Students Being Stripped of Their Rights at the Schoolhouse Gate. The school day back in October of 2003 started out normally for thirteen year old

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1 Andrew Miles Juvenile Law Students Being Stripped of Their Rights at the Schoolhouse Gate The school day back in October of 2003 started out normally for thirteen year old Savana Redding. 1 Savana was in math class at Safford Middle School when the assistant principal, Kerry Wilson, came into the room and asked Savana to come to his office. 2 Savana had no idea that she was about to be accused of carrying and distributing drugs to follow students. 3 The drugs she was supposedly distributing: four white prescriptionstrength ibuprofen pills and one over-the-counter blue naproxen pill (all of which are used for the relief of pain and inflammation, but which are banned under school rules without advance permission). 4 Prior to her retrieval from math class, all of the evidence was recovered from the possession of another student, Marissa Glines, with whom Savana was friends. 5 After denying any knowledge of the pills or plan to distribute them, and after permitting a search of her personal belongings (which did not provide any evidence linking Savana to the accusations), Savana was subsequently taken into the nurse s office and strip searched. 6 No additional pills were recovered nor was any evidence tying Savana to the pills originally found in Marissa s possession. 7 Upon review by the United States Supreme Court, the Court determined that Savana s strip search was unconstitutional. 8 However, the Court ultimately determined that qualified 1 Safford Unified Sch. Dist. #1 v. Redding, 129 S.Ct (2009) (The most recent student strip search to be considered by the Court). 2 Id.at Id. 4 Id. 5 Id.at Id.at Id.at Id.at 2642 ( Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve. He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson 1

2 immunity applied in this case because the law governing student searches was unclear at the time of the search; therefore, the school officials who conducted the search could not be found liable for the violation. 9 Wait a minute. The U.S. Supreme Court is the judicial body which developed the rules for when student searches by school officials are permissible. 10 The Supreme Court is also supposed to be the judicial authority which clarifies any apparent confusion in the lower courts application of rules the Supreme Court promulgates. It appears that the Court in this case shirked its responsibility and left the test for student searches by school officials unclear. The Court had an opportunity to clarify the criteria it left unexplained in New Jersey v. T.L.O. and therefore settle the issue of when strip searches of students by school officials are ever appropriate. 11 Instead, the Court pointed to the apparent confusion of the lower courts on the issue. 12 When the Court applied qualified immunity in Redding, it ignored its duty to uphold the best interests of the child standard and thereby dodged its constitutional responsibilities. This article will examine whether the best interests of the child are served when public school officials are permitted to strip search students in order to provide a safe educational environment. In order to come to a conclusion on that issue, an had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills. ). 9 Id.at 2644 ( And other courts considering qualified immunity for strip searches have read T.L.O. as a series of abstractions, on the one hand, and a declaration of seeming deference to the judgments of school officials, on the other, which made it impossible to establish clearly the contours of a Fourth Amendment right... [in] the wide variety of possible school settings different from those involved in T.L.O. itself. We think these differences of opinion from our own are substantial enough to require immunity for the school officials in this case...that said, however, the cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law. We conclude that qualified immunity is warranted. ). 10 New Jersey v. T.L.O., 469 U.S. 325 (1985); (The case which first established the test to determine whether a student search by school officials was permissible). 11 Id. 12 Redding, 129 S.Ct. at

3 understanding of the status of juveniles in the eyes of the law is important. In addition, knowledge of how courts have dealt with students claims of unreasonable strip searches by school officials will also be helpful in coming to a resolution. Finally, after understanding juveniles legal status and how the courts have treated strip searched students in the past, the only conclusion that will make sense is that the Supreme Court shirked its duties in the Redding case. 13 By concluding that the status of the law governing student searches was not clearly defined at the time Savana Redding was searched, instead of taking the opportunity to clarify the factors it had left unclear when it decided New Jersey v. T.L.O, the Supreme Court failed to protect young Americans who still have an interest in privacy, even if this interest is lessened by virtue of their being juveniles. 14 The Supreme Court needs to clarify the factors of the T.L.O. reasonableness test in order to protect the privacy interests of future Americans and to ensure their faith in the democratic system and their respect for the rights they will acquire upon becoming adults is maintained. Juveniles Expectation of Privacy: The study of juvenile law presents two interrelated questions: what rights are recognized by the government for juveniles and how are those rights are treated under the law? 15 Unlike animals, human children have a relatively long period during which they are vulnerable and completely dependent on adults. 16 Childhood is the time during which children learn the skills necessary to survive in society and to gradually 13 Id.at. 14 T.L.O., 469 U.S. at See generally, MARTIN R. GARDNER, UNDERSTANDING JUVENILE LAW, (3rd ed. 2009). 16 GARDNER, supra note 15, at 3. 3

