Safford Unified School District #1 v. Redding

OPINION OF THE COURT SAFFORD UNIFIED SCHOOL DIST. #1 V. REDDING 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-479 SAFFORD UNIFIED SCHOOL DISTRICT #1, et al.,
PETITIONERS v. APRIL REDDING

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[June 25, 2009]

															   Justice Souter delivered the
opinion of the Court.

															   The issue here is whether a
13-year-old student’s Fourth Amendment right was violated when she
was subjected to a search of her bra and underpants by school
officials acting on reasonable suspicion that she had brought
forbidden prescription and over-the-counter drugs to school.
Because there were no reasons to suspect the drugs presented a
danger or were concealed in her underwear, we hold that the search
did violate the Constitution, but because there is reason to
question the clarity with which the right was established, the
official who ordered the unconstitutional search is entitled to
qualified immunity from liability.

															I

															   The events immediately prior to
the search in question began in 13-year-old Savana Redding’s math
class at Safford Middle School one October day in 2003. The
assistant principal of the school, Kerry Wilson, came into the room
and asked Savana to go to his office. There, he showed her a day
planner, unzipped and open flat on his desk, in which there were
several knives, lighters, a permanent marker, and a cigarette.
Wilson asked Savana whether the planner was hers; she said it was,
but that a few days before she had lent it to her friend, Marissa
Glines. Savana stated that none of the items in the planner
belonged to her.

															   Wilson then showed Savana four
white prescription-strength ibuprofen 400-mg pills, and one
over-the-counter blue naproxen 200-mg pill, all used for pain and
inflammation but banned under school rules without advance
permission. He asked Savana if she knew anything about the pills.
Savana answered that she did not. Wilson then told Savana that he
had received a report that she was giving these pills to fellow
students; Savana denied it and agreed to let Wilson search her
belongings. Helen Romero, an administrative assistant, came into
the office, and together with Wilson they searched Savana’s
backpack, finding nothing.

															   At that point, Wilson instructed Romero to
take Savana to the school nurse’s office to search her clothes for
pills. Romero and the nurse, Peggy Schwallier, asked Savana to
remove her jacket, socks, and shoes, leaving her in stretch pants
and a T-shirt (both without pockets), which she was then asked to
remove. Finally, Savana was told to pull her bra out and to the
side and shake it, and to pull out the elastic on her underpants,
thus exposing her breasts and pelvic area to some degree. No pills
were found.

															   Savana’s mother filed suit against Safford
Unified School District #1, Wilson, Romero, and Schwallier for
conducting a strip search in violation of Savana’s Fourth Amendment
rights. The individuals (hereinafter petitioners) moved for summary
judgment, raising a defense of qualified immunity. The District
Court for the District of Arizona granted the motion on the ground
that there was no Fourth Amendment violation, and a panel of the
Ninth Circuit affirmed. 504 F. 3d 828 (2007).

															   A closely divided Circuit sitting en banc,
however, reversed. Following the two-step protocol for evaluating
claims of qualified immunity, see Saucier v. Katz , 533
U. S. 194 , 200 (2001), the Ninth Circuit held that the strip
search was unjustified under the Fourth Amendment test for searches
of children by school officials set out in New Jersey v. T. L. O. , 469 U. S. 325 (1985). 531 F. 3d
1071, 1081–1087 (2008). The Circuit then applied the test for
qualified immunity, and found that Savana’s right was clearly
established at the time of the search: “ ‘[t]hese notions of
personal privacy are “clearly established” in that they inhere in
all of us, particularly middle school teenagers, and are inherent
in the privacy component of the Fourth Amendment’s proscription
against unreasonable searches.’ ” Id. , at 1088–1089
(quoting Brannum v. Overton Cty. School Bd. , 516
F. 3d 489, 499 (CA6 2008)). The upshot was reversal of summary
judgment as to Wilson, while affirming the judgments in favor of
Schwallier, the school nurse, and Romero, the administrative
assistant, since they had not acted as independent decisionmakers.
531 F. 3d, at 1089.

															   We granted certiorari, 555 U. S. ___ (2009),
and now affirm in part, reverse in part, and remand.

															II

															   The Fourth Amendment “right of
the people to be secure in their persons … against unreasonable
searches and seizures” generally requires a law enforcement officer
to have probable cause for conducting a search. “Probable cause
exists where ‘the facts and circumstances within [an officer’s]
knowledge and of which [he] had reasonably trustworthy information
[are] sufficient in themselves to warrant a man of reasonable
caution in the belief that’ an offense has been or is being
committed,” Brinegar v. United States , 338 U. S. 160 , 175–176
(1949) (quoting Carroll v. United States , 267 U. S. 132 ,
162 (1925)), and that evidence bearing on that offense will be
found in the place to be searched.

															   In T. L. O. ,
we recognized that the school setting “requires some modification
of the level of suspicion of illicit activity needed to justify a
search,” 469 U. S., at 340, and held that for searches by school
officials “a careful balancing of governmental and private
interests suggests that the public interest is best served by a
Fourth Amendment standard of reasonableness that stops short of
probable cause,” id. , at 341. We have thus applied a
standard of reasonable suspicion to determine the legality of a
school administrator’s search of a student, id. , at 342,
345, and have held that a school search “will be permissible in its
scope when the measures adopted are reasonably related to the
objectives of the search and not excessively intrusive in light of
the age and sex of the student and the nature of the infraction,” id. , at 342.

															   A number of our cases on probable cause have
an implicit bearing on the reliable knowledge element of reasonable
suspicion, as we have attempted to flesh out the knowledge
component by looking to the degree to which known facts imply
prohibited conduct, see, e.g. , Adams v. Williams , 407 U. S. 143 , 148
(1972); id. , at 160, n. 9 (Marshall, J., dissenting),
the specificity of the information received, see, e.g. , Spinelli v. United States , 393 U. S. 410 , 416–417
(1969), and the reliability of its source, see, e.g. , Aguilar v. Texas , 378 U. S. 108 , 114
(1964). At the end of the day, however, we have realized that these
factors cannot rigidly control, Illinois v. Gates , 462
U. S. 213 , 230 (1983), and we have come back to saying that the
standards are “fluid concepts that take their substantive content
from the particular contexts” in which they are being assessed. Ornelas v. United States , 517 U. S. 690 , 696
(1996).

															   Perhaps the best that can be said generally
about the required knowledge component of probable cause for a law
enforcement officer’s evidence search is that it raise a “fair
probability,” Gates , 462 U. S., at 238, or a “substantial
chance,” id. , at 244, n. 13, of discovering evidence
of criminal activity. The lesser standard for school searches could
as readily be described as a moderate chance of finding evidence of
wrongdoing.

															III

															A

															   In this case, the school’s
policies strictly prohibit the nonmedical use, possession, or sale
of any drug on school grounds, including “ ‘[a]ny prescription
or over-the-counter drug, except those for which permission to use
in school has been granted pursuant to Board policy.’ ” App.
to Pet. for Cert. 128a.[ Footnote
1 ] A week before Savana was searched, another student, Jordan
Romero (no relation of the school’s administrative assistant), told
the principal and Assistant Principal Wilson that “certain students
were bringing drugs and weapons on campus,” and that he had been
sick after taking some pills that “he got from a classmate.” App.
8a. On the morning of October 8, the same boy handed Wilson a white
pill that he said Marissa Glines had given him. He told Wilson that
students were planning to take the pills at lunch.

															   Wilson learned from Peggy
Schwallier, the school nurse, that the pill was Ibuprofen 400 mg,
available only by prescription. Wilson then called Marissa out of
class. Outside the classroom, Marissa’s teacher handed Wilson the
day planner, found within Marissa’s reach, containing various
contraband items. Wilson escorted Marissa back to his office.

															   In the presence of Helen Romero, Wilson
requested Marissa to turn out her pockets and open her wallet.
Marissa produced a blue pill, several white ones, and a razor
blade. Wilson asked where the blue pill came from, and Marissa
answered, “ ‘I guess it slipped in when she gave me
the IBU 400s.’ ” Id. , at 13a. When Wilson asked whom
she meant, Marissa replied, “ ‘Savana Redding.’ ” Ibid. Wilson then enquired about the day planner and its
contents; Marissa denied knowing anything about them. Wilson did
not ask Marissa any followup questions to determine whether there
was any likelihood that Savana presently had pills: neither asking
when Marissa received the pills from Savana nor where Savana might
be hiding them.

