By Jacob Sullum
It turns out that strip-searching a 13-year-old girl suspected of bringing ibuprofen to school is unreasonable. Who'd have thought?
Well, almost everyone except Kerry Wilson, the assistant principal who ordered the search. But until last week it was not clear the U.S. Supreme Court would agree. Its 8-to-1 decision finding that Wilson violated the Fourth Amendment's prohibition of unreasonable searches is an encouraging signal that there are still limits on what government agents can do to our children, even in the name of protecting them from drugs.
I was beginning to wonder, especially in light of the 2002 Supreme Court ruling that upheld random urine testing of public school students who participate in extracurricular activities, based on logic that seemingly would justify extending the requirement to all students. The Court itself concluded that its decisions in this area were unclear enough that Wilson might have thought his actions were constitutional and therefore should not be held personally liable.
While this ruling is symbolically important, its direct impact may be modest, if only because the facts of the case are so extreme. Wilson decided to search Savana Redding, an honor student at Safford Middle School in Safford, Arizona, based on an uncorroborated accusation from Marissa Glines, a fellow eighth-grader caught with one 200-milligram naproxen pill and four 400-milligram ibuprofen pills.
Although no one takes these widely available analgesics for kicks, both were forbidden under a school policy banning all drugs—legal or illegal, prescription or over-the-counter—without advance permission. When Marissa claimed Savana had given her the pills, Wilson did not ask any follow-up questions, such as when this transfer allegedly occurred (which might have indicated how likely it was that Savana had more pills with her). After unsuccessfully searching Savana's backpack, Wilson skipped over her locker and went straight for her underwear.
Wilson, who never tried to contact Savana's mother, ordered the strip search even though a similar examination of Marissa had been fruitless and there was no evidence that students at his school had a habit of stashing Advil next to their private parts. At his behest, the school nurse and a female administrative assistant forced Savana to remove all her clothes except for her bra and panties, which she then had to pull out and shake, revealing her breasts and pubic area.
The Supreme Court noted that such humiliating treatment is "fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable." The Court did not go that far, but it did go further than the Obama administration had urged.
The Court considered it relevant not only that there was no reason to think Savana had pills in her crotch or cleavage but also that the pills in question did not pose a plausible threat. "Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve," the Court noted. "He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around."
By contrast, Acting Solicitor General Edwin Kneedler argued in March that the Court should find the strip search unreasonable only because there was insufficient reason to believe it would reveal contraband. He warned that "courts should not second-guess" school officials' judgments about what precautions are necessary to protect students. The implication was that even the stupidest application of the most moronic "zero tolerance" policy is beyond judicial review, as long as searches aimed at enforcing that policy are based on reasonable suspicion.
"Remember," a Safford Unified School District lawyer told ABC News last year, "this was prescription-strength ibuprofen." This is not the sort of expertise to which courts should defer.
By Jacob Sullum