4 understand the responsibilities of adulthood. 17 Because of their dependence on adults and their gradual social development, juveniles since Biblical times have been treated as a unique legal class with special protections and handicaps under the law. 18 Under the common law, an individual did not enjoy full legal rights until he or she had attained the age of majority, which today is considered as reaching twenty-one years of age. 19 Beginning under the common law and continuing for the most part to today, juveniles could not be bound to some otherwise enforceable contracts, nor could they be held liable to some forms of intentional torts all due to their status as juveniles. 20 It was not until most recently, however, through the so called children s right movement that children were recognized as having inherent rights. 21 The movement developed two schools of thought, the Protectionist and the Personhood theories, which differ on the character and origin of those rights. 22 While both theories include privacy protections for juveniles, the Protectionist Theory is more applicable to answering the question whether strip searches of students by school officials are ever in the best interest of the child Id. 18 Id. at 3, note Id. at See generally GARDNER, supra note 15, at Martin R. Gardner, Student Privacy in the Wake of T.L.O.: An Appeal for an Individualized Suspicion Requirement for Valid Searches and Seizures in the Schools, 22 GA. L. REV. 897, 989, (Summer 1988); See also GARDNER, supra note 15, at Gardner, 22 GA. L. REV. at , (briefly discusses the Protectionist and Personhood theories of juvenile law); See also GARDNER, supra note 15, at Personhood theory is not as applicable to or appropriate for this discussion because the theory views juveniles as completely autonomous persons, which is definitely not the case when juveniles are in the public school setting. While at school juveniles do not have the freedom to choose what they will or will not do, but rather, juveniles must submit to the authority of school officials and follow their direction. See, Gardner, 22 GA. L. REV. at (Personhood Theory [d]raw[s] upon social science data suggesting that adolescents possess virtually the same capacity for rational decision-making as adults...thus possessed of the capacity for rational choice, adolescents with average competency are entitled to be treated as persons. ); see also, GARDNER, supra note 15, at 9-10,

5 As might be expected, under the Protectionist Theory, juvenile rights are based on protection. 24 A Protectionist believes that no one under the age of majority has the full rights enjoyed by an adult. 25 This is not to say that according to Protectionists juveniles have no rights all. Rather, juveniles possess rights of protection 26 that as they grow, juveniles are guarded and guided in their development of those traits that are essential to responsible adulthood. 27 Societal institutions mainly in the family and school perform much of guarding and guiding of juveniles by perpetually exercis[ing] legal duties to shape the lives of youngsters who, by definition, stand in constant need of care, protection, and guidance. 28 Under the Protectionist view, considerable judicial deference is given to those who undertake the responsibility for the upbringing of children, but when one of these institutions fails in its responsibilities, a violation of protection rights has occurred. 29 Therefore, [p]rotection rights also incorporate rights to be...provided legal remedies consistent with the minor s best interests when obligated caretakers fail to provide the minor the protection to which he is entitled. 30 Ultimately, a Protectionist recognizes the importance of protecting juveniles privacy interests because privacy helps in their psychological development and in teaching young people the precepts of our democratic system. 31 When a juvenile s privacy is violated, faith in the democratic system and the value of the rights adults purport to enjoy is diminished, thereby leading to social instability as juveniles 24 Gardner, 22 GA. L. REV. at Id. 26 GARDNER, supra note 15, at Gardner, 22 GA. L. REV. at Id. 29 Id. 30 GARDNER, supra note 15, at Gardner, 22 GA. L. REV. at

