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Well whaddaya know? Strip searching a 13 year old on a hunch IS unconstitutional!
July 13, 2008 4:12 AM   Subscribe

Strip searching 13 year old girls is bad mmmkay. Today the U.S. Court of Appeals for the 9th Circuit ruled in a 6-5 decision that students cannot be strip-searched based on the uncorroborated word of another student who is facing disciplinary punishment. In an even bigger twist, the court has found that the school official who ordered the strip search, Vice Principal Kerry Wilson, is financially liable in the case and cannot claim qualified immunity.
posted by Talez (98 comments total) 3 users marked this as a favorite

 
Also for anybody that's interested I found this summary on how the events supposedly unfolded although I can't really comment on their accuracy.
posted by Talez at 4:13 AM on July 13, 2008


Uh, 6-5? Seems like that should be a higher number on the ruling side.
posted by dawiz at 4:21 AM on July 13, 2008 [4 favorites]


This strip search involved Savana taking all her clothes off besides her underwear, then pulling her bra out and to the side, while shaking her breasts back and forth. After that jiggling produced nothing, Savana was instructed to pull her underwear out at the crotch and shake it.

The jiggling produced nothing? Of course it didn't. She's 13.

Why would this journalist attempt to describe this scene in this salubrious way? Isn't it bad enough without fictious details?
posted by three blind mice at 4:23 AM on July 13, 2008


5-6

That's fantastic.
posted by mattoxic at 5:09 AM on July 13, 2008 [3 favorites]


My apologies. I don't often make these sorts of posts.
posted by Talez at 5:12 AM on July 13, 2008


But the bad news is that the judge who must now assign damages, Nancy Fiora, previously ruled the search constitutional. In a case like this, you need the damages that are high enough to scare other bureaucrats. So it would suck if the judge mitigates the damages; hopefully she simply didn't understand some aspects of the 4th amendment here, instead of just having a perverse view of it. Anyway, It's very cool they nixed the principle's qualified immunity, not an easy conclusion. I imagine the school district is still liable too, no?
posted by jeffburdges at 5:21 AM on July 13, 2008


Ibuprofin is over the counter. It's available, legally, anywhere in the country. It's even available in generic form. A kid could walk into a supermarket, purchase a giant tub of 1000 ibuprofin generics for, like, $10, but as soon as the analgesic crosses the school threshold, all of a sudden they're a drug mule. Fucking insane.
posted by Civil_Disobedient at 5:30 AM on July 13, 2008 [24 favorites]


jeffburdges Yeah, that is bad news. The vice principal should be fined into ruin, but given Judge Fiora's history I'll bet she sets the fine at $1 or some similar value.
posted by sotonohito at 5:53 AM on July 13, 2008


Can the 13 year old appeal if the damages indeed are just $1?
posted by DreamerFi at 6:28 AM on July 13, 2008


Is there not a criminal sexual assault (or whatever) case to answer?
posted by cillit bang at 6:32 AM on July 13, 2008


From the article:

Sometimes it’s hard to tell the difference between drug warriors and child molesters.

Not so hard, really. All molestation is about the abuse of power.
posted by Enron Hubbard at 6:39 AM on July 13, 2008 [8 favorites]


You have to hand it to the ACLU, that's the first time I've read an entire press release in the last two years.
posted by parmanparman at 6:40 AM on July 13, 2008


“I held my head down so that they could not see that I was about to cry.”

Kerry Wilson, I hope those words haunt you to your grave.
posted by Mick at 7:03 AM on July 13, 2008


Why the focus on ibuprofen?

I really don't care if it's advil or heroin or switchblades... school administrators should not be strip-searching a student for anything, at all, for any reason, ever.

If the school actually believes they have evidence of illegal activity (which in this case seems to mean 'hearsay') then they should do the sane thing and call the cops, who will decide if a search is warranted and, one hopes, do it legally. Like, you know: after arrest.
posted by rokusan at 7:11 AM on July 13, 2008 [10 favorites]


Ibuprofen!?? I always had a small pill-box with these with me in school when I was that age. (I had braces, and sometimes they hurt like a mofo).
posted by dabitch at 7:20 AM on July 13, 2008


I was in High School when the zero-tolerance policies started popping up across the nation, as a misguided response to the tragedy at Columbine High. I also had a few run-ins with overzealous application of the policy, despite never having done anything remotely worthy of such treatment.

All of my problems were because of one other child, who I did not get along with and was a known trouble-maker in the school. Every time he "snitched" on me for something I had not done, zero-tolerance policies quickly made my life hell.

The worst incident started with a screaming match in the halls before our last class one day; I can't even remember what we were yelling about. He told the teacher in class that I was crazy and that I had claimed I would bring a gun. This, of course, was reported quickly as a legitimate and wholly verified gun threat against the school.

The Dean came to the class and had me gather my things, and when I got in the hall there were two school cops who gave me a thorough pat-down search, then cuffed me and took me and my stuff to the school police's office where they searched all my stuff. They found nothing, at which point they told me of the allegation and that I was suspended immediately pending expulsion. Only after that did they ask if I had anything to say in my defense.

My parents, who knew all too well this was BS, set up a meeting with the Dean to discuss this, where we were finally told who made the claim, informed that his prior record was immaterial to the case, and had the whole ordeal described to us by the Dean as him "just following orders." (My mom broke out crying and said, "That's what the Nazi's said!" as we exited the room)

My father set up a meeting with the principal, who was significantly more understanding. She said that while she couldn't do nothing under zero-tolerance guidelines, she could potentially find a way for me to return to school. (She only did this because she knew my record and that of my accusor, and weighed the risks like a proper authority figure should - she could have just as easily taken the "easy" way out and continued the Dean's punishment) She lowered it to suspension for the remainder of the school year (which was roughly two months) and completion of that year at "Opportunity School," which was basically a barbed-wire surrounded shack-school in a bad part of town made for kids with significant juvenile records to finish school. If I successfully completed the year there, I would be re-instated to my HS for senior year as if the incident had never occurred.

