Beard v. Whitmore Lake School , 402 F.3d 598 ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0155p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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No. 03-1904
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DAVID BEARD; THEO DOWNS, as next friend of Peggy
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Shumway; PEGGY SHUMWAY; EDWARD GARIEPY, as
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Nos. 03-1904/1942
next friend of Alyssa Chappa; ALYSSA CHAPPA;
,
TAMARA BLEAU, as next friend of Robert Cook; ROBERT >
COOK; RONALD FORD, SR., as next friend of Ronald -
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Ford, Jr.; RONALD FORD, JR.; NANCY HUSKINSON, as
Plaintiffs-Appellees, -
next friend of Stacy Huskinson; STACY HUSKINSON,
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v.
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Defendant, -
WHITMORE LAKE SCHOOL DISTRICT,
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CHARMAINE BALSILLIE; BRIAN CARPENTER; JAY MUNZ; -
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WENDY LEMONS; SUE LANGEN, -
Defendants-Appellants. -
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No. 03-1942
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DAVID BEARD; THEO DOWNS, as next friend of Peggy
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Shumway; PEGGY SHUMWAY; EDWARD GARIEPY, as
next friend of Alyssa Chappa; ALYSSA CHAPPA; -
TAMARA BLEAU, as next friend of Robert Cook; ROBERT -
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COOK; RONALD FORD, SR., as next friend of Ronald
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Ford, Jr.; RONALD FORD, JR.; NANCY HUSKINSON, as
Plaintiffs-Appellees, -
next friend of Stacy Huskinson; STACY HUSKINSON,
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v.
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WHITMORE LAKE SCHOOL DISTRICT; CHARMAINE
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BALSILLIE; BRIAN CARPENTER; JAY MUNZ; WENDY
LEMONS; SUE LANGEN, -
Defendants, -
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Defendant-Appellant. -
R. MAYRAND, Officer,
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Nos. 03-1904/1942 Beard, et al. v. Whitmore Lake School, et al. Page 2
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-73657—George E. Woods, District Judge.
Argued: January 26, 2005
Decided and Filed: April 4, 2005
Before: GUY and ROGERS, Circuit Judges; DOWD, District Judge.*
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COUNSEL
ARGUED: Timothy J. Mullins, G. Gus Morris, COX, HODGMAN & GIARMARCO, Troy, Michigan,
for Appellants. Matthew E. Krichbaum, SOBLE & ROWE, LLP, Ann Arbor, Michigan, for Appellees.
ON BRIEF: Timothy J. Mullins, G. Gus Morris, COX, HODGMAN & GIARMARCO, Troy, Michigan,
for Appellants. Matthew E. Krichbaum, Richard A. Soble, SOBLE & ROWE, LLP, Ann Arbor, Michigan,
Michael J. Steinberg, Kary L. Moss, AMERICAN CIVIL LIBERTIES UNION, Detroit, Michigan, Scott
S. Yaldo, YALDO & DOMSTEIN, Bingham Farms, Michigan, for Appellees.
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OPINION
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ROGERS, Circuit Judge. The defendants in this 42 U.S.C. § 1983 action appeal the district court’s
denial of their motion for summary judgment based on a defense of qualified immunity. This case stems
from a strip search of over twenty students that occurred after a student in a high school gym class reported
that her prom money had been stolen.1 The plaintiffs in this case include both male and female high school
students who were subjected to the search; the defendants are the teachers who were involved in the search
and the police officer who instructed the teachers to search the female plaintiffs.
The actions of the defendants in this case were unconstitutional. However, at the time the searches
occurred, the law regarding the reasonableness of a strip search under these circumstances was not clearly
established. The denial of summary judgment is therefore reversed.
I. Background
On May 24, 2000, a student in the second-hour gym class at Whitmore Lake High School reported
to her gym teacher, Brian Carpenter, that her prom money had been stolen at some point during the class.
The school principal was absent on the date of the incident, so the acting principal, school teacher
Charmaine Balsillie, was advised of the theft. Balsillie called the police to report the incident and asked
two female teachers, Sue Langen and Wendy Lemons, and one male teacher, Jay Munz, to assist her.
When Balsillie arrived at the gymnasium, the male students were in the boys’ locker room, and the
female students were in the gymnasium. Lemons, Langen, and the female students searched the gymnasium
and the female students’ backpacks. Balsillie then went to the boys’ locker room and told Carpenter that
the police were on their way. At this time, Balsillie noticed Munz heading towards the shower area.
