that storm.

Governments need scapegoats and when they admitted the humanity of homosexuals, there had to be other groups to officially hate.

The liability, if any, flows from the maintenance of an unconstitutional policy or practice by the school district, and the qualified immunity "it wasn't clearly unconstitutional when I did it" defense isn't available.

It doesn't rise to such a refined level as a constitutional question. A school "policy" that purports to grant staff the right to commit crimes against students should be regarded as null and void, and should offer no protection whatsoever.

A principal has no more right to strip a student than a store owner or clerk has to strip a customer whom he's accused of shoplifting. It doesn't matter one whit whether the store owner claims that this is the business's "policy", or whether the clerk is acting according to instructions from corporate: he's committing a crime, and the issue of "policy" simply does not enter into it.

So much freedom is sacrificed on the alter of the "drug war". The only 'war' liberals seem to approve of.

Maybe it's time ... admit defeat and withdraw.

At times like this I'm glad I'm not a lawyer. It's much easier for me to be sure the search was outrageous than to be sure it was illegal.

Would't the argument be that the principal is senior enough that my authorizing the strip search he triggered Monnell liablity? So the plaintiffs wouldn't need any more evidence of a policy than this.

Could be. Since the Monnell claim has received such short shrift to date by the higher courts, I have no idea what theory Plaintiff has advanced so far. The Principal-As-Policymaker claim is one potential theory, but I don't know enough facts about his authority to know if this is viable or not. Even if policymaker authority hasn't been argued or won't work for whatever reason, the District can still be liable for the maintenance of an unconstitutional policy.

A principal has no more right to strip a student than a store owner or clerk has to strip a customer whom he's accused of shoplifting. It doesn't matter one whit whether the store owner claims that this is the business's "policy", or whether the clerk is acting according to instructions from corporate: he's committing a crime, and the issue of "policy" simply does not enter into it.

The distinction is that you're focusing on the liability of the principal, the store owner, or the clerk; the question left for review in this case is the liability of the School District. There is no vicarious liability in 1983 claims, so a Municipality, School District, Government Agency or similar body is only liable to the extent permitted by Monell and its progeny, and those cases pretty clearly require the maintenance of an unconstitutional policy or practice, inadequate training/supervision, or similar theories.

And as the final aside, the store owner or clerk analogy doesn't work because we're not talking about ordinary tort claims or criminal liability here, we're talking about 1983 claims. Whether or not you're correct as a matter of tort or criminal law has no bearing on the liability of a state or local government for violating the federal constitution.

Didn't the Court in footnote 1 state that the school policy is reasonable and beyond reproach? The objection seems to be to the conduct taken to enforce the policy.

Footnote 1 is referring to the school's policy of banning possession of all drugs - prescription or OTC - by students. The "policy" at issue in the School District's liability would be whatever policy or practice authorized or informed the strip search.

Frater Plotter:

I take your point, but government policy is Holy Writ, so it's protected under the First Amendment.

And all over ibuprofen! As far as I know, it's perfectly legal for a 13-year-old to walk into CVS and buy a whole bottle of the stuff. And I do not know a single woman between age 18 and menopause who doesn't carry the stuff in her purse at all times.

I don't know why schoolgirls should be denied it. Why should they have to go running to a school official every time they want to pop a pill for cramps? The whole policy is evil and degrading and wrong, before you even get to the strip-search.

"Sure they did, like no state shall pass "Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts."

These negatories were never used as a ruse to claim powers over every day affairs of the people through legislation and statutes. The 14th amendment is no different, it is simply a negatory."

Hmm. Well, my contention was that it negates the ability of states to enforce laws that abridge the privileges or immunities of citizens of the United States, one of which is the right to be free of unreasonable searches and seizures . . . of course, Congress is empowered to make laws to enforce the provisions of section 1 of the 14th amendment through section 5 thereof. So I'm not sure what your point was, though you seem to be implicitly disputing both the validity of the holding of Marbury v. Madison and the incorporation of the Bill of Rights against the states.

(2) If this had been a private school, rather than a public school, and a similar search had been undertaken, also without parental consent, would the private school officials be criminally or civilly liable?

In general, the contracts between parents and the school authorize schools to perform all sorts of indignities on the kids. A friend of mine sends his son to a Catholic school that randomly urine tests every kid.

If not explicitly in the contract, the school might be able to stretch a contractual provision to cover strip searching.

I can't speak to criminal charges. The staff did not do this for their sexual gratification, so what would the charge be, assault?
No real damages that I'm aware of, so what would the point of suing be?

