The Supreme Court struggled Tuesday to find the right balance between student privacy and public school safety in the case of an Arizona middle school girl who was strip-searched on suspicion of having an ibuprofen pill.
Pushed by hypothetical questions from the justices, lawyers on both sides made concessions that appeared to displease the Court -- with the school district's lawyer saying that in some circumstances a body cavity search of students could be permitted, while the student's lawyer said strip searches of students should almost never be allowed, no matter how serious the threat to student safety. In the end, it appeared likely that a majority of the Court will follow its traditional pattern in cases involving schools and drugs by giving school officials broad discretion in their supervisory role over students.
Justice David Souter seemed to lean that way when he said at one point, "My thought process is, I would rather have the kid embarrassed by a strip search, if we can't find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry."
Also on Tuesday, by coincidence, the justices handed down a decision in another Arizona search case, this one involving a police search of the passenger compartment of a car after the driver was arrested, handcuffed, and held in a locked squad car. The Court ruled 5-4 in Gant v. Arizona that such a search is unconstitutional unless there is a continuing threat the arrestee could access the car and harm police or destroy evidence. Justice John Paul Stevens wrote for the majority.
In the high-profile strip-search case Safford Unified School District v. Redding, school officials in Safford, Ariz., six years ago summoned 13-year-old student Savanna Redding to the principal's office based on a tip from a fellow student and other circumstances that made officials concerned about widespread use of drugs, including prescription drugs, on campus. The school had a zero-tolerance drug policy.
After finding no pills in her backpack or outer clothing, the student was asked to remove her clothes for the school nurse and an administrative assistant, both female. Now in her underwear, she was asked to pull out her bra and underpants and shake them to determine if any pills were hidden there. No pills were found.
The girl and her mother filed a federal civil right suit claiming the search violated her Fourth Amendment rights. By a 6-5 en banc vote, the 9th U.S. Circuit Court of Appeals ruled for the student, finding there was insufficient suspicion to justify such an intrusive search.
But the school district's lawyer, Matthew Wright of Holm Wright Hyde & Hays in Phoenix, said Tuesday that "searching any place where she might be reasonably hiding that contraband was constitutionally permissible" because of the schools' primary role in keeping students safe. "It's not like a criminal issue where they're trying to prosecute. This is a case where they're trying to protect," Wright said. "It is best for this Court to defer to their judgment ... and not second-guess those rules."
But Souter, noting that the drug in question in the search of Savanna Redding was only ibuprofen, a common pain reliever, said, "At some point it gets silly."
And Justice Antonin Scalia asked if, under Wright's logic, authorities would be justified in conducting a prison-style body cavity search of students.
At first Wright rejected the suggestion. "That is something the Court can clearly say is off-limits" in part because school officials are not trained to conduct such searches. But in the end he conceded that legally speaking, "I could see that result," though he said local school boards would not allow body cavity searches.
Despite that, it seemed that several justices were sufficiently concerned about the problem of drugs and schools that they seemed willing to side with the schools. Justice Anthony Kennedy repeatedly crafted hypotheticals involving methamphetamine being used by students as a way of demonstrating the gravity of the problem school officials face.
Other justices also challenged American Civil Liberties Union lawyer Adam Wolf, who represented the school girl, now 19, when he said that because of the trauma that results from such a search, what happened to Savanna Redding is never justified -- without "location-specific" suspicion that contraband is hidden underneath her clothes.
"The Fourth Amendment does not ... countenance the rummaging on or around a 13-year-old girl's naked body," Wolf asserted.
When Justice Stephen Breyer tried to draw Wolf out on "how bad" such searches really are, Justice Ruth Bader Ginsburg intervened. In a scolding tone, the Court's only female justice made it clear that she knows how humiliating such a search would be for a school girl.
"It wasn't just that they were stripped to their underwear," she said incredulously, referring to Redding and another girl similarly searched at the school. "They were asked to shake their bra out, to stretch the top of their pants and shake that out."
Wolf also said that common sense should have told school officials that the student would not hide a loose pill in her underwear next to her genitalia. "There's a certain ick factor to this," he said. Breyer countered that a student fearful of being caught by the principal might well panic and hide a pill in her underwear.
In a humorous moment, Breyer recalled his own youth when it would have seemed logical to hide contraband wherever possible to avoid punishment. Inadvertently using the wrong pronoun, Breyer said, "In my experience, people did sometimes stick things in my underwear." As the audience erupted in laughter, Breyer quickly corrected himself: "Or not my underwear. Whatever. Whatever . . . I mean I don't think it's beyond human experience."