Fifth Circuit Says No, You Fucking May Not Strip Search A Classful Of Female Students To Find $50
from the because-of-course-you-can't-the-hell-were-you-thinking dept
The Fifth Circuit Appeals Court convened to write an opinion [PDF] the judges shouldn't have had to write. But then, of course, they had to because the lower court screwed everything up. The first paragraph sums up the issue -- and the appeals court's decision -- succinctly and devastatingly. (h/t Raffi Melkonian)
During a sixth-grade choir class, an assistant principal allegedly ordered a mass, suspicionless strip search of the underwear of twenty-two preteen girls. All agree the search violated the girls’ constitutional rights under Texas and federal law. Even so, the district court dismissed the girls’ lawsuit against the school district for failure to state a claim. We reverse.
The school admitted it violated the students' rights. It admitted it performed a search without justification or guiding policies. It all but started cutting settlement checks and yet the lower court said no viable claim was made by the plaintiffs.
The background: in an attempt to locate $50 that went missing during a choir class, the entire class was searched. Given the nature of the search, this quickly changed the definition of "class" from a "a number of students studying the same course" to "a number of students suing the school." This maybe wouldn't have gone as far as it did, but for the invaluable assistance of the school's police officer.
When no money turned up, the school police officer “suggested that girls like to hide things in their bras and panties.”
I sincerely hope this person is now chronically underemployed. Why escalate things needlessly? No one was looking for weapons or even illegal drugs. It was cash -- something easy to lose. That $50 has gone missing does not necessarily mean it was stolen. That it may have been stolen does not necessarily mean the female class members would have stashed it in their undergarments.
Without seeking permission from the students or informing their parents, the vice principal had the school nurse perform a strip search of all the students.
Higgins took all twenty-two girls in the choir class to the female school nurse, who strip searched them, taking them one at a time into a bathroom, where she “check[ed] around the waistband of [their] panties,” loosened their bras, and checked “under their shirts.” The girls “were made to lift their shirts so they were exposed from the shoulder to the waist.”
Do the ends justify the means?
No money was found.
The district's policy for searches is a mess. An unconstitutional mess. As the court points out, it gives no guidance to administrators on how to reach its self-generated standard of "reasonable cause" before performing a search. However, it does tell administrators searches by school personnel should be as non-intrusive as possible and only when there's a "reasonable" belief contraband might be found.
The only discipline handed out for this mass violation of rights was a memo chastising the Vice Principal for performing a search to find something not actually considered to be "contraband." But the court points out that this memo misses the whole point of Constitutional protections and the school's obligation to leave those (and their students) unmolested.
Regardless, the supposed lack of “contraband” appears to have been the principal’s only concern; the memo never criticized the search for invading the underwear of twenty-two preteen girls, or for doing so without particularized suspicion.
In fact, the principal's memo seemed to suggest strip searching students was acceptable as long as the principal was given a heads up.
The memo further made clear that, at least in the principal’s mind, such strip searches of students are not per se improper under school district policy. Rather than forbidding all strip searches going forward, the memo requested: “In the future, if you feel a student must have a search requiring a strip search, please notify me before proceeding.”
Addressing the lower court's fuck ups, the Appeals Court first points out the question of Constitutionality has been answered firmly, with some of that coming from the defendant school's own admissions.
[T]his clearly established law means that Higgins violated the constitutional rights of the twenty-two girls unless Higgins reasonably suspected that the missing $50 cash (1) would be found on that particular girl’s person and either (2) would be found specifically in that girl’s underwear or (3) would pose a dangerous threat to students. For what are perhaps obvious reasons, the parties do not dispute that the alleged search failed all three conditions. It was clearly unconstitutional.
The school tried to claim the plaintiffs had nothing to support their claims. It tried to portray this as allegations about an unconstitutional policy. But the Appeals Court notes the plaintiffs are actually alleging the school had done nothing at all to provide search guidance to its administrators. This changes the judicial math a bit. [Emphasis in the original.]
To be clear, the argument is not that the school district’s written search policies are facially unconstitutional or that they caused the alleged constitutional violation by themselves. Rather, the “official municipal policy” on which Plaintiffs attempt to hang Monell liability is the school district’s alleged policy of providing no training whatsoever regarding its employees’ legal duties not to conduct unreasonable searches. In other words, as currently presented, this is a “failure to train” case.
This allows the plaintiffs to move forward with their allegations, overturning the lower court's dismissal. The Appeals Court notes this reversal isn't meant to suggest the plaintiffs have enough evidence to prevail on this claim -- only that they should not have seen their case dismissed during the first round of pleadings by the lower court.
