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June 29, 2009

In Loco Parentis: Safford and the Female Judge Effect

KJ and I have been debating the merits of Justice Thomas' dissent in Safford Unified School District v. Redding. For those unfamiliar with the issues, here is a succint high level summary:

Question: 1) Does the Fourth Amendment prohibit school officials from strip searching students suspected of possessing drugs in violation of school policy?

2) Are school officials individually liable for damages in a lawsuit filed under 42 U.S.C Section 1983?

Conclusion:
Sometimes, fact dependent. No. The Supreme Court held that Savanna's Fourth Amendment rights were violated when school officials searched her underwear for non-prescription painkillers. [Ed. note: here we have the first of many distortions of fact. The pills in question were, in fact, prescription strength versions of medications that are (at half strength) available over the counter.] With David H. Souter writing for the majority and joined by Chief Justice John G. Roberts, and Justices Antonin G. Scalia, Anthony M. Kennedy, Stephen G. Breyer, and Samuel A. Alito, and in part by Justices John Paul Stevens and Ruth Bader Ginsburg, the Court reiterated that, based on a reasonable suspicion, search measures used by school officials to root out contraband must be "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Here, school officials did not have sufficient suspicion to warrant extending the search of Savanna to her underwear. The Court also held that the implicated school administrators were not personally liable because "clearly established law [did] not show that the search violated the Fourth Amendment." It reasoned that lower court decisions were disparate enough to have warranted doubt about the scope of a student's Fourth Amendment right.

Justice Stevens wrote separately, concurring in part and dissenting in part, and was joined by Justice Ginsburg. He agreed that the strip search was unconstitutional, but disagreed that the school administrators retained immunity. He stated that "[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year old child is an invasion of constitutional rights of some magnitude." Justice Ginsburg also wrote a separate concurring opinion, largely agreeing with Justice Stevens point of dissent. Justice Clarence Thomas concurred in the judgment in part and dissented in part. He agreed with the majority that the school administrators were qualifiedly immune to prosecution. However, he argued that the judiciary should not meddle with decisions school administrators make that are in the interest of keeping their schools safe.

Justice Steven's quote typifies the blissfully fact free reporting and over the top emotionalism this case has generated. Having read the entire opinion (something it seems few commentators bothered to do before opining) I find myself nowhere near certain that the facts in this case support the majority opinion.

Thus, I believe it might be instructive to lay out the full facts surrounding the so-called "strip search" - something not one newspaper account or TV news story I've read in the past week troubled to do. Pursuant to the Obama administration's nomination of Judge Sotomayor, there has been much discussion of the need for more female justices on the Supreme Court. In reading both the decision and contemporary news accounts, it occurrs to me that the outcome in this case was very much influenced by the arguments of Justice Ginsburg, the only female justice on the Supreme Court. What I can't help wondering is, was that a good thing?

It seems to me that this decision is a prime example of the human tendency to begin with an emotional reaction and then reason one's way to a conclusion that produces the "correct" result. There can be little doubt that the mental image of a 13 year old girl being "strip searched" for violating what most of us view as nonsensical zero tolerance policies regarding the possession of over the counter medications like Advil or Tylenol is a profoundly disconcerting one. Part of the problem is that regardless of our political affiliation, most of us find such draconian rules offensive to common sense.

Rather than beginning at the end of the story, I believe it would be more instructive to start at the beginning. Under what circumstances was Savana Redding, a 13 year old middle schooler, first brought to the principal's office? What knowledge, both of Savana's past actions and of similar incidents, did school officials bring to the table? These questions are, I believe, critical to any informed assessment of the school's actions.

1. Background: From Justice Thomas' dissent, it seems clear that the Safford school officials had reasonable grounds for concern that the unauthorized dispensing of prescription drugs by middle schoolers to their classmates posed a serious danger(citations omitted for clarity):

As an initial matter, school officials were aware that a few years earlier, a student had become“seriously ill” and “spent several days in intensive care” after ingesting prescription medication obtained from a classmate. Fourth Amendment searches do not occur in a vacuum; rather, context must inform the judicial inquiry. In this instance, the suspicion of drug possession arose at a middle school that had “a history of problems with students using and distributing prohibited and illegal substances on campus.”

2. Keeping this background in mind, how do you think school officials should have reacted when a middle school student - Jordan Romero - was caught with a prescription painkiller he claimed that he'd received from Melissa Glines, a classmate?

Some more background here (again, from the Thomas dissent, citations omitted):

The school’s substance-abuse problems had not abated by the 2003–2004 school year, which is when the challenged search of Redding took place. School officials had found alcohol and cigarettes in the girls’ bathroom during the first school dance of the year and noticed that a group of students including Redding and Marissa Glines smelled of alcohol.

Several weeks later, another student, Jordan Romero, reported that Redding had hosted a party before the dance where she served whiskey, vodka, and tequila. Romero had provided this report to school officials as a result of a meeting his mother scheduled with the officials after Romero “bec[a]me vio-lent” and “sick to his stomach” one night and admitted that “he had taken some pills that he had got[ten] from a classmate.” At that meeting, Romero admitted that “certain students were bringing drugs and weapons on campus.”

One week later, Romero handed the assistant principal a white pill that he said he had received from Glines. He reported “that a group of students [were] planning ontaking the pills at lunch.”

Question 1: how many of you read any of these facts in the news coverage of this decision?

Question 2: knowing that a student had previously ended up in intensive care after receiving prescription medication from a classmate (and that Romero had also been extremely ill as a result of taking pills given to him by a classmate, and that - according to Romero - a group of children were planning on taking these pills at lunch that same day) would it not have been negligent for school officials to dismiss or minimize Romero's report?

3. It has been widely claimed - mostly by outraged women - that Ms. Redding was being picked on for possessing painkillers commonly used to treat menstrual cramps:

On Oct. 8 of that year, vice principal Kerry Wilson ordered her to his office, where he pointed to some pills on his desk: prescription-strength ibuprofen (the active ingredient in Advil) and Naprosyn, an over-the-counter anti-inflammatory, both commonly used to treat menstrual cramps. Redding denied knowing anything about the pills and consented to a search of her belongings. No pills were found.

Question: are we seriously to entertain the absurd notion that the male student - Jordan Romero - was also using Ms. Redding's prescription painkillers to treat menstrual cramps?

If so, we may consider it proved that the "whiskey, vodka, and tequila" allegedly served at Savana Redding's home on the same evening Ms. Redding and Glines were observed to smell of alcohol and upon which alcohol and cigarettes were found in the girls' bathroom, were being used for purely medicinal purposes. Menstrual cramps can be so painful.

4. It has been suggested by many that the so-called "strip search" was unreasonable on its face because it was occasioned by what many consider to be unreasonable zero tolerance rules. James Taranto comments:

For eight years this column has chronicled the phenomenon of "zero tolerance"--haywire school discipline policies that either treat harmless acts as serious offenses or impose draconian penalties for trivial infractions. Yesterday, in Safford Unified School District v. Redding, the U.S. Supreme Court ruled in favor of a student from eastern Arizona who was the target of such a policy.

Question: Just how trivial is an infraction that puts one student in intensive care and makes another violently ill? Should school officials simply ignore drugs that fail to kill the middle schoolers under their care?

Secondarily, how fair is it to imply that the school's zero tolerance policy was unreasonable (and hence, a search prompted by it) when (in fact) it is a crime to distribute prescription drugs? Though I see the "ick factor" inherent in a strip search (even one that isn't, strictly speaking, a strip search at all), I find it difficult to fault Justice Thomas' reasoning:

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 isnot in doubt. The arrest is constitutionally reasonable.”

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,” for a particular prohibition before conducting a search would “place police in an almost impossible spot,”.

The majority has placed school officials in this “impossible spot” by questioning whether possession of Ibuprofen and Naproxen causes a severe enough threat to warrant investigation. Had the suspected infraction involved a street drug, the majority implies that it would have approved the scope of the search. See ante, at 9 (relying onthe “limited threat of the specific drugs he was searching for”); ante, at 10 (relying on the limited “power of the drugs” involved). In effect, then, the majority has replaced a school rule that draws no distinction among drugs with a new one that does. As a result, a full search of a student’s person for prohibited drugs will be permitted only if theCourt agrees that the drug in question was sufficiently dangerous. Such a test is unworkable and unsound. School officials cannot be expected to halt searches based on the possibility that a court might later find that theparticular infraction at issue is not severe enough to war-rant an intrusive investigation.

Contrast this with Taranto's rather bizarre summation:

One children's right that is implicit in much Supreme Court jurisprudence is the right to sexual innocence.

Is the right to sexual innocence in the Constitution? Oddly, Taranto goes on to say that this case has nothing to do with sex?:

To be sure, there is no allegation in the Redding case that the school officials' motives were sexual, and it is a mitigating factor that no men were in the room when Savana was searched. All the same, inspecting someone's near-naked body unquestionably implicates sexual privacy and innocence. It seems perverse to suggest that a 13-year-old is entitled to less protection in this respect than an adult.

Except that, as Thomas notes, the search standard balancing the perceived seriousness of the offense is the same as that applied to adults. It is only the grounds for the search - reasonable suspicion in the case of children vs. probable cause in the case of adults - that differs.

I find the reporting on this case little short of bizarre. For the most part, rather than reasoning from the facts and the law to a Constituitonally supported conclusion, I see people reasoning from their preferred end state (it is tantamount to sexual abuse to ask a teen aged girl to shake out her underwear in a closed room with a school nurse and another adult female). By this rationale, we should not be surprised to find that being asked to sit in a chair for two hours is also "abusive":

Ginsburg points out that after the search, the school official in charge made things worse by making Savana Redding "sit on a chair outside his office for over two hours." She calls his behavior "abusive." Twice.

It seems perverse beyond reason to equate being asked to partially disrobe in a school nurses' office to sexual abuse, but then we would appear to live in a society where even normal parental diligence is legally actionable:

Reasonable people disagree about whether this was appropriate? How many parents strip-search their own thirteen year olds, let alone other kids? For Advil? I would guess roughly none. In fact, I daresay that if a thirteen year old came to school officials and complained that her parents were strip-searching her, the school might arrange for a home visit from Child Services.

Like Justice Thomas, I suppose I'm "unreasonable". If I found out my 13 year old (male or female) was dispensing prescription drugs to other children at school, he would be lucky to get off with a search of his bedroom and personal effects, and I don't think it's sexual abuse to make sure your child isn't hiding a small item. We aren't talking about cavity searches here. We're talking about being asked - in a school nurse's office - to pull your undergarments an inch or two away from your body and shake them out. At no time was this girl "nude" or even nearly nude, and at no time was anyone going to get more than a glimpse of anything you wouldn't see in the average bikini. Had this been a male student, I suspect the outrage would be muted or non-existent.

I, too, am uncomfortable with the idea of actual strip searches taking place in public schools. But I am also made profoundly uncomfortable by being led by the nose via fact free analyses of a major court decision with a huge impact on our children. I think reasonable people can disagree about this decision precisely because it will be cited to justify preventing school officials from taking even reasonable steps to protect children in their care.

The Court found that:

"...based on a reasonable suspicion, search measures used by school officials to root out contraband must be "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction."

Was there reasonable suspicion? The majority found that there was reasonable suspicion to search Ms. Redding's personal effects. This is the same as saying that there was reasonable suspicion that she possessed prescription drugs that both violated school rules and (if she, as two students claimed she had, given them out to others) violated the law.

What was the objective of the search? You'd never know this from reading the NY Times, but the objective of the search was to find out whether Savana had more of these drugs in light of a report that she had been giving them out AND that a group of students were planning to take the drugs at lunch that day.

Was being asked to strip down to her underwear (and I've never seen girls' underwear that didn't cover more than the average bikini) in the school nurses' office in the presence of the nurse and a female school official "excessively intrusive in light of the age and sex of the student and the nature of the infraction"? That, it seems to me, is a judgment call.

What I do not see in the majority opinion is grounds for creating a Constitutional right to "sexual innocence". In light of Justice Thomas' citing of precedent that allows police to search and arrest adults regardless of the severity of the crime, I also don't see that Ms. Redding was afforded fewer rights than an adult in the same circumstances.

