Activism in Action: The Middle School Strip Search Case

Andrew M. Grossman / June 25, 2009

Sometimes judicial activism isn’t about who wins the case.

It may be that the Supreme Court got it right today when it ruled that school officials violated the constitutional rights of 13-year-old Savana Redding when they ordered her to shake out her underwear to see if she was hiding more of the prescription pain pills found on a schoolmate. But one thing it didn’t do is provide any kind of guidance for school officials who now face the prospect of liability for violating this new rule… whatever it is. This is what happens when judges allow their policy preferences to leak into opinions, rather than strictly adhering to the text of the Constitution and the law.

The opinion, a typically inscrutable one by the famously private Justice Souter, begins by stating that that “reasonable suspicion,” not “probable cause” as in criminal law, is the standard to determine the legality of a school official’s search of a student. This standard requires that there be “a moderate chance of finding evidence of wrongdoing.” This is new. Does it count as a “moderate chance” that in some school districts, upending nearly any student would cause an array of illicit substances to pour from his or her pockets? (more…)