Jenkins v. Talladega City Bd. of Ed

PUBLISH
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 95-6243
_______________

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

CASSANDRA JENKINS, a minor, by her mother and
next friend, Sandra Hall; ONEIKA MCKENZIE, a
minor, by her mother and next friend, Elizabeth
McKenzie,

Plaintiffs-Appellants,

versus

TALLADEGA CITY BOARD OF EDUCATION; SUSANNAH
HERRING, individually and in her capacity as a
teacher of Graham Elementary School, MELBA
SIRMON, individually and in her capacity as
counselor at Graham Elementary School,

Defendants-Appellees,

CHARLES KURLEY, in his official capacity as
Superintendent of the Talladega City School
District, et al.,

Defendants.

______________________________

Appeal from the United States District Court
for the Northern District of Alabama
______________________________
(June 2, 1997)

Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX,
BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges, and
KRAVITCH, Senior Circuit Judge*.

*
Senior U. S. Circuit Judge Phyllis A. Kravitch elected to
participate in this decision pursuant to 28 U.S.C. § 46(c).
BIRCH, Circuit Judge:
This case involves the application of the

well-established precepts of qualified immunity
to a specific set of facts that concern a search
of elementary school-children who were

suspected of having stolen money from a
classmate. The district court granted summary

judgment in favor of the defendants on all

claims. For the reasons that follow, we affirm.

I. BACKGROUND

Certain critical facts in this case are

disputed by the parties. For the limited purpose

of our analysis of the issue of qualified immunity
at the summary judgment stage, we are bound

to view the facts in the light most favorable to
the plaintiffs. United States v. Diebold, Inc.,
369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed.

2d 176 (1962) (per curiam). In 1992, at the
time the events giving rise to this action
2
occurred, Cassandra Jenkins and Oneika
McKenzie were eight-year-old second graders

in elementary school in Talladega, Alabama.
On the afternoon of May 1, one of Jenkins' and
McKenzie's classmates informed their teacher,

Hilda Fannin, that $7.00 was missing from her
purse. Based on a student’s accusation that

Jenkins had placed the money in McKenzie’s

backpack, Fannin initially searched the

backpack but failed to find the money there.

Several students subsequently implicated
Jenkins, McKenzie, and a male classmate,

Anthony Jamerson, in the alleged theft. Fannin

took the children into the hallway and
questioned them regarding the money, at which

time Jenkins and McKenzie mutually accused
each other of the theft. At the suggestion of
another teacher, Susannah Herring, Fannin

asked the students to remove their socks and
shoes. When these efforts failed to reveal the
3
allegedly stolen money, Herring, along with a
guidance counselor, Melba Sirmon, who had by

this time become involved in the situation,
directed Jenkins and McKenzie to the girls'
restroom. Jenkins testified that Herring ordered

them to enter the bathroom stalls and come
back out with their underpants down to their

ankles. McKenzie offered conflicting testimony

as to whether they were instructed to put their

clothes back on while inside the bathroom stall

or exit the stalls unclothed. Jenkins' and
McKenzie's testimony is consistent, however,

with respect to the assertion that they were

asked to remove their clothes while inside the
restroom.

Having again failed to discover the missing
money, Herring and Sirmon brought Jenkins,
McKenzie, and Jamerson to the office of the

school principal, Crawford Nelson. In response
to Nelson's inquiries regarding the money,
4
Jamerson volunteered that it was hidden behind
a file cabinet. A search in that location failed to

uncover the money. Jenkins and McKenzie
both contend that Herring then escorted them to
the restroom a second time where they were

again asked to remove their clothes in an effort
to locate the $7.00.

The parents of Jenkins and McKenzie filed

a complaint on their behalf against the

Talladega City Board of Education and nine

individual defendants. In the complaint, the
plaintiffs alleged, pursuant to 42 U.S.C. § 1983,

that Jenkins and McKenzie had been strip-

searched in violation of their rights provided
under the Fourth and Fourteenth Amendments.

In addition, the complaint set forth violations of
Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000(d), Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681, and
Alabama law. In a series of memorandum
5
opinions, the district court dismissed all claims
for money damages and granted summary

judgment in favor of (1) all defendants on
plaintiffs' Title VI and Title IX claims; (2) the
Board of Education with respect to the plaintiffs'

§ 1983 claims; (3) all individually-named
defendants on the basis of qualified immunity;

and (4) all defendants on all remaining federal

claims for injunctive and declaratory relief, and

all state law claims. We affirm the district

court's disposition of this case in its entirety.
Because we believe that the only issue raised

in this appeal that warrants further examination

concerns the court's determination that the
individual defendants are entitled to qualified

immunity with respect to the plaintiffs' Fourth
Amendment § 1983 claims, our discussion is
confined solely to this issue.

II. DISCUSSION
6
 The principles of qualified immunity set out
in Lassiter v. Alabama A & M Univ., 28 F.3d

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

the guiding directives for deciding cases
involving the question of a state actor's
entitlement to qualified immunity in this circuit.

Although these rules have been identified on
numerous occasions, we reiterate some of

them here to establish and clarify the

framework that necessarily informs our analysis

of the issue before us. "Qualified immunity

protects government officials performing
discretionary functions from civil trials (and the

other burdens of litigation, including discovery)

and from liability if their conduct violates no
'clearly established statutory or constitutional

rights of which a reasonable person would have
known.'" Lassiter, 28 F.3d at 1149 (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.

Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). "For
7
the law to be clearly established to the point
that qualified immunity does not apply, the law

must have earlier been developed in such a
concrete and factually defined context to make
it obvious to all reasonable government actors,

in the defendant's place, that 'what he is doing'
violates federal law." Id. (citing Anderson v.

