Redding v. Safford Unified School District ( 2008 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APRIL REDDING, legal guardian of 
minor child,
Plaintiff-Appellant,
v. No. 05-15759
SAFFORD UNIFIED SCHOOL DISTRICT
#1; KERRY WILSON, husband; JANE  D.C. No.
CV-04-00265-NFF
DOE WILSON, wife; HELEN ROMERO,
OPINION
wife; JOHN DOE ROMERO, husband;
PEGGY SCHWALLIER, wife; JOHN
DOE SCHWALLIER, husband,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Honorable Nancy Fiora, Magistrate Judge, Presiding
Argued and Submitted
March 26, 2008—San Francisco, California
Filed July 11, 2008
Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Michael Daly Hawkins, Barry G. Silverman,
Kim McLane Wardlaw, Raymond C. Fisher,
Ronald M. Gould, Richard A. Paez, Carlos T. Bea,
Milan D. Smith, Jr., N. Randy Smith, Circuit Judges.
Opinion by Judge Wardlaw;
Dissents by Judges Gould and Hawkins
8419
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8423
COUNSEL
Graham A. Boyd, M. Allen Hopper, Adam B. Wolf, ACLU
Foundation, Santa Cruz, California; Andrew J. Petersen
(argued), Humphrey & Peterson, P.C., Tucson, Arizona;
Bruce G. Macdonald, McNamara, Goldsmith, Jackson &
Macdonald, Tucson, Arizona; Daniel Joseph Pochoda, ACLU
of Arizona, Phoenix, Arizona, for the plaintiff-appellant.
Matthew W. Wright (argued), David K. Pauole, Holm Wright
Hyde & Hays PLC, Phoenix, Arizona, for the defendants-
appellees.
Carolyn I. Polowy, Sherri Morgan, National Association of
Social Workers, Washington, D.C.; David A. Honzo, Julie M.
Carpenter, Michael A. Hoffman, Jenner & Block LLP, Wash-
ington, D.C., for amici curiae The National Association of
Social Workers and the National Association of Social Work-
ers, Arizona Chapter.
Clint Bolick, The Rose Law Group, Scottsdale, Arizona; John
W. Whitehead, Douglas R. McKusick, The Rutherford Insti-
tute, Charlottesville, Virginia, for amicus curiae The Ruther-
ford Institute.
8424 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
OPINION
WARDLAW, Circuit Judge, with whom Judges PREGER-
SON, FISHER, PAEZ, M. SMITH, and N.R. SMITH join:
On the basis of an uncorroborated tip from the culpable
eighth grader, public middle school officials searched futilely
for prescription-strength ibuprofen by strip-searching thirteen-
year-old honor student Savana Redding. We conclude that the
school officials violated Savana’s Fourth Amendment right to
be free from unreasonable search and seizure. The strip search
of Savana was neither “justified at its inception,” New Jersey
v. T.L.O., 469 U.S. 325, 341 (1985), nor, as a grossly intrusive
search of a middle school girl to locate pills with the potency
of two over-the-counter Advil capsules, “reasonably related in
scope to the circumstances” giving rise to its initiation. Id.Because these constitutional principles were clearly estab-
lished at the time that middle school officials directed and
conducted the search, the school official in charge is not enti-
tled to qualified immunity from suit for the unconstitutional
strip search of Savana.
I. BACKGROUND
Nestled next to the Pinaleno Mountains in southeastern Ari-
zona, Safford is a small community of slightly under 10,000
residents. With a modest population, Safford maintains a sin-
gle middle school that draws additional students from other
neighboring small towns. In the late summer of 2003, Savana
began a new school year as an eighth grader at Safford Mid-
dle School along with approximately 200 other thirteen- and
fourteen-year-old classmates.1
1
As with many middle schools throughout our circuit, Safford Middle
School educates sixth through eighth graders. See WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1430 (1986) (defining middle school as “a
division in some private or public schools embracing or approximately
embracing the upper elementary grades”). Traditionally, middle school
students range in age from eleven to fourteen.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8425
On October 8, Savana was attending math class when
Assistant Principal Kerry Wilson opened the classroom door
and instructed her to pack up her belongings and accompany
him to his office. Savana complied, gathered her things and
followed Wilson down the hallway. Upon arriving at Wil-
son’s office, Savana noticed a planner that she had lent a few
days earlier to her classmate, Marissa, sitting open on the
assistant principal’s desk. While Savana immediately recog-
nized the planner, she had not previously seen the objects
contained in the planner, including knives, a lighter and a cig-
arette. None of the objects belonged to Savana.
Wilson then began interrogating Savana. Wilson first
reminded her of the importance of truth and asked her who
owned the planner. Savana admitted that she owned the plan-
ner and had lent it to Marissa.2 Upon further questioning,
Savana insisted that none of the objects contained in the plan-
ner belonged to her.
Wilson then directed Savana’s attention to a few small
white ibuprofen pills sitting on his desk. Possession of these
pills violated school rule J-3050’s prohibition against bringing
any prescription or over-the-counter drug onto campus with-
out prior permission. He asked Savana if she had anything to
do with the pills. Savana replied that she had never seen those
pills before entering Wilson’s office. Further, she assured
Wilson that she had never brought any prescription pills into
the middle school or provided any students with ibuprofen.
Dissatisfied with the results of his questioning, Wilson
asked Savana whether he could search her belongings. Savana
agreed to this search. Along with his administrative assistant,
Helen Romero, Wilson rummaged through Savana’s back-
pack and found nothing. Even though this first search of
2
Savana had let Marissa use the planner because Marissa wanted to hide
some things from her parents; specifically, cigarettes, a lighter and some
jewelry.
8426 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
Savana’s backpack supported her statement that she had not
brought pills onto campus, and despite Savana’s discipline-
free history at the school, Wilson asked Romero to take
Savana to the nurse’s office for a second, more thorough
search.
There, at Wilson’s behest, Romero and the school nurse,
Peggy Schwallier, conducted a strip search of Savana. The
officials had Savana peel off each layer of clothing in turn.
First, Savana removed her socks, shoes and jacket for inspec-
tion for ibuprofen. The officials found nothing. Then, Romero
asked Savana to remove her T-shirt and stretch pants. Embar-
rassed and scared, Savana complied and sat in her bra and
underwear while the two adults examined her clothes. Again,
the officials found nothing. Still progressing with the search,
despite receiving only corroboration of Savana’s pleas that
she did not have any ibuprofen, Romero instructed Savana to
pull her bra out to the side and shake it. Savana followed the
instructions, exposing her naked breasts in the process. The
shaking failed to dislodge any pills. Romero next requested
that Savana pull out her underwear at the crotch and shake it.
Hiding her head so that the adults could not see that she was
about to cry, Savana complied and pulled out her underwear,
revealing her pelvic area. No ibuprofen was found. The
school officials finally stopped and told Savana to put her
clothes back on and accompany Romero back to Wilson’s
office. Savana did not freely agree to this search. She was
“embarrassed and scared, but felt [she] would be in more
trouble if [she] did not do what they asked.” In her affidavit,
Savana described the experience as “the most humiliating
experience” of her short life, and felt “violated by the strip
search.”
The long and attenuated route to Savana began at the
school dance held to celebrate the beginning of the new aca-
demic year. There, school officials detected the smell of alco-
hol around a small group of students, including Savana and
her classmate Marissa, and became concerned that they may
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8427
have drunk alcohol either before or during the school func-
tion. Increasing their suspicion of alcohol use that night,
school officials found a bottle of alcohol, along with a pack
of cigarettes, in the girls’ bathroom. Nothing, however, spe-
cifically linked Savana or any other individual student to the
empty bottle. Nevertheless, school officials remained wary
that students were violating school rule J-3050, which prohib-
its the possession of alcohol and the non-medical use, posses-
sion, or sale of a drug, among other school rules. Enforcement
of these school regulations drove the public school officials’
increased efforts toward rooting out the ibuprofen.
On October 1, nearly a month and a half after the dance,
and a week before the search of Savana, Jordan, a student at
Safford Middle School, and his mother requested a meeting
with Principal Robert Beeman and Wilson. During the meet-
ing, Jordan’s mother recounted how her son had become vio-
lent and gotten sick to his stomach a few nights earlier. Jordan
had confessed to his mother that he became sick after ingest-
ing pills he received from some unspecified classmate. More
generally, Jordan advised the school administrators that “cer-
tain students” brought drugs and weapons on campus. Noth-
ing in the record indicates that Jordan suggested Savana was
among the students bringing drugs into the middle school. To
the contrary, Jordan brought up Savana’s name only to accuse
her family of providing alcohol to other students before the
opening dance, an allegation the Reddings deny.3
Before the opening bell on the day of the strip search, Jor-
dan approached Assistant Principal Wilson with a small white
pill. Jordan explained that Marissa—he did not mention
3
Because the School District brought the motion for summary judgment,
we must construe the record in the light most favorable to the Reddings.
See Bank of New York v. Freemont Gen. Corp., 523 F.3d 902, 909 (9th
Cir. 2008) (“[W]e must view the evidence on summary judgment in the
light most favorable to the non-moving party and draw all reasonable
inferences in favor of that party.”).
8428 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
Savana’s name—had just given him the pill, and that a group
of students planned to take the pills at lunchtime. Consistent
with events he recounted during his meeting with Wilson the
previous week, Jordan did not link Savana with possession of
any pills or the plan for their distribution that day. Wilson
then walked down the hall to ask Nurse Schwallier if she
could identify the pill. Schwallier recognized it as 400 mg
ibuprofen, obtainable only by prescription. Ibuprofen is most
commonly found in over-the-counter Advil or Motrin in 200
mg pills to treat headaches, muscle-aches, or, for many young
women, menstrual cramps. See PDR for NONPRESCRIPTION
DRUGS, DIETARY SUPPLEMENTS, AND HERBS 725-26 (29th ed.
2008).
Wilson then walked toward Marissa’s classroom to ques-
tion her about the ibuprofen. Interrupting the class, Wilson
asked Marissa to gather her things and accompany him to his
office. As Marissa collected her belongings, Wilson noticed
a black planner in the desk situated next to her. He asked the
classroom teacher to determine the owner of the planner.
Opening the planner, the classroom teacher found small
knives, a cigarette lighter and a cigarette. No pills, however,
were found in the planner. Wilson took the planner and
Marissa to his office.
Once back in his office, Wilson asked Romero to observe
while Marissa followed Wilson’s direction to turn out her
pockets and open her wallet. This search revealed several
white ibuprofen pills identical to the one turned over by Jor-
dan, along with a blue Naprosyn 200 mg pill.4 Wilson asked
Marissa how she obtained the blue pill. Caught red-handed
with pills in violation of school rules, Marissa responded, “I
guess it slipped in when she gave me the IBU 400s.” Wilson
4
Naprosyn, like ibuprofen, is used to treat pain and inflammation. See
PHYSICIAN’S DESK REFERENCE 2725 (62nd ed. 2008). It is most commonly
found in Aleve, a popular over-the-counter choice to treat discomfort
related to menstrual cramps.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8429
asked, “Who is she?” Marissa responded “Savana Redding.”
Marissa, however, did not indicate to Wilson that Savana cur-
rently had any pills on her person, or, more specifically, had
hidden pills in a place where a strip search would locate them.
Wilson then asked Romero to escort Marissa down to
Nurse Schwallier’s office for a more intensive search for
additional ibuprofen pills. Romero asked Marissa to remove
her socks and shoes so that they could be searched. Marissa
complied. Then Romero asked Marissa to pull up her shirt
and pull out the band of her bra. Finding nothing, Romero
lastly asked Marissa to take off her pants and stretch out the
elastic on her underwear. The search failed to reveal any addi-
tional ibuprofen.5 After this search, Wilson and the school
officials turned their attention to Savana.
The crucial link—indeed, the only link—between Savana
and the ibuprofen was Marissa’s statement upon being caught
with the pills that the ibuprofen (and the blame) was not hers,
but rather was Savana’s. Before Marissa implicated Savana,
there had been no connection between Savana and the circu-
lating rumors of prescription drugs on campus. Savana had
never been disciplined for any infraction of school rules, let
alone possession or distribution of drugs. The tip provided by
Jordan only linked Marissa to the ibuprofen and failed to
include any mention of Savana. Indeed, even the planner
Savana lent to Marissa failed to provide any connection
between Savana and any ibuprofen because the pills had been
found on Marissa’s person, not inside the planner. Neverthe-
less, on the sole basis of Marissa’s attempt to shift the school
officials’ focus off herself and onto Savana, and without addi-
5
Inexplicably, although Marissa was the one found with the pills, the
search conducted on Marissa was less intrusive than that later conducted
on Savana, whose only link to the pills was Marissa’s uncorroborated
“tip.” School officials asked Marissa only to lift her shirt, not to remove
it entirely, as they did with Savana. The third student suspect was a boy
named Chris. He was the only student suspected of the same infraction
that day not required to strip for the school officials’ inspection.
8430 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
tional questioning or investigation, Wilson directed his assis-
tant and the school nurse to require a thirteen-year-old to
disrobe.
Upset after hearing what happened to her daughter, April
Redding, Savana’s mother, made an appointment with the
school administrators. Apparently unsatisfied by the meeting,
the Reddings brought suit in the District Court for the District
of Arizona against Safford Unified School District #1, Wil-
son, Romero and Schwallier (collectively, “Appellees”).
Appellees ultimately filed a motion for summary judgment,
asserting that the defense of qualified immunity precluded
them from suit. Defendants’ motion relied solely on the argu-
ment that the strip search did not violate Savana’s Fourth
Amendment rights, and “because there was no constitutional
violation, no further inquiry is necessary.” In a series of decla-
rations, Wilson, Romero and Schwallier attempted to justify
the strip search of Savana with a general concern that “[t]he
school has a history of problems with students using and dis-
tributing prohibited and illegal substances on campus,” and a
uniform recounting of events—none of which remotely con-
nected Savana with the presence of ibuprofen on the middle
school campus that day.
The district court ruled for defendants entirely on the basis
that there was no violation of Savana’s constitutional right, as
established by T.L.O., to be free from unreasonable searches
in school. It accepted as sufficient Appellees’ representation
that Savana’s decision to lend Marissa her planner provided
a sufficient nexus between the two girls to corroborate Maris-
sa’s tip. The district court reasoned that this connection justi-
fied the strip search at its inception by providing Appellees
with reasonable grounds for suspecting that a strip search of
Savana would turn up the ibuprofen. Moreover, the district
court concluded that the need to locate the ibuprofen was suf-
ficiently urgent that the strip search was “reasonably related”
to the search’s objective and was not “excessively intrusive.”
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8431
The conclusion that Savana’s constitutional rights were not
violated rendered consideration of the second step of qualified
immunity—whether the right was clearly established—
unnecessary.
Upon appeal, a divided panel of our court upheld the grant
of summary judgment in favor of Appellees. The two-judge
majority—in a now vacated opinion—concluded that
“[a]mple facts supported Marissa’s veracity as an informant,”
justifying Wilson’s subsequent search of Savana, including
her ownership of the planner and the disputed allegations of
her distribution of alcohol to students. Redding v. Safford
Unified Sch. Dist. #1, 504 F.3d 828, 834 (9th Cir. 2007), r’hg
en banc granted, 514 F.3d 1383. The majority found the strip
search permissible in scope because “the strong interest” in
protecting students from prescription drugs outweighed the
intrusion caused by the search the panel thought was con-
ducted in a “reasonable manner.” In dissent, Judge Thomas
asserted that the majority had misapplied Supreme Court
authority. While a search may have been justified, the panel
failed to undertake “the appropriate inquiry [of] whether a
strip search was justified.” Id. at 837 (Thomas, J. dissenting).
Because it “was unreasonable to force Savana, a thirteen-
year-old girl, to expose her breasts and pubic area to school
officials” while they searched for ibuprofen, Judge Thomas
concluded that the strip search failed to meet constitutional
muster under T.L.O. Id. at 838.
