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= WASHINGTON – During a lively debate at the Supreme Court yesterday – which featured both drama and laughter – the justices and attorneys sparred over whether school officials can strip search students in search of prescription drugs.

The case, Safford Unified School District v. Redding , involves a 13-year-old honors student at a school that has a strict policy banning all drugs, including prescription and over-the-counter medication.

After a classmate with past disciplinary issues told school officials that the student gave her prescription strength ibuprofen, the student’s bags and pockets were searched and no drugs were found.

An assistant principal then ordered that she be taken to the nurse’s office, where two female school officials ordered her to disrobe down to her underwear. She was then asked to shake out her underwear, which caused the student’s breasts and pubic area to be exposed. Again, no drugs were found.

The student filed a §1983 action against the school district, claiming that her Fourth Amendment rights were violated. The trial court granted summary judgment for the school district on qualified immunity grounds.

The 9th Circuit initially affirmed the ruling, but upon rehearing en banc it reversed, allowing the student’s constitutional claim to proceed.

Bright line rule

During Supreme Court oral arguments Tuesday, Matthew W. Wright, an attorney at the Phoenix law firm Holm Wright Hyde & Hays, represented the school district and argued that such searches are reasonable.

“Students often will secrete items in and under their clothing,” Wright said. “That is not an uncommon thing to happen, although these kind of intrusive searches are rare.”

Justice David Souter wondered if all medications, even over-the-counter varieties, justified such an intrusive search.

“I mean, at some point it gets silly,” Souter said. “Having an aspirin tablet does not present a health and safety risk, and yet that’s an over-the-counter drug. Presumably you would have gone through the same search for an aspirin that was conducted here.”

Wright answered that because school officials have “obligations to provide for the safety of children [and] to provide an orderly educational environment, it is best for this Court to defer to their judgment when they believe that certain rules are important and not second-guess those rules.”

Wright asked for a bright line rule: “Once you have reason to suspect a student [possesses] any contraband that poses a health and safety risk, then searching any place where that contraband may reasonably be found is constitutional.”

Justice Antonin Scalia seemed taken aback by the rule.

“Any contraband? Like a black marker pencil?” Scalia asked, referring to the record, which noted that such markers were banned. “That astounded me, that that is contraband in that school.”

“Well,” Wright explained, “for sniffing.”

“Is that what they do?” Scalia asked, incredulously, drawing laughter. “They sniff them? Really?”

Though Wright argued that the situation did not justify a cavity search, Souter wondered if Wright’s proposed rule went too far.

“If we hold in your favor in this case and the next school district says, ‘We’re going to [do] body cavity searches,’ then there would be no legal basis … for saying that’s out of bounds as a matter of the Fourth Amendment. Isn’t that correct?” asked Souter.

“On the legal basis I could see that, Your Honor. I could see that result,” Wright said. “But practically … it will be controlled … by the local board.”

David O’Neil, assistant to the Solicitor General arguing on independent grounds for reversal, said that the sliding scale approach offered by the school district should not be adopted.

“Our standard is one of greater specificity in the information, not a standard that rises and falls depending on the level of intrusiveness,” he said.

The better standard, O’Neil argued, would require specific evidence that contraband is being hidden in a student’s underwear.

“So if you have a reasonable suspicion that the student has drugs and you search every other place [and don't find any drugs]… don’t you have [a] reasonable suspicion that she has drugs in her underpants?” Scalia asked.

“No,” O’Neil said.

“Your logic fails me,” Scalia said.

‘Greater suspicion’ needed

Adam B. Wolf, an attorney for the ACLU Drug Law Reform Project in Santa Cruz, Calif., represented the student.

He argued that, in addition to the government’s proffered location-specific standard, school officials need “a greater degree of suspicion to conduct a strip search than to conduct an ordinary backpack search.”

When Wolf noted that strip searching students can have psychological effects, Souter again spoke up.

“My thought process is I would rather have the kid embarrassed by a strip search, if we can’t find anything short of that, than … have some other kids dead because the stuff is distributed at lunchtime and things go awry,” Souter said.

Chief Justice John G. Roberts, Jr. wondered how far his rule could go.

“Are you saying it’s unreasonable to take off the outer garments even if your reasonable suspicion for justifying the preliminary search is that the student has heroin?”

“Without any location-specific information, that’s correct,” Wolf said. “And anything else would send a shudder down the spines of little boys and girls around this country.”

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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