The Rights of the People (29 page)

Outside of school, the verbal attacks got so bad that “I wasn’t allowed to listen to any talk-radio stations, because they were saying such mean things about me especially,” Lindsay recalled. “My parents wouldn’t let me read a lot of letters to the editors of the papers. My parents were very protective about all the terrible things that were being said.”

So were some teachers, who tried to stop the harassment and offered to take Lindsay and Lacey home if it got out of hand. What they did not do, Lindsay said, was use the opportunity to teach about the Fourth Amendment or to open classes to discussions of the case and its significance, to examine the country’s ebb and flow of relations between the individual and the state. They were afraid of being fired, she thought, although it would have been easy enough to consider the issues even-handedly, without taking sides. And so a rare educational opportunity got lost, as it usually does when schools do searches and restrict speech and thereby teach their students all the wrong lessons. The Bill of Rights, studied as an archaic document in history courses, did not seem to have much vitality in America’s heartland.

“It didn’t surprise me a whole lot,” Lindsay said. “Since I’ve been there my whole life, I know what these people find important, and civil liberties hasn’t been shown to be one of those things.” The scary problem of drugs and kids “clouds people’s perceptions.”

The tensions ground on her, but she had wise adult counsel, from her ACLU lawyer, Graham Boyd, who reassured her that she was free to quit, and from her father. “When I was getting fed up,” she recalled, “I was like, ‘Dad, do I really have to keep doing this?’ He was like, ‘You don’t have to, but if it’s something that you really care about, you’ll want to.’ ” And it was. Softly amazed by her fame, teary when telling parts of her story, she was no militant firebrand, just resolute. When she applied to Dartmouth, she wrote of the lawsuit in her essay, which surely helped her get accepted. “I think it made me stick out a bit more than if I’d written about hiking.”

The case was headed for the Supreme Court when Lindsay graduated from Tecumseh High and walked across the stage, on her way to the Ivy League. As she picked up her diploma before an audience of classmates and their families, her guidance counselor shook her hand and said quietly, “I’m really glad that you brought that case. I’m glad I can finally say this to you, but I’m really glad you did what you did.”

Lindsay’s voice broke as she remembered the moment. The counselor had always been friendly to her, but this was his first indication of support. “I was crying so hard when I walked across the stage,” she said.

She had lost in the federal district court, won in the circuit court, and headed down to Washington during spring break of her freshman year at Dartmouth, in March 2002, for oral arguments in the Supreme Court. It was an intense, dizzying experience. “I was sitting between my parents, and I remember my dad kept having to pinch my leg because I was moving around and talking under my breath, and he said, ‘If you don’t be quiet you’re going to have to leave. They’re going to ask you to leave. You have to be still.’ ”

At one point, Justice Anthony Kennedy, his face red as he questioned her attorney, committed a breach of judicial protocol. “Most surprising was Justice Kennedy’s implied slur on the plaintiffs in the case,” wrote Linda Greenhouse for
The New York Times
. “He had posed to Mr. Boyd the hypothetical question of whether a district could have two schools, one a ‘druggie school’ and one with drug testing. As for the first, Justice Kennedy said, ‘no parent would send a child to that school, except maybe your client.’ ”
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“And I just started laughing,” Lindsay remembered. “I laughed out loud. It was so ridiculous to me that he said that. And a lot of people in the courtroom, people couldn’t believe he could say that. There was kind of a silence, except for my little chuckle, and my dad pinched me and said, ‘Shut up.’ ”

She laughed, but what did she feel? “I was shocked and hurt. It hurt me because he didn’t know anything about me. Everything he knew about me was in those briefs, and everything that he’d seen about me—nothing spoke to the fact that I had ever used drugs, that I’d had a drug problem; it spoke to the fact that I was an outstanding, good high school kid, typical, normal high school kid that wasn’t using drugs. So how could he say that? It blew my mind. It was kind of painful. It made my parents really angry, too. My dad, I remember him fuming for days about that.”

