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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12424
Non-Argument Calendar
____________________
T.R., a Minor,
by and through her Mother, Porsha Brock,
Plaintiff-Appellant,
versus
LAMAR COUNTY BOARD OF EDUCATION, THE,
VANCE HARRON,
in his individual and official capacity,
LISA STAMPS,
in her individual and official capacity,
KATHY DEAN,
in her individual and official capacity,
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2 Opinion of the Court 21-12424
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 6:19-cv-01101-LSC
____________________
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
WILSON, Circuit Judge:
Plaintiff-Appellant T.R., a minor, by and through her
mother, Porsha Brock, appeals the district court’s grant of Defend-
ant-Appellee’s motion for summary judgment. T.R. brought a
Fourth Amendment unreasonable search claim under
42 U.S.C. §
1983 against her school’s Principal Lisa Stamps, Counselor Kathy
Dean, and Superintendent Vance Harron. The district court
granted summary judgment in favor of the Defendants, finding
that the school officials were entitled to qualified immunity. T.R.
also appeals the district court’s grant of summary judgment in fa-
vor of the Defendants on her state-law invasion of privacy claim
against Principal Stamps and Counselor Dean as well as her state-
law claim of outrage against Principal Stamps, Counselor Dean, Su-
perintendent Harron, and the Lamar County Board of Education.
Because we find that the district court erred in granting qualified
immunity, we reverse the district court’s grant of summary
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21-12424 Opinion of the Court 3
judgment regarding T.R.’s Fourth Amendment claim. We also re-
verse the district court’s grant of summary judgment in favor of the
Defendants regarding T.R.’s invasion of privacy and outrage
claims.
I.
The facts, viewed in the light most favorable to T.R., are as
follows. A teacher at T.R.’s school, Sulligent High School in Lamar
County, Alabama, smelled marijuana burning in the classroom and
alerted school administrators, Principal Stamps and Assistant Prin-
cipal Matthew Byars, who searched the belongings of every stu-
dent in the class. The school officials did not find any marijuana,
but found marijuana stems and seeds, rolling paper, two lighters,
and an assortment of pills in T.R.’s backpack. School officials then
escorted T.R. to Counselor Dean’s office where they began an in-
vestigation. During the course of the investigation, two students
from T.R.’s class told Principal Stamps that they saw T.R. light a
marijuana cigarette in class. T.R. admitted to school officials to
having a drug problem and regularly smoking marijuana, but she
denied smoking marijuana in the classroom that day and she de-
nied having additional drugs on her person.
Unable to find any evidence of marijuana in T.R.’s belong-
ings, Principal Stamps and Counselor Dean decided to strip search
T.R. The district court noted that the parties heavily dispute the
facts surrounding the school official’s strip search of T.R. Accord-
ing to T.R., school officials strip searched her twice. The first time,
T.R. contends, occurred in a room with only Principal Stamps and
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4 Opinion of the Court 21-12424
Counselor Dean where the school officials asked T.R. to remove
her clothing, lift her breasts, and bend over for an inspection. It is
undisputed that school officials did not find any drugs on T.R.’s
person following the first search. Following the first search, T.R.
remained in Counselor Dean’s office and her mother and sister ar-
rived at the office. T.R. alleges that school officials again directed
T.R. to remove her clothing, to which T.R. submitted. T.R. also
alleged that a window in the door of the counselor’s office leading
to a public hallway remained uncovered during the first strip
search, but there was no evidence suggesting that a student or
other school official observed the strip searches through the win-
dow. T.R. stated that she was on her menstrual cycle when she
was searched, which made her feel “humiliated and embarrassed
and gross.” T.R.’s teacher found the remains of the marijuana cig-
arette under T.R.’s desk the next day.
The district court found that Principal Stamps, Counselor
Dean, and Superintendent Harron were entitled to qualified im-
munity regarding T.R.’s Fourth Amendment claim because, inter
alia, T.R. did not identify any materially similar precedent that
would have put the Defendants on notice of a constitutional viola-
tion.
