The answer to this question is simple: Defendant. You have heard lawyers say that “bad facts make bad law.” The United States Supreme Court has accepted certiorari to consider an appeal of the United States Court of Appeals for the Ninth Circuit in Redding v. Safford Unified School District, et al. over a school official’s decision to strip search a thirteen year old student accused of possessing ibuprofen!

The vice principal, suspicious of the young lady (Savana) hiding prescription-strength ibuprofen, first asked permission, then searched the young lady’s backpack.  After finding no contraband, the vice principal sent Savana with a female administrative assistant to the school nurse for a “more thorough search.”  The school officials had Savana peel off each layer of clothing in turn. First, she removed her socks, shoes, and jacket for inspection for ibuprofen. The officials found nothing. Then, she was asked to remove her T-shirt and stretch pants. Savana complied and sat in her bra and underwear while the two school officials examined her clothes. Again, the officials found nothing. The assistant then instructed Savana to pull her bra out to the side and shake it. She “followed the instructions, exposing her naked breasts in the process. The shaking failed to dislodge any pills.” She next requested that Savana “pull out her underwear at the crotch and shake it. Hiding her head so that the adults could not see that she was about to cry, Savana complied and pulled out her underwear, revealing her pelvic area. No ibuprofen was found.”

The facts of this case should make any reasonable reader cringe. The search itself was the result of a tip given by another student who was found with and being disciplined for possession of the ibuprofen. This student said it was not hers but instead belonged to the Savana. Savana had no discipline record whatsoever.

The issues in this case are the typical issues of searches: (1) was the search justified at its inception, and then; (2) whether the search conducted was reasonably related in scope to the circumstances which justified the search in the first place?

The Court of Appeals considered the case en banc (the entire body of appellate judges considered the case, rather than a panel of three judges), and one could foresee trouble for the defendants when coming across the following sentence in the en banc decision: “the public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interests in privacy and security of her person.”

The Court of Appeals was troubled by the justification for the search.  Because Savana had no previous disciplinary issues or previous association with contraband, it made it all the more troubling that the school officials were relying on the word of a person caught with contraband who was clearly trying to avert the punishment to anyone but herself. The Court felt that further investigation to corroborate the accusation should have taken place before the use of a strip search was imposed, since the initial tip itself did not indicate Savana was hiding the pills in a place that necessitated a strip search. Instead, the only corroboration was Savana’s denial that she possessed ibuprofen and a failed search of her backpack.

Having failed to pass the “justified at its inception” test, it continued to go downhill for the school district. The Court considered the potential psychological damage to the child and eventually determined that ibuprofen was not a danger if hidden and, therefore, would not justify such an intrusive search.

The facts of this case are beyond troubling.  With the Supreme Court having extended schools the leeway to perform searches based upon reasonable cause instead of probable cause and having permitted drug testing searches for extra-curricular activities, there is a good chance this case will set schools back a few notches.  The Supreme Court will hear oral argument in this case on April 21, 2009.  A decision should be issued this year.

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