															   Schwallier did not immediately recognize the
blue pill, but information provided through a poison control
hotline[ Footnote 2 ] indicated
that the pill was a 200-mg dose of an antiinflammatory drug,
generically called naproxen, available over the counter. At
Wilson’s direction, Marissa was then subjected to a search of her
bra and underpants by Romero and Schwallier, as Savana was later
on. The search revealed no additional pills.

															   It was at this juncture that Wilson called
Savana into his office and showed her the day planner. Their
conversation established that Savana and Marissa were on friendly
terms: while she denied knowledge of the contraband, Savana
admitted that the day planner was hers and that she had lent it to
Marissa. Wilson had other reports of their friendship from staff
members, who had identified Savana and Marissa as part of an
unusually rowdy group at the school’s opening dance in August,
during which alcohol and cigarettes were found in the girls’
bathroom. Wilson had reason to connect the girls with this
contraband, for Wilson knew that Jordan Romero had told the
principal that before the dance, he had been at a party at Savana’s
house where alcohol was served. Marissa’s statement that the pills
came from Savana was thus sufficiently plausible to warrant
suspicion that Savana was involved in pill distribution.

															   This suspicion of Wilson’s was enough to
justify a search of Savana’s backpack and outer clothing.[ Footnote 3 ] If a student is reasonably
suspected of giving out contraband pills, she is reasonably
suspected of carrying them on her person and in the carryall that
has become an item of student uniform in most places today. If
Wilson’s reasonable suspicion of pill distribution were not
understood to support searches of outer clothes and backpack, it
would not justify any search worth making. And the look into
Savana’s bag, in her presence and in the relative privacy of
Wilson’s office, was not excessively intrusive, any more than
Romero’s subsequent search of her outer clothing.

															B

															   Here it is that the parties part
company, with Savana’s claim that extending the search at Wilson’s
behest to the point of making her pull out her underwear was
constitutionally unreasonable. The exact label for this final step
in the intrusion is not important, though strip search is a fair
way to speak of it. Romero and Schwallier directed Savana to remove
her clothes down to her underwear, and then “pull out” her bra and
the elastic band on her underpants. Id ., at 23a. Although
Romero and Schwallier stated that they did not see anything when
Savana followed their instructions, App. to Pet. for Cert. 135a, we
would not define strip search and its Fourth Amendment consequences
in a way that would guarantee litigation about who was looking and
how much was seen. The very fact of Savana’s pulling her underwear
away from her body in the presence of the two officials who were
able to see her necessarily exposed her breasts and pelvic area to
some degree, and both subjective and reasonable societal
expectations of personal privacy support the treatment of such a
search as categorically distinct, requiring distinct elements of
justification on the part of school authorities for going beyond a
search of outer clothing and belongings.

															   Savana’s subjective expectation
of privacy against such a search is inherent in her account of it
as embarrassing, frightening, and humiliating. The reasonableness
of her expectation (required by the Fourth Amendment standard) is
indicated by the consistent experiences of other young people
similarly searched, whose adolescent vulnerability intensifies the
patent intrusiveness of the exposure. See Brief for National
Association of Social Workers et al. as Amici Curiae 6–14; Hyman & Perone, The Other Side of School Violence:
Educator Policies and Practices that may Contribute to Student
Misbehavior, 36 J. School Psychology 7, 13 (1998) (strip search can
“result in serious emotional damage”). The common reaction of these
adolescents simply registers the obviously different meaning of a
search exposing the body from the experience of nakedness or near
undress in other school circumstances. Changing for gym is getting
ready for play; exposing for a search is responding to an
accusation reserved for suspected wrongdoers and fairly understood
as so degrading that a number of communities have decided that
strip searches in schools are never reasonable and have banned them
no matter what the facts may be, see, e.g. , New York City
Dept. of Education, Reg. No. A–432, p. 2 (2005), online at
http://docs.nycenet.edu/ docushare/dsweb/Get/Document-21/A-432.pdf
(“Under no circumstances shall a strip-search of a student be
conducted”).

															   The indignity of the search does not, of
course, outlaw it, but it does implicate the rule of reasonableness
as stated in T. L. O. , that “the search as
actually conducted [be] reasonably related in scope to the
circumstances which justified the interference in the first place.”
469 U. S., at 341 (internal quotation marks omitted). The scope
will be permissible, that is, when it is “not excessively intrusive
in light of the age and sex of the student and the nature of the
infraction.” Id. , at 342.

															   Here, the content of the suspicion failed to
match the degree of intrusion. Wilson knew beforehand that the
pills were prescription-strength ibuprofen and over-the-counter
naproxen, common pain relievers equivalent to two Advil, or one
Aleve.[ Footnote 4 ] He must have
been aware of the nature and limited threat of the specific drugs
he was searching for, and while just about anything can be taken in
quantities that will do real harm, Wilson had no reason to suspect
that large amounts of the drugs were being passed around, or that
individual students were receiving great numbers of pills.

															   Nor could Wilson have suspected that Savana
was hiding common painkillers in her underwear. Petitioners
suggest, as a truth universally acknowledged, that “students …
hid[e] contraband in or under their clothing,” Reply Brief for
Petitioners 8, and cite a smattering of cases of students with
contraband in their underwear, id. , at 8–9. But when the
categorically extreme intrusiveness of a search down to the body of
an adolescent requires some justification in suspected facts,
general background possibilities fall short; a reasonable search
that extensive calls for suspicion that it will pay off. But
nondangerous school contraband does not raise the specter of
stashes in intimate places, and there is no evidence in the record
of any general practice among Safford Middle School students of
hiding that sort of thing in underwear; neither Jordan nor Marissa
suggested to Wilson that Savana was doing that, and the preceding
search of Marissa that Wilson ordered yielded nothing. Wilson never
even determined when Marissa had received the pills from Savana; if
it had been a few days before, that would weigh heavily against any
reasonable conclusion that Savana presently had the pills on her
person, much less in her underwear.

															   In sum, what was missing from the suspected
facts that pointed to Savana was any indication of danger to the
students from the power of the drugs or their quantity, and any
reason to suppose that Savana was carrying pills in her underwear.
We think that the combination of these deficiencies was fatal to
finding the search reasonable.

															   In so holding, we mean to cast no ill
reflection on the assistant principal, for the record raises no
doubt that his motive throughout was to eliminate drugs from his
school and protect students from what Jordan Romero had gone
through. Parents are known to overreact to protect their children
from danger, and a school official with responsibility for safety
may tend to do the same. The difference is that the Fourth
Amendment places limits on the official, even with the high degree
of deference that courts must pay to the educator’s professional
judgment.

															   We do mean, though, to make it clear that the T. L. O. concern to limit a school search to
reasonable scope requires the support of reasonable suspicion of
danger or of resort to underwear for hiding evidence of wrongdoing
before a search can reasonably make the quantum leap from outer
clothes and backpacks to exposure of intimate parts. The meaning of
such a search, and the degradation its subject may reasonably feel,
place a search that intrusive in a category of its own demanding
its own specific suspicions.

															IV

															   A school official searching a
student is “entitled to qualified immunity where clearly
established law does not show that the search violated the Fourth
Amendment.” Pearson v. Callahan , 555 U. S. __, __
(2009) (slip op., at 18). To be established clearly, however, there
is no need that “the very action in question [have] previously been
held unlawful.” Wilson v. Layne , 526 U. S. 603 , 615
(1999). The unconstitutionality of outrageous conduct obviously
will be unconstitutional, this being the reason, as Judge Posner
has said, that “[t]he easiest cases don’t even arise.” K. H. v. Morgan , 914 F. 2d 846, 851
(CA7 1990). But even as to action less than an outrage, “officials
can still be on notice that their conduct violates established law
… in novel factual circumstances.” Hope v. Pelzer , 536
U. S. 730 , 741 (2002). T. L. O. directed school officials to limit the intrusiveness of a search,
“in light of the age and sex of the student and the nature of the
infraction,” 469 U. S., at 342, and as we have just said at some
length, the intrusiveness of the strip search here cannot be seen
as justifiably related to the circumstances. But we realize that
the lower courts have reached divergent conclusions regarding how
the T. L. O. standard applies to such
searches.

