Strip searches of students: addressing the undressing of children in schools and redressing the Fourth Amendment violations.

• Author: Donahoe, Diana R.

Table of Contents I. INTRODUCTION II. STRIP SEARCHES IN SCHOOLS: NEW JERSEY V. T.L.O. AND ITS PROGENY A. Prong One: Justified at its Inception 1. The Sliding Scale Approach 2. Individualized Suspicion B. Prong Two: Scope of the Search 1. The Age and Sex of the Student 2. The Nature of the Infraction 3. The Location of the Search C. Qualified Immunity III. A MISSED OPPORTUNITY TO RECTIFY THE STRIP SEARCH CRISIS: SAFFORD UNIFIED SCHOOL DISTRICT NO. 1 V. REDDING A. The Supreme Court's Decision B. The Supreme Court's Shortcomings 1. The T.L.O. Policy Does Not Translate to Strip Searches 2. The Court Created More Ambiguity than Lucidity in its Application of the T.L.O. Test a. The Sliding Scale Test and the Failure to Define "Strip Search" b. The Age and Sex of the Student c. The Danger to Students d. The Location of the Search 3. The Court Incorrectly Shielded the Official with Qualified Immunity IV. PROPOSALS TO REDRESS THE CONTINUING FOURTH AMENDMENT VIOLATIONS IN SCHOOLS A. Prong One: Justified at its Inception 1. Ban Strip Searches or Require Probable Cause 2. Define the Term "Strip Search" B. Prong Two: Scope of the Search 1. The Location of the Search and Individualized Suspicion 2. The Immediate Threat of Danger 3. Other Helpful Policies V. CONCLUSION I. INTRODUCTION

In 2003, a school principal ordered the strip search of a thirteen-year-old girl who he suspected had hidden prescription-strength ibuprofen in her day planner a few days earlier. (1) Although no one had suggested she might be concealing drugs in her clothing, the girl was forced to remove her clothes and pull out her underwear so that the school nurse could look between her breasts and around her pelvic area for pills. (2) The search yielded nothing. (3) Afterward, the teenager, an honor student, was forced to sit alone outside the principal's office for two hours; her parents were not called. (4) The girl's mother sued the school officials for violating her daughter's Fourth Amendment rights, and, after years of extensive litigation, the United States Supreme Court heard the case Safford Unified School District No. 1 v. Redding in 2009. (5) The Court held that, although the principal may have violated the girl's Fourth Amendment rights, he would not be held liable for his actions. (6)

Unfortunately, this situation is not unique in the United States. Since the Supreme Court's 1985 decision New Jersey v. T.L.O., (7) courts have analyzed school searches, including strip searches, using a reduced Fourth Amendment standard--reasonable suspicion--rather than probable cause, the higher standard more typically employed in situations involving a search. The T.L.O. Court found that, while students retain a legitimate expectation of privacy, schools have a countervailing interest in maintaining security and order. (8) Therefore, the T.L.O. Court diluted the Fourth Amendment probable cause requirement in the school environment and crafted a two-prong reasonableness test to apply in school search situations. (9) First, the Court held that a search of a student in school can be "'justified at its inception'" by reasonable suspicion instead of probable cause. (10) Second, the Court held that a search is permissible as long as the measures adopted are "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." (11)

In T.L.O., a student's purse was searched, but lower courts later applied the two-prong test to students who were strip searched by school officials. (12) Because the policy behind the T.L.O. decision does not logically translate to strip search cases, these lower courts, even within circuits, struggled to apply the two-prong test and reached dichotomous conclusions in similar factual situations. (13) Because T.L.O. and its progeny were unclear, the law on strip searching in schools became further muddled, and, as a result, courts held that school officials were entitled to qualified immunity when they strip searched students. (14)

Until 2009, the Supreme Court had not addressed the issue of strip searches in schools, and Safford provided the Court with the perfect opportunity to redress the strip search violations occurring across the country. The parties, amici, and scholars predicted that the Supreme Court would clarify the confusing two-part test and its application to strip searches in schools. (15) Safford held that the school principal violated the student's Fourth Amendment rights when he ordered the strip search but shielded the principal from liability under the doctrine of qualified immunity because the law on the issue was unclear. (16) While the Court made some clarifications in the law, it created more ambiguity than lucidity. As a result, the doctrine of qualified immunity will continue to act as a shield, and students will remain subject to strip searches within their schools.