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

3039, 97 L. Ed. 2d 523 (1987)). “For qualified
immunity to be surrendered, pre-existing law

must dictate, that is, truly compel (not just

suggest or allow or raise a question about), the

conclusion for every like-situated, reasonable

government agent that what defendant is doing
violates federal law in the circumstances.”
Lassiter, 28 F.3d at 1150. Plaintiffs submit
that on May 1, 1992, the law regarding the

constitutionally permissible scope of a search of

students while attending school was so clearly
defined that these defendants were on notice
8
that the type of search conducted in this
instance violated Jenkins' and McKenzie's

rights guaranteed by the Fourth Amendment.
In support of this proposition, plaintiffs point to
the Supreme Court's application of the Fourth

Amendment in the context of school searches
in New Jersey v. T.L.O., 469 U.S. 325, 105 S.

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

involved the search of a fourteen-year-old high

school student's purse after the student was

discovered smoking in the lavatory in violation
of school rules. More specifically, a teacher

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

restroom and took them to the principal's office
where, in the presence of the assistant vice

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

1
The parties agree that, at the time the events giving rise to
this action occurred, T.L.O. was the only case that had addressed
with any specificity the Fourth Amendment implications of school
searches. As a result, it is uncontested that, under the facts of
this case, T.L.O. is the sole precedent that potentially could have
clearly established the law for purposes of qualified immunity
analysis.

9
denied -- having committed the infraction with
which they were accused. The vice principal

proceeded to examine T.L.O.'s purse to
ascertain whether it contained cigarettes.
When the search revealed a pack of cigarettes,

the vice principal removed the pack and
observed within the purse a package of rolling

papers. Further exploration revealed the

presence of a small quantity of marijuana along

with several items of drug paraphernalia.

The Supreme Court determined at the
outset that the Fourth Amendment applied to

searches conducted by school authorities.

T.L.O., 469 U.S. at 335, 105 S. Ct. at 740. The
Court, however, rejected the proposition that

searches within the school setting must be
based on probable cause as that term is
understood in the context of Fourth Amendment

jurisprudence; rather, the Court articulated the
following standard to guide a pragmatic
10
analysis of Fourth Amendment claims of this
sort:

[T]he legality of a search of a
student should depend simply on the
reasonableness, under all the
circumstances, of the search.
Determining the reasonableness of
any search involves a twofold
inquiry: first, one must consider
"whether the . . . action was justified
at its inception"; second, one must
determine whether the search as
actually conducted "was reasonably
related in scope to the
circumstances which justified the
interference in the first place."
Under ordinary circumstances, a
search of a student by a teacher or
other school official will be "justified
at its inception" when there are
reasonable grounds for suspecting
that the search will turn up evidence
that the student has violated or is
violating either the law or the rules of
the school. Such a search will be
permissible in its scope when the
measures adopted are reasonably
related to the objectives of the
search and not excessively intrusive
in light of the age and sex of the
student and the nature of the
infraction.
T.L.O., 469 U.S. at 341-42, 105 S. Ct. at 742-43
(citations omitted). Plaintiffs acknowledge that

11
the factual circumstances set forth in T.L.O.

differ significantly from those present in this
action, but suggest that the aforementioned

language sufficiently delineated the factors that
necessarily must inform school authorities who
seek to search a student suspected of

breaching a school regulation such that the
defendants in this case reasonably must have

known that their search of Jenkins and

McKenzie -- and particularly that aspect of the

search that involved the removal of articles of

clothing -- exceeded the bounds of
"reasonableness" established by the Court in

T.L.O. We disagree.1
Notwithstanding the Court's enunciation in

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

Amendment school-search claims, the Court

1
Because we conclude that, on May 1, 1992, the law regarding
school searches was not clearly established to the extent that
these defendants should have known that their conduct violated
constitutionally permissible norms, we need not reach the question
of whether Jenkins' and McKenzie's Fourth Amendment rights were, in
fact, violated.

12
did not apply its own test strictly to the facts
presented in that case; indeed, after finding that

the initial decision to open T.L.O.'s purse to
search for cigarettes was justified in light of a
teacher's report that the student had been

smoking in the restroom, the Court concluded
that

[t]he suspicion upon which the
search for marihuana was founded
was provided when Mr. Choplick
observed a package of rolling
papers in the purse as he removed
the pack of cigarettes. . . . The
discovery of the rolling papers
concededly gave rise to a
reasonable suspicion that T.L.O.
was carrying marihuana as well as
cigarettes in her purse. This
suspicion justified further exploration
of T.L.O.'s purse, which turned up
more evidence of drug-related
activities . . . . Under these
circumstances, it was not
unreasonable to extend the search
to a separate zippered compartment
of the purse; and when a search of
that compartment revealed an index
card containing a list of "people who
owe me money" as well as two
letters, the inference that T.L.O. was
involved in marihuana trafficking was
substantial enough to justify Mr.
13
 Choplick in examining the letters to
determine whether they contained
any further evidence. In short, we
cannot conclude that the search for
marihuana was unreasonable in any
respect.
T.L.O., 469 U.S. at 347, 105 S. Ct. at 745-46.
Specific application of the factors established to

define the constitutionally permissible
parameters of a school search -- that is, that it

be "reasonably related to the objectives of the

search" and "not excessively intrusive in light of
the age and sex of the student and the nature

of the infraction" -- is notably absent from the

Court's discussion and conclusion with respect

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

grounded solely in the notion that each
successive discovery of items in T.L.O.'s purse

by the vice principal provided reasonable
suspicion and thereby legitimated further
searching. There is no illustration, indication, or

hint as to how the enumerated factors might

14
come into play when other concrete
circumstances are faced by school personnel.2
2
The dissent contends that the Supreme Court’s recent decision in
United States v. Lanier, ___ U.S. ___, 117 S. Ct. 1219, ___ L. Ed.
2d (1997), calls into question our conclusion that T.L.O., while
establishing general principles that necessarily must govern any
Fourth Amendment analysis of a school search, did not explicitly
apply those principles to specific facts such that the defendants
-- and any reasonable individuals faced with the same circumstances
-- should have known that their conduct in this case violated
clearly established constitutional norms. Lanier, however, is
entirely consistent with both the reasoning and result reached by
our court in this case.

