SCOTUS: Strip-searching teenage girls for Ibuprofen not cool
posted at 3:10 pm on June 25, 2009 by Ed Morrissey
In an 8-1 decision, the Supreme Court declared a strip search of a teenage girl at an Arizona middle school unconstitutional. The decision does not bar strip searches per se, but it blasts the school district for humiliating a minor over Ibuprofen. The one dissenter? Guess:
The Supreme Court on Thursday ruled that the strip search of a 13-year-old schoolgirl violated the constitutional protection against unreasonable search and seizure.
In a closely watched case filled with poignant facts, the court by an 8-1 margin ruled that Arizona school officials violated student Savana Redding’s Fourth Amendment rights when they searched her down to her bra and underpants. Officials were looking for pain pills, which they did not find.
“The content of the suspicion failed to match the degree of intrusion,” Justice David Souter wrote for the majority.
I’d call that a highly nuanced view of the situation. When, exactly, does a strip search by school authorities become reasonable? Souter says that a combination of circumstances caused the legality of the search to be “fatal” — a lack of reasonable cause, and the clear dissonance between the extent of the intrusion and the extent of the danger. However, it seems to me that school officials shouldn’t conduct these kinds of searches at all, but should instead either call the parents or call the police, who (usually) have better training on the conduct of searches.
Justice Clarence Thomas disagrees, however, writing in a lone dissent that the search was reasonable (pages 43-44):
“[T]he nationwide drug epidemic makes the war against drugs a pressing concern in every school.” Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U. S. 822, 834 (2002). And yet the Court has limited the authority of school officials to conduct searches for the drugs that the officials believe pose a serious safety risk to their students. By doing so, the majority has con-firmed that a return to the doctrine of in loco parentis is required to keep the judiciary from essentially seizing control of public schools. Only then will teachers again be able to “‘govern the[ir] pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn’” by making “‘rules, giv[ing] commands, and punish[ing] disobedience’” without interference from judges. See Morse, supra, at 414. By deciding that it is better equipped to decide what behavior should be permitted in schools, the Court has undercut student safety and undermined the authority of school administrators and local officials. Even more troubling, it has done so in a case in which the underlying response by school administrators was reasonable and justified. I cannot join this regrettable decision. I, therefore, respectfully dissent from the Court’s determination that this search violated the Fourth Amendment.
I disagree that the “nationwide drug epidemic” includes Ibuprofen, in the first place. In a more broad sense, the doctrine of in loco parentis has not included strip searches without probable cause. It does allow for the governance of pupils and punishing disobedience, but does that include strip searches of adolescents on flimsy grounds? I don’t see the connection between strip searches and the upholding of in loco parentis, and I imagine that parents of adolescents won’t, either. The Fourth Amendment protects everyone against “unreasonable search and seizure” by state authorities. Public schools certainly qualify as a state authority, and this search was neither reasonable nor necessary, as the school had other options, including involving the girl’s parents.
I admire Justice Thomas, but he’s wrong on this case.
Blowback
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No, it doesn’t. The rights of students on school ground are highly circumscribed. They certainly have no Second Amendment rights. Teachers can mend out punishment without due process. They have no freedom of assembly. They have no freedom of expression, even, as the marijuana t-shirt case showed, when the speech in question is not disruptive. Schools official can search through the processions of students and, if they so see fit, seize any item.
Is this case outrageous? Yes. Is conferring rights guaranteed by the Constitution the only remedy? I don’t think so. If a parent believe his child has been injured– physically, psychologically, or materially–he can always sue under tort law. Curtailing the in loco parentis doctrine undermine the authority of school officials, the exercising of which is an essential part of their educational mission. As things stand, kids in public schools are an undisciplined bunch not knowing the need for respect. This is a lousy decision prompted by an absurd, singular case. Only Thomas got it right.
year_of_the_dingo on June 25, 2009 at 4:57 PM
THAT makes perfect sense.
I was merely arguing this point to those that claimed a call to law enforcement was appropriate.
The i-Pod case was a great example.
blink on June 25, 2009 at 4:59 PM
Distribution of a Prescription strenth Drug withoug a license is AGAINST the LAW.
They found PRESCRIPTION STRENGTH Ibuprofen on the other girl, who then dropped a dime on this girl. If they had found her to have that Prescription drug on her, and the case of distribution had stuck (as the snitch said), she could have GONE TO JAIL for Pushing on a School Ground.
