Jenkins v. Talladega City Bd. of Ed ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-6243.
Cassandra JENKINS, a minor, by her mother and next friend, Sandra
HALL; Onieka McKenzie, a minor, by her mother and next friend,
Elizabeth McKenzie, Plaintiffs-Appellants,
v.
TALLADEGA CITY BOARD OF EDUCATION; Susannah Herring,
individually and in her capacity as a teacher of Graham Elementary
School; Melba Sirmon, individually and in her capacity as
counselor at Graham Elementary School, Defendants-Appellees,
Charles Kurley, in his official capacity as Superintendent of the
Talladega City School District, et al., Defendants.
Sept. 23, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. 94-PT-739-E), Robert B. Propst, Judge.
Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER*, Senior
District Judge.
KRAVITCH, Circuit Judge:
This action was brought on behalf of two elementary school
students who allegedly were strip searched by a teacher and
guidance counselor after having been accused of stealing money from
a classmate. The district court concluded that defendants were
entitled to summary judgment on all claims. In particular, the
court granted the individual defendants summary judgment on
plaintiffs' § 1983 Fourth Amendment claims. We affirm all of the
district court's summary judgment orders, except for the grant of
qualified immunity to defendants on the Fourth Amendment claims,
which we reverse.
*
Honorable William W. Schwarzer, Senior U.S. District Judge
for the Northern District of California, sitting by designation.
I.
In 1992, Cassandra Jenkins and Onieka McKenzie were
eight-year-old second graders at Graham Elementary School in
Talladega, Alabama. On the afternoon of May 1, one of Cassandra's
and Onieka's classmates told their teacher, Hilda Fannin, that $7
was missing from her purse. Another classmate told Fannin that
Cassandra had taken the money and stashed it in Onieka's backpack.
After searching the backpack and finding no money, Fannin
questioned Cassandra and Onieka in the hallway outside the
classroom. The girls accused each other, as well as a male
classmate, Anthony Jemison, of the theft.
As Fannin's questioning of Cassandra, Onieka, and Anthony
continued in the hallway, the school music teacher, Susannah
Herring, approached. Upon being informed of the theft accusation,
Herring took charge of the investigation. First, she instructed
the three students to take off their shoes and socks. No money was
revealed. Herring then summoned Melba Sirmon, a guidance counselor
whose office was nearby. Herring and Sirmon took Cassandra and
Onieka to the girls' restroom.
Inside the restroom, Herring told Cassandra and Onieka to
"check" their clothes for the money. According to Cassandra,
Herring ordered them to go inside the stalls and come back out with
their underpants down to their ankles. 1 As Cassandra and Onieka
entered separate stalls and locked the doors, Sirmon left the
restroom to check on Anthony, who was waiting outside. Shortly
1
Herring claims that she merely told Cassandra and Onieka to
"check" their clothes, not to remove them.
after she returned, according to Cassandra, Cassandra and Onieka
emerged from the stalls with their underpants pulled down to their
ankles. Herring asked them if they had found the money, and they
replied that they had not. Sirmon allowed them to return to their
stalls and pull their underpants back up.2
Herring and Sirmon then escorted Cassandra, Onieka, and
Anthony to the office of the school principal, Crawford Nelson.
After hearing Herring's account of what had happened,3 Nelson
interrogated the three children about the location of the stolen
cash. Anthony claimed that the money was hidden behind a file
cabinet and then, when nothing was found there, that it was stashed
in a locker. Nelson concluded that Anthony had no idea where the
money was and dismissed him.
From Nelson's office, Herring and Sirmon took Cassandra and
Onieka back to the restroom.4 Inside, Herring ordered the two
girls to take off their dresses, which they did. Cassandra was
wearing a slip; Onieka was wearing only underpants. Herring then
instructed them to shake their dresses, and she shook the slip
Cassandra was wearing. After nothing was found, Cassandra and
2
Onieka testified that she and Cassandra pulled their
underpants down and back up while inside the locked stalls and
that neither came out of the stalls with her underpants down.
3
Although Herring apparently did not inform Nelson that
Cassandra and Onieka had removed their clothes in the restroom,
Nelson testified that he expressed disapproval of her forcing the
girls to remove their shoes and socks.
4
Herring and Sirmon assert that they only took Cassandra and
Onieka to the restroom once, before they met with Nelson; thus,
they dispute the girls' description of the second restroom
incident in its entirety. There is no evidence that Nelson
authorized or was aware of a second restroom trip.
Onieka were allowed to put their dresses back on. This account was
corroborated by a witness. Joyce Merritt Shears, the parent of
another student, was walking in the hallway past the girls'
restroom while Cassandra and Onieka were being searched. Shears
heard children crying and an adult say either "remove your slip" or
"hold up your slip." Entering the restroom to investigate, Shears
saw Cassandra and Onieka, "one in their panties and the other one
in their slip."
The Talladega City Board of Education ("Board") conducted an
investigation of the strip search. After a hearing, the Board
concluded that Herring had committed a "gross error in judgment"
regarding the manner in which she investigated the alleged theft;
that Sirmon had erred in her judgment by assisting Herring, failing
to notify the principal immediately, and not calling Cassandra's
and Onieka's parents; and that Nelson had erred in his judgment by
not calling the girls' parents and failing to establish a uniform
policy for dealing with theft in the school. Despite the
superintendent's recommendation that Herring be fired, the Board
did not impose any serious sanctions.
Plaintiffs, on behalf of Cassandra and Onieka, filed a
complaint against the Board and nine individual defendants
(including Nelson, Herring, and Sirmon) in 1994, alleging, pursuant
to 42 U.S.C. § 1983, that they had been strip searched in violation
of the Fourth Amendment, Title VI of the Civil Rights Act of 1964,
5
and Title IX of the Education Amendments of 1972, and also
5
Cassandra and Onieka, who are black, claim that the
searches conducted by Herring and Sirmon, who are white, were
discriminatory based on race and gender. With respect to gender,
alleging violations of Alabama tort law. The district court
initially dismissed all claims for money damages against all
defendants, except for those against Herring and Sirmon in their
individual capacities and those against the Board. Then, on its
own initiative, the court entered an order stating that it was
reconsidering whether Herring and Sirmon were entitled to qualified
immunity for the allegedly unconstitutional search in light of
recent Eleventh Circuit decisions. The court proceeded to grant
summary judgment on the basis of qualified immunity in favor of the
individual defendants on the Fourth Amendment claim. In addition,
the court granted summary judgment for all defendants on the Title
VI and Title IX claims, finding no substantial evidence of
discrimination based on race or gender; for the Board on the §
1983 Fourth Amendment claim, finding no basis for municipal
liability; for all defendants on the claims for injunctive and
declaratory relief, finding that the plaintiffs lacked standing to
bring these claims; and for individual defendants on the state law
claims, finding that the defendants were entitled to qualified
immunity under Article I, § 14 of the Alabama Constitution.
Plaintiffs now appeal.
II.
We affirm the grant of summary judgment for all defendants on
plaintiffs observe that Anthony Jemison was not strip searched
despite also being accused of the theft. With respect to race,
they point to other searches in Talladega schools that, they
allege, demonstrate a correlation between the intrusiveness of
the searches and the race of the students searched. After
carefully reviewing the record, we agree with the district court
that the plaintiffs have failed to present sufficient evidence of
discrimination based on gender or race to survive the summary
judgment motion.
the Title VI and Title IX claims, for the Board on the Fourth
Amendment § 1983 claim, for all defendants on the claims for
injunctive and declaratory relief, and for the individual
defendants on the state law claims.6 This leaves the issue of §
1983 qualified immunity for the individual defendants on
plaintiffs' Fourth Amendment claims.