Lanier concerned a challenge to a criminal conviction under 18
U.S.C. § 242, the criminal-law counterpart to 18 U.S.C. § 1983.
The underlying conduct giving rise to the criminal civil rights
violation involved numerous sexual assaults committed by a state
court judge. The Sixth Circuit initially affirmed the conviction,
33 F.3d 639, but on rehearing en banc, reversed after finding that
the statute failed to supply adequate notice that sexual assault by
a state actor fell within the parameters of constitutionally
prohibited conduct. See United States v. Lanier, 73 F.3d 1380,
1384 (6th Cir. 1996) (en banc). The court further noted that the
right violated in this case had not been identified with sufficient
clarity as a constitutional right:

The right deprived in the instant case -- the right
not to be assaulted -- is a clear right under state
law known to every reasonable person. The
defendant certainly knew his conduct violated the
law. But it is not publicly known or understood
that this right rises to the level of a
‘constitutional right.’ It has not been declared
such by the Supreme Court. . . . The indictment in
this case for a previously unknown, undeclared and
undefined constitutional crime cannot be allowed to
stand.

Lanier, 73 F.3d at 1392-94. In reaching its determination that the
contours of the right at issue had not previously been delineated,
the court reasoned that, consistent with Supreme Court precedent,
a constitutional right under § 242 must be “ma[d]e specific” to
render the indictment under the statute constitutionally sound:

As we interpret the “make specific” requirement,
the Supreme Court must not only enunciate the
existence of a right, it must also hold that the

15
 right applies to a factual situation fundamentally
similar to the one at bar. . . . The ‘make
specific’ standard is substantially higher than the
‘clearly established’ standard used to judge
qualified immunity in section 1983 cases.

Id. at 1393.

The Supreme Court granted certiorari “to review the standard
for determining whether particular conduct falls within the range
of criminal liability under § 242.” Lanier, 117 S. Ct. at 1224.
In reversing the Sixth Circuit’s decision, the Court observed that
the necessity for a constitutional right to be “made specific”
stemmed from the constitutional requirement that individuals be
given fair warning as to what constitutes proscribed conduct;
consistent with this requirement, the Court concluded that,
contrary to the Sixth Circuit’s stated view, the “made specific”
standard was identical to the “clearly established” standard
employed in qualified immunity cases:

In the civil sphere, we have explained that
qualified immunity seeks to ensure that defendants
reasonably can anticipate when their conduct may
give rise to liability by attaching liability only
if the contours of the right violated are
sufficiently clear that a reasonable official would
understand that what he is doing violates that
right. So conceived, the object of the ‘clearly
establish’ immunity standard is not different from
that of ‘fair warning’ as it relates to law ‘made
specific’ for the purpose of validly applying §
242. . . . [As] with civil liability under § 1983
or Bivens, all that can usefully be said about
criminal liability under § 242 is that it may be
imposed for deprivation of a constitutional right
if, but only if, in light of pre-existing law the
unlawfulness under the Constitution is apparent.
Where it is, the constitutional requirement of fair
warning is satisfied.
Lanier, 117 S. Ct. at 1227-28 (citations, quotations and internal
markings omitted). It is true that the Court described the
appropriate standard as being whether the unlawfulness is apparent
in light of preexisting law. Although this circuit has elaborated
and said that “preexisting law must dictate, that is, truly compel
(not just suggest or allow or raise a question about” the
unlawfulness of the challenged conduct, Lassiter, 28 F.3d at 1150,
we do not believe that our elaboration indicates a standard
substantively different from that of the Supreme Court. The Court
in Lanier does not address or alter in any way our understanding of
the underlying purpose or legal framework with respect to qualified

16
 In the absence of detailed guidance, no
reasonable school official could glean from

these broadly-worded phrases whether the
search of a younger or older student might be

deemed more or less intrusive; whether the
search of a boy or girl is more or less

immunity; rather, the Court’s holding equates the standard of
specificity required to provide fair warning in a criminal context
under § 242 with that required to clearly establish the law for
purposes of civil liability.

The dissent also points to the Court’s declaration that
“general statements of the law are not inherently incapable of
giving fair and clear warning, and in other instances a general
constitutional rule already identified in the decisional law may
apply with obvious clarity to the specific conduct in question,
even though ‘the very action in question has [not] previously been
held unlawful.” Id. at 1227. The Court went on to note that
“[t]he easiest cases don’t even arise. There has never been . . .
a section 1983 case accusing welfare officials of selling foster
children into slavery; it does not follow that if such a case
arose, the officials would be immune from damages [or criminal]
liability. Id. (quoting Lanier, 73 F.3d at 1410) (Daughtrey, J.
dissenting). We do not believe our decision today suggests a view
of qualified immunity contrary to the spirit of the preceding
statements; indeed, although general principles of law can provide
fair warning, they do not necessarily provide such warning unless
the constitutional rule at issue may be applied “with obvious
clarity.” As acknowledged by the dissent, the question is whether
T.L.O. established “with obvious clarity” that the school search at
issue was unconstitutional. Put simply, we do not think this is an
“easy” case, nor do we view T.L.O. as applicable to the instant
facts “with obvious clarity.”

