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The Good, The Bad And The Legally Blind

Good news: Eight justices of the U.S. Supreme Court agree that it is unconstitutional for school officials to force a 13-year-old girl to stand before them, strip to her underwear, shake her bra and pull aside her panties in a search for painkillers. Sometimes.

Bad news: One sitting justice of the nation’s highest court, himself no stranger to sexual harassment allegations, says that such a proceeding does not violate the Constitution’s prohibition against unreasonable searches.

Simply depressing news: Seven justices, all of whom happen to be middle-aged men, conclude that the assistant principal who ordered the search could not have been expected to know that his conduct was illegal. Only Ruth Bader Ginsburg, the high court’s lone sitting female jurist, and John Paul Stevens, who, at 89, is both the oldest justice and clearly old enough to know better than his younger colleagues, recognize patently outrageous behavior when it is placed before them. The insensate seven give new meaning to the term “blind justice.”

When Savana Redding, an eighth-grader from Stafford, Arizona, was called to the assistant principal’s office, she thought that perhaps she had won an award. Instead, she was confronted with four prescription pills (each equivalent to about two Advils) and one over-the-counter pill, all prohibited by school policies. The assistant principal, Kerry Wilson, said the pills had been found in the possession of another student, who claimed that she had gotten them from Savana. After failing to find any pills in Savana’s backpack, Mr. Wilson took the further step of asking a female administrative assistant to take Savana to the nurse’s office to be strip-searched.

During oral arguments in April, the justices seemed sympathetic to the school district’s position that such searches are necessary in order to ensure student safety. Justice David Souter remarked, “My thought process is I would rather have the kid embarrassed by a strip search, if we can’t find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry.”

Judges often play devil’s advocate during arguments. We cannot know whether Souter and his colleagues really entertained the argument that this search was justified. Perhaps someone has since pointed out that one student’s safety — Savana Redding’s — was clearly compromised, since she was the victim of conduct that could well have been defined as a sex crime. Or that ibuprofen is non-lethal and is routinely used to relieve headaches and menstrual cramps, among other ailments commonly afflicting schoolchildren. The case does not address whether the school district’s so-called zero tolerance policy against student possession of legally prescribed or over-the-counter medication is acceptable in the first place. That policy, rational or not, was the justification for the intrusive strip search.

Given the Court’s posture during arguments, many people were surprised when the 8-1 decision was handed down in favor of the student. The dissenter, shamefully but not surprisingly, was Justice Clarence Thomas.

Not much has changed since his 1991 confirmation hearings, during which Thomas called the examination of Anita Hill’s sexual harassment allegations against him a “high-tech lynching.” Thomas appears to see a victim any time an older, more powerful, male superior is not allowed to impose his will on a subordinate woman or girl. As a former Thomas assistant wrote to the Senate Judiciary Committee during his confirmation, “if you were young, black, female, reasonably attractive and worked directly for Clarence Thomas, you knew full well you were being inspected and auditioned as a female.”

In his dissenting opinion in the Redding case, Thomas argues that the decision creates a road map for students who wish to conceal contraband at school. He completely misses the point that the harm to a student subject to an abusive, unreasonable search far outweighs any harm likely to come from painkillers hidden in underwear. But we can surmise that Thomas would have a different point of view if it were his underwear, or the contents thereof, being inspected.

Though the majority disagreed with Thomas’s conclusion, ultimately its decision in favor of Ms. Redding is not much better when it comes to distinguishing right and wrong. The Court ruled 7-2, with Justices Stevens and Ginsburg dissenting, that none of the school officials involved—the assistant principal, the administrative assistant, or the nurse—could be held personally liable. The officials, according to the Court, were entitled to “qualified immunity” on the grounds that previous court rulings had been unclear about when schools could perform strip searches.

The majority opinion also did not argue, as any reasonable student or parent would, that it is in fact never okay for a student to be forced to remove her clothing in the presence of school officials. Instead, the opinion written by Justice Souter implied that a strip search would have been perfectly fine, so long as Wilson had had reason to suspect that Savana might have hidden pills in her underwear specifically. The Supreme Court, not for the first time, viewed public school students as having about the same rights to personal privacy and expression as prison inmates.

Justice Souter was quick to point out that the Court majority meant “to cast no ill reflection on the assistant principal.” Only Justice Ginsburg condemned Mr. Wilson’s treatment of Savana as “abusive.”

Wisdom sometimes comes slowly when it comes at all. Justice Thomas clearly remains as unfit for the high court as he was when he arrived, unable to appreciate the rights of anyone other than himself. The majority of his colleagues seem burdened by the same affliction, though to varying and much lesser degrees. And only two members of the Court, who stand apart from the others in age and personal experience, know child abuse when they see it.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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