The United States Supreme Court decision in Safford Unified School
District v. April Redding creates new challenges for administrators
when they consider how to respond to evidence that a student may have
prescription or non-prescription pills in his or her possession – or
even when a student is alleged to have unidentified pills in his or her
possession. Below, we review legal principles relating to student strip
searches, and review how the Safford decision has changed how school
administrators will approach student strip searches. We review basic
Fourth Amendment principles, and then review the Safford decision. We
will then discuss the steps that should be considered before conducting
a student strip search.
I. Student Fourth Amendment Rights of Students
Regarding Searches
School personnel are restricted in the scope of the searches they can make of a student and his or her personal effects. The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures by government entities. A school official may, however, search for weapons, drugs, other prohibited items, or evidence, under certain circumstances. If that conduct is a “search” under the Fourth Amendment, it will be constituted if it is “reasonable,” as courts have defined what is to be considered reasonable.
A. Fourth Amendment “Searches.” The determination whether a search is subject to the Fourth Amendment turns upon whether the student has a reasonable expectation of privacy in the area to be searched. The School Code states that students have no expectation of privacy in school lockers or their personal effects left in school lockers, desks and parking lots. 105 ILCS 5/10-22.6.
Several court decisions, however, have effectively limited Section 10-22.6 as it applies to searches of personal effects. For instance, under New Jersey v. T.L.O., 469 U.S. 325 (1985), searches of a person are subject to the Fourth Amendment, as are searches of personal effects, including purses, pockets and backpacks, when not left in a locker.
B. Fourth Amendment “Search” Requirements. When an action constitutes a search within the meaning of the Fourth Amendment, such a search must be justified at its inception and reasonable in scope.
1.Justified at its inception. For a search to be justified at its inception, a “student’s conduct must create a reasonable suspicion that a particular regulation or law has been violated, with the search serving to produce evidence of the violation.” Willis v. Anderson Community School Corporation, 158 F.3d 415, 418 (7th Cir. 1998). Reasonable suspicion has been defined by an Illinois court as “a sort of common sense conclusion about human behavior upon which practical people. . .are entitled to rely, rather than an inchoate and unparticularized suspicion or hunch.” People v. Kline, 355 Ill.App.3d 770 (3d Dist. 2005).
It should be noted that a number of courts have taken a broader view of the rights of school districts in the post-Columbine era. For instance, in Haas v. West Shore School Dist., 915 A.2d 1254 (Pa. Commw. Ct., 2007), the Court acknowledged that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures. The court noted that both respecting the value of preserving the informality of the student-teacher relationship and the ability for swift and informal disciplinary procedures are needed in our schools to enable school officials to perform their duty to maintain a safe educational environment.
This determination as to whether any given search is “justified at its inception” depends upon the circumstances of each specific situation. If a search is not justified at its inception, it will not be legal under the Fourth Amendment, even if contraband is found. Below, we review some common circumstances, and their affect upon the reasonableness of a search:
i.Anonymous tip. An anonymous tip that a student possesses drugs will generally not amount to find a search to be justified at its inception, unless (1) the tip includes sufficient indicia of reliability to outweigh the school’s inability to determine the veracity of the informant or (2) the facts of the tip have been independently corroborated. People v. Kline, 355 Ill.App.3d 770 (3d Dist. 2005). Indicia of reliability may include specific detail or an indication of the basis of the informant’s knowledge. The fact that a search proved that the tip was correct will not be sufficient to show that the search was justified.
ii.Tip by a fellow student. In People v. Pruitt, 278 Ill.App.3d 194 (1st Dist. 1996), a tip from a student that another student possessed a gun created a reasonable suspicion sufficient to justify a police liaison officer in asking to speak with the student outside of class and then asking whether the student “had anything in his possession that could get him in trouble.” Id. at 205-06, 208. .
By contrast, the court in Phaneuf v. Fraikin, 448 F.3d 591 (2d Cir. 2006) emphasized the severe intrusion of a strip search when it held that a tip from a student that she had seen another student hide marijuana in her pants was insufficient to support a strip search. The Court held that the school administrators could not explain why they thought that the informant was trustworthy.
