Jenkins v. Talladega City Bd. of Ed

United States Court of Appeals,

Eleventh Circuit.

No. 95-6243.

Cassandra JENKINS, a minor, by her mother and next friend, Sandra

HALL; Onieka McKenzie, a minor, by her mother and next friend,

Elizabeth McKenzie, Plaintiffs-Appellants,

v.

TALLADEGA CITY BOARD OF EDUCATION; Susannah Herring,

individually and in her capacity as a teacher of Graham Elementary

School; Melba Sirmon, individually and in her capacity as

counselor at Graham Elementary School, Defendants-Appellees,

Charles Kurley, in his official capacity as Superintendent of the

Talladega City School District, et al., Defendants.

Sept. 23, 1996.

Appeal from the United States District Court for the Northern

District of Alabama. (No. 94-PT-739-E), Robert B. Propst, Judge.

Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER*, Senior

District Judge.

KRAVITCH, Circuit Judge:

This action was brought on behalf of two elementary school

students who allegedly were strip searched by a teacher and

guidance counselor after having been accused of stealing money from

a classmate. The district court concluded that defendants were

entitled to summary judgment on all claims. In particular, the

court granted the individual defendants summary judgment on

plaintiffs' § 1983 Fourth Amendment claims. We affirm all of the

district court's summary judgment orders, except for the grant of

qualified immunity to defendants on the Fourth Amendment claims,

which we reverse.

*

Honorable William W. Schwarzer, Senior U.S. District Judge

for the Northern District of California, sitting by designation.

I.

In 1992, Cassandra Jenkins and Onieka McKenzie were

eight-year-old second graders at Graham Elementary School in

Talladega, Alabama. On the afternoon of May 1, one of Cassandra's

and Onieka's classmates told their teacher, Hilda Fannin, that $7

was missing from her purse. Another classmate told Fannin that

Cassandra had taken the money and stashed it in Onieka's backpack.

After searching the backpack and finding no money, Fannin

questioned Cassandra and Onieka in the hallway outside the

classroom. The girls accused each other, as well as a male

classmate, Anthony Jemison, of the theft.

As Fannin's questioning of Cassandra, Onieka, and Anthony

continued in the hallway, the school music teacher, Susannah

Herring, approached. Upon being informed of the theft accusation,

Herring took charge of the investigation. First, she instructed

the three students to take off their shoes and socks. No money was

revealed. Herring then summoned Melba Sirmon, a guidance counselor

whose office was nearby. Herring and Sirmon took Cassandra and

Onieka to the girls' restroom.

Inside the restroom, Herring told Cassandra and Onieka to

"check" their clothes for the money. According to Cassandra,

Herring ordered them to go inside the stalls and come back out with

their underpants down to their ankles. 1 As Cassandra and Onieka

entered separate stalls and locked the doors, Sirmon left the

restroom to check on Anthony, who was waiting outside. Shortly

1

Herring claims that she merely told Cassandra and Onieka to

"check" their clothes, not to remove them.

after she returned, according to Cassandra, Cassandra and Onieka

emerged from the stalls with their underpants pulled down to their

ankles. Herring asked them if they had found the money, and they

replied that they had not. Sirmon allowed them to return to their

stalls and pull their underpants back up.2

Herring and Sirmon then escorted Cassandra, Onieka, and

Anthony to the office of the school principal, Crawford Nelson.

After hearing Herring's account of what had happened,3 Nelson

interrogated the three children about the location of the stolen

cash. Anthony claimed that the money was hidden behind a file

cabinet and then, when nothing was found there, that it was stashed

in a locker. Nelson concluded that Anthony had no idea where the

money was and dismissed him.

From Nelson's office, Herring and Sirmon took Cassandra and

Onieka back to the restroom.4 Inside, Herring ordered the two

girls to take off their dresses, which they did. Cassandra was

wearing a slip; Onieka was wearing only underpants. Herring then

instructed them to shake their dresses, and she shook the slip

Cassandra was wearing. After nothing was found, Cassandra and

2

Onieka testified that she and Cassandra pulled their

underpants down and back up while inside the locked stalls and

that neither came out of the stalls with her underpants down.

3

Although Herring apparently did not inform Nelson that

Cassandra and Onieka had removed their clothes in the restroom,

Nelson testified that he expressed disapproval of her forcing the

girls to remove their shoes and socks.

4

Herring and Sirmon assert that they only took Cassandra and

Onieka to the restroom once, before they met with Nelson; thus,

they dispute the girls' description of the second restroom

incident in its entirety. There is no evidence that Nelson

authorized or was aware of a second restroom trip.

Onieka were allowed to put their dresses back on. This account was

corroborated by a witness. Joyce Merritt Shears, the parent of

another student, was walking in the hallway past the girls'

restroom while Cassandra and Onieka were being searched. Shears

heard children crying and an adult say either "remove your slip" or

"hold up your slip." Entering the restroom to investigate, Shears

saw Cassandra and Onieka, "one in their panties and the other one

in their slip."

The Talladega City Board of Education ("Board") conducted an

investigation of the strip search. After a hearing, the Board

concluded that Herring had committed a "gross error in judgment"

regarding the manner in which she investigated the alleged theft;

that Sirmon had erred in her judgment by assisting Herring, failing

to notify the principal immediately, and not calling Cassandra's

and Onieka's parents; and that Nelson had erred in his judgment by

not calling the girls' parents and failing to establish a uniform

policy for dealing with theft in the school. Despite the

superintendent's recommendation that Herring be fired, the Board

did not impose any serious sanctions.

Plaintiffs, on behalf of Cassandra and Onieka, filed a

complaint against the Board and nine individual defendants

(including Nelson, Herring, and Sirmon) in 1994, alleging, pursuant

to 42 U.S.C. § 1983, that they had been strip searched in violation

of the Fourth Amendment, Title VI of the Civil Rights Act of 1964,

5

and Title IX of the Education Amendments of 1972, and also

5

Cassandra and Onieka, who are black, claim that the

searches conducted by Herring and Sirmon, who are white, were

discriminatory based on race and gender. With respect to gender,

alleging violations of Alabama tort law. The district court

initially dismissed all claims for money damages against all

defendants, except for those against Herring and Sirmon in their

individual capacities and those against the Board. Then, on its

own initiative, the court entered an order stating that it was

reconsidering whether Herring and Sirmon were entitled to qualified

immunity for the allegedly unconstitutional search in light of

recent Eleventh Circuit decisions. The court proceeded to grant

summary judgment on the basis of qualified immunity in favor of the

individual defendants on the Fourth Amendment claim. In addition,

the court granted summary judgment for all defendants on the Title

VI and Title IX claims, finding no substantial evidence of

discrimination based on race or gender; for the Board on the §

1983 Fourth Amendment claim, finding no basis for municipal

liability; for all defendants on the claims for injunctive and

declaratory relief, finding that the plaintiffs lacked standing to

bring these claims; and for individual defendants on the state law

claims, finding that the defendants were entitled to qualified

immunity under Article I, § 14 of the Alabama Constitution.

Plaintiffs now appeal.

II.

We affirm the grant of summary judgment for all defendants on

plaintiffs observe that Anthony Jemison was not strip searched

despite also being accused of the theft. With respect to race,

they point to other searches in Talladega schools that, they

allege, demonstrate a correlation between the intrusiveness of

the searches and the race of the students searched. After

carefully reviewing the record, we agree with the district court

that the plaintiffs have failed to present sufficient evidence of

discrimination based on gender or race to survive the summary

judgment motion.

the Title VI and Title IX claims, for the Board on the Fourth

Amendment § 1983 claim, for all defendants on the claims for

injunctive and declaratory relief, and for the individual

defendants on the state law claims.6 This leaves the issue of §

1983 qualified immunity for the individual defendants on

plaintiffs' Fourth Amendment claims.

