A high school assistant principle had a 13-year-old girl strip-searched for painkillers after a fellow student accused her of handing them out, and a search of her backpack and outer clothing produced nothing. The other student had been caught with one over-the-counter pill and four prescription-strength Ibuprofen pills, and accused her classmate of providing them to her. The accused girl was made to strip to her underwear in front of a female administrative assistant and a nurse, then pull out her bra and underpants, shaking them, to show there were no pills there.

In what most would call a “no-brainer,” the Supreme Court ruled (PDF) that this constituted an unreasonable search. In loco parentis or not, you don’t strip-search 13-year-old girls for pain medication on the strength of an accusation by another teen, especially when that teen may be trying to shift blame to escape harsher punishment. Since the search went so far as to expose the student’s breasts and pelvic area, the court ruled that it violated the Fourth Amendment protection of privacy. Although the pills found were prescription-strength, they were also common pain relievers and not a serious health threat–we’re talking Ibuprofen–not heroin, not even Oxycontin.

I might better understand this because I have served as a school administrator, albeit for a college, not a high school. But to order one of the female staff members to take a student to a private room and make the student strip solely on the strength of a few other students claiming that she had provided aspirin to them, against school rules or not, is so ludicrous as to defy belief. That it was “prescription strength” drugs, in this case, is not mitigating; Ibuprofen at 400 mg per tablet may be prescription strength, but you can get it over the counter at 200 mg and take two of them for the exact same effect. As I said, we’re talking about nothing more dangerous than aspirin here. You don’t make a 13-year-old girl strip to the point of even brief nudity on the claims of classmates who were facing punishment based on their testimony. If you want to control an incipient drug problem, there are other ways of doing it. If a strip search is truly necessary, then call in the police.

So the ruling was obvious–but not unanimous. It was 8 to 1. Guess who dissented? Yep. Clarence Thomas. He wrote:

The majority imposes a vague and amorphous standard on school administrators. It also grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge.

It’s “vague and amorphous” to say that you shouldn’t strip search 13-year-old girls for aspirin? Really? I think that this is sufficiently over the line of “reasonable” as to be comfortably beyond “vague.” Don’t strip-search teenage girls if all that’s at stake is aspirin. How much more specific should it be? Souter was pretty clear:

The very fact of Savana’s pulling her underwear away from her body in the presence of the two officials who were able to see her necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings.

Got it? When you require a teenage girl to strip to that extent, you need far more pressing circumstances. The line to be crossed is “no nudity.” It is perhaps nebulous only in that it doesn’t specify how serious a situation has to be to allow for a strip search, but a good indicator would be that you have to call in the police. In my opinion, Souter doesn’t go far enough in restricting the degree of strip searches, but I suppose that he was simply being cautious.

As for “second-guessing school authorities,” that’s a specious claim. Second-guessing is, by definition, what the Supreme Court does. Thomas is effectively saying that school administrators should be allowed to act without review or oversight, a wholly unreasonable and intolerable alternative.

Thomas justifies the search first by establishing that a general search was warranted–something the majority did not dispute–but then uses fallacious contributory evidence to make the circumstances appear more dire, speaking of unrelated matters such as a razor blade on another student’s person and illnesses of students from taking drugs that were not as innocuous as the aspirin the student who was strip-searched was accused of providing. He then works up to his argument as to why the strip-search was justified:

Because the school officials searched in a location where the pills could have been hidden, the search was reasonable in scope under T. L. O.

If you define as “reasonable” simply by the standards of any location where the pills “could have been hidden,” then the absurd but logical conclusion would bring you to vaginal exams and stomach purging to see if the student used those locations to hide drugs in small baggies. Drugs can be hidden there, Q.E.D. Thomas is trying to eliminate a line which can be crossed, the line which the majority clearly saw.

Thomas claims that the majority overstepped their bounds; that when they claimed that a “greater level of particularized suspicion” would be necessary to allow for such an invasive search, they went too far. “There is no support for this contortion of the Fourth Amendment,” he wrote. Actually, there is: the word “reasonable.” It clearly allows for collective judgment to be used to decide what is and what is not allowable, based upon standards decided by common sense.

In short, Thomas did what he and his colleagues often do: ignore both the word and the spirit of the law to allow their own personal ideas of what should and shouldn’t be to supplant the actual law.

This is, in fact, the classic “legislating from the bench” that people like Thomas claim to hate so much. But people like Thomas don’t really hate legislating from the bench–they simply hate civil rights that offend their own conservative worldview. To be frank, I am not as much surprised that Thomas ruled this way as I am surprised that his conservative colleagues, especially Scalia, did not.