T.R. v. Lamar County Board of Education, The

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12424

Non-Argument Calendar

____________________

T.R., a Minor,

by and through her Mother, Porsha Brock,

Plaintiff-Appellant,

versus

LAMAR COUNTY BOARD OF EDUCATION, THE,

VANCE HARRON,

in his individual and official capacity,

LISA STAMPS,

in her individual and official capacity,

KATHY DEAN,

in her individual and official capacity,

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2 Opinion of the Court 21-12424

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 6:19-cv-01101-LSC

____________________

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

WILSON, Circuit Judge:

Plaintiff-Appellant T.R., a minor, by and through her

mother, Porsha Brock, appeals the district court’s grant of Defend-

ant-Appellee’s motion for summary judgment. T.R. brought a

Fourth Amendment unreasonable search claim under 42 U.S.C. §

1983 against her school’s Principal Lisa Stamps, Counselor Kathy

Dean, and Superintendent Vance Harron. The district court

granted summary judgment in favor of the Defendants, finding

that the school officials were entitled to qualified immunity. T.R.

also appeals the district court’s grant of summary judgment in fa-

vor of the Defendants on her state-law invasion of privacy claim

against Principal Stamps and Counselor Dean as well as her state-

law claim of outrage against Principal Stamps, Counselor Dean, Su-

perintendent Harron, and the Lamar County Board of Education.

Because we find that the district court erred in granting qualified

immunity, we reverse the district court’s grant of summary

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21-12424 Opinion of the Court 3

judgment regarding T.R.’s Fourth Amendment claim. We also re-

verse the district court’s grant of summary judgment in favor of the

Defendants regarding T.R.’s invasion of privacy and outrage

claims.

I.

The facts, viewed in the light most favorable to T.R., are as

follows. A teacher at T.R.’s school, Sulligent High School in Lamar

County, Alabama, smelled marijuana burning in the classroom and

alerted school administrators, Principal Stamps and Assistant Prin-

cipal Matthew Byars, who searched the belongings of every stu-

dent in the class. The school officials did not find any marijuana,

but found marijuana stems and seeds, rolling paper, two lighters,

and an assortment of pills in T.R.’s backpack. School officials then

escorted T.R. to Counselor Dean’s office where they began an in-

vestigation. During the course of the investigation, two students

from T.R.’s class told Principal Stamps that they saw T.R. light a

marijuana cigarette in class. T.R. admitted to school officials to

having a drug problem and regularly smoking marijuana, but she

denied smoking marijuana in the classroom that day and she de-

nied having additional drugs on her person.

Unable to find any evidence of marijuana in T.R.’s belong-

ings, Principal Stamps and Counselor Dean decided to strip search

T.R. The district court noted that the parties heavily dispute the

facts surrounding the school official’s strip search of T.R. Accord-

ing to T.R., school officials strip searched her twice. The first time,

T.R. contends, occurred in a room with only Principal Stamps and

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4 Opinion of the Court 21-12424

Counselor Dean where the school officials asked T.R. to remove

her clothing, lift her breasts, and bend over for an inspection. It is

undisputed that school officials did not find any drugs on T.R.’s

person following the first search. Following the first search, T.R.

remained in Counselor Dean’s office and her mother and sister ar-

rived at the office. T.R. alleges that school officials again directed

T.R. to remove her clothing, to which T.R. submitted. T.R. also

alleged that a window in the door of the counselor’s office leading

to a public hallway remained uncovered during the first strip

search, but there was no evidence suggesting that a student or

other school official observed the strip searches through the win-

dow. T.R. stated that she was on her menstrual cycle when she

was searched, which made her feel “humiliated and embarrassed

and gross.” T.R.’s teacher found the remains of the marijuana cig-

arette under T.R.’s desk the next day.

The district court found that Principal Stamps, Counselor

Dean, and Superintendent Harron were entitled to qualified im-

munity regarding T.R.’s Fourth Amendment claim because, inter

alia, T.R. did not identify any materially similar precedent that

would have put the Defendants on notice of a constitutional viola-

tion.

Since the district court found that the Defendants did not vi-

olate a clearly established law, it did not reach the issue of whether

T.R.’s allegations amounted to a Fourth Amendment violation.

The district court also found that the Defendants were immune

from T.R.’s invasion of privacy claim. Lastly, T.R.’s claim for

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21-12424 Opinion of the Court 5

outrage failed because the Defendants’ conduct was not extreme

and outrageous.

