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SaffordUnifiedSchoolDist.No.1v.
Redding:QualifiedImmunityShields
SchoolOfficialsWhoOrderedStrip
SearchofThirteenYearOldGirl

RYANE.THOMAS*

ABSTRACT

New Jersey v. T.L.O. established the standard governing searches of

students in our nations schools. It endures as the controlling law over
school officials. In T.L.O., the U.S. Supreme Court held that a search and
seizurebyschoolofficialswithoutawarrantwasconstitutionalaslongas
thesearchwasdeemedreasonablegiventhecircumstances.SaffordUnified
SchoolDist.No.1v.Reddingheldthat,whilethestripsearchofathirteen
yearold student was unreasonable, the school official who ordered the
search was entitled to qualified immunity because the searchs
unconstitutionalitywasnotclearlyestablishedatthetimeoftheviolation.
This Comment argues that the Supreme Court erred in applying
qualifiedimmunityinRedding.Asearchorderedbyaschoolofficial,even
ifjustifiedatitsinception,crossestheconstitutionalboundaryifitbecomes
excessively intrusive in light of the age and sex of the student and the
natureoftheinfraction.Inthiscase,thenatureoftheallegedinfraction,the
slim basis for suspecting that the student possessed contraband, and her
age and sex established beyond doubt that the strip search conducted by
schoolofficialscouldnotbereconciledwithT.L.O.

* Candidate for Juris Doctor, New England School of Law (2011). B.S., Criminal Justice,

Northeastern University (2003). I would like to thank Jennifer Patry for her tremendous
patienceandunwaveringsupportduringthewritingofthisComment.

267
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INTRODUCTION

S
avana Redding recalls the clothes she was wearing on the day that
schoolofficialsrequiredhertostripsevenyearsago.1Atthetime,she
was thirteen and in the eighth grade.2 The assistant principal
suspected that Savana brought prescriptionstrength ibuprofen pills to
school.3 The events prior to the search began in Savanas math class in
October 2003.4 That morning, Jordan, a fellow student, approached
AssistantPrincipalKerryWilsonandalertedhimthatagroupofstudents
were planning to take pills during lunch.5 Jordan produced a white pill,
identified as a 400milligram tablet of prescription ibuprofen.6 Jordan
informed Wilson that he received the pill from fellow student, Marissa
Glines.7 Wilson brought Marissa into his office and searched her
belongings.8 The search revealed additional pills.9 Prior to being
summoned to Wilsons office, a classroom search of the planner revealed
knives, a cigarette, and a lighter.10 Upon questioning, Marissa stated that
she had received the pills from Savana.11 Wilson called Savana to his
office.12 Savana, an honors student, had never been disciplined before by
theschool.13Intheoffice,WilsonshowedSavanatheopeneddayplanner,
which displayed the contraband discovered earlier.14 When asked who
ownedtheplanner,Savanaadmittedownership,butstatedshehadlentit
toherfriend,Marissa,afewdaysearlier.15Savanadeniedownershipofall
theitemsinthedayplanner.16
Wilson next displayed four prescriptionstrength 400milligram

1Adam Liptak, StripSearch of Young Girl Tests Limit of School Policy, N.Y. TIMES, Mar. 24,

2009,atA1,availableat2009WLNR5517557.
2Id.

3Id.

4SaffordUnifiedSch.Dist.No.1v.Redding,129S.Ct.2633,2638(2009).
5Reddingv.SaffordUnifiedSch.Dist.No.1,531F.3d1071,1076(9thCir.2008),affdinpart,

revdinpart,129S.Ct.2633(2009).
6Id.

7Redding,129S.Ct.at2640.

8Redding,531F.3dat1076.

9Id.at107476.

10Id.at1076.

11Id.

12Id.at1074.

13Brief for Respondent at 1, Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633

(2009)(No.08479).
14Redding,129S.Ct.at2638.

15Id.

16Id.
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2010 Safford Unified School District No.1 v. Redding 269

ibuprofen pills and one overthecounter 200milligram naproxen pill.17

These pills were banned under school rules without prior permission.18
Savanadeniedanyknowledgeofthepills.19WilsontheninformedSavana
that he had received a report that she distributed these pills to fellow
students.20 Savana denied his assertion and consented to a search of her
belongings.21 Wilson and his administrative assistant, Helen Romero,
searchedSavanasbackpack,findingnothing.22
Wilson next instructed Romero to take Savana to the school nurses
office to search her clothing for pills.23 Romero and the nurse, Peggy
Schwallier, had Savana undress down to her bra and underwear.24 The
schoolofficialsinstructedSavanatopulloutherbratothesideandshake
it, and then to pull out the elastic band of her underwear.25 Savana
complied with the instructions, which required exposing her breasts and
pelvicarea.26
Savanas mother filed suit against the Safford School District, Wilson,
Romero, and Schwallier for conducting a search in violation of Savanas
Fourth Amendment right against unreasonable searches and seizures.27
The defendants moved for summary judgment, raising the defense of
qualifiedimmunity.28TheDistrictCourtfortheDistrictofArizonagranted
themotion,findingthattherewasnoFourthAmendmentviolation.29The
NinthCircuitCourtofAppeals,sittingenbanc,30reversed.31Followingthe
twostep test for qualified immunity, the court held that the strip search
was unjustified under the Fourth Amendment test for student searches

17Id.IbuprofenandnaproxenarecommonlyreferredtoasAdvilandAleve,respectively.

