Jenkins v. Herring Petition for a Writ of Certiorari to the US Court of Appeals for the Eleventh Circuit

    No. Cn - 3 S ' /

IN THE SUPREME COURT OF THE UNITED STATES 
October Term, 1997

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

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

FOR THE ELEVENTH CIRCUIT

ELAINE R. JONES 
Director-Counsel

NORMAN J. CHACHKIN 
NAACP LEGAL DEFENSE 

AND EDUCATIONAL 
FUND, INC.

99 Hudson St, Suite 1600 
New York, NY 10013 
(212)219-1900

DEVARIESTE CURRY 
(Counsel of Record) 
LAW OFFICE OF 
DEVARIESTE CURRY 
1250 24th St, NW 
Suite 300
Washington, D.C. 20037 
(202) 467-8333

Listing of counsel continues inside the cover



CORNELIA T. C. PILLARD 
GEORGETOWN UNIVERSITY 

LAW CENTER 
600 New Jersey Ave., NW 
Washington, D. C. 20001 
(202) 662-9391

ROSE M. SANDERS 
CHESTNUT, SANDERS, 

SANDERS, & 
PETTAWAY, P. C.

P. O. Box 1305 
Selma, AL 36701 
(334) 875-9264

Attorneys for Petitioners

Listing of counsel continued from front cover



1

QUESTIONS PRESENTED

1. Whether teachers violated clearly established Fourth 
Amendment rights of eight-year-old schoolgirls by twice strip 
searching the schoolgirls to look for seven dollars that 
another student reported missing from her purse.

2. Whether, as this Court held in United States v. 
Lanier, 117 S. Ct. 1219 (1977), the scope of a constitutional 
right can be clearly established by judicial decisions 
involving factually distinguishable contexts that put 
government officials on notice that their conduct is 
constitututionally impermissible, rather than only by rulings 
involving “concrete, factually similar” circumstances.

3. Whether a federal district court, in deciding whether 
to grant qualified immunity to persons asserted to have acted 
unconstitutionally, must determine whether the right alleged 
to have been violated was “clearly established” by examining 
only decisions of this Court, the Court of Appeals for the 
federal judicial Circuit of which it is a part, and the highest 
court of the State in which the events occurred — and must 
ignore the weight of authority in other federal Courts of 
Appeals, district courts, and state courts.



11

PARTIES TO THE PROCEEDING

In addition to the parties listed in the caption, the 
following were parties to the proceedings in the courts below: 
Talladega City Board of Education; Susannah Herring, in her 
official capacity as a teacher at Graham Elementary School; 
Melba Sirmon, in her official capacity as a counselor at 
Graham Elementary School; James E. Braswell, in his 
official capacity as a member of the Board of the Talladega 
City School District; Crawford Nelson, in his official 
capacity as principal at Graham Elementary School; Michael 
A. O’Brien, in his official capacity as a member of the Board 
of the Talladega City School District; and Charles Kurley, in 
his official capacity as Superintendent of the Talladega City 
School District.



Ill

TABLE OF CONTENTS

Questions Presented.............     i

Parties to the Proceeding............................................................ii

Table of Authorities.............................................................   iv

Opinions Below.......................................       1

Jurisdiction................................................................................... 1

Constitutional Provision Involved............................................. 1

Statement of the Case..........................................   2

REASONS FOR GRANTING THE W RIT......................   9

THE COURT OF APPEALS’ STANDARD FOR 
ESTABLISHING THAT AN ASSERTED 
CONSTITUTIONAL RIGHT IS “CLEARLY 
ESTABLISHED” UNDER HARLOW  v. 
FITZGERALD CONFLICTS WITH DECISIONS OF 
THIS COURT AND OTHER COURTS OF 
APPEALS.............. ............ .............................................. .......11

THE COURT OF APPEALS’ HOLDING THAT 
STUDENTS LACK A CLEARLY ESTABLISHED 
FOURTH AMENDMENT RIGHT NOT TO BE 
STRIP SEARCHED IN A QUEST TO FIND 
ANOTHER STUDENT’S MISSING SEVEN 
DOLLARS CONFLICTS WITH DECISIONS OF 
THIS COURT AND THE OTHER COURTS OF
APPEALS................................................................................. 20

Conclusion................................................................................30



IV

TABLE OF CITED AUTHORITIES

Cases: Page(s)

Allen v. Sakai.................................... ............ ............. ........... . 17
40 F.3d 1001 (9th Cir. 1994), cert, denied,
514 U.S. 1065 (1995)

Anderson v. Creighton........................................................5, 12
483 U.S. 635 (1987)

Anderson v. Liberty Lobby, Inc.,.................................. ...........2
477 U.S. 242 (1986)

Bakalis v. Golembeski,...................................................   16
35 F.3d 325 (7th Cir. 1994)

Bellnier v. Lund,............................... ................. ........23, 24, 26
438 F. Supp. 47 (N.D.N.Y. 1977)

Biereguv. Reno,....................................... ................ .............17
59 F.3d 1445 (3d Cir. 1995)

Bilbrey v. Brown,............................................................... 23, 27
738 F.2d 1462 (9th Cir. 1984)

Boddie v. City o f  Columbus,...................    18
989 F.2d 745 (5th Cir. 1993)

Bonitzv. Fair,....................................    17
804 F.2d 164 (1st Cir. 1986), overruled in part on other 
grounds,
Unwin v. Campbell, 863 F.2d 124 (1st Cir. 1988)

Burnham v. Iann i,..................................     16
No. 95-1962, 1997 WL 380691 
(8th Cir. 1997) (en banc)

Cales v. Howell Pub. Sch.,............................   26
635 F. Supp. 454 (E.D. Mich. 1985)

Capoeman v. Reed,............................................................16, 17
754 F.2d 1512 (9th Cir. 1985)

Celotex Corp. v. Catrett,.....................................   2
477 U.S. 317(1986)

Cleveland-Perdue v. Brutsche,.... ............................................16
881 F.2d 427 (7th Cir. 1989)



Cornfield v. Consolidated High Sch. Dist. No. 230,..... 26, 28
991 F.2d 1316 (7th Cir. 1993)

Courson v. McMillian,.............................................................15
939 F.2d 1479 (11th Cir. 1991)

Dickerson v. McClellan,........................................................... 17
101 F.3d 1151 (6th Cir. 1997)

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

Figueroa v. United States,........................................................ 17
7 F.3d 1405 (9th Cir. 1993)

Lamilton v. Cannon,.........................     15
80 F.3d 1525 (11th Cir. 1996)

Harlow Fitzgerald,....... .........................................11, 15, 16
457 U.S. 800(1982)

Hayes v. Long,.....................................................................   16
72 F.3d 70 (8th Cir. 1995)

Hughes v. City o f  North Olmstead,.......................................... 17
93 F.3d 238 (6th Cir. 1996)

Ingraham v. Wright,..................................................................14
430 U.S. 651 (1977)

Jenkins v. Talladega City Bd. ofEduc.,...................  4
95 F.3d 1036 (11th Cir.1996), rev’den  banc,
115 F.3d 821 (11th Cir. 1997)

Jermosen v. Smith,..........................................................   18
945 F.2d 547 (2d Cir. 1991), cert, denied,
503 U.S. 962 (1992)

Johnson v. Jones,........................   2
515 U.S. 304(1955)

Lassiter v. Alabama A & M  Univ.,..................................passim
28 F.3d 1146 (11th Cir. 1994) (en banc)

Los Angeles v. Lyons,.......................................................   19
461 U.S. 95 (1983)

M.J. v. State,.............................................................................. 24
399 So.2d 996 (Fla App. 1981)



VI

Mitchell v. Forsyth,....................................... ..........................15
472 U.S. 511 (1985)

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

Norfleet v. Arkansas Dep ’t o f  Human Servs.,............... ........16
989 F.2d 289 (8th Cir. 1993)

Oliver v. McClung,..................... .......... .............. ...................26
919 F. Supp. 1206 (N.D. Ind. 1995)

People v. D .,........................................................... 23, 24, 25
34 N.Y.2d 483, 358 N.Y.S.2d 403,
315 N.E.2d 466(1974)

Procunier v. Navarette,.... ...................................................... j 5
434 U.S. 555 (1978)

Rochin v. California,................................. ............................. 14
342 U.S. 165 (1952)

Rone by Payne v. Daviess County Bd. o f Educ.,................. 26
655 S.W.2d 28 (Ky. 1983)

Screws v. United States,..........................................................13
325 U.S. 91 (1945)

State ex rel. Galford v. Mark Anthony B .,...................... 26, 29
433 S.E.2d 41 (W. Va. 1993)

State v. Young,............................. ....................... .............. ......26
216 S.E.2d 586 (Ga. 1975)

Tartar v. Raybuck,.............................................................23, 26
742 F.2d 977 (6th Cir. 1984), cert, denied,
470 U.S. 1051 (1985)

Terry v. Ohio,....................... ......... .......... ........... ...................21
392 U.S. 1 (1968)

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

Ward v. County o f  San Diego,.............................. .......... .......17
791 F.2d 1329 (9th Cir. 1986)

Widener v. Frye,................................................ ..................... 26
809 F. Supp. 35 (S.D. Ohio 1992), a jf’d,
12 F.3d 215 (6th Cir. 1993)



Williams v. Ellington,................. ......................................26, 29
936 F.2d 881 (6th Cir. 1991)

Williams v. Greifinger,............................................................. 18
97 F.3d 699 (2d Cir. 1996)

Wood v. Ostrander,....................................................................17
879 F.2d 583 (9th Cir. 1988)

Woodward v. City ofW orland,......................   17
977 F.2d 1392 (10th Cir. 1992)

YingJing Gan v. City o f  New York,....................................... 18
996 F.2d 522 (2d Cir. 1993)

Constitutional Provisions

U. S. Const. Amend. IV......................... ................ ..................1

Miscellaneous Authorities

Wayne R. LaFave, Search and Seizure: A Treatise on
the Fourth Amendment § 10.11 (3ded. 1995)................. 25
Lawrence F. Rossow, Search and Seizure in the Public
Schools 37 (2d. ed. 1995)..........................   25
59 The Clearing House 252 (1986).................................... 25
62 The Clearing House 165 (1988).................................... 25
14 J. L. & Educ. 421 (1985)................. ................................ 25
74 Phi Delta Kappan 498 (1993)........................................ 25

vii



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

FOR THE ELEVENTH CIRCUIT

Cassandra Jenkins and Oneika McKenzie, by their 
mothers, pray that a writ of certiorari be issued to review the 
judgment of the United States Court of Appeals for the 
Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals sitting en banc 
(App. la-38a) is reported at 115 F.3d 821. The panel opinion 
(App. 39a-83a) was reported at 95 F.3d 1036.

JURISDICTION

The judgment of a panel of the court of appeals was 
entered on September 23, 1996. The court of appeals voted 
sua sponte to rehear the case en banc and vacated the panel 
opinion. Judgment of the en banc court was entered on June 
2, 1997. The jurisdiction of this Court is invoked pursuant to 
28 U.S.C. 1254(1). Jurisdiction was vested in the district 
court under 28 U.S.C. §§ 1331, 1343, and the court’s pendent 
and ancillary jurisdiction.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States 
Constitution provides: “The right of the people to be secure 
in their persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be violated, and 
no warrants shall issue, but upon probable cause, supported 
by Oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized.”



2

STATEMENT OF THE CASE

1. This case concerns the strip searches of two 
eight-year-old students, petitioners Cassandra Jenkins and 
Oneika McKenzie, by a teacher and a school counselor in a 
public school in Talladega, Alabama. App. 3 a.1 On the 
afternoon of May 1, 1992, one o f petitioners’ classmates in 
the second grade at Graham Elementary School (“Graham”) 
reported to her teacher that seven dollars was missing from 
her purse. Another classmate told the teacher that Cassandra 
had taken the money and put it in Oneika’s backpack. Other 
students said that Cassandra and Oneika and another 
classmate, Anthony Jemison, had taken the seven dollars. The 
teacher looked in the backpack but found no money. She 
then questioned Cassandra, Oneika and Anthony in the 
hallway outside the classroom. App. 3a

At that point, the school music teacher, respondent 
Susannah Herring, approached the group in the hallway and 
took charge o f the situation. She did not find out why the 
classroom teacher had singled out these three students, nor 
where else they had looked for the money; all she knew was 
one student’s accusation that Cassandra had put the money in 
Oneika’s backpack, that the money had not been found there, 
and that Cassandra, Oneika and Anthony were pointing the 
finger at one another. App. 62a. Herring immediately 
ordered the children to remove their shoes and socks. The 
children did as ordered, but no money was found. App. 40a. 
Respondent Melba Sirmon, a guidance counselor whose 
office was nearby, heard the questioning and heard Herring *

'Because petitioners’ claims were dismissed on summary 
judgment, the facts must be viewed in the light most favorable to 
petitioners, the non-moving party in the district court. See Anderson v. 
Liberty Lobby, Inc., A l l  U.S. 242, 255 (1986); Celotex Corp. v. Catrett, 
A ll  U.S. 317, 322 (1986); see also Johnson v. Jones, 515 U.S. 304, 314, 
319 (1995).



3

talking about the possibility of requiring the children to 
remove their clothing to find the money. Pet’r C.A. App. 
430, 436-37. She also heard Herring trying “to scare [the 
young girls] into confessing.” Id. at 439. She joined Herring 
in the hallway, and the two respondents took Cassandra and 
Oneika to the girls’ restroom. Inside the restroom, Herring 
told them to remove their clothes. According to Cassandra, 
Herring ordered them to go into the toilet stalls and to come 
back out with their underpants down to their ankles, which 
they did. The missing money was not found on the girls’ 
person or in their clothing. App. 42a. Anthony was not 
subjected to a body search. Respondents took Cassandra, 
Oneika and Anthony to the principal’s office. The principal 
asked the students where the money was. Anthony said that 
it was hidden behind a file cabinet, but when the teachers 
looked they did not find it there. Anthony also suggested the 
money was stashed in a locker, but the principal concluded 
that Anthony did not know where the money was and 
dismissed him. Id. at 41a.

Respondents then took petitioners back to the 
restroom and strip searched them a second time. Herring 
ordered them to remove their dresses, which they did. 
Cassandra was still wearing a slip, which Herring shook. 
Oneika was wearing only her underpants. A parent of 
another student was walking by in the hallway and heard the 
girls crying and an adult saying either “remove your slip” or 
“hold up your slip.” App. 42a. She stepped into the restroom 
and saw the two girls, one in her panties and the other in her 
slip. When no money was found, respondents permitted the 
girls to get dressed. Id.

Following an investigation into the strip searches, the 
Talladega City Board of Education (“Board”) concluded that 
the procedure Graham school officials used to investigate the 
alleged theft “was overwhelming and threatening to the 
students due to the age of the students.” Pet’r C.A. App. 533.



4

The Board also concluded that Herring had committed a 
“gross error in judgment” regarding the manner in which she 
had investigated the theft, and that Sirmon had erred in her 
judgment in assisting Herring. The superintendent 
recommended that Herring be fired, but the Board declined to 
impose any serious sanctions. App. 43a.2 There was 
uncontroverted evidence by a psychologist who examined the 
girls that as a result of the strip search, both girls suffered 
post-traumatic stress syndrome and other psychological 
problems. Pet’r C.A. App. 291-96.

2. Petitioners sued for damages under 42 § 
U.S.C. 1983, alleging violation of their clearly established 
Fourth Amendment rights.3 The district court held that the 
facts, taken in the light most favorable to petitioners at the 
summary judgment stage, demonstrated a Fourth Amendment 
violation, that respondents never contended otherwise, and, 
indeed, that it would be “virtually impossible” for them to 
argue otherwise. Jenkins v. Talladega City Bd. ofEduc., No. 
95-6243 (N.D. Ala., Jan. 19, 1995), Record Excerpts filed 
with Pet’r C.A. Brief, R5-87 at 22 & n.20. The district court

2Among the disputed facts is whether a strip search occurred. 
Although the Board found that the search was overwhelming and 
threatening, it purported to find that no strip search occurred. That 
finding, however, is not binding on federal courts. For the purposes of 
summary judgment, the facts must be construed in the light most 
favorable to the petitioners. Thus, the Court must credit the testimony of 
the girls that they were strip searched and the testimony of a visiting 
parent that she saw the girls undressed in the restroom. No one denies 
that the girls were taken to the restroom.

Petitioners also sought declaratory and injunctive relief under 
Section 1983; raised tort claims under Alabama law; and raised claims of 
race and sex discrimination under Title VI, 42 U.S.C. §§ 2000 etseq., and 
Title IX, 20 U.S.C. §§ 1681, et seq. The Court of Appeals upheld the 
district court’s rulings dismissing those claims, App. 43a-44a, and 
petitioners do not seek review of those claims in this Court.



5

initially denied respondents’ motion for summary judgment 
based on qualified immunity. Citing New Jersey v. T.L.O., 
469 U. S. 325 (1985), and Doe v. Renfrow. 631 F.2d 91 
(7th Cir. 1980), the district court held that the law was 
“clearly established.” R2-27 at 5. On September 15, 1994, 
the district court sua sponte reconsidered and reversed its 
decision denying respondents qualified immunity, concluding 
that it had relied too heavily on a footnote in T.L.O., and on 
the Seventh Circuit’s decision in Doe v. Renfrow. R2-39 at 
2.

3. A panel of the court of appeals reversed, 
holding that “Fourth Amendment law was sufficiently clear 
in 1992 that there could be no doubt that Herring’s and 
Sirmon’s actions . . . were unconstitutional,” and that in 
searching the students, “Herring and Sirmon acted in blatant 
disregard of the Fourth Amendment.” App. 45a, 70a. The 
court noted that, under Anderson v. Creighton, 483 U.S. 635, 
640 (1987), “in light of pre-existing law, the unlawfulness 
must be apparent,” but that “the very action in question [need 
not have] previously been held unlawful.” App. 47a. The 
court concluded that qualified immunity may be defeated (1) 
in cases in which “the official misconduct is more egregious 
than conduct of the same general type that has been deemed 
illegal in other cases,” and (2) in “cases in which application 
of the legal standard would necessarily lead reasonable 
officials in the defendant’s situation to but one inevitable 
conclusion.” Id. at 49a-50a.

