The 9th Circuit Court of Appeals deemed the school's actions unconstitutional, but according to various news sources, the U.S. Supreme Court is likely to overturn that decision, citing that the harm suffered by Redding isn't compelling enough to render illegal at least this outrageous, police-like action taken by the school.
Since 1985, at the height of the Reagan administration's War on Drugs, the U.S. Supreme Court has been bullish on defending state officials' ability to do whatever it takes to weed out drugs from America's schools. Joan Biskupic of USA Today provides this helpful breakdown of key cases on drugs in school:
• New Jersey v. T.L.O.(1985): The justices uphold school officials' search of a high school freshman's purse after she was found smoking in a restroom, and they establish that public-school searches are covered by the Fourth Amendment guarantee against unreasonable searches and seizures.
• Vernonia Independent School District 47J v. Acton(1995): The court rejects a Fourth Amendment challenge in an Oregon case and lets public schools require students to take drug tests as a condition of playing sports.
• Board of Education of Independent School District No. 92 v. Earls(2002): The court allows public schools in an Oklahoma case to impose random drug tests on students who participate in any extracurricular school activity.
• Morse v. Frederick(2007): The justices reject a First Amendment free-speech challenge and allow a school district to suspend a student who unfurled a "Bong Hits 4 Jesus" banner on a parade route in Alaska.
Authorities argued that the message referred to marijuana and conflicted with their anti-drug policy. Lawyers for the school district in the new case from Safford, Ariz., point to the Morse ruling to support arguments about the need to deter drug use.
Based on these precedents, Supreme Court followers expect Redding to lose her case against the school district. The Supreme Court in 1985 was more likely to defend privacy rights than it is today; with the current majority-conservative composition of the Court, it seems most anything will be justified in the name of searching for drugs in public schools.
Dahlia Lithwick of Slate provides some insight into the Court's tone-deafness to Redding's privacy rights, given the Justices' line of questioning yesterday. Ruth Bader Ginsburg seemed to be the only Justice who was concerned about what happened to Redding, casting a skeptical eye on the school's extreme actions to follow up on a dubious tip from a classmate. Ginsburg's male colleagues, however, were less understanding -- worse, they played fast and loose with Redding's shame in order to make perverse, even pornographic, claims about 1) the necessity for school officials to strip-search students for drugs, and 2) the relative harmlessness of being naked in front of others in a school setting.
First, Justice Antonin Scalia educates himself on the new ways in which kids are getting high these days:
Today's argument features an astounding colloquy between Matthew Wright, the school district's lawyer, and Justice Antonin Scalia, who cannot understand why "black marker pencils" are also considered contraband. "Well, for sniffing!" answers Wright. "They sniff them?" asks Scalia, delightedly. "Really?"
Scalia's "delight" is of course premised on his assumption that along with more ways of getting high comes more ways for him to permit the state to intrude on students' privacy rights. In this scheme, a teacher or school official can accuse a student of being a druggie just for carrying around a pencil.
After these pleasantries are exchanged, Scalia gets down and dirty, and his devout Catholicism would seem to be bracketed as he imagines a school official looking into a 13-year-old girl's underwear for drugs:
David O'Neill from the Solicitor General's office tries to thread the needle between allowing schools to conduct daily strip searches for black sniffy markers and chilling the school district's broad power to search for dangerous contraband. He wants the court to impose a higher standard before schools may conduct a strip search but gets into trouble with Scalia, who wonders what happens after "you search the student's outer garments, and you have a reasonable suspicion that the student has drugs." Scalia's almost chortling when he exclaims, "You've searched everywhere else. By God, the drugs must be in her underpants!"
For most people, when we're talking about a 13-year-old girl, the statement "By God, the drugs must be in her underpants!" would be uttered ironically, skewering the fear-mongering logic of the school official doing the searching. For Scalia, on the other hand, the statement is a jokey way of justifying that kind of strip-searching to occur.
As if Scalia's puerile antics weren't bad enough, Lithwick talks about Justice Stephen Breyer's efforts to write off the harm Redding suffered in her experience:
"In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear."
Shocked silence, followed by explosive laughter. In fact, I have never seen Justice Clarence Thomas laugh harder. Breyer tries to recover: "Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience."
What starts off as an "innocent's" defense of taking one's clothes off in gym class (ignoring the fact that Redding's experience is hardly comparable to gym class, or that gym class doesn't have its own politics of policing teenage bodies) ends up being a queer fantasia of schoolboys' "harmless" pranks. That Breyer's standard for judging this case is his own childhood memories of being the butt of boys' pranks (he may have been a pranker as well -- "I was the one who did it? I don't know.") is truly unfortunate. I mean, I can stand to appreciate Breyer's queer admission (although he would never acknowledge it as such), but let's be clear: Redding being stripped down by school officials who are on a hysterical and ultimately fruitless search for Ibuprofen is decidedly not the same thing as boys (or girls) horsing around in the locker room.
Lithwick details more boys' club behavior at the hearing yesterday in her article. For all of what the oral arguments revealed about the male Justices' own pornographic imaginations (and I should note that I am a pro-pornography feminist), it's a travesty that their discursive pleasure -- imagining girls being strip-searched, fondly remembering boys sticking things down your underwear, etc. -- is being employed to justify the state's incursion on Redding's privacy, indeed, its invasion of her body. I daresay Redding suffered a second kind of indignity by having to hear the male Justices alternately mock and brush away her claims to being harmed.