One concerns a 13-year-old honor student who was subjected to a strip search by school officials in Arizona looking for prescription-strength ibuprofen.
The second considers whether public school systems must reimburse parents who choose to send children with disabilities to private school without receiving services from a public program first. The issue may sound familiar, as the court looked at that precise question in 2007, when it found itself in a 4-to-4 deadlock after Justice Anthony M. Kennedy disqualified himself without explanation.
The strip-search case was brought by the mother of Savana Redding, who in 2003 was an eighth-grade student at a public middle school in Safford, Ariz. Another student, found with ibuprofen pills in violation of a strict school policy, said Savana had given them to her.
School officials searched Savana’s belongings, made her strip to her bra and underwear, and ordered her, in the words of an appeals court, “to pull her bra out to the side and shake it” and “pull out her underwear at the crotch and shake it.” No pills were found. The pills that prompted the search had the potency of two over-the-counter Advil capsules.
A trial judge dismissed the parent’s case against the school officials, ruling that they were immune from suit. After a divided panel of the United States Court of Appeals for the Ninth Circuit affirmed that decision, the full appeals court agreed to a rehearing. By 6 to 5, a larger panel of the court reversed the decision, saying the suit could go forward against the assistant principal who had ordered the search.
“It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude,” Judge Kim McLane Wardlaw wrote for the majority, quoting a decision in another case. “More than that: it is a violation of any known principle of human dignity.”
Judge Michael Daly Hawkins, dissenting, said the case was in some ways “a close call,” given the “humiliation and degradation” Savana had endured. But, Judge Hawkins concluded, “I do not think it was unreasonable for school officials, acting in good faith, to conduct the search in an effort to obviate a potential threat to the health and safety of their students.”
“I would find this search constitutional,” he wrote, “and would certainly forgive the Safford officials’ mistake as reasonable.”
In an aside, he discounted Savana’s school record. “Unless we think that the Fourth Amendment gives greater protection to good test takers,” he added, “there is only so much weight we can give to Redding’s honor-student status.”
In its brief urging the Supreme Court to hear the case, Safford Unified School District v. Redding, No. 08-479, the school district said requiring “probable cause for some searches in the school setting that may be deemed more intrusive” created “a roadblock to the type of swift and effective response that is too often needed to protect the very safety of students, particularly from the threats posed by drugs and weapons.”
The second case, Forest Grove School District v. T.A., No. 08-305, appears to present precisely the same question over which the Supreme Court deadlocked two years ago in a case brought by Tom Freston, former chief executive of Viacom: Does the Individuals With Disabilities Education Act, a federal law, allow courts to make school districts pay for private special education when the students in question have not first received services from a public agency?
In the new case, the parents of a high-school junior in Forest Grove, Ore., identified only as T.A., moved him in 2003 to a residential private school after he experienced emotional and educational difficulties, some relating to drug use. The parents sought reimbursement for $5,200 a month in private-school tuition.
The disabilities law allows courts to require reimbursement for students who have “previously received special education and related services under the authority of a public agency.” T.A.’s parents conceded that they had not received such services.
A divided three-judge panel of the Ninth Circuit said strict adherence to the wording of the statute would lead to an “absurd result” in cases where the school district was uncooperative or could not supply appropriate special education.
It is not clear whether the circumstances that led Justice Kennedy to disqualify himself from the Freston case in 2007 have changed. But the court’s order Friday accepting the new appeal did not indicate any recusals.