The court held that the search did not bear a 
reasonable relationship to its objectives, as required by T.L.O. 
App. 61a-62a. Based on the facts viewed in the light most 
favorable to petitioners, the Court noted that “the possibility 
of finding the cash in the two restroom searches was slight (at 
best).” Id. at 61a. When respondents took over the situation, 
they did not know, nor did they seek to find out, specifics 
about the accusations and where else the money had been



6

sought. Thus, even before taking into account the nature of 
the infraction and the students’ age, the panel found it 
“difficult to believe that any reasonable school official could 
surmise that it was constitutionally permissible to conduct 
these two highly intrusive searches where there was such a 
negligible possibility that any evidence of the infraction 
would be found.” Id. at 63a.

The court then examined the nature of the infraction, 
observing that it is “obvious that an infraction that presents 
an imminent threat of serious harm — for example, possession 
of weapons or other dangerous contraband — would be the 
most serious infraction in the school context . . . .  Thefts of 
small sums of money or less valuable items and possession of 
minor, nondangerous contraband would fall toward the 
opposite extreme of the spectrum. Such infractions would 
seldom, and probably never, justify the most intrusive 
searches.” App. 65a, 67a-68a. The court reasoned that, 
“[e]ven if the T.L.O. reasonableness standard is indeterminate 
for a broad category of school searches, it indisputably 
prohibits strip searches of students in this situation.” Id. at 
68a.

Judge Birch dissented. Although he was “outraged by 
the conduct of the schoolteachers in this case and [was] 
convinced they left their better judgment at home on May 1, 
1992,” he would have held that “there was no binding, clearly 
established law that these schoolteachers violated in 
conducting the challenged strip searches.” App. 73a.

4. The court of appeals decided sua sponte to 
rehear the case en banc, and reversed the panel decision. 
App. la-38a. The en banc court held 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 [respondents’]



7

conduct was constitutionally impermissible.” Id. at 21a. The 
en banc court of appeals held that, for the law to be “clearly 
established, 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.” Id. at 13a (quoting Lassiter v. Alabama A & 
M  Univ., 28 F.3d 1146, 1149, 1150 (11th Cir. 1994) (en 
banc)). 4

The en banc court of appeals did not view this Court’s 
decision in T.L.O. as clearly establishing any relevant Fourth 
Amendment rights, because “[sjpecific application of the 
factors established” in T.L.O. was “notably absent from the 
Court’s discussion and conclusion” in that case. App. 9a. 
There was, moreover, “no illustration, indication or hint [in 
T.L.O.] as to how the enumerated factors might come into 
play when other concrete circumstances are faced by school 
personnel.” Id. at 9a-10a. Thus, school officials “were left 
to interpret, balance, and evaluate” the “broadly-worded 
phrases” of T.L.O. Id. at 14a, 16a.5

Regarding precedent from other courts, the en banc 
court held that “the law can be ‘clearly established’ for

4The en banc court of appeals noted that this Court’s recent 
opinion in United States v. Lanier, 117 S. Ct. 1219 (1997), unanimously 
holding that civil rights liability requires only “fair warning” of 
constitutional rights, and that neither Supreme Court precedent nor 
factually similar precedent is required to provide such warning, did not 
alter its understanding of the legal framework with respect to qualified 
immunity. App. 11 a-13a.

sThe court noted that United States v. Lanier, 117 S. Ct. at 
1222, held that a right can be clearly established even in the absence of 
precedents applying the right to a similar factual situation, but 
distinguished Lanier on the ground that “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.’” App.10a, 14a n.3.



8

qualified immunity purposes only by decisions of the U.S. 
Supreme Court, the Eleventh Circuit Court of Appeals, or the 
highest court of the state where the case arose.” App. 14a 
n.4. Because “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,” the 
en banc court granted respondents qualified immunity. Id. at 
14a. The court did not view Lanier's approval of 
consultation of the law of “other courts,” 117 S. Ct. at 1227, 
as inconsistent with its own holding that only authority 
binding in the Eleventh Circuit is relevant, because the 
question in Lanier was whether Supreme Court precedent is 
the exclusive source of relevant guidance. Id. at 15a, n.4.

Judge Kravitch, joined by Chief Judge Hatchett and 
Judge Barkett, dissented. App. 21a. They believed that 
“T.L.O. sufficiently forewarns teachers that strip searching 
eight-year-olds in pursuit of a few dollars violates the Fourth 
Amendment.” Id. at 22a. The dissenters would have held 
that "the nature of the [suspected] infraction here — a small 
theft — is insufficient as a matter of law to permit a strip 
search. . . . Strip searching a student is permissible only in 
extraordinary cases, and only to prevent imminent harm." Id. 
at 37a. They took issue with the majority’s qualified 
immunity analysis, stating that “it is not enough simply to 
label preexisting 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 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.” Id. at 24a.



9

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari because the en banc 
court of appeals’ decision raises questions of exceptional 
importance regarding the correct analysis of qualified 
immunity and the scope of the Fourth Amendment’s 
protections for students attending public schools. The 
decision below conflicts with the decisions of this Court in 
United States v. Lanier, 117 S. Ct. 1219 (1997) and New 
Jersey v. T.L.O., 469 U.S. 325 (1985), and with decisions of 
the courts of appeals for the First, Third, Sixth, Seventh, 
Eight, Ninth, and Tenth Circuits.

The en banc court of appeals granted respondents 
qualified immunity on the ground that students lack any 
clearly established Fourth Amendment rights not to be strip 
searched based on a classmate’s report of missing a small 
amount of pocket money. The court of appeals found 
existing Fourth Amendment precedent on student searches 
insufficiently clear and authoritative to defeat respondents’ 
qualified immunity. It held that T.L.O.'s application of the 
Fourth Amendment to the school context provided no 
material guidance, because, in the en banc court of appeals’ 
view, a right cannot be clearly established unless a prior 
decision has recognized the right in “a concrete, factually 
similar context.” App. 21a. That holding conflicts with this 
Court’s recognition in Lanier that a right can be clear even 
when it has been established in general terms and in a 
factually distinguishable context. 117 S. Ct. at 1227. The en 
banc court also declined to consider cases from other 
jurisdictions applying T.L.O. in settings more closely 
analogous to this case, on the ground that cases not binding in 
the Circuit cannot shed light on the specific contours of a 
right this Court has established in general terms. That 
holding conflicts with the law of at least seven other Circuits 
that have held that non-binding precedent is relevant to the 
decision whether the law is clearly established.



10

Moreover, every court that has considered whether 
school personnel may constitutionally strip search students 
suspected of stealing money or other property has held that 
they cannot; the only circumstances under which any court 
ever has upheld a strip search of students by school personnel 
is when the search was conducted to prevent imminent 
danger, such as that posed by possession of weapons or 
illegal drugs in schools.

The en banc court of appeals’ decision sends a 
misleading message to school officials nationwide: that this 
Court’s decision in New Jersey v. T.L.O. should be read to 
place no enforceable limits on the use by school personnel of 
highly intrusive search techniques in response to even the 
most minor suspected infractions. Correcting that 
misinterpretation of T.L.O. is essential in light of the fact that 
the use o f strip searches in schools has persisted.6 This 
Court’s further guidance is urgently needed on the 
appropriate analysis of qualified immunity, and on the extent 
to which the Constitution sets constraints on strip searches.

6See, e.g., (by state) Strip Search Sets Off Review, THE DENVER 
POST, Mar. 10, 1996 at C2 (settlement of lawsuit after strip search of 
student in Colorado for missing $6); T h e  Pa t r io t  L ed g er  (Quincy, 
MA), Apr. 23, 1997, at 16 (second and third graders in Massachusetts 
strip searched by teacher looking for missing $10); Curt Brown, Former 
Student wins $16,000 in Suit, STAR TRIBUNE (Minneapolis, MN), Sept. 6, 
1996, at 3B (strip searching students in Minnesota without resorting to 
other alternatives, such as pat-down, prompted settlement); N ew  Y o r k  
TIMES, May 21, 1996, at B1 (teacher in New Jersey strip searched third 
graders looking for missing $10); $75,000 Settlement in Searches, T he 
W a sh in g to n  Po s t , Mar. 27, 1997 (girls in Virginia school strip searched 
by teacher after missing $92 not located in their lockers); Tyrone Beason, 
Seattle Schools Warned: No Strip Searches o f Kids — State Law, 2 
Successful Suits Make Officials Wary, THE SEATTLE TIMES, Oct. 5, 1995, 
at B4 (teacher in state of Washington strip searched 13 year old boy 
looking for $5).



1 1

I. THE COURT OF APPEALS’ STANDARD FOR 
ESTABLISHING THAT AN ASSERTED CONSTI­
TUTIONAL RIGHT IS “CLEARLY ESTABLISHED” 
UNDER HARLOW  v. FITZGERALD CONFLICTS 
WITH DECISIONS OF THIS COURT AND OTHER 
COURTS OF APPEALS

Qualified immunity shields public officials from 
personal damages liability under 42 U.S.C. § 1983 where the 
officials have violated no “clearly established rights of which 
a reasonable person would have known.” Harlow v. 
Fitzgerald, 457 U.S. 800, 818 (1982). Under the standard 
this Court announced in T.L.O., students have a “clearly 
established” right not to be strip searched based on the 
tenuous degree of suspicion and for the kind of minor 
infraction involved in this case. See infra Point II. The en 
banc court of appeals held, however, that petitioners lacked 
any such clearly established Fourth Amendment right and, 
therefore, granted respondents qualified immunity.

The en banc court of appeals’ holding that the 
unconstitutionality of respondents’ conduct was not 
sufficiently “clearly established,” and that they therefore are 
protected by qualified immunity, seriously misconstrues this 
Court’s qualified immunity decisions and conflicts with 
decisions of at least seven other Circuits. The en banc court 
set out two conditions that must be present for the law to be 
“clearly established” within the meaning of Harlow, first, 
decided cases must establish the right in concrete, factually 
defined circumstances that are materially similar to the case 
at hand, and, second, those cases must be binding precedents 
-  i.e. decisions of the Supreme Court, the federal court of 
appeals, or the highest court of the state where the conduct 
occurred. App. 5a 14a n.4. Neither of those holdings can be 
squared with the decisions of this Court and of other courts of 
appeals.



12

A. The Court of Appeals’ Holding Requiring 
Factually Specific, Analogous Precedents Conflicts With 
This Court’s Decision In United States v. Lanier

The en banc court of appeals relied on an overly 
expansive interpretation of qualified immunity to find that 
petitioners’ rights under the Fourth Amendment were not 
sufficiently well established to protect them from an intrusive 
strip search by teachers looking for seven dollars. The en 
banc court held that “[fjor the law to be clearly established 
to the point that qualified immunity does not apply, the law 
must have been earlier developed in such a concrete and 
factually defined context to make it obvious” that defendant’s 
precise conduct was unlawful. App. 5a (quoting Lassiter, 28 
F.3d at 1149). In the court’s view, “[f]or 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 government agent that what 
defendant is doing violates federal law in the circumstances.” 
Id. 5a (quoting Lassiter, 28 F.3d at 1150).

The en banc court of appeals’ qualified immunity 
standard requires a level of factual specificity in the 
articulation of a constitutional right that this Court has 
rejected. In Anderson v. Creighton, 483 U.S. 635 (1987), this 
Court addressed the question of how particularly defined a 
right must be in order to be “clearly established” under 
Harlow. There, the Court said “[t]he contours of the right 
must be sufficiently clear that a reasonable official would 
understand that what he is doing violates that right. 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 light of pre-existing 
law the unlawfulness must be apparent.” Id. at 640 (citations 
omitted). In United States v. Lanier, 117 S. Ct. 1219 (1997), 
decided just last Term, the Court expressly held that a right 
that has been defined in general terms, and applied only in



13

factually distinguishable circumstances, can clearly establish 
the law .7

This Court in Lanier reversed the Sixth Circuit, which 
had applied a standard essentially identical to that embraced 
by the en banc court of appeals in this case. Under Lanier, a 
right may be clear 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 there may 
be “notable factual distinctions between the precedents relied 
on and the cases then before the court, so long as the prior 
decisions gave reasonable warning that the conduct then at 
issue violated constitutional rights.” Id. at 1227. As this 
Court explained, general statements of the law are not 
“incapable of giving fair and clear warning,” and “a general 
constitutional rule already defined in the decisional law may 
apply with obvious clarity to the specific conduct in 
question.” Id. The en banc court of appeals’ requirement in 
this case that petitioners point to precedent construing their 
Fourth Amendment rights in a “concrete and factually 
defined context” that “dictate[s]” and “truly compel[s],” App. 
5a, a finding of unconstitutionality in the circumstances of 
the case squarely conflicts with Lanier.

Attempting to defend its qualified immunity standard 
as not “contrary to the spirit” of Lanier, App. 13a, the 
Eleventh Circuit observed that, “although general principles 
of law can provide fair warning, they do not necessarily 1

1 Lanier arose in the context of a criminal prosecution under 18 
U.S.C. § 242, which establishes criminal liability for willful violations of 
constitutional rights. In order to fulfill the due process requirement of fair 
warning of potential criminal liability, Screws v. United States, 325 U.S. 
91 (1945) (plurality opinion), had required that the right at issue have 
been “made specific” by “decisions interpreting” the constitutional right. 
In further defining the level of specificity required, Lanier expressly 
equated the Section 242 standard with the “clearly established law” 
standard under Harlow. Lanier, 117 S. Ct. at 1227-1228.



14

provide such warning unless the constitutional rule at issue 
may be applied ‘with obvious clarity.’” The Court further 
observed that in its view, T.L.O. does not apply to the facts of 
this case “with obvious clarity.” Id. (emphasis added). 
Those observations do not diminish the need for review here 
for two reasons. First, as noted above, the Eleventh Circuit’s 
own stated standard — requiring close factual similarity of 
precedents in every case — is contrary not only to the “spirit” 
but to the letter of Lanier. Second, the en banc court was 
simply wrong that T.L.O. fails to provide sufficient guidance 
here. See infra Point II.A. The clarity of the application of 
T.L.O., involving a search of a student in a public school 
setting, to the facts of this case is far sharper than the 
application of the relevant precedents in Lanier. At issue in 
Lanier was whether the substantive due process right to 
“bodily integrity,” identified in Ingraham v. Wright, 430 U.S. 
651 (1977) (involving corporal punishment in schools), and 
in Rochin v. California, 342 U.S. 165 (1952) (involving 
pumping the stomach of a convicted prisoner), sufficiently 
clearly established the rights of state court employees and 
litigants to be free from sexual assault at the hands of a state 
court judge. Certiorari should be granted to resolve the 
conflict on this issue between the en banc court of appeals’ 
decision and Lanier.

B. The Court of Appeals’ Holding That Only This 
Court’s, Its Own, And The Highest State Court’s 
Decisions Are Relevant In Deciding Whether The Law Is 
Clearly Established Conflicts With Decisions of Seven 
Other Circuits

The en banc court of appeals held that T.L.O. was the 
only precedent relevant to its assessment of whether the law 
was clearly established, because in the Eleventh 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



15

state where the case arose.” App. 14a n.3 (citing Hamilton v. 
Cannon, 80 F.3d 1525, 1532 n.7 (11th Cir. 1996); Courson v. 
McMillian, 939 F.2d 1479, 1497-1498 & n.32 (11th Cir. 
1991)). The court thus completely ignored decisions from 
other jurisdictions that have addressed school strip searches 
and uniformly have held that the Fourth Amendment 
prohibits strip searching students in the kind of circumstances 
presented in this case. See infra Point II.B.8

The en banc court’s holding is in tension with this 
Court’s own approach to assessing the clarity of the law. 
Lanier held that “decisions of the Courts of Appeals and 
other courts” are relevant to determining whether the law is 
clearly established. 117 S. Ct. at 1226-27. Notably, Lanier 
refers to the courts of appeals and other courts in the plural, 
thus indicating that the decisions of more than one Circuit or 
other court can be relevant in a particular case to the question 
of whether the law was clear enough to overcome qualified 
immunity. This Court also has suggested that even district 
court cases from other jurisdictions should be consulted. 
When the challenged wiretap decision in Mitchell v. Forsyth, 
472 U.S. 511, 533-534 (1985), was issued, the closest cases 
were from district courts; this Court analyzed the state of the 
law by reference to those decisions. See also Harlow, 457 
U.S. at 818 n.32 (“we need not define here the circumstances 
under which ‘the state of the law’ should be ‘evaluated by 
reference to the opinions of this Court, of the Courts of 
Appeals, or of the local District Court.’”) (quoting Procunier 
v. Navarette, 434 U.S. 555, 565 (1978)).

8The en banc court overstates petitioners’ position with respect 
to whether T.L.O. was the only case that could have clearly established the 
law. App. 6an .l. Before the en banc court directed petitioners to brief 
very specific and narrow questions, petitioners argued that, “In addition to 
T.L.O. . . . and Doe . . . , there was relevant Ninth Circuit Law.” Pet’r 
C.A. Brief at 20 n.6.



16

There is a square conflict in the Circuits over what 
constitutes the universe of cases relevant to the determination 
whether the law is “clearly established” within the meaning 
of Harlow. In the First, Third, Sixth, Seventh, Eighth, Ninth, 
and Tenth Circuits, non-binding precedent is relevant. The 
Second and Fifth Circuits, however, appear to agree with the 
Eleventh Circuit that only binding precedent should be 
consulted. In the Seventh Circuit, “the rulings in other 
Circuits are instructive on what the law is as to 
constitutionally protected rights.” Bakalis v. Golembeski, 35 
F.3d 318, 325, n.7 (7th Cir. 1994). As the Seventh Circuit 
explained in Cleveland-Perdue v. Brutsche, 881 F.2d 427 
(7th Cir. 1989), looking to “all relevant case law . . . makes 
eminent sense for it precludes an official from escaping 
liability for unlawful conduct due to the fortuity that a court 
in that particular jurisdiction had not yet had the opportunity 
to address the issue.” Id. at 431.

The Eighth Circuit, in a recent en banc decision, 
endorsed consideration of all available decisional law, not 
just binding cases. “In order to determine whether a right is 
clearly established, it is not necessary that the Supreme Court 
has directly addressed the issue, nor does the precise action or 
omission in question need to have been held unlawful. In the 
absence of binding precedent, a court should look to all 
available decisional law including decisions of state courts, 
other Circuits and district courts.” Burnham v. Ianni, No. 95- 
1962, 1997 WL 380691, at *1 (8th Cir. 1997) (en banc) 
(quoting Hayes v. Long, 72 F.3d 70, 73-74 (8th Cir. 1995); 
Norfleet v. Arkansas D ep’t o f Human Servs., 989 F.2d 289, 
291 (8th Cir. 1993)).