Since the district court found that the Defendants did not vi-
olate a clearly established law, it did not reach the issue of whether
T.R.’s allegations amounted to a Fourth Amendment violation.
The district court also found that the Defendants were immune
from T.R.’s invasion of privacy claim. Lastly, T.R.’s claim for
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21-12424 Opinion of the Court 5
outrage failed because the Defendants’ conduct was not extreme
and outrageous.
II.
We review a district court’s grant of summary judgment de
novo. Lewis v. City of West Palm Beach,
561 F.3d 1288, 1291 (11th
Cir. 2009). We view the evidence and factual inferences in a light
most favorable to the nonmoving party when evaluating the claims
at summary judgment.
Id.
“Qualified immunity protects municipal officers from liabil-
ity in § 1983 actions as long ‘as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.’” Id. An officer must first show that
he acted within his discretionary authority to receive qualified im-
munity. Id. Then, the burden shifts to the plaintiff to show that
qualified immunity should not apply. Id. Applying a two-step
framework, the court first looks to whether the officer’s conduct
amounted to a constitutional violation. Id. Second, the court ana-
lyzes whether the right was “clearly established” at the time of the
violation. Id. However, it is not required that the court analyze
the constitutional right first under step one and can instead proceed
directly to “analyzing whether the right was clearly established un-
der step two.” Id. “A right may be clearly established for qualified
immunity purposes in one of three ways: (1) case law with indistin-
guishable facts clearly establishing the constitutional right; (2) a
broad statement of principle within the Constitution, statute, or
case law that clearly establishes a constitutional right; or (3)
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conduct so egregious that a constitutional right was clearly vio-
lated, even in the total absence of case law.” D.H. by Dawson v.
Clayton Cty. Sch. Dist.,
830 F.3d 1306, 1318 (11th Cir. 2016).
At issue here is “[t]he Fourth Amendment ‘right of the peo-
ple to be secure in their persons . . . against unreasonable searches
and seizures.’” Safford Unified Sch. Dist. No. 1 v. Redding,
557 U.S.
364, 370 (2009). That right “generally requires a law enforcement
officer to have probable cause for conducting a search.”
Id. at 370.
However, the search and seizure of a child by school officials pre-
sents a unique question which “requires some easing of the re-
strictions to which searches by public authorities are ordinarily sub-
ject.” New Jersey v. T.L.O.,
469 U.S. 325, 340 (1985). Therefore,
the legality of a search in this context does not depend on the ordi-
nary “probable cause” standard; it depends “simply on the reason-
ableness, under all the circumstances, of the search.”
Id. at 340–41.
This analysis requires “a twofold inquiry.”
Id. “[F]irst, one
must consider whether the action was justified at its inception; sec-
ond, one must determine whether the search as actually conducted
was reasonably related in scope to the circumstances.”
Id. (cleaned
up). A search by a school official of a student is “justified at its in-
ception when there are reasonable grounds for suspecting that the
search will turn up evidence that the student has violated or is vio-
lating either the law or the rules of the school.”
Id. at 342 (internal
quotation marks omitted). “Such a search will be permissible in its
scope when the measures adopted are reasonably related to the
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21-12424 Opinion of the Court 7
objectives of the search and not excessively intrusive in light of the
age and sex of the student and the nature of the infraction.”
Id.
Safford involved school officials’ search of a thirteen-year-
old girl suspected of carrying prescription-strength ibuprofen pills.
Safford,
557 U.S. at 368. The school officials obtained a report that
the student was giving the pills to other students.
Id. School offi-
cials then searched the student’s backpack, but did not find any
pills.
Id. Next, school officials instructed the student to strip down
to her undergarments.
Id. at 369. Finally, school officials told the
student to “pull her bra out and to the side and shake it, and to pull
out the elastic on her underpants, thus exposing her breasts and
pelvic area to some degree,” but still no pills were found.
