Jenkins v. Talladega City Bd. of Ed

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 95-6243

_______________

D. C. Docket No. 94-PT-739-E

CASSANDRA JENKINS, a minor, by her mother and

next friend, Sandra Hall; ONEIKA MCKENZIE, a

minor, by her mother and next friend, Elizabeth

McKenzie,

Plaintiffs-Appellants,

versus

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.

______________________________

Appeal from the United States District Court

for the Northern District of Alabama

______________________________

(June 2, 1997)

Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX,

BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges, and

KRAVITCH, Senior Circuit Judge*.

*

Senior U. S. Circuit Judge Phyllis A. Kravitch elected to

participate in this decision pursuant to 28 U.S.C. § 46(c).

BIRCH, Circuit Judge:

This case involves the application of the

well-established precepts of qualified immunity

to a specific set of facts that concern a search

of elementary school-children who were

suspected of having stolen money from a

classmate. The district court granted summary

judgment in favor of the defendants on all

claims. For the reasons that follow, we affirm.

I. BACKGROUND

Certain critical facts in this case are

disputed by the parties. For the limited purpose

of our analysis of the issue of qualified immunity

at the summary judgment stage, we are bound

to view the facts in the light most favorable to

the plaintiffs. United States v. Diebold, Inc.,

369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed.

2d 176 (1962) (per curiam). In 1992, at the

time the events giving rise to this action

2

occurred, Cassandra Jenkins and Oneika

McKenzie were eight-year-old second graders

in elementary school in Talladega, Alabama.

On the afternoon of May 1, one of Jenkins' and

McKenzie's classmates informed their teacher,

Hilda Fannin, that $7.00 was missing from her

purse. Based on a student’s accusation that

Jenkins had placed the money in McKenzie’s

backpack, Fannin initially searched the

backpack but failed to find the money there.

Several students subsequently implicated

Jenkins, McKenzie, and a male classmate,

Anthony Jamerson, in the alleged theft. Fannin

took the children into the hallway and

questioned them regarding the money, at which

time Jenkins and McKenzie mutually accused

each other of the theft. At the suggestion of

another teacher, Susannah Herring, Fannin

asked the students to remove their socks and

shoes. When these efforts failed to reveal the

3

allegedly stolen money, Herring, along with a

guidance counselor, Melba Sirmon, who had by

this time become involved in the situation,

directed Jenkins and McKenzie to the girls'

restroom. Jenkins testified that Herring ordered

them to enter the bathroom stalls and come

back out with their underpants down to their

ankles. McKenzie offered conflicting testimony

as to whether they were instructed to put their

clothes back on while inside the bathroom stall

or exit the stalls unclothed. Jenkins' and

McKenzie's testimony is consistent, however,

with respect to the assertion that they were

asked to remove their clothes while inside the

restroom.

Having again failed to discover the missing

money, Herring and Sirmon brought Jenkins,

McKenzie, and Jamerson to the office of the

school principal, Crawford Nelson. In response

to Nelson's inquiries regarding the money,

4

Jamerson volunteered that it was hidden behind

a file cabinet. A search in that location failed to

uncover the money. Jenkins and McKenzie

both contend that Herring then escorted them to

the restroom a second time where they were

again asked to remove their clothes in an effort

to locate the $7.00.

The parents of Jenkins and McKenzie filed

a complaint on their behalf against the

Talladega City Board of Education and nine

individual defendants. In the complaint, the

plaintiffs alleged, pursuant to 42 U.S.C. § 1983,

that Jenkins and McKenzie had been strip-

searched in violation of their rights provided

under the Fourth and Fourteenth Amendments.

In addition, the complaint set forth violations of

Title VI of the Civil Rights Act of 1964, 42

U.S.C. § 2000(d), Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681, and

Alabama law. In a series of memorandum

5

opinions, the district court dismissed all claims

for money damages and granted summary

judgment in favor of (1) all defendants on

plaintiffs' Title VI and Title IX claims; (2) the

Board of Education with respect to the plaintiffs'

§ 1983 claims; (3) all individually-named

defendants on the basis of qualified immunity;

and (4) all defendants on all remaining federal

claims for injunctive and declaratory relief, and

all state law claims. We affirm the district

court's disposition of this case in its entirety.

Because we believe that the only issue raised

in this appeal that warrants further examination

concerns the court's determination that the

individual defendants are entitled to qualified

immunity with respect to the plaintiffs' Fourth

Amendment § 1983 claims, our discussion is

confined solely to this issue.

II. DISCUSSION

6

The principles of qualified immunity set out

in Lassiter v. Alabama A & M Univ., 28 F.3d

1146 (11th Cir. 1994) (en banc), continue to be

the guiding directives for deciding cases

involving the question of a state actor's

entitlement to qualified immunity in this circuit.

Although these rules have been identified on

numerous occasions, we reiterate some of

them here to establish and clarify the

framework that necessarily informs our analysis

of the issue before us. "Qualified immunity

protects government officials performing

discretionary functions from civil trials (and the

other burdens of litigation, including discovery)

and from liability if their conduct violates no

'clearly established statutory or constitutional

rights of which a reasonable person would have

known.'" Lassiter, 28 F.3d at 1149 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.

Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). "For

7

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." Id. (citing Anderson v.

Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034,

3039, 97 L. Ed. 2d 523 (1987)). “For 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, reasonable

government agent that what defendant is doing

violates federal law in the circumstances.”

Lassiter, 28 F.3d at 1150. Plaintiffs submit

that on May 1, 1992, the law regarding the

constitutionally permissible scope of a search of

students while attending school was so clearly

defined that these defendants were on notice

8

that the type of search conducted in this

instance violated Jenkins' and McKenzie's

rights guaranteed by the Fourth Amendment.

In support of this proposition, plaintiffs point to

the Supreme Court's application of the Fourth

Amendment in the context of school searches

in New Jersey v. T.L.O., 469 U.S. 325, 105 S.

