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Supreme Court rules strip search of 8th grader was illegal

This article first appeared in the St. Louis Beacon, June 25, 2009 - Public school administrators cannot order the strip-search of young, adolescent girls when they are not searching for dangerous drugs and have no reason to believe the drugs are hidden in the child's underwear.

That is what the U.S. Supreme Court decided on Thursday in ruling in Redding vs. Safford that an assistant principal from Arizona violated the privacy of a 13-year-old girl in 8th grade when he ordered her to be strip-searched to find prescription Ibuprofen tablets.

Justice David H. Souter wrote for the court that "because there were no reasons to suspect the drugs presented a danger or were concealed in (the girl's) underwear, we hold that the search did violate the Constitution."

The court majority went on to rule that the assistant principal was entitled to immunity from suit because the legality of strip-searches of high school students was up in the air, with some federal courts having permitted them. Justices John Paul Stevens and Ruth Bader Ginsburg disagreed on this part of the ruling. "It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude," wrote Stevens.

Only Justice Clarence Thomas would have upheld the search. He wrote that the court should not second-guess school administrators.

In recent years, the Supreme Court has upheld mandatory drug tests of high-school students involved in athletics, student government and other activities. Twenty-four years ago, in T.L.O. vs. New Jersey, it ruled that school administrators didn't have to have probable cause to search students but were justified in searching them if they had reasonable suspicion of a law or rule violation. But the court also cautioned that the search should "not (be) excessively intrusive in light of the age and sex of the student and the nature of the infraction."

Roger Goldman, a law professor at Saint Louis University, said in an interview that it is unusual for a person to win a search claim when authorities do not need to show probable cause, but instead need only show that they acted reasonably.

It also is unusual for a student to win a privacy claim against a school district invoking the war on drugs, as the Arizona district did. The district claimed that "students have begun to experiment with drugs at a progressively earlier age, and the drugs of choice have changed," from street drugs to drugs in the "the family medicine cabinet." It said "prescription drugs are the drugs of choice" because of the "dangerous myth that these drugs provide a 'safe' high." 

But the Supreme Court did not buy the argument this time.

Savana Redding was a 13-year-old honors student in the 8th grade of the Safford, Ariz., schools when she came under suspicion for handing out Ibuprofen-400 pills. The school had a drug-free policy. A friend of Redding's told an assistant principal that Redding had given her several pills she had in her possession. The assistant principal did not ask her when Redding had allegedly given her the pills or whether she had them hidden in her clothing.

The assistant principal searched Redding's backpack, a search that all of the courts found to be reasonable and legal. Finding nothing, he asked a female administrator and the school nurse to search Redding's underwear. They asked her to pull her bra away from her body and to pull out the band of her underpants. Nothing was found.

Souter said Redding found this strip-search to be "embarrassing, frightening, and humiliating." He said that was consistent with the experiences of "other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure." Social workers had filed friend of the court briefs stating that such searches could cause "serious emotional damage."

Removing clothes in a strip-search is different from dressing out for gym, Souter wrote. "Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be."

Souter went on to say that "the meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.

"Here, the content of the suspicion failed to match the degree of intrusion. Wilson (the assistant principal) knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve. He 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, Wilson 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 could Wilson have suspected that Savana was hiding common painkillers in her underwear."

The generalized suspicion that students violating a school drug policy will hide drugs in their underwear is not enough to justify a strip search, he wrote. "When the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off."

The court sent the case back to the lower courts to determine if the school district can be held liable for the unconstitutional search. Goldman said that in order to win, Redding will have to show that the district had a custom or policy that gave administrators the discretion to conduct the strip-search.  One factor that may help is that Redding's friend, who had said she got the pills from Redding, also was subjected to a strip-search.

The school administrators will not have to pay. The two women who conducted the search cannot be sued because they were not exercising independent decision-making power. The assistant principal has immunity because of the uncertainty of the law.  But an administrator who conducts a similar search in the future will be liable for his actions.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.