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Searches of School Girls Argued in High Court

(CN) - The U.S. Supreme Court on Tuesday heard arguments on whether the Fourth Amendment right of a 13-year-old girl was violated when she was strip searched by a school nurse, in a case involving where to draw the line between backpack searches and cavity searches.

Savana Redding, a high school student in Arizona, was strip searched after another student, who had been found with various pills, including what was later determined to be Ibuprofen, pointed to Redding as the source. Assistant principal Kerry Wilson took Redding out of class and questioned her. Redding denied having anything to do with the pills.

After a search of her backpack, Wilson sent Redding to the school nurse for a same-sex strip search, where Redding was asked to remove her outer clothing, and to shake her bra and the elastic of her underwear.

No pills were found.

In the formal surroundings of the high court, argument ventured into a discussion of "privates" and "undergarments," but only Justice Stephen Breyer cited a personal anecdote. "People did sometimes stick things in my underwear," he noted to laughter. "It's not beyond human experience."

Representing Redding, Adam Wolf said that such a search "produces long-lasting and traumatic consequences for a 13-year-old child."

But Breyer did not seem convinced. "Why is this a major thing to say strip down to your underclothes, which children do when they change for gym. How bad is this, underclothes?"

The discussion tried to hammer out when a strip search would be appropriate and where to draw the line.

Wolf said there has to be reasonable suspicion that contraband is in the underwear to perform a strip search. He added that this was not the case here. "Without some specific indication that this location was likely to contain the drugs, this search was excessively intrusive," Wolf said.

Justice Antonin Scalia explored the boundaries of reasonable suspicion. "If you have a reasonable suspicion that the student has drugs and you search every other place, don't you have a reasonable suspicion that she has drugs in her underpants?" Scalia asked.

Assistant Solicitor General David O'Neil, representing the United States and arguing for Redding, said this wouldn't be enough to merit a strip search.

O'Neil did say that reasonable suspicion could come about if the drug searched by the school were traditionally carried in underwear, such as crack cocaine. The school would only be justified in searching underwear, he said, if it were looking for crack cocaine or some other drug carried in underwear.

None of the justices appeared to agree with this argument, particularly because administrators may not know what the pills are, as in this case.

Chief Justice John Roberts asked, "What is the administrator supposed to do? He sees a white pill. Nobody can tell him what it is. Is he allowed at that point to search the undergarments or not?"

O'Neil said he wouldn't be allowed.

Matthew Wright, the lawyer representing Safford Unified School District, had a different opinion. He said the strip search was justified. "Searching any place where she might be reasonably hiding contraband was constitutionally permissible," Wright said.

But the justices questioned just how far the administrator would be allowed to go before he severely infringed on Redding's rights. "What is the principle under which you would allow a strip search but disallow a cavity search?" asked Justice Scalia.

Wright replied that cavity searches should not be allowed at all in schools, for two reasons. He said school personnel aren't clinically trained to perform cavity searches, and that students have been known to hide contraband in their clothes, but not in their body cavities.

Questions also came up on that matter of reasonable suspicion -- specifically whether Wilson had a reasonable suspicion. Because Redding had been blamed by a student who had been caught red handed. Perhaps the student had been trying to lay blame on someone else. "I'm asking if there's any link other than one child caught with the pills blurts out that it was someone else," said Justice Ruth Bader Ginsburg.

Wright answered that the tip was sufficient to form reasonable suspicion. "Student tips are the very thing that officials rely on probably the most," he added.

For their arguments, the lawyers referenced several past decisions by the Supreme Court, but they most frequently cited New Jersey v. T.L.O., where two girls were caught smoking cigarettes by a teacher in the bathroom.

The girls were escorted to the Vice Principle, who searched one of the girls' purses and found cigarettes and rolling papers, which are typically used to make marijuana cigarettes.

The Supreme Court ruled in 1985 that the search was reasonable, and held that warrants and probable cause requirements do not apply in public schools because they would interfere with swift and informal disciplinary procedures needed in schools for the protection of the students.

At the same time, however, the Supreme Court said searches should not be "excessively intrusive."

Justice Ginsburg notes several key differences between the two cases. The girls in the earlier case were not subject to a strip search, and they had been found by a teacher, not blamed by classmates.

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