The Strip Search Two-Step

by publius

To echo Scott, consider me pleasantly surprised by the Court’s ruling today on school strip searches.  Below are a few scattered thoughts:

The Virtues of the Two-Step

This is mostly for non-lawyers, but note that the Court actually made two different holdings today.  First, the Court held that the search in question (requiring a student to open her bra to search for Demon Advil) violated the Fourth Amendment.  Second, the Court held that the school official was nonetheless immune from suit because the law wasn’t clear at the time.  In short, the ruling applies prospectively to future illegal searches, but Assistant Principal Advil won’t be liable.

This latter holding may seem ridiculous, but it’s probably a necessary evil that ultimately protects constitutional rights.

To back up, these cases are known as “constitutional torts” – and they help give teeth to our constitutional rights.  Basically, when a government official violates a person’s constitutional rights, that person can sue to obtain damages.  These types of cases are commonly brought against school and law enforcement officials.  A typical case goes something like this – A guy gets indicted for drug possession.  The court ultimately dismisses the indictment on Fourth Amendment grounds.  The guy then turns around and sues the police department for money damages.

So here’s the problem with constitutional torts – the people committing the constitutional violations are often sympathetic actors (e.g., police, teachers).  And the plaintiffs whose rights were violated are often un-sympathetic actors (e.g., accused drug dealers).  The fear, then, is that courts may be unwilling to find constitutional violations if it means punishing police officers who were often acting in good faith.

The Court has, however, developed a way to get around this problem – a doctrinal “two-step.”  Essentially, the Court divides the analysis into two parts.*  First, it decides whether a constitutional violation has taken place.  If so, it then decides whether the law was “clearly established” at the time.  This allows the Court to say (as it did today), “Yes, that search was unconstitutional, but this particular defendant didn’t know that for sure.”

The upshot is that the Court prevents future constitutional violations, but doesn’t punish prior ones.  And while that’s not ideal, it’s probably a net benefit.  Without this “two-step,” many courts would simply find no constitutional violation.  If, however, courts aren’t required to punish sympathetic government officials, then they are more likely to give constitutional rights more teeth. 

And that’s exactly what happened today.  The right was established, but the individual defendant didn’t have to pay.

Does The Ruling Matter?

It’s easy to argue that today’s decision won’t matter that much.  After all, the facts were pretty specific – Assistant Principal Advil wasn’t looking for “hard” drugs, and there was no evidence of danger.  In theory, schools could get around today’s ruling by claiming to look for more dangerous drugs.

But that said, today’s ruling still has some strong “signaling” benefits.  The idea is that the Court has signaled that lower courts should be less tolerant of intrusive body searches of students.  Risk-averse school boards will therefore tighten up standards for such searches – and, in general, will hesitate to get close to the “line.”  In this way, students’ constitutional rights will (one hopes) be more secure.

A Question for Justice Thomas

David Bernstein has a good question for Justice Thomas, who by my reading thinks the Constitution does indeed stop at the schoolhouse door:

If school officials 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.

Me neither.

[*The Court recently held that the courts don't have to do this analysis in any particular order, but that level of complexity isn't necessary for this post.]

Comments

[mythago]

Given Justice's Thomas comments about the days when every schoolroom had a crucifix, I think it's safe to say that he does not believe public-school students have Constitutional protections.

[liberal japonicus]

Assistant Principal Advil

nice

[jrudkis]

I simply cannot imagine why anyone would think they could strip search someone else's child without a court order, or at least permission from a parent. If they had probable cause of a crime, they should call the police. And since this was only a possible violation of a school policy, there was no "crime" that could possibly justify the police performing one either.

I hope there was a lot of negative fall out for the school besides this lawsuit (like irate parents at PTA meetings and other expressed anger toward the individuals).

[Jacob Davies]

Good opinion, though I wish they'd gone further in enumerating the rights of children to constitutional protections, but I also wish I had a pony. Because this whole thing pissed me off so much. Let me count the ways:

1. "Prescription-strength" Advil refers to nothing more than tablets with the dose most of us take when we use it, and yet the scary scary term is repeated every time this story is mentioned.

