IBUPROFEN STRIP-SEARCH - AT 13

"This is a difficult case," writes Judge Michael Hawkins, dissenting
from a recent decision by the U.S. 9th Circuit Court of Appeals. That
is not the way most people respond when they hear about Savana
Redding, who was strip-searched in 2003, when she was 13, by Arizona
public school officials looking for ibuprofen pills in her underwear.

Nor is it how most of Judge Hawkins' colleagues reacted. Eight of the
11 judges who heard the case agreed that Vice Principal Kerry Wilson's
decision to order a "grossly intrusive search of a middle school girl
to locate pills with the potency of two over-the-counter Advil
capsules" violated Savana's Fourth Amendment rights.

But Judge Hawkins' conclusion that the fruitless strip search was
reasonable under the circumstances, an opinion shared by two of his
9th Circuit colleagues and the federal judge who first heard the case,
shows Mr. Wilson is not alone in thinking that when it comes to
preventing teenagers from using drugs, pretty much anything goes. The
U.S. Supreme Court itself has come perilously close to endorsing that
position.

In a 1985 decision upholding a high school principal's perusal of a
purse belonging to a freshman who was caught smoking in the girls'
room (a search that found marijuana as well as cigarettes), the Court
said public school officials, as agents of the government, are bound
by the Fourth Amendment's prohibition of unreasonable searches and
seizures. But given the importance of maintaining order at school, it
said, officials do not need a warrant or probable cause to search a
student; it's enough that the search is "justified at its inception"
and "reasonably related in scope to the circumstances which justified
the interference."

In subsequent cases, the Court has indicated that a search can be
deemed reasonable even when officials have no grounds to suspect a
student has done anything wrong. In 1995, it upheld random drug
testing of student athletes, and in 2002, it said that requirement
could be extended to all students participating in extracurricular
activities.

To justify compelling a student to urinate into a cup under a
teacher's supervision and surrender the sample for laboratory
analysis, the Court not only did not require any evidence that the
student was using drugs; it did not require any evidence of a drug
problem at the school. The fear of a potential drug problem was
enough, in its view, since "the nationwide drug epidemic makes the war
against drugs a pressing concern in every school."

This pronouncement (which came at a time when illegal drug use among
high school students was declining) would seem to justify random urine
testing of all students, whether or not they join the football team or
drama club. When anti-drug hysteria is so widespread that the nation's
highest court suggests the crusade for pure bodily fluids trumps the
Constitution, you can start to see how someone like Kerry Wilson might
conclude that it was reasonable to make an honor student with a clean
disciplinary record disrobe based on a fellow eighth-grader's
uncorroborated accusation that she had brought unauthorized Advil to
school.

The drug policy at Mr. Wilson's school, which bans even
over-the-counter medication without advance approval, exemplifies the
"zero tolerance" zealotry that has been embraced by schools throughout
the country. According to advocates of this approach, preventing drug
abuse is so important that schools should rigidly enforce clear,
simple rules without regard to a student's intent or the danger he
poses.

Combine this mind-set with a greenish light from the Supreme Court,
and you may see extreme measures like strip searches deployed against
trivial offenses like ibuprofen possession. As Judge Hawkins notes,
the Supreme Court's test for student searches "eschews any clear rules
in favor of a highly abstract balancing standard that is meant to
reflect nothing more than 'the dictates of reason and common sense.' "
The problem with this standard, as Kerry Wilson showed, is that common
sense is not as common as it should be.