Justices to Hear 2 Cases Brought Against Schools

[keith in RI]

Justices to Hear 2 Cases Brought Against Schools

   

Published: January 16, 2009

WASHINGTON — The Supreme Court agreed Friday to decide two cases pitting parents against public schools.


One concerns a 13-year-old honor student who was subjected to a strip search by school officials in Arizona looking for prescription-strength ibuprofen.

The second considers whether public school systems must reimburse parents who choose to send children with disabilities to private school without receiving services from a public program first. The issue may sound familiar, as the court looked at that precise question in 2007, when it found itself in a 4-to-4 deadlock after Justice Anthony M. Kennedy disqualified himself without explanation.

The strip-search case was brought by the mother of Savana Redding, who in 2003 was an eighth-grade student at a public middle school in Safford, Ariz. Another student, found with ibuprofen pills in violation of a strict school policy, said Savana had given them to her.

School officials searched Savana's belongings, made her strip to her bra and underwear, and ordered her, in the words of an appeals court, "to pull her bra out to the side and shake it" and "pull out her underwear at the crotch and shake it." No pills were found. The pills that prompted the search had the potency of two over-the-counter Advil capsules.

A trial judge dismissed the parent's case against the school officials, ruling that they were immune from suit. After a divided panel of the United States Court of Appeals for the Ninth Circuit affirmed that decision, the full appeals court agreed to a rehearing. By 6 to 5, a larger panel of the court reversed the decision, saying the suit could go forward against the assistant principal who had ordered the search.

"It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude," Judge Kim McLane Wardlaw wrote for the majority, quoting a decision in another case. "More than that: it is a violation of any known principle of human dignity."

Judge Michael Daly Hawkins, dissenting, said the case was in some ways "a close call," given the "humiliation and degradation" Savana had endured. But, Judge Hawkins concluded, "I do not think it was unreasonable for school officials, acting in good faith, to conduct the search in an effort to obviate a potential threat to the health and safety of their students."

"I would find this search constitutional," he wrote, "and would certainly forgive the Safford officials' mistake as reasonable."

In an aside, he discounted Savana's school record. "Unless we think that the Fourth Amendment gives greater protection to good test takers," he added, "there is only so much weight we can give to Redding's honor-student status."

In its brief urging the Supreme Court to hear the case, Safford Unified School District v. Redding, No. 08-479, the school district said requiring "probable cause for some searches in the school setting that may be deemed more intrusive" created "a roadblock to the type of swift and effective response that is too often needed to protect the very safety of students, particularly from the threats posed by drugs and weapons."

The second case, Forest Grove School District v. T.A., No. 08-305, appears to present precisely the same question over which the Supreme Court deadlocked two years ago in a case brought by Tom Freston, former chief executive of Viacom: Does the Individuals With Disabilities Education Act, a federal law, allow courts to make school districts pay for private special education when the students in question have not first received services from a public agency?

In the new case, the parents of a high-school junior in Forest Grove, Ore., identified only as T.A., moved him in 2003 to a residential private school after he experienced emotional and educational difficulties, some relating to drug use. The parents sought reimbursement for $5,200 a month in private-school tuition.

The disabilities law allows courts to require reimbursement for students who have "previously received special education and related services under the authority of a public agency." T.A.'s parents conceded that they had not received such services.

A divided three-judge panel of the Ninth Circuit said strict adherence to the wording of the statute would lead to an "absurd result" in cases where the school district was uncooperative or could not supply appropriate special education.

It is not clear whether the circumstances that led Justice Kennedy to disqualify himself from the Freston case in 2007 have changed. But the court's order Friday accepting the new appeal did not indicate any recusals.

[David]

"It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude," Judge Kim McLane Wardlaw wrote for the majority, quoting a decision in another case. "More than that: it is a violation of any known principle of human dignity."

I am glad to hear this. 

[Pat McCotter]

The Supremes will be hearing this April 21.

Strip-Search of Girl Tests Limit of School Policy
By ADAM LIPTAK
Published: March 23, 2009

SAFFORD, Ariz. — Savana Redding still remembers the clothes she had on — black stretch pants with butterfly patches and a pink T-shirt — the day school officials here forced her to strip six years ago. She was 13 and in eighth grade.

Savana Redding, 19, was strip searched six years ago when teachers suspected she had brought prescription pills to school.

An assistant principal, enforcing the school's antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.

The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, "they asked me to pull out my bra and move it from side to side," she said. "They made me open my legs and pull out my underwear."

Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21.

The case will require the justices to consider the thorny question of just how much leeway school officials should have in policing zero-tolerance policies for drugs and violence, and the court is likely to provide important guidance to schools around the nation.

In Ms. Redding's case, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that school officials had violated the Fourth Amendment's ban on unreasonable searches. Writing for the majority, Judge Kim McLane Wardlaw said, "It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights."