Ct. 733, 83 L. Ed. 2d 720 (1985).1 T.L.O

involved the search of a fourteen-year-old high

school student's purse after the student was

discovered smoking in the lavatory in violation

of school rules. More specifically, a teacher

found T.L.O. and a companion smoking in the

restroom and took them to the principal's office

where, in the presence of the assistant vice

principal, the companion admitted -- and T.L.O

1

The parties agree that, at the time the events giving rise to

this action occurred, T.L.O. was the only case that had addressed

with any specificity the Fourth Amendment implications of school

searches. As a result, it is uncontested that, under the facts of

this case, T.L.O. is the sole precedent that potentially could have

clearly established the law for purposes of qualified immunity

analysis.

9

denied -- having committed the infraction with

which they were accused. The vice principal

proceeded to examine T.L.O.'s purse to

ascertain whether it contained cigarettes.

When the search revealed a pack of cigarettes,

the vice principal removed the pack and

observed within the purse a package of rolling

papers. Further exploration revealed the

presence of a small quantity of marijuana along

with several items of drug paraphernalia.

The Supreme Court determined at the

outset that the Fourth Amendment applied to

searches conducted by school authorities.

T.L.O., 469 U.S. at 335, 105 S. Ct. at 740. The

Court, however, rejected the proposition that

searches within the school setting must be

based on probable cause as that term is

understood in the context of Fourth Amendment

jurisprudence; rather, the Court articulated the

following standard to guide a pragmatic

10

analysis of Fourth Amendment claims of this

sort:

[T]he legality of a search of a

student should depend simply on the

reasonableness, under all the

circumstances, of the search.

Determining the reasonableness of

any search involves a twofold

inquiry: first, one must consider

"whether the . . . action was justified

at its inception"; second, one must

determine whether the search as

actually conducted "was reasonably

related in scope to the

circumstances which justified the

interference in the first place."

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.

T.L.O., 469 U.S. at 341-42, 105 S. Ct. at 742-43

(citations omitted). Plaintiffs acknowledge that

11

the factual circumstances set forth in T.L.O.

differ significantly from those present in this

action, but suggest that the aforementioned

language sufficiently delineated the factors that

necessarily must inform school authorities who

seek to search a student suspected of

breaching a school regulation such that the

defendants in this case reasonably must have

known that their search of Jenkins and

McKenzie -- and particularly that aspect of the

search that involved the removal of articles of

clothing -- exceeded the bounds of

"reasonableness" established by the Court in

T.L.O. We disagree.1

Notwithstanding the Court's enunciation in

T.L.O. of a two-part test to adjudicate Fourth

Amendment school-search claims, the Court

1

Because we conclude that, on May 1, 1992, the law regarding

school searches was not clearly established to the extent that

these defendants should have known that their conduct violated

constitutionally permissible norms, we need not reach the question

of whether Jenkins' and McKenzie's Fourth Amendment rights were, in

fact, violated.

12

did not apply its own test strictly to the facts

presented in that case; indeed, after finding that

the initial decision to open T.L.O.'s purse to

search for cigarettes was justified in light of a

teacher's report that the student had been

smoking in the restroom, the Court concluded

that

[t]he suspicion upon which the

search for marihuana was founded

was provided when Mr. Choplick

observed a package of rolling

papers in the purse as he removed

the pack of cigarettes. . . . The

discovery of the rolling papers

concededly gave rise to a

reasonable suspicion that T.L.O.

was carrying marihuana as well as

cigarettes in her purse. This

suspicion justified further exploration

of T.L.O.'s purse, which turned up

more evidence of drug-related

activities . . . . Under these

circumstances, it was not

unreasonable to extend the search

to a separate zippered compartment

of the purse; and when a search of

that compartment revealed an index

card containing a list of "people who

owe me money" as well as two

letters, the inference that T.L.O. was

involved in marihuana trafficking was

substantial enough to justify Mr.

13

Choplick in examining the letters to

determine whether they contained

any further evidence. In short, we

cannot conclude that the search for

marihuana was unreasonable in any

respect.

T.L.O., 469 U.S. at 347, 105 S. Ct. at 745-46.

Specific application of the factors established to

define the constitutionally permissible

parameters of a school search -- that is, that it

be "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" -- is notably absent from the

Court's discussion and conclusion with respect

to T.L.O. The Court's determination is

grounded solely in the notion that each

successive discovery of items in T.L.O.'s purse

by the vice principal provided reasonable

suspicion and thereby legitimated further

searching. There is no illustration, indication, or

hint as to how the enumerated factors might

14

come into play when other concrete

circumstances are faced by school personnel.2

2

The dissent contends that the Supreme Court’s recent decision in

United States v. Lanier, ___ U.S. ___, 117 S. Ct. 1219, ___ L. Ed.

2d (1997), calls into question our conclusion that T.L.O., while

establishing general principles that necessarily must govern any

Fourth Amendment analysis of a school search, did not explicitly

apply those principles to specific facts such that the defendants

-- and any reasonable individuals faced with the same circumstances

-- should have known that their conduct in this case violated

clearly established constitutional norms. Lanier, however, is

entirely consistent with both the reasoning and result reached by

our court in this case.

Lanier concerned a challenge to a criminal conviction under 18

U.S.C. § 242, the criminal-law counterpart to 18 U.S.C. § 1983.

The underlying conduct giving rise to the criminal civil rights

violation involved numerous sexual assaults committed by a state

court judge. The Sixth Circuit initially affirmed the conviction,

33 F.3d 639, but on rehearing en banc, reversed after finding that

the statute failed to supply adequate notice that sexual assault by

a state actor fell within the parameters of constitutionally

prohibited conduct. See United States v. Lanier, 73 F.3d 1380,

1384 (6th Cir. 1996) (en banc). The court further noted that the

right violated in this case had not been identified with sufficient

clarity as a constitutional right:

The right deprived in the instant case -- the right

not to be assaulted -- is a clear right under state

law known to every reasonable person. The

defendant certainly knew his conduct violated the

law. But it is not publicly known or understood

that this right rises to the level of a

‘constitutional right.’ It has not been declared

such by the Supreme Court. . . . The indictment in

this case for a previously unknown, undeclared and

undefined constitutional crime cannot be allowed to

stand.

