# Clarence Thomas: Facts Do Not Overrule Suspicions **URL:** \ **Category:** The BBQ Pit\ **Created:** [June 25, 2009, 8:21pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979 "2009-06-25T20:21:24Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [June 26, 2009, 2:05pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/61 "2009-06-26T14:05:45Z")
> [@Hentor\_the\_Barbarian](#): > > Or more generally, are there any situations in which we want to grant schools the right to strip search children in matters that would not be a violation of the law? Notes in class, copied homework, cheat sheets… > > I can’t think of any. I supppose in matters of suspected academic cheating, the school could call in the parents rather than the cops and let them deal with it … the quid pro quo would I suppose be that if the call was unjustified the parents would raise hell (they might anyway); and the threat of having the parents involved might make the kid fess up if actually guilty. That way no rights get violated and cheaters can’t act with impunity. I agree that I can’t think of a situation in which giving teachers the power to strip search kids is a good idea. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 26, 2009, 2:25pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/62 "2009-06-26T14:25:54Z")
> [@Malthus](#): > > I supppose in matters of suspected academic cheating, the school could call in the parents rather than the cops and let them deal with it … the quid pro quo would I suppose be that if the call was unjustified the parents would raise hell (they might anyway); and the threat of having the parents involved might make the kid fess up if actually guilty. That way no rights get violated and cheaters can’t act with impunity. > > I agree that I can’t think of a situation in which giving teachers the power to strip search kids is a good idea. Has the discussion moved away from “what is Constitutional?” to “what is a good idea?” Thomas’ job is to interpret the Constitution. A bad idea may well be Constitutional; a good idea may not be one that’s compelled by the Constitution. Almost all of the posts above are discussing what the rules should be. I don’t see too many people discussing what the Constitution compels… which is odd in a thread supposedly arguing that Thomas’ interpretation is flawed. ---
**Author:** ![Hentor\_the\_Barbarian](https://avatars.discourse-cdn.com/v4/letter/h/8edcca/32.png) [@Hentor\_the\_Barbarian](https://boards.straightdope.com/u/Hentor_the_Barbarian)\ **Post date:** [June 26, 2009, 2:34pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/63 "2009-06-26T14:34:20Z")
> [@Bricker](#): > > Has the discussion moved away from “what is Constitutional?” to “what is a good idea?” > > Thomas’ job is to interpret the Constitution. A bad idea may well be Constitutional; a good idea may not be one that’s compelled by the Constitution. > > Almost all of the posts above are discussing what the rules should be. I don’t see too many people discussing what the Constitution compels… which is odd in a thread supposedly arguing that Thomas’ interpretation is flawed. Thomas offered an opinion apparently so conservative that even this court disagreed with it. Res ipsa loquitur. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [June 26, 2009, 2:40pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/64 "2009-06-26T14:40:43Z")
> [@Bricker](#): > > Has the discussion moved away from “what is Constitutional?” to “what is a good idea?” > > … > Almost all of the posts above are discussing what the rules should be. I don’t see too many people discussing what the Constitution compels… which is odd in a thread supposedly arguing that Thomas’ interpretation is flawed. I think it’s still a question of constitutional law. If a state-run school has rules such as “no cheating” or “a drug-free school” which go beyond laws that apply equally to all people, but only apply to students while at the school, then might be constitutional questions that don’t apply to police searches to enforce ordinary laws. Presumably, according to all the justices in in this case, there are times when school staff can search students with reasonable grounds for suspicion – though the justices disagreed on exactly when they can. But can ordinary police officers be brought in to enforce matters purely of school discipline (such as possessing drugs which would be legal outside the school, but which are contrary to a school rule)? And, if they can, are they subject to the same constitutional limitation about “reasonable grounds”? (So that, if it was not reasonable for the school staff to search this student, there would be no point in calling in a police officer, as has been suggested by some above, since it would not be reasonable for the police officer to search – or at least, the only point would be to get a second expert opinion about “reasonable grounds”.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 26, 2009, 2:45pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/65 "2009-06-26T14:45:48Z")
