Is it ever okay to strip-search a student? The SCOTUS is hearing arguments on this, and if so, under what limitations. Justice Stephen Breyer – normally a good ally to liberals – managed to trivialize the issue in a dudely way, and both Historiann and Amanda Marcotte are taking him to task for it. Historiann writes:
Nina Totenberg’s report on All Things Considered last night on the “strip search” case heard yesterday at the Supreme Court is the only news report I can find that notes that lone woman Justice Ruth Bader Ginsburg was on her own at one point in the hearing:
At this point in the argument, a gender difference reared its head. Justice Breyer suggested that it’s no big deal when kids strip–after all, they do it for gym class all the time. Savana Redding didn’t reveal her body beyond her underclothes, said Breyer. Justice Ginsburg, the court’s only female justice, bristled. Her eyes flashing with anger, she noted that there’s no dispute that Savannah was required to shake out her bra and the crotch of her panties. Ginsburg seemed to all but shout, “boys may like to preen in the locker room but girls, particularly teenaged girls, do not.” …
The New York Times report, written by Adam Liptak, omits mentioning that Ginsburg was even in the room yesterday, and instead emphasizes this comment by “even the liberal” Justice Stephen Breyer:
Justice Breyer elaborated on what children put in their underwear. “In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day,” he said. “We changed for gym, O.K.? And in my experience, too, people did sometimes stick things in my underwear.”
Ha-ha! Strip-searching middle-school girls is funny! (Unless you’re a middle-school girl, but if you are, you don’t vote so we don’t care about violating your Fourth Amendment rights.)
You bet it’s appalling when our supposed allies sell us out. That’s sure what Breyer appeared to be doing. There’s also a special level of prurience, and one hopes a special circle in hell, reserved for those who sexually humiliate a schoolgirl. (Redding was 13 at the time of the incident.) And let’s be clear: Strip searches are always a form of sexual humiliation.
Stepping back just a moment from the issue’s gendered dimensions, I assume we can all agree that strip searches in public schools are a violation of the kids’ rights – full stop. Nothing short of a life-and death situation justifies stripping a kid of her clothes, rights, and dignity. Metal detectors will pick up weapons. Unless there’s a clear and present danger of a kid secreting plastic explosives on his person, there’s just no fucking excuse (and then the principal had better call the cops anyway). Redding was falsely accused of carrying prescription ibuprofen; I’ve taken a lot of that stuff and it hasn’t exploded yet.
Historiann and Amanda are surely right that Justice Ginsburg is a lonely voice, and that we can’t trust a nearly all-male court to protect women’s interests. They’re right, too, that girls are generally vulnerable in ways that boys aren’t – not least, because teenage girls are sexualized in our culture to a much greater extent than boys. Girls are also more likely to be sexually harassed or molested, but truth be told, boys are also at very high risk.
In Ohio, schools have conducted strip searches for contraband as minor as cigarettes. In a case the ACLU just won against the Bucyrus School District, all but one of the students were boys. They weren’t treated any better than Redding, and they don’t seem to have regarded the experience as a boys-will-be-boys lark. Here’s how the ACLU describes the kids’ ordeal:
The case stemmed from an April 17, 2008 search at Bucyrus Middle School. Prior to the start of the school day, a group of students congregated in an alley across the street from the school. Some of the students in the alley were smoking cigarettes. The school principal came upon the students, some of whom ran onto the school grounds and mixed in with others. The principal pulled a group of students inside, including some who had been in the alley and some who had not.
Staff members brought each of the male students into an office, made them turn out their pockets, patted them down and made them to drop their pants so they could check for tobacco products. A staff member also ran his finger around the waistbands inside the boys’ underwear. Staff then took a female student into an office and forced her to lift her shirt up and patted her down. No cigarettes were found. The female student also reported being strip searched again at an after school event several months later.
You can’t tell me these boys were preening! You can’t convince me they were joking around in the locker room!
