Whether the Fourth Amendment requires a stricter standard than reasonableness for student strip-searches, and if so, whether school officials conducting a strip-search have qualified immunity from suit for violation of Fourth Amendment rights.
Safford middle school officials strip-searched thirteen-year-old Savana Redding, seeking prescription-strength ibuprofen pills based on uncorroborated information from another student that Savana possessed ibuprofen in an unspecified time and location. This case concerns whether the school violated Redding's Fourth Amendment right to be free from unreasonable searches and, if so, whether qualified immunity shields the school officials from liability. After a District Court and a Ninth Circuit panel found the search to be lawful, the Ninth Circuit reheard the case en banc; it reversed and held that qualified immunity did not protect the school official who ordered the search. Petitioners Safford Unified School District #1, et al. argue that the search was reasonable given the fellow student's tip and the threat of prescription drug abuse, but that even if it was not, school officials must have qualified immunity so they are free to exercise their judgment regarding drug abuse in schools. They argue that a decision in Respondent's favor would hamper school officials' ability to respond in the face of threats to student safety in school. Respondent April Redding argues that a strip search was unreasonable because the school lacked any indication that Savana had pills hidden in her undergarments, and that the school officials should be held responsible. She argues that a decision for Petitioner would enable school officials to conduct highly invasive searches based on only minimal, vague suspicion. This case promises guidance both to school officials seeking to carry out their duties effectively without violating students' rights and to lower courts responsible for assessing school officials' conduct.
Questions as Framed for the Court by the Parties
(1) Whether the Fourth Amendment prohibits public school officials from conducting a search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy.
(2) Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public school administrator may be liable in a damages lawsuit under 42 U.S.C. § 1983 for conducting a search of a student suspected of possessing and distributing a prescription drug on campus.
In the fall of 2003, Safford Middle School officials were concerned about the distribution of prescription and over-the-counter-drugs among students. See Redding v. Safford Unified School District 531 F.3d 1071, 1075-76 (9th Cir. 2008). Bringing medicine on campus without permission violated school rules, and a student had recently become ill after ingesting a pill he allegedly received from a classmate. See id.
On October 8, 2003, a student handed the assistant principal, Petitioner Kerry Wilson, a pill which the school nurse, Petitioner Peggy Schwallier, later identified as prescription-strength ibuprofen. See Redding 531 F.3d at 1076. The student said he had gotten the pill from his classmate Marissa, and that some students planned to take the pills at lunchtime. See id. When Wilson and his administrative assistant, Petitioner Helen Romero, discovered several more pills in Marissa's pockets and wallet, Marissa said she had gotten them from her classmate Savana Redding. See id. Wilson also learned that Savana had recently lent Marissa a planner, in which Marissa hid some other items forbidden at school. See id.
Based on Marissa's statement, Wilson brought Savana to his office, where she admitted lending Marissa the planner but not its prohibited contents, and denied having seen or distributed the ibuprofen pills. See Redding 531 F.3d at 1074-77. After searching Savana's backpack and finding no pills, Wilson asked Romero and Schwallier to search Savana in the nurse's office. See id. at 1075. Savana complied when asked to remove her clothes and then pull aside her bra and underwear and shake them out, exposing her breasts and pelvic area. See id. The search revealed no pills. See id.
Savana's mother, April Redding, filed a suit under 42 U.S.C. § 1983 against Safford Unified School District #1, Wilson, Romero, and Schwallier, alleging that the strip search violated Savana's Fourth Amendment right against unreasonable searches. See Redding 531 F.3d at 1077; Brief for Petitioners Safford Unified School District, et al. at 11. The school district and officials claimed that qualified immunity protected them from liability even if the search was unlawful. See Redding 531 F.3d at 1077. Under § 1983, state and local officials acting in an official capacity are civilly liable for violating someone's constitutional rights. See 42 U.S.C. § 1983; see also Wex: Civil Rights: An Overview. However, officials performing discretionary functions can receive qualified immunity from liability for unlawful conduct if they reasonably might not have known their conduct would violate a right or a law. See LectLaw on Qualified Immunity.
The District Court for the District of Arizona granted summary judgment for the defendants, finding that the search was constitutional and that a qualified immunity analysis was therefore unnecessary. See Redding 531 F.3d at 1077. Applying the New Jersey v. T.L.O., 469 U.S. 325, (1985) test for determining whether a search is reasonable under the Fourth Amendment, the district court found that Marissa's comment justified the initiation of the search because Savana's planner showed a connection between the two girls, and that the touch-free search was reasonable in scope given the school's need to uphold its anti-drug policy. See id. 1077-78; 479 U.S. 325 (1985). A divided panel from the United States Court of Appeals for the Ninth Circuit affirmed on the same grounds. See Redding v. Safford Unified School District #1, 504 F.3d 828 (9th Cir. 2007).