> [@Hentor\_the\_Barbarian](#): > > Thomas offered an opinion apparently so conservative that even this court disagreed with it. Res ipsa loquitur. It’s not “conservative” vs. “liberal.” (Or as you might have it, “conservative” vs. “very very conservative.”) I just had occasion to write about _County of Riverside v. McLaughlin_ in another thread. In that case, the Court decided that the Fourth Amendment’s probable cause determination requirement was satisfied by bringing an arrestee before a magistrate within 48 hours (longer if a weekend or holiday was involved). “Conservative” Justice Scalia dissented, saying that the Fourth Amendment derived from the common-law rule and that in no circumstances could he see that rule permitting more than 24 hours. Why did the much-reviled Scalia come down on the side of defendant’s rights? Was he consumed by a passing flash of liberal pity for the accused criminal? No – he simply methodically applies his method of constitutional interpretation, which doesn’t allow for the courts to fashion Constitutional law out of just anything, which is what this 48 hour/weekend/holiday rule was doing. He felt it was the simple requirement to get the accused in front of a magistrate as quickly as possible, period. So it’s not enough, in my view, to say, “Hey, Thomas, a known conservative, stands alone in a conservative-leaning court, so he must have been wrong.” It’s better to answer specifically WHY he was wrong. ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [June 26, 2009, 2:48pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/66 "2009-06-26T14:48:43Z")
> [@Bricker](#): > > Has the discussion moved away from “what is Constitutional?” to “what is a good idea?” > > Thomas’ job is to interpret the Constitution. A bad idea may well be Constitutional; a good idea may not be one that’s compelled by the Constitution. > > Almost all of the posts above are discussing what the rules should be. I don’t see too many people discussing what the Constitution compels… which is odd in a thread supposedly arguing that Thomas’ interpretation is flawed. The subject of the pitting was Thomas’ logic in the following: > [@](#): > > “The reasonable suspicion that Redding possessed the pills for distribution purposes did not dissipate simply because the search of her backpack turned up nothing. It was eminently reasonable to conclude that the backpack was empty because Redding was secreting the pills in a place she thought no one would look,” Thomas wrote. I’ve already said my bit - namely, that if there was “reasonable suspicion” that constitutionally justified the search in the first place, there is nothing wrong with Thomas’ logic, and to that extent the pitting is unjustified. The problem, of course, is whether there is consitutional justification for such a search in the first place. I’m no expert on this, and it appears an area fraught with difficulties; I find it hard to understand how it would be justified. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [June 26, 2009, 3:20pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/67 "2009-06-26T15:20:16Z")
> [@XWalrus2](#): > > You don’t think kids already know that the safest place to keep the weed is your asscrack? Of course they did, but now that hiding place has been identified by the SCOTUS as off limits for the school to search. If the school does find your weed, the search would be ruled unconstitutional. All I’m saying is, if the suspicion is such that the school can compel a search, there shouldn’t be an automatic safe hiding place for your contraband. ---
**Author:** ![The\_Lurker\_Above](https://avatars.discourse-cdn.com/v4/letter/t/dc4da7/32.png) [@The\_Lurker\_Above](https://boards.straightdope.com/u/The_Lurker_Above)\ **Post date:** [June 26, 2009, 3:24pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/68 "2009-06-26T15:24:22Z")
> [@Bricker](#): > > Almost all of the posts above are discussing what the rules should be. I don’t see too many people discussing what the Constitution compels… which is odd in a thread supposedly arguing that Thomas’ interpretation is flawed. If you’ll allow a foreign non-lawyer to take a crack at it… It is my understanding that the american constitution protects against unreasonable searches (by government agents); therefore to say that the schools actions are unconstitutional you’d have to show 2 things. 