Strip search of student unconstitutional, but school officials immune from suit
The U.S. Supreme Court, in an 8-1 decision, has ruled that a strip search of an Arizona student violated her Fourth Amendment right to freedom from unreasonable search and seizure, but concluded that school officials were entitled to qualified immunity from her lawsuit because her rights were not clearly established at the time.
When a student at Safford Middle School (SMS) told school officials that Savana Redding and a friend were distributing prescription drugs on campus and turned over a pill he said he had received from Marissa, a search of Marissa’s pockets and wallet turned up some pills, including over-the-counter medication she said she had gotten from Savana. Confronted with Marissa’s admission, Savana denied all allegations but eventually was made to disrobe in front of a school nurse in a fruitless search for pills. Savana sued Safford Unified School District #1 (SUSD1), but a U.S. district court and then a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled in the school district’s favor. Sitting en banc, the Ninth Circuit subsequently vacated the three-judge panel’s decision, finding not only that the search was unconstitutional but that the school officials were not entitled to qualified immunity from the suit because their actions were so obviously illegal that no reasonable public official could have believed otherwise.
The Supreme Court affirmed in part, reversed in part, and remanded the case to the Ninth Circuit with instructions that the lower court should address the question of the school district’s liability, which the Ninth Circuit had not yet addressed. Justice Souter’s majority’s opinion was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, and Alito.
While the circumstances of the case justified a search of Savana’s backpack and outer clothing, the Court found, the strip search involved both subjective and reasonable societal expectations of personal privacy “requiring distinct elements of justification on the part of school authorities.” While the “indignity of the search” alone did not make it unconstitutional, it did “implicate the rule of reasonableness as stated in [New Jersey v. T.L.O., 469 U.S. 325, 341 (1985),] that the search be reasonably related in scope to the circumstances which justified the interference in the first place.” Under T.L.O., whether the scope is permissible depends on the age and gender of the student and the nature of the infraction. Here, the Court found that the nature of infraction posed a “limited threat” because of the limited quantity of the drugs and the limited danger of prescription Ibuprofen. The assistant principal “… must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, … [he] had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.” Nor did he have any reason to suspect Savana of concealing the pills in her undergarments. The “combination of these deficiencies was fatal to finding the search reasonable,” the Court wrote.
On the issue of qualified immunity, the Court concluded that the law was not clearly established because “the cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law.” The Court did acknowledge the dangers of drugs and the need to keep them out of schools, and stressed that “standards of conduct for schools are for school administrators to determine without second-guessing by courts lacking the experience to appreciate what may be needed.”
In his opinion concurring in part and dissenting in part, Justice Stevens took issue with the majority on the question of qualified immunity. To the extent lower courts may have had misapplied T.L.O., this should not be determinative of whether a right is clearly established. In finding this search unconstitutional, he argued, the Court “chart[ed] no new constitutional path.” Justice Ginsburg, who joined Justice Stevens’ opinion, also filed her own opinion arguing the law on such searches had been clearly established since T.L.O. and that the school official’s actions in this case were egregious.
Justice Thomas’ dissent disputed that the search was unconstitutional and argued that the majority imposed a “vague and amorphous standard” on school administrators, who “have a specialized understanding of the school environment, the habits of students, and the concerns of the community.” He placed the search in the context of recent experiences in the school district with over-the-counter and prescription medication and noted national reports citing the dangers and growing scope of the problem among young people. He argued that the majority was departing from the longstanding Fourth Amendment principle that the scope of the search is limited to where contraband might be concealed, not only where officials have reason to believe it is concealed. Savana “would not have been the first person to conceal pills in her underwear,” he noted, citing a string of headlines. “Nor will she be the last after today’s decision, which announces the safest place to secrete contraband in school.” The majority, he argued, “has placed school officials in an impossible spot” by questioning the dangers of the contraband.
Safford Unified Sch. Dist. #1 v. Redding, No. 08-479 (U.S. June 25, 2009)
[Legal Clips Editor’s Note: For background on the case, including NSBA’s amicus brief urging the Court to be mindful of how its ruling as to this particular search would affect the full range of searches in schools, see below.]
NSBA School Law pages on Safford Unified Sch. Dist. #1 v. Redding