A majority of our judges in regular active service voted to
reconsider en banc whether the strip search violated Savana’s
Fourth Amendment rights, and, if so, whether those rights
were clearly established in October 2003, when the school
officials conducted the strip search. See FED. R. APP. P. 35.
We now consider these questions en banc.
8432 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
II. DISCUSSION
The Supreme Court has instructed that lower courts follow
a careful two-step process when evaluating assertions of qual-
ified immunity. Saucier v. Katz, 533 U.S. 194, 200 (2001).
First, we determine whether “[t]aken in the light most favor-
able to the party asserting the injury, . . . the facts alleged
show the officer’s conduct violated a constitutional right.”
Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) (quoting
Saucier, 533 U.S. at 201). If we answer that question in the
affirmative, we then answer whether the violated right was
“clearly established.”6 Id. We review de novo the district
court’s grant of summary judgment on the basis of qualified
immunity. Blankenhorn v. City of Orange, 485 F.3d 463, 470
(9th Cir. 2007).
A. The Constitutionality of the Strip Search
In 1985, the United States Supreme Court held: “It is now
beyond dispute that the Federal Constitution, by the virtue of
the Fourteenth Amendment, prohibits unreasonable searches
and seizures by state officers. Equally indisputable is the
proposition that the Fourteenth Amendment protects the rights
of students against encroachment by public school officials.”
T.L.O., 469 U.S. at 334 (internal quotation marks and cita-
tions omitted). The Court stated “[t]hat [schools] are educat-
ing the young for citizenship is reason for scrupulous
protection of Constitutional freedoms of the individual, if we
are not to strangle the free mind at its source and teach youth
to discount important principles of our government as mere
6
Because the district court and the majority of the three judge panel
decided that a constitutional right was not violated, we, sitting en banc, are
required to decide that question. It is of no consequence at this juncture
of the appeal in which order the Saucier questions are addressed. It is not
necessary, therefore, to defer decision pending the Supreme Court’s deci-
sion whether to overrule Saucier’s two-step inquiry. See Pearson v. Calla-
han, __ S. Ct. __, 2008 WL 754340 (Mar. 24, 2008).
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8433
platitudes.” Id. (citing W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624, 637 (1943)).
[1] To implement these principles, the Court established
“the proper standard for assessing the legality of searches
conducted by public school officials.” Id. at 328. Whether
school officials subject a student to a search of her purse, as
in T.L.O., or strip a student of clothing, the Constitution man-
dates that the search meet the generalized requirement of
“reasonableness, under all the circumstances, of the search.”
Id. at 341. The Court recognized that what is reasonable
requires a balancing of interests: “On one side of the balance
are arrayed the individual’s legitimate expectations of privacy
and personal security; on the other, the government’s need for
effective methods to deal with breaches of public order.” Id.
at 337. Noting that “even a limited search of the person is a
substantial invasion of privacy,” id. (citing Terry v. Ohio, 392
U.S. 1, 24-25 (1968)), the Court emphasized that “[a] search
of a child’s person or of a closed purse or other bag carried
on her person, no less than a similar search carried out on an
adult, is undoubtedly a severe violation of subjective expecta-
tions of privacy.” Id. at 337-38. Weighed against the students’
substantial interest in privacy is the “substantial interest of
teachers and administrators in maintaining discipline in the
classroom and on school grounds.”7 Id. at 339. To accommo-
date the school context, the Court concluded that the “public
interest is best served by a Fourth Amendment standard of
reasonableness that stops short of probable cause.” Id. at 341.
[2] The Court set forth a twofold inquiry to gauge reason-
ableness: “[F]irst, one must consider ‘whether the . . . action
7
Judge Hawkins’s dissenting opinion gives little weight to the substan-
tial privacy interests of the child identified by the Supreme Court, focusing
almost entirely on the school’s interest in order. Yet the Supreme Court
instructed that the reasonableness standard involved two equally important
goals: preserving the school’s need for order while ensuring that the “in-
terests of students would be invaded no more than is necessary” to pre-
serve such order. Id. at 343.
8434 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
was justified at its inception;’ second, one must determine
whether the search as actually conducted ‘was reasonably
related in scope to the circumstances which justified the inter-
ference in the first place.’ ” Id. (citations omitted). The Court
further held that a 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 infrac-
tion.” Id. at 342. The Court crafted this test to “neither unduly
burden the efforts of school authorities to maintain order in
their schools nor authorize unrestrained intrusions upon the
privacy of schoolchildren.” Id. at 342-43.
While Judge Hawkins’s dissenting opinion characterizes
T.L.O.’s standard as designed to “spare teachers and school
officials the necessity of schooling themselves in the niceties
of probable cause and permit them to regulate their conduct
according to the dictates of reason and common sense,” Haw-
kins Dissent infra at 8456, it pays scant attention to the criti-
cally important statement of the Court that immediately
follows this quoted sentence in the T.L.O. opinion: “At the
same time, the reasonableness standard should ensure that the
interests of students will be invaded no more than is necessary
to achieve the legitimate end of preserving order in the
schools.” Id. at 343 (emphasis added).
Nowhere does the T.L.O. Court tell us to accord school
officials’ judgments unblinking deference. Nor does T.L.O.
provide blanket approval of strip searches of thirteen-year-
olds remotely rumored to have had Advil merely because of
a generalized drug problem. Rather, the Court made it clear
that while it did not require school officials to apply a proba-
ble cause standard to a purse search, it plainly required them
to act “according to the dictates of reason and common
sense.” Id. As discussed below, the public school officials
who strip searched Savana acted contrary to all reason and
common sense as they trampled over her legitimate and sub-
stantial interests in privacy and security of her person.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8435
1. Public School Officials Conducted a Strip Search of
Savana.
[3] Let there be no doubt: the Safford school officials con-
ducted a strip search of Savana. Judge Hawkins’s dissenting
opinion squeamishly avoids facing the reality of the nature of
the search. Our designation of Savana’s search as a strip
search is supported by federal and state law, as well as sec-
ondary authority. Savana did not have to be completely naked
for the school officials to have strip searched her. The Elev-
enth Circuit has considered a police officer’s direction for
someone to strip down to their underwear to be a “strip
search.” See Justice v. City of Peachtree City, 961 F.2d 188,
190 (11th Cir. 1992). Likewise, the Fourth Circuit under-
stands a search of an adult arrestee in his boxer shorts to be
a strip search. See Amaechi v. West, 237 F.3d 356, 363 (4th
Cir. 2001) (citing United States v. Dorlouis, 107 F.3d 248,
256 (4th Cir. 1997)). The First Circuit “recognize[s] that a
strip search may occur even when an inmate is not fully dis-
robed.” See Wood v. Hancock County Sheriff’s Dep’t., 354
F.3d 57, 63 n.10 (1st Cir. 2003).
Statutes defining a strip search in several states confirm our
understanding of the term “strip search.” California, for
instance, defines the term as “requir[ing] a person to remove
or arrange some or all of his or her clothing so as to permit
a visual inspection of the underclothing, breasts, buttocks, or
genitalia of such person.” CAL. PENAL CODE § 4030 (emphasis
supplied); see also, e.g., CONN. GEN. STAT. § 54-33k; 725 ILL.
COMP. STAT. 5/103-1; MO. REV. STAT. § 544.193; N.J. STAT.
ANN. 2A:161A-3; VA. CODE ANN. § 19.2-59.1; WASH. REV.
CODE § 10.79.070. The Fourth Circuit has recognized that this
definition of a strip search is “uniform” throughout the Union.
See Amaechi, 237 F.3d at 365 n.15.
Black’s Law Dictionary defines a ‘strip search’ as “[a]
search of a person conducted after that person’s clothes have
been removed, the purpose usually being to find any contra-
8436 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
band the person might be hiding.” See BLACK’S LAW
DICTIONARY 1378-79 (8th ed. 2004).
Savana was required by the public school officials to dis-
robe and expose the parts of her body underneath her under-
wear so that school officials could potentially find ibuprofen.
The term may unsettle the sensibilities of our dissenting col-
leagues; however, the accuracy of the designation merely
cements the intrusiveness of what occurred. And, even if our
dissenting friends want to quibble about the term, the search
of Savana by any other name would be equally as unreason-
able.
2. Was the Strip Search Justified at Its Inception?
[4] “Under ordinary circumstances, a search of a student by
a teacher or other school official will be ‘justified at its incep-
tion’ when there are reasonable grounds for suspecting that
the search will turn up evidence that the student has violated
or is violating either the law or the rules of the school.”
T.L.O., 469 U.S. at 341-42. Reasonableness, of course,
depends on context. We agree with the Seventh Circuit that
T.L.O. requires that “as the intrusiveness of the search of a
student intensifies, so too does the standard of Fourth Amend-
ment reasonableness. What may constitute reasonable suspi-
cion for a search of a locker or even a pocket or pocketbook
may fall well short of reasonableness for a nude search.”8
Cornfield by Lewis v. Consol. High Sch. Dist. No. 230, 991
F.2d 1316, 1321 (7th Cir. 1993). The Second Circuit also
agrees with this approach: “Although T.L.O. held that reason-
able suspicion is the governing standard, the reasonableness
8
Notably, at least seven states—including two in this Circuit—have
concluded that strip searches of schoolchildren are never permissible for
any reason. See CAL. EDUC. CODE § 49050; IOWA CODE § 808A.2(4)(a);
OKLA. STAT. tit. 70, § 24-102; N.J. STAT. ANN. § 18A:37-6.1; S.C. CODE
ANN. § 59-63-1140; WASH. REV. CODE § 28A.600.230(3); WIS. STAT.
§ 948.50(3).
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8437
of the suspicion is informed by the very intrusive nature of a
strip search, requiring for its justification a high level of
suspicion.” Phaneuf v. Fraikin, 448 F.3d 591, 596 (2d Cir.
2006) (citation omitted).
Here, as in T.L.O., the school officials engaged in two
related searches: first, a search of Savana’s backpack and her
pockets, which does not give rise to the claims in the com-
plaint, and second, a strip search, which forms the basis of the
complaint.9 See T.L.O., 469 U.S. at 345 (“The incident that
gave rise to this case actually involved two separate searches,
with the first—the search for cigarettes—providing the suspi-
cion that gave rise to the second—the search for marihua-
na.”). A review of the facts found in T.L.O., and the Court’s
reasoning regarding the progression of the first search of
T.L.O. to the second, supports the conclusion that while rea-
sonable suspicion may very well have justified the initial
search of Savana’s backpack and the emptying of her pockets,
it was unreasonable to proceed from this first search to a strip
search.
In T.L.O., a high school teacher discovered two girls smok-
ing in a lavatory in violation of a school rule. 469 U.S. at 328.
In response, the teacher brought the two girls down to the
principal’s office to discuss the infraction with the high
school’s vice principal. While T.L.O.’s friend admitted to
smoking, in violation of a school rule, T.L.O. denied the alle-
gation. Id. To determine whether to believe the denial, the
vice principal brought T.L.O. into his private office and asked
to see her purse. Id. As he opened the purse, the vice principal
found a pack of cigarettes. Id. Reaching in for the cigarettes,
the vice principal further discovered a package of rolling
papers, closely associated with the use of marijuana. Id.9
That the dissent chooses to merge the two searches into one with an
increasing degree of intrusiveness does little to advance the analysis of
T.L.O. and its application to the strip search here.
8438 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
Having discovered indications that T.L.O.’s previous denial
was false and that she possessed drug paraphernalia, the vice
principal began a second and more intrusive search of
T.L.O.’s purse. Id. This second search revealed “a small
amount of marihuana, a pipe, a number of empty plastic bags,
a substantial quantity of money in one-dollar bills, an index
card that appeared to be a list of students who owed T.L.O.
money, and two letters that implicated T.L.O. in marihuana
dealing.” Id.The Court reasoned that the initial search of T.L.O.’s purse
was reasonable because a teacher had reported that this partic-
ular student was smoking in the bathroom. Id at 345-46. This
report gave the vice principal reason to suspect T.L.O. had
cigarettes on her person, and “if she did have cigarettes, her
purse was the obvious place in which to find them.” Id. at
346. This first search revealed not only corroboration of the
vice principal’s suspicion that T.L.O. was carrying cigarettes,
but, by the discovery of rolling papers, also provided addi-
tional reasonable suspicion that T.L.O. may possess mari-
juana, thereby justifying a second, more intrusive search.
Because the first search revealed information that supported
reasonable suspicion that she possessed contraband, the Court
concluded that “further exploration of T.L.O’s purse” was jus-
tified. Id. at 347.
The causal link permitting the vice principal to proceed
from his first, less intrusive search to a second, more thorough
search—the discovery of cigarettes and rolling papers—is
entirely absent here. The initial search of Savana’s backpack
(which, like T.L.O.’s purse, were “the obvious place[s]” to
find pills) did not turn up any ibuprofen. The T.L.O. Court
concluded that the second search was reasonable because the
preliminary search provided physical evidence supporting the
vice principal’s suspicion. Of course, the discovery of ciga-
rettes also provided the vice principal with good reason to dis-
count the veracity of T.L.O.’s denials. Here no such causal
link existed. To the contrary: the initial search of Savana
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8439
revealed nothing to suggest she possessed pills or that she was
anything less than truthful when she emphatically stated she
had never brought pills into the school. Following the logic of
T.L.O., the initial search of Savana’s backpack and her pock-
ets may have been constitutionally permissible. That initial
search, however, is not the search currently before us. Rather,
we must analyze whether the subsequent strip search was jus-
tified at its inception.
[5] Absent the sort of physical evidence found in T.L.O.,
the primary purported justification for the strip search was
Marissa’s statement that Savana had given her the ibuprofen
that she was caught with in violation of the school’s rule. This
self-serving statement, which shifted the culpability for bring-
ing the pills to school from Marissa to Savana, does not jus-
tify initiating a highly invasive strip search of a student who
bore no other connection to the pills in question. We do not
treat all informants’ tips as equal in their reliability. See
Adams v. Williams, 407 U.S. 143, 147 (1972). Rather,
“[w]hen a court is considering whether an informant’s tip is
sufficient to support a finding of probable cause or reasonable
suspicion, the court must employ a ‘totality-of-the-
circumstances approach’ that takes into consideration the
informant’s ‘veracity’ or ‘reliability’ and his ‘basis of knowl-
edge.’ ” United States v. Rowland, 464 F.3d 899, 907 (9th Cir.
2006). For good reason, we are most suspicious of those self-
exculpatory tips that might unload potential punishment on a
third party. See Lilly v. Virginia, 527 U.S. 116, 133 (1999)
(“It is clear that our cases consistently have viewed an accom-
plice’s statements that shift or spread the blame to a criminal
defendant as falling outside the realm of those [categories of
trustworthy statements].”). Our concerns are heightened when
the informant is a frightened eighth grader caught red-handed
by a principal. This is particularly so when the student impli-
cates another who has not previously been tied to the contra-
band and, more generally, has no disciplinary history
whatsoever at the school. More succinctly, the self-serving
statement of a cornered teenager facing significant punish-
8440 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
ment does not meet the heavy burden necessary to justify a
search accurately described by the Seventh Circuit as “de-
meaning, dehumanizing, undignified, humiliating, terrifying,
unpleasant [and] embarrassing.” Mary Beth G. v. City of Chi-
cago, 723 F.2d 1263, 1272 (7th Cir. 1983).
