Common Sense Wins in Redding, the School Strip-Search Case
By VIKRAM DAVID AMAR
|Monday, July 6, 2009|
Over the last few weeks, the Supreme Court handed down many significant rulings to complete its 2008-2009 Term. In this column, I offer analysis of one of them, Redding v. Safford, an important Fourth Amendment case whose obviously correct outcome was not expected by everyone. Redding is also a case whose real effects on judges, lawyers, school districts and students probably won't be known for a long time.
The Key Issue in Redding: Is A Strip Search of a Middle School Student to Look for Motrin Unreasonable?
As I explained when I previewed this case in an earlier column, the dispute arose at the Safford Middle School in southeast Arizona. School officials there, concerned about illegal drug use by students, got wind that someone had impermissibly brought to school some 400-milligram tablets of ibuprofen and similar pain relievers. Ibuprofen is a pain and muscle ache drug that is available over the counter, but the 400-milligram tablets -- twice the size of the tablets available for purchase at a grocery store -- require a doctor's prescription. Some of these 400-milligram pills were discovered in the possession of a student named Marissa, who then told school authorities that another student, Savana Redding, had given her the pills, along with a black planner. (When the planner was seized from Marissa and searched, officials found other contraband but no drugs.)
School officials then questioned Savana, who admitted to having loaned Marissa the planner, but denied having any knowledge about, or involvement with, bringing any pills or other drugs or other contraband to school. The school authorities then asked for and obtained Savana's permission to search her backpack, but the search turned up nothing. That's when things got more intense.
A female school nurse and a female administrative assistant then took Savana to another room, directed her to take off her outer clothing and -- when a search of that outer clothing turned up nothing-- instructed her to, in the lower court's words, "pull her bra out to the side and shake it" and pull out her panties at the crotch and shake them. In following these directions, Savana was required to expose some of her breasts and part of her pelvic area. No pills were found.
On her daughter's behalf, Savana's mother then sued the school district and various officials in federal court for damages, alleging that a Fourth Amendment violation had occurred, and that school officials should have seen and avoided that violation.
A divided three-judge panel of the Ninth Circuit Court of Appeals ruled in the defendants' favor, but when the case was reheard by 11 Ninth Circuit Judges sitting en banc, they granted relief in favor of the plaintiff, holding that the search was on balance "unreasonable" -- the standard the courts have applied to school searches. Five of the 11 judges sided with the defendants. Three did so on the ground that there was no Fourth Amendment violation, and two did so on the ground that damages would be inappropriate under the doctrine of "qualified immunity" because any constitutional violation was not sufficiently clear that a reasonable school official should have known he was breaking the law.
The Betting Against Redding
The school district appealed, and in what appeared to be an unhappy development for Ms. Redding, the Supreme Court agreed last fall to take up the case. Many commentators thought that the Court's decision to grant review, along with the tenor of the oral argument held this spring, signaled that the Court would uphold the search and reverse the Ninth Circuit. After all, in a seemingly unbroken line of recent prominent cases involving student rights and the "war on drugs," the Court had (reflexively it seemed) deferred to and affirmed the actions of school officials.
This modern deference began to ripen in 1985, in the New Jersey v. TLO case, where the Supreme Court held that a proper balance of students' and schools' needs requires that a school official's search of a student and her property at a school is constitutional only if the search meets the Fourth Amendment's generalized requirement of reasonableness, under all the circumstances applicable in the particular case. The Court also ruled, however, that probable cause and warrants -- devices used in other Fourth Amendment settings -- weren't necessarily applicable.
The question in Redding, as in all school search cases, is how we give meaning to reasonableness. In TLO, the search of a student's purse that disclosed marijuana and drug paraphernalia was upheld as, on balance, "reasonable."
So too was a school's drug search program in Vernonia School District 47j v. Acton, a case in the 1990s where the Court held constitutional a policy under which a school randomly tested high school athletes for drug use. The Court found that the policy was "reasonable" within the meaning of the Fourth Amendment because of the variety of ways--communal showers and locker rooms, close physical contact with fellow athletes, and the general need to undergo physical exams and medical testing—in which student athletes had already surrendered much of their privacy. The Court also noted that student athletes are often role models in high school, and are especially at risk of physical injury if playing while on drugs.
Vernonia was extended (to my mind, unwisely so) in Board of Education v. Earls in 2002. There, a 5-4 vote upheld a local school board policy on high school drug testing that required each student participating in any extracurricular activity--not just athletics, but also band, choir, or even the Future Farmers of America--to submit a urine sample to be tested.
