SCOTUS: Teen Strip-Search Ruled Unconstitutional, But School Officials Are Off the Hook

By Adam B, Daily Kos
Posted on June 25, 2009, Printed on December 3, 2009
http://www.alternet.org/bloggers/http://www.dailykos.com//140907/

In an 8-1 decision this morning, the Supreme Court of the United States held that 13-year old Savana Redding's constitutional rights were violated when school officials suspecting her of hiding prescription-strength Advil and Aleve forced her to expose her breasts and pelvic area to school officials by pulling her underclothes away from her body.  However, seven of the nine Justice held that because this constitutional right was not sufficiently established as a clear violation of her rights at the time of the offense, the school officials were entitled to qualified immunity from damages for the search -- which, by the way, found nothing.

Here's the facts: middle-schoolers Savana Redding and Marissa Glines were already known as "an unusually rowdy group" at Safford Middle School -- at the school’s opening dance in August 2003, alcohol and cigarettes were found in the girls’ bathroom, and the girls were thought to be part of that perilous posse.   One of their classmates, Jordan Romero, told school officials that "certain students were bringing drugs and weapons on campus," and that he had been sick after taking some pills that "he got from a classmate," later handing Assistant Principal Wilson a white pill that he said Marissa had given him.  [Jordan also told the principal that before the dance, he had been at a party at Savana’s house where alcohol was served. The record does not reflect whether he has been invited back.]

The pill  was a 400 mg Advil, prescription-strength.  Marissa got called to the Wilson’s office, and inside her pockets were a blue pill, several white ones and a razor blade.  Inside Savana's dayplanner, which Marissa was borrowing, were several knives, several lighters, a cigarette, and a permanent marker.  The school nurse and a secretary – both women – searched Marissa's bra and underwear, finding nothing. Marissa said the blue pill came from Savana, and so into the office she was haled next.

Wilson showed Savana the four white pills – all prescription-strength Advil, and the blue pill, an Aleve (as Poison Control explained when he called), all banned under school rules without advance permission.  Savana said she didn’t know anything about them, and denied distributing them to others.  She agreed to let them search her backpack, where nothing was found.   At that point, Justice Souter explains in the part of the ruling with which everyone but Justice Thomas agreed,

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....

The exact label for this final step in the intrusion is not important, though strip search is a fair way to speak of it. [The secretary and nurse] directed Savana to remove her clothes down to her underwear, and then "pull out" her bra and the elastic band on her underpants. Although [they] stated that they did not see anything when Savana followed their instructions, we would not define strip search and its Fourth Amendment consequences in a way that would guarantee litigation about who was looking and how much was seen.The very fact of Savana’s pulling her underwear away from her body in the presence of the two officials who were able to see her necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings.

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 maybe, see, e.g., New York City Dept. of Education, Reg. No. A–432, p. 2 (2005), online at http://docs.nycenet.edu/... ("Under no circumstances shall a strip-search of a student be conducted").

Humiliating, sure, but unconstitutionally unreasonable?  Yes, that too:

Here, the content of the suspicion failed to match the degree of intrusion. Wilson 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. Petitioners suggest, as a truth universally acknowledged, that "students ... hid[e] contraband in or under their clothing," and cite a smattering of cases of students with contraband in their underwear. But 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. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.

In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.

However, there's this doctrine under the law called qualified immunity, and what that basically states is even if a court determines that what you did was unconstitutional, you're not going to be held liable for damages if it wasn't clear in advance that what you did was unconstitutional.

And as to that argument, six members of the majority held that there was enough variation in prior Court opinions to find qualified immunity here.  (Justice Thomas dissented, finding there to be no constitutional violation at all.)

Justices Stevens and Ginsburg would have found the right to be clearly established, citing the precedent in T.L.O. which found school searches constitutional only "when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction":

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.’ "

To which Justice Ginsburg wanted to add one or two more facts:

Wilson did not test [Marisa] Glines’s accusation for veracity by asking Glines when did Redding give her the pills, where, for what purpose. Any reasonable search for the pills would have ended when inspection of Redding’s backpack and jacket pockets yielded nothing. 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.