What’s at stake here is bodily integrity and autonomy. We feminists fight for these rights for girls. We need to insist on the same rights for boys. And we have to acknowledge the very real humiliation when a boy’s bodily integrity is violated. Amanda writes:
Feminists can immediately see what’s going on, as we’re more than a little attuned to the way that authoritarian pigs have more than a little bit of the sexually sadistic streak that means they look for every opportunity to humiliate teenage girls with nudity. …
One wonders if a boy had been required to pull his penis out of his underwear and shake it in front of the teacher if that would have seemed different than the practice of using public urinals to Breyer. I think it’s quite likely.
Sure. But it’s really, really not just girls who are being targeted in these searches. In the Bucyrus case, “authoritarian pigs” showed their “sexually sadistic streak,” but they didn’t limit the humiliation to boys. We don’t know why the girl was picked on a second time (but oh, my prurience meter is flashing). No matter what, her double ordeal doesn’t neutralize what happened to the boys. A trusted adult actually reached into their underwear. The boys were forced to drop their pants. None of this is hypothetical.
I’m guessing Breyer and the other justices were probably briefed on the Ohio cases; if so, that makes his comment more brutish, not less.
A patriarchal approach to power regards young boys as property, just as much as young girls. It disrespects them completely as autonomous persons. Think of the way the Fundamentalist Latter-Day Saints deal with “their” young people: they rape marry the girls and exile most of the boys. The FLDS church represents one model of how a pure patriarchy harms all but the ruling patriarchs. In a rump patriarchy like ours – better described as a kyriarchy, in my view – a few boys are groomed to become the next patriarchs, while the rest are brought up to be peons, not rulers. Humiliation is a central tactic in creating this distinction.
Schools are funny little universes unto themselves. Sometimes the leadership loses its moorings and claims absolute power for itself. When that happens, it’s not surprising that the petty dictators also anoint themselves petty patriarchs.
It’s not crying “what about the menz?” to note that kyriarchy can hurt boys just as seriously as girls, and sometimes in very similar ways. We wouldn’t excuse sexual assault just because the victim was a boy. Here, too, we need a feminist lens that’s broad and sharp enough to see that Breyer’s sexism hurts both boys and girls.
Patron cat of Kittywampus (1985-2001)
I looked up the transcript for this case (Safford Unified School District v. Redding, No. 08-479). It was not difficult to find. It is here: http://origin.www.supremecourtus.gov/oral_arguments/argument_transcripts/08-479.pdf
I read all of the statements and questions by justices Bryer and Ginsburg. And, to be honest, I can’t see evidence of any lack of compassion or concern about an invasion of privacy. In fact, that seemed to be what the case was all about: how can we balance the need for privacy and psychological safety of vulnerable students with the equal need to keep those students safe.
A student taking prescription drugs at that school had almost died a year earlier. Another student had gotten violently ill taking a prescription drug just seven days earlier. Prescription and OTC drugs had been used at this school by students thinking that they could get high from them.
What if the teachers had done nothing when the girl’s friend said that she had the drug on her? And if the girl or another had OD’d, just like 7 days before?
Still, Justice Bryer was concerned that a student should not be searched in the least bit more than necessary, and certainly not stripped. (See his comment on the bottom of page 22.)
Page 48 seems to hit the heart of the problem: the balance between protecting students from themselves and protecting them from their protectors.
The Breyer/Ginsburg exchange alluded to by the NPR report appears to be on page 45, though the transcript records Ginsburg’s reaction very, very differently than the NPR reporter does.
What I take from Breyer’s comments is that he is doing his job: scrutinizing the arguments put forward, poking and prodding them from every angle, asking questions, and inviting the attorneys from each side to present as thorough and convincing an argument as possible.
If I were an administrator at this school, I think the most sensible approach would be to phone the parents and let them deal with it. What happened was quite extreme.
But then, it’s not nearly so extreme as having a student (almost) die.