And who says we need a wise Latina on the court?

In 1871, after the ratification of the Fourteenth Amendment, Bingham explained:

[T]he privileges or immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows. [Bingham read the first eight amendments word for word.] These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.

Cong. Globe, 42d Cong., 1st Sess. 84 app. (1871).

They have zero 'in loco parentis powers'.... under the U.S. and Arizona constitutions. Compulsory education "laws" don't even have an identifiable constitutional basis.

You are right. They are granted those powers not by the either constitution but by Arizona and local statute.

Moreover, State Laws don't need a constitutional basis since States have power to do anything not forbidden to them (as distinguished from the Federal government that is one of enumerated powers, States are a form of government with general powers).

So, if you want to say that the State law that grants school administrators power (or compels public education) are unconstitutional, the burden is on you to show what provision they violate (again, as distinguished from a Federal Law, in which the burden is on Congress to show what provision of the Constitution delegates to them the power to enact that specific law).

SCOTUS now generally says that directly violating the Constitution is not a big deal, if you work for the government at any level.... and has invented a new "immunity" standard, again with zero constitutional basis.

It is a big deal. In fact, the next school administrator to do so will find themselves in a whole heap of liability.

The question is whether, before the ruling was issued, the administrator must stake their own finances on guessing what the Supreme Court will rule the 4A means or doesn't mean.

Government granting itself new powers seems to be a very strong trend in American history.

What "new power" has been granted here? If anything, less power has been granted -- school administrators can do less than they could before the ruling.

I don't know why schoolgirls should be denied it. Why should they have to go running to a school official every time they want to pop a pill for cramps?

If I were on the school board, I would vote to allow a limited list of OTC meds (advil, aspirin, caffeine) on campus without approval.

Since the duly-elected school boards thinks otherwise, I defer to their (incorrect, IMO) decision unless it can be shown to be in violation of some higher (State Law, Federal Law, Constitution) authority.

I salute Justice Thomas for shaking the gravitational pull of his authoritarian, social conservative pals (such as the Chief Justice, who appears to be nearly reflexively predictable as a vote for the well-heeled, those in authority, or the social conservative position).

I hope the student who squealed gets ostracized and sued.

The student who was searched should be living in the homes of those who authorized and conducted the search (after judgment-based evictions, of course). The person who authorized the search should be ostracized thoroughly. What kind of person perceives an entitlement or a reason to search a 13-year-old girl's underwear for ibuprofen based on a classmate's squealing, then acts on that delusion? The kind of person who should be ostracized.

I would call Kerry Wilson pond scum but I will not -- not because I am above such a comment, or because this venue deserves better, but because it would be unfair to congealed algae.

Another Supreme Court appointment or two, and the social conservative justices should, for the most part, be where they belong -- muttering bitterly in dissent after dissent, clinging to their dogma-based disdain for freedom.

Comments from the stray congressman does not change the basic history.

Especially years after the fact and when he completely contradicts everything he said before!!!!!!

not seeing how this isn't a constitutional issue unless this isn't considered state action. the scope of the 4th amendment is defined by society's (read: the courts') 'reasonable expectation of privacy.' this is yet another case defining what that constitutional protection extends to, with the added twist of the search being conducted by a school official on a minor. even if you argue that the 4th doesn't apply here--it's still a constitutional issue in that it's defining the reach of the 4th. or is the argument that Thomas wouldn't have even granted cert here?

Governments need scapegoats and when they admitted the humanity of homosexuals, there had to be other groups to officially hate.

I nominate reality show contestants.

This post could have been more concise: "I agree with Justice Ginsburg's concurrence/dissent." I'm guessing David Bernstein tried to type this but couldn't quite bring himself to do it.

Also, I don't understand why a student can wear a Coke or McDonald's cap but not a Flying Dog or Abita or Coors Light hat. Students can't drive until 16 but are permitted to wear Chevrolet shirts; they can't gamble until 18 or 21 but are permitted to wear MGM Grand jackets; and can't join the military before high school but are permitted to wear U.S. Army caps in grade school.

Because the school board said so. If you want to get elected to the school board and promulgate a more tolerant policy -- go ahead.

OTOH, if you want to argue that the Constitution protects a student's right to wear a Budweiser T-shirt, go ahead.

Just don't mix the policy with the legal.