17
reasonable, and at what age or grade level; and
what constitutes an infraction great enough to

warrant a constitutionally reasonable search or,
conversely, minor enough such that a search of
property or person would be characterized as

unreasonable. In short, as conceded by the
plaintiffs, neither the Supreme Court nor any

court in this circuit nor the Alabama courts, on

or before May 1, 1992, had ever actually

applied the test established in T.L.O. to define
a reasonable (or unreasonable) search in the

context of facts materially similar to those of this
school search.3 Without such practical, fact-

3
In this circuit, the law can be "clearly established" for
qualified immunity purposes only by decisions of the U. S. Supreme
Court, Eleventh Circuit Court of Appeals, or the highest court of
the state where the case arose. Hamilton v. Cannon, 80 F.3d 1525,
1532 n.7 (11th Cir. 1996) (citing Courson v. McMillian, 939 F.2d
1479, 1497-98 & n.32 (11th Cir. 1991). The dissent notes a
“tension” between our circuit’s decisional law deeming relevant
solely in-circuit precedent, on the one hand, and the Supreme
Court’s seeming rejection in Lanier, on the other hand, of a
categorical rule prohibiting consideration of decisions of the
Court of Appeals or other courts to ascertain whether the law has
been clearly established. Significantly, however, the Supreme
Court’s discussion of the relevance of case law from other courts
arose in the context of the Court’s pointed criticism and rejection
of the Sixth Circuit’s determination that only Supreme Court
precedent could clearly establish the law for purposes of 18 U.S.C.

18
based application, school officials in this circuit
were left to interpret, balance, and evaluate

such terms as "measures . . . reasonably
related to the objectives of the search," and "not
excessively intrusive in light of the age and sex

of the student and the nature of the infraction."
T.L.O., 469 U.S. at 342, 105 S. Ct. at 743. As

§ 242. In United States v. Lanier, 73 F.3d 1380 (6th Cir. 1996) (en
banc), the Sixth Circuit had held explicitly that “[l]ower court
decisions are not sufficient to establish and make definite a
particular constitutional crime so as to provide the
constitutionally-required notice necessary to support an indictment
under § 242. Only a decision of the Supreme Court establishing the
constitutional crime under § 242 can provide such notice.” Id. at
1393. In reviewing the Sixth Circuit’s decision, the Supreme Court
explicitly rejected the notion that only its decisions could
provide fair warning under the applicable statute; rather, the
Court stated that, in inquiring whether a previous judicial
decision has made specific the scope of a constitutional right, “no
. . . case has held that the universe of relevant interpretive
decisions is confined to our opinions.” Lanier, ___ U.S. at ___,
117 S. Ct. at 1225. Indeed, the “universe of interpretive
decisions” to which our court looks is broader than that envisioned
by the Sixth Circuit and includes, as suggested by the Supreme
Court, our own circuit precedent and that of the highest state
court where the pertinent conduct took place. The Supreme Court in
Lanier simply did not address the extent to which decisions of the
“lower courts” must, should, or may be considered in deciding
whether a constitutional right has been clearly established, nor
did it identify any impropriety in considering only the decisions
of the circuit or highest court of the state in which the relevant
events took place. We therefore do not construe Lanier as being
in conflict with our precedent regarding the relevant decisional
law to which we must look in analyzing a claim of qualified
immunity.

19
we have previously noted, "[p]ublic officials are
not obligated to be creative or imaginative in

drawing analogies from previously decided
cases." Adams v. St. Lucie County Sheriff's
Dept., 962 F.2d 1563, 1575 (11th Cir. 1992)
(Edmondson, J., dissenting), dissent approved

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

curiam). Similarly, school officials cannot be

required to construe general legal formulations
that have not once been applied to a specific

set of facts by any binding judicial authority.4

4
The dissent submits that although the initial search of
McKenzie’s backpack was justified, the subsequent searches of
Jenkins and McKenzie were not based on reasonable suspicion. The
dissent further criticizes our decision as failing to evaluate
whether the teachers had reasonable suspicion to perform the
challenged searches in the bathroom. Once the teachers formed
reasonable suspicion that Jenkins and McKenzie might have stolen
the money, however, the search was then “justified at its
inception.” T.L.O., 469 U.S. at 341-42, 105 S. Ct. at 742-43.
The relevant question with respect to the continuation of the
search, in our view, is not whether the teachers had reasonable
suspicion with respect to each place they searched but, rather,
whether the search itself was constitutionally reasonable in scope.
Stated differently, once the teachers formulated reasonable
suspicion that Jenkins and McKenzie had stolen the money (a fact
that the dissent does not dispute), the relevant inquiry is whether
T.L.O. directed the conclusion that the manner in which the
teachers chose to conduct further searching exceeded
constitutionally permissible bounds in extent and scope. The
teachers, after all, still had reasonable suspicion that money had
been stolen, and had not necessarily eliminated Jenkins and
McKenzie as suspects when the backpack-search proved fruitless.

20
 Indeed, not only does the language used by
the Court to announce a legal standard

regarding the permissible scope of a
reasonable school search lack specificity5 but,

Contrary to the dissent’s suggestion, we have not ignored the
question of reasonable suspicion but believe that the pertinent
issue in this case is whether, at the time these events took place,
the law was clearly established that all individuals in the
defendants’ place should have known that, after reasonable
suspicion was formed that McKenzie and Jenkins might have stolen
the missing money and an initial search of the backpack failed to
reveal the money, the continued searching of these girls in the
restroom exceeded the scope of a constitutionally permissible
school search.

