On January 16, 2009, the United States Supreme Court decided to hear an appeal from an Arizona federal court in a case that will have immediate impact on public schools, no matter the outcome. The Court will address two questions in the case, but the central question is whether the Fourth Amendment prohibits a public school from conducting a search of a student suspected of possessing and distributing prescription drugs on campus in violation of school policy.
The search was of a middle school student--Savana--accused by another--Marissa--of giving her prescription-strength Ibuprofen. Marissa had been caught with several Ibuprofen and a daily planner that concealed other contraband, both of which she told officials Savana had given her. Marissa's wallet and pockets were searched, yielding Ibuprofen, and Marissa was then subjected to a more intensive search of her clothing, which yielded none. On the basis of Marissa's statement and Savana's admission that the daily planner--but not the contraband--were hers, school officials searched Savana's backpack with her permission. Finding no Ibuprofen, officials asked her to remove her socks and shoes, then her outer clothing. Finally, they asked her to move her underwear and bra to demonstrate that no Ibuprofen was hidden; none was. Savana's mother brought a lawsuit on her behalf, alleging that the search violated the Fourth Amendment.
The District Court in Arizona found that there had been no violation of Savana's rights, and on appeal, a divided panel of the Ninth Circuit Court of Appeals agreed. A majority of the Ninth Circuit Court of Appeals agreed to re-hear the case, and on re-hearing, a majority of the Court reversed the panel's decision, finding that the search was unreasonable. Five judges disagreed: three believing that there had been no violation, and two on the remaining question of immunity.
The law is hardly clear with regard to the extent to which school officials may go before they violate students' constitutional rights--the question here though is whether what the school officials did went too far. There is certainly reason to believe that they did. Savana was accused by a fellow student, herself caught with Ibuprofen, but Savana was never caught with contraband. Further, when school officials searched Savana's belongings, they found none. Certainly--the argument goes--whether any search was reasonable, a strip search was not. On the other hand, school officials have traditionally been allowed some leeway to preserve discipline in the classroom and prevent illegal activity.
The Court will likely give some guidance regarding the extent to which school officials may go, but until then, common sense is the key. The question--for now at least--is whether a search was justified at the outset and whether the search was conducted reasonably, given the available information. It is not sufficient that questioning may have been justified initially; school officials must continually re-evaluate the evidence available and decide whether and what further steps are justified. To do so, evaluate such things as: whether a search is necessary at all (is there evidence that the person is holding contraband right now?); the nature of the threat (more dangerous drugs might warrant a more intensive search); the credibility of the information available including whether it was corroborated; and the areas to be searched (the search is not for contraband whereever it might be found, but where the information suggests is most likely).