Howard also made clear he was only speaking of

You can read it however you want, but cherry-picking quotes out of context is not

[T]hese guarantees…stand simply as a bill of rights in the Constitution…[and] States are not restrained from violating the principles embraced in them….The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

How could he say "these guarantees are the bill of rights" and then when he says "compel the States to respect these guarantees" not be talking about the bill of rights?!

This post could have been more concise: "I agree with Justice Ginsburg's concurrence/dissent." I'm guessing David Bernstein tried to type this but couldn't quite bring himself to do it.

Oh finally, a thread winner after 120+ posts.

Someone asked if anyone else was surprised by the outcome. Following oral argument, I expected the school district to win, so I was very pleasantly surprised by the outcome.

Someone else asked about the school district's prospects on remand... honestly, I'd expect them to try and settle, at this point.

Dave N:

This topic will probably not be resolved here, and there will doubtless be additional opportunities to address and comment on it in the future in future posts.

"Child sexual exploitation", is the generally accepted clinical term for sexual offenses against children.

But just as having to remove one's shoes in airports is more generally for the purpose of intimidation and off-putting one's psyche, so to are abuses of power in the instant case. Passive millimeter full body scans, (virtual strip searches), will be more for humiliation than security, to break down people's consciousness and individuality and to acclimate them to submit to the totalitarian power of the State, ala Stockholm syndrome.

The international conferences I attended on "child sexual exploitation", in 2001, set the agenda to raise the age-of-consent in all states uniformly and also around the world. They expressed the desire to bring that age up to 30, eventually, so I pegged them for eugenicists, for the Illuminati, for New World Order.

Their argument against any and all child pornography, was that whether real, representational, animated or written, it all served to "normalize" sexual behavior. We then saw billions of dollars spent subsequently stateside, and much money, around the world, for around-the-clock media campaigns and more, to re-educate the population, which has brought most people, as was planned, to their current way of thinking.

Since those goals are well underway, but are not achieved yet, rest assured, more reprogramming is on the way.

I once tried pasting a very abbreviated condensed version of what I believe to be the seminal work on what is actually going on with these dynamics, but EV deleted all but a paragraph or so of it, with the explanation that it was too long and would thus bore people here, who he said have a short attention span, so I'll end this comment here.

The entire Ct. agrees that the search of her belongings and outer clothes were reasonable (and they would not have been had this been a police search), so it's uncontroversial that the standard for a search is lower for children in school. Kids are pretty good at hiding things they're not supposed to have to adults won't find them, and generally teachers and principals know which kids are the bad apples they have to look out for. I'm guessing that when the principal heard this girl was involved, they probably knew she was trouble.

Even though I disagree with Thomas on this I understand him here and have some sympathy for the principal, even though he went overboard. It is hard to draw a line for searches of students and school officials are in a bind that they are responsible for the welfare and security of the students, legally have to follow policies like the one here that say they can't let students have semi-illegal drugs (even if it is silly that they are like here), have some (but not total or even parental authority) over the students, and face students willing to lie about what is going on.

The healthfulness of moderate alcohol consumption is not proven.

Neither is gravity.

The evidence strongly favors those who perceive healthful attributes of alcohol consumption. The United States government, and certain of those who perceive a reliable pipeline to certain of God's proclamations (often those motivated by underlying prudishness), wish to supress this information and argue that all consumption of alcohol beverages constitutes a vice, but neither is government policy nor cherry-picked dogma is trump with respect to science.

Arthur, I don't know how, but you managed to turn me from someone that agreed with you to disagreeing with you by sheer bombasticity of your statements.

about alcohol, or about adults who wish to peer into young girls' underwear?

I see we can count on Brian G to make a Kos inspired ad hominem comment otherwise unworthy of this blog.

Oh by the way Brian, the vote was 8-1 (Chief Justice Roberts both fully joined the majority opinion) (the dissent was by Justice Thomas--who was appointed by Bush41).

In most states unauthorized possession of prescription drugs (other than those containing controlled substances) isn't illegal, nor is it illegal by federal law.

I'm offended a case like this even gets litigated rather than the miscreant's being taken into the alley and beat up. There's no need to get technical over strip searching a school girl, this is just something that as soon as it is verified should be fixed informally.

Justice Souter, writing for the Court, stated that the majority meant to cast "no ill reflection" on the the school official, assistant principal Kerry Wilson, who ordered the search.

I'm perfectly capable of regarding that power hungry petty bureaucrat with ill-disguised contempt without any assistance from Justice Souter.