*
The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.
1
According to the plaintiffs’ first amended complaint, the amount of money missing was “a few hundred dollars.”
Nos. 03-1904/1942 Beard, et al. v. Whitmore Lake School, et al. Page 3
Carpenter told Balsillie that they had searched the male students’ backpacks, but had failed to locate the
money. By the time Balsillie exited the locker room, Police Officer Mayrand had arrived.
Munz and Carpenter were the only defendants that participated in the search of the male students
in the boys’ locker room. Carpenter searched book bags and lockers, while Munz searched the boys
individually in the shower room. The search consisted of the boys’ individually lowering their pants and
underwear and removing their shirts.1 The boys were not physically touched. The teachers claim that the
police arrived and came into the boys’ locker room after about one-half of the boys had been searched.
According to the teachers, Mayrand told Carpenter to continue searching the students and that teachers had
“a lot more leeway” than police officers when it came to searching students. About twenty boys were
searched.
Officer Mayrand also spoke to Balsillie and asked if the girls had been searched. According to
Balsillie, Mayrand told her that the boys had been checked in their underwear and that the teachers needed
to check the girls in the same way so as to prevent any claims of gender discrimination. Balsillie and
Langen then took the female students into the girls’ locker room where the girls pulled up their shirts and
pulled down their pants while standing in a circle.2 The girls were never touched and did not remove their
underwear. About five girls were searched. The stolen money was never discovered.
II. Analysis
The defendants appeal the district court’s denial of their motion for qualified immunity in this
42 U.S.C. § 1983 action. The district court found that, at the time the searches occurred, the law clearly
established that “[a] strip search of students for missing money in the absence of individualized suspicion
is not reasonable,” and accordingly denied the teachers’ request for qualified immunity. With respect to
Officer Mayrand, the district court found that the facts, taken in the light most favorable to the plaintiffs,
supported a finding that Mayrand had subjected the female plaintiffs to a constitutional violation by setting
the strip search in motion. The district court therefore denied summary judgment as to both the teachers
and Officer Mayrand.3
The searches performed on the students in this case were unconstitutional. However, at the time the
searches were performed, the law did not clearly establish that the searches were unconstitutional under
these circumstances. The denial of summary judgment is accordingly reversed.
Although the denial of a motion for summary judgment is generally considered interlocutory and
not appealable, a denial based on a determination that the defendant is not entitled to qualified immunity
may be reviewed on appeal. Solomon v. Auburn Hills Police Dept., 389 F.3d 167, 172 (6th Cir. 2004)
(citing Phelps v. Coy, 286 F.3d 295, 298 (6th Cir. 2002)). When reviewing a district court’s denial of
1
The defendants and plaintiffs dispute some of the issues related to this search. The teachers claim that the boys were never
told to remove their clothing; however, this is disputed by the plaintiffs. As we must take the facts in the light most favorable
to the plaintiffs, we will assume that the boys were told to remove their clothing and that they did not do so voluntarily. There
is also a dispute about whether the boys took off their underwear or just their pants. Again, taking the facts in the light most
favorable to the plaintiff, we will assume that the boys took off their pants and underwear.
2
Balsillie contends that she told the girls that if they were not comfortable removing their clothing, then they did not have
to participate. The plaintiffs dispute this fact. Taking the facts in the light most favorable to the plaintiff, we will assume that
the girls did not voluntarily consent to the search.
3
The district court granted summary judgment to one officer, Jennings, who had been present at the school, but was unaware
that the searches were taking place, and to one of the teachers, Lemons, who was not involved in the strip searches. These
decisions are not being reviewed as part of this appeal.
Nos. 03-1904/1942 Beard, et al. v. Whitmore Lake School, et al. Page 4
qualified immunity, all facts are to be taken in the light most favorable to the plaintiffs4 and the only issues
appropriate for review are those that are “strictly legal.” Id. (citing Phelps, 286 F.3d at 299). Because the
availability of qualified immunity is a legal question, we review the decision of the district court de novo.
Id. (citing Thomas v. Cohen, 304 F.3d 563, 568 (6th Cir. 2002)).
