Of Strip-Searches and Students

Copyright (c) 2009 by Kenny Felder

"We worry about what a child will become tomorrow, yet we forget that he is someone today."
- Stacia Tauscher

Savana Redding was 13 years old and in the 8th grade in 2003, when her school principal told her she was going to be strip-searched. Savana asked to call her parents, but that request was denied. The terrified girl was then taken into a room where two female administrators ordered her to strip down to her underwear. They watched as they made her shake her bra, and then pull aside her panties for their inspection.

Her mother is suing the school district, claiming that her daughter's Fourth Amendment rights have been violated. The case of "Safford Unified School District v. Redding" has made its way to the Supreme Court.

If the Roberts Court could ever possibly rule in favor of a student, this case has all the ingredients.

The Supreme Court has already argued the case. Although their ruling will not be officially handed down for months, it seems pretty clear from the questioning where they are headed: school officials must be permitted any and all means to ensure safety. As Justice Souter said, "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."

I don't fantasize often about being a lawyer, but I would love to have been there during this case. I would love to have turned to Justice Souter, after he uttered that particular remark, and shot back "Your honor, I heard a rumor that you may be harboring biological weapons on your person. I apologize for the inconvenience, but I'm going to have to ask you to remove your robe and your pants immediately. Surely, a little embarrassment is a small burden to weigh against the severe implications of a terrorist attack on this august institution."

"Where did you hear that rumor?" Justice Souter replies, just before declaring me in contempt of court and fining me more than a schoolteacher makes in a decade.

"I just made it up," I reply, "But you never know, and after all, you can't be too safe. Your robe, please?"

Justice Souter's comment—the real one, not my fantasy conversation—sounds impeccably reasonable. Embarrassed girl on this hand, crack cocaine in the lunchroom on the other hand...even if the odds are low, it seems like a pretty easy choice, doesn't it?

But I think what happened to Savana is grotesque and unconscionable, and my best means of bringing out what's wrong with Justice Souter's argument is my fantasy response. So I want to ask the following question, not rhetorically, but in all seriousness: Why is it OK to strip Savana, but it's not OK to strip Justice Souter?

Let's start with some of the most obvious and standard responses.

"Because adults are more mature than kids." The word "mature" is a magical incantation. It means both "very old" and "likely to make good decisions," so whenever you invoke it, you automatically imply that old people make good decisions and young people don't—without all the tedious bother of facts or arguments. How well that particular equation holds up is an argument for another day. In this case, I just don't see how being "mature"—wise, compassionate, even-tempered, far-sighted, or whatever else that implies—makes it any worse to drop your drawers.

OK, let's try this one: "Adults are more embarrassed than kids." Not being a female, I can only rely here on the females I have spoken to, but they seem pretty unanimous on this point: they have never been more self-conscious about their bodies than when they were in middle school. The sense of humiliation, fear, and intimidation, the short-term and long-term consequences of being forcibly exposed, are worse for a 13-year-old girl than for just about anyone else of any age or either gender.

Third try: "We have a special responsibility to keep schools safe." Once again, that argument tempts me into a lot of side arguments. Is the safety of a child more important than the safety of an adult, and if so, how and why? But once again, I prefer to side-step the argument and simply ask: would we strip-search the principal if we suspected that he had dangerous intentions?

No, of course not, which leads to the fourth argument. "Students shoot up schools. Teachers and principals don't shoot up schools." Well, I didn't see anyone strip-searching mailmen after "going postal" became street slang for "screaming into your office with an Uzi." And I can promise you that if a teacher or two does shoot up a school, we will not start strip-searching them for guns, much less for aspirin.

Now that I have dispensed with some of the more easily dismissible arguments, I want you to stop and come back to my key question. Why is it OK to strip Savana, but not to strip Justice Souter? There is an answer, and I think we all know what it is, more or less. Try to frame it as best you can in your own mind before you read further. Don't be satisfied with the vague notion that "I know why, really"; try to get it into words before you scroll down.

