Constitutional lessons I learned at school

Earlier this month, sheriff's deputies in Harford County, Maryland, showed up in the parking lot of Harford Technical High School with drug-sniffing dogs and set the animals to sniffing for contraband. The search was random -- suspicionless and warrantless -- but hardly unique in American public schools. Across the country, students have long labored in an environment where many Fourth Amendment protections magically don't apply. Now, though, a case before the Supreme Court may help establish just how far school officials can go in pawing through the possessions -- and even the underwear -- of their youthful charges.

"Reasonableness" is the standard that guides those parking lot searches, and "reasonableness" is at issue before the Supreme Court in the case of Safford United School District No. 1, et al., v. Redding. The problem, as always, is that what strikes some school administrators and law-enforcement officers as reasonable may strike students and parents as completely insane.

Which brings us to Savana Redding.

In 2003, at the time of the search in question, Savana Redding was a 13-year-old eighth-grader at Safford Middle School in the small town of Safford, Arizona. School officials got a tenuous tip that Savana had given a friend some ibuprofen -- the stuff in Advil and Motrin. That was against school rules, so the girl was detained by Assistant Principal Kerry Wilson. She was subjected to a strip search by two female school employees. The search turned up nothing.

And Savana and her family sued.

The case worked its way up to the Ninth Circuit Court of Appeals, which examined the facts and concluded (PDF), "A reasonable school official, seeking to protect the students in his charge, does not subject a thirteen-year-old girl to a traumatic search to 'protect' her from the danger of Advil."

We hold that Savana’s rights were clearly established at the time that Assistant Principal Wilson, in his official capacity, initiated and directed the strip search. The record before us leaves no doubt that it would have been clear to a reasonable school official in Wilson’s position that the strip search violated Savana’s constitutional rights...

The case of Redding before the Supreme Court is an appeal by the school district from the Ninth Circuit decision.

The "reasonable" standard for schools, so different from the "probable cause" standard that guides most search and seizure cases, was established in New Jersey v. T.L.O. In that case, the Supreme Court ruled that, while the Fourth Amendment does apply to school officials, they're held to a lower standard than law-enforcement officers. That's because "[a]gainst the child's interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds." The court added, "The warrant requirement, in particular, is unsuited to the school environment."

So, if the Fourth Amendment applies, but not so much, what constitutes an acceptable search? To answer that question, the court created a new standard out of whole cloth:

[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was justified at its inception," Terry v. Ohio, 392 U.S., at 20 ; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place," ibid.

Looking askance at what his colleagues had wrought, Justice Brennan warned in dissent:

Today's decision sanctions school officials to conduct fullscale searches on a "reasonableness" standard whose only definite content is that it is not the same test as the "probable cause" standard found in the text of the Fourth Amendment.

He was right. "Reasonableness" is in the eye of the beholder, and what we behold largely depends on whether we're in positions of authority, or among those subject to authority. That's how we ended up with K-9 patrols in school parking lots and teenage girls shaking out their bras during searches for headache tablets.

Loose guidelines for searches have actually been institutionalized. The Harford County suspicionless searches are conducted well within the advice formally provided by the U.S. Department of Education.

If drug-sniffing dogs can be unleashed to alert with a "a bite, bark or scratch" on any car that contains a roach (or a hamburger wrapper), it's not that far a step to pawing through a student's underwear based on a vague assertion by another student.

The Supreme Court itself, in another case involving the power of school officials, once warned:

That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

That's a fine sentiment. Too bad the court didn't hold it to heart in T.L.O. We have now raised just about two generations of public school students in an environment in which vague standards and meaningless restrictions on officials' power are considered "reasonable." Those students are now adults, applying the lessons they learned in school to the world around them.

There's no guarantee that the Supreme Court will set tougher standards in Redding. It may set no standards at all, and side-step the issue entirely by granting the Safford officials qualified immunity from lawsuits without touching on the constitutional questions.

But Redding is the best chance in a long time to draw a line that firmly establishes some indignities committed by state officials upon public school students as beyond the pale. With school officials increasingly conducting random, warrantless searches of their charges, we need to know whether our schools are subject to constitutional protections, or whether they are just little police states.

Really, if it's acceptable to strip-search Savana Redding, there's no place else to go.