															   A number of judges have read T. L. O. as the en banc minority of the Ninth
Circuit did here. The Sixth Circuit upheld a strip search of a high
school student for a drug, without any suspicion that drugs were
hidden next to her body. Williams v. Ellington ,
936 F. 2d 881, 882–883, 887 (1991). And other courts
considering qualified immunity for strip searches have read T. L. O. as “a series of abstractions, on the
one hand, and a declaration of seeming deference to the judgments
of school officials, on the other,” Jenkins v. Talladega City Bd. of Ed. , 115 F. 3d 821, 828 (CA11
1997) (en banc), which made it impossible “to establish clearly the
contours of a Fourth Amendment right … [in] the wide variety of
possible school settings different from those involved in T. L. O. ” itself. Ibid. See also Thomas v. Roberts , 323 F. 3d 950 (CA11 2003)
(granting qualified immunity to a teacher and police officer who
conducted a group strip search of a fifth grade class when looking
for a missing $26).

															   We think these differences of opinion from our
own are substantial enough to require immunity for the school
officials in this case. We would not suggest that entitlement to
qualified immunity is the guaranteed product of disuniform views of
the law in the other federal, or state, courts, and the fact that a
single judge, or even a group of judges, disagrees about the
contours of a right does not automatically render the law unclear
if we have been clear. That said, however, the cases viewing school
strip searches differently from the way we see them are numerous
enough, with well-reasoned majority and dissenting opinions, to
counsel doubt that we were sufficiently clear in the prior
statement of law. We conclude that qualified immunity is
warranted.

															V

															   The strip search of Savana
Redding was unreasonable and a violation of the Fourth Amendment,
but petitioners Wilson, Romero, and Schwallier are nevertheless
protected from liability through qualified immunity. Our
conclusions here do not resolve, however, the question of the
liability of petitioner Safford Unified School District #1 under Monell v. New York City Dept. of Social Servs. , 436 U. S. 658 ,
694 (1978), a claim the Ninth Circuit did not address. The judgment
of the Ninth Circuit is therefore affirmed in part and reversed in
part, and this case is remanded for consideration of the Monell claim.

															It is so ordered. Footnote 1 When the object of a school search is the
enforcement of a school rule, a valid search assumes, of course,
the rule’s legitimacy. But the legitimacy of the rule usually goes
without saying as it does here. The Court said plainly in New
Jersey v. T. L. O. , 469 U. S. 325 , 342, n. 9 (1985),
that standards of conduct for schools are for school administrators
to determine without second-guessing by courts lacking the
experience to appreciate what may be needed. Except in patently
arbitrary instances, Fourth Amendment analysis takes the rule as a
given, as it obviously should do in this case. There is no need
here either to explain the imperative of keeping drugs out of
schools, or to explain the reasons for the school’s rule banning
all drugs, no matter how benign, without advance permission.
Teachers are not pharmacologists trained to identify pills and
powders, and an effective drug ban has to be enforceable fast. The
plenary ban makes sense, and there is no basis to claim that the
search was unreasonable owing to some defect or shortcoming of the
rule it was aimed at enforcing. Footnote 2 Poison control centers across the country
maintain 24-hour help hotlines to provide “immediate access to
poison exposure management instructions and information on
potential poisons.” American Association of Poison Control Centers,
online at http://www.aapcc.org/dnn/ About/tabid/74/Default.aspx
(all Internet materials as visited June 19, 2009, and available in
Clerk of Court’s case file). Footnote 3 There is no question here that justification
for the school officials’ search was required in accordance with
the T. L. O. standard of reasonable suspicion, for it is
common ground that Savana had a reasonable expectation of privacy
covering the personal things she chose to carry in her backpack,
cf. 469 U. S., at 339, and that Wilson’s decision to look through
it was a “search” within the meaning of the Fourth Amendment. Footnote 4 An Advil tablet, caplet, or gel caplet,
contains 200 mg of ibuprofen. See Physicians’ Desk Reference for
Nonprescription Drugs, Dietary Supplements, and Herbs 674 (28th ed.
2006). An Aleve caplet contains 200 mg naproxen and 20 mg sodium.
See id. , at 675. OPINION OF GINSBURG, J. SAFFORD UNIFIED SCHOOL DIST. #1 V. REDDING 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-479 SAFFORD UNIFIED SCHOOL DISTRICT #1, et al.,
PETITIONERS v. APRIL REDDING

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[June 25, 2009]

															   Justice Ginsburg, concurring in
part and dissenting in part.

															   I agree with the Court that
Assistant Principal Wilson’s subjection of 13-year-old Savana
Redding to a humiliating stripdown search violated the Fourth
Amendment. But I also agree with Justice Stevens, ante , at
1–2, that our opinion in New Jersey v. T. L. O. , 469 U. S. 325 (1985),
“clearly established” the law governing this case.

															   Fellow student Marissa Glines, caught with
pills in her pocket, accused Redding of supplying them. App. 13a.
Asked where the blue pill among several white pills in Glines’s
pocket came from, Glines answered: “I guess it slipped in when she gave me the IBU 400s.” Ibid . Asked next “who
is she ?”, Glines responded: “Savana Redding.” Ibid. As the Court observes, ante , at 6, 10, no
followup questions were asked. Wilson did not test Glines’s
accusation for veracity by asking Glines when did Redding give her
the pills, where, for what purpose. Any reasonable search for the
pills would have ended when inspection of Redding’s backpack and
jacket pockets yielded nothing. Wilson had no cause to suspect,
based on prior experience at the school or clues in this case, that
Redding had hidden pills—containing the equivalent of two Advils or
one Aleve—in her underwear or body. To make matters worse, Wilson
did not release Redding, to return to class or to go home, after
the search. Instead, he made her sit on a chair outside his office
for over two hours. At no point did he attempt to call her parent.
Abuse of authority of that order should not be shielded by official
immunity.

															   In contrast to T. L. O. ,
where a teacher discovered a student smoking in the lavatory, and
where the search was confined to the student’s purse, the search of
Redding involved her body and rested on the bare accusation of
another student whose reliability the Assistant Principal had no
reason to trust. The Court’s opinion in T. L. O. plainly stated the controlling Fourth Amendment law: A search
ordered by a school official, even if “justified at its inception,”
crosses the constitutional boundary if it becomes “excessively
intrusive in light of the age and sex of the student and the nature
of the infraction.” 469 U. S., at 342 (internal quotation marks
omitted).

															   Here, “the nature of the [supposed]
infraction,” the slim basis for suspecting Savana Redding, and her
“age and sex,” ibid. , establish beyond doubt that
Assistant Principal Wilson’s order cannot be reconciled with this
Court’s opinion in T. L. O. Wilson’s treatment
of Redding was abusive and it was not reasonable for him to believe
that the law permitted it. I join Justice Stevens in dissenting
from the Court’s acceptance of Wilson’s qualified immunity plea,
and would affirm the Court of Appeals’ judgment in all
respects. OPINION OF STEVENS, J. SAFFORD UNIFIED SCHOOL DIST. #1 V. REDDING 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-479 SAFFORD UNIFIED SCHOOL DISTRICT #1, et al.,
PETITIONERS v. APRIL REDDING

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[June 25, 2009]

															   Justice Stevens, with whom
Justice Ginsburg joins, concurring in part and dissenting in
part.

															   In New Jersey v. T. L. O. , 469 U. S. 325 (1985), the Court
established a two-step inquiry for determining the reasonableness
of a school official’s decision to search a student. First, the
Court explained, the search must be “ ‘justified at its
inception’ ” by the presence of “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.” Id. , at 342. Second, the search must be
“permissible in its scope,” which is achieved “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 .” Ibid . (emphasis added).

