Justices fail to get strip-search case

In hearing arguments on the strip search of an eighth-grader suspected of carrying ibuprofen, the Supreme Court takes failing to get it to a new level, writes Dahlia Lithwick in Slate. The male justices saw the strip search — conducted without informing Savanna Redding’s parents — as no big deal.

And even if you were never a 13-year-old girl yourself, if you have a daughter or niece, you might see the humiliation in pulling a middle-school honor student with no history of disciplinary problems out of class, based on an uncorroborated tip that she was handing out prescription ibuprofen. You might think it traumatic that she was forced to strip down to her underclothes and pull her bra and underwear out and shake them in front of two female school employees. No drugs were found.

In a 1985 case involving searching students’ purses for marijuana, the Supreme Court ruled that a search cannot be “excessively intrusive in light of the age and sex of the student and the nature of the infraction.” The standard for intrusiveness has fallen dramatically, Lithwick writes.

Adam Wolf, the ACLU lawyer who represents Redding, explains that “the Fourth Amendment does not countenance the rummaging on or around a 13-year-old girl’s naked body.” Wolf explains that he is arguing for a “two-step framework,” wherein schools can use a lower standard to search “backpacks, pencil cases, bookbags” but a higher standard when you “require a 13-year-old girl to take off her pants, her shirt, move around her bra so she reveals her breasts, and the same thing with her underpants to reveal her pelvic area.”

This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to “change into a swimming suit or your gym clothes,” because, “why is this a major thing to say strip down to your underclothes, which children do when they change for gym?”

. . . “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.”

Shocked silence, followed by explosive laughter. In fact, I have never seen Justice Clarence Thomas laugh harder. Breyer tries to recover: “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.”

Interesting . . . But surely not relevant.

If he were a principal, said Justice David Souter, he “would rather have the kid embarrassed by a strip search … than have some other kids dead because the stuff is distributed at lunchtime and things go awry.”

Ibuprofen (the drug in Advil) is an over-the-counter drug often taken by teen-age girls to control painful menstrual cramps.  It does not “go awry” and kill the unwary.

After the search, Redding transferred to another school.  Once an honor student, she dropped out of high school with a bleeding ulcer, unwilling to explain her absences to the school nurse who’d supervised the search. She failed to complete an alternative program, but won admission to college by passing an entrance exam. Now 19, Redding was asked on the courthouse steps what she’d have wanted the school to do differently, Lithwick writes. “Call my mom first,” she says.

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  1. I think Dalia Lithwick doth protest too much. If you read Supreme Court transcripts regularly, you will know that the Justices routinely joke around with eachother and counsel. That doesn’t mean they don’t take the issues seriously. In part it’s actually their way of making attorneys more comfortable who most likely have never appeared before them before and are stressed out of their minds.

    Moreover, the “hot” Justices, i.e., the ones who actually ask lots of questions from the bench during oral arguments, like Breyer, are prone to asking very probing and critical questions even about, and even especially about, the positions they are inclined to support. Doing so draws out further ammunition for them to use in their own opinions, whether for the Court or in concurrence or dissent.

  2. Jay dean says:

    I had understood from the quoted portion above that the tip was about prescription ibuprofen. Is that simply an error? Isn’t the rationale behind prescriptions that they are more dangerous and need careful explanation of how to take the medication safely and correctly? A search for ibuprofen overdose reveals that it is a common problem ever since ibuprofen became available over the counter in 1984. Since this search took place just six years ago, that’s nearly twenty years of overdose problems with the over the counter version. A presumably stronger prescription version seems likely to be even more dangerous. The search does seem unreasonable, but the concern that things might “go awry” does not.

  3. Devilbunny says:

    Ibuprofen is available over the counter. “Prescription” ibuprofen is nothing but the same drug in higher dose – in fact, I’ve often told patients they could have a prescription for ibuprofen, or achieve the same results by taking four OTC pills thrice a day.

    They generally elect the cheaper OTC route.

