The Supreme Court's Grant of Review in Redding v. Safford -- a Fourth Amendment Case Involving a Search of a Middle-School Student for Drugs: A Chance for the Court to Show Reasonableness Review Has Teeth

By VIKRAM DAVID AMAR
Friday, Jan. 30, 2009

In this column, I will examine a middle-school drug-search case on which the Supreme Court recently granted review. As I will explain, the case will give the Justices another chance to demonstrate that a so-called "reasonableness" approach to the Fourth Amendment need not be toothless and, indeed, can serve to vigorously safeguard the interests the Fourth Amendment should protect. However, we probably won't know until the summer whether the Court will seize that opportunity, or instead uphold school authority in the name of the war on drugs.

The Case's Factual and Legal Background

The case, Redding v. Safford, comes to the Court from southeast Arizona by way of the U.S. Court of Appeals for the Ninth Circuit. According to the Ninth Circuit majority opinion, school officials at Safford Middle School, unnerved by the relatively recent drug-related death of one of its students, learned that someone had brought to school, in violation of clear school policy and also perhaps in violation of criminal law, some 400-milligram tablets of ibuprofen. Ibuprofen is an over-the-counter pain and muscle ache reliever, but the 400-milligram tablets -- twice the size of the tablets available for purchase at a grocery store -- can be obtained only with a doctor's prescription. The 400-milligram tablets were found in the possession of a student named Marissa, who then told school authorities that another student, Savana, had given her the pills, along with a black planner. (When the planner was seized from Marissa and searched, officials found other contraband but no drugs.)

School officials then questioned Savana, who admitted having loaned Marissa the planner, but denied having any knowledge about, or involvement with, bringing any 400-milligram ibuprofen pills or other drugs or other contraband to school. Seemingly unpersuaded by these denials, the school authorities asked for and obtained Savana's permission to search her backpack, but the search turned up nothing. A female school nurse and a female administrative assistant then took Savana to another room, directed her to take off her outer clothing and -- when a search of that outer clothing found no contraband -- instructed her to, in the Ninth Circuit's words, "pull her bra out to the side and shake it." In following this direction, Savana exposed her breasts, according to the Ninth Circuit majority. (The dissenting Ninth Circuit judges may not have agreed that any exposure necessarily took place.) No pills were found. The administrative assistant and the nurse then requested that Savana pull out her panties at the crotch and shake them. Turning her head, Savana complied by pulling out her underwear to shake it, revealing her pelvic area. Once again, no ibuprofen was found.

On her daughter's behalf, Savana's mother then sued the school district and various officials in federal court for damages, alleging that a Fourth Amendment violation had occurred, and that school officials should have seen and avoided that violation. A divided three-judge panel of the Ninth Circuit Court of Appeals ruled in the defendants' favor, but when the case was reheard by 11 Ninth Circuit Judges sitting en banc, they granted relief in favor of the plaintiff. Five of the 11 judges sided with the defendants. Three did so on the ground that there was no Fourth Amendment violation, and two did so on the ground that damages would be inappropriate under the doctrine of "qualified immunity" because any constitutional violation was not sufficiently clear that a reasonable school official should have known he was breaking the law. That is the posture in which the Supreme Court has now waded into the dispute.

The Fourth Amendment Principles that Bind School Principals

In 1985, in the New Jersey v. TLO case, the Supreme Court held that a proper balance of students' and schools' needs requires that a school official's search of a student and her property at a school is constitutional if, and only if, the search meets the Fourth Amendment's generalized requirement of reasonableness, under all the circumstances applicable in the particular case. The question in Redding, as in all school search cases, is how we give meaning to reasonableness.

The Court has earlier had occasion to apply the reasonableness standard in the context of illegal drugs at schools. In the 1990's, in Vernonia School District 47j v. Acton, the Justices upheld a policy under which a school randomly tested high school athletes for drug use. The Court found that the policy was "reasonable" within the meaning of the Fourth Amendment because of the variety of ways--communal showers and locker rooms, close physical contact with fellow athletes, and the general need to undergo physical exams and medical testing--student athletes had already surrendered much of their privacy. The Court also noted that student athletes are often role models in high school, and are especially at risk of physical injury if playing while on drugs.

Vernonia was extended (I think questionably) in Board of Education v. Earls earlier this decade (in 2002). There, the Court by a 5-4 vote allowed a local school board policy on high school drug testing that required each student participating in any extracurricular activity--not just athletics, but also band, choir, or even the Future Farmers of America--to submit a urine sample to be tested.