With respect to the scope of the searches, it is apparent that
the instant searches were reasonably related to the objective of
uncovering the stolen $7.00. We also reject appellants’ attempt to
trivialize the nature of the infraction; the stealing of $7.00 in
an elementary classroom reasonably could be considered by the
school officials to be a matter of serious concern. Appellants’
primary argument is that the searches were excessively intrusive.
However, the female students were searched by female teachers. The
students were eight years old, and thus prepubescent. Finally, it
is a matter of common experience that teachers frequently assist
students of that age in the bathroom, e.g., in the event of an
accidental wetting. We do not believe that it would be apparent to
a reasonable school official that the challenged searches were
“excessively intrusive in light of the age and sex of the
student[s] and the nature of the infraction.” T.L.O., 469 U.S. at
342, 105 S. Ct. at 743.
5
It is worth noting that the dissenting justices in T.L.O.
criticized the majority's reliance on the "reasonableness" test
precisely because it is ambiguous and imprecise. Justice Brennan,
joined by Justice Marshall, described the Court's standard as
"unclear," T.L.O.., 469 U.S. at 354, 105 S. Ct. at 749, and "an
unguided 'balancing test,'" id. at 356, 105 S. Ct. at 750. Justice
Stevens was even more harsh in his censure:

As compared with the relative ease with which
teachers can apply the probable-cause standard, the
amorphous "reasonableness under all the
circumstances" standard freshly coined by the Court

21
it appears, purposefully so. In response to
Justice Stevens' criticism of this standard on the

ground, among others, that the Court had failed
to distinguish between types of infractions that
might reasonably justify a search, Justice

White, writing for the majority, explained:
We are unwilling to adopt a standard
under which the legality of a search
is dependent upon a judge's
evaluation of the relative importance
of various school rules. The
maintenance of discipline in the
schools requires not only that
students be restrained from
assaulting one another, abusing
drugs and alcohol, and committing
other crimes, but also that students
conform themselves to the
standards of conduct prescribed by
school authorities. . . . The
promulgation of a rule forbidding

today will likely spawn increased litigation and
greater uncertainty among teachers and
administrators. . . . I cannot but believe that the
same school system faced with interpreting what is
permitted under the Court's new "reasonableness"
standard would be hopelessly adrift as to when a
search may be permissible.

Id. at 365, 105 S. Ct. at 755. Several members of the Court thus
expressly anticipated that the "reasonableness" standard --
particularly in the absence of any clear application to facts --
would fail to provide school officials with a systematic way to
predict when their conduct might violate the law.

22
 specified conduct presumably
reflects a judgment on the part of
school officials that such conduct is
destructive of school order or of a
proper educational environment.
Absent any suggestion that the rule
violates some substantive
constitutional guarantee, the courts
should, as a general matter, defer to
that judgment and refrain from
attempting to distinguish between
rules that are important to the
preservation of order in the schools
and rules that are not.
T.L.O. 469 U.S. at 342 n.9, 105 S. Ct. at 743

n.9. The foregoing discussion not only
indicates the Court's deliberate hesitation to

narrow and define explicitly, in a practical,

factual sense, the terminology used to establish

its "reasonableness" test but, more importantly,

further suggests that T.L.O. did not attempt to
establish clearly the contours of a Fourth
Amendment right as applied to the wide variety
of possible school settings different from those

involved in T.L.O.. Faced with a series of
abstractions, on the one hand, and a

23
declaration of seeming deference to the
judgments of school officials, on the other, it is

difficult to discern how T.L.O. could be
interpreted to compel the conclusion that these

defendants -- or, more accurately, all
reasonable educators standing in defendants'

place -- should have known that their conduct
violated a clearly established constitutional
right.

III. CONCLUSION

We will not engage in polemics regarding

the wisdom of the defendants' conduct in this

case; suffice it to say that the defendants likely
exercised questionable judgment given the

circumstances with which they were confronted.
Our job, however, is to decide a narrow legal
issue in light of our binding circuit precedent: on

May 1, 1992, the date on which the relevant
conduct at issue in this case occurred, was the
24
law clearly established such that all reasonable
teachers standing in the defendants' place

reasonably should have known that the search
to locate allegedly stolen money violated
Jenkins' and McKenzie's Fourth Amendment

rights? Applying the principles explicitly stated
in Lassiter, we conclude that, at the time these

events took place, the law pertaining to the

application of the Fourth Amendment to the
search of students at school had not been

developed in a concrete, factually similar

context to the extent that educators were on
notice that their conduct was constitutionally

impermissible. Accordingly, the defendants are

entitled to qualified immunity in this case. We
AFFIRM.

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

Chief Judge, and BARKETT, Circuit Judge, join:

25
 I fully agree that government officials acting within their

discretionary authority should be shielded from liability for

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

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

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

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

understand that the conduct in this case was prohibited. The

majority finds qualified immunity by characterizing the Supreme

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

controlling precedent has applied it to virtually identical facts.

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

factually similar precedent is lacking bypasses the fundamental

inquiry set out by the Supreme Court: determining whether the

governing constitutional standard provides sufficient guidance,

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

understand that what he is doing violates [a constitutional]

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

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

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

Fourth Amendment, I respectfully dissent.

Qualified immunity balances the competing concerns present in

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

officials who are required to exercise their discretion and the

related public interest in encouraging the vigorous exercise of

official authority.'” Harlow v. Fitzgerald, 457 U.S. 800, 807
(1982) (quoting Butz v. Economou, 438 U.S. 478, 506 (1978)). Taken

26
too far, however, immunity can undermine the purpose of section

1983 altogether, giving officials license to violate the most basic

and longstanding constitutional rights. Qualified immunity

accommodates these interests by protecting those who act in

reasonable reliance upon established legal principles but

permitting liability for clearly unconstitutional conduct. Thus,

immunity attaches only when official “conduct does not violate

clearly established statutory or constitutional rights of which a

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

Interpreting the term “clearly established,” the Supreme Court

has warned courts not to base liability upon expansive legal

truisms or to ignore material factual differences between present

cases and precedent establishing the asserted constitutional right.

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

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

clear that a reasonable official would understand that what he is
6
doing violates that right.” 483 U.S. at 640. We since have

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

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

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

plaintiff can identify only unworkable abstractions from prior case

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

6
We have explained that “the law must have earlier been
developed in such a concrete and factually defined context to
make it obvious to all reasonable government actors, in the
defendant's place, that 'what he is doing' violates federal law.”
Lassiter v. Alabama A&M Univ., Bd. of Trustees, 28 F.3d 1146,
1149 (11th Cir. 1994) (en banc).