6 feel the need to guard themselves from the adults who were supposed to protect them. 32 In order to maintain a healthy and stable society, juveniles need to have their interest in privacy respected. Recognizing privacy rights in juveniles under the Protectionist theory does not mean those rights are absolute. 33 The Fourth Amendment itself does not grant an absolute right to privacy, even in adults. 34 Instead, the Fourth Amendment protects privacy interests by establishing guidelines which must be followed before invasions of privacy by the government are permitted. 35 However, while it can be assumed that the Fourth Amendment applies to juveniles as well as adults, it is important to keep in mind that the interest in privacy that juveniles enjoy under the Fourth Amendment is lessened to some extent by the rules and regulations juveniles are subject to by virtue of their status as juveniles. 36 For example, courts have recognized complete Fourth Amendment rights for juveniles who are searched and seized by the police outside of school. 37 However, juveniles can be detained by a police officer without a warrant for committing status offenses, such as drinking, smoking, truancy, and running away from home. 38 In addition to being detained for such an offense, the juvenile is also subject to a warrantless search by the arresting officer because that officer observed the juvenile committing the offense. 39 By virtue of reaching the age of majority, an adult would never 32 See generally, Gardner, 22 GA. L. REV. at Gardner, 22 GA. L. REV. at 906; see also GARDNER, supra note 15, at Id. 35 Id. (For example, the warrant requirement, requiring government officials to obtain a warrant in order to search a person s property...unless of course ) 36 Id. at Id. at GARDNER, supra note 15, at Gardner, 22 GA. L. REV. at 907; see also, GARDNER, supra note 15, at

7 be subject to such an offense and an adult could only be subject to a warrantless arrest if a police officer has probable cause that a felony has been committed. 40 In addition to status offenses, juveniles are also subject to compulsory education laws which require them to attend school until they reach a certain age usually between sixteen and eighteen years old. 41 If the juvenile is not enrolled in a private school or homeschooled, the juvenile must attend a public school, where he will be subject to additional rules and regulations, which would be unenforceable if he were an adult. 42 Public education in the United States is maintained by the federal and state governments, which in turn charge school officials with providing a safe learning environment. School officials provide this environment by establishing and enforcing codes of conduct, which have been adjusted over time to deal with new challenges faced by public schools every year in the forms of increased violence and drug use. 43 While combating these problems is important, the question becomes: how does society make sure innocent students are not collateral damage in the school officials pursuit of a safe learning environment? The United States Supreme Court developed a test for determining when searches of students by school officials are permissible, 44 but in the twenty years since its promulgation, few if any of the lower courts have been able to apply that test when students have claimed that violations have occurred at the hands school officials purporting to be performing their jobs. 40 See, GARDNER, supra note 15, at See generally, Gardner, 22 GA. L. REV. at See generally, GARDNER, supra note 15, at See, GARDNER, supra note 15, at See generally, Gardner, 22 GA. L. REV. at T.L.O., 469 U.S. at Id.at

8 The T.L.O. Test & Its Misapplication: In developing the standard for searches of students by school officials, the courts struggled with applying the rights guaranteed by the Constitution in the public school setting. 45 The courts acknowledged that students have some expectation of privacy in their person and in their belongings while attending school; yet, at the same time, because of compulsory education laws, school officials are charged with the responsibility of providing a safe learning environment. 46 In order to provide such an environment, the courts recognized that school officials have to enforce order, and occasionally, that means violating a student s privacy expectation through conducting a search. The courts started their analysis of student searches with the caselaw supporting police search and seizures of criminal suspects. 47 In adapting that caselaw to student searches, the courts concluded that since students and criminal suspects are not equally situated, students should be treated differently than suspects. 48 Therefore, courts prior to T.L.O. generally applied a different standard in upholding student searches. 49 Ultimately, T.L.O. established the test for determining the permissibility of a search of student by a school official; however, that was not the question presented by the lower New Jersey courts. 50 Instead, what the Supreme Court was asked to decide 45 See generally, T.L.O., 469 U.S. 325 (1985). 46 Id. at See generally, id. at Id. at 339 (Prisoners have a lower expectation of privacy while in jail and can be subjected to random searches with no suspicion necessary to justify the search; whereas students in school maintain their reasonable expectation of privacy and therefore, some level of reasonable suspicion is required prior to a search of the student being justified). 49See generally, id. at Id.,at