The district court granted Herring and Sirmon qualified

immunity, concluding that Fourth Amendment law was not "clearly

established" as applied to their conduct.7 We reverse the district

court's decision because Fourth Amendment law was sufficiently

clear in 1992 that there could be no doubt that Herring's and

Sirmon's actions (construing the evidence and all reasonable

inferences therefrom in the light most favorable to the plaintiffs

at the summary judgment stage) were unconstitutional.

III.

Before reaching the merits, we wish to clarify some general

qualified immunity issues that seem to have confused the district

6

Although we do not adopt the district court's thorough

memorandum opinions on these issues as part of the opinion of

this court, we generally find the court's analysis cogent and

persuasive. Plaintiffs' contentions on appeal regarding these

issues lack merit.

7

The district court also granted qualified immunity to

Nelson. On appeal, plaintiffs seem to argue that Nelson should

be stripped of immunity because he violated clearly established

law by failing to train teachers in proper search methods. This

argument confuses individual liability for a constitutional

violation with municipal liability under § 1983. Plaintiffs do

not appear to claim that Nelson's alleged failure to train

teachers amounts to an independent constitutional violation for

which he could potentially be held liable in his individual

capacity. Thus, the issue of qualified immunity should not even

arise with respect to Nelson. We affirm the district court's

grant of summary judgment in favor of Nelson.

court and defendants in this case.

The Supreme Court's qualified immunity doctrine attempts to

strike a balance between two competing concerns: the necessity for

constitutional damages actions against public officials because

such actions "may offer the only realistic avenue for vindication

of constitutional guarantees" and the need to limit the costs to

individuals and society created by litigation against public

officials—including diversion of official energies from pressing

public issues, deterrence of able citizens from acceptance of

public office, and "the danger that fear of being sued will "dampen

the ardor of all but the most resolute, or the most irresponsible

[public officials], in the unflinching discharge of their duties.'

" Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736,

73 L.Ed.2d 396 (1982) (quoting Gregoire v. Biddle, 177 F.2d 579,

582 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94

L.Ed. 1363 (1950)).

In its effort to strike the optimal balance, the Supreme Court

in Harlow v. Fitzgerald established an objective test for qualified

immunity: government officials performing discretionary functions

are immune from § 1983 liability for monetary damages "insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known." 457 U.S. 800, 817-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396

(1982). In Anderson v. Creighton, the Court explained when a right

is "clearly established":

The contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right. This is not to say that an official

action is protected by qualified immunity unless the very

action in question has previously been held unlawful, but it

is to say that in the light of pre-existing law the

unlawfulness must be apparent.

483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)

(citations omitted).

These standards allow us to filter out the most culpable or

least competent public officials and make them liable for damages,

thereby striking the balance sought in Harlow by permitting the

vast majority of government to operate free from panoptic judicial

oversight or constitutional job descriptions while still retaining

a viable avenue for vindication of constitutional guarantees.

Since Anderson, this court has devoted much effort to staking

out an operational standard somewhere between the Anderson Court's

polar extremes: "in light of pre-existing law the unlawfulness

must be apparent," but "the very action in question [need not have]

previously been held unlawful." Over-emphasizing either of the

Anderson poles flouts the Supreme Court's efforts to construct a

meaningful doctrine of qualified immunity. To treat each set of

facts as unique and legally indeterminate would make qualified

immunity absolute by denying that any unlawful conduct violates

rights that were "clearly established." At the other extreme,

relying on abstract, highly general formulations of rights would

effectively abrogate immunity by declaring every violated right

"clearly established." After Anderson, then, this court has sought

a stable equilibrium between these opposing pressures.

Although there is no doubt that qualified immunity law in this

circuit has evolved in its application to some extent in the

direction of more protection for government officials, this has

simply been the result of implementing the Anderson Court's

clarification of the appropriate level of generality at which a

right must be "clearly established" for purposes of qualified

immunity. See Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1150

(11th Cir.1994) (en banc) ("The most common error we encounter ...

occurs on this point: courts must not permit plaintiffs to

discharge their burden by referring to general rules and to the

violation of abstract "rights.' ") (citing Anderson, 483 U.S. at

637-41, 107 S.Ct. at 3038-39).

Some of our efforts, however, have been misinterpreted as a

sea change in qualified immunity. For instance, the district court

in this case originally concluded that Sirmon's and Herring's

actions did violate clearly established Fourth Amendment law, but

it felt obligated to reconsider sua sponte based on its reading of

some recent Eleventh Circuit qualified immunity cases. See, e.g.,

Lassiter, 28 F.3d 1146.8

Notwithstanding Lassiter 's admonition that the court was

announcing no "[n]ew rules," but merely "for emphasis ...

restat[ing] principles which do govern qualified immunity cases,"

28 F.3d at 1149, that opinion has been misconstrued as announcing

a sweeping change. For instance, the statement in Lassiter that

"[f]or qualified immunity to be surrendered, pre-existing law must

dictate, that is, truly compel (not just suggest or allow or raise

a question about), the conclusion for every like-situated,

8

In addition to Lassiter, the district court cited Spivey v.

Elliott, 41 F.3d 1497 (11th Cir.1995); Belcher v. City of Foley,

30 F.3d 1390 (11th Cir.1994); and Post v. City of Ft.

Lauderdale, 7 F.3d 1552 (11th Cir.1993), modified, 14 F.3d 583

(11th Cir.1994).

reasonable government agent that what defendant is doing violates

federal law in the circumstances," Lassiter, 28 F.3d at 1150, has

been read by some to indicate that qualified immunity is due every

official unless this court has addressed essentially identical

facts in a previous case. But Lassiter merely rephrases the

Anderson standard, "in the light of pre-existing law the

unlawfulness must be apparent." Lassiter does not abrogate

Anderson 's recognition that "the very action in question [need not

have] previously been held unlawful" nor could it have.

Likewise, other cases have been misconstrued. We can all

agree that "[i]f case law, in factual terms, has not staked out a

bright line, qualified immunity almost always protects the

defendant," Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557

(11th Cir.1993), modified, 14 F.3d 583 (11th Cir.1994). This is

another restatement of the Anderson requirement that the law must

be apparent, but it does not answer the question "how bright?" or

define the set of cases gestured towards by "almost." In other

words, these recent cases have not eviscerated Anderson 's

recognition that "the very action in question [need not have]

previously been held unlawful." Thus, the basic principles of

qualified immunity doctrine remain unchanged.

The confusion over qualified immunity is exemplified by

defendants' apparent assumption that relevant law can be "clearly

established" only when there exist cases with facts materially

similar to those of the case at hand, as evidenced by their

insistence that qualified immunity is due here because this court

has never addressed a factually similar case. This argument is

false in at least two circumstances: those in which the official

misconduct is more egregious than conduct of the same general type

that has been deemed illegal in other cases9 and those rare cases

in which application of the legal standard would necessarily lead

reasonable officials in the defendant's situation to but one

inevitable conclusion. It is the latter we are most interested in

here.

Lassiter explicitly left "open the possibility that

occasionally the words of a federal statute or federal

constitutional provision will be specific enough to establish the

law applicable to particular circumstances clearly and to overcome

qualified immunity even in the absence of case law." Lassiter, 28

F.3d at 1150 n. 4. It, of course, follows that if a federal

statute or federal constitutional provision can clearly establish

the law in the absence of case law, the Supreme Court's

9

See Dolihite v. Maughon, 74 F.3d 1027, 1048 (11th Cir.1996)

(examining the facts to determine whether or not the act alleged

in that case was "as egregious as [previous] cases, or more so").