27
different facts.7 Neither the Supreme Court nor this court,

however, require factual identity between prior and subsequent

cases, for that would create absolute immunity.8
I review these principles because the majority has taken a

rigid approach to their application in the present case. Our

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

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

general abstractions are unhelpful -- represent a shorthand way of

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

official liability) depends upon the interplay of the legal

standard and the factual context to which the plaintiff alleges it

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

“general,” or to identify factual distinctions in relevant

precedent. Instead, a court must determine whether the generality

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

7
For example, if the present case had arisen prior to
T.L.O., a teacher would have had no reasonable way of knowing
when she could search a given student, because the Fourth
Amendment had been haphazardly applied to schools. Some courts
had held that it permitted searches only upon probable cause, see
State v. Mora, 330 So.2d 900 (La.), cert. denied, 429 U.S. 1004
(1976); others had held that school children enjoyed no Fourth
Amendment protection, as school officials acted in loco parentis.
See In re Donaldson, 75 Cal. Rptr. 220 (Dist. Ct. App. 1969).
8
See Anderson, 483 U.S. at 640 (“This is not to say that an
official action is protected by qualified immunity unless the
very action in question has previously been held unlawful, but it
is to say that in the light of pre-existing law the unlawfulness
must be apparent.”) (citations omitted); Adams v. St. Lucie
County Sheriff's Dept., 962 F.2d 1563, 1575 (11th Cir. 1992)
(Edmondson, J., dissenting), approved en banc, 998 F.2d 923 (11th
Cir. 1993) (“The facts [of prior precedent] need not be the same
as the facts of the immediate case. But they do need to be
materially similar.”).

28
whether factual distinctions from prior precedent are “material,”

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

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

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

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

error.

As the Supreme Court recently reaffirmed, the search for

specific rules in factually concrete cases should not overshadow

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

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

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

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

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

(2) neither prior Supreme Court precedent nor factually similar

precedent is necessary to provide such warning. The Court

confirmed that decisional law generally, not only from the Supreme

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

9
For example, in Hartsfield v. Lemacks, 50 F.3d 950 (11th
Cir. 1995), we rejected a qualified immunity defense in the face
of a broad constitutional test. On the facts of that case, we
held the police clearly failed to make “reasonable efforts” to
avoid erroneous execution of a search warrant, thereby violating
the Fourth Amendment.
10
I note the tension between the Court's reasoning and the
majority's suggestion, ante at 13 n.2, that only the Supreme
Court, Eleventh Circuit, or the highest court of the state can
“clearly establish” the law. Compare Courson v. McMillan, 939
F.2d 1479, 1497-98 (11th Cir. 1991) (only in-circuit precedent
relevant) and Hansen v. Soldenwagner, 19 F.3d 573, 578 n.6 (11th
Cir. 1994) (same) with Lanier, 117 S. Ct. at 1226-27 (“Although
the Sixth Circuit was concerned . . . that disparate decisions in
various Circuits might leave the law insufficiently certain even
on a point widely considered, such a circumstance may be taken

29
for present purposes, the Court stressed that rights founded on

general statements of law may be enforced against government

actors. It observed that “notable factual distinctions” between

prior cases and later ones did not require automatic immunity:

[G]eneral statements of the law are not inherently
incapable of giving fair and clear warning, and . . . a
general constitutional rule already identified in the
decisional law may apply with obvious clarity to the
specific conduct in question, even though “the very
action in question has [not] previously been held
unlawful”. . . .

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

factual specificity is to warn government officials when a

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

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

expressly leaves open whether a general rule applies to the

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

into account in deciding whether the warning is fair enough,
without any need for a categorical rule that decisions of the
Courts of Appeals and other courts are inadequate as a matter of
law to provide it.”); Elder v. Holloway, 114 S. Ct. 1019, 1023
(1994) (“A court engaging in review of a qualified immunity
judgment should . . . use its full knowledge of its own and other
relevant precedents.”) (internal alterations and quotations
omitted) and Greason v. Kemp, 891 F.2d 829, 833 (11th Cir. 1990)
("we look to the law established by the Supreme Court, the courts
of appeals, and the district courts.").
11
The majority dismisses Lanier as irrelevant to the instant
case. I cannot agree. Although it concedes that "general
principles of law can provide clear warning," ante at 16 n.3
(emphasis omitted), the majority is unwilling to accept T.L.O.'s
guidance in the absence of its application to "facts materially
similar to those of this school search." Id. at 17. Likewise, it
reasons that "school officials cannot be required to construe
general legal formulations that have not once been applied to a
specific set of facts by any binding judicial authority." Id. at
18-19. I believe this analysis ignores Lanier's intent and,
indeed, the Court's intent throughout its qualified immunity
jurisprudence. Lanier and its precursors make liable those who

30
 Lanier is consistent both with prior Supreme Court precedent

and the policy underlying qualified immunity. The Court has always

required only that the “unlawfulness must be apparent,” Anderson,
483 U.S. at 640, so actors “reasonably can anticipate when their

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

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

conduct governed by “general” constitutional standards would

vitiate the balance struck by qualified immunity, as officials in

clear violation of broad rules would escape liability.

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

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

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

lower courts' conflicting views regarding the application of the

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

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

official is authorized, and how intrusive a search the Fourth

Amendment tolerates. As the majority recounts, the Court adopted

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

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

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

justified at its inception, that is, “there are reasonable grounds

for suspecting that the search will turn up evidence that the

student has violated or is violating either the law or the rules of

the school,” 469 U.S. at 342; and second, the search must be

violate established constitutional norms, even ones with a short
pedigree in the decisional law.