Id. While
the Supreme Court found that the search of the student’s backpack
and outer clothing was reasonable, it found that that the “strip
search” of the student was unreasonable.
Id. at 374–77. The Court
recognized that the strip search was a separate search and reasoned
that “both subjective and reasonable societal expectations of per-
sonal privacy support the treatment of such a search as categori-
cally distinct, requiring distinct elements of justification on the part
of school authorities for going beyond a search of outer clothing
and belongings.”
Id. at 374. Emphasizing that strip searches can
be “embarrassing, frightening, and humiliating,” the Court noted
the indignity of strip searches implicated “the rule of reasonable-
ness as stated in T.L.O., that the search as actually conducted be
reasonably related in scope to the circumstances which justified the
interference in the first place.”
Id. at 374–75 (internal quotation
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8 Opinion of the Court 21-12424
marks omitted and alterations adopted). The Court also reasoned
that “the categorically extreme intrusiveness of a search down to
the body of an adolescent requires some justification in suspected
facts.”
Id. at 376. Since “what was missing from the suspected facts
that pointed to [the student] was any indication of danger to the
student from the power of the drugs or their quantity, and any rea-
son to suppose that [the student] was carrying pills in her under-
wear,” the Court found that the strip search was unreasonable.
Id.
at 376–77.
We recently addressed the issue of strip searches of students
in D.H.,
830 F.3d 1306 (11th Cir. 2016). Similar to the facts here,
school officials strip searched a student on suspicion that the stu-
dent had marijuana.
Id. at 1315–16. Applying the two-step analysis
from T.L.O., we found at the first step that the strip search was
reasonable at its inception.
Id. at 1315–17. Since this was a strip
search case, we applied the rule in Safford and found that the school
officials held “a reasonable suspicion” of searching D.H.’s under-
wear because of evidence that at least one other student had hidden
marijuana in his underwear and a statement from another student
that D.H. possessed marijuana.
Id. at 1316–17. However, we
found that the search failed the scope prong of the T.L.O. test be-
cause the search was not “reasonably related to the objectives of
the search” and was “excessively intrusive in light of the age and
sex of the student and the nature of the infraction.”
Id. at 1317
(emphasis in original). The search was excessive in scope because
the school official asked D.H. to fully remove all of his clothes “in
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21-12424 Opinion of the Court 9
front of D.H’s peers” which “bore no rational relationship to the
purpose of the search itself.”
Id. We reasoned that a “strip search
in the presence of one’s peers would exponentially intensify the
embarrassment, fright, and humiliation a student experiences
when undergoing a strip search.”
Id. (internal quotation marks
omitted and alterations adopted). Instead, school officials could
have pursued a less intrusive means such as “asking D.H. to pull
his waistband away from his body” and the decision to strip search
D.H. in front of his peers made the search unreasonable.
Id. at
1318. Accordingly, we concluded that the school official’s actions
violated clearly established law, citing to Safford.
Id. at 1318–19.
III.
Our discussion proceeds in three parts. First we address
T.R.’s § 1983 Fourth Amendment claim. Second, we address her
invasion of privacy claim. Third, we address her claim of outrage.
As an initial matter, to be entitled to qualified immunity, the
school officials had to demonstrate that they were acting within
their discretionary authority. Lewis,
561 F.3d at 1291. In their brief
in support of their motion for summary judgment, the Defendants
argued that Principal Stamps and Counselor Dean were within
their discretionary authority because supervising students was
within their official duties. On appeal, T.R. argues that Principal
Stamps and Counselor Dean were not within their discretionary
authority because they strip searched T.R. without first obtaining
specific approval of Superintendent Harron, which violated
schoolboard policy. However, she did not raise this argument
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10 Opinion of the Court 21-12424
before the district court in her brief in opposition to the Defend-
ant’s motion for summary judgment regarding her Fourth Amend-
ment claim.1 Since she did not raise this argument before the dis-
trict court, she waived this argument below. See Access Now, Inc.
v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004) (“[A]n issue
not raised in the district court and raised for the first time in an
appeal will not be considered by this court.”).
