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Safford United School District v. Redding:
Tomorrow the Supreme Court will hear oral argument in Safford United School District v. Redding, a Fourth Amendment case involving an 8th grader who was strip-searched for prescription drugs believed to have been wrongly brought to school. The lower court opinion is here; Petitioner's brief is here; the Respondent's brief is here; and the amicus brief of the United States is here.

  Although I generally try to follow all the Supreme Court's Fourth Amendment cases pretty closely, this is the kind of case that I find easy to ignore. As a general rule, I find Fourth Amendment "special needs" cases really boring. The law expressly requires the Court to apply a general Fourth Amendment balancing of interests, which isn't analytically very interesting: You just have a vote around the table for who thinks the government should be allowed to do that, and whichever side gets to 5 is the winner. There isn't a lot to it.

  Anyway, my prediction is that the Supreme Court will agree with the Ninth Circuit that the strip searches here are unconstitutional. A majority will conclude that a strip search is far more invasive than a search of property like a locker, and that the school couldn't submit the student to such a humiliating and invasive search in these circumstances without good reason to think the banned items would be there. I would agree with that conclusion, I should add: I think the school's conduct was plainly unreasonable.

  The trickier question to me is whether qualified immunity should nonetheless apply. The QI test is so context-sensitive that answer that that would require a closer look at the lower court cases than I have interest in providing. Finally, I would expect the Court to reach the merits in this case: Even though the Court now has the discretion to reach the qualified immunity issue without addressing the Fourth Amendment merits, see Pearson v. Callahan, I would think they will reach the merits given the importance of the question.
Daryl Herbert (www):
Why is the Supreme Court hearing argument on this?

Is there a circuit split?

Is there really a circuit out there that is in favor of allowing young girls to be strip searched on extremely weak grounds?

Or are the Supreme Court justices just dirty old men?
4.21.2009 1:34am
OrinKerr:
Daryl,

Did you read the cert petition before asking your questions?

If not, why not?

If you did read it, why do you still have these questions?
4.21.2009 1:44am
Monty:
Why... why didn't the district settle this a long time ago? There are so many problems with what went on here, from the reliability of the information, to how minor the alleged conduct of the student, to the gross over-reaction. The best way to protect the authority of the school officials would have been to cut bait and run (settle/stop appealing), rather than letting this horrible case get to the SCOTUS
4.21.2009 1:55am
Seattle Law Student (mail):
I like how in the link provided above by OrinKerr, the school referred to Ibuprofen as IBU 400's. I guess calling them IBU 400s makes them sound like an illicit party drug, whereas calling them Advil makes them sound like a mild analgesic.
4.21.2009 2:19am
Daryl Herbert (www):
What a badly-written cert petition.

How about this: "The result was any parent's or educator's worst nightmare--a near fatality"

If a nonfatality is the "worst" nightmare, does that mean a fatality is a lesser nightmare? Or is a fatality so unthinkable that school officials don't even experience a simulation of it when they are sleeping? It never happens in their nightmares, I suppose.

"School staff also noticed the distinct stench of alcohol that followed these students around."

They smelled like alcohol--no, that's too accurate and descriptive. They have a "stench" that "followed" them around. What is this, a true crime novel?

Romero and Redding entered the nurse's office, and Romero closed and secured the door to prevent anyone from walking in on them. The only other person in the nurse's office, Schwallier, was also female. Romero started by asking Redding to remove her shoes and socks. She then asked Redding to remove her shirt and pants. Finally, Romero asked Redding to pull and shake her bra band as well as the elastic of her underwear. All of this was done without anyone touching Redding.

As soon as Romero was able to confirm that
Redding did not have any pills, she immediately
returned her clothes so that she could get dressed.


So the brief doesn't even allege that the girl was never touched. It merely alleges that she wasn't touched until after the step of requiring the girl to shake her bra band and the elastic strap of her underwear.