II.

We review a district court’s grant of summary judgment de

novo. Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291 (11th

Cir. 2009). We view the evidence and factual inferences in a light

most favorable to the nonmoving party when evaluating the claims

at summary judgment. Id.

“Qualified immunity protects municipal officers from liabil-

ity in § 1983 actions as long ‘as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known.’” Id. An officer must first show that

he acted within his discretionary authority to receive qualified im-

munity. Id. Then, the burden shifts to the plaintiff to show that

qualified immunity should not apply. Id. Applying a two-step

framework, the court first looks to whether the officer’s conduct

amounted to a constitutional violation. Id. Second, the court ana-

lyzes whether the right was “clearly established” at the time of the

violation. Id. However, it is not required that the court analyze

the constitutional right first under step one and can instead proceed

directly to “analyzing whether the right was clearly established un-

der step two.” Id. “A right may be clearly established for qualified

immunity purposes in one of three ways: (1) case law with indistin-

guishable facts clearly establishing the constitutional right; (2) a

broad statement of principle within the Constitution, statute, or

case law that clearly establishes a constitutional right; or (3)

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conduct so egregious that a constitutional right was clearly vio-

lated, even in the total absence of case law.” D.H. by Dawson v.

Clayton Cty. Sch. Dist., 830 F.3d 1306, 1318 (11th Cir. 2016).

At issue here is “[t]he Fourth Amendment ‘right of the peo-

ple to be secure in their persons . . . against unreasonable searches

and seizures.’” Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S.

364, 370 (2009). That right “generally requires a law enforcement

officer to have probable cause for conducting a search.” Id. at 370.

However, the search and seizure of a child by school officials pre-

sents a unique question which “requires some easing of the re-

strictions to which searches by public authorities are ordinarily sub-

ject.” New Jersey v. T.L.O., 469 U.S. 325, 340 (1985). Therefore,

the legality of a search in this context does not depend on the ordi-

nary “probable cause” standard; it depends “simply on the reason-

ableness, under all the circumstances, of the search.” Id. at 340–41.

This analysis requires “a twofold inquiry.” Id. “[F]irst, one

must consider whether the action was justified at its inception; sec-

ond, one must determine whether the search as actually conducted

was reasonably related in scope to the circumstances.” Id. (cleaned

up). A search by a school official of a student is “justified at its in-

ception when there are reasonable grounds for suspecting that the

search will turn up evidence that the student has violated or is vio-

lating either the law or the rules of the school.” Id. at 342 (internal

quotation marks omitted). “Such a search will be permissible in its

scope when the measures adopted are reasonably related to the

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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.

Safford involved school officials’ search of a thirteen-year-

old girl suspected of carrying prescription-strength ibuprofen pills.

Safford, 557 U.S. at 368. The school officials obtained a report that

the student was giving the pills to other students. Id. School offi-

cials then searched the student’s backpack, but did not find any

pills. Id. Next, school officials instructed the student to strip down

to her undergarments. Id. at 369. Finally, school officials told the

student 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,” but still no pills were found. Id. While

the Supreme Court found that the search of the student’s backpack

and outer clothing was reasonable, it found that that the “strip

search” of the student was unreasonable. Id. at 374–77. The Court

recognized that the strip search was a separate search and reasoned

that “both subjective and reasonable societal expectations of per-

sonal privacy support the treatment of such a search as categori-

cally distinct, requiring distinct elements of justification on the part

of school authorities for going beyond a search of outer clothing

and belongings.” Id. at 374. Emphasizing that strip searches can

be “embarrassing, frightening, and humiliating,” the Court noted

the indignity of strip searches implicated “the rule of reasonable-

ness 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.” Id. at 374–75 (internal quotation

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8 Opinion of the Court 21-12424

marks omitted and alterations adopted). The Court also reasoned

that “the categorically extreme intrusiveness of a search down to

the body of an adolescent requires some justification in suspected

facts.” Id. at 376. Since “what was missing from the suspected facts

that pointed to [the student] was any indication of danger to the

student from the power of the drugs or their quantity, and any rea-

son to suppose that [the student] was carrying pills in her under-

wear,” the Court found that the strip search was unreasonable. Id.

at 376–77.