    These are basically brain-dead regulations. I’m a doctor; I know damned well which meds have any potential to get you high. (Not that you’d want to: the classic example of the unsuspected-by-parents high is dextromethorphan, a cough suppressant, which can produce PCP-like effects in high doses if it’s not combined with something else. PCP, coincidentally, is the one drug that HUNTER S. FREAKING THOMPSON says he wished he’d passed on.)

    This is a gross abuse of power over what is a trivial potential for harm. It’s hardly the schools’ place to prevent people from overdosing on medications – with Advil it’s pretty harmless, while with Tylenol it can easily be fatal. It’s the parents’ place, and the doctors’ place, and the students’ place, but it’s no more the school’s than the workplace’s. Or would you prefer that your employer be allowed to strip-search you for Advil?

  4. First of all, the 9 buffoons who make up the USSC should be drug tested themselves. I’d imagine that at least 30% of the federal judiciary would test positive for prohibited substances while on the bench issuing rulings and making what amounts to tainted law.

    If the judges cannot take issues seriously, perhaps they should find another line of work so that no one will have to take THEM seriously.

    Absolutely pathetic.

  5. Reason #368 why I’m going to homeschool.

    Changing in a locker room at 13 is HUGELY different:

    1. There were no adults watching/ordering.
    2. We all turned our backs to each other as much as possible.
    3. We avoided looking at each other.
    4. Most girls showered with a small towel for coverage.
    5. It was with your peers, not an adult.
    6. You all had to undress, so you were all on equal footing and didn’t feel awkward later. This does not work if a fully clothed person sees you naked!
    7. It was routine, not a scary “we might call the police if you have drugs” and “won’t let you call your parents” situation.
    8. You would definitely tell on some freaky girl who messed with your underwear!

    I would have changed schools immediately. And sued. And apparently lost. This is ridiculous.

  6. Anonymous says:

    Holy God, my kids will NEVER go to a public school. Absolutely sickening!

  7. Somewhere the argument was made that strip-searching the girl was OK because it “made students safer.”

    By that logic, they should do mandatory strip searches on EVERY kid, EVERY morning. Let’s see how the American public accepts that.

    I remember being 13. Had I been strip-searched like this at school? I would nearly have DIED of embarrassment. I realize the Supremes were joking around, but there’s a giant difference between 13 year old boys and 13 year old girls in re: modesty and screwing around with other people’s underwear.

  8. The whole point of “zero tolerance” isn’t the safety of the students but of the employees. Absolved of the responsibility to exercise judgment there’s no possibility of judging incorrectly hence no possibility of repercussions from judging incorrectly.

  9. School officials should NOT have the power to do strip searches anyway for any reason! Period. No exceptions. This type of thing should be left to the police for offenses other than posession of a legal, non-habit forming pain medication It’s silliness. Did they honestly think that a 13 y/o girl would hide Advil in her bra or panties? That’s what happens when you give too much power to those who don’t have enough common sense to fill a thimble.

    Jay said; “The search does seem unreasonable, but the concern that things might “go awry” does not.”

    She was not found guilty of distributing her medication to other students – there was an unproven claim that she did and the motives of the finger-pointer have never been questioned? Since when does a rumor automatically prove guilt – especially from what sounds like a model student?

    Oh, and I totally agree with Bill.

  10. My point was not that the girl was a criminal or was found guilty of anything. My point was that if a school official has a report that a 13 year old student has or is distributing a form of medication, and it is medication for which overdose among presumably mature adults is a common problem, and that a 13 year old providing the medication cannot be expected to know the possibility of some sort of allergic reaction in a student who might have been given the medication, it is not unreasonable for that school official to have a concern about some possible bad outcome.

  11. Y’know, the constitutional prohibition against ‘unwarranted search and seizure seems to have been drawn tighter. Again.

  12. the lawyer Wolf was unwilling to deadpan “Judge Breyer, we have a tip that you have given out prescription medication. Please strip search. Now.”

  13. JADOG, CWP (ok to contact JADOG) says:

    RESENT ATTEMPT 1937 -0400 SATURDAY 25 APRIL 2009


    I’ll be glad to send the three URL’s I have that takes one directly to:

    1. The article Sherry F. Colb, Esq. wrote for FindLaw’s Writ in 2003 about strip searches;
    2. An excellent summary of the issues plus the CCA-9 3-member panel and 11-mamber en banc decisions, latter 6-5 for Redding;
    3. The merit briefs of Petitioner School District, et al., Redding, amicus briefs urging reversal and affirmance plus 78 page oral argument transcript.

