Hurray for the Ninth Circuit! Schools Canít Strip Search Eighth Graders Just to Find Advil
by Richard Fossey - July 22, 2008
Federal courts have become increasingly hostile to strip searches in the schools, yet these searches continue. A recent Ninth Circuit case puts school administrators on notice. Strip searching students for minor infractions may be a constitutional violation. A school administrator who conducts an unreasonable strip search could wind up writing a personal check to the student whose privacy rights were violated.
Earlier this month, the Ninth Circuit Court of Appeals struck a blow for decency in a strip-search case called Redding v. Safford Unified School District. In a 6 to 5 decision, the court ruled that an assistant principal at an Arizona middle school violated the Constitution when he ordered his subordinates to strip search Savana Redding, an eighth-grade honor student, after one of Savanas classmatescaught red-handed with ibuprofen pillstold the assistant principal that Savana had given her the pills.
Redding v. Safford Unified School District:1 A Strip Search in an Arizona Middle School
On the day Savana Redding was strip searched, a middle school student named Jordan approached Assistant Principal Kerry Wilson and gave him a prescription-strength ibuprofen pill, which Jordan said had been given to him by a student named Marissa. School rules prohibited students from possessing prescription or over-the-counter drugs on the school campus.
Wilson called Marissa into his office and directed her to turn out her pockets and open her wallet. This search revealed several white ibuprofen pills identical to the one turned over by Jordan, along with a blue Naprosyn 200 mg pill (slip opinion, p.8428). (Ibuprofen is a pain relieving medication found in Advil. Naprosyn is a pain treatment medication that is found most commonly in Aleve.)
Wilson asked Marissa how she got the blue pill. Marissa replied that the blue pill must have slipped in when Savana gave her the ibuprofen pills. Wilson then called Savana out of class and questioned her. Savana denied ever seeing the ibuprofen pills and protested that she had never brought prescription drugs on campus and had never given prescription drugs to other students. During this interview, Wilson looked through Savanas backpack, but he found no drugs.
Wilson then ordered Helen Romero, his administrative assistant, to take Savana to the school nurses office; and he directed Romero and the nurse to strip search Savana, who was thirteen years old at the time. This is how the Ninth Circuit described the search:
The officials had Savana peel off each layer of clothing in turn. First, Savana removed her socks, shoes and jacket for inspection for ibuprofen. The officials found nothing. Then, Romero 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 through the search . . . , Romero 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. Romero next requested Savana to 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. (slip opinion p. 8426)
Savanas mother sued the school district, charging school officials with violating Savanas Fourth Amendment right to be free from unreasonable searches. The school district moved for summary judgment, arguing that their search had not violated any constitutional rights. The search was justified, school officials maintained, because the school had a history of problems with students who brought prohibited or illegal substances onto the school campus. A federal trial court granted the school districts summary judgment motion. On appeal, a three-judge panel of the Ninth Circuit upheld the trial court ruling by a 2-1 vote. The three-judge panels decision was vacated, however, when the active judges of the Ninth Circuit voted to reconsider Savanas appeal en banc (that is, with all active judges participating).
Ninth Circuit: Strip Searching Savana to Find Advil Was Constitutionally Unreasonable
In deciding whether Savanas constitutional rights were violated, the Ninth Circuit relied on the Supreme Courts guidance in New Jersey v. TLO (1985), which articulated a two-part reasonableness test for determining the constitutionality of a school search under the Fourth Amendment. First, the Supreme Court said, a school search must be reasonable at its inception. In other words, school officials must have some reasonable basis for believing that a search of a student or the students possessions will turn up evidence of wrongdoing. Second, a school search must be reasonable in scope; it must not be overly intrusive light of the nature of the suspected misconduct and the age and sex of the child.
In a split decision, the Ninth Circuit concluded that the strip search of Savana Redding was not justified at its inception. According to the majority opinion, an unsubstantiated report from a student informant who had herself been caught with contraband pills did not form a reasonable basis for searching Savana. As the Ninth Circuit succinctly put it, the self-serving statement of a cornered teenager facing significant punishment does not meet the heavy burden necessary to justify a search . . . [that is] demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant [and] embarrassing (slip opinion p. 8840, citing a 1983 Seventh Circuit opinion).
