Strip searches and students' rights
by Len Rieser on Feb 10 2009 Posted in Education law corner
Searches of students –especially strip searches – aren’t exactly a big topic of conversation in school-reform circles. But the subject may get more attention in the near future, when the Supreme Court decides whether or not to uphold a recent decision of the Court of Appeals for the Ninth Circuit, Redding v. Safford Unified School District.
And honestly, folks, you couldn’t make this stuff up. Savana Redding, whose family brought the case, is a 13-year-old student who attends middle school in the small town of Safford, Arizona. (Actually, she’s now 18 or 19 – which tells you something about the pace of the judicial process.)
While it would take too long to tell the whole story, the gist is that a student showed the assistant principal a pill, which the nurse identified as a 400-milligram tablet of ibuprofen. The student said that he had got the pill from a girl named Marissa.
The assistant principal questioned Marissa, who turned out to have ibuprofen tablets in her pocket (which was against school rules). Marissa also had Savana’s planner, in which she – Marissa – had hidden various prohibited items. (According to the court, “Savana had let Marissa use the planner because Marissa wanted to hide some things from her parents; specifically, cigarettes, a lighter, and some jewelry.”)
In addition, Marissa had a Naprosyn pill (the ingredient in Aleve, which is used – like ibuprofen -- to treat inflammation, including menstrual cramps). When asked about that pill, Marissa responded, “I guess it slipped in when she gave me the IBU 400s.” “She,” Marissa told the assistant principal, was Savana – at which point, things took a turn for the bizarre.
Savana was called in, and denied having or having had any pills, or knowing about Marissa’s or anyone else’s having them. The assistant principal searched her backpack, and found nothing. Normally, that would be the end of the story -- if the story would even have gotten that far.
But it’s what happened next that led to the court case. Not satisfied with the results of his investigation, the assistant principal told the nurse and another staff member to conduct an extensive strip search of Savana to find out whether she had any pills on her body. Savana was ““embarrassed and scared,” and later described the experience as “the most humiliating experience” of her life. Nothing was found.
Savana sued, lost twice, and then won in the Court of Appeals. The Court decided that the strip search was not justified at its inception, nor – given its intrusiveness – “reasonably related in scope to the circumstances giving rise to its initiation.” In other words, the school went too far.
To be sure, there are other details, including some that convinced two Ninth Circuit judges to dissent from the majority decision and side with the school district. (The vote was 11-2.) For those details, and much more, you’ll need to read the full Ninth Circuit opinion.
What can we expect from the Supreme Court? One of the great themes of American education law involves the extent to which courts should defer to the decisions of school officials – who are said to be much better qualified to run schools than judges are. Courts also frequently note that teachers and administrators can’t be expected to stop and work through complex legal doctrines every time they have to deal with a problem in their schools.
These concerns, and others, came through loud and clear in the Supreme Court’s Bong Hits 4Jesus case of a couple of years ago . In that case, the Court upheld the right of a principal to prohibit a student from displaying, across the street from the school, a sign containing exactly that combination of words. (To this day, no one knows what the words meant. The student said he was simply trying to attract the attention of TV cameras, but the principal believed that the message could be interpreted as promoting drug use.)
But while the courts are generally sympathetic to school officials, there’s also a constitutional right, in the Fourth Amendment, to freedom from unreasonable searches. Until Savana’s case, the Supreme Court had decided only one major case, New Jersey v. TLO, on that subject. The Court of Appeals for the Ninth Circuit cited that 1985 decision in siding with Savana. But times have changed, and the fact that the Supreme Court accepted Savana’s case – from a Court of Appeals whose decisions are often overturned on appeal –suggests that some new rules may be forthcoming. We’ll likely know by June.
A postscript: I couldn’t find any policies concerning searches, strip or otherwise, on the Philadelphia School District website. Maybe – though I have no way of knowing – that’s because the District makes considerable use of the Philadelphia Police Department, and it’s the police that do these sorts of searches when they occur. (Which is not to say that they would have searched Savana; for one thing, there’s nothing criminal about possessing ibuprofen.)
And a postscript to my postscript: the District does have a policy on Students and the Police, dating from 1990. Its main goal seems to be to limit police activity at schools. Thus, for example, the policy says that if police come to school to make an arrest, the principal is to “determine why such arrest could not be made at the student's home; attempt to inform the student's parents; and, request and inspect the arrest warrant.” Another sign of how times have changed!