July 21, 2008
There’s something to be said for not doing things that don’t make a lick of sense. Don’t stick a fork in a toaster, don’t thump a bees’ nest with a broomstick and don’t strip-search a 13-year-old girl because a classmate identifies her as a supplier of Advil.
It sounds like something no one would do to begin with, but here’s the opening of the majority opinion in Redding v. Safford Unified School District #1, a 9th U.S. Circuit Court of Appeals case decided July 11: “On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen-year-old honor student Savana Redding.” So in fairness, it wasn’t Advil — it was double-strength Advil.
The Court seems to be wondering how on Earth we got here, and it’s not hard to see why.
The short version of the story goes like this: Savana’s school prohibits carrying either prescription or over-the-counter medication without permission. A kid named Jordan comes to school officials and shows them a pill he says he got from a kid named Marissa, and the nurse identifies the pill as prescription-strength ibuprofen — each pill equals two Advil. Marissa is pulled out of class, and when she empties her pockets, she’s indeed carrying ibuprofen tablets. Marissa has a day planner with her that Savanna loaned her, but the pills are not in it. But after being caught with them, she says she got the pills from Savana. So now Savana is pulled out of class, but a search of her possessions turns up nothing. On the strength solely of Marissa’s claim that Savana gave her the ibuprofen at some point, assistant principal Kerry Wilson sends Savana off with his administrative assistant and the school nurse for a strip search. She’s forced to remove her shirt and pants and pull her underwear and bra away from her body to shake them out. She is brought back and forced to sit outside Wilson’s office for two and a half hours. She later calls it the most humiliating experience of her life. No pills are found.
Savana’s parents sue the school, claiming that her Fourth Amendment right against unreasonable search and seizure was violated.
As the case progressed, Savana’s family lost in the district court and lost again in front of a 9th Circuit three-judge panel. It was only when the case was reheard en banc (by all 11 9th Circuit judges) that the Reddings got the decision common sense dictates: Wherever the line is that separates reasonable from unreasonable, this is far beyond it.
School searches have always stumped courts. A teacher doesn’t get a warrant before she snatches away a suspected crib sheet. But schools are government actors, and they can’t ignore the Fourth Amendment. Here, the Court looked to New Jersey v. T.L.O., in which the Supreme Court developed a relaxed standard for school searches. T.L.O. requires that any search be justified at its inception based on reasonable suspicion that it will uncover contraband and then that it be “reasonably related in scope to the circumstances that justified the interference in the first place” and “not excessively intrusive in light of the student’s age and sex and the nature of the infraction.”
The majority found that the strip search of Savana was not justified at its inception because there was not enough information to suggest that it would reveal contraband. More emphatically, it concluded that the search fell far short of the second standard: the requirement that the search not be excessively intrusive under the circumstances.
In fact, the majority went a step further. It stripped Wilson of his qualified immunity from suit, concluding that he could not have reasonably believed that strip-searching Savana was lawful.
Eight of 11 9th Circuit judges agreed that the search was unconstitutional; two of those dissented from the separate decision to deny Wilson immunity. But, in a perplexing and frustrating dissent, three judges maintained that the strip search of Savana did not violate her rights.
This dissent, at times, bends so far backward to find support for the strip search that it seems fanciful. It concludes that Jordan’s claim that Savana once gave her friends alcohol before a school dance provides additional support for searching her underwear for ibuprofen. It can see no reason Marissa would have an ulterior motive for fingering someone else as the source of the pills. It claims that when one girl loans another a day planner, that provides strong evidence that they share contraband. It even concludes that further questioning of students and teachers would be “extraordinarily intrusive” — apparently concluding that a strip search is preferable.
Fear of Litigation Trumps Common Sense
None of this makes sense. No one would want children subjected to school systems that operated so capriciously, no one believes this search advanced safety and no parent would accept this treatment of his own child. The dissent feels strained and defensive, as if circling the wagons to avoid a terrible threat.
The threat, of course, is litigation — the fear that if schools are not given enough discretion, they will be left at the mercy of parents who sue because someone made their kid hand over the note he was passing in class. Indeed, the Court recognizes the threat of community outrage when a school guesses wrong, saying: “Let us be realistic: Had Wilson not acted swiftly and decisively, and had a child fallen ill, the community would have been outraged by the school’s laxity.” Given this fear of community judgment when a school’s judgment isn’t perfect, courts frequently leave schools with wide latitude.
This often takes the shape of deferring to school administrators’ “expertise,” as in the dissent’s statement that it defers to the school’s “expertise” on the dangers of ibuprofen, even though it’s not at all clear that school officials are experts in pharmaceuticals. But in fact, we do not defer to school administrators mostly because they are experts; we defer to them because we ask so much of them. We ask them to manage throngs of students with limited resources, and if they weren’t granted flexibility and authority to set rules, they would have time for nothing but attending depositions. And here, a school cannot allow 8th-graders to distribute either prescription drugs or over-the-counter drugs to each other at school; there’s no argument on that point.
But we can’t lose sight of the line, and judges can’t be afraid to draw it. When only the thinnest thread connects an 8th-grader to a substance most students probably can find at home above the bathroom sink, a careful investigation is appropriate, but an immediate strip search is not. That response is excessively intrusive given the nature of the infraction and the age of the student — precisely as T.L.O. describes. What’s surprising is not that eight judges realized the strip search was excessively intrusive; what’s surprising is that three judges did not.
Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.
American Civil Liberties Union. Affidavit of Savana Redding. Nov. 3, 2004.
New Jersey v. T.L.O., 469 U.S. 325 (1985).
Redding v. Safford Unified School District #1, 504 F.3d 828, 834 (9th Cir. 2007), rev’d en banc,
514 F.3d 1383 (9th Cir. 2007).