															   Nothing the Court decides today alters this
basic framework. It simply applies T. L. O. to declare
unconstitutional a strip search of a 13-year-old honors student
that was based on a groundless suspicion that she might be hiding
medicine in her underwear. This is, in essence, a case in which
clearly established law meets clearly outrageous conduct. I have
long believed that “ ‘[i]t 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.’ ” Id. , at 382, n. 25 (Stevens, J., concurring in part and
dissenting in part) (quoting Doe v. Renfrow , 631
F. 2d 91, 92–93 (CA7 1980)). The strip search of Savana
Redding in this case was both more intrusive and less justified
than the search of the student’s purse in T. L. O. Therefore, while I join Parts I–III of the Court’s opinion, I
disagree with its decision to extend qualified immunity to the
school official who authorized this unconstitutional search.

															   The Court reaches a contrary conclusion about
qualified immunity based on the fact that various Courts of Appeals
have adopted seemingly divergent views about T. L.
O. ’s application to strip searches. Ante , at 12. But
the clarity of a well-established right should not depend on
whether jurists have misread our precedents. And while our cases
have previously noted the “divergence of views” among courts in
deciding whether to extend qualified immunity, e.g. , Pearson v. Callahan , (2009) 555 U. S., ___, ___
(slip op., at 20) (noting the unsettled constitutionality of the
so-called “consent-once-removed” doctrine); Wilson v. Layne , 526
U. S. 603 , 618 (1999) (considering conflicting views on the
constitutionality of law enforcement’s practice of allowing the
media to enter a private home to observe and film attempted
arrests), we have relied on that consideration only to spare
officials from having “ ‘to predict the future course of constitutional law,’ ” Id., at 617 (quoting Procunier v. Navarette , 434 U. S. 555 , 562
(1978); emphasis added). In this case, by contrast, we chart no new
constitutional path. We merely decide whether the decision to strip
search Savana Redding, on these facts, was prohibited under T.
L. O. Our conclusion leaves the boundaries of the law
undisturbed.

															   The Court of Appeals properly rejected the
school official’s qualified immunity defense, and I would affirm
that court’s judgment in its entirety.

															 In fact, in T. L. O. we cited with
approval a Ninth Circuit case, Bilbrey v. Brown ,
738 F. 2d 1462 (1984), which held that a strip search
performed under similar circumstances violated the Constitution. New Jersey v. T. L. O. , 469 U. S. 325 , 332, n. 2 (1985); id. , at 341, and n. 6 (adopting Bilbrey ’s
reasonable suspicion standard). OPINION OF THOMAS, J. SAFFORD UNIFIED SCHOOL DIST. #1 V. REDDING 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-479 SAFFORD UNIFIED SCHOOL DISTRICT #1, et al.,
PETITIONERS v. APRIL REDDING

															on writ of certiorari to the united states court of
appeals for the ninth circuit

															[June 25, 2009]

															   Justice Thomas, concurring in the
judgment in part and dissenting in part.

															   I agree with the Court that the
judgment against the school officials with respect to qualified
immunity should be reversed. See ante , at 11–13. Unlike
the majority, however, I would hold that the search of Savana
Redding did not violate the Fourth Amendment. The majority imposes
a vague and amorphous standard on school administrators. It also
grants judges sweeping authority to second-guess the measures that
these officials take to maintain discipline in their schools and
ensure the health and safety of the students in their charge. This
deep intrusion into the administration of public schools
exemplifies why the Court should return to the common-law doctrine
of in loco parentis under which “the judiciary was
reluctant to interfere in the routine business of school
administration, allowing schools and teachers to set and enforce
rules and to maintain order.” Morse v. Frederick , 551 U. S. 393 ,
414 (2007) (Thomas, J., concurring). But even under the prevailing
Fourth Amendment test established by New Jersey v. T. L. O. , 469 U. S. 325 (1985), all petitioners,
including the school district, are entitled to judgment as a matter
of law in their favor.

															I

															   “Although the underlying command
of the Fourth Amendment is always that searches and seizures be
reasonable, what is reasonable depends on the context within which
a search takes place.” Id. , at 337. Thus, although public
school students retain Fourth Amendment rights under this Court’s
precedent, see id. , at 333–337, those rights “are
different … than elsewhere; the ‘reasonableness’ inquiry cannot
disregard the schools’ custodial and tutelary responsibility for
children,” Vernonia School Dist. 47J v. Acton , 515 U. S. 646 ,
656 (1995); see also T. L. O. , 469 U. S., at 339
(identifying “the substantial interest of teachers and
administrators in maintaining discipline in the classroom and on
school grounds”). For nearly 25 years this Court has understood
that “[m]aintaining order in the classroom has never been easy, but
in more recent years, school disorder has often taken particularly
ugly forms: drug use and violent crime in the schools have become
major social problems.” Ibid. In schools, “[e]vents
calling for discipline are frequent occurrences and sometimes
require immediate, effective action.” Goss v. Lopez , 419
U. S. 565 , 580 (1975); see also T. L. O., 469 U. S.,
at 340 (explaining that schools have a “legitimate need to maintain
an environment in which learning can take place”).

															   For this reason, school officials
retain broad authority to protect students and preserve “order and
a proper educational environment” under the Fourth Amendment. Id., at 339. This authority requires that school officials
be able to engage in the “close supervision of schoolchildren, as
well as … enforc[e] rules against conduct that would be perfectly
permissible if undertaken by an adult.” Ibid. Seeking to
reconcile the Fourth Amendment with this unique public school
setting, the Court in T. L. O. held that a
school search is “reasonable” if it is “ ‘justified at its
inception’ ” and “ ‘reasonably related in scope to the
circumstances which justified the interference in the first
place.’ ” Id. , at 341–342 (quoting Terry v. Ohio , 392 U.
S. 1 , 20 (1968)). The search under review easily meets this
standard.

															A

															   A “search of a student by a
teacher or other school official will be ‘justified at its
inception’ 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 ., supra , at 341–342 (footnote
omitted). As the majority rightly concedes, this search was
justified at its inception because there were reasonable grounds to
suspect that Redding possessed medication that violated school
rules. See ante , at 7. A finding of reasonable suspicion
“does not deal with hard certainties, but with probabilities.” United States v. Cortez , 449 U. S. 411 , 418
(1981); see also T. L. O. , supra , at
346 (“[T]he requirement of reasonable suspicion is not a
requirement of absolute certainty”). To satisfy this standard, more
than a mere “hunch” of wrongdoing is required, but “considerably”
less suspicion is needed than would be required to “satisf[y] a
preponderance of the evidence standard.” United States v. Arvizu , 534
U. S. 266 , 274 (2002) (internal quotation marks omitted).

															   Furthermore, in evaluating
whether there is a reasonable “particularized and objective” basis
for conducting a search based on suspected wrongdoing, government
officials must consider the “totality of the circumstances.” Id. , at 273 (internal quotation marks omitted). School
officials have a specialized understanding of the school
environment, the habits of the students, and the concerns of the
community, which enables them to “ ‘formulat[e] certain
common-sense conclusions about human behavior.’ ” United
States v. Sokolow , 490 U. S. 1 , 8 (1989)
(quoting Cortez , supra , at 418). And like police
officers, school officials are “entitled to make an assessment of
the situation in light of [this] specialized training and
familiarity with the customs of the [school].” See Arvizu , supra, at 276.

															   Here, petitioners had reasonable grounds to
suspect that Redding was in possession of prescription and
nonprescription drugs in violation of the school’s prohibition of
the “non-medical use, possession, or sale of a drug” on school
property or at school events. 531 F. 3d 1071, 1076 (CA9 2008)
(en banc); see also id. , at 1107 (Hawkins, J., dissenting)
(explaining that the school policy defined “drugs” to include
“ ‘[a]ny prescription or over-the-counter drug, except those
for which permission to use in school has been granted’ ”). As
an initial matter, school officials were aware that a few years
earlier, a student had become “seriously ill” and “spent several
days in intensive care” after ingesting prescription medication
obtained from a classmate. App. 10a. Fourth Amendment searches do
not occur in a vacuum; rather, context must inform the judicial
inquiry. See Cortez , supra , at 417–418. In this
instance, the suspicion of drug possession arose at a middle school
that had “a history of problems with students using and
distributing prohibited and illegal substances on campus.” App. 7a,
10a.

