« Justices Weigh Arizona ELL Case | Main | Race, Firefighters, and the Schools in the Supreme Court »

Justices Hear Arguments in School Strip-Search Case


It didn't take long for today's U.S. Supreme Court arguments in a case about the strip-search of a middle school student by school officials looking for drugs to delve into extreme hypotheticals.

Chief Justice John G. Roberts Jr. wanted to know whether upholding the search at issue in Safford Unifed School District v. Redding (Case No. 08-479) would lead to school officials conducting the type of searches faced by "prison inmates," as he delicately put it.

After some back and forth establishing that they were talking about body-cavity searches, Matthew W. Wright, the lawyer representing the Safford, Ariz., school district, said he was not seeking a rule that would go that far.

Body-cavity searches in schools are "something the court can say is clearly off-limits," Wright said, adding later that such searches are not something school officials are trained to conduct.

But Wright very much defended the right of school officials to conduct the type of strip-search at issue with Savanna Redding.

The young woman was a 13-year-old student in 2003 when an assistant principal, relying on a student tip that Redding may have prescription-strength ibuprofen pills that she was distributing to other students, searched her backpack. When that turned up no pills, the assistant principal asked two female staff members to conduct a search of Redding's undergarments. Redding says in court papers she had to shake her bra and panties to reveal whether she had hidden contraband in them. No pills were found in the search. (See previews in Education Week here and in the blog here. UPDATE: The argument transcript is here.)

Wright told the court that school officials were seeking a "bright-line rule" that once they have a reasonable suspicion that a student may possess drugs (the basic school search standard from the Supreme Court's 1985 decision in New Jersey v. T.L.O.), then a strip-search would be permissible.

School administrators "have to be able to act immediately and flexibly" to such reasonable suspicions about student drug use, Wright said.

The surprise today was that in addition to the court's conservatives, some more moderate to liberal justices seemed receptive to Wright's arguments.

Justice Stephen G. Breyer, a moderate who often expresses sympathies for educators, even questioned whether Savanna Redding's treatment amounted to a strip-search, since she never had to completely disrobe.

"I'm trying to work out why this is a major thing, to say 'Strip down to your underclothes,' which children do when they change for gym, they do fairly frequently ..." Justice Breyer said to the Adam B. Wolf, the lawyer representing Redding and her mother, who challenged the search as unreasonable under the Fourth Amendment.

Wolf earlier had said, "The Fourth Amendment does not countenance [school officials] rummaging on or around a 13-year-old student's body."

Justice Ruth Bader Ginsburg appeared the most troubled by the school officials' conduct. She asked Wright about why after conducting the search, school officials made Redding sit in a chair outside the assistant principal's office for over two hours.

"What was the reason for putting her in that humiliating position?" Ginsburg wondered. Wright said school officials were still carrying out their investigation of the drug rumors.

A U.S. Department of Justice lawyer sought to explain the middle ground it outlined in a friend-of-the-court brief. David O'Neil, an assistant to the U.S. solicitor general, told the justices that "intrusive body searches" should only be permitted at school when officials have information that the student is hiding contraband under his or her clothes.

"We believe that without some particularized suspicion or some specific indication that this, the location, was a likely one to contain the drugs, that this search was excessively intrusive," O'Neil said.

But the department said the officials involved in Redding's search should have been granted qualified immunity from personal liability, which the assistant principal was denied in a 6-5 vote of the panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco. That court voted 8-3 in last year's decision that the search of Redding violated the Fourth Amendment.

But both O'Neil and Wolf, the student's lawyer, seemed to have trouble in persuading the justices for a broad rule against all strip-searches in schools.

Justice David H. Souter, a usually reliable liberal vote on the court, parried with Wolf at length, wondering if he were in the shoes of a school principal, whether it would be reasonable to conduct a strip-search that might embarrass a student in exchange for preventing a potentially dangerous or lethal problem with drugs.

"In the hypo I gave, the risk of the mistake may wll be violent sickness or death," Justice Souter said. "And the ... reasonable analysis in the principal's mind is, 'better embarrassment than violent sickness or death.'"


