April 7, 2009

Zero Tolerance: More on the Fourth Amendment Redding Case

From the American Constitution Society for Law and Policy, this relates to my previous posts [HERE, AND HERE] on the Savana Redding strip search case. It adds further fuel to the fires of protest against Zero Tolerance.

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.


Anonymous said...

I am frustrated with the way our courts treat events like "strip searches." In my humble opinion, if Miss Redding's father had gone to the school and shitstomped the people responsible, I'd not be frustrated and I'll bet it wouldn't happen there ever again - or anywhere else that heard about it.
Sometimes a "the buck stops here" action can solve things. Abuse to children is poorly handled by our system of justice - as all abuse is so handled. It is disgusting as well as frustrating.

tgtsmom said...

As the mother of a student punished under a Zero Tolerance Policy on fighting when he was the victem of an attack who defended himself with only sufficient force to stop his attacker from continueing, I am a little touchy about school systems and the way in which "justice" is administered. I have come to believe that the rules are in place to prevent any teacher or principal from using even the smallest amount of common sence in these matters becasue most principals have been "promoted to their level of incompetence" using systems put in place with the strong-armed assistance of the NEA (the teachers' union) and if left without detailed written instruction with no loop holes for personal judgement, they are incapable of functioning at all.

I believe the only way to solve this is to disban the union and the Dept of Education and go back to a system where the local communities controll the schools. Don't get me wrong, I understand there are pitfall in this, as some communities will see little reason to educate their children at all, or any further than a bible (substitute other works ad nauseum); but the current system will not allow us to get rid of inept teachers and administrators and will not allow the ones who have some sence to function with any form of reason for fear of being disciplined by said inept administration.

And, for the record, throwing a shit storm did not help. They have the defence of "only following the rules". Short of suing, we have little recourse. We are waiting to see if it will effect his passing to the next grade before we file suit. The biggest longterm effect of these rules is showing up in my son. If attackers/bullies and victems are treated alike, he see no reason to NOT fight at school any more. you get treated alike no matter what really happened, so what's the point - leading to more violence in schools, not less.