Legal Commentary

Supreme Court Takes Strip Search Case

By TChris

An 8th grade student in Safford, Arizona, found in possession of two prescription-strength ibuprofen pills, told school officials she got them from another student, Savana Redding.

School officials searched Savana’s belongings, made her strip to her bra and underwear, and ordered her, in the words of an appeals court, “to pull her bra out to the side and shake it” and “pull out her underwear at the crotch and shake it.” No pills were found.

Strip searching a student to recover a relatively benign medication on the strength of an uncorroborated accusation is outrageous, and seems like an obvious constitutional violation. When Savana's parents sued, however, school officials claimed they were immune from suit because students have no constitutional right not to be strip searched when they are accused of violating school policy. The Supreme Court agreed to decide whether the school's position (which the Ninth Circuit rejected [pdf]) is correct. [more ...]

Unfortunately, the Supreme Court might decide that its precedent does not "clearly establish" that strip searches of students are unreasonable under the circumstances that existed in Savana's case, and that the school officials are therefore entitled to qualified immunity from suit. If it takes that route, it might even duck the central question: whether Savana's right to be free from an unreasonable search was violated. That's one of the problems of the Supreme Court's invention of qualified immunity: it inhibits the natural development of the law.

Qualified immunity is supposed to shield public officials from lawsuits when the law is ambiguous so that they can discharge their responsibilities fearlessly (even if stupidly, as in Savana's case). No reasonable public official should think the Constitution permits a strip search of a student for an item that isn't dangerous based on such flimsy information. The Ninth Circuit decision quotes a Seventh Circuit decision that nails that point:

“It does not require a constitutional scholar to conclude that a nude search of a thirteen year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity.”

The school officials who strip searched Savana deserve no immunity. They should face a jury, and they should feel lucky it isn't a criminal jury.

Full post as published by TalkLeft on January 17, 2009 (boomark / email).