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.


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  1. identicon
    Anonymous Coward, 2 Jul 2018 @ 12:25pm

    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.


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