We recently addressed the issue of strip searches of students

in D.H., 830 F.3d 1306 (11th Cir. 2016). Similar to the facts here,

school officials strip searched a student on suspicion that the stu-

dent had marijuana. Id. at 1315–16. Applying the two-step analysis

from T.L.O., we found at the first step that the strip search was

reasonable at its inception. Id. at 1315–17. Since this was a strip

search case, we applied the rule in Safford and found that the school

officials held “a reasonable suspicion” of searching D.H.’s under-

wear because of evidence that at least one other student had hidden

marijuana in his underwear and a statement from another student

that D.H. possessed marijuana. Id. at 1316–17. However, we

found that the search failed the scope prong of the T.L.O. test be-

cause the search was not “reasonably related to the objectives of

the search” and was “excessively intrusive in light of the age and

sex of the student and the nature of the infraction.” Id. at 1317

(emphasis in original). The search was excessive in scope because

the school official asked D.H. to fully remove all of his clothes “in

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front of D.H’s peers” which “bore no rational relationship to the

purpose of the search itself.” Id. We reasoned that a “strip search

in the presence of one’s peers would exponentially intensify the

embarrassment, fright, and humiliation a student experiences

when undergoing a strip search.” Id. (internal quotation marks

omitted and alterations adopted). Instead, school officials could

have pursued a less intrusive means such as “asking D.H. to pull

his waistband away from his body” and the decision to strip search

D.H. in front of his peers made the search unreasonable. Id. at

1318. Accordingly, we concluded that the school official’s actions

violated clearly established law, citing to Safford. Id. at 1318–19.

III.

Our discussion proceeds in three parts. First we address

T.R.’s § 1983 Fourth Amendment claim. Second, we address her

invasion of privacy claim. Third, we address her claim of outrage.

As an initial matter, to be entitled to qualified immunity, the

school officials had to demonstrate that they were acting within

their discretionary authority. Lewis, 561 F.3d at 1291. In their brief

in support of their motion for summary judgment, the Defendants

argued that Principal Stamps and Counselor Dean were within

their discretionary authority because supervising students was

within their official duties. On appeal, T.R. argues that Principal

Stamps and Counselor Dean were not within their discretionary

authority because they strip searched T.R. without first obtaining

specific approval of Superintendent Harron, which violated

schoolboard policy. However, she did not raise this argument

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10 Opinion of the Court 21-12424

before the district court in her brief in opposition to the Defend-

ant’s motion for summary judgment regarding her Fourth Amend-

ment claim.1 Since she did not raise this argument before the dis-

trict court, she waived this argument below. See Access Now, Inc.

v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“[A]n issue

not raised in the district court and raised for the first time in an

appeal will not be considered by this court.”).

Turning to T.R.’s main argument that qualified immunity

should not have been granted, we conclude that the district court

erred in finding that T.R.’s right was not clearly established at the

time of the challenged conduct. At the time Principal Stamps and

Counselor Dean strip searched T.R., there had been two materially

similar cases involving strip searches by school officials, Safford and

D.H. Both cases resulted in a finding that the strip searches were

unreasonable under T.L.O.

Starting with Safford, the Supreme Court held that

“[b]ecause there were no reasons to suspect the drugs presented a

danger or were concealed in [the student’s] underwear, we hold

that the search did violate the Constitution . . . .” 557 U.S. at 368.

Here, the district court reasoned that because school officials could

not find marijuana in T.R.’s backpack, then they had reason to

1 T.R. did raise the argument that the school officials acted beyond their au-

thority regarding her state-law claims. However, she did not expressly chal-

lenge the school officials’ discretionary authority regarding her Fourth

Amendment claim.

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suspect that they would find marijuana in T.R.’s underwear or bra.

Thus, according to the district court, the school officials had suffi-

cient reason to suspect T.R. contained drugs under her clothing,

which made this case factually distinguishable from Safford. How-

ever, this type of reasoning is of the sort that the Supreme Court

expressly forbade in Safford. There, the court rejected the school’s

argument that “as a truth universally acknowledged . . . students .

. . hide contraband in or under their clothing[.]” Id. at 376 (internal

quotation marks omitted and alterations adopted). The Court clas-

sified this reasoning as a “general background possibilit[y]” that a

student could be hiding contraband under their clothing. Id. This

type of general possibility is insufficient when considering “the cat-

egorically extreme intrusiveness of a search down to the body of

an adolescent.” Id.