Second, the Ninth Circuit ruled, the scope of the search that Savana endured was also unreasonable. In other words, the strip search was a massive intrusion into Savanas constitutionally protected right to privacy and was not justified by the principals desire to find Advil. The Ninth Circuit observed,
Common sense informs us that directing a thirteen-year old girl to remove her clothes, partially revealing her breast and pelvic area, for allegedly possessing ibuprofen, an infraction that poses an imminent threat to no one, and which could be handled by keeping her in the principals office until a parent arrived or simply sending her home, was excessively intrusive. (slip opinion p. 8444)
Not only was the strip search unconstitutional, the court added, but Savanas right to be free from such a search was well established. A reasonable school official, seeking to protect the students in his charge, does not subject a thirteen-year-old girl to a traumatic search to protect her from the danger of Advil (slip opinion p. 8449), the court concluded. Thus, Assistant Principal Wilson could be held personally liable to Savana if she ultimately won her case.
Dissenting judges in the Redding case argued strenuously that strip searching Savana was reasonable because even common pain relievers like Advil can be harmful to students if taken in excess. In the dissenting judges view, the schools broad authority to fight drug use among its students justified the strip searcheven though the dissenters admitted that the search was quite intrusive.
Good Guidance from the Ninth Circuit about a School Childs Constitutional Right to Privacy
Critics have chastised the Ninth Circuit in recent years for being an activist court that operates outside the judicial mainstream (Cox & Manson, 2004). And in fact the Supreme Court has reversed a number of Ninth Circuit decisions for legal errors. In 2006, for example, the Supreme Court reviewed eighteen Ninth Circuit opinions and reversed fifteen of them (Will, 2006).
But in the Redding case, the Ninth Circuits ruling was exactly right. Indeed, the Ninth Circuit broke no new ground when it denounced the strip search of Savana Redding. As the Seventh Circuit Court of Appeals said more than 25 years ago, It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity (Doe v. Refrow, 1980, pp. 92-93). And several federal courts have condemned strip searches in the schools that were triggered by minor infractions.
Of course it is possible that the Supreme Court will reverse the Ninth Circuits Redding decision and approve the search that Savana Redding endured. But until that happens, Redding provides us with good guidance about a childs constitutional right to privacy in the schools.
First, requiring students to disrobe to their underwear is a massive assault on a childs dignity, no matter what other indignities occur. Regardless of whether the student is touched or forced to further disrobe, a search to the underwear subjects a child to a humiliating experience, which is very difficult to justify.
Second, students should not be strip searched for minor infractions that dont constitute a serious threat to students heath or safety. The Ninth Circuit made clear that a strip search for Advileven prescription strength Advildoes not justify the strip search of a thirteen-year old girl. And other courts have held that strip-searching children to find missing money or property is not justified either.
Whenif everis a strip search justified in the schools? The Ninth Circuit did not explicitly say, but it appears that the only justification for strip-searching a student is the urgent need to find a dangerous weapon or a dangerous drug.
Federal courts have become increasingly hostile to strip searches in the schools, yet these searches continue. The Redding case puts school administrators on notice. Strip-searching students for minor infractions may be a constitutional violation. A school administrator who conducts an unreasonable strip search could wind up writing a personal check to the student whose privacy rights were violated.
1. The events described in the Ninth Circuit opinion are taken from trial court record. Because the case came to the Ninth Circuit on the school districts motion for summary judgment, the court was obliged to construe the evidence in the record in the light most favorable to the Reddings, the nonmoving party.
Cox, R. A., & Manson, M. (2004, December 1). Ninth and Last. Center for Individual Freedom Foundation. Retrieved July 20, 2008 from http://www.centerforindividualfreedom.org/media/ninth-and-last.htm
Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980).
New Jersey v. TLO, 469 U.S. 325 (1985).
Redding v. Safford Unified School District, No. 05-15759 (9th Cir. Filed July 11, 2008).
Will, G. (2006, November 16). Ninth Circuit keeps Supreme Court busy. Oakland Tribune. Retrieved July 18, 2008 from http://findarticles.com/p/articles/mi_qn4176/is_20061116/ai_n16863140