7-1-2009 Washington DC:
The United States Supreme Court ruled in Safford Unified School District #1, et al. v. Redding that a school official's search of a thirteen-year-old student's bra and underpants violated her Fourth Amendment right to be free from unreasonable searches. But in a second part of the opinion with significance beyond the school setting, the Court held that the officials were entitled to qualified immunity, as the unconstitutionality of such a search was not "clearly established" when they conducted it. This decision is important to all public officials who may assert a qualified immunity defense, because it reaffirms the rule that the official must be on notice that her conduct violates a clearly established right before she can be subjected to a lawsuit, or, ultimately, liability.
In the underlying action, a public middle school official searched thirteen-year-old Savanna Redding, whom the school suspected of distributing contraband pills. A fellow student tipped off the assistant principal, who searched Redding's backpack, and found nothing; he then instructed his administrative assistant and the school nurse, both female, to search Redding's person--requiring her to remove all outer clothes and turn out her bra and underpants. There were no pills. Redding's mother sued the school district and all three officials, contending that the search had violated her daughter's Fourth Amendment right to be free from unreasonable searches. The District Court ruled against Redding, finding the search reasonable.
A three-judge Ninth Circuit panel initially affirmed that decision by a 2-1 vote. But in a 6-5 decision, an en banc panel reversed, ruling that the search violated Redding's Fourth Amendment rights and that the school officials were not entitled to qualified immunity. That was because Redding's right to be free of such a search was "clearly established," the majority held, when the officials conducted the search. Writing for the majority, Judge Kim M. Wardlaw announced a rule that constitutional rights may be "clearly established" not only by the decisions of the courts, but by the principles of "common sense and reason [that] supplement the federal reporters."
Among the Ninth Circuit dissenters, Judge Michael D. Hawkins pointed out the dangers of a test premised on "common sense." If "three of the first four judges to address this issue found the Redding search to be constitutional, and two more judges on this en banc panel are of the same view," he reasoned, it is unfair to expect school officials without legal training to be on notice of their potential liability merely by using "common sense and reason."
The Supreme Court granted a petition for certiorari to review the case. And yesterday, the Court affirmed in part and reversed in part. Eight Justices agreed that the search was excessive in scope given the circumstances, and therefore unconstitutional. But seven Justices agreed that the school officials were nonetheless entitled to qualified immunity. Writing for the majority, Justice Souter noted that a number of well-reasoned federal appellate court majority and dissenting opinions had disagreed about the scope of students' Fourth Amendment rights in the specific context of strip searches in public schools. This cast doubt on whether the Supreme Court had been sufficiently clear in its prior statement of law. The Court cautioned that "the fact that a single judge, or even a group of judges, disagrees about the contours of a [constitutional] right does not automatically render the law unclear if we [the Supreme Court] have been clear." But in this case, the Court found the disagreement among federal judges about public school strip searches substantial enough that the right at issue had not been "clearly established." That entitled the school officials to qualified immunity.
This decision is important for public officials because it effectively eliminates the Ninth Circuit's rule that constitutional rights may be "clearly established" not only by the decisions of the courts, but by the principles of "common sense and reason"--a rule that threatened to curtail the qualified immunity defense. It is unclear, however, whether this ruling strengthens the requirement that a Constitutional right be "clearly established" before a public official or employee can be subject to a lawsuit, or simply restores that requirement to where it was before the Ninth Circuit's en banc ruling in Redding. The Court's analysis of that issue is very brief, relying only on the dispute among prior federal appellate opinions. In addition, the constitutionality of student searches in public schools is an area of law in which, as the Court noted, it is extremely hard to formulate clear rules that go beyond the facts of each individual case. It is hard in such an area to ever have a "clearly established" rule sufficient to deprive a public official or employee of qualified immunity. Thus, the degree to which public officials and employees will be able to extend Redding's qualified immunity analysis to other contexts will have to be determined over time. ..Source.. by For more information on this Supreme Court ruling or other appellate matters, please email Jospeh Quinn or Tricia Hynes or call 510.808.2000.
