Friday, June 26, 2009

Strip Searching Middle School Students--Another Victory For Ohio School Immunity

Recently, The U.S. Supreme Court ruled in a 8-1 decision that a strip search of a 13 year old girl at an Arizona middle school was an unconstitutional violation of her Fourth Amendment right against unreasonable search and seizure. According to press accounts and the official opinion, the school suspected that the girl was in possession of prescription strength ibuprofen, so they searched her person and her backpack. When the initial search revealed no pills, they strip searched her. The strip search revealed--again--no pills.

What is troubling about this ruling is that the Court also ruled that school officials who ordered/conducted the illegal search were immune from liability unless they "blatently violated clearly established law." So let me get this straight: a minor's Constitutional rights are violated, yet there is no accountability or liability for violating them. Isn't our Constitution and Bill Of Rights "clearly established law?" If school officials are immune from any liability for illegally strip searching a 13 year old girl for suspected possession of ibuprofen, then what would constitute a "blatent violation of clearly established law?" The Supreme Court's message seems to be: don't violate a students constitutional rights, but you still won't ever be liable in most instances. So what good are our Constitutional protections if there is no remedy for their violation?

More importantly, the Court left it up to Arizona state law to determine if the school district was liable for the actions of the staff who illegally strip searched this young girl. I don't know about Arizona law, but if this happened in Ohio, our state "immunity laws" would give 100% legal immunity to Ohio school districts. As I've written about before, the general rule passed by our Legislature is that schools are not liable for any act of harm or negligence. There are 5 narrow exceptions to this rule, and illegally strip searcing a 13 year old girl does not meet one of the 5 exceptions. Neither does molesting or sexually assaulting a student on school property.

So there you have it. Basically, schools in Ohio are free to violate a student's constitutional rights and state immunity laws trump our federal Constitution when it comes to making schools accountable for crossing the line. This whole issue might not seem like a big deal to some people, but we're not talking about denying Jimmy his afternoon juice break or making him clean erasers after school (believe me, I was an expert at cleaning erasers at Lincoln Elementary in Toronto, Ohio--I got quite used to the neat little machine they had in the gym). Strip searching 13 year old girls and molesting students is serious stuff. I can assure you you'd feel differently if it was your child that was strip searched or molested. There is a saying in the law that "immunity breeds irresponsibility," and the more free legal passes you give a school district for its bad choices and lack of due diligence, the less likely policies and school conduct are to change.

The problem here is there's no balance or sense of fairness to all these immunity laws passed by our Legislature. It's a classic case of the tail wagging the dog, particularly when a violation of one of our most cherished constitutional protections creates no legal accountability once Jimmy walks through the front door of his school.

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