HRC Blog

In this blog series, HRC attorneys discuss news and break down legal theories relevant to a U.S. Supreme Court nomination and the pending retirement of Justice David Souter. The Supreme Court ruled on Thursday that the strip search of a 13-year-old student by school officials searching for common pain relievers—the equivalent of two Advil or one Aleve—was unreasonable and unconstitutional. However the Court also found that it was not unreasonable for officials not to know that. With this ruling, school officials enjoy immunity from lawsuits for damages when the law is not clear enough that they should have known what they were doing violated the Fourth Amendment right to privacy. Although school officials are not liable in this case, the Supreme Court sent the issue of school board liability to the lower court to determine. Presumably, this case now makes clear to school officials that strip searches of students are not constitutional unless there is a reasonable suspicion of danger to students from the power or quantity of the drugs and some reason to think the drugs would be hidden in a student’s underwear. Justice David Souter wrote for the majority in what is perhaps his final opinion. Joining the opinion was Chief Justice John Roberts, Justices Samuel Alito, Stephen Breyer, Anthony Kennedy, and Antonin Scalia. Justices Ruth Bader Ginsburg and John Paul Stevens joined the majority insofar as the search violated the girl’s right to privacy but disagreed that school officials were entitled to immunity. Justice Clarence Thomas, showing a high degree of deference to school authorities, agreed with the majority that school officials should have immunity, but going further, disagreed that the search was unconstitutional. With the retirement of Justice Souter, the logical question is: how would Judge Sonia Sotomayor have decided the case? Although impossible to know for sure, her dissent in a similar strip search case on the Second Circuit provides helpful clues. In 2004, the Second Circuit Court of Appeals held that suspicionless strip searches performed on young girls upon their entry to juvenile detention centers were constitutional. Judge Sotomayor dissented, finding that absent any individualized suspicion, the strip searches of the girls were not constitutional under any circumstances. Judge Sotomayor began her dissent by addressing the humiliating and terrifying experience of being strip searched, especially for children, reminding that “[w]e should be especially wary of strip searches of children, since youth ‘is a time and condition of life when a person may be most susceptible to influence and to psychological damage’” and that “when dealing with children who may be victims of sexual abuse, the concerns are even greater.” Sotomayor then engaged in a rigorous analysis of the relationship between the intrusiveness of the searches and the “special needs” of government officials. She analyzed the balance between subjecting 13-year-old girls to intrusive strip searches without reasonable suspicion—many of whom had severe emotional problems or had experienced sexual abuse in their homes—with the government’s need to discover contraband (which they almost never found) and to deter children from smuggling contraband into detention centers (a need hardly applicable to children who do not expect to be subjected to a strip search). Given Judge Sotomayor’s awareness of the unique nature of strip searches performed on children and her careful analysis of the harms to the girls versus the needs of the government it seems clear that she would have at least joined the majority in the school strip-search case (if not Justices Ginsburg and Stevens). However, because of a factual difference in the two cases, one can only suspect where she would have fallen among the justices. For example, in the juvenile detention center case the girls were being subjected to strip searches without any individualized suspicion that they possessed contraband. Sotomayor explicitly stated in her dissent that the question was not “whether the government’s concerns justify a full strip search where there is some reasonable suspicion that a particular juvenile possesses contraband” but rather a situation where “a highly degrading, intrusive strip search” was conducted where no individualized suspicion existed. She noted that “had [the officers] bothered to investigate the [girls’] personal histories and present circumstances” and “had [they] performed the strip searches at issue based on reasonable, individualized suspicions rooted in the dangerous tendencies of the [girls]” she might not have questioned their authority to do so. Sotomayor’s understanding of the very rare circumstances in which strip searches should be performed on children, as well the carefulness of her analysis required by the Fourth Amendment appears to indicate she takes the right to privacy seriously. Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts page. This post contributed by HRC McCleary Law Fellow Anthony Catalino.