Seeid.at2642&n.4.
18Id.at2638.

19Id.

20Redding,129S.Ct.at2638.
21Id.

22Id.
23Id.

24Id.

25Id.

26Redding,129S.Ct.at2638.

27Id.

28Id. Qualified immunity is [i]mmunity from civil liability for a public official who is

performing a discretionary function, as long as the conduct does not violate clearly
establishedconstitutionalorstatutoryrights.BLACKSLAWDICTIONARY818(9thed.2009).
29Redding,129S.Ct.at2638.

30Enbanc means[w]ithalljudgespresentand participating;in fullcourt.BLACKS LAW

DICTIONARY606(9thed.2009).
31Reddingv.SaffordUnifiedSch.Dist.No.1,531F.3d1071,1089(9thCir.2008).
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270 NewEnglandLawReview v.45|267

conducted by school officials created in New Jersey v. T.L.O.32 The Ninth

CircuitconcludedthatSavanasFourthAmendmentrightagainstunlawful
searcheswereclearlyestablishedatthetimeofthesearch,andstatedthat
[t]hese notions of personal privacy are clearly established in that they
inhereinallofus,particularlymiddleschoolteenagers,andareinherentin
the privacy component of the Fourth Amendments proscription against
unreasonablesearches.33ThecourtthenreversedtheDistrictCourtsgrant
of summary judgment in favor of Wilson, and affirmed the judgments of
Romero and Schwallier, since they had not acted as independent
decisionmakers.34 The United States Supreme Court granted certiorari,35
and affirmed the Ninth Circuits holding that the search of Savana was
unreasonable and violated the Fourth Amendment, but held that
petitioners Wilson, Romero, and Schwallier were protected from liability
bythedoctrineofqualifiedimmunity.36
This Comment will argue that Kerry Wilson, the assistant principal,
shouldnothavebeenaffordedqualifiedimmunitybytheSupremeCourt.
PartIdiscussesthelawgoverningthesearchesofstudentsbypublicschool
officials. Part II examines the doctrine of qualified immunity and its
application.PartIIIexamineshowtheSupremeCourtappliedthedoctrine
of qualified immunity in Redding. Finally, Part IV will discuss why the
Court erred in its application of the doctrine and why Assistant Principal
Wilsonshouldnothaveescapedliabilityasaresult.

I. LawGoverningtheSearchesofStudentsbyPublicSchoolOfficials

A. SearchesofStudentsbyaSchoolOfficial:NewJerseyv.T.L.O.37

In New Jersey v. T.L.O.,38 the Supreme Court set the standard for
analyzingthelegalityofstudentsearchesinpublicschools.39InT.L.O.,two
high school females were caught smoking in the school restroom, in
violation of school rules.40 Mr. Choplick, the assistant vice principal,

32Id.

33Id. at 108889 (quoting Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 499 (6th Cir.

2008)).
34Id.at1089.

35SaffordUnifiedSch.Dist.No.1v.Redding,129S.Ct.2633,2639(2009).

36Id.at2644.

37469U.S.325(1985).

38Id.

39SWORD AND SHIELD: A PRACTICAL APPROACH TO SECTION 1983 LITIGATION 429 (Mary

MassaronRoss&EdwinP.Voss,Jr.eds.,3ded.2006).
40469U.S.at328.
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questioned both students.41 While T.L.O.s coviolator admitted to

smoking, T.L.O. denied that she had been smoking and strenuously
asserted that she did not smoke at all.42 Mr. Choplick requested T.L.O.
comeintohisofficeanddemandedtoseeherpurse.43Openingthepurse,
he discovered a pack of cigarettes, which he removed and held before
T.L.O.44Ashereachedintothepurseforthecigarettes,Mr.Choplickalso
noticedapackageofcigaretterollingpapers.45Inhisexperience,possession
of these rolling papers by students was indicative of marijuana use.46 Mr.
Choplick searched the purse more thoroughly believing that further
examinationofT.L.O.spursewouldproduceotherevidenceofdruguse.47
The search yielded a small amount of marijuana, a pipe, a number of
empty plastic bags, a large sum of money, a card with a list of students
names owing T.L.O. money, and two letters that implicated T.L.O. in
marijuanadealing.48
T.L.O.s mother and the police were notified, and the evidence was
turnedovertothepolice.49ThepolicerequestedT.L.O.smothertakeherto
the police station, where T.L.O. confessed that she had been selling
marijuanaatthehighschool.50Asaresult,theStateofNewJerseybrought
delinquency charges against T.L.O.51 T.L.O. moved to suppress the
evidence found in her purse, contending that Mr. Choplicks search
violatedherFourthAmendmentrights.52
TheSupremeCourtheldthataschoolsearchwillbepermissibleinits
scopewhenthemeasuresadoptedarereasonablyrelatedtotheobjectives
ofthesearchandnotexcessivelyintrusiveinlightoftheageandsexofthe
studentandthenatureoftheinfraction.53TheCourtheldthatstudentsdo
notlosetheirconstitutionalrightsuponenteringtheschool;however,the
schoolsettingrequiressomeeasingoftherestrictionstowhichsearchesby
public authorities are ordinarily subject.54 The Court concluded that

