The Supreme Court seemed worried Tuesday about tying the hands of school officials looking for drugs and weapons on campus as they wrestled with the appropriateness of a strip-search of a 13-year-old girl accused of having prescription-strength ibuprofen.
Savana Redding was 13 in 2003 when Safford, Ariz., Middle School officials, on a tip from another student, ordered her to remove her clothes and shake out her underwear looking for pills. The district bans prescription and over-the-counter drugs.
Her lawyer argued to the Supreme Court that such a "intrusive and traumatic" search would be unconstitutional in every circumstance if school administrators were not directly told the contraband was in her underwear.
"A school needs to have location-specific information" to put a child through such an embarrassing search, lawyer Adam B. Wolf said.
Would it be constitutional if officials were looking for weapons, or drugs like crack, meth or heroin? "Does that make a difference?" Justice Anthony Kennedy asked. No, Wolf replied.
That leaves school administrators with the choice of embarrassing a child through a search or possibly having other children die while in their care, Justice David Souter said. "With those stakes in mind, why isn't that reasonable?" Souter said.
Wolf said school officials violated the Fourth Amendment, which prohibits unreasonable searches. School officials didn't bother to search her desk or locker, or even question additional students to find out if anyone thought Redding could be hiding drugs in her underwear, he said.
"There needs to be suspicion that the object is under the clothes," Wolf said.
A 1985 Supreme Court decision that dealt with searching a student's purse has found that school officials need only reasonable suspicions, not probable cause. But the court also warned against a search that is "excessively intrusive."
A schoolmate had accused Redding, then an eighth-grade student, of giving her pills.
Vice Principal Kerry Wilson took Redding to his office to search her backpack. When nothing was found, Redding was taken to a nurse's office where she says she was ordered to take off her shirt and pants. Redding said they then told her to move her bra to the side and to stretch her underwear waistband, exposing her breasts and pelvic area. No pills were found.
A federal magistrate dismissed the lawsuit Redding and her mother April brought, and a federal appeals panel agreed that the search didn't violate her rights. But last July, a full panel of the 9th U.S. Circuit Court of Appeals found the search was "an invasion of constitutional rights."
The court also said Wilson could be found personally liable.
The school's lawyer argued that the courts should not limit school officials' ability to search out what they think are dangerous items on school grounds. "We've got to be able to make decisions," lawyer Matthew Wright said.
But justices worried that allowing a strip search of school age children might lead to more intrusive searches, like body cavity searches. "There would be no legal basis in saying that was out of bounds," Souter said.
Redding, now a 19-year-old college freshman living in her hometown of Safford in rural eastern Arizona, took her first airplane ride to watch the arguments. "It was pretty overwhelming," she said, standing before a bank of cameras and a few dozen reporters outside the building.
She said she is considering becoming a counselor, which might mean she could end up working in a school. Asked how she would handle the situation as a counselor, she said she would call a student's parents first. "I didn't have that option," she said, outside the court. "I'm a little kid. I didn't have any idea how it would be handled. But my mom would."
There were flashes of humor during the serious arguments.
'That's what kids do'
Justice Antonin Scalia apparently discovered that children sometime sniff permanent markers looking for a high as he questioned why the school confiscated them. "They sniff them?" Scalia said.
"That's what kids do, your honor, unfortunately," Wright said.
"Really?" Scalia said.
And Justice Stephen Breyer can expect years of teasing after a misstatement as he was trying to point out that it might not be unusual for children to hide things from teachers 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." Breyer hesitated as he realized what he said as the courtrooom erupted in laughter.
He quickly recovered and added: "Or not my underwear. Whatever. Whatever."
The case is Safford Unified School District v. April Redding, 08-479.