Published Online: April 28, 2009
Published in Print: April 29, 2009, as Strip-Search Case Testing Balance Between Privacy, Student Safety

Strip-Search Case Testing Balance Between Privacy, Student Safety

As it weighs the high-profile case of a 13-year-old girl strip-searched at school, the U.S. Supreme Court is grappling with where to draw the line between protecting student privacy rights and allowing school officials to take steps to ensure a safe environment.

During oral argumentsRequires Adobe Acrobat Reader last week, several of the justices seemed sympathetic to the challenges schools face in combating drug use—the motive for the search in an Arizona district—but it remained unclear how far they might go in allowing administrators discretion to conduct strip-searches.

Justice David H. Souter said that "at some point it gets silly" if school officials are searching for something like an aspirin tablet—in the case in question, the student was suspected of possessing prescription-strength ibuprofen.

But he and other justices also seemed to suggest that administrators need considerable leeway to strip-search students, especially if there is a risk that students are taking dangerous drugs.

"[T]he thought process in the principal’s mind is, ... better embarrassment than violent sickness or death," Justice Souter said during the April 21 arguments.

The case, Safford Unified School District v. Redding (Case No. 08-479), presents two questions of keen interest to administrators: whether school officials went too far in strip-searching the student, and whether the official who ordered the search can be sued for damages as a result.

What’s at Stake

The U.S. Supreme Court is being asked to rule on two issues in Safford Unified School District v. Redding:

1. Whether public school officials violated the Fourth Amendment rights of Savana Redding by asking her to submit to a strip-search after they suspected she possessed prescription-strength ibuprofen in violation of school rules.

2. Whether the school official who ordered the search is entitled to “qualified immunity” and is free from being sued for damages.

The case is on appeal from the U.S. Court of Appeals for the 9th Circuit, which ruled last summer that Ms. Redding’s rights were violated and that the school official who ordered the search could be sued.

Oral arguments before the Supreme Court were held April 21; a final decision is expected by June.

The U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruledRequires Adobe Acrobat Reader 8-3 last July that school officials, acting “contrary to all reason and common sense,” violated 8th grader Savana Redding’s Fourth Amendment right to be free from an unreasonable search and seizure. The legal threshold is higher for a strip-search than for the search of a student’s pockets or backpack, the appeals court reasoned, and the evidence presented in this case did not justify the more invasive search.

In addition, by a vote of 6-5, the appeals court held that the assistant principal who ordered the strip-search was not entitled to "qualified immunity" from liability in the lawsuit.

The case stems from a 2003 search at Safford Middle School in southeastern Arizona, which took place amid suspicion that Ms. Redding, an honors student, possessed prescription-strength ibuprofen tablets, a violation of the school’s anti-drug policy. Ibuprofen is an anti-inflammatory drug used to relieve pain and fever.

No such pills were found on Ms. Redding, who, at school officials’ request, stripped down to her undergarments in the school nurse’s office. She pulled away her underpants and bra from her body and shook them as two female personnel, including the nurse, looked on.

Infuriated by the strip-search and apparently dissatisfied with school officials’ explanation, the student’s mother, April Redding, filed suit against the 2,750-student Safford district as well as the school officials directly involved.

How Much Leeway?

In his Supreme Court argument last week, Adam B. Wolf, a lawyer for the American Civil Liberties Union representing the Redding family, said that school officials went too far.

Mr. Wolf said school officials should not be allowed to search the undergarments of a student unless there is reasonable suspicion that contraband is hidden there, and that there was not reasonable suspicion in this case.

"Anything else would send a shudder down the spines of little boys and girls across the country," he said.

Justice Anthony M. Kennedy pressed Mr. Wolf on whether the threshold for a strip-search might be different if school officials had suspected the student of hiding a more obviously dangerous substance, such as methamphetamines.

"[Y]ou don’t mind our deciding the case as if this were a search for meth that was going to be consumed at noon?" Justice Kennedy asked.

"That’s correct, your honor," Mr. Wolf replied, while emphasizing his belief that the key issue was that "there was no suspicion that these objects were going to be found inside Savana’s undergarments."

For his part, Matthew W. Wright, the lawyer representing the Safford Unified School District and the local school employees involved, told the justices that administrators "need the flexibility to act immediately and effectively to keep kids safe."

He urged the court to establish a "bright-line rule" making clear that if school officials have reason to suspect a health and safety risk to students, then "searching any place where that contraband may be reasonably hidden is constitutionally permissible."