However, your mileage may differ. I suspect that it's the end state we don't like here, and I can't help wondering how much part emotions played in this decision. If that's the result of a more female-friendly jurisprudence, I can live without that.

Posted by Cassandra at June 29, 2009 06:23 AM

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Comments

This got a lot more coverage here in Arizona since it was a local story. Interesting how fast it went all the way to the Supreme Court. Personally I question just where school administration derives the authority to strip search anyone. If there concern was for illegal drugs (I include prescription here), call the police and let them handle it. If it was for illicit aspirin (or equivalent) that violates a school policy it's just plane out of line. I don't think school administrators have any business doing searches.

Posted by: Pogue at June 29, 2009 10:24 AM

Well, there's another question.

Is a search at a police station *less* traumatizing to a child that one carried out by a female medical professional?

Again, I'm not sure I want schools strip searching (even though this wasn't really a strip search) kids. But I do question whether parents and others fully understand what schools are dealing with?

Secondary question: if girls are this delicate, fragile, and in need of special protections, what on earth does that say about equal opportunity laws?

Posted by: Cassandra at June 29, 2009 10:29 AM

Bonus question:

Was the search "unconstitutional"? Or merely inadvisable?

Posted by: Cassandra at June 29, 2009 10:32 AM

Well, Cass, you overlooked one thing in your evalution as you claim her guilt. She didn't have any on her. Even after the body cavity search by a big harry guy named Buster. (kidding-his name was Dweeb)

As for you criticism of Taranto, I will defend him. A point not perhaps explicitly made was (as you quoted his logic) a parent might get in trouble for strip searching a 13 year old daughter. Thus, if the standard is loco parentis, the school should be criticized as this is the "same protection" the 13 year old would have at home. In other words, if our society might frown on the parent doing it, how do we say it is OK for the school? He wasn't endorsing either principle, but simply applying the logic consistently.

Next - the school is not a law enforcement agency. If they had reported her to the police, and the police had arrester her, they could do the strip search as Thomas point out.

I don't know this, but I find it questionable that the school had "probable cause" for that kind of search had law enforcement policies been applied. If so, then she would be getting less protection than an adult.

The school gets a lot of latitude. Chasing down pills that are twice as strong as what you get OTC (oh my, I would have to take 2 of these to get the same effect?) by looking through underwear is beyond where I draw the line.

Bottom line is if the school is dealing with "crimes" (real crimes, as this might have been admittedly) and doesn't think it can investigate the situation sufficiently, then call the police.

Still, it isn't like she was snorting "whip-its" after all.

[I agree wholeheartedly with your real point - read the decision, the media sucks, public schools suck (or was that my point?:))

Posted by: KJ at June 29, 2009 10:33 AM

I came to a similar conclusion, but for a different reason.

Essentially, I believe it is not the courts job to decide if a particular law or it's application is smart. While strip searching a teen for advil is dumb, that doesn't mean it's unconstitutional. If your only objection is the type of contraband then what you are doing is judging the smartness of the law not the legality of it. Either I can search for the contraband or I can't. Not, you can search for this contraband because it's smart and not this other contraband because that's dumb.

When you do that you substitution your personal policy preferences for what the law actually says. We typically call that judicial activism.

Posted by: Yu-Ain Gonnano at June 29, 2009 10:33 AM

One more point I didn't bring out in the post:

The reason this escalated the way it did is that there were two reports that indicated to the school that this girl was handing out pills to other students.

There was one report that gave them grounds to be concerned that there were more pills out there and that they were going to be ingested at lunch (so there was a time concern). Clearly this isn't (as so many of the outraged female contingent contend) a case of one girl giving another girl her Midol.

I think it's important to consider all the facts of the case. Like Pogue, I'm not thrilled with the idea of schools searching a student's person as opposed to their effects. But the alternative is (as he states) calling the police in every time.

Puts an interesting twist on 'reasonableness', doesn't it?

Posted by: Cassandra at June 29, 2009 10:36 AM

It was inadvisable b/c it was unconstitutional.

Is a search at a police station *less* traumatizing to a child that one carried out by a female medical professional?

No, but if the point is really law enforcement and safety rather than some school rule, it is appropriate (if probable cause exists) and constitutional.

Secondary question: if girls are this delicate, fragile, and in need of special protections, what on earth does that say about equal opportunity laws?

Agreed - we must put an end to women's suffrage!

Posted by: KJ at June 29, 2009 10:37 AM

Well, I remember quite well that when I was 12 or so, there was a rumor going around that you could get high from taking a lot of aspirin.

Think back to your school days. Three guesses who decided to try that one out?

Now aspirin can make your stomach bleed. Other NSAIDS like Tylenol and Motrin can cause permanent damage to your liver and kidneys. A small thing you may want to think about.

Also, regarding a parent strip searching their own kid. I think we have really oversexualized things that are not sexual. I don't think a parent searching their own kid is anywhere near actionable. What is scary is that so many people think it should be, absent other evidence of abuse.

I think some people need to stop assuming everyone is a pervert even when (as Taranto admitted) there is exactly ZERO evidence of that here.

Posted by: Cassandra at June 29, 2009 10:41 AM

Yu - this is an analysis of the 4th amendment. The 4th amendment prohibits "unreasonable" searches and seizures. There is simply no way to avoid a constitutional analysis of what is "unreasonable" without personal policy preferences influencing one's decision. It can be minimized - e.g., I think lots of things are unconstitutional that other people do not - like random traffic stops as part of a DUI sting. I think it is an "unreasonable search and seizure" b/c it is by definition w/o probably cause. Others - like our current court - disagree.

What are you supposed to do when interpreting the constitution and it uses words like "reasonable"? Some policy decisions have to be made.

Posted by: KJ at June 29, 2009 10:42 AM

rather than some school rule,

But the power of the school to make said rule was not being challenged. Does that not mean the court must accept that this power is valid?

Posted by: Yu-Ain Gonnano at June 29, 2009 10:42 AM

Also, the Constitutional standard that applies here is NOT probable cause, but reasonable suspicion.

Posted by: Cassandra at June 29, 2009 10:42 AM

I'd also like to say one more thing: courts have traditionally been far more lenient about searches and seizures whose goal is INTERDICTION. The prohibition against unreasonable search and seizure was intended to protect us against seized evidence being used in a court of law.

Military personnel are searched in this manner all the time and it is upheld because the goal is not prosecution, but interdiction.

Posted by: Cassandra at June 29, 2009 10:44 AM

Boy, my "e.g." was really off point wasn't it.

FWIW, I am fine with most of our war on terror actions, many discussed here over the last 9 years. Many disagree with me, though not so many here.

Posted by: KJ at June 29, 2009 10:44 AM

I don't know KJ, she has been caught for prior consumption on-site, has prior accusations of distribution off-site, and was accused of distribution on-site for on-site consumption.

Seems pretty reasonable that she might be in possession of contraband to me.

What's unreasonable to me is that advil, at any strength, has been banned. But that wasn't what was being challenged.

Posted by: Yu-Ain Gonnano at June 29, 2009 10:53 AM

"interdiction" is what the kids are calling it today? I thought military personnel were searched in this manner b/c they were hot, individually and for each other. Or maybe I've been watching too much Cinemax.

Posted by: KJ at June 29, 2009 10:54 AM

/smack!!! :)

Side effects of ibuprofen in children:

Asthma
Children who suffer from mild to moderate asthma may be susceptible to ibuprofen-induced asthma attacks, although the chance of occurrence is small. Those susceptible to ibuprofen-induced asthma attacks are sensitive to the other non steroidal anti-inflammatory drugs as well, although ibuprofen is the least likely to cause an asthma attack.

Liver Failure
Liver failure results in the reduced capability of the liver to detoxify the blood of drugs and other toxins. Ibuprofen can exacerbate liver failure and its associated signs and symptoms. Jaundice is the inability of the liver to remove bilirubin from the blood resulting in the yellowing of the skin and eye sclerae. Nausea and vomiting are two side effects that may also occur. The liver works with the kidneys to remove excess fluid from the body, so decreased liver function can lead to edema in the legs.

Renal Failure
Children with renal failure should avoid taking ibuprofen as it can lead to further damage and exacerbate renal failure signs and symptoms. Ibuprofen decreases blood flow to the kidneys, which can decrease urine production and concentration. The kidneys' inability to remove excess fluid from the blood, coupled with decreased renal circulation, can result in edema in the legs or ascites in the abdomen.

Peptic Ulcer Disease
Ibuprofen works by blocking the enzymes that produce prostaglandins. Prostaglandins are a chemical that induce pain and inflammation. They also promote mucus production in the stomach. It is this mucus production that prevents ulcers. Children with peptic ulcer disease have interruptions in the mucosal layer in the stomach. Ibuprofen can worsen this condition. Symptoms include a dull, achy pain that can be worsened with food. This pain occurs in the area of the belly button and above. It is important to note that the symptoms of peptic ulcer disease are different for children than for adults.

Stevens Johnson Syndrome
Stevens Johnson Syndrome is a severe condition that causes lesions and blistering on the skin, and lesions in the mucosal membranes within the body. It is a rare condition that can lead to death from complications, especially if the condition is not recognized and ibuprofen use stopped. Ibuprofen is directly related to Stevens Johnson Syndrome. Some adults may also develop this condition.

Posted by: Cassandra at June 29, 2009 11:01 AM

FWIW, I'm not claiming Ibuprofen is as dangerous as some other prescription drugs.

What I am saying is that the school was not unreasonable to be concerned just b/c Advil is also available (half strength) OTC.

Posted by: Cassandra at June 29, 2009 11:02 AM

Man, I really feel for Stevens Johnson.

Posted by: KJ at June 29, 2009 11:09 AM

KJ raises a good point, which is that a lot of Constitutional standards unavoidably apply sliding scales and policy preferences. That's not so much because the Court has fallen abjectly into judicial activism; it's because the Court has built up a considerable tradition of applying a variety of levels of scrutiny to violations of various rights depending on how important the right is, how absolute its prohibitions, and how close we are to the center rather than the fringes of the protected behavior.

Some violations require "strict scrutiny," meaning that the law may well be struck down even if there seems to be a pretty good practical reason for it, just because the right to be protected is so important. Other alleged violations of Constitutional rights require only a showing that there is some defensible state policy being pursued by non-arbitrary means. Using these standards, the Court traditionally examines how important the Constitutional right is, how important the state policy is, and how reasonably the state acted in tailoring the controversial to pursuing the state goal. That is, the Court inquires whether the state did a good job of picking a method that did not outrage the citizen's rights to an unnecessary or arbitrary degree under the circumstances.

So the Court is accustomed to sifting through things like whether the school's concern about the potential danger of prescription drugs was terrifically acute when weighed against the societal concern about the sexual privacy of a 13-year-old girl. It's been a traditional Constitutional approach for a long time. It may not be completely fair to characterize it as judicial activism -- or, at least, we usually reserve the term "judicial activism" to describe a different sort of imposing personal preferences over the established meaning of the law and the Constitution.

"The right of the people to bear arms shall not be infringed" has a very different character from "searches and seizures shall be reasonable" or "use due process when taking away property," because the concepts of "reasonable" and "due" inherently draw us into examinations of circumstances and policy preferences.

Posted by: Texan99 at June 29, 2009 11:14 AM

This is exactly what needs to be done in light of the law and what is missing in the firefighters' case.

Context and the applicability of the law.

The idiocy of this type of fearmongering is what drives homeschoolers batty; we hear one side of it and we say 'Oh my, we are sooo justified in keeping our kids home.' Then we hear the other side (the context) and we say the same thing, because if it isn't school officials *heavy sarcasm alert* groping the children, it is the children doping each other up.

I agree with you, and the judgment call was a poor one; were the girl's parents notified?

Excellent post, as usual, and I will be coming back to read more. May I quote you and link to this story to my homeschool group?

Posted by: Cricket at June 29, 2009 11:16 AM

I personally favor fewer sliding scale balancing tests and more predictable rules on constitutional interpretation, Texan99. In that regard, Thomas's approach is useful.

