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By Brian S. Batterton, J.D.
Article Source: http://www.patc.com/weeklyarticles/school_strip_search_redding.shtml
Printable Version: http://www.patc.com/weeklyarticles/print/school_strip_search_redding.pdf
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In New Jersey v. T.L.O.i, the United States Supreme Court gave school officials significant power to conduct searches of students and their belongings on less than probable cause, which is typically the legal standard required for a search under the Fourth Amendment to the U.S. Constitution. In T.L.O., the Supreme Court held that a search of a student that is conducted by a school official must meet two requirements to be considered “reasonable” under the Fourth Amendment. First, the search must be justified at its inception. A search is justified at its inception when there are reasonable grounds to believe that the search will yield evidence that a student is violating school rules or the law. Second, the search must be reasonably related in scope to the facts that justified the search in the first place. A search is permissible in scope when the method taken to conduct the search is reasonably related to the objective of the search and not excessively intrusive in light of the age and sex of the student and the nature of the suspected infraction.
On June 25, 2009, the United States Supreme Court decided Safford Unified School District # 1, et al. v. April Redding,ii and clarified when a strip search of a student may be reasonable, or unreasonable, under the standard set forth in T.L.O. The facts taken from the case are as follows:
A week [prior to the search at issue], a student, Jordan, had told [Assistant Principal] Wilson that students were bringing drugs and weapons to school and that he had gotten sick from some pills. On the day of the search, Jordan gave Wilson a pill that he said came from Marissa [Glines]. Learning that the pill was prescription strength, Wilson called Marissa out of class and was handed the day planner. Once in his office, Wilson, with [administrative assistant] Romero present, had Marissa turn out her pockets and open her wallet, producing an over-the-counter pill that Marissa claimed was Savana [Redding’s]. She also denied knowing about the day planner's contents. Wilson did not ask her when she received the pills from Savana or where Savana might be hiding them. After a search of Marissa's underwear by Romero and [school nurse] Schwallier revealed no additional pills, Wilson summoned Savana from class... He showed her a day planner, unzipped and open flat on his desk, in which there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines. Savana stated that none of the items in the planner belonged to her.
Wilson then showed Savana four white prescription-strength ibuprofen 400-mg pills, and one over-the-counter blue naproxen 200-mg pill, all used for pain and inflammation but banned under school rules without advance permission. He asked Savana if she knew anything about the pills. Savana answered that she did not. Wilson then told Savana that he had received a report that she was giving these pills to fellow students; Savana denied it and agreed to let Wilson search her belongings. Helen Romero, an administrative assistant, came into the office, and together with Wilson they searched Savana's backpack, finding nothing.
At that point, Wilson instructed Romero to take Savana to the school nurse's office to search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.iii
Savana Redding’s mother filed suit against the Safford Unified School District, Assistant Principal Wilson, Adminstrative Assistant Romero, and Nurse Schwallier alleging that the strip search of Savana was unreasonable under the Fourth Amendment to the U.S. Constitution. The District Court found that the search was permissible under the Fourth Amendment and granted summary judgment for all defendants. The Ninth Circuit Court of Appeals later reversed the district court in part and held that the school district and Assistant Principal Wilson were not entitled to summary judgment or qualified immunity because the law prohibiting such strip searches was clearly established. The United States Supreme Court agreed to hear the case and stated that the issue was:
whether a 13-year-old student's [Redding’s] Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school.iv
In it’s analysis, the court examined the standard set forth in T.L.O. and noted that in that case, the Supreme Court held, in a school setting, courts must balance the need of school officials to maintain a safe school environment against the Fourth Amendment rights of students. As such, the court allowed searches of students based upon the lower standard of “reasonable suspicion.” “Reasonable suspicion” was then described by the court as “a moderate chance of finding evidence of wrongdoing.”v Again, the Supreme Court in T.L.O., held that a search of a student is reasonable if (1) justified at its inception (reasonable suspicion of a school rule or law violation) and (2) reasonable in scope (in light of the nature of the violation and the age and sex of the student).
In Redding, the Supreme Court found that the search of Redding’s backpack and outer clothing was (1) justified at its inception and (2) reasonable in scope based on the nature of the violation and the age and sex of Redding. Thus, this initial search was held by the Supreme Court to be within the bounds of the Fourth Amendment. The pertinent facts were that a student, Jordan, informed the assistant principal of alcohol at a party at Redding’s house, and later provided a pill to the assistant principal stating that he got it from Marissa. A search of Marissa revealed pills and a day planner containing knives, markers, lighters and a cigarette. Marissa claimed the planner and pills came from Redding. This information was sufficient to justify the search of Redding’s backpack and outer clothing. However, this search was not at issue in this case.