On a Thursday morning that June, Boyd called her in her dorm with the result: The Supreme Court had narrowly ruled, five to four, that such drug testing was constitutional. She cried for a while before passing the bad news on to her parents. “It was really upsetting. I was really disappointed.”

Unsurprisingly, Kennedy was in the majority, but so was Justice Stephen G. Breyer, who is often on the liberal side. When he visited Dartmouth to lecture during Lindsay’s junior year, she sat next to him at a
breakfast and used the occasion to ask if Supreme Court justices ever recognized that they had made a mistake. Yes, he said, “but not in your case.”

The majority opinion, written by Justice Clarence Thomas, emphasized the school’s custodial responsibilities and argued that competitive extracurricular activities, governed by state rules, carry a diminished expectation of privacy. The penalty for refusal to be tested or a positive result was minimal—dismissal from activities—without either academic or legal consequences. (He didn’t mention that the lack of extracurricular involvement damages the chance of getting into a good college.) “Given the minimally intrusive nature of the sample collection and the limited uses to which the test results are put,” Thomas declared, “we conclude that the invasion of students’ privacy is not significant.”
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The school’s policy didn’t pass the laugh test for Justice Ruth Bader Ginsburg. In
Vernonia
she had voted for testing athletes, accepting the argument that those on drugs might hurt themselves or others. But she couldn’t take seriously the Tecumseh school board’s lawyer as he made a valiant attempt to highlight the dangers of band members wielding musical instruments, Future Farmers of America controlling 1,500-pound steers, and Future Homemakers of America with access to knives.

“Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh,” she wrote in dissent, “the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree.” She found the testing program “capricious, even perverse” in targeting only those active in school organizations—just the students least likely to use narcotics.

Principals and police took great license amid the antidrug frenzy. In the South Carolina bedroom town of Goose Creek, officials apparently thought that the students most likely to use drugs were black, because African-Americans made up two-thirds of the nearly one hundred fifty who were searched roughly by police with drawn guns during a raid at Stratford High School. The cops had been invited by the principal, George C. McCrackin, who’d had a tip that drugs were being sold early each morning after the first buses arrived. So at 6:45 a.m. on November 5, 2003, police officers hid in stairwells and closets and on McCrackin’s signal exploded into the hallways, pistols in hand, a drug-sniffing dog on a leash. Watching a video, you might have thought that a SWAT team was assaulting a crack house loaded with weapons. Cops were waving guns
around and yelling, “Get down! Hands behind your head!” They forced teenagers to kneel facing walls, frisked them, and rummaged through whichever backpacks caught the dog’s interest.

But no drugs were found. Settling a lawsuit, the city, the police department, and the school district paid $1.6 million and, more significantly, signed a consent decree barring police action in the school without warrants, probable cause in an emergency, or voluntary consent by those to be searched.
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Again the following year, a zealous principal named Gordon Sampson in rural Chestertown, Maryland, requested a police team, which invaded the high school and swept a dozen classrooms with a canine unit. The dogs erroneously alerted on eighteen book bags, which were searched and their owners patted down. Two teenage girls were pulled aside and put into a room where a school official watched while a female deputy, Marcellene Beck, ordered Lacey Fernwalt, sixteen, to remove her pants, and then checked inside the girl’s bra. Heather Gore, fifteen, was told to take off her skirt; Beck pulled up her tank top to expose her breasts, asked Gore to spread her legs, and tugged at her underpants. “I was crying and hyperventilating,” the girl told a
Washington Post
reporter. “I sat there in disbelief.” No drugs were discovered, and the girls won $285,000 and apologies from the school system and the Kent County Sheriff’s Department.
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Had the case not been settled before trial, however, the courts might have found the searches constitutional, given the probable cause signaled by the dogs. Judges had a mixed record on protecting schoolchildren from humiliating examinations of their bodies, and had left students—along with parolees and welfare recipients—with their Fourth Amendment rights seriously diluted.

