United School District v. Redding: Oral Argument Recap


I’m reading the transcript in Sanford United School District v. Redding, oral argument of which took place today. I am also taking notes. They are, as usual, snarky and amusing. Says me.

Redding, in case you don’t recall, is the case in which the eighth-grader was strip-searched in search of ibuprofen she didn’t actually have.

Any oral argument is bound to be good when it starts with the following two paragraphs:

MR. WRIGHT: Mr. Chief Justice, may it please the Court: The search of Savana Redding in this case was constitutional because Mr. Wilson had reason to suspect that she possessed contraband which posed a health and safety risk. Therefore, searching any place where she might be reasonably hiding that contraband was constitutionally permissible.

CHIEF JUSTICE ROBERTS: Any place, even though he had perhaps no reasonable suspicion to suspect that she was hiding the contraband in her underwear?

Justice Scalia immediately points out that “places kids might hide stuff’ includes body cavities and so does not, according to the district, prevent body cavity searches of children. School District says this is okay because kids don’t actually hide stuff in body cavities. Tell that to all the fifth-graders with gum stuck behind their back molars.

Justice Souter thinks it’s skeevy that suddenly aspirin is “contraband.” The School District explains that, in administrator’s reasonable judgment, students need to be protected from teh scaree aspirinz. Especially when one almost died from taking a medication. That was not a scaree aspirin. Or a scaree ibuprofen.

Justice Ginsburg keeps asking things that are “not in the record, your Honor.” Well, maybe you should have done more homework, Mr. AttorneyPants.

Justice Ginsburg asks if the school ever asked the snitch when and how she got the ibuprofen from Redding. Mr. AttorneyPants says no, but that doesn’t matter ’cause they totally caught Redding red-handed, no pun intended. Justice Ginsburg thinks Mr. AttorneyPants is full of shit. Justice Souter agrees, asking if anyone actually knew what the pills everyone was so scared of were. Mr. AttorneyPants says he totally wrote that in the brief and Justice Souter should totally go, like, read it again because he knows it’s in there, man.

The School asks for a bright-line rule that “Once you had reason to suspect a student is possessing any contraband that poses a health and safety risk, then searching any place where that contraband may reasonably be found is constitutional-” and is cut off by Justice Scalia, who thinks this is “astonishing” bullshit because black markers are “contraband” in this particular student gulag, for fuck’s sake. Have I ever mentioned that Scalia is a total champion of the Fourth Amendment and I love him for it?

Justice Ginsburg points out that this case is vastly different from New Jersey v. TLO, and brings up again that nobody checked out the snitch’s story before strip-searching Redding. Mr. AttorneyPants reassures her that the reliability of tips is totally fine because school administrators rely on them. Justice Ginsburg does not buy this shit either, and says that they could at least have asked a follow-up question or seven. Mr. AttorneyPants says it wasn’t necessary because some other kid was also totally reliable, and besides liars get punished. Except they don’t, as he explains when Justice Stevens asks how the lying liar snitch got punished for ratting on Redding.

Justice Scalia still wants to know under what circumstances a school administrator would be allowed to crawl up a kid’s ass. Mr. AttorneyPants says the Court should not allow that ever, and instead send the kid to the hospital because administrators are not “clinically trained” to sexually assault students perform cavity searches. But don’t forget they are trained pharmacologists.

Justice Scalia points out that that’s a nice practical line, but a legally useless one. Mr. AttorneyPants says it’s cool because the “community” would never allow body cavity searches. Justice Souter wants to know in which body cavity Mr. AttorneyPants just stuffed the Fourth Amendment.

Justice Ginsburg also points out that, after the school failed to find any contraband in Redding’s underpants, she was forced to sit outside the vice principal’s office for over two hours, during which nobody bothered to call her parents. Justice Ginsburg wants to know what was up with that. Mr. AttorneyPants says the investigation was still ongoing. Justice Ginsburg doesn’t see how a girl sitting alone on a chair is being “investigated.” Justice Scalia thinks she should have been sent to study hall.