The district court granted Herring and Sirmon qualified
immunity, concluding that Fourth Amendment law was not "clearly
established" as applied to their conduct.7 We reverse the district
court's decision because Fourth Amendment law was sufficiently
clear in 1992 that there could be no doubt that Herring's and
Sirmon's actions (construing the evidence and all reasonable
inferences therefrom in the light most favorable to the plaintiffs
at the summary judgment stage) were unconstitutional.
III.
Before reaching the merits, we wish to clarify some general
qualified immunity issues that seem to have confused the district
6
Although we do not adopt the district court's thorough
memorandum opinions on these issues as part of the opinion of
this court, we generally find the court's analysis cogent and
persuasive. Plaintiffs' contentions on appeal regarding these
issues lack merit.
7
The district court also granted qualified immunity to
Nelson. On appeal, plaintiffs seem to argue that Nelson should
be stripped of immunity because he violated clearly established
law by failing to train teachers in proper search methods. This
argument confuses individual liability for a constitutional
violation with municipal liability under § 1983. Plaintiffs do
not appear to claim that Nelson's alleged failure to train
teachers amounts to an independent constitutional violation for
which he could potentially be held liable in his individual
capacity. Thus, the issue of qualified immunity should not even
arise with respect to Nelson. We affirm the district court's
grant of summary judgment in favor of Nelson.
court and defendants in this case.
The Supreme Court's qualified immunity doctrine attempts to
strike a balance between two competing concerns: the necessity for
constitutional damages actions against public officials because
such actions "may offer the only realistic avenue for vindication
of constitutional guarantees" and the need to limit the costs to
individuals and society created by litigation against public
officials—including diversion of official energies from pressing
public issues, deterrence of able citizens from acceptance of
public office, and "the danger that fear of being sued will "dampen
the ardor of all but the most resolute, or the most irresponsible
[public officials], in the unflinching discharge of their duties.'
" Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736,
73 L.Ed.2d 396 (1982) (quoting Gregoire v. Biddle, 177 F.2d 579,
582 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94
L.Ed. 1363 (1950)).
In its effort to strike the optimal balance, the Supreme Court
in Harlow v. Fitzgerald established an objective test for qualified
immunity: government officials performing discretionary functions
are immune from § 1983 liability for monetary damages "insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." 457 U.S. 800, 817-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396(1982). In Anderson v. Creighton, the Court explained when a right
is "clearly established":
The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right. This is not to say that an official
action is protected by qualified immunity unless the very
action in question has previously been held unlawful, but it
is to say that in the light of pre-existing law the
unlawfulness must be apparent.
483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)
(citations omitted).
These standards allow us to filter out the most culpable or
least competent public officials and make them liable for damages,
thereby striking the balance sought in Harlow by permitting the
vast majority of government to operate free from panoptic judicial
oversight or constitutional job descriptions while still retaining
a viable avenue for vindication of constitutional guarantees.
Since Anderson, this court has devoted much effort to staking
out an operational standard somewhere between the Anderson Court's
polar extremes: "in light of pre-existing law the unlawfulness
must be apparent," but "the very action in question [need not have]
previously been held unlawful." Over-emphasizing either of the
Anderson poles flouts the Supreme Court's efforts to construct a
meaningful doctrine of qualified immunity. To treat each set of
facts as unique and legally indeterminate would make qualified
immunity absolute by denying that any unlawful conduct violates
rights that were "clearly established." At the other extreme,
relying on abstract, highly general formulations of rights would
effectively abrogate immunity by declaring every violated right
"clearly established." After Anderson, then, this court has sought
a stable equilibrium between these opposing pressures.
Although there is no doubt that qualified immunity law in this
circuit has evolved in its application to some extent in the
direction of more protection for government officials, this has
simply been the result of implementing the Anderson Court's
clarification of the appropriate level of generality at which a
right must be "clearly established" for purposes of qualified
immunity. See Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1150
(11th Cir.1994) (en banc) ("The most common error we encounter ...
occurs on this point: courts must not permit plaintiffs to
discharge their burden by referring to general rules and to the
violation of abstract "rights.' ") (citing Anderson, 483 U.S. at
637-41, 107 S.Ct. at 3038-39).
Some of our efforts, however, have been misinterpreted as a
sea change in qualified immunity. For instance, the district court
in this case originally concluded that Sirmon's and Herring's
actions did violate clearly established Fourth Amendment law, but
it felt obligated to reconsider sua sponte based on its reading of
some recent Eleventh Circuit qualified immunity cases. See, e.g.,
Lassiter, 28 F.3d 1146.8
Notwithstanding Lassiter 's admonition that the court was
announcing no "[n]ew rules," but merely "for emphasis ...
restat[ing] principles which do govern qualified immunity cases,"
28 F.3d at 1149, that opinion has been misconstrued as announcing
a sweeping change. For instance, the statement in Lassiter that
"[f]or qualified immunity to be surrendered, pre-existing law must
dictate, that is, truly compel (not just suggest or allow or raise
a question about), the conclusion for every like-situated,
8
In addition to Lassiter, the district court cited Spivey v.
Elliott, 41 F.3d 1497 (11th Cir.1995); Belcher v. City of Foley,
30 F.3d 1390 (11th Cir.1994); and Post v. City of Ft.
Lauderdale, 7 F.3d 1552 (11th Cir.1993), modified, 14 F.3d 583(11th Cir.1994).
reasonable government agent that what defendant is doing violates
federal law in the circumstances," Lassiter, 28 F.3d at 1150, has
been read by some to indicate that qualified immunity is due every
official unless this court has addressed essentially identical
facts in a previous case. But Lassiter merely rephrases the
Anderson standard, "in the light of pre-existing law the
unlawfulness must be apparent." Lassiter does not abrogate
Anderson 's recognition that "the very action in question [need not
have] previously been held unlawful" nor could it have.
Likewise, other cases have been misconstrued. We can all
agree that "[i]f case law, in factual terms, has not staked out a
bright line, qualified immunity almost always protects the
defendant," Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557
(11th Cir.1993), modified, 14 F.3d 583 (11th Cir.1994). This is
another restatement of the Anderson requirement that the law must
be apparent, but it does not answer the question "how bright?" or
define the set of cases gestured towards by "almost." In other
words, these recent cases have not eviscerated Anderson 's
recognition that "the very action in question [need not have]
previously been held unlawful." Thus, the basic principles of
qualified immunity doctrine remain unchanged.
The confusion over qualified immunity is exemplified by
defendants' apparent assumption that relevant law can be "clearly
established" only when there exist cases with facts materially
similar to those of the case at hand, as evidenced by their
insistence that qualified immunity is due here because this court
has never addressed a factually similar case. This argument is
false in at least two circumstances: those in which the official
misconduct is more egregious than conduct of the same general type
that has been deemed illegal in other cases9 and those rare cases
in which application of the legal standard would necessarily lead
reasonable officials in the defendant's situation to but one
inevitable conclusion. It is the latter we are most interested in
here.
Lassiter explicitly left "open the possibility that
occasionally the words of a federal statute or federal
constitutional provision will be specific enough to establish the
law applicable to particular circumstances clearly and to overcome
qualified immunity even in the absence of case law." Lassiter, 28
F.3d at 1150 n. 4. It, of course, follows that if a federal
statute or federal constitutional provision can clearly establish
the law in the absence of case law, the Supreme Court's
9
See Dolihite v. Maughon, 74 F.3d 1027, 1048 (11th Cir.1996)
(examining the facts to determine whether or not the act alleged
in that case was "as egregious as [previous] cases, or more so").