2. Ibuprofen has zero potential for abuse.

3. Ibuprofen is extremely safe.

4. SHE DIDN'T HAVE ANY DAMN "PRESCRIPTION-STRENGTH" ADVIL ANYWAY.

5. How psychotically stupid do you have to be to even think of a strip search being appropriate when looking for ibuprofen???

6. I get the no pills rule in a sense, but when you have no suspicion that the violation is anything other than innocent possession of OTC painkillers, the right response is "Well, we don't know if you have any Advil at school, but either way, please don't bring it in future, and if you never have, we apologize for suspecting you." End. of. story. No search. No strip search, for God's sake.

7. I think of the right to pain control as pretty basic and surely the rules could have exceptions for, say, OTC painkillers in individual packaging (those foil packets or blister packs). God forbid we actually think of children as people with physical needs just like adults though.

8. DID I MENTION, SHE DIDN'T HAVE ANY GODDAMN ADVIL, AND THEY LOOKED IN HER BRA AND UNDERWEAR??!?? OMG WTF

[Bob]

The standard for immunity is NOT whether "this particular defendant" knew "for sure" that the search was unconstitutional. Rather, it is whether a reasonable official could have believed that it was constitutional. It is an objective test. The Court did away with the subjective approach to immunity more than 30 years ago!

[Gary Farber]

In case anyone has forgotten how the oral arguments went.

[Gary Farber]

Justice Thomas's dissent.

[...] The majority's decision in this regard also departs from another basic principle of the Fourth Amendment: that
law enforcement officials can enforce with the same vigor all rules and regulations irrespective of the perceived importance of any of those rules. "In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable."
Virginia v. Moore, 553 U. S. ___, ___ (2008) (slip op., at 6).
The Fourth Amendment rule for searches is the same: Police officers are entitled to search regardless of the perceived triviality of the underlying law. As we have
explained, requiring police to make "sensitive, case-by-case determinations of government need," Atwater v. Lago Vista, 532 U. S. 318, 347 (2001), for a particular prohibition before conducting a search would "place police in an almost impossible spot," id., at 350.

[...]

In determining whether the search's scope was reasonable under the Fourth Amendment, it is therefore irrelevant whether officials suspected Redding of possessing prescription-strength Ibuprofen, nonprescription-strength Naproxen, or some harder street drug. Safford prohibited its possession on school property. Reasonable suspicion that Redding was in possession of drugs in violation of these policies, therefore, justified a search extending to any area where small pills could be concealed. The search did not violate the Fourth Amendment.

[...]

By declaring the search unreasonable in this case, the majority has "`surrender[ed] control of the American public school system to public school students'" by invalidating school policies that treat all drugs equally and by second-guessing swift disciplinary decisions made by school officials.

[...]

In the end, the task of implementing and amending public school policies is beyond this Court's function. Parents, teachers, school administrators, local politicians, and state officials are all better suited than judges to determine the appropriate limits on searches conducted by school officials. Preservation of order, discipline, and safety in public schools is simply not the domain of the Constitution.

Neither in the domain of the Constitution are the rights of individuals to be free of unreasonable searches or seizures, if you're a minor, or for any other good reason Justice Thomas can come up with.

Let's hear it for not applying "empathy" or concepts of "freedoms of individuals" over the "rights" of authorities, in constitutional decisions.

[Gary Farber]

"I simply cannot imagine why anyone would think they could strip search someone else's child without a court order, or at least permission from a parent."

Thomas' reasoning is that parents grant that right -- in loco parents -- by sending their kids to school.

Also:

[...] For nearly 25 years this Court has understood that "[maintaining order in the classroom has never been easy, but in more recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have
become major social problems."

It's to protect the children! It's all about the drugz!

And:

[...] A "search of a student by a teacher or other school offi-
cial will be `justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school."

And what are more reasonable grounds than a rumor from another kid?