Turning to T.R.’s main argument that qualified immunity
should not have been granted, we conclude that the district court
erred in finding that T.R.’s right was not clearly established at the
time of the challenged conduct. At the time Principal Stamps and
Counselor Dean strip searched T.R., there had been two materially
similar cases involving strip searches by school officials, Safford and
D.H. Both cases resulted in a finding that the strip searches were
unreasonable under T.L.O.
Starting with Safford, the Supreme Court held that
“[b]ecause there were no reasons to suspect the drugs presented a
danger or were concealed in [the student’s] underwear, we hold
that the search did violate the Constitution . . . .”
557 U.S. at 368.
Here, the district court reasoned that because school officials could
not find marijuana in T.R.’s backpack, then they had reason to
1 T.R. did raise the argument that the school officials acted beyond their au-
thority regarding her state-law claims. However, she did not expressly chal-
lenge the school officials’ discretionary authority regarding her Fourth
Amendment claim.
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suspect that they would find marijuana in T.R.’s underwear or bra.
Thus, according to the district court, the school officials had suffi-
cient reason to suspect T.R. contained drugs under her clothing,
which made this case factually distinguishable from Safford. How-
ever, this type of reasoning is of the sort that the Supreme Court
expressly forbade in Safford. There, the court rejected the school’s
argument that “as a truth universally acknowledged . . . students .
. . hide contraband in or under their clothing[.]”
Id. at 376 (internal
quotation marks omitted and alterations adopted). The Court clas-
sified this reasoning as a “general background possibilit[y]” that a
student could be hiding contraband under their clothing.
Id. This
type of general possibility is insufficient when considering “the cat-
egorically extreme intrusiveness of a search down to the body of
an adolescent.”
Id.
Instead, the school official must possess “some justification
in suspected facts . . . that [the strip search] will pay off.”
Id. The
Court provided three scenarios where a school official might have
“suspected facts” sufficient to justify a strip search: (1) where there
is evidence of a general practice of students at the school hiding
contraband in their underwear, (2) when other students suggest to
a school official that a particular student is hiding contraband in
their underwear, or (3) when an earlier search of another student’s
underwear yielded contraband.
Id. None of these circumstances
were present in this case. While other students indicated that they
had seen T.R. smoking a marijuana cigarette, the students did not
indicate that she hid them in her underwear. Further, there is no
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evidence that any other students at the school had previously hid-
den contraband under their clothing. As a result, the school offi-
cials should have been on notice that they lacked the necessary
“justification in suspected facts” required by Safford.
Further, to grant qualified immunity on these facts would
severely diminish the protections afforded students from strip
searches set out in Safford. The Supreme Court, recognizing that
a strip search was “categorically distinct” from a search of outer
clothing and belongings based on “subjective and reasonable soci-
etal expectations of personal privacy,” “place[d] a search that intru-
sive in a category of its own demanding its own specific suspi-
cions.”
Id. at 374, 377. The district court’s reasoning would re-
move the requirement of “specific suspicions” and replace it with a
rule that anytime a school official does not find drugs in a student’s
backpack, then they are justified in strip searching the student.
Accordingly, we conclude that the district court erred in dis-
tinguishing this case from Safford by reasoning that there was a
specific suspicion that T.R. was hiding drugs under her clothing be-
cause no drugs were found in her belongings. This is not a specific
suspicion, but rather a “general background possibilit[y],” which is
insufficient to justify a strip search of a student by a school official
under Safford.
Id. at 376.
The district court further erred in reasoning that case was
distinguishable from Safford because the drugs in the case pre-
sented more of a danger than the ones in Safford. This reasoning
goes to the first prong of the holding in Safford that there must be
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“reasons to suspect the drugs presented a danger” to justify a strip
search.
