Going Loco Parentis

By Mark David Blum, Esq.

By an 8-1 vote in the recent decision of SAFFORD UNIFIED SCHOOL DIST. #1 v. REDDING, the United States Supreme Court said the strip search by school officials of a child violated that child’s Fourth Amendment rights to be free of unreasonable searches and seizures. Voting 6-3, that same Court opined that school officials are immune from suit and are not answerable for their sins. How is it that we can get a decision that finds a constitutional violation but insulates the wrongdoers? It is wrapped up in the concept of “qualified immunity”.

Government officials are tasked with duties and responsibilities that from time to time bring them into contact and even conflict with the public. We see this most times with police but they are not alone. So long as they are acting in accordance with the “clearly established” law, government officials are immune from suit. For example, a police officer can arrest and charge the wrong person with a crime. It happens. When later the arrestee is exonerated, the police officer cannot be sued so long as he was acting within the confines of the law. We immunize government officials acting within the bounds of the law as otherwise, government could not function.

In the realm of schools, we have gone completely off the deep end. Early American history has established that schools operate en loco parentis, Latin for “in place of the parents”. From this judge made doctrine (it is not in the constitution), the Courts have given wide latitude and discretion to school officials and school districts to act in what they believe are the best interests of the children. As Justice Thomas famously quips in Redding, “[I]n the early years of public schooling,” courts applied the doctrine of in loco parentis to transfer to teachers the authority of a parent to “command obedience, to control stubbornness, to quicken diligence, and to reform bad habits.” Justice Thomas, the lone dissenter in Redding notes too that schools need the liberty to act en loco parentis as “only then will teachers again be able to govern their pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn by making rules, giving commands, and punishing disobedience.”

Redding is a case involving Savannah Redding, a then middle school child suspected of having possession of over-the-counter pain relievers. When a search of her backpack and outer clothing did not result in the discovery of any contraband, Savannah was whisked to the nurse’s office where Savannah was required to shake out her bra and pull aside her panties to prove she was not secreting drugs in those places. Savannah sued the school district and various persons at the school for violating her Fourth Amendment rights.

There is no question that America has lost its collective mind when it comes to the subject of drugs. Our Courts have just about eliminated any rights under the Fourth Amendment by creating the so-called “drug exception” to the warrant requirement and in the end, justifying just about any search when that search is for drugs. Obviously if they were searching for a baseball bat, Savannah's panties would be an unreasonable place to search. While the entire Redding case revolves around drugs, the issue itself is moreso about the rights and powers of students and teachers.

As part of our national insanity on the war on drugs, many school districts have enacted get tough “zero tolerance” policies where children are not even allowed to have with them any pain relievers. My heart sympathizes with the young females and cramps, asthmatics who need their inhalers, and frankly any student in need of a lawfully obtained and properly used drug. Schools have cracked down so hard that the mere possession of a Tylenol can result in expulsion.

Writing for the majority in Redding, Justice Souter in what will probably be his last published opinion recognizes that, “parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same.” Yes, Justice Souter recognizes that if parents can reasonably go overboard in how they respond to a situation, then those acting as Loco Parentis can be just as berserk. The only difference between the two is that school officials who go too berserk are at risk for being sued for violating a student’s rights.

In his dissent, Justice Thomas says the insanity of zero tolerance policies are not issues for the Courts. He does not want judges to be the final arbiters of what is and is not illegal activity. Rather, Justice Thomas dictates that “if parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move.” This policy smells of oppression of the majority by a minority. In Justice Thomas’ world, its either love it or leave it. He does not see the Constitution or the law as being the last line of defense. Instead, the Justice demands that you either change the policy, no matter how harsh or improper, or move. In my opinion, Justice Thomas should move – onto a new career.

To a point however, Justice Thomas is right. If we are allowed to be obnoxious as parents and if schools are seen as being just another obnoxious parent, then the response is to change the policy. So long as a policy is in place and so long as it is lawful in nature, when used unconstitutionally as it was in Redding, there is no recourse against a wrongdoer. This is the trap of qualified immunity.

Imagine you are Savannah Redding. You were shamed and humiliated by what is later determined to be an unlawful and unconstitutional search. It has taken years for your case to come before the Supreme Court. When you finally arrive there, you get a pat on the back telling you what you already knew – that your rights were violated – and then you get ravaged again by the Court telling you frankly my dear, there is nothing you can do about it.

“Qualified immunity” has its obvious role in society. Over the years and through dozens of cases, my own experience has been that the shield of qualified immunity is being more and more used as a sword to invade what are otherwise protected constitutional spheres. The courts give too much deference to government actors and not enough protection to the general public. Whereas parents are in a superior position to children, government officials are not in a superior position to the general public. There is a special trust in place that government will behave lawfully and within the confines of the law. The doctrine of qualified immunity is becoming more and more a barrier to the protection of civil rights and personal freedoms. Look no further than the loco parentis of Redding.

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