The doctrine of qualified immunity protects government officials who perform discretionary
functions from civil liability “insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). This court employs a three-part test when determining whether a grant of qualified immunity
is proper:
First, we determine whether, based upon the applicable law, the facts viewed in the light
most favorable to the plaintiffs show that a constitutional violation has occurred. Second,
we consider whether the violation involved a clearly established constitutional right of which
a reasonable person would have known. Third, we determine whether the plaintiff has
offered sufficient evidence to indicate that what the official allegedly did was objectively
unreasonable in light of the clearly established constitutional rights.
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900-01 (6th Cir. 2004) (citation omitted). If the answer
to all three questions is yes, then qualified immunity is not proper. Id. at 901. In this case, the searches
performed by the defendants were unconstitutional; however, at the time that the searches occurred, the law
did not clearly establish the unlawfulness of the defendants’ actions. We accordingly do not reach the third
prong of the test—whether the plaintiff has offered sufficient evidence that the defendants’ actions were
unreasonable in light of clearly established law.
A. The Searches Violated the Fourth Amendment
The initial inquiry in determining whether a grant of qualified immunity is proper is whether the
facts asserted, taken in the light most favorable to the plaintiffs, establish a constitutional violation. Saucier
v. Katz, 533 U.S. 194, 201 (2001). In this case, approximately twenty male students were searched, in the
absence of individualized suspicion and without consent, in the hopes of locating missing money.
Approximately five female students were searched under similar circumstances, but were also required to
remove their clothes in the presence of one another. Under these circumstances, the searches were a
violation of the Fourth Amendment. Assuming arguendo that Officer Mayrand was aware of these
circumstances when ordering the female students to be searched, his conduct was also unlawful.
As explained by the Supreme Court in New Jersey v. T.L.O., 469 U.S. 325, 341 (1985), a school
search violates the Fourth Amendment when the school undertakes a search of a student that is
unreasonable. In T.L.O., a school official searched a student’s purse for cigarettes after the student had been
caught smoking in the restroom. Id. at 328. Upon searching the purse, the school official found a pack of
cigarettes and rolling papers, which were often used by students to smoke marijuana. Id. A further search
of the purse revealed marijuana, a pipe, plastic bags, a substantial quantity of single dollar bills, an index
card that listed the names of students owing her money, and two letters implicating her in marijuana dealing.
Id. The court held that the Fourth Amendment applies to searches conducted by school authorities, id. at
336-37, but rejected strict adherence to a probable cause requirement. Id. at 341. Rather, the legality of a
school search depends on its reasonableness under all the circumstances. Id. Determining the
reasonableness of a school search involves a twofold inquiry: first, was the action justified at its inception;
and second, was the search reasonably related in scope to the circumstances justifying the search. Id. In
4
The plaintiffs assert that the defendants have failed to concede the facts in the light most favorable to the plaintiffs. Thus,
the plaintiffs argue that this court should dismiss the appeal for want of jurisdiction. However, while some minor factual issues
are in dispute, it does not appear that the resolution of these factual issues is needed to resolve the legal issue before us. Rather,
the legal issue can be resolved while taking all disputed issues in the light most favorable to the plaintiffs.
Nos. 03-1904/1942 Beard, et al. v. Whitmore Lake School, et al. Page 5
general, “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.” Id. at 341-42. A search is generally “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 nature of the infraction.” Id. at 342. The
search in T.L.O. was held to be reasonable. Id. at 347. The Court reasoned that school officials had reason
to suspect that the student’s purse contained cigarettes based on the accusation that she had been smoking
in the restroom; the Court also concluded that, after the initial search of the student’s purse revealed
evidence of marijuana, a further search of the purse was justified. Id. at 344-48.
We assume, without holding, that the searches of both the male and female students were justified
at their inception. That is, some search of the persons and effects of students may be warranted when
substantial property has been reported recently stolen. The courts have held that lack of individual suspicion
does not ipso facto render a search unreasonable. In the school context, the T.L.O. court expressly refrained
from so holding. Id. at 342 n.8. See also Skinner v. Ry. Labor Executives Ass’n, 489 U.S. 602 (1989)
(upholding policy of drug testing railway employees who violate safety rules or who are involved in
accidents in the absence of individualized suspicion); Nat’l Treasury Employees Union v. Von Raab, 489
U.S. 656 (1989) (upholding drug testing of customs officials who carry a firearm or work in drug
interdiction in the absence of individualized suspicion); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444
(1990) (upholding sobriety checkpoints performed in the absence of individualized suspicion).