Id. at 368. In Safford, the drugs at issue were “prescription-
strength ibuprofen and over-the-counter naproxen, common pain
relievers equivalent to two Advil, or one Aleve.”
Id. at 375–76. The
Court in Safford does not suggest that the danger is linked solely to
the type of drug, but rather emphasized that “[the school official]
had no reason to suspect that large amounts of drugs were being
passed around, or that individual students were receiving great
numbers of pills.” Safford,
557 U.S. at 376. Thus, the danger the
Court seemed more concerned with was the threat that drugs were
being passed around to other students. However, in this case, the
evidence shows that this danger was not present. As noted in the
district court’s opinion, school officials “found drugs 2 and drug par-
aphernalia in only one place: a backpack belonging to a fourteen-
year-old female student named TR.” Thus, there was no threat
that the other students in T.R.’s class were using drugs or that T.R.
was passing drugs around in class. Accordingly, the fact that differ-
ent drugs were involved in Safford than in this case is not a material
difference.
In addition to erring in finding that there was no clearly es-
tablished law that rendered this search unjustified at its inception
under the first prong of T.L.O., the district court further erred in
finding that there was no clearly established law that rendered this
2“[D]rugs,” as it is used here in the district court’s opinion, must refer to the
prescription pills found in T.R.’s backpack. School officials did not find any
marijuana in T.R.’s backpack.
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search unreasonable in its scope under the second prong. The case
on point for the reasonableness in scope of a strip search of a stu-
dent is our decision in D.H. Although, there, we concluded that
the strip search was justified at its inception under prong one be-
cause there was evidence that students were hiding drugs under
their clothes, it was not reasonable in scope under prong two be-
cause the school official required the student to strip in front of his
peers. D.H., 830 F.3d at 1318. While the district court recognized
that D.H. was the most analogous precedent for T.R., it found that
it did not clearly establish that the school officials’ actions in this
case were unconstitutional. This conclusion was based on an im-
properly narrow reading of D.H. The district court read our deci-
sion in D.H. to only establish that a strip search is unconstitutional
when done in the presence of the student’s peers. However, we
noted in D.H. that the “measures adopted” in a strip search must
be “reasonably related to the objectives of the search and not ex-
cessively intrusive.” Id. at 1317 (emphasis in original). In D.H., we
found that the decision by the school official to have the student
remove all of his clothing “bore no rational relationship to the pur-
pose of the search itself.” Id. Thus, D.H. clearly establishes that
the actions taken by a school official in a strip search must be ra-
tionally related to the purpose of the search, which in this case
would be finding marijuana.
Here, there are two facts that establish this search was not
reasonable in scope. First and foremost, school officials strip
searched T.R. twice. Not only did they not have reasonable
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suspicion to strip search T.R. the first time, but the school officials
also clearly had no basis to strip search T.R. a second time after the
first search yielded nothing. T.R. did not leave the counselor’s of-
fice in between the searches, so there is no basis to conclude that
she might have acquired marijuana in that time. Thus, asking T.R.
to strip naked a second time “bore no rational relationship to the
purpose of the search itself.” Id. at 1317.
Second, T.R. alleged that the first search was conducted in
front of an open window in the counselor’s office. The open win-
dow was in the office’s door, which led to a public hallway. Alt-
hough the Defendants dispute this fact in their brief, we view the
facts in the light most favorable to the plaintiff at the summary
judgment stage. Even though, luckily, no students or other school
officials saw T.R. while she was being strip searched, that is ulti-
mately beside the point. The presence of a window made it possi-
ble that someone could see T.R. in this vulnerable position. This
possibility would have made the actual search much more fright-
ening, as T.R. had no way of knowing if someone would walk by.
Thus, conducting the search in front of an open window to a public
hallway “unnecessarily subjected [T.R.] to a significantly higher
level of intrusion.”
