Sunday, May 10, 2009

Empathy on the Court

When Obama said that he wanted a justice who was capable of empathizing with the plights of the people who would be impacted by their rulings, I was skeptical at first. After all, the law is cold and hard. It's not about feelings. It's not about empathy. And we shouldn't allow our emotions to adulterate our reason.

But that was before I saw this. A 13 year old girl was strip searched because school officials had been told that she had contraband. What contraband, you ask? A gun? A knife? Crack? No. Ibuprofen. The school officials forced this girl into her bra and underwear and then made her move her undergarments, exposing her body, to prove that nothing was hidden in them.

The Supreme Court ruled that her privacy wasn't violated because it was reasonable to think that she would hide she would hide her "contraband" in her underwear. And, honestly, that is a reasonable thought. What may have been unreasonable was stripping a 13 year old girl. I understand that the school acts in loco parentis, but there have to be limits. Parents are allowed to spank their children. Public school teachers are not. Parents might be allowed to insist that their children strip naked. I'm not sure public school teachers should be.

A strip search in a cold nurse's office, in front of the nurse and a teacher, even a female teacher, can be a traumatizing experience. When I was in my early twenties, not long after 9/11, I was forced to strip down to my skivvies and then padded down in an Oklahoma airport. I can't tell you how violated I felt. For a 13 year old girl, who is in a stage of life where she is highly conscious of, unsure of, and likely uncomfortable with her body, this had to be a mortifying experience.

But the 8 male justices on the court couldn't see what the big deal was. And, from what I can tell, the main point was that it was reasonable to suspect that she had hidded the stupid Advil in her panties (remember, she had no "contraband"). But that's not the only measure of what makes a search reasonable. The invasiveness of a search has something to do with it as well. And these justices, because they were incapable of empathizing with the girl, couldn't see that dimension of this case.

I'm not necessarily saying that the court handed down the wrong decision. We might feel better about the search if she had been said to be hiding crack and they had in fact found it, which makes me think that part of the problem here is that advil isn't the sort of thing school officials should be searching for. But what this case does tell me is that maybe empathy is something a justice needs to have a little of after all.

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