Reconsidering en banc and still relying on T.L.O., the Ninth Circuit held the search impermissible. See Redding, 531 F.3d at 1087. The court deemed Marissa's comment insufficient justification for initiating the search, given the uncorroborated and potentially self-serving nature of the allegation that she had obtained pills from Savana Redding. See id. at 1081-85. Adopting a "sliding scale" test where increasingly invasive searches require increasing degrees of suspicion in order to be reasonable, the court held that the strip search was excessively intrusive relative to the danger posed by ibuprofen, in light of the degree of suspicion that Marissa's allegation could have raised. See id. at 1085-87. The Ninth Circuit went on to deny Wilson qualified immunity because he reasonably should have known the search would violate Savana's constitutional rights. See id. at 1089. However, the court did grant qualified immunity to Romero and Schwallier, reasoning that they acted on instructions, not independent decision. See id.
Petitioners Safford Unified School District #1, Wilson, Schwallier, and Romero petitioned the Supreme Court for certiorari, which it granted on January 16, 2009 to decide whether the strip search was unlawful and, if so, whether and to what degree the Petitioners are entitled to qualified immunity.
The issue of student searches on schools' campuses has long been contentious; in 1985, the Supreme Court acknowledged that while searches on a school campus had a heightened degree of Fourth Amendment implications, school searches should require a lesser standard of constitutionality than probable cause due to the need of school officials to maintain discipline on campus and because of the particular challenges associated with combating school violence and student drug use. See New Jersey v. T.L.O., 469 U.S. 325, 339-40 (1985). The Supreme Court instead said the proper standard for determining whether a school's search of a student is one of reasonableness: school officials must have a "reasonable suspicion" that they will find something incriminating in a student's possession in order to justify a search. See id. at 342. The "reasonable suspicion" test is met if the search is justified at its inception and justified in its scope, which means that the scope of the search was reasonably related to the circumstances that which justified the search. See id. at 341. At issue in this case, however, is an aspect of student searches that the Supreme Court did not address: whether a strip-search of a student requires a greater degree of reasonable suspicion in order to be constitutional under the Fourth Amendment.
Student Strip-Searches: Requiring a Higher Standard at Inception
Respondent April Redding contends that a student strip-search must have a higher standard of constitutionality than searches of personal belongings. See Brief for Respondent April Redding at 12. This is because, according to Redding, a student's expectation of privacy is at its height when concerning personal body inspection. See id. at 12. Redding argues that the trauma and indignity caused by a strip search is magnified for teenage girls. See id. at 15. Children who have been strip-searched, according to Redding, have shown the same effects as those who have suffered sexual-abuse. See id. at 15. Due to the nature of strip-searches generally, a strip-search represents a substantially greater invasion of that privacy than does a search of one's belongings, Redding contends, especially where it involves young children. See id. at 13.
Petitioners Safford Unified School District et al. ("Safford") counter that schools should not privilege a student's person over personal items with a higher standard of constitutionality for strip-searches. Instead, they contend that the Supreme Court's reasonableness standard for justifying a search at its inception, articulated in New Jersey v. T.L.O. applies to all searches, regardless if it is a search of the person. See Brief for Petitioners Safford Unified School District et al. at 19. Safford points out that the Supreme Court determined in T.L.O. that teachers and administrators have a substantial interest in keeping discipline at school. See id. This interest necessarily balances against a student's privacy interest, which the Court has determined is significantly diminished at school, Safford continues. See id. at 24. Furthermore, Safford contends that Redding's proposed higher standard of reasonableness for searches of the person, and the Ninth Circuit's decision in favor of Redding, represents a "sliding scale" test of reasonableness that violates T.L.O. See id. at 17. According to Safford, this approach directly violates T.L.O. because it requires that certain types of searches effectively be dictated by a test of probable cause instead of reasonableness. See id.
Redding counters Safford's argument by essentially pointing out that the reasonableness standard inherently requires a greater showing of suspicion when involving a strip-search over the search of a student's belongings. See Brief for Respondent at 18. This conclusion follows from the test itself, Redding contends; because a search must be reasonable not only at its inception but also to its scope, it necessarily must be so that different types of searches require different, and at times greater, justifications. See id. at 17. Because the test is meant to be a balance of two competing interests - a student's privacy interest with school officials' interest in maintaining order - the greater the privacy interest in a certain situation, as in a strip-search, the greater a showing of justification for invading that interest must be. See id.