Justice Thomas, as noted above, believed the search was constitutional:

A "search of a student by a teacher or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school."  As the majority rightly concedes, this search was justified at its inception because there were reasonable grounds to suspect that Redding possessed medication that violated school rules. A finding of reasonable suspicion "does not deal with hard certainties, but with probabilities."... To satisfy this standard, more than a mere "hunch" of wrongdoing is required, but "considerably" less suspicion is needed than would be required to "satisf[y] a preponderance of the evidence standard."

... School officials have a specialized understanding of the school environment, the habits of the students, and the concerns of the community, which enables them to " ‘formulat[e] certain common-sense conclusions about human behavior.’  And like police officers, school officials are "entitled to make an assessment of the situation in light of [this] specialized training and familiarity with the customs of the [school]."

Here, [the school officials] had reasonable grounds to suspect that Redding was in possession of prescription and nonprescription drugs in violation of the school’s prohibition of the "non-medical use, possession, or sale of a drug" on school property or at school events.  As an initial matter, school officials were aware that a few years earlier, a student had become "seriously ill" and "spent several days in intensive care" after ingesting prescription medication obtained from a classmate. ...   The school’s substance-abuse problems had not abated by the 2003–2004 school year, which is when the challenged search of Redding took place. School officials had found alcohol and cigarettes in the girls’ bathroom during the first school dance of the year and noticed that a group of students including Redding and Marissa Glines smelled of alcohol. Ibid. Several weeks later, another student, Jordan Romero, reported that Redding had hosted a party before the dance where she served whiskey, vodka, and tequila. Romero had provided this report to school officials as a result of a meeting his mother scheduled with the officials after Romero "bec[a]me violent" and "sick to his stomach" one night and admitted that "he had taken some pills that he had got[ten] from a classmate." ... One week later, Romero handed the assistant principal a white pill that he said he had received from Glines.  He reported "that a group of students [were] planning on taking the pills at lunch."  School officials justifiably took quick action in light of the lunchtime deadline...

The reasonable suspicion that Redding possessed the pills for distribution purposes did not dissipate simply because the search of her backpack turned up nothing. It was eminently reasonable to conclude that the backpack was empty because Redding was secreting the pills in a place she thought no one would look. See Ross, supra, at 820 ("Contraband goods rarely are strewn" about in plain view; "by their very nature such goods must be withheld from public view").
   Redding would not have been the first person to conceal pills in her undergarments. See Hicks, Man Gets 17-Year Drug Sentence, [Corbin, KY] Times-Tribune, Oct. 7, 2008, p. 1 (Drug courier "told officials she had the [Oxycontin] pills concealed in her crotch"); Conley, Whitehaven: Traffic Stop Yields Hydrocodone Pills, [Memphis] Commercial Appeal, Aug. 3, 2007, p. B3 ("An additional 40 hydrocodone pills were found in her pants"); Caywood, Police Vehicle Chase Leads to Drug Arrests, [Worcester] Telegram & Gazette, June 7, 2008, p. A7 (25-year-old "allegedly had a cigar tube stuffed with pills tucked into the waistband of his pants"); Hubartt, 23-Year-Old Charged With Dealing Ecstasy, The [Fort Wayne] Journal Gazette, Aug. 8, 2007, p. C2 ("[W]hile he was being put into a squad car, his pants fell down and a plastic bag containing pink and orange pills fell on the ground"); Sebastian Residents Arrested in Drug Sting, Vero Beach Press Journal, Sept. 16, 2006, p. B2 (Arrestee "told them he had more pills ‘down my pants’ "). Nor will she be the last after today’s decision, which announces the safest place to secrete contraband in school.

Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment. Such institutional judgments, like those concerning the selection of the best methods for "restrain[ing students] from assaulting one another, abusing drugs and alcohol, and committing other crimes "involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country." ... It is a mistake for judges to assume the responsibility for deciding which school rules are important enough to allow for invasive searches and which rules are not....

School districts have valid reasons for punishing the unauthorized possession of prescription drugs on school property as severely as the possession of street drugs; "[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."

All of today’s opinions are pretty clearly readable and worthy of your time.  And after the Supreme Court announced on Monday whether they've grant cert in that case I keep alluding to, I may again feel freer to tell you what I think about all this.

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