En Banc 9th Circuit Strikes Girl’s Strip Search

Constitutional Law

En Banc 9th Circuit Strikes Girl’s Strip Search

Posted Jul 14, 2008, 02:23 pm CDT
By Molly McDonough

A sharply divided 9th U.S. Circuit Court of Appeals has sided with a 13-year-old Arizona girl who was subjected to a strip search in which middle school officials tried in vain to find prescription-strength ibruprofen.

The 6-5 ruling (PDF) on Friday holds that the strip search of Savana Redding wasn't a reasonable Fourth Amendment search, the Daily Journal (sub. req.) reports.

At the direction of a principal, a Safford Middle School nurse removed Redding's clothing and shook out her bra and underwear. The principal reportedly ordered the search after receiving a tip from one of Redding's classmates that she was carrying the painkillers in violation of school policy.

"Common sense informs us that directing a 13-year-old girl to remove her clothes, partially revealing her breasts and pelvic area, for allegedly possessing ibuprofen, an infraction that poses an imminent danger to no one, and which could be handled by keeping her in the principal's office until a parent arrived or simply sending her home, was excessively intrusive," Judge Kim McLane Wardlaw wrote for the majority.

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Posted by Kay Sieverding - 1 month, 3 weeks, 8 hours, 35 minutes ago

I think that it is great that the 9th Circuit stood up against what is basically tyranny. The chance that the school would have found Ibuprofen on the girl when they strip-searched her was almost 0. Even if she had brought Ibuprofen to school, chances are it was only one or two pills and she would have taken them, or in this case she was accused of giving them to another girl.

If a 13-year-old girl is taking Ibuprofen, then the chance that she was menstruating was probably almost 100%. The strip search was meant to humiliate her. They said that she was a honor student so she was probably confident. Maybe she or her family had critiqued the principal or the school board.

Schools are supposed to have written policy manuals, which should address such matters. If they had suspected that the girl had cocaine or marijuana, they would have needed a court warrant to search her body.

The standard for government official immunity is what a reasonable person would think was constitutional. This was a warrantless search without even a criminal accusation. If her mother had showed up at school with marijuana cigarettes hanging out of her pocket, they wouldn’t have been able to search her either without a warrant. It’s called the 4th amendment.
Posted by silencedogood - 1 month, 2 weeks, 4 days, 8 hours, 13 minutes ago

The school’s conduct was outrageous. All that over Advil??? Then they fight it to the 9th circuit!

This is why zero tolerance policies and the like do not work when applied by some of the judgmentally-challenged administrators in the public school systems.

The district should have reprimanded the principal, apologized profusely to the student and her parents, and changed their policies. Instead they presumably spent a ton of money litigating (vs. educating), lost, and are going to deservedly get hit with a large civil suit.

Having been through the public school system I agree with Kay, this was most likely a power trip.
Posted by Bill - 1 month, 2 weeks, 4 days, 7 hours, 57 minutes ago

The sickest part of the ruling is that it was 6-5! It should have been 11-0. Just like D.C. v. Heller should have been 9-0. Who are these judges who are so willing to roll over to executive power? Constitutional rights mean anything anymore? Hardly.

This is sick. I have two daughters, 10 and 14. If they came home and told me this happened to them, I’d have a hard time not going down to the school and tearing a few heads off. School administrators in certain areas have totally lost their minds. “Zero tolerance” policies defy common sense in the first place. They’re a load of hyper-PC B.S.

And those are my intelligent, reasoned comments on that topic…
Posted by JLee - 1 month, 2 weeks, 4 days, 7 hours, 30 minutes ago

Thank God for the Ninth Circuit. This is basically harassment, and a sick one at that. The only real surprise is that five judges were against the judgment.
Posted by W Nelson - 1 month, 2 weeks, 4 days, 7 hours, 24 minutes ago

Problem with these policies is they are always imposed against “them”. I wonder how the principal might have felt about such a search being ordered on his/her own daughter, or how the principal might have explained his/her actions in ordering a such a search on a friend’s daughter.
Posted by Diamond Jim - 1 month, 2 weeks, 4 days, 6 hours, 14 minutes ago

Thank God she didn’t have a squirt gun or they would have sent her out for reeducation.
Posted by Charles W. Skinner - 1 month, 2 weeks, 4 days, 6 hours, 13 minutes ago

A scenario posed:

If the girl had prescription-strength ibuprofen and had given it to another student, who then had an allergic reaction and died, would you have said that the zero-tolerance policy was proper and have supported the family of the dead girl suing the school for wrongful death?