In other words, if cases make clear that conduct x is

constitutionally or statutorily forbidden, then the law is

certainly "clearly established" with respect to conduct y if y is

worse than x relative to the reason x is unconstitutional or

otherwise illegal. And this is so even if—or especially if—the

facts of y differ considerably from the facts of x:

It begins to seem as if to survive a motion to dismiss

a suit on grounds of immunity the plaintiff must be

able to point to a previous case that differs only

trivially from his case. But this cannot be right.

The easiest cases don't even arise. There has never

been a section 1983 case accusing welfare officials of

selling foster children into slavery; it does not

follow that if such a case arose, the officials would

be immune from damages liability because no previous

case had found liability in those circumstances.

K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir.1990).

pronouncement of a constitutional test could also be specific

enough to do so.

That the law can be clearly established where the application

of a constitutional standard leads to an inevitable conclusion that

the acts are unconstitutional should be obvious given the purposes

of qualified immunity. If a government official with even the most

rudimentary, not to say reasonable, understanding of relevant law

would have no doubt that his conduct was unconstitutional or

otherwise illegal, then it would be perverse to immunize him from

liability simply because his behavior was more egregious than any

on record or because this court never before faced a similar set of

facts.

Our circuit recently applied this very reasoning. In

McMillian v. Johnson, 88 F.3d 1554 (11th Cir.1996), the plaintiff

contended that, by placing him on deathrow while he awaited trial,

local officials had violated his due process right to be free from

punishment as a pretrial detainee. The lack of cases with

materially similar facts did not preclude the McMillian court from

denying summary judgment to the defendants on qualified immunity

grounds. The court found that the Supreme Court's constitutional

directive as set forth in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct.

1861, 60 L.Ed.2d 447 (1979)—that officials cannot impose conditions

on pretrial detainees with an intent to punish—would have put any

reasonable official on notice that the acts alleged in McMillian

violated clearly established law:

[F]or the law to be clearly established, a court need not have

found the very action in question unlawful; what is essential

is that the action's unlawfulness be apparent in light of

pre-existing law. Jordan [v. Doe ], 38 F.3d [1559,] 1566 [

(11th Cir.1994) ]. We do not view the absence of a case

factually similar to the extraordinary allegations in this

case as an indication that the law was not clearly established

that confining a pretrial detainee on death row to punish him

is unconstitutional. Bell's prohibition on any pretrial

punishment, defined to include conditions imposed with an

intent to punish, should have made it obvious to all

reasonable officials in [defendants'] place that holding

[plaintiff] on death row to punish him before he was tried

violated [his] due process rights.

McMillian, 88 F.3d at 1565 (emphasis added). Thus, McMillian held

that, at least for purposes of the case before it, the Bell rule

clearly established the law.

Defendants next argue that even if a constitutional standard

might clearly establish the law in some circumstances, the relevant

law can virtually never be clearly established by cases that employ

balancing tests. ( New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct.

733, 83 L.Ed.2d 720 (1985), the case governing application of the

Fourth Amendment to school searches, uses a balancing test.) The

premise appears to be that balancing tests, by their nature, do not

stake out a bright enough line to put public officials on notice of

when their conduct violates a constitutional right.

The defendants' premise is flawed. It is indisputable that

cases applying the balancing test may well make its application to

allegedly unconstitutional conduct entirely determinate.10 Thus,

10

As Lassiter reiterated:

"If case law, in factual terms, has not staked out a

bright line, qualified immunity almost always protects

the defendant." Post v. City of Ft. Lauderdale, 7 F.3d

1552, 1557 (11th Cir.1993), modified, 14 F.3d 583 (11th

Cir.1994); accord Kelly v. Curtis, 21 F.3d 1544, 1554

(11th Cir.1994). "The line is not to be found in

abstractions—to act reasonably, to act with probable

cause, and so forth—but in studying how these

abstractions have been applied in concrete

circumstances." Barts [v. Joyner ], 865 F.2d [1187,]

there never has been any doubt that public officials can be

stripped of qualified immunity when, for instance, they conduct a

warrantless search that could not reasonably be thought supported

by probable cause or exigent circumstances.11 And, although it is

true that the mere statement of a balancing test (or other flexible

legal standard) will usually be insufficient to determine whether

particular conduct is clearly illegal, such a test, like other

legal standards or statutes, may be sufficient to clearly establish

the law in some, albeit rare, circumstances. See Oladeinde v. City

of Birmingham, 963 F.2d 1481, 1487 (11th Cir.1992) (concluding,

without citing a materially similar case, that application of the

balancing test in that case would lead to the "inevitable

conclusion" that defendants violated the Constitution) (Edmondson,

J.), cert. denied, 507 U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 153

1194 [ (11th Cir.1989), cert. denied, 493 U.S. 831, 110

S.Ct. 101, 107 L.Ed.2d 65 (1989) ].

Lassiter, 28 F.3d at 1150.

11

See, e.g., Anderson, 483 U.S. at 635, 107 S.Ct. at 3034

(assuming this to be true while emphasizing that the converse is

also true); Williamson v. Mills, 65 F.3d 155, 157-58 (11th

Cir.1995) (no qualified immunity for police officer on Fourth

Amendment false arrest claim where "pre-existing law compels the

conclusion" that officer lacked "even arguable probable cause");

Hartsfield v. Lemacks, 50 F.3d 950, 955 (11th Cir.1995) (no

qualified immunity for police officer who failed to make

reasonable effort to identify residence to be searched where "all

reasonable police officers should have known" that this violated

the law); Swint v. City of Wadley, 51 F.3d 988, 996-1000 (11th

Cir.1995) (no qualified immunity for police officers who

conducted warrantless searches and seizures without, in light of

the facts of analogous Fourth Amendment cases, "even arguable

probable cause"); Von Stein v. Brescher, 904 F.2d 572, 579 (11th

Cir.1990) ("[A]pplying the qualified immunity test in the context

of Plaintiff's alleged unlawful arrest, we must determine whether

reasonable officers in the same circumstances and possessing the

same knowledge as the Defendants could have believed that

probable cause existed to arrest Plaintiff....").

(1993).

It is, therefore, misleading to speak of a separate category

of cases in which there is no "bright-line" rule that "puts the

reasonable public [official] on notice of a constitutional

violation," but in which the official is nonetheless not entitled

to qualified immunity when application of a balancing test "would

lead to the inevitable conclusion" that the official's conduct was

unconstitutional. Dartland v. Metropolitan Dade County, 866 F.2d

1321, 1323 (11th Cir.1989) (acknowledging a balancing test will

lead to the inevitable conclusion that a defendant's conduct

violated clearly established law in some cases). If the facts of

other cases applying the balancing test or the test itself leads to

such an "inevitable conclusion," then the "bright-line" has been

drawn.

IV.

The qualified immunity question presented by this case is

whether Fourth Amendment law "clearly established" that the search

of Cassandra and Onieka conducted by Herring and Sirmon was

unconstitutional.12 The application of the Fourth Amendment to

searches of public school students is 13 governed by New Jersey v.

12

Harlow requires that the defendant official prove that "he

was acting within the scope of his discretionary authority when

the allegedly wrongful acts occurred," before the burden of proof

shifts to the plaintiff to demonstrate that the defendant

violated clearly established law. Zeigler v. Jackson, 716 F.2d

847, 849 (11th Cir.1983). Plaintiffs in this case concede that

Herring and Sirmon were acting within the scope of their

discretionary authority at the time of the search.

