Fourth Amendment Victory in Advil Strip Search Case


Today, in an 8-to-1 decision, the U.S. Supreme Court agreed that Arizona public school officials violated the Fourth Amendment rights of a 13-year-old eighth-grader when they subjected her to a strip search because they thought she might be hiding ibuprofen in her underwear. David Souter wrote for the majority:

What was missing from the suspected facts that pointed to Savana [Redding] 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. We think that the combination of these deficiencies was fatal to finding the search reasonable.

At the same time, unlike the U.S. Court of Appeals for the 9th Circuit, the Supreme Court said Kerry Wilson, the vice principal who ordered the search, cannot be held personally liable for the violation because the relevant law was not clear enough at the time. "Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear," Souter wrote, "we hold that the search did violate the Constitution, but because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability."

As I've said before, this is the best result that reasonably could have been expected, but I am surprised by the size of the majority, especially since it seemed there was a good chance the Court would uphold the search. The lone dissenter was Clarence Thomas, who has always taken a narrow view of minors' constitutional rights in the context of school and looked askance at judicial efforts to constrain administrators' authority.

Notably, the position taken by the majority is less deferential to school officials than the one urged by the Obama administration. As common sense would suggest, the Supreme Court considered it relevant not only that there was no reason to think Savana Redding had pills in her crotch or cleavage but also that the pills in question did not pose a significant threat to students' health or safety:

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. 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, or that individual students were receiving great numbers of pills.

By contrast, Acting Solicitor General Edwin Kneedler argued that the Court should defer to school officials' judgment about the importance of enforcing their mindless "zero tolerance" policy for drugs and find the strip search unreasonable only because there was insufficient reason to believe it would reveal contraband.

The decision is here. Previous Reason coverage of the case here.