9 was whether the exclusionary rule was applicable to warrantless searches conducted by school officials where the evidence was later used in delinquency or criminal proceedings against the student searched. 51 In T.L.O., a search conducted by an assistant principal of T.L.O. s purse after she denied that she had been smoking in a school bathroom produced evidence that T.L.O. not only smoked but that she was dealing marijuana on school grounds. 52 When the evidence was produced at a delinquency hearing, T.L.O. challenged the admissibility of the search claiming that the search was illegal because it lacked the requisite reasonable suspicion to permit the search in the first place. 53 The New Jersey courts all determined that the Fourth Amendment applied to searches conducted by school officials, but they were split as to whether the search violated the Fourth Amendment and whether the exclusionary rule should apply in the case of an illegal search. 54 To answer the New Jersey courts question, the Supreme Court determined that it needed to decide the preliminary inquiry of when a search of a student by school officials was permissible. 55 The Supreme Court began its analysis by establishing that the restraints of the Fourth Amendment through the adoption of the Fourteenth Amendment applied to all state and federal government actors and not just law enforcement personnel. 56 The Court then stated that, despite what some lower courts may have held previously, school officials are not exempt from the application of the Fourth Amendment by virtue of the 51 Id., at 331 (The exclusionary rule is a rule of constitutional criminal procedure which works as a bar to the usage of illegally gathered evidence. The exclusionary rule is intended to make sure law enforcement plays by the rules by obtaining search warrants, having probable cause or exigent circumstances before conducting a search, giving a suspect his Miranda rights before questioning, etc. If a court determines that law enforcement violated a defendant s constitutional rights and, only by doing so, obtained the evidence law enforcement needed to charge the defendant with breaking the law, then the exclusionary rule would be applied, excluding all evidence obtained illegally from being used to convict the defendant. The exclusionary rule was therefore a judicially enforced deterrent used to protect criminal defendants constitutional rights). 52 Id. at Id. 54 Id. at Id. at Id. at ; see also ( [t]he basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. ) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967).). 9

10 fact that they work in the school setting and act in loco parentis in dealing with students. 57 The Court then addressed when a search by school officials is reasonable. The Court stated: The determination of the standard of reasonableness governing any specific class of searches requires balancing the need to search against the invasion which the search entails. On one side of the balance are arrayed the individual s legitimate expectations of privacy and personal security; on the other, the government s need for effective methods to deal with breaches of public order. 58 The Court continued by stating that applying the Fourth Amendment in the school context required balancing a child s interest in privacy against the school official s interest in maintaining an environment conducive to learning. 59 The Court also noted how school officials job in maintaining such an environment has become increasingly difficult. 60 Therefore, the Court concluded that rather than requiring the same restrictions under the Fourth Amendment as are applied to law enforcement, the school setting requires a modified level of suspicion for a search by a school official to be justified. 61 Instead of applying the probable cause standard that is required for police officers to conduct a search, school officials need only satisfy a standard of reasonableness. 62 The Court s test for reasonableness has two parts: first, a court must consider whether the action [by the school official] was justified at its inception, and second, the court must consider the scope of the search whether the search actually conducted 57 Id. at , ( In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents immunity from the strictures of the Fourth Amendment. ). 58 Id. 59 Id. at Id. ( Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crimes in schools have become major social problems. ). 61 New Jersey v. T.L.O., 469 U.S. 325, 340; see also T.L.O., 469 U.S. at footnote 6 (In coming to this conclusion, the Court was affirming caselaw from many other lower courts.) 62 Id. at

11 was reasonably related in scope to the circumstances which justified the interference in the first place. 63 To help determine whether the scope was reasonable, the Court set out the factors that should be considered: Under ordinary circumstances, a search of a student by a... school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessive in light of the age and sex of the student and the nature of the infraction. 64 After setting out the test, the Court applied the test to the facts of the case. In the case, the assistant principal questioned and searched T.L.O. s belongings after a teacher caught T.L.O. and another student smoking in a school bathroom. 65 A report from a teacher that the students were caught smoking in a school bathroom provided the assistant principal with reasonable suspicion that the students were breaking school rules. 66 This suspicion then permitted the assistant principal to conduct a cursory search of T.L.O. s purse after T.L.O. denied that she ever smoked because it was reasonable for the assistant principal to believe that evidence of the student s wrongdoing could be found in the student s belongings. 67 The initial search uncovered cigarettes and rolling paper. 68 The rolling paper allowed for a more thorough search of T.L.O. s purse because in the assistant principal s experience, possession of rolling paper by high school students was closely related to carrying marijuana. 69 This discovery along with the assistant principal s experience permitted him to examine the contents of 63 Id. at Id. 65 Id. at Id. at Id. at Id. at Id. at 347 (The Court defers to the knowledge and expertise of the school officials in knowing what goes on in the school setting. Therefore, school officials are in a better position to know what can be expected from discoveries of certain possessions.) 11