13

Although we use the present tense here, our analysis of

the relevant law is historical: we are interested in the state

of the law at the time of the alleged unconstitutional conduct,

May 1, 1992.

T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).

T.L.O., a 14-year-old high school student, was spotted by a teacher

smoking in the bathroom. When questioned by a school

administrator, T.L.O. denied smoking in the bathroom and claimed

that she did not smoke at all. The administrator demanded and

opened T.L.O.'s purse, discovering a pack of cigarettes. Reaching

into the purse for the cigarettes, the administrator noticed a

package of rolling papers. The administrator, suspecting that

further evidence of drug use might be found, proceeded to search

the purse thoroughly, revealing marijuana and various implements of

dealing the drug. 469 U.S. at 325-36, 105 S.Ct. at 735-36.

After deciding that the Fourth Amendment applies to searches

of public school students, the Court held that the search of

T.L.O.'s purse was not unreasonable. Balancing "the child's

interest in privacy" against "the substantial interest of teachers

and administrators in maintaining discipline in the classroom and

on school grounds," id. at 338-39, 105 S.Ct. at 741, the Court

concluded that the reasonableness of a school search was determined

by a two-part inquiry—whether it was (1) justified at its inception

and (2) permissible in scope—with no requirement of probable cause.

Id. at 339-43, 105 S.Ct. at 742-43. In particular, the Court

specified the following standards:

Under ordinary circumstances, 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. Such 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.

Id. at 341-42, 105 S.Ct. at 743.

We apply these precepts to the case at hand. In doing so, we

note that this circuit, before May 1, 1992, had not had the

opportunity to apply T.L.O.'s standards in factually similar

circumstances. The lack of Eleventh Circuit case law does not,

however, preclude us from determining whether the Supreme Court's

directive itself would have led reasonable school officials to the

inevitable conclusion that their behavior violated the

Constitution.

We will assume that the searches of Cassandra and Onieka in

this case comprised a single, step-by-step search that was

justified at its inception.14 For the purposes of this case, we

will assume that their classmate's accusation may have provided

"reasonable grounds" for searching Onieka's backpack and, perhaps,

even for requiring the children to remove their shoes and socks.

We will also assume that these first stages of the overall search

were reasonable in scope. It is the following stages, the restroom

searches, and their expansion in scope that create the glaring

problem.

Under T.L.O., the two restroom searches in which Cassandra and

14

Alternatively, we could conceptualize what occurred as a

series of separate searches, each requiring independent

justification at its inception. Cf. T.L.O., 469 U.S. at 341-49,

105 S.Ct. at 743-46 (Court treated the initial investigation of

T.L.O.'s purse for cigarettes and the continued investigation

after rolling papers were spotted as separate searches,

concluding that each was justified at its inception). As

indicated by our discussion later in the text where we address

whether the search was reasonable in scope, the two restroom

searches probably were not justified at their inceptions. We

choose not to rest our holding on this inquiry, however, because

the more blatant injustice in this case is the ultimate scope of

the search conducted by Herring and Sirmon.

Onieka were required to undress were unconstitutional unless they

were " "reasonably related in scope to the circumstances which

justified the interference in the first place.' " T.L.O., 469 U.S.

at 341, 105 S.Ct. at 743 (quoting Terry v. Ohio, 392 U.S. 1, 20, 88

S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)). More specifically, in

order for the scope of these searches to be permissible, "the

measures adopted" must have been "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, 105 S.Ct. at 743.

Thus, T.L.O. requires us to consider several factors in

determining whether the scope was permissible: whether there was

a reasonable relationship between the scope of the search (the

measures adopted) and the objectives of the search; the

intrusiveness of the search in light of the age and sex of the

student; and the intrusiveness of the search in light of the

nature of the infraction.

To determine whether the scope of a search is reasonably

related to its objectives, we must examine the measures adopted

15

here. Strip searches are among the most intrusive of searches.

This fact is self-evident. As this court, in the course of its

most thorough consideration of the constitutionality of strip

searching minors, has recognized: "It is axiomatic that a strip

15

We recognize that some types of strip searches, such as

body cavity searches, are even more intrusive than the search

conducted in this case. We also note that a strip search

performed by someone of a different gender from the person

searched will be considered significantly more intrusive than a

same-sex search.

search represents a serious intrusion upon personal rights. In

Mary Beth G. [v. City of Chicago, 723 F.2d 1263, 1272 (7th

Cir.1983) ], the court referred to strip searches as "demeaning,

dehumanizing, undignified, humiliating, terrifying, unpleasant,

embarrassing, repulsive, signifying degradation and submission.' "

Justice v. City of Peachtree City, 961 F.2d 188, 192 (11th

Cir.1992).16 Moreover, the perceived invasiveness and physical

intimidation intrinsic to strip searches may be exacerbated for

children. See Justice, 961 F.2d at 192 ("[c]hildren are especially

susceptible to possible traumas from strip searches") (internal

quotation marks omitted). Consequently, for the extreme invasion

of privacy inflicted by a strip search to be "reasonably related to

the objectives of the search," these objectives must carry

tremendous weight.17

16

Justice was decided a few days after the events at issue

here and, therefore, does not clearly establish the law in this

case for qualified immunity purposes. We cite the case not as an

illustration of clearly established law but as evidence that the

point at issue here—that strip searches are inherently among the

most intrusive of searches—is self-evident, as the Justice court

itself concluded.

17

See Cornfield v. Consolidated High Sch. Dist. No. 230, 991

F.2d 1316, 1321 (7th Cir.1993) ("[A]s the intrusiveness of the

search of a student intensifies, so too does the standard of

Fourth Amendment reasonableness. What may constitute reasonable

suspicion for a search of a locker or even a pocket or pocketbook

may fall well short of reasonableness for a nude search.").

T.L.O.'s sliding scale for reasonableness

determinations is an inherent part of Fourth Amendment

jurisprudence in those cases, like T.L.O., where, although

probable cause is not required, a "reasonableness" standard

still applies. T.L.O., 469 U.S. at 341, 105 S.Ct. at 742-

43, cites Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968). Terry teaches that "[t]he scope of the

search must be strictly tied to and justified by the

circumstances which rendered its initiation permissible."

392 U.S. at 19, 88 S.Ct. at 1878 (citations and internal

We next look at the objectives of the search and whether they

were reasonably related to the methods chosen, i.e., whether the

search was " "reasonably related in scope to the circumstances

which justified the interference in the first place.' " T.L.O.,

469 U.S. at 341, 105 S.Ct. at 743 (quoting Terry v. Ohio, 392 U.S.

1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)).18 In applying

this rule in Terry, the Court determined whether the search was

"confined in scope to an intrusion reasonably designed to discover"

the items sought and "confined ... strictly to what was minimally

necessary" to locate those items. Terry, 392 U.S. at 29-30, 88

S.Ct. at 1884-85.

We must decide, therefore, whether the extreme intrusiveness

involved in the strip searches here was "reasonably related" to the

objective of discovering the allegedly stolen cash. Because the

possibility of finding the cash in the two restroom searches was

slight (at best), we conclude that the extreme measures adopted

here were not reasonably related to the objectives of the search.

A second-grader reported $7 missing. Her teacher never asked

her whether she might have lost the money or forgotten that she

quotation marks omitted). See also, e.g., United States v.

McMurray, 747 F.2d 1417, 1420 (11th Cir.1984) (requiring, in

the customs context, that as intrusiveness increases, the

amount of suspicion necessary to justify the search must

correspondingly increase).