In other words, if cases make clear that conduct x is
constitutionally or statutorily forbidden, then the law is
certainly "clearly established" with respect to conduct y if y is
worse than x relative to the reason x is unconstitutional or
otherwise illegal. And this is so even if—or especially if—the
facts of y differ considerably from the facts of x:
It begins to seem as if to survive a motion to dismiss
a suit on grounds of immunity the plaintiff must be
able to point to a previous case that differs only
trivially from his case. But this cannot be right.
The easiest cases don't even arise. There has never
been a section 1983 case accusing welfare officials of
selling foster children into slavery; it does not
follow that if such a case arose, the officials would
be immune from damages liability because no previous
case had found liability in those circumstances.
K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir.1990).
pronouncement of a constitutional test could also be specific
enough to do so.
That the law can be clearly established where the application
of a constitutional standard leads to an inevitable conclusion that
the acts are unconstitutional should be obvious given the purposes
of qualified immunity. If a government official with even the most
rudimentary, not to say reasonable, understanding of relevant law
would have no doubt that his conduct was unconstitutional or
otherwise illegal, then it would be perverse to immunize him from
liability simply because his behavior was more egregious than any
on record or because this court never before faced a similar set of
facts.
Our circuit recently applied this very reasoning. In
McMillian v. Johnson, 88 F.3d 1554 (11th Cir.1996), the plaintiff
contended that, by placing him on deathrow while he awaited trial,
local officials had violated his due process right to be free from
punishment as a pretrial detainee. The lack of cases with
materially similar facts did not preclude the McMillian court from
denying summary judgment to the defendants on qualified immunity
grounds. The court found that the Supreme Court's constitutional
directive as set forth in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct.
1861, 60 L.Ed.2d 447 (1979)—that officials cannot impose conditions
on pretrial detainees with an intent to punish—would have put any
reasonable official on notice that the acts alleged in McMillian
violated clearly established law:
[F]or the law to be clearly established, a court need not have
found the very action in question unlawful; what is essential
is that the action's unlawfulness be apparent in light of
pre-existing law. Jordan [v. Doe ], 38 F.3d [1559,] 1566 [
(11th Cir.1994) ]. We do not view the absence of a case
factually similar to the extraordinary allegations in this
case as an indication that the law was not clearly established
that confining a pretrial detainee on death row to punish him
is unconstitutional. Bell's prohibition on any pretrial
punishment, defined to include conditions imposed with an
intent to punish, should have made it obvious to all
reasonable officials in [defendants'] place that holding
[plaintiff] on death row to punish him before he was tried
violated [his] due process rights.
McMillian, 88 F.3d at 1565 (emphasis added). Thus, McMillian held
that, at least for purposes of the case before it, the Bell rule
clearly established the law.
Defendants next argue that even if a constitutional standard
might clearly establish the law in some circumstances, the relevant
law can virtually never be clearly established by cases that employ
balancing tests. ( New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct.
733, 83 L.Ed.2d 720 (1985), the case governing application of the
Fourth Amendment to school searches, uses a balancing test.) The
premise appears to be that balancing tests, by their nature, do not
stake out a bright enough line to put public officials on notice of
when their conduct violates a constitutional right.
The defendants' premise is flawed. It is indisputable that
cases applying the balancing test may well make its application to
allegedly unconstitutional conduct entirely determinate.10 Thus,
10
As Lassiter reiterated:
"If case law, in factual terms, has not staked out a
bright line, qualified immunity almost always protects
the defendant." Post v. City of Ft. Lauderdale, 7 F.3d
1552, 1557 (11th Cir.1993), modified, 14 F.3d 583 (11th
Cir.1994); accord Kelly v. Curtis, 21 F.3d 1544, 1554
(11th Cir.1994). "The line is not to be found in
abstractions—to act reasonably, to act with probable
cause, and so forth—but in studying how these
abstractions have been applied in concrete
circumstances." Barts [v. Joyner ], 865 F.2d [1187,]
there never has been any doubt that public officials can be
stripped of qualified immunity when, for instance, they conduct a
warrantless search that could not reasonably be thought supported
by probable cause or exigent circumstances.11 And, although it is
true that the mere statement of a balancing test (or other flexible
legal standard) will usually be insufficient to determine whether
particular conduct is clearly illegal, such a test, like other
legal standards or statutes, may be sufficient to clearly establish
the law in some, albeit rare, circumstances. See Oladeinde v. City
of Birmingham, 963 F.2d 1481, 1487 (11th Cir.1992) (concluding,
without citing a materially similar case, that application of the
balancing test in that case would lead to the "inevitable
conclusion" that defendants violated the Constitution) (Edmondson,
J.), cert. denied, 507 U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 1531194 [ (11th Cir.1989), cert. denied, 493 U.S. 831, 110
S.Ct. 101, 107 L.Ed.2d 65 (1989) ].
Lassiter, 28 F.3d at 1150.
11
See, e.g., Anderson, 483 U.S. at 635, 107 S.Ct. at 3034(assuming this to be true while emphasizing that the converse is
also true); Williamson v. Mills, 65 F.3d 155, 157-58 (11th
Cir.1995) (no qualified immunity for police officer on Fourth
Amendment false arrest claim where "pre-existing law compels the
conclusion" that officer lacked "even arguable probable cause");
Hartsfield v. Lemacks, 50 F.3d 950, 955 (11th Cir.1995) (no
qualified immunity for police officer who failed to make
reasonable effort to identify residence to be searched where "all
reasonable police officers should have known" that this violated
the law); Swint v. City of Wadley, 51 F.3d 988, 996-1000 (11th
Cir.1995) (no qualified immunity for police officers who
conducted warrantless searches and seizures without, in light of
the facts of analogous Fourth Amendment cases, "even arguable
probable cause"); Von Stein v. Brescher, 904 F.2d 572, 579 (11th
Cir.1990) ("[A]pplying the qualified immunity test in the context
of Plaintiff's alleged unlawful arrest, we must determine whether
reasonable officers in the same circumstances and possessing the
same knowledge as the Defendants could have believed that
probable cause existed to arrest Plaintiff....").
(1993).
It is, therefore, misleading to speak of a separate category
of cases in which there is no "bright-line" rule that "puts the
reasonable public [official] on notice of a constitutional
violation," but in which the official is nonetheless not entitled
to qualified immunity when application of a balancing test "would
lead to the inevitable conclusion" that the official's conduct was
unconstitutional. Dartland v. Metropolitan Dade County, 866 F.2d
1321, 1323 (11th Cir.1989) (acknowledging a balancing test will
lead to the inevitable conclusion that a defendant's conduct
violated clearly established law in some cases). If the facts of
other cases applying the balancing test or the test itself leads to
such an "inevitable conclusion," then the "bright-line" has been
drawn.
IV.
The qualified immunity question presented by this case is
whether Fourth Amendment law "clearly established" that the search
of Cassandra and Onieka conducted by Herring and Sirmon was
unconstitutional.12 The application of the Fourth Amendment to
searches of public school students is 13 governed by New Jersey v.
12
Harlow requires that the defendant official prove that "he
was acting within the scope of his discretionary authority when
the allegedly wrongful acts occurred," before the burden of proof
shifts to the plaintiff to demonstrate that the defendant
violated clearly established law. Zeigler v. Jackson, 716 F.2d
847, 849 (11th Cir.1983). Plaintiffs in this case concede that
Herring and Sirmon were acting within the scope of their
discretionary authority at the time of the search.
13
Although we use the present tense here, our analysis of
the relevant law is historical: we are interested in the state
of the law at the time of the alleged unconstitutional conduct,
May 1, 1992.
