Redding v. Safford Unified Sch. Dist. #1, No. 05-15759 (9th Cir. July 11, 2008)

The U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, GU, MP), has ruled that a strip search of a middle school student was unconstitutional and that school officials are not entitled to qualified immunity because it was a clearly established such a search violates the Fourth Amendment prohibition against unreasonable searches and seizures. Savanna Redding was a student at Safford Middle School (SMS) in Arizona. SMS’ drug policy prohibits the "nonmedical use, possession, or sale of drugs on school property or at school events." SMS staff members observed a group of students, including Savanna and her friend Marissa, behaving in an "unusually rowdy" manner at a school dance. Some staff detected the smell of alcohol from the group and later that evening a bottle of alcohol and a pack of cigarettes were found in the girls’ restroom. Subsequently, Jordan, another SMS student, told Principal Robert Beeman and Vice Principal Kerry Wilson that Savanna and Marissa were distributing prescription drugs, and turned over a pill he received from Marissa. Marissa was then called to the vice principal’s office where she was questioned and asked to empty the contents of pockets and open her wallet. That search turned up some pills, including an over the counter drug that Marissa said she had gotten from Savanna. Marissa was then strip searched but no more drugs were found. When Savanna was confronted with Marissa’s admission, she denied all allegations regarding knowledge, possession, or distribution of the pills. A search of her backpack and subsequent strip search yielded no drugs. Savanna sued Safford Unified School District #1 (SUSD1) in federal court, alleging an illegal search of her person in violation of the Fourth Amendment. The district court granted SUSD1’s motion for summary judgment, finding the search satisfied the requirements of New Jersey v. T.L.O., 469 U.S. 325, 341 (1985), that it be justified at its inception and permissible in its scope. A three-judge panel from the Ninth Circuit, in a 2-1 split, affirmed the district court’s decision, holding school officials had not violated the student’s Fourth Amendment search and seizure rights when they conducted a warrantless strip search of her person during school hours on school premises after receiving information from two student informants. The Ninth Circuit subsequently granted the student’s motion for a rehearing en banc, i.e. all active judges participating, and vacated the panel’s decision.

The Ninth Circuit affirmed in part, reversed in part, and remanded the case to the district court. It began its analysis by laying out the two step process for evaluating claims of qualified immunity: 1) did the government official’s conduct violate a constitutional right; and 2) was the right violated clearly established. Addressing the question of whether the strip search passed constitutional muster, the appeals court looked to the standard established in T.L.O. While acknowledging the standard is one of reasonableness that “stops short of probable cause,” it made clear the standard does not grant school officials unfettered discretion. It also confirmed that the search of the student satisfied the legal definition of a “strip search” based on both statute and case law. Turning to the issue of whether the strip search was justified at its inception, the appeals court concluded, based on an unsubstantiated tip from a student informant with a motive to deflect blame from herself and that the other evidence marshaled by school officials was “logically unrelated to a reasonable belief that [the student] was hiding pills on her person,” that the search was not justified at its inception. It also concluded that the search was not reasonable in scope. It pointed out that school officials had conducted a highly intrusive strip search in response to the minor infraction of a relatively young student possessing an over-counter pain reliever. It stated: “Approving such a strip search would eviscerate the Supreme Court’s stated goal of developing a standard that ‘ensure[s] that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools.’”

Finally, the Ninth Circuit held that the student’s right to be free of an unreasonable strip search was clearly established. It relied in large part of the reasoning of the Sixth Circuit in Brannum v. Overton County School Board, 516 F.3d 489 (6th Cir. 2008), “that some safeguards on government intrusion remain self evident and do not require a case on point to prevent government officials from hiding behind the cloak of qualified immunity.” As a result, the appeals court found the assistant principal was not entitled to qualified immunity. However, it reinstated the grant of qualified immunity to the school nurse and the assistant principal’s assistant on the ground that they were acting solely pursuant to the assistant principal’s instructions and not as independent decisionmakers.

[Editor’s Note: The Ninth Circuit’s ruling came in a close 6-5 decision that includes two dissenting opinions. The first dissent agreed that the strip search was unreasonable and, therefore, unconstitutional based on the standard established in T.L.O., but parted with the majority on the question of qualified immunity. It argued all the school officials were entitled to immunity because the law on such searches “heretofore did not give adequate guidance to the school officials.” The second dissent disagreed with the majority on both the immunity issue and whether the search fell short of T.L.O.’s reasonableness standard. It argued that the majority opinion “yield[ed] two rules that sweep too broadly: (1) that an uncorroborated tip from a student facing punishment is insufficient to justify the search at issue; and (2) that the search was per se unreasonable because officials were only seeking prescription-strength ibuprofen.” To view a summary of the vacated Ninth Circuit panel opinion, see below.]
NSBA School Law pages on Redding v. Safford Unified Sch. Dist. #1

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