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strip searches and torture

By Jack M. Balkin

The Supreme Court will here today the arguments in Safford Unified School District v. Redding, involving the coerced strip search of then-13-year-old Savana Redding because of a wholly non-probable-cause-based belief that she might have possessd a banned prescription drug. Needless to say, she did not. As I was listening this morning to Nina Totenberg's overview of the case, it struck me that there is an obvious connection between this case and the interrogation policies of the US involving forced nudity (and worse). The School Board is basically making a "precautionary principle" argument that the threat posed by even a single drug at the school justifies doing "whatever it takes" to ferret out potential carriers. To oppose what some hotheads might describe as the fascistic school board is to label oneself "soft on drugs." I wonder if any of the judges, albeit subconsciously, might realize that to uphold the School Board's egregious misconduct is precisely to play into the hands of Dick Cheney and his own version of the precautionary principle.

Interestingly enough, the United States is arguing, amicus curiae, both that the conduct was forbidden by the Constitution and that the school authorities should be able to claim a qualified immunity from prosecution, presumably because they might "reasonably" have believed they could engage in such outrageous action even though the "true reading" of the Constitution is that they can't. So this, too, obviously dovetails with some of the debates concerning prosecution of CIA (and other) operatives who had been handled "you-never-have-to-fear-jail" cards by United States Court of Appeals Judge Jay Bybee, University of California Professor of Law John Yoo, and the currently unemployed Alberto (Fredo) Gonzales.

In any event, Redding may involve far more than a single traumatized student. (I'm curious whether the libertarians on this list really believe that school authorities should be able to engage in such conduct on the basis of "hunch." For that matter, one might wonder about strip searches of 13-year-old girls even with "probable cause," but that's clearly not this case at all.)

Full post as published by Balkinization on April 21, 2009 (boomark / email).