Bilbrey ex rel. Bilbrey v. Brown

KILKENNY, Circuit Judge,

dissenting:

I dissent. Although the majority holds as a matter of law the school officials were not entitled to immunity, I would reverse on the ground that the district court erred in holding that settled law existed on the issue of applying the Fourth Amendment to school searches and in subsequently submitting the good faith immunity question to the jury.

A school official’s immunity is based on actual or reasonable knowledge that the official’s actions would violate the constitutional rights of the student affected, Wood v. Strickland, 420 U.S. 308, 322 , 95 S.Ct. 992, 1000 , 43 L.Ed.2d 214 (1975), and such officials are held to a standard of conduct that includes knowledge of. the basic, unquestioned constitutional rights of their charges. Id. Those constitutional rights must be clearly established at the time of the challenged action. See id.; Procunier v. Navarette, 434 U.S. 555 , 98 S.Ct. 855 , 55 L.Ed.2d 24 (1978) (scope of constitutional rights of prisoners regarding correspondence with persons outside of prison not yet established at time of acts).

The conduct challenged in this case occurred in September, 1978. Neither the Supreme Court of the United States nor the Ninth Circuit had addressed the issue of school searches within the Fourth Amendment. Even cases cited by the majority state that this area of law was far from clear at the time. See Bellnier v. Lund, 438 F.Supp. 47, 52 (N.D.N.Y.1977); M. v. Bd. of Ed. Ball-Chatham Comm. Unit School Disk, 429 F.Supp. 288, 292 (S.D.Ill.1977).

The majority’s reliance on Tinker v. Des Moines Ind. Comm. School Disk, 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969) and Goss v. Lopez, 419 U.S. 565 , 95 S.Ct. 729 , 42 L.Ed.2d 725 (1975), does not dictate a contrary result. While both cases stand for the proposition that students retain constitutional rights, Tinker involved the right to free speech and Goss procedural due process. Reliance on Picha v. Wielgos, 410 F.Supp. 1214 (N.D.Ill.1976), is equally misplaced, because the court there hinged its holding upon police involvement in the searches. See 410 F.Supp. at 1220 ; Bellnier, 438 F.Supp. at 52 . The same holds true for Piazzola v. Watkins, 442 F.2d 284, 286 (CA5 1971). In the final case relied upon, State v. Walker, 19 Or.App. 420 , 528 P.2d 113 (1974), the court held that the general exception to the exclusionary rule for the fruits of a search made by private citizens was inapplicable to a school principal, however the record there was inadequate for application of Fourth Amendment principles.

Fourth Amendment inquiry focuses on reasonableness, Terry v. Ohio, 392 U.S. 1, 9 , 88 S.Ct. 1868, 1873 , 20 L.Ed.2d 889 (1968), and in this regard the student’s right to be free from searches is balanced against the school’s broad supervisory and disciplinary powers. Horton v. Goose Creek Ind. School Disk, 690 F.2d 470 , 480-81 (CA5 1982), cert. denied — U.S. -, 103 S.Ct. 3536 , 77 L.Ed.2d 1387 (1983); see *1473 Goss, 419 U.S. at 574 , 95 S.Ct. at 736 . School teachers and administrators assume society’s duty of providing a safe and orderly environment in .which education is possible, given that students too young to be considered capable of mature restraint in the use of illegal or dangerous substances are grouped together in close contact during a substantial part of the school day for three fourths of each year. See Horton, 690 F.2d at 480; Ferrell v. Dallas Ind. School Dist., 392 F.2d 697, 704 (CA5 1968) (Godbold, J., specially concurring).

Although the doctrine of in loco parentis, whereby parents are viewed as having ceded over their parental powers to protect the best interests of the child, has met with disfavor, see Horton, 690 F.2d at 480-81 & n. 18, nevertheless school officials have a duty and a responsibility to maintain order and discipline. In Oregon, by statute, special emphasis must be given to instructing public school students on the effects of alcohol, tobacco, drugs and controlled substances upon the human system. Or.Rev.Stat. § 336.067 (1983) (formerly § 336.240; 1975 c. 531, § 1). The State Board of Education is required to establish standards for student conduct and discipline, Or.Rev.Stat. § 339.240 (1983), and students are required to comply with these rules, Or.Rev.Stat. § 339.250 (1983).

Drug possession constitutes a significant danger both to the possessor and to those who may obtain drugs from that person. Cf. Bellnier, 438 F.Supp. at 54 . There was evidence in this ease that several students on a school bus, including the older brother of appellee Gardner, offered marijuana to the bus driver, and that the school principal was concerned about the recognized drug problem that existed at the local high school spreading to the elementary school. Also, the bus driver observed appellee Bilbrey hiding a paper sack and later exchanging its contents for money with appellee Brown.

For these reasons, absent controlling case authority at the time the conduct in question occurred, it cannot as a matter of law be concluded that ‘settled, undisputed’ constitutional law existed as to application of the Fourth Amendment to public school searches. Even at this late date, it cannot be said with certainty in this circuit or in the Supreme Court that constitutional law is settled and undisputed on this issue. See New Jersey v. T.L.O., 94 N.J. 331 , 463 A.2d 934 (1983), cert. granted — U.S. -, 104 S.Ct. 480 , 78 L.Ed.2d 678 (1983), argued 52 U.S.L.W. 3730 (Mar. 28, 1984) (issue presented: does Fourth Amendment’s exclusionary rule apply to searches made by public school officials and teachers in school?), restored to calendar for reargument 44 (CCH) S.Ct.Bull. B5178 (July 5, 1984) (further issue: did assistant principal violate the Fourth Amendment in opening respondent’s purse?).