You can’t have it both ways. Either the schools CAN make these decisions, and you have to deal with the occasional fallout like this where they make a choice to search and come up empty, or they can’t make these sort of decisions, and the schools have to have immunity from suit for lack of oversight if somebody brings in a drug and passes it to someone else who then has a bad reaction.

And Kay Sieverding above is wrong, by the way. The schools do not have to have a court warrant so search the body, possessions or locker of a student for cocaine, marijuana, or any other banned substance. Notwithstanding the language in the Tinker v. Des Moines decision that “students do not shed their rights at the schoolhouse gate,” students in public schools do not have all the rights of adults. That was most recently proven in Morse v. Frederick (I know, these are speech cases, but the same protections principles apply). The threshold of what is reasonable in terms of search is much lower.
Posted by DP - 1 month, 2 weeks, 4 days, 5 hours, 47 minutes ago

In regards to the scenario posed by Skinner: No, I would not have supported the family in their suit against the school, no way! Here’s a slight variation to your scenario to show why: instead of prescription strength inbuprofen, what if it was peanuts that she gave to another girl who had an allergic reaction and died?

Situations like your hypo probably do happen, I am not doubting that it occurs, but regulating to the rare possibility of a potential harm can create absurd consequences, like what happened here.
Posted by Jade Edwards - 1 month, 2 weeks, 4 days, 5 hours, 26 minutes ago

This story deserves the “outrageous award of the day”.
Posted by MV - 1 month, 2 weeks, 4 days, 5 hours, 14 minutes ago

Charles, your hypo is a little off base. As a former public school teacher, I would never have dreamed of strip searching a student over anything. This is a case where you neutralize any potential threat - by sending the student to the office and keeping her there until a parent or guardian retrieves her - without degrading and humiliating her.

Let’s not forget that T.L.O. requires a search to be reasonable in light of the age and gender of a student. A strip search? Over ibuprofen? Seems unreasonable to me.

I tend to agree with W Nelson...a lot fewer of these strip searches would occur if the children of school administrators were the ones being searched!
Posted by Nathaniel Goggans - 1 month, 2 weeks, 4 days, 5 hours, 5 minutes ago

There should be zero-tolerance for zero-tolerance policies. Administrators should have the common sense and good judgment to know what should be tolerated (ibuprofen or a pocket knife) and what should not (illicit drugs or a handgun). We need to end ridiculous bans on legal and useful items and behaviors because of the slight chance that someone, somewhere, sometime might possibly be offended or harmed. If one student shares with another medication that was properly prescribed to the first, then the two students and their parents are the responsible parties, not the school.
Posted by Chris Ford - 1 month, 2 weeks, 4 days, 3 hours, 46 minutes ago

I agree with the other critics of Mr. Skinner’s hypo. It’s one of those “what if Eleanor Roosevelt could fly” scenarios. This nation’s institutions have lost the ability or the will to assess risk and guard against meaningful risks of harm. Instead, they attempt to create the impossible, a risk-free environment. They do so more to protect themselves or their institutions than the people they are supposed to serve. In the process, they create inhumane and intolerably oppressive policies, such as strip-searching children. Officials who are party to such ignominious exercises in voyeurism should lose any immunity to suit they may possess and should be made personally liable—perhaps criminally so as well.
Posted by Tropicana - 1 month, 2 weeks, 4 days, 2 hours, 46 minutes ago

Charles, as MV said, your hypo is off. Remember, this girl was stripped searched because a classmate SAID she had a prescription-strength pain killer on her person.

While minors certainly do not have the level of Constitutional rights enjoyed by adults, they still have a degree of Constitutional rights. I suspect that some degree of probable cause is required for a search of a minor’s person just as the government needs to establish a reasonable basis for a universal curfew even if it applies only to minors. If a classmate had told the school administrator that the girl had drugs hidden inside her body in a rolled up condom like a mule on an airplane, would you approve the administrator proceeding to conduct a little amateur search to locate those alleged drugs? Or perhaps having the school nurse do so?

If you suspect this girl, who according to posts was an honor role student, of lying to conceal prescription-strength ibuprofen on her person even as the administrator prepares to strip her naked, you might consider whether or not the mere word of another student should suffice to establish probable cause. Is it so inconceivable that the reporting student was the liar in this scenario?

