Unconstitutional Strip Search Does Not Strip School Officials of Qualified Immunity

The United States Supreme Court ruled yesterday in Safford Unified School District #1, et al. v. Redding that a school official's search of a thirteen-year-old student's bra and underpants violated her Fourth Amendment right to be free from unreasonable searches. But in a second part of the opinion with significance beyond the school setting, the Court held that the officials were entitled to qualified immunity, as the unconstitutionality of such a search was not "clearly established" when they conducted it. This decision is important to all public officials who may assert a qualified immunity defense, because it reaffirms the rule that the official must be on notice that her conduct violates a clearly established right before she can be subjected to a lawsuit, or, ultimately, liability.

In the underlying action, a public middle school official searched thirteen-year-old Savanna Redding, whom the school suspected of distributing contraband pills. A fellow student tipped off the assistant principal, who searched Redding's backpack, and found nothing; he then instructed his administrative assistant and the school nurse, both female, to search Redding's person--requiring her to remove all outer clothes and turn out her bra and underpants. There were no pills. Redding's mother sued the school district and all three officials, contending that the search had violated her daughter's Fourth Amendment right to be free from unreasonable searches. The District Court ruled against Redding, finding the search reasonable.

A three-judge Ninth Circuit panel initially affirmed that decision by a 2-1 vote. But in a 6-5 decision, an en banc panel reversed, ruling that the search violated Redding's Fourth Amendment rights and that the school officials were not entitled to qualified immunity. That was because Redding's right to be free of such a search was "clearly established," the majority held, when the officials conducted the search. Writing for the majority, Judge Kim M. Wardlaw announced a rule that constitutional rights may be "clearly established" not only by the decisions of the courts, but by the principles of "common sense and reason [that] supplement the federal reporters."

Among the Ninth Circuit dissenters, Judge Michael D. Hawkins pointed out the dangers of a test premised on "common sense." If "three of the first four judges to address this issue found the Redding search to be constitutional, and two more judges on this en banc panel are of the same view," he reasoned, it is unfair to expect school officials without legal training to be on notice of their potential liability merely by using "common sense and reason."

The Supreme Court granted a petition for certiorari to review the case. And yesterday, the Court affirmed in part and reversed in part. Eight Justices agreed that the search was excessive in scope given the circumstances, and therefore unconstitutional. But seven Justices agreed that the school officials were nonetheless entitled to qualified immunity. Writing for the majority, Justice Souter noted that a number of well-reasoned federal appellate court majority and dissenting opinions had disagreed about the scope of students' Fourth Amendment rights in the specific context of strip searches in public schools. This cast doubt on whether the Supreme Court had been sufficiently clear in its prior statement of law. The Court cautioned that "the fact that a single judge, or even a group of judges, disagrees about the contours of a [constitutional] right does not automatically render the law unclear if we [the Supreme Court] have been clear." But in this case, the Court found the disagreement among federal judges about public school strip searches substantial enough that the right at issue had not been "clearly established." That entitled the school officials to qualified immunity.

This decision is important for public officials because it effectively eliminates the Ninth Circuit's rule that constitutional rights may be "clearly established" not only by the decisions of the courts, but by the principles of "common sense and reason"--a rule that threatened to curtail the qualified immunity defense. It is unclear, however, whether this ruling strengthens the requirement that a Constitutional right be "clearly established" before a public official or employee can be subject to a lawsuit, or simply restores that requirement to where it was before the Ninth Circuit's en banc ruling in Redding. The Court's analysis of that issue is very brief, relying only on the dispute among prior federal appellate opinions. In addition, the constitutionality of student searches in public schools is an area of law in which, as the Court noted, it is extremely hard to formulate clear rules that go beyond the facts of each individual case. It is hard in such an area to ever have a "clearly established" rule sufficient to deprive a public official or employee of qualified immunity. Thus, the degree to which public officials and employees will be able to extend Redding's qualified immunity analysis to other contexts will have to be determined over time.

For more information on this Supreme Court ruling or other appellate matters, please email Jospeh Quinn or Tricia Hynes or call 510.808.2000.