In sum, the extent to which a school district can rely on a tip from a fellow student will depend in part on the intrusiveness of the search that the school district intends to employ, and in part on the relevance of other “suspicious” facts to the specific tip at issue. See id. at 600.
iii.Passage of time. The passage of time can change circumstances such that a search that might have been justified at one time is no longer so. For example, in People v. Pruitt, 278 Ill.App.3d 194 (1996), an Illinois court held that, though a dean of students had “ample” evidence that a student might have violated a school rule when a teacher saw the student walking in a restricted stairwell, 45 to 60 minutes later, there were no longer any specific circumstances that would have led a reasonable person to believe that the student posed a danger or possessed evidence of a breach of school rules. Therefore, the dean was not justified in asking the student to empty his pockets. Id. at 211.
2.Reasonable in Scope. To be reasonable in scope, a search must be tailored to uncover evidence of the wrongdoing. It is not reasonable, for example, to require that a student accused of stealing a computer to empty his or her pockets. Searches also may be considered unreasonable if they are overly intrusive in light of the student’s age, the gravity of the suspected offense, and other circumstances of the search.
i.Invasiveness. Strip searches of students are frequently, though not always, held to be unreasonable. For example, in Bell v. Marseilles Elementary School, 2001 WL 314984 (N.D.Ill. March 29, 2001) and Beard v. Whitmore Lake School District, 204 F.3d 598 (6th Cir. 2005), courts have held that strip searches for missing money is generally unreasonable. Strip searches of very young children are especially likely to be held unconstitutional. Michael C. v. Gresbach, 479F.Supp.2d 914 (E.D.Wis. 2007).
Other recent strip search cases have upheld the constitutionality of strip searches. In Bridgman v. New Trier High School. In Bridgman, the Seventh Circuit upheld the use of a strip search where a medical assessment, used as an investigative tool, supported a reasonable suspicion of drug use. In that case, a high school student was observed to have bloodshot eyes and dilated pupils, and was laughing and acting “unruly” during class. A school nurse found the student’s blood pressure and pulse to be abnormally high, at which point a staff member asked the student to remove his shirt, hat, shoes and socks and to empty his pockets. The court found that these circumstances were sufficient to support the staff member’s suspicions, that the nurse’s medical assessment was reasonably calculated to uncover further evidence of suspected drug use, and that the strip search was not excessively intrusive. See Bridgman v. New Trier High School District No. 203, 128 F.3d 1146 (7th Cir. 1997).
3.Certain Types of Searches.
a. Dog sniffing. The federal courts have been split on the issue of whether a dog sniff of a student’s person constitutes a search to which the Fourth Amendment applies. In Doe, where dogs walked up and down aisles in a classroom, the court found no search of students’ persons. Doe v. Renfrow, 631 F.2d 91, 92 (7th Cir. 1980) (affirming in part 475 F.Supp.1012, 1022 (N.D.Ind. 1979)). However, other courts have held that such sniffs are searches (See e.g., B.C. Plumas Unified Sch. Dist., 192 F.3d 1260 (9th Cir. 1999)). In United States v. Kelley, 302 F.3d 291 (5th Cir. 2002) the court concluded that a canine sniff which involved contact with or is conducted in close proximity to a person’s body is a search.
The discretion accorded to school officials by the Doe case might be limited. For example, a dog sniff targeted at a particular student or group of students might indeed constitute a search and therefore require reasonable suspicion. Moreover, if a dog sniff was initiated by law enforcement or if school officials request the cooperation of law enforcement, then courts might require not only that the requirements of the Fourth Amendment be satisfied but that the justification for the search be “probable cause” rather than the less rigorous “reasonable suspicion” standard.
The Seventh Circuit which has jurisdiction over Illnois, has not specifically addressed the question of whether canine sniffs are subject to the Fourth Amendment. Other courts, however, have generally ruled that sniffs of student lockers or cars are not searches, and that therefore, suspicionless dog sniffs conducted by school officials are constitutionally permissible. See Zamora v. Pomeroy, 639 F.2d 662 (10th Cir. 1981); Horton v. Goose Creek Independent Sch. Dist., 690 F.2d 470 (5th Cir. 1982); Myers v. State, 839 N.E.2d 1154 (Ind. 2005).