So confused and unclear was the case law on strip searches in schools that the Supreme Court in 2009 felt compelled to grant “qualified immunity” to an assistant principal, a secretary, and a school nurse in Safford, Arizona, who had ordered and carried out invasive inspections beneath the underwear of two young girls. One of them, thirteen-year-old Savana Redding, sued. She won the constitutional challenge but lost the right to damages.

Strict school policy in Safford banned all medicines, even those sold over the counter, without authorization from parents or doctors. So when a girl was found with prescription-strength tablets of the anti-inflammatory drug ibuprofen, she was called in, searched beneath her bra and panties, and asked where she’d obtained the pills. She named Redding, who
denied it but consented to a superficial pat-down and search of her backpack, which turned up nothing. With no more “evidence” than the other girl’s claim, and with no indication that pills might be hidden beneath Redding’s clothes, the assistant principal, Kerry Wilson, sent her off with instructions to the school nurse and a female counselor to perform a more intrusive search. They told her to strip to her underwear, made her pull out her bra and shake it, and do the same with the elastic on her panties while spreading her legs, “exposing her breasts and pelvic area to some degree,” as the justices stated. No pills were found.

The Court, ruling that the search violated the Fourth Amendment, set a low standard for school searches—“a moderate chance of finding evidence of wrongdoing”—but decided that “here, the content of the suspicion failed to match the degree of intrusion.” There was “reason to question the clarity with which the [student’s] right was established” before the incident, however, so the justices granted “qualified immunity” to the school employees, since government officials cannot be held liable unless they act outside well-defined legal limits.
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After the humiliating search, Savana Redding said she developed stomach ulcers and a distrustful wariness. She couldn’t bear to return to school, “never wanted to see the secretary or the nurse ever again,” and studied at home for months until she transferred elsewhere. Studying at Eastern Arizona College to become a counselor, she told a
New York Times
reporter that if she were ever ordered to strip-search a student, she would refuse. “Why would I want to do that to a little girl and ruin her life like that?”
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Even while imposing restraints on government here and there, the Supreme Court has continued to narrow the scope of the Fourth Amendment. Legislatures and executive branches across the country have carved out exceptions by targeting citizens at the margins of society, those with whom the majority couldn’t identify. In 2006, the Court upheld, six to three, a California law permitting warrantless searches without cause of parolees, who were required to sign away their rights as a condition of completing their sentences outside of prison.
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In 2007, it denied a writ of certiorari—an order accepting a case on appeal—and let stand a practice in San Diego of doing unannounced, warrantless searches of welfare recipients’ homes by criminal investigators looking for signs of fraud: men’s underwear in drawers, for example, as evidence that a supposedly single mother actually had a man in the house. Consent for the search was required from the recipient, but a refusal could provoke a cutoff in payments.

Seven dissenting judges in the Ninth Circuit called this “an assault on the poor” and declared: “There can be no true consent here. Applicants are not given notice of when the visit will occur; they are not informed of their right to withhold consent; they are told the visit is mandatory; and they are aware of the severe consequences of refusing the search. San Diego’s program requires destitute, often disabled, persons and their families to forfeit all rights to privacy to qualify for welfare.” The dissenters noted that farmers receiving subsidies were not subjected to such invasions.
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By refusing to hear the appeal, the Supreme Court was allowing Fourth Amendment protection to be scaled back in a serious way. In 1971, in
Wyman v. James
, it had ruled that social workers could do warrantless home searches, but the consequences were limited to a termination of benefits.
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Now the consequences could be criminal charges as the search authority was extended to the district attorney’s office—and not just for welfare fraud, because if investigators happened to see evidence of other crime “in plain view,” such as drugs, for example, they could prosecute. As
The New York Times
editorialized, “It would be a mistake … to take consolation in the fact that only poor people’s privacy rights were at stake. When the government is allowed to show up unannounced without a warrant and search people’s homes, it is bad news for all of us.”
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