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Supreme Court to Hear Honor Student Strip Search Case

The Supreme Court agreed yesterday to hear the case of Savana Redding, who, as “a 13-year-old honor student who was subjected to a strip search by school officials in Arizona looking for prescription-strength ibuprofen.” The gist of the dispute, as described by Adam Liptak for NYT:

The strip-search case was brought by the mother of Savana Redding, who in 2003 was an eighth-grade student at a public middle school in Safford, Ariz. Another student, found with ibuprofen pills in violation of a strict school policy, said Savana had given them to her.

School officials searched Savana’s belongings, made her strip to her bra and underwear, and ordered her, in the words of an appeals court, “to pull her bra out to the side and shake it” and “pull out her underwear at the crotch and shake it.” No pills were found. The pills that prompted the search had the potency of two over-the-counter Advil capsules.

A trial judge dismissed the parent’s case against the school officials, ruling that they were immune from suit. After a divided panel of the United States Court of Appeals for the Ninth Circuit affirmed that decision, the full appeals court agreed to a rehearing. By 6 to 5, a larger panel of the court reversed the decision, saying the suit could go forward against the assistant principal who had ordered the search. “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,” Judge Kim McLane Wardlaw wrote for the majority, quoting a decision in another case. “More than that: it is a violation of any known principle of human dignity.”

Judge Michael Daly Hawkins, dissenting, said the case was in some ways “a close call,” given the “humiliation and degradation” Savana had endured. But, Judge Hawkins concluded, “I do not think it was unreasonable for school officials, acting in good faith, to conduct the search in an effort to obviate a potential threat to the health and safety of their students.” “I would find this search constitutional,” he wrote, “and would certainly forgive the Safford officials’ mistake as reasonable.” In an aside, he discounted Savana’s school record. “Unless we think that the Fourth Amendment gives greater protection to good test takers,” he added, “there is only so much weight we can give to Redding’s honor-student status.”

Here’s a question: What gives “school officials” any right to conduct a strip search of a student, regardless of her grades? Her locker? Sure. But her person? I’m thinking that’s a job for police officers with a valid search warrant.  Furthermore, I’d say suspicion of possession of analgesics is below the threshold required for justifying a strip search.

T. Christopher Kelly agrees but fears a sideways outcome:

nfortunately, the Supreme Court might decide that its precedent does not “clearly establish” that strip searches of students are unreasonable under the circumstances that existed in Savana’s case, and that the school officials are therefore entitled to qualified immunity from suit. If it takes that route, it might even duck the central question: whether Savana’s right to be free from an unreasonable search was violated. That’s one of the problems of the Supreme Court’s invention of qualified immunity: it inhibits the natural development of the law.

Qualified immunity is supposed to shield public officials from lawsuits when the law is ambiguous so that they can discharge their responsibilities fearlessly (even if stupidly, as in Savana’s case). No reasonable public official should think the Constitution permits a strip search of a student for an item that isn’t dangerous based on such flimsy information.

I’m afraid that overestimates the intelligence of public officials.

As a further aside:  The fact that it’s taken six years of persistence on the part of Savana’s parents — at the cost of who knows how much time and money — to get this far is simply stunning.  If justice delayed is justice denied, then dragging a case on so long that an eighth grader is halfway through college surely qualifies.

Story via Memeorandum. Photo by Flickr user Muffet, used under Creative Commons license.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. just me says:

    I don’t think whether or not a child is an honor student should matter here-as if only honor students should be protected from searches or as if only non honor students would break the rules.

    I think a strip search of any student crosses a major line. Search a kid’s locker, search their backpack. and I wouldn’t even object to having a kid empty their pockets or turn them out or bring in the drug sniffing dogs. But making them take off their clothes seems over the top-for pretty much anything.

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  2. James Joyner says:

    The only thing the “honor student” adds to the case is a slightly heightened presumption of trustworthiness. But, as I say in the original post, “What gives ‘school officials’ any right to conduct a strip search of a student, regardless of her grades?”

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  3. sam says:

    What gives “school officials” any right to conduct a strip search of a student, regardless of her grades?

    Brings to mind Mark Twain:

    First God created idiots. That was for practice. Then He created school boards.