The scope of the searches in the instant case, however, viewing the facts in the light most favorable
to the plaintiffs, does not pass constitutional muster. In making this determination, we are guided by the
Supreme Court’s analysis in Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995), which sets forth the
relevant criteria for evaluating searches performed in the absence of individual suspicion. In Vernonia, the
Court held to be reasonable a school’s system policy of randomly drug testing student athletes even in the
absence of individualized suspicion. Id. at 664-65. In so deciding, the Court looked to three factors: (1)
the student’s legitimate expectation of privacy, (2) the intrusiveness of the search, and (3) the severity of
the school system’s needs that were met by the search. Id. In Vernonia, the Court found the drug testing
policy to be constitutional because student athletes had a decreased expectation of privacy by virtue of the
voluntary nature of their participation, the invasion of the students’ privacy was minimal, and the threat to
the school system from unfettered drug use was great. Id. at 654-65.
1. The Scope of the Searches of the Male Students
In light of the factors set forth in Vernonia, the searches performed on the male students in this case
were in violation of the Fourth Amendment. First, the privacy interest here was great. Students of course
have a significant privacy interest in their unclothed bodies. See T.L.O., 469 U.S. at 337-38 (noting that a
“search of a child’s person . . . is undoubtedly a severe violation of subjective expectations of privacy”).
The Supreme Court did note in Vernonia, however, that public school locker rooms “are not notable for the
privacy they afford.” 515 U.S. at 657. The boys were thus not deprived of a privacy interest as much as
if they had been searched, for instance, in an office. However, the scope of the search did exceed what
would normally be expected by a high school student in a locker room. As alleged by the plaintiffs, the
boys were individually and directly examined as they unclothed. Moreover, unlike in Vernonia, the students
did not “voluntarily subject themselves to a degree of regulation . . . higher than that imposed on students
generally.” 515 U.S. at 657. The students here were attending gym class as part of a general school
curriculum. They accordingly did not voluntarily consent to be regulated more closely than the general
student population, as do student athletes who choose to go out for school sports teams. See id.
Second, the character of the intrusion was far more invasive than the character of the urinalyses in
Vernonia, where students remained fully clothed. Also unlike in Vernonia, the searches were likely to
disclose much more than the limited information (presence of drugs) at issue in Vernonia. The boys were
required to lift their shirts and to remove both their pants and underwear.
Nos. 03-1904/1942 Beard, et al. v. Whitmore Lake School, et al. Page 6
Third, the governmental interest, though of some weight, was not as great as in cases like Vernonia.
School administrators have a real interest in maintaining an atmosphere free of theft. But, a search
undertaken to find money serves a less weighty governmental interest than a search undertaken for items
that pose a threat to the health or safety of students, such as drugs or weapons. See Oliver v. McClung, 919
F. Supp. 1206, 1218 (N.D. Ind. 1995) (finding that a strip search for money was not reasonable, but noting
that the same search may have been reasonable if undertaken to find drugs or weapons). In addition, the
lack of individualized suspicion also makes the government’s interest less weighty. The government may
have a comparatively strong interest in searching a particular student reasonably suspected of theft, because
of the likelihood that the search will be successful. Such interest is diluted considerably when, instead of
one, two, or three students, the school officials search over twenty students, without reason to suspect that
any particular student was responsible for the alleged theft. In that case the intrusive search of each
individual is that much less likely to be successful.
The highly intrusive nature of the searches, the fact that the searches were undertaken to find missing
money, the fact that the searches were performed on a substantial number of students, the fact that the
searches were performed in the absence of individualized suspicion, and the lack of consent, taken together,
demonstrate that the searches were not reasonable. Accordingly, under T.L.O. and Vernonia, the searches
violated the Fourth Amendment.
2. The Scope of the Searches of the Female Students
The searches of the female students also violated the Fourth Amendment. Because the searches of
the female students were similar in many respects to those performed on the male students, we only briefly
describe the factors that render the searches unconstitutional. As with the male students, the female students
did not consent to the search, nor was there reason to suspect that any particular student was responsible for
the alleged theft. The approximately five female students were required to lift their shirts and remove their
pants. The girls, however, unlike the males, did not have to remove their underwear. On the other hand,
unlike any allegation in regard to the search of the males, the female students were required to undress in
front of one another. The fact that the searches of the females did not occur in the presence of only school
officials, but rather in the presence of other students, further supports the conclusion that the searches were
unreasonable. See Reynolds v. City of Anchorage, 379 F.3d 358, 365 (6th Cir. 2004) (in analyzing the
reasonableness of a strip search occurring in a juvenile group home, the court found it important that the
search was “conducted in a way designed to minimize its intrusive effect” and that the search took place “in
the presence of only a single staff member”).
