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Clarence Thomas’ Strip Search Fetish

by CHRISTOPHER BRAUCHLI

Except for Clarence Thomas, things are not nearly as bleak as commentators would have had us believe after the U.S. Supreme Court announced its decision in the recent case of Florence v. County of Burlington. Strip searches, some feared, would run wild.

Albert Florence had received and paid a fine for a traffic offense some years prior to the incident that gave rise to the case that went before the Court.  When his wife was stopped for speeding and he was in the car, his identification was checked and through a computer error the officer was led to believe Albert had an unpaid fine that had, in fact, been paid years earlier. Since it appeared to be unpaid, he was taken to the Burlington County Detention Center where he was forced to shower with a delousing agent and carefully examined as he disrobed prior to showering and again while nude. Subsequently he was transferred to the Essex County Correctional Facility and, since the Essex County folk lacked confidence in the Burlington folks’ strip search and showering admission procedures, he was strip-searched a second time.  Following his release, Albert sued, among others, the government entities that ran the jails.

The Federal District Court that first heard the case entered a summary judgment in Albert’s favor, holding that strip-searching a “nonindictable offender” without reasonable suspicion deprived him of his Fourth Amendment right to be protected from an unreasonable search.  The Obama administration was distressed at this holding and joined the defendants in urging the U.S. Supreme Court to uphold the actions of the jailers in subjecting Albert to two strip searches. The Supreme Court sided with the administration and held that the strip searches were just fine.  Since the Court has now opened the door wide to strip searches of everyone admitted to a jail for whatever reason there are some who wonder if there are any arenas in which strip searches would be frowned upon by the conservative majority on the court that dislikes government intrusion in private lives except when it doesn’t.   The historical answer is there is one sacred area-the school.  We learn that from a case that involved then-13-year old Savana Redding,  Safford Unified School Dist. #1 v. Redding.

Savana attended a school that has a zero tolerance for drugs.  In 2003 a classmate told school officials that Savana had proscribed drugs in her possession.  Without calling her parents, the school officials did what any reasonable school official would do under those circumstances.  They ordered Savana to remove her outer garments and pull out her underwear to see if she was concealing drugs in her private parts, thus “exposing her breasts and pelvic area to some degree” as Justice Souter who wrote the majority opinion for the U.S. Supreme Court explained. In discussing whether the search was reasonable Justice Souter said:  “Here, the content of the suspicion failed to match the degree of intrusion. Wilson [the school official] knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve.  He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills. . . . “In sum, 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.” The opinion in that case was, insofar as strip searches were concerned, eight opposed and one in favor.

Clarence Thomas, whose function on the Court is to arrive at such bizarre conclusions that they make his conservative colleagues seem to speak with the voice of reason, applauded strip searches.  He lamented the fact that his colleagues did not apply the common-law view that “parents delegate to teachers their authority to discipline and maintain order,” a principal known as “in loco parentis.”  When that rule was applied, he happily observed, parents transferred to teachers the authority to “command obedience, to control stubbornness, to quicken diligence, and to reform bad habits” a quotation from the 1837 North Carolina Supreme Court decision of State v. Pendergrass.   In addition to looking to that case for support, he also cited, a 1765 treatise by W. Blackstone and an 1873 treatise by J. Kent.  He observed that if the reasoning of these old authorities had been accepted by his colleagues, strip searches of school children would be fine. Since parents are not restricted by the Fourth Amendment, teachers and other school officials would not be restricted by that Amendment and would have “almost complete discretion to establish and enforce the rules they [believe] necessary to maintain control over their classrooms.” To that one can only say Wow!! and perhaps express gratitude that he’s a Justice and not a school administrator.  On the other hand. . . .

Christopher Brauchli is an attorney in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu.


 

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