12 all of the zippered pockets of T.L.O. s purse. 70 That search revealed further evidence which showed that T.L.O. was in possession of and selling marijuana to fellow students. 71 The Court never expounded on the significance of a student s age or sex to the permissibility of the search. Instead, since the search satisfied all the elements of the reasonableness test and therefore did not violate the Fourth Amendment, there was no need to apply the exclusionary rule. 72 The Court held that the evidence that was discovered by the assistant principal was permissible in the delinquency hearing and T.L.O. s conviction was upheld. 73 The reasonableness test from T.L.O. seemed clear and straightforward, but as Justice Brennan intimated in his dissent, the new test would produce questionable results. 74 For example, three years after T.L.O. was decided, two eight-year-old second grade girls were strip searched twice when a classmate claimed she was missing seven dollars from her purse. 75 The student claimed that she had seen the two girls put the money into a backpack. 76 Prior to requiring the girls to remove their clothing, the teacher asked the class and the girls individually whether they knew anything about the missing money. 77 The teacher also conducted a search of the girls backpacks before taking the girls to the restroom. 78 Once in the restroom, the girls were required to take 70 Id. 71 Id. 72 Id. at Id. 74 See id. at 354 ( Today s decision sanctions school officials to conduct full-scale 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 test of the Fourth Amendment. In adopting this unclear, unprecedented, and unnecessary departure from generally applicable Fourth Amendment standards, the Court carves out a broad exception to standards that this Court has developed over years of considering Fourth Amendment problems. ) (Justice Brennan, who was joined by Justice Marshall, in his dissent agreed with the majority s balancing approach to school searches, but he disagreed with the new reasonableness standard. Justice Brennan believed that this new standard departed from prior precedent.). 75 Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821 (11th Cir. 1997). 76 Id. at Id. 78 Id. 12

13 off their clothes and come out of the stall with their underwear around their ankles. 79 After the first strip search failed to produce the money, the girls were taken to the principal s office and questioned again. 80 It was then suggested that the missing money was under a filing cabinet back in the classroom. 81 When a search under the filing cabinet produced nothing, the girls were taken back into the restroom and strip searched a second time. 82 The money was never found and the parents of the two girls filed suit against the school and the responsible officials. 83 Upon reaching the Eleventh Circuit Court of Appeals, the only question the court would address was whether the school officials in their individual capacity were qualifiedly immune from civil damages. 84 In the Eleventh Circuit s opinion, the law concerning strip searches of students was not clearly established at the time that the search was conducted. 85 Even though T.L.O. provided the test for determining whether a search of a student was permissible, the Eleventh Circuit stated that the T.L.O. opinion lacked detailed guidance. 86 Specifically, the Eleventh Circuit pointed out that the Supreme Court did not define what the factors reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction meant, which thereby left courts trying to follow the T.L.O. test with undefined parameters. 87 The Eleventh Circuit explained: 79 Id. 80 Id. at Id. 82 Id. 83 Id. 84 Id. 85 Id. at Id. at Id. [N]o reasonable school official could glean from these broadly-worded phrases whether the search of a younger or older student might be deemed more or less intrusive; whether the search of a boy or girl is more or less 13

14 reasonable, and at what age or grade level; and what constitutes an infraction great enough to warrant a constitutionally reasonable search or, conversely, minor enough such that a search of property or person would be characterized as unreasonable. 88 Because the Eleventh Circuit concluded that the law defining student strip searches was not clearly established at the time of the search, and therefore, the school officials could not have reasonably known that their actions in the situation violated the girls constitutional rights, the school officials were entitled to qualified immunity. 89 The Eleventh Circuit indicated that even though the school officials actions in this case were unreasonable, the status of the law did not allow the school officials to know that what they were doing would be found unreasonable. 90 Since the officials could not have known, the officials could not be held liable. 91 In a similar case decided more recently, thirteen fifth graders sued their school, their teacher, and a D.A.R.E. officer after they were all strip searched in order to find a missing envelope containing twenty-six dollars. 92 The students claimed that the searches failed T.L.O. s test. 93 The Eleventh Circuit again stated that T.L.O. failed to provide sufficient guidelines with which school officials could follow and be sure their actions are reasonable. 94 The opinion stated: As we have noted, the T.L.O. Court made no attempt to establish clearly the contours of a Fourth Amendment right as applied to the wide variety of possible school settings different from those presented by the facts of 88 Id. at Id. at Id. 91 Id. 92 Thomas v. Roberts, 323 F.3d 950 (11th Cir. 2003). 93 Id. at Id. 14

