Student strip search is illegal, but family gets no relief

The Supreme Court does not always know what to do with students' rights cases. The Court has sharply restricted First Amendment protections over the years, most recently in the Bong Hits for Jesus case, where the Court allowed a school principal to punish a student who unfurled the Bong Hits banner off-campus during a field trip. But this time around the Court strikes down a student's search and seizure under the Fourth Amendment, but with a catch.

The case is Safford Unified School District v. Redding, decided on June 25. The 13-year-old student was accused of bringing Ibuprofen into the school. She denied it (but admitted to some unrelated misconduct). School officials searched her belongings, including her backpack, but found nothing. Then a female administrative assistant and school nurse had the girl remove her shirt and pants and "was told to pull her bra out and to the side and shake it, thus exposing her breasts and pelvic area to some degree." Again, no pills.

As they say in law school, "what result?" There was much speculation over this case, partly because Justice Ginsburg suggested that male judges did not understand how a search like this could humiliate a young girl. But when the dust settled, the Court holds by an 8-1 vote that the search violates the Fourth Amendment. This was a strip search, Justice Souter writes, in what may be his last opinion before his retirement. The girl had an expectation of privacy in her underwear and bra, and the Court agrees this is particularly humiliating for an adolescent.

Under a precedent from 1985, the legal standard is that "the search as actually conducted [must] be reasonably related in scope to the circumstances which justified the interference in the first place." The school fails the legal test. Under the circumstances, the strip search was too intrusive. The principal knew the drugs in question were equal to two Advils. While, the Court says, any drug can be dangerous if taken in large quantities, the principal had no reason to suspect that students were passing around a lot of drugs. Nor did he have any reason to believe the girl had drugs in her undergarments. "Nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear." All things considered, the search was not justified. This case makes it difficult for public schools to strip-search students in the future.

But while the Court rules that the search was illegal, the individual defendants are immune from any damages claim. Why? Qualified immunity. This legal doctrine means that public officials cannot be sued for money damages if the state of the law was not clear at the time of the violation. We know the state of the law at the time of the violation by looking to court rulings in similar cases. You could see this coming. The Supreme Court's analysis of whether the search went too far cited few precedents on the subject. That's a tell-tale sign that the law was not clearly established. These cases do not come around very often, so the courts have had relatively few opportunities to outline the contours of student search and seizure rights. The primary Supreme Court case on student searches, New Jersey v T.L.O., 469 U.S. 325 (1985), has been interpreted zillions of ways in the lower federal courts, some of which are more deferential to school officials than others, and many of which are well-reasoned, according to Justice Souter. Under the circumstances, the Court cannot say the state of the law in this area was sufficiently clear that the defendants knew they were breaking the law in subjecting the girl to a strip search.

An astute reader points out, however, that the school district may still be held liable, however, because districts are not entitled to qualified immunity. The Supreme Court is sending the case back to the lower courts to determine whether the plaintiff can prevail against the district under Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978), which holds that municipalities are liable for civil rights violations if they result from a policy or practice.

The lone dissenter is Justice Thomas, who thinks the courts are too intrusively second-guessing school officials in discipline cases and that it's time to revert to the common-law doctrine of in loco parentis, in which school authorities stand in for the parents when students are in the building. In any event, Justice Thomas thinks the search was legal even under existing legal standard governing student searches.