18

This standard also suggests that we look to the

seriousness of the offense or the danger the search seeks to

prevent to determine whether the methods were reasonably related

to the objectives of the search. For clarity's sake, we have

confined these considerations to that part of our opinion

discussing T.L.O.'s requirement that the search not be

"excessively intrusive in light of the ... nature of the

infraction." 469 U.S. at 342, 105 S.Ct. at 743. See discussion

infra and note 20.

spent it. Fannin simply asked another student whether she knew

anything about the missing money. That student reported that

Cassandra had taken the money and put it in Onieka's backpack.

Fannin never asked that student how she knew, whether she had seen

the event, or, if not, who told her about it. And there is no

evidence that Onieka or Cassandra had stolen anything before. The

failure to locate the money in Onieka's backpack, where it was

reportedly stashed, casts further doubt on the reliability of the

informant's story and, thus, the justification for the

investigation. Furthermore, Fannin did not check Cassandra's bag

or any other area of the room before handing the investigation over

to Herring.

When Herring accepted responsibility for the investigation,

she did not ask Fannin about any of the details, including who had

originally accused the girls or how the accuser knew the girls had

taken the money. All she knew was that the girls had been accused

of taking $7 and that they, in turn, accused each other and Anthony

Jemison of stealing the cash. With only this evidence in hand and

without seeking any specifics from the children about the theft,

she made the girls and Anthony remove their shoes and socks.19 When

the money was not found there, she proceeded, with Sirmon, to take

the girls to the restroom to search them even though no one had

reported that either of the girls had hidden the money in her

underclothing and there was no evidence that the girls had ever

hidden money or contraband in their clothing before. The entire

19

It is at least questionable whether Herring had reasonable

grounds for requiring Cassandra and Onieka to remove their shoes

and socks.

restroom search was apparently premised on the fact that one of the

girls had been to the restroom before the money was reported

missing. If this were the reason for concluding the money was

hidden in one of the girl's underclothing, Sirmon and Herring might

have had arguable, albeit slight, grounds for believing that a

first search of that girl's underclothing would lead to evidence of

the theft. There were no grounds, however, for taking both girls

to the restroom.

After finding nothing in the girls' underpants during the

first search, Sirmon and Herring took them to the restroom a second

time. If the method chosen in the first restroom search was highly

unlikely to lead to evidence, then requiring the girls to undress

a second time was completely unlikely to end in discovery of the

cash. Having looked in the girls' underpants, the probability that

the money could have been hidden anywhere else on the children's

persons (especially after a walk to and from the principal's

office) was almost nil. Thus, even at this stage of the inquiry it

is difficult to believe that any reasonable school official could

surmise that it was constitutionally permissible to conduct these

two highly intrusive searches where there was such a negligible

possibility that any evidence of the infraction would be found.

T.L.O., however, gives us further guidance.

Under T.L.O., the nature of the infraction is another factor

to be weighed in determining the permissible intrusiveness or scope

of a search. One can imagine the range of possible school-place

infractions as a spectrum with the most serious infractions falling

at one end. While reasonable school officials would disagree about

exactly where the infraction at issue here might fall along the

spectrum, the following generalizations are certain. It is obvious

that an infraction that presents an imminent threat of serious

harm—for example, possession of weapons or other dangerous

contraband—would be the most serious infractions in the school

context.20 Thus, these offenses would exist at one end of the

20

In fact, strip searches are probably only permissible in

the school setting, if permissible at all, where there is a

threat of imminent, serious harm. Writing separately in T.L.O.,

Justice Stevens made clear that the point of the majority's

Fourth Amendment standard was to avoid litigation over the

routine, limited searches necessary to maintain school

discipline, while "prohibit[ing] obviously unreasonable

intrusions of young adults' privacy." 469 U.S. at 381, 105 S.Ct.

at 764. To illustrate the type of egregious school search that

would noncontroversially violate the Fourth Amendment, Justice

Stevens gave this example:

One thing is clear under any standard—the shocking

strip searches that are described in some cases have no

place in the schoolhouse. See Doe v. Renfrow, 631 F.2d

91, 92-93 (CA7 1980) ("It does not require a

constitutional scholar to conclude that a nude search

of a 13-year-old child is an invasion of constitutional

rights of some magnitude"), cert. denied, 451 U.S.

1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981); Bellnier

v. Lund, 438 F.Supp. 47 (NDNY 1977); People v. D., 34

N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466 (1974);

M.J. v. State, 399 So.2d 996 (Fla.App.1981). To the

extent that deeply intrusive searches are ever

reasonable outside the custodial context, it surely

must only be to prevent imminent, and serious harm.

Id. at 382 n. 25, 105 S.Ct. at 764 n. 25 (Stevens, J.,

concurring in part and dissenting in part).

Eleventh Circuit caselaw confirms Justice Stevens's

understanding of the T.L.O. standard. Although no case

involving a student strip search had been presented to this

court before the incidents in this case occurred, less than

two weeks after this case was decided, we took the

opportunity to express our view of such searches. In

Justice, this court held that law enforcement officials may

subject a juvenile who is lawfully in custody to a limited

strip search based upon reasonable suspicion that he or she

is concealing a weapon or drugs. 961 F.2d at 193. In

reaching this conclusion, however, the Justice court was

careful to emphasize the limited scope of its holding and to

distinguish other situations in which a strip search would

be unconstitutional. Because the strip search in Justice

was performed by law enforcement officers on a person

lawfully in custody, the court considered itself bound by

Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447

(1979), which had held that the unique security concerns of

detention facilities could justify strip searches of

pretrial detainees. Justice, 961 F.2d at 193. On the other

hand, in stressing the intrusiveness of strip searches, the

Justice court pointed to a context in which a strip search

would certainly violate the Fourth Amendment: when it is

inflicted on a student in a situation that presents no

danger of imminent and serious harm.

Picking up where Justice Stevens in T.L.O. left off,

the Justice court favorably cited and discussed Doe v.

Renfrow, 631 F.2d 91 (7th Cir.1980), cert. denied, 451 U.S.

1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981). 961 F.2d at

193. The Seventh Circuit in Doe held that a strip search of

a thirteen-year-old student by school officials without

reasonable suspicion to believe she possessed drugs clearly

violated the Fourth Amendment, foreclosing qualified

immunity for the school officials. Justice reaffirms and

embraces this conclusion as obvious:

[Doe held that] the strip search of a thirteen-year-old

female without "reasonable cause" to believe she

possessed contraband on her person constituted an

"invasion of constitutional rights of some magnitude."

Doe, 631 F.2d at 93. The Seventh Circuit then

stated[,] "More than that: it is a violation of any

known principle of human decency.... [T]he conduct

herein described exceeded the "bounds of reason' by two

and a half country miles." Doe, 631 F.2d at 93.

Id. (bracketed alterations added).

Although these cases strongly support our position, we

do not rely on them in reaching our holding in this case.

Even courts determining the constitutionality of strip

searches of post-arrest detainees have looked to the

probability that the detainee possesses dangerous

contraband. See, e.g., Masters v. Crouch, 872 F.2d 1248,

1253-55 (6th Cir.) (strip search of person arrested for

traffic violation or other minor offense not associated with

violence unreasonable absent individualized reasonable

suspicion that arrestee is carrying a weapon or contraband),

cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506

(1989); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985)

(strip search of person arrested for refusing to sign

spectrum. Thefts of valuable items or large sums of money would

fall a little more toward the center of the spectrum. Thefts of

small sums of money or less valuable items and possession of minor,

nondangerous contraband would fall toward the opposite extreme of

the spectrum. Such infractions would seldom, and probably never,

justify the most intrusive searches. It follows that the

infraction at issue here, the theft of $7, while perhaps not a

trespass to be taken lightly, is, nonetheless, an offense which

would not justify a highly intrusive search, and certainly not

where the likelihood of finding evidence of the offense was as weak

as it was here.

