ASK THE BARRISTER: When Is a Strip Search Legal in a High School?

By Rachel Elovitz

Dear Barrister:

A dear friend recently called me, frantic. Her 15-year-old daughter, who I’ll call Virginia, had been strip searched by the school principal. He suspected that Virginia was selling her mother’s oxycodone pills to other students. His “suspicion” was supposedly based on the report of another student. When the principal’s “pat down” did not produce anything, he told Virginia to remove her top. He then asked his secretary to search Virginia’s bra – and when that did not produce anything, he asked Virginia to remove her pants. He had his secretary check around Virginia’s underwear. There were no drugs.

Virginia’s mother tells me that she has never taken oxycodone. I have a daughter around the same age as Virginia. She has never been in trouble, but I cannot help but wonder, if the principal “reasonably” suspected her of selling drugs, could the scope of his search include putting his hands on her bra and underwear?

Sincerely,
Anguished in Alpharetta

Dear Anguished:

Virginia’s story is not a new one. Twenty-nine years ago, an assistant principal suspected that a student had been smoking a cigarette in violation of school rules and insisted that he empty his pockets. The student refused. The assistant principal tried to force the student to act as he had directed. There was a struggle, during which the assistant principal thought he saw a wad of dollar bills and marijuana cigarettes in the student’s hand. He took him to the principal’s office and searched him. He found nothing, but notified the student’s mother and the police.

When the detective arrived at the school, he found insufficient evidence to arrest the student for possession, but suggested that the assistant principal swear out a warrant for simple assault. The assistant principal did, after which the detective read the student his rights, placed him under arrest, and strip searched him. He found hand-rolled cigarettes in the student’s underwear. The student then admitted that he had been selling marijuana.

The search was found to be lawful (Farmer v. State, 156 Ga. App. 837), because it was grounded in a “reasonable belief” that school rules were being breached and that illicit drugs were being sold. The basis for that “reasonable belief” was the assistant principal thinking he saw rolled marijuana cigarettes and a wad of bills in the student’s hand, while he was surrounded by 12 to 15 other students in the bathroom, students ostensibly wanting to buy what he was selling.

Eighteen years later, an officer of the Athens-Clarke County Police Department was working a special detail at Clarke Central High School, when the school secretary told him that a student smelled like marijuana. The officer found the student in the hallway, also smelled marijuana, frisked the student, and thought he felt several small packets. He asked the student what was in his pockets, and the student responded by asking the officer to “let him slide.” The officer searched the student, and found eight small bags of marijuana.

The search was upheld (Patman v. State, 244 Ga.App. 833). In Georgia, the Court said, a search by a school official is “subject only to the most minimal restraints necessary to insure that students are not whimsically stripped of personal privacy and subjected to petty tyranny.” The odor of marijuana, the officer feeling what he believed to be packets of marijuana, and the student asking the officer to let him slide, amounted to probable cause sufficient to conduct a search.

Six years ago (in fall 2003), a 13-year-old girl (not that much younger than Virginia or your daughter) was removed from her math class by the assistant principal, brought to his office, and asked to identify a day planner inside of which were knives, lighters, and a cigarette. The student denied any knowledge of the items – or of the ibuprofen and naproxen pills about which she was also questioned.

The student consented to a search of her personal effects, which produced nothing. The assistant principal then asked his secretary to take the student to the school infirmary and search her for pills. The student was asked to remove her jacket, socks, shoes, stretch pants, and shirt. She was asked to pull her bra to the side, shake it, and to pull out the elastic on her underwear. Her breasts and pelvic area were partially exposed. No pills were found.

The student’s mother filed a suit against the school district, the principal, his administrative assistant, and the school nurse. She claimed that the strip search violated her daughter’s Fourth Amendment rights. The defendants filed a motion for summary judgment, claiming qualified immunity. The District Court did not find a Fourth Amendment violation and granted the defendants’ motion. The en banc Ninth Circuit reversed.

The Supreme Court granted certiorari (Safford Unified School District # 1, et al., v. Redding). The court, noting that school searches are permissible in scope when the measures adopted are “reasonably related” to the objective and “not excessively intrusive,” found the search of the student’s personal effects and outer clothing lawful, but not the search of her bra and underwear. According to the court, the assistant principal’s suspicion did not match the degree of intrusion.

The search of your friend’s daughter, Virginia, was similarly intrusive, but it was based on reports that she was selling oxycodone, which poses a significantly greater risk to students than a couple of ibuprofen or naproxen pills. I would want to know more about the report upon which the principal’s suspicion was based. If, for example, it was made by a student who had accused a handful of honor society students, of which Virginia was one, of selling drugs, and if all reports had proven false, and if Virginia was not a student who had ever had disciplinary problems, then I would think the search of her bra and underwear unnecessarily intrusive and a violation of her Fourth Amendment privacy interests. If, however, the student who made the report showed the principal a bottle with three oxycodone pills that had been, according to the label, prescribed to Virginia’s mother, then that, I suspect, would make the intrusion justifiable.

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