Sunday, June 28, 2009

Encouraging news from the Supreme Court

We're down to the last week of the Supreme Court's session, and generally that means they're down to the biggest, or most problematic cases. They're scheduled to release three decisions Monday, and I'm not holding my breath for good news.

Still, on Thursday they released a decision that is good news in the case of Safford Unified School Dist. v. Redding, the case involving the strip search of a thirteen year old girl suspected of bringing Advil to school.

If you've been following the case you know the facts: a middle school student ratted out Savana Redding as the source for some Advil she was caught with, so Samantha, thirteen years old at the time, was dragged down to the principal's office, forced to strip to her underwear, and then forced to pull out her bra and panties so the government officials gathered in the office could look inside. They found nothing, and Savana sued the school district and its officials.

The case got a lot of attention at oral argument, in large part because of the mocking tone adopted by many of the justices. Now that the case has been decided, though, the outcome is far from what the questioning by the justices suggested.

In the 8-1 decision, the Court explicitly decides that the search of the young girl violated the Fourth Amendment. This is great news because it is a major departure from recent Supreme Court case law. First, no matter what lip service the Court has paid to the constitutional rights of students, in their recent decisions they have essentially followed a rule that students have no rights, even for activities out of school. Second, this decision is a departure from the growing drug exception to the Fourth Amendment, under which the conservative majority routinely follows the rule of "anything goes" when the government is in search of drugs.

On the other hand, they also found that sovereign immunity applied because the law wasn’t clear enough to inform a reasonable public employee that poking around in a girl’s underwear was improper.

One wonders if the outcome was influenced by:
a) Justice Ginsburg’s comments at oral argument;
b) Justice Ginsburg’s advocacy within the court in conference;
c) Justice Ginsburg’s and Justice O’Connor’s public statements about needing more female justices because of the different experience they bring.

If this case were to come up next year it would be before a different court, one with one more female member, but a female member whose background in the practice of law was as a prosecutor. One hopes that the Court will build on this precedent when the time comes.


Post a Comment

Links to this post:

Create a Link

<< Home