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  4. Dave Schuler says:

    I suspect that what this case reflects are the consequences of a “zero tolerance” policy. Such policies are great for bureaucrats: they don’t need to make distinctions among differing cases. However, as this particular case shows, they’re lousy policy.

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  5. […] Via James Joyner, more lunacy in the drug war front: […]

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  6. Shouldn’t the fact that the “contraband” in question is Advil — a non-prescription, over-the-counter pain reliever — have some bearing on the reasonableness of any search ?

    Just a thought….

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  7. PD Shaw says:

    I would not be surprised if the parents lose this one. I’m not sure many members of the Court want to be involved in review of school’s efforts to provide an orderly learning environment. Or figure out how to analogize criminal due process rights to a school setting. Schools have quasi-parental responsibilities to their students.

    Personaly, I’d like to see more school officials fired for their lack of judgement (like that shown here).

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  8. PD Shaw says:

    It seems to me that there are two approaches available here:

    1. Schools are supposed to act reasonably under the circumstances and must consider the harm being policed (OTC medicine vs. firearm), the record of the detainee (honor student vs. perpetual trouble-maker), the risk that the contraband will disapear before a warant can be received, the reliability of the evidence (rumors vs. eye-witness observation that something was being hidden on the person), etc.

    2. Schools can never perform strip searches.

    T. Christopher Kelly seems to be suggesting that under the first approach, the student will lose the case.

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  9. anji-san says:

    I cannot think of any circumstance where school officials would be justified in strip searching a student. That’s what cops are for.

    Were the school officials fired? If it had been my kid, somebody would have gotten their ass kicked.

    Like or Dislike: Thumb up 1 Thumb down 0

  10. Tad says:

    The Atlantic recently brought an old article of it’s own on it’s main page a few days ago about the 4th amendment. Amongst other things, one trust of the article was about how the amendment was supposed to enable law suits for citizens who had undergone unreasonable searches, how warrants were/have undermining this protection. It seems to me that no one should have immunity from a law suit for this type of crap, fear of a law suit seems like a fairly good deterrent.

    Anyway its a good article, old but as nothing has much changed still good, and relevant to this story
    http://www.theatlantic.com/issues/2000/10/budiansky.htm

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  11. […] Daily life, Drug laws, Education, Government at 9:17 am by LeisureGuy John Cole of Balloon Juice: Via James Joyner, more lunacy in the drug war front: The strip-search case was brought by the mother of Savana […]

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  12. Drew says:

    PD Shaw observes: “I’m not sure many members of the Court want to be involved in review of school’s efforts to provide an orderly learning environment.”

    I’m not legally trained or legally well read, but isn’t such a consideration irrelevant? Isn’t the very essence of whether the court decides to take a case, or not, the existence of a Constitutional issue requiring their ruling, which this one apparently has?

    Tad : Thank you for linking that article. Again, I’m no lawyer, but I would think that the current court is populated by as many “originalists” as any court in memory. Hence, it would seem that absent a warrant, they would immediately jump to their view on the existence, or not, of probable cause….and just stop there. Said another way, TC Kelley’s last sentence has it correct, and the argument is over. (If anyone thinks a young child caught red handed with contraband telling the teach “not my fault; Savana gave them to me” is plausible, and constitutes probable cause, then they have either lost their mind or never had children.)

    I suppose the opposing view would be that no matter, the “good faith” safe harbor protects the school officials. But if that applies to this set of facts, then that “harbor” is as big as all the oceans in the world combined, and seems a useless concept.

    Last thought, a question for those with more legal insight really. The law says that tort claims against the government are a remedy for unreasonable search and seizure. I know schools are public, but its not like they are the police. Why is this a matter where this law applies? The parents have apparently brought a civil suit, but is this really a 4th Amendment case? (I guess since the Court(s) have/are hearing it, it must be. But it seems odd. If the school was private, would the school’s defense hold??)

    Any thoughts appreciated.

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  13. Drew says:

    Perhaps to have been more clear, in the last paragraph above I should have said, is this a situation where a 4th Amendment defense applies.

    Do searches by non-governmental authorities fall under this law??

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  14. just me says:

    Or figure out how to analogize criminal due process rights to a school setting. Schools have quasi-parental responsibilities to their students.

