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Preview: Strip-search of students

The Supreme Court will hear oral argument at 10 a.m. Tuesday on
Safford Unified School District, et al., v. Redding (08-479).  Arguing for the school district and officials will be Matthew W. Wright of Holm Wright Hyde & Hays in Phoenix.  Arguing for April Redding and her daughter Savana will be Adam B. Wolf of the American Civil Liberties Union Foundation, Santa Cruz, Calif.  The United States as amicus will be represented by David O’Neil, assistant to the U.S. Solicitor General.


The Supreme Court, continuing to monitor how public schools deal with suspected substance abuse among students, will seek to clarify authorities’ power to personally search girls and boys, instead of their lockers or belongings. The case involves a strip search of a 13-year-old girl.


Forty years ago, the Supreme Court assured public school students that they do not shed all of their constitutional rights “at the schoolhouse gate.” And, 24 years ago, it included the right of privacy among the constitutional protections students retain while in the classrooms and hallways and on school grounds. Still, as young people, most of them minors who are temporarily in the care of school officials and teachers, public school students do not have rights fully equal to those enjoyed by adults.

In more recent decisions, the Court has made it increasingly clear that students’ right of free speech and their right to privacy can be curtailed when officials have strong enough concerns about discipline and about safety. Often, the Court has found such justification in officials’ complaints that substance abuse – particularly, abuse of harmful drugs – is a major and continuing problem in and around schools.

The Court has gone far, for example, toward allowing mandatory and random drug testing of public school students as a condition for taking part in nearly any facet of school activity. The Court has been largely unwilling to second-guess officials’ claims that there is a drug problem at their particular school, even if the evidence is not very strong. Because the Court has accepted the notion that drug abuse is especially harmful to youths, it has fashioned a modified constitutional regime that governs searches of students. In a technical sense, the Court has not demanded that school officials have “probable cause” before they may search students when drug abuse is suspected. Some “reasonable” basis, short of “probable cause,” is the standard in the public school context, it has said.

But, as is often the situation with a “reasonableness” standard, particularly in the context of searches judged under the Constitution’s Fourth Amendment, lower courts tend to reach conflicting results on what is reasonable and what is not. One specific facet of this dispute – the constitutionality of strip-searching students who are under suspicion — is at issue now before the Supreme Court, in Safford United School District No. 1, et al., v. Redding (08-479). The Court will be exploring how the constitutional regime involving public school students’ rights is to be applied when officials’ have suspicion about a possible substance abuse problem with a specific student, not in a school-wide setting.

The new case originated in the small Arizona town of Safford, with less than 10,000 population, close to the Pinaleno Mountains in the southeastern part of the state. The community has a single middle school, drawing students from Safford and from surrounding small towns. Its eight grade class has about 200 students.

In October 2003, one of the eighth graders was Savana Redding, who was 13 years old at the time. Based on a tip from another eighth grader, the middle school’s assistant principal, Kerry Wilson, focused on Savana in an investigation of students who carried prescription drugs to school and used them for non-medical reasons.

That investigation began after officials, suspecting substance abuse at a school dance earlier in the school year, grew wary of violations of a school rule against such uses. Acting on a tip naming Savana, for allegedly giving pain-killing ibuprofen to another student, principal Wilson first inspected Savana’s backpack, but found nothing. Two female aides then took Savana to the school nurse’s office, and conducted a strip search, requiring her to remove all of her outer clothing, and requiring her to expose her breasts and pelvic area by pulling her underclothes away from her body. Again, no pills were found.

The incident led Savana’s mother, April Redding, to sue the school district and school officials for the search. A District Court judge ruled for the school district and for school officials, finding that the tip from another student provided a sufficient justification for the search of Savana. Requiring her to strip, the District Court found, was sufficiently related to officials’ suspicion, and was not “excessively intrusive.” That ruling was upheld by a Ninth Circuit Court panel, but the en banc Ninth Circuit reversed, ruling for Savana on divided votes.

The Ninth Circuit focused on the fact that this was a strip search, and ruled that it would take greater justification for that type of search because it was more intrusive. Based on what school officials knew at the time, a strip search was not appropriate, and, moreover, its scope was too great given that evidence, the majority concluded. Rejecting the school officials’ claims that they were entitled to qualified immunity for the strip-search, the Circuit Court said they should have known – from at least the Supreme Court’s decision on school searches of students’ belongings in New Jersey v. T.L.O. in 1985 – that such an intrusive search would not be constitutionally valid.

Petition for Certiorari

The school district, principal Wilson and others associated with the Safford schools, citing studies that “show a troubling rise in the abuse of prescription” and over-the-counter drugs among teenagers, asked the Supreme Court to hear the case. The petition presented two questions: what is the scope of the Fourth Amendment as applied to the search of a student for distributing a prescription drug at school, and whether the Ninth Circuit wrongly deviated from principles of legal immunity for school officials searching for drugs on campus. The second question is about the state of student search law as of the time of this incident in 2003, but it also keyed to the asserted need for the courts to defer to school administrators’ judgment about how to react to student drug problems.

