The Obama Administration Explains When Advil Strip Searches Are OK
The Obama administration recently filed a somewhat encouraging amicus curiae brief in the Supreme Court case involving Savana Redding, the girl who was strip-searched when she was in eighth grade by Arizona public school officials looking for contraband ibuprofen. The brief (PDF) argues that the U.S. Court of Appeals for the 9th Circuit was right to conclude that the search violated Redding's Fourth Amendment rights but wrong to allow a lawsuit that seeks to hold the school officials personally liable. "The school officials are entitled to qualified immunity because the law was unclear at the time they acted," says the brief, which was signed by Acting Solicitor General Edwin Kneedler, joined by lawyers for the Education Department, the Defense Department, and the Office of National Drug Control Policy.
As I've said before, this is pretty much the best result that can reasonably be expected from this case. Given that the federal judges who have heard the case so far disagreed about whether the search was constitutional, it's hard to argue that Assistant Principal Kerry Wilson (who, let's face it, does not come across as a very bright guy) should have known it was not. Indeed, given the erosion of civil liberties the Court has endorsed in the name of the crusade for a drug-free America (particularly when minors are involved), it might very well ratify Wilson's decision to take the fight into Redding's underwear. I'm glad the Obama administration is urging it not to do so.
Still, Kneedler's reasoning differs from the 9th Circuit's in a couple of troubling ways. While the appeals court suggested that a highly intrusive search like this one requires an especially strong justification, Kneedler says the standard for public school searches, no matter how intrusive, should be "reasonable suspicion"; the problem in this case, he says, is that "the circumstances the school officials confronted…did not furnish reasonable suspicion that respondent was hiding those pills in her underwear or on her naked body." Kneedler also argues that the 9th Circuit "improperly substituted its own judgment for that of the school officials, as reflected in a written school rule, about whether banning possession of the pills at issue was necessary to prevent immediate risks to health or safety." Under the relevant Supreme Court precedent, he says, "the school's promulgation of a health-or-safety rule reflects its judgment that violations of the rule represent a danger to the school community, and courts should not second-guess that determination."
The implication seems to be 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. If a school banned bananas because students might slip on their peels and injure themselves, searching a student's pants would be OK as long as there were grounds to believe he had a banana there. If the school widened the ban to include all fruit, it would be presumptuous for courts to draw distinctions based on potential slipperiness.
To bring it back to this case, a judge would be engaging in impermissible second-guessing, according to Kneedler, if he said, "You strip-searched a 13-year-old girl because you thought she might have Advil? You've gotta be kidding me!" In Kneedler's view, the only relevant question is whether there was a good reason to believe the girl had hidden Advil in her crotch or cleavage, not whether it would constitute any sort of immediate threat to anyone's health or safety if she had.
Defending this egregious invasion of privacy, the school district says it is "on the front lines of a decades-long struggle against drug abuse among students." Which evidently includes unauthorized relief of headaches and menstrual cramps. "Remember," one of the district's lawyers told ABC News last year, "this was prescription-strength ibuprofen." This is not the sort of expertise to which courts should be deferring.
The 9th Circuit's decision is here (PDF). The administration's amicus brief is here (PDF). Other briefs in the case, Safford Unified School District v. Redding, are available here. Previous Reason coverage of the Redding case here, here, and here. Oral arguments are scheduled for April 21.