Besides:

[...] School officials have a specialized understanding of the school environment, the habits of the students, and the concerns of the community, which enables them to "`formulate certain common-sense conclusions about human behavior.'"

So there.

Most of all, the consistent theme:

[...] It is a mistake for judges to assume the responsibility for deciding which school rules are important enough to allow for invasive searches and which rules are not.

The notion that there might be individual rights of the child to protect here is an idea only an "activist judge" could come up with or support, you know. Damn liberals. There's nothing in the Constitution about students being protected from unreasonable searches and seizures. It's not in the text!

[Gregory]

So here’s the problem with constitutional torts – the people committing the constitutional violations are often sympathetic actors (e.g., police, teachers). And the plaintiffs whose rights were violated are often un-sympathetic actors (e.g., accused drug dealers). The fear, then, is that courts may be unwilling to find constitutional violations if it means punishing police officers who were often acting in good faith.

But the disappointing thing in this case was that Assistant Principal Advil isn't a particularly sympathetic actor -- he had a minor child strip searched under *extremely* flimsy grounds -- while the victim, an honor student with no history of disciplinary trouble and who didn't have the bloody Advil in the first place, is a much more sympathetic actor. They should have allowed Savana's suit to proceed without worrying about the two-step.

[Omega Centauri]

I can have empathy for both sides. I can certainly see how the girl, and her parents would think about this. But, I can also imagine being a school official being put in a tricky spot -and not having someone to turn to for sound advice, and therefore inadvertantly crossing some norm. So making a ruling whose effect is to clarify what the acceptable norms are, but not punishing the hapless perpetrator seems like a win-win (or the closest to it we can come in such a case), to me.

I don't like law suits that penalize collective entities, such as school districts, taxpayers, or even stockholders of public corporations. My reasoning is that the presumption of control over the action committed by the ultimate payer of the lawsuit is very tenuous -particularly when the turnover time in terns of local taxpayers/voters -or corporate shareholders, is usually long compared to the lags in the civil justice system. Those who ultimately must pay the price are so many times removed, as to be innocent victims themselves.

[mythago]

I don't like law suits that penalize collective entities, such as school districts, taxpayers, or even stockholders of public corporations

Why should the status of 'collective entity' prevent accountability for wrongdoing?

The ruling is about qualified, not absolute, immunity.

[John in Nashville]

The "qualified imunity" doctrine is an example of "judicial activism" that authoritarians rarely complain about. The text of 42 U.S.C. § 1983 recognizes no immunities; the Supreme Court in the early eighties fashioned the qualified immunity doctrine from whole cloth. (Granted, since most civil rights damages litigation is undertaken pursuant to statutes, the Congress could have taken corrective action at the time, but has not.)

I wish that Congress would abolish the doctrine by statute.

[Jesurgislac]

Justice Thomas, who by my reading thinks the Constitution does indeed stop at the schoolhouse door:

A man with a history of sexually harassing subordinates thinks that school principals ought to be able to stripsearch teenage girls.

...why is anyone surprised?

[Brett Bellmore]

Last I heard, Thomas was a man with a history of being accused of sexual harassment, by one subordinate. You got something to justify changing that to a history of actual harassment, and plural subordinates?

[mds]

And last I heard, Thomas was a man who thinks school principals ought to be able to stripsearch teenage girls, which will carry a little more weight in his legacy than anything said in an Obsidian Wings comment thread.

Though I am glad Mr. Bellmore was able to turn up to defend his favorite, most "originalist" Justice against a standard cranky rhetorical flourish by Jesurgislac.

[Pithlord]

I'd happily trade strict civil liability for abolishing the exclusionary rule.

[Jesurgislac]

You got something to justify changing that to a history of actual harassment, and plural subordinates?

Clarence Thomas's expressed belief that there's nothing wrong with a man having the right to strip-search young girls if he's got lawful authority over them. Plus, the fact that his ugly harassment of Anita Hill was unlikely to have come out of nowhere - even if she was the first and only woman who was brave enough to stand up and testify about what he did. (Google on Kaye Savage for what Clarence Thomas was prepared to do to witnesses who could be intimidated...)