This Article exposes the problems created by T.L.O. and its progeny, analyzes the Safford decision, and proposes recommendations for lower courts, legislatures, and local school boards to redress the current strip search crisis in public schools. Part II explains the T.L.O. two-prong test and illustrates the problems the T.L.O. Court and lower courts have had in applying it, specifically in strip search cases. Part III analyzes the Safford opinion and its ramifications. Part IV proposes ways in which lower courts, legislatures, and local school boards can redress the problems created by T.L.O. and Safford so that officials will no longer be protected when they violate their students' Fourth Amendment rights. Part V concludes that without these changes, schools will be unable to provide a safe learning environment for their students.

2. STRIP SEARCHES IN SCHOOLS: NEW JERSEY V. T.L.O. AND ITS PROGENY

   A student who is strip searched in a public school can bring a civil action claiming that officials violated a federal statutory or constitutional right while acting under color of state law. (17) In these actions, the student must apply the T.L.O. two-part test to prove the school official violated the student's Fourth Amendment rights. (18) However, because the test and its underlying policies have created more ambiguities than clarifications for courts that attempt to apply it, the doctrine of qualified immunity has been successfully utilized as a defense to shield school officials from immunity. (19)

   Courts have interpreted the warrant and probable cause requirements of the Fourth Amendment (20) to have only a few narrow, "well-delineated exceptions." (21) The main issue raised in New Jersey v. T.L.O. was whether searches in schools merited an exception to the warrant and probable cause requirement. (22) The T.L.O. Court held that students have a legitimate expectation of privacy at school. However, it found that the expectation of privacy was limited and that school officials were not required to obtain a warrant before searching a student under their authority. (23) In addition to finding an exception to the warrant requirement, the Court found that probable cause was not necessary, stating that the school setting requires "some modification of the level of suspicion" normally required to justify a search. (24) Citing Terry v. Ohio, (25) the Court reasoned that just as an on-the-street encounter requires less than probable cause, a search at a school could also be justified on less than probable cause where there is a determination of reasonableness based on a careful balancing of governmental and private interests. (26) Thus, in order to prove a violation of the Fourth Amendment in a school setting, the T.L.O. decision created a two-part test modeled after the Terry stop and frisk search (27) to determine the reasonableness of a search in schools. (28) Under the two-part test, courts consider "'whether the ... action was justified at its inception'" and whether the search conducted "'was reasonably related in scope to the circumstances which justified the interference in the first place.'" (29)

   The Court used a reasonableness standard for both prongs of the test. In defining "justified at its inception," the Court, similar to its rationale for a stop in Terry, used a standard less than probable cause, stating, "[A] search ... will be ' justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." (30) Likewise, the Court used a reasonableness standard in defining scope, similar to the frisk standard in Terry, stating that "a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." (31) In discussing the "nature of the infraction," the Court noted that lower courts should defer to the judgment of the school officials and "refrain from attempting to distinguish between rules that are important to the preservation of order in the schools and rules that are not." (32)

   After enunciating the rule, the Court applied it to the situation in T.L.O., where a teacher caught a fourteen-year-old freshman girl smoking in the school bathroom. (33) After the student denied she was smoking, the vice principal demanded to see her purse. (34) When he initially opened the purse, he found a pack of cigarettes and rolling papers. (35) He then thoroughly searched the purse and found marijuana, a pipe, and other drug paraphernalia. (36) The Court, applying its newly crafted two-part test, found that the case actually involved two searches--the first for cigarettes, which gave rise to the second, the search for marijuana. (37) The Court found that the initial search of the purse was justified at its inception because the vice principal had reasonable grounds to...