Big school privacy case to go before Supreme Court
 

http://www.nytimes.com/2009/03/24/us/24savana.html?_r=1

I have my own views on this, but what does everyone else think?

“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 pretty much agree with that statement, but I feel that the search should have been conducted by actual po-pos and not school officials.

Sen, the "danger" here was that of ibuprofen pills, in other words, there is no rational relationship of the danger posed by the presence of prescription ibuprofen pills to the intrusiveness of the search. If the search, however, was for something else which posed a real threat, e.g., a weapon of some sort, narcotics, or something of that nature, I think the search would have been more justified.

Here, the health and safety of other students was not threatened at all, thus a search, particularly one this intrusive wasn't justified. The lawyers for the school district wrap themselves up in a big 'ol 'illicit drug prevention' banner. Well, this was ibuprofen, not ecstasy.

Zero tolerance policies tend to lead to insane results like this which seem so ridiculously unlikely and lacking in common sense that one is tempted to high tail it over to snopes to see if the story is a hoax. I hope the court finds that the student's rights were violated and pronounces something along these lines -- the degree of the intrusion of the search must bear some rational relationship to the potential danger posed. For something like ibuprofen, the school might reasonably expect to search the student's belongings and have her turn out her pockets. If the accusation tendered is that she has something on the order of illicit drugs, more intrusive measures will be justifiable.

We hire these administrators because we think they have the ability to exercise good judgment. Zero tolerance policies are essentially admissions that these people have poor judgment. I think we're all better off if we live in a society which expects the best from administrators rather than the worst.

For the legal geeks, the petition, opp-cert and briefs filed so far can be found here.

The Supreme Court has accepted two questions presented in this case:

1. Whether the Fourth Amendment prohibits public school officials from conducting a search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy.

2. Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public school administrator may be liable in a damages lawsuit under 42 U.S.C. § 1983 for conducting a search of a student suspected of possessing and distributing a prescription drug on campus.

I have only scanned the petition and opp-cert. In essense, it appears that the school district is arguing that the 9th Circuit applied a criminal standard for a search ("probable cause") that the Supreme Court has repeatedly held does not apply in the school context, and that the 9th Circuit substituted its judgment for that of the school officials as to whether a search and what kind of search was warranted, again something the Supreme Court has counseled against. The ACLU, for the student, seems to argue basically that the 9th Circuit's opinion is completely consistent with Supreme Court precedent and the decisions of other circuits.

I can only say that I would have to assume that the Court's granting of cert indicates that at least 4 justices disagree with the ACLU about the 9th Circuit's decision being consistent with other SCOTUS and circuit cases -- otherwise, they would have seen no reason to take the case.

Perhaps I'm giving relying too much on the fact that this comes out of the 9th Circuit, but I'd put my money on the school district winning this one. Based on my quick read of the filings, that's the way I lean to thinking it should come out.

MC, thanks for the link. We were talking about this at length last night in my Right to Privacy class, so I wanted to see what people's opinions were on the subject. (I'm getting to be a nerd on these issues, so please excuse the length of the post)

It's an interesting case for the Court to take, and part of me wonders if there reason for taking it was because the 9th Circuit went so far above and beyond the Court precedent.

As I understand it, after T.L.O (another case involving a search of a student at a public school), there's a two-fold test that the court has to go through. First, is the search reasonable at its inception, and second, whether it was permissible in its scope. T.L.O was in the context of a non-law enforcement search, though, and it seems like the 9th Circuit's opinion is erasing the distinction between law enforcement and non-law enforcement searches by seeking a "probable cause" requirement. That, and there's the whole qualified immunity issue, where the Circuit said that the law on searches is "clearly established," kind of funny in light of the fact that the Circuit's decision was 6-5.

In my reading of the case and the news articles, I'd guess that the search would fail under the T.L.O. standard; even if it was justified at its inception, the scope of the search seems "impermissible" to say the least. Seriously, a strip search, to that extent, for ibuprofen? All based on the accusations of one student?

That said, I agree that I think this will be reversed, because the 9th Circuit went WAY too far in its analysis.

/ end dorkiness

Frankly, I can't see any reason that four justices would vote to take it other than that they think the 9th Circuit went way too far (again).

Prescriptions are prescriptions, and I can understand that part of the school's justification behind the search. Who wants to identify every prescription that is acceptable and every prescription that is unacceptable?

The fact that the search was based on the accusations of one student is what seems sketchy. (I guess the school defends that by saying the student who was searched was rowdy at a dance some weeks prior to the search. I dunno, when I think of middle school dances, calmness is not a word that immediately comes to mind.)

