Looking for Advil in All the Wrong Places

The Supreme Court puts limits on school strip searches.

Jacob Sullum | July 1, 2009

It turns out that strip-searching a 13-year-old girl suspected of bringing ibuprofen to school is unreasonable. Who'd have thought?

Well, almost everyone except Kerry Wilson, the assistant principal who ordered the search. But until last week it was not clear the U.S. Supreme Court would agree. Its 8-to-1 decision finding that Wilson violated the Fourth Amendment's prohibition of unreasonable searches is an encouraging signal that there are still limits on what government agents can do to our children, even in the name of protecting them from drugs.

I was beginning to wonder, especially in light of the 2002 Supreme Court ruling that upheld random urine testing of public school students who participate in extracurricular activities, based on logic that seemingly would justify extending the requirement to all students. The Court itself concluded that its decisions in this area were unclear enough that Wilson might have thought his actions were constitutional and therefore should not be held personally liable.

While this ruling is symbolically important, its direct impact may be modest, if only because the facts of the case are so extreme. Wilson decided to search Savana Redding, an honor student at Safford Middle School in Safford, Arizona, based on an uncorroborated accusation from Marissa Glines, a fellow eighth-grader caught with one 200-milligram naproxen pill and four 400-milligram ibuprofen pills.

Although no one takes these widely available analgesics for kicks, both were forbidden under a school policy banning all drugs—legal or illegal, prescription or over-the-counter—without advance permission. When Marissa claimed Savana had given her the pills, Wilson did not ask any follow-up questions, such as when this transfer allegedly occurred (which might have indicated how likely it was that Savana had more pills with her). After unsuccessfully searching Savana's backpack, Wilson skipped over her locker and went straight for her underwear.

Wilson, who never tried to contact Savana's mother, ordered the strip search even though a similar examination of Marissa had been fruitless and there was no evidence that students at his school had a habit of stashing Advil next to their private parts. At his behest, the school nurse and a female administrative assistant forced Savana to remove all her clothes except for her bra and panties, which she then had to pull out and shake, revealing her breasts and pubic area.

The Supreme Court noted that such humiliating treatment is "fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable." The Court did not go that far, but it did go further than the Obama administration had urged.

The Court considered it relevant not only that there was no reason to think Savana had pills in her crotch or cleavage but also that the pills in question did not pose a plausible threat. "Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve," the Court noted. "He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around."

By contrast, Acting Solicitor General Edwin Kneedler argued in March that the Court should find the strip search unreasonable only because there was insufficient reason to believe it would reveal contraband. He warned that "courts should not second-guess" school officials' judgments about what precautions are necessary to protect students. The implication was that even the stupidest application of the most moronic "zero tolerance" policy is beyond judicial review, as long as searches aimed at enforcing that policy are based on reasonable suspicion.

"Remember," a Safford Unified School District lawyer told ABC News last year, "this was prescription-strength ibuprofen." This is not the sort of expertise to which courts should defer.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

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Some Guy|7.1.09 @ 7:17AM|#

"Remember," a Safford Unified School District lawyer told ABC News last year, "this was prescription-strength ibuprofen."

The epic stupidity of that comment should have led to an immediate cockpunch by whoever was standing near him at the time. I am very disappointed in anyone who was there and didn't do what needed to be done.

I don't see how anything short of suspicion of carrying a snuke would have justified this.

*|7.1.09 @ 7:31AM|#

I can't help but wonder if people would be nearly so outraged by all this if it had been a young man who was strip searched instead of a girl.

Some Guy|7.1.09 @ 7:35AM|#

They probably wouldn't be, but just because they'd be wrong in some alternate theoretical situation doesn't change the fact that they're right now.

Art-P.O.G.|7.1.09 @ 7:46AM|#

The epic stupidity of that comment should have led to an immediate cockpunch by whoever was standing near him at the time.

+1. There are times when reasonable people must deliver cockpunches. That was clearly one of those moments.

Tomcat1066|7.1.09 @ 7:51AM|#

What was surprising was that SCOTUS voted 8-1. Most of their decisions seem to be 5-4.

What's truly sad is that it was 8-1, rather than 9-0. Clarence Thomas dropped the ball on that one...big time.

Art-P.O.G.|7.1.09 @ 7:58AM|#

Clarence Thomas dropped the ball on that one...big time.

It'll probably come out later that he was high on prescription-strength ibuprofen during the decision.

|7.1.09 @ 8:05AM|#

It'll probably come out later that he was high on prescription-strength ibuprofen during the decision.

