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Criminal Justice

Strip Searches of School Children: Legality Depends on Circuit

By Lauren Goldberg

In Jenkins v. City Board of Talladega, elementary school students were strip searched by school officials after being accused of taking $7 from a classmate’s purse. The children’s parents sued the school board and the individual school officials involved under the Civil Rights Act of 1964, 42 U.S.C. § 1983, claiming that the children’s right to be free from unconstitutional searches and seizures had been violated. The district court agreed with the defendants’ claim of qualified immunity and extended immunity to the school officials. The Court of Appeals for the Eleventh Circuit affirmed the district court’s decision, concluding that the law regarding strip searches was not sufficiently clear that the teachers should have known the searches violated the students’ rights.

By granting school officials virtually absolute freedom to conduct searches of young children, the circuit court has drastically reduced the viability of section 1983 civil rights claims. Considering the threat that Jenkins poses, it is critical to dissect the appellate decision and to expose its ill-formed reasoning and misconceived conclusions.

Supreme Court Test Not Applied. The leading Supreme Court case on school searches, New Jersey v. T.L.O., sets forth a two-part inquiry for determining whether a search of a student is reasonable under the Fourth Amendment. The test requires a court to determine (1) whether the search was justified at its inception, and (2) whether the search was reasonably related in scope to the circumstances that justified the interference in the first instance. Instead of applying the substantive law as established in T.L.O., the Eleventh Circuit’s strategy is to fault T.L.O. for providing insufficient guidance on how to apply the test factors. For instance, the court completely disregards the first T.L.O. factor. The only reasonable suspicion fueling these numerous searches was the comment of one eight-year-old girl that she saw Jenkins take the money. Fourth Amendment case law establishes that each search within a progression must be independently justified by reasonable suspicion. The court should have been skeptical about allowing the word of an eight-year-old to provide reasonable suspicion for any minimal search, let alone three progressively intrusive and invasive searches.

Although the Jenkins court applies the second part of the T.L.O. test in a footnote discussion, it does so by inflating the seriousness of the infraction, and by deflating the intrusiveness of the search by rationalizing the children’s ‘prepubescent’ age as an excuse to minimize the students’ privacy rights. The court’s logic is troubling because the court’s understanding of second graders is unrealistic. The court’s willingness to evaluate the level of intrusiveness based solely on physical maturity is misleading because there are a variety of factors that should be weighed.

Relevant Case Law Disregarded. The Eleventh Circuit in Jenkins never justifies how a school official could conduct a search as deeply intrusive as a strip search after less intrusive searches proved unfruitful. Cases in other circuits have held consistently that each search within a progression must be independently justified by reasonable suspicion to be valid under the Fourth Amendment. The Jenkins court states that it is "undisputed that, under the facts of the case, T.L.O. is the sole precedent that potentially could have clearly established the law for qualified immunity purposes." There is, however, a body of case law that should have been considered in determining whether the law as to school strip searches was "clearly established." Although circuit courts are under no express obligation to follow the law in other jurisdictions, courts generally do consider case law from other circuits as relevant sources. While the Second, Fifth, and Eleventh Circuits have stated that they will consider only Supreme Court decisions and those of their own circuits, they all have relied on other courts’ opinions in some cases. The Jenkins court’s disregard of all decisions outside its jurisdiction has led to a strikingly contradictory outcome from cases in other circuits. Prior decisions in other federal courts have defined the type of reliability and concrete evidence needed to substantiate reasonable suspicion and have emphasized the important nexus between the intrusiveness of the search and the type of violation. Other cases also illustrate that strip searches are permissible only for retrieving certain items such as weapons or dangerous contraband. Until Jenkins, strip searches for items such as money, which do not pose an immediate threat, were uniformly condemned.

The Eleventh Circuit’s resistance to applying the T.L.O. test is based erroneously on the notion that a right based on a reasonableness test, which incorporates a host of factors, cannot be "clearly established" for qualified immunity purposes. There is a consensus, however, that reasonableness tests can sufficiently establish a law such that certain behavior can be identified as so egregious that it falls outside constitutional boundaries. The ability of the courts to use other multifaceted tests to distinguish egregious behavior, such as in excessive force claims, exposes the faulty logic behind Jenkins.

The federal courts should establish a uniform body of law to protect individual constitutional rights. Under this theoretical concept the amount of protection afforded individuals should not fluctuate, but should be constant for all individuals regardless of where they reside.

School Safety Does Not Always Justify Intrusion. Although maintaining school order is an important objective, its importance should not be used to give teachers license to conduct invasive searches for any reason. To do so, allows students to be equated with adult prisoners in maximum-security penitentiaries. Considering the undue emphasis that the court places upon school safety in a case involving $7, the Jenkins decision erroneously reflects the attitude of the Supreme Court as expressed in Bell v. Wolfish, which upheld strip searches of adult prison inmates. By permitting school officials practically unrestrained authority over school searches, the Jenkins court grants teachers essentially the same powers as prison guards. This is highly disturbing, given that students and prisoners are not in similar positions in regard to their Fourth Amendment rights.

Moreover, in light of the outcome in Flores v. Meese, the Fourth Amendment rights of juveniles may be better protected in a detention facility than in a school building in the Eleventh Circuit. The Flores court concluded that the routine strip search of juveniles at Immigration and Naturalization Service detention facilities was unconstitutional. Although safety is arguably more in jeopardy in detention centers than at schools, the Flores court expressed much greater concern over interfering with juveniles’ rights than did the court in Jenkins.

Promulgate Rules and Educate the Community. The Alabama state legislature should follow the lead of other states, such as California and Oklahoma, and enact legislation defining the circumstances that justify strip searches and other less intrusive searches in schools. Although some states have completely banned strip searches in schools, not all legislatures may be willing to take such a definitive stand. If legislators do not want to prohibit all strip searches, they must promulgate a set of thorough and comprehensive rules and procedures defining when and how such searches can be conducted.

Lauren Goldberg is with the New York City Law Department, Office of Corporation Counsel.

- This article is an abridged and edited version of one that originally appeared at page 16 in Criminal Justice, Spring 1999 (14:1).

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