Testing the Limits of Fourth Amendment Immolation

As Jesse and TBogg have noted, this is a case that will test just how far the Supreme Court is willing to let the War On (Some Classes of People Who Use Some) Drugs’ war on the Fourth Amendment go:

Savana Redding still remembers the clothes she had on — black stretch pants with butterfly patches and a pink T-shirt — the day school officials here forced her to strip six years ago. She was 13 and in eighth grade.

An assistant principal, enforcing the school’s antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.

The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, “they asked me to pull out my bra and move it from side to side,” she said. “They made me open my legs and pull out my underwear.”

Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21.

Liptak quotes a professor asking if “we really want to encourage cases…where students and parents are seeking monetary damages against educators in such school-specific matters where reasonable people can disagree about what is appropriate under the circumstances?” Of course, there’s another way of asking the question: “should the courts provide at least some disincentives that compel public officials to place some weight on the privacy of their students when responding to anti-drug hysteria?” I’m going to answer “yes.” And, certainly, if this counts as “reasonable” I’m not sure what isn’t going to qualify.

I fear, though, that this apologism might convince some justices. In addition to the always bad-for-civil-liberties WO(SCOPWUS)D context, students have been particular subjects of collateral damage (cf. this case, upholding mandatory drug testing without individualized suspicion for students participating in any extracurricular activities.) Alito’s record on such issues is appalling, and Roberts seems similar if not quite as radical. Thomas has all but argued that schoolchildren abandon most of their constitutional rights. Breyer (who concurred with Thomas’s opinion in the drug testing case) is highly unreliable.

Still, I have some hope that the set of facts here is so appalling — a wholly arbitrary, extremely degrading search, for ibuprofen, of a good (and innocent) student — that the Supreme Court will vindicate Redding’s rights. The school’s action in this case is an example of what one justice called an “immolation of privacy and human dignity in symbolic opposition to drug use.” Perhaps this case will awaken Scalia’s sporadic libertarian conscience.