Justice Souter’s (likely) Farewell – Unreasonable Sex and Searches

Posted on June 25th, 2009 by Katherine Franke

The Supremesouter1 Court issued a decision today authored by Justice David Souter that is likely his last opinion on the Court.   The Court decided Safford Unified School District v. Redding 8-1 that the Fourth Amendment’s prohibition against unreasonable searches and seizures was violated when public school officials searched a 13 year old girl by having her strip down to her underpants and bra and shake them to see if any “contraband pills” dropped out.  None did.  But the “none did” part wasn’t what the case turned on – instead the question was the reasonableness of asking a young girl to stand almost naked at school and prove that she hadn’t hidden drugs in her underwear when a classmate had told school officials that she had gotten prescription drugs from the girl searched.  It’s important to note that the drugs in question were not Quaaludes, speed, ecstasy or other street drugs, or even “recreational” prescription drugs such as vicodin or oxycontin, but were much more benign pain killers – prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve.  Girls with bad menstrual cramps often use these drugs – you don’t/can’t get high from them.

But there she stood, shaking her bra and undies for school officials nonetheless.  savana-reddingAs Justice Thomas argued in his dissent, wherever a pill could fit, it’s reasonable to search (he used a baseball bat in a pocket metaphor that I’ll skip for now).

Eight members of the Supreme Court felt the undie-shaking search was unreasonable under the law of the Fourth Amendment – only Justice Thomas held the view that it wasn’t, as he was the lone dissenter.  (I’ll resist the urge to think out loud about Justice Thomas’ history of sexual exhibitionism and the ironies of his dissent in this case.  It’s hard, but I’ll leave it to others to connect the dots here.)  Justice Thomas’ dissent boils down to this: discipline and rule enforcement in schools should not be governed by the Fourth Amendment (or the Equal Protection clause by implication) because school officials should be understood as having the unfettered authority parents have to discipline and regulate their children’s behavior (in loco parentis, in legal lingo).  If Savana Redding’s parents didn’t like the “zero tolerance – search your undies if you’re a suspect” policy they should have moved her daughter to another school.  (In fact, that’s what they did given how outrageous they found the behavior.)  This kind of “love it or leave it” approach to the scope of the Constitution defies belief: “hey, if you think you should have a right to better treatment, go find other people who share your views and move there.”

Chief Justice Roberts could have assigned the case to a more conservative justice than Justice Souter given that he, Roberts, was in the majority, but he didn’t.  So there is some significance to the fact that Justice Souter wrote the opinion for the overwhelming majority of the Court four days before his last day as a Supreme Court justice.   Justice Souter is no stranger to sex assault/civil rights cases, and one reading of the facts is that what happened to Savana Redding was a form of sexual assault (I don’t hold this view, but you almost feel that Souter does when you read the opinion).   Twelve years ago, Justice Souter wrote the opinion for an unanimous Court finding that Judge David Lanier could be tried for violating the civil rights of women who were told that Lanier would treat their cases favorably if they performed sexual favors for him.  Read about the case here.

What’s different about the Redding case, when compared with the Lanier case, and what might suggest that it will make a difference to have another woman on the Court (or at least a man like Justice Stevens who seems to “get” these issues), was that the Supreme Court found in Redding, unlike in Lanier, that the school officials’ conduct was not “constitutionally outrageous.”  This means that the school officials will be cut a break in this case becauase they, unlike Judge Lanier, might have been reasonably mistaken as to whether it was ok to towel-snapsubject Savana to a strip search looking for Aleve-like drugs based on an unsubstantiated tip.   Justices Ginsburg and Stevens wrote separately to insist that any reasonable school official should have known that this conduct ran afoul of the Fourth Amendment.  Press coverage of the oral argument in the case underscored Justice Ginsburg’s outrage at her male colleagues’ jokes about stuffing things down their underwear in junior high school.  As Dahlia Lithwick blogged at Slate about the case today, after the towel-snapping tone of the oral argument, one wonders what Justices Ginsburg and Stevens said to their colleagues in conference that got them to rule 8-1 in Redding’s favor, and got Souter the job of writing the opinion on his way out the door.


  1. Gender & Sexuality Law Blog » Blog Archive » Justice Souter's … http://tinyurl.com/mtqd2a

  2. Gender & Sexuality Law Blog » Blog Archive » Justice Souter’s … http://tinyurl.com/mtqd2a

  3. Getting back to the new Supreme Court nominee, Title IX , the Civil Rights Act, etc., and how they are often assailed and ineffective…

    How is it that women and women’s rights groups, all of them, do not move on to the one Supreme, Premier law, the Law of the Land!

    A US Constitutional Amendment, the Equal Rights Amendment (ERA) would certainly work to obviate the need for repeated court cases and fights over women’s rights issues.

    Why are we not all marching in the streets for the ONE THING THAT WOULD MOVE US ALL FORWARD IN ELIMINATING SEX DISCRIMINATION–THE ERA. Instead of appearing over and over in court about sex discrimination, WHY ARE WE NOT PUTTING ALL THAT ENERGY INTO RATIFYING JUST 3 MORE STATES??

    We in Florida sincerely appreciate what you do for us women and especially for Florida’s Equal Rights Alliance which works 18/7 for the past 8 years to ratify Florida. Now, we have gone national, as we are mentoring other states who are now filing ERA bills, 7 of them now.

    Why not give us a leg up so we can boost all women over the fence that divides us from the one thing that should be our birthright–equality under the law/Constitution?

    Please please?

  4. Gender & Sexuality Law Blog » Blog Archive » Justice Souter’s (likely) Farewell – Unreasonable Sex and Searches – http://shar.es/BtBF

  5. Gender & Sexuality Law Blog » Blog Archive » Justice Souter’s (likely) Farewell – Unreasonable Sex and Searches – http://shar.es/BtBF

  6. […] Gender & Sexuality Law Blog, Justice Souter’s (likely) Farewell – Unreasonable Sex and Searches […]

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