I was lucky, I guess. I jumped through the unnecessary hoops and still finished in the top 10% of my class. The last I heard of my arch-nemesis, he has gotten expelled for bringing both alcohol and pocket-knives. Every time during my senior year that I saw the Dean, I stared straight at her as I passed, not in a manner designed to threaten but rather to remind her that I would never forget.
posted by mystyk at 7:23 AM on July 13, 2008 [53 favorites]


Oops. Last sentence should be a "him" not a "her".
posted by mystyk at 7:26 AM on July 13, 2008


Why would this journalist attempt to describe this scene in this salubrious way? Isn't it bad enough without fictious details

Because he likely lifted it from the plaintiff's brief where it was used for effect, or the court lifted it from the plaintiff's brief because it was particularly effective.

Love my section 1983 cases! This joker's going to get crucified monetarily. Qualified immunity is a really hard barrier to get over for a plaintiff.
posted by Ironmouth at 7:30 AM on July 13, 2008


This needed two rulings from the 9th Circuit? And the majority was still 6-5?

The 4th Amendment is dead, welcome to the police state.
posted by T.D. Strange at 7:34 AM on July 13, 2008 [5 favorites]


Zero tolerance = zero critical thinking.
posted by Inspector.Gadget at 7:38 AM on July 13, 2008 [20 favorites]


Re: damages--I can't be 100% sure because I can't read the opinion on this BlackBerry, but I think the case hasn't gone to trial yet.

Generally, qualified immunity is an affirmative defense dealt with on a pre-trial motion. The defendant argues that even if everything the plaintiff said was true, no violation of the plaintiff's constitutional rights occured or that the defendant had a reasonable belief that no constitutional right was violated.

Thus, the case has likely been sent down for trial, since the judge's ruling on the pretrial motion denying trial was reversed.

The trial will never take place. The school district will settle the matter and the one condition they put on the settlement will be that Kerry Wilson be released from liability. Mr. Wilson, if he has not already, will likely resign from the school.
posted by Ironmouth at 7:50 AM on July 13, 2008


mystyk: The whole zero-tolerance thing caught me in the chest, as well, but I wasn't invited to come back. I was always demanding special treatment and having authority issues at school, what with going blind from pigmentary glaucoma, getting a teacher disciplined for sexually assaulting a student, campaigning against academic carte blanche for athletes, this sort of thing. Trouble. Young people aren't supposed to think or feel shame.

Hoo boy, they had a celebration when the drama from my girlfriend's insane mother came down. It's been 12 years now; she and I still talk, but her mother really gave me a dolchstosslegende to live down. I was expelled and sent to a continuation school (woulda been early 99, days after Columbine) under the new zero tolerance policies in California, where we were living. They did a great job of protecting their school from the students going to it, even the ones who were trying to learn. Pregnant? Continuation camp. Accused the principal of molesting you? Continuation camp, even when he was fired for the event after an investingation. Get in a car accident? Continuation camp, since it's an "accessible institution."

Strip searching 13 year old black girls was happening in my middle school in rural Virginia. "At-risk" wasn't the term they used. They just said "negro." It was more intellectually honest, given that those redneck assholes were the same types who told me that long hair was unamerican, and pledging alliegance was a grade-earning activity. The law wouldn't have done anything. Strip a buck? Well we been doin' that for 300 years!

Abuse of authority? Shit, man. It just goes with the game. Been this way for a long time, and OUTRAGE!!! won't change it.
posted by electronslave at 7:53 AM on July 13, 2008 [7 favorites]


Some more legal facts, for the curious:

Suing the government is a complicated, complicated legal subject, thanks in no small part to the Rehnquist court's hostility to civil-rights plaintiffs. There are different rules if you're suing the government itself versus suing the official, different rules if you want them to stop doing X in the future versus pay for having done X in the past, and different rules based on whether you're suing a local, state, or federal government.

The decision itself wasn't 6-5 on all the issues. Two of the "dissenting" judges agreed that the search was unconstitutional, so that's 8-3 on the search itself. They dissented only on the "qualified immuity" issue: basically, individual government officials who behave unconstitutionally can only be order to pay damages if they violated a "clearly established" constitutional rule. Those two judges took the position that the rule wasn't clearly established before, but will be going forward. Speaking as someone who agrees with the majority in this case and also had to write memos in law school on the awful Supreme Court precedents that it had to apply, I think this position is wrong but not absurd. The Supreme Court cases are somewhat disturbing in the degree of discretion they suggest school officials enjoy; it's just that the facts here are in a whole different league. Outrage and disbelief may properly be directed at the other, three-judge dissent, which would have found the search legal in the first place.

The assistant principal here is unlikely to wind up paying any damages out of his pocket. 1983 defendants are often "indemnified" by the government for anything they did within the scope of their employment. That means the school district would pay they back for anything they're ordered to pay; it's a common technique for convincing people to take government jobs, such as police officer, where they'd otherwise run the risk of being sued for the things they did at work. (Of course, if you do something outrageous and clearly outside the scope of your duties, all bets are off; had the assistant principal kicked and beaten a teacher with a chair leg, no indemnification there.) According to the decision, the school district and school officials had the same lawyers on appeal, which to me suggests that one party, presumably the school district, was paying the bills.
posted by grimmelm at 8:06 AM on July 13, 2008 [7 favorites]


From Kevin Drum's site:

The ruling was 6-5. Two of the dissenters ruled on technical grounds, but three of them concluded, basically, that school administrators can do anything, anytime, including strip searches of 13-year-old girls, no matter how unconvincing the evidence of misbehavior or how remote the possibility of danger is.

And this is the 9th circuit, stereotyped as the most far-left liberal district of the Federal Court.
posted by XQUZYPHYR at 8:12 AM on July 13, 2008 [1 favorite]


"prescription strength Advil"? "the equivalent of two over-the-counter pills of Advil"?

You mean, the 400mg strength which happens to also be available OTC?

This is f-ing sick... I was carrying fiorinal on me at that age for severe migraines. That shit has barbituates! Days like these, I am so happy to be a Canadian.

