Safford Unified School District No. 1 v. Redding and the future of school strip searches.

• Author: Katz, Lewis R.

Every year in America, an unknown number of children in primary and secondary schools are strip-searched by teachers or school administrators, forced to remove pants and shirts, and sometimes to expose their breasts and genitals, or even appear naked before school officials. While most strip searches are individual, some students have been compelled to undress in the presence of their peers. (1) In some of these cases, it is not clear whether school officials are searching for contraband--usually drugs, missing money, or stolen items--or seeking to discipline, humiliate, (2) or simply exert authority over the students. (3) Strip searches generally come to light only when a student has the courage to tell a parent what happened, and the parent is sufficiently outraged to complain or sue the school. In other cases, strip searches are uncovered because of the particularly egregious factual circumstances surrounding them. Some of these cases will then be reported in the media, but will eventually disappear for lack of follow-up. Some have resulted in federal civil rights lawsuits, many of which are resolved through summary judgment. (4) Others have likely gone unreported.

Only a handful of states prohibit strip searches entirely. (5) Although some states have standards governing school searches generally, most have failed to adopt specific parameters for strip searches. (6) Other states explicitly leave it to school boards and local schools to develop governing standards. (7) The vast majority, however, have no policy at all. (8)

In New Jersey v. T.L.O., (9) the first school search case heard by the Supreme Court, the Court rejected New Jersey's assertion that schoolchildren do not have Fourth Amendment rights while in school. (10) The Court upheld the warrantless search of a child at school based upon "reasonable suspicion," a lesser standard than the Fourth Amendment requirement of probable cause. (11) The T.L.O. reasonableness standard, borrowed from the standard set forth in Terry v. Ohio, (12) allows a much more intrusive search of schoolchildren than is allowed under Terry, which limits officers to a frisk of the detained subject's outer clothing for weapons. (13)

In a way, T.L.O. opened the floodgates for school strip searches. Prior to T.L.O., the law regarding school strip searches appeared fairly clear. Strip searches were invalid without at least "reasonable cause," (14) and courts made clear that mass strip searches could not be founded on generalized reasonable suspicion, and rather required particularized suspicion with respect to the specific students suspected of violating school rules or policy. (15) After T.L.O., however, some schools and lower courts stopped considering strip searches to be different in kind or more serious intrusions than other school searches of a student's possessions.16 Compounding the problems caused by the lesser standard was the fallback role of qualified immunity. Courts since T.L.O. have generally refused to hold school officials liable for the illegal strip searches because the Supreme Court had not clearly established any prohibition against them. (17)

In Safford Unified School District No. 1 v. Redding, (18) the Supreme Court finally directly addressed the issue of school strip searches, and one of its contributions is to make clear that strip searches are, in fact, different in kind. (19) Savana Redding, a thirteen-year-old eighth grader suspected of bringing prescription-strength Advil to school, was required to strip down to her underwear and shake out her bra and panties, thereby exposing her breasts and genitals to the two female school administrators conducting the search. (20) The administrators found no pills either in Savana's belongings or on her person. (21) Outraged by the incident, Savana's mother sued. The district court and initial Ninth Circuit review found no Fourth Amendment violation. (22) However, the Ninth Circuit reversed its position en banc, holding that the search had violated Savana's Fourth Amendment rights. (23) The Supreme Court agreed. (24) The Court's pronouncement brought the subject of strip searches in schools to the surface, making it clear that a school strip search is at the very least an extraordinary intrusion that should be reserved for extreme and life-threatening situations. Although it subsequently granted the school officials qualified immunity, the majority acknowledged (or at least pretended) that existing law did not previously recognize the extraordinary nature of school strip searches. (25)

Justice Souter, for the eight-Justice majority on the Fourth Amendment issue, wrote in a manner that made the outcome and the law seem strikingly ordinary. The Court merely restated the law already enunciated in T.L.O., and applied it to a search that was far more intrusive than the search that uncovered marijuana in T.L.O.'s purse. (26) The Redding decision, however, is far from ordinary. Redding recognized a sliding scale for reasonable suspicion: the greater the intrusion, the more factual support school authorities must have. (27) While perhaps this is a standard implicit in T.L.O., it eluded many courts and authorities during the previous two and a half decades. Moreover, in finding the strip search unreasonable, the Supreme Court shed necessary light on, and clarified important Fourth Amendment principles governing, the practice of school searches. While not per se prohibiting strip searches, the Court laid out Fourth Amendment governing principles, which should, finally, substantially limit the number of strip searches that occur in America's public schools.