If that’s all it takes, with the immaturity and vindictiveness of young kids, is it inconceivable that intentionally false claims might increase if it is known they result in a zero-tolerance based humilating strip search?

-T
Posted by Tropicana - 1 month, 2 weeks, 4 days, 2 hours, 33 minutes ago

By the way…

The school administrators and teachers are supposed to be acting in loco parentis. However, if even the parents themselves had conducted a strip search of their teenage child, wouldn’t child protective services be concerned? Wouldn’t an investigation have followed? Ask yourself whether child protective services would approve those actions even if they were taken by that teenager’s parents.

Don’t get so consumed with the idea that this is a public institution and the fact that other students are present in the area or potentially exposed to danger by the actions of a particular student. The extent of the school’s authority to regulate the behavior of the child does not exceed that granted to the parents under the law.

-T
Posted by Hadley V. Baxendale - 1 month, 2 weeks, 4 days, 2 hours, 24 minutes ago

I just took a walk to the closest pharmacy. As I suspected, Ibuprofen is OTC. I have know idea how the school officials would have known the Ibuprofen was until sthey found it. In short, STOOOOPID!
Posted by Diego - 1 month, 2 weeks, 4 days, 51 minutes ago

Had that been my daughter, that principal would need police protection. Zero tolerance policies are actually zero intelligence policies. They are used when the people enforcing the policies are too stupid to distinguish between right and wrong.
Anyone who would order the strip search of a 13 year old girl over ibu is too dumb to do anything at that school except maybe clean the toilets. The same thing goes for the nurse who should have objected to making that poor girl take her clothes off.
In a just world the nurse, principal, and their bosses would all face termination and crushing civil suits. Frankly, they should face criminal charges if they conducted the search without first notifying the parents and allowing them to get a lawyer involved.
Posted by Erik Pritchard - 1 month, 2 weeks, 3 days, 23 hours, 52 minutes ago

Ok, I can’t resist commenting on the dumbest post on here-- Mr. Skinner’s post.

Mr. Skinner writes that, “Kay Sieverding above is wrong,” because a student can be searched without a warrant. He just didn’t read what she wrote.

She wrote that an adult non-student entering the building could not be searched without a warrant. NOT a student, Mr. Skinner.

I know, it’s a bit of schadenfreude, but Mr. Skinner really needs to read before he writes!

I agree with Kay, Diego, and the many others who are rightfully flabergasted by the unlawfulness of the school’s actions.
Posted by John S. -- Chicago - 1 month, 2 weeks, 3 days, 23 hours, 51 minutes ago

What concerns me most is that the ruling was 6-5! One judge on the panel votes the other way and this moronic intrusion would have been upheld.
Posted by Jesse - 1 month, 2 weeks, 3 days, 17 hours, 51 minutes ago

That’s what struck me. A 6-5 decision on something so blatantly offensive and wrong. Is there something about this case that we’re not told in the 5 sentence article written above? Was this girl a known gang banger known for distributing prescription drugs at school but they just couldn’t catch her red handed? Ibuprofen isn’t much of a painkiller, but maybe the school was using the tip as an excuse to search for something more dangerous? It doesn’t justify the strip search, but there’s got to be SOMETHING to make this all make sense…
Posted by thinking - 1 month, 2 weeks, 3 days, 14 hours, 38 minutes ago

SCHOOL—1957 vs. 2007

Scenario:
Jack goes quail hunting before school, pulls into school parking lot with shotgun in gun rack.
1957
- Vice Principal comes over, looks at Jack’s shotgun, goes to his car and gets his shotgun to show Jack.
2007
- School goes into lock down, FBI called, Jack hauled off to
Jail and never sees his truck or gun again. Counselors called in for
Traumatized students and teachers.

Scenario:
Johnny and Mark get into a fist fight after school.
1957
- Crowd gathers. Mark wins. Johnny and Mark shake hands and end up buddies.
2007 - Police called, SWAT team arrives, arrests Johnny and Mark. Charge them with assault, both expelled even though Johnny started it.

Scenario:
Jeffrey won’t be still in class, disrupts other students.
1957
- Jeffrey sent to office and given a good paddling by the Principal. Returns to class, sits still and does not disrupt class again.
2007 - Jeffrey given huge doses of Ritalin. Becomes a zombie. Tested for ADD. School gets extra money from state because Jeffrey has a disability.