She was probably taking them for lady-cramping. Did no one stop to consider why a 13 year old might need their legal medication? Sheeeeeeeeeesh.
posted by sunshinesky at 8:14 AM on July 13, 2008 [1 favorite]


Not likely sotonohito, judges don't normally flout the law. So there will be real damages. However, if judge Fiora had identified with the victim, then she could have found & employed the arguments that the 9th circuit used. To me, that suggests that she'll assign merely "normal damages", while we'd prefer something more spectacular.
posted by jeffburdges at 8:15 AM on July 13, 2008


The 4th Amendment is dead, welcome to the police state

I'd say rumors of its death are greatly exaggerated. The decision was reversed.

Let's be really clear here. The rule on qualified immunity is so strong that these cases are routinely dismissed and if they are not, they are quite often reversed. The last one I was involved with got all the way to the D.C. Court of Appeals, a court with a reputation of being slow to issue decisions. The court bypassed several years of backlogged decisions to reverse the trial judge with a unanomous decision in a little over 30 days.

The hard fact is that government has a blanket immunity from suit. Only in places where the legislature has expressly granted a right to sue may the government be sued for damages for civil wrongdoing. Courts are right to be hesitant to allow such suits to proceed. You wouldn't have a cop on the street if anyone they arrested could easily find them personally liable. Their ability to provide food and shelter for their families would be on the line every time they went out on the street.

The docrtine of qualified immunity serves this purpose well. Put in a simplified way, it requires a plaintiff to show that there was a firmly established right to be free of the government's conduct. Even if the defendant did violate a right, he or she could still have immunity if there was a reasonable belief on the part of the person involved that no such right existed.

It is therefore unsuprising that this went to an en banc (all judges on the court vote) decision and that the decision was close, because the court has to keep all of these questions in mind. Judges are very reluctant to let suits against the government go forward for these reasons.
posted by Ironmouth at 8:31 AM on July 13, 2008 [3 favorites]


Ya know, I'm glad this happened, because the authorities have been linking everything under the sun under the label 'drugs' and more or less treating them as if they were all the same. Which is about as idiotic as you can get. An aspirin is not the same as some pot. And pot is nowhere *near* the same as cocaine or heroin or oxycontin.

By trying to make people believe that all drugs are bad, what happens is, some kid gets a joint, gets a little buzz, then figures he or she can handle heroin or cocaine too. And now we're down to *aspirin*? Now kids will pop a couple aspirin for a headache and figure they can handle anything. Wonderful.

Our drug laws are some crazy-stupid shit. You'd think we'd have learned from Prohibition that prohibition doesn't work and just exacerbates violent crime. Sadly, we seem destined to repeat the mistakes of the past, over and over again, with the same bad results. Why is it that Congress, who controls our vast amount of tax dollars, can't buy a clue?
posted by jamstigator at 9:01 AM on July 13, 2008 [9 favorites]


Ibuprofen in Canada isn't even over-the-counter: it's on the shelf, where it should be.
posted by five fresh fish at 9:09 AM on July 13, 2008 [1 favorite]


some kid gets a joint, gets a little buzz, then figures he or she can handle heroin or cocaine too

Actually, studies show that your claim is not true.
posted by five fresh fish at 9:13 AM on July 13, 2008 [5 favorites]


Our children is learning, all right.

What they is learning, though, is up for debate.
posted by oaf at 9:23 AM on July 13, 2008


can you imagine if someone from the ACLU somehow managed to slip some ecstasy in Bill Gates's drink and talks him into PayPal'ing a few hundred billion dollars to the good men and women who are trying to save from the shredder the badly chewed-out, still-surviving parts of the Constitution? man, that'd be awesome.
posted by matteo at 9:26 AM on July 13, 2008 [1 favorite]


I'd say rumors of its death are greatly exaggerated. The decision was reversed.

Barely. And it shouldn't have gotten that far in the first place. It shouldn't even have become a case, because Kerry Wilson should have been beaten to death by the PTA. I'm not even joking on that last part.
posted by Optimus Chyme at 9:29 AM on July 13, 2008 [2 favorites]


five fresh fish, I haven't seen 400mg ibuprofen in Canada. Not that you can't just take two of the regular-strength ones…
posted by oaf at 9:35 AM on July 13, 2008


Er, 400mg ibuprofen on the shelf in Canada. 200mg ibuprofen, I've seen on the shelf on both sides of the border.
posted by oaf at 9:36 AM on July 13, 2008


Dunno. From the posts in this thread, I'd got the impression ibu was OTC. If it is available on the shelf in the USA, that's a good thing.
posted by five fresh fish at 9:47 AM on July 13, 2008


Ibuprofen in Canada isn't even over-the-counter: it's on the shelf, where it should be.

On the shelf means OTC.. the distinction you're looking for is "behind the counter" for drugs that have pseudoephedrine and the like. Which I should add, are just as legal as Advil, but they don't want you buying a whole whack and cooking up some meth.
posted by sunshinesky at 9:52 AM on July 13, 2008


Even if the defendant did violate a right, he or she could still have immunity if there was a reasonable belief on the part of the person involved that no such right existed.

Why would the defendant possibly believe they had the right to sexually humiliate a minor? Seriously, where's the precedent? Last time I checked, strip searches could only be demanded by law enforcement under custody--presumably because the delicate nature of the procedure requires some form of training or competency. What does a vice principal know about performing strip searches besides what they might have seen on television?
posted by Civil_Disobedient at 9:53 AM on July 13, 2008


Advil Extra Strength, although a search of the US site shows no such thing exists there.

I believe the prescription format is from Motrin.
posted by sunshinesky at 10:03 AM on July 13, 2008


You misunderstand me, five fresh fish. I'm not saying that this or that is a gateway drug, or that the 'gateway drug' theory holds any merit at all. But in the article you linked, they said that people tend to choose whatever drug is readily available, as the primary factor in whether they do this drug or that drug. I agree completely; from personal experience, I know that when I wanted to party down and alcohol was handy but not pot, then I drank, and vice versa. If there was coke and no pot or alcohol, okay, I did that too.