But with the 4th amendmen issues, that just strikes me as impossible. What is "unreasonable" is just too fact intensive to not call into play personal policy preferences. To avoid judicial activism, I think you have to be willing to find thing "reasonable" even if they aren't your preferred choice. It is the hardest amendment to anticipate an outcome even among likeminded people for that reason I think.

Posted by: KJ at June 29, 2009 11:18 AM

Absolutely, Cricket.

Mind you, I'm not happy about the outcome here but I really do think the protestations of trauma are a bit much. In discussing this with a male friend, he related to me that when he was 12 years old, he was required to strip down COMPLETELY in front of the FEMALE school nurse so that she could examine his genital region for "evidence" that he had officially hit puberty.

Of course, this was not "abusive" because he was a boy (mind you, his mother had already been required to have him examined by a physician in order to play football, which was the occasion for this riduculous incident). The "exam", by the way, was fairly routine.

Other alleged violations of Constitutional rights require only a showing that there is some defensible state policy being pursued by non-arbitrary means.

And that is the standard the court departed from, here.

Posted by: Cassandra at June 29, 2009 11:21 AM

The interesting fact in all this is that, had the drug in question been a controlled substance, the Court indicated that they would have ruled differently.

But are controlled substances - taken in reasonable doses, as the Court *assumed* would be the case here - any more dangerous to kids than prescription pain killers? It's not a settled question.

Posted by: Cassandra at June 29, 2009 11:23 AM

What I am saying is that the school was not unreasonable to be concerned just b/c Advil is also available (half strength) OTC.

True, there are some serious side effects, but at the same time, water, in sufficient amounts, can be deadly.

My point is saying "Thou shalt not have 800mg ibruprofen" but then at the exact same time saying "But having 4 200mg ibruprofen is just peachy" is a bit silly.

Posted by: Yu-Ain Gonnano at June 29, 2009 11:24 AM

"But having 4 200mg ibruprofen is just peachy" is a bit silly.

Well, I agree but the concern is this: if a kid gives a few pills to another kid, they have no idea what the dose is (there is no bottle). So they might well pop 3 pills and get 2400 mg where if they popped 2 200 mg they would only ingest 600 mg.

Big difference.

Posted by: Cassandra at June 29, 2009 11:28 AM

Jeeeseee, Cass. These are 13 year olds. You act like their idiots.

Posted by: KJ at June 29, 2009 11:37 AM

Good grief.

Jeeessseee Cass. These are 13 year olds. You act like THEY'RE idiots.

Posted by: KJ at June 29, 2009 11:38 AM

Just wait until your kids are 13 :p

Posted by: Cassandra at June 29, 2009 11:40 AM

The interesting fact in all this is that, had the drug in question been a controlled substance, the Court indicated that they would have ruled differently.

And this is my objection. If the court had said that even if it were cocaine the search would still have been unreasonable then I could get behind the idea that this is a necessary policy preference opinion on what the 4A considers reasonable.

But since they didn't, it really seems as if they are saying: Banning cocaine is smart, banning advil is dumb. But the smartness (nor even the legality) of banning advil was not what was being challenged.

Posted by: Yu-Ain Gonnano at June 29, 2009 11:44 AM

Bingo :)

I think the Court was swayed by the fact that several jurisdictions have categorically banned all strip searches but didn't have the courage to pretend there was a Constitutional basis for setting that strict a precedent.

Posted by: Cassandra at June 29, 2009 11:46 AM

KJ -- you're right about the unpredictability of 4th Amendment decisions. I'm endlessly diverted by "Law and Order"-type shows whose plots turn on the admissibility of evidence. Nothing gets a spirited argument going faster in my household! Despite my strong belief in the importance of keeping the government reined in on searches and seizures, I can get as riled up as the next person over the absurd rules that sometimes get pronounced and over the way the police's hands sometimes get tied, to no apparent purpose. If the rules aren't pretty clear and pretty fair, the whole thing becomes a source of trivial gamesmanship in criminal trials.

Arbitrary laws and unpredictable results spell tyranny for me.

Posted by: Texan99 at June 29, 2009 12:05 PM

GOOD HELK. 'Searching for evidence he had hit puberty?' Why not listen to hear if his voice had changed, ask the family doctor for a statement and get a jock for the dangling participles? What is lacking in common sense here? HANDS OFF THE KID unless you have a warrant and a parent present.

Geez.

Posted by: Cricket at June 29, 2009 12:08 PM

PS -- I see Sotomayor just got overruled on the Ricci firefighter affirmative action case. Good news in my book.

Posted by: Texan99 at June 29, 2009 12:08 PM

I have a recollection of Scalia saying (and I admit to not remembering the source or if it was an interview or an opinion, but I just spent a few minutes on google to no success) that because public schools did not exist at the time of the 4th amendment, a reasonable search or seizure was whatever he said it was. It actually sounds like him and sort of logical for an original intent apprach. Anyway, just saying how hard it is to get past personal policy preferences in 4th amendment jurisprudence.

Posted by: KJ at June 29, 2009 12:26 PM

Like I said, I get that "reasonable" is a personal opinion.

But...

If the decision had been that having been caught on a prior occasion for possession of contraband, discovery of personal effects containing contraband, and an accusation of distribution of contraband do not constitute a reasonable search, that would be a proper application of opinion on reasonableness.

But the decision seems to hang on the properness of the item being considered contraband in the first place.

*That* isn't a 4A question.

Posted by: Yu-Ain Gonnano at June 29, 2009 12:51 PM

YUG -- That's a good point.

Posted by: Texan99 at June 29, 2009 01:10 PM

Jeeeseee, Cass. These are 13 year olds. You act like their idiots.

Posted by: KJ at June 29, 2009 11:37 AM

That is because at 13 years old, they are idiots.
If they weren't, they wouldn't be ingesting prescription strength drugs and we wouldn't be having this conversation and unicorns would be household pets.

Of course, when you have a 13 year old...

heh.

Posted by: Cricket at June 29, 2009 01:11 PM

It seems to me that many of the pundits who wrote about this case (including Taranto) are indulging in a few assumptions of their own:

1. That the only reason this girl brought the pills to school was to use them in accordance with the prescription. (Then why did she give them to a friend, who passed them on to Romero - whom I think we can all agree was unlikely to have menstrual cramps?).

2. That it's "unreasonable" to think middle school students might take the medication in doses exceeding KJ's "two pills". (Why would a group of students be planning to take the pills together at lunch, if not as some kind of stunt or in the expectation that they were doing something dangerous and daring? Keep in mind these are kids.)

3. Why, in light of the prior incident with Romero becoming "violently ill" as a result of.... oh yeah, taking pills given to him by another student ... and another student ending up in intensive care for several days, is it "unreasonable" of school officials to be concerned about the possibility of more (and mixed) pills in circulation?

4. Why, in light of the fact that Savana - a 13 year old - had allegedly served tequila, whiskey, and vodka to other 13 year olds at her home (ummm... where were the parents?) and Savana and Glines had been observed on an occasion where alcohol and cigarettes were discovered in the girls' bathroom on the same night "smelling of alcohol", was it in any way "unreasonable" or excessive to suspect she might be handing out more than just the prescription meds found on Glines and Romero?

5. What difference does it make whether it was "proved" that Redding gave the pills to Glines? Is "proof" the standard for reasonable suspicion (or even for probable cause)?

Posted by: Cassandra at June 29, 2009 03:13 PM

Dernit people, I was being sarcastic when I said you were treating 13 year olds like idiots. Of course they are idiots. I know that. You know that. Helk, a large percentage of 30+ year olds I know are idiots.

Actually, Yun, there is nothing the constitution that prohibits the seriuosness of the offense from being considered in determining whether a search is reasonable. In the context of law enforcment, we usually allow a search to be a search to its logical conclusion, but in the school cases, the precedent was clearly that of a balancing test - the offense weighed with the intrusiveness of the search. I am not offended by that notion, though like I said, I prefer easy to apply rules whenever possible.

I am just not willing to let my law and order side give way to letting public schools have that much power to search kids anytime they want (or even under these facts). I don't trust public schools with my child's education anyway. One reason is how they administer justice over all. So call me a bad person for the school on this jury from the get go.

Posted by: KJ at June 29, 2009 04:35 PM

What matters is that they didn't find the drugs after having her shake her bra and pull out her panties.

Like going for it on forth down early in the game. It is only a good idea if it works.

When Clint Eastwood did it, he was right. That is why we didn't care. Only Jack Bauer can say civil rights be derned, and we forgive him if he is wrong. Some middle school principal is NOT Jack Bauer.

Not fair, but reality.

Posted by: KJ at June 29, 2009 04:41 PM

Admittedly I am taking Thomas' word for it, but according to his dissent the precedent says that the presumption was for the courts not to second guess law enforcement (i.e., if there is reason to believe a law was being broken, the court presumes the arrest is lawful and reasonable):


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.”

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,” for a particular prohibition before conducting a search would “place police in an almost impossible spot,”.

So while the Court was not specifically *prohibited* from considering the seriousness of the offense, they had to ignore precedent to do so.

Posted by: Cassandra at June 29, 2009 04:42 PM

Another precedent Thomas cited (which I did not quote in this post) said that in order to be reasonable, police only had to search somewhere where the contraband might reasonably be secreted (not, as you imply, that if they don't find it the search wasn't reasonable).

So if the contraband is a baseball bat, police can't search your shirt pocket b/c no one can conceal an item that large there.

I'm sure no one is arguing no one can conceal pills inside u-trau, especially in light of several cases that were cited where people did just that?

Posted by: Cassandra at June 29, 2009 04:45 PM

Oh, and ppphhhhtttthhh :)

Posted by: Cassandra at June 29, 2009 04:45 PM

I certainly did not mean to imply that if contraband was not found, it would be unreasonable for search and seizure purposes. That may have been inferred, but I did not imply it. My "we" was the public - not the courts. Thus, my reference to Dirty Harry and Bauer - we the public don't care. The Courts would.

And my post was meant more for humor that actual legal analysis.

I don't know how far we should go with this comparing Principals to cops. I am not willing to give public schol principals the same rules on searches as cops.

If the school is that concerned that it wants everyone in their underwear for a non-medical reason, call the cops.

Posted by: KJ at June 29, 2009 04:56 PM

Setting Constitutional law aside for a moment, I've been thinking about this school all afternoon, and I have to say I wouldn't want to send a child there. If a school couldn't figure out whether it was safe to allow my (hypothetical) daughter to continue roaming the halls without poking around in her underwear, I'd expect them to expel her, or at worst confine her until I could get there.

By the same token, though I don't do drugs, I wouldn't take a job that subjected me to drug tests. There are just some kinds of intrusion I won't brook from people whom I expect to judge me from my behavior or not at all.

Posted by: Texan99 at June 29, 2009 04:58 PM

Well KJ, my personal preferences would be that such a level of intrusiveness is unreasonable regardless of the particular contraband in question. I don't care if she was hiding advil, cocaine, or a gun in her undies. If it's so serious it requires a strip-search, it really is time to get the police involved and get a warrant.

Posted by: Yu-Ain Gonnano at June 29, 2009 04:59 PM

Cass,
Well, let me ask the next question. Because in Georgia, a sheriff became infamour for doing this --since the underwear search did not turn up the drugs, would a body cavity search have been justified? I'm not trying to be over the top. It is just the same logic-we have reasonable suspicion, looked everywhere, must be the underwear-not there?-must be in a body cavity. I am sure Thomas can cite a number of cases where drugs were hidden and found there too. I am not getting all "slippery slope to the absurd" on this; police are allowed to do body cavity searches if the contraband could be there. Schools?

Posted by: KJ at June 29, 2009 05:01 PM

The sheriff BTW would do a BCS regardless of the offense - even for a DUI. He claimed it was for the safety of the jail-might have drugs or a shank up there I reckon. A bunch of women sued and he lost those suits and his job I understand.

Posted by: KJ at June 29, 2009 05:04 PM

would a body cavity search have been justified

What do I think personally?

1. I think it's a bit much to equate asking a girl to pull her OWN bra and undies an inch or so and give them a shake (that's about as much as you can pull a bra or underwear out without taking them off) to either having someone else "poking her in her underwear" (which I realize was a joke but many commentators have implied that this is what happened to this girl), to a nude search, or most especially to a body cavity search.