OK, here goes. At the heart of the matter is basic human dignity. Or, if you prefer this word, respect.

If Savana's lawyer had argued that Savana needs something called "dignity" or "respect," and that it can trump basic safety concerns, he would probably have been laughed out of court. It seems so insubstantial when you're talking about a 13-year-old. That's why I think it's so important to start this conversation by threatening to strip-search an adult, such as a judge or even the school principal. Because suddenly, those insubstantial words become all-important. Of course you can't strip down the judge. He might quite literally be willing to die first, and no one would deny him the right to make that decision.

Our society recognizes that dignity, although very difficult to define or measure, is often more important than risk of life and limb. We preserve human life because of the sanctity of human dignity, not the other way around.

This is, of course, why it was so important for Rosa Parks to stay on the front of the bus. It is also—this is obvious if you think about it—the only reason why it was so important to her opponents to move her to the back of the bus. At stake was nothing less than the question of whether a black person counts as a human being, and should therefore be accorded—not only the basic protections that we grant our pet dogs—but some measure of basic human respect.

I'm not veering onto a tangent when I discuss Rosa Parks; it is the best analogy I can find. I wanted to be in that courtroom because I want to compare the status of minors today to the status of black people in the 1960s. I want to ask Justice Souter if he can think of any situation at all in which he would rule for a student against a school, not because the student is in physical danger of not growing up to be a real person some day, but because the student right now has any measure whatsoever of liberty or human rights. And if the answer is no, then I want to ask him when those things kick in. Gradually, as you get older? Suddenly, when you turn 18, or 21, or leave school? In either case, what are they tied to?

Actually reading the transcript of the Supreme Court's debate is severely depressing for me. Savana's lawyer argues, for instance, that a student would be very unlikely to hide pills in underwear because of "the ick factor." He won't win on that basis, but I would find it an utterly hollow victory if he did: imagine winning the Rosa Parks case on the strength of an argument that "This vehicle did not technically count as a bus, and therefore the back-of-the-bus statute did not apply."

I didn't see anyone asking "Would we strip-search a 22-year-old secretary in an office in a comparable situation? And if not, exactly what is it about being a 13-year-old student that makes this situation so different?" I didn't see anyone trying to salvage the 1969 Tinker ruling that "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

But I did see the lawyer, Matthew Wright, winning points with the sacred principle that "We need to shield [school] administrators from lawsuits and legal liability." No matter what draconian measures the school administrators impose on their helpless charges, their hands must not be tied by messy legal restrictions. The irony here particularly makes me want to scream, because school administrators are drowning in legal liability. That's why they're so terrified of ibuprofen, you moron: because if some student somewhere has an allergic reaction to an Advil, his parents can sue the school. If the courts could shield schools from that kind of idiotic lawsuit, they would be doing us all a favor. But of course, that isn't what Mr. Wright meant. What kind of lawsuits does he mean we need to shield schools from? You won't believe my answer if I tell you, so I'm going to leave it to you to puzzle that one out.

This is—obviously—a very emotional issue for me. In response to my essay on Graduated Licensing, which touches on some of the same issues, I think Gary voiced the unspoken reaction of most readers: "I find the story interesting and amusing, and the argument interesting and not entirely convincing." The less polite version would be "There goes Kenny, with his kids' rights thing again." I get that a lot.

So I want to anticipate it, and ask readers—and those who would leave comments—to try to give me the sane, rational, non-Kenny answers to these three questions.

  1. Where do we draw the line between "liberty/dignity" on the one hand, and "safety" on the other hand, for adults?

  2. What exactly is it about a 13-year-old that makes that line different?

  3. Is there a line at all for a 13-year-old, or does liberty simply not enter the equation until age 18 or 21 or thereabouts?
I know my answers, and I think you do too. And unfortunately, I think I know the Supreme Court's answers too.