My point is that by constantly linking all drugs in the same sentence, intimating that they're all the same, and bad, that when kids are given a *choice* between drugs that are simultaneously readily available, that the kids will tend to be more ambivalent in their ultimate selection than they should be.

For example, Dobbs on CNN a few weeks ago was castigating Mexicans for bringing in 'vast quantities of heroin, cocaine, and marijuana', and the phrasing, the intonation of his words, clearly implied that they're all 'really, really bad'. I see that all the time, everywhere, as if the phrase 'drugs are bad' totally explains everything.

But nobody ever mentions that heroin and cocaine are hella-worse than marijuana, or that alcohol is worse by far than marijuana. So later, when some kids are at a party and someone offers a plate with some pot, a few lines of coke, and a few lines of powdered heroin, well, who knows what they'll pick. Logic and science and statistics say that the kid'll be waaaaay more likely to end up having problems after the heroin or the cocaine than if he tokes up a little pot. And yet, that's not the impression that is given on television, or by politicians, except for the rare cannabis documentary.

I'm talking about kids who are already predisposed to imbibe or ingest or inhale *something*. In other words, if there is a gateway, I'm talking about people who've already gone tthrough the gate. They need accurate information to make wise decisions (or at least less unwise), not the politicized misinformation they are fed.

Remember that commercial where this guy is sitting on a couch watching TV, stoned out of his mind, and his two friends or whatever come in and try to get him to go shoot hoops or ride bikes or something? And he says, nah, I'm too stoned, and the commercial says that if you get stoned, you miss out on stuff. I think NORML should reshoot that commercial, have a gangish-looking kid on the couch, totally stoned. A couple of his gangmates come busting in and ask him if he wants to go rape some ho's or rob the 7-11, and he says, naw, I'm too stoned, you all go on without me. And the voiceover intones, 'Try pot, it stops crime!'
posted by jamstigator at 10:08 AM on July 13, 2008 [3 favorites]


stock response: why do people allow their children to go to a place where they're treated as prisoners?
posted by RedEmma at 10:11 AM on July 13, 2008 [4 favorites]


A reasonable school official, seeking to protect the students in his charge, does not subject a thirteen-year-old girl to a traumatic search to 'protect’ her from the danger of Advil.

No matter how hard I try, I can't help but read this as litotes. What other things might a reasonable school official not do?

A reasonable school official, seeking to protect the students in his charge, does not announce himself to be the Vampire Educatula and set about draining the blood of virgins.

A reasonable school official, seeking to protect the students in his charge, does not secretly arrange for the climactic scene from Carrie to be re-enacted at the school prom.

A reasonable school official, seeking to protect the students in his charge, does not organise a bracing game of IED scavenger hunt.

A reasonable school official, seeking to protect the students in his charge, does not install a small nuclear reactor under the sports stadium (that's college level work, obviously.)
posted by xchmp at 10:24 AM on July 13, 2008 [2 favorites]


Jesus christ, over an allegation of Advil???? I wish I was more surprised. My stepmother is a high school teacher and has had a kid drug tested and cops called for bringing echinacea to school. (How was she supposed to know??? He paused when she asked what it was (because god know you can't get in trouble for bringing a legal over the counter medication to school, now can you?) and you know there are all these rumors of kids using steroids and he's on a sports team!!!, so yeah totally justified) The level of paranoia and a strict adherence to THE RULES somehow justifies anything and everything. It's always the same thing, but it's THE RULE, they should know THE RULES. With no weight given at all to how important a specific rule is or what the rule is attempting to guard against. The rules against Advil are kind of to protect kids, but mostly they are just to protect to the schools from liability. And I think it's important to protect our schools from liability and that it's probably a valid rule. So maybe you make the kid hand over their backpack in your office so you can quickly go through it, but you sure as hell don't invade their person. This is unreal.

Honestly, if there is an allegation of a gun, I can understand a quick pat down search OVER THE CLOTHES by a same sex teacher, but that's the same standard that cops are allowed. That's the only situation I believe that any teacher has a right to touch a student (except in self defense or in the defense of another student, i.e. pulling one kid off another).
posted by whoaali at 10:32 AM on July 13, 2008


Advil Extra Strength, although a search of the US site shows no such thing exists there.

Yes. We just take two.

Let me know when you guys legalize Aleve.
posted by oaf at 10:43 AM on July 13, 2008


Why would the defendant possibly believe they had the right to sexually humiliate a minor?

They would not reasonably believe that they had the ability to engage in such a search without violating the Fourth Amendment. Hence, the court ruling here, which was in favor of the child.
posted by Ironmouth at 10:44 AM on July 13, 2008


The drug thing is completely out of control. And, yes, kids get suspended for carrying Advil. And any other OTC medication. We have to send a permission slip to school when our daughter wants/needs to carry some throat lozenges when she has a cold. Fucking Halls lozenges! If you have to take a prescription or OTC med during the day, you have to hand it over to the school nurse who keeps it under lock. Then you show up when it's time, and she monitors you taking your med.
At the end of the year, the nurse often ends up with a small supply of all sorts of meds, left behind by the kids. ADD meds, anti depressants, antibiotics, ibuprofen, etc.

The idea that the court was that closely split is unfortunate and disturbing.
posted by Thorzdad at 10:54 AM on July 13, 2008


I'd say rumors of its death are greatly exaggerated. The decision was reversed.

That the district court found no violation was a travesty, and the original appeals panel agreed. At least the en banc panel did eventually reverse, but...really? It took 3 different courts to find strip searching a 13yr old for ibprofren against the 4th Amendment?
Pretty much every 9th grade civics class in the country would've gotten that right on the first try.

And rumors of the Amendment's death are getting louder by the day, didn't you know it's legal for the government to wiretap your phones without a warrant now? And do whatever they want with the information they gather? In addition to strip searching little girls?
posted by T.D. Strange at 10:55 AM on July 13, 2008


Savannah: “I held my head down so that they could not see that I was about to cry.”

Mick: Kerry Wilson, I hope those words haunt you to your grave.