Accordingly, we conclude that the district court erred in
finding that D.H. was distinguishable enough from this case that
the Defendants were not on notice of a constitutional violation.
D.H. clearly established that when a school official makes the strip
search more intrusive than necessary, the search is
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16 Opinion of the Court 21-12424
unconstitutional. Although there were no students present in the
room during the strip search, as was the case in D.H., we do not
think that is a material difference that would shield the Defendant’s
actions in this case. As the Supreme Court noted in Mullenix v.
Luna, for a clearly established right in the context of qualified im-
munity, “[w]e do not require a case directly on point, but existing
precedent must have placed the statutory or constitutional ques-
tion beyond debate.”
577 U.S. 7, 12 (2015). We think that our prec-
edent in D.H. puts the constitutional question in this case “beyond
debate” where school officials, conducting a strip search, unneces-
sarily subject the student “to a significantly higher level of intru-
sion,” the search is unreasonable in its scope. D.H., 830 F.3d at
1317. Therefore, the district court erred in finding that D.H. was
not analogous precedent in this case that provided a clearly estab-
lished example of a constitutional violation in the context of a strip
search of a student.
In sum, we conclude that both Safford and D.H. provide
“case law with indistinguishable facts clearly establishing the con-
stitutional right,” id. at 1318, and the district court erred in finding
to the contrary in this case.
Although we find that there was a genuine issue of material
fact as to whether the Defendants’ conduct was unreasonable un-
der clearly established law, our analysis does not end there. In ad-
dition to finding that the right was clearly established, we must also
“determine[] whether the [Defendants’] conduct amounted to a
constitutional violation.” Lewis,
561 F.3d at 1291. The district
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court did not address this issue, but instead granted summary judg-
ment in favor of the Defendants because the law was not clearly
established. We conclude that a factfinder could find the Defend-
ants’ conduct constituted a constitutional violation, as demon-
strated in our “clearly established” analysis above. As discussed,
the school officials’ strip search was unreasonable at its inception
under the first prong of T.L.O. because the school officials did not
have “reasons to suspect the drugs presented a danger or were con-
cealed in [T.R.’s] underwear.” Safford,
557 U.S. at 368. The strip
search was also unreasonable in its scope under the second prong
of T.L.O. because the school officials’ decision to strip search T.R.
twice and in front of an open window “exposed [T.R.] to an unnec-
essary level of intrusion that rendered the search excessive in scope,
and, therefore, unconstitutional.” D.H., 830 F.3d at 1318.
Since the Defendants’ actions violated a clearly established
constitutional right, we conclude that the Defendants are not enti-
tled to qualified immunity. Thus, the district court erred in grant-
ing summary judgment in favor of the Defendants on T.R.’s Fourth
Amendment claim. Accordingly, we reverse and remand to the
district court on T.R.’s
42 U.S.C. § 1983 unreasonable search and
seizure claim.
IV.
Turning next to T.R.’s invasion of privacy claim, T.R. argues
that because the Defendants violated a schoolboard policy when it
strip searched T.R., the Defendants are not entitled to State-agent
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18 Opinion of the Court 21-12424
immunity, thus shielding them from liability for T.R.’s invasion of
privacy claim.
Alabama’s “State-agent immunity protects state employees,
as agents of the State, in the exercise of their judgment in executing
their work responsibilities.” Ex parte Hayles,
852 So. 2d 117, 122
(Ala. 2002). “When a defendant raises the defense of State-agent
immunity, the defendant bears the initial burden of showing that
he or she qualifies for State-agent immunity.” Ex parte Brown,
182
So. 3d 495, 503 (Ala. 2015). “If the defendant satisfies that burden,
the burden then shifts to the plaintiff to show that one of the two
exceptions to State-agent immunity is applicable.”
