Randy Cassingham's Blog

Updated: March 2009 June: We Win in Supreme Court!

A tremendous number of zero tolerance stories pass in front of me as I search for stories for True, and (contrary to what some readers think) I pass by most of them. I've previously encouraged those who are truly wronged by ZT to consider suing their schools.

The family of Savana Redding, who was 13 when she was ZTd, did just that, suing the school district and school officials with the help of the American Civil Liberties Union. The suit was thrown out, but they appealed, and after two rounds got a strongly worded victory from the U.S. Court of Appeals for the 9th Circuit -- but with a shockingly thin 6-5 margin.

Why is the case "shocking"? Redding, an honor student who had never been in trouble before, was strip-searched by Safford Middle School officials in Safford, Arizona, because of unsubstantiated allegations that she (gasp!) might have the anti-inflammatory drug Advil on her person. Despite being forced to reveal her breasts and pelvic region, school officials found no drugs, illegal or otherwise. They would not let the girl call her mother before, or even after, the incident. Two school officials (both female) ordered the girl to undress, and watched her as she did so.

Here's how the appeals court summarized the search:

There, at [vice principal Kerry] Wilson's behest, [Wilson's administrative assistant Helen] Romero and the school nurse, Peggy Schwallier, conducted a strip search of Savana. The officials had Savana peel off each layer of clothing in turn. First, Savana removed her socks, shoes and jacket for inspection for ibuprofen. The officials found nothing. Then, Romero asked Savana to remove her T-shirt and stretch pants. Embarrassed and scared, Savana complied and sat in her bra and underwear while the two adults examined her clothes. Again, the officials found nothing. Still progressing with the search, despite receiving only corroboration of Savana's pleas that she did not have any ibuprofen, Romero instructed Savana to pull her bra out to the side and shake it. Savana followed the instructions, exposing her naked breasts in the process. The shaking failed to dislodge any pills. Romero 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 school officials finally stopped and told Savana to put her clothes back on and accompany Romero back to Wilson's office. Savana did not freely agree to this search. She was "embarrassed and scared, but felt [she] would be in more trouble if [she] did not do what they asked." In her affidavit, Savana described the experience as "the most humiliating experience" of her short life, and felt "violated by the strip search." (emphasis added)

What was the school officials' basis for such a search? The school has a "zero tolerance" policy against drugs, and extended the principle to all "drugs" -- including over-the-counter pills such as ibuprofen, which teen girls often use to relieve menstrual cramps.

The court ruled that reasoning is outrageous.

"It does not take a constitutional scholar to conclude that a nude search of a 13-year-old girl is an invasion of constitutional rights," Judge Kim McLane Wardlaw wrote for the majority of the judges. "More than that: it is a violation of any known principle of human dignity."

Now, in this case, it was prescription-strength (400 mg) Advil -- one pill is the equivalent of two over-the-counter tablets; two OTC tablets is a typical dose. The court was not swayed by the drug's prescription-only status:

We reject Safford's effort to lump together these run-of-the-mill anti-inflammatory pills with the evocative term "prescription drugs," in a knowing effort to shield an imprudent strip search of a young girl behind a larger war against drugs. ... Nothing in the record provides any evidence that the school officials were concerned in this case about controlled substances violative of state or federal law. No legal decision cited to us or that we could find permitted a strip search to discover substances regularly available over the counter at any convenience store throughout the United States. ... And contrary to any suggestion that finding the ibuprofen was an urgent matter to avoid a parade of horribles, even if Savana had possessed the ibuprofen pills, any danger they posed was neutralized once school officials seized Savana and held her in the assistant principal's office. Savana had no means at that point to distribute the pills, and whatever immediately threatening activity the school may have perceived by the alleged possession of prescription-strength ibuprofen had been thwarted. The school officials had only to send Savana home for the afternoon to prevent the rumored lunchtime distribution from taking place -- assuming she in fact possessed the pills on her person. The lack of any immediate danger to students only further diminishes the initial minimal nature of the alleged infraction of bringing ibuprofen onto campus.

