Abstract
A strip search case originating in Arizona reached its conclusion at the Supreme Court this summer and earned substantial coverage in the popular press. However, educators who rely on such reports for their information may need this more complete view to understand the impact of this decision.
Strip search case tempers the trend to give districts more authority, but it doesn't end it
Enforcing the district's no-drug policy, administrators in the Safford Unified School District, Arizona, investigated one middle school student's possession of prescription-strength Ibuprofen. The policy prohibited student possession of prescription-strength Ibuprofen unless the student had official permission to carry the drug at school. Their investigation first led to a female student who had more of these pills and who identified her friend Savana as the source. They did not ask her where Savana might be hiding the pills.
After questioning Savana, who denied having any pills, the assistant principal searched Savana's backpack and outer clothing to no avail. He then instructed his administrative assistant and the school nurse, who both were females, to search Savana in the nurse's office. Ultimately, they had her pull her bra out and to the side and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. They did not find any pills.
On June 25, 2009, the Supreme Court issued its decision, which amounted to two rulings: 1) the strip search violated the Fourth Amendment “because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear,” and 2) the school official who ordered the search was entitled to qualified immunity from liability “because there is reason to question the clarity with which the right was established.” Eight of the nine members of the Court voted in favor of the first ruling; only Justice Thomas dissented. For the second ruling, seven justices, including Justice Thomas, agreed; Justices Ginsburg and Stevens dissented, viewing the first ruling as clearly settled. They all agreed that the pole star was the Court's 1985 decision in New Jersey v. T.L.O., which established a two-pronged standard: 1) reasonable suspicion for initiating the search, and 2) a multifactor test, including the nature of the infraction, for its scope.
Visit the publication archives at www.pdkintl.org to read Perry Zirkel's March 2008 Phi Delta Kappan column, in which he provides greater detail about the Safford v. Arizona case.
My cautious conclusion is that Safford represents a slowing but not stopping of the previous judicial trend.
Obviously, student advocates are touting the Safford decision as a resounding victory under the Fourth Amendment specifically and the Constitution more generally. Scholars wonder whether this decision represents the next turning point in the tide, which had previously shifted first in students' favor in Tinker and then back in the districts' direction in T.L.O. 1 At this point, my cautious conclusion is that Safford represents a slowing but not stopping of the previous judicial trend for the following reasons.
First, although the vote for the primary ruling was almost unanimous rather than closely divided, the majority did not increase the standard under T.L.O. but, instead, effectively conflated its two prongs for strip searches. Declining narrow boundaries for strip searches, the majority considered any search similar to what happened to Savana after the search of her outer clothing and belongings as “categorically distinct, requiring distinct elements of justification.” More specifically, the school officials' suspicion was not reasonable in light of the intrusive scope of the search. Thus, although intrusiveness looms large as a factor, the standard is not probable cause. Moreover, the ruling in favor of Savana does not extend to the first search; the majority made clear that the search of her backpack and outer clothing was not excessively intrusive and, thus, met the relatively relaxed view of reasonable suspicion.
Second, the almost as strongly supported second ruling exhibited continuation of deference to school officials. Although Safford clearly settles the more rigorous view of reasonable suspicion for any sort of strip search for future cases, the 7-to-2 ruling in favor of qualified immunity of the individual school defendant 2 reaffirmed the traditional deference doctrine generally, and specifically it clarified: “[W]e mean to cast no ill reflection on the assistant principal, for the record raised no doubt that his motive throughout was to eliminate drugs from his school and protect students.”
Third, contrary to the view of opponents of zero-tolerance policies, the Court supported, rather than invalidated, the district's broad no-drug policy. In a footnote, the majority clarified that “the plenary ban makes sense” based on “the imperative of keeping drugs out of schools.” The Court extended its explanation: “Teachers are not pharmacologists trained to identify pills and powders, and an effective drug ban has to be enforceable fast.”
Fourth and most important, the Court did not prohibit strip searches of students, specifically allowing two separate alternatives for constitutional justification: where the school officials had reasonable suspicion that 1) the items sought presented a danger, or 2) even if they did not present a danger, the items were concealed in the student's underwear. For example, if the assistant principal had questioned Savana's friend as to where she might be hiding the Ibuprofen and she had provided a reliable and specific answer, the judicial outcome would likely have been the opposite. Alternatively, as the majority opinion noted was missing in this case, if the assistant principal had reason to suspect — for which “general background possibilities fall short” — more powerful or large amounts of the pills, the odds of the opposite outcome would again be higher.
Thus, although the “bare” facts of the case — a strip search of a 13-year-old girl for suspected Ibuprofen — colors the case for the public perception and perhaps the Justices' underlying reaction, they are no more legally material than the failure to find the suspected drugs in Savana's private parts. The ultimate official and impartial decision is not a knee-jerk and absolute victory for her and for other students subject to such searches. Pending future Supreme Court decisions, the ascending arc in the direction of school district authorities has slowed its rate of ascent but has not yet reached the reverse direction of descent.
The assistant principal's failure to return Savana to class promptly upon conclusion of the search and to call Savana's parent for notification of the situation contributed to Justice Ginsburg's partial dissent specific to the second, qualified-immunity ruling; she is at one extreme. Justice Thomas, who was the sole dissenter to the first, standard-based ruling, represented the ultimate pro-school view that would have been a straight-line extension of the prevailing, nonactivist judicial trend. However, the other Justices — ranging from Justices Scalia and Alito to Justices Breyer and, soon to be replaced, Souter — agreed on this differential treatment of student strip searches under the Fourth Amendment. Unlike, but arguably not at all inconsistent with T.L.O., in which discoveries made when opening the purse led to searching its zipped pockets, the Safford Court required a steroid-enhanced level of reasonable suspicion to make the “quantum leap… to exposure of intimate parts.”
Most important, the Court did not prohibit strip searches of students, specifically allowing two alternatives for constitutional justification.
NOTES
For the overall pattern, see, for example, Perry A. Zirkel, “School Law All Stars: Two Successive Constellations,” Phi Delta Kappan, June 2009, pp. 704–708.
The Court did not address the issue of the district's liability, remanding the matter for consideration in light of its policy-making test for municipal liability.