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Thomas Strips Sense From Search

What kind of world does Justice Clarence Thomas live in? Alone among his colleagues on the Supreme Court, he declared Thursday in dissent in Safford v. Redding that an "abusive" and "humiliating" strip search of a middle school student for prescription Ibuprofen was actually a constitutional exercise by school officials who not only deserved immunity from liability but praise for their zealous dedication to student safety.

Less concerned about a forced and unnecessary intrusion into a young girl's pants and bra than he was about judicial intrusion into school safety policies, Thomas declared that the odious search was legal because administrators could have found what they were looking for. The majority ruling, he wrote, gives "judges sweeping authority to second-guess" school administrators trying to ensure the health and safety of students. His long dissent did not include a single sympathetic remark about the ordeal suffered by the victim in the case.

Fortunately, the other eight Justices on the Court live in the real world, where outrageous conduct by bureaucrats is frowned upon, and so they unsurprisingly agreed that school officials violated the Fourth Amendment in 2003 when they checked (then) 13-year-old Savanna Redding's bra and underwear for pills. "She was told to pull her bra out and to the side and shake it," Justice David H. Souter wrote for the majority, "and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found." Other students were searched in a similar fashion that day.

"The content of the suspicion, Justice Souter wrote, "failed to match the degree of intrusion" into Redding's privacy rights. The school officials who conducted the search, he noted, knew at the time that they were looking for Ibuprofen pills (or other, equally innocuous pills) and not for weapons or illegal drugs. Nor was there any reason for them to believe that Redding (or any of the other students) was hiding any pills in their underwear. No pills were found in the earlier searches of the other students, none of whom were willing, as Redding was, to make a federal case out of the matter.

The lone woman currently on the Court, Justice Ruth Bader Ginsburg, called the search "abusive" and "humiliating" and cited other relevant facts to argue why school officials should not have been afforded immunity from the lawsuit that Redding's folks brought. "Any reasonable search for the pills would have ended when inspection of Redding's backpack and jacket pockets yielded nothing," Justice Ginsburg wrote, and, "to make matters worse, [the school official] did not release Redding, to return to class or to go home, after the search. Instead, he made her sit on a chair outside his office for over two hours. At no point did he attempt to call her parent. Abuse of authority of that order should not be shielded by official immunity."

Which brings us back to Justice Thomas. Not only was he unwilling to acknowledge that school officials went too far when they searched Redding and her friends. He also continued his reactionary push for the Court to get even less involved in school cases like this; to return to the old and discredited common law concept of in loco parentis, a doctrine which gave school administrators virtually unfettered discretion to discipline and control students. "Preservation of order, discipline, and safety in public schools is simply not the domain of the Constitution," Thomas wrote. "And, common sense is not a judicial monopoly or a Constitutional imperative."

I leave it to you to determine where common sense lies in this case. I suggest it lies with the eight Justices who recognized egregiously unlawful conduct when they saw it and not with the lone Justice who couldn't muster a sentence worth of disdain over what happened to Redding. In the end, there is only one question you need to ask yourself: would you have been okay if it had been your child searched as Redding was, for the reasons she was, and in the manner she was? I didn't think so.

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.
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