I posted earlier about one misconception about Tuesday’s Supreme Court arguments in the case of Safford School District v. Redding, and now I’d like to take on another.

The case stems from a lawsuit brought by Savana Redding, who was strip-searched when she was in the eighth grade by school officials looking for prescription-strength ibuprofen.

In a Slate story on the oral arguments, Dahlia Lithwick quotes ACLU attorney Adam Wolf as saying that school officials required “a 13-year-old girl to take off her pants, her shirt, move around her bra so she reveals her breasts, and the same thing with her underpants to reveal her pelvic area.” Justice Breyer, Lithwick says, responded by wondering whether the strip search Wolf described was “all that different” from requiring a student to “change into a swimming suit or your gym clothes.” 

But Breyer’s example was not, as Lithwick claims, offered as parallel to Wolf’s — just the opposite.


“Suppose you fail to prove” your version of what happened during the search, Breyer tells Wolf. Suppose a judge or jury finds that all the school officials did “was ask her to strip to her underwear, period.” Would that be, he asked, a violation of the Fourth Amendment?  

Wolf said it would be, because it would still be “an intrusive, traumatic search.” Breyer then asks why it would be “a major thing to say strip down to your underclothes, which children do when they change for gym? … That’s what I’m trying to get at,” he says. “I’m asking because I don’t know.”

Breyer didn’t, in other words, suggest that what Wolf described was the same thing as simply asking a student “to strip to her underwear.” He distinguished between the two, and invited Wolf to make the case that the second was as problematic as the first.

All this is particularly important because of an earlier exchange that Breyer had with the attorney for the school.

When that attorney argued that placing any new restrictions on officials’ freedom to conduct strip searches would cause “problems,” Breyer objected.

If Redding accurately described what happened to her, he said, then he found the search “a little extreme.” Why “couldn’t the school administrators just … leave her in her underwear,” he asked, or have her change into a swimsuit in another room? “Here she is embarrassed,” he says. “There seems no reason for that … I mean, it just embarrasses her. What’s the need for it?”

Here Breyer is trying to find a balance of interests — a way for schools to be able to conduct reasonable searches without embarrassing their students. He explicitly rejects the idea that the search, as Redding described it, was appropriate and necessary.

And as for the question of whether a search that only involves stripping down to underwear is excessively embarrassing, Breyer says he doesn’t have a settled opinion. “I’m asking,” he says, “because I don’t know.”

I don’t know where Breyer is going to come down on this case. He hasn’t been a great champion of students’ rights in the past. But he asked a lot of the right questions on Tuesday, and I think there’s real reason to be hopeful that he’ll do the right thing.