July 1, 2009
DC- Unconstitutional Strip Search Does Not Strip School Officials of Qualified Immunity
June 25, 2009
AZ- VICTORY! Supreme Court Finds Strip-Search of 13-Year Old Girl Unconstitutional
6-25-2009 Arizona:
The Supreme Court today ruled that school officials violated the constitutional rights of a 13-year-old Arizona girl when they strip searched her based on a classmate’s uncorroborated accusation that she previously possessed ibuprofen. The ACLU’s Drug Law Reform Project represented April Redding, the plaintiff in the lawsuit, whose daughter, Savana Redding, was strip searched by Safford Middle School officials six years ago.
Adam Wolf, an attorney with the ACLU who argued the case before the Court, said today:
We are pleased that the Supreme Court recognized that school officials had no reason to strip search Savana Redding and that the decision to do so was unconstitutional. Today’s ruling affirms that schools are not constitutional dead zones. While we are disappointed with the Court’s conclusion that the law was not clear before today and therefore school officials were not found liable, at least other students will not have to go through what Savana experienced.
We’ll have more soon. In the meantime, please send a message thanking Savana and April for standing up for all students’ rights. ..Source.. by ACLU
April 23, 2009
GA- Never strip search
4-23-2009 Georgia:
We don’t appear to be as serious about sex offenders as we like to claim we are. If we were, we’d find a way to outlaw strip searching in schools.
Regardless of what the U.S. Supreme Court justices find regarding the Arizona case in which a 13-year-old girl suspected of drug possession was strip-searched, I am opposed to teachers and school administrators strip-searching students.
Teachers are trained to teach. If they suspect a certain student of drug possession or some other unlawful act, law enforcement should be called.
If all parties are doing what they have been trained to do, lines are less likely to become blurred.
There can be a seamless move from keeping the school safe for students to the Gestapo behavior of a frustrated teacher determined not to be outdone by some smart-aleck student. And lurking in there perhaps more often than we’d like to think is the teacher or administrator who has personal reasons for wanting to witness or participate in the strip searching of a child or adolescent.
A multitude of sins are committed against students by those who tell us they are trying to protect the students.
In 2002, an assistant principal at a San Diego, Calif., high school lifted girls’ skirts — in front of male students and other adults — to see whether they were wearing thong panties to a dance. (Ultimately demoted) Thong wearers were denied entry and told to go home and change, news services reported.
The assistant principal said she was concerned the combination of revealing clothing and suggestive dancing could lead to sexual assaults.
As it turned out, the assistant principal assaulted many of the girls before the boys had the chance.
Then there was the alleged strip-search of some of a class of seventh-graders at Russell County Middle School in 2004, when a teacher said about $12 was missing from her makeup bag.
The principal, assistant principal and a counselor allegedly took it upon themselves to conduct strip searches after the money was not found during searches of students’ pockets and purses. The students sued and reached a settlement in which the school system and the other plaintiffs denied the allegations, but agreed to pay $190,000.
The suit claims that the students were taken to the restrooms, where the searches took place. A female administrator accompanied the girls while the school’s principal accompanied the boys. In the restrooms, the students were asked to remove their shirts and drop their pants, according to the lawsuit. In some cases, they were told to move their underwear so that they were partially exposed, the suit states.
That would be a dehumanizing experiences. Stripping down to underwear; removing underwear or moving it to the side to reveal private body parts is inexcusable and should be unlawful — at least under the circumstances that seem to make the headlines.
It is never open season on students who have broken the law or are in violation of some school code. ..News Source.. by Kaffie Sledge
April 12, 2009
AZ- Strip-Search Case Could Redefine Student Privacy
4-12-2009 Arizona:
SAFFORD, Ariz. -- April Redding was waiting in the parking lot of the middle school when she heard news she could hardly understand: Her 13-year-old daughter, Savana, had been strip-searched by school officials in a futile hunt for drugs.
It's a story that amazes and enrages her still, more than six years later, though she has relived it many times since.
Savana Redding was forced to strip to her underwear in the school nurse's office. She was made to expose her breasts and pubic area to prove she was not hiding pills. And the drugs being sought were prescription-strength ibuprofen, equivalent to two Advils.
"I guess it's the fact that they think they were not wrong, they're not remorseful, never said they were sorry," April Redding said this week, as she and Savana talked about the legal fight over that search, which has now reached the Supreme Court.