15 the T.L.O. case. 95 The Eleventh Circuit again found that the school officials were entitled to qualified immunity on the ground that the law was not clearly established at the time of the search. 96 The Eleventh Circuit is not the only circuit to struggle with applying the T.L.O. test. Just like the Eleventh Circuit, other circuits are unsure what the Supreme Court meant by some of the factors which are to be used by the courts in determining a search s scope was reasonable. For example, in a 1993 case, the Seventh Circuit found the accused school officials qualifiedly immune after they conducted a strip search of a sixteen year old male student based on an accusation by a teacher s aide that the student appeared to be too well-endowed. 97 Once the student s unusual appearance was confirmed by two school officials who were more acquainted with the student and who suspected that the student might be crotching drugs based on his unusual appearance and past behavior, the student was escorted by the two men to the boy s locker room and told to remove his clothing. 98 No drugs were ever discovered on the student. 99 The Seventh Circuit applied the two-part T.L.O. test to the facts of the case. 100 In applying the first prong of the T.L.O. test, whether the search was justified at its inception, the court considered the context of the school and the student s prior history. 101 The court stated that the fact that the student was part of a behavioral disorder program at the school would not, by itself, provide sufficient support for school officials to suspect the 95 Id. at Id. at 956 (The Eleventh Circuit also concluded that the case did not satisfy a newly established exception to qualified immunity.). 97 Cornfield v. Consolidated High Sch. Dist., 991 F.2d 1316, 1319 (7th Cir. 1993). 98 Id. 99 Id. 100 Id. at Id. at

16 student was violating school rules. 102 However, the school officials were able to satisfy the reasonable suspicion requirement by pointing to a number of separate instances where the student was alleged to be in possession of or using drugs on the school s campus. 103 The court also found significant the fact that the student could not refute many of these allegations. 104 In analyzing whether the officials had satisfied the second prong of the test, whether the search was permissible in scope, the Seventh Circuit made a heroic effort to try to expound upon the factors the Supreme Court listed as consideration for the second prong. 105 The Seventh Circuit referenced psychological research and other social studies to try to give some meaning to the Supreme Court s language. 106 However, the Seventh Circuit concluded that [a]lthough the Supreme Court in T.L.O. identified age as one of the factors used to evaluate the reasonableness of a search, it did not elaborate how age mattered. 107 In analyzing age as a factor for supporting the reasonableness of the search, the Circuit looked to the common law definitions of age. 108 The Seventh Circuit ultimately abandoned the T.L.O. test and applied qualified immunity. 109 It determined that since the student could not demonstrate that the actions of the school officials were outside of the scope of 102 Id. at 1322 ( The fact that students in such a program exhibit inconsistent behavior and that drug users behave erratically does not lead inevitably to a conclusion that a student in a behavioral disorder program is a drug user. ) 103 Id. (One of Cornfield s teachers pointed out in his affidavit: Cornfield once stated that prior to December of 1990 he was dealing drugs and that in February 1991, he would test positive for marijuana. The same teacher also believed that Cornfield has not successfully completed a drug rehabilitation program back in December On January 1991, Cornfield was in possession of a live bullet on school grounds. The affidavit included other incidents that occurred at an unspecified period.) 104 Id. at 1323 ( As the facts of this case stand...[the teachers] relied on a number of relatively recent incidents reported by various teachers and aides as well as their personal observations, the cumulative effect of which is sufficient to create a reasonable suspicion that Cornfield was crotching drugs. ). 105 Id. at Id. 107 Cornfield v. Consolidated High Sch. Dist., 991 F.2d 1316, 1321 (7th Cir. 1993). 108 Id. 109 Id. at

17 reasonableness and therefore not in violation of clearly established law, qualified immunity applied. 110 In a similarly-decided decision, the Sixth Circuit concluded that school officials were qualifiedly immune after conducting a strip search of twenty high school students when another student claimed her prom money was stolen. 111 After the student notified her teacher that her prom money was missing, the class was divided and the boys were sent to their locker room while the girls remained in the gym. 112 Book bags and other belongings were searched first. 113 When that search did not uncover the money, school officials decided to search the students, starting with the boys in the locker room. 114 Each boy was taken individually into the shower area and required to remove his shirt and take off his pants and underwear. 115 Afterwards, the girls were taken into the girl s locker room and required to lift up their shirts and pull down their pants, but they were not required to remove their underwear. 116 Despite all of searching, the stolen money was never recovered. 117 In reviewing the case, the Sixth Circuit found that the search was justified at its inception, thereby satisfying the first prong of T.L.O. 118 It stated some search of the persons and effects of students may be warranted when substantial property has been reported recently stolen. 119 However, just like the Seventh Circuit, the Sixth Circuit found the scope of the searches was beyond what was constitutionally 110 Id. at Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 601 (6th Cir. 2005). 112 Id. 113 Id. 114 Id. 115 Id. 116 Id. at Id. 118 Id. at Id. at

