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.