The decision below also squarely conflicts with the 
Ninth Circuit’s standard. The Ninth Circuit has held that, “in 
the absence of binding precedent, a court should look to 
whatever decisional law is available to ascertain whether the 
law is clearly established under the Harlow test.” Capoeman



17

v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985) . “The 
available decisional law includes cases from the state courts, 
other Circuits, and district courts.” Wood v. Ostrander, 879 
F.2d 583, 591 (9th Cir. 1988) (citing Ward v. County o f  San 
Diego, 791 F,2d 1329, 1332 (9th Cir. 1986), cert, denied, 483 
U.S. 1020 (1987)); accord Figueroa v. United States, 7 F.3d 
1405, 1408 (9th Cir. 1993). “Where there are few cases on 
point, and none is binding, ‘an additional factor that may be 
considered in ascertaining whether the law is “clearly 
established” is a determination of the likelihood that the 
Supreme Court or this Circuit, would have reached the same 
result’ as the non-binding authorities at that time.” Wood, 
879 F.2d at 593 (quotation omitted). See also Allen v. Sakai, 
40 F.3d 1001, 1005 n.7 (9th Cir. 1994).

In the First, Third, Sixth and Tenth Circuits, non­
binding precedent similarly is relevant. The Sixth Circuit 
“look[s] first to the decisions of the Supreme Court, then to 
the decisions of this and other courts within this Circuit, and 
finally to the decisions of other Circuits.” Hughes v. City o f  
North Olmstead, 93 F.3d 238, 241 (6th Cir. 1996). See also 
Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 
1996). The Tenth Circuit also holds that “[ojrdinarily, in 
order for the law to be clearly established, there must be a 
Supreme Court or a Tenth Circuit decision on point, or the 
clearly established weight of authority from other courts must 
have found as plaintiff maintains.” Woodward v. City o f  
Worland, 977 F.2d 1392, 1397 (10th Cir. 1992). In “the 
absence of a previous decision from [its own] court,” the 
Third Circuit similarly has held that decisions of other 
Circuits sufficed to “clearly establish” a constitutional right. 
Bieregu v. Reno, 59 F.3d 1445, 1459 (3d Cir. 1995). Finally, 
in Bonitz v. Fair, 804 F.2d 164 (1st Cir. 1986), overruled in 
part on other grounds, Unwin v. Campbell, 863 F.2d 124, 
132 (1st Cir. 1988), the First Circuit held that the court 
should consider the decisions of the “Supreme Court, the



18

courts of appeals, and the local district court” to determine if 
the law is clearly established. Id. at 173.

Other Circuits, however, appear substantially to agree 
with the Eleventh Circuit, holding that only their own Circuit 
precedent and this Court’s cases bear on the assessment of 
the clarity o f the law for Harlow purposes. The Second 
Circuit, for example, has held that the “germane law in 
determining whether a right is clearly established for 
purposes of qualified immunity is ‘the decisional law of the 
Supreme Court and the applicable Circuit court.’” Williams 
v. Greifinger, 97 F.3d 699, 706 (1996) (quoting Ying Jing 
Gan v. City o f  New York, 996 F.2d 522, 532 (2d Cir. 1993); 
Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert, 
denied, 503 U.S. 962 (1992)). The Fifth Circuit likewise 
examines only “the decisions o f the Supreme Court and [the 
Fifth Circuit’s] own decisions” to determine if the law has 
been clearly established in that Circuit. Boddie v. City o f  
Columbus, 989 F.2d 745, 748 (5th Cir. 1993).

In sum, there is a sharp and genuine Circuit conflict 
on this issue. In our view, the unconstitutionality of 
respondents’ conduct was clearly established by this Court’s 
binding decision in T.L.O., and probably was clear even 
before that decision. But even if that were not the case, the 
decided school search cases from other jurisdictions as of 
May 1992, taken together, certainly made petitioners’ rights 
clear. There was already a consistent body o f law 
condemning strip searches upon suspicion of a minor, non- 
dangerous offense. See infra Point II.A. Thus, under the 
standard of virtually any other Circuit but the Eleventh, 
Second, and Fifth, respondents in this case would not have 
been entitled to qualified immunity. In view of the broad 
Circuit conflict on this issue, issuance of a writ of certiorari is 
warranted.



19

C. Clarification Of The Appropriate Qualified 
Immunity Standards Is Of Substantial Importance to The 
Enforceability of Constitutional Rights

The en banc court of appeals’ qualified immunity 
standards vitiate any enforceable Fourth Amendment limits 
on highly intrusive school searches seeking evidence of 
minor infractions or rules, as well as enforceable limits of 
other constitutional rights. Under that court’s expansive 
interpretation of qualified immunity, officials in the Eleventh 
Circuit will continue in future cases to enjoy immunity from 
liability for highly intrusive searches such as the one in this 
case, or other egregious violations of constitutional rights. If 
the law governing petitioners’ claims is not already clearly 
established by T.L.O., then it is difficult to see how it will 
become clearer and better established. As this case 
illustrates, if  the en banc Court of Appeals’ decision stands, 
victims of unconstitutional searches will generally lack 
standing under Los Angeles v. Lyons, 461 U.S. 95 (1983), to 
obtain injunctive or declaratory relief. Courts of appeals thus 
need not, and virtually always will not, reach the underlying 
question of whether public officials’ conduct was 
unconstitutional. Thus, the next time students are subjected 
to similar invasions of their personal privacy, there will again 
be no law sufficiently clearly established to permit them to 
obtain judicial enforcement of their Fourth Amendment 
rights. That result is perverse, because it places students like 
petitioners, accused of relatively minor misdeeds, in a worse 
position vis-a-vis enforcement of their Fourth Amendment 
rights than students engaged in serious criminal wrongdoing. 
That is because qualified immunity doctrine has no bearing 
on motions for suppression of evidence in criminal cases, so 
that the Fourth Amendment principles regarding school 
searches for illegal drugs, weapons or other evidence of 
potentially serious crime presumably will be further refined 
when evidence of crime is found, students are prosecuted,



20

and, as was the case in T.L.O. itself, they seek to suppress 
evidence as unconstitutionally obtained. Under the court of 
appeals’ standard, if T.L.O. is too factually dissimilar to this 
case to have clearly established the law, then future 
elaborations of the standard in the context of criminal 
prosecutions likely would be as well.

II. THE COURT OF APPEALS’ HOLDING THAT 
STUDENTS LACK A CLEARLY ESTABLISHED 
FOURTH AMENDMENT RIGHT NOT TO BE STRIP 
SEARCHED IN A QUEST TO FIND ANOTHER 
STUDENT’S MISSING SEVEN DOLLARS 
CONFLICTS WITH DECISIONS OF THIS COURT 
AND THE OTHER COURTS OF APPEALS

The en banc court of appeals held that precipitous and 
repeated strip searches of eight-year old schoolgirls in an 
effort to find seven dollars that a classmate reported missing 
did not violate any clearly established Fourth Amendment 
right. App. 20a-21a. In reaching its holding, the court 
observed, “In the absence of detailed guidance, no 
reasonable school official could glean from the broadly- 
worded phrases [in T.L.O.] . . . 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.” App. 14a. 
That holding cannot be squared with this Court’s decision in 
New Jersey v. T.L.O., 469 U.S. 325 (1985). Moreover, it is 
contrary to every other reported decision involving strip 
searches in schools, and specifically conflicts with decisions 
of the Seventh and Sixth Circuits, and of the Supreme Court 
of West Virginia.

A. The Decision Below Conflicts With New 
Jersey v. T.L.O.

T.L.O. makes it obvious that strip searching 
petitioners under the circumstances presented by this case



21

was unconstitutional. T.L.O. held that the Fourth 
Amendment applies to searches of students by school 
personnel, but that “the school setting requires some easing 
of the restrictions to which searches by public authorities are 
ordinarily subject.” 469 U.S. at 333, 340. Accordingly, this 
Court held that school officials are not required to obtain a 
warrant before searching students under their authority, but 
that a school search must be reasonable under the 
circumstances. Id. at 340-41. Specifically, the Court
required a two-part inquiry: First, a school search must be 
“justified at its inception,” and, second, it must be 
“reasonably related in scope to the circumstances which 
justified the interference in the first place.” Id. at 341 
(quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). The Court 
explained:

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 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 341-342.

Applying that standard to its review of a decision to 
suppress evidence of marijuana dealing, this Court upheld the 
search of a high school student’s purse based on reasonable 
suspicion that she was carrying cigarettes and had been 
smoking in violation o f school rules, and upheld a 
subsequent, more intrusive search of the compartments of the 
purse and its contents after expressly finding that the initial 
look into the purse revealed “rolling papers,” which raised



22

reasonable suspicion that the student was carrying marijuana. 
Id. at 347-48.

The repeated strip searches in this case clearly 
violated the Fourth Amendment under T.L.O.; indeed, 
although respondents dispute the facts, they have never 
argued that the challenged conduct (as established for 
purposes of summary judgment) was constitutional. The facts 
of T.L.O. were different from the facts here, but T.L.O. 
nonetheless clearly established the law applicable to this case. 
Strip searches are indisputably the most intrusive searches 
that school officials might plausibly be called upon to 
perform, yet the information that respondents relied upon in 
deciding to search Cassandra and Oneika falls well short of 
reasonable suspicion that they had hidden the missing seven 
dollars under their clothes. All that respondents knew about 
the missing money when they assumed control of the 
investigation was that one student had told the teacher that 
money was missing, that petitioners had been accused of 
taking the money, and that each of the suspected students 
denied having taken the money and said that the others did it. 
App. 62a. That limited information plainly failed to provide 
a basis for a single strip search of either girl; it is simply not 
conceivable that it could have justified the second strip 
searches. See id.

When the nature of the infraction is also taken into 
account in assessing the scope of those searches, as T.L.O. 
requires, their unconstitutionality is even more obvious. 
Theft of money from a fellow student is both unlawful and 
wrong, and responsible teachers will seek to ensure that 
students’ money and possessions are safe in school. T.L.O., 
however, places clear and enforceable limits on the extent to 
which students may be searched in an effort to enforce the 
law and the rules of the school. See T.L.O., 469 U.S. at 342 
(stating that the Court’s standard “should ensure that the 
interests of students will be invaded no more than is



23

necessary to achieve the legitimate end of preserving the 
order in the schools”). The decision expressly requires that 
any school search be “reasonably related to the objectives of 
the search and not excessively intrusive in light of . . . the 
nature of the infraction.” Id. at 342. If T.L.O. protects any 
Fourth Amendment rights at all, it prohibits strip searches in 
a quest for such nonthreatening items as contraband chewing 
gum, or allegedly stolen hair ribbons, favorite pencils, trading 
cards, or pocket money, especially when there is no basis to 
believe that such items have been secreted under a student’s 
clothing.

T.L.O. sends a clear message condemning strip 
searches of students in circumstances like those at issue here. 
Several pre-T.L.O. decisions had condemned strip searches in 
schools, and this Court cited those cases with approval in 
T.L.O. as employing the same standard it was adopting. 
T.L.O., 469 U.S. at 341 n.6 (endorsing standard in cases cited 
at 332 n.2 including, inter alia, Tartar v. Raybuck, 742 F.2d 
977 (6th Cir. 1984); Bilbrey v. Brown, 738 F.2d 1462 (9th 
Cir. 1984); Bellnier v. Lund, 438 F. Supp. 47 (N.D.N.Y. 
1977); People v. D., 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315 
N.E,2d 466 (1974)).9 Justice Stevens, joined by Justices

9In Bilbrey v. Brown, the Ninth Circuit held that a teacher who 
strip searched fifth grade students looking for drags, based on the 
teacher’s observation of the students “exchanging something on the 
playground,” was not entitled to qualified immunity because the law in the 
area of school searches was established enough to put the official on 
notice that the conduct would violate the students’ clearly established 
Fourth Amendment rights. 738 F.2d at 1466. In Tartar v. Raybuck, 
although the Court of Appeals for the Sixth Circuit upheld school 
officials’ search of a male high school student based on overwhelming 
evidence the student was concealing drags, the court emphasized that 
school searches must be reasonable in scope, and expressly condemned 
the practice of strip searches or body cavity searches to determine 
whether students were in violation of school rales. 742 F.2d at 982-83 
(emphasis added) (citing with approval Doe v. Renfrow, 631 F.2d 91, 92- 
93 (7th Cir. 1980), cert, denied, 451 U.S. 1022 (1981)). In Bellnier v.



24

Marshall and Brennan, concurring in part and dissenting in 
part in T.L.O., was even more explicit. Although he 
criticized the majority’s standard as providing insufficient 
guidance in many contexts, he emphasized that the T.L.O. 
standard at least clearly established the unlawfulness of a 
strip search in a case like this one:

One thing is clear under any standard — the shocking 
strip searches that are described in some cases have 
no place in the schoolhouse. See Doe v. Renfrow, 631 
F.2d 91, 92-93 (CA7 1980) (“It does not require a 
constitutional scholar to conclude that the nude search 
of a 13-year-old child is an invasion of constitutional 
rights of some magnitude”), cert, denied, 451 U.S. 
1022 (1981); Bellnier v. Lund, 438 F. Supp. 47 
(N.D.N.Y. 1977); People v. D., 34 N.Y.2d 483, 358 
N.Y.S.2d 403, 315 N.E.2d 466 (1974); M.J. v. State, 
399 So.2d 996 (Fla. App. 1981). 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.

Lund, the strip search of fifth-grade students down to their underwear in 
search of $3.00 that one student reported missing was held to violate the 
Fourth Amendment. 438 F. Supp. at 53-54. The granting of qualified 
immunity in this pre-Harlow case was based on the absence of allegations 
that the teacher’s action was not taken in good faith and its observation 
that as, of 1974, the law was not settled. Id. at 55. The New York Court 
of Appeals in People v. D reversed the denial of a suppression motion of 
a 17-year-old student in a strip search case. The court held that 
observations of the student twice entering and quickly exiting the 
restroom with a fellow student, and having lunch with a fellow student 
who was under suspicion for dealing drugs, as well as suggestions from 
confidential sources that the defendant himself might be dealing in drugs, 
provided inadequate information to justify searching the student’s wallet 
and, once drugs were found there, strip searching the student to discover a 
vial containing pills. 34 N.Y.2d 483, 358 N.Y.S.2d 403, 405, 410, 315 
N.E2d 466(1974).



25

T.L.O. at 764 n.25. That conclusion was not only unrebutted 
by the majority, but, as noted above, approved by the 
majority’s embrace of the same cited cases.

Professor Wayne R. LaFave, a leading commentator 
on the Fourth Amendment, concurs with the view that strip 
searches are clearly unconstitutional under T.L.O., especially 
when conducted in response to minor infractions. Although 
Professor LaFave, too, views T.L.O. as unclear in several 
respects, he concludes that its discussion of the proper scope 
of schoolhouse searches means “at a minimum” that strip 
searches such as those described in opinions cited in T.L.O. 
are unconstitutional. W a y n e  R. L a F a v e , S ea rch  a n d  
Seiz u r e : A T r e a t ise  o n  t h e  F o u rth  A m e n d m e n t  § 10.11 at 
817 (3d ed. 1996).10

I0After T.L.O., publications directed at educators cautioned them 
against conducting strip searches absent exigent circumstances. See, e.g., 
La w r en c e  F. Rossow, Se a r c h  a n d  Seizu r e  in t h e  P ublic  Sch o o ls  37 
(2d ed.1995) (remarking that the majority of court cases involving strip 
searches have been decided in favor of the student); Larry Bartlett, Don't 
Be in a Rush to Search Students, 59 THE CLEARING HOUSE 252, 253 
(1986) (stating that “[i]t can be inferred that the Court would not look 
favorably upon strip searches of students in the absence of a search 
warrant, probable cause, or extreme bona fide emergency.”); N.L. Essex, 
Ten Ways to Avoid Costly Litigation for Illegal School Searches, 62 T he 
Clearing  H o u se  165, 166 (1988) (remarking that strip searches should 
be conducted only when there is a threat to the health and safety of 
students); Brenda Jones Watt, New Jersey v. T.L.O.: The Questions the 
Court Did Not Answer About School Searches, 14 J. L. & EDUC. 421, 
426 (1985) (commenting that “. . . it would seem that even after 
employing the balancing test, the Court would decide that the needs of the 
school officials to maintain order does not weigh so heavily as to deny the 
students their rights of privacy with regard to their own persons.”); Perry 
A. Zirkel, Stripping Students o f Their Rights, 74 PHI DELTA KAPPAN 498, 
501 (1993) (stating that Robert Chenoweth, winning attorney for the 
school in a strip search case, advises school personnel not to conduct strip 
searches).



26

The reported cases addressing the constitutionality of 
student strip searches by school authorities fall into such a 
clear pattern that they illustrate the degree to which the 
Fourth Amendment principles this Court has established 
clearly guide lower courts. Every case that has upheld even a 
partial strip search in school dealt with a search for weapons 
or other dangerous contraband, such as illegal drugs, and was 
based on specific information that those items would likely 
be found on the student’s person. See, e.g., Cornfield v. 
Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1320- 
23 (7th Cir. 1993) (strip search based on strong suspicions 
student concealing drugs); Williams v. Ellington, 936 F. 2d 
881, 882-83 (6th Cir. 1991) (strip search after one of 
suspected students produced drugs during questioning); 
Tartar v. Raybuck, 742 F. 2d 977, 979, 984 (6th Cir. 1984) 
(strip search based on odor of marijuana and suspicion of 
dealing drugs); Widener v. Frye, 809 F. Supp. 35, 36-37 (S.D. 
Ohio 1992) (odor of marijuana, dilated pupils, and lethargy 
justified limited strip search), a ff’d  12 F.3d 215 (6th Cir. 
1993); Cales v. Howell Pub. Schs., 635 F. Supp. 454, 457-58 
(E.D. Mich. 1985) (strip search based on suspicion of drugs); 
State v. Young, 234 Ga. 488, 216, S.E. 2d 586, (1975) (strip 
search based on suspicion of drugs); Rone by Payne v. 
Daviess County Bd. ofEduc., 655 S.W. 2d 28, 29 (Ky. 1983) 
(consented-to strip search based on students’ admission to 
possessing and dealing drugs ).

