The Breakfast Table

Is There an Illicit Market in Advil?

Good morning, Dahlia and Walter,

Was today a bit of a let-down (no Ricci)? Not really. There’s a lot of meat in the decisions that did come down, so I’ll kick off briefly and then go back to my reading. It’s a challenge to enter Safford School District v. Redding, the strip-search case, in the chart I keep of voting patterns. Yes, Justice Thomas, lone dissenter, forcing a 13-year-old girl to reveal her breasts and pubic area to school officials is a strip-search even if she did not actually have to remove her underwear. But there is no two-word way to describe the votes. Six justices (Souter, Roberts, Scalia, Kennedy, Breyer, Alito) found a Constitution violation but also found that the school officials had qualified immunity; two, Stevens and Ginsburg, found a violation with no immunity; and one, Thomas, found no problem at all, accusing the majority of ushering in a dangerous era of “deep intrusion into the administration of the public schools” by the federal courts.

That’s certainly a substantial overstatement of what the majority has accomplished here. Drawing on its ruling in New Jersey v. TLO from 1985, in which the court upheld a search for cigarettes in a student’s purse, Souter’s opinion for the majority today stresses that all that school officials need to insulate a search against a Fourth Amendment challenge is “a moderate chance of finding evidence of wrongdoing” or a reasonable suspicion “that the search will pay off.” It’s quite a deferential standard. Read in conjunction with the 5-4 majority in the case about English language learning students that came down this morning, Horne v. Flores, it is completely apparent that this court is not about to lead the charge of federal judges substituting their judgment for that of school administrators. Justice Thomas’ citation, in Redding, of other cases in which students have been caught with drugs in their pants (“Redding would not have been the first person to conceal pills in her undergarments”) is quite odd. The cases he cites all involve drugs of abuse—OxyContin, hydrocodone, ecstasy. I’m still trying to imagine the illicit market in Advil, which is what Redding was wrongly accused of having. Or maybe I’m missing something.

I’m still pondering the Horne v. Flores opinions and will have some thoughts later. Happy reading.