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Commentary: Strip Search Case Reveals the Need for Another Female Justice
Special to Law.com
May 13, 2009
Cheryl D. Stein
The Fourth Amendment to the Constitution protects Americans against unreasonable searches and seizures. The Supreme Court must now decide whether it was reasonable for school officials to conduct a strip search of a 13-year-old girl who was suspected of carrying ibuprofen to school. Comments made by some of the justices hearing the case and the journalists covering it have been disquieting.
The nature of these reactions illustrates both that our society is still too tolerant of assaults on the dignity of women and that institutions such as the Supreme Court that lack significant input from women are not equipped to recognize or to redress that problem.
In 2003, Savana Redding was a 13-year-old student at Safford Middle School in Arizona. On Oct. 8 of that year, vice principal Kerry Wilson ordered her to his office, where he pointed to some pills on his desk: prescription-strength ibuprofen (the active ingredient in Advil) and Naprosyn, an over-the-counter anti-inflammatory, both commonly used to treat menstrual cramps. Redding denied knowing anything about the pills and consented to a search of her belongings. No pills were found.
Wilson next directed Redding to the nurse's office. In the presence of the nurse and a school secretary, both female, she was ordered to take off her outer clothing. Her repeated requests to be allowed to call her mother were denied. After she had disrobed, she was required to pull both her bra and her underpants away from her body and to move them from side to side. These actions resulted in the exposure of her breasts and genital area to the school employees. No pills were ever found. Redding later learned that the search had been precipitated by another student's claim that Redding had provided her with ibuprofen.
Until that day, Redding had been an honors student with no disciplinary history of any kind. The incident left her so humiliated that she immediately transferred to another school and later developed ulcers. Her mother filed suit on her behalf against the school district and Wilson. That case has now worked its way up to the Supreme Court, which has to decide whether the search was illegal.
The Court heard oral argument in Safford Unified School District v. Redding on April 21 of this year. Clearly, the case poses the thorny question of where to draw the line between the child's right of privacy and the school's duty to provide a safe environment for all students. Even those outraged by what happened to Redding would agree that there are some dangers so serious -- for example, the presence of a gun in school -- that the strip search of a child would be justified.
Regardless of one's position on the case, however, all thoughtful people should be troubled and angered by the tenor of much of the debate and commentary about it. The oral argument revealed that some of the justices found the incident trivial or amusing. Justice Stephen Breyer virtually dismissed it, equating the strip search of a 13-year-old girl with children changing for gym class. A news article about the case that appeared the next day in The Washington Post reported that Justice Ruth Bader Ginsburg, the sole woman on the Court, "seemed at times on the edge of exasperation with her all-male colleagues."
Many of my colleagues are angry about the case. That feeling is particularly strong among the women, every one of whom, regardless of age, remembers the extreme self-consciousness that attends all pubescent girls and can imagine the profound, enduring humiliation that she would have felt in the same circumstances. Like Ginsburg, however, they are even more exasperated by the nature of comments about the case -- from Breyer's benighted remarks to columnist Dana Milbank of The Washington Post, who described the argument as a "lighthearted" discussion about "the bra and underpants of a 13-year-old girl."
In order to decide Redding's case, the Court must engage in a balancing test: the more serious the risk to overall student safety, the more the school is allowed to invade the privacy of a particular student. That test can yield a just result, however, only when each side is accorded its proper weight. When the strip search of a child is seen as a minor inconvenience, almost any school concern will be sufficient to justify it, and the balance will necessarily be skewed.
It is devastating to many of us to see that, after four decades of feminist struggle, it is still acceptable to find amusement value in the sexual humiliation of girls and women. Yet it is the inevitable result of the gross under-representation of women at the highest levels of policy-making.
The small number of women in Congress is one of the reasons that issues such as child care and parental leave are dismissed as "women's issues" and have such a low priority in the political debate -- instead of being recognized as vital social issues that determine the quality of life for all of us.
As to the Supreme Court, there have been only two women justices in its history, and only one currently serves. The recent announcement of Justice David Souter's retirement gives President Barack Obama the opportunity to supplement that lone female voice. This is not to suggest that the selection of a second woman justice will eliminate the problem of sex discrimination on the Court or in American society, but it would be a needed step in the right direction.
In order for the Court to dispense justice to all citizens, its decision-making must be informed by the experiences of all citizens. Until then, grown men will continue to giggle while discussing the bra and underpants of a 13-year-old girl.
Cheryl D. Stein has been a sole practitioner in Washington, D.C., for 26 years. She specializes in criminal defense.
