By D&K’s School and Higher Education Law Team
The United States Supreme Court recently determined that a school district’s strip search of a thirteen year old pupil was unconstitutional, but in the process, expressed strong support for school district officials’ right to conduct searches when they have a reasonable suspicion that contraband may be found.
In Safford Unified School District #1 et al., v. Redding, 129 S.Ct. 2633 (Jun. 25, 2009), the U.S. Supreme Court considered a case involving a thirteen year old pupil, who had been searched on suspicion that she brought prohibited prescription and over-the-counter drugs to school. The pupil, Savana Redding, was summoned to the Assistant Principal’s office and was shown a day planner that contained knives, lighters, and a cigarette. Redding acknowledged that the planner was hers, but denied that any of the items in the planner belonged to her, and stated that she had loaned the planner to a friend a few days earlier. The Assistant Principal then showed Redding four white prescription-strength ibuprofen 400-mg. pills and one over-the-counter blue naproxen 200-mg. pill, both of which were prohibited under school rules without advance permission. Redding denied knowing anything about the pills, but the Assistant Principal advised her that he received a report that she had given similar pills to fellow students. Redding denied having done so and agreed to let the Assistant Principal search her belongings. Redding’s backpack was searched, but nothing was found.
At that point, the Assistant Principal instructed his administrative assistant to take Redding to the school nurse’s office to search her clothes for pills. Once in the nurse’s office, Redding was asked to remove all of her clothes except for her undergarments. Once this was done, Redding was asked to “pull her bra out and to the side and shake it, and to pull out the elastic of her underpants, thus exposing her breasts and pelvic area to some degree.” No pills were found in this phase of the search.
The Supreme Court concluded that the search was unreasonably intrusive, and thus violated Redding’s Fourth Amendment rights. In this regard, the Court noted that a school search “will be permissible… 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.” The Court went on to note that the safeguards that the school implemented to balance Redding’s privacy interests with school safety concerns (e.g., conducting a search in the school nurse’s office with same sex personnel and requiring Redding to pull her clothing away from her body) did not make the search constitutional. The Court reasoned that Fourth Amendment consequences are not defined by who was looking and how much was seen. Instead, constitutional standards incorporate “reasonable societal expectations of personal privacy” which, in turn, are informed by “the common reaction of other young people similarly searched, whose adolescent vulnerability intensifies the exposure’s patent intrusiveness.” Under these standards, the Court concluded a strip search is “categorically distinct” and found the search to be too intrusive to be constitutional, even in light of the school’s interest in securing pupil safety.
Strip searches of pupils are unlawful in Wisconsin. State statutes provide that “[A]ny official, employee or agent of any school or school district is prohibited under § 948.50 from conducting a strip search of any pupil.” Section 118.32, Wis. Stats. Further, a “strip search” is defined as “a search in which a person’s genitals, pubic area, buttock or anus, or a female person’s breast, is uncovered and either is exposed to view or is touched by a person conducting the search.” The statute goes on to note that any school official that conducts a strip search of any pupil is guilty of a Class B misdemeanor. Section 948.50, Wis. Stats. Consequently, it might seem at first blush as though Safford Unified School District #1 offers little relevant guidance to Wisconsin school district officials.
This is not the case, however. Although a portion of the Supreme Court’s decision indicating that a pupil strip search might be lawful in certain circumstances are largely irrelevant to Wisconsin school districts, the Court’s reasoning provides strong support for school districts’ efforts and school officials’ discretion to ensure student safety.
For starters, the Court did not take issue with the fact that a search was conducted. Even though Redding was suspected of possessing ibuprofen and naproxen – both of which may be purchased over-the-counter in non-prescription strength – the Court noted that the school’s policies strictly prohibited the non-medical use, possession, or sale of any drug on school grounds, including prescription or over-the-counter drugs, except where students had been given permission to take such drugs at school. Consequently, the Court concluded that the school had sufficient suspicion to justify searching Redding’s backpack and outer clothing.
The Court also stopped short of saying that more intrusive searches could never be justified. In this regard, the Court stated that the indignity of the search does not, in itself, make it unlawful, but instead must be considered under the rule that searches be “reasonably related in scope to the circumstances which justify the interference in the first place.” Thus, the Court did not outlaw more intrusive searches, even those that might cause still greater indignity. It simply concluded that the degree of intrusion has to be warranted by the circumstances, which includes accounting for the age and sensibilities of affected students.
Finally, the Court’s reasoning indicates that information provided by pupils may in itself justify the search of another pupil. Wisconsin school districts routinely rely on hearsay evidence to determine whether a search should be conducted, such as information provided by other students. To be sure, the Court’s conclusion that there was sufficient suspicion to justify a search of Redding’s backpack and outer clothing was buttressed by more than one report, in circumstances where the identities of the reporters could be determined. Thus, school officials should still be careful to develop reliable information to support any decision to search. Nevertheless, it is clear that pupils’ reports – even in the absence of physical evidence – can be sufficient to support a decision to search another pupil.
The Supreme Court’s decision makes clear that pupil searches can go too far. But it also indicates that, unless the intrusiveness of the search is extreme and completely out of step with the danger presented by the suspected conduct, the courts are likely to defer to school officials’ reasonable judgments in evaluating the constitutionality of pupil searches.
If you have questions regarding the information in this article please contact your Davis & Kuelthau, s.c., attorney or the School and Higher Education Law Chair, James R. Macy, at 920.232.4841 / jmacy@dkattorneys.com.