[ What constitutional authority do government schools &
bureaucrats have... and what gives them any immunity ?? ]

<><><><>

"You would have been shocked to find out what sort of civic service was required of citizens in the founder's era."
{Oren}
_______________________

Gosh... I'm very familiar with the Colonial era, and never shocked by history. What "shocking" Founder's stuff are you talking about that still constitutionally applies today ??

(Apparently your point is that compulsory-education is some kind of "civil service" exempted from the 5th/13th Amendments ??) [Citation ?]

<><><>

"You should look up the definition of servitude, they key component of which is labor." {Oren}
_____________________

No, the common law definition is any "service" or labor performed involuntarily for a period of time (term). Section 1584 of U.S. Title 18 says the same. Physical "labor" is not a requirement. If I force you to sit in a room reading Shakespeare plays for a year... or just staring at the wall -- you are involuntarily 'serving' my wishes & commands. The 13th expressly prohibits that.

<><><>

"... all States had public education at the time of the founding too." {Oren}
_________________

No. The overwhelming standard was private & sectarian religious schools. Government school dominance did not arise until well into the 19th Century; compulsory-education (elementary level) did not bloom until the late 19th Century.

<><><>

"The words "prima facie" do not relieve you of providing citations to support your assertion." {Oren}
_________________

I directly cited the U.S. Constitution. If you have contradicting citation, I'm very eager to read it.

Justice Thomas will not be the last person to beat his wife.

Cornellian:

A better scenario would have been the girl calls her parents on her cell phone

No school is going to allow that. It would simply be confiscated.

Failing that I would have liked to see the girl simply walk out of the school rather than accede to that demand

That's a lot to ask of a 13 year old, particularly if she had been trained, as most of our kids are, to respect authority.

The history does not support your assertion.



It absolutely does support it. For an overview, see the Wikipedia article on the 14th Amendment.

Comments from the stray congressman does not change the basic history.


That bald assertion begs for documentary evidence.



The last paragraph is my opinion. But see Wikipedia, for instance, on the fact of the first paragraph.

Or any history of the era.

Actually, the history of the era shows that incorporation, race, etc., were discussed by the legislature prior to passing and were written about in the newspapers.

So if you were awake and read the newspapers you might know something about it. People like to think the Supreme Court foisted incorporation, etc., on them, when, in fact, it was the legislature. It was voted on.

If you don't think the states give up power, look at the 17th amendment. The right to appoint U.S. Senators was taken away from the legislatures and given to the people by the people. Why? Most of the state legislatures were corrupt.

...who wish[es] to peer into young girls' underwear?

Well, let's.

"When fear is ascendant, it is easy for theories to catch on that blame some evil other for the ills of our society and that assume that anyone who does not share this viewpoint is deluded. Theories become popular that see the contemporary distortions in human beings as built into the structure of reality, as an inevitable feature of human nature or of complex social organizations, or even as a result of bad genes or evolution or brain structure." ~~ Rabbi Michael Lerner

Who will instill the empowerment, a children's ombudsman? They, (we, all of us) have been sold a big, bad boogeyman. Shame is the name of the game. Girls are desexualized and therefore robbed of an essential part of their humanity. The net effect of this, now that we have now endured a decade of extreme sexual repression, is now boys look at girls as dirty. Chats and forums abound, where girls and ladies are called "sluts" and "whores", routinely, in regular passing conversation.

The Stoning of Soraya M. (2008), is one example of contempt for females that's catching up fast to our culture.

The prohibition against child pornography has grown from actual depictions of sexual abuse to include images of nudes and underwear/swimsuit models and now drawings and texts. Prohibiting that material, instills guilt, shame, angst, and is often traumatic. It is akin to a virtual form of genital mutilation, which is the same disdain, only a difference of a matter of degrees. Literal genital mutilation on girls, amounts to extreme torture. Because it is generally performed in a non-sterile environment, and completely without pain-killers, many die. All scream in unbearable pain. It is estimated that as many as two-thirds of the females in just one African nation, have undergone female genital mutilation. It happens to an estimated millions of girls a year, the forced cutting away of the clitoris, and where often the labia is removed too. Those parts are deemed just entirely too shameful for a decent young girl.

The Fall 2003, AMICI - Newsletter of the Sociology of Law Section of the American Sociological Association, gives us a look at the global campaign against the practice, but also contains an article relevant to school authorities strip-searching students: "Understanding Law in Relation to other Forms of Authority". It begins with the quote:

"Legitimacy becomes a subject for discussion only when it is disputed." ~~Hans Blumenberg

The issue also notes that:

"[T]he sociology of law is committed to theoretically substantiated and methodologically sophisticated empirical investigations as the central means of studying the dynamics of law-in-society."