Lanier, 73 F.3d at 1392-94. In reaching its determination that the

contours of the right at issue had not previously been delineated,

the court reasoned that, consistent with Supreme Court precedent,

a constitutional right under § 242 must be “ma[d]e specific” to

render the indictment under the statute constitutionally sound:

As we interpret the “make specific” requirement,

the Supreme Court must not only enunciate the

existence of a right, it must also hold that the

15

right applies to a factual situation fundamentally

similar to the one at bar. . . . The ‘make

specific’ standard is substantially higher than the

‘clearly established’ standard used to judge

qualified immunity in section 1983 cases.

Id. at 1393.

The Supreme Court granted certiorari “to review the standard

for determining whether particular conduct falls within the range

of criminal liability under § 242.” Lanier, 117 S. Ct. at 1224.

In reversing the Sixth Circuit’s decision, the Court observed that

the necessity for a constitutional right to be “made specific”

stemmed from the constitutional requirement that individuals be

given fair warning as to what constitutes proscribed conduct;

consistent with this requirement, the Court concluded that,

contrary to the Sixth Circuit’s stated view, the “made specific”

standard was identical to the “clearly established” standard

employed in qualified immunity cases:

In the civil sphere, we have explained that

qualified immunity seeks to ensure that defendants

reasonably can anticipate when their conduct may

give rise to liability by attaching liability only

if the contours of the right violated are

sufficiently clear that a reasonable official would

understand that what he is doing violates that

right. So conceived, the object of the ‘clearly

establish’ immunity standard is not different from

that of ‘fair warning’ as it relates to law ‘made

specific’ for the purpose of validly applying §

242. . . . [As] with civil liability under § 1983

or Bivens, all that can usefully be said about

criminal liability under § 242 is that it may be

imposed for deprivation of a constitutional right

if, but only if, in light of pre-existing law the

unlawfulness under the Constitution is apparent.

Where it is, the constitutional requirement of fair

warning is satisfied.

Lanier, 117 S. Ct. at 1227-28 (citations, quotations and internal

markings omitted). It is true that the Court described the

appropriate standard as being whether the unlawfulness is apparent

in light of preexisting law. Although this circuit has elaborated

and said that “preexisting law must dictate, that is, truly compel

(not just suggest or allow or raise a question about” the

unlawfulness of the challenged conduct, Lassiter, 28 F.3d at 1150,

we do not believe that our elaboration indicates a standard

substantively different from that of the Supreme Court. The Court

in Lanier does not address or alter in any way our understanding of

the underlying purpose or legal framework with respect to qualified

16

In the absence of detailed guidance, no

reasonable school official could glean from

these broadly-worded phrases whether the

search of a younger or older student might be

deemed more or less intrusive; whether the

search of a boy or girl is more or less

immunity; rather, the Court’s holding equates the standard of

specificity required to provide fair warning in a criminal context

under § 242 with that required to clearly establish the law for

purposes of civil liability.

The dissent also points to the Court’s declaration that

“general statements of the law are not inherently incapable of

giving fair and clear warning, and in other instances a general

constitutional rule already identified in the decisional law may

apply with obvious clarity to the specific conduct in question,

even though ‘the very action in question has [not] previously been

held unlawful.” Id. at 1227. The Court went on to note that

“[t]he 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 [or criminal]

liability. Id. (quoting Lanier, 73 F.3d at 1410) (Daughtrey, J.

dissenting). We do not believe our decision today suggests a view

of qualified immunity contrary to the spirit of the preceding

statements; indeed, although general principles of law can provide

fair warning, they do not necessarily provide such warning unless

the constitutional rule at issue may be applied “with obvious

clarity.” As acknowledged by the dissent, the question is whether

T.L.O. established “with obvious clarity” that the school search at

issue was unconstitutional. Put simply, we do not think this is an

“easy” case, nor do we view T.L.O. as applicable to the instant

facts “with obvious clarity.”

17

reasonable, and at what age or grade level; and

what constitutes an infraction great enough to

warrant a constitutionally reasonable search or,

conversely, minor enough such that a search of

property or person would be characterized as

unreasonable. In short, as conceded by the

plaintiffs, neither the Supreme Court nor any

court in this circuit nor the Alabama courts, on

or before May 1, 1992, had ever actually

applied the test established in T.L.O. to define

a reasonable (or unreasonable) search in the

context of facts materially similar to those of this

school search.3 Without such practical, fact-

3

In this circuit, the law can be "clearly established" for

qualified immunity purposes only by decisions of the U. S. Supreme

Court, Eleventh Circuit Court of Appeals, or the highest court of

the state where the case arose. Hamilton v. Cannon, 80 F.3d 1525,

1532 n.7 (11th Cir. 1996) (citing Courson v. McMillian, 939 F.2d

1479, 1497-98 & n.32 (11th Cir. 1991). The dissent notes a

“tension” between our circuit’s decisional law deeming relevant

solely in-circuit precedent, on the one hand, and the Supreme

Court’s seeming rejection in Lanier, on the other hand, of a

categorical rule prohibiting consideration of decisions of the

Court of Appeals or other courts to ascertain whether the law has

been clearly established. Significantly, however, the Supreme

Court’s discussion of the relevance of case law from other courts

arose in the context of the Court’s pointed criticism and rejection

of the Sixth Circuit’s determination that only Supreme Court

precedent could clearly establish the law for purposes of 18 U.S.C.

18

based application, school officials in this circuit

were left to interpret, balance, and evaluate

such terms as "measures . . . 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."

T.L.O., 469 U.S. at 342, 105 S. Ct. at 743. As

§ 242. In United States v. Lanier, 73 F.3d 1380 (6th Cir. 1996) (en

banc), the Sixth Circuit had held explicitly that “[l]ower court

decisions are not sufficient to establish and make definite a

particular constitutional crime so as to provide the

constitutionally-required notice necessary to support an indictment

under § 242. Only a decision of the Supreme Court establishing the

constitutional crime under § 242 can provide such notice.” Id. at

1393. In reviewing the Sixth Circuit’s decision, the Supreme Court

explicitly rejected the notion that only its decisions could

provide fair warning under the applicable statute; rather, the

Court stated that, in inquiring whether a previous judicial

decision has made specific the scope of a constitutional right, “no

. . . case has held that the universe of relevant interpretive

decisions is confined to our opinions.” Lanier, ___ U.S. at ___,

117 S. Ct. at 1225. Indeed, the “universe of interpretive

decisions” to which our court looks is broader than that envisioned

by the Sixth Circuit and includes, as suggested by the Supreme

Court, our own circuit precedent and that of the highest state

court where the pertinent conduct took place. The Supreme Court in

Lanier simply did not address the extent to which decisions of the

“lower courts” must, should, or may be considered in deciding

whether a constitutional right has been clearly established, nor

did it identify any impropriety in considering only the decisions

of the circuit or highest court of the state in which the relevant

events took place. We therefore do not construe Lanier as being

in conflict with our precedent regarding the relevant decisional

law to which we must look in analyzing a claim of qualified

immunity.