It's ambiguous as to what happens between that, and Romero's being able to ascertain that Redding had no pills. Did Romero stick her hand up any of the girl's orifices? We aren't told. The brief is unclear.

Like I said: extremely poorly written. Or perhaps deliberately obscuring the truth.

"All of this driving up to the book depository was done without Lee Harvey Oswald ever shooting at JFK. As soon as Lee Harvey Oswald was able to confirm that JFK was dead, he put down his rifle."

"Up until August 5, 1945, the entire U.S. war effort against Japan was waged without ever using nuclear weapons. As soon as Japan surrendered, the U.S. stopped bombing Japan."

And the brief even uses the word "utilizes." Ugh. What does that word mean, anyway? "Uses, but like, uses with expertise, you know?"

Anyone who "utilizes" that word should be punchilated in the gonads. That's like punching, but for some vague, inexplicable reason, more painful.

I'm sorry I read that thing.
4.21.2009 2:53am
OrinKerr:
Daryl,

If you would like to comment here, please keep it civil: Writing that someone should be "punchilated in the gonads" for using a particular word is not civil. Given your professed interest in good legal writing, I trust you will not find it difficult to meet our civility standards.
4.21.2009 3:00am
Avatar (mail):
Without necessarily endorsing Daryl's propensity to throw punches below the belt, I also found the cert petition to be... unnecessarily florid. Contrast the US amicus brief, which describes the same events in straightforward fashion. I can't imagine that counsel for the petitioner actually thought that the court would appreciate their literary style.

So what else can I conclude, other than that I'm seeing an attempt to exaggerate the oh-so-scary dangers of rogue over-the-counter painkillers while glossing over the... Honestly, I don't have words to describe how ill-advised the decision that the school officials took in this case, at least none that our hosts would appreciate.
4.21.2009 5:15am
PDXLawyer (mail):
Agreed that the cert petition was florid. But was it unnecessarily so? After all, the cases on the Fourth Amendment in schools have two different strands which are in such tension that the only possible resolution is a flight from clear expression. On the one hand, schoolchildren are everybody's precious darlings. On the other hand, they are entitled to no more actual privacy than prison inmates.

Based on the Vernonia case, I expect the Court to reverse. An honest headline summary would be "Court OKs Strip Searching Teen for Aspirn." Confusion may be the petitioner's best strategy.
4.21.2009 7:25am
Just Dropping By (mail):
I don't know what the majority ruling will be, but I can easily guess where Alito's vote will go.
4.21.2009 8:37am
Downfall:
You just have a vote around the table for who thinks the government should be allowed to do that, and whichever side gets to 5 is the winner. There isn't a lot to it.

Is this different in substance from other constitutional law decisions, or just in how obvious it is? I'm a practicing lawyer and, on those rare occasions when I do have to worry about constitutional law, it always feels like I'm reading dozens of pages of platitudes and generalities, including a healthy dosage of trying to apply the platitudes and generalities of previous courts. Compared to how rigorous and consistent statutory interpretation generally is, I always come away surprised.
4.21.2009 8:47am
Fury:
Avatar:

"Honestly, I don't have words to describe how ill-advised the decision that the school officials took in this case, at least none that our hosts would appreciate."

Indeed. Does the school district have a policy describing under what conditions a is search warranted and a rule that outlines how to conduct the search? Without school policies approved by a governance body (Board of Education), the district appears, well, inept The Assistant Principal was involved in the matter, but where was the building level principal? Superintendent? Board of Education?

Not sure how the case will go, but regardless, the school should have policies that clearly stipulate the criteria for conducting searches and the procedures for conducting searches. Shame on the Board of Education for not having such a policy, if they do not.

Disclosure - I serve on a Board of Education.
4.21.2009 8:53am
gasman (mail):

Issue: Whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy.

So the plain text of the issue declares this to be an issue of prescription drugs. The drug in question is ibuprofen, a non-prescription drug.