T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).
T.L.O., a 14-year-old high school student, was spotted by a teacher
smoking in the bathroom. When questioned by a school
administrator, T.L.O. denied smoking in the bathroom and claimed
that she did not smoke at all. The administrator demanded and
opened T.L.O.'s purse, discovering a pack of cigarettes. Reaching
into the purse for the cigarettes, the administrator noticed a
package of rolling papers. The administrator, suspecting that
further evidence of drug use might be found, proceeded to search
the purse thoroughly, revealing marijuana and various implements of
dealing the drug. 469 U.S. at 325-36, 105 S.Ct. at 735-36.
After deciding that the Fourth Amendment applies to searches
of public school students, the Court held that the search of
T.L.O.'s purse was not unreasonable. Balancing "the child's
interest in privacy" against "the substantial interest of teachers
and administrators in maintaining discipline in the classroom and
on school grounds," id. at 338-39, 105 S.Ct. at 741, the Court
concluded that the reasonableness of a school search was determined
by a two-part inquiry—whether it was (1) justified at its inception
and (2) permissible in scope—with no requirement of probable cause.
Id. at 339-43, 105 S.Ct. at 742-43. In particular, the Court
specified the following standards:
Under ordinary circumstances, a search of a student by a
teacher or other school official will be "justified at its
inception" when there are reasonable grounds for suspecting
that the search will turn up evidence that the student has
violated or is violating either the law or the rules of the
school. Such a search will be permissible in its scope when
the measures adopted are reasonably related to the objectives
of the search and not excessively intrusive in light of the
age and sex of the student and the nature of the infraction.
Id. at 341-42, 105 S.Ct. at 743.
We apply these precepts to the case at hand. In doing so, we
note that this circuit, before May 1, 1992, had not had the
opportunity to apply T.L.O.'s standards in factually similar
circumstances. The lack of Eleventh Circuit case law does not,
however, preclude us from determining whether the Supreme Court's
directive itself would have led reasonable school officials to the
inevitable conclusion that their behavior violated the
Constitution.
We will assume that the searches of Cassandra and Onieka in
this case comprised a single, step-by-step search that was
justified at its inception.14 For the purposes of this case, we
will assume that their classmate's accusation may have provided
"reasonable grounds" for searching Onieka's backpack and, perhaps,
even for requiring the children to remove their shoes and socks.
We will also assume that these first stages of the overall search
were reasonable in scope. It is the following stages, the restroom
searches, and their expansion in scope that create the glaring
problem.
Under T.L.O., the two restroom searches in which Cassandra and
14
Alternatively, we could conceptualize what occurred as a
series of separate searches, each requiring independent
justification at its inception. Cf. T.L.O., 469 U.S. at 341-49,
105 S.Ct. at 743-46 (Court treated the initial investigation of
T.L.O.'s purse for cigarettes and the continued investigation
after rolling papers were spotted as separate searches,
concluding that each was justified at its inception). As
indicated by our discussion later in the text where we address
whether the search was reasonable in scope, the two restroom
searches probably were not justified at their inceptions. We
choose not to rest our holding on this inquiry, however, because
the more blatant injustice in this case is the ultimate scope of
the search conducted by Herring and Sirmon.
Onieka were required to undress were unconstitutional unless they
were " "reasonably related in scope to the circumstances which
justified the interference in the first place.' " T.L.O., 469 U.S.
at 341, 105 S.Ct. at 743 (quoting Terry v. Ohio, 392 U.S. 1, 20, 88
S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)). More specifically, in
order for the scope of these searches to be permissible, "the
measures adopted" must have been "reasonably related to the
objectives of the search and not excessively intrusive in light of
the age and sex of the student and the nature of the infraction."
Id. at 342, 105 S.Ct. at 743.
Thus, T.L.O. requires us to consider several factors in
determining whether the scope was permissible: whether there was
a reasonable relationship between the scope of the search (the
measures adopted) and the objectives of the search; the
intrusiveness of the search in light of the age and sex of the
student; and the intrusiveness of the search in light of the
nature of the infraction.
To determine whether the scope of a search is reasonably
related to its objectives, we must examine the measures adopted
15
here. Strip searches are among the most intrusive of searches.
This fact is self-evident. As this court, in the course of its
most thorough consideration of the constitutionality of strip
searching minors, has recognized: "It is axiomatic that a strip
15
We recognize that some types of strip searches, such as
body cavity searches, are even more intrusive than the search
conducted in this case. We also note that a strip search
performed by someone of a different gender from the person
searched will be considered significantly more intrusive than a
same-sex search.
search represents a serious intrusion upon personal rights. In
Mary Beth G. [v. City of Chicago, 723 F.2d 1263, 1272 (7th
Cir.1983) ], the court referred to strip searches as "demeaning,
dehumanizing, undignified, humiliating, terrifying, unpleasant,
embarrassing, repulsive, signifying degradation and submission.' "
Justice v. City of Peachtree City, 961 F.2d 188, 192 (11th
Cir.1992).16 Moreover, the perceived invasiveness and physical
intimidation intrinsic to strip searches may be exacerbated for
children. See Justice, 961 F.2d at 192 ("[c]hildren are especially
susceptible to possible traumas from strip searches") (internal
quotation marks omitted). Consequently, for the extreme invasion
of privacy inflicted by a strip search to be "reasonably related to
the objectives of the search," these objectives must carry
tremendous weight.17
16
Justice was decided a few days after the events at issue
here and, therefore, does not clearly establish the law in this
case for qualified immunity purposes. We cite the case not as an
illustration of clearly established law but as evidence that the
point at issue here—that strip searches are inherently among the
most intrusive of searches—is self-evident, as the Justice court
itself concluded.
17
See Cornfield v. Consolidated High Sch. Dist. No. 230, 991
F.2d 1316, 1321 (7th Cir.1993) ("[A]s the intrusiveness of the
search of a student intensifies, so too does the standard of
Fourth Amendment reasonableness. What may constitute reasonable
suspicion for a search of a locker or even a pocket or pocketbook
may fall well short of reasonableness for a nude search.").
T.L.O.'s sliding scale for reasonableness
determinations is an inherent part of Fourth Amendment
jurisprudence in those cases, like T.L.O., where, although
probable cause is not required, a "reasonableness" standard
still applies. T.L.O., 469 U.S. at 341, 105 S.Ct. at 742-
43, cites Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968). Terry teaches that "[t]he scope of the
search must be strictly tied to and justified by the
circumstances which rendered its initiation permissible."
392 U.S. at 19, 88 S.Ct. at 1878 (citations and internal
We next look at the objectives of the search and whether they
were reasonably related to the methods chosen, i.e., whether the
search was " "reasonably related in scope to the circumstances
which justified the interference in the first place.' " T.L.O.,
469 U.S. at 341, 105 S.Ct. at 743 (quoting Terry v. Ohio, 392 U.S.
1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)).18 In applying
this rule in Terry, the Court determined whether the search was
"confined in scope to an intrusion reasonably designed to discover"
the items sought and "confined ... strictly to what was minimally
necessary" to locate those items. Terry, 392 U.S. at 29-30, 88
S.Ct. at 1884-85.
We must decide, therefore, whether the extreme intrusiveness
involved in the strip searches here was "reasonably related" to the
objective of discovering the allegedly stolen cash. Because the
possibility of finding the cash in the two restroom searches was
slight (at best), we conclude that the extreme measures adopted
here were not reasonably related to the objectives of the search.
A second-grader reported $7 missing. Her teacher never asked
her whether she might have lost the money or forgotten that she
quotation marks omitted). See also, e.g., United States v.
