The Supreme Court takes failing to get it to a new level in a strip-search case.

Oral argument from the court.
April 21 2009 7:49 PM

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The Supreme Court is neither hot nor bothered by strip searches.

Austin Community College/Karen Kuhn

When constitutional historians sit down someday to compile the definitive Supreme Court Concordance of Not Getting It, the entry directly next to Lilly Ledbetter ("Court fails utterly to understand realities of gender pay discrimination") will be Savana Redding ("Court compares strip searches of 13-year-old girls to American Pie-style locker-room hijinks"). After today's argument, it's plain the court will overturn a 9th Circuit Court of Appeals opinion finding a school's decision to strip-search a 13-year-old girl unconstitutional. That the school in question was looking for a prescription pill with the mind-altering force of a pair of Advil—and couldn't be bothered to call the child's mother first—hardly matters.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Editorialists and pundits have found much to hate in what happened to Savana Redding. Yet the court today finds much to admire. And even if you were never a 13-year-old girl yourself, if you have a daughter or niece, you might see the humiliation in pulling a middle-school honor student with no history of disciplinary problems out of class, based on an uncorroborated tip that she was handing out prescription ibuprofen. You might think it traumatic that she was forced to strip down to her underclothes and pull her bra and underwear out and shake them in front of two female school employees. No drugs were found. But even those justices lacking a daughter, a niece, or a uterus had access to an amicus brief in this case documenting the fact that student strip searches "can result in serious emotional damage" and that student victims of strip searches "often cannot concentrate in school, and, in many cases, transfer or even drop out." Savana Redding, herself a data point, described the search as "the most humiliating experience" of her life. Then she dropped out of school. And five years later, at age 19, she gets to listen in on oral argument in Porky's 3: The Supreme Court Says "Panties."

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The case law on school searches is sparse. In New Jersey v. T.L.O., a 1985 case involving high-schoolers with pot in their purses, the Supreme Court determined that for a student search to be permissible under the Fourth Amendment there must be "reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school" and that the search cannot be "excessively intrusive in light of the age and sex of the student and the nature of the infraction."

Yet in recent years, the high court has slowly chipped away at the privacy rights of students—frequently based on the rationale that there were drugs!!! Somewhere in America!!! Drugs!!! Creating danger!!! (This led an annoyed Justice Ruth Bader Ginsburg to dissent in a recent case that the court was peddling "nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas" to justify drug tests for any student with a pulse.)

Today's argument features an astounding colloquy between Matthew Wright, the school district's lawyer, and Justice Antonin Scalia, who cannot understand why "black marker pencils" are also considered contraband. "Well, for sniffing!" answers Wright. "They sniff them?" asks Scalia, delightedly. "Really?"

Or when Justice Ginsburg complains that the tipster in this case fingered Redding only after she herself was caught with drugs, Justice Samuel Alito muses that "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."

When Wright suggests kids have no incentive to implicate innocent students because "students can be disciplined if they tell tales," Justice John Paul Stevens asks what discipline was meted out to the girl who falsely ratted out Savana Redding. Wright replies, cheerfully, "Oh, there was no discipline that I know of."

David O'Neill from the Solicitor General's office tries to thread the needle between allowing schools to conduct daily strip searches for black sniffy markers and chilling the school district's broad power to search for dangerous contraband. He wants the court to impose a higher standard before schools may conduct a strip search but gets into trouble with Scalia, who wonders what happens after "you search the student's outer garments, and you have a reasonable suspicion that the student has drugs." Scalia's almost chortling when he exclaims, "You've searched everywhere else. By God, the drugs must be in her underpants!"

O'Neill responds by explaining that "where you have reasonable suspicion that there is contraband in the underwear, then you could go directly to that location, and you wouldn't have to work from the outside in." Which only really works if the student wears his underwear on the outside, like Superman. Or, as Chief Justice John Roberts exclaims: "Oh, surely not! You are saying if you have reasonable suspicion that it's in the underwear, you shouldn't even bother searching the pockets?"