It’s Now Official: It’s Not OK to Strip-Search a 13-Year-Old Girl for Ibuprofen

There was a lot of law blog coverage when a Ninth Circuit panel held that a strip search that required 13-year-old Savana Redding to expose her breasts and pubic region during a search for Ibuprofen did not violate her Fourth Amendment rights.  As I wrote in my post,  despite my gut- level reaction that the search was wrong, I found the majority opinion was well reasoned.  Still, the dissent won me over; it was even better reasoned and, while both opinions centered around New Jersey v. TLO (1985) 469 U.S. 325, the dissent was better supported by authority.  Along with my gut, that was enough, so I was among those happy to see en banc rehearing granted.

In today’s en banc opinion, Redding v. Safford USD #1, case no. 05-15759 (9th Cir. (en banc) July 11, 2008), the panel decision is reversed, but just barely.  The 6-judge majority opinion is notable for its graphic — and even poignant — description of the the search, which conveyed the degradation Savana must have felt.  The five dissenting judges split into two opinions.

I’m providing the entire introductory paragraph from the majority opinion because it so effectively tells you about the case and the holdings [citations omitted]:

On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen year-old honor student Savana Redding. We conclude that the school officials violated Savana’s Fourth Amendment right to be free from unreasonable search and seizure. The strip search of Savana was neither “justified at its inception,” nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, “reasonably related in scope to the circumstances” giving rise to its initiation.

Not surprisingly, the search arose out of yet another “zero-tolerance” policy.  This one disallowed even over-the-counter drugs at school without prior permission.  Zero tolerance often leads to zero sense, so the court’s invocation of common sense in its discussion of whether Savana’s rights were established in the law at the time of the search (a factor relevant to immunity) really jumped out at me [citations omitted]:

Common sense and reason supplement the federal reporters. The T.L.O. Court expected no less of those to whom we entrust our children, leaving teachers to “regulate their conduct according to the dictates of reason and common sense.”  Simply put: “It does not require a constitutional scholar to conclude that a nude search of a thirteenyear-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.”

It’s always a good thing when common sense and the Constitution converge.  It would have been really nice if this decision had come down last week, so Savana could have made it part of her Independence Day celebration.

I’ll update this post after I take a look at the dissents, which won’t be until later in the day.  I’m wondering if I’ll find both sides of the debate as rational as I did in the panel decision.

I’ll also update with additional links as I find other law bloggers writing about the case.

UPDATE (7/14/08):  Drug Law Blog calls the en banc decision “a little blow for sanity” and provides an excerpt regarding the supposed “prescription strength” nature of the Ibuprofen the search was for.   the   The School Law Blog provides links to coverage by the L.A. Times and ACLU. 

Maybe It’s Not OK to Strip Search a 13-year-old Girl for Ibuprofen After All

Last September, I covered (along with seemingly every other legal blogger) Redding v. Safford USD #1, case no. 05-15759 (9th Cir. Sept. 21, 2007), in which the Ninth Circuit held that a school’s strip-search of a 13-year-old girl for Ibuprofen, for crying out loud, was constitutionally permissible.  Today, the Ninth orders rehearing en banc.

For a round-up of coverage of the original opinion, see my original post.

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.

IDEA Rights not Enforceable under Section 1983

In Blanchard v. Morton School District, case no. 06-35388 (9th Cir. Sept. 20, 2007), the Ninth Circuit becomes the fifth federal appellate circuit to hold that rights under the Individuals with Disabilities Education Act (IDEA) are not enforceable by an action under 42 U.S.C. section 1983.  The court acknowledges that two circuits have gone the other way and that the Eighth Circuit has an intra-circuit split on the issue.

The case arose when the mother of a disabled child sued to recover damages for lost earnings and suffering endured during her eventually successful drive to obtain benefits for her son under the IDEA.  The district court granted summary judgment, finding that the mother had no individual rights under the IDEA ad that the IDEA did not contemplate the damages she sought. 

While the appeal was pending, the Supreme Court decided Winkelman ex rel. Winkelman v. Parma City Sch. Dist., (2007) 127 S.Ct. 1994, which held that parents do have individually enforceable substantive rights under the IDEA.  In light of this, the court stated that “[t]he question before us now is whether 42 U.S.C. § 1983 creates a cause of action for money damages under the IDEA for the lost earnings and suffering of a parent pursuing IDEA relief.”

Given that so many circuits have already decided the availability of Section 1983 relief one way or another, I would have thought that the Ninth’s opinion would include an extensive analysis of the issue, comparing the merits of each side and the reasoning of the other circuits.  Instead, in a very short opinion, the Ninth is satisfied to say that:

We are persuaded by the recent thoughtful, well-reasoned opinion of the Third Circuit. See A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 797-803 (3d Cir. 2007) (en banc) (surveying the existing circuit split and analyzing recent Supreme Court precedent on the availability of § 1983 as a remedy for violation of a federal statute).  In A.W., the Third Circuit overruled its prior authority to the contrary and held:     

The IDEA includes a judicial remedy for violations of any right “relating to the identification, evaluation, or educational placement of [a] child, or the provision of a free appropriate public education to such child.” § 1415(b)(6). Given this comprehensive scheme, Congress did not intend § 1983 to be available to remedy violations of the IDEA . . . .     

Id. at 803 (alteration in original). We now join the First, Third, Fourth, and Tenth Circuits and hold that the comprehensive enforcement scheme of the IDEA evidences Congress’ intent to preclude a § 1983 claim for the violation of rights under the IDEA.