McMurray, 747 F.2d 1417, 1420 (11th Cir.1984) (requiring, in
the customs context, that as intrusiveness increases, the
amount of suspicion necessary to justify the search must
correspondingly increase).
18
This standard also suggests that we look to the
seriousness of the offense or the danger the search seeks to
prevent to determine whether the methods were reasonably related
to the objectives of the search. For clarity's sake, we have
confined these considerations to that part of our opinion
discussing T.L.O.'s requirement that the search not be
"excessively intrusive in light of the ... nature of the
infraction." 469 U.S. at 342, 105 S.Ct. at 743. See discussion
infra and note 20.
spent it. Fannin simply asked another student whether she knew
anything about the missing money. That student reported that
Cassandra had taken the money and put it in Onieka's backpack.
Fannin never asked that student how she knew, whether she had seen
the event, or, if not, who told her about it. And there is no
evidence that Onieka or Cassandra had stolen anything before. The
failure to locate the money in Onieka's backpack, where it was
reportedly stashed, casts further doubt on the reliability of the
informant's story and, thus, the justification for the
investigation. Furthermore, Fannin did not check Cassandra's bag
or any other area of the room before handing the investigation over
to Herring.
When Herring accepted responsibility for the investigation,
she did not ask Fannin about any of the details, including who had
originally accused the girls or how the accuser knew the girls had
taken the money. All she knew was that the girls had been accused
of taking $7 and that they, in turn, accused each other and Anthony
Jemison of stealing the cash. With only this evidence in hand and
without seeking any specifics from the children about the theft,
she made the girls and Anthony remove their shoes and socks.19 When
the money was not found there, she proceeded, with Sirmon, to take
the girls to the restroom to search them even though no one had
reported that either of the girls had hidden the money in her
underclothing and there was no evidence that the girls had ever
hidden money or contraband in their clothing before. The entire
19
It is at least questionable whether Herring had reasonable
grounds for requiring Cassandra and Onieka to remove their shoes
and socks.
restroom search was apparently premised on the fact that one of the
girls had been to the restroom before the money was reported
missing. If this were the reason for concluding the money was
hidden in one of the girl's underclothing, Sirmon and Herring might
have had arguable, albeit slight, grounds for believing that a
first search of that girl's underclothing would lead to evidence of
the theft. There were no grounds, however, for taking both girls
to the restroom.
After finding nothing in the girls' underpants during the
first search, Sirmon and Herring took them to the restroom a second
time. If the method chosen in the first restroom search was highly
unlikely to lead to evidence, then requiring the girls to undress
a second time was completely unlikely to end in discovery of the
cash. Having looked in the girls' underpants, the probability that
the money could have been hidden anywhere else on the children's
persons (especially after a walk to and from the principal's
office) was almost nil. Thus, even at this stage of the inquiry it
is difficult to believe that any reasonable school official could
surmise that it was constitutionally permissible to conduct these
two highly intrusive searches where there was such a negligible
possibility that any evidence of the infraction would be found.
T.L.O., however, gives us further guidance.
Under T.L.O., the nature of the infraction is another factor
to be weighed in determining the permissible intrusiveness or scope
of a search. One can imagine the range of possible school-place
infractions as a spectrum with the most serious infractions falling
at one end. While reasonable school officials would disagree about
exactly where the infraction at issue here might fall along the
spectrum, the following generalizations are certain. It is obvious
that an infraction that presents an imminent threat of serious
harm—for example, possession of weapons or other dangerous
contraband—would be the most serious infractions in the school
context.20 Thus, these offenses would exist at one end of the
20
In fact, strip searches are probably only permissible in
the school setting, if permissible at all, where there is a
threat of imminent, serious harm. Writing separately in T.L.O.,
Justice Stevens made clear that the point of the majority's
Fourth Amendment standard was to avoid litigation over the
routine, limited searches necessary to maintain school
discipline, while "prohibit[ing] obviously unreasonable
intrusions of young adults' privacy." 469 U.S. at 381, 105 S.Ct.
at 764. To illustrate the type of egregious school search that
would noncontroversially violate the Fourth Amendment, Justice
Stevens gave this example:
One thing is clear under any standard—the shocking
strip searches that are described in some cases have no
place in the schoolhouse. See Doe v. Renfrow, 631 F.2d
91, 92-93 (CA7 1980) ("It does not require a
constitutional scholar to conclude that a nude search
of a 13-year-old child is an invasion of constitutional
rights of some magnitude"), cert. denied, 451 U.S.
1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981); Bellnier
v. Lund, 438 F.Supp. 47 (NDNY 1977); People v. D., 34
N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466 (1974);
M.J. v. State, 399 So.2d 996 (Fla.App.1981). To the
extent that deeply intrusive searches are ever
reasonable outside the custodial context, it surely
must only be to prevent imminent, and serious harm.
Id. at 382 n. 25, 105 S.Ct. at 764 n. 25 (Stevens, J.,
concurring in part and dissenting in part).
Eleventh Circuit caselaw confirms Justice Stevens's
understanding of the T.L.O. standard. Although no case
involving a student strip search had been presented to this
court before the incidents in this case occurred, less than
two weeks after this case was decided, we took the
opportunity to express our view of such searches. In
Justice, this court held that law enforcement officials may
subject a juvenile who is lawfully in custody to a limited
strip search based upon reasonable suspicion that he or she
is concealing a weapon or drugs. 961 F.2d at 193. In
reaching this conclusion, however, the Justice court was
careful to emphasize the limited scope of its holding and to
distinguish other situations in which a strip search would
be unconstitutional. Because the strip search in Justice
was performed by law enforcement officers on a person
lawfully in custody, the court considered itself bound by
Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447(1979), which had held that the unique security concerns of
detention facilities could justify strip searches of
pretrial detainees. Justice, 961 F.2d at 193. On the other
hand, in stressing the intrusiveness of strip searches, the
Justice court pointed to a context in which a strip search
would certainly violate the Fourth Amendment: when it is
inflicted on a student in a situation that presents no
danger of imminent and serious harm.
Picking up where Justice Stevens in T.L.O. left off,
the Justice court favorably cited and discussed Doe v.
Renfrow, 631 F.2d 91 (7th Cir.1980), cert. denied, 451 U.S.
1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981). 961 F.2d at
193. The Seventh Circuit in Doe held that a strip search of
a thirteen-year-old student by school officials without
reasonable suspicion to believe she possessed drugs clearly
violated the Fourth Amendment, foreclosing qualified
immunity for the school officials. Justice reaffirms and
embraces this conclusion as obvious:
[Doe held that] the strip search of a thirteen-year-old
female without "reasonable cause" to believe she
possessed contraband on her person constituted an
"invasion of constitutional rights of some magnitude."
Doe, 631 F.2d at 93. The Seventh Circuit then
stated[,] "More than that: it is a violation of any
known principle of human decency.... [T]he conduct
herein described exceeded the "bounds of reason' by two
and a half country miles." Doe, 631 F.2d at 93.
Id. (bracketed alterations added).
Although these cases strongly support our position, we
do not rely on them in reaching our holding in this case.