[6] At a minimum, Assistant Principal Wilson should have
conducted additional investigation to corroborate Marissa’s
“tip” before directing Savana into the nurse’s office for dis-
robing. See Williams by Williams v. Ellington, 936 F.2d 881,
888-89 (6th Cir. 1991) (“While there is concern that students
will be motivated by malice and falsely implicate other stu-
dents in wrongdoing, that type of situation would be analo-
gous to the anonymous tip. Because the tip lacks reliability,
school officials would be required to further investigate the
matter before a search or seizure would be warranted.”);
Phaneuf, 448 F.3d at 598-99 (“While the uncorroborated tip
no doubt justified additional inquiry and investigation by
school officials, we are not convinced that it justified a step
as intrusive as a strip search.”). This need for further investi-
gation is particularly heightened here because the initial tip
provided no information as to whether Savana currently pos-
sessed ibuprofen pills or was hiding them in a place where a
strip search would reveal them. See T.L.O., 469 U.S. at 346(recognizing distinction between reasonable places to search
—such as purses—and other, less reasonable places). Several
avenues were available for Wilson to follow up on Savana’s
general statement, including discussions with Savana’s teach-
ers, conversations with Savana’s parents, or further question-
ing of other students. Certainly, the only “corroboration”
Wilson received—Savana’s adamant denial of possessing ibu-
profen and a fruitless search of her backpack—did not serve
to bolster the tip’s reliability to a degree sufficient to justify
a further and more intrusive search.
Nor are we persuaded that either Savana’s admission that
she lent Marissa the planner or any disputed allegation that
she served alcohol six weeks before Marissa was found with
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8441
the pills provided reasonable grounds to believe that a strip
search of Savana would reveal ibuprofen. The planner that
Savana lent to Marissa had not been used by Marissa to con-
ceal ibuprofen. The ibuprofen, rather, had been concealed in
Marissa’s pockets, consistent with the information provided
by Jordan linking Marissa alone to the ibuprofen.10 That
Savana lent a planner to Marissa—in which Marissa con-
cealed objects that violated Safford school rules—does not
make it significantly more likely that Savana had anything to
do with the pills carried in Marissa’s pockets. Judge Haw-
kins’s dissenting opinion appears satisfied that the planner
cements Savana’s friendly relationship with Marissa, and
therefore makes Savana’s involvement in pill distribution
more likely. This is nothing more than “guilt-by-association,”
certainly too thin of a reed for such a substantial intrusion into
Savana’s expectations of privacy. See Joint Anti-Fascist Refu-
gee Comm. v. McGrath, 341 U.S. 123, 178 (1951) (“The tech-
nique is guilt by association—one of the most odious
institutions of history . . . . Guilt in our system is personal.”).
Moreover, Marissa’s compounding number of school rule vio-
lations should reasonably have cast more suspicion on her
own culpability, further undermining the reliability of her
accusation of Savana. Further, Savana’s mother had denied
the family’s involvement in providing alcohol to any student
before the August school dance.11 Nevertheless, even if
Savana had provided alcohol to students in August, that event
does not make it more likely that an October strip search
10
Judge Hawkins inconsistently embraces Jordan’s credibility when it
serves his cause of attempting to discredit Savana with the months-earlier
alcohol allegation but is quick to dismiss Jordan when his statements sup-
port Savana’s credibility and complete innocence. The dissent accepts Jor-
dan’s recollection of Savana’s party a month and a half earlier to suggest
that Savana provided students with alcohol, yet does not give the same
force to Jordan’s statement that earlier that very day Marissa—and not
Savana—had given him the ibuprofen.
11
Again, because we accept the facts of the party opposing qualified
immunity to determine whether a constitutional violation could be found,
we credit this account of events. Saucier, 533 U.S. at 201.
8442 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
would reveal ibuprofen pills hidden in Savana’s underwear.
See Phaneuf, 448 F.3d at 600 (“The school acted unreason-
ably in treating all contraband alike: Surely, a discovery of
cigarettes cannot alone support a suspicion that a student is
carrying a firearm or is bootlegging gin. Without further
explanation, the school cannot vault from the finding of one
type of (commonly used) contraband, to a suspicion involving
the smuggling of another.”).
Comparing the facts leading to Savana’s strip search to jus-
tifications offered for similar searches examined by our sister
circuits further bolsters our conclusion that this strip search
was not justified at its inception. In Cornfield, the Seventh
Circuit found justifiable at its inception a strip search of a
sixteen-year-old male enrolled in a high school behavioral
disorder program. 991 F.2d at 1319. There, a disinterested
teacher’s aide observed that the student was “too well-
endowed,” suggesting that the student might be “crotching”
drugs. Id. Information from third parties buttressed this obser-
vation, including another student’s report that Cornfield had
brought drugs onto campus, and a teacher’s report that Corn-
field admitted he had previously dealt drugs as well as
“crotched” drugs during a police raid at his mother’s house.
Id. at 1322. Moreover, the local police had reported to the
school that they received information that Cornfield was sell-
ing marijuana to other students. Id. Perhaps most importantly,
the information provided a basis to believe that a strip search
was necessary to reveal the contraband. These factors—
teacher observations indicating the contraband was hidden in
Cornfield’s underwear, tips from impartial students, police
reports, and previous student admissions—all distinguish
Cornfield’s search from that of Savana, whose only tie to the
ibuprofen in question was Marissa’s statements, which in this
context, were unreliable.
Indeed, in Phaneuf, the Second Circuit struck down as
unjustified a strip search of an eighteen-year-old girl as unjus-
tified with facts far more favorable to the school officials than
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8443
those present here. There, a disinterested student provided a
tip to a teacher that Phaneuf, a student with a history of disci-
plinary problems, planned to stuff marijuana down her pants
that day to take along with her on the senior class picnic.
Phaneuf, 448 F.3d at 593. Although the school had a specific
tip that the student was currently hiding drugs where only a
strip search could discover them, and the school called the
student’s mother to perform the search, the Second Circuit
determined that a student tip, even when not seeking to shift
blame, justified only further inquiry and not a “step as intru-
sive as a strip search.” Id. at 599. The circumstances the pub-
lic school officials confronted here provided even less
justification than those rejected in Phaneuf, considering the
source of the tip, the content of the tip (including no informa-
tion that Savana currently possessed pills in a place where a
strip search would reveal them) and the history of the student
in question.
[7] The school initiated a strip search of Savana on the
basis of an unsubstantiated tip from Marissa, a student seek-
ing to shift blame from herself to Savana. Other facts mar-
shaled by the school district—allegations of alcohol use
months earlier, Jordan’s tip that Marissa provided him with a
pill, and Marissa’s hidden contraband in a planner Savana lent
her—are logically unrelated to a reasonable belief that Savana
was hiding pills on her person. For these reasons, we hold that
the strip search of Savana was unjustified at its inception.
3. Was the Strip Search Reasonable in Scope?
[8] Nor was the strip search “reasonably related in scope to
the circumstances which justified the interference in the first
place.” T.L.O., 469 U.S. at 341 (internal quotation mark and
citation omitted). The scope of a search is permissible only if
“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.” Id. at
342 (emphasis added). Here, the public school authorities
8444 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
adopted a disproportionately extreme measure to search a
thirteen-year-old girl12 for violating a school rule prohibiting
possession of prescription and over-the-counter drugs. We
conclude the strip search was not reasonably related to the
search for ibuprofen, as the most logical places where the pills
might have been found had already been searched to no avail,
and no information pointed to the conclusion that the pills
were hidden under her panties or bra (or that Savana’s class-
mates would be willing to ingest pills previously stored in her
underwear). Common sense informs us that directing a
thirteen-year-old girl to remove her clothes, partially reveal-
ing her breasts and pelvic area, for allegedly possessing ibu-
profen, an infraction that poses an imminent danger to no one,
and which could be handled by keeping her in the principal’s
office until a parent arrived or simply sending her home, was
excessively intrusive.
[9] Along with our sister circuits, we have long recognized
the psychological trauma intrinsic to a strip search. “The feel-
ings of humiliation and degradation associated with forcibly
exposing one’s nude body to strangers for visual inspection is
beyond dispute.” Thompson v. City of Los Angeles, 885 F.2d
1439, 1446 (9th Cir. 1989) (challenging a strip search of an
adult after arrest for grand-theft auto). As the Tenth Circuit
has explained, “[t]he experience of disrobing and exposing
one’s self for visual inspection by a stranger clothed with the
uniform and authority of the state . . . can only be seen as
thoroughly degrading and frightening.” Chapman v. Nichols,
989 F.2d 393, 396 (10th Cir. 1993) (challenging strip search
policy of Oklahoma jail). That Savana’s search took place in
a nurse’s office in front of two women does not remove the
12
T.L.O. requires us to measure the intrusiveness of the search in light
of the “age and sex” of the student. Here, the gender of the students sus-
pected of possessing ibuprofen did make a difference: only the girls were
asked to disrobe. Chris, a male student, was asked only to empty his pock-
ets, shake out his shirt and shake his pants up and down. That Savana was
subjected to a more intrusive search than that deemed necessary for the
boy renders it all the more unreasonable.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8445
sting of the procedure. See Hunter v. Auger, 672 F.2d 668,
674 (8th Cir. 1982) (“Indeed, a strip search, regardless how
professionally and courteously conducted, is an embarrassing
and humiliating experience.”).
[10] These concerns, pressing and legitimate when strip
searches are conducted on adults in prison, are magnified
when strip searches are performed on schoolchildren. As the
Supreme Court has noted: “[Y]outh is more than a chronolog-
ical fact. It is a time and condition of life when a person may
be most susceptible to influence and to psychological dam-
age.” Eddings v. Oklahoma, 455 U.S. 104, 115 (1982). As
adolescents enter puberty, “they become more conscious of
their bodies and self-conscious about them. Consequently, the
potential for a search to cause embarrassment and humiliation
increases as children grow older.” Cornfield, 991 F.2d at 1321
n.1. “[N]o one would seriously dispute that a nude search of
a child is traumatic.” Id. at 1321.
As Amicus National Association of Social Workers
informs us, psychological research supports these judicial
observations. “Clinical evaluations of the [young] victims of
strip searches indicate that they can result in serious emo-
tional damage, including the development of, or increase in,
oppositional behavior.” Irwin A. Hyman & Donna C. Perone,
The Other Side of School Violence: Educator Policies and
Practices that May Contribute to Student Misbehavior, 36 J.
SCHOOL PSYCHOLOGY 7, 13 (1998). “Psychological experts
have also testified that victims often suffered post-search
symptoms including sleep disturbance, recurrent and intrusive
recollections of the event, inability to concentrate, anxiety,
depression and development of phobic reactions, and that
some victims have been moved to attempt suicide.” Stephen
F. Shatz et al., The Strip Search of Children and the Fourth
Amendment, 26 U.S.F. L. REV. 1, 12 (1991) (internal quota-
tion marks omitted). Moreover, that the student is “viewed
rather than touched, do[es] not diminish the trauma experi-
enced by the child.” Jess Ann White, A Study of Strip Search-
8446 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
ing in Pennsylvania Public Schools and an Analysis of the
Knowledge, Attitudes, and Beliefs of Pennsylvania Public
School Administrators Regarding Strip Searching 37 (2000)
(on file with the Temple University Graduate Board). The
overzealousness of school administrators in efforts to protect
students has the tragic impact of traumatizing those they
claim to serve.
[11] And all this to find prescription-strength ibuprofen
pills. We reject Safford’s effort to lump together these run-of-
the-mill anti-inflammatory pills with the evocative term “pre-
scription drugs,” in a knowing effort to shield an imprudent
strip search of a young girl behind a larger war against drugs.
Contrary to Judge Hawkins’s assertion, we are not “implicitly
express[ing] disagreement” with the Safford Middle School’s
policy J-3050. Rather, we are following T.L.O.’s dictate to
evaluate whether a search is “excessively intrusive in light of
the . . . nature of the infraction.” T.L.O., 469 U.S. at 342.
Nothing in the record provides any evidence that the school
officials were concerned in this case about controlled sub-
stances violative of state or federal law. No legal decision
cited to us or that we could find permitted a strip search to
discover substances regularly available over the counter at
any convenience store throughout the United States. See, e.g.,
Williams, 936 F.2d at 882 (considering a strip search to dis-
cover either cocaine or a vial of “Rush”); Cornfield, 991 F.2d
at 1323 (reviewing a strip search conducted to find marijuana
or other controlled substances); Phaneuf, 448 F.3d at 593(rejecting a strip search to uncover marijuana). And contrary
to any suggestion that finding the ibuprofen was an urgent
matter to avoid a parade of horribles, even if Savana had pos-
sessed the ibuprofen pills, any danger they posed was neutral-
ized once school officials seized Savana and held her in the
assistant principal’s office. Savana had no means at that point
to distribute the pills, and whatever immediately threatening
activity the school may have perceived by the alleged posses-
sion of prescription-strength ibuprofen had been thwarted.
The school officials had only to send Savana home for the
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8447
afternoon to prevent the rumored lunchtime distribution from
taking place—assuming she in fact possessed the pills on her
person. The lack of any immediate danger to students only
further diminishes the initial minimal nature of the alleged
infraction of bringing ibuprofen onto campus. As the Court
pointed out in T.L.O., a school is not a prison; the students are
not inmates. See 469 U.S. at 338. We hasten to note, however,
that if Savana had been accused of a federal crime, she would
have been entitled to more legal protections that she received
here. See 18 U.S.C. § 5033 (“Whenever a juvenile is taken
into custody for an alleged act of juvenile delinquency, the
arresting officer shall . . . immediately notify the Attorney
General and the juvenile’s parents, guardian, or custodian of
such custody.”); United States v. C.M., 485 F.3d 492, 499 n.1
(9th Cir. 2007) (noting that “the officer must also advise the
parents that they are permitted to speak with their child before
the child is interrogated”).
[12] As the Seventh Circuit reasoned in Cornfield, “a
highly intrusive search in response to a minor infraction
would . . . not comport with the sliding scale advocated by the
Supreme Court in T.L.O.” 991 F.2d at 1320. Here, we have
exactly such a scenario with the important additional variable
that the subject of the search was a thirteen-year-old pubes-
cent girl. Approving such a strip search would eviscerate the
Supreme Court’s stated goal of developing a standard that
“ensure[s] that the interests of students will be invaded no
more than is necessary to achieve the legitimate end of pre-
serving order in the schools.” T.L.O., 469 U.S. at 343. We
therefore conclude that the strip search was impermissible in
scope. The Safford public school officials violated Savana’s
Fourth Amendment rights.
8448 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
B. Was the Right of a Thirteen-Year-Old Girl to Be Free
from Strip Searches on Suspicion of Possessing
Ibuprofen Clearly Established in 2003?
Having determined that the strip search violated Savana’s
constitutional rights, we must consider whether those rights
were clearly established at the time of the search. Saucier, 533
U.S. at 200. That there is no case precisely on all fours does
not preclude the conclusion that the Fourth Amendment right
at issue was clearly established when the school officials
stripped and searched Savana. See Drummond ex rel. Drum-
mond v. City of Anaheim, 343 F.3d 1052, 1060-61 (9th Cir.
2003) (“[I]t is not necessary that the alleged acts have been
previously held unconstitutional, as long as the unlawfulness
was apparent in light of existing law.”). We ask whether “it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.”13 Saucier, 533 U.S.
at 202.
As of 1985, when the Supreme Court issued T.L.O., the
legal framework was clearly established that would put school
officials on notice that a strip search was not a reasonable
measure to use on a thirteen-year-old girl accused by an unre-
liable student informant of having ibuprofen in violation of
school rules. In T.L.O., the Supreme Court carefully
instructed school officials as to the twofold inquiry that must
be made before they engage even in a minimally intrusive
search: whether the search was justified at its inception and
whether it was reasonable in scope in light of the nature of the
infraction and the age and gender of the student. 469 U.S. at
341. The Safford authorities conducted their search almost
13
There need not be judicial unanimity for us to conclude that a right
was clearly established to a reasonable officer. Indeed, majorities on the
Supreme Court and the various circuits have declared a right clearly estab-
lished over the dissents of their colleagues. See, e.g., Groh v. Ramirez, 540
U.S. 551 (2004); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted
Vill. Sch. Dist., 428 F.3d 223 (6th Cir. 2005); Johnson v. Hawe, 388 F.3d
676 (9th Cir. 2004).
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8449
twenty years after the Supreme Court’s instructions issued in
T.L.O. A reasonable school official, seeking to protect the stu-
dents in his charge, does not subject a thirteen-year-old girl to
a traumatic search to “protect” her from the danger of Advil.