The school conducted the strip search based on a statement by the student they had confiscated the pills from. They made no attempt to corrborate that accusation, and the student had not suggested that she had any more pills, nor suggested that they were hidden in her underwear. Another student, a boy, was also found to have pills, but he did not implicate Redding. Here's the court's summary of what happened with the other students:

Inexplicably, although Marissa was the one found with the pills, the search conducted on Marissa was less intrusive than that later conducted on Savana, whose only link to the pills was Marissa's uncorroborated "tip." School officials asked Marissa only to lift her shirt, not to remove it entirely, as they did with Savana. The third student suspect was a boy named Chris. He was the only student suspected of the same infraction that day not required to strip for the school officials' inspection.

Other commentators had something to say about that.

"There are two kinds of people in the world," editorialized Jacob Sullum, senior editor at Reason magazine: "the kind who think it's perfectly reasonable to strip-search a 13-year-old girl suspected of bringing ibuprofen to school, and the kind who think those people should be kept as far away from children as possible." Sullum said that "Sometimes it's hard to tell the difference between drug warriors and child molesters." He grumbled that "It's a good thing the school took swift action, before anyone got unauthorized relief from menstrual cramps." (Source: The School Crotch Inspector.)

What about higher level school officials? Nothing but support for the vice principal. Principal Robert Beeman said "he did not think the strip search was a big deal because they did not find anything," Redding told the court. Presumably the school district is paying for the legal defense in the case.

"A reasonable school official," the court lectured, "seeking to protect the students in his charge, does not subject a thirteen-year-old girl to a traumatic search to 'protect' her from the danger of Advil."

"Just Sue 'Em!"

It's easy to say that people should sue when they're wronged, but it's not an easy road to travel. Consider this: the search in question was conducted on October 8, 2003 -- nearly five years ago. With the decision on Friday, July 11, 2008 that I'm reporting on here, the Court of Appeals is merely ruling that the suit can proceed. The actual lawsuit hasn't even been argued yet!

Theoretically it can now proceed with dispatch. But as I made clear in my book The True Stella Awards, the lengthy process of getting a suit through our courts often is a series of "justice delayed is justice denied" starts and stops. The appeals court cleared the way for the case to proceed five years from the incident -- the trial court clock now starts ticking again from the start.

And the court decision also made it clear that it's not just the school district which can be sued, but also the vice principal as an individual, since he ordered the strip search in clear violation of Redding's Constitutional rights, but not the two women who actually conducted the strip search of the young girl under his direction.

Here's how the suit has progressed so far, as detailed by the appeals court:

• The Reddings brought suit in the Federal District Court for the District of Arizona against Safford Unified School District #1, Wilson, Romero and Schwallier.
• The school district, et al, filed a motion for summary judgment, asserting that the defense of qualified immunity precluded them from being sued. Their motion relied solely on the argument that the strip search did not violate Savana's Fourth Amendment rights, and "because there was no constitutional violation, no further inquiry is necessary."
• The district court ruled for them entirely on the basis that there was no violation of Savana's constitutional (Fourth Amendment) right. Moreover, the district court concluded that the need to locate the ibuprofen was sufficiently urgent that the strip search was "reasonably related" to the search's objective and was not "excessively intrusive." The conclusion that Savana's constitutional rights were not violated rendered consideration of the second step of qualified immunity -- whether the right was clearly established -- unnecessary.
• Upon appeal, a divided panel of our court upheld the grant of summary judgment in favor of the defendants (appellees). The two-judge majority -- in a now vacated opinion -- concluded that "[a]mple facts supported Marissa's veracity as an informant...." The majority found the strip search permissible in scope because "the strong interest" in protecting students from prescription drugs outweighed the intrusion caused by the search the panel thought was conducted in a "reasonable manner." In dissent, Judge Thomas asserted that the majority had misapplied Supreme Court authority. While a search may have been justified, the panel failed to undertake "the appropriate inquiry [of] whether a strip search was justified." Because it "was unreasonable to force Savana, a thirteen-year-old girl, to expose her breasts and pubic area to school officials" while they searched for ibuprofen, Judge Thomas concluded that the strip search failed to meet constitutional muster.
• A majority of our judges in regular active service voted to reconsider en banc whether the strip search violated Savana's Fourth Amendment rights, and, if so, whether those rights were clearly established in October 2003, when the school officials conducted the strip search.
• The strip search of thirteen-year-old Savana did not satisfy either prong of [Supreme Court precedent] and therefore was conducted in violation of Savana's Fourth Amendment rights. These constitutional principles were clearly established by the United States Supreme Court twenty years before the Safford school officials conducted the strip search of thirteen-year-old Savana. Therefore, we reverse the district court's determination that there was no violation of Savana's constitutional rights, conclude that the constitutional principles were clearly established as to Assistant Principal Wilson, affirm the grant of qualified immunity as to Schwallier and Romero, and remand for further proceedings consistent herewith [in the lower court].

