Thursday, June 25, 2009

UNITED STATES SUPREME COURT ISSUES OPINION IN SCHOOL STRIP SEARCH CASE - AND BISD'S LIABILITY IN FUTURE CASES - A CASE IN POINT

http://www.supremecourtus.gov/opinions/08pdf/08-479.pdf

THIS IS MY SECOND POST TODAY

Here are some excerpts which probably mean nothing to the non-lawyer
"A number of our cases on probable cause have an implicit bearing on the reliable knowledge element of reasonable suspicion, as we have attempted to flesh out the knowledge component by looking to the degree to which known facts imply prohibited conduct"

"The lesser standard for school searches could as readily be described as a moderate chance of finding evidence of wrongdoing"

"The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that "the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place." 469 U. S., at 341 (internal quotation marks omitted). The scope will be permissible, that is, when it is "not excessively intrusive in light of the age and sex of the student and the nature ofthe infraction." Id., at 342 "

"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 issue in the case is, did the school violate the student’s rights, a 13 year old female, by doing a strip search on her looking for prescription ibuprofen? Everyone agrees they had probable cause to search her generally. This case is interesting to me because it shows that at times the Court must look to new realities when applying the constitution. I wonder what they would have done had it been a 13 year old boy who had his underwear searched?

Associate Justice Thomas in his dissent found the search of her bra and panties were reasonable. His biggest complaint is the majority created a vague standard for dealing with this issue. On this issue I agree with Thomas, but then how do you create a reasonable standards? I think for the Supreme Court this is going to be another "I’ll know it when I see it."

For me the problem may be how the search was done. I think it would have been better to detain the student in the nurse’s office and call the parent. A female nurse with parental oversight could have made the search less intrusive. Now if the parent wants to scream and yell and say no, then bring in another female and do the search.

Drugs are a real problem on our campuses. This may surprise people but I generally favor these searches under proper conditions - nurse’s office by a nurse of the same gender with a parent present or another person of the same gender who can be trusted to insure a proper search without being overly intrusive.

Base on a variety of things I know about BISD, this opinion does not bode well for BISD. The case I am working on wherein a special education teacher removed a student from the principal’s office and put him in Behavior Intervention is going to cost BISD. The student did nothing wrong. The principal was trying to contact a parent because the child was not feeling well. One thing led to another and the special education teacher accused the child of threatening him. Well you know what, you cannot illegally detain a child and then file criminal charges on them for defending himself.

I am sure BISD will hire the best lawyers the taxpayer money can and will buy rather than fire the teacher and clear the child’s name. You see when using taxpayer’s money there are no limits to how much you can spend to defend the indefensible.

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