Authority Figures Going Way Too Far

Two cases in federal court demonstrate a shockingly arrogant attitude by government officials toward 13 year old girls in their undergarments. In one case, a 13-year-old girl was forced to submit to a strip search based on vague suspicions that she might be concealing ibuprofen in her clothes or underwear. In another case, two girls who were photographed in their bras when they were 13 are being threatened with felony prosecution for child pornography. These cases show an unhealthy obsession with young girls' underwear and a police state mentality.

Savana and the Creepy Asst. Principal

On April 21, 2009, the Supreme Court will hear arguments in Safford Unified School District No. 1 v. Redding. In that case, middle school officials were concerned that students were bringing controlled substances onto campus. When a boy told authorities that he had received ibuprofen from a girl named Marissa, school officials searched Marissa, who was found to have prescription strength ibuprofen in her pockets. Marissa asserted that she had received the pills from Savana, an honor student with an unblemished record. Marisa also stated that she had borrowed a binder containing cigarettes, a lighter and knives from Savana.

The Asst. Principal called Savana into his office and asked her about the binder. Savana admitted that she had loaned the binder to Marissa, but that the contraband was not hers. The Asst.Principal then showed her the pills, which Savana denied knowing anything about. The Asst. Principal asked to search Savana's belongings, which did not turn up anything. At this point, the Asst. Principal asked two female employees to take Savana to the nurse's office and strip search her. Savana was forced to remove her clothes except for her underwear and then pull out her bra and underpants so that school employees could look inside. They did not find anything in their search.

Needless to say, Savana's parents were upset. When the school didn't see anything wrong with what happened, they filed suit. Amazingly, a district court judge and two court of appeals judges saw nothing wrong with the search. However, an opinion by the entire Ninth Circuit Court of Appeals reversed the decision, finding that Savana's constitutional rights had been violated.

The Supreme Court will be asked to decide whether students subject themselves to invasive and embarassing searches based upon the vaguest of suspicions. The School Board of Safford Unified School District #1 should be asking itself a more fundamental question: why would they employ anyone who is obsessed with the idea that 13 year olds might be hiding ibuprofen in their bras? Isn't this just insane? Once a search of the student's backpack and pockets failed to turn up anything incriminating, why would the Asst. Principal think that a search of a young girl's private areas was justified?

Sexting in Pennsylvania

Meanwhile, on a hot summer night, two 13 year old girls stripped down to their underwear. A friend took a photo of them in their bras as one talked on the phone and another one flashed a peace sign. Another girl was photographed topless while emerging from the shower. Two years later, school officials concerned about sexting began confiscating cell phones. The photos of the girls were found on the phones, along with other photos of girls who were nude, semi-nude or wearing bathing suits. These photos were passed on to District Attorney Skumanick.

The District Attorney sent a letter to the parents of 20 students: accept probation and successfully complete a re-education course or be charged with child pornography. All of the parents accepted the offer, except for the parents of the three girls shown in the photographs. They had neither made the photographs nor distributed them nor possessed them. The photographs did not fit any usual definition of pornography. In any reasonable sense of the word, these girls were the victims rather than the perpetrators.

Rather than giving in to intimidation, the parents of the three girls depicted in the photographs contacted the ACLU, which filed suit on their behalf. While any parent would concede that 13 year old girls should not allow themselves to be photographed without all of their clothes on, this case is just plain baffling. In order to protect underage girls from being exploited, the district attorney has threatened to prosecute the very girls whose images were distributed. This is no longer about protection, but retribution. The girls acted foolishly and the district attorney demands that they participate in a re-education process or face felony prosecution. The DA is on a power trip which would make Stalin nod with approval.

Summing It Up

These are two cases of 13 year old girls in their underwear. In one case, the school administration demands that an innocent girl strip down and be degraded. In another case, an overzealous prosecutor demands that girls be punished for failing to stay covered up. In both cases, the authority figures are the aggressors and the teenage girls are the victims. It is hard to admit this, but these are cases where the 9th Circuit and the ACLU are the good guys, protecting the privacy of young girls both innocent and risque.

How Not to Select a Judge

Texans get to vote for a lot of offices from President of the United States down to County Constables. Many elected officials, such as Governor, Lt. Governor, State Senator, State Representative, County Judge and County Commissioner set policy. When voting on these offices, voters choose between competing policies and philosophies as well as the merits of the individual. However, there are a whole raft of offices which do not set policy and where the main qualification is the ability to do the job. In a thoughtful editorial which ran in today's Austin American Statesman, Chief Justice Wallace Jefferson of the Texas Supreme Court reminds us that electing judges is a pretty random way to find qualified and impartial arbiters of the law. "You probably don't know me but . . .," Austin American Statesman, p. F3 (March 15, 2009).

Justice Jefferson is brutally honest about the fact that he could have been elected to his position despite being an incompetent boob merely because he was on the same ballot as John McCain. (For the record, Justice Jefferson is eminently well qualified, demonstrating that a flawed system, like a stopped watch, can be right some of the time). Despite the fact that he has been on the statewide ballot three times, 86% of Texans have "never heard of" him. How informed of a decision can voters make when only one in seven have even heard of the candidate?

The Republican primary elections for the Third Court of Appeals in Austin provide a good example of why electing judges is a bad idea. In 2002, Lee Yeakel was the Republican incumbent on the Third Court of Appeals. He was well respected as a judge and was active in the Republican Party, having served as Chairman of the Travis County Republican Party. As a result, he should have been a shoo-in to receive his party's nomination to run again. However, an unknown named Ken Law filed to run against him. In this case, the catchy name prevailed over the qualified judge. Justice Law turned out to be a mediocre judge and was defeated for re-election in 2008. Judge Yeakel's consolation prize was that he was appointed to be a United States District Judge in Austin, where he continues to enjoy an excellent reputation as a jurist.

In 2004, the Republican candidates for an open seat on the Third Court of Appeals were Ernest Garcia and Bill Green. Ernest had previously served as a Travis County District Judge and had been narrowly defeated for re-election despite running as a Republican in an overwhelmingly Democratic County. I don't remember who Bill Green was, so I can't really comment on his qualifications. In the same primary, there was a race between Steven Wayne Smith and Paul Green for the Texas Supreme Court. Justice Smith had been an unpopular judge and there was a concerted campaign by Republican leaders to unseat him. Unfortunately, some Republicans were confused about which Green to vote for (with perhaps a little prejudice against the Spanish-surnamed candidate thrown in) so that another qualified candidate was defeated by someone with a more generic name.

I practice in United States Bankruptcy Court. Our judges are appointed through a merit selection process. Positions are advertised so that anyone may apply. A merit selection committee composed of judges and practitioners reviews the applications and conducts interviews and then sends its recommendations to the Court of Appeals, which makes the appointment. It is a pretty good system. Nearly all bankruptcy judges had actually practiced bankruptcy law prior to being appointed and many were recognized as nationally prominent attorneys before being selected. While it would be difficult to replicate this particular merit selection system (with judges appointing judges) outside of a specialized court, it is an example of how merit selection delivers consistently qualified candidates.

Let's hope that Justice Jefferson gets some attention in his campaign for merit selection. However, this may be difficult, since 86% of the population has never heard of him.