U.S. Supreme Court Clarifies Standards for School Strip Search Cases
Today a 13 year-old student from Arizona won an important victory for the privacy of minors in a school setting. Middle-schooler Savana Redding was accused by a fellow student of distributing prescription-strength drugs to other students. She was forced to endure a humiliating strip search by Helen Romero, the school administrator, in addition to a second search by Peggy Schwallier, the school nurse. Savana’s mother, April Redding, sued on behalf of her daughter, while simultaneously managing to avoid any liability issues associated with her minor daughter allegedly throwing unsupervised parties in her own house, where alcohol and drugs were present. In the just-released slip opinion in Safford Unified School District #1, et. al. v. April Redding, 2009 WL 178472, the Court held that the search was a violation of Savana’s Fourth Amendment rights, but also that school officials were entitled to qualified immunity.
In a carefully reasoned opinion by Justice Souter, the Court found the facts to be such:
“The events immediately prior to the search in question began in 13-year-old Savana Redding’s math class at Safford Middle School one October day in 2003. The assistant principal of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he showed her a day planner, unzipped and open flat on his desk, in which there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines. Savana stated that none of the items in the planner belonged to her.” Id.
The school had previously received reports from one Jordan Romero, another student, who had told the principal and Wilson that students were bringing drugs to school and that he had gotten sick from some pills. He had also attended a party where alcohol existed in greater quantity than parental involvement. The school had already found illicit substances on Marissa, Savana’s friend. Outside of the report of her ‘friend’ Marissa, who was already definitively caught with drugs, Wilson and the school had no independent basis for believing that Savana had any pills on her person, let alone in her underwear.
“At that point, Wilson instructed Romero to take Savana to the school nurse’s office to search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.” Id.
The Court reviewed prior holdings in New Jersey v. T.L.O., 469 U.S. 325 (1985), and qualified immunity claims by Saucier v. Katz, 533 U.S. 194, 200 (2001) to determine that a Fourth Amendment violation had occurred. The Court cited evidence that strip searches and other privacy violations can result in serious emotional and psychological damage to young people:
“Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. See Brief for National Association of Social Workers et al. as Amici Curiae 6-14; Hyman & Perone, The Other Side of School Violence: Educator Policies and Practices that may Contribute to Student Misbehavior, 36 J. School Psychology 7, 13 (1998) (strip search can ‘result in serious emotional damage.’). The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. 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, J.) Id.
Sympathetic to the notion that severe violations of privacy can, according to leading psychological literature, actually lead to delinquent behavior, loss of self-respect and dignity, loss of respect for society’s rules (and Fourth Amendment protections), and a generally anarchistic sense of being out of control, Justice Stevens would have even gone so far as to deny qualified immunity from liability of the school itself, including the principal in his personal capacity:
“Nothing the Court decides today alters this basic framework. It simply applies T. L. O. to declare unconstitutional a strip search of a 13-year-old honors student that was based on a groundless suspicion that she might be hiding medicine in her underwear. This is, in essence, a case in which clearly established law meets clearly outrageous conduct. I have long believed that “ ‘[i]t 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.’ ” Id., at 382, n. 25 (Stevens, J., concurring in part and dissenting in part) (quoting Doe v. Renfrow, 631 F. 2d 91, 92-93 (CA7 1980)).” Id. (Stevens, J., concurring and dissenting in part).
Justice Ginsburg, outraged by the school’s presumption of authority, lambasted the conduct of officials:
“Wilson had no cause to suspect, based on prior experience at the school or clues in this case, that Redding had hidden pills-containing the equivalent of two Advils or one Aleve-in her underwear or body. To make matters worse, Wilson did not release Redding, to return to class or to go home, after the search. Instead, he made her sit on a chair outside his office for over two hours. At no point did he attempt to call her parent. Abuse of authority of that order should not be shielded by official immunity. In contrast to T. L. O., where a teacher discovered a student smoking in the lavatory, and where the search was confined to the student’s purse, the search of Redding involved her body and rested on the bare accusation of another student whose reliability the Assistant Principal had no reason to trust.” (Ginsburg, J.) Id.
Justice Thomas took issue with what he considered an uncommonly silly and unworkable rule adopted by the Court, which essentially places federal judges in the shoes of middle school teachers and administrators. Reminiscing on the bygone days of in loco parentis, where teachers had all the authority of parents for “commanding obedience, to control stubbornness, to quicken diligence, and to reform bad habits,” (citing State v. Pendergrass, 19 N.C. 365, 365-366 (1837) employing corporal punishment), Justice Thomas would have found that the search did not violate the Fourth Amendment.