Instead, the school official must possess “some justification

in suspected facts . . . that [the strip search] will pay off.” Id. The

Court provided three scenarios where a school official might have

“suspected facts” sufficient to justify a strip search: (1) where there

is evidence of a general practice of students at the school hiding

contraband in their underwear, (2) when other students suggest to

a school official that a particular student is hiding contraband in

their underwear, or (3) when an earlier search of another student’s

underwear yielded contraband. Id. None of these circumstances

were present in this case. While other students indicated that they

had seen T.R. smoking a marijuana cigarette, the students did not

indicate that she hid them in her underwear. Further, there is no

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evidence that any other students at the school had previously hid-

den contraband under their clothing. As a result, the school offi-

cials should have been on notice that they lacked the necessary

“justification in suspected facts” required by Safford.

Further, to grant qualified immunity on these facts would

severely diminish the protections afforded students from strip

searches set out in Safford. The Supreme Court, recognizing that

a strip search was “categorically distinct” from a search of outer

clothing and belongings based on “subjective and reasonable soci-

etal expectations of personal privacy,” “place[d] a search that intru-

sive in a category of its own demanding its own specific suspi-

cions.” Id. at 374, 377. The district court’s reasoning would re-

move the requirement of “specific suspicions” and replace it with a

rule that anytime a school official does not find drugs in a student’s

backpack, then they are justified in strip searching the student.

Accordingly, we conclude that the district court erred in dis-

tinguishing this case from Safford by reasoning that there was a

specific suspicion that T.R. was hiding drugs under her clothing be-

cause no drugs were found in her belongings. This is not a specific

suspicion, but rather a “general background possibilit[y],” which is

insufficient to justify a strip search of a student by a school official

under Safford. Id. at 376.

The district court further erred in reasoning that case was

distinguishable from Safford because the drugs in the case pre-

sented more of a danger than the ones in Safford. This reasoning

goes to the first prong of the holding in Safford that there must be

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“reasons to suspect the drugs presented a danger” to justify a strip

search. Id. at 368. In Safford, the drugs at issue were “prescription-

strength ibuprofen and over-the-counter naproxen, common pain

relievers equivalent to two Advil, or one Aleve.” Id. at 375–76. The

Court in Safford does not suggest that the danger is linked solely to

the type of drug, but rather emphasized that “[the school official]

had no reason to suspect that large amounts of drugs were being

passed around, or that individual students were receiving great

numbers of pills.” Safford, 557 U.S. at 376. Thus, the danger the

Court seemed more concerned with was the threat that drugs were

being passed around to other students. However, in this case, the

evidence shows that this danger was not present. As noted in the

district court’s opinion, school officials “found drugs 2 and drug par-

aphernalia in only one place: a backpack belonging to a fourteen-

year-old female student named TR.” Thus, there was no threat

that the other students in T.R.’s class were using drugs or that T.R.

was passing drugs around in class. Accordingly, the fact that differ-

ent drugs were involved in Safford than in this case is not a material

difference.

In addition to erring in finding that there was no clearly es-

tablished law that rendered this search unjustified at its inception

under the first prong of T.L.O., the district court further erred in

finding that there was no clearly established law that rendered this

2“[D]rugs,” as it is used here in the district court’s opinion, must refer to the

prescription pills found in T.R.’s backpack. School officials did not find any

marijuana in T.R.’s backpack.

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14 Opinion of the Court 21-12424

search unreasonable in its scope under the second prong. The case

on point for the reasonableness in scope of a strip search of a stu-

dent is our decision in D.H. Although, there, we concluded that

the strip search was justified at its inception under prong one be-

cause there was evidence that students were hiding drugs under

their clothes, it was not reasonable in scope under prong two be-

cause the school official required the student to strip in front of his

peers. D.H., 830 F.3d at 1318. While the district court recognized

that D.H. was the most analogous precedent for T.R., it found that

it did not clearly establish that the school officials’ actions in this

case were unconstitutional. This conclusion was based on an im-

properly narrow reading of D.H. The district court read our deci-

sion in D.H. to only establish that a strip search is unconstitutional

when done in the presence of the student’s peers. However, we

noted in D.H. that the “measures adopted” in a strip search must

be “reasonably related to the objectives of the search and not ex-

cessively intrusive.” Id. at 1317 (emphasis in original). In D.H., we

found that the decision by the school official to have the student

remove all of his clothing “bore no rational relationship to the pur-

pose of the search itself.” Id. Thus, D.H. clearly establishes that

the actions taken by a school official in a strip search must be ra-

tionally related to the purpose of the search, which in this case

would be finding marijuana.

