Pubdate: Sat, 17 Jan 2009
Source: New York Times (NY)
Page: A15
Copyright: 2009 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Adam Liptak
Bookmark: http://www.mapinc.org/find?225 (Students - United States)
Bookmark: http://www.mapinc.org/topic/strip+searches

JUSTICES TO HEAR 2 CASES BROUGHT AGAINST SCHOOLS

WASHINGTON -- The Supreme Court agreed Friday to decide two cases 
pitting parents against public schools.

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. 
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MAP posted-by: Richard Lake