On Insensitive Comments and Being 16 and Stupid

Recently an Austin radio talk show was canned because one of the hosts used a derogatory term for Mexican-Americans about 30 times. This illustrates the axiom that my right to free speech ends at the point that it impacts my employer's profits. However, it makes me think back to some of the stupid things that I did or tolerated when I was a lot younger.

I was a smartass when I was in high school. If someone had been following me around with a video camera, my future would have been in doubt. In particular, I remember two moments during my high school years.

My male history teacher made a comment about how women achieved the vote and then voted in Warren G. Harding, one of the most corrupt and incompetent presidents in history. I repeated this statement to one of my female teachers and reached a look which could kill. To me, this fell within my absurdist view of life (which I have not completely abandoned according to a recent Facebook quiz). To me, it was a Nelson Muntz "Ha Ha" moment. However, to my feminist teacher, I was demeaning one of the most important achievements in women's rights. I never saw it coming.

Another time, a classmate mine told a joke involving Jews. I won't repeat it because it is too offensive. I didn't repeat the joke and I don't think I laughed at it. However, I didn't condemn it. This was partly because in high school, you expect the outrageous. However, it was also because Jews were not real to me. The only Jewish person that I knew was my scoutmaster, Captain Warshawsky. He was a figure of strength. Thus, Jews were just people who went to another church. It is as though someone had threatened to exterminate all Methodists. It wasn't something that registered with me at that time. Intellectually I knew about the holocaust. However, emotionally it could just as well have involved martians.

With the perspective of 30 years after high school, I see things a bit differently. I am the parent of two daughters. I want them to be treated the same as their male classmates. I want them to succeed. I work for a law firm in which all the partners are Jewish. I have been to Seder observances and have sat shivah. Being Jewish is real to me now. The horror of the holocaust is real to me now. By the same token, now that I have Ukrainian friends, the horror of the Holodymyr (the terror famine of 1932-33) is real to me now.

Everyone is entitled to be young and stupid at some point in their lives. However, the real question is whether you can stay 16 forever. Judgment comes from experience. As you grow older, you meet people who are not like you and you come to understand other people's stories. Once that happens, it is no longer acceptable to act as is if you were young and stupid. Once you have the capacity to understand someone different than yourself, you have to act as though the world is bigger than yourself. At that point, ignorance is no longer an excuse. Although I didn't actually listen to the disputed radio show, I can imagine the host as a naughty 16 year old saying a bad word over and over the shock value. However, you don't get to stay 16 and ignorant for ever.

How a Frightened 13 Year Old Became a Hero of Freedom

Today on the Fourth of July we celebrate freedom from arbitrary government action. This year freedom has a new champion, a former middle school student named Savana Redding who didn’t like having her underwear searched by school officials. The Supreme Court recently ruled that the strip search violated her constitutional rights. As a result, public school students are now protected from having their most intimate areas searched on the flimsiest of pretexts.

Savanna was an unlikely person to make constitutional law. At the time, she was a 13 year old honor student with a 4.0 average who took advanced math class, was on the yearbook committee and participated in the knowledge bowl. In short, she was a nerd. However, she did have a friend named Marissa who was bad news. Marissa was implicated by another student for giving him a pill which made him sick. When Marissa was searched, she was literally covered in contraband. She had prescription strength ibuprofen and an over the counter anti-inflammatory, as well as a day planner containing knives, a permanent marker and a lighter. Marissa identified the planner as belonging to Savana and said that she had gotten the pills from her as well.

This set the stage for Savana to be searched. She admitted that the planner was hers, but didn't know anything about the contents. The initial search confirmed Savana's story that she was innocent. They looked in her backpack, but didn’t find anything. Then they had her empty out her pockets, where they didn’t find anything. Having failed to find anything, the Asst. Principal came to the only possible conclusion: that she must be hiding contraband in her underwear. The school nurse and a female administrative assistant took Savana into an office and made her take off her outer clothes and then pull out her bra and underpants. Not surprisingly, it turned out that Savana was not concealing contraband in her underwear.

After having been held for 2 1/2 hours, Savana was finally allowed to call her mother, while the school secretary sat next to her listening to every word. Savana was very embarrassed by the whole experience. Her mother got angry and demanded an explanation. At that point, the school claimed that they had had their eyes on Savana because she was part of "an unusually rowdy" group at a school dance. When her mother pointed out her exemplary record, the school officials became evasive.

