School Strip-Search Case Heads to Supreme Court--By Erik W. Robelen

The U.S. Supreme Court next week will hear a case on the strip-search of a 13-year-old girl at a public school, wading into the legal balancing act between protecting students’ privacy rights and allowing school officials to take steps to ensure a safe campus environment.

The case, which has attracted national media attention—as well as friend-of-the-court briefs from national education groups, civil-liberties advocates, and the Obama administration—could have major implications for how schools proceed when they wish to search students.

At issue in Safford Unified School District v. Redding (Case No. 08-479) is the search of 8th grader Savana Redding by school personnel at an Arizona middle school. 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 stripped down to her undergarments, which she pulled away from her body so that two female personnel, including the school nurse, could inspect her.

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.

"Savana ended up naked and humiliated in front of her school officials," lawyers for the family say in March papers submitted to the high court, which is scheduled to hold oral arguments April 21.

Officials' Liability
The U.S. Court of Appeals for the 9th Circuit, in San Francisco, 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 the 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 Supreme Court will decide in this case how easy it will be for our schoolchildren to be strip-searched," Adam B. Wolf, a lawyer for the American Civil Liberties Union representing the Redding family, said in a phone interview.

"This search was predicated on one accusation from one unreliable student that Savana had previously possessed ibuprofen,” he said. "If schools are allowed to strip-search their students based on that scarce information, strip-searches could become as prevalent as the everyday practice of student tattling."

But lawyers for the district insist in court papers that the search was justified and that the 9th circuit ruling sets a "dangerous precedent in substituting its own judgment for that of school officials."

They say the 9th circuit ruling, if let stand, would "cause school officials to hesitate or do nothing at all, even when they in good faith believe that students are at risk."

School Groups Split
A friend-of-the-court brief submitted by national groups representing school boards and administrators echoes this concern.

The 9th Circuit decision would “seriously undermine school districts’ efforts to address student drug abuse in an effective manner,” write lawyers for the National School Boards Association and the American Association of School Administrators, both based just outside Washington. The ruling “broadly [calls] into question the ability of school officials to make all practical searches—both minimally intrusive and more intrusive.”

However, the case has not united education groups. The 3.2 million-member National Education Association and the National Association of School Psychologists have weighed in on the other side, arguing that the strip-search was unconstitutional.

For its part, the federal government argues 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 March 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, 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.

'On the Front Lines'
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.

"Safford Unified School District ... finds itself on the front lines of a decades-long war against drug abuse among students," the lawyers for the district write, noting what they call a "troubling rise" in the abuse of prescription and over-the-counter drugs.

Political Lessons?
But John W. Whitehead, the president of the Rutherford Institute, a civil-liberties advocacy group based in Charlottesville, Va., who co-wrote a friend-of-the-court brief in the case, argues that school districts are going too far in their anti-drug approaches.

"Subjecting students throughout the country to invasive strip-searches in the so-called quest to make schools safer and drug-free is ludicrous,” he said in an April 1 statement. "Savana’s case illustrates the danger inherent in giving school administrators carte blanche authority to violate the civil liberties and privacy rights of students."

In a phone interview, Mr. Whitehead said he also worried that such incidents teach students "a very bad political lesson."

"You’re not teaching kids to be good citizens by teaching them that they have no rights against searches and seizures," he said.

Lawyers for the district argue in court papers that the school officials took appropriate steps to minimize the impact of the search.

"Petitioners do not deny the potential emotional effect of the search conducted in this case," they wrote. "In fact, it was for this very reason that they specifically took into account both Redding’s age and sex."

They note that after inspecting the student’s backpack, the male assistant principal withdrew from the search and turned it over to two female employees, who conducted it in the privacy of the nurse’s office. Also, the school officials did not touch Ms. Redding during the strip-search.

But Mr. Wolf, the lawyer from the ACLU, said this level of restraint is of little consolation to Ms. Redding.

"The fact that the school officials here could have ratcheted up the privacy invasion to such a drastic degree does not minimize the trauma of this strip-search to Savana," he said.

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," wrote lawyers for the Safford district.

Mr. Whitehead from the Rutherford Institute echoed that sentiment, though he’s hoping the message will be decidedly different.

"What we need are guidelines ... to be clear about what we mean by reasonableness," he said. "Give the schools guidelines [that get them] to back off."

For his part, Mr. Wolf from the ACLU said, "I do think it is important that they provide further guidance, ... but no school official needed guidance to understand that this search was unreasonable."

Meanwhile, lawyers for the district, as well as those representing the NSBA and AASA, 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, argues 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."