How fast is our descent? In 1988, Willem Dafoe played Jesus, in The Last Temptation of Christ (1988). In 2009, he stars in Antichrist opposite Charlotte Gainsbourg, who as a child actress, gave us many delightful nude scenes in her films. Antichrist shows Gainsbourg's character slicing off her clitoris.

The net effect of this, now that we have now endured a decade of extreme sexual repression, is now boys look at girls as dirty.

Repression? You keep using that word. I do not think it means what you think it means.

Seamus:

Fair enough. The Sociolgy/Lsw disciple examines actual evidence indepth, and not just regurgitate pap platitudes.

In other words, that discipline is less likely to act as apologists for the government as easily as others who simply parrot government hype.

Going further outside, is the example of the government's touting of the Neda video to push the Green Revolution while suppressing the Torture pictures and media from its citizens. Hence "Half of the American citizenry is now explicitly pro-torture", according to Glen Greewald's cite of a recent poll from The Washington Post/ABC News.

The sociology/Law approach would need to examine those pictures, if not the actual torture. Likewise, The government bans the very evidence of their claims against child porn, so people accept the government's story, hook, line and sinker.

The shame feeds on itself.

Back to my point about how the whole Advil thing is ridiculous. Perhaps we need more people on school boards who remember what it is like to be a 13-year-old girl. But for the many, many men here who have not had the experience, just imagine trying to sit through class with severe menstrual cramps. If you haven't had the experience, these can approach the severity of the early stages of appendicitis. Now, imagine that to do anything about them, you have to march to the front of the room and explain the problem to the boy's basketball coach who teaches algebra. In front of everyone. And risking the possibility that he won't believe you and will just send you back to your seat.

Of course girls will bring Advil (or Midol or whatever) to school. And of course there will be "dealers" if it is treated as contraband... girls will discuss things with other girls that they are mortified to discuss around adults (and men in particular). The school created the problem in this case. It's not as if the drug has any recreational use.

If everyone can carry their own Advil, openly and in the original containers, then it's actually easier to spot the kids who are dealing the drugs that deserve contraband treatment.

If everyone can carry their own Advil, openly and in the original containers, then it's actually easier to spot the kids who are dealing the drugs that deserve contraband treatment.

To prevent the obvious potential problem of carrying illegal drugs in Advil bottles, the school could require that Advil only be carried in a blister pack that clearly indicated that it was Advil. I am sure Advil would be happy to sell these, if they don't already.

sham-wow:

"That's a lot to ask of a 13 year old, particularly if she had been trained, as most of our kids are, to respect authority."

Really? Most teachers I know complain constantly that parents are always making excuses for their precious babies.

Are your children taught to disregard authority? Anyone here? Mine are not.

Yeah, it's a real problem, but if she had been one of the defiant brats, this lawsuit might never have arisen.

God forbid a teacher actually tries to enforce discipline. They'll be dragged into a lengthy administrative (if not legal) battle for inflicting emotional harm.

I never thought I'd say it, but the more I see and hear, the more I blame parents, most Many of whom today are of the opinion that their children are incapable of bad behavior, and thus, undeserving of punishment by school officials.

With the exception of one minor correction above, we are in complete agreement. The situation is desperately out of control.

Thomas is telling Americans: "Look, don't rely on the Constitution to stand between your kids and school administrators. If you opt into the government school system, use the political means to change thins you don't like. Or opt out. YOU need to watch out for your kids. Micromanaging your kids' school administrators isn't the job of the federal courts."

I can almost buy this. Almost.

I think school boards should have wide latitude in what rules they set. However, being government-run, there are things that they should not be able to do. Thomas's suggestion that local elected officials should take care of this ignores the fact that democracy is no guarantee of freedom. One function of courts is to stop democracies from infringing rights of individuals.

Presented like a Children's Ombudsman. :-)

pete,

States cannot constitutionally forbid homeschooling or private schooling, but the economic reality is that most parents cannot provide those educational options to their children even if they'd like to.

"Education is not servitude, and I will eat my hat if you find a single authoritative source suggesting that it is." {Oren}

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Geeez..... government "compulsory-education" is the issue here, not education in general. (...could you be a bit more disingenuous ??)