31
permissible in scope, that is, “the measures adopted are reasonably

related to the objectives of the search and not excessively

intrusive in light of the age and sex of the student and the nature

of the infraction.” Id.12

This standard obviously can establish the law for certain

factual situations. For example, if school rules disallow chewing

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

a male teacher of a young girl reasonably suspected of bubblegum

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

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

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

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

Moreover, a highly intrusive search in response to a minor

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

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

schoolhouse searches violate the Fourth Amendment as a matter of

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

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

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

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

unconstitutional.

T.L.O., although not crystalline, is -- simply on the facts of
the case before us -- a bright line. Herring and Sirmon lacked

12
Given the case's history and its comprehensive test, I
disagree with the conclusion, ante at 22, “that T.L.O. did not
attempt to establish clearly the contours of a Fourth Amendment
right as applied to the wide variety of school settings different
from those involved in T.L.O.”

32
even arguable reasonable suspicion to strip search Jenkins and

McKenzie.13 The teachers offer the following evidence as creating

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

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

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

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

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

justifications are specious. First, Herring and Sirmon knew only

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

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

untrustworthy when the backpack search revealed nothing, leaving

only the students' completely contradictory allegations. This

13
My discussion is confined to the strip searches. I
concede that the initial search of McKenzie's backpack was
justified at its inception and reasonable in scope. Ashley
Estell's report that Jenkins put the money in McKenzie's backpack
gave reasonable suspicion to suspect that searching the backpack
would turn up evidence of the theft. See C.B. By and Through
Breeding v. Driscoll, 82 F.3d 383, 388 (11th Cir. 1996).
Moreover, the backpack search, performed by the teacher and
confined to the place identified as containing the contraband,
was not excessive. Further, although the search of the students'
shoes and socks may have been questionable, qualified immunity is
appropriate, because T.L.O. does not clearly prohibit such a
search. See Wynn v. Board of Educ. of Vestavia Hills, 508 So.2d
1170 (Ala. 1987)
(search of shoes and socks for $6 justified at inception where
two students searched were only ones in room when theft occurred;
concluding, without discussion, that search “was not excessively
intrusive”).
14
The majority's statement, ante at 3, that “[s]everal
students subsequently implicated” the girls is misleading because
it does not speak to Herring and Sirmon's knowledge. Fannin
testified that two other students, Micquael Scales and Jennifer
Simmons, accused Jenkins, but only after Fannin left Herring and
Sirmon in the hall with the girls and Jamerson. Fannin did not
relate this information until Sirmon returned to the classroom
while Herring conducted the first strip search.

33
testimony might be at the outer bounds of reasonable suspicion for

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

the bathroom, although relevant to suspicion, was not communicated

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

suggestion that the lack of evidence in the backpack or the

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

it rests on the questionable premise that more intrusive searches

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

clear that such bootstrapping is impermissible; there, the Court

validated the escalating search only because additional evidence

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

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

of drug dealing justified expansion of search to separate zippered

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

15
Even though Jamerson had implicated himself as the thief
(by stating that he hid the money behind a filing cabinet), the
teachers conducted a second strip search of the two girls. This
was wholly unreasonable, especially in view of the fact that
Jenkins stated that she saw Jamerson open the victim's purse, the
girls had never stolen anything before, and Jamerson had a
history of theft.
16
There is a conflict in the record on this point, so I
presume in favor of the plaintiffs. Herring claimed that Fannin
told her of McKenzie's trip and suggested to Herring that money
might be hidden in McKenzie's clothes. Herring then allegedly
replied that she would take the girls to the bathroom and have
them check their clothes. Fannin contradicts this account.
Herring claimed the interchange occurred while the girls were
putting their shoes and socks back on, but Fannin said she left
the hall at that point. Fannin also had no knowledge that
Herring might take the girls to the bathroom, but presumed they
would go to the office, in accordance with policy. Further,
Herring's testimony is unreliable because she changed her story,
telling Principal Nelson that Jamerson, not Fannin, informed her
that McKenzie went to the bathroom.

34
justified reading letters found in zippered compartment). Finally,

there is no evidence that Herring or Sirmon knew about prior

instances of other students concealing money in their clothing.17

Thus, because arguable reasonable suspicion was missing, qualified

immunity is inappropriate.18

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

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

us to consider several factors: whether there was a reasonable

relationship between the means by which a student is searched and

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

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

search in light of the nature of the alleged infraction.

Admittedly, age and sex are not particularly instructive in the

17
Appellees point to clothing searches in other schools, and
to searches of shoes and socks allegedly conducted by Nelson, but
Herring and Sirmon were unaware of these incidents when they
conducted the strip search. Further, it is not clear that, on
summary judgment, we can assume that Nelson's searches ever
occurred, as the Department of Education's Incident Report found
that, in prior school theft incidents, no one had ever been
required to remove any article of clothing.
18
I believe that the majority errs by failing to consider
whether there was reasonable suspicion to initiate each of the
bathroom searches and by treating the searches as a single search
justified at its inception. Ante at 19 n.4. Each search was
separate in time and place and several different people conducted
them. For instance, the backpack search was performed solely by
Fannin in her classroom, and was not revealed to Herring or
Sirmon, who conducted the later bathroom searches.
Further, I differ with the majority's apparent contention
that T.L.O. requires only a one-time assessment of reasonable
suspicion where searches are escalating in nature. Id. T.L.O. in
fact commands a contrary conclusion -- it condoned an escalating
search only where discovered evidence created suspicion to look
elsewhere.