Indeed, the school officials’ actions here were so patently in
defiance of the considered approach T.L.O. dictates, that it is
little wonder that we can find no case presenting identical
facts.
Common sense and reason supplement the federal report-
ers. The T.L.O. Court expected no less of those to whom we
entrust our children, leaving teachers to “regulate their con-
duct according to the dictates of reason and common sense.”
469 U.S. at 343. Simply put: “It does not require a constitu-
tional scholar to conclude that a nude search of a thirteen-
year-old child is an invasion of constitutional rights of some
magnitude. More than that: it is a violation of any known
principle of human dignity.” Calabretta v. Floyd, 189 F.3d
808, 819 (9th Cir. 1999) (quoting Doe v. Renfrow, 631 F.2d
91, 92-93 (7th Cir. 1980)).
[13] Earlier this year, the Sixth Circuit similarly recognized
that some safeguards on government intrusion remain self-
evident and do not require a case on point to prevent govern-
ment officials from hiding behind the cloak of qualified
immunity. In Brannum v. Overton County School Board, 516
F.3d 489 (6th Cir. 2008), middle school students brought suit
against the school district for installing and operating video
surveillance equipment in the boys’ and girls’ locker rooms at
their school. The court’s stirring prose reminds us that
“[s]ome personal liberties are so fundamental to human dig-
nity as to need no specific explication in our Constitution in
order to ensure their protection against government invasion.
Surreptitiously videotaping [middle school students] in vari-
ous states of undress is plainly among them.” Id. at 499.
Rejecting a claim of qualified immunity, the court concluded
that “a person of ordinary common sense, to say nothing of
professional school administrators, would know without need
8450 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
for special instruction from a federal court, that teenagers
have an inherent personal dignity, a sense of decency and
self-respect, and a sensitivity about their bodily privacy that
are at the core of their personal liberty.” Id. Even without a
specific case on point, “[t]hese notions of personal privacy are
‘clearly established’ in that they inhere in all of us, particu-
larly middle school teenagers, and are inherent in the privacy
component of the Fourth Amendment’s proscription against
unreasonable searches.” Id.We adopt the reasoning of the Sixth Circuit.14 Schoolchil-
dren, as the Supreme Court recently reaffirmed, do not shed
their constitutional rights at the schoolhouse gate. Morse v.
Frederick, 127 S. Ct. 2618, 2622 (2007) (citing Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)).
This principle and the guidance provided by T.L.O. should
have been clear to the school officials, who undertook the
professional obligation to balance properly the order of the
school with the individual liberties of the students who enter
the school.
[14] We hold that Savana’s rights were clearly established
at the time that Assistant Principal Wilson, in his official
capacity, initiated and directed the strip search. The record
before us leaves no doubt that it would have been clear to a
14
We wish to note the basis for our reliance upon Brannum. This deci-
sion did not put Safford school officials on notice as to the unconstitution-
ality of the search, not only because Brannum deals with a suspicionless
video search of a locker room, but also because the Sixth Circuit reached
its decision five years after the search of Savana. Rather, we rely upon the
sound reasoning of Brannum that is equally applicable to a factually dis-
tinguishable search, such as the one currently before us. Like the Sixth
Circuit, we conclude that a reasonable school official did not need direc-
tion in the form of a factually indistinguishable case resolved by a federal
court to understand disrobing a thirteen-year-old girl to search for ibu-
profen violated the student’s constitutional rights anymore than it needed
a case to know it should not videotape a middle school locker room. The
“dictates of reason and common sense,” and the two-step inquiry of T.L.O.
should have sufficed. See T.L.O., 469 U.S. at 343.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8451
reasonable school official in Wilson’s position that the strip
search violated Savana’s constitutional rights, and we there-
fore reverse summary judgment as to him and the school dis-
trict. However, on the record before us, it is clear that the
school nurse, Schwallier, and Wilson’s assistant, Romero,
acted solely pursuant to Wilson’s instructions and not as inde-
pendent decision-makers, and, thus, we affirm summary judg-
ment as to them. Cf. Ramirez v. Butte-Silver Bow County, 298
F.3d 1022, 1028 (9th Cir. 2002) (noting that for subordinate
police officers involved in a search “so long as they ma[k]e
inquiry into the nature and scope of [the] warrant, reliance on
their leaders’ representations about it is reasonable”).
III. CONCLUSION
The strip search of thirteen-year-old Savana did not satisfy
either prong of T.L.O. and therefore was conducted in viola-
tion of Savana’s Fourth Amendment rights. These constitu-
tional principles were clearly established by the United States
Supreme Court twenty years before the Safford school offi-
cials conducted the strip search of thirteen-year-old Savana.
Therefore, we reverse the district court’s determination that
there was no violation of Savana’s constitutional rights, con-
clude that the constitutional principles were clearly estab-
lished as to Assistant Principal Wilson, affirm the grant of
qualified immunity as to Schwallier and Romero, and remand
for further proceedings consistent herewith.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8453
Volume 2 of 2
8454 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
GOULD, Circuit Judge, with whom SILVERMAN, Circuit
Judge, joins, dissenting:
Although I conclude that the Supreme Court’s precedent in
New Jersey v. TLO, 469 U.S. 325 (1985), and common sense
show that the strip search of Savanna was unreasonable and
unconstitutional, I dissent from the court’s judgment because
I conclude, contrary to the majority in Part II-B of its opinion,
that the defendants are entitled to a qualified immunity from
liability. I also conclude that constitutional rights were
impaired under TLO by a slightly different analytical frame-
work than that advanced by the majority.
In my view, it is most sound to ask, in the language of the
first prong of TLO, whether any search of Savanna was justi-
fied in its inception, and then to ask, in the language of the
second prong of TLO, whether the search was reasonable in
scope under the total circumstances when it progressed to an
invasive strip search requiring Savanna to shed all of her
clothes except for undergarments in front of the school nurse
and employee Helen Romero, and to shake her bra and under-
pants before the officials’ eyes. See TLO, 469 U.S. at 346-47(considering each element of the search step-by-step).
I would hold that some search of Savanna was justified at
the inception because of concerns about illicit distribution of
drugs at the school and the tip that she had supplied Marissa
with prescription strength ibuprofen. To my thinking, to focus
at the outset on the strip search poses the risk that we give
inadequate heed to the real needs for some search of Savanna.
I am confident that a reasonable school official should have
proceeded to some search of Savanna in light of what Marissa
had disclosed. Savanna does not contend otherwise; her com-
plaint is only that the school officials went too far in requiring
her to disrobe. Officials had been told by a person with an
illicit drug that Savanna had supplied it, and that more distri-
bution was to occur later that day involving others. This justi-
fied the school’s request to search and its subsequent search
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8455
of Savanna’s pockets and backpack, and may have warranted
other search or inquiry activities to interdict any further distri-
bution of ibuprofen at levels beyond what could be bought
without prescription.
However, it was unreasonable to proceed to a strip search.
Nothing in Marissa’s tip suggested, or would have led one to
believe, that Savanna had likely hidden ibuprofen in her
underwear. She was observed from the first moment she was
confronted, and certainly from that point would not likely
have been able to hide any illicit drugs in her underpants or
bra. More important is the fact, apparently unrecognized by
the school officials, that to force a teenage girl to strip upon
school command would lead to an embarrassment of her that
could cause deep and lasting psychological harm. Without
more concrete and specific justification, the scope of the
search conducted in the nurse’s office was excessively intru-
sive and an affront to what most parents would consider com-
mon sense treatment of their children at school. Thus I agree
with my colleague Judge Wardlaw’s conclusion that the strip
search was unreasonable.
Finally, although I think our ruling should be crystal clear
that schools may not subject a student to a strip search under
circumstances as presented here, and although the general
principles in TLO and other cases are well established, I can
understand how school officials, even though they made an
erroneous decision, should have some insulation from liability
before our declaration of how these principles applied to this
case. The fact that the district court and a majority of a prior
panel of our court thought, and some dissenting judges on this
panel continue to think, the scope of the search reasonable to
me says something about a lack of clarity in our law. I am
glad to agree with the majority opinion that the strip search
was unreasonable in order to fix that. However, I conclude
that the school officials are entitled to qualified immunity, and
in this respect agree with the conclusion reached by my col-
league Judge Hawkins in Section III of his opinion. In my
8456 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
view, qualified immunity is available because the law hereto-
fore did not give adequate guidance to the school officials.
HAWKINS, Circuit Judge, joined by Chief Judge KOZINSKI
and Judge BEA, dissenting:
In this case we confront a formidable Fourth Amendment
task: weighing the privacy interests of a thirteen-year-old girl
against the interest of school officials in maintaining a safe
and orderly school environment, which was threatened by,
among other things, the discovery of unapproved prescription-
strength ibuprofen on school grounds and the recent memory
of a prescription-drug incident in which a student nearly died.
The majority’s Opinion holds that the officials’ search1 was
unreasonable—both because it was unjustified at its inception
and unreasonable in scope—and that the right to be free from
such a search was clearly established at that time. I respect-
fully disagree on both issues.
In New Jersey v. T.L.O., the Supreme Court held that a
“reasonableness” standard governs school official searches,
“spar[ing] teachers and school administrators the necessity of
schooling themselves in the niceties of probable cause and
permit[ting] them to regulate their conduct according to the
dictates of reason and common sense.” 469 U.S. 325, 343
(1985). Given that sound minds often differ on the dictates of
reason, my disagreement with the majority likely boils down
1
The majority favors the term “strip search” to describe a search that
took place in a closed office with only a female school nurse and female
administrator present, and began with Redding removing her jacket, shoes,
socks, pants and shirt, and continued with her pulling her bra and shaking
it, partially exposing her breasts, and pulling her underwear away from her
body and shaking it, partially exposing her pelvic area. I would reserve the
term “strip search” for a search that required its subject to fully disrobe in
view of officials, and I think it is useful to maintain the distinction so that
we can distinguish such searches from the one in this case.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8457
to the weight to be assigned to the parties’ respective interests
and the degree of imbalance required to find a constitutional
violation.
That said, I do have specific points of disagreement. In con-
trast to the Supreme Court’s recent school search cases, the
majority fails to acknowledge the unique considerations pres-
ent in the public school setting, including the need for infor-
mal and flexible disciplinary measures, and the considerable
risk presented by drugs. The Opinion also yields two rules
that sweep too broadly: (1) that an uncorroborated tip from a
student facing punishment is insufficient to justify the search
at issue; and (2) that the search was per se unreasonable
because officials were only seeking prescription-strength ibu-
profen.
Finally, even if one were to accept the majority analysis, it
appears abundantly clear that a reasonable school official did
not, indeed could not, have had fair notice that the search vio-
lated Savana Redding’s rights. See Saucier v. Katz, 533 U.S.
194, 202 (2001).
For these and the following reasons, I respectfully dissent.
I. The Flexibility of Cause in the School Setting
In T.L.O., the Court recognized that an exceptional rule was
required for a singular context and held that “the school set-
ting requires some easing of the restrictions to which searches
by public authorities are ordinarily subject.” 469 U.S. at 340.
The majority accurately recites the reasonableness inquiry,
but fails in my view to acknowledge the impetus behind the
novel standard: the need for school officials to act flexibly
and swiftly in their efforts to maintain orderly and safe educa-
tional environments. Because this concern ought to guide a
student search analysis, a review of the T.L.O. Court’s reason-
ing will enhance the ultimate inquiry.
8458 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
In crafting a reasonableness standard for student searches,
the T.L.O. Court did not simply extend the extant Fourth
Amendment jurisprudence governing law enforcement
searches. Instead, it recognized that “what is reasonable
depends on the context within which a search takes place,”
which requires “ ‘balancing the need to search against the
invasion which the search entails.’ ” T.L.O., 469 U.S. at 337(quoting Camara v. Municipal Court, 387 U.S. 523, 536-37
(1967)).
The Court rejected the argument that children lack any
legitimate expectations of privacy on campus, T.L.O., 469
U.S. at 338–39, but explained that “[a]gainst the child’s inter-
est in privacy must be set the substantial interest of teachers
and administrators in maintaining discipline in the classroom
and on school grounds,” id. at 339. Although the Court took
note of the recent rise in drug use and violent crime, it made
clear that “[e]ven in schools that have been spared the most
severe disciplinary problems, the preservation of order and a
proper educational environment requires close supervision of
schoolchildren, as well as the enforcement of rules against
conduct that would be perfectly permissible if undertaken by
an adult.” Id.Of course, the preservation of order is an important goal
outside of schools, but the school environment presents
unique challenges. “Events calling for discipline are frequent
occurrences and sometimes require immediate, effective
action,” and, therefore, “maintaining security and order in the
schools requires a certain degree of flexibility in school disci-
plinary procedures.” Id. at 339–40 (internal quotation marks
omitted). Accordingly, the Court set out to craft a standard
that would “preserv[e] the informality of the student-teacher
relationship.” Id.Based on this reasoning, T.L.O. held that the general Fourth
Amendment warrant requirement is ill-suited for school
searches, for it would “unduly interfere with the maintenance
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8459
of the swift and informal disciplinary procedures needed in
the schools.” 469 U.S. at 340. The Court did not stop there,
however. Over a spirited dissent, id. at 353–70 (Brennan, J.,
dissenting), the Court concluded that “the accommodation of
the privacy interests of schoolchildren with the substantial
need of teachers and administrators for freedom to maintain
order in the schools does not require strict adherence to the
requirement that searches be based on probable cause,” id. at
341 (majority opinion). The Court believed that “the reason-
ableness standard should ensure that the interests of students
will be invaded no more than is necessary to achieve the legit-
imate end of preserving order in the schools.” Id. at 343.
The newly-minted reasonableness standard was to govern
all school searches, even those that resulted from students’
infractions of seemingly trivial rules.
We are unwilling to adopt a standard under which
the legality of a search is dependent upon a judge’s
evaluation of the relative importance of various
school rules. The maintenance of discipline in the
schools requires not only that students be restrained
from assaulting one another, abusing drugs and alco-
hol, and committing other crimes, but also that stu-
dents conform themselves to the standards of
conduct prescribed by school authorities. . . . Absent
any suggestion that the [rule forbidding specified
conduct] violates some substantive constitutional
guarantee, the courts should, as a general matter,
defer to that judgment and refrain from attempting to
distinguish between rules that are important to the
preservation of order in the schools and rules that are
not.
Id. at 342 n.9.
This review of the Court’s thinking should inform our
understanding of the reasonableness standard. The normal
8460 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
Fourth Amendment balancing has been tipped to be more
favorable to school officials; children maintain their right to
a legitimate expectation of privacy, but school officials do not
need probable cause to invade that right. This recalibration of
the Fourth Amendment scales has a purpose: allowing school
officials to respond swiftly and informally to effect their “sub-
stantial interest” in maintaining order in schools, including
schools with no significant history of disciplinary problems.
Further, the standard implicitly recognizes that school offi-
cials deserve deference to their policy judgments, as courts
are expressly forbidden from deciding which school rules are
too trivial to trigger searches under the reasonableness stan-
dard.
In light of this, it is important that our school search deci-
sions have a forward-looking element. We must keep an eye
on the consequences of our rulings so that we do not inadver-
tently formalize a setting that the Supreme Court has insisted
remain informal. Similarly, we must manage the ever-present
risk of impeding school officials’ ability to respond quickly to
disciplinary infractions, even if we think such infractions rela-
tively benign. “A teacher’s focus is, and should be, on teach-
ing and helping students, rather than on developing evidence
against a particular troublemaker.” T.L.O., 469 U.S. at 353(Blackmun, J., concurring in the judgment).
