The Fourth Amendment and Strip Searches in the Public Schools
By Susan A. Bandes, Distinguished Research Professor, DePaul University College of Law, and author of a new ACS Issue Brief, "The Roberts Court and the Future of the Exclusionary Rule".
In Safford Unified School District v. Redding, the Supreme Court will consider whether middle school officials violated the Fourth Amendment by conducting a strip search of a thirteen-year-old girl for prescription-strength ibuprofen.
In 2003, Savana Redding was an honor student at Safford Middle School. She had no prior disciplinary record. When school officials caught her classmate Marissa with prescription drugs and asked her where she’d obtained them, Marissa blamed Savana Redding. Acting on this uncorroborated assertion, the assistant principal directed his assistant and the school nurse to order Redding to disrobe. She was told to strip to her underwear, to pull out her bra and move it from side to side, and to open her legs and pull out her underwear. The search did not yield any ibuprofen or other proscribed substance. Redding did not return to school for months after the
search, and eventually transferred to another school.
The Ninth Circuit Court of Appeals, sitting en banc, held that the search violated the Fourth Amendment. The Ninth Circuit reached the right result on the Fourth Amendment issue, but its reasoning raises concerns.
In New Jersey v. T.L.O., the Supreme Court held that although the Fourth Amendment generally requires a warrant and probable cause for a search, students may be subjected to warrantless searches as long as two conditions are met. The search must be justified by reasonable suspicion and, once initiated, the search may not be excessively intrusive in light of the age and sex of the student and the nature of the infraction. In other words, like any other search, the search of a student must be both justified at its inception and reasonable in scope.
In the T.L.O. case, school officials caught T.L.O and another student smoking on school grounds, giving rise to a reasonable suspicion that T.L.O. had cigarettes in her purse that day. This permissible search of the student’s purse led to the discovery of marijuana. In Redding’s case, her classmate’s uncorroborated tip established—at most-- only that Redding had at some unspecified time given her ibuprofen. This information might have given school officials reason to believe that Redding had ibuprofen with her on the day of the search—that’s arguable. It clearly did not create a reasonable suspicion that Redding was concealing ibuprofen in her undergarments. Therefore, officials had no grounds to initiate a strip search.
Nothing happened during the search to provide additional grounds for suspicion. The National School Boards’ amicus brief argues that “only after the initial minimally intrusive attempts turned up nothing did the search progress.” This argument would seem to justify turning every search of an innocent person into a strip search.
In addition, T.L.O. admonishes school officials to consider the age and sex of the student and the nature of the infraction in determining the proper scope of the search. In other words, even if school officials had possessed reasonable suspicion for the search they conducted, the strip search of a thirteen-year-old student for ibuprofen may still have been unreasonably intrusive in scope, particularly where there was no immediate risk to health or safety.
The district also claims that it is not required to conduct the least intrusive search possible, and that it has great latitude to decide what kind of search to conduct. It reaches this conclusion by conflating individualized suspicion cases like T.L.O. and Redding with cases allowing random drug testing in schools. In Vernonia v. Acton the Supreme Court permitted random testing of all student athletes, and in Board of Education v. Earls it permitted random testing of all students involved in extracurricular activities, with no showing of individualized suspicion. The court emphasized that these random searches would not stigmatize any particular student, since all students would be subjected to them. Redding’s search was not random, but targeted. She was singled out, and she was stigmatized.
In short, the Ninth Circuit was correct to hold the search unconstitutional. However, the Ninth Circuit, like the Second and Seventh Circuits, wrongly interprets T.L.O. as establishing a sliding scale governing what level of suspicion is necessary to justify the search of a student. T.L.O. does not do this: it holds that reasonable suspicion is the proper standard. As the Solicitor General argued in an amicus brief, a sliding scale standard is too
indeterminate. It could require probable cause for some searches and no cause of all for others, based on an ad hoc balancing test that would provide little advance guidance to officials. Ideally, the Supreme Court will reject the sliding scale, reaffirm the reasonable suspicion standard, and determine that
under that standard, this search violated the Fourth Amendment.
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