And understanding the difference is not a matter of esoteric medical knowledge; no doubt every one of the strippers had personally purchased ibuprofen over the counter and must have known that it was non-prescription.
If we really have an ibuprofen problem in our communities, why can 13 year olds buy it, posses it, and use it and even distribute it everywhere else but at school.
4.21.2009 9:03am
alkali (mail):
There is such a thing as prescription ibuprofen. The OTC variety has 200mg of ibuprofen per tablet; the prescription version can have 400mg or 800mg per tablet. You may need more ibuprofen if you are in serious pain (for example, if you are so unlucky as to be punchilated in the gonads). The prescription version was apparently at issue here.
4.21.2009 9:14am
Anon23:

So the plain text of the issue declares this to be an issue of prescription drugs. The drug in question is ibuprofen, a non-prescription drug.

I believe the pill found on another student was a "prescrition-strength" ibuprofin. Now, I've always thought that to be a pretty silly distinction in the case of OTC medications, but ibuprofin does come in non-prescription and prescrition versions
4.21.2009 9:14am
common sense (www):
This is one of those public outrage cases. I wonder if, assuming the justices felt that the school officials were in the right, they would be willing to rule in their favor? The long term hit to the public confidence in the Court might not be worth correcting this particular case.
4.21.2009 9:29am
jb (mail):
alkali - What's the difference between taking one prescription ibuprofin and two (or four) OTC?

Also, count me with the appalled above. Anyone who thought this was a good idea should be kept away from children.
4.21.2009 9:33am
Uh_Clem (mail):
ibuprofin does come in non-prescription and prescrition versions

True, and to get the dosage in the prescription version you'd need to take two over-the-counter pills. Obviously, for schoolchildren taking two otc pills is a very difficult task so they have to get it from their pusher.
4.21.2009 9:37am
Gabriel McCall (mail):
You just have a vote around the table for who thinks the government should be allowed to do that, and whichever side gets to 5 is the winner. There isn't a lot to it.


We could use this text to replace Article III in its entirety.
4.21.2009 9:55am
alkali (mail):
alkali - What's the difference between taking one prescription ibuprofin and two (or four) OTC?

None -- they are chemically identical

I was prescribed IBU 800 a couple years ago when I wrenched my back -- they are quite large -- it wasn't until I had wasted time going to CVS to fill the prescription that I realized that I could just have taken 4 Advil (200mg each)
4.21.2009 9:57am
sobi:
How can we expect the next generation to respect the constitution if it doesn't apply to them during their forming years? Why should they be bound by such a document?

I understand that the young must accept certain rules that they will escape once 18, but the constitution is different. It isn't binding their youthful behavior, it is binding how others treat them.

I also seriously object to the idea that school officials are given grants of authority to perform something called a strip search. Even a parent who behaves in such a manner is suspect for judgment.

When are the young supposed to understand the nuances of when they truly belong to themselves if they don't.
4.21.2009 10:12am
Steve:
It was disappointing to see Kozinski join the dissent in this case. But I guess he believed that the nature of the substance is irrelevant, and thus any rule promulgated by the court would necessarily apply to searches for guns or cocaine as well.

I do think the dissent had a valid point that this case fails to give much guidance to school officials, but at some point you simply have to decide the case before you and not worry about "guidance." If the only way to provide clear guidance is to have an absolute bright-line rule that no search will be ruled impermissible, ever, then I guess the schools may have to do without clear guidance.
4.21.2009 10:13am
GA Onlooker:
Common sense is correct. This is a case fraught with PR downsides for the Court, as was Kelo. The potential headlines, should they reverse, will be salacious and average parents will be outraged. Even a ruling of unconstitutional on the merits while finding QI will be hard to warmly characterize in a headline. Try this: "Court says no to student strip searches, excuses official" Even that will likely rile folks.