The chances are nil that Kerry Wilson will ever think he did anything wrong.
posted by jayder at 11:04 AM on July 13, 2008 [2 favorites]


I'll admit I'm pleasantly surprised by the 9th. The trend in this country has been very, very clear indeed -- Children in school have no rights whatsoever.

I will also admit that I'm fully expecting this one to be appealed one last time, and for it to be overturned in another 5-4 decision by the Supreme Court.

Note that I think this search was wrong, and I would personally be asking why this administration has not been placed under arrest for the sexual assault of a child. I'm just noting that the courts have increasingly ruled that you check your rights at the schoolroom door, and Congress has done nothing to tell the courts that they should rethink that.
posted by eriko at 11:09 AM on July 13, 2008


Ibuprofen in Canada isn't even over-the-counter: it's on the shelf, where it should be.

"Over the counter" in American English is the same thing as "on the shelf" in Canadian English.

We have to send a permission slip to school when our daughter wants/needs to carry some throat lozenges when she has a cold. Fucking Halls lozenges! If you have to take a prescription or OTC med during the day, you have to hand it over to the school nurse who keeps it under lock. Then you show up when it's time, and she monitors you taking your med.

It seems to me that one way to deal with this would be to organize among other parents to vastly overload the current system with ibuprofen and acetaminophen, or, shit, homeopathic "remedies" that highly purified placebos, and then raise holy hell about the school endangering your children's welfare if anything less than 100% of children can get their medication on time, every time, or if the nurse is so busy handing out medicine that (s)he cannot promptly deal with any other duties.
posted by ROU_Xenophobe at 11:11 AM on July 13, 2008


What amazes me is that, after all of this, Kerry Wilson still works at Safford Middle School.
posted by MegoSteve at 11:13 AM on July 13, 2008 [2 favorites]


Let me know when you guys legalize Aleve.

Ok, you've got me there. Honestly, it's easy to forget that we can't get it here, what with all the aleve commercials I've seen. That said, there is Rx Naproxen (which I understand is the same thing) in my medicine cabinet. Operative term being Rx, I know... like I said, ya' got me!
posted by sunshinesky at 11:13 AM on July 13, 2008


You just know that this is going to the Supreme Court and that, not only are they going to reverse this decision and rule in the school's favor, but they're also going to rule that -- gosh, I dunno -- that every strip-searched girl should have a giant "A" tattooed onto her forehead to let the other students know that she's a harlot.
posted by Avenger at 11:17 AM on July 13, 2008 [1 favorite]


Cases like this are one of the reasons that a lot of secular folks are choosing the homeschooling route now. For the longest time, the vast majority of homeschoolers were religious objectors, but a lot of the folks I'm meeting now through homeschool associations are more anti-establishment than they are anti-evolution.

There are whole swaths of people like me who don't want our kids growing up thinking that a police state is acceptable, that all authority figures are always right, that you should always do what an authority figure tells you to do. I'd rather deal with rebellion from my kid than turn him into a cube dwelling uber-consumer that bows his head when the jack booted thugs walk past.
posted by dejah420 at 11:22 AM on July 13, 2008 [6 favorites]


didn't you know it's legal for the government to wiretap your phones without a warrant now? And do whatever they want with the information they gather?

Has anyone been convicted of anything on the basis of the illegal wiretaps? That's a very poisonous tree.
posted by oaf at 11:25 AM on July 13, 2008


In a 6-5 ruling, the Supreme Court has found that torturing all blacks, gays and disabled people to death is unconstitutional. Writing for the minority, Justice Scalia stated "Grrrlaahuahhh Cthulhu Ia C'geathealeh ia - CTHULHU FHTAGN! Ssalmani-ia ana pagri tapqida duppira; Ssalmani-ia ana pagri taxira duppira; Ssalmani ini ishdi pagri tushni-illa duppira:-- ALL IS DUST TO THE OLD ONES"
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 11:25 AM on July 13, 2008 [17 favorites]


T.D. Strange: "The 4th Amendment is dead, welcome to the police state"

Ironmouth: "I'd say rumors of its death are greatly exaggerated. The decision was reversed."

How many times have 13 year old girls been strip searched in public schools without sufficient probable cause and they or their parents chose NOT to press charges cuz it was too much of a hassle? Or they told themselves well maybe she deserved it? Or they couldn't afford to fight back? Or they couldn't find a lawyer to take their case? Or any number of other reasons? The fact it happens AT ALL is evidence enough!

Hell, screw the fact she's a 13 year old girl! I'm a forty year old man and I don't wanna be strip searched! Even IF there's probable cause! Fuck that shit! I don't know about you, but strip searches happening in the United States of America to its own citizens? I NEVER SAW THAT IN THE FUCKING BROCHURE, MAN! I never signed up for this! No one told me just before I was born that, "oh by the way you're gonna be living somewhere where you'll grow up being told you live in a place of freedom but by the time you're old and gray you'll be thinking East Berlin during the Cold War musta been nice and cozy."

So the rumors we're facing a police state? While some of you may think it's exaggerated, this shit's gonna get worse before it gets better, and I don't wanna have to wait until we're all holding our folded clothes in our hands, while waiting in line to be next, to be able to turn to you and say "I told you so."
posted by ZachsMind at 11:31 AM on July 13, 2008 [2 favorites]


What did one lobster in the pot say to the other lobster in the pot?

These binders on our claws? They're for our own protection, really.

You might feel confined, but I wasn't planning on moving about much anyway.

If the temperature is getting higher, that's just global warming.
posted by ZachsMind at 11:35 AM on July 13, 2008 [3 favorites]


"Over the counter" in American English is the same thing as "on the shelf" in Canadian English.

Then what do you call stuff that's behind the pharmacy counter, but doesn't require a prescription?
posted by five fresh fish at 11:39 AM on July 13, 2008


Then what do you call stuff that's behind the pharmacy counter, but doesn't require a prescription?

This is pretty recent phenomenon in the US, and only really sudafed is behind the counter. But even then it's not behind the pharmacist counter, but just the regular cashier who you have to give ID to prove you are not manufacturing meth or something along those lines. This in between category where the pharmacist gives it to you w/out a prescription and asks you some questions, doesn't really exists in the US.
posted by whoaali at 11:44 AM on July 13, 2008


But even then it's not behind the pharmacist counter, but just the regular cashier who you have to give ID to prove you are not manufacturing meth or something along those lines.