T.L.O. also requires us to take the student's age into

consideration. The students in this case were extremely young,

only second graders. The Supreme Court did not elaborate on how we

should consider age. See, e.g., Cornfield, 991 F.2d at 1321

(discussing issue). Nevertheless, regardless of a student's age,

T.L.O. forbids school officials from undertaking the most intrusive

of searches where the infraction is relatively minor and presents

summons regarding leash law violation unreasonable);

Stewart v. Lubbock County, 767 F.2d 153 (5th Cir.1985)

(strip searches of minor offenders awaiting bond

unreasonable absent reasonable suspicion that they possess

weapons or contraband), cert. denied, 475 U.S. 1066, 106

S.Ct. 1378, 89 L.Ed.2d 604 (1986); Mary Beth G. v. Chicago,

723 F.2d 1263, 1268-73, 1273 (7th Cir.1983) ("[E]nsuring the

security needs of the City by strip searching ... was

unreasonable without a reasonable suspicion by the

authorities that either of the twin dangers of concealing

weapons or contraband existed."); Logan v. Shealy, 660 F.2d

1007, 1013 (4th Cir.1981) (strip search of arrested drunk

driver unreasonable given that offense not associated with

possession of weapons or contraband and no cause to believe

that individual arrestee possessed either), cert. denied,

455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982).

no threat of imminent danger and where it is highly unlikely that

the search will turn up evidence of the infraction. To conclude

otherwise would be to read T.L.O. such that it does not protect

elementary school students at all.

Considered together, the factors identified in T.L.O.—the

glaring disproportion between the objectives of the searches and

the measures adopted and the trivial nature of the infraction—point

unequivocally to the unreasonableness of the two restroom searches

at issue here. Even if the T.L.O. reasonableness standard is

indeterminate for a broad category of school searches, it

indisputably prohibits strip searches of students in this

situation.21 Sirmon and Herring, therefore, are not entitled to

qualified immunity, because the T.L.O. standard would have led any

reasonable school official in their circumstances to the inevitable

conclusion that the conduct charged here violated the Constitution.

The line drawn in T.L.O. may not be bright enough to dictate

the results of cases closer to the line, for example, cases in

21

Although we do not depend on the case law of other

circuits in reaching this holding, we note that other courts have

reached the same conclusion. See Tarter v. Raybuck, 742 F.2d

977, 982 (6th Cir.1984) ("Thus, for example, the authority of the

school official [to maintain school discipline and order] would

not justify a degrading body cavity search of a youth in order to

determine whether a student was in possession of contraband in

violation of school rules."), cert. denied, 470 U.S. 1051, 105

S.Ct. 1749, 84 L.Ed.2d 814 (1985); Oliver v. McClung, 919

F.Supp. 1206, 1216-19 (N.D.Ind.1995) (in light of Doe v. Renfrow

and T.L.O., law clearly established that strip search of

seventh-grade girls seeking missing $4.50 violates Fourth

Amendment); Bellnier v. Lund, 438 F.Supp. 47, 52-54, 54

(N.D.N.Y.1977) (strip searches of students in fifth grade class

seeking missing $3 unreasonable "in view of the relatively slight

danger of the conduct involved (as opposed to drug possession,

for example), the extent of the search, and the age of the

students involved").

which there is a reasonable suspicion that a student has hidden on

his or her person drugs or weapons.22 The facts presented at the

summary judgment stage in the case now before us, however, are

clearly far to the unconstitutional side of that line. Cassandra

and Onieka were eight-year-old elementary school students. They

were accused of stealing $7 that may or may not have been missing,

solely on the basis of the accusation of a second-grade classmate;

there was no evidence that they had ever before stolen money or

hidden anything in their clothing. Even if the girls had possessed

the cash (which they apparently did not), their infraction would

have threatened no imminent or serious harm. Nevertheless, even

after investigations of Onieka's backpack and both girls' shoes and

socks had revealed no money and without making any further

inquiries into the matter, Herring and Sirmon twice forced

Cassandra and Onieka to undress and submit to inspection.

Reasonable teachers or school officials in their positions could

not have believed that the Fourth Amendment, in light of T.L.O.,

would allow such a search. We conclude, based on the facts

presented at the summary judgment stage, that Herring and Sirmon

acted in blatant disregard of the Fourth Amendment. Consequently,

they are not entitled to qualified immunity.

V.

22

See Cornfield v. Consolidated High Sch. Dist. No. 230, 991

F.2d 1316, 1320-23, 1320 (7th Cir.1993) (holding strip search of

high school student based on reasonable suspicion that he

possessed drugs does not violate Fourth Amendment, while making

clear that a "a highly intrusive search in response to a minor

infraction" would be unconstitutional under T.L.O.); Williams v.

Ellington, 936 F.2d 881 (6th Cir.1991) (granting qualified

immunity to school officials who strip searched two high school

students for drugs on at least reasonable suspicion).

The district court's orders granting summary judgment for

defendants Herring and Sirmon on the basis of qualified immunity

from plaintiffs' § 1983 Fourth Amendment claims are REVERSED. The

district court's other summary judgment orders in this case are

AFFIRMED.

BIRCH, Circuit Judge, dissenting:

I respectfully dissent. Although I am outraged by the conduct

of the schoolteachers in this case and am convinced that they left

their better judgment at home on May 1, 1992, I cannot conclude

that these individuals understood or should have understood that

the strip searches that they conducted were violative of the

clearly established Fourth Amendment rights of these second-grade

students. While it is easy to second-guess school personnel in a

courthouse far removed from the tumult and tumble of the work-a-day

world of the schoolhouse with the aid of twenty-twenty hindsight,

the majority does a grave disservice to our law and to public

servants in determining that these individuals violated the

exceedingly limited constitutional rights of schoolchildren.1 See

1

The "special characteristics of elementary and secondary

schools ... make it unnecessary to afford students the same

constitutional protections granted adults and juveniles in a

nonschool setting." New Jersey v. T.L.O., 469 U.S. 325, 348, 105

S.Ct. 733, 746, 83 L.Ed.2d 720 (1985) (Powell, J., concurring).

Because of their close association with each other and the

necessary familiarity of teachers with students and authority

over them, such schoolchildren "have a lesser expectation of

privacy than members of the population generally." Id. The

Court has stated that the T.L.O. decision determined that the

"State's power over schoolchildren is formally no more than the

delegated power of their parents, ... but indeed emphasized, that

the nature of that power is custodial and tutelary, permitting a

degree of supervision and control that could not be exercised

over free adults." Vernonia School Dist. 47J v. Acton, --- U.S.

----, ----, 115 S.Ct. 2386, 2392, 132 L.Ed.2d 564 (1995)

(upholding urinalysis drug testing for grade and high school

C.B. ex rel. Breeding v. Driscoll, 82 F.3d 383, 385 (11th

Cir.1996). Furthermore, no policy had been formulated by the

Talladega City Board of Education or the Graham Elementary School

regarding student searches during the 1991-1992 school year.

Stolen money previously had been recovered through searches of

2

students' attire at Graham Elementary School. Moreover, as the

district judge ascertained, there was no binding, clearly

students participating in athletic programs, including reasoning

that public school children are required to have vaccinations and

physical examinations).