    And you know one troubling thing here is having advil at school and giving it to another student isn’t criminal at all. There is a school policy against it, but the cops aren’t going to come and arrest a student for having advil or giving it to somebody else. It is a legal OTC drug.

    I am not convinced strip searches are okay when it comes to kids with advil especially and while there is a good reason to create rules prohibiting kids from giving meds to other kids, I don’t think those reasons should extent to making a kid take her clothes off in front of other adults.

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  15. […] don’t want school officials on a sick power trip strip-searching our daughters because of suspicions that they brought a couple of painkillers to school. addthis_url = […]

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  16. anjin-san says:

    In this instance, I find myself in complete agreement with Drew. It is troubling that government employees are shielded from legal accountability for their actions.

    I don’t care what the circumstances are. School authorities have no cause to strip search a thirteen year old girl. We are on a slippery slope here and I think this is something left and right can agree on. We cannot allow government employees to simply act as they wish under cover of authority without fear of consequence.

    In this case, the vice-principal and everyone above him in his reporting chain needed to be fired.

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  17. PD Shaw says:

    Drew, my impressions are based somewhat on my recollection of the SCOUTS case last year involving Bong Hits 4 Jesus. I don’t think a majority of the court wants to rule over the day to day decisions of school officials, even if the school officials seem unreasonable.

    From that perspective, James is asking the wrong question (what right does the school have?). I think the traditional rule is that grade schools and high schools are in loco parentis, they have powers and duties in relation to the students that derive from the parents. It’s difficult to analogize that relationship with the traditional police powers that are the reason for the Fourth Amendment.

    The correct question is what is the court’s role? I can’t tell from the link, but I assume that this is a Section 1983 action. That is, the Klu Klux Klan Act, a private lawsuit against state officials using the color of law to violate federal constitutional rights. The official will have to clearly have violated a federal constitutional right. A lot of these cases when successful result in $1 in damages, plus attorney’s fees.

    One question I have: If strip-searching students is so unpopular, why haven’t the legislatures passed laws forbidding this practice?

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  18. Drew says:

    “In this instance, I find myself in complete agreement with Drew.”

    Can you feel the love?

    Seriously:

    “We are on a slippery slope here and I think this is something left and right can agree on. We cannot allow government employees to simply act as they wish under cover of authority without fear of consequence.”

    But you see, anjin, traditional left vs right arguments that devolve into stupid “who cares for (name your favored victim group),” “the right is greedy,” “we need government to protect us,” “regulate the corporations,” “tax the rich, more, more, more” blah, blah, blah miss the point.

    The REAL argument from the right revolves around just what YOU worry about. That a large and empowered government will behave in a very predictable way – badly, steadily encroaching on our liberties. And who in their right mind can argue government is too small and unempowered today??

    The current government is plenty empowered (and prepared under Obama to increase this power) to take more and more of our resources (with little to show for historical confiscation), to do what they want with impunity……and plies a leftist portion of society that behave like lambs, naively believing that governemnt is benevolent, and will “do good.” The track record is dismal.

    This particular case is but a microcosm of what I observe in my life – government behaving badly – and what I fear for the future, and my daughter’s future.

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  19. Matt says:

    Drew Obama isn’t even in charge yet buddy so tone down the derangement to at least when he’s in office.. Thanks.

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  20. Drew says:

    “I don’t think a majority of the court wants to rule over the day to day decisions of school officials, even if the school officials seem unreasonable.”

    That certainly is a proposition that seems hard to argue with. But isn’t it true that many issues that arise to the level of the high court start at what seem like minor day-to-day slights and insults, but that really involve pretty fundamental issues. Where you can sit on a bus or drink from a water fountain are really trivial issues, from a practical perspective….unless you consider that the real issue is one of basic rights.

    Isn’t it a fundamental right not to be strip searched without a warrant (which implies probable cause) or with probable cause. And is this not the issue – from some minor incident (easy for me to say) – we see elevation to a major decision on what constitutes probable cause, or invocation of the “good faith” safe harbor?

    I better stop now. Some law professor may be laughing at me.

