The United States Supreme Court issued its decision in the much-discussed case of Safford Unified School District #1 v. Redding on June 25th. The majority held that a strip search of a 13-year-old Savana Redding violated the Fourth Amendment but that the school officials who conducted the search were immune from liability under the American qualified immunity doctrine.
The search occurred after Redding’s friend told her assistant principal that she received a prescription strength ibuprofen pill and several over the counter painkillers from Redding. The assistant principal called Redding to his office, conducted an interrogation and searched her bag. His interrogation was aimed only at confirming his suspicion that Redding had been involved in providing other students with contraband pills. He did not ask questions to determine whether Redding was carrying pills or where she might be carrying pills, but nonetheless directed the school nurse and an administrative assistant to conduct a strip search. The two women asked Redding to pull her bra out and to the side and shake it and to pull out the elastic on her underpants. They did not find any pills.
Justice Souter wrote for the five judge majority. He applied the relaxed standard for school searches set out in the United States Supreme Court’s 1985 decision in New Jersey v. T.L.O and held that the search was justified at its inception:
This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing. If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today.
The strip search, however, was not justified. After explaining that strip searches are “categorically distinct” from other less intrusive searches, Souter J. said:
The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” 469 U. S., at 341 (internal quotation marks omitted). The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
The search was disproportionate, according to Souter J., because there was no evidence of a serious danger to students and the assistant principal had no reason to suspect that Redding was carrying pills in her bra or underwear.
Justice Stevens and Justice Ginsburg agreed with the majority’s Fourth Amendment finding but disagreed with its finding on qualified immunity.
Justice Thomas dissented on his own. He argued that the majority decision is inconsistent with the letter and spirit of T.L.O., and in particular its call for deference to the professional judgement of educators. He also said that the contextual secondary threshold applied by the majority will be hard for educators to apply.
In Canada, the leading case on school searches is the 1998 Supreme Court of Canada decision in R. v. M. (M.R.), where the Court endorsed a relaxed standard for school searches based on T.L.O. Justice Cory wrote for the majority and said:
The test established in T.L.O. dispenses not only with the warrant requirement but also with the need for probable cause, imposing instead a generalized standard of reasonableness in all the circumstances. However it must be observed that this test has been subject to criticism in the United States (see, e.g., J. M. Sanchez, “Expelling the Fourth Amendment from American Schools: Students’ Rights Six Years After T.L.O.” (1992), 21 J. L. & Education 381; Thomas C. Fischer, “From Tinker to TLO; Are Civil Rights for Students ‘Flunking’ in School?” (1993), 22 J. L. & Education 409). Nonetheless in my view the test set out in T.L.O. can be applied in the elementary and secondary school setting in Canada. Significantly the same result reached in T.L.O. can be obtained by applying principles to be derived from decisions of this Court which have considered the Charter.
M. (M.R.), affirmed by the Supreme Court of Canada in 2008, dealt with a “pat down” type search of a male student in which a vice-principal found drugs after asking him to turn up a pant leg. The Court found this means of search to be reasonable based on an application of the following principles:
The search conducted by school authorities must be reasonable, authorized by statute, and appropriate in light of the circumstances presented and the nature of the suspected breach of school regulations. The permissible extent of the search will vary with the gravity of the infraction that is suspected…
The circumstances to be considered should also include the age and gender of the student. For example, a search of the person of a female student by a male teacher may well be inappropriate and unreasonable. Every search should be conducted in as sensitive a manner as possible and take into account the age and sex of the student. It should not be forgotten that the manner in which students are treated in these situations will determine their respect for the rights of others in the future.
This is the same as the proportionality requirement established in T.L.O. and applied in Redding, so Canadian educators may heed the caution offered by Redding. Thomas J. is right that the fully-contextual secondary standard governing the extent of school searches is not precise. The majority opinion in Redding makes clear, however, that strip searches will only be justified in special cases.