I'm certainly no lawyer, but I can see the student's (and her mother's) point. The statement that was made regarding the student's failure to get caught breaking the rules makes it sound like she might have been targeted by the administration (as well as by the accuser).

Let me start off by saying that I do not believe the student should have been stripped searched. After an accusation by another student, with no other evidence to back it up, the parent should have been called in for an administrator-parent-student discussion to get to the bottom of the story.

Let me just clarify on why schools have to take stands on prescription and non-prescription medicine, such as ibuprofen. Administrators and teachers have no idea if a certain student is allergic to something in the medicine, even over the counter. Many times, even the students themselves aren't sure if they are allergic to something they've never taken.

Picture the situation in a classroom, cafeteria, school hallway.

Tommy: "I've got a headache."

Suzy: "I've got some Tylenol (Anacin, etc.). It helps me. Want one?"

Tommy: "Sure."

Tommy has never taken this type of product before. His parents have never given it to him. Tommy takes the product, has an allergic reaction, and dies. And yes, these situations have occured. Do you know what happens next? The school gets sued by Tommy's parents because the teacher/administration didn't keep another student from giving their child a substance. And yes, these situations have occured. (My mother is allergic to Tylenol. Nobody knew until she took one one evening and ended up in the emergency room).

So, to recap: I do not agree with the strip search. I am trying to get you to understand that ibuprofen and/or other prescription/non-prescription medicine can be a "danger" if the wrong person or dosage takes it. So, schools do have to be wary.

A plastic bag, a rope, a pencil or 1 1/2 inches of water can also kill you, but they probably won't -- just like ibuprofen.

I can see other prescription drugs warranting this treatment. Not ibuprofen though. In your hypo, I doubt a teenager with a severe ibuprofen allergy is going to accept an anti-inflammatory or any kind of pain med from someone without knowing what it is as there's almost no way they'd not be aware of their allergy.

That's why I don't allow plastic bags, ropes, or water in my classroom. The pencils are only allowed with a written permission slip signed by both parents, a pediatrician, and the head of the local police precinct. :)

Read my statement again: Emergency rooms are full of people who didn't know they were allergic to items. You can even develop an allergy to something that you've previously been around. My scenerio was a kid who has never been exposed to something and they/their parents don't even know that they are allergic to it (or have developed an allergy to it). I didn't say that the kid knew they were allergic and went ahead and took it. I'm trying to explain why the school districts have to be careful and even go overboard. (Not to the extent of a strip search, though.)

This is totally understandable, but the school's right to protect itself from potential liability has limits too, which is what Kevin is getting at.

This is true for foods and cleaning supplies and the liquid soap in the bathroom at the school, etc. You can't not have ANYTHING because someone in the world might be allergic to it.

The ibuprofen is a real sticking point with me because so many girls have to have it or have to miss school a couple days a month. It's kind of ridiculous to have to miss school because you're not allowed to take Ibuprofen.

In any case, I don't think any child should be strip searched without their parent present. That's total BS and I would be livid if my daughter were strip searched by school personnel. Police cannot strip search without having arrested a person and they can't arrest someone without showing probably cause so why in the world can a school do this based on one peer's verbal report??? So all they have to do is go around telling teachers "I saw so and so with Ibuprofen" and they're going to strip search all those kids? Let's be real.

You do what every school system I know does. The school nurse or someone else in the office has the ibuprofen, and you have a note from your doctor authorizing the school nurse (or whoever) to give it to your child as directed by the doctor.

I'm with Lane on this one. I've seen my fair share of legal threats and actions against schools to completely understand why the school might draw the line where they did.

And the bolded part would be funny if it weren't sadly untrue. :p ;)

As far as what the school actually did -- I would just caution anyone to be leery of accepting a news story's account at face value. There's almost always more to the story.

We can't do that with over the counter meds because the child's name is not on the bottle. We can only do that with prescriptions and, quite honestly, she doesn't need prescription strength ibuprofen, only over the counter.

ETA: You also have to drop off the medication daily and pick it up at the end of the day (the parent does) because they do not want to be responsible for storing meds in the school. It's kind of messed up. My daughter IS allowed to carry her Epi-Pen and her asthma inhaler on her person at all times though.

I'm assuming that this school's policy is similar to my kids' school's policy in that any prescription must be maintained by a school official. The student who needs their prescription is certainly allowed to take it - s/he just can't keep it on her/his own person (or locker, backpack, etc...). I don't think anyone said the student couldn't take the ibuprofen, just that it couldn't be in her possession.

I agree 100% with this. IMO, searching in the absence of the student's parent(s) is where the school crossed the line.

ETA: It took me too long to type that and there's already been a discussion about it!