Update added June 27, 2009

My predictions for this case turned out to be entirely wrong. In a remarkable 8-to-1 ruling, the court held that Savana does in fact have some rights under the Fourth Amendment, and they were violated in this case. Writing for the majority, Justice Souter opined: "What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable."

Clarence Thomas, who had still been hoping for some excuse to strip-search Anita Hill, dissented.

I'm happy about the outcome, but not as happy as you might think. Two other aspects of the ruling are notable.

However, the idea that there is some line, somewhere, that you can't cross, is a good start—and considerably better than I had expected.


From: Richard Felder
May 19, 2009

Well done, as usual.

This is a really tough one. I see two issues involved where lines must be drawn. One, under what circumstances does the public good trump the adult's right to privacy and dignity? Two, at what age is a child entitled to that right?

On the first one, most people would agree that if it comes to concealed explosives or guns or other weapons, the public good beats privacy—strip away! Concealed sandwiches possibly being smuggled into a no food and drink area? Clearly, no strip search. What about drugs? Which drug? Heroin? Cocaine? Marijuana? Percoset? Tobacco? Cheetos (think of all that MSG)? Almost certainly for heroin, certainly not for Cheetos, and various levels between on the others. Who decides? And if you suspect someone of smuggling in a banned substance, do you just do the worst case scenario, assume it's heroin, and automatically strip search? Who makes that call?

As to the age at which a child becomes an adult, privacy-wise, for you that age is clearly somewhere below 13, and I presume you'd agree that it's somewhere above six months. You could argue that it's more a matter of the child's maturity level than choronological age and I'd agree, but I don't know that it's possible to come up with a maturity test that everyone would buy into, so we're probably stuck with age. Who draws that line? The Supreme Court, apparently, and given how I feel about this court I won't be astonished if they draw it at a point much different from where I would.

From: Kenny Felder
May 19, 2009

First issue: a pretty clear legal line exists, about who is allowed to order a search and what kind of "probable cause" and paperwork are involved. Critically, that line applies whether you are searching a girl's underwear or her purse. I don't have particularly strong feelings about that line in general, but I suspect that for the most part it is generally about where it should be.

Second issue: this is, of course, where I am completely out of step with every other human being on the planet. I would draw the line very simply where a child objects to being searched. (Six-month-olds don't mind a bit, as long as your fingers aren't too cold.) I would love to send a girl off to the first grade with a little pink plastic purse and the assurance that no one—not her classmates, not her teacher, not the policeman on the street corner—has the right to search through that purse against her will. She puts her favorite rock in there, and a lock of her mother's hair, and a drawing she is still working on, and marches off to school full of the pride of secret ownership. I think this sends the right message in a million ways. And incidentally, it has the side benefit of allowing us to tell the altar boys that the priest doesn't have the right to invade their privacy either.

But let's say I'm wrong. Let's say there is something about minors of a certain age that fundamentally alters their right to privacy in a moral sense, which we must then reflect in a legal sense. My question is, what is it? Is it the fact that they generally show less foresight than their elders? That they are more prone to be sadistic? It's not enough to say "because they are younger" or "because they have less experience": those undeniable facts must be leading them to be different, right now, in some way that has a real bearing on the issue of privacy. What is it?

From: Alex Dunham
May 20, 2009

It is awesome that you wrote about this case! I was disgusted when I heard about it in government class, but I assumed the Supreme Court would rule against the search—if there is any right to privacy in school, surely this strip search is a violation of it.

