By Robert Barnes
Washington Post Staff Writer
Wednesday, April 22, 2009
An important case at the Supreme Court sometimes informs as much about the justices as the issue at hand, and yesterday's animated hearing on whether school officials have the right to strip-search a 13-year-old female student seemed just such a case.
Justice Stephen G. Breyer wondered if the incident was much different from the experience of disrobing for gym class. Justice Anthony M. Kennedy affirmed his deep concerns about illicit drugs. Justice Ruth Bader Ginsburg seemed at times on the edge of exasperation with her all-male colleagues. And Chief Justice John G. Roberts Jr. searched for a way to make the issue go away.
But it was Justice David H. Souter who seemed to sum up the dilemma for a majority of the court. He put himself in the place of a school official balancing the need for keeping his young charges safe from drugs while respecting the constitutional protections even middle school students should receive.
"My thought process is, I would rather have the kid embarrassed by a strip search, if we can't find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry," Souter said.
How does the Fourth Amendment protection against unreasonable searches and seizures guide those kinds of tough decisions, Souter asked, and his hypothetical formed the backdrop for the hour-long argument.
Watching from the second row was the real-life protagonist, Savana Redding, now 19, and her mother, April, who sued officials at Safford Middle School in Arizona after the 2003 search. The Reddings say the incident changed Savana's life -- the distraught honor student never returned to the school and later developed ulcers. School officials acknowledge that she was not carrying the drugs in question, prescription-strength ibuprofen used for headaches and cramps.
Phoenix lawyer Matthew W. Wright, representing school officials and the school district, said the kind of alleged drugs -- in Redding's case, the equivalent of two Advils -- did not matter. Because officials had reason to believe that Redding "possessed contraband which posed a health and safety risk," they could search "any place where she might be reasonably hiding that contraband," Wright said.
Following that logic, Roberts and Justice Antonin Scalia said, body cavity searches would be permissible. Wright said he thought the court could draw a "bright line" prohibiting that, but even if it was "technically" legal, public reaction would never allow it.
Souter asked Wright why the court should accept his "blanket assumption" that the search for any contraband, even an aspirin, allows a strip search. "I mean, at some point it gets silly," he said.
Redding's attorney, Adam Wolf of the American Civil Liberties Union, agreed that the type of drug does not matter if school officials do not have specific reason to believe it is hidden in a student's underwear.
Kennedy seemed to find that hard to buy. "The hypothetical is that there is a very dangerous drug, meth, that's going to be distributed and consumed that afternoon," he told Wolf.
The same rules apply, Wolf replied. "The Fourth Amendment does not . . . countenance the rummaging on or around a 13-year-old girl's naked body," he said. In one of the many memorable, if not exactly legalistic, phrases uttered in the courtroom yesterday, Wolf said there was a "certain ick factor" in the school officials' actions.
Breyer seemed to wonder if what took place -- Redding was ordered to shed her clothes in front of two female officials in the school nurse's office and shift her underwear from side to side, exposing her breasts and pelvic area -- was a strip search.
He remembered disrobing for gym class and unintentionally prompted laughter in the courtroom when he told Wolf that students did hide contraband in their underwear.
"In my experience, too, people did sometimes stick things in my underwear . . ." As his seatmate Justice Clarence Thomas guffawed and the rest of the court joined in, Breyer added, "not my underwear."
Ginsburg laughed, too, but mostly she was serious and sympathetic when it came to Redding's experience.
She was addressing Wolf, but speaking more to her colleagues, when she said, "I don't think there's any dispute what was done in the case of both of these girls," referring to Redding and a girl who was caught with the ibuprofen tablets and who then accused Redding.
"It wasn't just that they were stripped to their underwear. They were asked to shake their bra out, to -- to shake, stretch the top of their pants and shake that out."
Wolf agreed that was correct, and he pointed to a brief supporting Redding from social workers who said strip searches produce "long-lasting and traumatic consequences for a 13-year-old child."
Ginsburg was also the toughest questioner of Wright, calling the events of the day "humiliating" for Redding and saying school officials searched her on the basis of the other girl's accusations "with no questions asked at all."
Roberts asked the lawyers if the court could simply decide the case by agreeing that school officials could not be sued for their actions. The split decisions of lower courts and the justices' own reactions to whether the search was constitutional make it evident that the law is not clear, the chief justice said.
It was possible, the lawyers agreed. But all said they hope the court will decide what kind of searches the Constitution allows.
The case is Safford United School District v. Redding.