It's not every day that Harry Pregerson and N. Randy Smith line up on the same side.
Pregerson, a Carter appointee on the 9th U.S. Circuit Court of Appeals and an unabashed liberal, and Smith, a George W. Bush pick, would be expected to hold widely divergent views on a controversial Fourth Amendment case. But the two found themselves in the majority on a 6-5 en banc opinion Friday, ruling that the strip search of a 13-year-old girl at school was unconstitutional.
The opinion, written by Judge Kim Wardlaw, breaks the court's traditional ideological divide, as Republican- and Democratic-appointed judges wound up on both sides of the chasm. Liberal Judges Wardlaw, Pregerson and Richard Paez, and the more moderate Raymond Fisher, would not have been able to eke out a one-vote majority without the votes of Smith and moderate conservative Milan Smith Jr.
In dissent, Judges Ronald Gould and Barry Silverman -- both Clinton appointees -- also found the search unconstitutional, but found that the school officials still deserve immunity because case law was too vague for administrators to have known better.
And in a much more voluminous protest, taking up more pages than the majority opinion itself, Judges Michael Daly Hawkins and Carlos Bea and Chief Judge Alex Kozinski found the search reasonable. Hawkins, a Clinton appointee who wrote the dissent, has a liberal reputation, and Kozinski, while conservative, has a Libertarian streak and often sides against the government on Fourth Amendment issues.
The peculiar breakdown probably came about because search-and-seizure issues in the context of schools and children involve very different sensibilities than among adults, said Carl Tobias, a professor at University of Richmond School of Law.
"It also may testify to the fact that despite all the criticism of the 9th Circuit, it really isn't as predictable as some might think," Tobias said.
Officials at Safford Middle School in Safford, Ariz., strip-searched 13-year-old Savana Redding because they got a tip from another student that Redding was handing out 400-mg doses of ibuprofen, which is a prescription dosage. The search yielded nothing, and Redding's mother filed a civil rights claim.
The district court tossed the suit, and a 9th Circuit panel led by Hawkins agreed. Judge Sidney Thomas wrote an impassioned dissent, and even though he didn't wind up on the en banc panel, his colleagues vindicated his opinion.
Nowhere does Supreme Court precedent "provide blanket approval of strip searches of 13-year-olds remotely rumored to have had Advil merely because of a generalized drug problem," Wardlaw wrote, adding that the lasting psychological harm to a child outweighs the school's interest in this case.
But Hawkins, reaffirming his panel opinion, stressed that school administrators are owed much more deference than the majority accords to them, and that they have a responsibility to act quickly in the face of a public safety problem. Alternatives suggested by Wardlaw, such as holding Redding in the principal's office for the afternoon, miss the point, he said.
"The students were not planning to rob the 3:10 train to Yuma; they were going to pop pills," Hawkins wrote. "This demonstrates a misunderstanding of the temporal nature of the threat."
Arizona-based lawyers for both Redding and the school district could not be reached for comment. Adam Wolf, an ACLU foundation attorney who worked on the case, praised the ruling and said he can understand why some conservative judges sided with Redding.
"Anybody who would place his or her child in the position of Savana would be terrified to think that their kid could be strip-searched just because one other classmate points the finger," Wolf said.
Asked why some Libertarian judges sided with the school, Wolf said, "I don't know."
The case is Redding v. Safford Unified School Dist. #1, 08 C.D.O.S. 8790.