I also wonder what miraculous change occurs to most people at some point between childhood and adulthood. I'm pretty sure that nearly every kid is on Savana's side, and that nearly every adult who isn't would have been on Savana's side when they were her age. Is it that you kind of lose your younger self in stages as you get older? A 6-7 year old looks down, not maliciously, but just naturally, on a 2-3 year old, and might be embarassed at being reminded of some of the things he/she did at that age. A 9-10 year old might find themselves embarassed at using "Mommy" or "Daddy." This continues (it seems to me) to at least the point where the 20- or 30-something year old looks at their 15-17 year old self and finds flaws—maybe arrogance, or selfishness, or something else. The flaws are probably at least partly valid flaws that really did exist. The 20- or 30-something also remembers how fully cognizant a person they felt themselves to be at the 15-17 stage, and so arrive at that same feeling, but more intensely, of embarassment. And so the whole general idea that adults seem to have, that "oh, I'm so much smarter than back when I knew it all" comes about, and the adult not only rejects the flaws of their younger self, but the entire feeling of cognizance. It's "I'm an adult, and I realize how ridiculous I was when I was 15 even though I thought that I knew what was going on."—interlude where they don't apply the same concept to themselves at that moment compared to their future selves—and then "Of course, I am fully cognizant right now, and it would unacceptable to take away my essential rights of dignity or for others to consider themselves superior beings to me, so I get x and y rights, but because of the immaturity (the non-realization of all those obvious flaws but still the feeling of cognizance) of kids, they can't have all those same rights." And the differences at the various stages can be felt. Throw a 10 year old in a room with a 6 year old and they do not become great friends. Throw a 27 year old in a room with a 16 year old and neither do they. There is a mutual feeling of not only physical superiority, which might not even be around between the latter two, but a mental "superiority," and maybe that is part of accepting this search as ok.

From: Kenny Felder
May 20, 2009

I think there is a natural tendency for people to want to feel superior to other people. If you feel superior because of something that you do well—a skill, or a character trait—then you're always in danger of losing it, if you get worse or someone else gets better. But if you feel superior because of the group you belong to, that's very safe. Hence, for a long time, all white people—even the meanest and poorest, or especially the meanest and poorest—could take solace in knowing that they were inherently superior to black people, "just because," and since it was completely independent of how good they were at anything at all, it could never be taken away.

In the same way, every 7-year-old feels superior to mere 4-year-olds, and so on up. In this case, it isn't 100% arbitrary: a 7-year-old really is bigger, stronger, and more capable than most 4-year-olds, both mentally and physically. And whether he shows it in a mean way ("Ha-ha, I can lift more than you!") or a nice way ("Wow, you sure can lift a lot, for a 4-year-old!") he still gets that juiced feeling of superiority.

Today's society has taken most of that away. You can't feel superior for being white, or male, or Christian, or heterosexual, or whatever. But you can still feel gosh-darned superior to those folks who shows the bad taste of being born after you. And once again, it isn't entirely arbitrary. I'm a very different person in many ways from who I was at 17 years old, and I dare say, overall, it's an improvement. There really is such a thing as "maturity" in that sense. Every dangerous lie has a seed of truth, and this is the seed of truth in the "adults-are-people-and-kids-are-not" lie. But whatever maturity is (I know it when I see it), Christine Diepenbrock has more of it than I do, and she's 17 years old and I'm 43. And ironically, part of "maturity" should be getting past that pathetic desire to put others down in order to boost yourself up, and in that sense, I feel more mature than the entire Supreme Court.

From: John Hanna
May 21, 2009

This essay rehashed some old thoughts that I had after I took AP Government in 10th grade.

Why aren't younger teenagers allowed to vote?

My initial argument was, that as a 16-year-old fresh out of my Wake County mandated civics class, I was more qualified to vote than most of the adults I knew. I can also say, with a slight sense of shame, that I probably was more qualified to vote 2 years ago than I am now.

"But kids aren't mature enough to make an informed decision!" says the ignorant adult.

The most direct argument I can make here is that we let immature people vote. I know some 17-year-olds that are more mature than 18-year-olds. Why can't they vote? What about idiots? We let them vote too. Should we not? Should we force an IQ test on all incoming voters? Besides, the kids who aren't interested in politics are probably going to stay home, as opposed to doing something haphazard with their vote. (Because the adults do too.)