And even more: When, days later, the principal met with April Redding to discuss what had happened, she said he was dismissive of an event so humiliating that her daughter never returned to classes at Safford Middle School.
"He said, 'There was an incident with some pills, and we had to find out if Savana had them, but you should be happy because we didn't find any on her,' " Redding recalled. "I got really upset and was telling him, 'Why did you do this to her? How could you do this to her?' "
(eAdvocate Post)
From the yellow-brick school in this dusty town of cotton fields and copper mines to the Supreme Court, the lawsuit that April and Savana Redding brought carries the potential for redefining the privacy rights of students and the responsibility of teachers and school officials charged with keeping drugs off their campuses.
Matthew W. Wright, the school system's lawyer, declined to make his clients available for interviews. But in a statement, he said he regrets the news media's "reflexive reaction" to the case and underscored the dilemma school officials face between privacy and protection.
"Unfortunately, this tension sometimes places school officials in the untenable position of either facing the threat of lawsuits for their attempts to enforce a drug-free policy or for their laxity in failing to interdict potentially harmful drugs," he wrote.
To which Savana Redding's lawyer, Adam Wolf of the American Civil Liberties Union, replied: "The school official here heard an accusation that Savana previously possessed ibuprofen at some unknown location at some unknown time and jumped to the conclusion that Savana was presently storing ibuprofen and that she was storing it against her genitalia.
"It should be self-evident that that search is wrong."
But the federal judges who have reviewed the case have not been so sure.
The full U.S. Court of Appeals for the 9th Circuit eventually ruled that the search violated Savana's Fourth Amendment protections against unreasonable searches and that Vice Principal Kerry Wilson could be found personally liable for ordering the search.
"The public school officials who strip searched Savana acted contrary to all reason and common sense," wrote Judge Kim McLane Wardlaw, who reached back to a previous court decision for the quote that has come to define the case:
"It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude."
On the other hand, it apparently stumped other constitutional scholars. The first judge who heard the Reddings' case agreed with the school system that the search was justified because of accusations that school officials had heard about Savana. He threw out the suit.
A divided three-judge panel of the 9th Circuit upheld that decision.
And while eight judges on the circuit eventually ruled that the search was unconstitutional, several of the judges said Wilson could not have been expected to navigate the shifting legal standards for when such searches are allowed.
"Searches are often fruitless, and students' motives are often benign, but teachers, unlike courts, do not act with the benefit of hindsight," wrote Judge Michael Daly Hawkins.
The backdrop for the case is a 1985 Supreme Court decision that said school officials need to have only reasonable suspicions, rather than probable cause, to search individual students. That case involved the search of a student's purse, but the justices cautioned against a search "excessively intrusive in light of the age and sex of the student and the nature of the infraction."
Safford officials say in court briefs that they were on high alert in October 2003 because the year before, a student nearly died after taking prescription medication brought to school by a friend. And they said they had good reason to be suspicious of Savana Redding, despite her honor-roll grades and spotless disciplinary record.
They had received a complaint from one student that, before a dance earlier in the year, students drank alcohol at a party hosted by Redding and her mother. On the day of the search, a student told officials he had been given a prescription-strength ibuprofen tablet by a friend of Redding's.
When that girl was discovered to be carrying such pills, she said she received them from Redding.
Savana Redding said both allegations were lies -- the boy had not even been at the party, she said. But what happened next is not in dispute.
Vice Principal Wilson removed her from class and brought her to his office. She gave permission for a search of her backpack, which turned up nothing.
Then Wilson told her to go to the nurse's office with two female staffers. They told her to remove her socks and shoes, her stretch pants and pink T-shirt. They told her to move her bra from side to side, which exposed her breasts, and pull out the waistband of her underwear.
"I did what they told me to do -- I didn't want to look at them, though," Redding recalled. "If I had looked at them, I probably would have cried. I was trying not to."
She never attended classes again at Safford Middle School -- "I just couldn't go back," she said. She developed ulcers in high school, and the girl who, according to her mother, "would rather be at school than anywhere else" eventually dropped out.
Now 19, she took placement tests to get into nearby Eastern Arizona College and gives interviews to the national media in a small frame house just off the Old West Highway, which runs through the center of town.