2. I think that exactly what happened (the male principal sending this girl to the school nurse - a medical professional) office and having a second female present to prevent accusation of abuse, as happens when any girl or woman is examined, is about as far to the edge of what is acceptable as I can justify.

I don't think this - by any means whatsoever - should have "traumatized a girl so much that she never went back to school". That is just stupid.

3. All the same, I don't like it. It's worth mentioning that the other girl (Glines) was searched in exactly the same manner.

No doubt she's in a mental institution now, just trembling all the time from the agony.

4. No, a body cavity search would not be justified. Nor would having her remove her underwear, nor would allowing a third party (even female) to conduct a physical search.

Even though I don't like this, it was done about as correctly as I can imagine and I think it's beyond silly for the Court to say (on the one hand) that current law was unclear as to unconstitutionality and that the school officials conducted an unconstitutional search. Especially when they say that they would have ruled differently if it had been an street drug. That proves that it really was the fact that it was Ibuprofen that tipped the balance, even though there is zero evidence that an unnamed street drug would have posed any greater danger.

Posted by: Cassandra at June 29, 2009 05:12 PM

Also KJ, your sherriff example is different in EVERY particular.

1. No reasonable suspicion that contraband would be located there.

2. He was a man, searching women. Different deal, and you know that.

Posted by: Cassandra at June 29, 2009 05:14 PM

BTW, I spent 2 seconds on-line, I think it relevant to our discussion that a majority of Federal circuit holds that a pre-trial detention strip search is only permissible in cases of misdemeanors or violations when there is a reasonable suspicion that the detainee is hiding contraband or a weapon. I don't know how far Thomas's statements that once an arrest is made there is no limit on what search is permissible is really applied. Certainly, the lower courts do not adhere to that rule. There is a link between the search permitted and the allegation/suspicion/crime.

This might be interesting:
http://www.hcbattorneys.com/publications/Strip%20Search%20Update.pdf

Posted by: KJ at June 29, 2009 05:15 PM

.. a pre-trial detention strip search is only permissible in cases of misdemeanors or violations when there is a reasonable suspicion that the detainee is hiding contraband...

How does that differ from this case, though?

If two people both indicated the contraband came from Redding, was it really categorically unreasonable to assume she might be hiding it somewhere on her person?

I ask this for a reason, KJ. Your underwear is part of your clothes. She wasn't made to remove them. And women and girls do hide things in their bras. I've tucked money into mine before.

I don't say that I would have searched her there, or even that I like the way this came out.

What I'm arguing is: what is the Constitutional and legal basis for declaring this type of search categorically unconstitutional?

Because I'm not buying a Constitutional right to 'sexual innocence' in a case where there's exactly ZERO evidence of any sexual insinuations or misconduct. :p

Posted by: Cassandra at June 29, 2009 05:22 PM

The holding was not that this search was categorically unconstitutional. Just in light of the seriousness of the offense.

And my point is that in other cases of strip searches, involving actual law enforcement, the seriousness of the offense is relevant to whether a strip search is permissible.

Just writing about his however is causing me to feel a loss to my sexual innocense. Good thing you aren't a state actor, Cass.

Posted by: KJ at June 29, 2009 06:02 PM

The school system won't let a child leave campus for a field trip without parental permission. A child cannot take medications at school (even non-prescription strength) without written permission from the parent. A child cannot be suspended from school unless the parents are notified. WHY would anyone consider it even remotely reasonable to do that detailed of a search without notifying a parent? At the very least they could verify with the parent whether or not the child had access at home to the contraband in question.

Posted by: DdR at June 29, 2009 10:24 PM

The school system won't let a child leave campus for a field trip without parental permission.

Because the parents might sue if their child got hurt.

A child cannot take medications at school (even non-prescription strength) without written permission from the parent.

Because the parent might sue if their child got hurt by recommended doses of OTC medications.

A child cannot be suspended from school unless the parents are notified.

Because the parents might sue if their child was unsupervised during school hours and got hurt. Or for some other reason.

WHY would anyone consider it even remotely reasonable to do that detailed of a search without notifying a parent?

Because the parents of other students might sue if school personnel knew a group of students were planning to take pills at lunch time that same day, but failed to take steps to keep their kids safe.

And lest one more person point out that so long as no one took more than two of these pills there was "no danger", there were two previous examples of students at that school taking too much prescription medicine and as a consequence, ending up very sick.

At the very least they could verify with the parent whether or not the child had access at home to the contraband in question.

I agree. The school could have asked. Maybe they would have gotten an answer, maybe not. Maybe it would have been truthful, maybe not. Do you think it's possible that a parent might not tell the truth to school administrators if their child was in trouble? Because I can assure you that happens all the time.

BTW, I still have not figured out why a 13 year old was serving whiskey, vodka, and tequila to her friends in her home at night. Where were the parents? And where did she get the liquor?

As I've said before, my point was not that the search was a good idea.

It was that, on its face, searches of that kind had not been ruled unconstitutional either. Depending on the circumstances, they might be upheld, or not. My point was that the reporting of this story left out quite a few details and most of the background so as to leave the impression that there was absolutely no reason for the search (when in fact the court ruled that the school had reasonable suspicion that she did possess what they were searching for AND reasonable grounds for concern about the welfare of other students). You may think they should have responded otherwise.

I may think that too. But I wouldn't rule all searches of this kind unconstitutional on their face.

Posted by: Cassandra at June 29, 2009 11:21 PM

The search was not a good idea but sadly, happened because of past behavior.

I can see a protocol in place that will just make it harder to get caught, which is the cardinal sin in the first place, not actual wrongdoing, for goodness' sake.

This is a great discussion.

Posted by: Cricket at June 30, 2009 12:26 AM

My only concerns (and no, I'm not a parent) are that the school found it serious enough to warrant a fairly intrusive search, but NOT serious enough to involve police? We ARE talking about a crime here. In the local community here, we've had some problems with the schools intentionally under-reporting or failing to report crimes to authorities in order to avoid the appearance (accurate) of having "trouble" in their schools. I'm not saying that's the case here, but I am saying I do believe the school (as a state actor) DOES have the responsibility to report crimes (even POTENTIAL ones, yes) to the authorities. The school is NOT a law enforcement organization, they are not deputized, nor are they trained to perform searches in a legally prescribed manner. Why in the world is it acceptable for them to act as such?

I agree with you Cass, that the danger of this case is in establishing new Constitutionally protected Rights without any such language existing. And further, I've long maintained that children (as non-adults) do NOT have the same rights as adult citizens (nor do non-citizens have the same rights as citizens, but that's a discussion for another topic). However, anytime there's the accusation of a crime (and yes, they DID accuse this girl of a crime, the very fact they performed a search IS an accusation), law enforcement SHOULD be notified. If they decide to perform the search, well and good.

And one final thing I'd like to explore is the very valid point "what would happen to a parent who did the same thing". Cass, I know your boys are too old for this, but consider for a moment if one of them had been over at a friends house (say at a party) and a similar accusation had been leveled. To include the same accusations that he had hosted a party with alcohol involved previously (because the male student is the one who leveled that accusation in this case, not law enforcement or school officials). Now, let us further suppose that at this house the father is a registered nurse (or other medical professional), and has another adult male friend there as well. Would you, as a mother, have no concern if a pair of men were to conduct a similar search of your teenage son? Or is it merely that school officials are state actors that make this acceptable? I'm not trying to be judgmental, just trying to establish if we're in favor of granting rights to the state that citizens are not allowed (which CAN be a very reasonable position).

Posted by: MikeD at June 30, 2009 10:16 AM

"One pill makes you largerrrrr
And one pill makes you smalllll
And the ones that Mother gives you
Don't do anything at alllll...

...except get you busted if you pass 'em around in school.

Question: Which direction would the MSM -- and the Supremes -- have taken if, instead of drugs, Little Missy had been suspected of packing a handgun into school?

Posted by: BillT at June 30, 2009 10:44 AM

Why in the world is it acceptable for them to act as such?

Mike, that is what in loco parentis means/does. The school acts "in the place of the parent". So your analogy isn't quite right with respect to the father of the house where the child is visiting. Instead of it being his friend's father it would be his own.

That is to say, if I had found that my child had committed the same (purported) violations: distributing alcohol to minors, personal consumption of alcohol (on school grounds, no less), found personal effects containing knives, and an accusation of illegally distributing drugs could I, as the parent, commit the exact same type of search on *my own* child?

Pesonally, I'm not too thrilled with schools having in loco parentis power, but, again, that wasn't what is being challenged in this suit.

Posted by: Yu-Ain Gonnano at June 30, 2009 11:47 AM

Or perhaps an even better analogy would be: could the child's adoptive (vice biological) parent do so?

Posted by: Yu-Ain Gonnano at June 30, 2009 11:55 AM

...if I had found that my child had committed the same (purported) violations: distributing alcohol to minors, personal consumption of alcohol (on school grounds, no less), found personal effects containing knives, and an accusation of illegally distributing drugs could I, as the parent, commit the exact same type of search on *my own* child?

This is partly what bothered me so much about this story - the idea that even a parent can't do things that are reasonably related to discipline or keeping a child safe. That is just nuts.

And frankly, treating every single adult as a potential pervert doesn't sit well with me either. I didn't grow up that way and statistically the incidence of abuse is no greater than it was when I was a kid. Somewhere along the line I think it's not unreasonable to grant a school nurse the benefit of the doubt :p

Posted by: Cassandra at June 30, 2009 02:37 PM

This is exactly the kind of idiocy that ends up making little kids run screaming from any friendly adult. They've been so over-sensitized to "stranger danger" that they act silly. There is reasonable caution, and then there's paranoia.

As much as I don't like the notion of the "strip search", the male principal sent her to a female health professional and ensured there was another female present so they would monitor each other. The outrage seems a bit much to me. After all, the other girl was searched in exactly the same fashion.

If I went bonkers over such a silly thing, I think people would be right to question how securely my head was screwed on in the first place. This isn't "trauma". It's just embarassment - something that's highly survivable, Justice Ginsburg's attempts to sensationalize the whole thing notwithstanding.

Posted by: Cassandra at June 30, 2009 02:41 PM

Somewhere along the line I think it's not unreasonable to grant a school nurse the benefit of the doubt :p

When it comes to something like this being considered a sexual violation, I absolutely agree. There is absolutely no evidence, circumstantial or otherwise, that this was just some trumped up excuse so that the nurse could get her rocks off.

But like you, I am profoundly uncomfortable with the idea that the school occupies the same legal space as a parent. But no one bothered to argue that case. Mores the pity.

Posted by: Yu-Ain Gonnano at June 30, 2009 02:59 PM

As a parent, my personal sense of outrage was triggered by the point that all of this happened and the girl's parents weren't notified until well after the fact. This is a soapbox topic for me: If my children have done something that would warrant them to be removed from class, then I warrant a phone call. period.

Posted by: DdR at June 30, 2009 03:23 PM

Posted by: Yu-Ain Gonnano at June 30, 2009 02:59 PM

Yes, truly, more's the pity.

Posted by: DdR at June 30, 2009 03:26 PM

If my children have done something that would warrant them to be removed from class, then I warrant a phone call. period.

I completely agree with you on that one!

I may be being unfair here (I'm very aware that I'm going on a hunch) but I didn't get a good feeling about the parents in this case. None of which means their right to be informed went away, though. It's a valid point.

Posted by: Cassandra at June 30, 2009 03:59 PM

> One week later, Romero handed the assistant principal a white pill that he said he had received from Glines. He reported “that a group of students [were] planning ontaking the pills at lunch.”

Uh, that statement right there hits pegs my bogometer, Cass.

1) You don't get "high" -- in any way, shape, or form, from Ibuprofen. You just don't. You'll get very sick if you take too much (it's much more upsetting to the stomach than aspirin is), but you won't get high.

2) You also fail to indicate what drug it supposedly was that made the idiot student sick and "hospitalized". Ibuprofen can do that, the latter if the parent in question was overly cautious, more than anything (not to suggest criticism, when your kids are concerned, you overreact somewhat just to be on the safe side).

