The Supreme Court just came out with a new case with an eight to one decision chastising school officials for strip-searching a 13-year-old girl in a fruitless hunt for ibuprofen, ruling that an investigation based on almost no evidence violated the Fourth Amendment ban on “unreasonable searches and seizures.”
The opinion, by Justice David Souter, who is retiring at the end of this term, exempted the assistant principal who ordered the search from liability, finding that it might not have been clear to him that his action was unconstitutional. But the justices left open the possibility that the school district, in Safford, Ariz., could be liable for the violation.
Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito, who all endorsed the 2007 decision limiting student free speech rights when it came to drug use, joined Justice Souter’s opinion, as did Justice Stephen Breyer.
The case arose after a Safford Middle School student found with several pills in her possession accused Savana Redding of having supplied her. Assistant Principal Kerry Wilson searched Ms. Redding’s backpack and, after finding nothing, had her strip-searched by two female school employees. Stripped to her underwear, Ms. Redding was forced to shake out her bra and panties so that anything hidden therein would fall out, “revealing her pelvic area” and “exposing her naked breasts in the process,” according to a lower court opinion. She was detained for an additional two hours before being sent back to class.
School authorities defended their actions as part of an aggressive campaign against controlled substances. Nearly two months earlier, they raised their guard after a pack of cigarettes and a bottle of alcohol were found in the girls’ bathroom. The classmate who implicated Ms. Redding had been found with prescription-strength ibuprofen — 400 mg per pill, twice that in over-the-counter versions such as Advil.
Ms. Redding, an honor student with no disciplinary record, called the search “the most humiliating experience” of her life. Her mother sued the school district, alleging it had violated the teenager’s Fourth Amendment right against “unreasonable searches and seizures.”
“Public school officials who strip searched Ms. Redding acted contrary to all reason and common sense as they trampled over her legitimate and substantial interest in privacy and security of her person,” Judge Kim Wardlaw wrote for the Ninth U.S. Circuit Court of Appeals in San Francisco.
Not only was the evidence cited by the assistant principal weak, but he should have realized that the “minimal nature of the alleged infraction” couldn’t justify such an intrusive search, Judge Wardlaw wrote. She cited social science research about the negative effects of strip-searching children, concluding that “the overzealousness of school administrators in efforts to protect students has the tragic impact of traumatizing those they claim to serve.”
In a 1943 Supreme Court opinion, Justice Robert Jackson wrote that public schools must respect students’ constitutional rights, lest youth “discount important principles of our government as mere platitudes.” But the court also has recognized, as Justice Abe Fortas wrote in 1969, that students’ rights must be weighed against local officials’ authority “to prescribe and control conduct in the schools.”
In recent years, the court has been tilting that balance toward administrators. Two years ago, the court ruled that the schools’ interest in fighting drug abuse allowed it to suppress student speech that seemed to trivialize the issue — in that case, a banner a student unfurled outside campus reading “Bong Hits 4 Jesus.”
The Safford case initially suggested what may have been a gender divide on whether the strip search of a pubescent girl is “unreasonable” in light of the Fourth Amendment. At the Supreme Court, several male justices seemed puzzled at Ms. Redding’s humiliation over displaying her body to adult inquisitors.
“Why is this a major thing, to say, ‘Strip down to your underclothes,’ which children do when they change for gym?” Justice Stephen Breyer asked at the oral argument in April.
The court’s only woman, Justice Ruth Bader Ginsburg, interjected: Ms. Redding wasn’t stripped to her underwear, but to shake her bra and panties out.
David Breston is a Houston juvenile defense attorney. If you need a Houston juvenile defense lawyer, call David Breston at 713 224 4040.
Justice Ginsburg’s perspective apparently influenced Justice Souter’s majority opinion. “The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials,” his opinion begins.
“Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution,” he wrote
