Constitutional Law,  Education,  Search & Seizure

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.