When she didn't get any answers from the school, Savana's mom filed suit. The first judge to hear the case didn’t see anything wrong with the search and tossed the case out, setting the stage for a trip to the Supreme Court. Fortunately, the Supreme Court had a little more common sense. In an opinion by Justice Souter, they ruled that a generalized suspicion of possession of ibuprofen does not justify a strip search. While school officials were perfectly justified in searching Savana’s backpack and outer clothing, the invasive underwear search was unreasonable and just plain stupid (although the reserved Justice Souter did not use those precise words).

The Judge recognized that a strip search of an adolescent girl was not something to be undertaken lightly.

Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. . . . The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be.

Under prior Supreme Court precedent, a search is permissible when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Justice Souter reasonably held that generalized concerns that students might hide contraband in their clothing did not justify a strip search. He stated:

But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana;
if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.

In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.

Thanks to Savana, middle school girls are now safe from unwarranted searches of their underwear by overzealous assistant principals. The only question is why it took a trip to the Supreme Court to point out the obvious.

Post-script: Savana was kind enough to respond to a message and provide me with some more details from her experience. As a result, I have revised this article from the original version. What makes this all the more shocking to me was that Savana was a good kid who was wrongly implicated and treated like a criminal. I have a daughter who is entering 8th grade. If she was forced to endure this treatment, I would have been outraged as well.

The Story of Alex's Stuff: A Cautionary Tale for the Internet Age

Last year, a federal obscenity trial was underway when the Los Angeles Times made a startling revelation. It seems that the judge presiding over the trial maintained a website with pornographic pictures on it. A mistrial was declared and an investigation was commenced. Now that the investigating committee has released its report, the actual facts are a lot tamer than they originally appeared. However, it makes for a good cautionary tale about privacy in the internet age.

Alex Kozinski is a federal judge. As a matter of fact, he is the chief judge of the Ninth Circuit Court of Appeals. Sometimes appeals judges are assigned to conduct trials. When Judge Kozinski was tasked with conducting an obscenity trial, he found that his personal computer files received a lot of attention. It turns out that Judge Kozinski, like most people, receives email. Back in the dial up age, it took a long time to download attachments from emails. Because of this, Judge Kozinski set up a folder on his personal computer to store email attachments. He called this folder "stuff." Like many of us, Judge Kozinski sometimes received colorful emails. Some of the files downloaded to the "stuff" file included a naked woman on all fours painted like a cow and a half-naked man with a sexually excited farm animal. No doubt, someone thought these pictures were funny. The email attachments, whether innocuous or ribald, all went into the "stuff" folder.

At some point, Judge Kozinski decided that it would be good to be able to access his personal computer files from the internet. His son, who was more computer savvy than he, set up a website, alex.kozinski.com. This way, the good judge could access his files from the internet. This was not a website in the traditional sense. It had no home page. It was just a way to get to his home computer. Unfortunately, the general public could get to this home computer as well. Things began to unravel when Judge Kozinski sent a video of himself bungee-jumping to a blog. Rather than posting the video, the blog posted a link to the judge's website. As a result, the general public could figure out that there was a website called alex.kozinski.com that contained the judge's files.

The judge and his computer savvy son took steps to try to protect his privacy. One thing they did was to put up a notice on the opening page saying "Nothing to see here pardner, move along." However, they were ultimately unsuccessful. As a result, a lawyer who was unhappy with the judge managed to penetrate his ineffective security measures and notified the newspaper. On June 11, 2008, the Los Angeles Times published an article entitled “9th Circuit’s Chief Judge Posted Sexually Explicit Matter on His Website.” The article stated that the Judge, “who is currently presiding over an obscenity trial in Los Angeles, has maintained a publicly accessible website featuring sexually explicit photos and videos.”

To his credit, the judge did the right thing. He declared a mistrial in the criminal case and reported himself to the federal judiciary to be investigated. The investigation ultimately concluded that he had failed to heed repeated warnings that his personal files were at risk, but that he had taken responsibility after the email attachments hit the fan. The judge had to hire a lawyer and give testimony under oath. He had to explain why he didn't delete certain files that the public might find prurient. In the end, it was no doubt expensive and embarassing for the judge.

However, for the general public, the message is clear. Whether it is incriminating photos on myspace or email attachments stored on a personal website, very little is private once it hits the worldwide web. While you may regret it, you can't always make it go away. If someone is unhappy with you or just curious, you could find yourself, like Judge Kozinski, facing a lot more attention than you would like.