I'm sure he's clean, he likes to stay inflamed.

|7.1.09 @ 8:12AM|#

The Court did not go that far, but it did go further than the Obama administration had urged.

Wait, so now Obama is telling the Supreme court how to rule? Well, he was a con law professor - though apparently he never published anything apart from his biography.

What. a. tool.

MNG|7.1.09 @ 8:14AM|#

domo
They mean that the government filed a brief.

MNG|7.1.09 @ 8:16AM|#

"It'll probably come out later that he was high on prescription-strength ibuprofen during the decision."

Art
Prescription-strength junkies don't hand down badly reasoned SCOTUS dissents, they run amok in orgies of sex and violence. Have'nt you seen IBUPROFEN MADNESS?

|7.1.09 @ 8:16AM|#

This is horrible,
What motivation is there to become a school principle anymore.

The supreme court just ruined that job.

|7.1.09 @ 8:18AM|#

The supreme court just ruined that job.

Buck up, little camper. They still get to wield plentiful petty power over the analogues of the kids that pushed them around in high school.

|7.1.09 @ 8:19AM|#

They mean that the government filed a brief.

ok, I know that. there is no national security interest here, the justice department is not a party to the case - the Obama administration is way over it's skiis in getting involved in this. It's just another photo-op for a president who addresses the nation from the mountain on high.

every. single. day.

MNG|7.1.09 @ 8:23AM|#

domo
The government files an opinion in these kinds of cases all the time, as the idea is that the rulings will affect how their agencies do their jobs or that they just have a strong opinion...IIRC the Obama administration's brief was better than the previous admins brief

MNG|7.1.09 @ 8:24AM|#

kwais
The SCOTUS said that the officials could not be held personally responsible, so don't despair...

|7.1.09 @ 8:30AM|#

they just have a strong opinion

exactly.

I can accept that this happens all the time, but from Obama, who I see on my television every day, I read a little more into it. Not only that, but the fact that every article mentions what the amicus briefs position said (or at least whether our president got what he wanted).

Is there any function of government he is prepared to leave to the people actually elected to perform it?

or appointed, in this case, obviously...

jpocali|7.1.09 @ 8:32AM|#

Didn't the principal file a brief? Or maybe he defiled a brief? Or was he debriefed, no, that was her.... I am so confused!

MNG|7.1.09 @ 8:33AM|#

domo
I'm betting that if he had his druthers he would not have gotten involved in this at all. I'm not trying to give him credit he doesn't deserve, the guy's whole strategy is image projection and control, but this kind of issue could only cost him positive image.

This is why he took such a hedging position that allowed him to seem to please everyone(surprised?): yes the strip is bad, but no liability for our poor educators...

And I'm sure Obama did not actually file any brief, his solicitor general or DOJ did

Rich|7.1.09 @ 8:35AM|#

> the government filed a brief.

Who searches the government's briefs?

MNG|7.1.09 @ 8:36AM|#

An Under-Secretary?

|7.1.09 @ 8:45AM|#

buh dum bum - crash!

|7.1.09 @ 8:48AM|#

is it still illegal to purchase a video of the search?

Xeones|7.1.09 @ 8:53AM|#

|7.1.09 @ 8:59AM|#

Don't talk back, Xeones.

Rich|7.1.09 @ 9:11AM|#

Now that Tylenol has been shown to be a deadly poison, I'll bet all you critics of the school are red-faced!

Seriously, this episode was wrong on many levels. How about a "zero-tolerance policy" for stupidity?

|7.1.09 @ 9:12AM|#

"Yakety Sax" gotta love that weird Eskimo porn.

|7.1.09 @ 9:39AM|#

Wilson, the two female perps, and every idiot in the chain of command who supported their crime should be behind bars. This wasn't just an illegal search like going through her purse or book bas, this was child molestation.

-jcr

|7.1.09 @ 9:41AM|#

I wish I'd been on hand to throw a shoe at that school district lawyer. What lousy little third-rate shyster.

-jcr

monkey on juice|7.1.09 @ 9:49AM|#

"I wish I'd been on hand to throw a shoe at that school district lawyer. What lousy little third-rate shyster."

No throwing shoes...thats so December. Its cockpunch day. Throw a fist at the junk.

|7.1.09 @ 9:49AM|#

Peter|7.1.09 @ 9:58AM|#

with a flaming porcupine

Geez, somebody hates the environment, PETA's gonna get you...

|7.1.09 @ 10:12AM|#

Where in the Arizona or U.S. constitutions does any government school employee get the authority to conduct warrantless searches of anybody's person or property ??

There is NO such authority at all.