[wonkie]

My memory of this is dim but I think that there was at least a second accuser of Thomas and possibly a third.

[Omega Centauri]

mythago: My problem with collective accountability, is that the membership of most of these collectives is unstable. By the time any judgement is paid, membership turnover has been great. An example would be just moving to a city to start a new career, and having your taxes raised to pay off a judgement on something that happened twenty years ago. The culpability and the liability just don't have much correlation.

[Brett Bellmore]

"Clarence Thomas's expressed belief that there's nothing wrong with a man having the right to strip-search young girls if he's got lawful authority over them."

But, that's not his expressed belief. His expressed belief is that it's not unconstitutional. You are familiar, aren't you, with the concept that not everything that's constitutional is right and good?

"Plus, the fact that his ugly harassment of Anita Hill"

It's a fact that Hill accused him. I'm not terribly fond of the presuption of guilt in sexual harassment cases, though I understand it's popular in some circles.

There was a second accuser, eventually. Neither of them availed themselves of the mechanisms in place for filing complaints.

[mds]

I'd happily trade strict civil liability for abolishing the exclusionary rule.

Too bad conservative judges have been so busy of late gutting the exclusionary rule and broadly applying qualified immunity, especially for actions by the police. There's no trade to be made.

[Joe]

[1] The ruling did note that liability for the school district was not decided.

[2] Justice Thomas suggests that Redding herself was caught using/serving alcohol in the past at a school dance and at home. The specific relevancy of this to the search here is unclear but the majority goes further. It suggested her being extra rowdy at said dance, not even specifically drinking or smoking, was reason enough plus the say-so of a student for a search of her backpack and outer clothing.

The precedent, as Ginsburg reminds, concerned a student caught smoking, she opened her purse, and this led to a search of the purse when something suspicious was found on top of it. This opinion appears to actually expand that precedent, since Redding was not caught in the act.

There was a trapper folder that she was caught with was contraband items found in it, including a knife (could it be used to cut pills?) but the opinion did not really make much mention of it.

[3] The opinion actually leaves open strip searches on better facts. The lack of danger of this drug + lack of evidence she had it on her person was weighed. But, what about the girl who was found with the pill & was also strip searched? So, again, looked at negatively, the case took with one hand, while giving with another.

[4] Reading about searching of her underwear was cringe-worthy. No wonder eight justices signed on.

[5] I concur that the 'qualified immunity' is a form of questionable activism. It also should be denounced by originalists like Thomas, since originally government actors were traditionally sued, and a jury was left to decide if their actions were reasonable / what damages were warranted. Immunity often robs this check, underlining the need of the exclusionary rule for one thing.

[Jesurgislac]

I'm not terribly fond of the presuption of guilt in sexual harassment cases

But you are terribly fond of the presumption of guilt in perjury cases?

Anita Hill testified, under oath, that Clarence Thomas was guilty of ugly sexual harassment. We have strong indications elsewhere that Thomas was not averse to a spot of blackmail to prevent other witnesses coming forward with corroborative testimony. You prefer to presume that Thomas never did any of those things that Anita Hill testified about - which means you prefer to presume that Hill is guilty of perjury.

If Clarence Thomas had been on trial for sexual harassment, he would have had the legal right to be presumed innocent until proven guilty - he should not have been convicted or sentenced of the crime unless a jury was convinced that the evidence showed he was guilty.

But Thomas wasn't on trial for sexual harassment. Evidence was being taken to decide if he was, of all possible candidates, the most worthy to be seated on the Supreme Court. That's about as different from a criminal trial as you can get.

The Senate decided that, despite Hill's evidence, the sexual harasser was good enough to be a Supreme Court judge if President Bush wanted him there. Nice for him. And decades later, this sexual harasser indicates he's just fine with adult male authority getting to stripsearch little girls - and I say again: why would anyone be surprised?