41Id.

42Id.
43Id.

44Id.

45Id.

46T.L.O.,469U.S.at328.

47Id.

48Id.

49Id.

50Id.at32829.

51Id.at329.

52T.L.O.,469U.S.at329.

53Id.at342.

54Id.at340.
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requiring a warrant was inappropriate for the school environment.55

Whetherasearchofastudentinaschoolislegaldepend[s]simplyonthe
reasonableness, under all the circumstances, of the search.56 In order to
determine the reasonableness of the search, a twostep process is
required.57 The first inquiry is whether the action was justified at its
inception.58 The second question is whether the search as conducted,
was reasonably related in scope to the circumstances which justified the
intrusioninthefirstplace.59

B. TheT.L.O.ReasonablenessStandard

The reasonableness standard adopted in T.L.O. sought to maintain a

balance between a students expectation of privacy and a school officials
equally legitimate need to maintain a secure and orderly learning
environment.60Furthermore,thereasonablenessstandardensuredthatthe
privacyinterestsofstudentswillbeinvadednomorethanisnecessaryto
achieve the legitimate goal of maintaining order in the schools.61 In
imposing this reasonable suspicion standard, the Supreme Court opined
that what is reasonable depends on the facts and circumstances in which
thesearchtakesplace.62However,thisapproachdidnotanswerquestions
regarding informant credibility for reasonable suspicion purposes; the
connection between reasonable suspicion and individualized suspicion;
andtheconnectionbetweenreasonablesuspicionandtheintrusivenessof
the search.63 In laying the groundwork for later consideration of these
questions, the T.L.O. Court held that a search is justified at its inception
when there are reasonable grounds for suspecting that the search will
produceevidencethatthestudenthasviolatedorisviolatingeitherthelaw
oraschoolrule.64

II. TheDoctrineofQualifiedImmunity

Thedoctrineofqualifiedimmunityisajudiciallycreateddoctrinethat
recognizes the commonlaw immunity of public officials for their good

55Id.

56Id.at341.

57Seeid.

58T.L.O.,469U.S.at341(quotingTerryv.Ohio,392U.S.1,20(1968)).

59Id.(quotingTerry,392U.S.at20).

60Seeid.at340.

61Seeid.at342.

62Id.at337.

63RalphD.Mawdsley&JacquelineJoyCumming,StudentInformants,SchoolStripSearches,

andReasonableness:SortingOutProblemsofInceptionandScope,230EDUC.L.REP.1,6(2008).
64Id.(quotingT.L.O.,469U.S.at342).
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faithactions.65Itisarighttoavoidtrialandtheotherburdenspresentin
litigation.66 Government officials performing discretionary functions are
generally protected from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional
rightsofwhichareasonablepersonwouldhaveknown.67Thus,qualified
immunitywouldnotbeavailabletoaschoolofficialwhoorderedasearch
thatwasclearlyunreasonableatthetimeitwasexecuted.68
The first step in a qualified immunity analysis, known as the Saucier
test,is:[t]akeninthelightmostfavorabletothepartyassertingtheinjury,
do the facts alleged show [that] the... conduct violated a constitutional
right?69 If no constitutional rights were violated, it is unnecessary to
inquirefurtherastowhetherqualifiedimmunityisavailable.70However,if
aviolationisrecognized,thenextstepinthequalifiedimmunityanalysisis
toaskwhethertherightwasclearlyestablished.71

A. ClearlyEstablishedRights

Tobeclearlyestablished,thecontoursoftherightallegedlyviolated
mustbesufficientlyclearthatareasonableofficialwouldunderstandthat
whatheisdoingviolatesthatright.72Theobjectivereasonablenessofthe
act at issue is assessed in light of the legal rules that were clearly
established at the time the action was taken.73 If the law did not put the
official on notice that his conduct would be clearly unlawful, summary
judgmentbasedonqualifiedimmunityisproper.74TheSupremeCourthas
noted, however, that officials can still be on notice that their conduct
violates established law even in novel factual circumstances.75 The

65SWORDANDSHIELD,supranote39,at46465.

66Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526

(1985)).
67Wilsonv.Layne,526U.S.603,614(1999)(quotingHarlowv.Fitzgerald,457U.S.800,818

(1982)).
68Seeid.
69Saucier,533U.S.at201.
70Id.

71Id.at200.

72Andersonv.Creighton,483U.S.635,640(1987).[T]herightallegedlyviolatedmustbe

defined at the appropriate level of specificity before a court can determine if it was clearly
established.Wilson,526U.S.at615.
73Anderson,483U.S.at640.

74SeeMalleyv.Briggs,475U.S.335,341(1986)(explainingthatqualifiedimmunityprotects

allbuttheplainlyincompetentorthosewhoknowinglyviolatethelaw).
75Hope v. Pelzer, 536 U.S. 730, 741 (2002). The Court stated, in Lanier, we expressly
rejectedarequirementthatpreviouscasesbefundamentallysimilar.Id.Casesthatinvolved
fundamentallysimilarfactscanprovidestrongsupportforaconclusionthatthelawisclearly
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clearly established right inquiry must be undertaken in light of the

specificfactsandcircumstancesofeachcase.76

B. Pearsonv.CallahanAnAttempttoClarifyQualifiedImmunity

FindingtheSauciertesttobetoorigid,theSupremeCourtclarifiedthe
test in Pearson v. Callahan.77 In Callahan, the Court held that the Saucier
protocolshouldnotberegardedasmandatoryinallcases;however,the
Court noted that it should continue to be recognized as beneficial.78 The
Court explained that there are cases in which it would be a waste of
judicial resources for a court to begin and end with an analysis of the
clearly established right prong.79 It may often be difficult to ascertain
whether a right is clearly established without first determining the
existenceofaconstitutionalright.80Inothercases,abreakdownofwhythe
pertinent facts do not violate a clearly established right may make it
obvioustherehasbeennoconstitutionalviolationatall.81Additionally,the
Court recognized that the Saucier opinion was undoubtedly correct in
noting that the twostep qualified immunity test promotes the growth of
constitutionalprecedentandisespeciallyvaluableregardingquestionsthat
do not frequently arise in cases in which a qualified immunity defense is
unavailable.82
In breaking down the test to its simplest form, the first step in a
qualified immunity analysis is to look at the facts most favorable to the
partyassertingtheinjuryanddeterminewhetheraconstitutionalrightwas
violated.83Ifitisdeterminedthatthereisaconstitutionalviolation,thenext
stepistodeterminewhethertheconstitutionalrightinquestionwasclearly
established at the time of its violation.84 For the law to be clearly
establishedsoastomakequalifiedimmunityunavailable,thelawmustbe

established;however,fundamentallysimilarfactsarenotrequiredforsuchafinding.Id.More
importantly,ageneralconstitutionalrulealreadyidentifiedinthedecisionallawmayapply
with obvious clarity to the specific conduct in question, even though the very action in
questionhas[not]previouslybeenheldunlawful.UnitedStatesv.Lanier,520U.S.259,271
(1997)(quotingAnderson,483U.S.at640).
76Saucier,533U.S.at200.

77See Pearson v. Callahan, 129 S. Ct. 808, 811 (2009) (holding that courts do not have to

rigidlyapplythetwopartSauciertestandmayfirstdecidewhetheraconstitutionalrighthas
beenclearlyestablishedbeforedecidingwhethersucharighthasbeenviolated).
78Id.

79Id.

80Id.

81Id.

82Id.

83Saucierv.Katz,533U.S.194,201(2001).

84Id.
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developed to a point that makes it evident to a reasonable public official

thatwhatheorsheisdoingviolatesfederallaw.85

III. TheSupremeCourtsMisapplicationofQualifiedImmunity

A. TheCourtsBriefTreatmentofQualifiedImmunity

ThemajorityopinioninReddingonlydevotedfourbriefparagraphsto
explainingwhyitappliedqualifiedimmunityinthissituation.86TheCourt
briefly laid out the qualified immunity test before holding that qualified
immunity shielded Wilson from liability under the facts presented.87 The
Court also noted the different interpretations of T.L.O. as it applied to
qualified immunity by the United States Circuit Courts of Appeals.88 The
Courtbelievedthatthesedifferencesofopinionweresubstantialenoughto
require immunity for Wilson.89 The Court also stated that these differing
opinions were numerous enough to have raised doubt as to the clarity of
thelawregardingstudentstripsearches.90
JusticeStevens,joinedbyJusticeGinsburg,dissentedastothequestion
of qualified immunity.91 He would have denied it, as he felt that the
unconstitutionalityofthesearchwasobvious:Thisis,inessence,acasein
which clearly established law meets clearly outrageous conduct.92 In a
separateopinion,JusticeGinsburgfurtherelaboratedonwhyshethought
qualifiedimmunitywasinappropriateinthiscase.93

B. TheNecessityofConsideringQualifiedImmunity

Thefrequencyofdisputesregardingtheintrusivenessofstudentstrip
searches has increased, with school officials using qualified immunity to
defend the constitutional objections brought by students.94 Individual
liability for school officials has become an issue in strip search situations,
with some courts finding officials liable.95 Federal circuit court decisions

85Lassiterv.Ala.A&MUniv.,Bd.ofTrs.,28F.3d1146,1149(11thCir.1994).

