orichalcum (![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
orichalcum) wrote2009-04-22 11:41 am
orichalcum) wrote2009-04-22 11:41 am
The Supreme Court deals with underwear and colliding tubas.
From yesterday's hearing in Safford v. Redding, on whether a school had the right to strip-search a 13-year-old girl on suspicion that she might have prescription-strength Ibuprofen on her person:
Justice Breyer: "In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day. We changed for gym, O.K.? And in my experience, too, people did sometimes stick things in my underwear.”
Justice Scalia: “You’ve searched everywhere else. By God, the drugs must be in her underpants.”
Sadly, it seems like the plaintiff may lose this case, because most of the justices appear to be taking the position, as Justice Souter put it, "that they'd rather have one kid embarassed than another kid dead."
It's not that I think drug abuse in schools isn't a problem. But I really do wonder if these (older, male) Justices have any real idea of how far beyond "embarrassing" it would be for a sensitive 13-year-old girl to have to pull open her underwear and bra in front of multiple strange adults, _especially_ when the evidence that she might be hiding non-illegal, minor drugs is extremely minimal and based on the accusation from an untrustworthy student. This is _not_ like changing in the gym - and I don't know about boys' locker rooms, but in the girls' locker room in my middle school, many girls either changed behind a bathroom stall or perfected the art of rapidly switching tops and shorts such that no substantial portion of skin was ever humiliatingly exposed, much less touched by a teacher.
Thanks to Dahlia Lithwick, I think that Justice Ginsburg (who turns out to be both brilliant _and_ funny) summed it up best in another recent school case on drug testing for students in all school activities, Pottawatomie School District vs. Earls, when
For its part, the United States acknowledges that "the linebacker faces a greater risk of serious injury if he takes the field under the influence of drugs than the drummer in the halftime band," but parries that "the risk of injury to a student who is under the influence of drugs while playing golf, cross country, or volleyball (sports covered by the policy in Vernonia) is scarcely any greater than the risk of injury to a student ... handling a 1500-pound steer (as [Future Farmers of America] members do) or working with cutlery or other sharp instruments (as [Future Homemakers of America] members do)." Brief for United States as Amicus Curiae 18. One can demur to the Government's view of the risks drug use poses to golfers, cf. PGA TOUR, Inc. v. Martin, 532 U. S. 661, 687 (2001) ("golf is a low intensity activity"), for golfers were surely as marginal among the linebackers, sprinters, and basketball players targeted for testing in Vernonia as steer-handlers are among the choristers, musicians, and academic-team members subject to urinalysis in Tecumseh.3 Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree. There is a difference between imperfect tailoring and no tailoring at all. "
OTOH, from yesterday's hearing, Justice Alito, on the issue of reasonable suspicion of students: "The school could keep records on its students, like the police keep records on confidential informants, so unless this student had a proven record of having accurately ratted out a certain number of classmates in the past, she couldn't be believed."
Justice Breyer: "In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day. We changed for gym, O.K.? And in my experience, too, people did sometimes stick things in my underwear.”
Justice Scalia: “You’ve searched everywhere else. By God, the drugs must be in her underpants.”
Sadly, it seems like the plaintiff may lose this case, because most of the justices appear to be taking the position, as Justice Souter put it, "that they'd rather have one kid embarassed than another kid dead."
It's not that I think drug abuse in schools isn't a problem. But I really do wonder if these (older, male) Justices have any real idea of how far beyond "embarrassing" it would be for a sensitive 13-year-old girl to have to pull open her underwear and bra in front of multiple strange adults, _especially_ when the evidence that she might be hiding non-illegal, minor drugs is extremely minimal and based on the accusation from an untrustworthy student. This is _not_ like changing in the gym - and I don't know about boys' locker rooms, but in the girls' locker room in my middle school, many girls either changed behind a bathroom stall or perfected the art of rapidly switching tops and shorts such that no substantial portion of skin was ever humiliatingly exposed, much less touched by a teacher.
Thanks to Dahlia Lithwick, I think that Justice Ginsburg (who turns out to be both brilliant _and_ funny) summed it up best in another recent school case on drug testing for students in all school activities, Pottawatomie School District vs. Earls, when
For its part, the United States acknowledges that "the linebacker faces a greater risk of serious injury if he takes the field under the influence of drugs than the drummer in the halftime band," but parries that "the risk of injury to a student who is under the influence of drugs while playing golf, cross country, or volleyball (sports covered by the policy in Vernonia) is scarcely any greater than the risk of injury to a student ... handling a 1500-pound steer (as [Future Farmers of America] members do) or working with cutlery or other sharp instruments (as [Future Homemakers of America] members do)." Brief for United States as Amicus Curiae 18. One can demur to the Government's view of the risks drug use poses to golfers, cf. PGA TOUR, Inc. v. Martin, 532 U. S. 661, 687 (2001) ("golf is a low intensity activity"), for golfers were surely as marginal among the linebackers, sprinters, and basketball players targeted for testing in Vernonia as steer-handlers are among the choristers, musicians, and academic-team members subject to urinalysis in Tecumseh.3 Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree. There is a difference between imperfect tailoring and no tailoring at all. "
OTOH, from yesterday's hearing, Justice Alito, on the issue of reasonable suspicion of students: "The school could keep records on its students, like the police keep records on confidential informants, so unless this student had a proven record of having accurately ratted out a certain number of classmates in the past, she couldn't be believed."
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Also, these male justices fail to recognize that there's a big difference in what you see in a boys' locker room these days compared to a girls' locker room. We all changed under our clothes or in our shower stalls, in my middle school.
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