															   The school’s substance-abuse problems had not
abated by the 2003–2004 school year, which is when the challenged
search of Redding took place. School officials had found alcohol
and cigarettes in the girls’ bathroom during the first school dance
of the year and noticed that a group of students including Redding
and Marissa Glines smelled of alcohol. Ibid. Several weeks
later, another student, Jordan Romero, reported that Redding had
hosted a party before the dance where she served whiskey, vodka,
and tequila. Id., at 8a, 11a. Romero had provided this
report to school officials as a result of a meeting his mother
scheduled with the officials after Romero “bec[a]me violent” and
“sick to his stomach” one night and admitted that “he had taken
some pills that he had got[ten] from a classmate.” Id., at
7a–8a, 10a–11a. At that meeting, Romero admitted that “certain
students were bringing drugs and weapons on campus.” Id., at 8a, 11a. One week later, Romero handed the assistant principal a
white pill that he said he had received from Glines. Id., at 11a. He reported “that a group of students [were] planning on
taking the pills at lunch.” Ibid. School officials justifiably took quick action
in light of the lunchtime deadline. The assistant principal took
the pill to the school nurse who identified it as
prescription-strength 400-mg Ibuprofen. Id., at 12a. A
subsequent search of Glines and her belongings produced a razor
blade, a Naproxen 200-mg pill, and several Ibuprofen 400-mg pills. Id., at 13a. When asked, Glines claimed that she had
received the pills from Redding. Ibid. A search of
Redding’s planner, which Glines had borrowed, then uncovered
“several knives, several lighters, a cigarette, and a permanent
marker.” Id., at 12a, 14a, 22a. Thus, as the majority
acknowledges, ante , at 7, the totality of relevant
circumstances justified a search of Redding for pills.[ Footnote 1 ]

															B

															   The remaining question is whether
the search was reasonable in scope. Under T. L. O. , “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.”
469 U. S., at 342. The majority concludes that the school
officials’ search of Redding’s underwear was not “ ‘reasonably
related in scope to the circumstances which justified the
interference in the first place,’ ” see ante , at
8–11, notwithstanding the officials’ reasonable suspicion that
Redding “was involved in pill distribution,” ante, at 7.
According to the majority, to be reasonable, this school search
required a showing of “danger to the students from the power of the
drugs or their quantity” or a “reason to suppose that [Redding] was
carrying pills in her underwear.” Ante , at 10. Each of
these additional requirements is an unjustifiable departure from
bedrock Fourth Amendment law in the school setting, where this
Court has heretofore read the Fourth Amendment to grant
considerable leeway to school officials. Because the school
officials searched in a location where the pills could have been
hidden, the search was reasonable in scope under T. L. O. 1 The majority finds that
“subjective and reasonable societal expectations of personal
privacy support … treat[ing]” this type of search, which it labels
a “strip search,” as “categorically distinct, requiring distinct
elements of justification on the part of school authorities for
going beyond a search of clothing and belongings.” Ante , at
8.[ Footnote 2 ] Thus, in the
majority’s view, although the school officials had reasonable
suspicion to believe that Redding had the pills on her person, see ante , at 7, they needed some greater level of
particularized suspicion to conduct this “strip search.” There is
no support for this contortion of the Fourth Amendment.

															   The Court has generally held that
the reasonableness of a search’s scope depends only on whether it
is limited to the area that is capable of concealing the object of
the search. See, e.g., Wyoming v. Houghton , 526 U. S. 295 ,
307 (1999) (Police officers “may inspect passengers’ belongings
found in the car that are capable of concealing the object of the
search”); Florida v. Jimeno , 500 U. S. 248 , 251
(1991) (“The scope of a search is generally defined by its
expressed object”); United States v. Johns , 469 U. S. 478 ,
487 (1985) (search reasonable because “there is no plausible
argument that the object of the search could not have been
concealed in the packages”); United States v. Ross , 456
U. S. 798 , 820 (1982) (“A lawful search … generally extends to
the entire area in which the object of the search may be
found”).[ Footnote 3 ]

															   In keeping with this longstanding rule, the
“nature of the infraction” referenced in T. L. O. delineates the proper scope of a search
of students in a way that is identical to that permitted for
searches outside the school— i.e. , the search must be
limited to the areas where the object of that infraction could be
concealed. See Horton v. California , 496 U. S. 128 , 141
(1990) (“Police with a warrant for a rifle may search only places
where rifles might be” (internal quotation marks omitted)); Ross , supra , at 824 (“[P]robable cause to believe
that undocumented aliens are being transported in a van will not
justify a warrantless search of a suitcase”). A search of a student
therefore is permissible in scope under T. L. O. so long as it is objectively reasonable to believe that the area
searched could conceal the contraband. The dissenting opinion below
correctly captured this Fourth Amendment standard, noting that “if
a student brought a baseball bat on campus in violation of school
policy, a search of that student’s shirt pocket would be patently
unjustified.” 531 F. 3d, at 1104 (opinion of Hawkins, J.).

															   The analysis of whether the scope of the
search here was permissible under that standard is straightforward.
Indeed, the majority does not dispute that “general background
possibilities” establish that students conceal “contraband in their
underwear.” Ante, at 10. It acknowledges that school
officials had reasonable suspicion to look in Redding’s backpack
and outer clothing because if “Wilson’s reasonable suspicion of
pill distribution were not understood to support searches of outer
clothes and backpack, it would not justify any search worth
making.” Ante , at 7. The majority nevertheless concludes
that proceeding any further with the search was unreasonable. See ante , at 8–10; see also ante , at 1 (Ginsburg, J.,
concurring in part and dissenting in part) (“Any reasonable search
for the pills would have ended when inspection of Redding’s
backpack and jacket pockets yielded nothing”). But there is no
support for this conclusion. The reasonable suspicion that Redding
possessed the pills for distribution purposes did not dissipate
simply because the search of her backpack turned up nothing. It was
eminently reasonable to conclude that the backpack was empty
because Redding was secreting the pills in a place she thought no
one would look. See Ross , supra , at 820
(“Contraband goods rarely are strewn” about in plain view; “by
their very nature such goods must be withheld from public
view”).

															   Redding would not have been the first person
to conceal pills in her undergarments. See Hicks, Man Gets 17-Year
Drug Sentence, [Corbin, KY] Times-Tribune, Oct. 7, 2008, p. 1
(Drug courier “told officials she had the [Oxycontin] pills
concealed in her crotch”); Conley, Whitehaven: Traffic Stop Yields
Hydrocodone Pills, [Memphis] Commercial Appeal, Aug. 3, 2007, p. B3
(“An additional 40 hydrocodone pills were found in her pants”);
Caywood, Police Vehicle Chase Leads to Drug Arrests, [Worcester]
Telegram & Gazette, June 7, 2008, p. A7 (25-year-old “allegedly
had a cigar tube stuffed with pills tucked into the waistband of
his pants”); Hubartt, 23-Year-Old Charged With Dealing Ecstasy, The
[Fort Wayne] Journal Gazette, Aug. 8, 2007, p. C2 (“[W]hile he was
being put into a squad car, his pants fell down and a plastic bag
containing pink and orange pills fell on the ground”); Sebastian
Residents Arrested in Drug Sting, Vero Beach Press Journal, Sept.
16, 2006, p. B2 (Arrestee “told them he had more pills ‘down my
pants’ ”). Nor will she be the last after today’s decision,
which announces the safest place to secrete contraband in
school.

															2

															   The majority compounds its error
by reading the “nature of the infraction” aspect of the T. L. O. test as a license to limit searches
based on a judge’s assessment of a particular school policy.
According to the majority, the scope of the search was
impermissible because the school official “must have been aware of
the nature and limited threat of the specific drugs he was
searching for” and because he “had no reason to suspect that large
amounts of the drugs were being passed around, or that individual
students were receiving great numbers of pills.” Ante , at
9–10. Thus, in order to locate a rationale for finding a Fourth
Amendment violation in this case, the majority retreats from its
observation that the school’s firm no-drug policy “makes sense, and
there is no basis to claim that the search was unreasonable owing
to some defect or shortcoming of the rule it was aimed at
enforcing.” Ante , at 5, n. 1.