19

we have previously noted, "[p]ublic officials are

not obligated to be creative or imaginative in

drawing analogies from previously decided

cases." Adams v. St. Lucie County Sheriff's

Dept., 962 F.2d 1563, 1575 (11th Cir. 1992)

(Edmondson, J., dissenting), dissent approved

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

curiam). Similarly, school officials cannot be

required to construe general legal formulations

that have not once been applied to a specific

set of facts by any binding judicial authority.4

4

The dissent submits that although the initial search of

McKenzie’s backpack was justified, the subsequent searches of

Jenkins and McKenzie were not based on reasonable suspicion. The

dissent further criticizes our decision as failing to evaluate

whether the teachers had reasonable suspicion to perform the

challenged searches in the bathroom. Once the teachers formed

reasonable suspicion that Jenkins and McKenzie might have stolen

the money, however, the search was then “justified at its

inception.” T.L.O., 469 U.S. at 341-42, 105 S. Ct. at 742-43.

The relevant question with respect to the continuation of the

search, in our view, is not whether the teachers had reasonable

suspicion with respect to each place they searched but, rather,

whether the search itself was constitutionally reasonable in scope.

Stated differently, once the teachers formulated reasonable

suspicion that Jenkins and McKenzie had stolen the money (a fact

that the dissent does not dispute), the relevant inquiry is whether

T.L.O. directed the conclusion that the manner in which the

teachers chose to conduct further searching exceeded

constitutionally permissible bounds in extent and scope. The

teachers, after all, still had reasonable suspicion that money had

been stolen, and had not necessarily eliminated Jenkins and

McKenzie as suspects when the backpack-search proved fruitless.

20

Indeed, not only does the language used by

the Court to announce a legal standard

regarding the permissible scope of a

reasonable school search lack specificity5 but,

Contrary to the dissent’s suggestion, we have not ignored the

question of reasonable suspicion but believe that the pertinent

issue in this case is whether, at the time these events took place,

the law was clearly established that all individuals in the

defendants’ place should have known that, after reasonable

suspicion was formed that McKenzie and Jenkins might have stolen

the missing money and an initial search of the backpack failed to

reveal the money, the continued searching of these girls in the

restroom exceeded the scope of a constitutionally permissible

school search.

With respect to the scope of the searches, it is apparent that

the instant searches were reasonably related to the objective of

uncovering the stolen $7.00. We also reject appellants’ attempt to

trivialize the nature of the infraction; the stealing of $7.00 in

an elementary classroom reasonably could be considered by the

school officials to be a matter of serious concern. Appellants’

primary argument is that the searches were excessively intrusive.

However, the female students were searched by female teachers. The

students were eight years old, and thus prepubescent. Finally, it

is a matter of common experience that teachers frequently assist

students of that age in the bathroom, e.g., in the event of an

accidental wetting. We do not believe that it would be apparent to

a reasonable school official that the challenged searches were

“excessively intrusive in light of the age and sex of the

student[s] and the nature of the infraction.” T.L.O., 469 U.S. at

342, 105 S. Ct. at 743.

5

It is worth noting that the dissenting justices in T.L.O.

criticized the majority's reliance on the "reasonableness" test

precisely because it is ambiguous and imprecise. Justice Brennan,

joined by Justice Marshall, described the Court's standard as

"unclear," T.L.O.., 469 U.S. at 354, 105 S. Ct. at 749, and "an

unguided 'balancing test,'" id. at 356, 105 S. Ct. at 750. Justice

Stevens was even more harsh in his censure:

As compared with the relative ease with which

teachers can apply the probable-cause standard, the

amorphous "reasonableness under all the

circumstances" standard freshly coined by the Court

21

it appears, purposefully so. In response to

Justice Stevens' criticism of this standard on the

ground, among others, that the Court had failed

to distinguish between types of infractions that

might reasonably justify a search, Justice

White, writing for the majority, explained:

We are unwilling to adopt a standard

under which the legality of a search

is dependent upon a judge's

evaluation of the relative importance

of various school rules. The

maintenance of discipline in the

schools requires not only that

students be restrained from

assaulting one another, abusing

drugs and alcohol, and committing

other crimes, but also that students

conform themselves to the

standards of conduct prescribed by

school authorities. . . . The

promulgation of a rule forbidding

today will likely spawn increased litigation and

greater uncertainty among teachers and

administrators. . . . I cannot but believe that the

same school system faced with interpreting what is

permitted under the Court's new "reasonableness"

standard would be hopelessly adrift as to when a

search may be permissible.

Id. at 365, 105 S. Ct. at 755. Several members of the Court thus

expressly anticipated that the "reasonableness" standard --

particularly in the absence of any clear application to facts --

would fail to provide school officials with a systematic way to

predict when their conduct might violate the law.

22

specified conduct presumably

reflects a judgment on the part of

school officials that such conduct is

destructive of school order or of a

proper educational environment.

Absent any suggestion that the rule

violates some substantive

constitutional guarantee, the courts

should, as a general matter, defer to

that judgment and refrain from

attempting to distinguish between

rules that are important to the

preservation of order in the schools

and rules that are not.

T.L.O. 469 U.S. at 342 n.9, 105 S. Ct. at 743

n.9. The foregoing discussion not only

indicates the Court's deliberate hesitation to

narrow and define explicitly, in a practical,

factual sense, the terminology used to establish

its "reasonableness" test but, more importantly,

further suggests that T.L.O. did not attempt to

establish clearly the contours of a Fourth

Amendment right as applied to the wide variety

of possible school settings different from those

involved in T.L.O.. Faced with a series of

abstractions, on the one hand, and a

23

declaration of seeming deference to the

judgments of school officials, on the other, it is

difficult to discern how T.L.O. could be

interpreted to compel the conclusion that these

defendants -- or, more accurately, all

reasonable educators standing in defendants'

place -- should have known that their conduct

violated a clearly established constitutional

right.