1) the search was unreasonable 2) the school officials were government agents. I think that the search is unreasonable (from my layman’s perspective) since it was so intrusive for the trivial nature of the ‘offense’ and the cause was, as I understand it, a tip from a fellow student. That the school officals were government agents seems to be on slightly less solid grounds. They certainly didn’t seem to be acting as private citizens; I think private citizens involuntarily stripping 13 year old girls is illegal and usually prosecuted pretty aggressively. The best argument for calling them government agents is similar to the argument that public school officals cannot compell prayer since that would be a government favouring/establishing a religion. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [June 26, 2009, 3:33pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/69 "2009-06-26T15:33:59Z")
> [@Harborwolf](#): > > I’m wondering about this as well. How is a school administrator allowed to perform a strip search in the first place. They’d be better served simply holding the child in the office under watchful eye until the police showed up. The idea that school officials are allowed to act in such a fashion strikes me as somewhat non-kosher.😕 Any of our resident legal eagles care to comment on the powers granted to school employees? As **Cheesesteak** mentioned, school officials **are** “agents of the state,” but only have to have a “reasonable suspicion” to conduct a search. Because of this lower standard, most administrators (and school deputies) would rather have a vice-principal conduct a search. A general guideline to what is or is not kosher can be found [here](http://www.ed.gov/offices/OSDFS/actguid/searches.html). I believe the relevant precedent was established in _New Jersey v T.L.O._ 469 US 325 (1985). ---
**Author:** ![Phatlewt](https://avatars.discourse-cdn.com/v4/letter/p/a698b9/32.png) [@Phatlewt](https://boards.straightdope.com/u/Phatlewt)\ **Post date:** [June 26, 2009, 3:35pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/70 "2009-06-26T15:35:39Z")
> [@Cheesesteak](#): > > All I’m saying is, if the suspicion is such that the school can compel a search, there shouldn’t be an automatic safe hiding place for your contraband. There isn’t. A school administrator just can’t go looking up your ass to find it on a whim. ---
**Author:** ![Malthus](https://avatars.discourse-cdn.com/v4/letter/m/85f322/32.png) [@Malthus](https://boards.straightdope.com/u/Malthus)\ **Post date:** [June 26, 2009, 3:43pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/71 "2009-06-26T15:43:52Z")
> [@Phatlewt](#): > > There isn’t. A school administrator just can’t go looking up your ass to find it on a whim. It strikes me as odd that they can look up your ass at all. I’m not an American, but I’d have thought that only people like the cops or customs officials could do that. Though I see by the accompanying links that school officials do indeed have that power. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [June 26, 2009, 3:55pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/72 "2009-06-26T15:55:33Z")
AIUI, the original search of the girl’s backpack was consented to. Escalating to a search of her person strikes me as problematic in the extreme. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [June 26, 2009, 4:02pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/73 "2009-06-26T16:02:45Z")
> [@ArchiveGuy](#): > > That sounds an awful like like Guilty until Proven Innocent.. This. They did a questionable search and found nothing. What’s next? Do they beat a confession out of her? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 26, 2009, 4:22pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/74 "2009-06-26T16:22:39Z")
> [@kaylasdad99](#): > > AIUI, the original search of the girl’s backpack was consented to. Escalating to a search of her person strikes me as problematic in the extreme. Why is it problematic? What provision of the Constitution is offended? Why is one type of search OK and another not? ---
**Author:** ![Grumman](https://avatars.discourse-cdn.com/v4/letter/g/43a26b/32.png) [@Grumman](https://boards.straightdope.com/u/Grumman)\ **Post date:** [June 26, 2009, 4:24pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/75 "2009-06-26T16:24:40Z")
> [@Cheesesteak](#): > > All I’m saying is, if the suspicion is such that the school can compel a search, there shouldn’t be an automatic safe hiding place for your contraband. I think this is a cure that’s worse than the disease. I can’t imagine anything a student could be hiding that would justify giving schools such easily abused power. > [@Bricker](#): > > Why is it problematic? What provision of the Constitution is offended? Why is one type of search OK and another not? Because one type of search was consented to and the other wasn’t, and one type of search is far more invasive than the other? ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [June 26, 2009, 4:30pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/76 "2009-06-26T16:30:15Z")
