Justice Thomas: A Little Empathy Please!

Today, the Supreme Court ruled 8-1 that school officials in Safford, Arizona violated the constitutional rights of Savana Redding when they subjected her to a strip search. School officials, acting on a tip from another student, suspected that Savana (who was then 13-years-old) possessed a prescription equivalent of two Advil tablets. School policy prohibited students from possessing any prescription or over-the-counter medication without prior consent.

School officials first searched Savana's backpack, but they found no evidence of drugs. Next,

[They] asked Savana to remove her jacket, socks, and shoes, leaving her in stretchpants and a T-shirt. . .which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.

Savana's mother sued the school district, arguing that the search violated Savana's Fourth Amendment right against "unreasonable searches and seizures." The Supreme Court agreed.

The Court, however, held 7-2 that school officials did not infringe a "clearly established" right. This part of the ruling immunizes school officials from a damage award. Justice Stevens and Justice Ginsburg dissented on the immunity issue.

Justice Thomas: Pathetically Unempathetic
Justice Thomas agreed with the immunity ruling, but he supplied the lone dissent to the Court's conclusion that the search violated the Constitution. In his dissent, Thomas robotically states that: "Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment."

This argument, however, distorts the substance of the Court's ruling. The Court did not "second guess" school officials. Instead, it enforced the constitutional rights of students -- rights held by "all persons" against state intrusion. Thomas's description of the Court's important role in the protection of individual liberty as the annoying micromanagement of school administrators shows a great disrespect for the Constitution and the Court.

Thomas's dissent is even more troubling when one considers that he and six other justices concluded that the school officials did not violate a "clearly established" right when they conducted the search. Generally, government officials are immune from damages unless their behavior violates a right that was "sufficiently clear" in preexisting law. The Court concluded that the diversity of judicial opinions on the legality of strip searches in the lower courts counsels against a finding that the right was clearly established at the time of the search.

This portion of the ruling proves the often ignored or misunderstood fact that constitutional law is not always clear and precise and that the facts and precedent related to a particular case will not always compel a single outcome. As the majority states, there are "numerous" "well reasoned majority and dissenting opinions" that reach a different conclusion on strip searches than the Supreme Court.

These divergent outcomes arise because the law in this area applies a flexible standard. Under this standard, a search is "permissible. . . when the measures adopted are 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. . . ." Reasonable judges, however, can reach different conclusions about the "reasonableness" or "excessiveness" of a search.

Because the relevant standard supports multiple, logical outcomes, then empathy could influence a judge's decision without making the ruling an unreasonable or improper statement of "the" law. In fact, the test used in this area calls explicitly for empathy. It forces judges to determine whether a search was too intrusive in light of the student's "age and sex."

Accordingly, the majority considered Savana's subjective reaction to the search and held that: "Savana’s subjective expectation of privacy against [the] search is inherent in her account of it as embarrassing, frightening, and humiliating." In other words, the Supreme Court found a Fourth Amendment violation in part because it recognized and took into consideration Savana's emotional response to the search. The Court's ruling, therefore, rests explicitly on judicial consideration of Savana's feelings, emotions and her perceived vulnerability during the search. This part of the ruling displays the type of empathy that President Obama says he seeks in a Supreme Court justice, and 8 justices, including four of the conservatives, subscribed to it.

In addition to considering Savana's reaction to the search, the Court also discusses the emotional impact of strip searches upon adolescents in general. Citing to psychological literature for support, the Court finds that:

Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be. . . .

If this is true, then, given the flexibility of the relevant test, Thomas could (and should) have shown empathy for Savana. Instead, Thomas has written an opinion that trivializes individual liberty and defends the interests of school officials who were apparently so exercised over the possible presence of Ibuprofen at the school that they forced a young girl to display her breasts and pelvic area to gazing and searching adults.