2

The record reveals at least two incidents at Graham

Elementary School prior to the searches challenged in this case

where students, suspected of stealing money, were required to

remove their shoes and socks with the result that the money was

found. One involved a black, male student accused of stealing

$5; the principal had him remove his shoes and socks and located

the money. Another instance concerned a white, male student

accused of stealing $.50; the missing change was discovered when

the student was asked to remove his shoes and socks. The record

also includes evidence of a search for a missing calculator where

a number of students, both black and white, were instructed to

remove their jackets so that their pockets could be searched.

Additionally, there were incidents of students removing shoes and

socks, untucking and shaking their shirts, unzipping their pants,

and one student stripping entirely in the presence of school

officials, a police officer, and his mother to search for

contraband. Given this background of previously locating stolen

money in students' attire pursuant to varying degrees of

supervised undress and, particularly, the location of stolen

money after having suspected students remove their shoes and

socks, the challenged searches conducted by the schoolteachers in

this case were not totally unprecedented, as the majority

suggests. Majority at 3607 n. 19; see Driscoll, 82 F.3d at 388

(finding that T.L.O. held that "school officials need only

"reasonable grounds for suspecting' that a search will turn up

evidence that the student has violated either the law or school

rules" (quoting T.L.O., 469 U.S. at 342, 105 S.Ct. at 743));

Alabama Student Party v. Student Gov't Ass'n of the Univ. of

Alabama, 867 F.2d 1344, 1346 (11th Cir.1989) (acknowledging that

T.L.O. requires easing of the restrictions generally applicable

to the Fourth Amendment in a school context); see also Lenz v.

Winburn, 51 F.3d 1540, 1551 (11th Cir.1995) (recognizing that the

reasonableness or unreasonableness of a search under the Fourth

Amendment is determined on a case-by-case basis (citing T.L.O.,

469 U.S. at 337, 105 S.Ct. at 740)).

established law that these schoolteachers violated in conducting

the challenged strip searches.

"For the law to be clearly established to the point that

qualified immunity does not apply, the law must have earlier been

developed in such a concrete and factually defined context to make

it obvious to all reasonable government actors, in the defendant's

place, that "what he is doing' violates federal law."3 Lassiter v.

Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994) (en banc)

(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,

3039, 97 L.Ed.2d 523 (1987)) (emphasis added). The Lassiter court

admonished that the facts of cases relied upon as precedent must be

"materially similar"; "[p]ublic officials are not obligated to be

creative or imaginative in drawing analogies from previously

decided cases. " Id. at 1150 (quoting Adams v. St. Lucie County

Sheriff's Dept., 962 F.2d 1563, 1575 (11th Cir.1992) (Edmondson,

J., dissenting), adopted en banc, 998 F.2d 923 (11th Cir.1993) (per

curiam)) (alteration in original). If the standard for qualified

immunity were whether preexisting law had established that the

strip searches by the schoolteachers in this case, when they

occurred, might have been unlawful under federal law, then the

majority opinion might be correct. That standard, however,—the "it

might be unlawful" standard—according to the Supreme Court and

repeated decisions of this court is not the proper standard. See

3

"The qualified immunity standard "gives ample room for

mistaken judgments' by protecting "all but the plainly

incompetent or those who knowingly violate the law.' " Hunter v.

Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589

(1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343, 106

S.Ct. 1092, 1096, 1097, 89 L.Ed.2d 271 (1986)).

Muhammad v. Wainwright, 839 F.2d 1422, 1425 (11th Cir.1987) ("[A]t

the relevant time, defendants, at best, had only some reason to

suspect that their actions might be unlawful. Such a suspicion is

inconsistent with the "clearly established' standard enunciated by

Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396

(1982) ] and its progeny."); see also Davis v. Scherer, 468 U.S.

183, 196, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984) ("[O]fficials

should not err always on the side of caution."); accord Lassiter,

28 F.3d at 1149; Lenz v. Winburn, 51 F.3d 1540, 1551 (11th

Cir.1995).

Indeterminacies, speculations, and predictions have no place

in our qualified immunity law. Elementary schoolteachers,

nonlawyers whose primary responsibilities are education and the

daily administration of their classrooms, cannot be required to

foresee how the Eleventh Circuit would apply Supreme Court

precedent and decide this particular factual situation if

presented. That would be not only an unprecedented but also an

unreasonable standard. Accordingly, the majority's reliance on

New

Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720

(1985), involving the purse search of a high school student and the

discovery of contraband, is misplaced because T.L.O. is not

factually similar to the strip searches that we review and cannot

be clearly established law to resolve this case, much less dicta in

T.L.O.

Because of its "practical application," qualified immunity is

judged by the conduct of government personnel at the time that they

acted, "not by hindsight, based on later events." Lassiter, 28

F.3d at 1150; see Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct.

534, 537, 116 L.Ed.2d 589 (1991) (per curiam) ("[T]he court should

ask whether the agents acted reasonably under settled law in the

circumstances, not whether another reasonable, or more reasonable,

interpretation of the events can be constructed five years after

the fact." (emphasis added)). On May 1, 1992, the date of the

strip searches at issue in this case, there was no clearly

established law regarding the unconstitutionality of strip searches

of schoolchildren from the Supreme Court, the Eleventh Circuit, or

the Alabama Supreme Court.4 See Courson v. McMillian, 939 F.2d

1479, 1498 n. 32 (11th Cir.1991) (holding that "clearly

established" law for deciding qualified immunity in this circuit

consists of effective decisions at the time of the challenged

conduct by the United States Supreme Court, the Eleventh Circuit

Court of Appeals, or the highest state court in the state where the

case originated); accord Hamilton ex rel. Hamilton v. Cannon, 80

F.3d 1525, 1532 n. 7 (11th Cir.1996); Haygood v. Johnson, 70 F.3d

92, 95 (11th Cir.1995) (per curiam); D'Aguanno v. Gallagher, 50

F.3d 877, 881 n. 6 (11th Cir.1995).

Whatever bolstering of its decision the majority seeks to

accomplish by the repetition of dicta in Justice v. City of

Peachtree City, 961 F.2d 188 (11th Cir.1992), decided on May 14,

4

The majority appears to be "interested in the state of the

law at the time of the alleged unconstitutional conduct, May 1,

1992." Majority at 3605 n. 13. Yet, the majority concedes that

"this circuit, before May 1, 1992, had not had the opportunity to

apply T.L.O. 's standards in factually similar circumstances,"

id. at 3605, and that "no case involving a student strip search

had been presented to this court before the incidents in this

case occurred," id. at 3608-09 n. 20.

1992, is inappropriate. See Majority at 3606, 3608-09 n. 20. Not

only did that case involve the lawful, custodial strip search of a

female high school student upon reasonable suspicion that she

possessed contraband, but also Justice could not have been clearly

established law for the subject strip searches of these

second-graders that occurred thirteen days earlier. Equally

inapplicable under our circuit definition of clearly established

law as to the date in question is nonbinding case law of other

federal circuit and district courts. Cf. id. at 3604 ("If the

facts of other cases applying the balancing test or the test itself

leads to such an "inevitable conclusion,' then the "bright-line'

has been drawn."); see id. at 3609-10 & n. 21.