    You’ll can do this on your own, but I went into the sites to obtain URL’s for direct access. Total pdf pages = 519

    There ARE scenarios justifying strip searches and even orifice searches!

    REDDING most emphatically is not and was not one of them.

    The search of her back pack WAS reasonable.

    Where this case went disastrously downhill was that Mr. Wilson was apparently, HO (hopelessly obtuse) or had a complete absence of common sense. Mr. Wilson is the assistant principal who ordered the female staff to perform the strip-search.

    Thank God our adult children went to private school 1-12! Our son taught at a private Roman Catholic school (our family is all non-RC) and he made it into Who’s Who for teachers.

    As soon as Redding denied having medication, Mr. Wilson ought to have recognized the conflict in milliseconds.

    1. He should have excused himself from the room and asked Ms. Redding to please wait for his return (asking and using please tends to instill civility into kids). There were staff who could observe Redding until he returned.

    2. He should have immediately found Redding’s accuser and brought her to the room where Redding, et al. were waiting.

    3. He should have had the two girls sitting where they had good eye contact between them, then explained something along the lines of:

    “Young ladies, we have a problem and please help me out on this. Ms. X says Ms. Redding gave her the ibuprofen. Ms. Redding says she did not give Ms. X the ibuprofen. I’m sure you two are wise enough to realize that both versions cannot be concurrently accurate.

    “As a kindness, I’m going to allow you two to decide HOW to resolve the conflict. I’ll be a tiebreaker if need be.
    “(A) We’ll solve this here and now withOUT your parents present;
    “(B) We’ll solve this here and as soon as possible WITH your respective parents present.
    “It’s your call, young ladies, SELECT.”

    I, dumb as I am, with no teaching or administrative degree, speculate that there would have been no need for a strip search, nor any law suit.

    If, I say “IF” a search would have become necessary, a quick call to Ms. Redding asking for her presence at the school, followed by (2) her permission to search and (2) her presence during the search.

    My spouse, an “active” Martindale “AV” attorney who almost camps out in juvenile court and an “inactive” attorney, mother of three, agree with my proposed protocol.

    It would have been IO (Inappropriately Outrageous) for the younger Redding to volunteer, “Search all you want, however, concurrently with my Dad’s search of student Ms. X and staff members Ms. Y and Z; along with my Mom’s search of Mr. Wilson!”

    Oh, yes. The strip/cavity search. If, I say IF, Ms. Redding had killer strength medicine, weapons, explosives, etc. Yes, on the strip. We’re she suicidal with explosives concealed in lower orifice canals, yes on the cavity search provided there was probable cause furnished by a reliable source who had heard Ms. Redding threaten to conceal and cause harm, or had witnessed Ms. Redding conceal the harmful contraband.

    FWIW, it is possible to OD on hydrogen hydroxide, yep, plain water. I’ve worked a death claim on a child who OD’d on water. Our local pathologists have performed autopsies on adults who OD’d on water. One can OD on NALC (salt). Ask any forensic pathologist or toxicologist.

    I’m not medically trained, I know little of pharmokinetics, am not an attorney, law clerk, legal assistant or paralegal. My age 69+ years young spouse of over 509 months at times claims I too lack common sense; but she too is livid over the egregious abuse upon Ms. Redding. And she would have said “No, I want to go home,” were she to have suffered such a threat of abuse

    I’m JADOG, CWP (Just A Dumb Old Guy, Curmudgeon Without Portfolio

    You may send love/hate communications to JADOG (at) Safe-mail (dot) net

    🙂 For address where you can send cases of Trader Joe’s low cost cabernet or cases of George Dickel top quality TN sour mash whisky, please contact JADOG (at)Safe-mail (dot) net for shipping instructions 🙂

    Friday, April 24, 2009 1:55 pm EDT (SUMBIT FAILED)