One might add to these school search cases another case involving student constitutional rights and the "war on drugs" from a few years ago, Morse v. Frederick. There, the Court permitted a school's punishment of a student for unfurling a banner containing the now (in)famous "Bong Hits 4 Jesus" message, reasoning that schools are allowed to punish speech that invites illegal drug use. In essence, Morse recognized a "war on drugs in schools" exception to the ordinary ban that the First Amendment creates on viewpoint-based regulation of speech.
The Supreme Court Rules in Redding's Favor -- Mostly
Because of these consistent rulings in favor of school officials seeking to combat illegal drugs, many observers were somewhat surprised when, last week, the Court in Redding ruled 8-1 (with only Justice Thomas dissenting) that the Safford Middle School officials had conducted an unreasonable search of Ms. Redding and therefore violated the Fourth Amendment. (The Justices also held, though by a much closer vote, that the Fourth Amendment principles governing this case weren't so obvious that the individual school officials should be liable for damages.)
The Court's finding of a Fourth Amendment violation is an important ruling for many reasons. For starters, it breaks the streak of school official victories at the high Court in this area, reminding everyone, at least in a symbolic way, that schools do not always have carte blanche to do as they wish when it comes to student searches. Perhaps even more significantly, the result (and analysis) in Redding helps show that the so-called "reasonableness" approach to implementing the Fourth Amendment that has been called for by many analysts -- an approach under which courts should focus generally not on probable cause or warrants, but rather on overall reasonableness -- need not be toothless or unstructured and, indeed, can serve to vigorously safeguard the privacy and other interests that the Fourth Amendment should protect.
Justice Souter's majority opinion in Redding implementing the reasonableness standard explained that various key factors -- the age and vulnerability of the student, the distinctive intrusiveness of the search and the emotional and dignity interests it implicated, the lack of specific reason to believe Savana was hiding the drugs in her underwear, and the relative lack of danger involved in these particular drugs sought – can inform a reasonableness approach and permit judges to apply it with rigor and consistency.
The Fourth Amendment Questions that Still Persist, Even After Redding
But even as Redding is an important case, it also doesn't answer tough questions down the road. Why? Because the school district had so few plausible arguments on its side. There is an adage that hard cases make bad law. A corollary to that is that easy cases make very little law – and this was arguably an easy case.
Because the position of the school district (and the lower court judges who saw no Fourth Amendment violation) was so untenable on the facts of this case, the ruling for Redding does not tell us much about what the Court's attitude will be – and how lower courts should rule – in future situations when the balance between the school's reasons and the student's interests is a close one. Certainly, Redding gives students a bargaining chip in their dealings with school administrators and reminds school officials that they cannot take judges' support for granted. (And had Redding come out the other way, it would have made a great deal of law, essentially shutting the door on all student claims under the Fourth Amendment.) Yet as things are now, until lower courts apply Redding to invalidate school searches in other, more difficult cases, the question of the ruling's practical effect may remain unresolved.
Redding was an easy case because the search was so extremely intrusive, because there was no significant evidence against Savana, and because Ibuprofen, which anyone can purchase at the store, is not cocaine. The lower court judges who had voted in favor of the school district simply didn't appreciate this. They called into question whether "the level of suspicion required for a search to be justified at its inception varies with the intrusiveness of the search," saying that "it is by no means certain that the Supreme Court would approve" of this proposition. But how could anyone not approve of the idea that -- under a reasonableness model -- the intrusiveness of a search and the quantum of particularized cause for suspicion necessary to justify the search are directly related?
The lower court judges who sided with the district also interpreted their own role in an unjustifiably cramped fashion. On the question of the precise kinds of drugs being searched for, and the harm they might cause, the lower court judges who had voted for the school district said that judges should "resist using our independent judgment to determine what infractions are so harmful as to justify significantly intrusive searches. Seemingly innocuous items can, in the hands of creative adolescents, present serious threats. Courts may not immediately appreciate the wisdom of a school policy that bans, say, aerosol spray cans, but that is why judges are not chosen to run schools."
Of course, it may be true that judges should listen to, and even sometimes give the benefit of small doubt to, school officials who have distinctive experience to share. But courts must, in the end, use a good measure of "independent judgment" to analyze the justifications for searches. If they don’t, then the "reasonableness" standard -- and the Fourth Amendment more generally -- really would be toothless.
Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.