Conversely, every case that has involved a search for 
items not posing any imminent risk of serious harm to anyone 
has held the strip search to be unconstitutional. See, e.g., 
Oliver v. McClung, 919 F. Supp. 1203, 1216-19 (N.D. Ind. 
1995) (strip search seeking $4.50 unconstitutional); Bellnier 
v. Lund, 438 F. Supp. 47, 54 (N.D. N.Y. 1977) (strip search 
for $3.00, “as opposed to drugs”); State ex rel. Galford v. 
Mark Anthony B., 433 S.E. 2d 41, 49 (W. Va. 1993) (strip 
search seeking $100 unconstitutional). Indeed, in some



27

cases, school officials have been found to have violated 
clearly established law even where they were searching for 
dangerous contraband such as illegal drugs. See, e.g., Bilbrey 
v. Brown, 738 F. 2d 1462, 1466 (9th Cir. 1984) (strip search 
and pat-down looking for drugs violated the Constitution); 
Doe v. Renfrow, 631 F. 2d 91, 92-93 (7th Cir. 1980) (per 
curiam) (strip search for drugs unconstitutional because no 
individualized suspicion and no reasonable cause), cert, 
denied, 451 U. S. 1022(1982).

In T.L.O., the Supreme Court explained why 
educators, though vested with “important, delicate and highly 
discretionary functions,” must take care not to trample upon 
the rights of the very students they have been entrusted to 
educate. As the Court explained, “[t]hat they are educating 
the young for citizenship is reason for scrupulous protection 
of Constitutional freedoms of the individual in the 
educational context, if we are not to strangle the free mind at 
its source and teach youth to discount important principles of 
our government as mere platitudes.” T.L.O. 469 U.S. at 334 
(quotation omitted). If allowed to stand, the en banc decision 
in this case will teach students, and others, to put little faith 
in important principles of government.

B. The Decision Below Conflicts With 
Decisions of the Sixth and Seventh Circuits, 
and the Highest Court of at Least One 
State

The en banc court’s holding that petitioners lacked a 
clearly established Fourth Amendment right not to be strip 
searched by a teacher looking for a small amount of money 
conflicts with decisions of the Sixth and Seventh Circuits and 
the highest court of at least one state. The Seventh Circuit in 
Doe v. Renfrow, held that a strip search of junior high school 
students by school officials violated the students’ clearly 
established Fourth Amendment rights. The court stated:



28

It does not take a consitutional scholar to conclude 
that a nude search of a thirteen-year-old child is an 
invasion of constitutional rights o f 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 principles 
of law.

631 F.2d at 92-92 (quotation marks omitted). The court 
concluded by stating: “We suggest as strongly as possible that 
the conduct herein described exceeded the ‘bounds of reason’ 
by two and a half country miles.” Id. at 93.

Since T.L.O. the Seventh Circuit has reaffirmed its 
decision in Renfrow. See Cornfield v. Consolidated High 
Sch. Dist. No. 230, 991 F.2d 1316 (7th Cir. 1993;. The Court 
in Cornfield, relying on T.L.O., made clear that it would be 
unconstitutional for a school official to strip search students 
for a minor infraction, including searching for allegedly 
missing money. Although the Seventh Circuit upheld the 
strip search for drugs in Cornfield, it took pains to point out 
that, had the case involved a minor type o f infraction such a 
highly intrusive search would not comport with the sliding 
scale advocated by this Court in T.L.O. Cornfield, 991 F.2d at 
1320. The court noted that the degree of suspicion the Fourth 
Amendment requires increases correspondingly with the 
intrusiveness of a search of a student. Id. at 1321. Thus, 
what is reasonable suspicion for search of a student’s locker, 
pocket, or pocketbook — or backpack, as in this case — “may 
fall well short of reasonableness for a nude search.” See id. 
The en banc court’s decision conflicts with the Seventh 
Circuit’s repeated recognition of students’ clearly established 
Fourth Amendment rights not to be strip searched for minor 
infractions.



29

The Sixth Circuit likewise recognizes that school 
children have a clearly established right under T.L.O. not to 
be strip searched for minor infractions. In Williams v. 
Ellington, 936 F.2d 881 (6th Cir. 1991), the court granted 
qualified immunity on the facts before it, but did so only after 
meticulously cataloguing the actions school officials 
undertook prior to conducting the strip search to ensure that 
they had a concrete basis for conducting the search. 936 
F.2d at 887-89. Under the Sixth Circuit’s approach in 
Williams, respondents’ bases for strip searching petitioners 
were patently inadequate.

The decision of the West Virginia Supreme Court in 
State ex rel. Galford v. Mark Anthony B., 433 S.E. 2d 41 (W. 
Va. 1993), also conflicts with the en banc court of appeals’ 
decision in this case. The West Virginia Supreme Court found 
that a student has a clearly established constitutional right not 
to be strip searched by a teacher searching for missing money. 
Id. at 49. That court read T.L.O. as “obviously” putting 
“constraints on how far a search could ultimately extend, even 
when there are ‘reasonable grounds’ and/or an individualized 
suspicion to justify the initial search.” Id. at 48-49. The court 
held that, absent exigent circumstances necessitating an 
immediate search to protect other students, “a warrantless strip 
search of a student conducted by a school official is presumed 
to be ‘excessively intrusive’ and thus unreasonable in scope.” 
Id. at 49.



30

CONCLUSION

For the foregoing reasons, petitioners pray that this 
Court grant the writ o f certiorari.

Respectfully submitted,

DEVARIESTE CURRY 
(Counsel of Record)
Law Office of Devarieste Curry 
1250 24th Street, NW 
Suite 300
Washington, DC 20037 
ELAINE R. JONES 
NORMAN CHACHKIN 
CORNELIA T.L. PILLARD 
ROSE M. SANDERS

Dated: AUGUST 29, 1997



APPENDIX



(June 2, 1997)

O p in ion  o f  the C ourt o f  A pp eals En Banc

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,

v.

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.

No. 95-6243.

United States Court of Appeals,
Eleventh Circuit.

June 2, 1997.

Rose Mary Sanders, Chestnut Sanders, Sanders & 
Pettaway, P.C., Selma, AL, Devarieste Curry Beveridge &



2a

Diamond, P.C., Washington, DC, for Plaintiffs- 
Appellants.

Donald B. Sweeney, Jr., Valerie Theresa Kisor, 
Rives & Peterson, Birmingham, AL, Ralph D. Gaines, Jr., 
Gaines, Gaines & Rasco, Talladega, AL, for Defendants- 
Appellees.

Appeal from the United States District Court for the 
Northern District of Alabama.

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

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

‘Senior U.S. Circuit Judge Phyllis A. Kravitch elected 
to participate in this decision pursuant to 28 U.S.C. § 
46(c).



3a

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 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 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.



4a

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, 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. 
s 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. § 2000d, Title IX of the 
Education Amendments of 1972, 20 U.S.C. § 1681, and 
Alabama law. In a series of memorandum 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

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 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



6a

regarding the constitutionally permissible scope of a 
search of students while attending school was so clearly 
defined that these defendants were on notice 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 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. *

lrThe 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.



7a

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 
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 the factual 
circumstances set forth in T.L.O. differ significantly from



8a

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.2

Notwithstanding the Court’s enunciation in T.L.O. 
of a two-part test to adjudicate Fourth Amendment 
school-search claims, the Court 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

2Because 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.



9a

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. 
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



10a

factors might come into play when other concrete 
circumstances are faced by school personnel.3

3The dissent contends that the Supreme Court’s recent 
decision in United States v. Lanier, — U.S. — , 117 S. Ct. 
1219, 137 L. Ed. 2d 432 (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 42 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 
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



11a

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 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, 
— U.S. at — , 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



12a

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 established" 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, — U.S. a t ................ -, 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 
pre-existing law. Although this circuit has elaborated and



13a

said that "pre-existing 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 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.’ " 
Lanier, at — , 117 S. Ct. at 1227. The Court went on to 
note th at" ‘[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)) (internal quotation marks omitted) 
(alterations in original). 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



14a

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 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.* 4 Without such practical, fact-based application,

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."

4In 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



15a

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. § 242. In United States v. Lanier, 73 F.3d 1380 
(6th Cir. 1996) (en banc), the Sixth Circuit had held 
explicitly that "[Ijower court decisions are not sufficient to 
establish and make definite a particular constitutional 
crime so as to provide the constitutionally-required notice 
necessaiy to support an indictment under § 242. Only a 
decision of the Supreme Court establishing the 
constitutional crime under § 242 can provide such notice.1' 
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



16a

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 we have previously 
noted, "[pjublic 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.* 5

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.

5The 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



17a

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. 
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



18a

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 
specificity* 6 but, it appears, purposefully so. In response

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.

6It 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 today will likely spawn increased litigation 
and greater uncertainty among teachers and 
administrators. . . .  I cannot but believe that the



19a

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 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

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.



20a

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 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 law clearly established such 
that all reasonable teachers standing in the defendants’ 
place reasonably should have known that the search to



21a

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:

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, 105 S. Ct. 733, 83 L. Ed. 2d 720 (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,



22a

640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (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, 102 S. Ct. 2727, 
2732, 73 L. Ed. 2d 396 (1982) (quoting Butz v. Economou, 
438 U.S. 478, 506, 98 S. Ct. 2894, 2911, 57 L. Ed. 2d 895 
(1978)). Taken 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, 102 S. Ct. at 2738.

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 doing violates that right." 483



23a

U.S. at 640, 107 S. Ct. at 3039.1 We since have stated 
that "[gjeneral 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 different facts.* 2 
Neither the Supreme Court nor this court, however, 
require factual identity between prior and subsequent 
cases, for that would create absolute immunity.3

3We 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. o f Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) (en 
banc).

2For 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, 97 S. Ct. 538, 50 L. 
Ed. 2d 616 (1976); others had held that school children 
enjoyed no Fourth Amendment protection, as school 
officials acted in loco parentis. See In re Donaldson, 269 
Cal. App. 2d 509, 75 Cal. Rptr. 220 (3d Dist. Ct. App. 
1969).

3See Anderson, 483 U.S. at 640, 107 S. Ct. at 3039 
("This is not to say that an official action is protected by 
qualified immunity unless the very action in question has



24a

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 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.4 By contrast, the majority today, 
declaring T.L.O. both general and factually

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 
Sheriffs 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.").

4For example, in Harts field 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.



25a

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, — U.S. — , 117 S. Ct. 1219, 137 
L. Ed. 2d 432 (1997), the Court unanimously held that: 
(1) civil rights liability requires only "fair warning" of 
constitutional rights, — U.S. at —  - — , 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 —  - — , 117 S. Ct. at 1226-27.5 More

5I note the tension between the Court’s reasoning and 
the majority’s suggestion, ante at 824 n. 2, that only the 
Supreme Court, Eleventh Circuit, or the highest court of 
the state can "clearly establish" the law. Compare Courson 
v. McMillian, 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, — U.S. a t ................ , 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 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, 510



26a

importantly 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 — 117 S. Ct. at 1227 (quoting Anderson, 483 U.S. 
at 640, 107 S. Ct. at 3039). 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.6

U.S. 510, 515- 16, 114 S. Ct. 1019, 1023, 127 L. Ed. 2d 
344 (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.").

6The majority dismisses Lanier as irrelevant to the 
instant case. I cannot agree. Although it concedes that



27a

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, 107 S. Ct. 
at 3039, so actors "reasonably can anticipate when their 
conduct may give rise to liability. . . Davis v. Scherer,
468 U.S. 183, 195, 104 S. Ct. 3012, 3019, 82 L. Ed. 2d 139 
(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, 105 S. Ct. at 737 n. 2, and 
squarely addressed the issues before us today: when a

"general principles of law can provide clear warning," ante 
at 826 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 826. 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 827. 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 violate established constitutional norms, even ones 
with a short pedigree in the decisional law.



28a

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, 88 S. Ct. 1868, 20 L. Ed. 2d 889 
(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, 105 S. Ct. at 743; and second, 
the search must be 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,.* 1

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

7Given the case’s history and its comprehensive test,
I disagree with the conclusion, ante at 828, "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."



29a

. . . 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, — U.S. at — , 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 even arguable reasonable suspicion to strip 
search Jenkins and McKenzie.8 The teachers offer the 
following evidence as creating reasonable suspicion to

8My 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 o f 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").



30a

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 
accusation9 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 testimony might be at the outer bounds 
of reasonable suspicion for one search, but it is not so for 
two.10 Second, McKenzie’s trip to the bathroom, 
although relevant to suspicion, was not communicated to

9The majority’s statement, ante at 822, that "[sjeveral 
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.

10Even 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.



31a

Herring or Sirmon prior to the strip search.11 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, 105 
S. Ct. at 745-46 (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" justified reading letters found in zippered 
compartment). Finally, there is no evidence that Herring 
or Sirmon knew about prior instances of other students *

“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.



32a

concealing money in their clothing,12 Thus, because 
arguable reasonable suspicion was missing, qualified 
immunity is inappropriate.13

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

12Appellees 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.

13I 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 827 n. 5. 
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.



33a

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 present case.14 Nevertheless, this does not render * I

14Sex 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 826, 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 
827 n.5, 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



34a

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 Sirmon’s conduct as unconstitutional, thereby clearly 
establishing the law.* 15

The strip searches were not reasonably related to 
their objectives because they were excessively intrusive

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, Be d - 
Wetting a  Common Inconvenience, w a sh , post , 
Apr. 8, 1997, at Z17 ("Most children are toilet-trained 
sufficiently to stay dry during the day by age 3 or 4. . . .").

15The majority notes that Justice Stevens objected to 
T.L.O. ’s lack of clarity, ante at 827 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, 105 
S. Ct. at 764 n. 25 (Stevens, J., concurring in part and 
dissenting in part) (emphasis added) (citations omitted).



35a

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 o f Peachtree City, 961 F.2d 188, 192 (11th 
Cir. 1992).16 Thus, for a strip search to be reasonably 
related in scope to the objectives for which it was 
undertaken, the objectives must be weighty,17 and the

16Although decided after the events at issue in the 
present case, Justice’s treatment of strip searches merely 
confirms their self-evidently intrusive character.

vSee 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 
circumstances which rendered its initiation permissible." 
392 U.S. at 19, 88 S. Ct. at 1878. See also, e.g., United 
States v. McMurrccy, 747 F.2d 1417, 1420 (11th Cir. 1984) 
(in customs context, as intrusiveness increases, suspicion



36a

search must be necessary to locate the suspected evidence. 
See Terry, 392 U.S. at 29-30, 88 S. Ct. at 1883-85 (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, as no 
one could reasonably argue that it was necessary after the 
fruitless prior search.

necessary to justify search must increase).



37a

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.18 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.19

18See 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).

19See, 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., 189 W. Va. 538, 433 
S.E.2d 41, 49 (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").



38a

As the Seventh Circuit, faced with a qualified 
immunity defense following a school strip search, 
explained:

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, 101 S. Ct. 
3015, 69 L. Ed. 2d 395 (1981). Because Herring and 
Sirmon flagrantly ignored common sense and, crucially, 
the Constitution, I would reverse the district court’s order 
granting qualified immunity.



39a

Opinion of the Court of Appeals Panel
(vacated by grant of rehearing en banc)

(September 23, 1996)

2
Devarieste Curry, Beveridge & Diamond, 

Washington, DC, for appellants.
Donald B. Sweeney, Jr., Valerie Theresa Kisor, 

Rives & Peterson, Birmingham, AL, for appellees.

Appeal from the United States District Court for 
the Northern District of Alabama.

Before KRAVITCH and BIRCH, Circuit Judges, 
and SCHWARZER, * Senior District Judge.

KRAVITCH, Circuit Judge:

This action was brought on behalf of two 
elementary school students who allegedly were strip 
searched by a teacher and guidance counselor after having 
been accused of stealing money from a classmate. The 
district court concluded that defendants were entitled to 
summary judgment on all claims. In particular, the court 
granted the individual defendants summary judgment on 
plaintiffs’ § 1983 Fourth Amendment claims. We affirm 
all of the district court’s summary judgment orders, except

Honorable William W. Schwarzer, Senior U.S. 
District Judge for the Northern District of California, 
sitting by designation.



40a

for the grant of qualified immunity to defendants on the 
Fourth Amendment claims, which we reverse.

I .

In 1992, Cassandra Jenkins and Onieka McKenzie 
were eight-year-old second graders at Graham Elementary 
School in Talladega, Alabama. On the afternoon of May 
1, one of Cassandra’s and Onieka’s classmates told their 
teacher, Hilda Fannin, that $7 was missing from her 
purse. Another classmate told Fannin that Cassandra had 
taken the money and stashed it in Onieka’s backpack. 
After searching the backpack and finding no money, 
Fannin questioned Cassandra and Onieka in the hallway 
outside the classroom. The girls accused each other, as 
well as a male classmate, Anthony Jemison, of the theft.

As Fannin’s questioning of Cassandra, Onieka, and 
Anthony continued in the hallway, the school music 
teacher, Susannah Herring, approached. Upon being 
informed of the theft accusation, Herring took charge of 
the investigation. First, she instructed the three students 
to take off their shoes and socks. No money was 
revealed. Herring then summoned Melba Sirmon, a 
guidance counselor whose office was nearby. Herring and 
Sirmon took Cassandra and Onieka to the girls’ restroom.

Inside the restroom, Herring told Cassandra and 
Onieka to "check" their clothes for the money. According 
to Cassandra, Herring ordered them to go inside the stalls 
and come back out with their underpants down to their



41a

ankles.1 As Cassandra and Onieka entered separate stalls 
and locked the doors, Sirmon left the restroom to check 
on Anthony, who was waiting outside. Shortly after she 
returned, according to Cassandra, Cassandra and Onieka 
emerged from the stalls with their underpants pulled 
down to their ankles. Herring asked them if they had 
found the money, and they replied that they had not. 
Sirmon allowed them to return to their stalls and pull 
their underpants back up.* 2

Herring and Sirmon then escorted Cassandra, 
Onieka, and Anthony to the office of the school principal, 
Crawford Nelson. After hearing Herring’s account of 
what had happened,3 Nelson interrogated the three 
children about the location of the stolen cash. Anthony 
claimed that the money was hidden behind a file cabinet 
and then, when nothing was found there, that it was 
stashed in a locker. Nelson concluded that Anthony had 
no idea where the money was and dismissed him.

herring claims that she merely told Cassandra and 
Onieka to "check" their clothes, not to remove them.

2Onieka testified that she and Cassandra pulled their 
underpants down and back up while inside the locked 
stalls and that neither came out of the stalls with her 
underpants down.