86SeeSaffordUnifiedSch.Dist.No.1v.Redding,129S.Ct.2633,264344(2009).
87Seeid.

88Seeid.

89Seeid.at2644.

90Id.

91Id.;seeinfranotes12231andaccompanyingtext(discussingthedissentingreaterdetail).

92Redding,129S.Ct.at2644(Stevens,J.,concurringinpartanddissentinginpart).

93Id.at2645(Ginsburg,J.,concurringinpartanddissentinginpart);seeinfranotes132140

andaccompanyingtext.
94Mawdsley&Cumming,supranote63,at15.

95See, e.g., Konop v. Nw. Sch. Dist., 26 F. Supp. 2d 1189, 1207 (D.S.D. 1998) (denying

summary judgment to a teacher who sought the protection of qualified immunity when
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regardingthelegalityofstudentstripsearcheshavebalancedthestudents
privacyinterestagainsttheschooladministratorsinterestinmaintaininga
safe school environment.96 There are cases upholding student strip
searches; however, the suspected contraband in these cases is arguably
moreserious97thanthatoffourAdvilandoneAleve(thecontrabandthat
SavanaReddingallegedlypossessed).98
Qualified immunity is not available to school officials who order
searchesthatwereclearlyunreasonableatthetimeofthesearch.99School
officials are denied qualified immunity, regardless of whether there is a
case directly on point, if it should have been evident to a reasonable
individual in the officials position that the challenged action was
unlawful.100TheConstitutionandcaselawineffectatthetimeofSavanas
strip search put Principal Wilson on notice that such a search was
unreasonable.101

charged with violating the Fourth Amendment rights of students whom he ordered strip
searched); Oliver v. McClung, 919 F. Supp. 1206, 1219 (N.D. Ind. 1995) (denying qualified
immunity protection to school personnel who ordered a locker room strip search of junior
highschoolgirls).
96SeeChrisSuedekum,SupremeCourtCommentary,SaffordUnifiedSchoolDistrictNo.1

v. Redding: Balancing Students Rights Against the Governments Interest in Protecting the
Educational Process, 4 DUKE J. CONST. L. & PUB. POLY SIDEBAR 427, 433 (2009),
http://www.law.duke.edu/journals/djclpp/index.php?action=downloadarticle&id=130.
97See, e.g., Cornfield ex rel. Lewis v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1319,

1328(7thCir.1993)(upholding stripsearchofstudentsunderwearforsuspected narcotics);

Williams v. Ellington, 936 F.2d 881, 887 (6th Cir. 1991) (upholding strip search of student
suspectedofpossessingavialcontainingawhitepowderthatwasfurthersuspectedofbeing
a narcotic); Widener v. Frye, 809 F. Supp. 35, 38 (S.D. Ohio 1992) (upholding strip search of
student after school officials detected odor of marijuana and observed student acting in a
lethargicmanner).
98Redding,129S.Ct.at2638.
99BriefforRespondent,supranote13,at45.

100Id.
101See id. Courts have ruled for well over a decade that strip searches in schools, absent

particularizedsuspicion,violatetheFourthAmendment.SeeDoev.Renfrow,631F.2d91,92
93 (7th Cir. 1980) (holding strip searches of students are unconstitutional when they are
executed without any individualized suspicion or reasonable cause and that school officials
were not immune from liability regarding strip search, since conduct of school officials in
permittingstripsearchexceededboundsofreason);Bellv.MarseillesElementarySch.,160F.
Supp.2d883,888(N.D.Ill.2001)(holdingofficerliableforstripsearchofelementaryschool
studentsformissingmoney);Konopv.Nw.Sch.Dist.,26F.Supp.2d1189,1205,1207(D.S.D.
1998) (holding principals and teachers strip search of eighth grade students for allegedly
stealing $200 without reasonable basis to believe any particular student had committed a
crimewasnotobjectivelyreasonable,andthus,principalandteachernotentitledtoqualified
immunity);Oliverv.McClung,919F.Supp.1206,121819(N.D.Ind.1995)(holdingthatstrip
searchingseventhgradegirlsinefforttorecoveranallegedlystolen$4.50wasnotreasonable
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2010 Safford Unified School District No.1 v. Redding 277

