In Strip Search Case, Clarence Thomas Shows He's "Off the Grid"

If ever we needed a concrete of example of what's at stake when it comes to Supreme Court appointments, this week's decision in Safford United School District #1 v. Redding fits the bill. This is the case from Arizona involving a 13 year-old middle school student who was strip-searched at school on suspicion of having non-prescription drugs. The case is most famous for its oral argument, in which Justice Ruth Bader Ginsburg had to school her brethren on the Court on why a 13-year old girl might suffer damage at having to strip down to her underwear and then “shake out her bra” and pull out her underwear, all in compliance with a school administrator’s search for what the Court ultimately deemed “the equivalent of two Advil or one Aleve.” No drugs of any kind were ever found on Savana Redding.

Eight justices found that the search of Redding’s underwear was unreasonable and a violation of the Fourth Amendment. The opinion, written by Justice Souter carefully goes through the facts of the case, and the Court’s earlier jurisprudence on school searches. He concludes that although the search of Redding’s backpack and outer clothing was reasonable, a further more intrusive search into her underwear was not. Souter finds, nevertheless, that the school officials involved are entitled to immunity from liability because they acted in good faith and engaged in conduct that was not a clear violation of law (that means that Redding gets no money). The school district may be subject to suit for damages under an alternative legal theory.

Justice Stevens and Ginsburg write separate concurring opinions articulating their view that the school officials are not entitled to immunity. The illegality of the conduct by the school officials had been “clearly established,” by earlier Supreme Court cases, they contend. Interestingly, Justice Ginsburg is the only justice to mention that after the fruitless search, Savana Redding was made to sit outside the assistant principal’s offer for two hours, and that her parents were never contacted. Is this what empathy looks like—taking full measure of the facts in the case to conclude that the school officials’ conduct in this case was flagrantly unreasonable and plainly illegal? Or is this just a common sense application of facts to law? Whatever you call it, Justice Ginsburg’s opinion probably makes sense to any parent of middle school girl—and to most reasonable school administrators, who routinely attempt to contact parents when students are removed from their classes for investigation or disciplinary actions.

Justice Thomas’ solo opinion shows once and for all that he’s pretty much gone off the grid. Naturally, he finds the search of Redding reasonable. But he crafts a vision of school and the role of school officials who are charged with “maintaining quiet and order in the school environment,” that seems like something out of a 1950s orphanage. Quiet? In middle school? For Thomas, it’s reasonable to imagine that Redding might have hidden ibruprofen in her panties, and reasonable for the assistant principal to order the strip search. The evidence supporting this is laid out by Thomas in a string cite of news reports involving adult drug couriers and criminal suspects who concealed oxycontin, ecstasy and hydrocodone in their underwear. It gets chilling by the end of his opinion, when Thomas deems the Court’s assertion of the Fourth Amendment’s protection against unreasonable searches in this case as the judiciary “essentially seizing control of public schools.” Citing his own creepy concurrence in last year’s Morse v. Frederick, (the so-called “Bong Hits for Jesus” case, involving the First Amendment rights of high school students), Thomas longs for the day when

teachers [will] again be able to ‘govern the[ir] pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn,’ by making ‘rules giv[ing] commands and punish[ing] disobedience,’ without interference from judges.

One can almost see the physical menace in Thomas’ vision of education, where teachers govern, quicken, spur, restrain and control, but don’t seem to actually teach. To understand how far out Thomas’ thinking is from that of most contemporary Americans [including increasingly his colleagues on the Court] it’s probably worth knowing that this lyrical litany he quotes in Morse and again today in Safford Unified School District, describing what he sees as an ideal educational environment—is actually a quote from the state court case of Patterson v. Nutter . That case was decided in 1886.

—SHERRILYN IFILL