Fury, our BoE member was right. Why is there not a policy? Why in the world would you not call parents before doing something like this?
4.21.2009 10:21am
Prosecutorial Indiscretion:
Writing that someone should be "punchilated in the gonads" for using a particular word is not civil

I have visions of a Senator citing this quote with approval at some future confirmation hearing.
4.21.2009 10:27am
BeachBumBill (mail):
Here is an interesting nugget from the petitioners brief:

"REDDING TOUTS HER DISCIPLINE-FREE RECORD. ACCORDINGLY, HER ASSERTION SHOULD NOT BE MISREAD TO INFER THAT SHE NEVER BROKE SCHOOL RULES, ONLY THAT SHE WAS NEVER CAUGHT."

It would appear that these folks think everyone is guilty, but not everyone has been caught.
4.21.2009 10:31am
Cornellian (mail):
Why is there not a policy? Why in the world would you not call parents before doing something like this?

I suppose even the typical school administrator is probably smart enough to realize the conversation is unlikely to go like this:

School official: Hey we suspect your kid has some prescription ibuprofen on her. Mind if we strip search her?

Parent: Hey, great idea, go right ahead.

Or maybe they're pinning their hopes on the old principle that it's easier to get forgiveness than permission though I suspect this case may turn out to be the exception.
4.21.2009 10:33am
ruuffles (mail) (www):

This is a case fraught with PR downsides for the Court, as was Kelo. The potential headlines, should they reverse, will be salacious and average parents will be outraged.

Sort of a reverse-Warren situation isn't it? Public was outraged at criminals getting off on technicalities, Nixon and Reagan get their ammo to call for strict constructionists. Now that the Roberts court is deciding cases like Ledbetter and this one, you have very sympathetic plantiffs being mistreated by companies and school districts. No way Obama could have gotten away with the lines about "judging from the heart" and "ordinary folks" without Ledbetter.
4.21.2009 10:48am
krs:
Daryl, is that Lee Harvey Oswald stuff in the cert petition?
4.21.2009 11:07am
byomtov (mail):
What's the difference between taking one prescription ibuprofin and two (or four) OTC?

No difference, except the prescription stuff is likely much cheaper.
4.21.2009 12:40pm
jviss (mail):
"There is such a thing as prescription ibuprofen. The OTC variety has 200mg of ibuprofen per tablet; the prescription version can have 400mg or 800mg per tablet. You may need more ibuprofen if you are in serious pain (for example, if you are so unlucky as to be punchilated in the gonads). The prescription version was apparently at issue here."

There is probably also such thing as prescription water, salt water (saline), aspirin, and anything else a doctor might write a prescription for, including sugar-pills (placebo). Note, however, that there IS non-prescription 400 mg Ibuprofen, such as Advil Extra Strength:

"Advil Extra Strength offers you the maximum pain relieving power available without a prescription. Advil Extra Strength provides a full 400mg of Advil's advanced pain relieving ingredient (ibuprofen), in one easy to swallow caplet. In fact, Advil Extra Strength is so effective, the dosage is always just one caplet." (from http://www.advil.ca/content/advil/escaplets.asp).

I see this situation as being emblematic of the hysterical left in education. There is a troubling tone in the brief, as pointed out in an earlier comment: "REDDING TOUTS HER DISCIPLINE-FREE RECORD. ACCORDINGLY, HER ASSERTION SHOULD NOT BE MISREAD TO INFER THAT SHE NEVER BROKE SCHOOL RULES, ONLY THAT SHE WAS NEVER CAUGHT." My goodness, if these people are sincere in this then we have a very serious problem. If they are simply throwing everything in to defend their unconscionable act, they are reprehensible.

I'm sick of my children being treated in school as inmates in a prison, with a presumption of evil intent, and guilt.

p.s. "punchilated in the gonads" was the funniest thing I've read in days, and I think we can tolerate some obviously harmless and minor transgression of the civility policy in the name of good fun.
4.21.2009 1:06pm
Eli Rabett (www):
This is a stupid case. The Asst. Principal should have been fired. The nurses disciplined.
4.21.2009 1:14pm
jviss (mail):
And another thing...