But what seems obvious to everyone was somehow unclear to the vice principal who ordered the searches. The court notes there really can only be one entity to blame in this matter: the school itself for failing to give officials proper training on students' constitutional rights. Just having a policy several steps removed from the actual limitations demanded by the Fourth Amendment isn't enough. The courts don't expect police officers to know the nuances of every Fourth Amendment decision governing the searches of full-grown adults so it sure as hell isn't going to expect a school administrator will have this all nailed down without outside instruction.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, 5th circuit, 6th grade, strip search, students
Reader Comments
The First Word
“This goes beyond stupidity into territory any adult knows better.
The juveniles in this case were victimized. The clearest of bright line must be drawn for the bumbling dolts, or predators seeking out such opportunity, are aware of life devastating outcomes.
All that was required was one sensible person to say "Hell no. You're out of your mind and a sick person."
made the First Word by Ninja
Subscribe: RSS
View by: Time | Thread
Train them not to be a jackass
[ link to this | view in chronology ]
Re: Train them not to be a jackass
[ link to this | view in chronology ]
Re: Train them not to be a jackass
As the old saying goes, ignorance is not an excuse.
Professional educators, much like professional law enforcement, go to school to prepare to be able to do their jobs. That schooling provides much greater knowledge of the rules of their profession than a high school graduate gets, which should mean that they have less ability to claim ignorance as an excuse.
Except they not only claim that ignorance of the law is an excuse, the courts rush to agree with them that there's no way they could reasonably be expected to know enough about the law to avoid breaking it. Even though they need the same K-12 education to even apply for that extra career training, they're held to a lower standard of obedience to the law than someone with just a K-12 education.
But the court will still insist that ignorance is not an excuse.
[ link to this | view in chronology ]
"Ignorance is not an excuse."
But then SCOTUS countered this notion ruling the police don't need to know the laws they enforce and can rely on guesswork so long as they do it in good faith.
So I'm assuming, the more authority and power you have, the less responsibility you have knowing what laws apply to you.
[ link to this | view in chronology ]
Re: Train them not to be a jackass
[ link to this | view in chronology ]
The Problem in a Nutshell
The courts don't expect police officers to know the nuances of every Fourth Amendment decision governing the searches of full-grown adults so it sure as hell isn't going to expect a school administrator will have this all nailed down without outside instruction.
If they are not expected to understand exactly what they are doing, why are they even allowed to do it? When did the US become a society that expects every citizen to be aware of the law, except for those with any ability/responsibility to actually enforce it?
Good luck trying this kind of crap as a citizen in court. It won't fly. And if you base on appeal on lack of knowledge of the esoterica of the law, they will simply say - NO. As citizens we are required to have an encyclopedic knowledge of the law, all precedents, all appeals court and supreme court decisions which may bear on our situation.
It's good to be holder of authority in America now. It means that your authority comes with no real responsibilities, but most especially, no consequences.
[ link to this | view in chronology ]
Re: The Problem in a Nutshell
[ link to this | view in chronology ]
Re: The Problem in a Nutshell
Of course, we couldn't simply accuse an entire class either. You have to have names. We had to be able to name a suspect or suspects.
[ link to this | view in chronology ]
Re: Re: The Problem in a Nutshell
[ link to this | view in chronology ]
Re: Re: Re: The Problem in a Nutshell
I've never understood it either, as I believe children, who lack the reasoning capacity and psychological levels of an adult should be further protected than adults and there should be no consent to anything until their lawful guardian is present. Police don't even have to issue miranda rights to minors and can trick them into admitting to things and saying they won't get punished. But a child, even an older teenager can lack the ability to properly express what happened and police are trained to misconstrue and twist a suspect's story and manipulate them. Manipulation of children to get them to tell you what you want to hear shouldn't be allowed by anyone, especially schools. Just because they attend a school, which is law to attend, doesn't mean they've given up all rights under the constitution, federal, civil or state laws. This has become the attitude of many school districts and the parents have no rights as well to protect their child and aren't informed until after it's said and done. In this case there was already a ruling by the supreme court that could have been used in Stafford Unified School District v. Redding that deemed this exact act a 4th amendment violation.
[ link to this | view in chronology ]
If a non-cop shoots a person dead because they have a tough job that's all sorts of jail time.
If a non-cop/school-person strip searches 22 girls I'd be shocked to hear the person in question made it to court alive without being beaten to death by ~44 parents/guardians.
Perks of some jobs I guess.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
In what state??
TEXAS..
[ link to this | view in chronology ]
Re: In what state??
[ link to this | view in chronology ]
Re: In what state??
No the school districts legally cannot in Texas, but that doesn't mean the school districts don't do it. It's incredibly hard to prove cases in Texas, as the students and parents bear the burden of proof. And for the guy above, no Texas is not a knuckle dragging state and is a purple state about half and half. Every society in every state and country has all different kinds of people that make up their community. It's sad that you only hear about the people that make your state look bad, when in reality there are many that are intelligent, thoughtful, open minded and educated who fight to make their city and state a better place. Generalizing the people of an entire state the size of Australia is ignorant in itself and narrow minded.
