I’m very, very happy to be wrong about this one. In a very pleasant surprise, today 8 justices found that the appalling arbitrary strip search of Savana Redding violated the Fourth Amendment. The majority opinion, by Souter, split the baby by finding a constitutional violation but holding that because the law was unclear the administrator who order the illegal search was granted qualified immunity. Ginsburg and Stevens dissented in part, holding that the search was clearly illegal under the controlling precedent, and therefore the administrator should not be immunized:
Here “the nature of the [supposed] infraction,” the slim basis for suspecting Savana Redding, and her “age and sex,” ibid., establish beyond doubt that Assistant Principal Wilson’s order cannot be reconciled with this Court’s opinion in T. L. O. Wilson’s treatment of Redding was abusive and it was not reasonable for him to believe that the law permitted it. I join Justice Stevens in dissenting from the Court’s acceptance of Wilson’s qualified immunity plea, and would affirm the Court of Appeals’ judgment in all respects.
I think this is right — granting that the TLO standard involved substantial discretion, if this serach didn’t violate it, I’m not sure what would, and Ginsburg is right that the principal’s actions wre transparently irresponsible — but given the grim outlook I can live with this outcome. Setting limits on these searches going forward is the most important thing, although it might be preferable to establish clearer disincentives.
Thomas, meanwhile, held to his longstanding opinion that the Constitution for all intents and purposes does not apply in the context of schools. Given that upholding this search would have constituted a de facto endorsement of the Thomas position, I’m glad that the Court finally said that enough is enough.