Federal Judiciary

Analysis: A fear may drive a decision

By Akin Gump Supreme Court Practice Group

Analysis

With an undercurrent of fear running across the Supreme Court bench about drug abuse among school students, and a perception that young people will try hard to avoid detection, the Justices searched anxiously on Tuesday for a way to clarify — and perhaps to enhance — public school principals’ authority to conduct personal searches of the youths in their charge.

The result was that a federal government attorney and a civil liberties lawyer appeared hard-pressed to persuade a majority that strip-searches of students should be very strictly curbed in public schools.  What was less clear, though, was how a majority could come together to spell out a new Fourth Amendment principle to govern that situation.

It was common for members of the Court — and, especially, Justice Ruth Bader Ginsburg — to express discomfort with an Arizona prinicipal’s order for a close-to-naked search of a 13-year-old girl.  But that sentiment did not appear to be as strong as the concern that drugs may be so destructive for teenagers that some surer means of detecting them had to be acceptable under the Constitution.

No more telling illustration of the Court’s mood emerged than Justice David H. Souter — whose vote would almost have to be won for student privacy to prevail – expressing a preference for “a sliding scale of risk” that would add to search authority — including strip searching — based on how school officials assessed whether “sickness or death” was at stake.

“If the school official’s thought process,” Souter asked, “was ‘I’d rather have a kid embarrassed rather than some other kid dead,’ isn’t that reasonable under the Fourth Amendment?”  Stated in that stark way almost compelled agreement, without regard to whether a student singled out for a strip search was actually adding to such a risk, but was only the target of a classmate’s unverified tip.

Along with Souter, two other Justices whose votes might turn out to be crucial — Stephen G. Breyer and Anthony M. Kennedy — were plainly more concerned about the drug problem than with student privacy. Both of those Justices, in past cases involving students and suspected drug use, have suggested that students’ rights were not very sturdy.

The argument in Safford United School District v. Redding (08-479) left the clear impression that the Court was ready to rule expressly on the constitutionality of strip-searches at public schools.

Chief Justice John G. Roberts, Jr., sought a few times to raise the possibility that school officials in the case might be found to have legal immunity for the search, so the Court would have no need to write a clear-cut Fourth Amendment ruling, but that approach apparently drew support from no other Justice, at least at this stage.

(NOTE: This post will be expanded later in the day.)

Full post as published by SCOTUSBLOG on April 21, 2009 (boomark / email).