School District and Officials Not Entitled to Governmental Immunity Over Strip Search

Article from Thrun Law Firm

SCHOOL DISTRICT AND OFFICIALS NOT ENTITLED TO GOVERNMENTAL IMMUNITY OVER STRIP SEARCH

The Ninth Circuit Court of Appeals recently ruled that
a strip search of a female eighth grader conducted by school
officials was unconstitutional and violated the Fourth
Amendment's prohibition against unreasonable searches and
seizures. Redding v Safford Unified Sch Dist #1, 504 F3d
828 (CA 9, 2007) rev'd en banc, __ F3d __, No. 05-15759,
slip op. (CA 9, 2008).

The school district's middle school had a policy that
prohibited the "non-medical use, possession, or sale of drugs
on school property or at school events." The school defined
the term drugs to include "any prescription or over the
counter drug, except those for which permission to use in
school has been granted." In this case, the middle school
vice principal became suspicious that Marissa, a middle
school student, was providing pills to fellow students. The
vice principal escorted Marissa from class to his office,
where he required her to turn out her pockets. That search
revealed one blue pill, several white pills, and a razor blade.
Marissa claimed she received the pills from a fellow student,
another middle schooler named Savana. The vice principal
then asked his administrative assistant to take Marissa to the
nurse's office and conduct a search of her person and
clothing for additional pills. In complying, the administrative
assistant and nurse, behind a locked door, asked
Marissa to remove her shoes and socks, lift up her shirt and
pull out her bra band, and take off her pants and pull out the
elastic of her underwear. The search failed to yield additional
pills.

While the administrative assistant and the nurse
searched Marissa, the vice principal escorted Savana from
her classroom and questioned her in his office. The vice
principal displayed the confiscated pills to Savana. She
denied knowing anything about them. Following a quick
search of Savana's backpack, which failed to produce any
pills, the vice principal asked his administrative assistant to
escort Savana to the nurse's office. The assistant and nurse
then asked Savana to remove her jacket, shoes, socks, pants
and shirt and to pull her bra out to the side and shake it
(exposing her breasts), and to pull her underwear out and
shake it (exposing her pelvic area). The search was more
intrusive than Marissa's and did not produce any pills. No
attempt was made to contact Savana's mother before the
search.

Savana subsequently filed a civil rights action in district
court against the vice principal, the administrative assistant,
the nurse, and the school district, alleging an illegal search
in violation of the Fourth Amendment. The defendants
moved for summary judgment, arguing that they did not
violate Savana's constitutional rights and that, even if they
did, they were immune from liability. The district court
granted the defendants' motion for summary judgment,
noting that the defendants did not violate Savana's Fourth
Amendment rights because the district court believed the
search was both justified at its inception and permissible in
its scope - the standard for determining whether a search of
a student by school officials is constitutional. The full panel
of the Ninth Circuit reversed the district court's decision.
In criticizing the vice principal, the Ninth Circuit stated:
"[a]t a minimum, Assistant Principal Wilson should have
conducted additional investigation to corroborate Marissa's
'tip' before directing Savana into the Nurse's office for
disrobing." Finding that Savana's strip search was neither
justified at its inception nor reasonable in scope, the court
stated: The school initiated a strip search of Savana on the
basis of an unsubstantiated tip from Marissa, a
student seeking to shift blame from herself to
Savana. . . . [w]e hold that the strip search of
Savana was unjustified at its inception.

Nor was the strip search "reasonably related in
scope to the circumstances which justified the
interference in the first place." The scope of a
search is permissible only if "the measures adopted
are reasonably related to the objectives of the
search and not excessively intrusive in light of the
age and sex of the student and the nature of the
infraction." Here, the public school authorities
adopted a disproportionately extreme measure to
search a thirteen-year-old girl for violating a
school rule prohibiting possession of prescription
and over-the-counter drugs. We conclude the strip
search was not reasonably related to the search for
ibuprofen, as the most logical places where the
pills might have been found had already been
searched to no avail, and no information pointed to
the conclusion that the pills were hidden under her
panties or bra (or that Savana's classmates would
be willing to ingest pills previously stored in her
underwear). Common sense informs us that
directing a thirteen-year-old girl to remove her
clothes, partially revealing her breasts and pelvic
area, for allegedly possessing ibuprofen, an infraction
that poses an immediate danger to no one, and
which could be handled by keeping her in the
principal's office until a parent arrived or simply
sending her home, was excessively intrusive.

In addressing whether the school officials were immune
from liability for their actions, the court applied a two-step
test: first, did the school official's conduct violate a constitutional
right; and second, was the right clearly established.
The court found that the strip search violated Savana's
rights. The court further stated "[s]imply put: '[i]t does not
require a constitutional scholar to conclude that a nude
search of a thirteen-year-old child is an invasion of constitutional
rights of some magnitude. More than that: it is a
violation of any known principle of human dignity.'"
The court, in finding that a reasonable school official in
the vice principal's position would know that a strip search
like the one conducted here would violate a student's
constitutional rights, held that the vice principal and the
school district were not immune from liability. The court,
however, held that the administrative assistant and the nurse
were immune because they acted solely pursuant to the vice
principal's orders and not as independent decision-makers.
In reaching its decision, the court relied on a recent
Sixth Circuit decision, Brannum v Overton Co Sch Bd, 516
F3d 489 (CA 6, 2008), which was discussed in the
March 27, 2008 edition of School Law Notes. Sixth Circuit
decisions are binding on Michigan school districts.