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Safford v. Redding Analysis: High Court Surprises With Some Support For Students’ Constitutional Rights




  • By Frank D. LoMonte, Executive Director, Student Press Law Center

    After the Supreme Court's 2007 ruling in Morse v. Frederick (the "Bong Hits 4 Jesus" case), it appeared that a school administrator could not conceive of anything rash or foolish enough to exceed the extra-strength forgiveness that the Court was prepared to afford to even the most irrational and thinly justified management decision.

    With today's decision in Safford Unified School District v. Redding, we have finally relocated the Supreme Court's capacity for outrage - and it required searching the panties of a 13-year-old girl to find it.

    On an 8-1 vote, the Court decided that officials of an Arizona middle school exceeded the Fourth Amendment when - acting on an unspecific tip of unknown reliability - they forced 13-year-old Savanna Redding to stretch out her underwear so an assistant principal could check for contraband over-the-counter pills. On the constitutional issue, Justice David Souter's opinion failed to gain only the support of Justice Clarence Thomas, consistent with Thomas' view that schoolchildren's only right is the entitlement to salutary knuckle-rappings.

    The Court relied on its 1985 ruling in New Jersey v. T.L.O., which upheld the search of a high school freshman's purse based on the "reasonable suspicion" that the student, whom a teacher had just caught smoking in a school bathroom, would be carrying cigarettes. Under the T.L.O. standard, reasonable suspicion is sufficient to support school officials' search of a student on school grounds, so long as the search is both reasonably justified at its inception and conducted within a reasonable scope.

    The Redding majority found that the assistant principal of Safford Middle School fell shy of the T.L.O. standard on both grounds. The tipster's information - that Redding possessed nonprescription painkillers while at school - was of unknown vintage, making it unreasonable to assume she was carrying them on the day of the search. And the school's stated rationale - attempting to prevent dangerous overdoses by drug abuses - did not justify looking in a place where a harmful quantity of Tylenols could not realistically be concealed.

    Below, the evidence established that Redding - who was carrying no drugs - suffered lasting trauma for years after the degrading search. In an affidavit, she called the 2003 incident "the most humiliating experience I have ever had."

    The Court's decision does not make any new law - the point made by Justices Stevens and Ginsburg, who would have allowed a damages action to go forward over the majority's finding of qualified immunity. Yet the state of kids' rights in the federal courts is so dismal that a decision that school officials must pay exactly zero dollars for unjustifiably and unrepentantly traumatizing a teenage girl is being greeted as a breakthrough. All of the warning signs (Ninth Circuit! Individual rights!) were flashing, and there was every reason to suspect the Court had teed up the circuit court's pro-student en banc ruling like Tiger on a Titleist.

    And following the bruising April 21 oral argument in Redding - an argument that conclusively established that only one of the justices had ever been a 13-year-old girl - a ruling in the student's favor appeared a remote prospect. (Indeed, the more likely forecast for an 8-1 ruling was in the opposite direction.) Justice Souter had appeared to telegraph his own vote when he asked Redding's counsel: "The thought process in the principal's mind is: Better embarrassment than the risk of violent sickness and death. What's wrong with that reasoning?"

    The decision is doubly remarkable because the justices bypassed several tempting opportunities to evade directly confronting the constitutionality of the search.

    First was the school's hair-splitting argument that making a student disrobe to her undergarments and then hold out her underwear for inspection did not really qualify as a "strip" search because nobody peeked. The Court made short work of that: "The exact label for this final step in the intrusion is not important, though strip search is a fair way to speak of it."

    More ominous was the Court's January ruling in Pearson v. Callahan, in which the justices decided it was permissible in doubtful cases to proceed directly to the clearly-settled-law inquiry and dispose of tricky constitutional claims on qualified immunity without ever reaching the merits (and thus, as Pearson's critics observe, without ever advancing the state of the substantive law). Given the 7-2 consensus that individual money damages were inappropriate (the case was remanded for consideration of remedies against the school itself), the Pearson shortcut must have seemed enticing.

    Could the Court have taken a pre-Sotomayor nip from the well of empathy? Something surely turned the vote since April, and - as intimidating as a 5-foot-1 Jewish grandmother can be - it seems unlikely that Justice Ginsburg did it alone. More probably, the justices were startled awake by the thud of press clippings after that tone-deaf oral argument, and recognized this was a moment at which Court was in peril of diverging from the broad public consensus of where reasonableness lies.

    Perhaps the justices' by contemplation was informed - or should have been - by a seemingly unrelated recent case, that of former Alaska senator Ted Stevens.

    Federal prosecutors are among the most rigorously selected and meticulously trained of all government employees. And yet, Attorney General Eric Holder has concluded that several of them strayed so badly from the Constitution they pledged to uphold that their misconduct irreparably tainted the (now-vacated) Stevens corruption conviction, making retrial impossible. The Stevens case reminds us that even the most virtuous public servants can rationalize overlooking legal niceties and disregarding individual rights, as school administrators so often do, when convinced they are acting for the greater good.

    With several recent surprises - most notably, last term's decision in favor of Guantanamo detainees in Boumediene v. Bush - human rights are showing a nice little pulse after flat lining during the Rehnquist era. Up to now, however, the Court has treated the Bill of Rights like the good Scotch that gets pulled down off the tippy-top shelf only after the kids have gone to bed. This attitude was exemplified most recently in Morse, in which the Court upheld school discipline of an 18-year-old high school senior for a nonsensical banner displayed at an off-campus event only loosely associated with the school. With Redding, the Roberts Court has told America's teenagers to - oh, all right - take one little sip of the Fourth Amendment and see how they like it.

    And who knows, maybe if the kids are really, really careful with this whole not-being-illegally-strip-searched thing and don't overdo it, maybe someday they'll get to try out some of the other amendments too. Conveniently, they've even been placed in numerical order.

     


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