I am so jealous. I am going to have to get up there for one of these eventually. That is very odd about Souter and Breyer. That certainly does not bode well for Redding.

I personally don't believe the search was legal or justified. The search should have been done with some other family member,school friend or gaurdian also in the room. Based on The information shown on this post as well as the links provided, it is not enough to pinpoint this student as the originator of any contraband. Surely there is two much speculation surrounding this situation. It almost borders on a witch hunt and without clear evidence proving otherwise the school system because of the ill-advised response of its' faculty and staff has created a serious legal dilemma for schools nationwide. There should be no legal immunity for the person who instituted this action as he put himself, his staff and faculty as well as his student in a very precarious position. Surley , I don't believe that some of those staff members were in total agreement with this decision but had no choice but to carry them out as ordered by their superior administrator. How would we respond if it was our 13,14 or even 15 year old daughter? Hopefully the student and staff involved are not psychologically damaged from such an incident. These type actions can have negative effects on other students within the school system and also resonate throughout the community.

It is odd that the even the moderate to liberal judges (save Ginsburg, the only one who WOULD understand the personal consequences of being forced to remove a bra at 13) are actually sympathetic to the school district's cause. Changing clothes for gym is NOT the same as stripping down for an accusatory administrator. I understand the need for a property search if it is intended to head off some possible emergency, but in this case, how hard what it have been to call a parent? I'm not sure how this in anyway constitutes a "reasonable" search. As an adult with full priveleges of the protections the Bill of Rights affords me, I get to call my lawyer if I am in a similar situation, but the child does not get the benefit of a parent in attendance? Furthermore, it just seems a wise, preventative move to head off the kind of negative press that a school would not like to have within the local community to take a minute and call the parent. The student is in custody. It's not as if she was about to run through the halls trying to distribute that one deadly prescription strength ibuprofen. (Ibuprofen!)

Anyone who has a child involved in a strip search would be incensed. Common sense tells you that anything beyond a personal property search ought to involve the parent. Justice Stevens pointed out in his TLO dissent that it is the height of hypocricy and irony that we supress the rights of students in the very place we socialize them to understand and appreciate those very rights. The idea that there is not a reasonable method to search for or deter possible drug sales beyond this extreme method is absurd. Furthermore, the fourth amendment requires a probable cause for a warrant. How does finger-pointing among middle schoolers that could result in a body search meet that test? I am floored that the school district did not just issue a blanket apology and establish and publish a set of "Search Procedures" in future similar cases. Instead they are spending local money to cover what is to most reasonable people, a very unwise disiplinary action.

It is indeed troubling that Breyer and Souter are siding with the School District, and it is even more troubling that their reasoning and logic are completely false.

Breyer thought changing clothes has the same effect as being strip searched. That is like saying "having sex is the same as being raped." Souter argued that strip search is justified since it possibly saves life ("better embarrassment than violent sickness or death.") He forgot his argument can justify any human rights violations, like torture ("better torture than death.") It even justifies killing ("better one dead than 10 dead.")

It is really depression to see our highest regarded intellectuals and authorities to come up with such stuff. However, I am not as pessimistic as most people on the outcome of this case.

Stevens only asked one question that exposed School District's inconsistency in arguing that student informants are more reliable (They face discipline if lied, but the informant in this case, apparently lied, is not disciplined.) Coupled with his reliable pro-rights records, it is safe to say that Stevens will rule in favor of Redding.

Scalia pushed very hard on the question of body-cavity searches, and forced School District to admit the rediculous outcome that body-cavity searches would be legal if strip search is. Besides, Scalia and Thomas justify their conservative records by claiming that they follow the Constitution and law to the letter, without considering Congress's intention or possible social consequences. If they are true to their words (unforunately that is not a given,) I do not see how they can get around the Fourth Amendment in this case. Besides, in a recent case Arizona v. Gant, both of them sided with 3 liberal justices to further restrict car searches. There is a chance, though slim, that they would do the same here.

So if Souter (or Breyer) came to his senses, it is not impossible to have a 5:4 ruling in favor of Redding.

Comments are now closed for this post.

Follow This Blog


Most Viewed on Education Week



Recent Comments