Jenkins ex rel. Hall v. Talladega City Board of Education

BIRCH, Circuit Judge: This ease 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 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. Having again failed to discover the missing money, Herring and Sirmon brought Jen — 823 — kins, 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 faded 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 Tal-ladega City Board of Education and nine individual defendants. In the complaint, the plaintiffs alleged, pursuant to 42 U.S.C. § 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’ § 1988 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 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 four — 824 — teen-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. 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 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 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 — 825 — 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 factors might come into play when other concrete circumstances are faced by school personnel.3 In the absence of detailed guidance, no reasonable school official could glean from — 826 — 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, fact827 based application, 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 Sheriffs 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 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 specificity6 but, it appears, purposefully so. In response 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 — 828 — 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 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 locate allegedly stolen money violated Jenkins’ and McKenzie’s Fourth Amendment rights? Applying the principles explicitly stated in Las-siter, 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. Footnotes [1] The 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, XL. O. is the sole precedent that potentially could have clearly es824 lablished the law for purposes of qualified immunity analysis. [2] Because 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. [3] The 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 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 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 con — 826 — stitutional requirement of fair warning is satisfied. Lanier,- U.S. at ---, 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 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, - U.S. at -, 117 S.Ct. at 1227. The Court went on to note that " '[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 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.” [4] In 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 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 "DQower court decisions are not sufficient to establish and make definite a particular constitutional crime so as to provide the constitutionally-required notice necessary to support an indictment under § 242. Only a decision of the Supreme Court establishing the constitutional crime under § 242 can provide such notice.” 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 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 — 827 — regarding the relevant decisional law to which we must look in analyzing a claim of qualified immunity. [5] The 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 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 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 students] and the nature of the infraction." T.L.O., 469 U.S. at 342, 105 S.Ct. at 743. [6] It 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 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.