"It's something that I really want to see through," Redding said of the lawsuit. "It's just that I'm one of those kinds of people who don't even want to get up in class and talk in front of people, so it's just going through it, over and over . . ."
She recently saw a flyer at the college that advertised a class that was going to discuss her case. She hears from "a lot of people [who] would find me through MySpace or something and then send me messages like, 'Hey, you're that girl that got strip-searched.' Yeah, I'm that girl, thanks."
But she didn't know about a new group on Facebook. It's called "Friends of Savana Redding."
"Really?" she asked. ..News Source.. by Robert Barnes, Washington Post Staff Writer
March 24, 2009
DC- Strip-Search of Girl Tests Limit of School Policy
3-24-2009 Washington DC:
SAFFORD, Ariz. — Savana Redding still remembers the clothes she had on — black stretch pants with butterfly patches and a pink T-shirt — the day school officials here forced her to strip six years ago. She was 13 and in eighth grade.
An assistant principal, enforcing the school’s antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.
The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, “they asked me to pull out my bra and move it from side to side,” she said. “They made me open my legs and pull out my underwear.”
Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21.
The case will require the justices to consider the thorny question of just how much leeway school officials should have in policing zero-tolerance policies for drugs and violence, and the court is likely to provide important guidance to schools around the nation.
In Ms. Redding’s case, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that school officials had violated the Fourth Amendment’s ban on unreasonable searches. Writing for the majority, Judge Kim McLane Wardlaw said, “It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights.”
“More than that,” Judge Wardlaw added, “it is a violation of any known principle of human dignity.”
Judge Michael Daly Hawkins, dissenting, said the case was in some ways “a close call,” given the “humiliation and degradation” involved. But, Judge Hawkins concluded, “I do not think it was unreasonable for school officials, acting in good faith, to conduct the search in an effort to obviate a potential threat to the health and safety of their students.”
Richard Arum, who teaches sociology and education at New York University, said he would have handled the incident differently. But Professor Arum said the Supreme Court should proceed cautiously.
“Do we really want to encourage cases,” Professor Arum asked, “where students and parents are seeking monetary damages against educators in such school-specific matters where reasonable people can disagree about what is appropriate under the circumstances?”
The Supreme Court’s last major decision on school searches based on individual suspicion — as opposed to systematic drug testing programs — was in 1985, when it allowed school officials to search a student’s purse without a warrant or probable cause as long their suspicions were reasonable. It did not address intimate searches.
In a friend-of-the-court brief in Ms. Redding’s case, the federal government said the search of her was unreasonable because officials had no reason to believe she was “carrying the pills inside her undergarments, attached to her nude body, or anywhere else that a strip search would reveal.”
The government added, though, that the scope of the 1985 case was not well established at the time of the 2003 search, so the assistant principal should not be subject to a lawsuit.
Sitting in her aunt’s house in this bedraggled mining town a two-hour drive northeast of Tucson, Ms. Redding, now 19, described the middle-school cliques and jealousies that she said had led to the search. “There are preppy kids, gothic kids, nerdy types,” she said. “I was in between nerdy and preppy.”
One of her friends since early childhood had moved in another direction. “She started acting weird and wearing black,” Ms. Redding said. “She started being embarrassed by me because I was nerdy.”
When the friend was found with ibuprofen pills, she blamed Ms. Redding, according to court papers.
Kerry Wilson, the assistant principal, ordered the two school employees to search both students. The searches turned up no more pills.
Mr. Wilson declined a request for an interview and referred a reporter to the superintendent of schools, Mark R. Tregaskes. Mr. Tregaskes did not respond to a message left with his assistant.
Lawyers for the school district said in a brief that it was “on the front lines of a decades-long struggle against drug abuse among students.” Abuse of prescription and over-the-counter medications is on the rise among 12- and 13-year-olds, the brief said, citing data from the Office of National Drug Control Policy.
Given that, the school district said, the search was “not excessively intrusive in light of Redding’s age and sex and the nature of her suspected infraction.”
Adam B. Wolf, a lawyer with the American Civil Liberties Union, which represents Ms. Redding, said her experience was “the worst nightmare for any parent.”