Id. Under Ala-
bama law, the defendant is not entitled to State-agent immunity if
the plaintiff shows that the defendant “acted willfully, maliciously,
fraudulently, in bad faith, or beyond his or her authority.” Grider
v. City of Auburn,
618 F.3d 1240, 1255 (11th Cir. 2010).
In Brown, the Alabama Supreme Court noted that in analyz-
ing whether a State agent acted “beyond his or her authority,” “the
determinative consideration is whether the State agent failed to dis-
charge duties pursuant to detailed rules and regulations.” Brown,
182 So. 3d at 504 (internal quotation marks omitted and emphasis
added). There, the issue was whether a police officer acted “be-
yond his or her authority” by failing to adhere to a city’s pursuit
policy. Id. The Alabama Supreme Court concluded that
“[b]ecause the policy provides that the procedure for all pursuits is
subject to an officer’s or the officer’s supervisor’s exercise of discre-
tion . . . the policy and procedure constitute guidelines, not
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‘detailed rules and regulations, such as those stated on a checklist’
that must be followed by an officer” Id. at 506 (emphasis in origi-
nal).
Here, the district court applied the Alabama Supreme
Court’s reasoning in Brown and concluded that the schoolboard
policy was too broad and left too much to discretion. Thus, the
policy was more akin to guidelines than detailed rules and regula-
tions. In relevant part, the policy provides:
Student searches must be conducted by a school ad-
ministrator in the presence of another certified school
employee and may include a private pat down of the
student, a search of personal items and clothing, or a
more thorough search upon specific approval of the
Superintendent. Personal searches will be conducted
with due regard for the age and gender of the student.
Searches that require physical contact between the
school official and the student, removal of clothing,
or examination of the student in a way that would im-
plicate privacy concerns must be conducted and wit-
nessed by officials of the same gender as the student
and in a way that preserves the dignity of the student
to extent practicable under the circumstances.
Despite the mandatory phrases that “[s]tudent searches
must be conducted by a school administrator in the presence of an-
other certified school employee” and “[s]earches that require phys-
ical contact . . . must be conducted and witnesses by officials of the
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20 Opinion of the Court 21-12424
same gender,” the district court found that “[t]his language leaves
much to discretion. T.R. argues that her strip search was “a more
thorough search” than a private pat down or search of personal be-
longings or clothing and since Principal Stamps and Counselor
Dean did not obtain approval from Superintendent Harron before
conducting this more thorough search, they were acting beyond
their authority and not entitled to State-agent immunity.
The parties do not seem to dispute that Superintendent Har-
ron was not notified before the strip search took place. However,
the Defendants maintain that the schoolboard policy is a general
guideline and not a detailed list of rules. Accordingly, failure to
abide by these “guidelines” would not remove the Defendants’
State-agent immunity. Brown, 182 So. 3d at 506. We are not con-
vinced that the schoolboard policy is only a guideline and not a de-
tailed list of rules. In Giambrone, the Alabama Supreme Court
looked to whether a wrestling coach’s failure to abide by coaching
guidelines meant that the coach was acting beyond his authority
and therefore not entitled to State-agent immunity. Giambrone v.
Douglas,
874 So. 2d 1046, 1052 (Ala. 2003). There, the court noted
that the wrestling coach’s “‘broad authority’ to exercise judgment
in the safe conduct of his wrestling team practices was limited by
the guidelines and rules furnished and imposed.”
Id. at 1054. A
few examples provided were that coaches must not arrange
matches between players who differed greatly in skill and prohibit-
ing certain types of wrestling moves.
Id. The court found that
these “guidelines and rules provided specific instructions regarding
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21-12424 Opinion of the Court 21
the proper techniques to be used in coaching the sport of wres-
tling.”
Id. at 1055. The court concluded that “[b]ecause a trier of
fact could determine that [the coach] performed an illegal move
during an ‘inequitable’ challenge match, thereby failing to dis-
charge duties pursuant to ‘detailed rules or regulations,’ we cannot
determine at [the summary judgment] stage in the proceedings
that [the coach] is entitled to State-agent immunity.”
