An Odd Week Ahead At The Supreme Court


Welcome to an odd week at the Supreme Court where the Justices get the rare opportunity to chime in on two cases that present facts that: 1) most Americans can understand, and; 2) most Americans are appalled by.

"Hard facts," lawyers say, make "bad law." This week we'll begin to learn what sort of law the Court is going to make with the "easy facts" before it.

First up at the High Court, on Tuesday, is the story of Savana Redding, then 13-years-old, who was sent to the nurse's office at her Safford, Arizona school, told to strip to her underwear, "move her bra to the side and pull her underwear out, exposing her breast and pelvic area."

Why? One of her classmates accused Redding of hiding prescription-strength Ibuprofen pills (which were never discovered). Redding's mom sued. The trial court sided with the school. The 9th U.S. Circuit Court of Appeals sided with Redding.

The question in the case is not whether students may be searched by school officials or the police. They may be. The Court has long held that public school students do not have nearly the same privacy rights as adults. Chances are the chattering classes would not be all agog over this story if the student was suspected of having a gun or a bomb and the search were not so intimate.

But the main question Tuesday is whether the intensity of the search was justified given the object of it—whether a suspicion of a few ibuprofen tablets warranted making a 13-year-old girl expose herself.

We all know what the answer to that question should be -- and probably will be. The only open question, then, is whether and to what extent the Court's majority establishes another standard to help the lower courts, and school officials, understand when they may or may not go so far in rooting out drugs (or violence, or whatever) in school. I do not envy Matthew Wright, the attorney of record for the school board, who has to stand in front of the Justices and explain what his client did to Ms. Redding.

And then comes Wednesday and a "reverse" affirmative action case that has water-cooler appeal. No doubt officials in the City of New Haven, Connecticut had good intentions when they administered a civil service exam for firefighters that would help determine which ones would be eligible for promotion. The idea was to help minority candidates rise within the ranks. Problem was, fourteen of the top fifteen test-takers were white. The City threw out the results of the test. And 19 white firefighters and one Hispanic firefighter sued, arguing that their rights had been violated.

Those "easy" facts, I reckon, will look like a big, ripe, juicy plum to the Court's conservative majority, who have been itching since the departure of Justice Sandra Day O'Connor to further restrict affirmative action.

The question in this case is whether a municipality can rig this sort of testing to avoid claims of racial bias against minorities by creating a form of racial bias against whites. I'd be shocked if the Court doesn't side against New Haven, and with the firefighters, with the only open question in this case being how much further the Court is willing to go in undercutting affirmative action.

It's too bad the Justices won't allow cameras in their beautiful courtroom because the rest of the week promises some must-see-action.

Andrew Cohen is CBS News Chief Legal Analyst and Legal Editor.. You can read more of his posts in Hotsheet here.