[Phil]

But you are terribly fond of the presumption of guilt in perjury cases?

And affirmative action cases, don't forget those!

[Brett Bellmore]

Jes, the possiblity that we have a sexual harasser on the Supreme court is disturbing. The possiblity of licensing any woman who feels like leveling false accuasations to derail a Supreme court nomination ought, also, to be disturbing.

If Anita had filed a complaint with the appropriate authorities at the time, Thomas would be history, and rightly so. Because then we'd have some reason to believe her.

If sexual harassment is going to be treated as a serious offense, women have to act like it's a serious offense. And that means promptly reporting it. Unsupported allegations of serious offenses, years after the fact, deserve to be dismissed precisely because the allegations ARE serious. And that you did nothing at the time about it impeaches your honesty.

[mds]

And that you did nothing at the time about it impeaches your honesty.

Meanwhile, your favorite Supreme Court Justice believes that public school principals are not constitutionally barred from strip-searching teenage girls for ibuprofen on the basis of hearsay. And you're prepared to give his analysis the benefit of the doubt, even though it affirms ever-more-sweeping state powers against the individual, and reasserts Thomas' "originalist" view that the Bill of Rights doesn't apply to schoolchildren at all.

If sexual harassment is going to be treated as a serious offense, women have to act like it's a serious offense.

And men like Mr. Bellmore will apparently still be there to denigrate them and impugn their honesty. Because it's women's fault that sexual harrassment tends not to be treated as a serious offense. Good grief.

[Jesurgislac]

So, as I understand you correctly, Brett: Anita Hill is in your eyes presumptively guilty of perjury. She is not entitled to "presumed innocent until proven guilty".

In the mean time, for people who prefer to hold to the old doctrine of "presumed innocent until proven guilty", which you were extolling earlier in the thread when you thought it would work as valid reason to assume that Clarence Thomas isn't a sexual harasser: Anita Hill was under oath, and gave evidence.

Clarence Thomas wasn't on trial: he was up for a position on the Supreme Court, and despite aggressive sexual harassment of a subordinate, he got it. Now he advocates male authority figures getting to strip-search little girls. Good to know you think it's disturbing when this happens... even if you have to do a breakneck switcheroo on "presumed innocent till proven guilty" in order to believe that it didn't just happen.

[superking]

I think the case requires more than just looking for a more dangerous drug to justify a strip search, Publius. You suggest that school officials could conduct a strip search if they merely claimed they were searching for a drug more dangerous than ibuprofen.

However, Souter also notes several times that there was no indication of when Marissa received the pills from Savana and the assistant principal did not have other evidence suggesting Savana had drugs on her at the time. So, at worst, I think this is now a two part test. First, officials must have some evidence that the student is currently breaking the rule, and second, the school official must also believe the drug constitutes a danger to other students.

Souter states that the drug can be dangerous because of its potency or its quantity. People can OD on tylenol, after all. So, that also has to be kept in mind.

[Phil]

Unsupported allegations of serious offenses, years after the fact, deserve to be dismissed precisely because the allegations ARE serious. And that you did nothing at the time about it impeaches your honesty.

Just FYI, the grand jury on which I am serving has recently considered indictments for rape and child abuse charges which are, in one case, 11 years old and based on nothing more than the testimony of the victim; and in another, five years old, and based on nothing more than the testimony of the victim. Neither victim did anything about it at the time -- didn't inform their parents, didn't contact authorities, nothing. Using your formulation, we should not indict the alleged perpetrators. Is that about right?

[Phil]

I mean, for heaven's sake, a simply Google search will reveal hundreds of cases of women who were fired after reporting sexual harassment. Risking firing is one of dozens of reasons, from workplace intimidation to the possibility of violent retaliation, why women might not report instances of harassment. This is common knowledge. It really happens to real women.

Why do you act as if you exist in some kind of informational vacuum and don't know these things?

[Sebastian]

"Using your formulation, we should not indict the alleged perpetrators. Is that about right?"

