Analysis: Strip-Search Decision Adds Clarity for Students and Schools

By Mark Walsh — June 25, 2009 4 min read
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The U.S. Supreme Court had a surprising degree of unanimity today in ruling that the strip-search of a middle school student by school officials looking for drugs was unconstitutional.

“Here, the content of the suspicion failed to match the degree of intrusion,” Justice David H. Souter wrote for the majority in Safford Unified School District v. Redding. It was Souter’s final opinion in an education case, and perhaps his last opinion overall, before he steps down from the court in a few days.

All other members of the court but Justice Clarence Thomas joined Justice Souter’s opinion on the central issue of whether the strip-search violated the Fourth Amendment’s prohibition against unreasonable searches. That was somewhat of a surprise given the tenor of the April 21 oral arguments in the case, when the court’s conservatives appeared sympathetic to the school district and even moderate/liberal Justice Stephen G. Breyer seemed dismissive of the student’s privacy concerns.

In his dissent, Justice Thomas called the decision “regrettable,” and said the majority “has surrendered control of the American public school system to public school students ... by second-guessing swift disciplinary decisions made by school officials.” (He was in part quoting Justice Hugo Black’s dissent in the 1969 student free speech case Tinker v. Des Moines Independent Community School District.)

The justices examined a ruling last year by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that the search of an 8th grader by school authorities looking for prescription-strength ibuprofen pills violated the student’s rights under the Fourth Amendment.

A en banc panel of the 9th Circuit court ruled 8-3 that officials at an Arizona middle school “acted contrary to all reason and common sense as they trampled over” the privacy interests of Savana Redding. By a separate vote of 6-5, the panel held that the assistant principal who ordered the strip-search was not entitled to qualified immunity from personal liability in the student’s lawsuit.

Today, the Supreme Court ruled 7-2 that the assistant principal and two other officials were entitled to qualified immunity because of a lack of clarity in lower-court rulings about whether strip-searches violated the Constitution. Justices John Paul Stevens and Ruth Bader Ginsburg, who joined Justice Souter’s opinion on the main question of the legality of the search, each issued opinions saying they would have denied qualified immunity to the school officials.

The young woman at the center of the case was a 13-year-old student in 2003 when an assistant principal, relying on a student tip that Redding may have prescription-strength ibuprofen pills that she was distributing to other students, searched her backpack. When that turned up no pills, the assistant principal asked two female staff members to conduct a search of Redding’s undergarments. Redding says in court papers she had to shake her bra and panties to reveal whether she had hidden contraband in them. No pills were found in the search.

The key Supreme Court precedent on physical searches of students in public schools is New Jersey v. T.L.O. In that 1985 decision, the court upheld the search of a student’s purse for contraband and found that school searches are justified by a “reasonable suspicion” that laws or school rules were violated. Under the ruling, schools must show that a search was reasonable both at its inception and in its scope.

The Safford Unified School District had argued that the 9th Circuit court misapplied T.L.O., and that the strip-search of Savana Redding was justified at its inception because school officials had “reasonable grounds for suspecting that she was violating” the districts policies against drug possession.

The lawyers for Savana Redding had argued that the student “ended up naked and humiliated in front of her school officials,” for a search that was prompted by a questionable tip and which turned up no drugs.

Justice Souter and the majority today essentially agreed with Savana that school officials had no reason to believe that dangerous quanities of the drugs were being hidden in the girl’s clothing.

“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,” Souter wrote. “We think that the combination of these deficiencies was fatal to finding the search reasonable.”

While today’s decision is a defeat for school districts, which argued for greater leeway in searching students, it seems unlikely it will really turn over the operation of the schools to the students, as Justice Thomas suggested.

Justice Souter pointed out that the practice of strip-searching students has been viewed as so potentially harmful and fraught with liabilities that some communities, including the New York City school system, have barred school personnel from carrying them out under any circumstances.

And Souter said the majority meant “to cast no ill reflection on the assistant principal,” who was motivated by a desire to eliminate drugs and protect students.

The Supreme Court did remand the case to the 9th Circuit to consider whether the Safford school district has any liability in the case.

A version of this news article first appeared in The School Law Blog.