What of the dissension by the five judges? There were two dissensions filed. In the first, Judges Gould and Silverman wrote that while they agreed that the rules in the Supreme Court precedent case were not satisfied and that "common sense" shows that the strip search of Savanna was therefore "unreasonable and unconstitutional," they believe that the individuals named in the suit (the vice principal, his assistant, and the school nurse) are entitled to a qualified immunity from liability, essentially because the law wasn't clear enough for them to understand.

The dissent noted that some search was reasonable (such as of Redding's backpack and jacket), but not a strip search. Still, the first dissent noted the judges "can understand how school officials, even though they made an erroneous decision, should have some insulation from liability before our declaration of how these principles applied to this case."

In the second dissent, the remaining three judges said that they wouldn't call what happened to Redding a "strip search", in that she was "only" stripped to her underwear -- and school officials only looked inside in her bra and panties, rather than order them removed. The majority actually addressed that point specifically, reciting both case law and statutes which say stripping someone to their underwear in a search is a "strip search". The three judges then went on to say that essentially, the school's search did meet the requirements of the Supreme Court's rules, so on this point the court was divided 8-3, rather than 6-5.

The bottom line is that such questions are hard to decide, even if you spend your day second-guessing the actions of others and have access to law clerks to do research for you, but I am in full agreement with the majority of the court: the actions of the school officials -- government employees, all -- were outrageous.

This case will almost certainly have a very positive impact in the fight against zero tolerance. The court not only paved the way for the school to be sued, but also the vice principal (who ordered the strip search) but not his assistant and the school nurse (who performed the strip search at his direction). That sends an intense no-nonsense message to school officials: chill out now -- or else you will be personally responsible for what happens, even if you order someone else to do the dirty work. No hiding behind governmental immunity. That will cause such officials to do what they're supposed to do: think about what they're doing. That is, indeed, what we're paying them to do.

---

If you'd like the details of the Appeals Court decision, you can read it in its entirety (including the dissensions) here (PDF file, 75 pages, 343 K). Savana Redding's statement (affidavit) to the district court detailing her experiences is here (PDF file, 5-page scan, 645 K).

---

March 2009 Update

I mentioned that the Appeals Court decision went for Redding by a "shockingly thin margin". Here's the consequence of that: the school district has appealed that ruling, which means the case now goes to the U.S. Supreme Court -- they've agreed to hear the case in April.

On the one hand, this is yet another delay in justice for Redding: this has been going on for a third of her life. On the other hand, a decision by the Supreme Court will have a much farther reaching effect than the 9th Circuit's decision, so I'm hoping for a clear and decisive blow against zero tolerance. The outrages must stop, and if it takes the Supreme Court to back that up, then so be it.

But not everyone agrees. The New York Times recently did a story on the case, and included this chilling quote: "Do we really want to encourage cases," asked Richard Arum, an education professor from New York University, "where students and parents are seeking monetary damages against educators in such school-specific matters where reasonable people can disagree about what is appropriate under the circumstances?"

Define "reasonable"! The 9th Circuit already did: "It does not take a constitutional scholar to conclude that a nude search of a 13-year-old girl is an invasion of constitutional rights," Judge Kim McLane Wardlaw wrote for the majority. "More than that: it is a violation of any known principle of human dignity." Who seriously wants to argue the other side of that? I mean, besides the school district's lawyer?