"More than that," Judge Wardlaw added, "it is a violation of any known principle of human dignity."

Judge Michael Daly Hawkins, dissenting, said the case was in some ways "a close call," given the "humiliation and degradation" involved. But, Judge Hawkins concluded, "I do not think it was unreasonable for school officials, acting in good faith, to conduct the search in an effort to obviate a potential threat to the health and safety of their students."

Richard Arum, who teaches sociology and education at New York University, said he would have handled the incident differently. But Professor Arum said the Supreme Court should proceed cautiously.

"Do we really want to encourage cases," Professor Arum asked, "where students and parents are seeking monetary damages against educators in such school-specific matters where reasonable people can disagree about what is appropriate under the circumstances?"

The Supreme Court's last major decision on school searches based on individual suspicion — as opposed to systematic drug testing programs — was in 1985, when it allowed school officials to search a student's purse without a warrant or probable cause as long their suspicions were reasonable. It did not address intimate searches.

In a friend-of-the-court brief in Ms. Redding's case, the federal government said the search of her was unreasonable because officials had no reason to believe she was "carrying the pills inside her undergarments, attached to her nude body, or anywhere else that a strip search would reveal."

The government added, though, that the scope of the 1985 case was not well established at the time of the 2003 search, so the assistant principal should not be subject to a lawsuit.

Sitting in her aunt's house in this bedraggled mining town a two-hour drive northeast of Tucson, Ms. Redding, now 19, described the middle-school cliques and jealousies that she said had led to the search. "There are preppy kids, gothic kids, nerdy types," she said. "I was in between nerdy and preppy."

One of her friends since early childhood had moved in another direction. "She started acting weird and wearing black," Ms. Redding said. "She started being embarrassed by me because I was nerdy."

When the friend was found with ibuprofen pills, she blamed Ms. Redding, according to court papers.

Kerry Wilson, the assistant principal, ordered the two school employees to search both students. The searches turned up no more pills.

Mr. Wilson declined a request for an interview and referred a reporter to the superintendent of schools, Mark R. Tregaskes. Mr. Tregaskes did not respond to a message left with his assistant.

Lawyers for the school district said in a brief that it was "on the front lines of a decades-long struggle against drug abuse among students." Abuse of prescription and over-the-counter medications is on the rise among 12- and 13-year-olds, the brief said, citing data from the Office of National Drug Control Policy.

Given that, the school district said, the search was "not excessively intrusive in light of Redding's age and sex and the nature of her suspected infraction."

Adam B. Wolf, a lawyer with the American Civil Liberties Union, which represents Ms. Redding, said her experience was "the worst nightmare for any parent."

"When you send your child off to school every day, you expect them to be in math class or in the choir," Mr. Wolf said. "You never imagine their being forced to strip naked and expose their genitalia and breasts to their school officials."

In a sworn statement submitted in the case, Safford Unified School District v. Redding, No. 08-479, Mr. Wilson said he had good reason to suspect Ms. Redding. She and other students had been unusually rowdy at a school dance a couple of months before, and members of the school staff thought they had smelled alcohol. A student also accused Ms. Redding of having served alcohol at a party before the dance, Mr. Wilson said.

Ms. Redding said she had served only soda at the party, adding that her accuser was not there. At the dance, she said, school administrators had confused adolescent rambunctiousness with inebriation. "We're kids," she said. "We're goofy."

The search was conducted by Peggy Schwallier, the school nurse, and Helen Romero, a secretary. Ms. Redding "never appeared apprehensive or embarrassed," Ms. Schwallier said in a sworn statement. Ms. Redding said she had kept her head down so the women could not see that she was about to cry.

Ms. Redding said she was never asked if she had pills with her before she was searched. Mr. Wolf, her lawyer, said that was unsurprising.

"They strip-search first and ask questions later," Mr. Wolf said of school officials here.

Ms. Redding did not return to school for months after the search, studying at home. "I never wanted to see the secretary or the nurse ever again," she said.

In the end, she transferred to another school. The experience left her wary, nervous and distrustful, she said, and she developed stomach ulcers. She is now studying psychology at Eastern Arizona College and hopes to become a counselor.

Ms. Redding said school officials should have taken her background into account before searching her.

"They didn't even look at my records," she said. "They didn't even know I was a good kid."

The school district does not contest that Ms. Redding had no disciplinary record, but says that is irrelevant.

"Her assertion should not be misread to infer that she never broke school rules," the district said of Ms. Redding in a brief, "only that she was never caught."

Ms. Redding grew emotional as she reflected on what she would have done if she had been told as an adult to strip-search a student. Dabbing her eyes with a tissue, she said she would have refused.

"Why would I want to do that to a little girl and ruin her life like that?" Ms. Redding asked.