I gather that the hope of all the judges is to ensure the students’ bodily integrity, but also their safety. That is the balancing act that they must complete.
In that task, I don’t see either patriarchy, or even kyriarchy. Just nine people doing their best to do their jobs.
I am happy to be disagreed with, but I hope if anyone does, that they will read the transcript first. (It looks long, but it’s a quick read.)
Mark’s argument looks like a case of the ends justify the means. I think one of the main outrages in this case is that the girl in question was accused by another student who actually had the drugs on her. In a criminal court this type of evidence is certainly looked at carefully. In middle school this type of “evidence” should not be considered at all if it is the only “evidence” presented. Middle school is famous for back biting, name calling and worse towards students deemed “not cool”. Now you can add humiliation through strip searching.
My son, who is going into middle school next year, asked what would happen if someone put something into someone’s locker and then told? This question came after it was reported that a school-wide search of a local high school was conducted by the police (with the students being in lock down mode). There wasn’t even a specific threat, no report of specific drugs. My son should not be worrying about being framed and then punished unfairly, expelled or striped searched. He should be worrying about how he is going to find his way around the school and if you really get the 6 hours of homework his friends say you get!
As a society we need to treat our young people with respect. We need to recognize currently they are held to a different level of justice than adults. The justice meted out to young people seems to be all punishment, and an assumption of guilt before innocence! How medieval.
Sorra, you would find that transcript very interesting, in terms of what the schools can legally do. They are held to a lower standard than the police. And the level of incompetence is just staggering, as is the amount of disrespect for kids, as you mention. I’m much tempted to write a follow-up post on this, if I find the time and mental energy.
Do you happen to know which high school underwent the search and lockdown? I’d like to google it. Also, I’d want to know if it was Athens High, though I think I would have heard about that!
Thanks for posting the transcript, Mark. I did read it in its entirety, and it’s really fascinating.
I fully recognize that the justices have to poke and prod and play devil’s advocate. I still don’t see why Breyer’s questioning had to stoop to a middle-school level, itself! Some questions are smarter and more productive than others, and this line about undressing for gym – it’s just plain clueless and insensitive. Maybe he legitimately “didn’t know,” as he says in the transcript, but I think it’s fair to expect a higher level of clued-in-ness from a guy who wields that much power.
Dahlia Lithwick concurs with Totenberg, so there must have been a lot of body language and tone that the transcript doesn’t capture. She too portrays Breyer as out to lunch and Ginsburg as pissed off.
Patriarchy is visible on the court in that we’re down to a single female justice. I’m hesitant to use the term patriarchy – I think it’s often wielded as an ahistorical cudgel – but it fits the facts pretty well when you consider the composition of SCOTUS. Representation by one’s own gender isn’t the whole picture, of course. Women won’t always take a feminist angle, and I wouldn’t expect them to. Breyer, Souter, and Stevens have mostly been very reliable votes in favor of women’s rights. So chromosomes aren’t destiny. But Sandra Day O’Connor would not have asked the pointlessly insensitive questions that came from Breyer or Scalia – I’m quite sure of that.
As for the balancing act: Right now, the balance is tipped almost entirely in favor of anti-drug hysteria. I’ve been doing a little reading this morning on the legal framework, and maybe I’ll spit out another post on this, because I’m pretty appalled at how few rights kids have in the schools. For now, I’ll just say that the school vastly overreacted in Savana Redding’s case. It had no justification for what it did. And reading the full transcript only underscores this.
Has anyone considered the possibility that Totenberg and Lithwick are playing up the gender differences on the court because it makes for good infotainment? Totenberg goes so far as to *imagine* Ginsberg making a comment about boys “preening” in the locker room. And what about the anger “flashing” in the justice’s eyes? I can’t decide whether that is gendered language or not. (I was not there, but I am sensitive to way in which journalists “emplot” their stories.)