3Although Herring apparently did not inform Nelson 
that Cassandra and Onieka had removed their clothes in 
the restroom, Nelson testified that he expressed 
disapproval of her forcing the girls to remove their shoes 
and socks.



42a

From Nelson’s office, Herring and Sirmon took 
Cassandra and Onieka back to the restroom.4 Inside, 
Herring ordered the two girls to take off their dresses, 
which they did. Cassandra was wearing a slip; Onieka 
was wearing only underpants. Herring then instructed 
them to shake their dresses, and she shook the slip 
Cassandra was wearing. After nothing was found, 
Cassandra and Onieka were allowed to put their dresses 
back on. This account was corroborated by a witness. 
Joyce Merritt Shears, the parent of another student, was 
walking in the hallway past the girls’ restroom while 
Cassandra and Onieka were being searched. Shears heard 
children crying and an adult say either "remove your slip" 
or "hold up your slip." Entering the restroom to 
investigate, Shears saw Cassandra and Onieka, "one in 
their panties and the other one in their slip."

The Talladega City Board of Education ("Board") 
conducted an investigation of the strip search. After a 
hearing, the Board concluded that Herring had committed 
a "gross error in judgment" regarding the manner in which 
she investigated the alleged theft; that Sirmon had erred 
in her judgment by assisting Herring, failing to notify the 
principal immediately, and not calling Cassandra’s and 
Onieka’s parents; and that Nelson had erred in his 
judgment by not calling the girls’ parents and failing to 
establish a uniform policy for dealing with theft in the

4Herring and Sirmon assert that they only took 
Cassandra and Onieka to the restroom once, before they 
met with Nelson; thus, they dispute the girls’ description 
of the second restroom incident in its entirety. There is 
no evidence that Nelson authorized or was aware of a 
second restroom trip.



43a

school. Despite the superintendent’s recommendation 
that Herring be fired, the Board did not impose any 
serious sanctions.

Plaintiffs, on behalf of Cassandra and Onieka, filed 
a complaint against the Board and nine individual 
defendants (including Nelson, Herring, and Sirmon) in 
1994, alleging, pursuant to 42 U.S.C. § 1983, that they had 
been strip searched in violation of the Fourth 
Amendment, Title VI of the Civil Rights Act of 1964, and 
Title IX of the Education Amendments of 1972,5 and 
also alleging violations of Alabama tort law. The district 
court initially dismissed all claims for money damages 
against all defendants, except for those against Herring 
and Sirmon in their individual capacities and those against 
the Board. Then, on its own initiative, the court entered 
an order stating that it was reconsidering whether Herring 
and Sirmon were entitled to qualified immunity for the 
allegedly unconstitutional search in light of recent 
Eleventh Circuit decisions. The court proceeded to grant

5Cassandra and Onieka, who are black, claim that the 
searches conducted by Herring and Sirmon, who are 
white, were discriminatory based on race and gender. 
With respect to gender, plaintiffs observe that Anthony 
Jemison was not strip searched despite also being accused 
of the theft. With respect to race, they point to other 
searches in Talladega schools that, they allege, 
demonstrate a correlation between the intrusiveness of the 
searches and the race of the students searched. After 
carefully reviewing the record, we agree with the district 
court that the plaintiffs have failed to present sufficient 
evidence of discrimination based on gender or race to 
survive the summary judgment motion.



44a

summary judgment on the basis of qualified immunity in 
favor of the individual defendants on the Fourth 
Amendment claim. In addition, the court granted 
summary judgment for all defendants on the Title VI and 
Title IX claims, finding no substantial evidence of 
discrimination based on race or gender; for the Board on 
the § 1983 Fourth Amendment claim, finding no basis for 
municipal liability; for all defendants on the claims for 
injunctive and declaratory relief, finding that the plaintiffs 
lacked standing to bring these claims; and for individual 
defendants on the state law claims, finding that the 
defendants were entitled to qualified immunity under 
Article I, § 14 of the Alabama Constitution. Plaintiffs now 
appeal.

II.

We affirm the grant of summary judgment for all 
defendants on the Title VI and Title IX claims, for the 
Board on the Fourth Amendment § 1983 claim, for all 
defendants on the claims for injunctive and declaratory 
relief, and for the individual defendants on the state law 
claims.6 This leaves the issue of § 1983 qualified 
immunity for the individual defendants on plaintiffs’ 
Fourth Amendment claims.

The district court granted Herring and Sirmon 
qualified immunity, concluding that Fourth Amendment

“Although we do not adopt the district court’s 
thorough memorandum opinions on these issues as part 
of the opinion of this court, we generally find the court’s 
analysis cogent and persuasive. Plaintiffs’ contentions on 
appeal regarding these issues lack merit.



45 a

law was not "clearly established" as applied to their 
conduct,7 We reverse the district court’s decision because 
Fourth Amendment law was sufficiently clear in 1992 that 
there could be no doubt that Herring’s and Sirmon’s 
actions (construing the evidence and ah reasonable 
inferences therefrom in the light most favorable to the 
plaintiffs at the summary judgment stage) were 
unconstitutional.

III.

Before reaching the merits, we wish to clarify some 
general qualified immunity issues that seem to have 
confused the district court and defendants in this case.

The Supreme Court’s qualified immunity doctrine 
attempts to strike a balance between two competing 
concerns: the necessity for constitutional damages actions 
against public officials because such actions "may offer the 
only realistic avenue for vindication of constitutional

7The district court also granted qualified immunity to 
Nelson. On appeal, plaintiffs seem to argue that Nelson 
should be stripped of immunity because he violated 
clearly established law by faihng to train teachers in 
proper search methods. This argument confuses 
individual liability for a constitutional violation with 
municipal liability under § 1983. Plaintiffs do not appear 
to claim that Nelson’s alleged failure to train teachers 
amounts to an independent constitutional violation for 
which he could potentially be held liable in his individual 
capacity. Thus, the issue of qualified immunity should not 
even arise with respect to Nelson. We affirm the district 
court’s grant of summary judgment in favor of Nelson.



46a

guarantees" and the need to limit the costs to individuals 
and society created by litigation against public officials- 
including diversion of official energies from pressing 
public issues, deterrence of able citizens from acceptance 
of public office, and "the danger that fear of being sued 
will ‘dampen the ardor of all but the most resolute, or the 
most irresponsible [public officials], in the unflinching 
discharge of their duties.’" Harlow v. Fitzgerald, 457 U.S. 
800, 814, 102 S. Ct. 2727, 2736, 73 L. Ed. 2d 396 (1982) 
(quoting Gregoire v. Biddle, 111 F.2d 579, 582 (2d Cir. 
1949), cert, denied, 339 U.S. 949, 70 S. Ct. 803, 94 L. Ed. 
1363 (1950)).

In its effort to strike the optimal balance, the 
Supreme Court in Harlow v. Fitzgerald established an 
objective test for qualified immunity: government officials 
performing discretionary functions are immune from § 
1983 liability for monetary damages "insofar as their 
conduct does not violate clearly established statutory or 
constitutional rights of which a reasonable person would 
have known." 457 U.S. 800, 817-19, 102 S. Ct. 2727, 2738, 
73 L. Ed. 2d 396 (1982). In Anderson v. Creighton, the 
Court explained when a right is "clearly established":

The contours of the right must be sufficiently clear 
that a reasonable official would understand that 
what he is doing violates that right. 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.

483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 
(1987) (citations omitted).



47a

These standards allow us to filter out the most 
culpable or least competent public officials and make 
them liable for damages, thereby striking the balance 
sought in Harlow by permitting the vast majority of 
government to operate free from panoptic judicial 
oversight or constitutional job descriptions while still 
retaining a viable avenue for vindication of constitutional 
guarantees.

Since Anderson, this court has devoted much effort 
to staking out an operational standard somewhere 
between the Anderson Court’s polar extremes: "in light of 
pre-existing law the unlawfulness must be apparent," but 
"the very action in question [need not have] previously 
been held unlawful." Over-emphasizing either of the 
Anderson poles flouts the Supreme Court’s efforts to 
construct a meaningful doctrine of qualified immunity. 
To treat each set of facts as unique and legally 
indeterminate would make qualified immunity absolute by 
denying that any unlawful conduct violates rights that 
were "clearly established." At the other extreme, relying 
on abstract, highly general formulations of rights would 
effectively abrogate immunity by declaring every violated 
right "clearly established." After Anderson, then, this 
court has sought a stable equilibrium between these 
opposing pressures.

Although there is no doubt that qualified immunity 
law in this circuit has evolved in its application to some 
extent in the direction of more protection for government 
officials, this has simply been the result of implementing 
the Anderson Court’s clarification of the appropriate level 
of generality at which a right must be "clearly established" 
for purposes of qualified immunity. See Lassiter v. 
Alabama A  & M  Univ., 28 F.3d 1146, 1150 (11th Cir.



48a

1994) (en banc) ("The most common error we encounter 
. .  . occurs on this point: courts must not permit plaintiffs 
to discharge their burden by referring to general rules and 
to the violation of abstract ‘rights.’ ") (citing Anderson, 483 
U.S. at 637-41, 107 S. Ct. at 3038-39).

Some of our efforts, however, have been 
misinterpreted as a sea change in qualified immunity. For 
instance, the district court in this case originally concluded 
that Sirmon’s and Herring’s actions did violate clearly 
established Fourth Amendment law, but it felt obligated 
to reconsider sua sponte based on its reading of some 
recent Eleventh Circuit qualified immunity cases. See, 
e.g., Lassiter, 28 F.3d 1146.8

Notwithstanding Lassiter’s admonition that the 
court was announcing no "[n]ew rules," but merely "for 
emphasis . . . restating] principles which do govern 
qualified immunity cases," 28 F.3d at 1149, that opinion 
has been misconstrued as announcing a sweeping change. 
For instance, the statement in Lassiter that "[f|or 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, has been read by some to indicate that qualified 
immunity is due every official unless this court has

8In addition to Lassiter, the district court cited Spivey 
v. Elliott, 41 F.3d 1497 (11th Cir. 1995); Belcher v. City of 
Foley, 30 F.3d 1390 (11th Cir. 1994); and Post v. City of 
Ft. Lauderdale, 7 F.3d 1552 (11th Cir. 1993), modified, 14 
F.3d 583 (11th Cir. 1994).



49a

addressed essentially identical facts in a previous case. 
But Lassiter merely rephrases the Anderson standard, "in 
the light of pre-existing law the unlawfulness must be 
apparent." Lassiter does not abrogate Anderson's 
recognition that "the very action in question [need not 
have] previously been held unlawful" nor could it have.

Likewise, other cases have been misconstrued. We 
can all agree that "[i]f case law, in factual terms, has not 
staked out a bright line, qualified immunity almost always 
protects the defendant," Post v. City o f Fort Lauderdale, 7 
F.3d 1552, 1557 (11th Cir. 1993), modified, 14 F.3d 583 
(11th Cir. 1994). This is another restatement of the 
Anderson requirement that the law must be apparent, but 
it does not answer the question "how bright?" or define 
the set of cases gestured towards by "almost." In other 
words, these recent cases have not eviscerated Anderson’s 
recognition that "the very action in question [need not 
have] previously been held unlawful." Thus, the basic 
principles of qualified immunity doctrine remain 
unchanged.

The confusion over qualified immunity is 
exemplified by defendants’ apparent assumption that 
relevant law can be "clearly established" only when there 
exist cases with facts materially similar to those of the 
case at hand, as evidenced by their insistence that 
qualified immunity is due here because this court has 
never addressed a factually similar case. This argument 
is false in at least two circumstances: those in which the 
official misconduct is more egregious than conduct of the 
same general type that has been deemed illegal in other



50a

cases9 and those rare cases in which application of the 
legal standard would necessarily lead reasonable officials 
in the defendant’s situation to but one inevitable 
conclusion. It is the latter we are most interested in here.

Lassiter explicitly left "open the possibility that 
occasionally the words of a federal statute or federal 
constitutional provision will be specific enough to

9See Dolihite v. Maughon, 74 F.3d 1027, 1048 (11th 
Cir. 1996) (examining the facts to determine whether or 
not the act alleged in that case was "as egregious as 
[previous] cases, or more so").

In other words, if cases make clear that conduct x 
is constitutionally or statutorily forbidden, then the 
law is certainly "clearly established" with respect to 
conduct y  if y is worse than x relative to the reason 
x is unconstitutional or otherwise illegal. And this 
is so even if—or especially if—the facts of y  differ 
considerably from the facts of x: It begins to seem 
as if to survive a motion to dismiss a suit on 
grounds of immunity the plaintiff must be able to 
point to a previous case that differs only trivially 
from his case. But this cannot be right. The 
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 liability because no 
previous case had found liability in those 
circumstances.

K H . v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990).



51a

establish the law applicable to particular circumstances 
clearly and to overcome qualified immunity even in the 
absence of case law." Lassiter, 28 F.3d at 1150 n. 4. It, of 
course, follows that if a federal statute or federal 
constitutional provision can clearly establish the law in the 
absence of case law, the Supreme Court’s pronouncement 
of a constitutional test could also be specific enough to do 
so.

That the law can be clearly estabhshed where the 
application of a constitutional standard leads to an 
inevitable conclusion that the acts are unconstitutional 
should be obvious given the purposes of qualified 
immunity. If a government official with even the most 
rudimentaiy, not to say reasonable, understanding of 
relevant law would have no doubt that his conduct was 
unconstitutional or otherwise illegal, then it would be 
perverse to immunize him from liability simply because 
his behavior was more egregious than any on record or 
because this court never before faced a similar set of 
facts.

Our circuit recently applied this very reasoning. In 
McMillian v. Johnson, 88 F.3d 1554 (11th Cir. 1996), the 
plaintiff contended that, by placing him on deathrow 
while he awaited trial, local officials had violated his due 
process right to be free from punishment as a pretrial 
detainee. The lack of cases with materially similar facts 
did not preclude the McMillian court from denying 
summary judgment to the defendants on qualified 
immunity grounds. The court found that the Supreme 
Court’s constitutional directive as set forth in Bell v. 
Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 
(1979)--that officials cannot impose conditions on pretrial 
detainees with an intent to punish-would have put any



52a

reasonable official on notice that the acts alleged in 
McMillian violated clearly established law:

[F]or the law to be clearly established, a court 
need not have found the very action in question 
unlawful; what is essential is that the action’s 
unlawfulness be apparent in light of pre-existing 
law. Jordan [v. Doe], 38 F.3d [1559,] 1566 [ (11th 
Cir. 1994) ]. We do not view the absence of a case 
factually similar to the extraordinary allegations in 
this case as an indication that the law was not 
clearly established that confining a pretrial 
detainee on death row to punish him is 
unconstitutional. Bell’s prohibition on any pretrial 
punishment, defined to include conditions imposed 
with an intent to punish, should have made it 
obvious to all reasonable officials in [defendants’] 
place that holding [plaintiff] on death row to 
punish him before he was tried violated [his] due 
process rights.

McMillian, 88 F.3d at 1565 (emphasis added). Thus, 
McMillian held that, at least for purposes of the case 
before it, the Bell rule clearly established the law.

Defendants next argue that even if a constitutional 
standard might clearly establish the law in some 
circumstances, the relevant law can virtually never be 
clearly established by cases that employ balancing tests. 
{New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. 
Ed. 2d 720 (1985), the case governing application of the 
Fourth Amendment to school searches, uses a balancing 
test.) The premise appears to be that balancing tests, by 
their nature, do not stake out a bright enough line to put



53a

public officials on notice of when their conduct violates a 
constitutional right.

The defendants’ premise is flawed. It is 
indisputable that cases applying the balancing test may 
well make its application to allegedly unconstitutional 
conduct entirely determinate.10 * Thus, there never has 
been any doubt that public officials can be stripped of 
qualified immunity when, for instance, they conduct a 
warrantless search that could not reasonably be thought 
supported by probable cause or exigent circumstances.11

10As Lassiter reiterated:

"If case law, in factual terms, has not staked out a 
bright line, qualified immunity almost always 
protects the defendant." Post v. City o f Ft. 
Lauderdale, 1 F.3d 1552, 1557 (11th Cir. 1993), 
modified, 14 F.3d 583 (11th Cir. 1994); accord Kelly 
v. Curtis, 21 F.3d 1544, 1554 (11th Cir. 1994). 
"The line is not to be found in abstractions-to act 
reasonably, to act with probable cause, and so 
forth-but in studying how these abstractions have 
been applied in concrete circumstances." Barts [v. 
Joyner], 865 F.2d [1187,] 1194 [(11th Cir. 1989), 
cert, denied, 493 U.S. 831, 110 S. Ct. 101, 107 L. 
Ed. 2d 65 (1989)].

Lassiter, 28 F.3d at 1150.

nSee, e.g, Anderson, 483 U.S. at 635, 107 S. Ct. at 
3034 (assuming this to be true while emphasizing that the 
converse is also true); Williamson v. Mills, 65 F.3d 155, 
157-58 (11th Cir. 1995) (no qualified immunity for police



54a

And, although it is true that the mere statement of a 
balancing test (or other flexible legal standard) will 
usually be insufficient to determine whether particular 
conduct is clearly illegal, such a test, like other legal 
standards or statutes, may be sufficient to clearly establish 
the law in some, albeit rare, circumstances. See Oladeinde 
v. City o f Birmingham, 963 F.2d 1481, 1487 (11th Cir. 
1992) (concluding, without citing a materially similar case, 
that application of the balancing test in that case would 
lead to the "inevitable conclusion" that defendants violated 
the Constitution) (Edmondson, J.), cert, denied, 507 U.S. 
987, 113 S. Ct. 1586, 123 L. Ed. 2d 153 (1993).

officer on Fourth Amendment false arrest claim where 
"pre-existing law compels the conclusion" that officer 
lacked "even arguable probable cause"); Hartsfield v. 
Lemacks, 50 F.3d 950, 955 (11th Cir. 1995) (no qualified 
immunity for police officer who failed to make reasonable 
effort to identify residence to be searched where "all 
reasonable police officers should have known" that this 
violated the law); Swint v. City of Wadley, 51 F.3d 988, 
996-1000 (11th Cir. 1995) (no qualified immunity for 
police officers who conducted warrantless searches and 
seizures without, in light of the facts of analogous Fourth 
Amendment cases, "even arguable probable cause"); Von 
Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990) 
("[Ajpplying the qualified immunity test in the context of 
Plaintiffs alleged unlawful arrest, we must determine 
whether reasonable officers in the same circumstances and 
possessing the same knowledge as the Defendants could 
have believed that probable cause existed to arrest 
Plaintiff. . . .").



