By Erwin Chemerinsky
Dean and Distinguished Professor of Law, University of California, Irvine, School of Law

 

Is it unconstitutional for school administrators to strip search a seventh grade girl to look for prescription

strength ibuprofen? One would think that the answer would be clear, but the matter is now pending before the Supreme Court and will be decided by the end of June. The case, Safford Unified School District v. Redding, is likely to be one of the most important in years in defining the rights of students in public schools.

School officials suspected that the girl, a seventh grader, had given the pain reliever to another student. Two female school administrators made the student remove all her clothes, except for her bra and underwear, and then even looked inside her underwear for signs of the drugs. Nothing was found.

The girl sued arguing that her constitutional rights had been violated. In a narrow, 6-5 opinion, the federal court of appeals ruled in the student’s favor, but in January 2009, the Supreme Court granted review. The majority of the federal court of appeals said that the school officials’ actions violated common sense and basic human decency.


Forty years ago, the Supreme Court powerfully proclaimed that students do not leave their constitutional rights at the schoolhouse gates. That case, Tinker v. Des Moines Board of Education, involved high school students who were suspended from school for wearing black armbands protesting the Vietnam War. The Supreme Court ruled that the school’s administrators violated the freedom of speech of students, which is protected by the First Amendment. The court explained that schools may punish student speech only if it is actually disruptive of school activities.

But over the four decades since Tinker, students have lost virtually every major case before the Supreme Court. One justice, Clarence Thomas, has gone so far as to declare that students have no constitutional rights in schools. He argues that schools act in a parental role—in loco parentis—and thus should not have to comply with the Constitution.

Thankfully, no other justices have embraced this view, but their decisions have repeatedly refused to provide any constitutional protection for students’ rights. For example, the Supreme Court has held that schools may use corporal punishment, spanking of students, and need not provide any form of due process to students before this is administered.
In the area of freedom of speech, for the last several decades, every Supreme Court case involving student expression has been won by the schools. In one case, over 20 years ago, a student gave a speech nominating another student for a position in student government. The speech actually had no profanities, but it was filled with sexual innuendo. As a result, the speaker was suspended for a few days and kept from speaking at his graduation as scheduled. The student took the case all the way to the Supreme Court and lost. The Court ruled that schools are responsible for teaching civilized discourse to students and can punish speech that they deem objectionable.


More recently, two years ago, the court dealt another serious blow to First Amendment protection of student speech in high schools. The Olympic torch was coming through Junaeau, Alaska. The students were released from their classes to stand on the sidewalks and watch the torch come by. A student got together with some friends and unfurled a banner, which said, “Bong Hits 4 Jesus.”

Here, I agree with something that Justice David Souter said at oral argument: I have no idea what that means. But the principal interpreted the banner as a message to encourage illegal drug use and suspended the student from school. There was no evidence that the banner had the slightest disruptive effect in the school; nor that it had any effect in increasing drug use.

The Supreme Court, in a 5-4 decision, ruled in favor of the school officials. The Court said that schools have an important interest in discouraging drug use and may punish student speech, which they believe encourages such behavior. Lower courts over the last year and a half have interpreted this as giving even greater latitude to school officials to punish student speech.

Likewise, the Supreme Court has given school officials far more ability to search students than the government would have in any other context. Generally, the Fourth Amendment requires that a judge approve a search by issuing a warrant. In some circumstances, police can search without a warrant, but only if there is probable cause to believe that a crime was committed, that evidence can be gained of it and that there are good reasons for not requiring a warrant. But this protection against unreasonable searches and seizures is not followed in schools.

For instance, the Court has ruled that school districts can impose random drug testing of all high school students engaged in high school athletics or of all students engaged in any extracurricular activity. In no other context has the Court approved such blanket drug testing. Also, the Court has said that schools can search students’ purses and backpacks so long as there is “reasonable suspicion,” a much easier legal standard to meet than probable cause.


The case now pending before the Supreme Court involves an egregious violation of the student’s rights. Strip searching a student and examining the most private parts of her body is grossly demeaning and degrading. But if history is a guide, a majority of the court will proclaim a need to defer to school officials.

Such extreme deference, though, is not needed for education. How can we hope to teach students about the constitution and the importance of constitutional rights if schools are free to disregard the constitution with impunity? Schools, of course, need to maintain order, but strip searches to find ibuprofen are not needed to achieve this goal. Punishing a banner saying, “Bong Hits 4 Jesus,” is not needed to fight illegal drugs.

My hope is that the court will return to the powerful words from four decades ago and reaffirm that students do not leave their constitutional rights at the schoolhouse gate.