This varies by state. In Kentucky, you have to get Sudafed from the pharmacy counter, although you don't need a prescription.
posted by dilettante at 11:47 AM on July 13, 2008


Then what do you call stuff that's behind the pharmacy counter, but doesn't require a prescription?

At smaller--often urban--pharmacies, there's stuff behind the counter just to keep it from being stolen and because of space constraints.
posted by Mr. President Dr. Steve Elvis America at 11:52 AM on July 13, 2008


On the shelf means OTC.. the distinction you're looking for is "behind the counter" for drugs that have pseudoephedrine and the like.

That's how it is in my part of Canadiana.
posted by Durn Bronzefist at 11:54 AM on July 13, 2008


oaf wrote "Has anyone been convicted of anything on the basis of the illegal wiretaps? That's a very poisonous tree."

The whole warrantless wiretapping bit is there for the intimidation of dissidents and political foes much more than it is for gathering evidence for any criminal procedings. Look, for example, at the way Hoover's FBI wiretapped and bugged MLK in an effort to silence him. They taped him having sex with his mistress and sent the tapes to his wife. That's the point, the purpose, of the warrantless wiretaps.

I wonder what tapes have been sent to Pelosi, Reid, and Obama....

And, more to the point, the Supreme Court has ruled that there's no need for any pesky "convictions" nonsense. The President can simply declare anyone to be an "enemy combatant" and have them shipped off to be tortured until they confess to whatever crime he wants them to confess to. At which point, because they've seen secret "enhanced interrogation" techniques they must be "detained" until the War on Terror is over, or the heat death of the universe, whichever comes first.
posted by sotonohito at 12:06 PM on July 13, 2008


Only in places where the legislature has expressly granted a right to sue may the government be sued for damages for civil wrongdoing.

From a philosophical standpoint this seems to turn our entire system of government on its head. The government doesn't grant the people the right to do anything. Quite to the contrary, the people grant the government its rights. Yeah, yeah, this is a starry-eyed view of things, but it's something that gets lost too often.

I understand the reasons behind qualified immunity, but I think the pendulum has swung way too far in favor of the government at this point. If public servants face the fear of personally losing something because of bad behavior[0] perhaps our public servants will stop behaving badly.

[0] - instead of having the tax payer footing the bill when they fuck up, which is the system we currently have.
posted by ryoshu at 12:06 PM on July 13, 2008


This is pretty recent phenomenon in the US, and only really sudafed is behind the counter. But even then it's not behind the pharmacist counter, but just the regular cashier who you have to give ID to prove you are not manufacturing meth or something along those lines. This in between category where the pharmacist gives it to you w/out a prescription and asks you some questions, doesn't really exists in the US.

Also: ECP, aka Plan B. Nothing else comes to mind, though, yeah.
posted by spaceman_spiff at 12:12 PM on July 13, 2008


more to the point, the Supreme Court has ruled that there's no need for any pesky "convictions" nonsense. The President can simply declare anyone to be an "enemy combatant" and have them shipped off to be tortured until they confess to whatever crime he wants them to confess to.

The Supreme Court has ruled that all of these "enemy combatants" (or whatever the term du jour that the administration uses to try to circumvent those pesky laws) have habeas corpus rights. So I'm not sure where you're getting that from.
posted by oaf at 12:16 PM on July 13, 2008


I would be surprised if the Roberts court decided the case this way, sadly. And the 9th circuit is the most over-turned court in the land.
posted by delmoi at 12:19 PM on July 13, 2008


I can't believe they strip searched her at all but especially in the manner described, what in the holy fuck?! That's sexual assault as far as I'm concerned.

When I was 13 I always had pain killers in my school bag, and so did all the other female students. By 13 most girls have their period. Do 'American Drug Warriors' want girls to stay home one week out of every month so they can maintain order? Probably.

five fresh fish, I haven't seen 400mg ibuprofen in Canada. Not that you can't just take two of the regular-strength ones…

Well the shelf is where I buy my 400mg bottles of it, at Shopper's Drug Mart. I can take a photo of it on the shelf if you'd like, but it'll have to wait until tomorrow.
posted by zarah at 12:20 PM on July 13, 2008


If public servants face the fear of personally losing something because of bad behavior perhaps our public servants will stop behaving badly.

It will also encourage frivolous lawsuits, and the government will end up paying for anyway, because they'll have to pay the public servants more to offset the increased personal liability.
posted by oaf at 12:21 PM on July 13, 2008


The government doesn't grant the people the right to do anything. Quite to the contrary, the people grant the government its rights.

Can't a distinction be drawn, though, between legally protected rights that can be exercised in the absence of a legal system altogether (e.g., life, liberty, and the pursuit of happiness) and strictly legal rights (e.g., filing a lawsuit)?
posted by Mr. President Dr. Steve Elvis America at 12:21 PM on July 13, 2008


Well the shelf is where I buy my 400mg bottles of it, at Shopper's Drug Mart.

I have a bottle of Advil here that says "if pain or fever does not respond to 1 tablet, 2 tablets may be used." I guess there's an advantage to 400mg ibuprofen if you want to take the maximum dose in one pill instead of two, but I don't see it as a big deal.
posted by oaf at 12:26 PM on July 13, 2008


The chances are nil that Kerry Wilson will ever think he did anything wrong.

Following the strip search, Kerry Wilson locked his door and masturbated, thinking of what he had just done.
posted by fuq at 12:27 PM on July 13, 2008 [1 favorite]


I have a bottle of Advil here that says "if pain or fever does not respond to 1 tablet, 2 tablets may be used." I guess there's an advantage to 400mg ibuprofen if you want to take the maximum dose in one pill instead of two, but I don't see it as a big deal.

It's always seemed strange to me that there was prescription-strength Ibuprofen. I understand why mixing 200mg and 400mg pills on the shelf might be undesirable. Someone who is used to taking the 200mg pills--and who habitually takes more than the recommended dose--might accidentally buy the 400mg pills and take their usual number of pills.