Remember that school officials are agents of the government. Do you really want your children to be strip searched in school? Yeah, I can imagine circumstances where it would be warranted, but not for an alleged Advil tablet. Especially when, as the court ruled, there was no reason to believe Redding was "carrying the pills inside her undergarments, attached to her nude body, or anywhere else that a strip search would reveal," as the 9th Circuit put it.

Let's hope the Supreme Court does the right thing and makes a strong statement about the outrageous overzealousness of zero tolerance. It's time to demand common sense.

---

June 2009 Update: Common Sense Wins in Supreme Court Ruling

The Supreme Court has ruled, and common sense won! The court ruled 8-1 that school officials violated the law with their outrageous strip search. (Specifically: The search of Savana's underwear violated the Constitution's Fourth Amendment prohibition against unreasonable search.)

"What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear," wrote Justice David Souter in the majority opinion. "We think that the combination of these deficiencies was fatal to finding the search reasonable."

However, the court "counsel[ed] doubt that we were sufficiently clear in the prior statement of law" -- which means the court ruled that the school officials cannot be held personally liable in the lawsuit the Redding family has filed. Whether or not the school district itself is liable was kicked back to a lower court to decide. There was dissent on the principal not being liable, however. Justices John Paul Stevens and Ruth Bader Ginsburg thought he should be. "[Vice Principal Kerry] Wilson's treatment of Redding was abusive and it was not reasonable for him to believe that the law permitted it," Ginsburg said in her dissent. "Abuse of authority of that order should not be shielded by official immunity."

More quotes from the ruling:

• Because the suspected facts pointing to Savana did not indicate that the drugs presented a danger to students or were concealed in her underwear, Wilson did not have sufficient suspicion to warrant extending the search to the point of making Savana pull out her underwear. [Wilson's administrative assistant Helen] Romero and [school nurse Peggy] Schwallier said that they did not see anything when Savana pulled out her underwear, but a strip search and its Fourth Amendment consequences are not defined by who was looking and how much was seen. Savana's actions in their presence necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings.

• Savana's subjective expectation of privacy is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation is indicated by the common reaction of other young people similarly searched, whose adolescent vulnerability intensifies the exposure's patent intrusiveness. Its indignity does not outlaw the search, but it does implicate the rule that "the search [be] 'reasonably related in scope to the circumstances which justified the interference in the first place.'"

• [In this case,] the content of the suspicion failed to match the degree of intrusion. Because Wilson knew that the pills were common pain relievers, he must have known of their nature and limited threat and had no reason to suspect that large amounts were being passed around or that individual students had great quantities. Nor could he have suspected that Savana was hiding common painkillers in her underwear. When suspected facts must support the categorically extreme intrusiveness of a search down to an adolescent's body, petitioners' general belief that students hide contraband in their clothing falls short; a reasonable search that extensive calls for suspicion that it will succeed. Nondangerous school contraband does not conjure up the specter of stashes in intimate places, and there is no evidence of such behavior at the school....

The dissenting judge was Clarence Thomas, who wrote "Redding would not have been the first person to conceal pills in her undergarments. Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school." I'm OK with stoners getting a free pass if they're with-it enough to read Supreme Court decisions.

Click to see full text of Souter's Majority Opinion and Thomas's Dissent. Both pages have links on top for the other judges' filed opinions on the case.

Teens are treated like adults when it comes to crimes, but schools treat them like children when it comes to taking care of their own health. Children have died because they couldn't carry their life-saving medications with them, such as asthma inhalers, because schools think they need to control all "drugs" on campus. The harm isn't that kids carry Midol or ibuprofen for menstrual cramps, the true and long-lasting harm is not letting the students deal with their own health issues. This slap in the face of zero tolerance in favor of common sense was a long time coming, and I applaud the nearly unanimous decision by our Supreme Court. This is surely the beginning of a tidal change in school administration idiocy.