On June 25, 2009, the United States Supreme Court decided the case of Safford v. Redding, 129 S.Ct. 2633, 2635 (2009). The Court was asked to determine the constitutionality of the strip search of a middle school student, Savana Redding, who was suspected of possessing and distributing over-the-counter drugs. By now, most administrators know that the Court decided that the strip search was unconstitutional. This article focuses on why the Court reached that decision and the lessons that charter schools should take away from this case.

What Are the Ramifications of an Unconstitutional Search?

School officials should be very cautious concerning any action that may implicate the civil rights of their students. An unconstitutional action and the disregard of a student’s civil rights can result in a number of consequences to your school outside of the legal ramifications, for example, bad press, community outrage, and mistrust among your students. All of this, of course, may impact enrollment numbers and, with it, school funding. 

Schools and school employees can also be sued for monetary damages for violating the civil rights of students. These types of lawsuits are typically brought against schools in what is commonly referred to as “Section 1983” actions/lawsuits¹.  Because the Constitution itself does not grant people the right to sue when a victim believes he or she is the subject of an unconstitutional action,  Congress enacted 42 U.S.C. Section 1983 to allow individuals to sue the government for unconstitutional or illegal actions. This includes unconstitutional searches.

¹ Some attorneys contend that it is an unsettled question as to whether charter schools may be sued under Section 1983.  A federal district court dismissed a lawsuit brought by a teacher against an Arizona charter school under 42 U.S.C. § 1983.  Caviness v. Horizon Community Learning Center, Inc., 2007 WL 4468721 (D.Ariz. 2007) (unpublished decision).  However, attorneys who represent individuals in lawsuits against charter schools see the Caviness decision as being erroneously decided.  It is best for charter schools to act in a manner that will not leave them open to liability, whether for lawsuits based on Section 1983 or assault. 

When a school employee is sued in a Section 1983 action, the employee may be able to raise a defense called “qualified immunity.” To successfully raise a qualified immunity defense, the employee must prove that his or her actions did not violate any established constitutional or statutory principles. If the conduct of the employee is deemed to be unconstitutional, the employee can use the qualified immunity defense if he acted reasonably, and if the law governing his actions was not clearly established. If a qualified immunity defense is successful, the employee is immune from any civil or monetary liability. 

Review of Basic Fourth Amendment Principles as They Pertain to Strip Searches Prior to Safford v. Redding

School officials are charged with balancing their responsibility to maintain a safe learning environment with their responsibility to ensure the civil rights of their students. Whether or not a search is constitutional depends largely on principles set forth in New Jersey v. T.L.O., 469 U.S. 325 (1985). In this case, the Supreme Court held that the constitutionality of any search depends largely on the following:

1. Whether or not the search was justified at its inception: For a search to be justified at its inception, the school official must have a reasonable suspicion that the particular student to be searched is violating a school rule or a local, state, or federal law.
2. Whether or not the search itself is reasonable: For a search to be “reasonable,” it must be related in scope to the circumstances that caused the reasonable suspicion of wrongdoing in the first place. The search also cannot be excessively intrusive in light of the age and sex of the student and the nature of the infraction.

A strip search may or may not be constitutional, depending on the circumstances. Consider the following examples.

Searches for Money: Unconstitutional

Bellnier v. Lund, 438 F. Supp 47 (N.D.N.Y. 1977): The District Court in New York considered the constitutionality of a strip search of an entire fifth-grade class to locate a missing $3.00. While the court recognized that school officials need to have the ability to act quickly to maintain order, the court ruled that the search was unconstitutional because there was no individualized suspicion about who had stolen the money. The court held that the teachers and staff responsible were entitled to immunity because at the time of this search, the law concerning searches in schools was not clearly established. This case was decided before New Jersey v. T.L.O. (1985), discussed above, which set the precedent.

State of West Virginia v. Mark Anthony B., 189 W.Va. 538 (1993): A school social worker strip-searched an eighth-grade student to locate $100.00 that went missing from a teacher’s purse, which the teacher had placed under her desk in a locked classroom. The student had a history of and was on probation for theft, and had access to the classroom when he helped the janitor with minor duties. The strip search uncovered the missing $100.00, and the teacher pressed criminal charges. The student sought to suppress the evidence of the search, which the court denied.

The student subsequently appealed this issue to the West Virginia Supreme Court, alleging that the search was unconstitutional. The West Virginia Supreme Court held that while the social worker clearly had reasonable suspicion to search the student, a strip search was unreasonable and overly intrusive in light of the nature of the violation and the lack of any immediate danger. Because this case involved a criminal appeal, the court did not consider any issues of civil damages or immunity.

Konop v. Northwestern School District, 26 F. Supp. 2d 1189 (D.S.D. 1998): A South Dakota District Court ruled that the strip search of eighth-grade girls to locate $200.00, with no individualized suspicion as to who had taken the money, was a violation of the girls’ Fourth Amendment rights. The girls had been forced to strip down to their underwear and bras, and to pull their underclothes away from their bodies so the principal and teacher could do a visual inspection. The court also determined that because the case law and common sense had established that a strip search for missing money was clearly unreasonable, the teacher and principal were not entitled to qualified immunity. Further, the principal and teacher could be sued under state law for intentional infliction of emotional distress and battery (assault).