Here, there are two facts that establish this search was not

reasonable in scope. First and foremost, school officials strip

searched T.R. twice. Not only did they not have reasonable

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suspicion to strip search T.R. the first time, but the school officials

also clearly had no basis to strip search T.R. a second time after the

first search yielded nothing. T.R. did not leave the counselor’s of-

fice in between the searches, so there is no basis to conclude that

she might have acquired marijuana in that time. Thus, asking T.R.

to strip naked a second time “bore no rational relationship to the

purpose of the search itself.” Id. at 1317.

Second, T.R. alleged that the first search was conducted in

front of an open window in the counselor’s office. The open win-

dow was in the office’s door, which led to a public hallway. Alt-

hough the Defendants dispute this fact in their brief, we view the

facts in the light most favorable to the plaintiff at the summary

judgment stage. Even though, luckily, no students or other school

officials saw T.R. while she was being strip searched, that is ulti-

mately beside the point. The presence of a window made it possi-

ble that someone could see T.R. in this vulnerable position. This

possibility would have made the actual search much more fright-

ening, as T.R. had no way of knowing if someone would walk by.

Thus, conducting the search in front of an open window to a public

hallway “unnecessarily subjected [T.R.] to a significantly higher

level of intrusion.”

Accordingly, we conclude that the district court erred in

finding that D.H. was distinguishable enough from this case that

the Defendants were not on notice of a constitutional violation.

D.H. clearly established that when a school official makes the strip

search more intrusive than necessary, the search is

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16 Opinion of the Court 21-12424

unconstitutional. Although there were no students present in the

room during the strip search, as was the case in D.H., we do not

think that is a material difference that would shield the Defendant’s

actions in this case. As the Supreme Court noted in Mullenix v.

Luna, for a clearly established right in the context of qualified im-

munity, “[w]e do not require a case directly on point, but existing

precedent must have placed the statutory or constitutional ques-

tion beyond debate.” 577 U.S. 7, 12 (2015). We think that our prec-

edent in D.H. puts the constitutional question in this case “beyond

debate” where school officials, conducting a strip search, unneces-

sarily subject the student “to a significantly higher level of intru-

sion,” the search is unreasonable in its scope. D.H., 830 F.3d at

1317. Therefore, the district court erred in finding that D.H. was

not analogous precedent in this case that provided a clearly estab-

lished example of a constitutional violation in the context of a strip

search of a student.

In sum, we conclude that both Safford and D.H. provide

“case law with indistinguishable facts clearly establishing the con-

stitutional right,” id. at 1318, and the district court erred in finding

to the contrary in this case.

Although we find that there was a genuine issue of material

fact as to whether the Defendants’ conduct was unreasonable un-

der clearly established law, our analysis does not end there. In ad-

dition to finding that the right was clearly established, we must also

“determine[] whether the [Defendants’] conduct amounted to a

constitutional violation.” Lewis, 561 F.3d at 1291. The district

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court did not address this issue, but instead granted summary judg-

ment in favor of the Defendants because the law was not clearly

established. We conclude that a factfinder could find the Defend-

ants’ conduct constituted a constitutional violation, as demon-

strated in our “clearly established” analysis above. As discussed,

the school officials’ strip search was unreasonable at its inception

under the first prong of T.L.O. because the school officials did not

have “reasons to suspect the drugs presented a danger or were con-

cealed in [T.R.’s] underwear.” Safford, 557 U.S. at 368. The strip

search was also unreasonable in its scope under the second prong

of T.L.O. because the school officials’ decision to strip search T.R.

twice and in front of an open window “exposed [T.R.] to an unnec-

essary level of intrusion that rendered the search excessive in scope,

and, therefore, unconstitutional.” D.H., 830 F.3d at 1318.

Since the Defendants’ actions violated a clearly established

constitutional right, we conclude that the Defendants are not enti-

tled to qualified immunity. Thus, the district court erred in grant-

ing summary judgment in favor of the Defendants on T.R.’s Fourth

Amendment claim. Accordingly, we reverse and remand to the

district court on T.R.’s 42 U.S.C. § 1983 unreasonable search and

seizure claim.

IV.