III. CONCLUSION

We will not engage in polemics regarding

the wisdom of the defendants' conduct in this

case; suffice it to say that the defendants likely

exercised questionable judgment given the

circumstances with which they were confronted.

Our job, however, is to decide a narrow legal

issue in light of our binding circuit precedent: on

May 1, 1992, the date on which the relevant

conduct at issue in this case occurred, was the

24

law clearly established such that all reasonable

teachers standing in the defendants' place

reasonably should have known that the search

to locate allegedly stolen money violated

Jenkins' and McKenzie's Fourth Amendment

rights? Applying the principles explicitly stated

in Lassiter, we conclude that, at the time these

events took place, the law pertaining to the

application of the Fourth Amendment to the

search of students at school had not been

developed in a concrete, factually similar

context to the extent that educators were on

notice that their conduct was constitutionally

impermissible. Accordingly, the defendants are

entitled to qualified immunity in this case. We

AFFIRM.

KRAVITCH, Senior Circuit Judge, dissenting, in which HATCHETT,

Chief Judge, and BARKETT, Circuit Judge, join:

25

I fully agree that government officials acting within their

discretionary authority should be shielded from liability for

violating rights of which a reasonable person would not have known.

The majority and I differ only as to whether the schoolhouse Fourth

Amendment standard announced by the Supreme Court in New Jersey v.

T.L.O., 469 U.S. 325 (1985), would lead a reasonable person to

understand that the conduct in this case was prohibited. The

majority finds qualified immunity by characterizing the Supreme

Court's test as too general to guide any teacher, unless subsequent

controlling precedent has applied it to virtually identical facts.

In my view, stating that a constitutional test is general or that

factually similar precedent is lacking bypasses the fundamental

inquiry set out by the Supreme Court: determining whether the

governing constitutional standard provides sufficient guidance,

given the facts of the case, “that a reasonable official would

understand that what he is doing violates [a constitutional]

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Because

I believe that T.L.O. sufficiently forewarns teachers that strip

searching eight-year-olds in pursuit of a few dollars violates the

Fourth Amendment, I respectfully dissent.

Qualified immunity balances the competing concerns present in

civil rights suits. Immunity serves the public “'need to protect

officials who are required to exercise their discretion and the

related public interest in encouraging the vigorous exercise of

official authority.'” Harlow v. Fitzgerald, 457 U.S. 800, 807

(1982) (quoting Butz v. Economou, 438 U.S. 478, 506 (1978)). Taken

26

too far, however, immunity can undermine the purpose of section

1983 altogether, giving officials license to violate the most basic

and longstanding constitutional rights. Qualified immunity

accommodates these interests by protecting those who act in

reasonable reliance upon established legal principles but

permitting liability for clearly unconstitutional conduct. Thus,

immunity attaches only when official “conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow, 457 U.S. at 818.

Interpreting the term “clearly established,” the Supreme Court

has warned courts not to base liability upon expansive legal

truisms or to ignore material factual differences between present

cases and precedent establishing the asserted constitutional right.

In Anderson, the Court emphasized that a right is not clearly

established unless “[t]he contours of the right [are] sufficiently

clear that a reasonable official would understand that what he is

6

doing violates that right.” 483 U.S. at 640. We since have

stated that “[g]eneral propositions have little to do with . . .

qualified immunity.” Muhammad v. Wainwright, 839 F.2d 1422, 1424

(11th Cir. 1987). Thus, qualified immunity applies where the

plaintiff can identify only unworkable abstractions from prior case

law and cannot show how those principles would be applied later to

6

We have explained that “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.”

Lassiter v. Alabama A&M Univ., Bd. of Trustees, 28 F.3d 1146,

1149 (11th Cir. 1994) (en banc).

27

different facts.7 Neither the Supreme Court nor this court,

however, require factual identity between prior and subsequent

cases, for that would create absolute immunity.8

I review these principles because the majority has taken a

rigid approach to their application in the present case. Our

various formulations of the “clearly established” test -- that

prior cases must be factually similar to the case at bar, that

general abstractions are unhelpful -- represent a shorthand way of

saying that the clarity of a constitutional right (and, therefore,

official liability) depends upon the interplay of the legal

standard and the factual context to which the plaintiff alleges it

applies. But it is not enough simply to label pre-existing law

“general,” or to identify factual distinctions in relevant

precedent. Instead, a court must determine whether the generality

of a rule casts doubt on its application to the present case or

7

For example, if the present case had arisen prior to

T.L.O., a teacher would have had no reasonable way of knowing

when she could search a given student, because the Fourth

Amendment had been haphazardly applied to schools. Some courts

had held that it permitted searches only upon probable cause, see

State v. Mora, 330 So.2d 900 (La.), cert. denied, 429 U.S. 1004

(1976); others had held that school children enjoyed no Fourth

Amendment protection, as school officials acted in loco parentis.

See In re Donaldson, 75 Cal. Rptr. 220 (Dist. Ct. App. 1969).

8

See Anderson, 483 U.S. at 640 (“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.”) (citations omitted); Adams v. St. Lucie

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

(Edmondson, J., dissenting), approved en banc, 998 F.2d 923 (11th

Cir. 1993) (“The facts [of prior precedent] need not be the same

as the facts of the immediate case. But they do need to be

materially similar.”).

28

whether factual distinctions from prior precedent are “material,”

that is, they make the legal rule inapplicable in the later case or

suggest that the present conduct is permissible.9 By contrast, the

majority today, declaring T.L.O. both general and factually

distinguishable, abandons further analysis. This, I believe, is

error.

As the Supreme Court recently reaffirmed, the search for

specific rules in factually concrete cases should not overshadow

the purpose of such a search -- determining whether the government

actor had fair warning that his/her conduct was unconstitutional.

