OK to Strip Search 13-Year-Old Girl for . . . Ibuprofen?

One look at that blog headline and it’s no surprise Friday’s Ninth Circuit decision in Redding v. Safford USD #1, case no. 05-15759 (9th Cir. Sept. 21, 2007) has garnerd some attention in the legal blogosphere.

Predictably, some of the reaction has been at a gut level. See, for example, California Appellate Report or Decision of the Day.

This is a section 1983 action by the 13-year-old girl against the school officials and the district for an alleged violation of her Fourth Amendment rights by searching her for pills. The search was initiated after a student claimed to have become ill from some pills distributed by the plaintiff and pills identified as prescription-strength Ibuprofen were found in the possession of plaintiff’s friend. Plaintiff was searched by two female officials in a locked room. While she was asked to stretch out the waistband of her underwear and her bra, she was not required to remove them.

The majority decision made logical sense to me — notwithstanding my initial revulsion at the thought of strip-searching a 13-year-old girl — for its straightforward analysis under New Jersey v. TLO (1985) 469 U.S. 325. The dissent, however, seems better reasoned and has more substantial precedential support.

The dissent seems to start on an absolutist note: “it does not require a constitutional scholar to conclude that a nude search of a 13-year-old child ia an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity.” Slip Op. at 12870 (dissenting opinion of Thomas, J.), quoting Calabretta v. Floyd (9th Cir. 1999) 189 F.3d 808. But Judge Thomas goes on to a very convincing TLO analysis. He concedes that some degree of search would have been permissible, but the search in question, which required the plaintiff to expose her pubic area and breasts, went over the line.

The most thorough analysis I found on a blog is at California Criminal Lawyer Blog. There’s also news coverage at the Arizona Daily Star and Arizona Daily Sun.

UPDATE (9/25/07): Adjunct Law Prog Blog weighed in yesterday as well — all the way from New York. Interestingly enough, he likewise feels that the majority and dissent both had good arguments.

By the way, when I said that this case had “predictably” drawn some gut-level reactions, I meant both predictably and understandably. I wasn’t knocking the gut-level reactions. Just thought I should clear that up, especially since so many people are reaching this post from Decision of the Day.

10 Comments

  1. This makes no sense to me. At what point was a school given these powers?

    To me, the legally uneducated, if they had a problem, call the police. Who, presumably, know what the hell they’re doing. The school is NOT a law enforcement agency, no matter how much it may think it’s king of the schoolyard.

  2. This article is about me. I worte a letter to the Editor of the Eastern Arizona Courier. Go to their website and check it out. It’s entitled, “How would you feel?” leave a comment about it. after you read it im sure you’ll see differently about this whole mess. thanks– Savana Lee Redding

  3. Ms. Redding,

    I don’t know why you think I would see things differently after reading your side. I thought the post explains that I am ALREADY on your side. I just don’t think the decision can be based on the gut-reaction revulsion. Notwithstanding the absolutist opening of the dissent, it takes some thought. In a purely intellectual sense, it is a closer call than one would call it if operating just at a gut level.

    Regards,

    Greg May

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  6. This case illustrates the lower courts struggle to fit the square peg of strip searches into the round hole of TLO. Courts do not know how to adjust TLO’s treatment of the search of a student’s purse for more intrusive searches like strip searches. The court in TLO explicitly directed that to be permissible in scope, the measures of a search must be 1) “reasonably related to the objectives of the search,” 2) “not excessively intrusive in light of the age and sex of the student,” and 3) not excessively intrusive considering “the nature of the infraction. These criteria are almost always mentioned then ignored by courts. The ninth circuit in this case not only brushed off this SCOTUS prescribed test but also replaced it with a new, and incomplete, test–further cementing bad law.

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  8. Pingback: It’s Now Official: It’s Not OK to Strip-Search a 13-Year-Old Girl for Ibuprofen | The California Blog of Appeal

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  10. Anyone who believes that a 13 year old girl needs to be searched for Ibuprofen needs to get their head checked. If it was such a big deal her parents should have been called or the police. No school offical should ever have the right to lock a little girl in a room and make her strip over Ibuprofen. You are insane if you think otherwise.

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