Romeo13 on June 25, 2009 at 5:02 PM
I think that the schools have lost any concept of common sense and are instead trying to apply rules without having to think. In the HS my daughter goes to no medications are allowed. All are considered drugs in the same category as crack. This allows you to eliminate the need for thought. Drugs are bad and so therefore we go after all of them equally without applying the common sense that would tell you there is a difference between taking a couple of aspirin and popping uppers.
The same goes for other things, like knives. Recently, a young man who works in a grocery store left his box knife on the seat of his car in the HS parking lot. Someone saw it and reported it. The kid was suspended for having a knife on school grounds. Stupid. The explanation from the school was that we have the rule of no knives on school grounds and we must apply it. No need for any real thought or application of common sense.
In my HS about half of us had gun racks with rifles in them in the windows of our trucks in the school parking lot. Nobody cared and no one was ever shot. Now that would cause half the faculty to swoon. Is it so hard to apply common sense… aspirin OK, Uppers not OK. Box knives in the car OK, switchblades in the hallway not OK.
SoonerMarine on June 25, 2009 at 5:02 PM
wonder if the girl was really scarred for life by this traumatic event, or if some enterprising lawyer figured he could get some notoriety or cash out of such a sympathetic defendant.
hawksruleva on June 25, 2009 at 4:20 PM
Exactly. Grow Up. Everyone has scary stories from childhood.
I refused to allow my Jr.High teacher to swat me for chuckling at another student’s joke at the teacher’s expense. I was sent to the Vice Principal to get my punishment. He asked what happened, looked at my good student record, and told me to do a better job minding my manners in class. And I did.
Ugly people exist and smear innocent people all the time. I don’t condone false charges at all! I’ve been FALSELY accused myself of things by ugly minded people holding their own biased grudges and prejudicial chips on their shoulders. We’ve been wronged more times than I care to remember, having also suffered the brunt of so much medical malpractice, but haven’t sued.
If everyone offended took their offense to court, we’d be where we’re headed today, going to hell in a hand basket.
maverick muse on June 25, 2009 at 5:05 PM
Romeo13 on June 25, 2009 at 5:02 PM
If Savana Redding wants to press charges on someone, then confront the girl in possession of the drugs who submitted the false charges against her to the authorities.
File a complaint to the School Board to have the administrative official in charge of her strip search penalized/fired. And request the School Board, if they have not yet done so, to establish a protocol that would be more reasonable. Work with the system to improve it without penalizing tax payers.
maverick muse on June 25, 2009 at 5:10 PM
Whatever. What if she had the prescription? What if she possessed 200mg doses instead? What if it was an i-Pod? Do any of these variants suddenly change anything?
blink on June 25, 2009 at 5:10 PM
False charges?
blink on June 25, 2009 at 5:11 PM
I think somebody should strip search Thomas because I think he’s on something. He’s usually good but looks like a drunken effort to out Scalia Scalia with his “law and order” nonsense.
You want some of the pervs protected by these Teacher Unions fondling your kids. If it must be done that’s what police are trained to do. If the cops aren’t involved just send the kid home.
LevStrauss on June 25, 2009 at 5:14 PM
blink on June 25, 2009 at 5:11 PM
The unnamed girl claimed that Savana Redding supplied the drugs found on the unnamed girl. There was no evidence to support that claim, Savana was drug free, so the charge against Savana was wrong.
maverick muse on June 25, 2009 at 5:17 PM
Point being that she was accused of Distribution of a Controled substance, with the kicker that it was on school grounds (which in most states counts for higher punishment).
This was not a simple rules violation. The school was acting in a POLICE capacity, without contacting the Police, or affording her any of her Constitutional protections AS THE POLICE WOULD HAVE!
Even the Police cannot grab you on the street and search you at the behest of a snitch. They cannot, without a warrant, go looking for you to search.
Romeo13 on June 25, 2009 at 5:20 PM
The stupidest part about the search is that it was completely unnecessary. I have a friend who is a Jr. High School Principal…. kids can’t keep secrets and aren’t very good liars. The principal should be smarter than that.
roux on June 25, 2009 at 5:21 PM
Not true. Establishing probably cause justifies a search.
blink on June 25, 2009 at 5:23 PM
Wrong. Thats the whole reason for search warrants in the first place.
If its not imminent, or pose some danger, the cops can’t just track you down and search you. They can ask you questions, but if they don’t see somthing THEN to give probable cause (that a crime is currently being commited), they can’t search you.