3) "Prescription strength" ibuprofen is literally irrelevant. You can get the same dosages just by taking more of the OTC brand, and I've easily, on some occasions, taken 4, rather than the recommended "2". Not certain about the age-or-body-mass-relevancy here, but still -- it's hardly a dangerous drug.

4) Did the school officials make any effort to identify the drug before taking up the matter with the student (almost all drugs can be readily identified if you know how -- and a simple call to a local pharmacy could probably provide this info)? Again, this is kind of an element of the "ZT" policy. "It was a drug, it didn't matter". Uh, "gimme a friggin' break". When you start doing anything bordering on a body cavity search, yeah, it matters.

5) It is a rather extreme step, to my lights -- even if you have mild suspicions as you suggest from the student's history -- to cause any student to forcibly strip before an authority figure, simply on the say-so of another student. I'm not assuming the student in question is
a) going to be honest, given the situation of him possibly being pissed off because he got sick
b) going to be honest based on the fact that he didn't get high.


My overall problem with all this is that I think it's gone overboard as a whole. All of this is a part of the indoctrination system for being good little sheep:

OBey. Do Not Question Authority.

You tell me to "strip", you better have several very strong goons with you.

And that's not something I'd expect to be different for a minor child.

If they really suspected her that much, then they needed to bring the parent in on the consultation.

That -- even the threat of it -- might have been enough to manage capitulation and confession, esp. if "reasonable" penalties for an admission immediately were laid out.

I will guarantee you that, any principal -- male or female -- orders MY child to strip, without my being present, that SOB better have good health insurance, because s/he's going to the hospital for longer than I'm going to jail.

Unless they have massive reason to believe my child has somehow secreted a bomb on their person, they cannot possibly justify such action as requiring so much immediacy that I'm not there to deal with it.

And that's where my real objection comes from -- you cannot argue in favor of strip-searching a minor child in the absence of their parents ability to come to their defense (or, in fact, to find a more direct approach to the problem).

This is a blatant usurpation of parental authority by the school's admin.

There's a fine line. Sometimes, it should be a fence. This is such a case.

Posted by: Lucrezia at June 30, 2009 07:18 PM

All of this is a part of the indoctrination system for being good little sheep:

OBey. Do Not Question Authority.

******************

Yeah. That's exactly the attitude we need more of in today's kids.

It's funny. When I was in school, one of the most important lessons being taught was exactly that: you can't pitch fits, you can't break rules, and [wonder of wonders] sometimes there is someone you may just have to mind.

Of course school administrators are so afraid of being sued now that two adults can't even remove a screaming, biting, kicking 2nd grader from the class to protect other students b/c if they touch him, they'll be sued or threatened with violence by their overbearing, worthless parents.

Posted by: Cassandra at June 30, 2009 07:45 PM

Cassandra,
I agree with you; one of the questions raised in my sociology class was how schools (!) indoctrinated children into being sheeple, and they were to agitate for social change, so being docile and obedient was a form brainwashing to Authority as represented by teachers and admin.

Every single sociology major/social worker wannabe agreed!

I sort of sailed in there with a Cold Thought of reality. The Rules, as such were there to facilitate learning, which would go a long way to reducing kids on the slow track, and probably more so than any free meals would. I also pointed out that we expect a standard of behavior in places of worship, we should expect no less in a place of learning.

Not only that, the Rules were there for safety reasons.

The professor, a social worker who worked with adoption reattachment disorder, told me she not only agreed with me, but that establishing a minimal standard of expectations with the natural consequences would do more to adjust 'self-esteem' in a positive way than rewarding good behavior.

Imagine that.

On the otter heiny, the incessant rewarding of children for good behavior does not give them a moral foundation for continuing to do so.

*falls of soap box and goes back to 'accounting for managers*

Posted by: Cricket at June 30, 2009 10:47 PM

Re: in loco parentis

I guess that's my exact problem here. The school performed a search that I honestly believe would get child protective services involved if a parent tried to perform it on their own child (much LESS someone else's). So if a parent could not perform such a search, then how in the world can the school?

Any such search, following the actual accusation of a crime (since drug distribution IS a crime) should, and in my opinion MUST, be performed by law enforcement officials. AND parents should be notified. I am ok with the school detaining the child until law enforcement arrives (even though that too is outside the scope of their responsibilities) and kept under observation to make sure the child doesn't dispose of evidence. But leave the search for evidence to law enforcement, NOT a school nurse.

Posted by: MikeD at July 1, 2009 09:23 AM

The school performed a search that I honestly believe would get child protective services involved if a parent tried to perform it on their own child (much LESS someone else's). So if a parent could not perform such a search, then how in the world can the school?

How eager we are to delegate authority and responsibility to someone else.

As a parent, I'd have exactly zero hesitation to perform exactly that kind of search on my own child, given a reasonable suspicion that he was hiding anything. Why do we trust a cop more than a school nurse?

My son is a police officer, and frankly if my child were to be "strip searched", the police would be the last folks I'd want performing such a search.

Cops are used to dealing with the worst of humanity and though they often perform admirably in circumstances I wouldn't want to deal with, their expectations are colored by the scum they deal with. A school nurse, on the other hand, deals with children.

Anyone can do the wrong thing, given the right circumstances. But I have to say that I find the presumption that being asked to shake out your OWN u-trau behind closed doors and in the presence of two adults of your own sex is an unforgivable abuse or some kind of perversion to be little short of astonishing.

Could this have been handled another way? Possibly. But once again, the news accounts which all stress that Ms. Redding was an "honor student" with an "unblemished conduct record" oddly fail to note any of the surrounding circumstances, much less that Ms. Redding's Day Timer (how many people lend their DAY TIMER to another person?) was full of pills and knives.

And yes, she says "I loaned it to a friend and the things inside weren't mine".

Do school children now require knives to treat their menstrual cramps, too? Sorry. Something ain't adding up here.

Posted by: Cassandra at July 1, 2009 09:35 AM

I am ok with the school detaining the child until law enforcement arrives (even though that too is outside the scope of their responsibilities) and kept under observation to make sure the child doesn't dispose of evidence.

Ah. But this, too, was cited by Justice Ginsburg as "abusive". Twice.

Posted by: Cassandra at July 1, 2009 09:37 AM

So if a parent could not perform such a search, then how in the world can the school?

See, I have no problem with a parent doing to their child exactly what the school did. Actually, I wouldn't have a problem with it if the parent did a full strip search (which did not happen here). Let's face it, it's not the first time they have seen their child naked. Which is not to say that I think the school should be able to do anything a parent can, but again, no one challenged the doctrine of in loco parentis so the court has no choice but to accept it as valid.

And while distributing prescription drugs to those without a prescription is a crime, the school had no intention of prosecuting said crime. In the same manner, schools can detain and punish children for fighting even though assault is a crime (if you so much as put someone in fear that you will hit them it qualifies as Assault, much less if you actually do it). Do you want to argue that the school has committed a 5A violation by depriving the students of liberty without due process of law? Because that's what saying all crimes MUST be handled by law enforcement entails.

Posted by: Yu-Ain Gonnano at July 1, 2009 09:52 AM

1) You don't get "high" -- in any way, shape, or form, from Ibuprofen.

You know that and I know that, but would a 13 year old. Keep in mind that until just a couple years before, many of them still believe in Santa Claus.

2) You also fail to indicate what drug it supposedly was that made the idiot student sick and "hospitalized".

Because, to my knowledge, no one ever stated what it was. And given the situation it's quite likely the student who got sick as well as the student who supplied it didn't know what it was themselves.

3) "Prescription strength" ibuprofen is literally irrelevant. You can get the same dosages just by taking more of the OTC brand

Absolutely, which is why it's stupid to ban it, but at the same time, a stupid 13 year old is much more likely to take 3 pills than 12. So it does matter from a logistics (though not philisophical) standpoint. While this is unlikely to cause serious or lasting harm, the janitor who has to clean up the puke won't be too happy :-)

Again, this is kind of an element of the "ZT" policy. "It was a drug, it didn't matter". Uh, "gimme a friggin' break". When you start doing anything bordering on a body cavity search, yeah, it matters.

First, like in loco parentis no one bothered to challenge the ZT policy and so the court is bound to honor it. Second, having the student shake out her own undies no more "borders on a body cavity search" than Georgia borders on California. Sure, they're in the same hemisphere, but there's no touching.

OBey. Do Not Question Authority.

And will your boss need some very strong goons with him when he tells you do something too?

Will your neighbor need some very strong goons with him when he tells you do stop stealing his stuff?

After all, why should you have to obey authority?

Posted by: Yu-Ain Gonnano at July 1, 2009 10:24 AM

"After all, why should you have to obey authority?"
As with training, conditioning, and self-discipline, it helps one avoid encountering their perfect (cell)mate via incarceratedHarmony later in life!

Interesting thread on yet another topic I've not had time to follow in the news. Walkin' Boss has been a brutal taskmaster of late...

Posted by: bt-the resident-curmudgeon_hun at July 1, 2009 11:01 AM

True, but if that is your only motivation then you are essentially saying that those jailed for murder are not wrong, they simply did not bring enough violence to the party to win.

It's not "Might makes right", but "Might makes right irrelevent".

Posted by: Yu-Ain Gonnano at July 1, 2009 11:59 AM

As a parent, I'd have exactly zero hesitation to perform exactly that kind of search on my own child, given a reasonable suspicion that he was hiding anything.

Please note, I did NOT say it would be inappropriate for a parent to search their own child in this manner. What I said is that I believe (stressed because what I believe should never be confused with facts) that a parent doing so might be confronted with child protective services. Not that they should be, but that they might be.

Ah. But this, too, was cited by Justice Ginsburg as "abusive". Twice.

And believe me, I never have argued that Justice Ginsburg is burdened with an abundance of common sense. And never would.

Do you want to argue that the school has committed a 5A violation by depriving the students of liberty without due process of law? Because that's what saying all crimes MUST be handled by law enforcement entails.

Actually, no. What I am saying is that, if for no other reason than properly maintained custody chains, only folks who are actually TRAINED in search and evidentiary procedure ought to be performing searches. And that if a school is prepared to accuse someone of a crime, then it should be serious enough to justify calling law enforcement.

Posted by: MikeD at July 1, 2009 01:12 PM

I have real problems with the attitude that adults who are entrusted with the care and safety of kids have to walk on eggshells.

Of course they make mistakes (and some are actively bad and ought to be punished). But most adults - especially those in schools - are trying to do a difficult and frustrating job.

The notion that all parents are responsible is laughable. And I think also that we have - along with the zero tolerance nonsense we rightly ridicule - enforced much the same standard on caretakers. It's stupid - without some sense of morality or commonly agreed upon values, every adult act is made in contemplation that they will either be blamed for not acting or if they act, accused of acting improperly. Somewhere in here there really needs to be some allowance for honest error.

I think I was a damned good parent.

But I also realize that, viewed in isolation, some of my less fine moments could also be used to make me appear uncaring or even abusive. When we ask schools to take on most of the functions of parents and then refuse to let them do their jobs - or worse, demand an inhuman degree of wisdom and perfection from them - we depart from sanity.

I don't believe all searches are created equal. A search made in expectation of securing incriminating evidence is MUCH different than one conducted for purposes of interdiction. They are treated differently in law and ought to be treated far differently in schools, just as they are in military barracks.

Sometimes, even if a child has committed a crime, we don't need to haul him or her off to the police or courts. A judicious word or even informal discipline can do wonders towards letting a child know that adults care and also are watching. I don't want police in schools all the time. They are hemmed in by rules that can make a mountain from a molehill.

Just as parents are imperfect, so are teachers and school administrators. Monitor, complain if needed, run complaints up the chain if you can't obtain redress or reassurance that something was a mistake or an isolated instance that will be guarded against in future.

But at the point parents start suing schools, I begin to wonder at the motivation.

Posted by: Cassandra at July 1, 2009 01:24 PM

Well, now I'm about to totally confuse you here Cass. Even though I am pretty Libertarian, I'm actually going to get all Authoritarian here. If everything as presented in this entire thread is true. The girl in question has frequent run ins with school rules with alcohol and knives and whatnot, and if they actually caught her with the medication in question on her... she should have been arrested and prosecuted.