C. BilbreyTheNinthCircuitStandardforSchoolSearches

Since T.L.O., a majority of courts and commentators maintain that

unless a scenario requires an immediate search to preserve the safety of
other students, a strip search is not justified.102 Ninth Circuit precedent
ha[s]longestablishedthataschoolofficial[cannot]stripsearcha[student]
based [up]on a vague and uncorroborated tip of drug possession.103 In
Bilbrey ex rel. Bilbrey v. Brown,104 cited with approval in T.L.O.,105 a school
principal strip searched two fifthgrade students after a school employee
informed the principal that she had just observed the students exchange
money for objects that she believed were drugs.106 The searches of each
studentdidnotproducenarcoticsandthestudentssuedforaviolationof
theirFourthAmendmentrights.107
In the district court trial, a jury found that the searches were
unreasonable under both reasonable cause and probable cause standards
but granted qualified immunity to the officials.108 The plaintiffs appealed,
and the Ninth Circuit Court of Appeals reversed the qualified immunity
portion of the judgment, holding that school officials are not entitled to
qualified immunity for a strip search of a child when they act on an
uncorroborated,vaguetipthatastudentmaypossessadrugsomewherein
hisbelongingsoronhisperson.109
Bilbrey set the standard for student searches withinthe Ninth Circuit,
and its holding should have put Wilson on notice that his strip search
order was unlawful.110 While there are minor differences between Bilbrey
and Redding, none of them work to Wilsons advantage.111 For example, a
trusted school official was the source of the tip in Bilbrey, rather than a
juvenile, like Marissa Glines, who was already the subject of disciplinary

underthecircumstancesand,therefore,principalandteacherswerenotentitledtoqualified
immunity).
102Martha McCarthy, Safford Unified School District v. Redding: Has the Supreme Court

ClarifiedtheLawGoverningStripSearchesinPublicSchools?,247EDUC.L.REP.565,570(2009).
103BriefforRespondent,supranote13,at45.SavanascasewasheardintheNinthCircuit

CourtofAppeals.SeeReddingv.SaffordUnifiedSch.Dist.No.1,514F.3d1383,1383(9thCir.
2008).
104738F.2d1462(9thCir.1984).

105NewJerseyv.T.L.O.,469U.S.325,332n.2,341n.6(1985).

106Bilbrey,738F.2dat146364,1467.

107Id.at1464.

108Id.

109Seeid.at146769.

110BriefforRespondent,supranote13,at46.

111Id.
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action and had just lied to a school official.112 Furthermore, the tip in
Bilbrey, unlike Marissa Gliness accusation, alleged current drug
possession, not possession of Advil and Aleve.113 The central point of
Bilbrey applied with equal force in Safford: a school official violated the
Fourth Amendment when he or she strip searched a child based on an
unsubstantiated accusation that the student possessed a drug somewhere
in her belongings or on her person.114 However, the alleged drug
possession in Savanas case was not marijuana or cocaine, but a small
amount of Advil and Aleve.115 School officials must consider common
sense and binding precedent regarding the search of a student.116 Both
concepts put Wilson on notice that the strip search he ordered was
unreasonable.117 In this case, Wilson executed an extraordinarily serious,
degrading, and traumatizing search based on... an unsubstantiated
accusationthatSavanahadatsometimeinthepastpossessed[Adviland
Aleve] in an undisclosed location.118 For Wilson to conclude that Savana
both presently possessed Aleve and Advil and concealed it against her
genitalia and breasts was, at best, pure speculation.119 Case law and
common sense dictate that school officials cannot execute a lifealtering
searchofathirteenyearoldgirlsbodybasedononlyahunchthatthegirl
presentlypossessesibuprofenandamereguessthattheibuprofenisbeing
storedagainsthergenitalia.120Itdoesnotrequireaconstitutionalexpertto
determine that a nude search of a thirteenyearold child is a significant
invasionofprivacy.121

112Id.

113Id.

114Id.
115Redding v. Safford Unified Sch. Dist. No. 1, 531 F.3d 1071, 1076 & n.4 (9th Cir. 2008),

affdinpart,revdinpart,129S.Ct.2633(2009).
116BriefforRespondent,supranote13,at48.

117Id.

118Id.at49(suggestingthepillscouldhavebeenlocatedinSavanasmedicinecabinetin

herbathroom,inherdeskdrawerinherhouse,inherpurse,inherbackpack,inherlocker,or
somewhereonherperson).
119Id.; cf. Doe v. Renfrow, 631 F.2d 91, 93 (7th Cir. 1980) (holding that a strip search of a

thirteenyearold girl based on an uncorroborated drugdog alert on a studentindicating

that the student possessed a drug currently or at some point in the pastexceeded the
boundsofreasonbytwoandahalfcountrymiles).
120BriefforRespondent,supranote13,at49.