This is not to say that we must rubber stamp every school
search. While “unblinking deference,” Majority at 8434, is
certainly not called for, we should recognize that our normal,
healthy skepticism of government authority must be recon-
ciled with the realities of the school environment. “[T]eachers
have a degree of familiarity with, and authority over, their stu-
dents that is unparalleled except perhaps in the relationship
between parent and child.” T.L.O., 469 U.S. at 348 (Powell,
J., joined by O’Connor, J., concurring). Whereas “[l]aw
enforcement officers function as adversaries of criminal sus-
pects,” “[r]arely does this type of adversarial relationship
exist between school authorities and pupils. . . . The attitude
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8461
of the typical teacher is one of personal responsibility for the
student’s welfare as well as for his education.” Id. at 349–50.
T.L.O.’s emphasis on these aspects of the school environ-
ment has been reaffirmed in subsequent cases. In Vernonia
School District 47J v. Acton, the Court rejected a Fourth
Amendment challenge to a school district’s policy of conduct-
ing random urinalysis drug testing on student athletes, which
required those students to urinate under teacher supervision.
515 U.S. 646, 648, 650, 664–65 (1995). In doing so, it noted
that T.L.O. emphasized that “the State’s power over school-
children” is “custodial and tutelary, permitting a degree of
supervision and control that could not be exercised over free
adults.” Id. at 655. In Acton, the school’s role as a “guardian
and tutor” was the “most significant element” in the Court’s
decision. Id. at 665.
Considering the government’s interest in “[d]eterring drug
use by our Nation’s schoolchildren,” the Court opined that
“the nature of the concern is important—indeed, perhaps
compelling—[which] can hardly be doubted.” Id. at 661. Stu-
dents are the most susceptible to the physical, psychological,
and addictive effects of drugs, id., and “of course the effects
of a drug-infested school are visited not just upon the users,
but upon the entire student body and faculty, as the educa-
tional process is disrupted,” id. at 662.
Acknowledging that there was a less intrusive means of
deterring drug abuse—“ ‘drug testing on suspicion of drug
use’ ”—Acton reiterated that there is no “least intrusive”
requirement under the Fourth Amendment. Id. at 663. The
suspicion-of-drug-use requirement was undesirable because it
would “add[ ] to the ever-expanding diversionary duties of
schoolteachers the new function of spotting and bringing to
account drug abuse, a task for which they are ill prepared, and
which is not readily compatible with their vocation.” Id. at
664.
8462 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
More recently, the Supreme Court upheld a similar urinaly-
sis drug testing policy that applied not only to student ath-
letes, but also to all students who participated in competitive
extracurricular activities. Bd. of Educ. of Indep. Sch. Dist. No.
92 v. Earls, 536 U.S. 822, 825 (2002). The Court explained
that “[a] student’s privacy interest is limited in a public school
environment where the State is responsible for maintaining
discipline, health, and safety,” and cited as examples policies
that require students to routinely “submit to physical examina-
tions and vaccinations against disease.” Id. at 830–31.
Reiterating the problems of adolescent drug abuse in
schools discussed in Acton, the Earls Court stated that “the
nationwide drug epidemic makes the war against drugs a
pressing concern in every school.” Id. at 834; see also id. at
835 (“[T]his Court has not required a particularized or perva-
sive drug problem before allowing the government to conduct
suspicionless drug testing.”). And, once again, the Court
rejected the argument that the Constitution requires individu-
alized suspicion before testing. Id. at 837. In addition to the
reasons discussed in Acton, the Court offered an additional
concern: “The fear of lawsuits resulting from such targeted
searches may chill enforcement of the program, rendering it
ineffective in combating drug use.” Id.Finally, just one year ago, the Supreme Court held that
schools can “restrict student expression that they reasonably
regard as promoting illegal drug use.” Morse v. Frederick,
127 S. Ct. 2618, 2629 (2007). Drawing on the three Fourth
Amendment school search cases, it restated that “ ‘the nature
of [schoolchildren’s] rights is what is appropriate for children
in school,’ ” and that “deterring drug use by schoolchildren is
an ‘important—indeed, perhaps compelling’ interest.” Id. at
2627, 2628 (quoting Acton, 515 U.S. at 656, 661).
Twenty-three years after it was decided, T.L.O. remains
good law. Students still have reduced expectations of privacy
on campus, and school officials are still entitled to promptly
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8463
and informally confront threats to school order. Not only has
the Court failed to strike down any searches under T.L.O., it
has gone even further, holding that schools can require stu-
dents to provide urine samples under teacher supervision
without any suspicion of drug use, and without any history of
drug problems at the school. It is against this background that
we must evaluate this search.
II. The Constitutionality of the Search
A. Inception
For a T.L.O. search2 to be reasonable, it must be justified
at its inception and reasonable in its scope. T.L.O., 469 U.S.
at 341. Generally, such a search will be “ ‘justified at its
inception’ when there are reasonable grounds for suspecting
that the search will turn up evidence that the student has vio-
lated or is violating either the law or the rules of the school.”
Id. at 342.
Following the lead of the Second and Seventh Circuits, the
majority holds that the level of suspicion required for a search
to be justified at its inception varies with the intrusiveness of
the search. Majority at 8436–37 (citing Phaneuf v. Fraikin,
448 F.3d 591, 596 (2d Cir. 2006); Cornfield ex rel. Lewis v.
2
Hereafter, this dissent refers to a public school official’s search of a
student that is based on individualized suspicion as a “T.L.O. search.”
Such a search can be distinguished from an “Acton search” in which
school officials conduct a systematic search without any individualized
suspicion, and for which courts (should) use a different balancing test. See
Acton, 515 U.S. at 653 (distinguishing T.L.O. because the search approved
in that case, “while not based on probable cause, was based on individual-
ized suspicion of wrongdoing”); see also Thomas ex rel. Thomas v. Rob-
erts, 261 F.3d 1160, 1166–68 (11th Cir. 2001) (explaining the distinction
between the two types of searches), vacated, 536 U.S. 953 (2002), rein-
stated, 323 F.3d 950, 952 (11th Cir. 2003). But see Brannum v. Overton
County Sch. Bd., 516 F.3d 489, 495 (6th Cir. 2008) (conflating the two
types of searches and applying the T.L.O. two-step test to evaluate suspi-
cionless use of video surveillance in school locker rooms).
8464 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1321 (7th
Cir. 1993)). This holding finds no support in the text or rea-
soning of T.L.O., and it is by no means certain that the
Supreme Court would approve.3 Cf. 5 Wayne R. Lafave,
Search and Seizure § 10.11, at 501 (4th ed. 2004) (noting with
regret that “the reasonable suspicion test of [T.L.O.] is
nowhere confined to searches of only limited intrusiveness”).
I see the searches in T.L.O. somewhat differently than the
majority. That case did not define those two searches by their
level of intrusiveness; the searches were discrete because
objects from unrelated infractions were sought. Had the Court
employed the majority’s standard, it might have said that the
case involved a first search—opening and peering into the
3
It may be simpler to analyze the intrusiveness of the search under the
“scope” prong of the T.L.O. inquiry. This would allow the two T.L.O.
prongs to be meaningfully distinct. The “justified at its inception” prong
would inquire whether, based on all the circumstances, officials have a
reasonable suspicion “that the particular individual being [searched] is
engaged in wrongdoing.” United States v. Cortez, 449 U.S. 411, 418
(1981) (emphasis added); see also Gould Dissent at 8454. The “reasonable
in scope” prong, by contrast, would focus on the nature and intrusiveness
of the search, including the locations (such as underwear) that officials
searched for evidence. See United States v. Sharpe, 470 U.S. 675, 682–83,
686 (1985) (holding that law enforcement officers’ decision to pull over
specific vehicles on suspicion of drug trafficking was clearly justified at
its inception based on those vehicles’ characteristics and driving patterns;
analyzing whether investigative stop was “too long in duration” under the
reasonably-related-in-scope prong).
For example, a tip that “Redding is hiding stolen cash” would justify at
its inception a decision to conduct some form of search of Redding
because it created a reasonable suspicion that she, as opposed to someone
else, was engaging in prohibited conduct. That tip alone, however, might
be insufficient to permit a particularly intrusive search. By contrast, a tip
that “some student hid stolen cash in her bra” would not justify at its
inception a search of Redding because it gave no indication that she was
hiding cash in her bra. Once officials gathered additional information that
indicated Redding was the one with the cash, then a search of the bra
would likely be reasonable in scope because of the specific information in
the tip.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8465
purse—providing suspicion that gave rise to the second search
—rummaging through the purse. Instead, the Court explained
that the case “involved two separate searches, with the first—
the search for cigarettes—providing the suspicion that gave
rise to the second—the search for marihuana.” T.L.O., 469
U.S. at 343–44.
Looking at the facts of T.L.O., it is not difficult to deter-
mine why the Court identified the two searches in this way.
When T.L.O. was first presented to the assistant vice princi-
pal, she was suspected only of violating the school’s cigarette
smoking policy. T.L.O., 469 U.S. at 328. Once those ciga-
rettes were found, it would have been unreasonable to con-
tinue searching T.L.O.’s purse for evidence of other
wrongdoing, absent some newly discovered grounds for sus-
picion. This would be true even if the further search was less
intrusive.4 It was therefore sensible to identify the initial
search for cigarettes as a single, limited search. Because roll-
ing papers were found during the cigarette search, though, the
assistant vice principal had reasonable suspicion justifying a
second search—whether more or less intrusive.
Further, nothing in T.L.O. suggests that the assistant vice
principal would not have been able to rummage through
T.L.O.’s purse looking for cigarettes if they had not happened
to be in sight when the purse was opened. Indeed, it is diffi-
cult to understand how the search for marijuana in the main
compartment of the purse was meaningfully more intrusive
than the search for cigarettes.5
4
See infra note 17 and accompanying text.
5
When, in the midst of looking for evidence of marijuana trafficking,
the assistant vice principal read some letters he found in T.L.O.’s purse,
he arguably conducted a more intrusive search than when he merely
opened and looked into the purse for cigarettes. The Court’s opinion indi-
cates, though, that it was the further search of the purse—and not the read-
ing of the letters—that marked the beginning of the second search. See
T.L.O., 469 U.S. at 347 (“The discovery of the rolling papers concededly
gave rise to a reasonable suspicion that T. L. O. was carrying marihuana
as well as cigarettes in her purse. This suspicion justified further explora-
tion of T.L.O.’s purse . . . .”).
8466 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
A final point on T.L.O.: If the majority is correct, then the
Supreme Court erroneously stated that there were only two
searches. After all, if opening and looking into a purse is one
search, and looking further into the purse is a second, then
surely the search of a separate zippered purse compartment
would have been a third, and the reading of letters discovered
therein would have a been a fourth. See T.L.O., 469 U.S. at
347.
Although the Supreme Court expressly considered the
argument that the school official unreasonably read those let-
ters, it did not identify that act, which was the most intrusive,
as a separate search.6 Id. And we can fairly assume the reason
it did not: Imagine how burdensome it would be for courts to
conduct the two-step T.L.O. inquiry for every component of
a search. If the majority faithfully applied its own standard, it
would have separately analyzed each increasingly intrusive
step in today’s search—(1) opening Redding’s backpack and
peering inside, (2) subsequently rummaging in the backpack,
(3) removing Redding’s shoes and peering inside, (4) reach-
ing into the shoes, and so on with respect to Redding’s socks,
pants, and shirt. So much for “spari[ing] teachers and school
administrators the necessity of schooling themselves in the
niceties of probable cause.” Id. at 343. School officials may
find themselves having to contend with a “reasonable suspi-
cion” doctrine that is becoming more complex than the proba-
ble cause doctrine rejected by T.L.O.
6
The Court did consider, though, whether “the scope of the search [for
marijuana] . . . exceeded permissible bounds when [the official] seized and
read” the letters. T.L.O., 469 U.S. at 347. The Court held that all the other
evidence of marijuana trafficking found in the purse “was substantial
enough to justify [the official] in examining the letters.” Id. By framing
the issue as the “scope of the search,” it seems fairly clear that the Court
was deciding whether the search for marijuana was “permissible in its
scope,” and not whether the reading of the letters was “justified at its
inception.”
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8467
All that said, because the search appears justified at its
inception even under the majority’s standard, this dissent will
assume that the majority is correct and that a heightened level
of suspicion was required to justify this particular search of
Redding.
Even under the majority’s sliding scale approach, though,
school officials would be able to proceed with searches on
something less than probable cause, even for highly intrusive
searches.7 Reasonable suspicion has been defined as “a partic-
ularized and objective basis for suspecting the person stopped
of criminal activity, and probable cause to search as existing
where the known facts and circumstances are sufficient to
warrant a man of reasonable prudence in the belief that con-
traband or evidence of a crime will be found.” Ornelas v.
7
The majority’s sliding scale approach is much like Justice Stevens’
preferred school search standard. In his T.L.O. dissent, Justice Stevens
argued that school searches should only be permitted when there is reason-
able suspicion that those searches would “uncover evidence that the stu-
dent is violating the law or engaging in conduct that is seriously disruptive
of school order, or the educational process.” T.L.O., 469 U.S. at 378 (Ste-
vens, J., dissenting) (emphasis omitted). Whereas today’s majority looks
to the degree of the search’s intrusiveness to determine how much suspi-
cion is required, Justice Stevens would have “varie[d] the extent of the
permissible intrusion with the gravity of the suspected offense.” Id. at 379.
Both standards would, in their own way, prohibit searches that “ ‘dis-
play[ ] a shocking lack of all sense of proportion.’ ” Id. at 380 (quoting
McDonald v. United States, 335 U.S. 451, 459 (1948) (Jackson, J., concur-
ring)).
The T.L.O. majority explicitly rejected Justice Stevens’ standard
because it would intrude too much upon school officials’ “comprehensive
authority . . . to prescribe and control conduct in the schools.” 469 U.S.
at 342 n.9 (internal quotation marks omitted). The Court’s insistence on
a reasonable suspicion standard for searches that follow the most trivial
infractions does not necessarily mean that the Court would reject a proba-
ble cause standard for the most intrusive searches. But I do think that our
adoption of a probable cause standard for highly intrusive searches would
violate the tenor of T.L.O. and create significant tension with that author-
ity, and we should, therefore, prudently abjure such a rule absent a con-
trary indication from the Supreme Court.
8468 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
United States, 517 U.S. 690, 696 (1996) (internal quotation
marks and citations omitted).
Because these are “fluid concepts,” and not “finely-tuned
standards” that are “readily, or even usefully, reduced to a
neat set of legal rules,” Ornelas, 517 U.S. at 695–96 (internal
quotation marks omitted), attempting to distinguish between
a high level of reasonable suspicion and probable cause may
be something of a fool’s errand. Nevertheless, we must not
demand that school officials present too much independently
corroborated evidence from unquestionably reliable sources;
we must ensure that even highly intrusive searches do not
stand or fall on the presence of probable cause.8
Under the reasonable suspicion standard, our goal is to
ensure that Kerry Wilson, Helen Romero, and Peggy Schwal-
lier (collectively, the Safford Officials) were not acting on the
basis of “an inchoate and unparticularized suspicion or
hunch,” but rather on “the sort of common-sense conclusio[n]
about human behavior upon which practical people—
including government officials—are entitled to rely.” T.L.O.,
469 U.S. at 346 (internal quotation marks omitted; alteration
in original).
Based on the record evidence, the Safford Officials pos-
sessed sufficient information to reasonably suspect Redding
of possessing prescription-strength ibuprofen.
Although Redding had no disciplinary record, there was
reason to suspect that she had violated Arizona’s law regard-
ing possession and consumption of spiritous liquor by a per-
8
See T.L.O., 469 U.S. at 353 (Blackmun, J., concurring in the judgment)
(explaining that school officials’ ability to respond swiftly would not “be
possible if a teacher could not conduct a necessary search until the teacher
thought there was probable cause for the search. A teacher has neither the
training nor the day-to-day experience in the complexities of probable
cause that a law enforcement officer possesses, and is ill-equipped to make
a quick judgment about the existence of probable cause”).