The broader social argument is prominent in the petition. Its opening paragraph, for example, contends that much of the difficulty in “stemming the tide of drug abuse” among school-aged youth is that trends in abuse are shifting.

“Students have begun to experiment with drugs at a progressively earlier age, and the drugs of choice have changed,” the district said. “Whereas street drugs used to be the primary concern, more and more students have turned instead to a supplier of a different type – the family medicine cabinet, in search of prescription and over-the-counter drugs….Teens are now abusing prescription drugs far more than any illicit drug except marijuana.”

It cited statistics showing that for 12 to 13 year olds – the age group in which Savana Redding was at the time she was searched – “prescription drugs are the drug of choice….The studies show that this disturbing trend is fueled, in part, by a dangerous myth that these drugs provide a ‘safe’ high.”

Turning from societal observations to law, the district’s petition contended that the Ninth Circuit has used an unworkable constitutional standard in the school search context. The Circuit Court, it said, used a sliding-scale approach – the more intrusive the search, the greater the suspicion needed to justify it – that not only is confusing for school officials, but actually requires “probable cause” to justify a search when it involves ordering a student to strip. “In this case,” the petition argued, “the Ninth Circuit gave lip service to the reasonableness standard, and then instead, subtly applied the very standard” that the Supreme Court had rejected – “probable cause” — in the Court’s initial school search case, New Jersey v. T.L.O..

The T.L.O. decision, it contended, sets a reasonableness standard for any search of a student, to test whether it was justified. The Ninth Circuit, by contrast, fashioned a standard that applied solely to a strip search, according to the district. That approach, it argued, is “deeply flawed.” By making this a case only about strip searches, the petition said, the Circuit Court “skewed the balance” the Supreme Court had established between the needs of schools and the privacy of students.

In response, lawyers for Savana Redding’s mother focused on their claim that the search of the girl was based upon “unreliable information”, and on the “traumatizing” experience of a strip search for a teenage girl. Other than “the finger-pointing” of a classmate who herself had brought drugs to school, the opposition brief said, the Safford school officials had “no information” that connected Savana to the pills found in the other girl’s belongings at school.

The petition sought to counter the school district portrayal of Savana as a somewhat rebellious and risk-taking youngster, describing her as “a model student” who had “a clean disciplinary record” and had received “honors grades.”

Urging the Supreme Court to pass up the district’s appeal, the Redding response said that the Ninth Circuit simply followed clearly established legal principles, and argued that there is no conflict among the federal Circuit Courts on the constitutionality of strip-searching a public school student. All that is involved here, the filing argued, is a plea to correct a “fact-bound” decision.

The school district’s plea for review was supported by the National School Boards Association, and the American Association of School Administrators, arguing that the Court’s past school search rulings did not involve searches based on suspicion that arose about a particular student. This aspect of the Safford case, those organizations contended, takes it beyond the T.L.O. precedent, and calls for the Court’s guidance on the standards to guide searches – including strip searches – based on individualized suspicion. The organizations also contended that the Ninth Circuit had “trivialized” the problem of the dangers posed by abuse of prescription and over-the-counter drugs.

The Supreme Court granted review on Jan. 16. The case was set for argument on April 21.

Merits Briefs

Five days after the Supreme Court had agreed to hear the district and school officials’ petition, the Justices in another case changed the legal procedures for deciding constitutional issues in a way that has led lawyers on that side of the case to mount an effort to keep the constitutional issue alive. While seeking qualified immunity for the officials, their lawyers fervently pleaded with the Court to go ahead and decide the constitutional issue over strip-searches at school. If, however, the Court were to decide that the officials did have legal immunity, it might not rule definitively on the validity of the search of Savana Redding or of strip-searches in general in the school setting.

On Jan. 21, the Court ruled in Pearson v. Callahan (07-751) that judges need not resolve a constitutional question as the first step in deciding whether an official was legally accountable for violating a constitutional right, or instead had immunity. A mandatory inquiry into the existence of such a right was abandoned in favor of a flexible inquiry that could lead to a finding of immunity because no such right existed at the time of the incident – leaving undecided whether the Constitution now embraces such a right.

The Safford school officials, pressing the Court in their merits brief for a ruling on the constitutional question, said that the issue has “been fully briefed, argued, and decided three times,” and argued that the fullness of this discussion sets up the case for a Supreme Court decision. Moreover, the brief contended, guidance to lower courts and to school officials is “desperately needed.” It added: “The Court decided T.L.O. nearly twenty-five years ago and has not reviewed a case since that involved a search conducted by school officials based on individualized suspicion of wrongdoing. In the meantime, lower courts have had their struggles in applying the reasonableness standard to such searches.”