This Article builds on the Redding Court's recognition that absent an emergency situation where a pre-existing school district policy guides the use of such intrusive measures, strip searches are qualitatively different from other searches and should not be allowed in schools. This Article proposes the following: (1) that strip searches should be governed by strict policy; (2) that school boards specifically authorize or prohibit such searches; (3) that school districts publish system-wide policies governing the conduct of strip searches; and (4) that school districts maintain system-wide records of such searches. Further, this Article recommends that a strip search is presumptively unconstitutional if there is no school district policy in place. Part I of the Article sets forth the facts and procedural history of Redding. Part II discusses the Fourth Amendment background through T.L.O., as well as some of the pre-Redding lower court cases that applied T.L.O. Part HI discusses Redding's attempt to rescue T.L.O., and the implications Redding holds for all cases using a reasonable suspicion standard. In addition, Part III highlights the implications of the Court's failure to articulate what exactly constitutes a strip search, while leaving the practice available to schools for use in extreme circumstances. Part IV discusses why the Court was wrong to grant qualified immunity to the school officials in Redding, and summarizes the likely effects of the ruling on future school searches. Finally, we identify the unresolved issues in this area and discuss why states and school boards must either set forth specific policy guidelines for school strip searches or face continuing litigation and damages.

1. FACTS AND PROCEDURAL HISTORY

   After a Safford Middle School student nearly died from taking pills passed out by another student in 2002, (28) the Safford Unified School District adopted a zero-tolerance drug policy. (29) That policy banned illicit substances and all prescription or over-the-counter drugs, unless a student had prior permission to use them. (30)

   In October 2003, the mother of student Jordan Romero reported to school officials, including Assistant Principal Kerry Wilson, that several nights earlier, Jordan had become violent and sick to his stomach because of pills another student had allegedly given to him at school. (31) Mrs. Romero also conveyed Jordan's further contention that some students, including Marissa Glines and Savana Redding, were bringing drugs and weapons to school. (32) Jordan also described his second-hand knowledge of an incident approximately ten weeks earlier in which Savana allegedly provided alcohol at a party in her family's camper prior to a school dance. (33) At that dance, chaperones described a group of eighth-grade students, including Marissa and Savana, as acting unruly, and leaving in their wake a strong smell of alcohol. (34) Chaperones later found a bottle of liquor and a pack of cigarettes in the girls' bathroom, but they were unable to attribute the contraband or the smell of alcohol to any individual student(s). (35)

   On October 8, Jordan handed Assistant Principal Wilson a white pill allegedly given to him by Marissa Glines, and informed Wilson that several students were planning on taking the pills together during lunch. (36) Peggy Schwallier, the school nurse, identified the pill as a 400 mg ibuprofen tablet available by prescription only. (37) Wilson immediately removed Marissa from class. (38) In the process, Wilson asked Marissa about a planner that was on her desk, but Marissa denied ownership or any knowledge of its contents. (39) As Wilson began to escort Marissa from the classroom back to his office, Marissa's teacher opened the planner and discovered several knives and lighters, a cigarette, and a permanent marker. (40) Marissa's teacher brought the planner and its contents to Wilson, who then removed Savana Redding from class and escorted her to his office. (41)

   With Marissa in his office, Wilson asked his administrative assistant, Helen Romero, to come in and serve as a witness to the search he was preparing to conduct. (42) Wilson asked Marissa to turn her pockets inside out and open up her wallet. (43) From her pockets, Marissa produced a razor blade, several white pills matching the one Jordan gave to...