[ link to this | view in chronology ]
Sue them personally
[ link to this | view in chronology ]
One wonders if they strip searched the adults as well, kids aren't the only ones with sticky fingers & focusing the fuzz on other targets is something a real criminal would do.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
You would not be in a position to plead anything, and the Grand Jury would refuse to indict the officer since he was forced to kill you in self-defense in order not to suffer bodily harm that might have lessened his prospects of wearing mini skirts in public.
[ link to this | view in chronology ]
Re: Re:
I can't say that if I were the parent of one of these children I would not be moved to cause a little mayhem myself. Going directly after the people that did this starting with the principal that ordered it would be certain to put a stop to it.
It would be unfriendly and it would soon become a very public affair. If they escalate, then you must escalate it to the stratosphere. People will damn sure take notice then!
[ link to this | view in chronology ]
Re: Re: Re:
There's no doubt that a high percentage of families there also avoid sending their kids to public schools, but for entirely different reasons.
Lanier Middle School is an inner-city school that many of Houston's most exclusive and expensive neithborhoods are zoned to, along with (presumably) some of the poorest, most dysfunctional, crime-ridden and drug-plagued areas in town.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re:
That's not how it works with LEOs in the US. You would be killed for resisting. Even if you knocked the guy out, it wouldn't change that the entire force would come at you as soon as they knew whodunit.
You cannot hope to get justice for your child by being open and upfront about your grievances with those who have authority to end your and your family's life. Justice against those responsible must be obtained quietly, with nothing linking you to its dispensation later on. And for pete's sake don't talk about doing it before, nor ever brag about it on the internet after you're done.
[ link to this | view in chronology ]
Re: Re:
There's also the "Maxine Waters Approach" which on the surface is a public (dog whistle) calling for "resistance" but is really a call for thuggery without explicitly saying so.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
This goes beyond stupidity into territory any adult knows better.
The juveniles in this case were victimized. The clearest of bright line must be drawn for the bumbling dolts, or predators seeking out such opportunity, are aware of life devastating outcomes.
All that was required was one sensible person to say "Hell no. You're out of your mind and a sick person."
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Medical professions who willingly participate in any forced "security" or punitive actions, from executions to strip searches to forced catheterizations, should at the very least have their licenses to practice medicine revoked. They should never be allowed to do things that would be considered a crime if committed by anyone else, and "just following orders" should not be given any more leeway than it was at Nuremberg.
[ link to this | view in chronology ]
$50 has no identifier on it
$50 is $50, no one would be able to identify it from any other pile of $50 in cash.
And what if they found multiple people had $50 on them?
Contrary to what power hungry school staff might think, it's not illegal or suspicious to carry money on you.
[ link to this | view in chronology ]
Re: $50 has no identifier on it
ahem.... you are wrong... just check out a few civil forfeiture laws... it is totally suspicious to carry money of any amount around in cash or on prepaid cards.
You are guilty until proven innocent, not a joke, just the straight up facts!
[ link to this | view in chronology ]
Re: Re: $50 has no identifier on it
You are not guilty until proven innocent - technically.
Your money however is. And in civil forfeiture, YOU aren't charged with anything.
The $50 gets accused of being drug related, is arrested, automatically loses the case, and is spent by the arresting officer later. But you were never charged with any crime.
[ link to this | view in chronology ]
Re: Re: Re: $50 has no identifier on it
[ link to this | view in chronology ]
Re: Re: Re: $50 has no identifier on it
Not to mention that the money is part of our "effects" as mentioned in the 4th.
Civil forfeiture should require a charge and conviction before the money is also found "guilty".
[ link to this | view in chronology ]
Re: Re: Re: Re: $50 has no identifier on it
[ link to this | view in chronology ]
Re: $50 has no identifier on it
https://www.moneyfactory.gov/resources/serialnumbers.html
[ link to this | view in chronology ]
Re: Re: $50 has no identifier on it
Zero that's who. No one obsessively writes down or memorizes the serial number of their cash.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
So who was the victim of the theft? and other questions
In the article, it is said that it was the whole class who were subject to the search... One would assume that none of them were then the original owner of the $50.
Could this mean that it was a teacher? Is this the reason that it escalated so much?
Did they have the serial number of the bill? What if one of them were supposed to go and get groceries after school and their parents gave them $50 for that? I was old enough to do this by myself when I was their age.
What if they just had a birthday and they kept grannys present in their wallet?
Did the teacher get searched? (unless he/she were the one who was missing $50) We had thefts on every workplace I have even been on and it is not like crime stops at a certain age. But the truth is that NO adult working at a school would EVER take being searched like this.