Id.
Here, the Defendants are certainly entitled to “broad au-
thority” in determining who to search and the level of intrusiveness
necessary for a search. However, as in Giambrone, the Defend-
ants’ authority to search students is “limited by the guidelines and
rules furnished and imposed.”
Id. at 1054. For example, the
schoolboard policy requires that more thorough searches require
“specific approval of the Superintendent.” Further, searches re-
quiring physical contact must be conducted by school officials of
the same gender as the student being searched. We cannot agree
with the district court that the schoolboard policy “leaves much to
discretion” in terms of how certain searches must be conducted.
Like the wrestling coach in Giambrone, we cannot say that a school
official would be discharging his or her duties pursuant to “detailed
rules or regulation” if the school official did not conduct a search in
accordance with this policy. Thus, the schoolboard policy is not a
guideline, which, if not followed, would have no impact on a
school official’s entitlement to State-agent immunity. Rather, the
policy is a detailed set of rules and regulations. Because a trier of
fact could determine that the Principal Stamps and Counselor
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22 Opinion of the Court 21-12424
Dean conducted a more thorough search without seeking approval
from the Superintendent, we cannot conclude that Defendants are
entitled to State-agent immunity. Accordingly, we reverse the dis-
trict court’s grant of State-agent immunity to the Defendants as to
T.R’s invasion of privacy claim.
V.
Lastly, we address T.R.’s state-law claim of outrage. Under
Alabama law, “the tort of outrage is the same cause of action as
intentional infliction of emotional distress.” Wilson v. Univ. of Ala.
Health Servs. Found., P.C.,
266 So. 3d 674, 675 n.1 (Ala. 2017). “For
a plaintiff to recover under the tort of outrage, she must demon-
strate that the defendant’s conduct (1) was intentional or reckless;
(2) was extreme and outrageous; and (3) caused emotional distress
so severe that no reasonable person could be expected to endure
it.”
Id. at 676. “The conduct complained of must be so extreme in
degree as to go beyond all possible bounds of decency and be re-
garded as atrocious and utterly intolerable in civilized society.”
Id.
at 676–77 (internal quotation marks omitted). The Alabama Su-
preme Court has only recognized the tort of outrage in three cir-
cumstances: (1) wrongful conduct in the family-burial context, (2)
barbaric methods employed to coerce an insurance settlement, and
(3) egregious sexual harassment.
Id. at 677. However, the tort of
outrage is not limited to those three situations.
Id.
The district court found that T.R.’s outrage claim failed be-
cause the Defendant’s conduct was not “outrageous or extreme
enough to create a question of fact.” T.R. contends that the district
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21-12424 Opinion of the Court 23
court understated the severity of the strip search, emphasizing the
intrusive nature of the strip search and the fact that the school offi-
cials strip searched T.R. twice. The Defendant’s main response to
T.R. is that the conduct was not outrageous or extreme when con-
sidering the fact that T.R.’s mother hugged the school officials after
the search. Despite ignoring the fact that T.R.’s mother is now su-
ing the school, this fact also does not take into consideration how
T.R. was affected by this search. The district court noted in its
opinion that T.R. believed the two searches were “especially intru-
sive” because, one, she was on her menstrual cycle, and two, the
search was conducted in front of an open window. As a result, T.R.
felt “humiliated and embarrassed and gross.”
When considering the degree of intrusiveness of the search
and the fact that school officials searched T.R. twice, we conclude
that T.R.’s claim for outrage creates a sufficient question for the
jury and the district court erred in ruling on this claim at the sum-
mary judgment stage. Although this case is not within the three
scenarios where the Alabama Supreme Court has found outrage
before, the tort of outrage is not limited to those three situations.
Wilson, 266 So. 3d at 677. Accordingly, we reverse the district
court’s order granting summary judgment in favor of the Defend-
ants as to T.R.’s outrage claim.
REVERSED and REMANDED.
