With ever younger children abusing an increasing smorgasbord of substances, schools have become the front line of defense against this troubling trend. On the one hand, educators cannot responsibly ignore tips that students may be ingesting or distributing dangerous drugs — information that may require verification by bodily searches. On the other hand, public employees are constrained by the Constitution: The U.S. Supreme Court has long recognized that students do not abandon their rights at the schoolhouse door and are entitled to obtain redress if these are infringed on. Yet school personnel are not law enforcement officers, trained in the subtleties of changing search-and-seizure doctrine. Thus, administrators confront the Hobson’s choice of doing too much and doing too little, when either option threatens to invite community outrage and civil suits. But sympathy for these officials’ plight should not eclipse concern for students who endure extreme intrusions — often because of dubious, if good-faith, judgment calls.
On Jan. 16, the Supreme Court granted certiorari in Reddick v. Safford Unified School District. At issue in this case is whether the en banc 9th U.S. Circuit Court of Appeals erred in holding unconstitutional the strip search of a 13-year old eighth-grade girl believed to possess prescription-strength ibuprofen and in rejecting qualified immunity for Kerry Wilson, the assistant principal who ordered the search. Although the war on drugs has yielded countless casualties over the years, rarely have its victims been as young, and imposed upon, as Savana Redding.
Wilson approached Redding initially because a classmate, found with some pills, claimed she had gotten them from Redding. Notwithstanding Redding’s denials, as well as a fruitless search of her backpack, Wilson made no attempt to corroborate the classmate’s statement before asking his female assistant and the school nurse to conduct a more comprehensive search. The two women made Redding peel off successive layers of clothing. When she had stripped down to her underwear, she was compelled to pull out her bra and panties and shake them — thereby revealing her naked breasts and pelvic area but turning up nothing by way of drugs. As Redding stated in her affidavit: “I was embarrassed and scared, but felt I would be in more trouble if I did not do what they asked.” She described the experience as “the most humiliating” of her life, which is hardly surprising given the research documenting the grave trauma inflicted on youths by such incursions. “And all this,” as the majority below wrote, solely “to find prescription-strength ibuprofen pills.”
For these reasons, outside the context of the unpopular exclusionary rule, the justices might conceivably affirm the lower court’s Fourth Amendment ruling; they could still reverse its decision withholding immunity, on the ground that the law forbidding strip searches in these circumstances was not clearly enough established to give fair warning to school officials. This course would shield Wilson while serving to prevent future gross invasions of privacy, but would deprive Redding herself of any remedy. On Wilson’s behalf, it should be noted that Safford students had fallen ill on two occasions in the year before Redding was searched when they ingested prescription drugs furnished by a classmate. Furthermore, the seminal case of New Jersey v. TLO, 469 U.S. 325 (1985), provides at best general guidance to the effect that the search of a student “will be ‘justified at its inception’ ” if there are reasonable grounds to suspect that it will yield evidence of a violation of either the law or school rules, and that it will be “ permissible in . . . scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the [pupil's] age and sex . . . and the nature of the infraction.”
Yet given the justices’ recent retreat in Pearson v. Callahan, 129 S. Ct. 808 (2009), from Saucier v. Katz, 533 U.S. 194 (2001), which had required federal courts to address the constitutional question before the qualified immunity issue, they will probably duck the former and uphold Wilson on the latter. Such an end-run may be better than outright endorsement of strip-searching school kids (an outcome likelier than disapproval given the traditional broad deference to educators’ efforts to suppress drugs). But for good or for ill, Saucier‘s approach would have clarified Fourth Amendment law, dictating a choice between the claims of official discretion and personal rights in an especially charged setting. Embarrassment at having to pen an opinion sustaining a very distasteful assault on a young girl’s privacy might have trumped ideology and precedent, causing a majority to rule for Redding. As it is, the court can make a decision that effectively validates a bad practice — without having to defend it directly.
Vivian Berger is professor emerita at Columbia Law School.