As for Breyer, as Mark points out, his comments are taken out of context by Totenberg and Lithwick, both of whom take his question as a sexist rhetorical point, when he was clearly trying to figure out what a general standard for school searches would look like.
Instead of seeing justices arguing a case, in other words, both journalists reduced the positions of the justices to their genders. Or at least, that seem to me to one plausible feminist reading of the episode. Yes, this is a ridiculous case (ibuprofen!?). Yes, there were inappropriate comments from some of the male justices (including Breyer). But the case should not be reduced to a “battle of the sexes.” The standards established here will presumably apply to a wide range of searches—not just ibuprofen, but cocaine, heroin, and (need I point out?) handguns. This is serious business, and the judges must weigh privacy concerns against safety.
I agree that Totenberg – who I generally like and admire – puts words in Ginsberg’s mouth, and I don’t think that’s defensible journalism. And I also agree that the case shouldn’t be boiled down to a “battle of the sexes.”
To clarify, in my post, I wanted to make two points, which analytically aren’t addressed separately enough:
1) I don’t see Breyer’s questions as a deliberately sexist rhetorical move. Instead, I see them as an expression of unexamined privilege. Breyer made the sort of clueless comments that suggest privilege is precluding empathy. Because this case is about a little girl who was stripped down to her underwear, he comes across as both sexist and stupid to not perceive a difference between changing for gym class, and being subjected to a strip search. As teenagers, many of us (including me) felt like having to change for gym was intrusive. Who among us would willingly submit to a strip search?
2) The impact of this case is not limited to girls. Here I think Historiann and Amanda Marcotte take too narrow a view as feminists. I’m not saying they’re wrong to use a feminist lens, only that they are construing feminism too narrowly as about defending girls. The Ohio experience makes very clear that kids of both sexes are at risk of such instrusive searches.
As for the dangers you mention – the ACLU lawyer mentions that a school might reasonably employ different procedures where actual dangers are suspected. Currently, the schools lump all contraband together. I can’t see strip searching a kid for suspected heroin – shouldn’t the police get involved at that point? Guns are frankly the only true *emergency* on your list, and the schools ought to have a hand-held metal detector for that purpose. If you seriously think a kid has a gun and might be prepared to use it, you don’t stand there watching while he disrobes. That would only give him a chance to start shooting!
Thanks for your thoughtful reply. I agree with you regarding the lack of empathy on the part of the justices and, for that matter, the lack of merit in the school’s case.
As for the broader issues, I’m not suggesting that strip searching honors students for ibuprofen is the same as searching students for guns. As the ACLU lawyer (and you) pointed out, different procedures are suitable for different situations. My point, rather, is the justices aren’t merely thinking about the case in front of them. They’re thinking about precedents and general standards. This explains (in part) some of the stranger questions, such as what counts as strip searching, etc… Your point about guns and metal detectors is well-taken, but one can imagine other life-or-death situations that might require a strip search (a student hiding a hazardous or toxic substance such as an adulterated recreational drug, for example). Breyer is trying to figure out where to draw the line. By the way, I would be very surprised if any member of the court (including Ginsberg) argues for an absolute ban on strip searching in a decision or dissent.
Well, thank you, tophat, for taking the time to comment thoughtfully!
I’m aware that the justices are looking backward and forward at the same time. One interesting argument came when the lawyer for the school district says:
“But I would ask the Court to rule on the constitutional question in the affirmative because it would further the interests of judicial economy. There would not be any more Federal action in this case.” (p. 64)
Basically, if I understand this correctly, he’s saying that if the court rules in the district’s favor, such cases won’t land in the SCOTUS docket anymore. To my unlawyerly mind, that looks like just giving the schools carte blanche, and I blanch at the thought! But I can see how it would appeal as a nice clean long-term solution.
[...] of having ibuprofen, and who took her case all the way to the Supreme Court? Well, despite the inane questions posed by some justices during oral arguments, Savana has won. Jill at Feministe reports that the lone dissent in the 8-1 decision came from [...]