															   Even accepting the majority’s
assurances that it is not attacking the rule’s reasonableness, it
certainly is attacking the rule’s importance. This approach
directly conflicts with T. L. O. in which the
Court was “unwilling to adopt a standard under which the legality
of a search is dependent upon a judge’s evaluation of the relative
importance of school rules.” 469 U. S., at 342, n. 9. Indeed,
the Court in T. L. O. expressly rejected the
proposition that the majority seemingly endorses—that “some rules
regarding student conduct are by nature too ‘trivial’ to justify a
search based upon reasonable suspicion.” Ibid.; see also id., at 343, n. 9 (“The promulgation of a rule
forbidding specified conduct presumably reflects a judgment on the
part of school officials that such conduct is destructive of school
order or of a proper educational environment. Absent any suggestion
that the rule violates some substantive constitutional guarantee,
the courts should as a general matter, defer to that
judgment”).

															   The majority’s decision in this regard also
departs from another basic principle of the Fourth Amendment: that
law enforcement officials can enforce with the same vigor all rules
and regulations irrespective of the perceived importance of any of
those rules. “In a long line of cases, we have said that when an
officer has probable cause to believe a person committed even a
minor crime in his presence, the balancing of private and public
interests is not in doubt. The arrest is constitutionally
reasonable.” Virginia v. Moore , 553 U. S. ___,
___ (2008) (slip op., at 6). The Fourth Amendment rule for searches
is the same: Police officers are entitled to search regardless of
the perceived triviality of the underlying law. As we have
explained, requiring police to make “sensitive, case-by-case
determinations of government need,” Atwater v. Lago
Vista , 532 U.
S. 318 , 347 (2001), for a particular prohibition before
conducting a search would “place police in an almost impossible
spot,” id. , at 350.

															   The majority has placed school officials in
this “impossible spot” by questioning whether possession of
Ibuprofen and Naproxen causes a severe enough threat to warrant
investigation. Had the suspected infraction involved a street drug,
the majority implies that it would have approved the scope of the
search. See ante , at 9 (relying on the “limited threat of
the specific drugs he was searching for”); ante, at 10
(relying on the limited “power of the drugs” involved). In effect,
then, the majority has replaced a school rule that draws no
distinction among drugs with a new one that does. As a result, a
full search of a student’s person for prohibited drugs will be
permitted only if the Court agrees that the drug in question was
sufficiently dangerous. Such a test is unworkable and unsound.
School officials cannot be expected to halt searches based on the
possibility that a court might later find that the particular
infraction at issue is not severe enough to warrant an intrusive
investigation.[ Footnote 4 ]

															   A rule promulgated by a school board
represents the judgment of school officials that the rule is needed
to maintain “school order” and “a proper educational environment.” T. L. O. , 469 U. S., at 343, n. 9.
Teachers, administrators, and the local school board are called
upon both to “protect the … safety of students and school
personnel” and “maintain an environment conducive to learning.” Id. , at 353 (Blackmun, J., concurring in judgment). They
are tasked with “watch[ing] over a large number of students” who
“are inclined to test the outer boundaries of acceptable conduct
and to imitate the misbehavior of a peer if that misbehavior is not
dealt with quickly.” Id. , at 352. In such an environment,
something as simple as a “water pistol or peashooter can wreak
[havoc] until it is taken away.” Ibid . The danger posed by
unchecked distribution and consumption of prescription pills by
students certainly needs no elaboration.

															   Judges are not qualified to second-guess the
best manner for maintaining quiet and order in the school
environment. Such institutional judgments, like those concerning
the selection of the best methods for “restrain[ing students] from
assaulting one another, abusing drugs and alcohol, and committing
other crimes,” id., at 342, n. 9, “involve a host of
policy choices that must be made by locally elected
representatives, rather than by federal judges interpreting the
basic charter of Government for the entire country.” Collins v. Harker Heights , 503 U. S. 115 , 129
(1992); cf. Regents of Univ. of Mich. v. Ewing , 474 U. S. 214 ,
226 (1985) (observing that federal courts are not “suited to
evaluat[ing] the substance of the multitude of academic decisions”
or disciplinary decisions “that are made daily by faculty members
of public educational institutions”). It is a mistake for judges to
assume the responsibility for deciding which school rules are
important enough to allow for invasive searches and which rules are
not.

															3

															   Even if this Court were
authorized to second-guess the importance of school rules, the
Court’s assessment of the importance of this district’s policy is
flawed. It is a crime to possess or use prescription-strength
Ibuprofen without a prescription. See Ariz. Rev. Stat. Ann.
§13–3406(A)(1) (West Supp. 2008) (“A person shall not knowingly …
[p]ossess or use a prescription-only drug unless the person obtains
the prescription-only drug pursuant to a valid prescription of a
prescriber who is licensed pursuant to [state law]”).[ Footnote 5 ] By prohibiting unauthorized
prescription drugs on school grounds—and conducting a search to
ensure students abide by that prohibition—the school rule here was
consistent with a routine provision of the state criminal code. It
hardly seems unreasonable for school officials to enforce a rule
that, in effect, proscribes conduct that amounts to a crime.

															   Moreover, school districts have
valid reasons for punishing the unauthorized possession of
prescription drugs on school property as severely as the possession
of street drugs; “[t]eenage abuse of over-the-counter and
prescription drugs poses an increasingly alarming national crisis.”
Get Teens Off Drugs, The Education Digest 75 (Dec. 2006). As one
study noted, “more young people ages 12–17 abuse prescription drugs
than any illicit drug except marijuana—more than cocaine, heroin,
and methamphetamine combined.” Executive Office of the President,
Office of National Drug Control Policy (ONDCP), Prescription for
Danger 1 (Jan. 2008) (hereinafter Prescription for Danger). And
according to a 2005 survey of teens, “nearly one in five (19
percent or 4.5 million) admit abusing prescription drugs in their
lifetime.” Columbia University, The National Center on Addiction
and Substance Abuse (CASA), “You’ve Got Drugs!” V: Prescription
Drug Pushers on the Internet 2 (July 2008); see also Dept. of
Health and Human Services, National Institute on Drug Abuse, High
School and Youth Trends 2 (Dec. 2008) (“In 2008, 15.4 percent of
12th-graders reported using a prescription drug nonmedically within
the past year”).

															   School administrators can reasonably conclude
that this high rate of drug abuse is being fueled, at least in
part, by the increasing presence of prescription drugs on school
campuses. See, e.g., Gibson, Grand Forks Schools See Rise
In Prescription Drug Abuse, Grand Forks Herald, Nov. 16, 2008,
p. 1 (explaining that “prescription drug abuse is growing into
a larger problem” as students “bring them to school and sell them
or just give them to their friends”). In a 2008 survey, “44 percent
of teens sa[id] drugs are used, kept or sold on the grounds of
their schools.” CASA, National Survey of American Attitudes on
Substance Abuse XIII: Teens and Parents 19 (Aug. 2008) (hereinafter
National Survey). The risks posed by the abuse of these drugs are
every bit as serious as the dangers of using a typical street
drug.

															   Teenagers are nevertheless apt to “believe the
myth that these drugs provide a medically safe high.” ONDCP, Teens
and Prescription Drugs: An Analysis of Recent Trends on the
Emerging Drug Threat 3 (Feb. 2007) (hereinafter Teens and
Prescription Drugs). But since 1999, there has “been a dramatic
increase in the number of poisonings and even deaths associated
with the abuse of prescription drugs.” Prescription for Danger 4;
see also Dept. of Health and Human Services, The NSDUH Report:
Trends in Nonmedical Use of Prescription Pain Relievers: 2002 to
2007, p. 1 (Feb. 5, 2009) (“[A]pproximately 324,000 emergency
department visits in 2006 involved the nonmedical use of pain
relievers”); CASA, Under the Counter: The Diversion and Abuse of
Controlled Prescription Drugs in the U. S., p. 25 (July 2005)
(“In 2002, abuse of controlled prescription drugs was implicated in
at least 23 percent of drug-related emergency department admissions
and 20.4 percent of all single drug-related emergency department
deaths”). At least some of these injuries and deaths are likely due
to the fact that “[m]ost controlled prescription drug abusers are
poly-substance abusers,” id. , at 3, a habit that is
especially likely to result in deadly drug combinations.
Furthermore, even if a child is not immediately harmed by the abuse
of prescription drugs, research suggests that prescription drugs
have become “gateway drugs to other substances of abuse.” Id. , at 4; Healy, Skipping the Street, Los Angeles Times,
Sept. 15, 2008, p. F1 (“Boomers made marijuana their ‘gateway’ …
but a younger generation finds prescription drugs an easier
score”); see also National Survey 17 (noting that teens report
“that prescription drugs are easier to buy than beer”).