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8469
son under the legal drinking age just a few months before the
October search. See Ariz. Rev. Stat. Ann. § 4-101(18)
(“ ‘Legal drinking age’ means twenty-one years of age or
older.”); id. § 4-244(9) (providing that it is unlawful “for a
person under the legal drinking age to buy, receive, have in
the person’s possession or consume spiritous liquor”).
At the August school dance, “several staff members noticed
some unusually rowdy behavior from a small group of stu-
dents, including Marissa . . . and Savana Redding,” and a bot-
tle of alcohol and a pack of cigarettes were found in the girls’
bathroom. The majority points out that the staff found no spe-
cific link between Redding and the bottle, Majority at 8427,
but there is undisputed testimony that the staff detected the
smell of alcohol among Redding’s small group.
A week before Redding’s search, Principal Robert Beeman
and Assistant Principal Wilson sat down to meet with Jordan
and his mother at her request. Jordan’s mother reported that
he had become violent with her and sick to his stomach a few
nights earlier, and Jordan explained that this occurred after he
ingested some pills that he received from a classmate. He also
advised the administrators that students were bringing weap-
ons and drugs onto school grounds.
As the meeting progressed, Jordan provided Beeman (Wil-
son had left the meeting) with “very detailed accounts regard-
ing several students’ activities,” including Marissa and
Redding. Jordan reported that Redding had hosted a party in
her camper trailer before the August dance, and that she had
served alcohol—“Jack Daniel’s, Black Velvet, vodka, and
tequila”—that her mother had purchased. After the meeting,
Beeman relayed the information to Wilson.
We can pause at this point and review the evidentiary pic-
ture from the perspective of a reasonable school official. The
eighth graders’ school year began inauspiciously when staff
noticed signs of illegal alcohol consumption at the school
8470 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
dance. With Jordan’s report, the situation was ripening into
something much more dangerous—the presence of drugs and
weapons on campus. The description of Jordan’s reaction to
his pill ingestion would have recalled to a reasonable school
official’s mind an incident several years before in which a
Safford Middle School student brought prescription pills to
school and distributed them. In that incident, a student who
took that drug had to be airlifted to an intensive care unit and
almost died.
While Redding’s role in all this was somewhat unclear at
this point, certainly Jordan’s account of the pre-dance party,
coupled with the staff’s report from that dance, supported a
reasonable suspicion that Redding had been illegally serving
and consuming alcohol less than a month and a half earlier.
Further, the staff’s report suggested that Redding and Marissa
were, to some extent, partners in this mischief.9 Although we
accept as true Redding’s testimony that she did not serve or
consume alcohol that night and that Jordan did not attend her
party, there is no evidence that this was ever communicated
to any official at Safford Middle School. To justify a reason-
able suspicion, the officers’ factual determinations were not
required to be correct, but only reasonable given the facts
known to them. See Phaneuf v. Fraikin, 448 F.3d 591, 597
(2d Cir. 2006); United States v. Hartz, 458 F.3d 1011,
1017–18 (9th Cir. 2006); United States v. Hatley, 15 F.3d
856, 859 (9th Cir. 1994).
9
When Beeman followed up with Redding’s mother, she “simply dis-
missed the account by saying that Savana would not have been involved.”
The majority seems to give full credit to this statement. Majority at 8441.
Based on Beeman’s affidavit, one can infer that Redding’s mother lacked
personal knowledge of the party, given that she said that Redding “would
not have been involved,” instead of “was not involved.” In light of this,
one might question whether her denial should have carried much weight
with the school officials in light of the mutually reinforcing observations
of disinterested witnesses.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8471
One week after the meeting with Jordan and his mother,
Wilson was confronted with hard evidence that drugs were
indeed on campus. On the morning of October 8, Jordan went
to see Wilson and handed him a pill that he had just received
from Marissa. According to Jordan, there were additional pills
in the school that some students were planning on taking at
lunch.10 Wilson consulted with Schwallier, the school nurse,
who told him that the pill was Ibuprofen 400 mg, which could
be obtained only with a prescription.
Wilson called Marissa out of class and asked her to accom-
pany him. As Marissa stood up, Wilson noticed a planner in
the desk next to her and asked the classroom teacher to deter-
mine its owner. The teacher discovered several knives and
lighters, a cigarette, and a permanent marker inside the plan-
ner, and shared this information with Wilson.
Arriving at his office with Marissa and the planner, Wilson
asked Romero, an administrative assistant, to observe as
Marissa turned out her pockets and opened her wallet.
Marissa complied, producing a blue pill (later discovered to
be Naprosyn 200 mg), several pills identical to the one Jordan
had possessed, and a razor blade.
According to Wilson’s affidavit, the following exchange
took place: “[Wilson] asked Marissa where the blue pill came
from. Marissa responded, ‘I guess it slipped in when she gave
me the IBU 400s.’ [Wilson] asked ‘who is she?’ Marissa
responded ‘Savana Redding.’ ”
Wilson asked Marissa about the planner, and she denied
10
The majority points out that “the information provided by Jordan link-
[ed] Marissa alone to the ibuprofen.” Majority at 8441. This is correct in
that Jordan only specifically identified Marissa. To be clear, though, Jor-
dan told Wilson that other students were planning on taking pills, so Wil-
son could have reasonably believed that students other than Marissa were
in possession of pills.
8472 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
any knowledge of it and its contents. A subsequent search of
Marissa conducted by Nurse Schwallier and Romero failed to
produce any more pills.
At this point, one can conclude that Wilson had sufficient
evidence to support a reasonable suspicion that Redding had
prescription-strength ibuprofen, Naprosyn, and possibly other
drugs.11 Marissa expressly identified Redding as the supplier,
and there was nothing to suggest that this was not true.
The majority views Marissa’s statement with extraordinary
skepticism. We are told that Marissa, a “frightened” girl,
Majority at 8439, was “attempt[ing] to shift the school offi-
cials’ focus off herself,” Majority at 8429, with a “self-
serving,” “self-exculpatory” explanation, Majority at 8439.
Wilson’s affidavit is the only discussion in the record of
Marissa’s behavior during the meeting.12 Notably absent from
that discussion is any indication that Marissa was frightened.
And the statement can hardly be characterized as exculpatory
because it in no way reduced Marissa’s guilt; regardless of
whether she brought the pills from home or received them
from Redding, Marissa was caught with them in her posses-
sion and was known to have distributed one to Jordan.
The only way the statement would be self-serving is if it
somehow furthered Marissa’s interests. There is no evidence
that she had any ulterior motive for implicating Redding, or
that she would face a reduced punishment for cooperating. If,
11
Based on Marissa’s statement, one could reasonably speculate
whether Redding possessed pills other than Naprosyn and ibuprofen. This
is because Marissa suggested that Redding had only intended to give her
ibuprofen, and that the Naprosyn had inadvertently “slipped in.” If Redd-
ing had possessed Naprosyn without intending to share it that morning
with Marissa, it was an open question what other pills she may have had
that were withheld from Marissa.
12
Romero’s affidavit also discusses Marissa’s statement, but it is identi-
cal to the language in Wilson’s affidavit.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8473
for example, Marissa was facing a suspension for possession
and distribution of the pills, there is no reason to believe that
she would have escaped that punishment simply by naming
her source. And even if Marissa did think she was helping
herself out by blaming Redding, nothing put Wilson on notice
that Marissa held such a belief.
Further, even if we should assume that Marissa would have
believed that there would be a quid pro quo for naming her
source, it is difficult to see why Wilson should have suspected
Marissa was lying. If Marissa knew that Redding actually had
no pills, she also would have known that a search would have
turned up nothing. A fruitless search that wasted Wilson’s
time may have temporarily shifted the focus off of Marissa,
but Marissa should not have thought that it would abate her
inevitable punishment.
Of course, the situation could be different if there were evi-
dence that Marissa had been induced or intimidated into nam-
ing Redding. Had Wilson pressured Marissa into supplying
other students’ names, one might wonder whether she had
been making up a story simply to please him. Similarly, had
Wilson suggested to Marissa that he suspected Redding—for
example, “Honestly, Marissa, it was Savana who gave you the
pills, wasn’t it?”—one might think Marissa was simply telling
Wilson what he wanted to hear. According to the undisputed
testimony, however, none of these circumstances were pres-
ent.
In spite of all the objections that the majority raises to Wil-
son’s reasoning, his suspicion of Redding simply does not
appear to be “the product of a volatile or inventive imagina-
tion,” or a pretext for “an act of harassment.” Terry v. Ohio,
392 U.S. 1, 28 (1968). Because it was reasonable to conclude
that Redding brought pills to school that morning, “it is irrele-
vant that other hypotheses”—including the hypothesis that
Marissa was lying—“were also consistent with [Marissa’s]
accusation.” T.L.O., 469 U.S. at 346.
8474 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
Returning to the events, Wilson’s immediate response to
Marissa’s tip was sensible. He told Redding to leave her
classroom and to bring her books and backpack with her.
They returned to his office, where Wilson asked Redding
whether she knew anything about the planner and the pills sit-
ting on his desk.
Redding admitted that the planner was hers and informed
Wilson that she had lent the planner to Marissa a few days
earlier. Like Marissa, however, she denied ownership of any
of its contents. She also stated that she had never brought any
prescription pills to school and that she had never distributed
pills to other Safford students.
Wilson asked Redding if he could search her “stuff,” and
Redding consented. Romero was called in to assist, and a
search of Redding’s backpack turned up nothing.
Wilson now had to decide whether a further search of
Redding was called for. Nothing in his exchange with Redd-
ing cast doubt on Marissa’s story. Nor did Redding offer any
reason why another student would falsely accuse her. The
meeting, in other words, failed to produce any information
that should have removed Wilson’s reasonable suspicion.
Indeed, information uncovered at the meeting actually
increased the likelihood that Redding had supplied Marissa
with the pills. By conceding that she had lent Marissa the
planner, Redding established a crucial link between the two
girls, enabling Wilson to reasonably conclude that Redding
and Marissa were friends.
The majority rejects this reasoning, asserting that Redd-
ing’s lending of the planner “does not make it significantly
more likely that Savana had anything to do with the pills car-
ried in Marissa’s pockets.” Majority at 8441. This is the
“crabbed notion of reasonableness” that the T.L.O. Court
rejected. T.L.O., 469 U.S. at 343.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8475
[I]t is universally recognized that evidence, to be rel-
evant to an inquiry, need not conclusively prove the
ultimate fact in issue, but only have “any tendency
to make the existence of any fact that is of conse-
quence to the determination of the action more prob-
able or less probable than it would be without the
evidence.”
Id. at 345 (quoting Fed. R. Evid. 401).
To be sure, the planner was only circumstantial evidence of
Redding’s pill distribution, for it did no more than establish
that there was a relationship between Marissa and Redding.
Wilson had reason to believe Marissa and Redding were
friends from the reports of their behavior at the school dance,
and the planner corroborated that. Although the planner was
not direct evidence of pill possession, common sense suggests
that it is significantly more likely an eighth grader will receive
contraband from a classmate who has lent her personal items
than from someone with whom she has hardly any relation-
ship at all. This does not suggest that the planner indepen-
dently justified the search, and it is certainly not “guilt-by-
association.” Majority at 8441. If anything, it is “guilt” (or,
more accurately, suspicion) by direct accusation and circum-
stantial corroboration.
Redding’s denial itself deserves little weight.13 Everything
the majority says to impugn Marissa applies with greater
force to Redding, since her statement was truly exculpatory
and wholly self-serving. See, e.g., Majority at 8439-40 (view-
ing skeptically “the self-serving statement of a cornered teen-
ager facing significant punishment”).
The majority would credit Redding over Marissa in this
13
Obviously, a confession by Redding would have conclusively estab-
lished reasonable suspicion, so the absence of a confession is in that sense
meaningful.
8476 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
“she said, she said” contest because Marissa’s “compounding
number of school rule violations”—the objects concealed in
the planner—should have left Wilson incredulous. Majority at
8441. Wilson, however, did not know that those objects
belonged to Marissa, and not Redding. While both girls
denied knowledge of the planner’s contents, Redding admit-
ted to owning the planner. Although it would be perfectly rea-
sonable for Wilson to surmise that Marissa placed the
contraband in the planner without Redding’s knowledge, he
could not be sure that Redding had not given Marissa the
planner with those items in it.
Redding’s discipline-free record is of limited probative
value in light of the strong signs that she had recently been
drinking liquor and serving it to her classmates. And, unless
we think that the Fourth Amendment gives greater protection
to good test takers, there is only so much weight we can give
to Redding’s honor-student status.
We are told that “Wilson should have conducted additional
investigation to corroborate Marissa’s ‘tip’ ” before ordering
an intrusive search—he could have had a discussion with
Redding’s teachers, her parents, and other students. Majority
at 8440. Although these options may be desirable in other
contexts, they disregard the special needs of the school envi-
ronment that were articulated in T.L.O.
Pulling teachers and students out of class to question them
about Redding’s behavior would be extraordinarily disruptive
to the educational environment. See T.L.O., 469 U.S. at 353(Blackmun, J., concurring in the judgment) (“The time
required for a teacher to ask the questions or make the obser-
vations that are necessary to turn reasonable grounds into
probable cause is time during which the teacher, and other
students, are diverted from the essential task of education.”).
If Wilson had information that suggested specific students or
teachers had knowledge relating to Marissa and Redding, then
it may have been prudent to question those individuals. But
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8477
without any specific leads, it would seem incredibly burden-
some to require that Wilson conduct a full-scale investigation,
speaking to every student and teacher, simply to corroborate
Marissa’s tip.14 Cf. Earls, 536 U.S. at 837 (noting that a
regime of individualized suspicion “place[s] an additional
burden on public school teachers who are already tasked with
the difficult job of maintaining order and discipline”).
Moreover, these hypothetical investigations appear
designed to amass enough evidence to supply Wilson with
probable cause. If Wilson had lacked a specific tip from
Marissa, then it would have been necessary for him to mar-
shal a good deal of circumstantial evidence to justify the
search of Redding. As it stands, though, it is hard to imagine
what sort of additional evidence Wilson could have received
that would supply him with a level of reasonable suspicion
that was less than probable cause.
Both the majority and this dissent discuss at length whether
this search was justified at its inception. It is certainly a sce-
nario about which entirely reasonable minds can differ. In
scrutinizing this particular search, though, we should not lose
sight of an important point: Today’s justified-at-its-inception
holding is not limited to searches for ibuprofen. Had Marissa
been caught with uncut cocaine or bullets for a small-caliber
14
Discussions with Redding’s parents certainly would have shown a
level of respect for them and Redding, and their presence would have
likely alleviated some of the stress and anxiety that Redding may have
been feeling. For those reasons, we can encourage school officials to show
compassion by involving parents in the searching and questioning of stu-
dents. As a means of furthering the Redding investigation, though, discus-
sions with Redding’s parents would have likely provided little useful
information. Had Redding admitted to having the pills, but insisted that
she had a legitimate reason for bringing them on campus (and handing
them to Marissa), her parents may have been able to corroborate her story.
But Redding insisted that she brought no pills to school, and unless her
parents had searched her and her belongings that morning, it is difficult
to envision what information they could offer to negate Wilson’s reason-
able suspicion.
8478 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
handgun, the analysis would necessarily be the same.
Although the “nature of the infraction” is relevant to the over-
all reasonableness inquiry, T.L.O. makes clear that the infrac-
tion is relevant only to the “scope” analysis; it has no bearing
on the quantum of suspicion necessary to justify a search.
T.L.O., 469 U.S. at 341–42 & n.9. And, in today’s educational
environment, students do bring guns and drugs into their
classrooms.
B. Scope
A search that is justified at its inception will nevertheless
be unreasonable if it is not “reasonably related in scope to the
circumstances which justified the interference in the first
place.” T.L.O., 469 U.S. at 341. A 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.” T.L.O., 469 U.S. at 342.
We have reached the heart of this case. Having considered
Redding’s age, the relative harmlessness of ibuprofen, the
trauma of this search, and the lack of particularized suspicion
that pills would be found in Redding’s underwear, the major-
ity determines that the school officials “adopted a dispropor-
tionately extreme measure” that was impermissible in scope.