Justice Breyer, mostly to let the reporter know he’s still alive, asks why Redding had to be stripped at all, when she could have just shaken out her clothing to show there was nothing in it. Justice Scalia and Mr. AttorneyPants jump Justice Breyer and beat the reasonableness nonsense out of him.


Mr. SolicitorPants (well, Mr. AssistantSolicitorPants) begins by insisting that intrusive searches in schools require more, not less, Fourth Amendment scrutiny, much to my surprise, but is interrupted by Chief Justice Roberts, who wants to know why the Court can’t just call it qualified immunity and go home. Mr. SolicitorPants says everyone thinks the Court should totally decide the Fourth Amendment question, but admits it doesn’t have to, which is so not the right thing to say to Chief Justice Roberts.

Justice Scalia attempts to save Mr. SolicitorPants’ hash by explaining that one of the defendants doesn’t have qualified immunity. Mr. SolicitorPants helpfully points out that, no, the Court could totally remand for that defendant.

Justice Kennedy, who is NOT DEAD EITHER, says that Mr. SolicitorPants doesn’t really want to remand to the Ninth Circuit because Mr. SolicitorPants doesn’t like their “sliding scale” theory, isn’t that right? Mr. SolicitorPants wants “greater specificity in the information.” Nobody knows what anybody is actually talking about, and Justice Thomas is either asleep or dead.

Justice Scalia asks if this is a “reasonable suspicion” standard, and when assured it is, he asks if, well, you’ve tried everywhere but the underwear, do you then have a “reasonable suspicion” the pills are in the underwear? I have just realized how exceptionally creepy a bench of eight old men talking about a thirteen-year-old’s underwear is. The presence of Justice Ginsburg does nothing to de-creep it, either. Mr. SolicitorPants says, well, no, you don’t have a reasonable suspicion of pantydrugs at that point. Justice Scalia is confused at the sudden non-discovery of pantydrugs.

Mr. SolicitorPants then says that, if you have a reasonable suspicion the drugs are in the panties, you go right for the panties. Chief Justice Roberts says, in a manner befitting a Southern belle, “Oh, surely not!” Mr. SolicitorPants tries to explain this is just like TLO because there the reasonable suspicion was that the cigarettes were in the purse. Justice Alito asks if the school has to have a tip that the drugs are specifically in the underwear. Mr. SolicitorPants tries to backpedal and FINALLY uses the phrase “totality of the circumstances,” which in this case apparently include a critical mass of students storing pills in their panties.

Mr. SolicitorPants, while backpedaling, begins to juggle puppies as well by saying that the teachers knowing that “these pills were going to be consumed at lunch as part of an event that obviously wasn’t simply intended to get rid of the students’ headaches” was reasonable suspicion. So if the event was simply intended to get rid of the students’ headaches, would that not give rise to reasonable suspicion? Mr. SolicitorPants is giving me a headache.

Justice Alito asks if this would be “a different case” if the snitch had been an even snitchier snitch. Mr. SolicitorPants says yes, but only if the teacher asked the snitch to snitchily elaborate. Justice Scalia thinks Mr. SolicitorPants is an idiot, which is not helped in the least by this exchange:

JUSTICE SCALIA: So there is a sliding scale for the dangerousness of what you’re looking for?

MR. O’NEIL: No. It simply means that it’s relevant to whether in the totality of the circumstances that school official could have reasonably suspected that the student was hiding it.

Don’t worry; that didn’t make any more sense to the Justices than it did to you. Or me. Apparently, it has something to do with the fact that thirteen-year-olds never hide ibuprofen in their underwear, but they totally hide crack there, like, all the time. Mr. SolicitorPants desperately tries to extricate himself from the impossible bullshit situation he has just created, while multiple Justices continue to beat him with it. Then they let him sit down. Mr. SolicitorPants wets himself in relief.


Mr. RespondentPants begins, “We agree with the Federal Government that before conducting an intrusive strip search a school needs to have location-specific information. And while this case can begin and end with that well-accepted proposition, it’s also important to recognize that a school needs greater — a greater degree of suspicion to conduct a strip search than to conduct an ordinary backpack search.”

