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

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 ("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.


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