There is absolutely zero constitutional authority for government "compulsory-education" in the U.S.


If you disagree, please dispense with the tap-dancing -- and post the citation(s) demonstrating your position.

Geeez..... government "compulsory-education" is the issue here, not education in general. (...could you be a bit more disingenuous ??)

Funny that you didn't cite a source.

There is absolutely zero constitutional authority for government "compulsory-education" in the U.S.

This is the last time I'm going to explain this.

The Federal gov't needs constitution authority to do things.

The State gov'ts can pass any bill that is not forbidden to them.

That's what the tenth amendment says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States ...". IOW, the States are granted the right to do ANYTHING NOT EXPLICITLY FORBIDDEN to them.

This is a fundamental principle in the
If you disagree, please dispense with the tap-dancing -- and post the citation(s) demonstrating your position.

The 10A serves well enough. Lochner is also on point:

There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere.

(from the Supreme Court's opinion in Lochner).

The authority of the state to enact this statute is to be [197 U.S. 11, 25] referred to what is commonly called the police power,-a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained frained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and 'health laws of every description;' indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. Gibbons v. Ogden, 9 Wheat. 1, 203, 6 L. ed. 23, 71; Hannibal &St. J. R. Co. v. Husen, 95 U.S. 465, 470 , 24 S. L. ed. 527, 530; Boston Beer Co. v. Massachusetts, 97 U.S. 25 , 24 L. ed. 989;New Orleans Gaslight Co. v. Louisiana Light &H. P. &Mfg. Co. 115 U.S. 650, 661 , 29 S. L. ed. 516, 520, 6 Sup. Ct. Rep. 252; Lawson v. Stecle, 152 U.S. 133 , 38 L. ed. 385, 14 Sup. Ct. Rep. 499. It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument. A local enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict with the exercise by the general government of any power it possesses under the Constitution, or with any right which that instrument gives or secures. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L. ed. 23, 73; Sinnot v. Davenport, 22 How. 227, 243, 16 L. ed. 243, 247; Missouri, K. &T. R. Co. v. Haber, 169 U.S. 613, 626 , 42 S. L. ed. 878, 882, 18 Sup. Ct. Rep. 488.

Short Version: The State's can pas any law that does not contravene the US Constitution or violate the rights secured therein.

I'm sure there are enough citations in there for you.

... good-- some progress made in this casual dialectic.


We now agree the Federal government has no constitutional authority to impose compulsory-education.

(...though the U.S. Department of Education and Department of Justice still have not received that word)

State government authority to do so is the remaining issue, but your statements on that seem contradictory.

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You state the Federal government requires U.S. Constitution authority to do stuff... but state governments are not similarly restricted: ["Short Version: The State's can pas any law that does not contravene the US Constitution or violate the rights secured therein." {Oren} ]

So the ONLY restriction upon the exercise of state government power is the national (U.S.) constitution (???)

What then is the purpose of the many detailed state constitutions ?

State constitutions are actually chock full of restrictions on the state government powers; those constitutions exist for the same general reasons the U.S. Constitution. No reasonable person could argue otherwise.

Your oddly truncated version &intrepretation of the very brief 10th Amendment (... ignoring: " or to the people") is equally illogical. It absolutely does NOT say the States are granted the right to do "ANYTHING NOT EXPLICITLY FORBIDDEN" to them; it is primarily a restriction on the federal government.

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The Lochner decision supports my position, not yours. It sharply restricted general police power of the states under the 14th Amendment and U.S. Constitution. So where does Arizona government get the police authority to impose compulsory-education on its citizens... or grant school bureaucrats special power to conduct warrantless searches of citizens... in face of the federal Bill-of-Rights (??)

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You wander off on some strange "public health" tangent, since you are unable to find any state constitutional justification for "compulsory-education". They are entirely different issues.

'General-police-power' is a vague term of convenience in some legal argumentation --- it is not a practical reality in the United States. All government police power here is highly restricted by U.S. federal &state constitutions (... at least when government actors choose to obey them).

___________________

Since this school strip-search incident took place in Arizona, take a few minutes scanning the full Arizona state constitution -- you will not find the slightest hint of compulsory-education authority. But you will find solid guarantees of personal liberty ... which you agree exist in the U.S. Constitution.

Arizona government can build all the schools, libraries, parks, airports, boat marinas, etc that they want --- but they cannot legally force people to use them.

______

[P.S.] ....relax, nobody else here is interested in this issue -- and any that might be would reflexively agree with you

:-)