Tuesday, May 12, 2009

Why Is the Supreme Court So Callous About Privacy?

'The Most Humiliating Experience I Have Ever Had' -- Why Is the Supreme Court So Callous About Privacy?

By Liliana Segura

Go To Original

Savana Redding was a 13-year-old eighth-grader at Arizona's Safford Middle School when she was pulled out of class one day by her school's vice principal, Kerry Wilson, and told to bring her books with her.

Rumors had been swirling that a group of students were packing prescription ibuprofen pills -- "contraband" -- and were planning to pass them out at lunch. Redding had been falsely accused of carrying the illicit substance, and Wilson took her into his office for questioning.

She later said in a sworn affadavit:

"Once in his office Mr. Wilson started discussing the importance of telling the truth. I told him I would tell the truth. Mr. Wilson then asked me if I would mind if they searched my stuff. I knew that they would not find anything, so I agreed to the search."

Redding's backpack was searched and, indeed, nothing was found. But the vice principal was not convinced. He ordered her to go with a faculty member to the nurse's office.

"I went to the nurse's office. Mrs. Romero asked me to remove my jacket, socks and shoes. The school nurse, Mrs. Schwallier, was in the bathroom washing her hands. When Mrs. Schwalleir came out, they told me to remove my pants and shirt.

"I took off my clothes while they both watched. Mrs. Romero searched the pants and shirt and found nothing.

"Then they asked me to pull my bra out and to the side and shake it, exposing my breasts. They also told me to pull the underwear out at the crotch and shake it exposing my pelvic area.

"I was embarrassed and scared, but felt I would be in more trouble if I did not do what they asked. I held my head down so that they could not see that I was about to cry."

Redding called the strip search "the most humiliating experience I have ever had." Her mother, who did not find out about the search until her daughter came home from school, sued.

Redding's initial lawsuit was thrown out, but later the ACLU represented her before the San Francisco Ninth Circuit Court of Appeals, which ruled that her Fourth Amendment rights had been violated. This past January, the Supreme Court agreed to consider the decision. Oral arguments took place on April 21.

The Savana Redding case has outraged people across the political spectrum. But according to some who attended the oral arguments in Washington last month, when it came time to discuss it, the justices largely seemed not to get why.

"Editorialists and pundits have found much to hate in what happened to Savana Redding," wrote Slate senior editor Dahlia Lithwick in the hours following the oral arguments. "Yet the court today finds much to admire."

Never mind the amicus brief filed by the National Association of Social Workers, the National Association of School Psychologists and the American Professional Society on the Abuse of Children (among others), arguing that "a strip search of a 13-year-old student by school authorities is an extraordinarily intrusive search" and warning that "strip searches can cause severe emotional and psychological harm to children." (Savana Redding eventually dropped out of school.) By and large, the eight men on the bench kept returning to the same question -- with the exception of Justice Clarence Thomas, who has not asked a question since 2006 -- why is this such a big deal?

"I'm trying to work out why is this a major thing to say strip down to your underclothes, which children do when they change for gym, they do fairly frequently," mused Justice Antonin Scalia. "… How bad is this, underclothes?"

Meanwhile, Justice Stephen Breyer seemed to think that searching Redding's underwear was a pretty reasonable thing to do, since that's where any normal kid would hide prescription drugs.

"I mean, I hate to tell you, but it seems to me like a logical thing when an adolescent child has some pills or something, they know people are looking for them, they will stick them in their underwear. I'm not saying everyone would, but I mean, somebody who thinks that that's a fairly normal idea for some adolescent with some illegal drugs to think of, I don't think he's totally out to lunch, is he? "

("Do you have any studies on this?" Breyer asked lawyers for Redding, while adding "I doubt it.")

In the absence of empirical data, Breyer turned to anecdotal evidence to expand on his point of how normal it is for adolescents to stick things in 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; we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear…" -- this claim was met with hearty laughter -- " … Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience, not beyond human experience."

"But the 'not beyond human experience' standard is not the standard that governs whether the Fourth Amendment is violated," protested attorney Adam Wolf.

The Court and 'Human Experience'

There are many reasons the transcript in Redding v. Safford Unified School District No. 1 are ripe for parody. In one exchange, about contraband items at school, Scalia was apparently surprised and somewhat amused to discover that some students bring them to school "for sniffing."

Scalia: Oh, is that what they do? … They sniff them? Matthew Wright: Well, that's the -- I mean, I'm a school lawyer. That's what kids do, Your Honor, unfortunately, Your Honor. But -- Scalia: Really?

At other points the justices indulged in lengthy theoreticals over what should have happened were the drugs in question meth, cocaine or heroin -- and whether saying that strip searches are appropriate in public schools should be understood to mean that body-cavity searches, too, might be.

("I can say to this Court you will not restrict or in any way inhibit the discretion of an administrator by saying you can't go there on a body-cavity search, nor would they want to, nor are they clinically trained to," the attorney for the school district took pains to clarify.)

