Illinois Bar Journal

October 2009Volume 97Number 10Page 490

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Strip-search of student violates Fourth Amendment

Education lawyers say the U.S. Supreme Court’s Safford ruling confirms their longstanding advice to school officials: don’t strip-search kids.

Suspecting a 13-year-old girl of secreting ibuprofen on her person, school administrators in Safford, Arizona strip-searched her. A bit extreme? The child’s mother thought

so, and sued the school district, alleging violations of her daughter’s rights under the Fourth Amendment of the U.S. Constitution. A U.S. district court and a panel of the ninth circuit found no constitutional violation and said the search was reasonable.

Sitting en banc, however, the ninth circuit as well as the United States Supreme Court disagreed, holding that the strip search violated the girl’s Fourth Amendment right against unreasonable search and seizure. The case is Safford Unified School District No. 1 v Redding No 08-479, 129 S Ct 2633 (2009).

The facts

In early October 2003, a student told the school’s vice-principal, Kerry Wilson, that a girl named Marissa had given him a pill and that other students were planning to take pills at lunch. The school nurse identified the pill as prescription-strength ibuprofen. School rules prohibited the use or possession of any drug, including over-the-counter remedies, on school grounds without advance permission.

Called out of her classroom by Wilson, Marissa revealed several of the same prescription-strength ibuprofen pills as well as an over-the-counter NSAID pill and a razor blade in her pockets. She said that Savana Redding, another 13-year-old student, had given her the ibuprofen. Additionally, a black planner found on the desk next to Marissa’s turned out to contain knives, a lighter, and a cigarette. Marissa denied ownership of the planner or knowledge of its contents.

Wilson then called Redding out of class and into his office. On viewing the planner and its contents, Redding said that the planner was hers but the contents were not and that she had loaned it to Marissa a few days earlier. She also denied knowing anything about the pills or giving them to other students. Though Wilson searched her belongings with her consent, he found nothing.

Wilson then asked Helen Romero, a female administrative assistant who had been observing these proceedings, to take Redding into the nurse’s office and search her clothing for pills, as he had already directed them to do with Marissa. Romero and the nurse did so, requiring Redding, like Marissa, to strip to her underwear. They then told her to pull the elastic of her underwear out from her body. As with Marissa, they found no pills or any other contraband.

Standard for school searches: short of probable cause

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and, said the Court, generally requires a law enforcement officer to have probable cause for conducting a search. The Court previously held, however, that the standard for school officials to conduct searches of students falls somewhere short of probable cause. In New Jersey v T. L. O., 469 US 325, 342 (1985), it said a search of a student by school officials must be “reasonably related to the objectives of the search and not excessively intrusive in light of the student’s age and sex and the nature of the infraction.” Id at 326.

The Safford Court had no difficulty in finding that the circumstances presented to school officials justified a search of Redding’s backpack and outer clothing. Remarking that Wilson’s sus picions failed to match the level of the “degrading” search to which he ordered Redding to submit, however, it found that requiring Redding to take her clothes off so that officials could see whether she was hiding pills in her underwear was unreasonable and a violation of the Fourth Amendment.

Only if an official had a “reasonable suspicion of danger or of resort to underwear for hiding evidence of wrong-doing” would a strip search be warranted, said the Court. Noting the historical divisions of opinion on the matter from lower courts, the Court found that the officials in question were protected from liability by qualified immunity. It remanded that case for consideration of the school district’s liability.

“[N]ot worth the potential liability”

Decatur lawyer Everett Nicholas, chair of ISBA’s Education Law Section Council, said neither he nor the rest of the section council was surprised at the result in Redding. Despite the Court’s statement that strip searches of students might be reasonable under some circumstances, Nicholas said he couldn’t think of any.

“We’ve always advised our clients that strip searches are stupid and an invitation to disaster,” he said. “In almost all cases where school officials have strip-searched students, they never find what they’re looking for. The microscopic possibility of finding contraband is not worth the potential liability.”

But what if school officials reasonably believe a student to have secreted, say, a weapon, in her underwear? At a point like that, Nicholas believes, school administrators should recognize the limits of their expertise, which, after all, is in education, not in law enforcement. “Call the police!”

Helen W. Gunnarsson is an attorney and writer in Highland Park. She can be reached at