Following up on yesterday’s post on the strip-searches-in-the-schools case before the Supreme Court, I have to admit I’m shocked at just how much power schools have. I spent virtually all of the 1990s overseas, so I guess I’m still playing catch-up.
The transcript for the oral arguments in Safford Unified School District v. Redding (.pdf – thanks, Mark!) hints at how looney this power can be in action. The school district treated all “contraband” the same – ibuprofen, heroin, plastic explosives, and permanent marker pens!
JUSTICE SCALIA: Any contraband, like the black marker pencil that — that astounded me. That was contraband in that school, wasn’t it, a black marker pencil?
MR. WRIGHT [attorney for the school district]: Well, for sniffing.
JUSTICE SCALIA: Oh, is that what they do?
MR. WRIGHT: It’s a permanent marker.
JUSTICE SCALIA: They sniff them?
MR. WRIGHT: Well, that’s the — I mean, I’m a school lawyer. That’s what kids do, Your Honor, unfortunately, Your Honor. But –
JUSTICE SCALIA: Really?
No, I don’t want my kids sniffing marker “pencils” either, but I haven’t banned Sharpies from my house, either. However, my otherwise perfectly sensible school has removed plastic knives from the lunchroom. I have no clue why; the kids haven’t heard any lore about vicious plastic knife fights. Maybe there’s a state law?? My kindergartner is not permitted to wear the hood up on what he calls his “hoodie-hood.” What good is a hoodie-hood if you can’t use the hood? It’s as though our district has forgotten that we’re a comfy little low-crime college town in the Appalachians and is hallucinating that we’re located, well, in the ‘hood.
Schools do a lot of silly shit. The reason they fail to use even the rudiments of common sense? Well, the oral arguments in the Redding case point to the root of the problem. The justices keep mentioning “T.L.O.” As any non-legal scholar with access to Google can tell you, New Jersey v. T.L.O. was a landmark case in the 1980s in which the court ruled that it was constitutional to search a student’s purse after she was busted smoking tobacco in the girls’ bathroom. She turned out to be carrying weed. The girl, the eponymous T.L.O. (I keep wanting to write J Lo), sued on the basis of her Fourth Amendment Rights. However, the court found against her, saying she had not been subjected to unreasonable search and seizure because different standards apply to schools than to the police.
In short, schools need only demonstrate “reasonable suspicion,” which is weaker than the “probable cause” standard that law enforcement officers must follow. Dahlia Lithwick sums up T.L.O. thusly:
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.”
The crux of Redding’s case, then – and the similar cases in Ohio – boils down to the question of what’s reasonable? What is a reasonable suspicion? What constitutes an excessively intrusive response? Redding’s district seemed to think any suspicion – no matter how thin – was reasonable, and any response – no matter how traumatizing – was permissible.
So we’ve got a situation where schools have almost unlimited power. Yet they don’t have the competence to wield it. As the school district’s lawyer repeatedly insists, no one at the school is medically capable of identifying a loose pill. And so panic sets in, because OMG what if someone overdoses on this stuff? Imagine if you turn these folks loose on a bag of powder! But c’mon, people, anyone with the Google can play doctor as well as lawyer. Once upon a time, in my clueless youth, I took a pill that I believed to be ibuprofen but made me fall down a rabbit hole after ingestion. (Okay, it was only last August, but I really was clueless, if not exactly young.) After this happened a couple of times, I looked at the pill more closely. All of these otherwise unidentifiable, generic-looking, oblong white pills have a numeric code stamped on them. I googled that code and learned I’d been taking – gulp! – Darvocet. Expecting as much resourcefulness from a principal or school nurse would be, shall we say, reasonable.
But what’s at stake here is much more than just student safety. It’s about the prerogative of school officials to control students’ bodies. In this case, a girl was targeted, but as I argued yesterday, the history of patriarchy shows that boys’ bodies can be relegated to property, too. This bodily control operated on multiple planes in the recent case where a girl was suspended for taking a birth-control pill at school during her lunch hour. Zero-tolerance policies are not about keeping kids safe; they’re about fomenting moral panic and exerting control. A mere reasonableness test – stretching into infinity, where reasonable and unreasonable look the same – cements that control.
In the hands of school officials who are unwise or even sadistic, a highly elastic reasonableness standard allows for trauma and humiliation, again threatening both boys and girls within a patriarchal tradition that sees their bodies of children and women as not fully their own. Justice Ginsburg called this out:
JUSTICE GINSBURG: There’s one aspect of this considering the reasonableness of the school administrator’s behavior. In addition to not following up with Glines [Redding's frenemy who ratted her out], after Redding was searched and nothing was found, she was put in a chair outside the vice principal’s office for over 2 hours and her mother wasn’t called. What was the reason for that humiliating, putting her in that humiliating situation?
MR. WRIGHT: Your Honor, that is not a matter of the record, but the inference is that the –that the investigation was still ongoing because there was a group of kids, and at that time the administrator was making efforts to try to make sure that he had gathered all the drugs that might be on campus. And in any event that wouldn’t –
JUSTICE GINSBURG: But how were they investigating her when they did nothing but put her in a chair outside the vice principal’s office?
MR. WRIGHT: Well, Your Honor, I can see where it might have been more reasonable in that sense to have let her go back to class, but it certainly is not a standard that would affect the constitutionality.
(pp. 19-20, my emphasis)
If the issue was student safety, why did no one call her mother? Even the attorney for the school district admits that the school’s conduct was not, um, reasonable. Let’s hope that the court agrees that it’s time to impose some limits on the empty signifier “reasonable.” But Scott Lemieux at Lawyers, Guns, and Money lays out why the court will probably side with the district. Ugh.
I just hope I won’t have to take a shears to the hoods of my Tiger’s hoodie-hoods. He looks so darn cute with the hood up.