Majority at 8443-44.
The majority lays out an eminently reasonable argument to
support this conclusion. Nevertheless, because I weigh the
factors differently and accord the school officials’ judgment
greater deference, I would find the search reasonable in scope.
Given that the precise contours of this “scope” analysis are
undefined,15 school officials and lower courts could greatly
benefit from the development of clear guidelines. The follow-
15
See supra note 3; infra Part III.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8479
ing three-step inquiry and some general rules might be helpful
in that regard.
First, courts should determine whether “the measures
adopted are reasonably related to the objectives of the
search.” T.L.O., 469 U.S. at 342. This straightforward inquiry
considers the search’s probability of success, examining the
nature of the evidence sought and any facts that make it more
or less likely such evidence will be found in a specific location.16
For example, if a student were rumored to have brought a
baseball bat on campus in violation of school policy, a search
of that student’s shirt pocket would be patently unjustified. Or
if a student reports that she just saw drugs in a classmate’s
locker, and the classmate has had no opportunity to remove
those drugs, a search of any place other than the locker may
be unreasonable. The same can be said if a specific item is
sought—say, a stolen necklace—and a search of the suspect’s
shoes uncovers the necklace; it would probably be unreason-
able to continue searching the suspect or his belongings for
additional contraband.17
The next two steps of the “scope” inquiry consider whether
a search that has some probability of success is unreasonable
because it is “excessively intrusive.” T.L.O., 469 U.S. at 342.
In the second step, we examine the characteristics of the
search. Our goal is to measure its intrusiveness in light of the
attributes of the suspected student.
16
Where, as the majority does here, a court considers whether a specific
type of search is justified at its inception (e.g., visual body search, purse
search), this analysis is probably redundant.
17
Alternatively, one might say that a continued search is no longer justi-
fied at its inception unless additional evidence of some separate infraction
were found in the midst of the initial search. See T.L.O., 469 U.S. at 347;
see supra note 4 and accompanying text.
8480 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
T.L.O. provides two specific attributes to consider: age and
sex. T.L.O., 469 U.S. at 342. In Acton, the Court went further
and approved random urinalysis of student athletes because,
in part, “[s]chool sports are not for the bashful” and “there is
an element of communal undress inherent in athletic partici-
pation.” Acton, 515 U.S. at 657 (internal quotation marks
omitted). There is no reason to limit the factors to age, sex,
and extracurricular activities.
Mental disability, for instance, is relevant to determining
whether a child can give effective consent. It may be more
unreasonable to pat down or strip search a child who had been
physically or sexually abused than a child without such his-
tory. And if school officials know that a student has a particu-
larly acrimonious or emotionally fraught relationship with a
specific teacher, “reasonableness” may counsel that the
teacher be prohibited from conducting intrusive searches
whenever possible.
The final factor to be considered is the “nature of the
infraction.” T.L.O., 469 U.S. at 342. This is by far the thorni-
est part of the analysis, for T.L.O. has given us conflicting
directions.
The Court expressly stated that the “nature of the infrac-
tion” is part of the “scope” analysis. Id. at 342. It also emphat-
ically rejected Justice Stevens’ “suggestion that some rules
regarding student conduct are by nature too ‘trivial’ to justify
a search based upon reasonable suspicion.” Id. at 342 n.9.
These two propositions are easily compatible if the nature of
the infraction is irrelevant to whether a search was justified at
its inception, but properly considered in determining whether
the search was permissible in scope. Cf. supra note 3. Indeed,
as a matter of black letter law, this appears to be the proper
way to understand the T.L.O. doctrine.
In criticizing Justice Stevens’ views, though, the Court used
language that suggests that deference to school officials’ judg-
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8481
ment pervades the entire reasonableness analysis. The Court
was “unwilling to adopt a standard under which the legality
of a search is dependent upon a judge’s evaluation of the rela-
tive importance of various school rules.” T.L.O., 469 U.S. at342 n.9. Instead, courts “should, as a general matter, defer to
[school officials’] judgment and refrain from attempting to
distinguish between rules that are important to the preserva-
tion of order in the schools and rules that are not.” Id.This passage complicates matters.18 By evaluating the
nature of the infraction, as we are told we must do, we will
in many cases end up second-guessing school officials’ judg-
ment. To find a search excessively intrusive in light of a stu-
dent’s harmless behavior is to hold that teachers and
administrators, notwithstanding their greater expertise and
better familiarity with their particular school and students,
overestimate the threat a given infraction posed to the educa-
tional environment.
Although this presents considerable analytical tension, we
can manage the difficulty by adopting some general rules.
First, no school rule is too trivial to allow for some form of
search. Even the most harmless violations of school policy—
chewing gum, wearing hats, passing notes—threaten the edu-
cational environment by virtue of the student engaging in pro-
hibited activity. School officials have a strong interest in
inculcating discipline and eliminating distractions from the
classroom.19 This interest would surely allow a teacher to
18
Cf. Jenkins ex rel. Hall v. Talladega City Bd. of Educ., 115 F.3d 821,
828 (11th Cir. 1997) (en banc) (granting qualified immunity to officials
who conducted T.L.O. search because “[f]aced with a series of abstrac-
tions, on the one hand, and a declaration of seeming deference to the judg-
ments of school officials, on the other, it is difficult to discern how T.L.O.
could be interpreted to compel the conclusion that these defendants . . .
should have known that their conduct violated a clearly established consti-
tutional right”).
19
As Justice Blackmun charmingly stated, “Every adult remembers from
his own schooldays the havoc a water pistol or peashooter can wreak until
it is taken away.” T.L.O., 469 U.S. at 352 (Blackmun, J., concurring in the
judgment).
8482 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
order a student to disclose what she is concealing in her hand,
or to require a student to stand up and reveal what is hidden
on a chair. Such mala prohibita, however, will rarely justify
significantly intrusive searches.
Second, school officials deserve the greatest latitude when
responding to behavior that threatens the health and safety of
students or teachers. We can distinguish, then, between a
search for a stolen hat and a search for a stolen inhaler or
stolen insulin. Similarly, when school officials reasonably
believe that a student is carrying a weapon or harmful drugs,
it will rarely be unreasonable for them to do what they can to
neutralize the danger.
Third, as a corollary to the previous rule, courts should dis-
tinguish between two types of searches for harmful objects:
those intended to uncover evidence of past wrongdoing, and
those responding to an ongoing or future threat. A search for
heroin-loaded syringes deserves the utmost deference,
whereas a search for used and empty ones may, at some point
of intrusiveness, be better left to parents or law enforcement.
Finally, we should resist using our independent judgment to
determine what infractions are so harmful as to justify signifi-
cantly intrusive searches. Seemingly innocuous items can, in
the hands of creative adolescents, present serious threats.
Courts may not immediately appreciate the wisdom of a
school policy that bans, say, aerosol spray cans, but that is
why judges are not chosen to run schools.20
Relatedly, if a school board wishes to prohibit students
from bringing scissors to school for fear that they may be
20
Although aerosol spray cans and bottles pose little threat to a responsi-
ble user, death can result “from a single session of inhalant use by an oth-
erwise healthy young person.” Nat’l Inst. on Drug Abuse, U.S. Dep’t of
Health & Human Servs., Inhalants 2 (June 2007), available at http://
www.nida.nih.gov/PDF/Infofacts/~Inhalants07.pdf.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8483
used as weapons, we should not require that the school board
defend the policy by establishing that there is a history of
scissor-stabbing at the school. Schools are entitled to stay one
step ahead of tragedy. Likewise, if a teacher has reasonable
suspicion that a student is violating the scissor policy, he
should be entitled to assume, absent contrary evidence, that
the student has the worst intentions. Ordinarily, the teacher-
student relationship should be suffused with trust. But when
a student presents a potential threat of harm to himself or oth-
ers, we should not require school officials to be optimistically
naive. Searches are often fruitless, and students’ motives are
often benign, but teachers, unlike courts, do not act with the
benefit of hindsight.
Although a close call, this analytical framework leads to the
conclusion that the search of Redding was permissible in
scope.
The measures adopted in this case were reasonably related
to finding ibuprofen. Assuming that the search was justified
at its inception (as we must in the “scope” analysis), Wilson
had reason to believe that Redding possessed small pills.
There was no indication where those pills might be, however.
A search of Redding’s backpack turned up nothing, and she
was wearing clothes without any pockets that day. There is no
question that the pills could physically be concealed in Redd-
ing’s underwear in a way that would avoid superficial obser-
vation.
Absent evidence that pills were not under Redding’s
clothes, it hardly seems irrational that they might be con-
cealed in places that only a more intrusive search would
uncover. See Williams ex rel. Williams v. Ellington, 936 F.2d
881, 887 (6th Cir. 1991) (upholding “strip search” that
occurred after officials failed to find a small glass vial in stu-
dent’s locker and purse because at that point “it was reason-
able . . . to suspect the girl may be concealing the contraband
on her person”).
8484 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
As a doctrinal matter, we should distinguish searches that
are unreasonable because of an insufficient probability of suc-
cess from searches that are unreasonable because of excessive
intrusiveness.21 In Redding’s case, I believe it is the intrusive-
ness of the search that should give us pause, but not Wilson’s
suspicion that pills might be hidden under clothes.
As for the second step of the inquiry—the intrusiveness of
the search in light of the attributes of the student—I have no
disagreement with the majority’s thorough discussion of the
impact of “strip searches” on young teenagers. Redding testi-
fied to being “embarrassed and scared” and on the verge of
tears, and, undoubtedly, most children would have had the
same reaction.
We must remember, however, that T.L.O. does not prohibit
searches that achieve some absolute level of intrusiveness.
Rather, the question is one of proportion, for searches are only
unreasonable if they are “excessively intrusive.” T.L.O., 469
U.S. at 342 (emphasis added). No court should ignore the pro-
found effect that a highly intrusive search has on a thirteen-
year-old girl, but a conclusion about reasonableness can come
only after we consider the impetus for the search.
We turn, then, to the “nature of the infraction.” The major-
ity holds that prescription-strength ibuprofen is simply too
harmless to permit the search at issue. Majority at 8446. In
doing so, it implicitly expresses disagreement with the Saf-
ford Middle School’s District Policy that prohibits “[t]he non-
medical use, possession or sale of . . . [a]ny prescription or
21
This is not to say that an intrusive search cannot be more or less rea-
sonable based on the level of information available to officials. Ordinarily
I would consider this as a fourth step in the “scope” inquiry. See supra
note 3. The majority, however, has decided that this is best analyzed under
the justified-at-its-inception analysis by requiring greater suspicion for
more intrusive searches. For the ease of responding, I have employed that
same framework today.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8485
over-the-counter drug, except those for which permission to
use in school has been granted.”
In my view, the outcome of the case depends on the defer-
ence we give to school officials’ judgment. The school policy
was not adopted solely to create an environment more condu-
cive to learning; rather, it reflects the District’s view that even
over-the-counter drugs can be harmful when used for non-
medical purposes. Given the school officials’ greater exper-
tise, we should credit their beliefs.
Admittedly, ibuprofen is one of the mildest drugs children
could choose to abuse. But that does not mean it is never
harmful.
According to the Physicians’ Desk Reference entry for
Motrin IB, children under the age of twelve should only use
the drug as directed by a doctor.22 Physician’s Desk Reference
1882 (62d ed. 2008). Children who ingest 100 to 200 milli-
grams of ibuprofen per kilogram of body weight “may be
managed with induced emesis,” and children who ingest 200
to 400 mg/kg “should have immediate gastric emptying and
at least four hours observation in a health care facility. Chil-
dren ingesting greater than 400 mg/kg require immediate
medical referral, careful observation and appropriate support-
ive therapy.” Id. at 1883. Even adults can suffer “severe aller-
gic reaction.” Id. at 1882. When taken in combination with
other nonsteroidal anti-inflammatory drugs (such as aspirin or
naproxen), blood thinners, or steroid drugs, ibuprofen can
cause stomach bleeding. Id.
This information supplies a rational basis for the school’s
policy, given officials’ concern for the health of their stu-
dents, including those who were planning to abuse the ibu-
22
Redding was thirteen at the time of the search, but Wilson did not
have to assume that she would have scrupulously distributed the pills
based on her schoolmates’ age, weight, and medical history.
8486 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
profen. Once we rule out irrationality, we should categorize
this search as one aimed at protecting the safety of children
and grant the Safford Officials the appropriate latitude. Any
greater parsing of their decision is inconsistent with the defer-
ence owed to school officials, and we should not create a rule
that will cause teachers and administrators to hesitate when
they in good faith believe children are at risk. While this court
enjoys the luxury of studying ibuprofen’s medical profile and
debating its dangerousness, Wilson did not. See Williams, 936
F.2d at 886 (“To question an official’s every decision with the
benefit of hindsight would undermine the authority necessary
to ensure the safety and order of our schools.”).
Importantly, Wilson was not searching for evidence of past
ibuprofen use, such as an empty Advil bottle. He was acting
on specific information that children in school had pills and
were planning on taking them later that day.
The majority would be content to have Redding sent “home
for the afternoon to prevent the rumored lunchtime distribu-
tion from taking place.” Majority at 8446-47. Or, the majority
says, Redding could have been held, but not intrusively
searched, in Wilson’s office because she would have had no
means to distribute the pills that afternoon. This demonstrates
a misunderstanding of the temporal nature of the threat. The
students were not planning to rob the 3:10 train to Yuma; they
were going to pop pills. The danger would not be “neutral-
ized” by holding Redding for the afternoon, Majority at 8446,
it would simply be postponed until the students left school or
until lunchtime the next day. Let us be realistic: Had Wilson
not acted swiftly and decisively, and had a child fallen ill, the
community would have been outraged by the school’s laxity.
It may be that Wilson overestimated the risk to Redding
and others. Indeed, I am sure there are other reasonable school
officials who would have simply sent her back to class after
an unsuccessful backpack search. Certainly, the Fourth
Amendment did not require that Redding endure this particu-
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8487
lar search. But under these circumstances, 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.
III. The Reasonableness of the Safford Officials’
Actions
The prior discussion on the constitutional question foreor-
dains the treatment of the qualified immunity issue. The “rele-
vant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he con-
fronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). Because
the Safford Officials’ “mistake as to what the law requires
[was] reasonable,” they all are entitled to qualified immunity.
Id. at 205.
To its credit, the majority frames Redding’s Fourth Amend-
ment right with a degree of particularity that allows for a
meaningful clearly-established analysis. See Anderson v.
Creighton, 483 U.S. 635, 639–40 (1987). The issue is
whether, under T.L.O., “the right of a thirteen-year-old girl to
be free from strip searches on suspicion of possessing ibu-
profen [was] clearly established in 2003.” Majority at 8448.
In answering this question, we must be mindful that
“[q]ualified immunity protects ‘all but the plainly incompe-
tent or those who knowingly violate the law.’ ” Lee v. Greg-
ory, 363 F.3d 931, 934 (9th Cir. 2004) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)).
We begin our examination by looking at the case law that
existed at the time the Safford Officials authorized the search.
Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007). “ ‘Ab-
sent binding precedent, we look to all available decisional
law, including the law of other circuits and district courts, to
determine whether the right was clearly established.’ ” Id. at
8488 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
714 (quoting Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir.
1996)).
Surprisingly, the majority skips this exercise entirely, fail-
ing to cite a single T.L.O. search case, aside from T.L.O.
itself, that existed prior to October 2003. Although it is true
that “officials can still be on notice that their conduct violates
established law even in novel factual circumstances,” Hope v.
Pelzer, 536 U.S. 730, 741 (2002), this should not excuse us
from first attempting to see whether any relevant cases exist.
Earlier cases may provide authority that clearly establishes a
right, but they may also create the legal ambiguity that allows
a reasonable official to invoke the protections of the qualified
immunity defense. See Lum v. Jensen, 876 F.2d 1385, 1389
(9th Cir. 1989) (“[T]he absence of binding precedent in this
circuit plus the conflict between the circuits is sufficient,
under the circumstances of this case, to undermine the clearly
established nature of a right.”).