In United States v. Lanier, 117 S. Ct. 1219 (1997), the Court

unanimously held that: (1) civil rights liability requires only

“fair warning” of constitutional rights, 117 S. Ct. at 1224-27; and

(2) neither prior Supreme Court precedent nor factually similar

precedent is necessary to provide such warning. The Court

confirmed that decisional law generally, not only from the Supreme

Court, can establish a right. Id. at 1226-27.10 More importantly

9

For example, in Hartsfield v. Lemacks, 50 F.3d 950 (11th

Cir. 1995), we rejected a qualified immunity defense in the face

of a broad constitutional test. On the facts of that case, we

held the police clearly failed to make “reasonable efforts” to

avoid erroneous execution of a search warrant, thereby violating

the Fourth Amendment.

10

I note the tension between the Court's reasoning and the

majority's suggestion, ante at 13 n.2, that only the Supreme

Court, Eleventh Circuit, or the highest court of the state can

“clearly establish” the law. Compare Courson v. McMillan, 939

F.2d 1479, 1497-98 (11th Cir. 1991) (only in-circuit precedent

relevant) and Hansen v. Soldenwagner, 19 F.3d 573, 578 n.6 (11th

Cir. 1994) (same) with Lanier, 117 S. Ct. at 1226-27 (“Although

the Sixth Circuit was concerned . . . that disparate decisions in

various Circuits might leave the law insufficiently certain even

on a point widely considered, such a circumstance may be taken

29

for present purposes, the Court stressed that rights founded on

general statements of law may be enforced against government

actors. It observed that “notable factual distinctions” between

prior cases and later ones did not require automatic immunity:

[G]eneral statements of the law are not inherently

incapable of giving fair and clear warning, and . . . a

general constitutional rule already identified in the

decisional law may apply with obvious clarity to the

specific conduct in question, even though “the very

action in question has [not] previously been held

unlawful”. . . .

Id. at 1227 (quoting Anderson, 483 U.S. at 640). The purpose of

factual specificity is to warn government officials when a

constitutional test does not, by its own terms, apply to present

actions. Thus, it is necessary only when “an earlier case

expressly leaves open whether a general rule applies to the

particular type of conduct at issue. . . .” Id.11

into account in deciding whether the warning is fair enough,

without any need for a categorical rule that decisions of the

Courts of Appeals and other courts are inadequate as a matter of

law to provide it.”); Elder v. Holloway, 114 S. Ct. 1019, 1023

(1994) (“A court engaging in review of a qualified immunity

judgment should . . . use its full knowledge of its own and other

relevant precedents.”) (internal alterations and quotations

omitted) and Greason v. Kemp, 891 F.2d 829, 833 (11th Cir. 1990)

("we look to the law established by the Supreme Court, the courts

of appeals, and the district courts.").

11

The majority dismisses Lanier as irrelevant to the instant

case. I cannot agree. Although it concedes that "general

principles of law can provide clear warning," ante at 16 n.3

(emphasis omitted), the majority is unwilling to accept T.L.O.'s

guidance in the absence of its application to "facts materially

similar to those of this school search." Id. at 17. Likewise, it

reasons that "school officials cannot be required to construe

general legal formulations that have not once been applied to a

specific set of facts by any binding judicial authority." Id. at

18-19. I believe this analysis ignores Lanier's intent and,

indeed, the Court's intent throughout its qualified immunity

jurisprudence. Lanier and its precursors make liable those who

30

Lanier is consistent both with prior Supreme Court precedent

and the policy underlying qualified immunity. The Court has always

required only that the “unlawfulness must be apparent,” Anderson,

483 U.S. at 640, so actors “reasonably can anticipate when their

conduct may give rise to liability. . . .” Davis v. Scherer, 468

U.S. 183, 195 (1984). Further, excepting all unconstitutional

conduct governed by “general” constitutional standards would

vitiate the balance struck by qualified immunity, as officials in

clear violation of broad rules would escape liability.

Thus, we cannot dismiss T.L.O. by attaching the appellation

“general” to the test it announces or by pointing to the absence of

prior factually similar cases. In T.L.O., the Supreme Court noted

lower courts' conflicting views regarding the application of the

Fourth Amendment to schools, 469 U.S. at 332 n.2, and squarely

addressed the issues before us today: when a search by a school

official is authorized, and how intrusive a search the Fourth

Amendment tolerates. As the majority recounts, the Court adopted

a test born of the Terry v. Ohio, 392 U.S. 1 (1968),

“reasonableness” standard, but did not leave us with reasonableness

alone. It announced a two-pronged test: first, the search must be

justified at its inception, that is, “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,” 469 U.S. at 342; and second, the search must be

violate established constitutional norms, even ones with a short

pedigree in the decisional law.

31

permissible in scope, that is, “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.12

This standard obviously can establish the law for certain

factual situations. For example, if school rules disallow chewing

gum on campus, would the Fourth Amendment permit a strip search by

a male teacher of a young girl reasonably suspected of bubblegum

possession? Plainly not. See, e.g. , Cornfield v. Consolidated

High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993) (“A

nude search of a student by an administrator or teacher of the

opposite sex would obviously violate [the T.L.O.] standard.

Moreover, a highly intrusive search in response to a minor

infraction would similarly not comport with . . . T.L.O.”).

Indeed, as the teachers' counsel conceded at oral argument, certain

schoolhouse searches violate the Fourth Amendment as a matter of

common sense. Thus, the question before our court, and

incompletely answered by the majority, is whether the T.L.O.

standard suggests “with obvious clarity,” Lanier, 117 S. Ct. at

1227, that a strip search of schoolchildren for seven dollars is

unconstitutional.

T.L.O., although not crystalline, is -- simply on the facts of

the case before us -- a bright line. Herring and Sirmon lacked

12

Given the case's history and its comprehensive test, I

disagree with the conclusion, ante at 22, “that T.L.O. did not

attempt to establish clearly the contours of a Fourth Amendment

right as applied to the wide variety of school settings different

from those involved in T.L.O.”

