No More Strip Searches in Schools


In a groundbreaking unanimous decision this morning, the Supreme Court ruled that it was unconstitutional for school officials to perform a strip search of a student suspected of possessing prohibited drugs. And school officials who do this in the future will have to pay damages.

Writing for the Court in Safford Unified School Dist. #1 v. Redding, Justice Souter stated that the search was unconstitutional because there was no reason to believe that the suspected drugs presented a danger — they were prescription-strength Advil, not heroin — and because there was no reason to believe that the drugs were concealed in the student’s underwear in the first place.

However, because the law wasn’t clear on this at the time, the school officials have qualified immunity protecting them from civil liability for the search. In other words, they don’t have to pay damages this time, but any school official who does this from now on will be liable.

School officials being the over-reacting sort, as a rule, it is a safe prediction that strip searches are going to drop nearly to zero. A line has been drawn that still permits many, if not most, strip searches in schools. But no vice principal is going to risk being personally liable for damages if a jury thinks they crossed that line. So no vice principal is going to go anywhere near that line. Strip searches in schools are probably over.

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We previously blogged on this case here and here, and predicted pretty much this exact outcome. As we put it:

[The Court’s rule] will be fact-specific, whether the officials have evidence that is sufficiently credible to justify an articulable suspicion that contraband will be found during a strip search. And it will require a balancing, to ensure that the invasiveness of the search is proportionate to the danger of the contraband sought. A strip-search to find an explosive is one thing; but examining a young girl’s private parts to find Advil is another thing entirely.

It’s nice to be right once in a while.

* * * * *

This case started when school officials found prescription-strength Advil in the possession of junior-high student, who immediately blamed someone else. That someone else was a 13-year-old girl named Savana Redding.

The vice principal, Kerry Wilson, walked into Redding’s math class and made her come to his office. He confronted her with the pills, and she denied knowing anything about them. She consented to a search of her belongings. Wilson and an assistant searched Redding’s backpack, and found nothing.

Instead of letting Redding go back to class, Wilson ordered the assistant to take her to the school nurse’s office, to search her clothes for pills. The assistant and the nurse made Redding take off all her clothes, except for her panties and bra. No pills were found in her clothes.

Instead of letting Redding go back to class, they made her pull out her bra and panties, exposing her breasts and vagina for search. No pills were found.

Instead of letting Redding go back to class, the officials made her sit in Wilson’s office for hours afterwards, without contacting even her parents.

Not surprisingly, Redding’s mom sued the school, Wilson, his assistant and the nurse for conducting a strip search in violation of Redding’s Fourth Amendment rights.

* * * * *

Writing for the Court, Justice Souter acknowledged that school searches are held to a lesser level of suspicion than the probable cause ordinarily required, per New Jersey v. T.L.O., 469 U.S. 325 (1985). And the facts that can give rise to this suspicion depend on the circumstances of the particular case, per Ornelas v. U.S., 517 U.S. 690 (1996). The standard for a school search could be described, he said, “as a moderate chance of finding evidence of wrongdoing.”

Wilson had enough suspicion to search Redding’s backpack and outer clothing, Souter held, because Redding was friends with Marissa Glines, the girl who’d been caught with the pills. Glines had Redding’s day planner on her when she was caught. Glines and Redding were part of a group of girls who had been rowdy at a dance, and who were tied to alcohol and cigarettes found in the girls’ bathroom at that dance. Redding had thrown a pre-dance party where alcohol had been served. And Glines said that Redding had given her the pills. All of that was enough, concluded Souter, to give Wilson reasonable suspicion that Redding had given out the pills.

That reasonable suspicion logically led to a reasonable suspicion that Redding possessed more pills. That certainly justified a search of her backpack and outer clothing in the privacy of Wilson’s office. “If Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack,” opined Souter, “it would not justify any search worth making.”

But the strip search (and Souter took time to say that this search was indistinguishable from a full strip search, based on both subjective and objectively reasonable societal expectations of personal privacy)…

Subjectively, Redding had an expectation of privacy against such a search, which to her was “embarrassing, frightening, and humiliating.” Objectively, that expectation was reasonable, as like other adolescents her emotional vulnerability only intensified the intrusiveness of a strip search, which “can result in serious emotional damage.”