121SeeNewJerseyv.T.L.O.,469U.S.325,382n.25(1985)(Stevens,J.,concurringinpartand

dissentinginpart).
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2010 Safford Unified School District No.1 v. Redding 279

D. JusticesStevensandGinsburgProvidingtheBetterAnalysisin
Redding

Justices Stevens and Ginsburg both had concurring and dissenting in

partopinionsthatprovidedfurthersupportthatqualifiedimmunityinthis
case was not warranted.122 Justice Stevens opined that nothing in Redding
altered the basic framework established by New Jersey v. T.L.O. regarding
student searches.123 He believed that [t]he strip search of Savana... was
bothmoreintrusiveandlessjustifiedthanthesearchofthestudentspurse
in T.L.O. and disagreed with the Courts decision to extend qualified
immunitytoWilson.124StevensstatedthattheCourtreache[d]acontrary
conclusionaboutqualifiedimmunitybasedonthefactthatvariousCourts
of Appeals have adopted seemingly divergent views about T.L.O.s
application to strip searches.125 He also felt that the clarity of a well
established right should not hinge on whether jurists have misread
SupremeCourtprecedent.126JusticeStevensacknowledgedthatwhileour
cases have previously noted the divergence of views among courts in
decidingwhethertoextendqualifiedimmunity,127theCourtreliedonthis
considerationtoabsolveofficialsfromtryingtopredictthefuturecourseof
constitutional law.128 He believed that the Court did not create a new
constitutionalpath,butmerelydecidedwhetherthedecisiontostripsearch
SavanaRedding,basedonthefacts,wasprohibitedunderT.L.O.129Stevens
alsorecognizedtheholdinginBilbrey.130JusticeGinsburgalsoagreedwith
Justice Stevens that T.L.O. clearly established the law governing Redding
andthatqualifiedimmunityshouldnothavebeenextendedtoWilson.131
Justice Ginsburg first addressed Wilsons investigation of Savanas
possiblepossessionofpills.132ShetookissuewiththefactthatWilsondid
nottestthetruthfulnessofGlinessaccusationbyaskingherwhen,where,
andforwhatpurposeSavanagaveherthepills.133Ginsburgassertedthat

122SaffordUnifiedSch.Dist.No.1v.Redding,129S.Ct.2633,264445(2009)(Stevens,J.,

concurringinpartanddissentinginpart);id.at264546(Ginsburg,J.,concurringinpartand
dissentinginpart).
123Id.at2644(Stevens,J.,concurringinpartanddissentinginpart).

124Id.

125Id.at264445.

126Id.at2645.

127Id.

128Redding,129S.Ct.at2645(Stevens,J.,concurringinpartanddissentinginpart).

129Id.

130Id.at2645n.*;seealsosupraPartIII.C(discussingtheholdinginBilbrey).

131Redding,129S.Ct.at2645(Ginsburg,J.,concurringinpartanddissentinginpart).

132Seeid.

133Id.
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280 NewEnglandLawReview v.45|267

anyreasonablesearchforthepillswouldhaveendedwheninspectionof
[Savanas] backpack and jacket pockets yielded nothing.134 She believed
that Wilson had no cause to suspect, based on prior experience at the
schoolorcluesinthiscase,that[Savana]hadhiddenpillscontainingthe
equivalentoftwoAdvilsoroneAleveinherunderwearorbody.135
Ginsburg also contrasted the facts of Savanas case to T.L.O.136 Where
the search in T.L.O. was confined to the students purse, the search of
[Savana] involved her [entire] body and rested on the bare accusation of
another student whose reliability [Wilson] had no reason to trust.137 She
alsonotedthattheCourtsopinioninT.L.O.clearlystatedthecontrolling
FourthAmendmentlawregardingstudentsearches:Asearchorderedby
aschoolofficial,evenifjustifiedatitsinception,crossestheconstitutional
boundaryifitbecomesexcessivelyintrusiveinlightoftheageandsexof
thestudentandthenatureoftheinfraction.138
In this case, the nature of the infraction, the slim basis for suspecting
Savana possessed pills, and her age and sex established beyond doubt
that the strip search ordered by Wilson could not be reconciled with
T.L.O.139 Justice Ginsburg concluded that Wilsons treatment of [Savana]
was abusive and it was not reasonable for him to believe that the law
permittedit.140
Qualified immunity is not available to a school official who orders a
search that was clearly unreasonable at the time it was executed.141
Common sense dictates that strip searching a thirteenyearold female
student for Advil and Aleve goes beyond the bounds of reason.142 Cases
upholding strip searches of students have involved contraband more
serious than in Savana Reddings case.143 Furthermore, precedent in the
Ninth Circuit has established that a school official cannot strip search a
studentbaseduponavagueanduncorroboratedtipofdrugpossession.144
AssistantPrincipalWilsonmadenoefforttogaugetheveracityofMarissa

134Id.

135Id.

136Seeid.at264546.

137Redding,129S.Ct.at264546(Ginsburg,J.,concurringinpartanddissentinginpart).

138Id. at 2646 (quoting New Jersey v. T.L.O., 469 U.S. 325, 342 (1985) (internal quotation

marksomitted)).
139Id.

140Id.

141See,e.g.,Wilsonv.Layne,526U.S.603,614(1999).