As it turns out, there are multiple T.L.O. search cases from
other circuits that the Safford Officials could have consulted.
In Cornfield ex rel. Lewis v. Consolidated High School Dis-
trict No. 230, the Seventh Circuit upheld a strip search of a
sixteen-year-old student who officials had reason to believe
was “crotching” drugs. 991 F.2d 1316, 1323 (7th Cir. 1993).23
A district court in Kansas found constitutional a search of a
thirteen-year-old boy in which the school official “patted” the
boy’s crotch, removed the boy’s socks and shoes, lowered his
23
The majority opines that: “ ‘It does not require a constitutional scholar
to conclude that a nude search of a thirteen-year-old child is an invasion
of constitutional rights of some magnitude. More than that: it is a violation
of any known principle of human dignity.’ ” Majority at 8449. This quote
originated in a Seventh Circuit case, Doe v. Renfrow, 631 F.2d 91, 92–93
(7th Cir. 1980) (per curiam). Despite this precedent, the Seventh Circuit
in Cornfield upheld a strip search, explaining that Doe’s “sharp condem-
nation . . . stemmed from the fact that the strip search of Doe was executed
without any individualized suspicion and without reasonable cause.” 991
F.2d at 1324.
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8489
pants, and “searched the inside waist band of his boxer
shorts.” Singleton v. Bd. of Educ., 894 F. Supp. 386, 389,
390–91 (D. Kan. 1995). The search followed an uncorrobo-
rated tip from an adult woman that the boy had taken $150.00
from her car. Id. at 388.
Although the majority criticizes the Redding search
because there was no indication that she had pills in her
underwear, the Sixth Circuit upheld a “strip search” of a high
school student for an unknown drug, even though there was
no evidence that the student actually possessed it under her
clothes. Williams ex rel. Williams v. Ellington, 936 F.2d 881,
887 (6th Cir. 1991). Relating to the majority’s discussion of
student informers, the Eleventh Circuit found reasonable a
search of a high school student’s coat pockets for drugs based
solely on the tip of a student who lacked any personal knowl-
edge and was simply relaying information received from an
anonymous third party. C.B. ex rel. Breeding v. Driscoll, 82
F.3d 383, 385, 388 (11th Cir. 1996).
Of course, each of these cases can be factually distin-
guished from the present one, but the Safford Officials had no
way of knowing whether the different facts were constitution-
ally significant—that is, there was little indicating which facts
were sufficient to uphold those searches, and which facts were
necessary.
Not only are there cases that support the constitutionality of
Redding’s search, there are also cases that grant qualified
immunity to officials who conducted unconstitutional T.L.O.
searches.
In Jenkins ex rel. Hall v. Talladega City Board of Educa-
tion, an en banc panel of the Eleventh Circuit was presented
with “strip searches” of eight-year-old second graders that
were undertaken to find seven dollars that had gone missing
from a classmate’s purse. 115 F.3d 821, 822 (11th Cir. 1997)
(en banc). The court refused to even decide the constitutional-
8490 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
ity of the searches, instead granting qualified immunity to the
officers straight away because the T.L.O. test was too vague
and unspecific to clearly establish law that could put the
teachers on notice. Id. at 824–28.
The Eleventh Circuit dealt with another “strip search” in
Thomas ex rel. Thomas v. Roberts (Thomas I), 261 F.3d 1160(11th Cir. 2001), vacated, 536 U.S. 953 (2002), reinstated,
(Thomas II) 323 F.3d 950, 952 (11th Cir. 2003). Following a
reported disappearance of an envelope containing twenty-six
dollars, a teacher and police officer (who happened to be there
to teach a drug awareness class) conducted a mass search of
an entire fifth grade class that was much more intrusive than
the one Redding endured here. Id. at 1163–64.
The male officer took the boys to the bathroom and actually
pulled his own pants and underwear down in front of them to
show them what they were supposed to do. Thomas I, 261
F.3d at 1164. He then threatened them with suspension or jail
if they failed to do as ordered. Id. It appears that the boys
were required to get naked in front of each other, and one boy
testified that two girls he knew saw him with his pants down
because the officer had left the bathroom door open. Id. The
girls had a similar experience with the female teacher, who
forced them, in groups of two to five, to lower their pants and
raise their dresses or shirts. Most were told to lift their bras
and expose their breasts, and some were touched by the
teacher in the process. Id.
Following the analysis set forth in Acton, the court held that
the searches violated the students’ Fourth Amendment rights.
Thomas I, 261 F.3d at 1169. It nevertheless granted qualified
immunity to the defendants, stating that “[i]f the salient ques-
tion is whether T.L.O. gave the defendants ‘fair warning’ that
a ‘strip search’ of an elementary school class for missing
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8491
money would be unconstitutional, then the answer must be
‘no.’ ”24 Thomas II, 323 F.3d at 954.
The search we confront today is less clearly unconstitu-
tional than those described in Jenkins and Thomas. Yet the
Eleventh Circuit effectively held in both cases that T.L.O. is
too vague to enable school officials to determine whether a
particular search will be considered reasonable.25
The majority disagrees with all this, finding that T.L.O.
provided sufficient notice to Wilson. T.L.O. is obviously rele-
vant in that it established “the legal framework.” Majority at
8448. That framework, however, has been roundly criticized
as too ill-defined to allow school officials to reasonably deter-
mine the constitutionality of possible searches. Put simply,
T.L.O. will rarely supply enough guidance to “put the officer
on notice that his conduct would be clearly unlawful.” Sau-
cier, 533 U.S. at 202.
This criticism was first voiced by the T.L.O. dissenters. Jus-
tice Brennan lamented that the “amorphous” reasonableness
standard would “likely spawn increased litigation and greater
uncertainty among teachers and administrators. . . . I cannot
but believe that [schools] faced with interpreting what is per-
mitted under the Court’s new ‘reasonableness’ standard
would be hopelessly adrift as to when a search may be per-
missible.” T.L.O., 469 U.S. at 365–66 (Brennan, J., dissent-
ing).
24
Thomas II was decided in March 2003, some seven months before the
Redding search. It did not provide the necessary guidance to the Safford
Officials, however, because it involved an Acton search (no individualized
suspicion).
25
In support of its constitutional discussion, the majority approvingly
cites Phaneuf v. Fraikin, 448 F.3d 591 (2d Cir. 2006), which declared a
“strip search” to be unconstitutional. Significantly, Phanuef was remanded
to the district court to determine whether the defendants were entitled to
qualified immunity, id. at 600, and the district court found that they were,
Phaneuf v. Cipriano, No. 3:03CV0372, 2007 U.S. Dist. LEXIS 5963, at
*17–*18 (D. Conn. Jan 25, 2007).
8492 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
Justice Stevens concluded that the T.L.O. standard “is so
open-ended that it may make the Fourth Amendment virtually
meaningless in the school context.” Id. at 385 (Stevens, J.,
dissenting). “The Court’s effort to establish a standard that is,
at once, clear enough to allow searches to be upheld in nearly
every case, and flexible enough to prohibit obviously unrea-
sonable intrusions of young adults’ privacy only creates
uncertainty in the extent of its resolve to prohibit the latter.”
Id. at 381.
Lower courts have echoed these observations. In Thomas
II, the Eleventh Circuit stated that
T.L.O.’s balancing test will, in most instances, call
for school officials to speculate as to whether a court
applying the balancing test to specific facts would
find a search unreasonable. . . . [W]here the applica-
ble legal standard is a highly general one, such as
“reasonableness,” preexisting caselaw that has
applied general law to specific circumstances will
almost always be necessary to draw a line that is
capable of giving fair and clear notice that an offi-
cial’s conduct will violate federal law.
Thomas II, 323 F.3d at 954. Jenkins noted that T.L.O. did not
even “apply its own test strictly to the facts presented in that
case.” Jenkins, 115 F.3d at 824. Although T.L.O. stated that
a search must not be overly intrusive in light of the age and
sex of the student and the nature of the infraction, “notably
absent from the Court’s discussion and conclusion” is any
application of these considerations, and “[t]here is no illustra-
tion, indication, or hint as to how the enumerated factors
might come into play when other concrete circumstances are
faced by school personnel.” Id. at 825.
In the absence of detailed guidance, no reasonable
school official could glean from these broadly-
worded phrases whether the search of a younger or
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8493
older student might be deemed more or less intru-
sive; whether the search of a boy or girl is more or
less reasonable, and at what age or grade level; and
what constitutes an infraction great enough to war-
rant a constitutionally reasonable search or, con-
versely, minor enough such that a search of property
or person would be characterized as unreasonable.
Id. at 825–26; see also Beard v. Whitmore Lake Sch. Dist.,
402 F.3d 598, 607 (6th Cir. 2005) (“[T]he [T.L.O.] Court did
little to explain how the factors should be applied in the wide
variety of factual circumstances facing school officials
today.”); Williams, 936 F.2d at 886 (“[T]he reasonableness
standard . . . has left courts later confronted with the issue
either reluctant or unable to define what type of official con-
duct would be subject to a 42 U.S.C. § 1983 cause of
action.”).
Today, this court brushes all these objections aside. Wilson,
it explains, should have known better, for “[c]ommon sense
and reason supplement the federal reporters.” Majority at
8449.
It is of no small consequence to this analysis that 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. The majority feels that Wil-
son, with no legal training, should have known better.
Looking forward, the denial of qualified immunity may
have the greatest impact on this circuit’s schools. It is now
clear that school officials who conduct T.L.O. searches that
judges later think unreasonable will face trial and the possibil-
ity of damages, without any case law to guide them and no
means of divining our views of “common sense and reason.”
IV. Saucier v. Katz
Earlier this year, the Supreme Court granted certiorari in
Pearson v. Callahan, 128 S. Ct. 1702 (2008) (mem.). In that
8494 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
grant, the Court ordered the parties to brief and argue
“[w]hether the Court’s decision in Saucier v. Katz, 533 U.S.
194 (2001) should be overruled?” Pearson, 128 S. Ct. at
1702–03. For me, this case is a poster child for ending Sauci-
er’s “right first, clearly established later” requirement.
Saucier instructed courts to follow a “rigid order of battle”
in cases involving claims of qualified immunity. Brosseau v.
Haugen, 543 U.S. 194, 201–02 (2004) (Breyer, J., concurring)
(internal quotation marks omitted). The threshold question is
whether the facts show that an official’s conduct violated a
constitutional right. Saucier, 533 U.S. at 201. Only after hav-
ing done so may the court then decide whether the right was
clearly established. Id.
Saucier transformed what was once a best-practice
approach to resolving qualified immunity cases into a manda-
tory, two-step inquiry. Compare County of Sacramento v.
Lewis, 523 U.S. 833, 841 n.5 (1998) (describing the two-step
inquiry as “the better approach”), with Saucier, 533 U.S. at
201. Whereas courts used to be able to skip the substantive
constitutional question in cases where an official would
clearly prevail on the qualified immunity issue, now we must
labor to resolve the constitutional issue first.
Since it was decided, Saucier has been criticized by judges
and scholars for having created a doctrine that is impractical,
unduly burdensome, imprudent, and possibly unconstitutional.
Citing some of these reasons, twenty-eight states filed a
Supreme Court brief a few years ago urging that Saucier be
abandoned. Brief for the State of Illinois et al. as Amici
Curiae in Support of Petitioner, Scott v. Harris, 127 S. Ct.
1769 (2007) (No. 05-1631). There is no need to review these
criticisms, as they have been well developed elsewhere. See,
e.g., Brosseau, 543 U.S. at 201–02 (Breyer, J., concurring);
Clement v. City of Glendale, 518 F.3d 1090, 1093 n.4 (9th
Cir. 2008) (Kozinski, C.J.) (“[T]he Saucier rule may lead to
the publication of a lot of bad constitutional law that is, effec-
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8495
tively, cert-proof.”); Lyons v. City of Xenia, 417 F.3d 565,
580–84 (6th Cir. 2005) (Sutton, J., concurring); Thomas
Healy, The Rise of Unnecessary Constitutional Rulings, 83
N.C. L. Rev. 847, 872–82 (2005); Pierre N. Leval, Judging
Under the Constitution: Dicta About Dicta, 81 N.Y.U. L.
Rev. 1249, 1275–81 (2006).
As noted at the onset, this case is a particularly good exam-
ple of why courts should not be required to resolve constitu-
tional questions before finding that a defendant is entitled to
qualified immunity.
The primary rationale behind a mandatory order of battle is
that constitutional law will stagnate and constitutional rights
will remain immature if courts do not take the time to develop
the jurisprudence at every possible opportunity. With some
constitutional doctrines, or with respect to some recurring sce-
narios, this may be true. Courts recognizing those situations
would be wise to take the time to resolve the constitutional
question.
In other situations, though, a doctrine is so inherently fact-
driven that a precedent will provide very little helpful guid-
ance. Today’s case is illustrative. School officials in this cir-
cuit are now on notice that it is unconstitutional to require a
thirteen-year-old female honor student to remove her outer
garments and shake her bra and underwear, partially exposing
her breasts and pelvic area, in front of two female administra-
tors in a private room when the object sought is prescription-
strength ibuprofen and the only direct evidence against her is
the uncorroborated tip of a culpable classmate, and the girl
searched has no disciplinary history but has been suspected of
consuming and serving alcohol.
This precise holding is the only thing officials can rely on.
There is no way of knowing in advance which of these facts
could be altered, and to what degree, in order to find a search
reasonable. This is not the majority’s fault; it is a necessary
8496 REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1
function of the T.L.O. reasonableness test, which eschews any
clear rules in favor of a highly abstract balancing standard that
is meant to reflect nothing more than “the dictates of reason
and common sense.” T.L.O., 469 U.S. at 343.
Of course, because the majority found that a constitutional
right was violated at a time when it was clearly established,
Saucier did not affect the outcome of this case. As a member
of the three-judge panel that found the search to be constitu-
tionally reasonable, and as the author of today’s dissent, I
would have preferred to grant summary judgment based
solely on the qualified immunity issue.
This would have been prudent as a constitutional matter, as
we were forced to decide this case with a very limited eviden-
tiary picture: the record is comprised of only five affidavits
totaling eighteen pages.
Separate from the particulars of today’s case, one addi-
tional comment about Saucier is in order. By recognizing
qualified immunity for an official, a court necessarily holds
that the official’s mistake was reasonable because pre-existing
law did not provide fair notice that the conduct was unlawful.
Brosseau, 543 U.S. at 198 (per curiam). Such a ruling may be
cold comfort, however, when that official is simultaneously
branded a constitutional violator. Whatever thought that per-
son may have had for future positions of public trust will
likely be abandoned, for the public at large cannot be
expected to have any familiarity with the qualified immunity
doctrine. Overruling Saucier, if the Supreme Court chooses to
do so, would enable us to spare the reputations and careers of
competent officials who, while acting in good faith, do noth-
ing more than commit a reasonable mistake.
When deciding Pearson, we can hope the Supreme Court
will have an opportunity to consider the utility of Saucier in
those areas of constitutional law that spawn a substantial
number of relatively useless precedents. Today’s decision,
REDDING v. SAFFORD UNIFIED SCHOOL DIST. #1 8497
along with the rest of T.L.O.’s progeny, would be a great
place to start.
Conclusion
This is a difficult case. This dissent has approached the
issues, as the majority has, “mindful of the limitations of the
judicial function in controlling the myriad daily situations in
which [school officials] and [students] confront each other on
[campus].” Terry, 392 U.S. at 12. The majority understand-
ably empathizes with Redding, giving due regard to the
humiliation and degradation she suffered. And were it not for
my different understanding of the principles articulated in
T.L.O., I might very well have joined today’s opinion. That
case, however, counsels deference to school officials. For that
reason, I would find this search constitutional, and would cer-
tainly forgive the Safford Officials’ mistake as reasonable.