															   Admittedly, the Ibuprofen and Naproxen at
issue in this case are not the prescription painkillers at the
forefront of the prescription-drug-abuse problem. See Prescription
for Danger 3 (“Pain relievers like Vicodin and OxyContin are the
prescription drugs most commonly abused by teens”). But they are
not without their own dangers. As nonsteroidal anti-inflammatory
drugs (NSAIDs), they pose a risk of death from overdose. The Pill
Book 821, 827 (H. Silverman, ed., 13th ed. 2008) (observing
that Ibuprofen and Naproxen are NSAIDs and “[p]eople have died from
NSAID overdoses”). Moreover, the side-effects caused by the use of
NSAIDs can be magnified if they are taken in combination with other
drugs. See, e.g., Reactions Weekly, p. 18 (Issue no.
1235, Jan. 17, 2009) (“A 17-year-old girl developed allergic
interstitial nephritis and renal failure while receiving
escitalopram and ibuprofen”); id. , at 26 (Issue no. 1232,
Dec. 13, 2008) (“A 16-month-old boy developed iron deficiency
anaemia and hypoalbuminaemia during treatment with naproxen”); id. , at 15 (Issue no. 1220, Sept. 20, 2008)
(18-year-old “was diagnosed with pill-induced oesophageal
perforation” after taking ibuprofen “and was admitted to the
[intensive care unit]”); id. , at 20 (Issue no. 1170, Sept.
22, 2007) (“A 12-year-old boy developed anaphylaxis following
ingestion of ibuprofen”).

															   If a student with a previously unknown
intolerance to Ibuprofen or Naproxen were to take either drug and
become ill, the public outrage would likely be directed toward the
school for failing to take steps to prevent the unmonitored use of
the drug. In light of the risks involved, a school’s decision to
establish and enforce a school prohibition on the possession of any
unauthorized drug is thus a reasonable judgment.[ Footnote 6 ]

															*  *  *

															   In determining whether the
search’s scope was reasonable under the Fourth Amendment, it is
therefore irrelevant whether officials suspected Redding of
possessing prescription-strength Ibuprofen,
nonprescription-strength Naproxen, or some harder street drug.
Safford prohibited its possession on school property. Reasonable
suspicion that Redding was in possession of drugs in violation of
these policies, therefore, justified a search extending to any area
where small pills could be concealed. The search did not violate
the Fourth Amendment.

															II

															   By declaring the search
unreasonable in this case, the majority has “ ‘surrender[ed]
control of the American public school system to public school
students’ ” by invalidating school policies that treat all
drugs equally and by second-guessing swift disciplinary decisions
made by school officials. See Morse , 551 U. S., at 421
(Thomas, J., concurring) (quoting Tinker v. Des Moines
Independent Community School Dist. , 393 U. S. 503 , 526
(1969) (Black, J., dissenting)). The Court’s interference in these
matters of great concern to teachers, parents, and students
illustrates why the most constitutionally sound approach to the
question of applying the Fourth Amendment in local public schools
would in fact be the complete restoration of the common-law
doctrine of in loco parentis .

															   “[I]n the early years of public
schooling,” courts applied the doctrine of in loco
parentis to transfer to teachers the authority of a parent to
“ ‘command obedience, to control stubbornness, to quicken
diligence, and to reform bad habits.’ ” Morse , supra, at 413–414 (Thomas, J., concurring) (quoting State v. Pendergrass , 19 N. C. 365, 365–366
(1837)). So empowered, schoolteachers and administrators had almost
complete discretion to establish and enforce the rules they
believed were necessary to maintain control over their classrooms.
See 2 J. Kent, Commentaries on American Law 205 (1873) (“So the
power allowed by law to the parent over the person of the child may
be delegated to a tutor or instructor, the better to accomplish the
purpose of education”); 1 W. Blackstone, Commentaries on the Laws
of England 441 (1765) (“He may also delegate part of his parental
authority, during his life, to the tutor or schoolmaster of his
child; who is then in loco parentis , and has such a
portion of the parent committed to his charge, viz. that of
restraint and correction, as may be necessary to answer the
purposes for which he is employed”).[ Footnote 7 ] The perils of judicial policymaking inherent
in applying Fourth Amendment protections to public schools counsel
in favor of a return to the understanding that existed in this
Nation’s first public schools, which gave teachers discretion to
craft the rules needed to carry out the disciplinary
responsibilities delegated to them by parents.

															   If the common-law view that parents delegate
to teachers their authority to discipline and maintain order were
to be applied in this case, the search of Redding would stand.
There can be no doubt that a parent would have had the authority to
conduct the search at issue in this case. Parents have “immunity
from the strictures of the Fourth Amendment” when it comes to
searches of a child or that child’s belongings. T. L. O. , 469 U. S., at 337; see also id. , at 336 (A parent’s authority is “not subject to the
limits of the Fourth Amendment”); Griffin v. Wisconsin , 483 U. S. 868 , 876
(1987) (“[P]arental custodial authority” does not require “judicial
approval for [a] search of a minor child’s room”).

															   As acknowledged by this Court, this principle
is based on the “societal understanding of superior and inferior”
with respect to the “parent and child” relationship. Georgia v. Randolph , 547 U. S. 103 , 114
(2006). In light of this relationship, the Court has indicated that
a parent can authorize a third-party search of a child by
consenting to such a search, even if the child denies his consent.
See ibid.; see also 4 W. LaFave, Search and Seizure
§8.3(d), p. 160 (4th ed. 2004) (“[A] father, as the head of the
household with the responsibility and the authority for the
discipline, training and control of his children, has a superior
interest in the family residence to that of his minor son, so that
the father’s consent to search would be effective notwithstanding
the son’s contemporaneous on-the-scene objection” (internal
quotation marks omitted)). Certainly, a search by the parent
himself is no different, regardless of whether or not a child would
prefer to be left alone. See id., §8.4(b), at 202 (“[E]ven
[if] a minor child … may think of a room as ‘his,’ the overall
dominance will be in his parents” (internal quotation marks
omitted)).

															   Restoring the common-law doctrine of in
loco parentis would not, however, leave public schools
entirely free to impose any rule they choose. “If parents do not
like the rules imposed by those schools, they can seek redress in
school boards or legislatures; they can send their children to
private schools or home school them; or they can simply move.” See Morse , 551 U. S., at 419 (Thomas, J., concurring). Indeed,
parents and local government officials have proved themselves quite
capable of challenging overly harsh school rules or the enforcement
of sensible rules in insensible ways.

															   For example, one community questioned a school
policy that resulted in “an 11-year-old [being] arrested,
handcuffed, and taken to jail for bringing a plastic butter knife
to school.” Downey, Zero Tolerance Doesn’t Always Add Up, The
Atlanta Journal-Constitution, Apr. 6, 2009, p. A11. In
another, “[a]t least one school board member was outraged” when 14
elementary-school students were suspended for “imitating drug
activity” after they combined Kool-Aid and sugar in plastic bags.
Grant, Pupils Trading Sweet Mix Get Sour Shot of Discipline,
Pittsburgh Post-Gazette, May 18, 2006, p. B1. Individuals within
yet another school district protested a “ ‘zero-tolerance’
policy toward weapons” that had become “so rigid that it force[d]
schools to expel any student who belongs to a military
organization, a drum-and-bugle corps or any other legitimate
extracurricular group and is simply transporting what amounts to
harmless props.” Richardson, School Gun Case Sparks Cries For
“Common Sense,” Washington Times, Feb. 13, 2009, p. A1.[ Footnote 8 ]

															   These local efforts to change controversial
school policies through democratic processes have proven successful
in many cases. See, e.g., Postal, Schools’ Zero Tolerance
Could Lose Some Punch, Orlando Sentinel, Apr. 24, 2009, p. B3
(“State lawmakers want schools to dial back strict zero-tolerance
policies so students do not end up in juvenile detention for some
‘goofy thing’ ”); Richardson, Tolerance Waning for
Zero-tolerance Rules, Washington Times, Apr. 21, 2009, p. A3 (“[A]
few states have moved to relax their laws. Utah now allows students
to bring asthma inhalers to school without violating the
zero-tolerance policy on drugs”); see also Nussbaum, Becoming Fed
Up With Zero Tolerance, New York Times, Sept. 3, 2000, Section 14,
p. 1 (discussing a report that found that “widespread use of
zero-tolerance discipline policies was creating as many problems as
it was solving and that there were many cases around the country in
which students were harshly disciplined for infractions where there
was no harm intended or done”).