142SeeRedding,129S.Ct.at2645(Ginsburg,J.,concurringinpartanddissentinginpart).

143Seecasescitedsupranote97.

144SeesupraPartIII.C.
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2010 Safford Unified School District No.1 v. Redding 281

Gliness assertion that Savana possessed pills.145 After the search of

Savanas backpack and outer clothing, Wilson had no further basis to
believethatshewashidingpillsinherbraorunderwear.146Thefactsand
circumstancesinvolvedsupporttheargumentthattherewasnoreasonfor
Wilson to believe that the law permitted the strip search of Savana.147
Applying the doctrine of qualified immunity is rather straightforward
here; T.L.O. and the Ninth Circuit Court of Appeals decision in Bilbrey
definedclearlyestablishedrightsregardingstripsearchesofstudents,and
Wilson violated those rights when he ordered such a search of Savana
Redding.148 To deprive a person whose constitutional rights have been
violated of a judicial remedy for a proven violation is an extraordinary
step,149 and the UnitedStates SupremeCourt took such astep in Savana
Reddingscase.150

CONCLUSION

Qualified immunity should not have been afforded to Assistant

Principal Wilson in Redding.151 New Jersey v. T.L.O. clearly established the
law of student searches.152 T.L.O.s flexible approach provides the proper
framework for school administrators regarding student searches.153 It
placesrestrictionsonsearchesaccordingtotheextentoftheintrusionthey
entail [and] allows courts leeway to uphold a higherthanusual standard
for student strip search cases.154 The standard should mandate probable
cause to justify such a search whose purpose is only to avoid grave and
imminent injury.155 This would ensure the protection of student privacy
rightsandpreservestudentdignity.156Further,itwouldrequireschoolsto

145SeeRedding,129S.Ct.at2645(Ginsburg,J.,concurringinpartanddissentinginpart).

146See supra Part I (noting a constitutional bar against searches that are excessively

intrusive).
147Redding,129S.Ct.at2646(Ginsburg,J.,concurringinpartanddissentinginpart).

148SeesupraPartIII.C.
149David Rudovky, Saucier v. Katz: Qualified Immunity as a Doctrine of Dilution of

Constitutional Rights, in WE DISSENT: TALKING BACK TO THE REHNQUIST COURT 172, 185
(MichaelAveryed.,2009).
150SeeRedding,129S.Ct.at2644.

151SeesupraPartIII.

152SeeRedding,129S.Ct.at264445(Stevens,J.,concurringinpartanddissentinginpart);

id.at264546(Ginsburg,J.,concurringinpartanddissentinginpart).
153David C. Blickenstaff, Strip Searches of Public School Students: Can New Jersey v. T.L.O.

SolvetheProblem?,99DICKL.REV.1,55(1994).
154Id.

155Id.

156Id.
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282 NewEnglandLawReview v.45|267

follow the standards of the system whose next generation they are
chargedwitheducating.157
The majoritys argument that Wilson was entitled to qualified
immunityinReddingringshollow,[as]anintellectuallydishonest,result
oriented analysis that fails to square158 with both the standards of
qualified immunity159 and the current state of search and seizure law.160
However, although Wilson was granted qualified immunity in this case
because of the supposed uncertainty of the legality of student strip
searches at the time of the search, with any luck this ambiguity has been
eliminated by the Redding decision and any future Fourth Amendment
violations by school officials of students rights resulting from strip
searcheswillendwithpersonalaccountabilityforthatofficial.161

157Id.

158David Bloomfield, Qualified Immunity of School Officials: Safford Unified School District

#1 v. Redding, TCHRS. C. REC. (Aug. 5, 2009), http://www.tcrecord.org/content.asp?

contentid=15737.
159See Pearson v. Callahan, 129 S. Ct. 808, 82122 (2009). A school official searching a

student is entitled to qualified immunity where clearly established law does not show that
thesearchviolatedtheFourthAmendment.Id.at822.
160Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2644 (2009) (Stevens, J.,

concurringinpartanddissentinginpart)(NothingtheCourtdecidestodayaltersthisbasic
[search and seizure] framework. It simply applies T.L.O. to declare unconstitutional a strip
search of a 13yearold honors student that was based on a groundless suspicion that she
might be hiding medicine in her underwear.); New Jersey v. T.L.O., 469 U.S. 325, 382 n.25
(1985) (Stevens, J., concurring in part and dissenting in part) (It does not require a
constitutionalscholartoconcludethata nudesearchofa13yearoldchildisaninvasionof
constitutionalrightsofsomemagnitude.(quotingDoev.Renfro,631F.2d91,9293(7thCir.
1980))).
161David P. Backus, School Administrators May Be Stripped of Qualified Immunity for

Conducting Student Strip Searches, UNDERWOOD ATTYS & COUNS. (June 29, 2009),
http://www.uwlaw.com/articles/SchoolAdministratorsmaybeStrippedofQualifiedImmunityfo
rConductingStudentStripSearches.html.