Even courts determining the constitutionality of strip
searches of post-arrest detainees have looked to the
probability that the detainee possesses dangerous
contraband. See, e.g., Masters v. Crouch, 872 F.2d 1248,
1253-55 (6th Cir.) (strip search of person arrested for
traffic violation or other minor offense not associated with
violence unreasonable absent individualized reasonable
suspicion that arrestee is carrying a weapon or contraband),
cert. denied, 493 U.S. 977, 110 S.Ct. 503, 107 L.Ed.2d 506(1989); Jones v. Edwards, 770 F.2d 739 (8th Cir.1985)
(strip search of person arrested for refusing to sign
spectrum. Thefts of valuable items or large sums of money would
fall a little more toward the center of the spectrum. Thefts of
small sums of money or less valuable items and possession of minor,
nondangerous contraband would fall toward the opposite extreme of
the spectrum. Such infractions would seldom, and probably never,
justify the most intrusive searches. It follows that the
infraction at issue here, the theft of $7, while perhaps not a
trespass to be taken lightly, is, nonetheless, an offense which
would not justify a highly intrusive search, and certainly not
where the likelihood of finding evidence of the offense was as weak
as it was here.
T.L.O. also requires us to take the student's age into
consideration. The students in this case were extremely young,
only second graders. The Supreme Court did not elaborate on how we
should consider age. See, e.g., Cornfield, 991 F.2d at 1321(discussing issue). Nevertheless, regardless of a student's age,
T.L.O. forbids school officials from undertaking the most intrusive
of searches where the infraction is relatively minor and presents
summons regarding leash law violation unreasonable);
Stewart v. Lubbock County, 767 F.2d 153 (5th Cir.1985)
(strip searches of minor offenders awaiting bond
unreasonable absent reasonable suspicion that they possess
weapons or contraband), cert. denied, 475 U.S. 1066, 106
S.Ct. 1378, 89 L.Ed.2d 604 (1986); Mary Beth G. v. Chicago,
723 F.2d 1263, 1268-73, 1273 (7th Cir.1983) ("[E]nsuring the
security needs of the City by strip searching ... was
unreasonable without a reasonable suspicion by the
authorities that either of the twin dangers of concealing
weapons or contraband existed."); Logan v. Shealy, 660 F.2d
1007, 1013 (4th Cir.1981) (strip search of arrested drunk
driver unreasonable given that offense not associated with
possession of weapons or contraband and no cause to believe
that individual arrestee possessed either), cert. denied,
455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982).
no threat of imminent danger and where it is highly unlikely that
the search will turn up evidence of the infraction. To conclude
otherwise would be to read T.L.O. such that it does not protect
elementary school students at all.
Considered together, the factors identified in T.L.O.—the
glaring disproportion between the objectives of the searches and
the measures adopted and the trivial nature of the infraction—point
unequivocally to the unreasonableness of the two restroom searches
at issue here. Even if the T.L.O. reasonableness standard is
indeterminate for a broad category of school searches, it
indisputably prohibits strip searches of students in this
situation.21 Sirmon and Herring, therefore, are not entitled to
qualified immunity, because the T.L.O. standard would have led any
reasonable school official in their circumstances to the inevitable
conclusion that the conduct charged here violated the Constitution.
The line drawn in T.L.O. may not be bright enough to dictate
the results of cases closer to the line, for example, cases in
21
Although we do not depend on the case law of other
circuits in reaching this holding, we note that other courts have
reached the same conclusion. See Tarter v. Raybuck, 742 F.2d
977, 982 (6th Cir.1984) ("Thus, for example, the authority of the
school official [to maintain school discipline and order] would
not justify a degrading body cavity search of a youth in order to
determine whether a student was in possession of contraband in
violation of school rules."), cert. denied, 470 U.S. 1051, 105
S.Ct. 1749, 84 L.Ed.2d 814 (1985); Oliver v. McClung, 919
F.Supp. 1206, 1216-19 (N.D.Ind.1995) (in light of Doe v. Renfrow
and T.L.O., law clearly established that strip search of
seventh-grade girls seeking missing $4.50 violates Fourth
Amendment); Bellnier v. Lund, 438 F.Supp. 47, 52-54, 54
(N.D.N.Y.1977) (strip searches of students in fifth grade class
seeking missing $3 unreasonable "in view of the relatively slight
danger of the conduct involved (as opposed to drug possession,
for example), the extent of the search, and the age of the
students involved").
which there is a reasonable suspicion that a student has hidden on
his or her person drugs or weapons.22 The facts presented at the
summary judgment stage in the case now before us, however, are
clearly far to the unconstitutional side of that line. Cassandra
and Onieka were eight-year-old elementary school students. They
were accused of stealing $7 that may or may not have been missing,
solely on the basis of the accusation of a second-grade classmate;
there was no evidence that they had ever before stolen money or
hidden anything in their clothing. Even if the girls had possessed
the cash (which they apparently did not), their infraction would
have threatened no imminent or serious harm. Nevertheless, even
after investigations of Onieka's backpack and both girls' shoes and
socks had revealed no money and without making any further
inquiries into the matter, Herring and Sirmon twice forced
Cassandra and Onieka to undress and submit to inspection.
Reasonable teachers or school officials in their positions could
not have believed that the Fourth Amendment, in light of T.L.O.,
would allow such a search. We conclude, based on the facts
presented at the summary judgment stage, that Herring and Sirmon
acted in blatant disregard of the Fourth Amendment. Consequently,
they are not entitled to qualified immunity.
V.
22
See Cornfield v. Consolidated High Sch. Dist. No. 230, 991
F.2d 1316, 1320-23, 1320 (7th Cir.1993) (holding strip search of
high school student based on reasonable suspicion that he
possessed drugs does not violate Fourth Amendment, while making
clear that a "a highly intrusive search in response to a minor
infraction" would be unconstitutional under T.L.O.); Williams v.
Ellington, 936 F.2d 881 (6th Cir.1991) (granting qualified
immunity to school officials who strip searched two high school
students for drugs on at least reasonable suspicion).
The district court's orders granting summary judgment for
defendants Herring and Sirmon on the basis of qualified immunity
from plaintiffs' § 1983 Fourth Amendment claims are REVERSED. The
district court's other summary judgment orders in this case are
AFFIRMED.
BIRCH, Circuit Judge, dissenting:
I respectfully dissent. Although I am outraged by the conduct
of the schoolteachers in this case and am convinced that they left
their better judgment at home on May 1, 1992, I cannot conclude
that these individuals understood or should have understood that
the strip searches that they conducted were violative of the
clearly established Fourth Amendment rights of these second-grade
students. While it is easy to second-guess school personnel in a
courthouse far removed from the tumult and tumble of the work-a-day
world of the schoolhouse with the aid of twenty-twenty hindsight,
the majority does a grave disservice to our law and to public
servants in determining that these individuals violated the
exceedingly limited constitutional rights of schoolchildren.1 See
1
The "special characteristics of elementary and secondary
schools ... make it unnecessary to afford students the same
constitutional protections granted adults and juveniles in a
nonschool setting." New Jersey v. T.L.O., 469 U.S. 325, 348, 105
S.Ct. 733, 746, 83 L.Ed.2d 720 (1985) (Powell, J., concurring).
Because of their close association with each other and the
necessary familiarity of teachers with students and authority
over them, such schoolchildren "have a lesser expectation of
privacy than members of the population generally." Id. The
Court has stated that the T.L.O. decision determined that the
"State's power over schoolchildren is formally no more than the
delegated power of their parents, ... but indeed emphasized, that
the nature of that power is custodial and tutelary, permitting a
degree of supervision and control that could not be exercised
over free adults." Vernonia School Dist. 47J v. Acton, --- U.S.
----, ----, 115 S.Ct. 2386, 2392, 132 L.Ed.2d 564 (1995)
(upholding urinalysis drug testing for grade and high school
C.B. ex rel. Breeding v. Driscoll, 82 F.3d 383, 385 (11th
Cir.1996). Furthermore, no policy had been formulated by the
Talladega City Board of Education or the Graham Elementary School
regarding student searches during the 1991-1992 school year.