The issue was whether it was reasonable to have Redding, a 13 year old female, to strip off her clothes down to her underwear, and then have her pull her bra and panties away from her body such that a portion of her breasts and pelvic area were visible. The court noted that even though Redding was not required to strip off her underwear and stand nude before the school officials, she was still required to do an act that required her to reveal private areas, particularly part of the breast and part of the pelvic area. The court stated that it was “fair” in the eyes of the court to describe this as a “strip search.” To this issue, the court held that the search was not reasonable in scope based on the nature of the violation and the age and sex of the student.
The court based this holding on several factors. First, the court noted various research regarding the psychological impact of a strip search on adolescents. Redding described the experience as “embarrassing, frightening, and humiliating,” and research has shown that those feelings were consistent with the feelings of other adolescents who have undergone similar experiences. Thus, a search of this intrusive nature, to be reasonable in scope, must be justified by significant facts. The lack of significant facts in this case is exemplified in the next two factors considered by the court.
Second, there was no indication, based on the information available to the involved school officials that Redding was currently in possession of pills in her underwear. The court noted that when Marissa was questioned about the pills she said that she got them from Savana [Redding]. However, the school officials did not ask her when she got the pills or if she knew where Redding kept the pills. The school officials also did not ask whether it was likely if Redding was in possession of more pills. Thus, there was no indication or “reasonable suspicion” to believe that Redding was currently concealing the pills in her underwear.
The final factor was the nature of the violation. The drugs at issue were prescription strength ibuprofen (brand name of “Advil”) and over-the-counter naproxen (brand name of “Aleve”). Both of these drugs are anti-inflammatory medications. Neither is commonly considered a dangerous drug, unless taken in large quantities; however, here a very small quantity was at issue (four pills). Thus, there was no indication that a dangerous drug was at issue or that a large quantity of ibuprofen and/or naproxen was involved. The court stated:
In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.vi
The court also stated what would be required to justify an intrusive search such as the one at issue in this case. The court stated:
We do mean, though, to make it clear that the T. L. O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.vii
Taken from the quote above, the court seems to indicate that to have a constitutionally reasonable strip search of a student, the school official must have specific, articulable facts that indicate that a student is presently (1) hiding evidence/contraband beneath his/her underwear and (2) that the contraband or evidence rises to a level of dangerousness that would justify the intrusive nature of a strip search.
After the court made the decision that the search was not reasonable, they had to decide whether the school officials and the school district were entitled to qualified immunity or summary judgment. Because various circuit courts of appeal had differing opinions of the constitutionality of strip searches, the Supreme Court held that, at the time of Redding’s search, the law was not clearly established such that a reasonable school official would have know he or she was violating the constitution. Therefore, the Assistant Principal Wilson, Administrative Assistant Romero, and Nurse Schwallier were entitled to qualified immunity, and were immune from this suit. However, as to the school district’s liability, the case was remanded back to the district court for further review.
The Bottom Line
(1) The rule in T.L.O. is still valid. Thus, a school official can search a student if he or she has (1) reasonable suspicion that the student is involved in a school rule violation or a law violation and (2) the search is reasonable in scope in light of the nature of the violation and the age and sex of the student. This search would normally involve outer clothing, bags, and possibly a locker or vehicle if there is reasonable suspicion that evidence is located in one of those locations.
(2) If a school district is going to allow strip searches, they should be limited to situations where (1) the school official can articulate specific facts that indicate that the student is presently concealing evidence of wrongdoing beneath his/her underwear and (2) the school official can articulate specific facts that indicate that the student is concealing a dangerous object or dangerous drugs and a less intrusive search (i.e.: outer clothing and bags) has not located the dangerous object.
Best Practice:
Strip searches in schools should be limited to exigent circumstances where there is an inherent life threatening or serious injury danger to the particular student or the student population.
In addition, school officials must have reasonable suspicion to believe that the student is presently in possession of the dangerous items and is concealing it under their clothing.
Finally, where alternatives to a strip search would lead to the recovery of the item without creating a more dangerous circumstance, these alternatives should be utilized.
CITATIONS:
ii No. 08-479, 2009 U.S. LEXIS 4735
iii Redding, No. 08-479 at 3-4, 8-10
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About Brian S. Batterton, J.D.
Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta.
He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police.
In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.
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