32

even arguable reasonable suspicion to strip search Jenkins and

McKenzie.13 The teachers offer the following evidence as creating

reasonable suspicion to search: (1) several students implicated the

plaintiffs and they accused one another; (2) McKenzie earlier had

gone to the restroom; (3) the money was not found in the backpack

or the students' shoes and socks; and (4) historically, other

children had been caught with money in their apparel. All of these

justifications are specious. First, Herring and Sirmon knew only

of Ashley Estell's accusation14 and the mutual finger-pointing by

Jenkins, McKenzie, and Jamerson. Estell's testimony proved

untrustworthy when the backpack search revealed nothing, leaving

only the students' completely contradictory allegations. This

13

My discussion is confined to the strip searches. I

concede that the initial search of McKenzie's backpack was

justified at its inception and reasonable in scope. Ashley

Estell's report that Jenkins put the money in McKenzie's backpack

gave reasonable suspicion to suspect that searching the backpack

would turn up evidence of the theft. See C.B. By and Through

Breeding v. Driscoll, 82 F.3d 383, 388 (11th Cir. 1996).

Moreover, the backpack search, performed by the teacher and

confined to the place identified as containing the contraband,

was not excessive. Further, although the search of the students'

shoes and socks may have been questionable, qualified immunity is

appropriate, because T.L.O. does not clearly prohibit such a

search. See Wynn v. Board of Educ. of Vestavia Hills, 508 So.2d

1170 (Ala. 1987)

(search of shoes and socks for $6 justified at inception where

two students searched were only ones in room when theft occurred;

concluding, without discussion, that search “was not excessively

intrusive”).

14

The majority's statement, ante at 3, that “[s]everal

students subsequently implicated” the girls is misleading because

it does not speak to Herring and Sirmon's knowledge. Fannin

testified that two other students, Micquael Scales and Jennifer

Simmons, accused Jenkins, but only after Fannin left Herring and

Sirmon in the hall with the girls and Jamerson. Fannin did not

relate this information until Sirmon returned to the classroom

while Herring conducted the first strip search.

33

testimony might be at the outer bounds of reasonable suspicion for

one search, but it is not so for two.15 Second, McKenzie's trip to

the bathroom, although relevant to suspicion, was not communicated

to Herring or Sirmon prior to the strip search.16 Third, appellees'

suggestion that the lack of evidence in the backpack or the

students' shoes and socks permitted the strip search is dubious, as

it rests on the questionable premise that more intrusive searches

can be predicated upon prior unrevealing searches. T.L.O. makes

clear that such bootstrapping is impermissible; there, the Court

validated the escalating search only because additional evidence

continued to emerge. See 469 U.S. at 347 (discovery of rolling

papers "justified further exploration of T.L.O.'s purse”; evidence

of drug dealing justified expansion of search to separate zippered

compartment; discovery of "list of people who owe me money"

15

Even though Jamerson had implicated himself as the thief

(by stating that he hid the money behind a filing cabinet), the

teachers conducted a second strip search of the two girls. This

was wholly unreasonable, especially in view of the fact that

Jenkins stated that she saw Jamerson open the victim's purse, the

girls had never stolen anything before, and Jamerson had a

history of theft.

16

There is a conflict in the record on this point, so I

presume in favor of the plaintiffs. Herring claimed that Fannin

told her of McKenzie's trip and suggested to Herring that money

might be hidden in McKenzie's clothes. Herring then allegedly

replied that she would take the girls to the bathroom and have

them check their clothes. Fannin contradicts this account.

Herring claimed the interchange occurred while the girls were

putting their shoes and socks back on, but Fannin said she left

the hall at that point. Fannin also had no knowledge that

Herring might take the girls to the bathroom, but presumed they

would go to the office, in accordance with policy. Further,

Herring's testimony is unreliable because she changed her story,

telling Principal Nelson that Jamerson, not Fannin, informed her

that McKenzie went to the bathroom.

34

justified reading letters found in zippered compartment). Finally,

there is no evidence that Herring or Sirmon knew about prior

instances of other students concealing money in their clothing.17

Thus, because arguable reasonable suspicion was missing, qualified

immunity is inappropriate.18

In addition, the scope of the strip search far exceeded what

T.L.O. allows. To evaluate the scope of a search, T.L.O. directs

us to consider several factors: whether there was a reasonable

relationship between the means by which a student is searched and

the objectives for that search; the intrusiveness of the search in

light of the student's age and sex; and the intrusiveness of the

search in light of the nature of the alleged infraction.

Admittedly, age and sex are not particularly instructive in the

17

Appellees point to clothing searches in other schools, and

to searches of shoes and socks allegedly conducted by Nelson, but

Herring and Sirmon were unaware of these incidents when they

conducted the strip search. Further, it is not clear that, on

summary judgment, we can assume that Nelson's searches ever

occurred, as the Department of Education's Incident Report found

that, in prior school theft incidents, no one had ever been

required to remove any article of clothing.

18

I believe that the majority errs by failing to consider

whether there was reasonable suspicion to initiate each of the

bathroom searches and by treating the searches as a single search

justified at its inception. Ante at 19 n.4. Each search was

separate in time and place and several different people conducted

them. For instance, the backpack search was performed solely by

Fannin in her classroom, and was not revealed to Herring or

Sirmon, who conducted the later bathroom searches.

Further, I differ with the majority's apparent contention

that T.L.O. requires only a one-time assessment of reasonable

suspicion where searches are escalating in nature. Id. T.L.O. in

fact commands a contrary conclusion -- it condoned an escalating

search only where discovered evidence created suspicion to look

elsewhere.

35

present case.19 Nevertheless, this does not render T.L.O. unclear

for qualified immunity purposes. Our cases confirm that a

balancing test may establish the law for a specific set of facts

when the “balancing would lead to the inevitable conclusion that

the [particular conduct] was unlawful.” Dartland v. Metropolitan

Dade County, 866 F.2d 1321, 1323 (11th Cir. 1989). Because the

type of search employed here was not reasonably related to its

objectives and was excessive in light of the nature of the

infraction, the T.L.O. balance inevitably marks Herring and

19

Sex is irrelevant because the students were of the same

gender as their searchers; however, the suggestion that T.L.O. is

unclear because it does not explain “whether the search of a boy

or girl is more or less reasonable,” ante at 16, only confuses

the issue. Gender is a concern, obviously, when searches are

conducted by members of the opposite sex. As for age, the T.L.O.

