This is the second in a series of previews of the three education cases being argued in the U.S. Supreme Court this month. The first post in the series, about the Horne v. Flores case, appeared on Monday.
A strip-search of a middle school student by school officials looking for prescription drugs sets the stage for one of the most important U.S. Supreme Court rulings in a quarter century on student rights and public school responsibilities.
The justices will hear arguments on Tuesday, April 21, in Safford Unified School District v. Redding (Case No. 08-479).
Education Week’s Erik W. Robelen has written this extensive preview story about the case. So I will add these observations.
The justices will examine 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.
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.
In its merits brief, the Safford Unified School District argues 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 9th Circuit has set a dangerous precedent in substituting its own judgment for that of the school officials,” the district’s brief says.
Not surprisingly, the school district is joined by a friend-of-the-court brief filed by the National School Boards Association and the American Association of School Administrators. They call on the justices to clarify the standard for searches of students under T.L.O. “that gives direction to educators on how properly to apply the justified-at-inception and the reasonable-in-scope prongs established in that case.”
The lawyers for Savana Redding say in their brief that she “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.
“One unreliable accusation that Savana possessed ibuprofen at some unspecified time in the past and in an unknown location did not provide sufficient reason to observe Savana’s genital area and breasts,” the brief says.
The National Education Association, the National Association of School Psychologists, and a handful of other groups filed a brief on the student’s side that stresses the detrimental effects of strip-searches of students.
“For adolescent youth, clinical evaluations of the [youth] victims of strip searches indicate that they can result in serious emotional damage, including the development of, or increase in, oppositional behavior,” such as dropping out, the brief says.
Also mostly on the student’s side is the U.S. solicitor general’s office, which filed this brief arguing that strip-searches of students are impermissible “unless [school] officials reasonably suspect not only that the student possesses contraband but also that it is hidden in a place that such a search will reveal.”
The search of Redding did not meet that standard, the U.S. brief says.
The solicitor general’s office parts company with the student’s lawyers, though, on the issue of qualified immunity for the assistant principal who oversaw the strip-search.
“The illegality of the search was not clearly established,” the U.S. brief says.
The 9th Circuit had said it should have been “self-evident” to the official that a strip-search would violate the Fourth Amendment. The Reddings’ lawyers defend that ruling in the Supreme Court, saying in their brief that “any school official should have known not to strip search a child unless, at the very least, there is suspicion that the child currently possesses the sought-after object beneath her undergarments.”
The school district argues, of course, that the official deserves immunity. “School officials have a difficult enough job protecting students and maintaining order without the daunting threat of liability for damages solely because their legal sophistication does not allow them to predict the future course of appellate jurisprudence,” the district’s brief says.
Speaking of predictions, there’s no way to predict how the justices will rule in this case, at least until the oral arguments perhaps yield some clues. But one should keep in mind that in the nearly 25 years since New Jersey v. T.L.O. was decided, the Supreme Court has twice upheld programs of random drug testing of certain classes of public school students, in Vernonia School District v. Acton and in Board of Education of Independent School District No. 92 v. Earls.
And in a student free speech case in which the message was perceived as promoting drug use (the “Bong Hits 4 Jesus” banner decision in Morse v. Frederick), the court’s majority upheld the regulation of the pro-drug message.
Writing for the majority in Morse, Chief Justice John G. Roberts Jr. said that the court’s decisions on students’ Fourth Amendment rights “recognize that deterring drug use by schoolchildren is an important—indeed, perhaps compelling interest.”
In Morse, the justices also overturned a lower-court’s rejection of qualified immunity for the school official who disciplined the student speaker. That lower court was the 9th Circuit.
A version of this news article first appeared in The School Law Blog.