“When you send your child off to school every day, you expect them to be in math class or in the choir,” Mr. Wolf said. “You never imagine their being forced to strip naked and expose their genitalia and breasts to their school officials.”
In a sworn statement submitted in the case, Safford Unified School District v. Redding, No. 08-479, Mr. Wilson said he had good reason to suspect Ms. Redding. She and other students had been unusually rowdy at a school dance a couple of months before, and members of the school staff thought they had smelled alcohol. A student also accused Ms. Redding of having served alcohol at a party before the dance, Mr. Wilson said.
Ms. Redding said she had served only soda at the party, adding that her accuser was not there. At the dance, she said, school administrators had confused adolescent rambunctiousness with inebriation. “We’re kids,” she said. “We’re goofy.”
The search was conducted by Peggy Schwallier, the school nurse, and Helen Romero, a secretary. Ms. Redding “never appeared apprehensive or embarrassed,” Ms. Schwallier said in a sworn statement. Ms. Redding said she had kept her head down so the women could not see that she was about to cry.
Ms. Redding said she was never asked if she had pills with her before she was searched. Mr. Wolf, her lawyer, said that was unsurprising.
“They strip-search first and ask questions later,” Mr. Wolf said of school officials here.
Ms. Redding did not return to school for months after the search, studying at home. “I never wanted to see the secretary or the nurse ever again,” she said.
In the end, she transferred to another school. The experience left her wary, nervous and distrustful, she said, and she developed stomach ulcers. She is now studying psychology at Eastern Arizona College and hopes to become a counselor.
Ms. Redding said school officials should have taken her background into account before searching her.
“They didn’t even look at my records,” she said. “They didn’t even know I was a good kid.”
The school district does not contest that Ms. Redding had no disciplinary record, but says that is irrelevant.
“Her assertion should not be misread to infer that she never broke school rules,” the district said of Ms. Redding in a brief, “only that she was never caught.”
Ms. Redding grew emotional as she reflected on what she would have done if she had been told as an adult to strip-search a student. Dabbing her eyes with a tissue, she said she would have refused.
“Why would I want to do that to a little girl and ruin her life like that?” Ms. Redding asked. ..News Source.. by ADAM LIPTAK
January 22, 2009
AZ- U.S. Supreme Court will hear strip-search appeal
1-22-2009 Arizona:
The United States Supreme Court has agreed to hear Safford School District's appeal of a federal appellate court's ruling that a 13-year-old student's constitutional rights were violated by a strip search for Ibuprofen in 2003.
Safford Middle School officials found no drugs in the clothing or other personal items of the student when the search was conducted Oct. 8, 2003.
Ibuprofen is a non-narcotic pain reliever sold in prescription and non-prescription doses. Brand names for the drug include Advil and Motrin.
The Supreme Court justices accepted the case Friday for review to determine if a campus setting gives school administrators the right to strip-search a student.
Arguments are expected to be heard in April, but no specific date was published in an article on CNN.com. Mark Tregaskes, superintendent of Safford School District, said he did not know the date when arguments will be heard.
"We're grateful that the U.S. Supreme Court has agreed to hear the case, and we'll respect that decision," Tregaskes said.
In a July 11, 2008, ruling, an 11-judge panel of the Ninth U.S. Circuit Court of Appeals in San Francisco said Safford Middle School officials violated the Fourth Amendment rights of then-13-year-old Savana Redding when they forced her to strip to her underwear in search of prescription-strength Ibuprofen tablets.
The search was prompted after a classmate who had the tablets claimed she got them from Redding. After Redding denied possession of the medication, Middle School Vice Principal Kerry Wilson ordered the search by an administrative assistant and the school nurse — both women.
After removing her outer clothing, Redding was ordered to move her bra and panties in a way that exposed her breasts and pelvic area.
In the appellate court ruling, the judges wrote the search of Redding was "grossly intrusive."
This ruling came about nine months after a Sept. 21, 2007, ruling by the appellate court's three-judge panel that ruled in favor of the school district. The 2007 ruling upheld a federal district court's summary judgement that Wilson, the nurse and the administrative assistant did not violate the girl's Fourth Amendment rights. ..News Source.. by Diane Saunders, Staff Writer