The solution, though, seems to be simply not to manufacture the 400mg version. Doctors can just tell people to take however many of the 200mg pills are necessary.
posted by Mr. President Dr. Steve Elvis America at 12:31 PM on July 13, 2008


This reminds me of a post on Metafilter a while back, concerning a school principal who, concerned about the possibility of "dirty dancing" at a school dance, conducted panty checks on high schoolers --- out in the open. It may be the Rita Wilson case, although I didn't think it was that long ago.

I wonder what the long-term significance of the Web will be in moderating the behavior of people in power. I think about incidents like this, and I wonder how much crazy, out-of-control shit people did that was simply never really publicized widely in the days of newspapers and magazines. Aren't principals learning that the Web exists to pass stories like this along?
posted by jayder at 12:49 PM on July 13, 2008


If public servants face the fear of personally losing something because of bad behavior perhaps our public servants will stop behaving badly.

It will also encourage frivolous lawsuits, and the government will end up paying for anyway, because they'll have to pay the public servants more to offset the increased personal liability.


I have to disagree on this one. The school district (and their insurance companies) have much deeper pockets than the average vice principal, making suing them far less lucrative.
posted by whoaali at 1:01 PM on July 13, 2008


oaf - It will also encourage frivolous lawsuits, and the government will end up paying for anyway, because they'll have to pay the public servants more to offset the increased personal liability.

I'm okay with that. If we need to pay public servants more in order to attract people that will think twice before abusing power, I don't see the problem. Less abuse and more competent actors.

Mr. President Dr. Steve Elvis America - Can't a distinction be drawn, though, between legally protected rights that can be exercised in the absence of a legal system altogether (e.g., life, liberty, and the pursuit of happiness) and strictly legal rights (e.g., filing a lawsuit)?

I'll skip the copyright troll and argue that suing the government is a form of redress of grievances. It's a right enshrined in the first amendment, a right that is not granted by the government, but a right that the government may not infringe. I'll also contend that allowing the government to say "you can't sue us" turns the entire basis of our government on its head.
posted by ryoshu at 1:06 PM on July 13, 2008


I'll skip the copyright troll

And by copyright troll, I meant me trolling about copyright and strictly legal rights (or granted rights). Not that anyone else was trolling ;) /derail
posted by ryoshu at 1:07 PM on July 13, 2008


I would be surprised if the Roberts court decided the case this way, sadly.

Especially since that's Strip Search Sammy's neck of the woods.
posted by dgbellak at 1:55 PM on July 13, 2008


Then what do you call stuff that's behind the pharmacy counter, but doesn't require a prescription?

"Behind the counter" or "Under the counter," which both are relatively renewed phrases. OTC used to describe any formerly regulated pharma product that would now be available without a presciption, and was widely also applied to any other sort of commercial remedy product, whether it had ever been regulated or not.

But with the ketamine cooking of the past decade or so, the pseudoephedrine products are behind or under the counter, meaning you have to ask to get them, just like we used to have to do to get a copy of Playboy before 1970 or so.

We can hope that the zero tolerance days are at the far end of their pendular swing and we will return to some sense here, but I don't hold much hope. We see the signs at the big box retailers and the chain grocery store: "This is a Drug Free Workplace!" and working at an autoparts store requires peeing in a cup. I personally can't see how people can work a lot of those jobs without a little bit of mood altering substance, but I guess that's why it's so GD easy to get a perscription for generic Xanax.

I was recently at a board meeting where one of the directors suggested that since we require employees and staff to take a pee test, that wee should lead by example and take one, too. Their eyes about popped open when I suggested that we had no right to preemptively test the employees and that our interest should be limited to occasions when someone clearly cannot perform their job.

But....but....but...they sputtered. Some of our employees drive trucks! Some of our staff supervise children!

Damn straight, I said. And for every situation where there is an actual problem, we have a policy that covers it.

And then it comes down to, "but we might get sued if we could have prevented it." That seems to be the crux. We might lose money and/or reputation if we could have prevented X from happening, so we have to test everyone, we have to keep Advil out of our elementary schools, we have to bring out the fire brigade for every allegation no matter how thin the proof or odious the motivation.

The older I get, the closer I get to an anarcho-libertarian-buddhist right thinking/right action perspective that calls on me to keep my shit clean and to help other people care about theirs, and to not let my life be driven by fear of litigation, fear of change, or fear of the Other. I can only wish the same for the school board that fears 13 year old girls and their wanton abuse of NSAIDs.
posted by beelzbubba at 2:02 PM on July 13, 2008 [2 favorites]


Do 'American Drug Warriors' want girls to stay home one week out of every month so they can maintain order?

Of course not. They'll simply adhere to the ADA and consign them to classes in a red tent on the football field for the duration.
posted by dantsea at 2:05 PM on July 13, 2008 [2 favorites]


Mr. President Dr. Steve Elvis America writes "The solution, though, seems to be simply not to manufacture the 400mg version. Doctors can just tell people to take however many of the 200mg pills are necessary"

400mg pills are cheaper per milligram than 200mg pills.
posted by Mitheral at 2:27 PM on July 13, 2008


But with the ketamine cooking of the past decade or so, the pseudoephedrine products are behind or under the counter...

Excuse me? I'm sure you're talking about Meth. Please know what you're talking about before spewing a long rant like that.
posted by sunshinesky at 2:50 PM on July 13, 2008 [2 favorites]


The only thing I'm certain is behind the pharmacy counter in Canadian drug stores is Tylenol with codeine. And a bunch of diabetic test gear, but that's to prevent theft.
posted by five fresh fish at 3:03 PM on July 13, 2008


But with the ketamine cooking of the past decade or so, the pseudoephedrine products are behind or under the counter...

