JUSTICES TO HEAR 2 CASES BROUGHT AGAINST SCHOOLS

WASHINGTON -- The Supreme Court agreed Friday to decide two cases
pitting parents against public schools.

One concerns a 13-year-old honor student who was subjected to a strip
search by school officials in Arizona looking for
prescription-strength ibuprofen.

The second considers whether public school systems must reimburse
parents who choose to send children with disabilities to private
school without receiving services from a public program first. The
issue may sound familiar, as the court looked at that precise
question in 2007, when it found itself in a 4-to-4 deadlock after
Justice Anthony M. Kennedy disqualified himself without explanation.

The strip-search case was brought by the mother of Savana Redding,
who in 2003 was an eighth-grade student at a public middle school in
Safford, Ariz. Another student, found with ibuprofen pills in
violation of a strict school policy, said Savana had given them to her.

School officials searched Savana's belongings, made her strip to her
bra and underwear, and ordered her, in the words of an appeals court,
"to pull her bra out to the side and shake it" and "pull out her
underwear at the crotch and shake it." No pills were found. The pills
that prompted the search had the potency of two over-the-counter
Advil capsules.

A trial judge dismissed the parent's case against the school
officials, ruling that they were immune from suit. After a divided
panel of the United States Court of Appeals for the Ninth Circuit
affirmed that decision, the full appeals court agreed to a rehearing.
By 6 to 5, a larger panel of the court reversed the decision, saying
the suit could go forward against the assistant principal who had
ordered the search.

"It does not require a constitutional scholar to conclude that a nude
search of a 13-year-old child is an invasion of constitutional rights
of some magnitude," Judge Kim McLane Wardlaw wrote for the majority,
quoting a decision in another case. "More than that: it is a
violation of any known principle of human dignity."

Judge Michael Daly Hawkins, dissenting, said the case was in some
ways "a close call," given the "humiliation and degradation" Savana
had endured. But, Judge Hawkins concluded, "I do not think it was
unreasonable for school officials, acting in good faith, to conduct
the search in an effort to obviate a potential threat to the health
and safety of their students."

"I would find this search constitutional," he wrote, "and would
certainly forgive the Safford officials' mistake as reasonable."

In an aside, he discounted Savana's school record. "Unless we think
that the Fourth Amendment gives greater protection to good test
takers," he added, "there is only so much weight we can give to
Redding's honor-student status."

In its brief urging the Supreme Court to hear the case, Safford
Unified School District v. Redding, No. 08-479, the school district
said requiring "probable cause for some searches in the school
setting that may be deemed more intrusive" created "a roadblock to
the type of swift and effective response that is too often needed to
protect the very safety of students, particularly from the threats
posed by drugs and weapons."

The second case, Forest Grove School District v. T.A., No. 08-305,
appears to present precisely the same question over which the Supreme
Court deadlocked two years ago in a case brought by Tom Freston,
former chief executive of Viacom: Does the Individuals With
Disabilities Education Act, a federal law, allow courts to make
school districts pay for private special education when the students
in question have not first received services from a public agency?

In the new case, the parents of a high-school junior in Forest Grove,
Ore., identified only as T.A., moved him in 2003 to a residential
private school after he experienced emotional and educational
difficulties, some relating to drug use. The parents sought
reimbursement for $5,200 a month in private-school tuition.

The disabilities law allows courts to require reimbursement for
students who have "previously received special education and related
services under the authority of a public agency." T.A.'s parents
conceded that they had not received such services.

A divided three-judge panel of the Ninth Circuit said strict
adherence to the wording of the statute would lead to an "absurd
result" in cases where the school district was uncooperative or could
not supply appropriate special education.

It is not clear whether the circumstances that led Justice Kennedy to
disqualify himself from the Freston case in 2007 have changed. But
the court's order Friday accepting the new appeal did not indicate
any recusals.