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 girl accused of having prescription-strength ibuprofen.
Savana Redding was 13 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 an "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 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. "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 actions, such as body cavity searches. "There would be no legal basis in saying that was out of bounds," Souter said.
When Wright said school personnel are "not even clinically trained to do that," Souter interjected: "OK, we're going to have classes in body cavity searches," and wondered whether that would qualify school personnel to go that far.
Souter also seemed incredulous when told that all drugs are a threat to students, even ibuprofen. "Why should we accept that blanket assumption?" he said. "At some point it gets silly."
Much of the back and forth was in search of some clarity on whether there is a different standard — and a different sense of urgency — if schools suspect students have a drug like ibuprofen or whether they're hiding cocaine or heroin. Souter called it "a sliding scale of risk."
Justice Antonin Scalia wondered whether schools would be justified doing strip searches for "any contraband, like the black marker pencil?"
Wright suggested that they might, since students sniff marker pens.
"They sniff them?" Scalia asked.
"I'm a school lawyer," Wright said. "That's what kids do, your honor, unfortunately."
"Really?" Scalia said.
Justice Stephen Breyer asked whether it would have been more reasonable to have Savana simply change into a gym suit or bathing suit instead of being strip-searched. If students have contraband and know that the school is looking for it, he said, they'll naturally try to hide it under their clothes.
Remembering back to his own school days, he said that "people did sometimes stick things in my underwear — well not MY underwear." The courtroom burst into laughter.
Interest in the case is high, not only among school groups but among students. A line of people hoping to watch Tuesday's proceedings snaked to the end of the block and appeared about one-third young people.
Among the first on line: a group of students from Monta Vista High School in Cupertino, Calif., who came to Washington to hear the case and visit members of Congress. The 24 students and their two teachers lined up at 4 a.m. to get seats.
"What I'm really interested in is what constitutes a reasonable search and seizure, and to what extent can school administrators infringe on the right to privacy?" said Vivek Jha, 17.
The 1985 case, he and others said, was problematic.
"That seems to me that you're basically lowering the standard a lot," Kiran Kankal said.
Kunal Nagpal said schools maintain they do such searches to protect students and maintain an educational environment, but he has problems with that. "Strip searching on campus wouldn't preserve that educational environment."
"It just promotes fear," Kankal added.
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. "I'm a little kid. I don't know anything about how this should be handled, but I'm sure that my mother would. And she wasn't there to help me out, so I basically just did what they told me because that's how you're raised, you know, to follow your authority figures, do what they tell you to do — especially the school."
Asked whether she still suffered from long-term effects of the search, she said, "I have a hard time talking to people, as you can see, and making new friends. Trusting people, that's very hard."
Contributing: Greg Toppo and the Associated Press.