In one of his final decisions, if not his final one, as a justice, Supreme Court Justice David Souter ruled for a divided Court Thursday morning that the intrusive strip search of an Arizona middle-school girl in pursuit of drugs was a violation of her Fourth Amendment rights. But because the constitutional standard was not clear at the time of the search, the Court agreed that the assistant principal who ordered the search in 2003 was entitled to qualified immunity from liability for the violation. The ruling came in Safford Unified School District v. Redding, one of the most widely-watched decisions of the term.
The case involved Savana Redding, then 13, who attended a public school with a zero tolerance policy toward possession of all drugs. Acting on reports that the girl had prescription-strength ibuprofen pills, an assistant principal ordered the search to be conducted by the school nurse. She was told to strip to her underwear and pull out her bra and underpants to show that she was not hiding individual pills. None were found. Her mother sued the school district claiming a Fourth Amendment violation, and last year an en banc ruling by the 9th U.S. Circuit Court of Appeals found that the search was unconstitutional and the assistant principal was not immune from liability.
Souter said that under the Court's precedent on student searches in the 1985 case New Jersey v. T.L.O, the school was justified in conducting a limited search of the girl's backpack and outer clothing. But requiring her to strip to her underwear and partly expose herself was excessive, Souter said. Such searches, Souter said, are "so degrading" that some school districts have banned them "no matter what the facts may be." But Souter said that lower court interpretations of the T.L.O. case and others vary widely enough that the school officials who ordered the underwear search were not violating "clearly established law" and therefore deserved immunity from liability for their acts.
The Court divided this way in the Redding case: Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, Stephen Breyer and Samuel Alito Jr. joined Souter on both the constitutional and the qualified immunity issue. Justices John Paul Stevens and Ruth Bader Ginsburg agreed with Souter on the constitutional violation, but dissented on qualified immunity, arguing that the constitutional standard should have been clear to school officials. Justice Clarence Thomas agreed with the majority that the school official should be immune, but he dissented in part because he argued that the search did not violate the Fourth Amendment in the first place.
The Court also ruled in three other cases, including Horne v. Flores, a dispute over the adequacy of programs for English language learners in an Arizona school district. The 5-4 decision prompted Justice Stephen Breyer to read from his dissent from the bench.
The justices adjourned without issuing a ruling in probably its most-anticipated case of the term, Ricci v. DeStefano, involving the claim of non-African American New Haven, Conn., firefighters who claim they were victims of race discrimination because they were not given promotions after passing a test. The city threw out the test after no African-Americans scored high enough for promotions.
The Court indicated that Monday will be the final decision day of the term. An orders list, which may include cases that the Court has agreed to hear in the fall, is also expected. For more on Thursday's action at the Supreme Court, check back here later today.
This article first appeared on The BLT: The Blog of Legal Times.