Safford contends that this sliding scale test embodies exactly what T.L.O. tried to countermand against: it essentially leads to an unclear standard, making it difficult for teachers and school officials to know when to apply a regular standard of reasoning over a heightened standard. See Brief for Petitioners at 28, 30. Because Safford views a higher standard applied to strip-searches as essentially requiring a showing of probable cause, such a heightened standard basically means that school officials must have a working knowledge of probable cause and know the specific situations when it is to be applied. See id. at 32. Safford calls such a situation "onerous" and claims the Supreme Court opted against this for a bright-line rule, which is how T.L.O. should be interpreted. See id.
Redding counters that requiring a greater suspicion of wrongdoing for strip-searches is not only in keeping with the Supreme Court's reasoning in T.L.O. regarding reasonableness of a search's scope, it is based on a clear distinction-between strip-searches and searches of belongings. See Brief for Respondent at 24.
Strip-Searches: Constitutionality of Scope
Safford contends that the constitutionality of the scope of a search is dictated by this same reasonableness test; quoting T.L.O., Safford argues that measures adopted for the search must only be reasonably related to the search's objectives. See Brief for Petitioners at 33. It must also not be excessively intrusive in light of the student's age or gender, which, according to Safford, actually allows for a great degree of leeway for schools performing searches. See id. at 34. This is because the standard is excessively intrusive, and not the "least intrusive means," meaning that there can be some intrusion of privacy and still be constitutional. See id.
Redding argues, on the other hand, that the scope of a search must be dictated by the reasonable suspicion of finding drugs or weapons in the specific place of the search. See Brief for Respondent at 25.
The Constitutionality of the Strip-Search of Savanna
Redding and Safford dispute the relevance of the facts in this case. In this case, the major evidence implicating Savanna of drug-possession was the accusation by her friend, who had already been caught with some pills, Redding argues that an uncorroborated accusation that only speaks vaguely of drug-possession but makes no specific reference to being hidden on the person is not specific or sufficient enough to justify a strip-search. See Brief for Respondent at 19. Safford contends, on the other hand, that the accusation and corroborating evidence were enough to create a suspicion justifying the search at its inception; the direct implication from a friend who had nothing to gain by such an accusation, taken in light of the circumstances and other evidence available, was enough to justify the search at its inception. See Brief for Petitioners at 28.
Furthermore, both parties disagree over whether the evidence was enough to justify the scope of the search. Redding contends that Safford's search was unreasonable in scope because the school lacked a specific suspicion that Redding had drugs beneath her undergarments. See Brief for Respondent at 39. This is due to the vagueness of her friend's accusation, the same vagueness that also made the search unjustified in its inception, Redding argues. See id. at 40. Safford argues that the search here is justifiable in scope because the nature of the infraction (drug possession) compared with the controlled conditions of the search is reasonable and not excessively intrusive. See Brief for Petitioners at 35.
Whether Qualified Immunity Applies
Safford contends that even if the search were deemed to be unconstitutional in either its scope or its inception, the school officials who participated are entitled to qualified immunity. See Brief for Petitioners at 46. Even if the search was unlawful, Safford argues, T.L.O. did not clearly establish that teachers could not strip-search students. See id. Safford contends that the case law subsequent to T.L.O. created enough legal ambiguity that any reasonable official in the same position would not realize that the strip-search was prohibited. See id. at 50.
Redding counters that the relevant case-law was not only clear enough that the reasonable school official would know there was binding legal precedent, but that common sense should have caused there to be at least a reasonable suspicion that the strip-search of a student would violate that student's Fourth Amendment rights. See Brief for Respondent at 44. Therefore, both case law in this area and common sense should have at least put a school official on notice about such actions, which is enough to strip away qualified immunity. See id. at 58.
The Office of National Drug Control Policy ("ONDCP") reports that over-the-counter ("OTC") and prescription drug abuse is just as dangerous as illicit drug abuse, and is on the rise, particularly among teenagers. See ONDCP, A Prescription for Danger: A Report on the Troubling Trend of Prescription and Over-the-Counter Drug Abuse Among the Nation's Teens at 1 (Jan. 2008). Schools are a key battleground for combating the distribution and abuse of such drugs which, according to the ONDCP, teens often obtain from friends. See id.; Brief of Amici Curiae the National School Board Association, et al. ("NSBA") in Support of Petitioner at 21-22. Discovering pills that students may bring to school poses its own challenge, however, as teens who undergo physically invasive searches are likely to experience lasting psychological trauma, much as if they had experienced sexual abuse. See Brief for Respondent, April Redding at 14-15; Doriane Lambelet Coleman, Storming the Castle to Save the Children: The Ironic Cost of a Child Welfare Exception to the Fourth Amendment, 47 Wm. & Mary L. Rev. 413, 520-21 (2005). This case invites the Supreme Court to help school officials balance these two threats; it may define the extent of school officials' authority to search students for OTC and prescription drugs, and clarify the scope of students' Fourth Amendment rights against searches at school.