I'm not Brett but I'll point out the burden of proof for indictment is completely different than the burden of proof for conviction.

For the rest of the thread, constitutionally Thomas is saying that schools can do anything that parents can do. That is a different question from whether or not letting principals strip search is a good idea.

Now I think he happens to be wrong. I don't think school administrators can constitutionally do anything that parents can do. And strip searching is definitely out. But treating his argument as "strip search=good" is strawmanning.

[Brett Bellmore]

I would be highly reluctant to indict on the basis of unsupported testimony of one person concerning an event a decade or more ago. If you've got two different people, independently alleging the same sort of conduct, that makes it two against one, and it becomes more reasonable. If they were minors at the time, they've got some excuse for not having reported it, too.

Adults, on the other hand... I'll grant you, they have no legal obligation to report crimes against them, but when you fail to report a crime, you enable the criminal to be a repeat offender, so you've got some moral obligation to report even at some cost to yourself. And the fact that they didn't report it DOES somewhat impeach their credibility.

If you're going to treat conduct as serious, that has implications, and they're not all advantageous to the person claiming to be a victim.

[Phil]

I'm not Brett but I'll point out the burden of proof for indictment is completely different than the burden of proof for conviction.

Of course it is, but according to Brett, accusations not contemporaneous with the events in question should simply be dismissed out of hand for no other reason than the fact that they are not contemporaneous and if it was really serious they would have said so at the time: "Unsupported allegations of serious offenses, years after the fact, deserve to be dismissed precisely because the allegations ARE serious.

Doesn't matter that the burden of proof for an indictment is "probable cause" rather than "beyond a reasonable doubt." The very fact that the victim is alleging the conduct only after some arbitrary amount of time -- which Brett has not specified -- is enough to dismiss it. According to him.

If you're going to treat conduct as serious, that has implications, and they're not all advantageous to the person claiming to be a victim.

Yes, you might get repeatedly propositioned by a co-worker, then have your tires slashed after you report him to HR, then get fired because you're making the workplace uncomfortable, but hey, at least the harasser got a talking-to by the VP!

[Phil]

To get more specific without violating the sanctity of the grand jury:

In one case, a 15 year old girl is alleging that she was raped three times by a former landlord four years ago. The reason the allegation has come to light is that she was given a school assignment to write about something important to her, and she wrote a letter to her mother unburdening herself of these incidents.

Here is all the relevant evidence:

1. the girl's letter and a subsequent statement to police.
2. the girl and her mother did rent property and X address in the year in question.
3. the suspect did own the property in question at that time.
4. the girl was a latchkey child, coming home from school alone until mom got home from work.
5. the landlord received mail at the address and was often there when the child arrived home.
6. the girl was able to state what kind of truck the landlord drove at the time and what its license plate was.

That's it. That's all the evidence we were given. 2-6 are strong circumstantial evidence, but are hardly corroboration of a rape allegation. So, according to Brett, since the allegation is occurring now, and not four years ago, the girl is probably lying.

That sound about right to everyone?

[mds]

Now I think he happens to be wrong. I don't think school administrators can constitutionally do anything that parents can do. And strip searching is definitely out. But treating his argument as "strip search=good" is strawmanning.

Given that Thomas vilifies New Jersey v. T.L.O. precedent establishing that school officials do not act in loco parentis, even as he cites T.L.O. as partial justification for his dissent, I guess I have a hard time seeing him as being dragged reluctantly to his determination, motivated solely by the text of the Fourth Amendment and existing case law. But perhaps you could break his reasoning down for us in order to demonstrate that it wasn't outcomes-based? Because I couldn't see where he provided it in Morse v. Frederick, either.

I would also question a standard where the presumption of in loco parentis is that a parent would strip-search their teenage daughter under these circumstances. But that's irrelevant unless T.L.O. gets explicitly overturned.