Chief Justice Roberts immediately goes back to the qualified immunity problem. Apparently, it has been on the table the whole time and he doesn’t like the way it’s looking at his lunch. The words “rummaging around on a 13-year-old girl’s naked body” are finally used. Justice Thomas wakes up.

Justice Kennedy wants to search for meth. Mr. RespondentPants doesn’t see a problem with that, except for the meth part. Except the meth part is cool, because there was no reasonable suspicion in this case so the school wasn’t allowed to find meth in Redding’s underpants. Which is great, because there was no meth in Redding’s underpants.

Justice Scalia asks if Mr. RespondentPants wants a “sliding scale.” Mr. RespondentPants says no, he wants a “two-tier framework,” which has something to do with searching students’ lockers but not their bras. The words “pelvic area” are used as a euphemism for ladybits.

Justice Breyer gets the difference between asking a kid to shake out her locker and asking her to shake out her underwear, but wants to know if making Redding change into her gym clothes would have been an “intrusive, traumatic search.” Justice Breyer doesn’t see the big deal about changing into gym clothes. Neither does Justice Ginsburg, who expects her clerks to do this on a regular basis.

Justice Souter wants to know if the reasonable suspicion test changes if a bunch of kids are going to eat meth and die instead of just pop NSAIDs for funsies. Justice Souter then manages to make everyone laugh, proving that he has been kidnapped by aliens and replaced with a 98-pound clone.

Justice Ginsburg wants to know about the cocaine that everybody totally carries in their underwear. Mr. RespondentPants uses the phrase “crotching the drug” and says that you can totally de-pants a student known for carrying cocaine in their underpants. Nobody bothers to ask how you would find out a student has a habit of carrying cocaine in their underpants in the first place, or why, having been found out, the student would be stupid enough to continue to do so.

Justice Kennedy then asks what is probably the most lucid question of the morning: whether it would satisfy the Fourth Amendment for the school administrators to give the student the choice between stripping in front of same-sex teachers at school or being carted down to the police station by cops and strip-searched there. Justice Scalia says something about needing probable cause in that instance, saving Mr. RespondentPants from saying something else stupid.

Chief Justice Roberts uses the word “brassiere,” which Mr. RespondentPants mishears as “prisoner.” There is a discussion over whether being asked to shake out one’s bra is less traumatic than being asked to shake out one’s underwear, and of course everyone involved gets the answer wrong because they are all men. Then Justice Breyer asks why it’s not reasonable to expect a kid to stick contraband in his underwear, because people used to stick things in Justice Breyer’s underwear all the time. (No, really. That one’s on page 58.)

Justice Alito then asks if this standard is a question of fact. Mr. RespondentPants says it is and points out that no one filed summary judgment in this case, but if they had, his client would totally have won. Justice Scalia asks if standard probable cause analysis is a jury question too, which seems like a trick question to me. Then Justice Alito asks about probable cause in 1983 cases, which is just nonsense. Justice Scalia points out that his last question was a trick question, and by the way, Mr. RespondentPants totally got it wrong.

Justice Ginsburg asks if the Ninth Circuit treated this as a fact question, because they appear to have answered it themselves. Mr. RespondentPants says that yes, it was a question of fact, except that the facts were so obvious that no reasonable factfinder could find that this case was not a lot of horseshit shoved in a thirteen-year-old girl’s underpants.


The Justices let Mr. AttorneyPants ramble for almost two whole paragraphs before Justice Scalia says something about “the people” limiting strip searches in their personal school districts, which apparently a whopping 189 districts in the country already have. Mr. AttorneyPants says this “proves” the question will be settled at the “local level,” which is a bit like saying that one farmer who shoots nine pigeons “proves” that pigeons are a dangerous nuisance and should be nuked into oblivion.

Mr. AttorneyPants’ big finish is to request an affirmative ruling because it would “further judicial economy.” I do not think those words mean what he thinks they mean.


One Response to “United School District v. Redding: Oral Argument Recap”

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