35
present case.19 Nevertheless, this does not render T.L.O. unclear

for qualified immunity purposes. Our cases confirm that a

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

when the “balancing would lead to the inevitable conclusion that

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

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

type of search employed here was not reasonably related to its

objectives and was excessive in light of the nature of the

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

19
Sex is irrelevant because the students were of the same
gender as their searchers; however, the suggestion that T.L.O. is
unclear because it does not explain “whether the search of a boy
or girl is more or less reasonable,” ante at 16, only confuses
the issue. Gender is a concern, obviously, when searches are
conducted by members of the opposite sex. As for age, the T.L.O.
Court did not explain whether older or younger students can be
searched more freely. See Cornfield, 991 F.2d at 1321
(discussing issue).
I cannot subscribe to the majority's view, ante at 19 n.4,
that this search was reasonable in scope because eight-year-olds
are prepubescent and frequently require assistance in the
bathroom. Physical maturity is an elusive and, in my view,
unworkable constitutional standard and is by no means the only
consideration relevant to intrusiveness. See generally Steven F.
Shatz et al., The Strip Search of Children and the Fourth
Amendment, 26 U.S.F.L. REV. 1 (1991) (child's ability to consent,
propensity to commit crime, and degree of body autonomy determine
intrusiveness). Moreover, there is nothing in this record to
support the majority's factual premises, and pediatric literature
suggests that they are questionable. See Marcia E. Herman-
Giddens et al., Secondary Sexual Characteristics and Menses in
Young Girls Seen in Office Practice: A Study from the Pediatric
Research Office Settings Network, 99 PEDIATRICS 505 (1997) (noting
that girls often develop pubertal characteristics by age 8,
depending on racial and ethnic background); Sally Squires, Bed-
Wetting a Common Inconvenience, WASH. POST, Apr. 8, 1997, at Z17
("Most children are toilet-trained sufficiently to stay dry
during the day by age 3 or 4. . . .").

36
Sirmon's conduct as unconstitutional, thereby clearly establishing

the law.20
The strip searches were not reasonably related to their

objectives because they were excessively intrusive and unlikely to

turn up evidence, and because other reasonable, minimally intrusive

options were available.

It is axiomatic that a strip search represents a serious
intrusion upon personal rights. In Mary Beth G. [v. City
of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983)], the
court referred to strip searches as “demeaning,
dehumanizing, undignified, humiliating, terrifying,
unpleasant, embarrassing, repulsive, signifying
degradation and submission.”

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

1992).21 Thus, for a strip search to be reasonably related in

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

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

20
The majority notes that Justice Stevens objected to
T.L.O.'s lack of clarity, ante at 20 n.5; he also realized,
however, that its test would lead to some inescapable
conclusions: “One thing is clear under any standard--the shocking
strip searches that are described in some cases have no place in
the schoolhouse. To the extent that deeply intrusive searches are
ever reasonable outside the custodial context, it surely must
only be to prevent imminent, and serious harm.” 469 U.S. at 382
n.25 (Stevens, J., concurring in part and dissenting in part)
(emphasis added) (citations omitted).
21
Although decided after the events at issue in the present
case, Justice's treatment of strip searches merely confirms their
self-evidently intrusive character.
22
See Cornfield, 991 F.2d at 1321 ("[A]s the intrusiveness
of the search of a student intensifies, so too does the standard
of Fourth Amendment reasonableness. What may constitute
reasonable suspicion for a search of a locker or even a pocket or
pocketbook may fall well short of reasonableness for a nude
search."). A sliding scale of reasonableness is inherent in the
Fourth Amendment. Terry, for example, teaches that "[t]he scope
of the search must be 'strictly tied to and justified by' the

37
suspected evidence. See Terry, 392 U.S. at 29-30 (search must be

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

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

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

discredited testimony of one student and the contradictory

allegations of the three suspects (exacerbated by threats that the

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

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

reasonable, yet minimally intrusive, intermediate steps.

Fannin never questioned whether the money was truly stolen.

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

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

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

took over the situation without asking any questions, and promptly

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

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

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

there was not even reasonable suspicion to believe that the girls

possessed contraband, because the teachers ignored less intrusive

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

strip search was necessarily disproportionate to its justification.

The second strip search was even more blatantly unconstitutional,

circumstances which rendered its initiation permissible." 392
U.S. at 19. See also, e.g., United States v. McMurray, 747 F.2d
1417, 1420 (11th Cir. 1984) (in customs context, as intrusiveness
increases, suspicion necessary to justify search must increase).

38
as no one could reasonably argue that it was necessary after the

fruitless prior search.

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

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

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

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

determinative. Students' privacy rights must be weighed in the

balance. Strip searching a student is permissible only in

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

example, if school administrators have reasonable suspicion that a

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

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

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

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

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

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

As the Seventh Circuit, faced with a qualified immunity

defense following a school strip search, explained:

23
See Justice, 961 F.2d at 193 (collecting cases; noting
that threat of harm was only permissible reason in case law for
strip search of arrestee).
24
See, e.g., Oliver by Hines v. McClung, 919 F. Supp. 1206,
1216-19 (N.D. Ind. 1995) (strip search of seventh graders for
$4.50 unconstitutionally unreasonable); State ex rel. Galford v.
Mark Anthony B., 433 S.E.2d 41, 49 (W. Va. 1993) (strip search
for $100 unconstitutionally unreasonable in scope because no
threat of danger); Bellnier v. Lund, 438 F. Supp. 47, 53-54
(N.D.N.Y. 1977) (strip search for stolen $3 unconstitutionally
unreasonable, given unparticularized suspicion and “relatively
slight danger of the conduct involved”).

39
 It does not require a constitutional scholar to conclude
that a nude search of a thirteen-year-old child is an
invasion of constitutional rights of some magnitude.
More than that: it is a violation of any known principle
of human decency. Apart from any constitutional readings
and rulings, simple common sense would indicate that the
conduct of the school officials in permitting such a nude
search was not only unlawful but outrageous under
“settled indisputable principles of law.”

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

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

Sirmon flagrantly ignored common sense and, crucially, the

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

qualified immunity.

40