Indignity alone doesn’t make a search unconstitutional, of course. But the intrusiveness must be proportionate to the suspicion, taking into account the age and sex of the student, along with the nature of the suspected offense.

Here, the suspicion was that Redding had pills that were the equivalent of two Advil, or one Aleve. Wilson had to know that the threat from such pills was negligible, and he had no reason to suspect that anyone had such pills in large enough quantities to harm anyone. So the suspected threat was minimal.

Also, Wilson had no reason to suspect that Redding “was hiding common painkillers in her underwear.” General “common knowledge” that kids sometimes hide contraband in their underwear is not enough. He had to have some actual reason to think that Redding was doing that, and there was no reason to think that at all. Wilson hadn’t even bothered to find out when Glines claimed to have received the pills from Redding — it could have been days before.

So Wilson had no reason to believe that any students were in danger. And he had no reason to believe that Redding had any pills in her underwear. For those reasons, the search was unreasonable, and therefore unconstitutional.

* * * * *

Justices Stevens and Ginsberg would not have granted qualified immunity to the school officials in this case. Their take was that this law was not unsettled, but was in fact clear. “Nothing the Court decides today alters this basic framework,” wrote Stevens. “It simply applies [existing caselaw] to declare unconstitutional a strip search of a 13-year-old honors student that was based on a groundless suspicion that she might be hiding medicine in her underwear.”

Ginsberg, who had given reason to believe she doubted that the male Justices fully appreciated how this would affect a 13-year-old girl, wrote that “Wilson’s treatment of Redding was abusive, and it was not reasonable for him to believe that the law permitted it.”

Justice Souter felt that the law really was unsettled, however, as the Sixth and Eleventh Circuits had permitted such strip searches in the past, and there were numerous decisions in the lower courts drawing similar and reasoned conclusions. So this case settled the issue, but it would be wrong for school officials to be personally liable for damages in light of the lack of uniformity in the law till now.

Still, he said, “parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment.”

* * * * *

Justice Thomas also wrote a separate opinion. It was technically a concurring opinion, but he only agreed that the school officials were entitled to qualified immunity here. As to the big issue, Thomas flatly concluded that there was no Fourth Amendment violation.

Thomas felt that it was “an unjustifiable departure from bedrock Fourth Amendment law in the school setting” to require a search to be proportionate to the danger to other students, and that there be reason to suppose that the pills would be found in the private areas searched.

All that was needed, according to Thomas, is that the officials search in a location where the pills could have been located. If there is reason to suspect that a student had contraband, which all the Justices agree Wilson had, then the officials should be allowed to search any place where the student might have hidden the pills. The strip search here, therefore, ought to have been considered reasonable in scope.

In a long and carefully-argued 22-page opinion, Justice Thomas made a good point that today’s decision actually changes the law — it does not merely clarify it. The law till now has afforded school officials great deference to act in loco parentis, and the courts have wisely stayed out of substituting their own judgment for that of the school officials entrusted with the safety of our children. Today’s decision now opens up school searches to second-guessing by the courts. And, as we ourselves predicted above, this is going to have a chilling effect on even those searches which the law would have allowed.

Today’s decision, warned Thomas, means that the judiciary is “essentially seizing control of public schools,” and teachers will not now be able to “govern their pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn, by making riles, giving commands, and punishing disobedience without interference from judges.”

“By deciding that it is better equipped to decide what behavior should be permitted in schools,” concluded Thomas, “the Court has undercut student safety and undermined the authority of school administrators and local officials. Even more troubling, it has done so in a case in which the underlying response by school administrators was reasonable and justified.”

* * * * *

We actually agree with Thomas that the Court has changed the rules, and that it will have a chilling effect. But we still think the Fourth Amendment requires precisely the justifications that the Court has now imposed.

It’s a balancing of interests. We happen to think that society would rather protect the privacy interest that adolescents won’t be strip searched in school, without proportionate concern for safety and without reason to believe the search will actually find anything. Thomas thinks that it’s more important to society to get the evidence that would come from searching anywhere that suspected contraband might be found, once it is suspected.

Thomas’ underlying principle here, we believe, is just not in sync with the general principles of our society. So although his predictions are probably true, the risks he suggests are simply those that society is willing to accept in exchange for the privacy rights protected by the Constitution.

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