By Adam Freedman
Today, a back-to-school special! We take a close look (as it were) at strip searches of students.
But first, your daily dose of legalese: This podcast does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
In an earlier episode, I discussed the circumstances under which school officials can search students for contraband. I’m revisiting the issue because the Supreme Court recently issued a decision that gives students considerable protection against the most invasive type of search -- the strip search. In just a minute, I’ll discuss the implications of this ruling for students, parents, and schools.
What Rights Do Students Have?
What rights do students have against the prying eyes of school officials? It’s a controversial issue and I continue to get calls and emails about student searches. So let me start with a brief recap. The Supreme Court’s decision in Tinker v. Des Moines (1969) established that students do not abandon their constitutional rights “at the schoolhouse gate,” as Justice Abe Fortas memorably put it. One of those rights is the Fourth Amendment’s guarantee against “unreasonable searches and seizures” conducted by representatives of the state.
What Does the Fourth Amendment Say?
Outside of schools, the Fourth Amendment generally means that the police must have “probable cause” to search a suspect. As Justice David Souter recently summarized, that means police may only conduct a search if there is “a fair possibility or a substantial chance” a search will turn up evidence of a crime.
Inside of schools, the Fourth Amendment has been interpreted differently. Ever since the Supreme Court’s 1985 decision in New Jersey v. T.L.O., school officials may search a student’s outer clothing -- such as jackets or backpacks -- even if there is only a moderate chance of finding any incriminating evidence.
What About Student Strip Searches?
But the constitutional status of strip searches has been in limbo all these years. In June, the Supreme Court shed light on the issue in the case of Safford v. Redding, a case involving 13-year old Savannah Redding. Redding, who was suspected of distributing prescription medicines around school, was ordered to strip down to her underwear while female school officials peeked under her bra and panties to see whether she had any pills stashed there. After that -- and I hope you’re sitting down for this --a lawsuit followed.
The Supreme Court held that any search that requires a student to expose his or her private parts “to some degree” is “categorically distinct” under the Constitution. In other words, it requires greater justification than a search of the outer clothing. Specifically, the Court said that a school may conduct this sort of panty-raid only if school officials have evidence that the item they suspect is concealed is actually dangerous in terms of power (say, a gun) or quantity (say, a bottle of pills), OR they must have some evidence indicating that the contraband item is hidden in that particular student’s underwear.
What the Safford v. Redding Ruling Means
Although the decision certainly enhances the constitutional rights of many students, a few caveats are in order. First, in announcing the decision, the Supreme Court reaffirmed its 1985 TLO decision -- that is, there is still a lower threshold to justify a search of a student’s outer clothing. Secondly, the ruling applies only to public schools. Private and parochial schools are not covered by the Fourth Amendment because they are not part of the state. And finally, the Supremes’ ruling applies only to future searches. So if you have already been subjected to a strip search at school, this decision technically won’t make your case any stronger.
Personally, I think there are more legal challenges to come. Now that the Supreme Court has created a crucial distinction between outer clothing and underwear, it’s only a matter of time before schoolboys start putting their boxer shorts on over their trousers, and daring teachers to search them. When that case reaches the Supreme Court, you’ll hear all about it, right here.
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