Searches for Drugs: Constitutionality Depends on Circumstances

Williams by Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991): The Sixth Circuit Court of Appeals held that the strip search of a student to locate narcotic drugs, a “white powder substance” known as “rush,” was constitutional, given the nature of the item sought and the danger it posed to the student and others. The administrators in this case were justified in searching the student because the administrators had a reasonable suspicion that a search of the girl would yield the substance. A student witness had reported to the administration that she observed the girl and the girl’s friend using the substance and was able to describe the drug and the casing. When this student witness reported a second occurrence of the drug use, the administrators conducted a search of the girl’s belongings and did a strip search. In addition to the witness reports, the administrators had received reports from the girl’s teacher and parents that the girl was suspected of using drugs. Because the search was constitutional, the administration was entitled to qualified immunity from a Section 1983 lawsuit.

Cornfield by Lewis v. Consolidated High School District No. 230, 991 F.2d 1316 (7th Cir. 1993): The court upheld the strip search of a high school student who was believed to be hiding drugs in his pants. When a staff member observed an unusual bulge in the student’s private area, the student’s pockets were searched and he was strip-searched for drugs. The Seventh Circuit Court of Appeals held that the strip search was constitutional. The administration had reasonable suspicion to search the student for drugs due to student, staff, and police reports that the student was using and selling drugs, and the student had recently failed a drug test for cocaine. A strip search was reasonable because of the student’s appearance and because the student had reported to others that he would “crotch” drugs. Because the search was constitutional, the dean and the teacher were entitled to qualified immunity from a Section 1983 lawsuit.

Safford v. Redding, 129 S.Ct. 2633, 2635 (2009): A student who had been caught with prescription strength pain killers equivalent to a couple of ibuprofen alleged that she had received the pills from her friend, Savana. Savana was called to the assistant principal’s office, and the administrator and his female administrative assistant searched Savana’s pockets and effects. When the search revealed nothing, Savana was sent to the nurse’s office, where the nurse and the administrative assistant asked Savana to strip down to her underwear and bra. Savana was also asked to pull the elastic on the bra and underwear, but no pills were discovered. Savana’s mother sued the district, the assistant principal, and the nurse under Section 1983. The school staff claimed that they were immune from civil liability because they had not violated Savana’s Fourth Amendment rights and because they had not violated well-established legal principles concerning the strip search of a student for drugs.
The District Court for Arizona found in favor of the school staff. The Ninth Circuit Court of Appeals reversed this decision as to the assistant principal and the school district. The district appealed this decision to the U.S. Supreme Court. The Supreme Court held that while reasonable suspicion existed for the assistant principal to search Savana for drugs, a strip search was unreasonable given the facts at hand. The assistant principal had no reasonable foundation for suspecting that Savana was hiding pills in her underwear. Her friend had said that Savana had given her the pills but had not said when or where Savana was hiding the pills. The search was also unreasonable in light of the offense: possession of a non-dangerous prescription-strength pain reliever. Because the issue of strip-searching students for non-dangerous contraband had not been clearly established, the school staff was entitled to immunity from a Section 1983 lawsuit. The determination of whether or not the district was liable was sent back to the trial court.

So, What Has Redding Taught Us?

While the U.S. Supreme Court did not go so far as to outlaw strip searches entirely (e.g., for dangerous illegal drugs and weapons), there are some important lessons to be taken from Redding and the case law listed above.

• Strip searches for money will almost never be justified, and schools and school employees will likely be successfully sued for engaging in this type of search for this reason.
• “Random” strip searches, without individualized suspicion, for drugs or weapons will likely not be constitutional, and schools and school employees may be sued for engaging in this type of search.
• The Supreme Court established in Redding that the strip search for non-dangerous contraband, including non-dangerous drugs, is illegal. Likely, the next time a school employee conducts a strip search for non-dangerous contraband, he or she will not be entitled to qualified immunity.
• Other cases not discussed above have indicated that body cavity searches and strip searches by members of the opposite sex will most certainly be unreasonable and unconstitutional.

Please note:  Strip searches can be conducted in almost any case upon probable cause and execution of a search warrant. Schools should consider involving law enforcement when there is reason to suspect that the strip search of a student will yield evidence of criminal or dangerous misconduct.

Conclusion

Fourth Amendment issues are very complex and fact-specific. Strip searches are very perilous in terms of a school’s liability. Schools are encouraged to seek specific legal advice from their attorneys regarding any search or civil rights issues. This article is intended to be a general discussion of Fourth Amendment principles as they relate to strip searches and is not intended to provide legal advice regarding a particular situation.

Jill K. Osborne, Esq., is a partner with the law firm of Udall, Shumway & Lyons. Jill’s practice is primarily focused on school law and employment law. She can be contacted at jko@udallshumway.com or (480) 461-5300. Jill would like to thank Jessica S. Sanchez, Esq., an associate at Udall, Shumway & Lyons, for her invaluable assistance with this article.