Turning next to T.R.’s invasion of privacy claim, T.R. argues

that because the Defendants violated a schoolboard policy when it

strip searched T.R., the Defendants are not entitled to State-agent

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18 Opinion of the Court 21-12424

immunity, thus shielding them from liability for T.R.’s invasion of

privacy claim.

Alabama’s “State-agent immunity protects state employees,

as agents of the State, in the exercise of their judgment in executing

their work responsibilities.” Ex parte Hayles, 852 So. 2d 117, 122

(Ala. 2002). “When a defendant raises the defense of State-agent

immunity, the defendant bears the initial burden of showing that

he or she qualifies for State-agent immunity.” Ex parte Brown, 182

So. 3d 495, 503 (Ala. 2015). “If the defendant satisfies that burden,

the burden then shifts to the plaintiff to show that one of the two

exceptions to State-agent immunity is applicable.” Id. Under Ala-

bama law, the defendant is not entitled to State-agent immunity if

the plaintiff shows that the defendant “acted willfully, maliciously,

fraudulently, in bad faith, or beyond his or her authority.” Grider

v. City of Auburn, 618 F.3d 1240, 1255 (11th Cir. 2010).

In Brown, the Alabama Supreme Court noted that in analyz-

ing whether a State agent acted “beyond his or her authority,” “the

determinative consideration is whether the State agent failed to dis-

charge duties pursuant to detailed rules and regulations.” Brown,

182 So. 3d at 504 (internal quotation marks omitted and emphasis

added). There, the issue was whether a police officer acted “be-

yond his or her authority” by failing to adhere to a city’s pursuit

policy. Id. The Alabama Supreme Court concluded that

“[b]ecause the policy provides that the procedure for all pursuits is

subject to an officer’s or the officer’s supervisor’s exercise of discre-

tion . . . the policy and procedure constitute guidelines, not

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‘detailed rules and regulations, such as those stated on a checklist’

that must be followed by an officer” Id. at 506 (emphasis in origi-

nal).

Here, the district court applied the Alabama Supreme

Court’s reasoning in Brown and concluded that the schoolboard

policy was too broad and left too much to discretion. Thus, the

policy was more akin to guidelines than detailed rules and regula-

tions. In relevant part, the policy provides:

Student searches must be conducted by a school ad-

ministrator in the presence of another certified school

employee and may include a private pat down of the

student, a search of personal items and clothing, or a

more thorough search upon specific approval of the

Superintendent. Personal searches will be conducted

with due regard for the age and gender of the student.

Searches that require physical contact between the

school official and the student, removal of clothing,

or examination of the student in a way that would im-

plicate privacy concerns must be conducted and wit-

nessed by officials of the same gender as the student

and in a way that preserves the dignity of the student

to extent practicable under the circumstances.

Despite the mandatory phrases that “[s]tudent searches

must be conducted by a school administrator in the presence of an-

other certified school employee” and “[s]earches that require phys-

ical contact . . . must be conducted and witnesses by officials of the

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20 Opinion of the Court 21-12424

same gender,” the district court found that “[t]his language leaves

much to discretion. T.R. argues that her strip search was “a more

thorough search” than a private pat down or search of personal be-

longings or clothing and since Principal Stamps and Counselor

Dean did not obtain approval from Superintendent Harron before

conducting this more thorough search, they were acting beyond

their authority and not entitled to State-agent immunity.

The parties do not seem to dispute that Superintendent Har-

ron was not notified before the strip search took place. However,

the Defendants maintain that the schoolboard policy is a general

guideline and not a detailed list of rules. Accordingly, failure to

abide by these “guidelines” would not remove the Defendants’

State-agent immunity. Brown, 182 So. 3d at 506. We are not con-

vinced that the schoolboard policy is only a guideline and not a de-

tailed list of rules. In Giambrone, the Alabama Supreme Court

looked to whether a wrestling coach’s failure to abide by coaching

guidelines meant that the coach was acting beyond his authority

and therefore not entitled to State-agent immunity. Giambrone v.

