Hey, Kids, Leave Stephen Breyer's Underwear Alone!


Yesterday the Supreme Court heard arguments about the circumstances in which it is constitutional for public school officials to strip-search a 13-year-old girl. The Court considered some vexing Fourth Amendment issues: Does the nature of the contraband the officials are looking for matter? What about the credibility of the tipster? Must the officials have specific reason to believe the contraband—in this case, ibuprofen—is hidden in the girl's underwear? But perhaps the most puzzling question raised during the oral arguments in Safford United School District v. Redding was this: What the hell went on at Justice Stephen Breyer's elementary school?

That mystery arose when Breyer was questioning Adam Wolf, the lawyer representing Savana Redding, the girl who was searched. Breyer suggested that Safford Middle School's assistant principal, Kerry Wilson, was not "totally out to lunch" in thinking Redding might be hiding the ibuprofen pills in her crotch or cleavage:

It seems to me like a logical thing when an adolescent child has some pills or something, they know people are looking for them, they will stick them in their underwear….

In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear.

At this point, laughter prompted Breyer to quickly add: 

Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience, not beyond human experience.

Less funny than Breyer's inability to remember whether his classmates stuck things in his underwear or their own is the likelihood that the Court will overturn the 9th Circuit's conclusion that the strip search ordered by Wilson violated Redding's Fourth Amendment rights. Even Justice David Souter, who initially suggested that a strip search for the equivalent of a couple Advil tablets was beyond the pale ("at some point it gets silly," he said), later supplied a justification for this seemingly disproportionate measure: The school district could say "it needs this sort of blanket classification rule—any drug, over the counter or prescription—because when a pill is found, they're not pharmacists, they don't know what it is, and therefore they've got to have a blanket rule or they simply cannot act effectively."

Except that in this case they did know, based on the pills' "IBU 400" markings, that they were dealing with a drug that did not represent any sort of imminent threat to students' health and safety, the protection of which is the rationale for the school's "zero tolerance" drug policy. Matthew Wright, the school district's lawyer, argued that "if an administrator…in their reasonable judgment, believes that any drug poses a potential health and safety risk, because they have the custodial and tutelary responsibilities for those kids,…it is best for this Court to defer to their judgment when they believe that certain rules are important and not second-guess those rules." It seems likely, based on the Court's earlier rulings dealing with student searches and the tenor of the oral arguments, that it will accept this argument, in which case the Fourth Amendment issue will hinge not on the nature of the contraband but on whether there was adequate reason to think it might be found in Redding's underwear.

Wolf, Redding's lawyer, noted that no had claimed she was hiding pills under her clothes, there was no history of students' "crotching" drugs at her school, and the district could find only "eight cases over the course of approximately 30 years in which contraband was found in those locations." He added that "it's sort of strange credulity to think that you would have loose pills concealed against a student's genitalia….I mean, there's a certain ick factor to this." Justice Antonin Scalia, by contrast, reasoned that Redding's innocence (she did not in fact have any drugs in her possession) justified the highly intrusive search:

You reasonably suspect the student has drugs. You've searched everywhere else. By God, the drugs must be in her underpants.

In fact, as Wolf noted, schools officials had not "searched everywhere else." Before looking in Redding's underwear, they did not even look in her desk or locker (or call her mother). In any event, a series a fruitless searches would have made a less zealous Advil hound increasingly skeptical of the tip implicating Redding, which came from a fellow student who was eager to shift the blame after being caught with pills (in her pockets, by the way, not her underwear).

Still, things could be worse. And maybe they will be. Wright, the school district's lawyer, initially suggested it would unconstitutional for schools to enforce their zero-tolerance policies with body cavity searches, because there is no record of students' hiding drugs in their vaginas or rectums. But later he backtracked, saying the real problem is that school officials are not properly trained to conduct such searches. When Souter asked him whether body cavity searches would be OK once administrators and teachers had undergone the requisite training, Wright said "that's to be left up to the local governments."

A transcript of the oral arguments is here (PDF). My last post on this case, which includes links to earlier coverage, is here.