For that matter, how can a vote be dangerous? I would contend that the intellectually superior adults would be more able to "damage" things with their vote.

"But kids don't pay taxes! It's not their money that they'd be spending. No representation without taxation," retorts the smug adult.

Sometimes they pay taxes. Kids who have jobs have to pay taxes on the salaries, as they become painfully aware of after their first paycheck from Burger King comes in $83.24 short. Should we not tax kids with jobs? Better yet, should we not allow kids without jobs to vote? Should we take away the vote from the unemployed? Poor people don't pay taxes either, should we take away their vote to make it fair?

Do you think kids would vote for government officials who installed principals that allow strip searches of their students?

From: Kenny Felder
May 21, 2009

"Why aren't younger teenagers allowed to vote?"

I've asked a lot of people that question over the years.

The answer "they don't pay taxes" doesn't come up so often. It hearkens back too much to the idea that only property owners should get to vote, and although there is certainly some merit to that idea, it is very, very politically incorrect. So people stay far away from it.

Instead, you get this. There is such a thing as "maturity" that is very difficult to measure or describe exactly, but it has to do with making decisions that are farsighted and reasoned and unselfish, and it correlates somewhat although not perfectly with age. We pick an admittedly arbitrary age so that we will generally collect votes from the more mature folks, understanding that it is not a perfect system.

I have a lot of problems with that argument. I grant that there is something called maturity, and some people have more of it than others, and all things being equal it does show a positive correlation with age. But, as I discuss in my graduated licensing essay, our society is currently rejecting exactly that line of argument in all other spheres. For instance, we deny 15-year- olds the right to drive, because they are statistically more likely to get into accidents. But we would never apply that logic to drivers over the age of 70, much less to Hispanics, both of which can also be argued from valid statistical grounds. It would be considered unfair and dehumanizing to treat any other group as a statistic. With young people, it's considered inevitable.

And when I ask why that is—why we can treat all young people as a statistical collection but we can't treat Jews or women or any other group that way—I never get any coherent answer.

From: Kenny Felder
June 29, 2009

Georg Buehler wrote a fascinating blog entry in response to this essay. You can read it at http://abandontext.com/index.php?/archives/2009/06/29.html and click on "Comments" at the bottom to read my response, and any others that may have come about since.

From: Savana Redding
October 14, 2015

Hello there Kenny,

It's Savana Redding here. I ran across your article recently while browsing. I google the case every now and then and reach out to students here and there. I was pleasantly surprised to find that quite a few students are learning about this and doing essays and reenactments of the case still. So I happened upon your rant and just wanted to say I enjoyed it, and a few of your other writings. Thanks for sharing :-) Have a good day


From: Kenny Felder
October 14, 2015

Wow!!! I have to say, hearing directly from you is the coolest email I've gotten in a long time.

It sounds like you have moved on in a healthy way, even with a healthy attitude toward the case and what you went through. That is truly impressive. I still get upset when I think about what happened to you, and about how the courts reacted.

From: Savana Redding
October 15, 2015

Haha well thanks! :-) I would like to believe I have moved on and put it past me for the most part; I definitely don't let it stop me from living my life. I've got a little family and a tiny business, trying to go back to school. It's still hard for me to deal with authority figures sometimes lol. I do get a bit upset about it still, especially about the things some of the Justices had said. Even though I won with most of the votes, seemed like some of them still didn't understand how big a deal it really was to me.

From: Kenny Felder
October 17, 2015

That idea—that the judges just didn't understand that this was a big deal—is one of the most interesting and ugly aspects of this whole thing for me. If those judges had to strip down in the courtroom, they would consider it an immensely big deal. And most of them probably know, at some level, that such humiliation is worse for a girl than for a guy. But they can't apply such "personal dignity" considerations to students. I mean, we're talking about children here—more like beloved pets than, you know, real people, right?

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