															   In the end, the task of implementing and
amending public school policies is beyond this Court’s function.
Parents, teachers, school administrators, local politicians, and
state officials are all better suited than judges to determine the
appropriate limits on searches conducted by school officials.
Preservation of order, discipline, and safety in public schools is
simply not the domain of the Constitution. And, common sense is not
a judicial monopoly or a Constitutional imperative.

															III

															   “[T]he nationwide drug epidemic
makes the war against drugs a pressing concern in every school.” Board of Ed. of Independent School Dist. No. 92 of Pottawatomie
Cty. v. Earls , 536 U. S. 822 , 834 (2002). And yet the
Court has limited the authority of school officials to conduct
searches for the drugs that the officials believe pose a serious
safety risk to their students. By doing so, the majority has
confirmed that a return to the doctrine of in loco
parentis is required to keep the judiciary from essentially
seizing control of public schools. Only then will teachers again be
able to “ ‘govern the[ir] pupils, quicken the slothful, spur
the indolent, restrain the impetuous, and control the
stubborn’ ” by making “ ‘rules, giv[ing] commands, and
punish[ing] disobedience’ ” without interference from judges.
See Morse , supra , at 414. By deciding that it is
better equipped to decide what behavior should be permitted in
schools, the Court has undercut student safety and undermined the
authority of school administrators and local officials. Even more
troubling, it has done so in a case in which the underlying
response by school administrators was reasonable and justified. I
cannot join this regrettable decision. I, therefore, respectfully
dissent from the Court’s determination that this search violated
the Fourth Amendment. Footnote 1 To be sure, Redding denied knowledge of the
pills and the materials in her planner. App. 14a. But her denial
alone does not negate the reasonable suspicion held by school
officials. See New Jersey v. T. L. O. , 469 U. S. 325 , 345 (1985) (finding
search reasonable even though “T. L. O. had been accused
of smoking, and had denied the accusation in the strongest possible
terms when she stated that she did not smoke at all”). Footnote 2 Like the dissent below, “I would reserve the
term ‘strip search’ for a search that required its subject to fully
disrobe in view of officials.” 531 F. 3d 1071, 1091, n. 1
(CA9 2008) (opinion of Hawkins, J.). The distinction between a
strip search and the search at issue in this case may be slight,
but it is a distinction that the law has drawn. See, e.g.,
Sandin v. Conner , 515 U. S. 472 , 475
(1995) (“The officer subjected Conner to a strip search, complete
with inspection of the rectal area”); Bell v. Wolfish , 441 U. S. 520 , 558, and
n. 39 (1979) (describing visual inspection of body cavities as
“part of a strip search”). Footnote 3 The Court has adopted a different standard
for searches involving an “intrusio[n] into the human body.” Schmerber v. California , 384 U. S. 757 , 770
(1966). The search here does not implicate the Court’s cases
governing bodily intrusions, however, because it did not involve a
“physical intrusion, penetrating beneath the skin,” Skinner v. Railway Labor Executives’ Assn ., 489 U. S. 602 ,
616 (1989). Footnote 4 Justice Ginsburg suggests that requiring
Redding to “sit on a chair outside [the assistant principal’s]
office for over two hours” and failing to call her parents before
conducting the search constitutes an “[a]buse of authority” that
“should not be shielded by official immunity.” See ante ,
at 1–2. But the school was under no constitutional obligation to
call Redding’s parents before conducting the search:
“[R]easonableness under the Fourth Amendment does not require
employing the least intrusive means, because the logic of such
elaborate less-restrictive-alternative arguments could raise
insuperable barriers to the exercise of virtually all
search-and-seizure powers.” Board of Ed. of Independent School
Dist. No. 92 of Pottawatomie Cty. v. Earls , 536 U. S. 822 , 837 (2002) (internal
quotation marks and brackets omitted). For the same reason, the
Constitution did not require school officials to ask “followup
questions” after they had already developed reasonable suspicion
that Redding possessed drugs. See ante , at 6, 10 (majority
opinion); ante , at 1 (opinion of Ginsburg, J.). In any
event, the suggestion that requiring Redding to sit in a chair for
two hours amounted to a deprivation of her constitutional rights,
or that school officials are required to engage in detailed
interrogations before conducting searches for drugs, only
reinforces the conclusion that the Judiciary is ill-equipped to
second-guess the daily decisions made by public administrators. Cf. Beard v. Banks , 548 U. S. 521 , 536–537
(2006) (Thomas, J., concurring in judgment). Footnote 5 Arizona’s law is not idiosyncratic; many
States have separately criminalized the unauthorized possession of
prescription drugs. See, e.g. , Mo. Rev. Stat. §577.628(1)
(Supp. 2008) (“No person less than twenty-one years of age shall
possess upon the real property comprising a public or private
elementary or secondary school or school bus prescription
medication without a valid prescription for such medication”);
Okla. Stat., Tit. 59, §353.24(2) (Supp. 2008) (“It shall be
unlawful for any person, firm or corporation to … [s]ell, offer for
sale, barter or give away any unused quantity of drugs obtained by
prescription, except … as provided by the State Board of
Pharmacy”); Utah Code Ann. §58–17b–501(12) (Lexis 2007)
(“ ‘Unlawful conduct’ includes: using a prescription drug …
for himself that was not lawfully prescribed for him by a
practitioner”); see also Ala. Code §34–23–7 (2002); Del. Code Ann.,
Tit. 16, §4754A(a)(4) (Supp. 2008); Fla. Stat. §499.005(14) (2007);
N. H. Rev. Stat. Ann. §318:42(I) (Supp. 2008). Footnote 6 Schools have a significant interest in
protecting all students from prescription drug abuse; young female
students are no exception. See Teens and Prescription Drugs 2
(“Prescription drugs are the most commonly abused drug among
12–13-year-olds”). In fact, among 12- to 17-year-olds, females are
“more likely than boys to have abused prescription drugs” and have
“higher rates of dependence or abuse involving prescription drugs.” Id. , at 5. Thus, rather than undermining the relevant
governmental interest here, Redding’s age and sex, if anything,
increased the need for a search to prevent the reasonably suspected
use of prescription drugs. Footnote 7 The one aspect of school discipline with
respect to which the judiciary at times became involved was the
“imposition of excessive physical punishment.” Morse , 551
U. S., at 416 (Thomas, J., concurring). Some early courts found
corporal punishment proper “as long as the teacher did not act with
legal malice or cause permanent injury;” while other courts
intervened only if the punishment was “clearly excessive.” Ibid. (emphasis deleted and internal quotation marks
omitted) (collecting decisions). Footnote 8 See also, e.g. , Smydo, Allderdice
Parents Decry Suspensions, Pittsburgh Post-Gazette, Apr. 16, 2009,
p. B1 (Parents “believe a one-day suspension for a first-time
hallway infraction is an overreaction”); O’Brien & Buckham,
Girl’s Smooch on School Bus Leads to Suspension, Buffalo News, Jan.
6, 2008, p. B1 (Parents of 6-year-old say the “school officials
overreacted” when they punished their daughter for “kissing a
second-grade boy”); Stewart, Camera Phone Controversy: Dad Says
School Overreacted, Houston Chronicle, Dec. 12, 2007, p. B5 (“The
father of a 13-year-old … said the school district overstepped its
bounds when it suspended his daughter for taking a cell phone photo
of another cheerleader getting out of the shower during a sleepover
in his home”); Dumenigo & Mueller, “Cops and Robbers”
Suspension Criticized at Sayreville School, The [New Jersey]
Star-Ledger, Apr. 6, 2000, p. 15 (“ ‘I think it’s
ridiculous,’ said the mother of one of the [kindergarten] boys.
‘They’re little boys playing with each other… . when did a
finger become a weapon?”).