But SCOTUS thinks such warrantless searches are perfectly acceptable... if illegal drugs were the supposed search target.

4th Amendment and Arizona declaration of rights clearly say different.

George Miller|7.1.09 @ 10:14AM|#

Maybe somebody should strip Kerry Wilson, then set him on fire, then leave his cadaver hanging in the public square. What's wrong with setting a good example?

|7.1.09 @ 10:51AM|#

I think the procupine is ready for this. It's his destiny.

Sean W. Malone|7.1.09 @ 11:09AM|#

Is it just me or are the words: "Student Strip Search" still pretty hot?

hmm|7.1.09 @ 11:22AM|#

It's a public school. What do you expect? I haven't read the decision. Anyone want to cliff note all the dissents? Nice to see what appears to be a ringing endorsement of the 4th. Now we can hope for the rest of the 4th to be applied to everyone. Like cops.

If she were my kid I have a feeling their would have been a battery case at the least attached to this. Wilson would be lucky if it wasn't a homicide. Few things warrant a violent response. A person of authority violating my child's dignity and rights would be one of them.

Anyone here had their mother walked out of school, through a full cafeteria at lunch, in handcuffs? Oh the joys of a Scotch-Irish mother that fears nothing.

Poor porcupine.

jpocali|7.1.09 @ 11:42AM|#

So, it's a cockpunch with a flaming porcupine then is it?

emerson|7.1.09 @ 11:56AM|#

Outtake from Stevens' partial concurrence:

"I have long believed that '[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.'"

Wait, long believed?

|7.1.09 @ 12:21PM|#

Finally, one for the constitution. But one little discussed aspect is this
"Although no one takes these widely available analgesics for kicks, both were forbidden under a school policy banning all drugs-legal or illegal, prescription or over-the-counter-without advance permission"
The search wasn't about illegal drugs - it was about legal substances. I can see forward to the day spoons are banned because cocaine can be "cooked" in the spoons. Headlines announce: Tomato soup industry bankrupt as SCOTUS upholds spoon ban.

|7.1.09 @ 12:27PM|#

hmm, I'll Cliff Note the lone dissent for you.

Clarence Thomas: "Stopping teh evil drugs is more important than the 4th Amendment to the United States Constitution, basic civil liberties, dignity, justice, common sense, and the welfare of a child."

|7.1.09 @ 12:33PM|#

"Remember," a Safford Unified School District lawyer told ABC News last year, "this was prescription-strength ibuprofen."

If this lawyer ever took 2 ibuprofen for a headache I hope he turned himself in, for illegally taking too much ibuprofen without a prescription.

|7.1.09 @ 1:40PM|#

I don't care if she had a crack rock doused in ether and LSD, rolled in heroine, wrapped in a trans fats soft taco shell and dipped in a vat of Redman and Jim Beam. Without the parents permission and a warrant, someone deserves to be ass-raped with a flaming porcupine for allowing this strip search to occur.

As the George Carlin joke goes, I think you are the first person in the world to put those words together in that particular order. That's an accomplishment to be proud of. I would be anyway.

|7.1.09 @ 2:05PM|#

Clarence Thomas must really hate the 4th amendment. My counsel reccommended that I not post my true feelings about what I would enjoy seeing happen to that treasonous ____.

|7.1.09 @ 2:08PM|#

Any Clarence Thomas supporters here? Either stand your ground and make up stupid excuses so that we can insult you or make like Joe and return to your false left-right paradigm.

|7.1.09 @ 2:36PM|#

Any Clarence Thomas supporters here?

formerly

*raises hand with embarrassment*

d|7.1.09 @ 2:42PM|#

I'll resist making pubic hair jokes here.

Anyhow, if this were my daughter, the principle would one day wake up next to a horse's head with his cock in its mouth.

|7.1.09 @ 2:47PM|#

Don't feel too bad Dom.
I can see how it could happen to me too. When the media was attacking him so much a few years ago you almost had to assume he must be pretty good.

|7.1.09 @ 2:57PM|#

Its cockpunch day. Throw a fist at the junk.

Some people be throwing their fists at their junk all the time. It helps if you have pictures or videos and some lotion. If you run out of lotion you can put some margarine in the microwave for ten seconds. And use a sock so you don't ruin the finish on your new LCD monitor.

dave|7.1.09 @ 5:32PM|#

My counsel reccommended that I not post my true feelings about what I would enjoy seeing happen to that treasonous ____.

Porcupine?

|7.1.09 @ 9:02PM|#

If H.L. Mencken were alive, he would say that "conservatism is the haunting fear that someone, somewhere, might be getting high."

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