Stolen money previously had been recovered through searches of
2
students' attire at Graham Elementary School. Moreover, as the
district judge ascertained, there was no binding, clearly
students participating in athletic programs, including reasoning
that public school children are required to have vaccinations and
physical examinations).
2
The record reveals at least two incidents at Graham
Elementary School prior to the searches challenged in this case
where students, suspected of stealing money, were required to
remove their shoes and socks with the result that the money was
found. One involved a black, male student accused of stealing
$5; the principal had him remove his shoes and socks and located
the money. Another instance concerned a white, male student
accused of stealing $.50; the missing change was discovered when
the student was asked to remove his shoes and socks. The record
also includes evidence of a search for a missing calculator where
a number of students, both black and white, were instructed to
remove their jackets so that their pockets could be searched.
Additionally, there were incidents of students removing shoes and
socks, untucking and shaking their shirts, unzipping their pants,
and one student stripping entirely in the presence of school
officials, a police officer, and his mother to search for
contraband. Given this background of previously locating stolen
money in students' attire pursuant to varying degrees of
supervised undress and, particularly, the location of stolen
money after having suspected students remove their shoes and
socks, the challenged searches conducted by the schoolteachers in
this case were not totally unprecedented, as the majority
suggests. Majority at 3607 n. 19; see Driscoll, 82 F.3d at 388(finding that T.L.O. held that "school officials need only
"reasonable grounds for suspecting' that a search will turn up
evidence that the student has violated either the law or school
rules" (quoting T.L.O., 469 U.S. at 342, 105 S.Ct. at 743));
Alabama Student Party v. Student Gov't Ass'n of the Univ. of
Alabama, 867 F.2d 1344, 1346 (11th Cir.1989) (acknowledging that
T.L.O. requires easing of the restrictions generally applicable
to the Fourth Amendment in a school context); see also Lenz v.
Winburn, 51 F.3d 1540, 1551 (11th Cir.1995) (recognizing that the
reasonableness or unreasonableness of a search under the Fourth
Amendment is determined on a case-by-case basis (citing T.L.O.,
469 U.S. at 337, 105 S.Ct. at 740)).
established law that these schoolteachers violated in conducting
the challenged strip searches.
"For the law to be clearly established to the point that
qualified immunity does not apply, the law must have earlier been
developed in such a concrete and factually defined context to make
it obvious to all reasonable government actors, in the defendant's
place, that "what he is doing' violates federal law."3 Lassiter v.
Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994) (en banc)
(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,
3039, 97 L.Ed.2d 523 (1987)) (emphasis added). The Lassiter court
admonished that the facts of cases relied upon as precedent must be
"materially similar"; "[p]ublic officials are not obligated to be
creative or imaginative in drawing analogies from previously
decided cases. " Id. at 1150 (quoting Adams v. St. Lucie County
Sheriff's Dept., 962 F.2d 1563, 1575 (11th Cir.1992) (Edmondson,
J., dissenting), adopted en banc, 998 F.2d 923 (11th Cir.1993) (per
curiam)) (alteration in original). If the standard for qualified
immunity were whether preexisting law had established that the
strip searches by the schoolteachers in this case, when they
occurred, might have been unlawful under federal law, then the
majority opinion might be correct. That standard, however,—the "it
might be unlawful" standard—according to the Supreme Court and
repeated decisions of this court is not the proper standard. See
3
"The qualified immunity standard "gives ample room for
mistaken judgments' by protecting "all but the plainly
incompetent or those who knowingly violate the law.' " Hunter v.
Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589(1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343, 106
S.Ct. 1092, 1096, 1097, 89 L.Ed.2d 271 (1986)).
Muhammad v. Wainwright, 839 F.2d 1422, 1425 (11th Cir.1987) ("[A]t
the relevant time, defendants, at best, had only some reason to
suspect that their actions might be unlawful. Such a suspicion is
inconsistent with the "clearly established' standard enunciated by
Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396(1982) ] and its progeny."); see also Davis v. Scherer, 468 U.S.
183, 196, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984) ("[O]fficials
should not err always on the side of caution."); accord Lassiter,
28 F.3d at 1149; Lenz v. Winburn, 51 F.3d 1540, 1551 (11th
Cir.1995).
Indeterminacies, speculations, and predictions have no place
in our qualified immunity law. Elementary schoolteachers,
nonlawyers whose primary responsibilities are education and the
daily administration of their classrooms, cannot be required to
foresee how the Eleventh Circuit would apply Supreme Court
precedent and decide this particular factual situation if
presented. That would be not only an unprecedented but also an
unreasonable standard. Accordingly, the majority's reliance on
New
Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720(1985), involving the purse search of a high school student and the
discovery of contraband, is misplaced because T.L.O. is not
factually similar to the strip searches that we review and cannot
be clearly established law to resolve this case, much less dicta in
T.L.O.
Because of its "practical application," qualified immunity is
judged by the conduct of government personnel at the time that they
acted, "not by hindsight, based on later events." Lassiter, 28
F.3d at 1150; see Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct.
534, 537, 116 L.Ed.2d 589 (1991) (per curiam) ("[T]he court should
ask whether the agents acted reasonably under settled law in the
circumstances, not whether another reasonable, or more reasonable,
interpretation of the events can be constructed five years after
the fact." (emphasis added)). On May 1, 1992, the date of the
strip searches at issue in this case, there was no clearly
established law regarding the unconstitutionality of strip searches
of schoolchildren from the Supreme Court, the Eleventh Circuit, or
the Alabama Supreme Court.4 See Courson v. McMillian, 939 F.2d
1479, 1498 n. 32 (11th Cir.1991) (holding that "clearly
established" law for deciding qualified immunity in this circuit
consists of effective decisions at the time of the challenged
conduct by the United States Supreme Court, the Eleventh Circuit
Court of Appeals, or the highest state court in the state where the
case originated); accord Hamilton ex rel. Hamilton v. Cannon, 80
F.3d 1525, 1532 n. 7 (11th Cir.1996); Haygood v. Johnson, 70 F.3d
92, 95 (11th Cir.1995) (per curiam); D'Aguanno v. Gallagher, 50
F.3d 877, 881 n. 6 (11th Cir.1995).
Whatever bolstering of its decision the majority seeks to
accomplish by the repetition of dicta in Justice v. City of
Peachtree City, 961 F.2d 188 (11th Cir.1992), decided on May 14,
4
The majority appears to be "interested in the state of the
law at the time of the alleged unconstitutional conduct, May 1,
1992." Majority at 3605 n. 13. Yet, the majority concedes that
"this circuit, before May 1, 1992, had not had the opportunity to
apply T.L.O. 's standards in factually similar circumstances,"
id. at 3605, and that "no case involving a student strip search
had been presented to this court before the incidents in this
case occurred," id. at 3608-09 n. 20.
1992, is inappropriate. See Majority at 3606, 3608-09 n. 20. Not
only did that case involve the lawful, custodial strip search of a
female high school student upon reasonable suspicion that she
possessed contraband, but also Justice could not have been clearly
established law for the subject strip searches of these
second-graders that occurred thirteen days earlier. Equally
inapplicable under our circuit definition of clearly established
law as to the date in question is nonbinding case law of other
federal circuit and district courts. Cf. id. at 3604 ("If the
facts of other cases applying the balancing test or the test itself
leads to such an "inevitable conclusion,' then the "bright-line'
has been drawn."); see id. at 3609-10 & n. 21.