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  21. Drew says:

    Matt –

    You may have just awakened from your twenty year nap today, Rip. But since November Obama has been giving non-stop press conferences, complete with dire assessments of the economy and his resultant Big Governemnt proscriptions. To say nothing of Chief of Staff Emmanuel’s observation: “never let a good crisis be a wasted opportunity (to grow govt).”

    I actually have not been comatose. Get yer head out of yer arse and WTFU… buddy. Thanks.

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  22. Drew says:

    PD Shaw –

    “I think the traditional rule is that grade schools and high schools are in loco parentis, they have powers and duties in relation to the students that derive from the parents. It’s difficult to analogize that relationship with the traditional police powers that are the reason for the Fourth Amendment. The correct question is what is the court’s role?”

    I guess this is what I am clumsily asking. If I lost my mind and walked up to some babe on the beach, ripped her suit off and copped a feel, wouldn’t that be covered under different law than the 4th?? I couldn’t say “well, I had reasonable cause to believe she was unlawfully carrying a gun and might use it. So I strip searcher her. In fact, it was my “duty.” (nyuk, nyuk) And how does parental duty enter??

    “I can’t tell from the link, but I assume that this is a Section 1983 action. That is, the Klu Klux Klan Act, a private lawsuit against state officials using the color of law to violate federal constitutional rights.”

    This sounds right, and what I’m getting at.

    “The official will have to clearly have violated a federal constitutional right. A lot of these cases when successful result in $1 in damages, plus attorney’s fees.”

    Which means there is no throttle.

    “One question I have: If strip-searching students is so unpopular, why haven’t the legislatures passed laws forbidding this practice?”

    Rarity of the event?

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  23. Matt says:

    I’m sorry Drew it appears that I’m insane for daring to wait to see what Obama actually does instead of assuming the worst is going to happen..

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  24. steve s says:

    20 years ago I was a high school student in the most redneck, conservative county in North Florida. I watched as the town went Hog Wild for Zero Tolerance. They explained that there would be absolutely no bending of the rules. When it became clear that under this policy not only could carrying midol could get you expelled, the lack of administrative discretion meant you had to be expelled, many of us realized how stupid and destructive this would be.

    About 3 years later at the local community college, a friend of mine had to drop out when she was caught with a single joint and her student loans were automatically cancelled.

    It’s not a War on Drugs. It’s a War on Citizens.

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  25. Drew says:

    Well, Matt –

    Can I safely assume you voted for him? On what basis? His actions, or his words? Lord knows he had absolutely no legislative track record commensurate with the office he is about to take that one might have evaluated. So listening to his words were the only option.

    So do words matter? Or not?

    And I’m dead serious, have you been paying attention to the gattling gun like press conferences?? Have you been paying attention to the words? Unless you think he is bald faced lying……that must account for something.

    Are you insane? No. Oblivious, or amazingly trusting without cause. Yes.

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  26. anjin-san says:

    The current government is plenty empowered (and prepared under Obama to increase this power) to take more and more of our resources (with little to show for historical confiscation), to do what they want with impunity……and plies a leftist portion of society that behave like lambs, naively believing that government is benevolent, and will “do good.” The track record is dismal.

    Well Drew, as the right cheered, Bush launched a massive and fairly successful assault on the constitution, combined with a massive increase in the size and cost of the federal government.

    Obama, on the other hand, has yet to take office.

    Perhaps you should try to get a little firmer grounding in reality. And please, stop claiming to be non-partisan.

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  27. anjin-san says:

    “One question I have: If strip-searching students is so unpopular, why haven’t the legislatures passed laws forbidding this practice?”

    Are you seriously arguing that there need to be laws to prevent school official from ordering a thirteen year old girl to undress? Forgive me, but this is insanity.

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  28. Franklin says:

    Regarding the case: I don’t know too much about the legalities, but on the face of it this strip search was completely over the line and I don’t really think anyone should have legal immunity from their actions. I completely understand keeping a school orderly but I completely fail to understand how this accomplishes that goal.

    I laugh everytime I see someone blame the left or right exclusively for encroachment on personal liberties. Each side has their favorite amendment; personally I think all of them are pretty good.

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  29. Franklin says:

    Drew-

    We’re all waiting with baited breath to find out who YOU voted for (this should be good).

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  30. PD Shaw says:

    If I lost my mind and walked up to some babe on the beach, ripped her suit off and copped a feel, wouldn’t that be covered under different law than the 4th??