But the dark humor of the oral arguments boiled down mainly to a vast gulf between the justices' take on what qualifies as "human experience" and more than half of society's. Only Justice Ruth Bader Ginsburg, the only woman on the bench, seemed not to lose sight of the fact that in the case at hand, a 13-year-old girl had been baselessly stripped, literally, of her privacy in a highly invasive and public manner on school grounds.

"After Redding was searched and nothing was found," said Ginsburg, "she was put in a chair outside the vice principal's office for over two hours, and her mother wasn't called. What was the reason for that humiliating, putting her in that humiliating situation?"

Lithwick -- who wrote perhaps the best play by play on the Redding arguments -- wrote, "Even if you were never a 13-year-old girl yourself, if you have a daughter or niece, you might see the humiliation in pulling a middle-school honor student with no history of disciplinary problems out of class, based on an uncorroborated tip that she was handing out prescription ibuprofen."

But indeed, it is on precisely this level of "human experience" that the Supreme Court bench seems so pathetically lacking.

Judicial Empathy?

One day after the oral arguments in Redding, the Supreme Court handed down a surprising decision in another Fourth Amendment case out of Arizona.

In Arizona v. Gant, Tuscon resident Rodney Gant was arrested for driving with a suspended license (and for failure to appear in court on a prior charge of driving with a suspended license). Gant, who was outside of his car at the time, was handcuffed and locked in the back of a patrol car. Police officers then searched his car and discovered cocaine in the pocket of a jacket lying in the back seat.

Attorneys for Gant argued, all the way up to the Supreme Court, that this search violated his Fourth Amendment rights. After all, Gant was not arrested on suspicion of possession of drugs. Nor did his proximity to his car pose a threat to the police officers (as required by legal precedents). The police had no reason to search his car.

In a surprising move, the Supreme Court agreed, handing down a ruling that was widely hailed as a win for Fourth Amendment rights. In a 5-4 decision written by Justice John Paul Stevens, the majority decided that "police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest."

"When these justifications are absent, a search of an arrestee's vehicle will be unreasonable, unless police obtain a warrant or show that an other exception to the warrant requirement applies," the court ruled.

Scott Lemieux, writing on the American Prospect blog Tapped, called it a "rare Roberts Court victory for the Fourth Amendment."

"Today's case will at least prevent the police from using unrelated minor offenses to justify drug searches without probable cause," he wrote.

Indeed, for decades this practice has been a common component of the war on drugs, a systematic violation of the Fourth Amendment.

One Cato Institute policy paper ("A Society of Suspects") argued way back in 1992 that the advent of the drug war meant that the Fourth Amendment has come to be understood as prohibiting "only 'unreasonable' searches and seizures -- and what is reasonable in the milieu of a war on drugs is construed very broadly in favor of local police and federal drug agents."

(Indeed, in Gant's case, at a hearing on whether the cocaine evidence should be admissable at trial, one of the arresting officers told the court that he had searched Gant's vehicle "because the law says we can do it.")

The ruling in Gant was meant to correct the experience of "countless individuals guilty of nothing more serious than a traffic violation" whose cars have been searched unconstitutionally.

Gant might have shown that the justices have some appreciation left for the Fourth Amendment -- and in the age of warrantless wiretapping and telecom immunity, this is no small thing.

But meanwhile, aside from providing troubling evidence that the escalating war against prescription drugs is criminalizing students, the oral arguments in Redding are proof of another problem characteristic of so many other cases in recent years in which the Court has sided with the powerful against the powerless.

The current Supreme Court bench is stacked with people who cannot bring themselves to comprehend -- let alone empathize with -- egregious abuses of power that affect people with whom they simply can't identify. (Chief Justice John Roberts, after all, is the man who ruled that police were well within their rights to handcuff a 12-year-old girl for eating a french fry on a subway platform.)

Thus, an adult male is vindicated upon proving that police had no business snooping in his car (even though they found cocaine), and a now-19-year-old girl is subjected to the snickering of old men in robes who wonder aloud why having to strip in front of school administrators -- looking for drugs with the strength of Advil -- might constitute a violation of her rights.

Some commenters see the Redding arguments as a shining example of why the Supreme Court is in desperate need of another female justice.

Politics Daily columnist Patricia Murphy wrote this week: "Justice Ginsburg knew why Savana Redding would have been damaged by the moment, just as she alone on the Court knows what it is like to be pregnant, or to carry a child, or face gender discrimination in education or employment." (Note to the right: there's the scary "judicial empathy" your pundits are so alarmed about.)

If the Supreme Court issued purely data-driven decisions about chemical compounds or mathematics equations or string theory, Ginsberg's perspective as the only woman on the Court would be as irrelevant as her perspective as the shortest member of the Court. But because the Court issues subjective decisions, and because those decisions frequently affect women differently than men, a female point of view can make every difference in the world.

No comments: