Franklin, John Hope, undated - 1 of 1

    r e c e i v e d  
h a n d  d e l i v e r e d

No. 97-38 ?. 7 S92_ L

3ftt tijc Supreme Court ot ■ t j e i i t i v *
OCTOBER TERM

CASSANDRA JENKINS, a minor by her mother 
SANDRA HALL, and

ONEIKA McKENZIE, a minor, by her mother
ELIZABETH McKENZIE, Petitioners,

SUSANNAH HERRING and MELBA S1RMON,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

ELAINE R. JONES 
NORMAN CHACHKIN 
NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. 
99 Hudson St., Suite 1600 
New York, NY 10013

CORNELIA T.L. PILLARD 
GEORGETOWN UNIVERSITY 
LAW CENTER 
600 New Jersey Ave., NW 
Washington, DC 20001

DEVAR1ESTE CURRY 
(Counsel o f Record)
LAW OFFICE OF 
DEVARIESTE CURRY 
1250 24th St., Suite 300 
Washington, DC 20037 
(202) 467-8333

ROSEM. SANDERS 
CHESTNUT, SANDERS. 
SANDERS & PETTAWAY, P.C. 
P.O. Box 1305 
Selma, AL 36701



1

TABLE OF CONTENTS

Page

Table of Authorities..................................................................ii

Reasons for Granting the W rit.............................   1

Conclusion...........................................................  10



TABLE OF AUTHORITIES

Anderson v. Creighton, 483 U.S. 635 (1987) ..................... 7

Bellnier v. Lund, 438 F. Supp. 47 (N.D.N.Y. 1977) . . . . . .  5

Bilbrey v. Brown, 738 F.2d 1462 (9th Cir. 1984) ...............5

Courson v. McMillian, 939 F.2d 1479 (11th Cir. 1991) ............3

Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980)
(per curiam), cert, denied, 451 U.S. 1022 (1981) . . . . . . .  5

Elder v. Holloway, 510 U.S. 510 (1994).......................... 5, 6

State ex rel. Galford v. Mark Anthony B.,
433 S.E.2d 41 (W. Va. 1993)...............................................5

Hamilton v. Cannon, 80 F.3d 1525 (11th Cir. 1996)...........3

Harlow v. Fitzgerald, 457 U.S. 800 (1982)................. .. . 3, 6

Lassiter v. Alabama A & M  Univ.,
28 F.3d 1146 (11th Cir. 1994) (en b a n c ) ............................8

Lebron v. National R.R. Passenger Corp.,
513 U.S. 374(1995).....................................................  5,6-7

Mitchell v. Forsyth, 472 U.S. 511 (1985) .......................  8, 9

Monell v. Department o f Social Services,
436 U.S. 658 (1978)................... ......................................... 2

New Jersey v. T.L.O, 469 U.S. 325 (1985) ...............passim

Oliver v. McClung, 919 F. Supp. 1206 (N.D. Ind. 1995) . . .  5

Tarter v. Raybuck, 742 F.2d 977 (6th Cir. 1984), 
cert, denied, 470 U.S. 1051 (1985) ....................................5

United States v. Lanier, 117 S. Ct. 1219 (1997) . . . .  passim

ii



3n tfje Supreme Court of tfje United States!
October Term, 1997

No. 97-381

Cassandra Jenkins, a minor by her mother 
Sandra Hall, and

Oneika Mckenzie, a minor, by her mother 
Elizabeth Mckenzie, Petitioners

v.

Susannah Herring and Melba Sirmon

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

Respondents’ brief in opposition only confirms that 
this case warrants this Court’s review. First, respondents 
acknowledge that there is a circuit conflict on the issue of 
which jurisidictions’ precedents are to be considered in a 
qualified immunity case to determine whether the law was 
“clearly established.” Second, respondents do not question our 
observations (Pet. 22-24) that every court that has upheld even 
a partial strip search in a school setting dealt with a search for 
weapons or other dangerous contraband, and that every court 
reviewing a strip search for items not posing any imminent risk 
of serious harm, such as money, has held the search to be



2

unconstitutional. Instead, respondents suggest that we have 
waived reliance on any cases other than New Jersey v. T.L. O, 
469 U.S. 325 (1985), that support our contention that 
petitioners’ rights were clearly established. There is no factual 
or legal basis for that suggestion.

Third, respondents unsuccessfully attempt to reconcile 
the decision below with United States v. Lanier, 117 S. Ct. 
1219 (1997), by misconstruing Lanier's core holding. The 
court of appeals’ insistence that only factually specific, similar 
precedents can clearly establish the law cannot be squared with 
Lanier's recognition that even cases with “notable factual 
distinctions” from the case before the court can clearly 
establish the law. Id. at 1227. Fourth, the factual differences 
between T.L.O. and this case do not negate the conclusion that 
T.L. O. plainly prohibits teachers’ precipitate and repeated strip 
searches of eight-year-old students in search of seven dollars 
that another student reported missing.' Under respondents’ 
interpretation of T.L.O., no school search, no matter how 1

1 Respondents seek to downplay the detrimental impact of 
the court of appeals’ standard on the enforceability of constitutional 
rights by speculating that the contours of students’ Fourth 
Amendment rights might become more clearly defined in cases in 
which school officials “fail to raise the defense of qualified 
immunity,” Br. in Opp. 17 n.l 1, but enforceability of constitutional 
rights should not have to turn on defendants’ defaults. Respondents 
also suggest that constitutional standards could develop in cases 
against school boards, but claims against governmental entities 
under 42 U.S.C. 1983 require a showing that the constitutional 
violation resulted from an official policy or custom. See Monell v. 
Department o f Social Services, 436 U.S. 658, 694 (1978). Such 
cases thus cannot clarify T.L.O.'s application to the typical strip 
search case, in which no governmental policy or custom is involved.



3

extreme or intrusive, would warrant a finding of liability. They 
maintain that “T.L.O. is nothing more than an abstract, general 
proposition which provides absolutely no instruction to school 
officials as to the permissible scope of student searches.” Br. 
in Opp. 21. Certiorari should be granted in this case to dispel 
that notion.

1. Respondents concede (Br. in Opp. 15) that there is 
“some conflict” among the circuits on the question of which 
courts’ decisions are relevant to the determination whether the 
law is clearly established under Harlow v. Fitzgerald, 457 U.S. 
800 (1982). Their suggestion (Br. in Opp. 15-17) that the 
decision below does not squarely conflict with the decisions of 
the First, Third, Sixth, Seventh, Eighth, Ninth and Tenth 
Circuits, is based on a syllogism. Respondents point out that 
the Eleventh Circuit considers some “nonbinding” precedent, 
as do decisions of seven other circuits we identified as 
conflicting with the decision below. Id. The only nonbinding 
precedents the Eleventh Circuit considers, however, are the 
decisions of the highest court of the state in which the case 
arose.2 The seven other circuits, in contrast, consider

2 The petition stated that the Eleventh Circuit looks only to 
“binding” precedent, see Pet. 11, 16, but that characterization is 
admittedly an inadvertent oversimplification. The court of appeals 
on occasion also looks to the (nonbinding) decisions of the highest 
court of the state in which the claim arose. See Pet. 14-15; Hamilton 
v. Cannon, 80F.3d 1525, 1531-1532 n.7 (11th Cir. 1996); Courson 
v. McMillian, 939 F.2d 1479, 1498 n. 32 (11th Cir. 1991) (holding 
that “clearly established law in this circuit may include decisions of 
the highest state court in states that comprise this circuit as to those 
respective states, when the state supreme court has addressed a 
federal constitutional issue that has not been addressed by the United 
States Supreme Court or the Eleventh Circuit”).



4

nonbinding decisions from other jurisdictions, including other 
circuits, and, in some cases, decisions of district courts, and of 
state courts outside of the state where the case arose. See Pet. 
16-18 (discussing cases). The decision below thus embraces a 
rule to which no other court adheres, and that is materially in 
conflict with decisions of at least seven other circuits.3

Respondents erroneously suggest that the application of 
a different standard would not have affected the result in this 
case because the precedents the court of appeals declined to 
consider “[do] not necessarily clearly establish the law.” Br. in 
Opp. 16. As we contended in the petition, however, “the 
decided school search cases from other jurisdictions as of May 
1992, taken together, certainly made petitioners’ rights clear.” 
Pet. 18; see id. at 26-27. If the cases from other jurisdictions 
had been considered, it would have been evident that 
respondents should not have been afforded qualified immunity.

2. Respondents assert (Br. in Opp. 5, 15 n.9, 18 n.12) 
that we have conceded that T.L.O. is the sole precedent that 
could have clearly established the law. That assertion does not 
detract from the certworthiness of this case. First, we made no 
such concession. Second, even if we had, it would not amount

3 Indeed, respondents’ brief points out that the conflict is 
even more pervasive than we asserted in the petition. See Pet. 18 
(describing the Second and Fifth Circuits as substantially in 
agreement with the Eleventh Circuit). As respondents note (Br. in 
Opp. 15), the Eleventh Circuit’s standard is unique; while the 
Second and Fifth Circuits consider only this Court’s and their own 
circuit precedents, the Eleventh Circuit also considers decisions of 
the highest court of the state where the case arose.



5

to a waiver and would have no effect on this Court’s ability to 
consider all relevant cases in support our claim. See Lebron v. 
National R.R. Passenger Corp., 513 U.S. 374, 379 (1995); 
Elder v. Holloway, 510 U.S. 510 (1994).

Petitioners repeatedly and consistently have relied on 
lower court cases, as well as on T.L.O., to support the 
contention that petitioners’ rights were clearly established. See 
Pet. 26-29 (citing cases). In the briefs to the court of appeals 
panel, petitioners cited other relevant cases in addition to 
T.L.O. See, e.g., Pet’r C.A. Br. 20-21 & n.6 (citing Doe v. 
Renfrow, 631 F.2d 91 (7th Cir. 1980) (per curiam), cert, 
denied, 451 U.S. 1022 (1981); Bilbreyv. Brown, 738 F.2d 1462 
(9th Cir. 1984)). Before the en banc court, petitioners 
continued to assert the relevance of school search cases other 
than T.L.O. See, e.g., Pet’r En Banc C.A. Br. 22 n.10, 27 n.13, 
35 (citing Doe v. Renfrow, 631 F.2d 91; Tarter v. Raybuck, 742 
F.2d 977 (6th Cir. 1984), cert, denied, 470 U.S. 1051 (1985); 
Oliver v. McClung, 919 F. Supp. 1206 (N.D. Ind. 1995); 
Bellnier v. Lund, 438 F. Supp. 47 (N.D.N.Y. 1977); State ex 
rel. Galfordv. Mark Anthony B., 433 S.E.2d41 (W. Va. 1993). 
There is thus no basis for respondent’s suggestion that we have 
somehow waived reliance on cases other than T.L.Of 4

4 The court of appeals concluded that the parties “agree[d]” 
that T.L.O. was the only relevant school-search case and thus was 
“the sole precedent that could have clearly established the law for 
purposes of qualified immunity analysis.” Pet. App. 6a n.l. 
Because the court states that conclusion without citation to the 
record, we do not know what comment the court might have been 
construing as manifesting our “agreement.” In any event, the court’s 
conclusion must be viewed in light of that court’s rule limiting the 
universe of relevant cases. In stating that petitioners had identified 
no relevant case other than T.L. O., the court of appeals was governed



6

Even if we had failed in the lower courts to identify 
relevant cases other than T.L.O., no estoppel or waiver would 
have resulted. Rather, we could nonetheless raise, and this 
Court could rely on, any cases tending to show that petitioners’ 
rights were clearly established. As this Court unanimously 
held in Elder v. Holloway, “appellate review of qualified 
immunity dispositions is to be conducted in light of all relevant 
precedents, not simply those cited to, or discovered by,” the 
lower courts. 510 U.S. at 512.5 Thus, any failure in the lower 
courts to identify cases that help to clearly establish the law 
does not affect our ability to identify such cases now. Indeed, 
even an affirmative disavowal of reliance on any cases other 
than T.L.O. would not have affected our ability to rely on 
additional cases in this Court. See Lebron v. National R.R.

by its own rule that only cases from this Court, the Eleventh Circuit 
itself and the highest court in the state where the case arose can 
“clearly establish” a right within the meaning of Harlow v. 
Fitzgerald. See Pet. App. 14a n.3. It is precisely that rule limiting 
the universe of relevant cases that conflicts with holdings of other 
courts of appeals, and that petitioners challenge in this Court. Pet. 
i (Question 3); 14-18. The fact that the court of appeals viewed 
petitioners’ contentions through the narrow lens of its own circuit 
rule cannot serve to insulate that rule from this Court’s review.

5 In Elder, the plaintiffs failure to call certain precedent to 
the district court’s attention did not preclude him from relying on 
that precedent in the court of appeals. This Court reasoned that 
“[w]hether an asserted federal right was clearly established at a 
particular time, so that a public official who allegedly violated the 
right has no qualified immunity from suit, presents a question of 
law, not one o f ‘legal facts.’” 510 U.S. at 516.



7

Passenger Corp., 115 S. Ct. at 965.6 Under Lebron,
petitioners’ Fourth Amendment claim, and their contention that 
the law supporting it was clearly established, are plainly 
preserved and appropriate for review by this Court, without 
regard to whether some of the arguments petitioners now 
present might be new.6 7

3. Respondents’ argument (Br. in Opp. 7-12) that the 
Eleventh Circuit standard is consistent with United States v. 
Lanier, 117 S. Ct. 1219 (1997), misses the mark. Respondents 
contend, in essence, that Lanier and Anderson v. Creighton, 
483 U.S. 635, 640 (1987), stand for the same “principles,” and 
that the decision below is “commensurate with Anderson,” and 
thus with Lanier. Br. in Opp. 10. Respondents are wrong, 
however, because both the decision below and Lanier address 
an issue not resolved in Anderson, and do so in conflicting 
ways.

Anderson held that, “in light of preexisting law, the 
unlawfulness [of the challenged conduct] must be apparent,”

6 In Lebron, this Court reviewed an argument that the 
petitioners in that case had expressly disavowed in the court of 
appeals. See 115 S. Ct. at 964. The Court applied its “traditional 
rule” that “[o]nce a federal claim is properly presented, a party can 
make any argument in support of that claim; parties are not limited 
to the precise arguments they made below.” Lebron, 115 S. Ct. at 
965 (quoting Yee v. City o f Escondido, 503 U.S. 519, 534 (1992)).

7 In any event, if any such waiver had occurred, it would 
relate only to the third question presented, and would not warrant 
denial of certiorari on the other two questions. As we stated in our 
petition (Pet. 11, 20-27), T.L.O. on its own sufficed to clearly 
establish petitioners’ Fourth Amendment rights.



8

but that “the very action in question” need not have “previously 
been held unlawful.” Id. at 640. Anderson did not reach the 
question whether, in order to defeat qualified immunity, a 
plaintiff must show that factually similar conduct had been held 
unlawful. The Eleventh Circuit held that the plaintiff must, 
requiring that there be established law developed in “a concrete 
and factually defined context” that is “materially similar” to the 
challenged conduct. See Pet. App. 5a; Lassiter v. Alabama A 
& M  Univ., 28 F.3d 1146, 1150 (11th Cir. 1994) (en banc). 
This Court in Lanier, in contrast, held that the law can be 
clearly established even in the absence of “precedents that 
applied the right at issue to a factual situation that is 
‘fundamentally similar’” to the claim at issue, and even where 
there are “notable factual distinctions between the precedents 
relied on and the cases then before the Court.” 117 S. Ct. at 
1227. Because the conduct challenged in this case falls at or 
near the prohibited end of the constitutional spectrum 
established by T.L.O., its unlawfulness is “apparent” under 
Lanier even in the absence of any prior, factually similar case. 
The Eleventh Circuit’s requirement of factually similar 
precedent, and its conclusion that T.L.O. is too dissimilar and 
its standard too general to have clearly established the law in 
this case, conflict with Lanier.