But several justices raised concerns about how far school officials might take such authority, and asked, in particular, whether those officials could conduct a search of "body cavities."

"Any place?" Chief Justice John G. Roberts Jr. asked Mr.Wright. "I mean, prison inmates, for example are subject to much more intrusive searches."


Mr. Wright said he would oppose allowing searches of body cavities by school officials. But Justice Souter voiced his worry that the same reasoning employed in the Arizona case might also lead others to cite it as a precedent to permit such searches.

Mr. Wright conceded that, under the standard he suggested to the court, such a search would be "technically" legal, but said that the extent of a search "would be controlled by the community" and the local school board. He argued that communities would never sanction such an intrusive search.

And he added: "I can say this to the court: You will not restrict or in any way inhibit the discretion of an administrator by saying you can’t go there on a body-cavity search, nor would they want to, nor are they clinically trained to."

David O’Neil, a U.S. Department of Justice lawyer appearing on behalf of the Obama administration, argued during the hourlong hearing that Ms. Redding’s rights had been violated in the case.

"Intrusive body searches in the school context ... require greater justification under the Fourth Amendment," he said.

Echoing Mr. Wolf, he said school officials must suspect not only that the student possesses the drug, but also that it is hidden in a place where it could be revealed through such an invasive search.

But a few justices seemed skeptical.

"Your logic fails me," said Justice Antonin Scalia, suggesting that if there is enough suspicion to search the outer garments of a student, it would follow that such suspicion would also merit a more intrusive search.

Justice Samuel A. Alito Jr. asked if Mr. O’Neil’s argument meant school officials needed "direct evidence" to proceed.

"Somebody has to say, ... that’s where it is?" Justice Alito asked.

Mr. O’Neil said the administrators need some "particularized suspicion" to go forward with a strip-search.

Officials’ Immunity

Although most of the discussion during the oral arguments focused on the Fourth Amendment issue, Chief Justice Roberts also addressed the question of whether the assistant principal should have what is known as qualified immunity.

Lawyers for the federal government, while agreeing with the Redding family that the strip-search was not justified, have argued that the administrator should have such immunity from legal liability because the illegality of the search was not established at the time it was conducted.

"Can we take that off the table?" the chief justice asked Mr. Wolf, the lawyer for the Reddings. "I mean, we have got 6-5 in the Ninth Circuit [against qualified immunity], disagreement throughout in this case, and yet you say the rule is so clearly established that you can make these school officials personally liable."

Mr. Wolf replied: "Your honor, I don’t think a head count of the judges is the standard by which this court measures qualified immunity."

For his part, Mr. Wright, the Safford district’s lawyer, argued that the assistant principal, Kerry Wilson, should be protected.

"Mr. Wilson, in this case, certainly could have believed that the Constitution permitted [the strip-search], Mr. Chief Justice, so immunity is a foregone conclusion in my opinion," the lawyer said.

Qualified immunity is a legal doctrine established by the Supreme Court under which government officials are personally immune from being sued unless they violated clearly established constitutional or statutory rights about which a reasonable person would have known.

Key Decision in 1985

The legal debate in the Safford, Ariz., case draws heavily on a 1985 decision by the high court in New Jersey v. T.L.O., which outlined standards for physical searches of students and their closed purses or other personal bags.

It found that "the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject." In the T.L.O. case, an administrator had searched the purse of a girl suspected of violating a rule against cigarette smoking and had found marijuana and other evidence of drug dealing.

The ruling spelled out a "reasonableness" standard—less rigorous than "probable cause"—for assessing the legality of searches of individual students conducted by school officials. First, the ruling said, the search "must be justified at its inception." And second, it must be "reasonably related in scope to the circumstances which justified the interference in the first place."

In the Safford case, officials argued they had good reasons for the search.

According to court papers, officials said another student who was discovered with prescription-strength pills said she had obtained them from Ms. Redding. They also said that, at a school dance a couple of months before, members of the school staff said they had detected the smell of alcohol among a small group of rowdy students that included Ms. Redding. And a third student reported that alcohol had been served at a party at Ms. Redding’s home before the dance.

Also, the assistant principal indicated that he recalled at least two other occasions when a student was harmed by taking pills distributed on campus.

A ruling in the case is expected by June.

Vol. 28, Issue 30, Pages 1,14-15

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