> [@Bricker](#): > > Why is it problematic? What provision of the Constitution is offended? Why is one type of search OK and another not? Surely you know the answers to these questions. Or is this some attempt to teach the little grasshoppers via socratic method, by expecting them to articulate arguments you already know? You may not _agree_ with them, but unless you’ve recently sustained a severe head injury, you know them. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 26, 2009, 4:35pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/77 "2009-06-26T16:35:20Z")
Some flaws I see in Thomas’ opinion (and I do think that the fact he is a sole dissenter certainly adds credence to the idea that his view is less than reasonable): 1. His insistence that the clear precedent is wrong. "This deep intrusion into the administration of public schools exemplifies why the Court should return to the common-law doctrine of in loco parentis under which “the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order.” Just as in Morse, Thomas would roll back almost all Supreme Court precedent on students’ Constitutional rights, in favor for his “in loco parentis” doctrine that would allow schools to do … well pretty much anything a parent can do to a student. In that sense, it is just another case of Thomas being Thomas. Thank heavens his viewpoints on precedent and the Constitution consistently leave him in the minority. 1. His quotation of the relevant caselaw (“a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction”) only to go onto all but completely ignore it. It’s like he’s a One L who memorizes the appropriate language from the case … and then does nothing even close to it. 2. I cannot read his opinion without doing it in the voice I also use for Starving Artists’ posts, the curmudgeoning old guy yelling at the kids to get off his lawn. Whether it is his overstating the risks of ibuprofen in schools, or his nostalgiac recollection of the good old days back when the country was founded when teachers could whip students for insolence, it’s little more than a rant from a rabid right wing conservative. 3. Finally, and most importantly, the idea that asking a girl to move the elastic on her bra and underwear to find a pill is a “reasonable” search based only on the word of a fellow student and after the less intrusive part of the search had revealed nothing is, in and of itself, silly. But the idea that Thomas would advocate that the schools has the power to search for that object in “the areas where the object of that infraction could be concealed”, which, to me, wouldn’t just cover moving elastic, but also complete strip and anal cavity search. That just shocks my conscience. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [June 26, 2009, 4:36pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/78 "2009-06-26T16:36:51Z")
> [@Jodi](#): > > Or is this some attempt to teach the little grasshoppers via socratic method? No matter how many times he’s urged to cut that shit, he just can’t do it. ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [June 26, 2009, 5:09pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/79 "2009-06-26T17:09:35Z")
> [@ElvisL1ves](#): > > No matter how many times he’s urged to cut that shit, he just can’t do it. I was and am unaware of a pattern, I just found this one post a little odd given his background. If I have inadvertently stuck my toe in a roiling pool, consider said toe withdrawn. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 26, 2009, 5:45pm UTC](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979/80 "2009-06-26T17:45:02Z")
> [@Jodi](#): > > Surely you know the answers to these questions. Or is this some attempt to teach the little grasshoppers via socratic method, by expecting them to articulate arguments you already know? You may not _agree_ with them, but unless you’ve recently sustained a severe head injury, you know them. What I agree with is entirely irrelevant. It bugs me that Justice Thomas is being criticized for his dissent without very much, if any, actual critique of the dissent. As it happens, I don’t agree with him either, but how can you claim that his dissent was foolish/idiotic/whatever without addressing its merits? Or hell, let’s just be honest, and say that this thread is an invitation to bash Justice Thomas because we just don’t like the sonovabitch. Let’s not cloak it in the garb of analysis at all. [Previous page](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979.md?page=3) [Next page](https://boards.straightdope.com/t/clarence-thomas-facts-do-not-overrule-suspicions/500979.md?page=5)