This shitstorm stinks of petty vengeance and I hope, for the sake of their kids, that every single parent will move their children to another school. The school really deserves to go down from missing attendance and so does the administration and teachers involved.
[ link to this | view in chronology ]
Re: So who was the victim of the theft? and other questions
Search them anyway. I'd bet whoever claimed the money was missing still had it... or never had it and was just out to scam some poor kids out of their lunch money. Jokes on them - none of them had any money.
[ link to this | view in chronology ]
Ignorance of the law is not an excuse, or so they tell us.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
This is the world we live in.
Apparently, enough people will discard their own ethics if they have a sufficiently high or influential authority imply they can or should.
A crotch-grabbing President suffices.
[ link to this | view in chronology ]
Hopefully this won't make it to the supreme court...
...the current iteration of which is in danger of making a narrow ruling in favor of the school which they promise is not to be construed to suggest mass strip-searching prepubescent girls is appropriate or legal.
[ link to this | view in chronology ]
Re: Hopefully this won't make it to the supreme court...
There is already a case identical to this that has a supreme court ruling. Stafford Unified school district v. Redding. It's a 4th amendment violation.
[ link to this | view in chronology ]
A willing accomplice in the school nurse
A school nurse with any backbone would of refused to be involved with this. Be it he or she loose their employment over such a refusal.
[ link to this | view in chronology ]
Re: A willing accomplice in the school nurse
Everyone involved with this needs to be a) summarily dismissed b) charged with abuse and c) added to the sex offenders register.
[ link to this | view in chronology ]
The money never was missing to begin with?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
"Now remember: Groping pre-teens is WRONG, so don't get caught."
The court notes there really can only be one entity to blame in this matter: the school itself for failing to give officials proper training on students' constitutional rights.
Uh, no. The school has some blame to be sure for not setting out clear and concise rules making it crystal clear that strip-searching students is not allowed(though even then, why would they even think that something like that would need to be spelled out?), but the primary ones to blame are the ones who ordered and/or engaged in said strip-search.
There was absolutely no reason they had to be told by anyone that what they were doing was wrong, so the fact that they did it anyway is more than enough to pile on the blame.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
First: per the article, they were pre-teens - i.e., at most, 12 years old. (I'm far enough removed from such things to have forgotten which age the grades start counting at, so I can't pin it down based on "sixth grade".) Do you really expect kids of that age to have that sort of mindset?
Second: given that a police officer (the one assigned to work at that school as its resource officer) was the one to have suggested searching their underthings in the first place, why would even kids who did have the mindset of "call in the police" have expected it to do any good?
Third: maybe policies differ from one jurisdiction to another, but my strong impression is that in most schools - or at least most public school systems, although I don't see any confirmation offhand that this took place at a public school - the students aren't allowed to carry cell phones on school property during school hours. It's entirely possible that the kids wouldn't have had any way to call 911 while things were going on, even if the idea occurred to them and they didn't think it would be useless.
[ link to this | view in chronology ]
Grade school ages.
Typically in the US, kids enter kindergarten at 5 or 6 (Late summer, early autumn birthdays go in early).
So your typical graduating sixth grader (going on to intermediate school) is 12-years-old. Though some are 11.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
And that would have made it OK?
You know it wouldn't. So stop fueling the knee-jerk panics out there by writing as if it would.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Cigarette madness
The typical smoker starts around 11-12 years old, and while pot is not the gateway drug, tobacco definitely is.
We're probably going to see more tweens and young teens experimenting with cannabis thanks to its legality (much like they experiment already with smoking and booze). However it's dysfunctionality (e.g. abuse at home, bullies, abusive teachers and schools, etc.) that will drive them to self-medicate.
And that may even be a harm-reduction device in order to stop them from killing themselves from all the misery.
A lot of our kids live in poverty. Most of them are neglected due to our expectation that all adults work full time or more. The United States hates its kids. And if we wanted them not resorting to drugs, maybe we should put our money (back) where our mouth is.
[ link to this | view in chronology ]
Re: Cigarette madness
Do you have links to statistics for that? I'm not saying you're wrong but I am curious as to where you got that information as I have not heard that stated before in any of the statistics I have seen.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
You know.
Like a headline.
[ link to this | view in chronology ]
i remember
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Girls will be searched
Smacks of small town pettiness, ignorance and sexual deviancy.In that kind of mental fog, boys can pass the test, while girls are sexually assaulted at will.
But still-didn't it occur to anyone involved that what they did was group gross sexual assault?
Nah, that's just too much to think about...and $50 was the price of stupidity.
Everyone should have been fired the second this happened. I hope the girls involved get the millions they deserve for having endured such a invasive breach of their constitutional rights.
[ link to this | view in chronology ]