Strip-Searching Students

Ken AshfordConstitution, Supreme CourtLeave a Comment

Ah, the days when I used to write in detail about Supreme Court cases in this blog are long in the past.  A shame, really.

But the Supremes did happen to hear a rather interesting Fourth Amendment case yesterday.

I should preface by saying that the nation's highest court hears a lot of Fourth Amendment cases: in the neighborhood of 4 or 5 every year.  You would think that, by now, the law of searches and seizures would be pretty much set in stone.

But no.  Seems that fact patterns arise in the real world that test that gray area where the right to privacy runs headlong into the government need to prevent crime.

Such was the case yesterday, Safford United School District v. Redding.

Here are the underlying facts:

Savana Redding, had been subjected to a strip search in 2003 by school officials in Safford, Ariz. She was 13 and in eighth grade at the time.

The officials were acting on a tip from another student and were looking for prescription-strength ibuprofen, a painkiller. They made Ms. Redding strip to her underwear, shake her bra and pull aside her panties. The officials, both female, found no pills.

Ms. Redding, a model student, had never been in trouble with the law and never been so much as called to the principal's office.  The other student who provided the "tip" to school officials was a former friend of Ms. Redding (the two had drifted apart — the friend had fallen in with the goth crowd, while Ms. Redding was one of the goody-two-shoes).

The strip search traumatized Ms. Redding to the point where she eventually changed schools (she is now a freshman in college).

The Fourth Amendment protects against "unreasonable searches and seizures".  It's that word "unreasonable" that is always the sticking point in these kind of cases. 

Is it "unreasonable" for the government (i.e., school officials) to search for drugs in the possession of students — students for whom the govenment is responsible (at least during school hours)?

No.  And locker searches, for example, have been routinely upheld as constitutional.

But strip searches, obviously, are more invasive of one's privacy when compared to a locker search.

On the other hand, students now know that their lockers are subject to random searches.  So where do they hide drugs?  In their underwear.

So yesterday, the Supremes wrestled with this balance, as the two sides made their arguments before the bench.  SCOTUSblog reports on yesterday's events:

It was common for members of the Court — and, especially, Justice Ruth Bader Ginsburg — to express discomfort with an Arizona prinicipal’s order for a close-to-naked search of a 13-year-old girl.  But that sentiment did not appear to be as strong as the concern that drugs may be so destructive for teenagers that some surer means of detecting them had to be acceptable under the Constitution.

No more telling illustration of the Court’s mood emerged than Justice David H. Souter — whose vote would almost have to be won for student privacy to prevail – expressing a preference for “a sliding scale of risk” that would add to search authority — including strip searching — based on how school officials assessed whether “sickness or death” was at stake.

“If the school official’s thought process,” Souter asked, “was ‘I’d rather have a kid embarrassed rather than some other kid dead,’ isn’t that reasonable under the Fourth Amendment?”  Stated in that stark way almost compelled agreement, without regard to whether a student singled out for a strip search was actually adding to such a risk, but was only the target of a classmate’s unverified tip.

Along with Souter, two other Justices whose votes might turn out to be crucial — Stephen G. Breyer and Anthony M. Kennedy — were plainly more concerned about the drug problem than with student privacy. Both of those Justices, in past cases involving students and suspected drug use, have suggested that students’ rights were not very sturdy.

The Washington Post adds:

Souter asked Wright [representing the school district] why the court should accept his "blanket assumption" that the search for any contraband, even an aspirin, allows a strip search. "I mean, at some point it gets silly," he said.

Redding's attorney, Adam Wolf of the American Civil Liberties Union, agreed that the type of drug does not matter if school officials do not have specific reason to believe it is hidden in a student's underwear.

Kennedy seemed to find that hard to buy. "The hypothetical is that there is a very dangerous drug, meth, that's going to be distributed and consumed that afternoon," he told Wolf.

The same rules apply, Wolf replied. "The Fourth Amendment does not . . . countenance the rummaging on or around a 13-year-old girl's naked body," he said. In one of the many memorable, if not exactly legalistic, phrases uttered in the courtroom yesterday, Wolf said there was a "certain ick factor" in the school officials' actions.

Justice Breyer also confessed that when he was in high school, he would (like all students) have to undress in the gym locker room, and things were often stuffed down "my underwear".  This led to a very un-judicial like laugh (especially from Clarence Thomas) — while Breyer tried to backtrack: "Uh… not my underwear".

It's hard to know where the Court will ultimately come down on this.  Clearly, they are not going to ban student strip searches altogether.  But then what?  What's the new constitutional guideline?

It's hard for me to think where I come down on this, too.  It seems to me that strip searches are (sadly) necessary and generally reasonable.  On the other hand, they really shouldn't be randomly conducted, like locker searches. 

There has to be, in my view, sufficient suspicion that a particular student is carrying drugs.  Is a "tip" from a fellow student enough?  Well, there it gets a little dicey.  Students will lie in order to "get" other students (this is precisely what happened to Ms. Redding).  I don't know.

Is there a less invasive way to search for drugs on the body of a student?  I suspect, for some drugs (remember, this case dealt with over-the-counter Ipuprofin) the obvious alternative — drug-sniffing dogs — won't work.

Tough call for the court.  It'll be interesting to see where they fall.

UPDATE:  Slate has a more colorful re-cap of yesterday's oral arguments, and also notes this:

On the courthouse steps after argument today, Redding is asked what she'd have wanted the school to do differently. "Call my mom first," she says.

Well, that seems perfectly reasonable.  I should have thought of that.