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July 11, 2008

Ninth Circuit: Strip Search of a Thirteen Year Old for Ibuprofen Violates Fourth Amendment. No, Really!

Ace blogged about this case back in April; it caused quite a ruckus in the comments so I've been keeping an eye on it. Today the en banc Ninth Circuit reversed the earlier decision that got our attention. The opinion is here (PDF).

This is the one where a 13 year-old student was subjected to a strip search in the nurse's office after another student who was caught with prescription-strength ibuprofen implicated her. The search of her bag turned up nothing, but the school has a "zero tolerance policy" when it comes to drugs of any kind, so the administrators lost their minds and made her strip. And shake.

Still, it was only 6-5, so this was a close call. The majority pulls no punches:

Nowhere does the T.L.O. Court tell us to accord school officials’ judgments unblinking deference. Nor does T.L.O. provide blanket approval of strip searches of thirteen-year olds remotely rumored to have had Advil merely because of a generalized drug problem. Rather, the Court made it clear that while it did not require school officials to apply a probable cause standard to a purse search, it plainly required them to act “according to the dictates of reason and common sense.” As discussed below, the public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interests in privacy and security of her person.

(T.L.O. is the Supreme Court case that largely sets out how the Fourth Amendment modernly applies in public schools.)

The appeals court is unequivocal about how far from reasonable this search got once it went beyond a mere bag search. The administrators didn't have much reason to expect to find what they were looking for and ibuprofen pills do not represent all that great a danger of physical harm to students or disruption in school. The court explains that blanket claims regarding prescription drug problems in schools do not justify outrageous behavior from school administrators. The drug in question must actually be causing a problem for a search to be reasonable. It doesn't rule out strip searches in all cases, but it does make clear that the circumstances must actually warrant such a drastic intrusion. Also, the court concludes that the assistant principal who ordered the search should have known that his actions were a violation of the student's constitutional rights. The opinion uses the phrase "common sense" a lot.

Now the case goes back to the district court.

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posted by Gabriel Malor at 10:39 PM

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