18 reasonable. 120 Just like the previous examples from the Eleventh and Seventh Circuits, the Sixth Circuit tried to apply the T.L.O. test, but it too found the test to be lacking. 121 It stated: The Supreme Court cases on school searches...set forth basic principles of law relating to school searches, yet do not offer the guidance necessary to conclude that the officials here were, or should have been, on notice that the searches performed in this case were unreasonable. 122 The Sixth Circuit continued by quoting the T.L.O. two prong test and the factors that should be considered in determining reasonableness and then stated: Yet the Court did little to explain how the factors should be applied in the wide variety of factual circumstances facing school officials today. 123 It finished by stating: [T]his court has previously recognized that the reasonableness standard articulated in New Jersey v. T.L.O. has left courts later confronted with the issue either reluctant or unable to define what type of official conduct would be subject to a 42 U.S.C cause of action. 124 Based on these conclusions, the Sixth Circuit determined that the law at the time of searches was not clearly established to put school officials on notice that their actions were unconstitutional, and therefore, qualified immunity applied. 125 Returning to Redding: As the above examples illustrate, courts all over the country have struggled with applying the T.L.O. reasonableness test. The Redding case was an opportunity for the Supreme Court to address what was lacking from T.L.O., yet the Court simply agreed 120 Id. ( The scope of the searches in the instant case, however, viewing the facts in the light most favorable to the plaintiffs, does not pass constitutional muster. ). 121 Id. at Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 607 (6th Cir. 2005). 123 Id. 124 Id. 125 Id. at

19 with what the lower courts had been saying about T.L.O. that the law concerning student searches by school officials was not clearly established. 126 The T.L.O. Court recognized that students have a significant privacy interest in their bodies search of a child s person...is undoubtedly a severe violation of subjective expectations of privacy. 127 Yet, because the Court promulgated a factors test which lacked defined variables, the Court has allowed that significant privacy interest to be violated with impunity. Unlike other commentators who claim T.L.O. s problem is the lack of an individualized suspicion standard, 128 the problem with T.L.O. is what the Court left unexplained in T.L.O. as well as what the Court refused to clarify in Redding. The lower reasonableness standard that the Court established in T.L.O. rather than using the probable cause standard associated with all other Fourth Amendment searches is not a problem because school officials need to be able to act quickly and decisively in order to maintain[] discipline in the classroom and on school grounds. 129 The Court was right in deferring to the knowledge and expertise of school officials in determining when a student s actions are suspicious, thereby justifying the need for a search. As demonstrated by the above cases, the circuit courts have not struggled in applying this first prong of the reasonableness test. The second prong, the question of scope of the search, is where the courts are unsure. The majority s opinion in T.L.O. provides some wonderful language with the factors to consider when looking at scope, 130 but that 126 Redding, 129 S.Ct (2009). 127 T.L.O., 469 U.S. at See generally, Gardner, 22 GA. L. REV. at T.L.O. 469 U.S. at Id. at 342 ( Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. ). 19

20 language is empty in terms of application because the Court does not define its terms, neither through the Court s application of the test to the T.L.O. facts, nor through a general set of guidelines. Unlike three of the above examples, Redding dealt with the very serious issue of student drug possession and distribution rather than stolen money. 131 The Redding appellate briefs indicated that the Safford School District, not unlike many school districts around the country, had a history of substance abuse problems by its students. 132 In addition, a few years before Savana Redding was strip searched, a student was hospitalized after ingesting prescription drugs provided by another student. 133 Obviously Safford School District had reasons for its rule against students possessing prescription drugs without prior permission. Consequently, the week prior to Redding s strip search, another student told school officials that students were bringing drugs to school. 134 Then, on the same day that school officials searched Redding, the same student came to school officials and gave them a white pill the student said he had received from Marissa Glines. 135 This same student informed officials that students were planning on taking the pills at lunchtime. 136 These facts supported school officials decision to detain and search Marissa Glines. 137 The search of Glines possessions produced the planner with the other pills inside. 138 Glines assertion that she had received the pills from Redding provided school officials a reason to question 131 See generally, Redding, 129 S.Ct (2009). 132 Id. at Id. at Id. 135 Id. 136 Id. 137 Id. 138 Id. at

