The U.S. Supreme Court today heard oral arguments in a high-profile case involving the strip-search of a 13-year-old girl at an Arizona public school that could have far-reaching implications for how schools may proceed when they wish to search students.
Matthew W. Wright, the lawyer representing the Safford Unified School District and the local school personnel involved, told the justices that administrators “need the flexibility to act immediately” if they believe a search is needed to protect student health and safety.
But Adam B. Wolf, a lawyer for the American Civil Liberties Union representing the family of a student who was strip-searched after she was suspected of possessing prescription-strength ibuprofen, argued that the school officials went too far in this case. He argued that they should not be allowed to search the undergarments of a student unless there is reasonable suspicion that the contraband is hidden there, which he said was not the case.
“Anything else would send a shudder down the spines of little boys and girls across the country,” he said.
The case, Safford Unified School District v. Redding (Case No. 08-479), centers on the proposed balance between protecting students’ privacy rights and allowing school officials to take steps to ensure a safe campus environment. The U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled that school personnel violated the student’s Fourth Amendment rights and that the official who ordered the search is not entitled to “qualified immunity” from being sued.
In their questioning, the Supreme Court justices focused on whether a ruling in favor of the school officials might clear the way for invasive, “body cavity” searches, and whether the threshold might be different if school officials had suspected the student of hiding a more obviously dangerous substance, such as cocaine.
Mr. Wolf said the suspected substance should not matter. He argued that the key problem with the search, in this instance, was that the school officials did not have reasonable grounds to believe the student had the items hidden in her undergarments.
To go from simply searching a backpack or emptying a student’s pockets to a strip search, he said, “there needs to be suspicion that the item is underneath the clothing.”
“I accept that argument, ... if the stakes are lower,” said Justice David Souter.
Mr. Souter seemed to suggest the intrusiveness of the search might best be tied to the risk posed by the substance in question, saying he would rather have a student be “embarrassed” than to have other students become violently ill or die from using a drug.
Broad Discretion Urged
Mr. Wright argued that “administrators need a bright-line rule” from the high court in deciding when a search is justified. He favors a rule making clear that if school officials perceive a risk of danger to the health and safety of students, they can “search any place” such contraband “may be reasonably hidden.”
But several justices raised concerns about how far school officials might take such broad authority, and asked, in particular, whether those officials could conduct a search of “body cavities.”
Mr. Wright said he would oppose allowing searches of body cavities by school officials. But Justice Souter worried aloud whether the same reasoning employed in this case might also lead others to cite it as a precedent to permit such searches.
David O’Neil, a U.S. Department of Justice lawyer, argued that the student’s rights were violated, saying that “intrusive body searches” require greater justification under the Fourth Amendment. The key is that school officials 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 Alito asked if this meant school officials needed “direct evidence” to proceed. “Somebody has to say, ... that’s where it is?” he asked.
Mr. O’Neil said the officials need some “particularized suspicion” to go forward with a strip search.
Although most of the discussion during the oral arguments focused on the Fourth Amendment issue, Chief Justice John Roberts also addressed the question of whether the assistant principal should have qualified immunity.
“Can we take that off the table?” he asked Mr. Wolf. “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 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.
Lawyers on both sides say the high court’s decision could have major implications for how schools proceed when they wish to search students. The debate draws heavily on a case the high court decided nearly 25 years ago, which outlined a process for physical searches of students.
The legal matter has attracted national media attention, as well as friend-of-the-court briefs from national education groups, civil-liberties advocates, and the Obama administration, which argues that the student’s Fourth Amendment rights were violated, but that the school officials involved deserve immunity from legal action.
At issue is the search of 8th grader Savana Redding by school personnel at a public middle school in Arizona.
The 2003 action came amid suspicion that the honors student possessed prescription-strength ibuprofen tablets, a violation of the school’s anti-drug policy. 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 school nurse, looked on.
Infuriated by the 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.