I agree that, for preexisting law to establish that a

particular act is unlawful, it is not essential that the facts of

the earlier case be identical to the facts surrounding the conduct

that is being challenged as unlawful. For example, if a precedent

holds that, under certain circumstances, it is unlawfully cruel to

cut off two fingers, that precedent clearly would establish that it

would be unlawful to cut off three fingers under the same

circumstances. This case, however, has nothing to do with that

kind of case law.5 In this case, no precedent is factually close

enough to have given much guidance to these schoolteachers under

the circumstances. Sitting en banc, we have said—over Judge

5

The majority observes that some conduct is so bad that no

case needs to have recognized previously that such conduct

violates federal law. Accepting this idea in principle, I am

comfortable in saying that I think we face in this case no great

act of pure evil (such as, to use the majority's example,

slavery), that might trigger this rare and narrow exception to

the extremely broad rule.

Kravitch's dissent—that public officials need not be able to draw

analogies from earlier cases to avoid personal liability for

damages. Adams, 998 F.2d at 923. For elementary schoolteachers to

be competent in their jobs, it is not yet required that they think

like a constitutional lawyer, much less like an activist one.

Moreover, we have said repeatedly en banc—again in the face of

Judge Kravitch's dissents—that the cases serving as precedent,

those that supposedly established the law applicable to the

circumstances in which a defendant public official found himself,

must be materially similar factually to the circumstances

confronting the defendant public official if that earlier case law

is to guide public officials sufficiently to place them in jeopardy

of losing immunity. See Lassiter, 28 F.3d at 1149-51; Adams, 998

F.2d at 923.

No decision cited in the majority opinion provides adequate

precedent as clearly established law to guide the conduct of the

schoolteachers in this case. Unlike many cases cited by the

majority to support its decision, this case does not involve police

officers or law enforcement. This case is about schools.

Significantly, it concerns a specific type of school, an elementary

school.

A high school and an elementary school are materially

different places. The children in an elementary school are

considerably younger and less mature, including less physically

mature, than high school students. In elementary schools, the

relationship between the teacher and students, who are young

children, is much closer to that of parent and child than in high

schools, where the students are approaching adulthood. In the

first two or three grades in elementary school, the notion of in

loco parentis, where teachers stand in the place of parents, has

real meaning and a long and venerable tradition. 6 For example,

many a young schoolchild properly has been helped to change

clothes, consisting of putting on or taking off clothes, by a

schoolteacher.

The Supreme Court's T.L.O. decision involved a teenage high

school student, obvious violation of the established school rule

against smoking, and a consequent purse search revealing

contraband. These facts materially distinguish T.L.O. from the

case before us. The Supreme Court's opinion in T.L.O. was written

against the background of the facts before it. While T.L.O.

contains some general language to guide trial courts faced with

searches by school employees, that standard is a broadly composed

one: basically, it is a reasonableness test. The "reasonable

under all the circumstances" rule in T.L.O. gives little practical

guidance to teachers facing facts unlike those in T.L.O. As we

6

The Court has recognized that "school authorities act[ ] in

loco parentis." Bethel School Dist. No. 403 v. Fraser, 478 U.S.

675, 684, 106 S.Ct. 3159, 3165, 92 L.Ed.2d 549 (1986).

Whether it should or should not do so, the American

community calls upon its schools to, in substance,

stand in loco parentis to its children for many hours

of each school week.

Citizens expect and demand that their children be

physically safe in the schools to whose supervision

they are consigned, and the citizenry is outraged if

the schools are less than safe and orderly.

Ferrell v. Dallas Indep. School Dist., 392 F.2d 697, 704

(5th Cir.) (Godbold, J., concurring), cert. denied, 393 U.S.

856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968).

explained en banc in Lassiter, an abstract standard is insufficient

guidance until trial courts have demonstrated its application in

various factual situations. Lassiter, 28 F.3d at 1150.

The facts of T.L.O. are too different from this case to have

dictated to reasonable elementary schoolteachers that the searches

conducted in this case already had been clearly established as

unlawful. This conclusion, that is, that preexisting law did not

dictate to reasonable teachers that their conduct in this case was

unconstitutional, seems particularly strong upon consideration that

the Supreme Court, aside from college and university cases, has

never held any search based on individualized suspicions of a

student by schoolteachers, including the T.L.O. search, to be

unlawful under federal law, and neither have we or the former Fifth

Circuit. Consequently, no bright lines had been delineated to help

the teachers in this case to know what to do.7

While I agree that, for preexisting law to dictate a result in

a particular case, the facts need not be exactly the same, they

must be considerably closer than the analogies that the majority

uses. Clearly established preexisting law is a pragmatic concept,

which the Supreme Court has stressed repeatedly. In my judgment,

clearly established law means what it says and our circuit cases

teach that it means more than the majority of this panel seems to

think that it means.

In conducting the challenged searches in this case, the

7

Clearly, the facts and law in this case do not support the

majority's decision that the elementary schoolteachers were not

entitled to qualified immunity because their challenged searches

were "in blatant disregard of the Fourth Amendment." Majority at

3610.

schoolteachers might not have exercised good judgment or done what

was right, but that is a very different concept from concluding

that they violated clearly established federal law. The

schoolteachers' searches at issue in this case even may have

violated the Fourth Amendment, but that conclusion is not

unquestionably clear to me under our present circuit law.8 It does

8

After all, theft of money is hardly a trivial matter, and

there was cause for suspicion. Nevertheless, the schoolteachers

and the students were female, and the search was done in a

relatively private place, the girls' restroom. I hasten to

emphasize that conduct that may be constitutional also may be

repugnant, ill-advised, and even outrageous. The strip searches

in this case may have been offensive, but they did not violate

clearly established constitutional law, when they occurred.

The core of the majority's opinion seems to be an

effort to diminish the importance of this court's en banc

decision in Lassiter. I cannot agree with this construction

of a guiding circuit precedent. Inherently, en banc

decisions are extremely important. This court does not go

en banc lightly. We do so "(1) when consideration by the

full court is necessary to secure or maintain uniformity of

its decisions, or (2) when the proceeding involves a

question of exceptional importance." Fed.R.App.P. 35(a). I

believe that Lassiter went en banc on both grounds.

The majority stresses that Lassiter represented no "sea

change" in the law of qualified immunity. Majority at 3601.

That statement is absolutely correct because the great

majority of the judges of this circuit regularly were

applying the principles set forth in Lassiter before

Lassiter was published. See Lassiter, 28 F.3d at 1149 ("No

new rules need to be announced to decide this case. But,

for emphasis, we restate principles which do govern

qualified immunity cases."). A few judges of this court,

however, were taking a significantly different approach to

qualified immunity, an approach which was substantially more

hostile to public official defendants. In this sense,

Lassiter marks a substantial change for those judges who

thought that, and acted as if, the law was something

different from the law that Lassiter reiterates.

Lassiter seems particularly important when one realizes

that this court had made a previous en banc effort to

declare the law of the circuit not long before. Adams, 998

F.2d at 923. Informed observers refer to Lassiter as Adams

II. When Adams proved ineffective to secure uniformity, the

seem plain to me, given T.L.O.'s sliding scale of reasonableness in

view of all of the circumstances and the specific situation

confronting the school personnel in this case, that by no means was

it already clearly established when the school personnel acted that

their conduct was unlawful. To say otherwise is, I respectfully

submit, to demote a common sense safeguard—clearly established

law—to a legal fiction.

While explaining its decision, the majority has written many

statements that conflict with the law of this circuit, as I

understand it. I am not going to bicker, however. Whatever our

precedents say, they speak for themselves. Looking chiefly at

Lassiter, the district judge believed that the law of this circuit

required him to grant immunity. I think that the judge was right,

and I would affirm the district court's judgment.

court promptly went en banc again and produced Lassiter with

its stronger and more definitive statements. In my view,

Lassiter is the law.