Respondents seek to reconcile the court of appeals’ 
requirement of factually specific precedent with Lanier's 
contrary holding by pointing to this Court’s caveat in Lanier 
that, “when an earlier case expressly leaves open whether a 
general rule applies to the particular type of conduct at issue, a 
very high degree of prior factual particularity may be 
necessary.” 117 S. Ct. at 1227. See Br. in Opp. 10-11 n.7 
(citing Mitchell v. Forsyth, 472 U.S. 511, 530-535 (1985)). 
T.L.O. did not, however, “expressly leave open” the question 
whether strip searches by school personnel seeking small



9

amounts of money based on slim suspicion are constitutional. 
An issue is not “expressly” left open unless the Court states that 
it is declining to reach the issue.8 If an issue were considered 
“expressly” left open under Lanier's caveat simply because the 
Court had not explicitly addressed it, the caveat would swallow 
Lanier's general rule that factually dissimilar precedent can 
clearly establish a constitutional right.

4. Lanier refutes respondents’ argument (Br. in Opp. 
19-22) that the generality of the T.L. O. standard, and the factual 
dissimilarities between T.L.O. and this case, “preclude[] a 
finding of clearly established law.” Id. at 22. The fact that the 
T.L. O. standard is flexible and thus “creates uncertainty in the 
extent of its resolve to prohibit” intrusions of students’ privacy, 
469 U.S. at 381 (Stevens, J., dissenting), does not mean that the 
application of the standard is uncertain in every case, as 
respondents suggest. Br. in Opp. 20. To be sure, there may be 
a relatively broad category of cases toward the middle of the 
constitutional spectrum to which the application of T.L.O. 
remains unclear. As we have argued (see Pet. 20-27), however, 
this is not such a case.

8 As an example, Lanier cites Mitchell, which was a 
constitutional challenge to a warrantless domestic national security 
wiretap. The cited passage in Mitchell points out that in Katz v. 
United States, 389 U.S. 347, 358 n.23 (1967), “the Court was careful 
to note that ‘[wjhether safeguards other than prior authorization by 
a magistrate would satisfy the Fourth Amendment in a situation 
involving the national security is a question not presented by this 
case.’” 472 U.S. at 532. That express statement in Katz contributed 
to the Mitchell Court’s conclusion that former Attorney General 
Mitchell was entitled to qualified immunity. See id. at 535.



10

5. Finally, respondents’ assertions about the factual 
record provide no grounds for denial of review. Referring to 
the Board of Education’s and Office of Civil Rights’ 
determinations, and to “inconsistencies” in the girls’ testimony, 
respondents suggest that the strip searches never took place. 
Br. in Opp. 3.9 The record plainly is adequate, however, to 
support the unanimous conclusion of the district court, the 
court of appeals panel and the en banc court that a reasonable 
jury could have found the facts in petitioners’ favor. See Pet. 
App. 2a-4a, 40a-43a, 45a.10

CONCLUSION

The petition for a writ of certiorari should be granted.

9 OCR’s own report acknowledged that there was 
“conflicting testimony whether the students were actually strip 
searched, and that OCR was unable to reach for interview “several” 
potential witnesses. See Pet’r C.A. App. 138-140.

10 The en banc court recognized that, despite some 
discrepancies, petitioners’ testimony was consistent “with respect to 
the assertion that they were asked to remove their clothing while 
inside the restroom. Pet. App. 3a. With regard to the putative basis 
for conducting the strip searches, respondents contend that
McKenzie had repeatedly asked and been given permission to go to 

the restroom after the regular restroom break.” Br. in Opp. 2. 
Petitioners, however, dispute whether Herring or Sirmon knew of 
those requests when they made the girls strip, see Pet. App. 30a-3 la 
& n.l 1, and McKenzie’s restroom trips could not in any event 
provide any support for strip searching Jenkins.



Respectfully submitted.

DEVARIESTE CURRY 
(Counsel of Record) 
ELAINE R. JONES 
NORMAN CHACHKIN 
CORNELIA T.L. PILLARD 
ROSE M. SANDERS

OCTOBER 1997