The Breakfast Table

Rescuing the Court From an Institutional Train Wreck

Dahlia, you ask whether this morning’s opinion changes the standard for school searches of students that has existed since New Jersey v. TLO 24 years ago. Comparing TLO with Safford Unified School District v. Redding gives me a feeling of nostalgia for the days when the problem that most concerned school officials was smoking in the bathroom—which was the TLO case—and for life before “zero tolerance” policies blighted the lives of perfectly good kids who pushed the envelope a bit too far and got unlucky. The TLO court lived in that simple old world. No school official back then would have asked a girl to lift her bra to disclose whether she was hiding cigarettes. It’s no wonder the lower courts have not all been on the same page in applying TLO to today’s world.

Seems to me the Souter opinion does a good job of importing the reasonableness presumptions of TLO into today’s world. The key paragraph, I think, is the final one just before the qualified immunity section:

We do mean, though, to make it clear that the T. L. O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.

In other words, there are two sliding scales at work: the danger that is to be prevented (and reasonable suspicion of such) and the intrusiveness of the search (the “degradation its subject may reasonably feel”). Courts and school administrators are on notice that both of these factors are in play in evaluating the reasonableness of the search.

There’s an interesting sentence near the end of the Souter opinion: “We would not suggest that entitlement to qualified immunity is the guaranteed product of disuniform views of the law in the other federal, or state, courts, and the fact that a single judge, or even a group of judges, disagrees about the contours of a right does not automatically render the law unclear if we have been clear.” So now the court is clear.

Dahlia, you suggest that the public response to the fact, and more particularly to the unfortunate oral argument in Safford, might have caused some members of the majority to reconsider the course they had apparently set out on when the court granted the school district’s cert petition. It’s interesting to think about such a scenario in Monday’s Voting Rights Act case. There is an anonymous “guest post” on Rick Hasen’s Election Law Blog suggesting that something of the same kind was at work in that case. The anonymous blogger hints at having some inside information (or maybe is just a smart observer). His/her suggestion is that the surprising result in the case was actually a collective product, across ideological lines, born of a felt need to rescue the court from an institutional train wreck. The blogger also suggests that we’ll see something pretty interesting about this case when the justices’ papers are made public. Unfortunately, by the time the current justices open their papers, very few people old enough to read this or any other blog will be around.

I do want to move on to the court’s other accomplishments today: Horne v. Flores, the 5-4 decision releasing Arizona from the obligation to provide more money to the Nogales school district for the teaching of English, weighs in at 82 pages for the Alito majority opinion and the Breyer dissent. Despite that numbing length, I think there’s still more going on in that case than meets the eye. Any takers?