Was Earls Mistaken? There are Good Reasons to Think So

My co-author Akhil Amar and I wrote for this website, before Earls came down, that we believed the school board policy at issue there was unreasonable, and thus unconstitutional under the Fourth Amendment. We also expressed our view that the case provided the Court with an excellent opportunity to begin to develop a more coherent approach to the Fourth Amendment than it had in the past. I see much the same opportunity in Redding today.

As Akhil and I pointed out, detractors of the reasonableness approach believe it to be too free-form and too underprotective. They fear that without the elaborate categorical constructs of probable cause, individualized suspicion, particularized warrants and the like, the Fourth Amendment's structure and protections will collapse. After all, they say, when courts focus only on reasonableness, the government seems to win, as in Vernonia and Earls.

Akhil and I countered the notion that reasonableness is inherently an unguided and flimsy standard by arguing that the structure of a reasonableness inquiry can and should come from the same sources at work in much other constitutional interpretation—that is, from history, from themes and values that run through the entire Constitution, and from judge-made tests and formulations. Such values involve not just privacy, but also democratic legitimacy, freedom of expression and political participation, personal respect and dignity, just compensation, property protection, due process, equality and the like. Traditional notions of proportionality and nexus--the fit between the government's ends and its chosen means -- are also perfectly legitimately deployed in this realm. Courts have developed and applied tests that explore this fit between means and ends in a wide range of constitutional settings.

Finally, the common sense of the American people -- acting collectively through election results, jury verdicts, community advisory boards, longstanding traditions, and general legal patterns -- will bear on the reasonableness of any government search or seizure. After all, the right that the Fourth Amendment speaks of is a right of the People to be secure.

In Earls, those factors, we believed, should have inclined the Supreme Court to invalidate the drug-testing policy. We cited a number of reasons: Schoolchildren lack the right to participate politically; the process by which the policy came into being was less formal than, say, state or federal legislative lawmaking; the submission of a urine sample was rather embarrassing; the fit between the school's means and ends seemed somewhat loose; and the blanket drug-testing policy was so unusual as to defy, rather than exemplify, the literal common sense of the country.

Why the Plaintiff's Claim in Redding is Even Stronger than the Plaintiff's Claim in Earls

Five Justices disagreed with our bottom line in Earls. But I think the Fourth Amendment claim in Redding is considerably stronger still than the parallel claim in Earls was.

For starters, the search in Redding was more, and very, invasive. Granted, it is debatable whether we call a search in which a student is reduced to manipulating underwear in ways that reveal intimate body parts in order to show the underwear conceals no pills a "strip" search or not. Granted, too, the Court may take into account that the school officials conducting the search of a female student were women, rather than men. Still, the search was certainly a major invasion of bodily privacy, and a much greater one than is a requirement that someone must urinate into a cup, behind a door that is ajar, and then submit a urine sample (the collection procedure in Earls).

Such a search is also a major affront to the student's dignity. This is especially true given the fragile state of the sexual identity and confidence of many, if not most, middle schoolers.

Moreover, the fact that the search singled out Savana alone makes the injury she suffers perhaps greater. As my fellow FindLaw columnist Sherry Colb wrote about Earls, in some ways the fact that all students engaged in extracurricular activities were subject to the drug testing in Earls made the tests there less stigmatic and less traumatic and less subject to discretionary abuse. If and when word of Savana's search makes the round at school (and even if it doesn't), she will have suffered far more than any of the students involved in Earls.

Finally, and importantly, the drugs the detection of which was sought in Earls ran the gamut from pesky to life-threatening. In Redding, the only drug school authorities had any significant reason to suspect Savana of having was 400-milligram ibuprofen -- a drug that could be created simply by combining two non-prescription 200-milligram tablets into a single dose. To be sure, possession of any ibuprofen at school without permission would have violated school policy. Also, possession of the 400-milligram pills constitutes possession of a prescription drug and may very well indicate theft of a prescription drug prescribed for someone else. Nevertheless, it also must be the case that the nature of the drug --like the intrusiveness of the search -- bears on the overall reasonableness of the school's actions. Just as a greater degree of intrusion requires a stronger justification (in terms of the seriousness of the harm the school is trying to avoid) for a search to be reasonable, so too a search for relatively minor drugs reasonably justifies less intrusion than would a search for a deadly drug. Although 400 milligram ibuprofen is a prescription drug, the search in Redding seems somewhat removed from, say, a search for heroin or cocaine.

It is worth noting that the Supreme Court granted the cert. petition filed by the defendant school authorities who lost in the Ninth Circuit, and that is generally not a good sign for a plaintiff who had won in the lower court. But it will be very interesting to see how the case strikes the sensibilities of the Justices, and especially those of Justices Kennedy and Breyer, the two likely swing votes in a controversy like this.


Vikram David Amar is an Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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