The 9th Circuit appeals court ruled last July that school officials violated Ms. Redding’s Fourth Amendment right to be free from unreasonable search and seizure, acting “contrary to all reason and common sense.”
A panel of the court ruled 8-3 on that constitutional issue. Also, by a vote of 6-5, the court held that the assistant principal who ordered the strip-search was not entitled to “qualified immunity” from liability in the lawsuit.
The federal government in March filed a friend-of-the-court brief arguing that the strip-search of Ms. Redding violated the Fourth Amendment.
“Strip-searches are impermissible in the public schools unless [school] officials reasonably suspect not only that the student possesses the contraband, but also that it is hidden in a place that such a search will reveal,” Acting U.S. Solicitor General Edwin S. Kneedler wrote in the brief, also signed by lawyers from the U.S. Department of Education and the White House Office of National Drug Control Policy.
The brief argues that while the decision to conduct “some form of search” was justified, the circumstances “did not justify extending the scope of the search to require [Ms. Redding] to disrobe to her bra and underwear and lift them off her body.”
At the same time, however, the federal lawyers argued that the school official who ordered the search was entitled to qualified immunity, because “the illegality of the search was not clearly established at the time they conducted it.”
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.
The October 2003 strip-search took place at Safford Middle School in Safford, a small community in southeast Arizona.
Court papers say Ms. Redding was pulled out of class by the assistant principal, Kerry Wilson, and asked a series of questions about whether she had anything to do with some prescription-strength ibuprofen pills he had uncovered. She said no. He then asked whether he could search her belongings.
When this search uncovered no such tablets, Mr. Wilson instructed an administrative assistant and the school nurse to conduct a strip-search of Ms. Redding in private. The 13-year-old was asked to take off her shoes and socks, then other items of clothing, until she eventually had stripped down to her bra and underwear.
She was asked to pull her bra out and to the side and shake it, exposing her breasts, and then to pull out her underwear and shake it, exposing her pelvic area.
School officials say they had good reasons for the search.
First, another student, Marissa, who was discovered with prescription-strength pills, said she had obtained them from Ms. Redding. Second, 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 both Marissa and Ms. Redding. And third, another 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 ‘Reasonableness’ Standard
The legal debate in the Redding case centers on a 1985 decision by the U.S. Supreme Court in New Jersey v. T.L.O. It found that “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.”
The ruling spelled out a “reasonableness” standard 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.”
Lawyers involved in the Redding case suggest that it’s time for the Supreme Court to provide greater clarity on the reasonableness standard.
“Deciding the constitutional question in this case will also provide some desperately needed guidance to the lower courts and, more importantly, school officials,” lawyers for the Safford district wrote in a Feb. 25 brief.
Mr. Wolf, the ACLU lawyer for the Redding family, said in an interview: “I do think it is important that they provide further guidance, ... but no school official needed guidance to understand that this search was unreasonable.”
A friend-of-the-court brief submitted in March by national groups representing school boards and administrators argues that the 9th Circuit decision would “seriously undermine school districts’ efforts to address student drug abuse in an effective manner.”
The ruling “broadly [calls] into question the ability of school officials to make all practical searches—both minimally intrusive and more intrusive,” write the lawyers for the National School Boards Association and the American Association of School Administrators, both based just outside Washington.
The two groups also argue that the assistant principal, Mr. Wilson, should be not be personally exposed to legal liability in the case.
In an interview, Francisco M. Negron, the general counsel for the NSBA, argued that given the disagreement among various jurists who have considered the case over time, it is unreasonable to expect a school official to be able to successfully navigate the legal terrain.
“Where judges disagree on what the state of the law is,” he said, “it hardly makes any sense to suggest that a school administrator or teacher who is not a lawyer ... [should be] personally liable.”
A version of this article appeared in the April 29, 2009 edition of Education Week as School Strip-Search Case Argued at Supreme Court