55a

It is, therefore, misleading to speak of a separate 
category of cases in which there is no "bright-line" rule 
that "puts the reasonable public [official] on notice of a 
constitutional violation," but in which the official is 
nonetheless not entitled to qualified immunity when 
application of a balancing test "would lead to the 
inevitable conclusion" that the official’s conduct was 
unconstitutional. Dartland v. Metropolitan Dade County, 
866 F.2d 1321, 1323 (11th Cir. 1989) (acknowledging a 
balancing test will lead to the inevitable conclusion that a 
defendant’s conduct violated clearly established law in 
some cases). If the facts of other cases applying the 
balancing test or the test itself leads to such an "inevitable 
conclusion," then the "bright-line" has been drawn.

IV.

The qualified immunity question presented by this case 
is whether Fourth Amendment law "clearly established" 
that the search of Cassandra and Onieka conducted by 
Herring and Sirmon was unconstitutional.12 The 
application of the Fourth Amendment to searches of

nHarlow requires that the defendant official prove 
that "he was acting within the scope of his discretionary 
authority when the allegedly wrongful acts occurred," 
before the burden of proof shifts to the plaintiff to 
demonstrate that the defendant violated clearly 
established law. Zeigler v. Jackson, 716 F.2d 847, 849 
(11th Cir. 1983). Plaintiffs in this case concede that 
Herring and Sirmon were acting within the scope of their 
discretionary authority at the time of the search.



56a

public school students is13 governed by New Jersey v. 
T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 
(1985). T.L.O., a 14-year-old high school student, was 
spotted by a teacher smoking in the bathroom. When 
questioned by a school administrator, T.L.O. denied 
smoking in the bathroom and claimed that she did not 
smoke at all. The administrator demanded and opened 
T.L.O.’s purse, discovering a pack of cigarettes. Reaching 
into the purse for the cigarettes, the administrator noticed 
a package of rolling papers. The administrator, 
suspecting that further evidence of drug use might be 
found, proceeded to search the purse thoroughly, 
revealing marijuana and various implements of dealing the 
drug. 469 U.S. at 325-36, 105 S. Ct. at 735-36.

After deciding that the Fourth Amendment applies 
to searches of public school students, the Court held that 
the search of T.L.O.’s purse was not unreasonable. 
Balancing "the child’s interest in privacy" against "the 
substantial interest of teachers and administrators in 
maintaining discipline in the classroom and on school 
grounds," id. at 338-39, 105 S. Ct. at 741, the Court 
concluded that the reasonableness of a school search was 
determined by a two-part inquiry—whether it was (1) 
justified at its inception and (2) permissible in scope-with  
no requirement of probable cause. Id. at 339-43, 105 S. 
Ct. at 742-43. In particular, the Court specified the 
following standards:

13Although we use the present tense here, our analysis 
of the relevant law is historical: we are interested in the 
state of the law at the time of the alleged unconstitutional 
conduct, May 1, 1992.



57a

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.

Id. at 341-42, 105 S. Ct. at 743.

We apply these precepts to the case at hand. In 
doing so, we note that this circuit, before May 1, 1992, 
had not had the opportunity to apply T.L.O.’s standards 
in factually similar circumstances. The lack of Eleventh 
Circuit case law does not, however, preclude us from 
determining whether the Supreme Court’s directive itself 
would have led reasonable school officials to the 
inevitable conclusion that their behavior violated the 
Constitution.

We will assume that the searches of Cassandra and 
Onieka in this case comprised a single, step-by-step search 
that was justified at its inception.14 For the purposes of

14Alternatively, we could conceptualize what occurred 
as a series of separate searches, each requiring 
independent justification at its inception. Cf T.L.O., 469 
U.S. at 341-49, 105 S. Ct. at 743-46 (Court treated the 
initial investigation of T.L.O.’s purse for cigarettes and 
the continued investigation after rolling papers were



58a

this case, we will assume that their classmate’s accusation 
may have provided "reasonable grounds" for searching 
Onieka’s backpack and, perhaps, even for requiring the 
children to remove their shoes and socks. We will also 
assume that these first stages of the overall search were 
reasonable in scope. It is the following stages, the 
restroom searches, and their expansion in scope that 
create the glaring problem.

Under T.L.O., the two restroom searches in which 
Cassandra and Onieka were required to undress were 
unconstitutional unless they were "‘reasonably related in 
scope to the circumstances which justified the interference 
in the first place.’" T.L.O., 469 U.S. at 341, 105 S. Ct. at 
743 (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 
1879, 20 L. Ed. 2d 889 (1968)). More specifically, in 
order for the scope of these searches to be permissible, 
"the measures adopted" must have been "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. at 342, 105 S. Ct. at 743.

Thus, T.L.O. requires us to consider several factors 
in determining whether the scope was permissible: 
whether there was a reasonable relationship between the

spotted as separate searches, concluding that each was 
justified at its inception). As indicated by our discussion 
later in the text where we address whether the search was 
reasonable in scope, the two restroom searches probably 
were not justified at their inceptions. We choose not to 
rest our holding on this inquiry, however, because the 
more blatant injustice in this case is the ultimate scope of 
the search conducted by Herring and Sirmon.



59a

scope of the search (the measures adopted) and the 
objectives of the search; the intrusiveness of the search 
in light of the age and sex of the student; and the 
intrusiveness of the search in light of the nature of the 
infraction.

To determine whether the scope of a search is 
reasonably related to its objectives, we must examine the 
measures adopted here. Strip searches are among the 
most intrusive of searches.15 This fact is self-evident. As 
this court, in the course of its most thorough 
consideration of the constitutionality of strip searching 
minors, has recognized: "It is axiomatic that a strip search 
represents a serious intrusion upon personal rights. In 
Mary Beth G. [v. City o f 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).16 Moreover, the

15We recognize that some types of strip searches, such 
as body cavity searches, are even more intrusive than the 
search conducted in this case. We also note that a strip 
search performed by someone of a different gender from 
the person searched will be considered significantly more 
intrusive than a same-sex search.

16Justice was decided a few days after the events at 
issue here and, therefore, does not clearly establish the 
law in this case for qualified immunity purposes. We cite 
the case not as an illustration of clearly established law 
but as evidence that the point at issue here-that strip 
searches are inherently among the most intrusive of



60a

perceived invasiveness and physical intimidation intrinsic 
to strip searches may be exacerbated for children. See 
Justice, 961 F.2d at 192 ("[cjhildren are especially 
susceptible to possible traumas from strip searches") 
(internal quotation marks omitted). Consequently, for the 
extreme invasion of privacy inflicted by a strip search to 
be "reasonably related to the objectives of the search," 
these objectives must carry tremendous weight.17 * 11

searches-is self-evident, as the Justice court itself 
concluded.

11 See Cornfield, v. Consolidated High Sch. Dist. No. 230, 
991 F.2d 1316, 1321 (7th Cir. 1993) ("[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.").

T.L.O.’s sliding scale for reasonableness 
determinations is an inherent part of Fourth Amendment 
jurisprudence in those cases, like T.L.O., where, although 
probable cause is not required, a "reasonableness" 
standard still applies. T.L.O., 469 U.S. at 341, 105 S. Ct. 
at 742-43, cites Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 
20 L. Ed. 2d 889 (1968). Terry teaches that "[t]he scope 
of the search must be strictly tied to and justified by the 
circumstances which rendered its initiation permissible." 
392 U.S. at 19, 88 S. Ct. at 1878 (citations and internal 
quotation marks omitted). See also, e.g., United States v. 
McMurray, 747 F.2d 1417, 1420 (11th Cir. 1984) 
(requiring, in the customs context, that as intrusiveness in-



61a

We next look at the objectives of the search and 
whether they were reasonably related to the methods 
chosen, i.e., whether the search was "‘reasonably related 
in scope to the circumstances which justified the 
interference in the first place.’" T.L.O., 469 U.S. at 341, 
105 S. Ct. at 743 (quoting Terry v. Ohio, 392 U.S. 1, 20, 88
S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968)).* 18 In 
applying this rule in Terry, the Court determined whether 
the search was "confined in scope to an intrusion 
reasonably designed to discover" the items sought and 
"confined . . . strictly to what was minimally necessary" to 
locate those items. Terry, 392 U.S. at 29-30, 88 S. Ct. at 
1884-85.

We must decide, therefore, whether the extreme 
intrusiveness involved in the strip searches here was 
"reasonably related" to the objective of discovering the 
allegedly stolen cash. Because the possibility of finding 
the cash in the two restroom searches was slight (at best), 
we conclude that the extreme measures adopted here

creases, the amount of suspicion necessary to justify the 
search must correspondingly increase).

18This standard also suggests that we look to the 
seriousness of the offense or the danger the search seeks 
to prevent to determine whether the methods were 
reasonably related to the objectives of the search. For 
clarity’s sake, we have confined these considerations to 
that part of our opinion discussing T.L.O.’s requirement 
that the search not be "excessively intrusive in light of the 
. . . nature of the infraction." 469 U.S. at 342, 105 S. Ct. 
at 743. See discussion infra and note 20.



62a

were not reasonably related to the objectives of the 
search.

A  second-grader reported $7 missing. Her teacher 
never asked her whether she might have lost the money 
or forgotten that she spent it. Fannin simply asked 
another student whether she knew anything about the 
missing money. That student reported that Cassandra 
had taken the money and put it in Onieka’s backpack. 
Fannin never asked that student how she knew, whether 
she had seen the event, or, if not, who told her about it. 
And there is no evidence that Onieka or Cassandra had 
stolen anything before. The failure to locate the money 
in Onieka’s backpack, where it was reportedly stashed, 
casts further doubt on the reliability of the informant’s 
story and, thus, the justification for the investigation. 
Furthermore, Fannin did not check Cassandra’s bag or 
any other area of the room before handing the 
investigation over to Herring.

When Herring accepted responsibility for the 
investigation, she did not ask Fannin about any of the 
details, including who had originally accused the girls or 
how the accuser knew the girls had taken the money. All 
she knew was that the girls had been accused of taking $7 
and that they, in turn, accused each other and Anthony 
Jemison of stealing the cash. With only this evidence in 
hand and without seeking any specifics from the children 
about the theft, she made the girls and Anthony remove 
their shoes and socks.19 When the money was not found

19It is at least questionable whether Herring had 
reasonable grounds for requiring Cassandra and Onieka 
to remove their shoes and socks.



63a

there, she proceeded, with Sirmon, to take the girls to the 
restroom to search them even though no one had 
reported that either of the girls had hidden the money in 
her underclothing and there was no evidence that the girls 
had ever hidden money or contraband in their clothing 
before. The entire restroom search was apparently 
premised on the fact that one of the girls had been to the 
restroom before the money was reported missing. If this 
were the reason for concluding the money was hidden in 
one of the girl’s underclothing, Sirmon and Herring might 
have had arguable, albeit slight, grounds for believing that 
a first search of that girl’s underclothing would lead to 
evidence of the theft. There were no grounds, however, 
for taking both girls to the restroom.

After finding nothing in the girls’ underpants 
during the first search, Sirmon and Herring took them to 
the restroom a second time. If the method chosen in the 
first restroom search was highly unlikely to lead to 
evidence, then requiring the girls to undress a second time 
was completely unlikely to end in discovery of the cash. 
Having looked in the girls’ underpants, the probability 
that the money could have been hidden anywhere else on 
the children’s persons (especially after a walk to and from 
the principal’s office) was almost nil. Thus, even at this 
stage of the inquiry it is difficult to believe that any 
reasonable school official could surmise that it was 
constitutionally permissible to conduct these two highly 
intrusive searches where there was such a negligible 
possibility that any evidence of the infraction would be 
found. T.L.O., however, gives us further guidance.

Under T.L.O., the nature of the infraction is 
another factor to be weighed in determining the 
permissible intrusiveness or scope of a search. One can



64a

imagine the range of possible school-place infractions as 
a spectrum with the most serious infractions falling at one 
end. While reasonable school officials would disagree 
about exactly where the infraction at issue here might fall 
along the spectrum, the following generalizations are 
certain. It is obvious that an infraction that presents an 
imminent threat of serious harm—for example, possession 
of weapons or other dangerous contraband-would be the 
most serious infractions in the school context.20 Thus,

20In fact, strip searches are probably only permissible 
in the school setting, if permissible at all, where there is 
a threat of imminent, serious harm. Writing separately in
T. L.O., Justice Stevens made clear that the point of the 
majority’s Fourth Amendment standard was to avoid 
litigation over the routine, limited searches necessary to 
maintain school discipline, while "prohibit[ing] obviously 
unreasonable intrusions of young adults’ privacy." 469
U . S. at 381, 105 S. Ct. at 764. To illustrate the type of 
egregious school search that would noncontroversially 
violate the Fourth Amendment, Justice Stevens gave this 
example:

One thing is clear under any standard—the 
shocking strip searches that are described in some 
cases have no place in the schoolhouse. See Doe 
v. Renfrow, 631 F.2d 91, 92-93 (CA7 1980) ("It 
does not require a constitutional scholar to 
conclude that a nude search of a 13-year-old child 
is an invasion of constitutional rights of some 
magnitude"), cert, denied, 451 U.S. 1022, 101 S. Ct. 
3015, 69 L. Ed. 2d 395 (1981); Bellnier v. Lund, 
438 F. Supp. 47 (NDNY 1977); People v. D., 34 
N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466



65a

(1974); M.J. v. State, 399 So. 2d 996 (Fla. App. 
1981). 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.

Id. at 382 n. 25, 105 S. Ct. at 764 n.25 (Stevens, J., 
concurring in part and dissenting in part).

Eleventh Circuit caselaw confirms Justice Stevens’s 
understanding of the T.L.O. standard. Although no case 
involving a student strip search had been presented to this 
court before the incidents in this case occurred, less than 
two weeks after this case was decided, we took the 
opportunity to express our view of such searches. In 
Justice, this court held that law enforcement officials may 
subject a juvenile who is lawfully in custody to a limited 
strip search based upon reasonable suspicion that he or 
she is concealing a weapon or drugs. 961 F.2d at 193. In 
reaching this conclusion, however, the Justice court was 
careful to emphasize the limited scope of its holding and 
to distinguish other situations in which a strip search 
would be unconstitutional. Because the strip search in 
Justice was performed by law enforcement officers on a 
person lawfully in custody, the court considered itself 
bound by Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 
L. Ed. 2d 447 (1979), which had held that the unique 
security concerns of detention facilities could justify strip 
searches of pretrial detainees. Justice, 961 F.2d at 193. 
On the other hand, in stressing the intrusiveness of strip 
searches, the Justice court pointed to a context in which 
a strip search would certainly violate the Fourth 
Amendment: when it is inflicted on a student in a



66a

situation that presents no danger of imminent and serious 
harm.

Picking up where Justice Stevens in T.L.O. left off, 
the Justice court favorably cited and discussed Doe v. 
Renfrow, 631 F.2d 91 (7th Cir. 1980), cert, denied, 451
U.S. 1022, 101 S. Ct. 3015, 69 L. Ed. 2d 395 (1981). 961 
F.2d at 193. The Seventh Circuit in Doe held that a strip 
search of a thirteen-year-old student by school officials 
without reasonable suspicion to believe she possessed 
drugs clearly violated the Fourth Amendment, foreclosing 
qualified immunity for the school officials. Justice 
reaffirms and embraces this conclusion as obvious:

[Doe held that] the strip search of a thirteen-year- 
old female without "reasonable cause" to believe 
she possessed contraband on her person 
constituted an "invasion of constitutional rights of 
some magnitude." Doe, 631 F.2d at 93. The 
Seventh Circuit then statedf,] "More than that: it is 
a violation of any known principle of human 
decency. . . . [T]he conduct herein described 
exceeded the ‘bounds of reason’ by two and a half 
country miles." Doe, 631 F.2d at 93.

Id. (bracketed alterations added).

Although these cases strongly support our position, 
we do not rely on them in reaching our holding in this 
case.

Even courts determining the constitutionality of 
strip searches of post-arrest detainees have looked to the



67a

these offenses would exist at one end of the spectrum. 
Thefts of valuable items or large sums of money would 
fall a little more toward the center of the spectrum. 
Thefts of small sums of money or less valuable items and 
possession of minor, nondangerous contraband would fall 
toward the opposite extreme of the spectrum. Such 
infractions would seldom, and probably never, justify the

probability that the detainee possesses dangerous 
contraband. See, e.g., Masters v. Crouch, 872 F.2d 1248, 
1253-55 (6th Cir.) (strip search of person arrested for 
traffic violation or other minor offense not associated with 
violence unreasonable absent individualized reasonable 
suspicion that arrestee is carrying a weapon or 
contraband), cert, denied, 493 U.S. 977, 110 S.Ct. 503, 107 
L. Ed. 2d 506 (1989); Jones v. Edwards, 770 F.2d 739 (8th 
Cir. 1985) (strip search of person arrested for refusing to 
sign summons regarding leash law violation 
unreasonable); Stewart v. Lubbock County, 767 F.2d 153 
(5th Cir. 1985) (strip searches of minor offenders awaiting 
bond unreasonable absent reasonable suspicion that they 
possess weapons or contraband), cert, denied, 475 U.S. 
1066, 106 S. Ct. 1378, 89 L. Ed. 2d 604 (1986); Mary Beth 
G. v. Chicago, 723 F.2d 1263, 1268-73, 1273 (7th Cir. 
1983) ("[Ejnsuring the security needs of the City by strip 
searching . . . was unreasonable without a reasonable 
suspicion by the authorities that either of the twin dangers 
of concealing weapons or contraband existed."); Logan v. 
Sheaiy, 660 F.2d 1007, 1013 (4th Cir. 1981) (strip search 
of arrested drunk driver unreasonable given that offense 
not associated with possession of weapons or contraband 
and no cause to believe that individual arrestee possessed 
either), cert, denied, 455 U.S. 942, 102 S. Ct. 1435, 71 L. 
Ed. 2d 653 (1982).



68a

most intrusive searches. It follows that the infraction at 
issue here, the theft of $7, while perhaps not a trespass to 
be taken lightly, is, nonetheless, an offense which would 
not justify a highly intrusive search, and certainly not 
where the likelihood of finding evidence of the offense 
was as weak as it was here.