Romeo13 on June 25, 2009 at 5:30 PM
No. That’s not true. The fact that this specific rule violation is ALSO a law violation doesn’t negate the schools power to enforce a rule violation. To suggest otherwise implies that a school isn’t permitted to discipline a student for disrupting the peace if such disruption also happens to violate a local statute. It would be silly to imply that it’s ok for school officials to give detention to a student that disrupts a class UNLESS such disruption is egregious enough to violate a statute – in which case the school officials MUST call law enforcement.
Now, let’s discuss what powers the school should have to enforce a rule violation. I haven’t weighed in on either side of this and don’t care. However, I want to make sure that accurate arguments are being considered.
blink on June 25, 2009 at 5:31 PM
Common sense and the law diverge here. The “prescription strength” drug differs from the OTC version only in the dose, and only by a factor of two or four. You can get that same dose by taking a couple more of the OTC pills. It’s not a different substance.
When my doctor wants to give me a “prescription-strength” dose of an OTC drug, I ask to take it in OTC pills instead. It’s cheaper and I don’t care to abuse my prescription drug benefits for it. My doctor trusts me to be able to read the package label and divide milligrams/pill into milligrams.
The school authorities overstepped common sense here, by far. The reason for outlawing heroin and cocaine is that they have no safe use outside of the most strict medical control. This is not true for ibuprofen. I would hope that the local school board takes the principal to task, strongly and publicly, perhaps with a policly that explicitly draws a line between drugs with a serious abuse potential and drugs that have none.
njcommuter on June 25, 2009 at 5:36 PM
Sorry, but on certain subjects, it is true.
When it comes to “real” weapons, or drugs, the school HAS to call the cops. Thats the law. They have no discretion on this (at least here in Colorado).
She had been accused of a crime. They were searching for evidence of a CRIME. This ratchets up the need to protect HER rights, and to follow the proper procedures so that the search would be legal.
Problem here is the line between Rule and Law.
To enforce a Rule? IMO they should not be able to strip search without parental permission…
To enforce a Law? The school should not be doing it, they should call in Trained Law Enforcement so it can be done properly, and Legaly.
So, IMO, in either case, the school should not be strip searching children.
Romeo13 on June 25, 2009 at 5:42 PM
Seriously. Stop being silly. Read the decision of New Jersey v. T.L.O. It’s even specific to school searches.
Imminent danger is certainly NOT a mandatory criterion for a warrantless search.
blink on June 25, 2009 at 5:42 PM
I’m with Clarence on this. The allegation was that Savana was giving drugs to other students. For the district to not have attempted to determine the nature of the drugs allegedly being dispensed would have been a failure of their duty to ensure the safety of other students. Sometimes they didn’t — but that certainly didn’t mean the student was innocent.
Ever heard of a stash? My brother in law, who served for over two decades as a vice principal on both middle and high school campuses, frequently found kids who, when searched, had nothing on them, but, when he retraced where they were travelling, found their drugs (stashes) in bushes, garbage cans, etc. Forensics (fingerprinting) on the bags containing the drugs frequently linked them to the students.
Personally, I think schools should have the same powers as parents; everything a parent can do in searching their kid, a school should be able to do. In liberal land, the reverse is true too — what a school can’t do, a parent can’t do either, since civil rights remain constant regardless of circumstance.
Now students have carte blanc to carry any number of little white (or purple, or whatever) pills they’ve gotten from the medicine cabinet — and searching said students will now be a violation of rights, no matter how deadly the substance might be.
unclesmrgol on June 25, 2009 at 5:47 PM
What? Dude, serious logic error.
Just because certain crimes REQUIRE law enforcement involvement doesn’t mean that EVERY statute violation requires law enforcement violation.
blink on June 25, 2009 at 5:48 PM
I think the school was wrong, but I don’t think they violated her constitutional rights.
I probably agree with Clarence Thomas that the school was acting narrowly to address a problem that they view as serious. Prescription drug abuse may not be serious, but that isn’t the job of SCOTUS to decide.
I wonder what single factor would have to change in order to get commentors to support the school?
1.) No nudity, just emptying pockets and bags?
2.) If the suspected substance was weed? Cocaine?
3.) If it was a boy instead of a girl?
4.) If the evidence were stronger?
dedalus on June 25, 2009 at 5:50 PM
1. I have NEVER argued otherwise, BUT USSC might not agree with you. I think they made it clear that the benign nature of the substance involved (Ibuprofen) was a factor in their decision.
2. I have only argued the assertion that it was appropriate to contact law enforcement to handle rule violations.
blink on June 25, 2009 at 5:55 PM
Great questions. I’m sure certain school district counsel will be asking themselves these same question.
blink on June 25, 2009 at 5:57 PM
Trust me… not my law.