Court did not explain whether older or younger students can be

searched more freely. See Cornfield, 991 F.2d at 1321

(discussing issue).

I cannot subscribe to the majority's view, ante at 19 n.4,

that this search was reasonable in scope because eight-year-olds

are prepubescent and frequently require assistance in the

bathroom. Physical maturity is an elusive and, in my view,

unworkable constitutional standard and is by no means the only

consideration relevant to intrusiveness. See generally Steven F.

Shatz et al., The Strip Search of Children and the Fourth

Amendment, 26 U.S.F.L. REV. 1 (1991) (child's ability to consent,

propensity to commit crime, and degree of body autonomy determine

intrusiveness). Moreover, there is nothing in this record to

support the majority's factual premises, and pediatric literature

suggests that they are questionable. See Marcia E. Herman-

Giddens et al., Secondary Sexual Characteristics and Menses in

Young Girls Seen in Office Practice: A Study from the Pediatric

Research Office Settings Network, 99 PEDIATRICS 505 (1997) (noting

that girls often develop pubertal characteristics by age 8,

depending on racial and ethnic background); Sally Squires, Bed-

Wetting a Common Inconvenience, WASH. POST, Apr. 8, 1997, at Z17

("Most children are toilet-trained sufficiently to stay dry

during the day by age 3 or 4. . . .").

36

Sirmon's conduct as unconstitutional, thereby clearly establishing

the law.20

The strip searches were not reasonably related to their

objectives because they were excessively intrusive and unlikely to

turn up evidence, and because other reasonable, minimally intrusive

options were available.

It is axiomatic that a strip 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).21 Thus, for a strip search to be reasonably related in

scope to the objectives for which it was undertaken, the objectives

must be weighty,22 and the search must be necessary to locate the

20

The majority notes that Justice Stevens objected to

T.L.O.'s lack of clarity, ante at 20 n.5; he also realized,

however, that its test would lead to some inescapable

conclusions: “One thing is clear under any standard--the shocking

strip searches that are described in some cases have no place in

the schoolhouse. 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.” 469 U.S. at 382

n.25 (Stevens, J., concurring in part and dissenting in part)

(emphasis added) (citations omitted).

21

Although decided after the events at issue in the present

case, Justice's treatment of strip searches merely confirms their

self-evidently intrusive character.

22

See Cornfield, 991 F.2d at 1321 ("[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."). A sliding scale of reasonableness is inherent in the

Fourth Amendment. Terry, for example, teaches that "[t]he scope

of the search must be 'strictly tied to and justified by' the

37

suspected evidence. See Terry, 392 U.S. at 29-30 (search must be

“confined in scope to an intrusion reasonably designed to discover”

items sought and “confined . . . strictly to what was minimally

necessary” to locate those items). Here, acting only on the

discredited testimony of one student and the contradictory

allegations of the three suspects (exacerbated by threats that the

police would be called to investigate), the teachers launched a

full-scale strip search of two eight-year-olds, foregoing several

reasonable, yet minimally intrusive, intermediate steps.

Fannin never questioned whether the money was truly stolen.

She did not inquire whether the money might have been spent or

misplaced, nor did she ask how Estell knew that Jenkins took the

money. Fannin also did not search Jenkins's bag. Further, Herring

took over the situation without asking any questions, and promptly

ordered a search of the students' shoes and socks, followed by a

strip search, even though there was absolutely no evidence that the

girls might have the money in their underclothing. Thus, because

there was not even reasonable suspicion to believe that the girls

possessed contraband, because the teachers ignored less intrusive

means, and because the personal invasion was extreme, the first

strip search was necessarily disproportionate to its justification.

The second strip search was even more blatantly unconstitutional,

circumstances which rendered its initiation permissible." 392

U.S. at 19. See also, e.g., United States v. McMurray, 747 F.2d

1417, 1420 (11th Cir. 1984) (in customs context, as intrusiveness

increases, suspicion necessary to justify search must increase).

38

as no one could reasonably argue that it was necessary after the

fruitless prior search.

Finally, the nature of the infraction here -- a small theft --

is insufficient as a matter of law to permit a strip search.

T.L.O. directs us to consider the nature of the infraction because,

although keeping order in the school is important, it is not

determinative. Students' privacy rights must be weighed in the

balance. Strip searching a student is permissible only in

extraordinary cases, and only to prevent imminent harm.23 For

example, if school administrators have reasonable suspicion that a

student is carrying a gun on his/her person and a “pat-down”

confirms this suspicion, a strip search by an administrator of the

same sex, strictly limited to finding the weapon, would be

permissible. The theft of $7, although morally reprehensible,

poses no threat of physical danger to other students and cannot,

therefore, serve as the basis for a search of this magnitude.24

As the Seventh Circuit, faced with a qualified immunity

defense following a school strip search, explained:

23

See Justice, 961 F.2d at 193 (collecting cases; noting

that threat of harm was only permissible reason in case law for

strip search of arrestee).

24

See, e.g., Oliver by Hines v. McClung, 919 F. Supp. 1206,

1216-19 (N.D. Ind. 1995) (strip search of seventh graders for

$4.50 unconstitutionally unreasonable); State ex rel. Galford v.

Mark Anthony B., 433 S.E.2d 41, 49 (W. Va. 1993) (strip search

for $100 unconstitutionally unreasonable in scope because no

threat of danger); Bellnier v. Lund, 438 F. Supp. 47, 53-54

(N.D.N.Y. 1977) (strip search for stolen $3 unconstitutionally

unreasonable, given unparticularized suspicion and “relatively

slight danger of the conduct involved”).

39

It does not require a constitutional scholar to conclude

that a nude search of a thirteen-year-old child is an

invasion of constitutional rights of some magnitude.

More than that: it is a violation of any known principle

of human decency. Apart from any constitutional readings

and rulings, simple common sense would indicate that the

conduct of the school officials in permitting such a nude

search was not only unlawful but outrageous under

“settled indisputable principles of law.”

Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980) (citation

omitted), cert. denied, 451 U.S. 1022 (1981). Because Herring and

Sirmon flagrantly ignored common sense and, crucially, the

Constitution, I would reverse the district court's order granting

qualified immunity.

40