I agree that, for preexisting law to establish that a
particular act is unlawful, it is not essential that the facts of
the earlier case be identical to the facts surrounding the conduct
that is being challenged as unlawful. For example, if a precedent
holds that, under certain circumstances, it is unlawfully cruel to
cut off two fingers, that precedent clearly would establish that it
would be unlawful to cut off three fingers under the same
circumstances. This case, however, has nothing to do with that
kind of case law.5 In this case, no precedent is factually close
enough to have given much guidance to these schoolteachers under
the circumstances. Sitting en banc, we have said—over Judge
5
The majority observes that some conduct is so bad that no
case needs to have recognized previously that such conduct
violates federal law. Accepting this idea in principle, I am
comfortable in saying that I think we face in this case no great
act of pure evil (such as, to use the majority's example,
slavery), that might trigger this rare and narrow exception to
the extremely broad rule.
Kravitch's dissent—that public officials need not be able to draw
analogies from earlier cases to avoid personal liability for
damages. Adams, 998 F.2d at 923. For elementary schoolteachers to
be competent in their jobs, it is not yet required that they think
like a constitutional lawyer, much less like an activist one.
Moreover, we have said repeatedly en banc—again in the face of
Judge Kravitch's dissents—that the cases serving as precedent,
those that supposedly established the law applicable to the
circumstances in which a defendant public official found himself,
must be materially similar factually to the circumstances
confronting the defendant public official if that earlier case law
is to guide public officials sufficiently to place them in jeopardy
of losing immunity. See Lassiter, 28 F.3d at 1149-51; Adams, 998
F.2d at 923.
No decision cited in the majority opinion provides adequate
precedent as clearly established law to guide the conduct of the
schoolteachers in this case. Unlike many cases cited by the
majority to support its decision, this case does not involve police
officers or law enforcement. This case is about schools.
Significantly, it concerns a specific type of school, an elementary
school.
A high school and an elementary school are materially
different places. The children in an elementary school are
considerably younger and less mature, including less physically
mature, than high school students. In elementary schools, the
relationship between the teacher and students, who are young
children, is much closer to that of parent and child than in high
schools, where the students are approaching adulthood. In the
first two or three grades in elementary school, the notion of in
loco parentis, where teachers stand in the place of parents, has
real meaning and a long and venerable tradition. 6 For example,
many a young schoolchild properly has been helped to change
clothes, consisting of putting on or taking off clothes, by a
schoolteacher.
The Supreme Court's T.L.O. decision involved a teenage high
school student, obvious violation of the established school rule
against smoking, and a consequent purse search revealing
contraband. These facts materially distinguish T.L.O. from the
case before us. The Supreme Court's opinion in T.L.O. was written
against the background of the facts before it. While T.L.O.
contains some general language to guide trial courts faced with
searches by school employees, that standard is a broadly composed
one: basically, it is a reasonableness test. The "reasonable
under all the circumstances" rule in T.L.O. gives little practical
guidance to teachers facing facts unlike those in T.L.O. As we
6
The Court has recognized that "school authorities act[ ] in
loco parentis." Bethel School Dist. No. 403 v. Fraser, 478 U.S.
675, 684, 106 S.Ct. 3159, 3165, 92 L.Ed.2d 549 (1986).
Whether it should or should not do so, the American
community calls upon its schools to, in substance,
stand in loco parentis to its children for many hours
of each school week.
Citizens expect and demand that their children be
physically safe in the schools to whose supervision
they are consigned, and the citizenry is outraged if
the schools are less than safe and orderly.
Ferrell v. Dallas Indep. School Dist., 392 F.2d 697, 704
(5th Cir.) (Godbold, J., concurring), cert. denied, 393 U.S.
856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968).
explained en banc in Lassiter, an abstract standard is insufficient
guidance until trial courts have demonstrated its application in
various factual situations. Lassiter, 28 F.3d at 1150.
The facts of T.L.O. are too different from this case to have
dictated to reasonable elementary schoolteachers that the searches
conducted in this case already had been clearly established as
unlawful. This conclusion, that is, that preexisting law did not
dictate to reasonable teachers that their conduct in this case was
unconstitutional, seems particularly strong upon consideration that
the Supreme Court, aside from college and university cases, has
never held any search based on individualized suspicions of a
student by schoolteachers, including the T.L.O. search, to be
unlawful under federal law, and neither have we or the former Fifth
Circuit. Consequently, no bright lines had been delineated to help
the teachers in this case to know what to do.7
While I agree that, for preexisting law to dictate a result in
a particular case, the facts need not be exactly the same, they
must be considerably closer than the analogies that the majority
uses. Clearly established preexisting law is a pragmatic concept,
which the Supreme Court has stressed repeatedly. In my judgment,
clearly established law means what it says and our circuit cases
teach that it means more than the majority of this panel seems to
think that it means.
In conducting the challenged searches in this case, the
7
Clearly, the facts and law in this case do not support the
majority's decision that the elementary schoolteachers were not
entitled to qualified immunity because their challenged searches
were "in blatant disregard of the Fourth Amendment." Majority at
3610.
schoolteachers might not have exercised good judgment or done what
was right, but that is a very different concept from concluding
that they violated clearly established federal law. The
schoolteachers' searches at issue in this case even may have
violated the Fourth Amendment, but that conclusion is not
unquestionably clear to me under our present circuit law.8 It does
8
After all, theft of money is hardly a trivial matter, and
there was cause for suspicion. Nevertheless, the schoolteachers
and the students were female, and the search was done in a
relatively private place, the girls' restroom. I hasten to
emphasize that conduct that may be constitutional also may be
repugnant, ill-advised, and even outrageous. The strip searches
in this case may have been offensive, but they did not violate
clearly established constitutional law, when they occurred.
The core of the majority's opinion seems to be an
effort to diminish the importance of this court's en banc
decision in Lassiter. I cannot agree with this construction
of a guiding circuit precedent. Inherently, en banc
decisions are extremely important. This court does not go
en banc lightly. We do so "(1) when consideration by the
full court is necessary to secure or maintain uniformity of
its decisions, or (2) when the proceeding involves a
question of exceptional importance." Fed.R.App.P. 35(a). I
believe that Lassiter went en banc on both grounds.
The majority stresses that Lassiter represented no "sea
change" in the law of qualified immunity. Majority at 3601.
That statement is absolutely correct because the great
majority of the judges of this circuit regularly were
applying the principles set forth in Lassiter before
Lassiter was published. See Lassiter, 28 F.3d at 1149 ("No
new rules need to be announced to decide this case. But,
for emphasis, we restate principles which do govern
qualified immunity cases."). A few judges of this court,
however, were taking a significantly different approach to
qualified immunity, an approach which was substantially more
hostile to public official defendants. In this sense,
Lassiter marks a substantial change for those judges who
thought that, and acted as if, the law was something
different from the law that Lassiter reiterates.
Lassiter seems particularly important when one realizes
that this court had made a previous en banc effort to
declare the law of the circuit not long before. Adams, 998
F.2d at 923. Informed observers refer to Lassiter as Adams
II. When Adams proved ineffective to secure uniformity, the
seem plain to me, given T.L.O.'s sliding scale of reasonableness in
view of all of the circumstances and the specific situation
confronting the school personnel in this case, that by no means was
it already clearly established when the school personnel acted that
their conduct was unlawful. To say otherwise is, I respectfully
submit, to demote a common sense safeguard—clearly established
law—to a legal fiction.
While explaining its decision, the majority has written many
statements that conflict with the law of this circuit, as I
understand it. I am not going to bicker, however. Whatever our
precedents say, they speak for themselves. Looking chiefly at
Lassiter, the district judge believed that the law of this circuit
required him to grant immunity. I think that the judge was right,
and I would affirm the district court's judgment.
court promptly went en banc again and produced Lassiter with
its stronger and more definitive statements. In my view,
Lassiter is the law.