Yes, I believe most drugs should be legalized. However, they currently are not. So I have no sympathy for those caught violating the law. A kid who is caught with a joint... sure, lecture them and move on. If they're distributing? Throw em in jail (or at least juvie hall).

Fundamentally, I AGREE with you (and most of the posters here) that this is a bad decision. I do not thing it is wise or advisable to give schools such pathetic guidance as "well, this time it was clearly egregious. But if she had cocaine, then it would have been ok." So... if it's Meth? Oxycontin? Xanax? Demerol? At what point is the cutoff?

My problem is with the concept of uneven application of principles. If a parent would have to fear performing a partial strip-search without the possible involvement of child protective services (and yes, I still believe they might), then a school operating in loco parentis should also be leery of doing so. But if the school is given a green light, then so should parents. Really, that's my only beef with this whole mess. Set a clear standard (kind of what I was attempting to do with the "call law enforcement") and leave evidence to the professionals. Interdiction is fine... but what if the girl had a prescription for the medication in question. Could they seize it from her on the accusation that she intended to distribute? But then wouldn't that (barring evidence of intent to distribute other than the accusation of another child) be overstepping the concept that the child has a presumption of innocence? This whole thing is just kind of a sticky wicket to me for a variety of reasons.

What I DO know for certain is if it had been me, all the school would have needed to do would be to call my parents. They'd have whooped the tar out of me if I had been in the wrong. But I also know, parents like mine are now in the minority, and I also know that the fact that they WOULD have whooped the tar out of me is a large part of the reason I AVOIDED wrongdoing at school. Imagine that.

Posted by: MikeD at July 1, 2009 02:18 PM

What I am saying is that, if for no other reason than properly maintained custody chains, only folks who are actually TRAINED in search and evidentiary procedure ought to be performing searches.

Chain of custody and evidentiary procedures only matter in a court of law. If one screws them up, the evidence becomes inadmissable. But if one were never going to prosecute anyway, it kind of renders the concern moot, doesn't it?

And that if a school is prepared to accuse someone of a crime, then it should be serious enough to justify calling law enforcement.

But assault *is* a crime. And the school absolutely does accuse students of committing it. So here we have a school prepared to accuse someone of a crime which, by your own argument, should always result in calling in LE. But then you say they shouldn't.

So which is it?

Must they always call in LE when accusing a student of a crime or not?

Posted by: Yu-Ain Gonnano at July 1, 2009 02:30 PM

"True, but if that is your only motivation then you are essentially saying that those jailed for murder are not wrong, they simply did not bring enough violence to the party to win."
YAG, if that is in response to my little wise crack, I would have never imagined that such a conclusion could be drawn from the comment. Of course that is not the only motivation for most folks. But unless Walkin' Boss and I did the whole child rearing thing all wrong, children learn through consistent, repetitive instruction, along with varying degrees of discipline, judiciously applied, when their bad behavior merits unpleasant consequences to said tyke as part of the whole right versus wrong framework construction.

Teaching the little tyke that the severity of the consequence is proportional to the misbehavior always seemed to me to be the superstructure of understanding that right, while often boring, is preferable to wrong. Pitch a fit when you're 8 years old at the dinner table, timeout. Make momma's life miserable and the storm-front/high-pressure area known as dad rolls in and applies incrementally more attitude adjustment, as appropriate. Rob a bank, become illegally involved with controlled substances, break any other criminal laws etc., etc., etc., you get to go to prison.

Now a one size fits all respect authority creed is a good thing. Then again, in a totalitarian context, not so much.

Anyway, I extend my apologies for my weak attempt at humor and for this example of excessive bandwidth consumption. I really should not have said anything since I'm fairly pressed for time and have not been able to throughly read and consider this topic.

I think I'll resume my read-only mode unless and until I have time to jump in with both feet. Ok, after I say that, from what I've read in haste on this thread, I think there's not much daylight between what M'lady Cass has argued and my thoughts on the topic.

Astla Winnebago for now.

Posted by: bt-the resident-curmudgeon_hun at July 1, 2009 02:55 PM

I suspect most of us are more or less on the same page. And if not, that's OK too.

It would not be much fun having a debate if everyone agreed with 100% of what every other commenter had to say.

I also suspect that people are reacting to various peripheral issues here. I am looking at it both from the standpoint of a parent who has raised two boys and of a concerned citizen who thinks that when grownups refuse to act like adults that doesn't make it very easy for schools to keep kids safe, much less teach them anything.

We all have to submit to legitimate authority at times, and contrary to what people like to posit in hypothetical situations we *don't* always act with perfect knowledge or perfect information.

I began as a parent thinking spanking was awful and borderline abusive. All it took was one object lesson when my toddler found it "amusing" to ignore a direct order from me to realize that a child who expects every goddamned thing explained to him as though he were a fully functioning adult before he'll mind is not only a colossal pain in the ass to society, but a danger to himself. The idea that people who realize there are larger things in the world than their own egos are sheep is a bit strong for my taste.

My husband is hardly an automaton. I've heard him tell people who far outrank him that they are wrong. But he also knows that no human organization ever created functions well when every person in it is a freaking in-duh-vidual with rahts. At about the time that your DayTimer is found with contraband and knives in it on school property by the principal, I'd say it's time to make like a tree and bend a bit with the prevailing winds.

Sometimes, things really aren't all about us and our feeeeeeeelings. Sorry to be blunt, but the whole "trauma" thing is utter crap. It ain't a hill I would have died on at 13 and trust me, I've had worse happen to me and at about the same age, too.

Oddly though, I didn't feel it necessary to involve the Supreme Court. I also didn't get 'ulcers' and never go back to school. It our genetic stock is this weak, we really are in trouble as a nation.

Disclaimer: The preceding is a generalized rant and not directed at any particular person.

Posted by: Cassandra at July 1, 2009 03:21 PM

bt, the comment wasn't directed at you, just fueled by you and directed at Lucrezia/OBH, whose comment reeks of saying that all authority is illegitimate.

Which simply boils down to saying that the only limiting factor in behavior is your ability (and the ability of those around you) to project violence. After all, who are *you* to say I can't steal. *You* have no authority over me. That is, unless Smith&Wesson say otherwise.

Posted by: Yu-Ain Gonnano at July 1, 2009 03:27 PM

This is what bothers me about libertarianism as a governing philosophy: it really does not account for the minimum level of protection needed by women (for instance) and most especially by women who have even a vestigial interest (quaint though the notion obviously is) that it's their job to protect children from predatory adults.

Libertarians love to predicate their positions on a world where everyone acts like an adult and their answer to every contradiction between their philosophy and human nature is, "Hey - sucks to be you but it's *your* job to protect your kid from me and others like me. Meanwhile, I'll do as I damned well please and you can't stop me."

That seems a bit short sighted, given that most kids grow into adults and the vast majority of messed up adults were victimized as kids.

And by "victimized", I don't mean "forced to shake out their own underwear in a school nurse's office" after school officials found their DayTimer full of knives and pills.

I mean *really* victimized.

I get people like MikeD. But I don't get the vast majority of libertarians nor the conservatives who spout libertarian views when it's personally convenient but have no problem limiting the behavior of those they disagree with :p

No parent - NO PARENT - can always be with their kid. In point of fact, most parents spend fewer than 2 hours a day with their children. The rest of the time your child is wandering around in a world that just doesn't care about your child as much as you do and for the most part has zero interest in his or her welfare.

Posted by: Cassandra at July 1, 2009 04:31 PM

I am a stay-at-home Mom these days, but Once Upon A Time I spent a miserable 3 years teaching Middle School and High School Science in the Special Education Classrooms. The things I saw....

The schools really are in a catch-22 situation regarding discipline and order. However, my personal conclusion is that you have to be very involved as a parent because public schools can be very dangerous places.

Posted by: DdR at July 1, 2009 10:10 PM

Must they always call in LE when accusing a student of a crime or not?

Yes. Why not? Calling the police serves two purposes. It protects the school from getting sued by parents for "oppressing" their precious snowflake (or at least, ought to), and it protects the students' rights to a presumption of innocence rather than simply saying "you broke our rules, here is your punishment" with no recourse. Now, if we're talking about a dual tiered system where students can accept non-judicial punishment (ala Article 15) rather than go to court, go for it. Otherwise, if you're going to make an accusation of crime, you better have law enforcement involved (in my mind at least).

Libertarians love to predicate their positions on a world where everyone acts like an adult and their answer to every contradiction between their philosophy and human nature is, "Hey - sucks to be you but it's *your* job to protect your kid from me and others like me. Meanwhile, I'll do as I damned well please and you can't stop me."

Anyone who you met who holds that opinion is NOT a Libertarian, they are an Anarchist who does not understand the difference. One of the core Libertarian philosophies is "my right to swing my fist ends at your nose". In other words, I may practice my freedoms right up until it negatively impacts someone else. What you described Cass, is a child predator. Anyone who claims to be a Libertarian and holds that it's your responsibility as a parent to keep them away from your kids clearly doesn't understand Libertarianism. Because you and your kids (as every Libertarian SHOULD know) have a right to NOT have someone else treat them as an object.

Another point, my father-in-law was honestly upset and did not understand the whole Libertarian thing on drug legalization, and he asked me about it. "You don't honestly think it should be ok to give heroin to a child, do you?" Well, of course not. Heck, I don't think it's ok to give cigarettes or alcohol to children. But there's a fundamental difference between adults and children. A child CANNOT make an informed decision about what is ok and not ok to put into their body. They do NOT have the same rights and responsibilities as an adult because of this. It's what makes disgusting idiots like NAMBLA so wrong. Their entire argument that they have a right to do what they do because it's consensual falls afoul of one very important point. Children do NOT have the capacity to give consent. This position does NOT change for me regardless of the question at hand.

For example, I have ZERO problem with a school telling children what is or is not acceptable wear at school. "But, my child has a right to freedom of speech and expression!" Sorry, but no they don't. They are not adults and do not yet comprehend the very important corollary to freedom of speech... being held responsible for what you say. Heck, most adults don't get that. Freedom of Speech is NOT Freedom from Consequence. And your right to freely speak your mind can bring consequences you do not like. Children do not have the capacity to make sound judgments as to whether that consequence is justifiable, so muzzel and censor away.

Sorry this is so long, but I do have one last thing. Children DO have rights that I believe adults do not. Children have a right to food and shelter. Adults do not. Children have a right to be loved and nurtured. It is important for their development, and why we can arrest parents or strip their parental rights away if they do not. Adults do not. Children are more able to get away with crimes because they either cannot form criminal intent (if they are young enough) or we judge them not competent enough to have understood the consequences of their crime, and thus they get reduced sentences. This is right and proper. Adults do not get the same consideration (barring true insanity or mental deficiency). This, in my opinion, is how it should be. And other than the fact that we (as a society) seem willing to extend most other adult rights to children, American society does a damned fine job of living up to my standards. Or maybe my standards and philosophy are influenced by this great country and how I was raised... ya think? ;)

Posted by: MikeD at July 2, 2009 09:15 AM

Yes. Why not?

I don't know, you tell me. You're the one that said they didn't need to get police involved to punish fighting.

Posted by: Dug at July 2, 2009 11:04 AM

Sorry, that was me.

One of the core Libertarian philosophies is "my right to swing my fist ends at your nose". In other words, I may practice my freedoms right up until it negatively impacts someone else.

The problem is that issue of where your nose actually starts.

Does driving 90mph past an elementary school hit my nose or does it only hit my nose when you run over my child?

Many libertarians will claim the latter. That's what Cass is referring to with "It's your job to protect them from me".

And yes, I have been called a petty tyrant for suggesting that driving 90mph past a school is not "An essential liberty" per the quote attributed to Franklin.

Posted by: Yu-Ain Gonnano at July 2, 2009 11:15 AM

Does driving 90mph past an elementary school hit my nose or does it only hit my nose when you run over my child?

Well, I'm not sure. I was under the impression that there already WAS a law against injuring another through negligence or intent. In fact, I also believe there's a law against ENDANGERING the life of someone else through negligence or intent. In DOUBLESUPERSECRETPROBATION fact, I don't even have a problem with speed limits.

