Should Schools Strip Search Children?
Redding v. Safford Unified School District #1 -
Savana Redding, a 13-year-old, was subjected to a strip search at the direction of Vice Principal Kerry Wilson by her middle school in October of 2003.
As the Ninth Circuit wrote,
"Savana removed her socks, shoes and jacket for inspection for ibuprofen. The officials found nothing. Then, [one official] asked Savana to remove her T-shirt and stretch pants. Embarrassed and scared, Savana complied and sat in her bra and underwear while the two adults examined her clothes. Again, the officials found nothing. Still progressing with the search, despite receiving only corroboration of Savana's pleas that she did not have any ibuprofen, [the official] instructed Savana to pull her bra out to the side and shake it. Savana followed the instructions, exposing her naked breasts in the process. The shaking failed to dislodge any pills. [She] next requested that Savana pull out her underwear at the crotch and shake it.
"Hiding her head so that the adults could not see that she was about to cry, Savana complied and pulled out her underwear, revealing her pelvic area. No ibuprofen was found."
The goal of the search was to determine if she was the source of prescription-strength ibuprofen pills among some fellow students. With Savana traumatized and humiliated by the search -- which found no drugs -- her mother sued the school district, Vice Principal Wilson, and the staff who conducted the search.
A federal district judge granted summary judgment for the defendants, deciding that Savana's Fourth Amendment right to be free of unreasonable searches was not violated under a standard of "reasonableness" established by Supreme Court precedent from 1985.
After a three-judge panel of the Ninth Circuit affirmed this ruling, an 11-judge en banc panel, by a 6-5 vote, decided that Savana's rights were indeed violated, and that her rights were clearly enough established that the Vice Principal should be liable for damages for the unconstitutional search. Two judges of the five dissenters agreed that the search was unconstitutional, but still believed that this was not clear enough at the time to impose damages on the Vice Principal.
The school district and Wilson are now pleading their case to the Supreme Court, which agreed to hear their case in January. They bemoan the "disconnect between the Ninth Circuit's conclusion and the reality of today's school environment [which] comes off looking like lunacy and should serve as a cautionary tale for judges who may contemplate substituting their own judgment for that of school officials in such matters."
Seeking to appeal to the sympathies of a court whose approach to drug-related issues led it just two years ago to curtail the free speech rights of public school students when speech concerns drug use, they are seeking to transform a hunt for ibuprofen pills into a central front in the education system's war on drugs.
But the defendants face many problems in persuading the Court: there was no specific reason to think Savana was concealing ibuprofen in her underclothes; the fellow student who fingered her as the one who gave her ibuprofen did not specify when or where she got the pills from Savana, and was herself caught with not only pills, but also other school contraband, such as a razor blade and knives.
Moreover, many courts have decided that this type of invasive search is not legal without a very specific and reliable basis. As the brief for Savana's mother states, "a school official was on notice not to have ordered a traumatizing search of a thirteen-year-old girl's body on a mere hunch that the girl possessed ibuprofen at the time of the search and a baseless guess that the ibuprofen was being stored against her genitalia."
And yet two years ago, the archconservative justices of the Supreme Court were joined by Justice Kennedy in rejecting First Amendment protection for a high-school student who was suspended for ten days from school for displaying a banner across from his school that said "Bong Hits 4 Jesus."
The reference to drug paraphernalia on the banner caused these justices to curtail the student's First Amendment rights -- rights which enjoy much greater protection than Fourth Amendment rights, even among ultraconservatives like Chief Justice Roberts and Justice Scalia.
It might be far easier for them to brush aside Fourth Amendment rights that already have been diminished considerably by past precedent in the context of schools. So the strategy of making the humiliating strip search of a 13-year-old girl a centerpiece in the war on drugs may pay off.
The case is being argued on April 21 and will be decided by late June.
