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April 21, 2009

How might new drug war buzz impact SCOTUS student strip-search case?

As detailed in this SCOTUSblog post, the Supreme Court this morning hears an interesting Fourth Amendment case:

[T]he Court will hear argument in Safford Unified School District v. Redding (08-479), on the constitutionality of strip-searching a student at a public school in search of drugs.  Matthew Wright of Holm Wright Hyde & Hays PLC in Phoenix will argue for 25 minutes for the school district. David O’Neil, Assistant to the Solicitor, will argue for 10 minutes for United States as amicus curiae supporting reversal.  Adam Wolf of the American Civil Liberties Union Foundation in Santa Cruz will argue for the student.

Though there are many interesting aspects to this case, I will be reviewing the oral argument transcript closely to see if any of the Justices suggest they see this case as collateral damage from the failed drug war.  As regular readers know, these days are bringing lots of new commentary about the war on drugs being a failure, and I cannot help but wonder if all this buzzing might impact how the Justices think about Redding.

UPDATE:  And, providing the latest proof that outcomes and votes are unpredictable in modern search cases, the Supreme Court today finally handed down its opinion in the car search case of Arizona v. Gant.  Check out this notable alignment of the Justices:

STEVENS, J., delivered the opinion of the Court, in which SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined.  SCALIA, J., filed a concur-ring opinion.  BREYER, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and KENNEDY, J., joined, and in which BREYER, J., joined except as to Part II–E.

April 21, 2009 at 09:38 AM | Permalink


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I doubt it. The court invokes changing community standards only when it wants to, and when it doesn't want to it doesn't. I can't think of a compelling reason why that would be an issue for the court is this case.

Don't misunderstand. As a matter of policy I quite agree that this case is collateral damage from the failed drug war. But I think the argument is over an issue much larger than the historical context in which this case is embedded.

Posted by: Daniel | Apr 21, 2009 10:27:05 AM

Gant has the Apprendi 5 in the majority, and Justice Scalia's concurrence explains that he didn't really like the majority or the dissent but joined the majority opinion because he thinks it's the more palatable alternative and because in 4th Amendment cases it's especially important for the Supreme Court to lay down clear rules (because the point of most 4th Amendment cases is to tell police what they can and cannot do).

Posted by: anonymous | Apr 21, 2009 11:00:21 AM

Hopefully Safford won't expand the "drugs at school" exception to the Bill of Rights created in the Bong Hits 4 Jesus case.

Posted by: anonymous | Apr 21, 2009 11:02:02 AM

Notable footnote in Gant where the majority explicitly states that, even though countless defendants have had their rights violated by the erroneous interpretation of Belton used by police and the lower courts, the police are nevertheless protected by qualified immunity. Interesting that the Court went so far as to nip the future lawsuits in the bud.

Posted by: A. Nony. Mous. | Apr 21, 2009 11:23:28 AM

There is much ado about gun rights as a protection against tyranny, but wouldn't qualified immunity always be a necessary and sufficient prerequisite to that tyranny? Anyone know of any law review articles or studies that go to qualified immunity for, say, Hitler or Stalin or Pol Pot? If England had an accepted and enforced qualified immunity, no Revolutionary War as a matter of law.

Posted by: George | Apr 21, 2009 3:40:13 PM


Lyle's coverage at SCOTUSblog suggests they're poised to do exactly that. (The exception was not created in the Bong Hits case--it goes back to Vernonia and before that to TLO.)

The clarified rule of Tinker may now be, "Chidren do not shed their constitutional rights at the schoolhouse gate--unless someone says 'drugs,' even 'ibuprofen,' in which case students have no rights at all."

Posted by: Def. Atty. | Apr 21, 2009 3:40:17 PM

How many children die of overdoes at school or at all (not counting suicide)? If the fear of the death of a minor is controlling, we'll see if that same fear of death controls when Pedophile "Predator" Teacher does a few too many perfectly legal strip searches. Which fear will control then?

Posted by: George | Apr 21, 2009 4:08:38 PM

Def. Atty., thanks for the response. I saw Lyle's coverage and found it pretty discouraging. And fair point about the lineage of the exception...

I don't understand where the sentiment comes from.

CJ Roberts has young children and can perhaps imagine why the facts here are so awful. Perhaps that's some indication of he was the only one who suggested punting on QI grounds... Who knows? It doesn't appear that there's much enthusiasm left for the idea that "chidren do not shed their constitutional rights at the schoolhouse gate."

Posted by: anonymous | Apr 21, 2009 4:11:11 PM

Isn't the touchstone of Fourth Amendment analysis reasonableness? Well, the strip search here seems incredibly unreasonable. Who are these idiots?

Posted by: federalist | Apr 21, 2009 4:42:24 PM

Maybe I am being overly optimistic but it seems to me that there are three separate issues. The first issue is how concerned should schools be about drugs in their schools and there seemed to general agreement that schools should be very concerned. The second issue is whether or not that general concern (better naked than dead) justifies strip searches and again there seemed to be a general admission that in the abstract the answer to that question is yes. But there is a lot less clarity as to how many justices actually thought the fact pattern of the case at hand actually rose to the level where the search could be justified.

I can easily see the court crafting a rule where a strip would be allowed if there was present danger (or some such language) to the child and then ruling that a search for 200mg of Advil did not meet that standard.

Posted by: Daniel | Apr 21, 2009 7:05:04 PM

Well the war on drugs is really hard to control because you can make really easy and fast a lot of money and this is every body dream to have money fast and easy no one want to work for it so this is the principal reason why the war on drugs will never end.

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