What I DO have a problem with is a federally imposed speed limit, or perhaps a state imposed speed limit inside of a local community. Again, I think you are confusing Anarchist (one who opposes all laws and regulations EVER) with Libertarian (opposing excessive law, especially laws in violation of the US Constitution). I'm sure you can find someone who would say that "all speed limits ever are bad WARGLGARBRRGGLL!!" Just as I'm sure you can find some Conservative who would insist that "Obama is the anti-Christ and should be impeached for being a Muslim WARGLGARBRRGGLL!!" But we have a word for people like that... crazy. Certainly you would not say "Conservatives believe that being a Moslem disqualifies someone from being President" because some crazy person said that, would you?

Hell, there are some folks who claim Ron Paul is a Libertarian. In some ways he is. But mostly he's a crazy person. Saying that Ron Paul is a good representative of a Libertarian is like saying Lyndon LaRouche was a good representative of a Conservative.

Posted by: MikeD at July 2, 2009 12:25 PM

I was under the impression that there already WAS a law against injuring another through negligence or intent. In fact, I also believe there's a law against ENDANGERING the life of someone else through negligence or intent.

But what *is* law isn't the same as what *should be* law.

Again, I think you are confusing Anarchist...

Not really. Because the person can absolutely believe that a state is needed in order to capture/punish you for running over the child (thus they can't be anarchists) but that driving 90mph is just "swinging your arm" and doesn't constitute "hitting your nose" until impact is made with the child.

The typical formulation is:

I can do what I want so long as it doesn't infringe on your rights. And thus so long as I don't actually hit you you can't stop me from driving 90mph in a school zone. And when I do hit you, then you can take me to jail, but not before. After all, if I don't hit you what Right have I infringed? You don't have a right to "feel safe". You don't have a right to "not worry". You don't have a right to "not be exposed to...".
You want to make it illegal to run over you with my car? That's wonderful, I'm all for it. But you can't nerf the world.

And this is perfectly compatible with mainstream libertarian philosophy: "Do what you want absent infringing other's rights by force or fraud". As long as you don't hit somebody, there's no force and there's no infringement of rights: So there can't be infringing on rights by force. Speed Limits are then, in and of themselves, anti-libertarian.

Posted by: Yu-Ain Gonnano at July 2, 2009 12:51 PM

By that same formulation, you're claiming it's "mainstream Libertarian philosophy" that drunk driving shouldn't be a crime. If you don't crash into someone or their property, no crime right? If you actually find someone who thinks that and claims to be a Libertarian, I would say that you actually found a nutjob.

This is actually start to remind me of when I had an Evangelist friend tell me "Catholics worship Mary" and "Catholics are polytheistic". Funny, in 18 years of Catechism, I never once got the impression that my parents, grandparents, friends and neighbors were polytheists. But he knew what I believed better than I did? I guess "all Baptists think dancing is a sin", "all Conservatives are racist", "all Liberals are socialist" and similar such generalizations are correct?

I think whoever explained Libertarian philosophy to you didn't know what the hell they were talking about. Allow me to clarify:

You don't wear a helmet while riding a motorcycle. Fine, but don't expect free medical treatment when you smash your brains all over the road. But on the plus side, at least you don't get a ticket.

You want to smoke in the privacy of your own home. Good for you. You've got kids there? You probably should step outside.

You want to drive as fast as you want regardless of road conditions or traffic? Move to La La Land, because even the Autobahn won't let you get away with that crap.


Only in the most extreme interpretation of Libertarianism will you find someone willing to say "No law except for that which criminalizes theft of life, liberty or property." And that is an extremist position. Which is why we call people who think like that "extremist" and not "mainstream".

Posted by: MikeD at July 2, 2009 02:37 PM

By that same formulation, you're claiming it's "mainstream Libertarian philosophy" that drunk driving shouldn't be a crime. If you don't crash into someone or their property, no crime right? If you actually find someone who thinks that and claims to be a Libertarian, I would say that you actually found a nutjob.

Well Mike, I'll just say that there are more of them out there than you think. This line of reasoning is extremely common (most of the blogs I hang around tend to have substantial libertarian followings).

In fact, it's the exact same line of reasoning that supports drug legalization. Just because it's likely to lead to harm isn't enough. Only until the druggie actually beats his girlfriend does it become a crime. Until then, leave me alone. *I* can do it without harming someone.

Now don't get me wrong. I am naturally sympathetic to the libertarian viewpoint. It's a nice, clean, simple, consistent philosphy. It's faults are not in strategy, but logistics.

Posted by: Yu-Ain Gonnano at July 2, 2009 03:49 PM

The best way to defeat a libertarian in an argument is simply to equate libertarianism with anarchists. Not true. Not even close to true. But anytime a conservative gets annoyed with a libertarian, expect that argument.

FWIW, in a truely libertarian world (the extreme hypothetical one) this case wouldn't have happened b/c there wouldn't be public schools. We would all be responsible for educating our kids, and we do so by choosing between the Wal-Mart Middle School, St. Maggie Catholic Jr. High School, and BMW Secular Rich Kid Middle School, depending on our resources and desires.

Posted by: KJ at July 2, 2009 04:53 PM

I think we both know that libertarians and anarchists are not the same thing. It's just a shame that not many anarchists do.

Posted by: Yu-Ain Gonnano at July 2, 2009 04:56 PM

Two things I want to point out: reasonable suspicion is indeed a lower bar than probable cause in spite of your claim to the contrary.
Second, after lambasting the media for not reporting the facts in detail, why did you obfuscate by making it sound as though Jordan had implicated Savana as being involved? Jordan said he got the pill from Marissa, and when they found contraband on her person, she had claimed that it all belonged to Savana, how credible is this evidence? credible enough for searching her bag, perhaps, but not a strip-search, in my opinion.
I've read the opinions as well, and although the Court expressed a concern that the drug was not dangerous, their argument relied most heavily on the facts that the strip search was invasive, and that Marissa had not said when or where Savana had supposedly given her the pills, so it was not reasonable to suspect she would have pills in her underwear. The ACLU, incidentally, argued that the (lack of) dangerousness of the drug was irrelevant because there was no justification for the strip search anyway, and even if the alleged contraband had been heroin or meth the search would have been equally unconstitutional. I agree that had the Court embraced a clear position like this, it would have been a more workable (though debatably less wise) precedent than the sliding scale alluded to here. I, frankly, see little reason why the school should have any authority to strip search for contraband at all - if probable cause for illegal contraband exists, call the police, otherwise there's no reason to go this far.

Posted by: Guy at July 6, 2009 06:44 AM

Two things I want to point out: reasonable suspicion is indeed a lower bar than probable cause in spite of your claim to the contrary.

Huh?

Where did I claim that? If you want to argue with me, try arguing against something I actually claimed :p

You and I (or a school official) might differ as to whether it was "reasonable" to suspect Savana simply because it happened to be her DayPlanner that had the pills and knife or knives (it's been a while since I read the case and don't have time to look it up) in it.

I agree the principal should have asked Glines when she got the pills from Savana but don't agree in light of the evidence that he would have had to take her word. Kids don't always tell the truth, especially when they're in trouble. It seems "reasonable" in some cases that a school might err on the side of protecting students if they got word that a bunch of students were planning to take pills together at lunch. That's not normal behavior and I'd be a bit worried about a school that arbitrarily weighed the embarrassment and "invasiveness" of a search more heavily than preventing what could have been (for all they knew) a serious incident.

Finally, this really wasn't a "strip search". Again, reasonable people may disagree on the matter. The Court plainly did NOT want to say that schools can never strip search. And in fact, they did not do so.

Perhaps they had a reason.

Posted by: Cassandra at July 6, 2009 07:37 AM

Second, after lambasting the media for not reporting the facts in detail, why did you obfuscate by making it sound as though Jordan had implicated Savana as being involved?

Again, try arguing with what I actually said:

Keeping this background in mind, how do you think school officials should have reacted when a middle school student - Jordan Romero - was caught with a prescription painkiller he claimed that he'd received from Melissa Glines, a classmate?

You really do need to read more carefully.

Posted by: Cassandra at July 6, 2009 07:42 AM

Well Mike, I'll just say that there are more of them out there than you think. This line of reasoning is extremely common (most of the blogs I hang around tend to have substantial libertarian followings).

Well, I can certainly agree that there are a lot of nutjobs out there. And some even claim to be Libertarians. That doesn't mean they speak for the majority.

Posted by: MikeD at July 6, 2009 10:25 AM

I don't think libertarians are nutjobs, but I will be honest and admit that I think the 'force or fraud' folks wouldn't enjoy living in the world they describe.

I know I wouldn't, because most rural parts of the country do lack exactly the things they decry and the standard of living is piss poor. As little as I like it philosophically, I will admit that we all benefit economically and socially from a slightly bigger government than I might wish for. It's just that I think we tipped from the optimal government zone into the silly zone when we started federalizing everything.

Communities have standards, and people just work and play better together when law takes some cognizance of that fact. This is why I think of myself as a Federalist with libertarian leanings rather than a Libertarian.

Posted by: Cassandra at July 6, 2009 10:34 AM

I've long maintained that the folks who think anarchy sounds awesome would be horribly surprised how that would actually work out for them. Similarly with folks who think they're Marxists. I used to get a lot of enjoyment from debating college Marxists over the internet. After explaining how they'd have to give up their wonderful laptop (property is theft remember) until such time as everyone had one (which they admitted was unlikely to happen), most would quit debating.

Maybe I'm a poor Libertarian. I always took it to mean reducing the power of the Federal government down to it's Constitutionally granted powers and leaving the law making up to individual communities and States (you know, that whole "Tenth Amendment" thing we used to have). But apparently, I'm a bad Libertarian, because I believe that a community should be able to make laws that aren't a suicide pact (drunk driving for everyone!). I dunno.

Posted by: MikeD at July 6, 2009 11:01 AM

Maybe you're just a [[[[shudder]]]] moderate Livid Terrier!

*running away*

Posted by: Cassandra at July 6, 2009 11:08 AM

"that whole "Tenth Amendment" thing"
Stop dat sweet-talkin' Mike! I'm already maxed out on satisfaction for one day.

If I encounter any more stimulation, I'm a gonna be tryin' to dance a jig. And an old coot tryin' to dance a jig an exoskeleton ain't pretty...

Posted by: bt-the resident-curmudgeon_hun at July 6, 2009 11:12 AM

Ammend that last to be in an exoskeleton.

Don't want the current administration to misread the meaning in the original and determine that I'm a minority that needs protection/equality in my pursuit of love with insects.

Posted by: bt-the resident-curmudgeon_hun at July 6, 2009 11:18 AM

And please amend ammend... Sheesh, I think I'll take my exuberance to the vegetable garden. It's safe there.

Posted by: bt-the resident-curmudgeon_hun at July 6, 2009 11:20 AM

The problem Mike is that such things flow directly from libertarian principals of self-ownership.

Tell me. By what right do you, personally, stop, detain, and extract punishment from someone for the victimless crime of speeding?

By libertarian philosophy you can not delegate to someone else (a police officer, a court, or the state) that which you do not possess yourself.

That is, if I have the right to defend myself I have the right to hire someone to defend me on my behalf. If I do not have the right to take your possessions without permission, I do not have the right to hire someone to take your stuff on my behalf.

You cannot give to others what you don't own.

By what right do you claim the ability to punish people for operating a car in a manner with which you don't approve? Especially if no one is hurt by it?

A libertarian who supports speed limits is in effect proving Cass' contention that they wouldn't really want to live in the world their philosphy prescribes.

But as KJ said, you ask a libertarian what he thinks of speed limits on public roads, his response is "What public roads?"

If roads are kept to private ownership the problem goes away. Property owners have the right to control their property. They may set and enforce those rules (and as such my delegate that enforcement to the gov't).

But then, if you wanted to plan a trip, you must be congnizent of all the myriad of rules governing each stretch of road. The most convenient road won't allow your SUV, the alternate road has a 5 mph speed limit (it's for 'the children' and 'if it saves just 1 life' doncha know). Another alternate one uses Green for stop and Red for go on its traffic lights and you drive on the left side of the road(good luck with that intersection).