Excuse me? I'm sure you're talking about Meth. Please know what you're talking about before spewing a long rant like that.
posted by sunshinesky


I'll admit to not being up on single-wide trailer drug manufacturing terms, merry Sunshine, but the rest of the post was anti-"zero tolerance" not about the names & procedures for cooking meth. And rather than get into the merits (as others have) of taking two or four or eight Advil, I think we out to get back to the abrogated rights of people to young to vote, and thus to young to matter to the elected. Unless the parents of school age children let their legilators know that this is unacceptable, it will keep happening.
posted by beelzbubba at 3:12 PM on July 13, 2008


oaf writes:

Our children is learning, all right.

What they is learning, though, is up for debate.


They are learning to be afraid. And while I wouldn't go so far as to call America a "police state", at least not to actual Americans, that is precisely how they function. Interestingly, another way police states function is by tricking their thralls into believing they don't live in one.

Australia's not much better. In Queensland (specifically, Brisbane) presently: drunk drivers and "hoons" (basically dudes who rev their engines to impress chicks) should have their cars confiscated and crushed (up next: people who play their stereos too loudly get their homes repossessed); your autistic child is going to get poop rubbed in his face; your non-autistic child will be bullied and then raped; if you live in West End you will probably be murdered; make sure you've got a generator backup for your dialysis machine; you're dumb; young people are going to get drunk on "binge" (in other words, you're not safe after 7pm); you are fat, sloshed and have herpes; girls are vomiting themselves inside out (after drinking the "binge", of course); you can't afford to buy or maintain one of these but need to get it anyway (to get it confiscated [but not crushed, because there's no electricity left] after you drive it, drunk, because your girlfriend vomited herself inside out after giving birth to an autistic child and also, you contracted herpes because a pedophile raped you in West End).

So I guess basically what I'm saying is, can I interest you in a one-time special on double glazing?
posted by turgid dahlia at 3:50 PM on July 13, 2008 [2 favorites]


They'll simply adhere to the ADA and consign them to classes in a red tent on the football field for the duration.

I know you're being silly, but this would be a pretty clear violation of IDEA, which requires that students with disabilities be educated in the "least restrictive environment" possible.
posted by spaceman_spiff at 4:54 PM on July 13, 2008


FWIW, my wife routinely pays absolutely no attention to the "extra strength" on pain meds. She takes two and sometimes three, no matter what strength they are, and I get extremely aggravated at this stupid behaviour.
posted by Kickstart70 at 5:11 PM on July 13, 2008


single-wide trailer drug manufacturing terms

Manufacturing terms is one thing, knowing one drug from another is somewhat more important.

I agree with your end points, but when you have factually incorrect bits it still weakens your argument.
posted by flaterik at 5:36 PM on July 13, 2008


I'll skip the copyright troll and argue that suing the government is a form of redress of grievances. It's a right enshrined in the first amendment, a right that is not granted by the government, but a right that the government may not infringe. I'll also contend that allowing the government to say "you can't sue us" turns the entire basis of our government on its head.

I don't think this argument works. First, there's no First Amendment right to "redress of grievances." There's a right to petition the government for redress of grievances.

There's a substantial difference, in my mind, between the right to something and the right merely to ask for it. With this distinction in mind, it's not clear to me that qualified immunity violates the right to petition, because qualified immunity doesn't prevent one from speaking out, making a case, and asking for relief--it merely prevents one from obtaining judicial relief.

That is, it doesn't prevent the petition; it prevents the success of the petition. Surely a law doesn't become unconstitutional simply by virtue dooming certain petitions to be unsuccessful--practically no law would pass this test.

That said, I have to admit, I'm not particularly sympathetic to your argument to begin with, because I think natural rights are a fiction.
posted by Mr. President Dr. Steve Elvis America at 5:46 PM on July 13, 2008


...because I think natural rights are a fiction.

Seriously? Could you elaborate a little please MPDSEA?
posted by turgid dahlia at 5:56 PM on July 13, 2008


Seriously? Could you elaborate a little please MPDSEA?

The idea is simply that all rights are legal rights. Since legal rights are grounded in some sort of legal system, without a legal system, no one has any rights. Furthermore, there's no necessary connection between what is legal and what is moral. That is, legality isn't measured by reference to morality.

That's all I meant.
posted by Mr. President Dr. Steve Elvis America at 6:21 PM on July 13, 2008


Ahh, I'm with you. And contextualised in that manner I agree.
posted by turgid dahlia at 6:36 PM on July 13, 2008


(FWIW, it wasn't meant to be snark - I just thought for a moment there you might have been one of those psychopaths who insists that people must "earn" certain rights, as in "You must work for X months at [insert charitable organisation here] before you earn the right to protest against the WTO", or "You must have lived in this neighbourhood for X years before you get any say in whether or not so-and-so happens".)
posted by turgid dahlia at 6:46 PM on July 13, 2008


And rather than get into the merits (as others have) of taking two or four or eight Advil, I think we out to get back to the abrogated rights of people to young to vote, and thus to young to matter to the elected...

I wasn't talking so much about the merits per se, as the legality and availability of these drugs. Possession of legal items should be no one else's business, period.

It's pretty damn obvious that this girl should not have been searched in any way, and this Kerry Wilson asshole should be disciplined appropriately through payment of damages and being forbidden to work with children in the future. At least! This is pure sexual harassment, whether he knew it or not.
posted by sunshinesky at 7:11 PM on July 13, 2008


As for paying people more so they will agree to put themselves in the path of multiple lawsuits, my only answer is--there's not enough money on the planet. If you think you have a better system for dealing with this real problem that real courts, police officers and public servants face every day, I'd like to hear it. Because I don't see it.
posted by Ironmouth at 7:52 PM on July 13, 2008


This is a good reminder for me that I need to learn patience, as if this were my daughter I would be in jail now for assault.
posted by davejay at 9:16 AM on July 14, 2008


Yes, I agree with earlier posters that even if the principle is indemnified by the school district, the family is obligated to press sexual assault charges. Not sure this would qualify, but I can imagine pushing it might help the girl.

Well, if we all really cared, then we'd all be calling the district attorney, saying this is an obvious case of (indirect) sexual assault, and suggesting the prosecution of the principle.
posted by jeffburdges at 3:19 PM on July 14, 2008


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