557 U.S. 364 (2009)
Respondent, a 13-year old student, was called to the office of Assistant Principal Wilson, who opened a day planner on his desk, in which there were several knives, lighters, and a cigarette. Respondent admitted the planner was hers, but that she had lent it to her friend, Marisa, a few days before and none of the items were hers. The planner had been found by a teacher within Marisa’s reach. Wilson had received reports from staff that respondent and Marisa were part of a rowdy group at a school dance where alcohol and cigarettes were found in the girl’s bathroom, and another student reported that respondent had a party before the dance where alcohol was served. Wilson showed respondent four prescription-strength ibuprofen pills and one over-the-counter naproxen pill, both banned under school rules without advance permission, which had been obtained from Marisa. Wilson told respondent he received a report that she was giving the pills to fellow students (the report had come from Marisa). Respondent denied this and said she knew nothing about the pills, and agreed to let Wilson search her belongings. He and an administrative assistant searched her backpack and found nothing. Wilson then ordered respondent to the nurse’s office for a strip search. The female nurse had her strip down and then pull her bra out and to the side and shake it and pull out the elastic on her underpants. No pills were found.
The Arizona District Court granted the school officials’ motion for summary judgment on the ground that there was no Fourth Amendment violation, and a panel of the Ninth Circuit affirmed. Sitting en banc, the Ninth Circuit reversed as to the assistant principal.
Did school officials violate a 13-year old student’s Fourth Amendment rights when they searched her bra and underwear based on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school?
Holding / Rule
(Souter) Yes. Affirmed in part, reversed in part. As the Court established in New Jersey v. T.L.O., a school search “will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Despite the Fourth Amendment violation, the assistant principal was entitled to qualified immunity from liability.
T.L.O. established a more lenient standard of “reasonable suspicion” for determining the legality of a search in the school setting. Reasonable suspicion equates to “a moderate chance of finding evidence of wrongdoing.” In light of information Wilson had received from staff and other students, Marisa’s statement that the pills came from respondent was sufficient to justify a search of respondent’s backpack and outer clothing, where she could reasonably be suspected of carrying them. However, the humiliating strip search that “necessarily exposed her breasts and pelvic area to some degree” was “categorically distinct” and required greater justification—“the content of the suspicion failed to match the degree of intrusion.” There was nothing to suggest the power or quantity of the drugs posed a real danger to students or that respondent was carrying pills in her underwear.
However, a school official searching a student is “entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment.” Lower courts have been sufficiently divided on how to apply the T.L.O. standard to require immunity for the school officials here.
Stevens and Ginsburg concurred in part and dissented in part, arguing that the unconstitutional strip search violated clearly established law in T.L.O. and the assistant principal should therefore have not been granted qualified immunity. Stevens asserted that divergence of views among courts does not justify extending qualified immunity with respect to already established constitutional law (only the future course of such law).
Thomas concurred in part and dissented in part, arguing that the search was constitutional, and that courts should apply the in loco parentis doctrine to such cases. He denied that under T.L.O. the school needed any greater level of suspicion to conduct a strip search of respondent than to search her bag and outer clothing—it was reasonable to conclude she was hiding the pills in a place nobody would look. Thomas also argued that the majority improperly considered the importance of the school rule at issue in its Fourth Amendment analysis.