21 Redding. 139 Applying the first part of the reasonableness test, when Redding admitted owning the planner, but denied knowing anything about the pills, school officials were justified in their search of Redding s belongings, even without her consent, because they had reasonable suspicion that she was violating school rules based on her admitted connection to the planner and Glines claim that Redding gave her the pills. 140 However, when the search of Redding s belongings turned up no new evidence of wrongdoing, the officials should have stopped there. 141 Deciding that Redding was probably secreting away the drugs in some intimate place exceeded the scope of the search that was originally justified by the evidence already uncovered. 142 The drugs involved in Redding were prescription-strength ibuprofen and overthe-counter naproxen, which if taken in large quantities or in combination with certain other drugs can result in serious bodily injury and death. 143 However, as indicated in the concurring opinion, naproxen and ibuprofen are not the prescription drugs students abuse because these drugs do not provide the high for which students are aiming. 144 As the majority opinion states, if the drugs involved in this case were more lethal, a more intrusive and extensive search would have been supported. 145 Other factors working against a determination that the search of Redding was reasonable include: the fact that the school officials did not try to verify when Glines received the pills for Redding as well as the lack of questioning by school officials of the student who first notified them that students were bringing drugs to school in order to 139 Id.at Id.at Id.at See generally, Safford United Sch. Dist. #1 v. Redding, 129 S.Ct. 2633, (2009). 143 Id. at Id. 145 Id. at

22 verify whether he had any grudge to bear against either Glines or Redding in bringing his allegations against them. 146 It certainly would not be unreasonable to suspect that the whistleblower might have an ulterior motive in providing the information to school officials. It is true that school officials suspected Glines and Redding were part of a rowdy group of students who were suspected of drinking and smoking at a school dance earlier in the year. 147 It is also true that school officials had heard that Redding hosted a party at her parents house where drugs and alcohol were served. 148 (This information was again provided by the same student who tipped off school officials about receiving the pills from Glines). However, these factors either occurred in months prior to the date of the strip search or were unsubstantiated rumors, neither of which could have supported strip searching Redding for prescription pain relievers. Ultimately, the Supreme Court in Redding should have taken the opportunity to explain the factors it listed in T.L.O. that help determine whether the scope of a school official s search was permissible. Otherwise, the Court should have come up with a new test which could be applied to the wide variety of situations in which school officials find themselves. Perhaps school officials themselves should take some steps to avoid further violations. For example, at least one school district has completely forbidden some forms of strip searching of students. 149 Another suggestion for school officials is to conduct a brief risk analysis prior to strip searching based on the circumstances, looking at the potential for harm to the body of students they are trying to protect compared to the individual student s privacy interest. Certainly, it can be agreed that strip searching 146 Id. at Id. at Id. 149 See Gardner, 22 GA. L. REV. at 946; see also Hogan & Schwartz, The Fourth Amendment and the Public Schools, 7 WHITTIER L. REV. 527, (1985). 22

23 for lost money is probably never justified (even if the circuit courts have seemingly allowed these searches after the fact.) Stolen money does not pose the same risk of injury or other bodily harm that drugs and weapons pose, both of which would justify strip searching a student if the reasonableness test was satisfied. The solutions that could be offered in lieu of justifying strip searching students are endless. The most immediate and practical solution is to urge public school officials to change their policies since it appears the Supreme Court is willing to leave the law unclear. Conclusion: The best interests of the child are not served when public school officials are permitted to strip search students. Given the breadth and range of disorders to which the T.L.O. test has been applied, the reasonableness test is too diffuse and can lead to a significant invasion of a juvenile s expectation of privacy versus a relatively low risk of harm to the rest of the student body that is supposed to be protected by school officials. Students need a safe and secure environment in which to learn. Students who are juveniles need to be in school in order to develop the skills and values necessary to be prepared to take care of and responsibility for the rights that are recognized as inherent in the when they become adults. School officials need to be able to set and enforce school rules, but enforcement of those rules must be tempered by the application of the best interests of the child standard. The Supreme Court applied the best interests of the child standard in creating the T.L.O. reasonableness test. 150 The Court also intentionally left the test vague in order to not interfere with school officials duties See generally, T.L.O., 469 U.S. at Id. 23

24 However, the Court left the test ineffective by refusing to explain some of the factors it listed for the courts to use in applying the test. In order for the test to become effective and for our children to learn to value the rights that will be bestowed upon them when they reach adulthood, the Supreme Court needs to explain the unclear factors and make the law governing strip searches of students clearly established. In the meantime, school officials should take the initiative to change their local school policies in order to better respect the privacy expectation of their students while also working to maintain a safe educational environment. 24