Posted by: Yu-Ain Gonnano at July 6, 2009 11:47 AM

I always took it to mean reducing the power of the Federal government down to it's Constitutionally granted powers and leaving the law making up to individual communities and States (you know, that whole "Tenth Amendment" thing we used to have).

That would be the position of a Constitutionalist, not a L/libertarian. And just as a L/libertarian is not the same as an Anarchist, neither is one a Constitutionalist.

Posted by: Yu-Ain Gonnano at July 6, 2009 11:50 AM

Ok, I'll make one last attempt at this. You are saying that a flash piece that CLEARLY is designed to outline the general principles of libertarianism is a all encompassing definition of the philosophy. And I put it to you that it is an outline.

But, let's examine your proposition shall we?

By libertarian philosophy you can not delegate to someone else (a police officer, a court, or the state) that which you do not possess yourself.

In theory this is correct. In practice, what that SIMPLIFICATION describes is called 'anarchy'. Why? Because a society is constructed by trading liberties for security. Case in point, I give up the "right" to take what I want in exchange for the protection from having my property stolen. Only in a strict theoretical sense is this possible without some form of government. My asserting my rights to my property is all well and good in some theoretical perfect world, but it the real world, it is NOT going to stop someone who decides to steal my property. Thus, I need some form of police to protect my rights to my property. This is the same failing Anarchy and Marxism have. In a theoretical perfect world, there's no need for police, because everyone respects the rights of someone else. But the reality is this does not happen.

Let's continue. By the literal taking of libertarian philosophy, what do you do to someone who does NOT respect your rights to life, liberty or property? By the very extreme interpretation of the philosophy... nothing. You cannot deprive THEM of their life, their liberty, or their property. Not EVEN in the defense of your own. So there can be no punishment, no retribution, no justice. The only thing you're describing then, is anarchy.

Actually, let me try this another way... you're using the most simplistic definition of libertarianism to paint the entire concept as unreasonable. And don't tell me you're not, because you've pretty much accurately described a world with no speed limits, no public roads or services, no military, no police, etc. But let's turn this around. Conservatism. If we were to stretch Conservatism based upon the most simple definition, does that mean you support zero regulation of business? Should we allow insider trading on the stock market? How about monopolization of industries? Union busters going in and cracking the heads of folks attempting to unionize? Aren't these ALL supported by the Conservative principles of free market capitalism?

Of COURSE not, and anyone who attempts to paint it as such is dishonestly engaging in twisting principle into extremism. And I can sit here all day and tell you that I do not believe public roads DON'T exist, or that I believe drunk driving laws ARE consistent with libertarianism, but you keep giving me "Force or Fraud only". And I'm telling you, "Force or Fraud" is an important principle, but it's not the ONLY one.

Posted by: MikeD at July 6, 2009 04:31 PM

That would be the position of a Constitutionalist, not a L/libertarian. And just as a L/libertarian is not the same as an Anarchist, neither is one a Constitutionalist.

Nor is every Conservative a Social Conservative, but the two have issues in common. I did not ever claim to be THE Libertarian, who determines what is or is not part of the libertarian philosophy, but to ME Constatutionalism is consistent with libertarianism, because the United States Constitution, as written IS a libertarian document. It removes the fewest freedoms in exchange for the greatest security. To paraphrase Winston Churchill, it is the worst government ever conceived, except for EVERYTHING else. At best, government is a necessary evil. But that makes it no less necessary.

Posted by: MikeD at July 6, 2009 04:35 PM

If we were to stretch Conservatism based upon the most simple definition, does that mean you support zero regulation of business?

*That*, my dear friend, is why I tend to consider myself a moderate conservative :p

(IOW, one who takes the practical consequences of conservative principles into account and therefore, moderates them.)

Too much moderation and you're no longer a conservative. But then the moderating effect of reality is one of the most conservative principles around :p

Mike, I understand what you're saying but most of the folks over at Reason or any other mainstream libertarian organization talk exactly as Yu-Ain says. And KJ (of the "what public schools?" comment) is a freaking libertarian :p

By the way, I don't agree for a second that the strip search thing would not have happened if not for public schools. Human problem.
Has nothing to do with public/private. If anything private schools are more high handed b/c they can kick your kid's sorry butt out anytime they feel like it.

I know - my kids spent the lion's share of their school years in private school.

Posted by: Cassandra at July 6, 2009 04:40 PM

"(IOW, one who takes the practical consequences of conservative principles into account and therefore, moderates them.)

Too much moderation and you're no longer a conservative. But then the moderating effect of reality is one of the most conservative principles around :p

"
Glad to see you're rested... Very nice. =8^}
"If anything private schools are more high handed b/c they can kick your kid's sorry butt out anytime they feel like it."
In my experience, FWIW, the worth of which may not cover the cost of coffee, private schools seem to have a pretty strict code of conduct. And they seem to enforce infractions against said code by removing the offender from the pod.

But that's not fair... But buh bye.

Posted by: bt-the resident-curmudgeon_hun at July 6, 2009 04:57 PM

I'm fairly certain I've told this yarn before, but the Blog Princess had been at the fancy Tidewater private school she graduated from all of a few weeks when she found herself up before the Honor Court (with several others) on *serious* charges.

Her crime? When the teacher didn't show up for class, several students said it was Ok to go to the library. 5 or 6 of us signed a roster saying that was where we were going. On my way back I stopped into the ladies' necessary room to comb my raven locks and powder mah nose.

Next thing I knew I was accused of all sorts of Nefariousness. Kids were crying, panicky, freaking out about getting kicked out.

I thought it was some kind of sick joke.

I ended up getting an apology from the president of the Honor Court for insulting my honor when I hadn't done any thing wrong (since when is TELLING THE FREAKING TEACHER WHERE YOU ARE GOING an "honor offense"????).

Rules are there for a reason. But so is common sense. In this case, both served their purpose. But I saw kids get kicked out for things that in public school wouldn't even have earned a reprimand or a pass to the principal's office.

Posted by: Cassandra at July 6, 2009 05:05 PM

" But I saw kids get kicked out for things that in public school wouldn't even have earned a reprimand or a pass to the principal's office."

Well, now we know where the Half-Vast staff came from...
*snnnnnicker*
*skipping away (you know the rest)*
0>;~}

Posted by: DL Sly at July 6, 2009 05:40 PM

Rules? Reason? Common sense? Is it really that common these days?
Since Walkin' Boss picks up her paycheck from a private school, I'm gonna assert a Sgt. Schultz!

I know nothing! Noooooothiiiiiiing...

Ok, for a daiquiri, I know little...

Posted by: bt-the resident-curmudgeon_hun at July 6, 2009 05:43 PM

I have beer........

Posted by: DL Sly at July 6, 2009 06:04 PM

...but not for long.

Posted by: BillT at July 6, 2009 06:43 PM

Mike, you are starting the wrong way around. Libertarian philosophy builds up from the "simple" concept of self-ownership. It does not simplify down to self-ownership.

You do not trade away your "right" to steal to gain protection of your own possessions within a self-ownership framework. This is because you never had a right to steal to start with (as you have no higher claim to the other person's life and liberty which created it) and you possessed the right to protect your own property (as they have no higher claim to your's either) long before the police ever existed.

And it is because we already possess the right to protect our own property that we can form a gov't who will then protect our property on our behalf. Which is why this 'simplistic' formulation of libertarianism isn't Anarchy. Anarchy dictates that you can't form a gov't. Libertarianism says that you absolutely can hire a gov't. You just can't hire it to do something you don't have a right to do yourself. That is, if I don't have the right to steal from you, I don't have the right to ask the gov't to steal from you on my behalf. I do have the right to protect my property from theft, so I do have the right to ask the gov't to protect my property from theft on my behalf. And it is upon this principal that a libertarian gov't is formed. Anarchy allows no gov't at all, regardless of how it is formed.

cannot deprive THEM of their life, their liberty, or their property. Not EVEN in the defense of your own.

Incorrect. Since I own my life, I absolutely own the right to protect it. If that means running away, so be it, if it means knocking you unconsious with a baseball bat then it sucks to be you, if it means unloading a 12-gauge into your chest then it really sucks to be you. I have no right to *initiate* force against his life, but if he initiates it against mine, then, by definition, I am not *initiating* force. Thus the prohibition doesn't apply. Shoot the SOB.

And don't tell me you're not, because you've pretty much accurately described a world with no speed limits...

Not exactly. Private road owners could set whatever speed limits they like. It's their property and they can do with it what they like.

...no public roads or services...

Depending on how you define public services. If you mean healthcare then yes. You do not have the right to extract labor from someone else against their will, therefor you have no right to ask gov't to do so for you. If you mean trash pickup, well, if you stop paying, they stop picking it up. It's a business being run by the gov't. But then, if it's a business why do you need gov't to do it?

...no miliitary, no police, etc.

Nope

Police and military can absolutely exist as per above. We each have the right to protect our own rights. We, through gov't, hire the police to protect our rights from internal violators, and the military to protect our rights from external violators.

If we were to stretch Conservatism based upon the most simple definition, does that mean you support zero regulation of business?

Well the most simple definition of conservatism I am aware of is "less gov't". But "less" is a relative term. Less than what? 0 is certainly less than a lot of things, but by no means is it the only "less" available.

because the United States Constitution, as written IS a libertarian document.

Nope, it isn't. It is more libertarian than any other Constitution to have ever existed. But it is not itself Libertarian. The constitution grants congress the power to spend as much as it wants for anything it wants for any reason it wants. Certainly not a libertarian principle, that. The constitution grants congress the ability to take property without permission so long as it gives you what it considers "just compensation". Let me ask you, if someone broke into your house and stole your wife's jewelry, would it really make it OK if the thief left cash behind? Theft sanctioned by majority vote is still theft. And yet the constitution is just fine with it. I can point out others if you like.

Posted by: Yu-Ain Gonnano who is the Devil's Advocate at July 6, 2009 06:49 PM

> WHY would anyone consider it even remotely reasonable to do that detailed of a search without notifying a parent?

Because the parents of other students might sue if school personnel knew a group of students were planning to take pills at lunch time that same day, but failed to take steps to keep their kids safe.

CASS!!!

That statement makes NO sense at ALL.

How is bringing the parents in on the matter "failing to take steps"?

There is a difference between forcing a minor child to subject themselves to an invasive body search of ANY kind and "ignoring the matter".

a) There is no need to put the student back among the student body. "Sit there in the office, young lady, and wait for your parents to get here".

b) Sorry, I've experienced too many times as a student the absolutely moronically incompetent decisionmaking power of school administrators. And that is looking back with adult eyes, as well. I've had an admin ACK that they made a mistake in the first place, but still insist on punishing ME because they'd already made a decision. I've gotten treated with suspension, exactly the same as the known instigator of a fight, despite the fact that, for me, that was punishment, while for them, it was a **vacation from school**. Admins are, by and large, people too incompetent and stupid to teach. I can tell you that, were I a parent, said admin would get the ever-loving' crap beat out of them for subjecting my child -- especially a daughter -- to that without my knowledge and consent. And I will lay you BIG odds I'd get let off scott-free by any jury in the land.

Sorry, Cass. There was NO JUSTIFIABLE REASON for this step. That does NOT mean that the student's purported actions needed to be ignored. The situation was UNDER CONTROL, and there was no immediate danger nor requirement for fast action that would require the admins to do ANYTHING of this sort hastily. That says "parents get brought in". And that pisses off the parents and generally should scare the crap out of the child for that reason.

Posted by: Obloodyhell at July 8, 2009 12:54 PM

Could be a couple of reasons. What if the school had been unable to reach the parents prior to the time the students were planning to take them. What if the parents, after having been reached could not make it to the school until after said time?

That doesn't excuse the school from not even making the attempt to contact the parents. Just that given their previous history of a student being harmed by a prescription drug, I do understand (which isn't the same as agreement) the paranoia.

Posted by: Yu-Ain Gonnano at July 8, 2009 03:14 PM

YAG,

We're just going to have to agree to disagree here. I don't see any way around it. I tell you what I believe and you come back with "no it's not". There's really not much room to discuss anything if I don't even have the ability to claim my own beliefs.

Posted by: MikeD at July 9, 2009 09:06 AM

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