In any case, once a trained dog has alerted a school official to the possible presence of drugs, any subsequent searches by school officials of the student for the purpose of discovering violations of school rules must meet the requirements of the Fourth Amendment. However, an alert by a trained dog, by itself, creates reasonable suspicion that the student in question possesses contraband, justifying a search.
b. Drug testing. Athletes may be required to submit to random drug testing, Vernonia School District 47J v. Acton, 115 S.Ct. 2386 (1995), Schaill v. Tippecanoe County School Corp., 864 F.2d 1309 (7th Cir. 1988), as may students involved in extracurricular activities, Todd v. Rush County Schools, 133 F.3d 984 (7th Cir. 1998), cert. denied 119 S.Ct. 68 (1998). In Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S.Ct. 2559 (2002), the district required all students who participated in competitive extracurricular activities to submit to drug testing. Two students challenged the policy, alleging that it violated their Fourth Amendment right to be free from unreasonable searches. The Supreme Court disagreed. The Court, relying heavily on its earlier decision in Vernonia, found that students have a limited privacy interest in school. The Court noted that, in some cases, the activity might require “occasional off campus travel and communal undress.” The Court also found that the intrusion was not significant, since the drug testing program did not require direct observation as the student urinated, the results are kept separate from other records, and the information is not turned over to the police. (Note: Illinois law requires reporting of drug-related incidents to law enforcement). The Court found that, even though there was no significant drug problem in the district, drug use among teens is a significant educational concern, and a school district does not need to wait until the problem has gotten out of hand to take action.
Students who drive to school may be tested for drugs and alcohol, but not nicotine; some high school students are old enough to use tobacco (off school grounds), and nicotine does not impair driving in the same way that drugs and alcohol do. Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1062-65 (7th Cir. 2000). Random, suspicionless drug testing of the general student body, however, has been found by at least one court to be unconstitutional. Tannahill v. Locney Independent School District, 133 F. Supp.2d 919 (N.D.Tex. 2001). Furthermore, random, suspicionless searches of students and their belongings, without other special circumstances, has been held unconstitutional by a federal appellate court. Doe ex rel. Doe v. Little Rock School Dist., 380 F.3d 349 (8th Cir. 2004).
c. Pat downs. In the recent case of D.L. v. Indiana, no. 49A04-0703-JV-192 (Ind. App. 2007) the school police officer came in contact with the student in the hallway during a non-passing period, and asked the student for his identification. The student answered that he had none. The officer then conducted a pat-down search of the student. The court found that the search was justified at its inception and reasonable in scope under the circumstances because the student did not display his identification card as required and the initial pat-down search was minimally intrusive. The court commented that in “this post-Columbine world” the privacy rights of students and citizens should be balanced to favor of the need of schools to identify individuals on school property.
II.The Facts of Safford
After escorting 13-year-old Savana Redding from her middle school classroom to his office, Assistant Principal Wilson showed her a day planner containing knives and other contraband. She admitted owning the planner, but said that she had lent it to her friend Marissa and that the contraband was not hers. He then produced four prescription-strength, and one over-the-counter, pain relief pills, all of which are banned under school rules without advance permission. She denied knowledge of them, but Wilson said that he had a report that she was giving pills to fellow students. She denied it and agreed to let him search her belongings. He and Helen Romero, an administrative assistant, searched Savana’s backpack, finding nothing. Wilson then had Romero take Savana to the school nurse’s office to search her clothes for pills.
After Romero and the nurse, Peggy Schwallier, had Savana remove her
outer clothing, they told her to pull her bra out and shake it, and to
pull out the elastic on her underpants, thus exposing her breasts and
pelvic area to some degree. No pills were found. Savana’s mother filed
suit against petitioner school district (Safford), Wilson, Romero, and
Schwallier, alleging that the strip search violated Savana’s Fourth
Amendment rights.
III.The Safford Decision
Savana sued Safford Unified School District #1 (SUSD1), but a U.S. district court and then a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled in the school district’s favor. Sitting en banc, the Ninth Circuit subsequently vacated the three-judge panel’s decision, finding not only that the search was unconstitutional but that the school officials were not entitled to qualified immunity from the suit because their actions were so obviously illegal that no reasonable public official could have believed otherwise.
