Education Law Monthly (July 2009)

Recent US Supreme Court Decision on Student Search and Seizure, Something Every School Administrator Should be Aware of

On June 25, 2009, the United States Supreme Court of Appeals issued an important decision in Safford Unified Sch. Dist. #1 v. Redding, relating to whether the 4^th Amendment of the Constitution prohibits a public school from conducting a search of a student suspected of possessing and distributing prescription drugs on campus in violation of school policy. The Court ruled that the search in question did in fact violate the student's 4th Amendment rights.

The case involved the search of  Savana, a middle school student, who was accused by another student, Marissa, of giving her prescription-strength Ibuprofen.  When Marissa was caught with several prescription-strength Ibuprofen and a day planner containing contraband, she told the assistant principal that Savana had given them both to her.  The assistant principal did not ask Marissa any follow up questions to determine when Marissa received the pills from Savana, nor where Savana might be hiding them.  Based on Marissa's accusation, the assistant principal questioned Savana about the day planner, and she acknowledged that it was hers. However, she claimed that she had lent it to Marissa several days before and that none of the items in the planner were hers.  When asked about the pills, Savana maintained that she did not have any knowledge. With Savana's permission, the assistant principal and an administrative assistant searched her backpack, finding nothing.  At that point, the assistant principal asked the administrative assistant to take Savana to the school nurse's office to search her clothing for pills.  The nurse and the administrative assistant asked her to remove her socks and shoes, then her outer clothing.  Finally, they asked her to move her underwear and bra to show that she did not have any Ibuprofen hidden.  No pills were found in the search.  Savana's mother brought a lawsuit on her behalf, alleging that the search violated the 4th Amendment.

While the standard for permissible searches is lower for schools than in other instances, a school administrator must have a moderate chance of finding evidence of wrongdoing in order to commence a search of a student.  The scope of that search is 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.  Here, the Court found that Marissa's statements were sufficiently plausible to justify a search of Savana's backpack and outer clothing, especially since Marissa and Savana were known to be on friendly terms and both had been identified as part of a rowdy group at a school dance earlier in the year, and that the scope of the search, which was in her presence and in the relative privacy of the assistant principal's and nurse's offices, was not excessively intrusive.

On the other hand, the Court noted that the subsequent strip search required distinct elements of justification on the part of the school authorities for going beyond a search of outer clothing and belongings.  In Savana's case, the Court found that the content of the assistant principal's suspicion did not match the degree of intrusion.  For instance, the contraband in question was non-dangerous in nature.  In addition, Marissa had not suggested that Savana was hiding pills in her underwear, and the assistant principal did not know when Marissa received the pills from Savana.  Before the assistant principal made the leap from searching Savana's backpack and outer clothing, he needed to have the support of a reasonable suspicion of danger to the students from the power of the drugs or their quantity, or reason to believe that Savana was carrying pills in her underwear.  Because this additional justification for a more intrusive search was not present, the Court held that the strip search of Savana violated her 4thAmendment rights.

Although this decision is "New," it did not depart from the Court's previous "Old" decision on school searches in New Jersey v. T.L.O., 469 U.S. 325 (1985).  However, it does provide additional guidance regarding the extent to which school officials may go, and the justification that may be required.  While in this instance the Court found that the strip search violated the student's rights, it did not go as far as holding that one would never be permissible.  The Court did, however, note that justification such as reasonable suspicion of danger to students or of a reason to for the student to resort to hiding evidence of wrongdoing in his or her underwear was necessary before a school official may resort to a search as intrusive as a strip search without violating a student's 4th Amendment rights.  Thus, in a situation where the contraband is not considered dangerous in nature, such as with drugs like Ibuprofen, and there is no reason to believe that the student is holding the contraband presently, a search of the student's backpack and outer clothing may be justified, as was the case with Savana, but a strip search likely would not be.  Accordingly, before commencing a search or increasing the intrusiveness of the search, school officials should be very cautious. A similar issue was addressed by the Supreme Court of Appeals of West Virginia in State ex rel. Galford v. Mark Anthony B., 189 W.Va. 538 (W.Va. 1993), in which the court held that the conduct of a student suspected of stealing money from a teacher's purse did not pose the type of immediate danger to others that might justify a strip search, and thus the search violated the student's constitutional rights.