Scenario:
Billy breaks a window in his neighbor’s car and his Dad gives him a whipping with his belt.
1957 - Billy is more careful next time, grows up normal, goes to college, and becomes a successful businessman.
2007 - Billy’s dad is arrested for child abuse. Billy removed to foster care and joins a gang. State psychologist tells Billy’s sister that she remembers being abused herself and their dad goes to prison. Billy’s mom has affair with psychologist.

&nb sp;
Scenario:
Mark gets a headache and takes some aspirin to school.
1957 - Mark shares aspirin with Principal out on the smoking dock.
2007 - Police called, Mark expelled from school for drug violations. Car searched for drugs and weapons.

Scenario:
Pedro fails high school English.
1957 - Pedro goes to summer school, passes English, goes to college.
2007 - Pedro’s cause is taken up by state. Newspaper articles appear nationally explaining that teaching English as a requirement for graduation is racist. ACLU files class action lawsuit against state school system and Pedro’s English teacher. English banned from core curriculum. Pedro given diploma anyway but ends up mowing lawns for a living because he cannot speak English.

Scenario:
Johnny takes apart leftover firecrackers from 4th of July, puts them in a model airplane paint bottle, blows up a red ant bed.
1957 - Ants die.
2007- BATF, Homeland Security, FBI called. Johnny charged with domestic terrorism, FBI investigates parents, siblings removed from home, computers confiscated, Johnny’s Dad goes on a terror watch list and is never allowed to fly again.

Scenario:
Johnny falls while running during recess and scrapes his knee. He is found crying by his teacher, Mary. Mary hugs him to comfort him.
1957 - In a short time, Johnny feels better and goes on playing.
2007 - Mary is accused of being a sexual predator and loses her job. She faces 3 years in State Prison. Johnny undergoes 5 years of therapy.

This should hit every e-mail to show how stupid we have become!

And if we do not wake up and take our country back - WE will not have a country , nor a society to grow old in or for our children to grow up in

Think about it !
Posted by thinking - 1 month, 2 weeks, 3 days, 14 hours, 34 minutes ago

The above comment is an email I received recently - long but rather funny and relevant to the “zero tolerance” policies so frequently, and mindlessly, employed in schools!
Posted by anonymous - 1 month, 2 weeks, 3 days, 2 hours, 18 minutes ago

this also all relates to drug policies.

There was a report on television about a student who informed other students that he was planning to bring a gun to school and kill people. None of them reported it to school authorities. He brought the gun and killed some people. Maybe it was the over reacting as described in this case that made the students too afraid of authorities to report a murder threat.
Posted by coffee drinker - 1 month, 2 weeks, 2 days, 2 hours, 53 minutes ago

the scenarios in #19 all show the recent desire to put people in jail. that may come from da election tactics
Posted by Charles - 1 month, 2 weeks, 1 day, 23 hours, 42 minutes ago

I wouldn’t have made it out of junior high or high school under the policies of today. Not that I’m so great, but I’m a fairly productive, law-abiding, and contributing member to society. If kicked out of school, I probably could have made a pretty clever criminal, too.
Posted by Thinking 2 - 1 month, 2 weeks, 1 day, 18 hours, 16 minutes ago

"Thinking” is correct. When I was in High School in Fairfax County, Virginia [WDC suburb] back in the 1970’s we had a “shooting” club. The students, who were all hunters, would bring their rifles to school the day of target practice and the sponsoring teacher would put the rifles in his closet and lock the (easily jimmied) door. After school, the club members would have target practice. No student threatened to shoot another student, no student shot another student, no accidents occurred. This scenario is inconceivable today. Our Society changed—regarding trust, it changed for the worst.
Posted by Joe - 1 month, 2 weeks, 18 hours, 1 minute ago

I agree with all the sane comments above. Also to note, “prescription-strength” Ibuprofen is no more than two over-the-counter Ibuprofens stuck together. Big freakin’ deal. It’s not like you can get high from it. You just take one instead of two OTC, or you break it in half.
Posted by kay sieverding - 1 month, 2 weeks, 16 hours, 50 minutes ago

It wouldn’t have happened on “Boston Public”. It sounds like a stressful work environment also.

Bullies gravitate to certain positions where they have opportunity to bully......

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