The problem is that the reason she was being searched in the first place DID put it in the category of those statutes that needed law enforcment to be involved.
Romeo13 on June 25, 2009 at 5:59 PM
What does that mean? What’s not your law?
Not true. Arizona law requires school officials to contact law enforcement for violations of ARS 13-3411.
1. The specific language of ARS 13-3411 only states “Possess or use marijuana, peyote, dangerous drugs or narcotic drugs in a drug free school zone.” Ibuprofen doesn’t fit any of these.
2. BTW, suspected possession isn’t possession.
So, for two separate reasons, this DIDN’T “put it in the category.”
blink on June 25, 2009 at 6:26 PM
Just in case there’s any confusion I should add one more thing.
It is also a violation of ARS 13-3411 to intentionally be present in a drug free school zone to sell or transfer prescription-only drugs. However, a student intentionally being present to attend class obviously doesn’t fit this category.
blink on June 25, 2009 at 6:37 PM
I wonder what made them swing this way after “Bong Hits for Jesus” was performed on a sidewalk not on “school” property…
Upstater85 on June 25, 2009 at 7:00 PM
Agreed.
One think I always knew, if a social worker showed up at my house for any reason (abuse reports are anonymous), I knew enough to tell them to get a warrant and the police, who are trained to interview without leading the “witness”.
Social workers, teachers, most certainly public school administrators are NOT trained to be objective…this would have been lawsuit fodder for me…if the student is a minor, then call the parents!
ladyingray on June 25, 2009 at 7:08 PM
What ever happened to teaching your child about what’s right and wrong, and that not every adult is to be trusted? I taught all my 3 of my girls that. If anyone tried to do anything “daddy” wouldn’t do, then it’s not OK to do it. In a case like that, this daddy never saw his daughter naked after the point she was able to bathe herself. So it wouldn’t be OK for anyone else to see her that way either.
I’m pleased with the court ruling. Some of these “adults” in our school system are out of control and go beyond the trust and authority granted them. This girl should have simply said “no, you are not searching me, call my parents”. People would be well advised take the responsiblity of being the primary instructor on life for their child seriously, if so a lot less of this stuff would be going on.
Hog Wild on June 25, 2009 at 8:27 PM
So any adult employed by the school can watch a child undress because he/she “might have drugs”. All i can say is if some school official strip searches my kid. OH BOY they will have wished they didnt!
Greed on June 25, 2009 at 8:51 PM
This should’ve been a slam dunk in favor of the student.
In almost every federal circuit, the standard required in order to strip search SOMEONE BEING PLACED INTO PRISON POPULATION, is reasonable suspicion that they are carrying a weapon, drugs, contraband, etc.
So, with NO level of suspicion, so to speak, one would hope that kids in a school setting would be subject to the same level or protection as felons and potential felons being locked up.
As a matter of public policy, however, I would opt for NO such searches by school officials. If there is a reason to believe a kid is carrying illegal or at least school-banned substances, the school officials should put their money where their mouths are, and being in the police (someone in a supervisory capacity) to determine whether a search is warranted, and whether it is legal, and to perform it. Law enforcement is at least theoretically trained and will not take unnecessary risks either way in deciding whether to search. But school officials…. nay.
God help the school official that performs any kind of physical search of my child.
(But that’s why I would never put a child of mind in public school.)
seanrobins on June 25, 2009 at 9:51 PM
I would say under any of these scenarios: Still, call the police. School officials do not get paid NEARLY enough to deal with me in the event that they try to search my child like this girl was searched.
seanrobins on June 25, 2009 at 9:55 PM
In considering the dissent of Justice Thomas, bear in mind that there is a difference between saying that the act in question does not violate the Fourth Amendment and saying that is was right. The question before the court was one of Constitutionality, not the broader question of whether the act was proper.
njcommuter on June 25, 2009 at 11:21 PM
Here is collateral damage of the drug war. The drug war is being lost. I take a libertarian view here. The drug war just like prohibition, causes more harm than good. At least they had enough guts to make a amendment to constitution for Prohibition. Being drugs are illegal is reason you have the violence. If it was legal and you could buy it in a coffee house like Amsterdam there would be reason for violence. All countries who have adopted this policy have seen drug use fall. In the drug war they have suspended the constitiution. If someone wants to damage them self it their own business. I don’t believe in putting anything in my body that could cause harm, but I do not have right to tell others not to. why don’t they make McDonald’s food illegal? It cause is harm also. Marijuana is less harmful and not addictive as Booze or cigarettes, but yet we tell our children that is as dangerous as Heroin. When they figure that lie out they figure the rest is a lie and that leads to harder drugs. This is a public health issue for the states not a war against its people on the federal level. End the War on Drugs.