... since when do school teachers and school administrators have what amount to police powers? When did this happen? I confess ignorance on this, but I find it alarming. I went to private Catholic schools, and sent most of my kids to a private high school; there is a clear understanding, indeed, a written agreement, that you will allow the school to subject your children to certain discipline when the situation warrants, at the discretion of the school, or you are free to not attend, or withdraw.

I think public schools are different. They are owned and administered by the people, and the teachers and administrators are all public employees.

I would like to know where, when, and how the teachers and administrators acquired police powers.

I know it's beside the point of this topic, so sorry about that.
4.21.2009 1:16pm
Seattle Law Student (mail):
JVISS -

What do you mean by "I see this situation as being emblematic of the hysterical left in education."

How is this emblematic of the left wing, hysterical or otherwise? This would seem to be emblematic of the "What About The Children" fools who exist across the political spectrum.
4.21.2009 1:19pm
DennisN (mail):
@jviss


"punchilated in the gonads" was the funniest thing I've read in days, and I think we can tolerate some obviously harmless and minor transgression of the civility policy in the name of good fun.


Particularly since we're going to beatilate Daryl over the head with it for the duration of the thread. You just can't let a good line go to waste.

{WHACK}

Owwww!
4.21.2009 2:00pm
Eli Rabett (www):
You prefer felt up?
4.21.2009 2:12pm
jviss (mail):

Seattle Law Student (mail):
JVISS -

What do you mean by "I see this situation as being emblematic of the hysterical left in education."

How is this emblematic of the left wing, hysterical or otherwise? This would seem to be emblematic of the "What About The Children" fools who exist across the political spectrum.


I apologize, I should have either been more specific, or not made that assertion.

What I wanted to express is twofold.

First, in my experiences with schools with my children, I have detected a decidedly left of center political and philosophical stance that seemingly seeks to subjugate personal responsibility and freedom in the name of collective safety and security; that is, to allow violations of ones unalienable rights in the name of protecting those around us, when in many cases those around us could reasonably by expected to protect themselves by simply exercising good judgment (like not putting things in your mouth that are passed out by unscrupulous others).

Second, by hysterical, I meant that there seems to have been a hysterical reaction on the part of the school administrators here in assuming everyone is guilty, even this honor student with a clean record; and that all drugs, even OTC pain relievers for menstrual cramps or headaches, are "drugs," bad drugs that hurt people and are present only for use in non-medicinal, mischievous, nefarious ways. In another way of explaining, I meant hysterical in the sense that the administrators and teachers involved acted hysterically, their "behavior exhibiting overwhelming or unmanageable fear or emotional excess" (Webster). It seems they were out of control, in forcing a strip-search of this unlikeliest of suspects; and if they were truly concerned that she might have on her person illicit substances that posed imminent danger to the school population, they could have simply sent her home, or called the police.

It is interesting to note that in the brief for the petitioners that while they suspected Ms. Redding of having Ibuprofen 400 mg., they repeatedly, erroneously refer to it as a prescription medicine (without having seen the supposedly existent pill), and never ask her if she had it, was it for medicinal purposes. There is not only a presumption of guilt in possession, but a presumption of evil intent; and a hysterical presumption that a 400 mg. Ibuprofen represented a threat to the health and safety of the school population.
4.21.2009 2:18pm
Connie:
... since when do school teachers and school administrators have what amount to police powers?

See Caitlin Flanagan's article in the WSJ this week decrying the fact that public schools now give students due process, unlike in the good old days when principals could simply make "unruly" students disappear (unruly = whatever the administration doesn't like).
4.21.2009 3:15pm
Smokey Behr:
There is probably also such thing as prescription water, salt water (saline), aspirin, and anything else a doctor might write a prescription for, including sugar-pills (placebo). Note, however, that there IS non-prescription 400 mg Ibuprofen, such as Advil Extra Strength:

Doctors can write prescriptions for OTC drugs, and in fact do, all the time. Generally it's because they are "behind the counter" items, such as Pseudoephedrine-containing compounds.