See, if this exercise of a public official's power actually bothered him in any way, I would have expected him to acknowledge it, rather than noting that "It was eminently reasonable to conclude that the backpack was empty because Redding was secreting the pills in a place she thought no one would look," and tut-tut about the inevitable dire consequences of informing students where they may now safely "secrete contraband." So I don't think it is at all unreasonable to conclude that he approves of such searches.

[Sebastian]

"Given that Thomas vilifies New Jersey v. T.L.O. precedent establishing that school officials do not act in loco parentis, even as he cites T.L.O. as partial justification for his dissent, I guess I have a hard time seeing him as being dragged reluctantly to his determination, motivated solely by the text of the Fourth Amendment and existing case law."

I'm confused. He vilifies TLO because he believes that schools act in loco parentis. He is willing to overturn it because he thinks that is a bad ruling. Then asking about motivation 'solely by the text of the 4th amendment and existing case law' is weird. He thinks existing case law is wrong.

And I'm not defending his view. I think he is wrong. I'm just stating that you aren't arguing with his actual view.

[widget]

I think mds's point, for which I have some sympathy, is that Justice Thomas's style of argument in constitutional cases is so open-ended, and his disregard for stare decisis so thoroughgoing, that it's hard to imagine him really being constrained to find anything constitutional that he thinks is a bad idea, or anything unconstitutional that he thinks is a good idea.

It's sort of the mirror of the same argument that gets leveled at so-called living constitutionalists by originalists from time to time.

(And if that's not mds's point, I'll throw it out there myself.)

[mds]

He vilifies TLO because he believes that schools act in loco parentis.

should act, since under currently-controlling precedent, they do not, regardless of his desires. And this is part of the problem with Thomas, as widget indicates. But otherwise, yes.

He is willing to overturn it because he thinks that is a bad ruling.

No, here's where the confusion comes in. He wishes a re-establishment of "common law" understanding of in loco parentis (yes, an invocation of common law from Clarence Thomas), yet also cites T.L.O. to support his argument about the reasonableness of the search. But T.L.O. defines reasonableness in light of the finding that school officials do not act in loco parentis. Cake is simultaneously being eaten and retained for later here.

[mds]

Now, as to the "body cavity" question that publius refers to, Thomas does note in a footnote that 'The Court has adopted a different standard for searches involving an “intrusio[n] into the human body.”' This is in reference to the assertion that "the reasonableness of a search’s scope depends only on whether it is limited to the area that is capable of concealing the object of the search." (In which it looks like all of his pursuant case law is based on the reasonable extent of lawful warranted searches conducted by the police acting under probable cause, so this is question-begging of the first water. But leave that aside.) However, there is nothing in his own argument about the reasonable extent of searches to indicate that he would support such a limit under these circumstances. By his invocation of precedent related to police searches, he dispenses with T.L.O.'s finding that a search of a student be "not excessively intrusive in light of the student's age and sex and the nature of the infraction." Whereupon the acceptance of warrantless searches of students granted by T.L.O. becomes purely justified by "Where could a student conceivably be hiding contraband?"

So again, I see no particular reason to cut any slack to a jurist who says that "Even more troubling, it [the Court] has done so in a case in which the underlying response by school administrators was reasonable and justified." Because that sure sounds like "Hurray for strip searches" to me.

And all this from someone who argues, "Parents, teachers, school administrators, local politicians, and state officials are all better suited than judges to determine the appropriate limits on searches conducted by school officials. Preservation of order, discipline, and safety in public schools is simply not the domain of the Constitution." Indeed, where could anyone get the notion that the Constitution was meant to restrain authoritarianism on the part of state actors? Though as a credit to his consistency, Thomas seems to apply similar reasoning when police are acting to preserve order, discipline, and safety, too.

[Brett Bellmore]

"So, according to Brett, since the allegation is occurring now, and not four years ago, the girl is probably lying."

Doesn't sound right to me. I view which side I think is lying, and how much confidence I have in that judgment, as roughly orthogonal.

In he said/she said situations, I have no confidence about who might be lying, though I might have a very weak opinion. And generally think that you should not be able to convict people on the basis of one person's word against their own word.