T.L.O. also requires us to take the student’s age 
into consideration. The students in this case were 
extremely young, only second graders. The Supreme 
Court did not elaborate on how we should consider age. 
See, e.g., Cornfield, 991 F.2d at 1321 (discussing issue). 
Nevertheless, regardless of a student’s age, T.L.O. forbids 
school officials from undertaking the most intrusive of 
searches where the infraction is relatively minor and 
presents no threat of imminent danger and where it is 
highly unlikely that the search will turn up evidence of the 
infraction. To conclude otherwise would be to read 
T.L.O. such that it does not protect elementary school 
students at all.

Considered together, the factors identified in 
T.L.O.— the glaring disproportion between the objectives 
of the searches and the measures adopted and the trivial 
nature of the infraction—point unequivocally to the 
unreasonableness of the two restroom searches at issue 
here. Even if the T.L.O. reasonableness standard is 
indeterminate for a broad category of school searches, it 
indisputably prohibits strip searches of students in this 
situation.21 Sirmon and Herring, therefore, are not

21 Although we do not depend on the case law of other 
circuits in reaching this holding, we note that other courts 
have reached the same conclusion. See Tarter v. Raybuck,



69a

entitled to qualified immunity, because the T.L.O. 
standard would have led any reasonable school official in 
their circumstances to the inevitable conclusion that the 
conduct charged here violated the Constitution.

The line drawn in T.L.O. may not be bright enough 
to dictate the results of cases closer to the line, for 
example, cases in which there is a reasonable suspicion 
that a student has hidden on his or her person drugs or 
weapons.22 The facts presented at the summary

742 F.2d 977, 982 (6th Cir. 1984) ("Thus, for example, the 
authority of the school official [to maintain school 
discipline and order] would not justify a degrading body 
cavity search of a youth in order to determine whether a 
student was in possession of contraband in violation of 
school rules."), cert, denied, 470 U.S. 1051, 105 S. Ct. 1749, 
84 L. Ed. 2d 814 (1985); Oliver v. McClung, 919 F. Supp. 
1206, 1216-19 (N.D. Ind. 1995) (in light of Doe v. Renfrow 
and T.L.O., law clearly established that strip search of 
seventh-grade girls seeking missing $4.50 violates Fourth 
Amendment); Bellnier v. Lund, 438 F.Supp. 47, 52-54, 54 
(N.D.N.Y. 1977) (strip searches of students in fifth grade 
class seeking missing $3 unreasonable "in view of the 
relatively slight danger of the conduct involved (as 
opposed to drug possession, for example), the extent of 
the search, and the age of the students involved").

22See Cornfield v. Consolidated High Sch. Dist. No. 230, 
991 F.2d 1316, 1320-23, 1320 (7th Cir. 1993) (holding 
strip search of high school student based on reasonable 
suspicion that he possessed drugs does not violate Fourth 
Amendment, while making clear that a "a highly intrusive 
search in response to a minor infraction" would be



70a

judgment stage in the case now before us, however, are 
clearly far to the unconstitutional side of that line. 
Cassandra and Onieka were eight-year-old elementary 
school students. They were accused of stealing $7 that 
may or may not have been missing, solely on the basis of 
the accusation of a second-grade classmate; there was no 
evidence that they had ever before stolen money or 
hidden anything in their clothing. Even if the girls had 
possessed the cash (which they apparently did not), their 
infraction would have threatened no imminent or serious 
harm. Nevertheless, even after investigations of Onieka’s 
backpack and both girls’ shoes and socks had revealed no 
money and without making any further inquiries into the 
matter, Herring and Sirmon twice forced Cassandra and 
Onieka to undress and submit to inspection. Reasonable 
teachers or school officials in their positions could not 
have believed that the Fourth Amendment, in light of 
T.L.O., would allow such a search. We conclude, based 
on the facts presented at the summary judgment stage, 
that Herring and Sirmon acted in blatant disregard of the 
Fourth Amendment. Consequently, they are not entitled 
to qualified immunity.

V.

The district court’s orders granting summary 
judgment for defendants Herring and Sirmon on the basis 
of qualified immunity from plaintiffs’ § 1983 Fourth 
Amendment claims are REVERSED. The district court’s

unconstitutional under T.L.O.); Williams v. Ellington, 936 
F.2d 881 (6th Cir. 1991) (granting qualified immunity to 
school officials who strip searched two high school 
students for drugs on at least reasonable suspicion).



71a

other summary judgment orders in this case are 
AFFIRMED.

BIRCH, Circuit Judge, dissenting:

I respectfully dissent. Although I am outraged by 
the conduct of the schoolteachers in this case and am 
convinced that they left their better judgment at home on 
May 1, 1992, I cannot conclude that these individuals 
understood or should have understood that the strip 
searches that they conducted were violative of the clearly 
established Fourth Amendment rights of these second- 
grade students. While it is easy to second-guess school 
personnel in a courthouse far removed from the tumult 
and tumble of the work-a-day world of the schoolhouse 
with the aid of twenty-twenty hindsight, the majority does 
a grave disservice to our law and to public servants in 
determining that these individuals violated the exceedingly 
limited constitutional rights of schoolchildren.1 See C.B. *

lrThe "special characteristics of elementary and 
secondary schools . . . make it unnecessary to afford 
students the same constitutional protections granted 
adults and juveniles in a nonschool setting." New Jersey v. 
T.L.O., 469 U.S. 325, 348, 105 S. Ct. 733, 746, 83 L. Ed. 
2d 720 (1985) (Powell, J., concurring). Because of their 
close association with each other and the necessary 
familiarity of teachers with students and authority over 
them, such schoolchildren "have a lesser expectation of 
privacy than members of the population generally." Id. 
The Supreme Court has stated that the T.L.O. decision 
determined that the "State’s power over schoolchildren is 
formally no more than the delegated power of their 
parents, . . . but indeed emphasized, that the nature of



72a

ex rel. Breeding v. Driscoll, 82 F.3d 383, 385 (11th Cir. 
1996). Furthermore, no policy had been formulated by 
the Talladega City Board of Education or the Graham 
Elementary School regarding student searches during the 
1991-1992 school year. Stolen money previously had been 
recovered through searches of students’ attire at Graham 
Elementary School.* 2 Moreover, as the district judge

that power is custodial and tutelary, permitting a degree 
of supervision and control that could not be exercised 
over free adults." Vemonia School Dist. 47J v. Acton, — 
U.S. — , — , 115 S. Ct. 2386, 2392, 132 L. Ed. 2d 564 
(1995) (upholding urinalysis drug testing for grade and 
high school students participating in athletic programs, 
including reasoning that public school children are 
required to have vaccinations and physical examinations).

2The record reveals at least two incidents at Graham 
Elementary School prior to the searches challenged in this 
case where students, suspected of stealing money, were 
required to remove their shoes and socks with the result 
that the money was found. One involved a black, male 
student accused of stealing $5; the principal had him 
remove his shoes and socks and located the money. 
Another instance concerned a white, male student 
accused of stealing $.50; the missing change was 
discovered when the student was asked to remove his 
shoes and socks. The record also includes evidence of a 
search for a missing calculator where a number of 
students, both black and white, were instructed to remove 
their jackets so that their pockets could be searched. 
Additionally, there were incidents of students removing 
shoes and socks, untucking and shaking their shirts, 
unzipping their pants, and one student stripping entirely



73a

ascertained, there was no binding, clearly established law 
that these schoolteachers violated in conducting the 
challenged strip searches.

"For 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

in the presence of school officials, a police officer, and his 
mother to search for contraband. Given this background 
of previously locating stolen money in students’ attire 
pursuant to varying degrees of supervised undress and, 
particularly, the location of stolen money after having 
suspected students remove their shoes and socks, the 
challenged searches conducted by the schoolteachers in 
this case were not totally unprecedented, as the majority 
suggests. Majority at 1045 n.19; see Driscoll, 82 F.3d at 
388 (finding that T.L.O. held that "school officials need 
only ‘reasonable grounds for suspecting’ that a search will 
turn up evidence that the student has violated either the 
law or school rules" (quoting T.L.O., 469 U.S. at 342, 105
S. Ct. at 743)); Alabama Student Party v. Student Gov’t 
A ss’n o f the Univ. of Alabama, 867 F.2d 1344, 1346 (11th 
Cir. 1989) (acknowledging that T.L.O. requires easing of 
the restrictions generally applicable to the Fourth 
Amendment in a school context); see also Lenz v. 
Winbum, 51 F.3d 1540, 1551 (11th Cir. 1995) (recognizing 
that the reasonableness or unreasonableness of a search 
under the Fourth Amendment is determined on a case-by­
case basis (citing T.L.O., 469 U.S. at 337, 105 S. Ct. at 
740)).



74a

is doing’ violates federal law."3 Lassiter v. Alabama A  & 
M  Univ., 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc) 
(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. 
Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987)) (emphasis 
added). The Lassiter court admonished that the facts of 
cases relied upon as precedent must be "materially 
similar"; "[pjublic officials are not obligated to be creative 
or imaginative in drawing analogies from previously 
decided cases." Id. at 1150 (quoting Adams v. St. Lucie 
County Sheriff’s Dept., 962 F.2d 1563, 1575 (11th Cir. 
1992) (Edmondson, J., dissenting), adopted en banc, 998 
F.2d 923 (11th Cir. 1993) (per curiam)) (alteration in 
original). If the standard for qualified immunity were 
whether preexisting law had established that the strip 
searches by the schoolteachers in this case, when they 
occurred, might have been unlawful under federal law, 
then the majority opinion might be correct. That 
standard, however-the "it might be unlawful" standard- 
according to the Supreme Court and repeated decisions 
of this court is not the proper standard. See Muhammad 
v. Wainwright, 839 F.2d 1422, 1425 (11th Cir. 1987) (”[A]t 
the relevant time, defendants, at best, had only some 
reason to suspect that their actions might be unlawful. 
Such a suspicion is inconsistent with the ‘clearly 
established’ standard enunciated by Harlow [v. Fitzgerald, 
457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)]

3"The qualified immunity standard ‘gives ample room 
for mistaken judgments’ by protecting ‘all but the plainly 
incompetent or those who knowingly violate the law.’ " 
Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 537, 
116 L. Ed. 2d 589 (1991) (quoting Malley v. Briggs, 475 
U.S. 335, 341, 343, 106 S. Ct. 1092, 1096, 1097, 89 L. Ed. 
2d 271 (1986)).



75a

and its progeny."); see also Davis v. Scherer, 468 U.S. 183, 
196, 104 S. Ct. 3012, 3020, 82 L. Ed. 2d 139 (1984) 
("[Ojfficials should not err always on the side of 
caution."); accord Lassiter, 28 F.3d at 1149; Lenz v. 
Winbum, 51 F.3d 1540, 1551 (11th Cir. 1995).

Indeterminacies, speculations, and predictions have 
no place in our qualified immunity law. Elementary 
schoolteachers, nonlawyers whose primary responsibilities 
are education and the daily administration of their 
classrooms, cannot be required to foresee how the 
Eleventh Circuit would apply Supreme Court precedent 
and decide this particular factual situation if presented. 
That would be not only an unprecedented but also an 
unreasonable standard. Accordingly, the majority’s 
reliance on New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 
733, 83 L. Ed. 2d 720 (1985), involving the purse search 
of a high school student and the discovery of contraband, 
is misplaced because T.L.O. is not factually similar to the 
strip searches that we review and cannot be clearly 
established law to resolve this case, much less dicta in
T.L.O.

Because of its "practical application," qualified 
immunity is judged by the conduct of government 
personnel at the time that they acted, "not by hindsight, 
based on later events." Lassiter, 28 F.3d at 1150; see 
Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534, 537, 
116 L. Ed. 2d 589 (1991) (per curiam) ("[T]he court 
should ask whether the agents acted reasonably under 
settled law in the circumstances, not whether another 
reasonable, or more reasonable, interpretation of the 
events can be constructed five years after the fact." 
(emphasis added)). On May 1, 1992, the date of the strip 
searches at issue in this case, there was no clearly



76a

established law regarding the unconstitutionality of strip 
searches of schoolchildren from the Supreme Court, the 
Eleventh Circuit, or the Alabama Supreme Court.4 See 
Courson v. McMillian, 939 F.2d 1479, 1498 n. 32 (11th Cir. 
1991) (holding that "clearly established" law for deciding 
qualified immunity in this circuit consists of effective 
decisions at the time of the challenged conduct by the 
United States Supreme Court, the Eleventh Circuit Court 
of Appeals, or the highest state court in the state where 
the case originated); accord Hamilton ex rel. Hamilton v. 
Cannon, 80 F.3d 1525, 1532 n. 7 (11th Cir. 1996); 
Haygood v. Johnson, 70 F.3d 92, 95 (11th Cir. 1995) (per 
curiam)-, D ’Aguanno v. Gallagher, 50 F.3d 877, 881 n.6 
(11th Cir. 1995).

Whatever bolstering of its decision the majority 
seeks to accomplish by the repetition of dicta in Justice v. 
City o f Peachtree City, 961 F.2d 188 (11th Cir. 1992), 
decided on May 14, 1992, is inappropriate. See Majority 
at 1044, 1046-47 n.20. Not only did that case involve the 
lawful, custodial strip search of a female high school 
student upon reasonable suspicion that she possessed 
contraband, but also Justice could not have been clearly 
established law for the subject strip searches of these

4The majority appears to be "interested in the state of 
the law at the time of the alleged unconstitutional 
conduct, May 1, 1992." Majority at 1043 n.13. Yet, the 
majority concedes that "this circuit, before May 1, 1992, 
had not had the opportunity to apply T.L.O.’s standards 
in factually similar circumstances," id. at 1043, and that 
"no case involving a student strip search had been 
presented to this court before the incidents in this case 
occurred," id. at 1046-47 n.20.



77a

second-graders that occurred thirteen days earlier. 
Equally inapplicable under our circuit definition of clearly 
established law as to the date of the questioned conduct 
is nonbinding case law of other federal circuit and district 
courts. Cf. id. at 1043 ("If the facts of other cases 
applying the balancing test or the test itself leads to such 
an ‘inevitable conclusion,’ then the ‘bright-line’ has been 
drawn."); see id. at 1047 & n. 21.

I agree that, for preexisting law to establish that a 
particular act is unlawful, it is not essential that the facts 
of the earlier case be identical to the facts surrounding 
the conduct that is being challenged as unlawful. For 
example, if a precedent holds that, under certain 
circumstances, it is unlawfully cruel to cut off two fingers, 
that precedent clearly would establish that it would be 
unlawful to cut off three fingers under the same 
circumstances. This case, however, has nothing to do with 
that kind of case law.5 In this case, no precedent is 
factually close enough to have given much guidance to 
these schoolteachers under the circumstances. Sitting en 
banc, we have said-over Judge Kravitch’s dissents-that 
public officials need not be able to draw analogies from 
earlier cases to avoid personal liability for damages. 
Lassiter, 28 F.3d at 1150; Adams, 998 F.2d at 923. For

sThe majority observes that some conduct is so 
egregious that no case needs to have recognized 
previously that such conduct violates federal law. 
Majority at 1041 n.9. Accepting this idea in principle, I 
am comfortable in saying that I think we face in this case 
no great act of pure evil (such as, to use the majority’s 
example, slavery), that might trigger this rare and narrow 
exception to the extremely broad rule.



78a

elementary schoolteachers to be competent in their jobs, 
it is not yet required that they think like a constitutional 
lawyer, much less like an activist one. Moreover, we have 
said repeatedly en banc—again in the face of Judge 
Kravitch’s dissents—that the cases serving as precedent, 
those that supposedly established the law applicable to the 
circumstances in which a defendant public official found 
himself, must be materially similar factually to the 
circumstances confronting the defendant public official if 
that earlier case law is to guide public officials sufficiently 
to place them in jeopardy of losing immunity. See 
Lassiter, 28 F.3d at 1149-51; Adams, 998 F.2d at 923.

No decision cited by the majority provides 
adequate precedent as clearly established law to guide the 
conduct of the schoolteachers in this case. Unlike many 
cases cited by the majority to support its decision, this 
case does not involve police officers or law enforcement 
personnel. This case is about schools. Significantly, it 
concerns a specific type of school, an elementary school.

A  high school and an elementary school are 
materially different places. The children in an elementary 
school are considerably younger and less mature, 
including less physically mature, than high school 
students. In elementary schools, the relationship between 
the teacher and students, who are young children, is much 
closer to that of parent and child than in high schools, 
where the students are approaching adulthood. In the 
first two or three grades in elementaiy school, the notion 
of in loco parentis, where teachers stand in the place of 
parents, has real meaning and a long and venerable



79a

tradition.6 For example, many a young schoolchild 
properly has been helped to change clothes, consisting of 
putting on or taking off clothes, by a schoolteacher.

The Supreme Court’s T.L.O. decision involved a 
teenage high school student, obvious violation of the 
established school rule against smoking, and a consequent 
purse search revealing contraband. These facts materially 
distinguish T.L.O. from this case. The Supreme Court’s 
opinion in T.L.O. was written against the background of 
the facts before it. While T.L.O. contains some general 
language to guide trial courts faced with searches by 
school employees, that standard is a broadly composed 
one: basically, it is a reasonableness test. The

6The Court has recognized that "school authorities 
act[] in loco parentis." Bethel School Dist. No. 403 v. 
Fraser, 478 U.S. 675, 684, 106 S. Ct. 3159, 3165, 92 L. Ed. 
2d 549 (1986).

Whether it should or should not do so, the 
American community calls upon its schools to, in 
substance, stand in loco parentis to its children for 
many hours of each school week.

Citizens expect and demand that their children be 
physically safe in the schools to whose supervision

they are consigned, and the citizenry is outraged if 
the schools are less than safe and orderly.

Ferrell v. Dallas Indep. School Dist., 392 F.2d 697, 704 
(5th Cir.) (Godbold, J., concurring), cert, denied, 393
U.S. 856, 89 S. Ct. 98, 21 L. Ed. 2d 125 (1968).



80a

"reasonableness, under all the circumstances" rule in 
T.L.O. gives little practical guidance to teachers facing 
facts unlike those in T.L.O. T.L.O., 469 U.S. at 341, 105 
S. Ct. at 742. As we explained en banc in Lassiter, an 
abstract standard is insufficient guidance until trial courts 
have demonstrated its application in various factual 
situations. Lassiter, 28 F.3d at 1150.