I agree with the courts findings that the search was unreasonable, but I disagree with the qualified immunity given to the school nurse and the other female observer. They were following an order that was obviously improper, and therefore stepped out of the bounds of the immunity.

Once again, this is an example of zero-tolerance rules gone bad. How many more students are going to be punished for mere possession of items that are legal to be possessed by them outside of the walls of the school, and are legal to be possessed by the school's staff members inside the walls?

I'll stop now before I dive headlong into the hypocrisy of the zero-tolerance on legal medications vis-a-vis the non-notification of parents by school nurses that their little girls have been taken to abortion clinics for medical procedures.
4.21.2009 3:21pm
Corkie the Dog (www):

If you did read it, why do you still have these questions?


Hello Orin,

I read the cert petition that you linked to (thanks!), and I have the same question. Why was cert granted?

The cert petition seems to boil down to, "We were robbed! We should have won, because [insert florid restatement of facts here]".

It seems to me that the "We were robbed!" argument is quite weak, and almost always loses. A stronger cer petition would have been, "There is now a split in the circuits, please resolve it."

I've read the petition, and the response, and all of the comments in this post, and I still don't know why the SCOTUS granted cert. I apologize in advance if I should already know the answer to this question, but is there any reason not to let the 9th have their way on this?

Sincerely,
Corkie the Dog
4.21.2009 3:28pm
Visitor Again:
According to n LA Times story, the justices were unconvinced at oral argument today that such a strip search was unreasonable. These people on the Court are authoritarians when it comes to children.
4.21.2009 4:17pm
Uh_Clem (mail):
I fail to understand why anyone would think that it is "reasonable" to strip search a 13 year old to look for Tylenol.

This is the poster child for "unreasonable" search.
4.21.2009 5:40pm
Mikeyes (mail):
The primary reason doctors write prescriptions for OTC drugs is that the patient's insurance will pay for them if they are written. In addition, for something like the pseudo-ephedrine containing drugs, you can get larger amounts without having to be strip searched first by the DEA.
4.21.2009 6:28pm
Steve2:
As I've read the petitioner's brief and the NASB amicus brief, as well as the petitioner's portion of the oral argument transcript, I keep being struck by how much their case on the merits (as opposed to the QI issue) seems to amount to "Ooooga Bugga! Drugs!!!!".

I've got to say, though, some of the cases the briefs cited were even more disturbing than this one on the facts, since they appear to have been district and circuit courts upholding generalized strip searches of students.
4.21.2009 6:34pm
Richard Aubrey (mail):
I have enquired of educrats if there is a professional journal for educrats. It appears there is, although I've never seen it.
I asked if the mag runs a quarterly article on how the educrat subscribers can keep from looking like fools, running up huge legal bills, and convincing wavering parents to take their kids out of public schools--the state money going with them--and possibly being prosecuted for felony stupid.
It appears the mag does not.
Every so often, a school system takes a really, really dumb case all the way.
Dumb to start, dumb not to apologize and make it whole, dumb to fight it all the way.
4.21.2009 7:35pm
David in NY (mail):
Well, let me say, the lawyer for the school was pretty pathetic at argument.

I really hope the school loses, if only because of their incredible arrogance.

Why did they get cert? Well, didn't Justice Thomas complain the other day about the "virtual nobility accorded" people asserting their constitutional rights? It's that mindset that's doing it.

I'm afraid there are only two solid votes for the plaintiff, who surely deserves some redress.
4.21.2009 8:10pm
David M. Nieporent (www):
seems to amount to "Ooooga Bugga! Drugs!!!!"
One day before I retire, I am going to use that line in a brief.
4.21.2009 11:34pm

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