[Phil]

Nice backpedal from "Unsupported allegations of serious offenses, years after the fact, deserve to be dismissed" to "Well, maybe."

[Sebastian]

"yet also cites T.L.O. to support his argument about the reasonableness of the search. But T.L.O. defines reasonableness in light of the finding that school officials do not act in loco parentis. Cake is simultaneously being eaten and retained for later here."

Umm, cases can be wrong on one point and right on another point. That isn't even remotely troubling.

[mds]

Umm, cases can be wrong on one point and right on another point. That isn't even remotely troubling.

Cases aren't usually wrong on part A, but right on part B if it is derived from part A. T.L.O. first deals with the acknowledgment that school officials do not act in loco parentis. Given that, they go on to outline what qualifies as a reasonable search under those circumstances, balancing the permissibility of the warrantless search against the finding that school officials do not have identical rights to parents. So using T.L.O. to argue that the school's search was reasonable, without accepting T.L.O.'s definition of "reasonable," is a bit of a tricky needle to thread.

But this is just going in circles yet again. Thank goodness none of the other justices saw things this way, even if the price for, e.g., Robert's and Alito's concurrence on the search may have been the qualified immunity finding.

[watchinginwonder]

To further Phil's hypothetical to Brett, some real case history. The head of HR of the company at which I am employed was fired because she took seriously her charge under the law to investigate allegations of sexual and racial discrimination complaints lodged by employees. Most of these internal investigations did determine wrongdoing on the part of the perpetrators. But this ruffled the feathers of the old boy "Masters of The Universe" members of the management committee and so at the first opportunity she was canned. So, not only were the careers of low level employees ruined by the act of seeking justice in cases of harrassment, but a senior executive's career was also ruined and this for discharging her duties under the law! Not to worry, she's suing the bejesus out of the firm and the evidence provided in the public court filing is damning.

And by the way Phil, in this case, there wasn't even a warning or talking to made to the purpetrators. All of the warnings were to the HR head to stop harassing senior executives!

So Brett, can we still conclude that Anita Hill is a liar because as a young woman struggling in the tough man's world of high power lawyering that she should have destroyed her career before it even got started? Now that's sound advice for every one!

[Brett Bellmore]

"So Brett, can we still conclude that Anita Hill is a liar because as a young woman struggling in the tough man's world of high power lawyering that she should have destroyed her career before it even got started?"

Never said we could, in the first place. What I did say was that there's some space between being confident Hill was telling the truth, and being confident she was lying. An awfully wide space after the passage of years, without additional evidence.

[magistra]

The problem with saying that one should be neutral on 'he says/she says' evidence alone, is that it doesn't consider the question of why would either side be motivated to lie. If someone is accused of sexual assault/harassment, they've got an obvious motive to lie. Why would someone be motivated to make up accusations of sexual assault/harrassment and take it the extent of testifying on this and being cross-examined? It's pretty unpleasant to put yourself *voluntarily* into a situation of going into a courtroom, being criticised and disbelieved and perhaps have your character shredded.

That doesn't mean to see that sexual accusations are never faked, but you need to come up with a convincing argument for why an accuser would do that. Ordinary vindictiveness doesn't seem to be adequate: it seems to me to need pathological behaviour to go as far as a court case (rather than just spreading ugly rumours about your enemy's personal and sexual inadequacy). Financial compensation might be a motivating factor in employment tribunals, but not elsewhere. Pressure from someone else to follow through on an initial complaint is also a possibility in criminal cases. But absent such factors, while it's not impossible, it's unlikely that many people would make up false allegations and sustain them long-term in such a public forum as a courtroom.

[mds]

Posted in Dead Thread Land for posterity:

Justice Clarence Thomas, writing for the four dissenters, argued that laws dating back to the nation's founding prevent states from meddling in federal bank regulation. He was joined by Chief Justice John G. Roberts and justices Anthony Kennedy and Samuel Alito.

But on warrantless searches by agents of the State, the Constitution is silent.