    That would be at least a battery. If instead you ordered the babe to strip, she would either do so or not do so. If she did so, it was a voluntary act and no wrong. The idea in this thread that the government is getting immunity from something private citizens can’t do is not very accurate. We are talking about the government’s use or misuse of authority that private citizens do not have.

    If you spank the babe, it’s battery and you can be arrested criminally or sued civilly. Same rule for teachers?

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  31. PD Shaw says:

    Are you seriously arguing that there need to be laws to prevent school official from ordering a thirteen year old girl to undress? Forgive me, but this is insanity.

    I find it insane to go ask a bunch of judges to write school policy. We do have laws that place special requirements on law enforcement when dealing with minors. We do have laws on corporal punishment in school.

    One of the problems with judge-made rules is that they are usually case specific, so even if this student wins this case, we won’t have a rule in place when the contraband is a gun or the concealment was observed by school officials. If she loses the case, does that mean its acceptable?

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  32. Zero tolerance is no substitute for backbone. Backbone is compatible with good judgment. Zero tolerance sometimes precludes it.

    The same is true of Jessica’s Law. I’d rather see steps taken in my state to have open judicial retention votes in the Legislature. If we had judges with backbone and common sense, we wouldn’t need Jessica’s Law.

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  33. Drew says:

    “Well Drew, as the right cheered, Bush launched a massive and fairly successful assault on the constitution”

    Infantile bullshit.

    “combined with a massive increase in the size and cost of the federal government.”

    Absolutely true, and why he lost the confidence of conservatives and libertarians, and why the Republican party lost its power.

    “Obama, on the other hand, has yet to take office.”

    Fascinating, you lefties. Words and promises have no meaning. Fascinating diversionary tactic.

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  34. Drew says:

    PD –

    “That would be at least a battery. If instead you ordered the babe to strip, she would either do so or not do so. If she did so, it was a voluntary act and no wrong.”

    This happens alot, and my eyes appreciate it. And I probably abuse my powers, especially with brunettes. ;->

    “The idea in this thread that the government is getting immunity from something private citizens can’t do is not very accurate. We are talking about the government’s use or misuse of authority that private citizens do not have.”

    Agreed. This is what I am trying to get at. I think my query is correct. If a private school official did the same thing as the public school official in this case, would the private official have the same defense? I think not.

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  35. Drew says:

    PD redux –

    Of course you know, in this day and age, if I cop a feel from the babe, I just declare temporary insanity…or maybe uncontrollable environmental stress that forces me to release my inner tension in ant-social ways……and it probably flys, in this day and age.

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  36. anjin-san says:

    Infantile bullshit.

    Well, I can see how it would look that way to you, what with your head being up your ass and all that…

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  37. anjin-san says:

    Fascinating, you lefties. Words and promises have no meaning

    Of course thats only true of the left. When Bush said “No troops overseas without an exit strategy” or “No nation building”, and then did exactly the opposite, well that was…. what the heck was that anyway?

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  38. steve s says:

    If I were the principal no Way In Hell would I order a 13-year-old girl to strip in front of me. I don’t care what the policy was. Not just because it’s wrong–which it is. Visions of local news crews with microphones in my face saying “Why did you demand that the young girl take her clothes off in front of you” would go through my mind.

    I would have sent her home for the day, communicating with her parents that we had information that she was in possession of prohibited pharmaceuticals.

    But I’d never be in that position anyway. I live in one of the most conservative counties in Florida, and though I’m underemployed, last year I declined to take a job at the local high school teaching science (which I’m eminently qualified for). My reason was that no way no how am I going to take a job where the local yahoos can raise hell and get me fired for teaching the basics of evolution, or how we know the earth is old, etc. It’s annoying enough to read from a distance about anti-intellectuals like Limbaugh and Hannity, I don’t need to be answerable to their even more ignorant hordes.

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  39. Drew says:

    Perhaps, anjin, you could give us, in your own words, three to five good solid analytical, factual and persuasive paragraphs on the “massive and successful assault on the Constitution.”

    In advance, might I note that simply claiming I have my head up my ass may pass muster in your sewing circle, but won’t exactly breach the threshold of analytical and persuasive.

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