The facts of T.L. O. are too different from this case 
to have dictated to reasonable elementary schoolteachers 
that the searches conducted already had been clearly 
established as unlawful. This conclusion, that is, that 
preexisting law did not dictate to reasonable teachers that 
their conduct in this case was unconstitutional, seems 
particularly strong upon consideration that the Supreme 
Court, aside from college and university cases, has never 
held any search based on individualized suspicions of a 
student by schoolteachers, including the T.L.O. search, to 
be unlawful under federal law, and neither have we or the 
former Fifth Circuit. Consequently, no bright lines had 
been delineated to help the teachers in this case to know 
what to do.7

While I agree that, for preexisting law to dictate a 
result in a particular case, the facts need not be exactly 
the same, they must be considerably closer than the 
analogies that the majority uses. Clearly established, 
preexisting law is a pragmatic concept, which the Supreme

7Clearly, the facts and law in this case do not support 
the majority’s conclusion that the elementary 
schoolteachers were not entitled to qualified immunity 
because their challenged searches were "in blatant 
disregard of the Fourth Amendment." Majority at 1048.



81a

Court has stressed repeatedly. In my judgment, clearly 
established law means what it says, and our circuit cases 
teach that it means more than the majority of this panel 
seems to think that it means.

In conducting the challenged searches in this case, 
the schoolteachers might not have exercised good 
judgment or done what was right, but that is a very 
different concept from concluding that they violated 
clearly established federal law. The schoolteachers’ 
searches at issue in this case even may have violated the 
Fourth Amendment, but that conclusion is not 
unquestionably clear to me under our present circuit 
law.8 It does seem plain to me, given T.L.O.’s sliding

8Theft of money is hardly a trivial matter, and there 
was cause for suspicion in this case. Nevertheless, the 
schoolteachers and the students were female, and the 
search was done in a relatively private place, the girls’ 
restroom. I hasten to emphasize that conduct that may 
be constitutional also may be repugnant, ill-advised, and 
even outrageous. The strip searches in this case may have 
been offensive, but they did not violate clearly established 
constitutional law, when they occurred.

The thrust of the majority’s opinion seems to be an 
effort to diminish the importance of this court’s en banc 
decision in Lassiter. I cannot agree with this construction 
of a guiding circuit precedent. Inherently, en banc 
decisions are extremely important. This court does not go 
en banc casually. We do so "(1) when consideration by 
the full court is necessary to secure or maintain 
uniformity of its decisions, or (2) when the proceeding 
involves a question of exceptional importance." FED. R.



82a

scale of reasonableness in view of all of the circumstances 
and the specific situation confronting the school personnel 
in this case, that by no means was it already clearly 
established when the school personnel acted that their 
conduct was unlawful. To say otherwise, I respectfully 
submit, is to demote a common sense safeguard-clearly

App. P. 35(a). I believe that Lassiter went en banc on 
both grounds.

The majority stresses that Lassiter represented no "sea 
change" in the law of qualified immunity. Majority at 
1040. That statement is absolutely correct because the 
great majority of the judges of this circuit regularly were 
applying the principles set forth in Lassiter before Lassiter 
was published. See Lassiter, 28 F.3d at 1149 ("No new 
rules need to be announced to decide this case. But, for 
emphasis, we restate principles which do govern qualified 
immunity cases."). A  few judges of this court, however, 
were taking a significantly different approach to qualified 
immunity, an approach which was manifestly more hostile 
to public official defendants. In this sense, Lassiter marks 
a substantial change for those judges who thought that, 
and acted as if, the law was something different from the 
law that Lassiter reiterates.

Lassiter seems particularly important when one 
realizes that this court had made a previous en banc effort 
to declare the law of the circuit not long before. Adams, 
998 F.2d at 923. Informed observers refer to Lassiter as 
Adams II. When Adams proved ineffective to secure 
uniformity, the court promptly went en banc again and 
rendered Lassiter with its stronger and more definitive 
statements. In my view, Lassiter is the law.



83a

established law—to a legal fiction.

While explaining its decision, the majority has 
written many statements that conflict with the law of this 
circuit, as I understand it. I am not going to bicker, 
however. Whatever our precedents say, they speak for 
themselves. Looking chiefly at Lassiter, the district judge 
believed that the law of this circuit required him to grant 
qualified immunity. I think that the judge was right, and 
I would affirm the district court’s judgment.



84a

Order Granting Rehearing En Banc

(October 16, 1996)

Cassandra JENKINS, a minor, by her mother and next 
friend, Sandra HALL; Onieka McKenzie, a minor, by her 
mother and next friend, Elizabeth McKenzie,
Plaintiffs-Appellants,

v.
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.

No. 95-6243.

United States Court of Appeals,
Eleventh Circuit.

October 16, 1996.

Before HATCHETT, Chief Judge, and 
TJOFLAT, KRAVITCH, ANDERSON,



85a

EDMONDSON, COX, BIRCH, DUBINA, BLACK, 
CARNES and BARKETT, Circuit Judges.

Oct. 16, 1996

BY THE COURT:

A  member of this court in active service having 
requested a poll on whether this case should be reheard 
by the Court sitting en banc, and a majority of the 
judges of this court in active service having voted in 
favor of granting a rehearing en banc,

IT IS ORDERED that the above cause shall be 
reheard by this court en banc. The previous panel’s 
opinion is hereby VACATED.



86a

(September 22, 1994)

D istr ic t C ourt O rder

IN THE UNITED STATES DISTRICT COURT  
FOR THE NORTHERN DISTRICT OF ALABAMA  

EASTERN DIVISION

CASSANDRA JENKINS, a minor, ) 
et al.,

)
PLAINTIFFS,

)
v. CV 94-PT-739-E

)
TALLADEGA CITY BOARD OF 
EDUCATION, et al., )

DEFENDANTS. )

ORDER

The court recognizes that plaintiffs complaint and 
amended complaint allege violations of Title VI of the 
Civil Rights Act of 1964, 42 U.S.C. § 2000d, and Title IX 
of the Education Amendments of 1972, 20 U.S.C. § 1681, 
as well as violations of §1983. The court’s orders granting 
summary judgment to all individual defendants on the 
basis of qualified immunity were intended to address only 
§ 1983 claims based on violations of the Fourth 
Amendment via the Fourteenth Amendment. Those 
orders were not intended to apply to any possible claims 
against any individual defendants on other federal



87a

statutory bases. The court’s orders are amended to 
VACATE any dismissals of any federal claims other than 
said § 1983 claims based on alleged violations of the 
Fourth Amendment via the Fourteenth Amendment. The 
court has not addressed whether the qualified immunity 
doctrine applies to claims other than those which are 
constitutionally based. Further, the court has not 
addressed whether the other statutory claims can be 
maintained against individual employees of a school 
board.

DONE and ORDERED this 22nd day of 
September, 1994.

ZiZ_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _
ROBERT B. PROPST 

UNITED STATES DISTRICT JUDGE



88a

(September 15, 1994)

D istr ic t  C ourt M em orand u m  O p in ion

IN THE UNITED STATES DISTRICT COURT  
FOR THE NORTHERN DISTRICT OF ALABAMA  

EASTERN DIVISION

CASSANDRA JENKINS, a minor, ) 
et al.,

)
PLAINTIFF,

v. CV 94-PT-0739-E
)

TALLADEGA CITY BOARD OF 
EDUCATION, et al., )

DEFENDANT. )

MEMORANDUM OPINION

The court has reconsidered its earlier conclusion 
that defendants Melba Sirmon and Susannah Herring 
were not entitled to qualified immunity. The court’s sua 
sponte reconsideration was prompted by a recent series of 
Eleventh circuit Court cases which have addressed the 
doctrine of qualified immunity.1 These cases include 
Lassiter v. Alabama A  & M  Univ., 28 F.3d 1146 (11th Cir.

'The court gave the parties an opportunity to respond 
to the court’s suggested reconsideration. Defendants have 
responded. Plaintiffs have not.



89a

1994); Spivey v. Elliott, _____  F.3d ______  (11th Cir.
1994); Post v. City o f Ft. Lauderdale, 7 F.3d 1552 (11th 
Cir. 1993); and, even more recently, Belchar v. City of
Foley, Alabama, ______  F.3d ______  (11th Cir. 1994).
The court had also noticed a reference to Hansen v. 
Soldenwagner, 19 F.3d 573 (11th Cir. 1994) which provides 
that the case law of one circuit does not clearly establish 
the law. The court has also considered the earlier cited 
Eleventh Circuit case (see earlier memorandum) with 
reference to strip searches of juveniles accused of minor 
offenses.2 After reconsidering all of the foregoing, this 
court concludes that said defendants are entitled to 
qualified immunity as to the federal claims. The law was 
not clearly established in the Eleventh Circuit with regard 
to the conduct at issue. There is no "bright line." There 
is no reasonable inference that these defendants were 
plainly incompetent or that they knowingly violated clearly 
established law. This court concludes that it over credited 
Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980) and a 
Supreme Court footnote. A separate order will be filed.3

Justice v. City o f Peachtree City, 961 F.2d 188 (11th 
Cir. 1992). The court’s reference in that case to "strip 
searches [being]. . .  valuable law enforcement tools" could 
suggest to a reasonable school teacher that she was doing 
no wrong.

3For a possible question as to whether Doe v. Renfrow 
"clearly established" the law, see Cornfield v. Consolidated 
High School District No. 230, 991 F.2d 1316 (7th Cir. 
1993).



90a

This 14th day of September, 1994.

/s/ __________________ _
ROBERT B. PROPST 

UNITED STATES DISTRICT JUDGE



91a

(September 15, 1994)

D istr ic t C ourt O rder

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA 

EASTERN DIVISION

CASSANDRA JENKINS, a minor, ) 
et al.,

)
PLAINTIFF,

)
v. CV 94-PT-0739-E

)
TALLADEGA CITY BOARD OF 
EDUCATION, et al., )

DEFENDANT. )

ORDER

Upon reconsideration, the court DISMISSES the 
federal claims against defendants Melba Sirmon and 
Susannah Herring based on qualified immunity.1

‘The court has not considered any possible immunity 
as to state law claims.



92a

DONE and ORDERED this 14th day of 
September, 1994.

/s/ __________________________
ROBERT B. PROPST 

UNITED STATES DISTRICT JUDGE



93a

(August 17, 1994)

D istr ic t C ourt M em orandum  O p in ion

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA  

EASTERN DIVISION

CASSANDRA JENKINS, a minor, ) 
et al.,

)
PLAINTIFF,

)
v. CV 94-PT-0739-E

)
TALLADEGA CITY BOARD OF 
EDUCATION, et al., )

DEFENDANT. )

MEMORANDUM OPINION

This cause comes on to be heard on defendants’ 
Motion To Dismiss converted by the court to a Motion 
for Summary Judgment.1 The Adams case enunciates

lrfhis court has an obligation to, early on, consider 
such motions, particularly as they relate to assertions of 
qualified immunity. See Adams v. St. Lucie County 
Sheriff’s Dept., 998 F.2d 923 (11th Cir. 1993) adopting 
dissenting opinion at 962 F.2d 1563 (11th Cir. 1992). 
Qualified immunity relates to a defendant’s right not to 
stand trial.



94a

several standards which must be applied when trial courts 
consider qualified immunity assertions. These include 
that:

(1) Plaintiff bears the burden of showing that, at 
the time of the alleged incident, it was clearly established 
that the alleged conduct of the defendants2 violated a 
Constitutional right.

(2) Plaintiff cannot discharge his or her burden by 
making general conclusory allegations of some 
constitutional right or by stating broad legal truisms.

(3) Plaintiff must prove the existence of a clear, 
factually defined, well-recognized, particularized right of 
which the charged state actor should have known.

(4) The facts of cases relied upon must be 
materially similar.

(5) Public officials are not obligated to be creative 
or imaginative in drawing analogies from previously 
decided cases.

(6) District courts cannot "clearly establish" law.

(7) Defendants bear no burden to show that the 
law is unsettled.

2The court is, of course, considering only defendants 
sued in their individual capacities with reference to 
qualified immunity assertions.



95a

(8) General propositions of law are "just not 
helpful."

On July 28, 1994, the court directed the plaintiffs 
to specifically state what Constitutional right was violated 
by each individual defendant and to cite clearly 
established law that should have caused the defendant to 
believe that his or her actions were unlawful in light of 
the information possessed by the defendant at the time 
the conduct occurred. On August 8, 1994, plaintiffs filed 
a response to the court’s order. The court will not repeat 
all the statements in the plaintiffs’ filing, but will address 
each defendant separately.3

James Braswell

Alleged facts.

1. Member of board.

2. Responsible for ensuring that "schools within the 
jurisdiction of the Board established and followed 
disciplinary policies that were fairly administered and that

3Since the Talladega City Board of Education (Board) 
is named as a defendant, the court will dismiss all claims 
against all individual defendants in their "official 
capacities." Busby v. City o f Orlando, 931 F.2d 764, 776 
(11th Cir. 1991). It is not clear why some Board members 
were sued only in their official capacities. Plaintiffs have 
withdrawn their claims against defendant Ray Miller, 
individually. Thus the "individual" capacity claims to be 
considered are those against defendants Braswell, 
O’Brien, Nelson, Sirmon and Herring.



96a

did not violate established constitutional principles." 
There was no such policy. Further, he condoned the 
actions of Herring and Sirmon by failing to discipline 
them.4

Cited law.

The court will not repeat the law cited by plaintiffs. 
Suffice it to say it does not address the issue of whether 
Braswell, as a Board member, had the Constitutional duty 
to establish a policy which would have foreclosed the 
possibility of the alleged violations. Nor is any law cited 
with reference to alleged condoning of said acts. If 
plaintiffs’ attorneys cannot locate such law, after notice 
and research,5 Braswell could not have been expected to 
know that the law was "clearly established." The claims 
against defendant James E. Braswell will be dismissed.

Michael O’Brien

For same reasons as to defendant Braswell, the 
claims against defendant Michael O’Brien will be 
dismissed.6

4The court does not reach the issue of whether the 
latter allegation involves a claim that resulted in any 
injury to plaintiffs.

Presumably some research even before filing the 
action.

Plaintiffs adopted their statements with reference to 
Braswell as their response with reference to O’Brien. 
Although Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980) 
suggests some possible liability against a principal, board



97a

Crawford Nelson

The ruling as to Nelson is even more obvious. No 
particular law has been cited to support the argument that 
Nelson should have known that he had the responsibility 
to train teachers not to strip search or of informing 
parents "when their children’s constitutional rights have 
been violated." As with Braswell and O’Brien, plaintiffs 
have cited only general, conclusory law related to the act 
of strip searching. The claims against defendant Crawford 
Nelson will be dismissed.7

Melba Sirmon

Defendant Sirmon is alleged to have personally 
participated in the strip searching. Although it might be 
ludicrous to suggest that Sirmon had an obligation to

members, etc., the basis for this alleged liability is not 
stated. Here, neither the Board members nor the 
principal are alleged to have created a policy which 
affirmatively authorized the alleged conduct. Nor is it 
alleged that they participated therein. See Brown v. 
Crawford, 906 F.2d 667, 671 (11th Cir. 1990) which holds 
that in order to put a supervisor on notice of need to 
protect against abuses, "The deprivations that constitute 
widespread abuse sufficient to notify the supervising 
official must be obvious, flagrant, rampant and of 
continued duration. . . ." There is no such suggestion 
here.

7If there is any doubt about the "particularized" 
element, see Adams, supra and Wright v. Whidden, 951 
F.2d 297 (11th Cir. 1992).



98a

survey Seventh Circuit cases, apparently she had 
constructive knowledge of this case and, apparently, it 
"clearly established the law." See Doe v. Renfrow, 631 F.2d 
91 (7th Cir. 1980); cert, denied 451 U.S. 1022 (1981), 
Justice v. City of Peachtree City, 961 F.2d 188 (11th Cir. 
1992) involved a juvenile in custody after a lawful arrest. 
The court held that law enforcement officers may conduct 
a strip search of a juvenile in custody, even for a minor 
offense, based upon reasonable suspicion to believe that 
the juvenile is concealing contraband. The court stated, 
"It is axiomatic that a strip search represents a serious 
intrusion upon personal rights." After citing Doe v. 
Renfrow, supra, the Eleventh Circuit stated, in the context 
of that case, "Nevertheless, strip searches are valuable law 
enforcement tools. . . ." This court does not conclude 
that, as to a school setting, Justice dilutes the holding in 
Doe v. Renfrow. See also Good v. Dauphin County Social 
Services, etc.. 891 F.2d 1087 (3d Cir. 1989); Tarter v. 
Raybuck, 742 F.2d 977 (6th Cir. 1984); and Darryl H. v. 
Coler, 801 F.2d 893 (7th Cir. 1986). Particularly see New 
Jersey v. T.L.O., 469 U.S. 325, 382 n. 25 (1985). The 
motion will be denied as to defendant Melba Sirmon.

Susannah Herring

For the same reasons discussed above as to 
defendant Sirmon, the motion will be denied as to 
defendant Herring.

The court also required the parties to specifically 
address the claim against the Talladega City Board of 
Education. The Board is, of course, not entitled to a 
qualified immunity assertion.



99a

The Board filed a response to the court’s order. 
After considering the response, the court cannot 
determine, as a matter of law, that the Board did not 
delegate the final policy making authority as to strip 
searching to others. The Board’s motion will be denied.8

This 17th day of August, 1994.

/s/ ______ ____________________ _
ROBERT B. PROPST 

UNITED STATES DISTRICT JUDGE

8The attachment to the Board’s response includes a 
statement that "Each school shall adopt their [sic] own 
rules . . . ." (See 19 on page 3 or 20 of "Policy on 
Discipline").



100a

District Court Order

(August 17, 1994)

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA  

EASTERN DIVISION

CASSANDRA JENKINS, a minor, ) 
et al.,

)
PLAINTIFF,

)

TALLADEGA CITY BOARD OF 
EDUCATION, et al., )

CV 94-PT-0739-E

DEFENDANT. )

ORDER

In accordance with a Memorandum Opinion filed 
contemporaneously herewith, all claims against all 
defendants, except the claims against defendants Sirmon 
and Herring in their individual capacities, and the claims 
against the Talladega City Board of Education, are 
DISMISSED, WITH PREJUDICE.9

9The dismissal includes both federal and state law 
claims. As to the state law claims, there is no suggestion 
that any defendants other than Sirmon and Herring 
personally participated. If plaintiffs have evidence



101a

DONE and ORDERED this 17th day of August,
1994.

M __________________ _ _ ______________
ROBERT B. PROPST 

UNITED STATES DISTRICT JUDGE

otherwise, they should call it to the court’s attention 
within 10 days. As to Sirmon, Herring and the Board, the 
court DENIES the motion as to all claims.