Ed Laskie on June 26, 2009 at 2:37 AM
You will not get a police officer to strip search someone without an approval of that officer’s supervisor (which will not happen). Strip searches are done in prisons, or in jails (usually with drug-related charges or any felony). There is no way an officer (and there may have been been a school resource officer at the school) would have conducted a strip search of this girl.
Reading through the news reports of this case, she wasn’t actually required to strip, but rather pull clothing away from her body to allow any contraband to fall.
I’m of two minds on this one. If it’s one of my daughters, they damn well better call me or I will raise some hell. Schools do have a lot of leeway with searches (lockers, bags, etc. without probable cause–only justification) and in fact have more authority to search than police officers on school grounds. I believe Souter’s opinion said that because schools are public (and government-run), they are acting as government officials (or something to that effect). Well than what about private schools? And no one has address Thomas’ point about kids now having a place to hide contraband…Lot to think about on this one…
ajsleepy on June 26, 2009 at 6:10 AM
.
Yes. They violated reasonable on so many levels it is terrifying.
darktood on June 26, 2009 at 11:00 AM
Now that the FDA is considering classifying Cheerios as a drug does that mean kids will be busted for possession of illegal breakfasts?
The inmates are truly running the asylum.
G-man on June 26, 2009 at 12:40 PM
So basically, if the school had reason to suspect that this student was in possession of marijuana or cocaine or methamphetamine, or something more “dangerous” then a “strip search” by school officials would have been okay.
By the way, the use of the term “strip search” in this case is a misnomer used simply in a rather callous attempt to increase the “outrage” at the conduct. The girl stripped down to her bra and panties in front of a female school nurse, so she was left wearing clothing similar to that which she would have voluntarily appeared in, in front of her male teachers and classmates, at any beach or swimming pool. Since she never was required to be naked, the use of the term “strip search” is used simply for its shock value.
Also, there is a lot of bad info being put forward on this thread.
Unless you have some facts to back up this assertion, I am going to say this is a blatant untruth. All applications for search warrants are reviewed by a judge and the warrant itself is issued by a judge. The vast majority of search warrants are perfectly legitimate and upheld despite the best efforts of attorneys to get evidence thrown out of court on every silly theory under the sun.
This is also not accurate. If a police officer has “probable cause” to arrest a person, regardless of whether that is based on something the officer themselves observed, or based on what they’ve been told by other police officers, etc, then the officer can “track you down” even if its for something you did days, weeks or months prior (although its “best” to get an arrest warrant, is it NOT required in most states). They can then arrest you, search the arrested person without a warrant (its called a search “incident to arrest”) and can search for any evidence of the crime for which the person is being arrested, any contraband, any weapon or anything that could be used as an “instrumentality of escape” (including something as small as a handcuff key). The idea that the police officer has to “see” you committing a crime in order to have probable cause is just plain wrong. Reminds me of the guy who, under oath, in court, in front of the judge, admitted to driving on public streets when his license was criminally suspended, but claimed he could not be found guilty because the police officer who arrested him never actually “saw” him driving. Needless to say, the Judge soon disabused him of that wrong notion.
I wonder if the reactions would be different if this story had been: “Student dies after being given prescription-only controlled substances by another student!” Then continued that: “The tragic death occurred despite the fact that school officials had been told by other students that the offending student was carring controlled substances around the school. School officials decided that they could do nothing and did not have authority to conduct a search of the offending student based on recent court rulings. The offending student was the child of a single-mother who was apparently at work at the time and was unable to be contacted. Local law-enforcement was unable to respond (due to personnel shortages caused by recent budget cuts) but had assigned an officer to follow-up with a telephone interview at a later time. The local police chief defended that reaction pointing out that “mere rumors” among members of the student body were insufficient to justify police involvement.”
The way a story is “spun” sure seems to determine public reaction.
Judge Thomas simply seems to be saying that the courts have so tied the hands of school officials that the doctrine of “in loco parentis” can no longer be said to exist and in a society where parents no longer discipline their children (a good percentage simply for fear they will be charged with some form of abuse), that we are raising generation after generation of children who are essentially free to run wild, thumbing their nose at any and all authority figures all the while being backed up by threats of law-suits by lawyers out to make a buck any way they can.
Fatal on June 26, 2009 at 12:55 PM
Yes. It behooves people to reserve reaction until after they’ve attempted to see past the spin.
blink on June 26, 2009 at 4:15 PM
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