Supporting that plea, the National School Boards Association and the American Association of School Administrators acknowledged that the Court could decide the case by finding immunity and disposing of the case on that ground, it should opt to go ahead and rule on the validity of such searches. “As the leading organizations that assist educators in developing constitutionally and otherwise legally sound policy, amici respectfully request this Court to provide public school educators with the interpretive guidance of the T.L.O. standard that has been lacking since the case was decided in 1985.” The practical application of the 1985 decision’s standard, the groups asserted, “has led to confusion among both judges and educators.

The merits brief of the district and the school officials, on points other than qualified immunity, contended that the search was clearly constitutional because fully justified by the suspicions officials had about the prescription drug problem and about Savana Redding in particular. The only way the Ninth Circuit could avoid finding that search justified, the brief said, was to create a new and unworkable sliding standard, in effect requiring “probable cause” to make such a search.

The Justice Department has complicated the Safford school officials’ case somewhat, by arguing in an amicus brief that the strip-search of Savana Redding was unconstitutional. The Department does so by spelling out a new constitutional standard, limited solely to personal searches of publi school students. The T.L.O. standard, that school searches are justified based upon “reasonable suspicion,” the Department argued, should be retained but modified. It stated its proposed rule this way: “Strip searches are impermissible in the public schools unless the 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.” This rule would put the primary emphasis on suspicion about potential location of drugs on a student’s person.

Applying that approach, the Department said the Safford officials did not have the suspicion necessary to require the girl to strip to her underwear and expose her private areas. But, the brief then went on to argue that the school officials should have qualified immunity to Redding’s claim because it was not clearly established in 2003, at the time of the search, that the strip-search was invalid.

The Ninth Circuit, according to the government brief, was wrong in finding that the T.L.O. decision put school officials on notice that strip-searches would be invalid. “The general T.L.O. framework was not sufficiently clear or specific to support the imposition of civil liability in the particular circumstances presented here…The application of T.L.O. to these facts requires several elaborations that are not clearly articulated in that decision and that entail the reconciliation of apparently conflicting directions.”

Since school districts do not have immunity to constitutional claims, the Department said, the finding of immunity should apply only to the school officials. The Court, it said, should then send the case back to the Ninth Circuit Court to consider an issue it did not rule on – whether the school district itself could be held liable for the actions of the officials on the theory that they were carrying out district policy in conducting the search.

The merits brief for Savana Redding and her mother focuses primarily upon the intrusive nature of the search, and upon the perceived need for “sufficient justification” for any such search. It mounted a new challenge to the veracity of the classmate’s tip about Savana’s possession of prescription drugs, and undertook to separate the two girls’ relationship to more distance than it had argued earlier in the case.

On the weakness it found in the justification, the brief argued: “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 Redding brief accused the assistant principal of “jumping to the conclusion” that Savana had drugs inside her undergarments, when the only accusation was of possession of giving a prescription medicine to another student at some time in the past.

That brief also maintained that no school official in 2003 could have believed that a strip-search, based on “an uncorroborated accusation from an unreliable teenager who had been caught with pills in her possession,” would support requiring Savana “to push aside her undergarments in a manner that exposed the most private parts of her body.”

Savana Redding’s challenge to the search is supported by groups of school psychologists and psychiatrists who treat adolescents, by the Juvenile Law Center, by a variety of youth rights advocacy organizations, and by libertarian advocacy groups.


Until the Justice Department entered the case, the Court had before it a case in which the two sides basically agreed that the constitutional formula the Justices laid down 24 years ago for school searches was still controlling law, and the only question was whether the Ninth Circuit misapplied those principles. The Safford district and its officials argued that the Circuit Court had deviated from that standard (laid down in the T.L.O. case), while Savana Redding and her mother asserted that the lower court had faithfully applied that formula.

In essence, the Court seemed confronted with simply siding with one side or the other – a choice that might well have been influenced strongly by how the Justices reacted to the humiliating experience of Savana Redding and other teenagers potentially put in her place. The privacy interest in that equation loomed larger. Even if abuse of prescription drugs has become a new menace for school students, the Court may still have wondered whether strip-searches were a calibrated response. That, one might find, was not a particularly hard question.

With the Justice Department adding a plea that the Court modify its earlier standard, and, in essence, create a special new rule that focuses even more precisely on factual variations, the Court’s choice could be more difficult. While the Department’s approach is portrayed as if it were a simple rule – evidence must point to a location before that area may be searched – it may not be that simple in practical operation. Not surprisingly, the district and school officials in their reply brief on the merits argued that the Justice Department rule would not provide the real-world guidance that school officials now need.

The Court, if it finds it difficult to muster a majority on either a straightforward application of T.L.O or on the Justice Department’s variation, might well search for a way to resolve the case without settling the constitutionality of strip-searching of students as a general proposition. This could provide it with the first test of whether the Justices, under the new ruling in Pearson v. Callahan, will themselves opt for “constitutional avoidance” by looking to the state of the law in 2003 and finding not enough there to hold these school officials responsible.