It didn’t take long for today’s U.S. Supreme Court arguments in a case about the strip-search of a middle school student by school officials looking for drugs to delve into extreme hypotheticals.
Chief Justice John G. Roberts Jr. wanted to know whether upholding the search at issue in Safford Unifed School District v. Redding (Case No. 08-479) would lead to school officials conducting the type of searches faced by “prison inmates,” as he delicately put it.
After some back and forth establishing that they were talking about body-cavity searches, Matthew W. Wright, the lawyer representing the Safford, Ariz., school district, said he was not seeking a rule that would go that far.
Body-cavity searches in schools are “something the court can say is clearly off-limits,” Wright said, adding later that such searches are not something school officials are trained to conduct.
But Wright very much defended the right of school officials to conduct the type of strip-search at issue with Savanna Redding.
The young woman 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. (See previews in Education Week here and in the blog here. UPDATE: The argument transcript is here.)
Wright told the court that school officials were seeking a “bright-line rule” that once they have a reasonable suspicion that a student may possess drugs (the basic school search standard from the Supreme Court’s 1985 decision in New Jersey v. T.L.O.), then a strip-search would be permissible.
School administrators “have to be able to act immediately and flexibly” to such reasonable suspicions about student drug use, Wright said.
The surprise today was that in addition to the court’s conservatives, some more moderate to liberal justices seemed receptive to Wright’s arguments.
Justice Stephen G. Breyer, a moderate who often expresses sympathies for educators, even questioned whether Savanna Redding’s treatment amounted to a strip-search, since she never had to completely disrobe.
“I’m trying to work out why this is a major thing, to say ‘Strip down to your underclothes,’ which children do when they change for gym, they do fairly frequently ...” Justice Breyer said to the Adam B. Wolf, the lawyer representing Redding and her mother, who challenged the search as unreasonable under the Fourth Amendment.
Wolf earlier had said, “The Fourth Amendment does not countenance [school officials] rummaging on or around a 13-year-old student’s body.”
Justice Ruth Bader Ginsburg appeared the most troubled by the school officials’ conduct. She asked Wright about why after conducting the search, school officials made Redding sit in a chair outside the assistant principal’s office for over two hours.
“What was the reason for putting her in that humiliating position?” Ginsburg wondered. Wright said school officials were still carrying out their investigation of the drug rumors.
A U.S. Department of Justice lawyer sought to explain the middle ground it outlined in a friend-of-the-court brief. David O’Neil, an assistant to the U.S. solicitor general, told the justices that “intrusive body searches” should only be permitted at school when officials have information that the student is hiding contraband under his or her clothes.
“We believe that without some particularized suspicion or some specific indication that this, the location, was a likely one to contain the drugs, that this search was excessively intrusive,” O’Neil said.
But the department said the officials involved in Redding’s search should have been granted qualified immunity from personal liability, which the assistant principal was denied in a 6-5 vote of the panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco. That court voted 8-3 in last year’s decision that the search of Redding violated the Fourth Amendment.
But both O’Neil and Wolf, the student’s lawyer, seemed to have trouble in persuading the justices for a broad rule against all strip-searches in schools.
Justice David H. Souter, a usually reliable liberal vote on the court, parried with Wolf at length, wondering if he were in the shoes of a school principal, whether it would be reasonable to conduct a strip-search that might embarrass a student in exchange for preventing a potentially dangerous or lethal problem with drugs.
“In the hypo I gave, the risk of the mistake may wll be violent sickness or death,” Justice Souter said. “And the ... reasonable analysis in the principal’s mind is, ‘better embarrassment than violent sickness or death.’”
A version of this news article first appeared in The School Law Blog.