Douglas, 874 So. 2d 1046, 1052 (Ala. 2003). There, the court noted

that the wrestling coach’s “‘broad authority’ to exercise judgment

in the safe conduct of his wrestling team practices was limited by

the guidelines and rules furnished and imposed.” Id. at 1054. A

few examples provided were that coaches must not arrange

matches between players who differed greatly in skill and prohibit-

ing certain types of wrestling moves. Id. The court found that

these “guidelines and rules provided specific instructions regarding

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21-12424 Opinion of the Court 21

the proper techniques to be used in coaching the sport of wres-

tling.” Id. at 1055. The court concluded that “[b]ecause a trier of

fact could determine that [the coach] performed an illegal move

during an ‘inequitable’ challenge match, thereby failing to dis-

charge duties pursuant to ‘detailed rules or regulations,’ we cannot

determine at [the summary judgment] stage in the proceedings

that [the coach] is entitled to State-agent immunity.” Id.

Here, the Defendants are certainly entitled to “broad au-

thority” in determining who to search and the level of intrusiveness

necessary for a search. However, as in Giambrone, the Defend-

ants’ authority to search students is “limited by the guidelines and

rules furnished and imposed.” Id. at 1054. For example, the

schoolboard policy requires that more thorough searches require

“specific approval of the Superintendent.” Further, searches re-

quiring physical contact must be conducted by school officials of

the same gender as the student being searched. We cannot agree

with the district court that the schoolboard policy “leaves much to

discretion” in terms of how certain searches must be conducted.

Like the wrestling coach in Giambrone, we cannot say that a school

official would be discharging his or her duties pursuant to “detailed

rules or regulation” if the school official did not conduct a search in

accordance with this policy. Thus, the schoolboard policy is not a

guideline, which, if not followed, would have no impact on a

school official’s entitlement to State-agent immunity. Rather, the

policy is a detailed set of rules and regulations. Because a trier of

fact could determine that the Principal Stamps and Counselor

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22 Opinion of the Court 21-12424

Dean conducted a more thorough search without seeking approval

from the Superintendent, we cannot conclude that Defendants are

entitled to State-agent immunity. Accordingly, we reverse the dis-

trict court’s grant of State-agent immunity to the Defendants as to

T.R’s invasion of privacy claim.

V.

Lastly, we address T.R.’s state-law claim of outrage. Under

Alabama law, “the tort of outrage is the same cause of action as

intentional infliction of emotional distress.” Wilson v. Univ. of Ala.

Health Servs. Found., P.C., 266 So. 3d 674, 675 n.1 (Ala. 2017). “For

a plaintiff to recover under the tort of outrage, she must demon-

strate that the defendant’s conduct (1) was intentional or reckless;

(2) was extreme and outrageous; and (3) caused emotional distress

so severe that no reasonable person could be expected to endure

it.” Id. at 676. “The conduct complained of must be so extreme in

degree as to go beyond all possible bounds of decency and be re-

garded as atrocious and utterly intolerable in civilized society.” Id.

at 676–77 (internal quotation marks omitted). The Alabama Su-

preme Court has only recognized the tort of outrage in three cir-

cumstances: (1) wrongful conduct in the family-burial context, (2)

barbaric methods employed to coerce an insurance settlement, and

(3) egregious sexual harassment. Id. at 677. However, the tort of

outrage is not limited to those three situations. Id.

The district court found that T.R.’s outrage claim failed be-

cause the Defendant’s conduct was not “outrageous or extreme

enough to create a question of fact.” T.R. contends that the district

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21-12424 Opinion of the Court 23

court understated the severity of the strip search, emphasizing the

intrusive nature of the strip search and the fact that the school offi-

cials strip searched T.R. twice. The Defendant’s main response to

T.R. is that the conduct was not outrageous or extreme when con-

sidering the fact that T.R.’s mother hugged the school officials after

the search. Despite ignoring the fact that T.R.’s mother is now su-

ing the school, this fact also does not take into consideration how

T.R. was affected by this search. The district court noted in its

opinion that T.R. believed the two searches were “especially intru-

sive” because, one, she was on her menstrual cycle, and two, the

search was conducted in front of an open window. As a result, T.R.

felt “humiliated and embarrassed and gross.”

When considering the degree of intrusiveness of the search

and the fact that school officials searched T.R. twice, we conclude

that T.R.’s claim for outrage creates a sufficient question for the

jury and the district court erred in ruling on this claim at the sum-

mary judgment stage. Although this case is not within the three

scenarios where the Alabama Supreme Court has found outrage

before, the tort of outrage is not limited to those three situations.

Wilson, 266 So. 3d at 677. Accordingly, we reverse the district

court’s order granting summary judgment in favor of the Defend-

ants as to T.R.’s outrage claim.

REVERSED and REMANDED.