Petitioners Safford Unified School District #1, Wilson, Romero and Schwallier ("Safford") argue that the search was reasonable under the Fourth Amendment because some search was justified given the tip from Savana's classmate, and a touch-free strip search was not excessively invasive given the threat of prescription drug abuse. See Brief for Petitioners, Safford Unified School District #1, et al. at 17-19. See id. Employing the Ninth Circuit's "sliding scale" test of reasonableness, Respondent April Redding argues that a strip search was both unjustified and excessively intrusive. See Brief for Respondent at 8-11.
Safford warns that a decision in Redding's favor would prevent school officials from responding quickly and effectively in the face of threats to student safety. See Brief for Petitioners at 31-33, 38-41, 46-53. Safford argues that accepting the Ninth Circuit's "sliding scale" test would require teachers to make time-consuming, legalistic judgments about their degree of suspicion and the intrusiveness of any potential search before taking action. See id. at 31-33. Safford and amicus the National School Board Association and the American Association of School Administrators further caution that finding the search of Savana Redding to be unreasonable would undermine school officials' expert judgment regarding the threat of drug use in school and the type of response that drug use demands. See Brief for Petitioner at 38-41; Brief of NSBA at 16-24. Amicus the United States, while arguing that the search was unreasonable in this case, agrees that giving judicial deference to school officials' judgment would not lead teachers to conduct unreasonable searches because schools' actions are generally held in check by public scrutiny. See Brief of Amicus Curiae the United States in Support of Reversal at 9.
In contrast, Respondent April Redding contends that asking teachers to balance their degree of suspicion against the potentially traumatic effects of a strip search on a student would not exceed teachers' natural skill set. See Brief for Respondent at 24. Moreover, she warns, a decision that the strip search was reasonable would leave too little check on school officials' authority to invade students' privacy; she argues it would advance a dangerous bright-line test justifying searches in any location based on any suspicion. See id. at 17, 27. That standard, Redding cautions, would validate an even more invasive search than the one in this case, based on even less suspicion - such as a body cavity search based on a vague hunch. See id. at 17, 27, 48. In particular, Redding argues that finding the strip search reasonable would write school officials a "blank check" to search anywhere, without any reason to believe that contraband is located where they search. id. at 27, 43.
If the Court finds the search in question was unlawful, it may also determine whether qualified immunity shields the school officials from liability under 42 U.S.C. § 1983. See Redding v. Safford Unified School District 531 F.3d 1071, 1078 (2008). Safford contends that denying qualified immunity to school officials who mistakenly conduct unreasonable searches would make teachers hesitate when they need to take quick and decisive action because student safety is on the line. See id. at 46-53; see also Brief of NSBA at 27. RRedding, however, warns that declining to hold Petitioners responsible for the strip search in this case would embolden school officials to conduct patently illegal and emotionally harmfully searches. See Brief for Respondent at 48.
In recent years, the Supreme Court has addressed schools' authority to conduct systematic drug tests or searches in order to guard against a general threat of drug abuse. See, e.g., Board of Education of Independent School District # 92 of Pottawatomie County v. Earls, 536 U.S. 822 (U.S. 2002). However, the Court has not spoken on the scope of students' Fourth Amendment rights in school based on individualized suspicion since 1985, and even then it did not address strip searches. See Strip-Search of Girl Tests Limits of School Policy, Adam Liptak, The New York Times, 03/23/2009; New Jersey v. T.L.O., 479 U.S. 325 (1985). Thus, this case promises teachers and school officials important guidance on when and how they may conduct strip searches in order to prevent OTC and prescription drug abuse.
This case, concerning the strip-search of a student on school grounds for suspected possession of ibuprofen pills, will help resolve two issues: what standard of constitutionality must be met in a student strip-search to overcome Fourth Amendment concerns, and whether the law up until this point is sufficiently unclear to grant school officials qualified immunity from suit. The Supreme Court's decision in this case will also clarify how to apply the Fourth Amendment reasonableness test that the Court set forth in New Jersey v. T.L.O. If the Court finds the strip search was unreasonable given the degree of suspicion on which it was based, the decision may increase the burden on school officials who consider conducting strip searches. If the Court finds the search was reasonable, it may authorize teachers to conduct highly invasive strip searches based on minimal suspicion that contraband is located where they search. In either case, this decision will determine which interest deserves more weight in the balancing test the Court applies-the school's interest in maintaining order and security, or the student's interest in personal privacy.
"Strip-Search of Girl Tests Limit of School Policy," Adam Liptak, 03/23/2009
Fourth Amendment, LII Wex
Prescription and OTC drugs information, National Institute on Drug Abuse
"Are Strip Searches Special?" Sherry F. Colb, 12/17/2003