Monday, July 14, 2008
Court Rules Middle Schooler’s Strip Search Unconstitutional
By STEVEN M. ELLIS, Staff Writer
An Arizona school official violated the Fourth Amendment when he ordered the strip search of a 13-year-old middle school student suspected of possessing prescription-strength Ibuprofen, an en banc panel of the Ninth U.S. Circuit Court of Appeals ruled Friday.
In an opinion by Judge Kim McLane Wardlaw, a majority of the 11-judge panel held that the fruitless search based on an uncorroborated tip from another student caught with the drug was neither “justified at its inception” nor “reasonably related in scope to the circumstances” giving rise to its initiation, and concluded that the official was not entitled to immunity because he should have known the search was improper under clearly established law.
However, Judge Michael Daly Hawkins, joined by Chief Judge Alex Kozinski and Judge Carlos T. Bea, dissented that the search was reasonable in light of the unique disciplinary considerations present in the public school setting and the risk presented by drugs, and contended that any impropriety was not clearly established given other circuits’ decisions upholding student strip searches.
Judge Ronald M. Gould, joined by Judge Barry G. Silverman, also wrote separately, agreeing that the search was unconstitutional, but concluding that the school official was nonetheless entitled to immunity.
Judges Harry Pregerson, Raymond C. Fisher, Richard A. Paez, Milan D. Smith, Jr. and N. Randy Smith joined Wardlaw in her opinion.
Assistant Principal Kerry Wilson of Safford Middle School, located in the eponymous town in southeastern Arizona, ordered a strip-search of Savana Redding by two female school employees after a series of events culminating in the implication of Redding by another classmate in an alleged plot to distribute Ibuprofen at the school.
School officials already suspected Redding of furnishing other students with alcohol prior to a dance at the beginning of the school year, and a few days before the search, the mother of another student recounted to Wilson how her son had recently become violent and then ill after ingesting pills he received from a classmate.
The student also claimed others were bringing drugs and guns to school, and later provided Wilson with a white pill he said he received from a female student named Marissa. The school nurse identified the pill as 400mg of Ibuprofen, which is only obtainable by prescription in contrast to 200mg pills sold over the counter.
School policy prohibited students from bringing any drugs, including prescription medications, onto school property without prior permission, so Wilson pulled Marissa from class, and asked her teacher to determine the owner of a nearby planner. Opening it, the teacher discovered the knives, lighter and cigarette, but no pills, so Wilson took the planner and Marissa to his office.
Observed by his female administrative assistant, Wilson directed Marissa to turn out her pockets, revealing several identical pills. Marissa said she received the pills from Redding, so Wilson ordered his assistant and the female nurse to conduct a more intrusive search, which failed to reveal anything.
Mindful of an incident at the school years earlier in which a student who ingested a prescription drug provided by a classmate had to be airlifted to an intensive care unit and almost died, Wilson pulled Redding from class, but she denied all knowledge of the pills.
A consensual search of her belongings revealed nothing, so Wilson—despite Redding’s discipline-free history—similarly ordered a more thorough search.
After making Redding strip to her underwear while they searched her clothing, the two women—ignoring Redding’s pleas that she had no Ibuprofen—made the girl pull her bra and underwear away from her body and shake them order to dislodge any pills, exposing herself in the process.
Redding, describing the search later as “the most humiliating experience” of her short life which had left her feeling “violated,” said that she was embarrassed and scared, but complied because she thought she would be in more trouble if she did not.
Redding’s family brought suit against the school, Wilson and the two women, but U.S. Magistrate Judge Nancy Fiora of the District of Arizona ruled that there was no violation of Redding’s constitutional right to be free from unreasonable searches in school established by the U.S. Supreme Court in New Jersey v. T.L.O., (1985) 469 U.S. 325.
Applying T.L.O.’s two-pronged test, Fiora reasoned that the planner Redding admitted lending to Marissa provided a sufficient nexus to corroborate Marissa’s tip, justifying the search at its inception, and that the need to locate the Ibuprofen was sufficiently urgent that the search was reasonably related to its objective, and not excessively intrusive.
A divided panel of the Ninth Circuit upheld Fiora’s grant of summary judgment against Redding on appeal, concluding that Marissa’s veracity was supported by “ample facts” and that the school’s interest in protecting students from drugs outweighed the intrusion of the search.
However, Wardlaw wrote on rehearing that neither Marissa’s “self-serving statement,” the allegations of alcohol use nor the lending of the planner justified “initiating a highly invasive strip search of a student who bore no other connection to the pills in question.”
She similarly concluded the search was unreasonable in scope given the “disproportionately extreme measure” officials had adopted to search such a young woman for violating a school rule prohibiting possession of prescription and over-the-counter drugs.
Wardlaw also wrote that, even though the two women who conducted the search were entitled to qualified immunity because they had acted pursuant to Wilson’s instructions, the assistant principal was not given caselaw from other circuits recognizing the inherent personal privacy of middle school students.
However Hawkins criticized the majority opinion as imposing on school officials “a ‘reasonable suspicion’ doctrine that is becoming more complex that the probable cause doctrine rejected by T.L.O.”
He wrote that Wilson “possessed sufficient information to reasonably suspect Redding of possessing prescription-strength ibuprofen,” and that the school officials were entitled to greater deference in their judgment, especially given the possibility of death for children who overdosed on the drug.
The jurist also noted his displeasure with the U.S. Supreme Court’s decision in Saucier v. Katz (2001) 533 U.S. 194, requiring courts to determine whether a constitutional right was actually violated before reaching any question of immunity.
“[T]his case is a particularly good example of why courts should not be required to resolve constitutional questions before finding that a defendant is entitled to qualified immunity,” he wrote.
Defense counsel could not be reached for comment, but a spokesperson for the ACLU, which represented Redding in the suit along with others, applauded the court’s decision.
“To strip search a 13-year-old girl based on a classmate’s uncorroborated accusation of Ibuprofen possession is an affront to both the Constitution and common decency,” the spokesperson said.
The case is Redding v. Safford Unified School District #1, 05-15759.
Copyright 2008, Metropolitan News Company