January 18, 2009

Zero Tolerance as a Product of the War on Drugs

On October 08, 2003, 13-year of honor student Savana Redding became an innocent victim of the War on Drugs. The case rises to a Constitutional level based upon a warrantless and unwarranted strip search in an effort to find drugs.

Redding had never been in trouble and never before been disciplined, but was this day standing accused of possessing and distributing a most disturbing and dangerous drug; Advil.

The allegations against Redding originated from an already-caught student trying to wiggle his way out of trouble. When asked by vice Principal Kerry Wilson, the boy identified another female student as the source of the 400mg Advil found in his possession. The female student was brought to the office and questioned, whereupon she identified Redding as the pusher.

When brought to the office, Redding denied it, but vice Principal Wilson instructed a female nurse to see if Redding was hiding the medicine in her clothes. In a private room, Redding disrobed and was instructed to move her bra to the side and pull out her underwear. No drugs were found. In an account of the strip search, Redding described how she was “offended by the accusations,” and how she felt “violated by the strip search.”

Redding’s family sued the school district and school officials with the help of the American Civil Liberties Union. The suit was thrown out, but they appealed, and after two rounds got a strongly worded victory from the U.S. Court of Appeals for the 9th Circuit. The margin was a shocking 6-5. If that is the best we can muster from even the very liberal 9th, we are in sad shape. Still, the majority opinion is heartening.

The basis for the search was the school district’s "zero tolerance" policy against drugs. This policy is extended to all drugs, including OTC’s such as ibuprofen, which teenage girls might use to relieve the pain of menstrual cramps.

The court ruled that reasoning to be outrageous: “It does not take a constitutional scholar to conclude that a nude search of a 13-year-old girl is an invasion of constitutional rights," Judge Kim McLane Wardlaw wrote for the majority of the judges. "More than that: it is a violation of any known principle of human dignity."

The drug in question was prescription-strength (400 mg) Advil, or the equivalent of two OTC tablets, which is a recommended dose. The court was not swayed by the drug's prescription-only status: “We reject Safford's effort to lump together these run-of-the-mill anti-inflammatory pills with the evocative term ‘prescription drugs,’ in a knowing effort to shield an imprudent strip search of a young girl behind a larger war against drugs. ... Nothing in the record provides any evidence that the school officials were concerned in this case about controlled substances violative of state or federal law. No legal decision cited to us or that we could find permitted a strip search to discover substances regularly available over the counter at any convenience store throughout the United States. ... And contrary to any suggestion that finding the ibuprofen was an urgent matter to avoid a parade of horribles, even if Savana had possessed the ibuprofen pills, any danger they posed was neutralized once school officials seized Savana and held her in the assistant principal's office. Savana had no means at that point to distribute the pills, and whatever immediately threatening activity the school may have perceived by the alleged possession of prescription-strength ibuprofen had been thwarted. The school officials had only to send Savana home for the afternoon to prevent the rumored lunchtime distribution from taking place -- assuming she in fact possessed the pills on her person. The lack of any immediate danger to students only further diminishes the initial minimal nature of the alleged infraction of bringing ibuprofen onto campus.”

Commenting on this affair, Jacob Sullum, senior editor at Reason magazine, editorialized that "There are two kinds of people in the world,": "the kind who think it's perfectly reasonable to strip-search a 13-year-old girl suspected of bringing ibuprofen to school, and the kind who think those people should be kept as far away from children as possible." Sullum further says that "Sometimes it's hard to tell the difference between drug warriors and child molesters."

The U.S. 9th Circuit Court at least paved the way for the school to be sued. The parents did so, and the case is on its way to Washington. The Los Angeles Times reports that the United States Supreme Court has agreed to hear the case in April.

The National School Boards Association told the court that the decision had the "undesirable effect of holding school administrators personally liable for making decisions of constitutional import on which experienced jurists cannot agree," alluding to the earlier court decisions that the search was constitutional.

But the ACLU's brief said the decision "follows clearly established law in finding that a school official cannot strip search a thirteen-year-old girl based on unreliable information that she might have possessed ibuprofen at an unspecified earlier time and in an unknown location."

The attitude of the school officials troubles me deeply. How can a reasonable person believe that suspicion is all that is required to grant authority to strip search a 13-year old girl? Especially over ibuprofen! Is it the goal of our schools to train our children to blindly subject themselves to abuses of their natural rights? How can this kind of behavior be called anything other than child abuse? As I’ve commented before, this War on Drugs has turned into a war on reason. “Zero Tolerance” is a crock that serves only to trample the rights of kids. It’s as absurd as it is unreasonable. As Sullum states in his opinion piece, "It's a good thing the school took swift action, before anyone got unauthorized relief from menstrual cramps."

The 9th Circuit’s opinion (including dissents) may be found at Safford Unified School District 1 v. Redding.

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5 Comments:

MiniKat said...

Absolutely disgusting. It's bad enough learning to deal with menarche and everything that goes with it at that age. But gods forbid being able to take any kind of OTC relief with dignity, like our own mothers did and do, and quietly deal with one's own personal issues. Why not make the whole mess worse by strip searching a child in the search for such things and make them feel even worse about what's happening to them and their peers. The War on Drugs is starting to criminalize puberty. I'm off to vomit now.

Rogue Medic said...

There is also the problem with asthmatics needing to convince the teacher that they are sick enough to be allowed to go to the nurse's office to wait to be seen by the nurse, so they may use their own asthma medication during an asthma attack.

This is something that has probably worsened the outcome of plenty of asthma attacks.

randompawses said...

Rogue Medic has an excellent point. Making an asthmatic wait for treatment during an attack is NOT a good idea at all! Asthma is hardly a minor health issue; people can die from an attack. I know. I had a friend who did.

Hmm, can anyone say "child endangerment" re: that school policy...?

Jay G said...

As the father of two school-aged children, I find myself conflicted by this story. I'm trying to put myself in the position of this girl's father, and find that I can't decide which course of action I would take were something analogous to this to happen to my child.

Part of me would want to lawyer up and sue the bastards back to the Stone Age; The "G. Middle School" sure has a ring to it.

On the other hand, walking into the school with a 2X4 a la Buford Pusser has a lot of appeal as well...

How's that saying go? You can't fix stupid?

Mule Breath, said...

The benefit of this case will become apparent once the Supremes rule. If the wizened ones lean as anticipated, some of this ZT nonsense should join a host of other stupid ideas in the dustbin of history.

Of course, just like gun control and intelligent design, it will continue to poke its head out when we least expect it. Stupid is hard to kill.