The Supreme Court affirmed in part, reversed in part, and remanded the case to the Ninth Circuit with instructions that the lower court should address the question of the school district’s liability, which the Ninth Circuit had not yet addressed. Justice Souter’s majority’s opinion was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, and Alito.
While the circumstances of the case justified a search of Savana’s backpack and outer clothing, the Court found, the strip search involved both subjective and reasonable societal expectations of personal privacy “requiring distinct elements of justification on the part of school authorities.” While the “indignity of the search” alone did not make it unconstitutional, it did “implicate the rule of reasonableness as stated in New Jersey v. T.L.O., 469 U.S. 325, 341 (1985), that the search be reasonably related in scope to the circumstances which justified the interference in the first place.” Under T.L.O., whether the scope is permissible depends on the age and gender of the student and the nature of the infraction. Here, the Court found that the nature of infraction posed a “limited threat” because of the limited quantity of the drugs and the limited danger of prescription Ibuprofen. The assistant principal “… 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, … [he] 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.” Nor did he have any reason to suspect Savana of concealing the pills in her undergarments. The “combination of these deficiencies was fatal to finding the search reasonable,” the Court wrote.
IV.Administrator Liability for Searches
It is important to note that if a student’s rights are violated, and it is subsequently determined that the law was clear in that jurisdiction, administrators can be held personally liable. In Kennedy v. Dexter Consolidated Schools, 10 P.3d 115 (N.M. 2000) a suspicionless search during which two students were required to strip to their undergarments as part of a school official’s effort to find another student’s missing ring violated well established law, and as such the school official was not entitled to what is known as “qualified immunity”. Also see Konop v. Northwestern School District, 26 F.Supp.2d 1189 (D.S.D. 1998). In Konop, the court concluded that there was no qualified immunity for a principal and teacher who conducted a strip search upon eighth grade students. They were searching for missing money. The court commented that without a reasonable basis to believe that a particular student had committed theft, the search was unreasonable.
In Safford, on the issue of qualified immunity, the Court concluded that the unconstitutionality of the search was not clearly established because “the cases viewing school strip searches differently from the way we seem them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of the law.” The Court did acknowledge the dangers of drugs and the need to keep them out of schools, and stressed that “standards of conducts for school administrators to determine without second-guessing by courts lacking the experience to appreciate what may be needed.”
In his opinion concurring in part and dissenting in part, Justice Stevens took issue with the Court majority on the question of qualified immunity, arguing that the Safford school administrators should not enjoy qualified immunity. Justice Ginsburg, who joined Justice Stevens’ opinion, also filed her own opinion arguing the law on such searches had been clearly established and that the school official’s actions in this case were egregious. Thus, two Supreme Court Justices were ready to hold the Safford administrators personally liable for the strip search. After Safford, it is clear that school administrators can be held liable for an illegal strip search for prescription, non-prescription, and unidentified pills or other medication.
V.Conclusion
The Safford decision changes the way school administrators must view student strip searches involving non-prescription medications, prescription medications, and unidentified pills. While most school districts have disciplinary provisions prohibiting student possession of any of items, unless the administrator has specific reasons to believe that a student has secreted such items inside of their inner clothing, a strip search will not be justified, and, in fact, may trigger personal liability for the administrator.
In Safford, one might suppose that the school administrators could have endeavored to request that a “drug dog” be brought in to sniff the suspected student. Drug dogs, however, are often not trained to detect prescription medication. Even if such a procedure could be effective, as reviewed, such a dog sniff itself constitutes a search, and requires sufficient “reasonable suspicion”. Moreover, if a drug dog is not immediately available, the district may not have justification for keeping a student out of class and in the district’s administrative offices for an extended period of time.
As a result of Safford, circumstances will arise where district administrators will simply have to allow a student to not be strip searched if the incidence involves non-prescription, prescription, and/or unidentified pills. Moreover, districts will need to consider using pat-downs and drug dogs prior to any strip search, as the reliability of any “information” an administrator collects relating to any prohibited substance can, as a result of Safford, come under greater security.
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While the information herein contained is considered accurate, it is
not legal advice and should not be construed as such. Please seek
a legal opinion from a qualified attorney based upon the facts of your
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