Justice Thomas, known for his opposition to affirmative action, warned the Court that it was recklessly elevating the decision-making capacity of a teenager, perverting it into something actually deserving Constitutional protection:
“By declaring the search unreasonable in this case, the majority has ‘surrender[ed] control of the American public school system to public school students’ by invalidating school policies that treat all drugs equally and by second-guessing swift disciplinary decisions made by school officials. See Morse, 551 U. S., at 421 (Thomas, J., concurring) (quoting Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 526 (1969) (Black, J., dissenting)).” Id. (Thomas, J.) (emphasis added).
In attempting to fight back against an apparent victory for large pharmaceutical companies, which are addicting children to prescription pain killers (used for recreational purposes), at an alarming rate, Justice Thomas warned the Court that it was today not protecting the Constitution, but instead “announc[ing] the safest place to secrete contraband.” Id. He then cited several alarming statistics about the abuse of prescription drugs and their deadly consequences, including their increasing use in suicidal behavior:
“ ‘[t]eenage abuse of over-the-counter and prescription drugs poses an increasingly alarming national crisis.’ Get Teens Off Drugs, The Education Digest 75 (Dec. 2006). As one study noted, “more young people ages 12-17 abuse prescription drugs than any illicit drug except marijuana-more than cocaine, heroin, and methamphetamine combined.” Executive Office of the President, Office of National Drug Control Policy (ONDCP), Prescription for Danger 1 (Jan. 2008) (hereinafter Prescription for Danger). And according to a 2005 survey of teens, “nearly one in five (19 percent or 4.5 million) admit abusing prescription drugs in their lifetime.” Columbia University, The National Center on Addiction and Substance Abuse (CASA), “You’ve Got Drugs!” V: Prescription Drug Pushers on the Internet 2 (July 2008); see also Dept. of Health and Human Services, National Institute on Drug Abuse, High School and Youth Trends 2 (Dec. 2008) (“In 2008, 15.4 percent of 12th-graders reported using a prescription drug nonmedically within the past year).” Id. (Thomas, J.)
Pain killers have a long history of being the most readily accessible method of ending one’s own life. Today’s decision means school administrators no longer have parental authority for “they are tasked with ‘watch[ing] over a large number of students’ who ‘are inclined to test the outer boundaries of acceptable conduct and to imitate the misbehavior of a peer if that misbehavior is not dealt with quickly.’ Id., at 352. In such an environment, something as simple as a ‘water pistol or peashooter can wreak [havoc] until it is taken away.’ Ibid. The danger posed by unchecked distribution and consumption of prescription pills by students certainly needs no elaboration.” Id. (Thomas, J.).
Essentially calling teenagers stupid, and parents negligent in the care of their own children, Justice Thomas warned that “[t]eenagers are nevertheless apt to ‘believe the myth that these drugs provide a medically safe high.’ ” Id. Prescription drugs are essentially the new cigarettes, supported by multi-million dollar ad campaigns.
As some drug dealers, already profiting from extremely rewarding and lucrative careers in drug dealing (more so than the law), also don’t have the attention spans to absorb exactly what-sized container is now the safest to secrete contraband (See Horton v. California, 496 U.S. 128, 141 (1990), the search must be limited to the areas where the object of that infraction could be concealed), Justice Thomas’s wise warnings, coming at the end of the opinion, will probably go unread anyway:
“(‘In 2002, abuse of controlled prescription drugs was implicated in at least 23 percent of drug-related emergency department admissions and 20.4 percent of all single drug-related emergency department deaths’). At least some of these injuries and deaths are likely due to the fact that ‘[m]ost controlled prescription drug abusers are poly-substance abusers,’ id., at 3, a habit that is especially likely to result in deadly drug combinations. (“Boomers made marijuana their ‘gateway’ … but a younger generation finds prescription drugs an easier score”); see also National Survey 17 (noting that teens report ‘that prescription drugs are easier to buy than beer’).” (Thomas, J.). Id.
Justice Scalia was uncharacteristically mum, filing a concurrence with Justice Souter without issuing an opinion. In an decision noted more for its absence than presence, how the new standards apply to other types of contraband (outside of drugs) is left untested.
Perhaps the best means of preventing deadly drug abuse by teenagers and adults alike, is to actually make the Fourth Amendment powerful enough to deter invasions of privacy, to provide people with enough sense of self-worth that they too are actually worthy of protection through the Constitution. Today the Court stopped short of actually punishing the principal’s profound lack of respect for the bodily integrity of Savana Redding.
-Derek Garcia for the Kennedy Law Firm