The fact that the searches of the females were highly intrusive, the fact that the searches occurred
in the presence of other students, the lack of consent, the absence of individualized suspicion, and the fact
that the searches were undertaken to find money, taken together, demonstrate that the searches performed
on the females in this case were not reasonable. The searches accordingly violated the Fourth Amendment.
3. Officer Mayrand
Assuming arguendo that Officer Mayrand was aware of the numerous factors that rendered the
searches in this case unconstitutional, then Mayrand’s action in ordering the searches of the female plaintiffs
was also unlawful.
Nos. 03-1904/1942 Beard, et al. v. Whitmore Lake School, et al. Page 7
Section 1983, provides, in relevant part, that
Every person who, under color of statute, ordinance, regulation, custom, or usage, of any
State . . . subjects or causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
42 U.S.C. § 1983 (emphasis added). Assuming arguendo that Mayrand was aware of the circumstances of
the searches which rendered them unconstitutional—i.e., the large number of students searched, the lack
of individualized suspicion, the lack of consent, the highly intrusive nature of searches (including the fact
that the male plaintiffs were forced to remove their underwear and the fact that the female plaintiffs were
forced to undress in the presence of other students), and the fact that the searches were undertaken to find
missing money—then Officer Mayrand’s actions in ordering the search of the female plaintiffs was itself
a constitutional violation.
B. The Law Did Not “Clearly Establish” That The Searches Were Unconstitutional
Although the defendants participated in this constitutionally impermissible search, they are
nevertheless protected from civil liability if their actions did not violate “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818. The law,
at the time the searches were conducted, did not clearly establish that the searches were unreasonable under
the particular circumstances present in this case. Accordingly, the defendants are entitled to qualified
immunity.
“When determining whether a right is ‘clearly established,’ we ‘look first to decisions of the
Supreme Court, then to decisions of this Court and other courts within our circuit, and finally to decisions
of other circuits.’” McBride v. Village of Michiana, 100 F.3d 457, 460 (6th Cir. 1996) (citation omitted).
In order for the law to be clearly established as of the date of the incident, the law must “‘truly compel (not
just suggest or allow or raise a question about), the conclusion . . . that what defendant is doing violates
federal law in the circumstances.’” Saylor v. Bd. of Educ., 118 F.3d 507, 515-16 (6th Cir. 1997) (quoting
Lassiter v. Ala. A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1150 (11th Cir. 1994)). An action’s
unlawfulness can be apparent even in novel factual circumstances “‘so long as the prior decisions gave
reasonable warning that the conduct then at issue violated constitutional rights.’” Hope v. Pelzer, 536 U.S.
730, 740 (2002) (citation omitted).
At the time of the search at issue, the prior law involving strip searches of students did not clearly
establish that the defendants’ actions in this case were unconstitutional. The Supreme Court cases on school
searches, T.L.O. and Vernonia, set forth basic principles of law relating to school searches, yet do not offer
the guidance necessary to conclude that the officials here were, or should have been, on notice that the
searches performed in this case were unreasonable. See T.L.O., 469 U.S. at 336-43; Vernonia, 515 U.S. at
652-65.
The Supreme Court has recently instructed that, for purposes of the “clearly established” inquiry,
the analysis “‘must be undertaken in light of the specific context of the case, not as a broad general
proposition.’” Brosseau v. Haugen,___U.S.___, 125 S. Ct. 596, 599 (2004) (quoting Saucier, 533 U.S at
201). Accordingly, cases “cast at a high level of generality,” will only be sufficient to clearly establish the
unlawfulness of the defendants’ actions where the conduct at issue is “obviously” a violation based on the
prior cases. Id. This is not such an obvious case.
In T.L.O., the Court announced that school searches should be subject to a reasonableness standard.
469 U.S. at 341. In determining whether a particular search is reasonable, the Court announced a two-
pronged, multi-factor test that weighs the students’ interest in privacy against the school’s interest in
maintaining a safe learning environment. Id. at 341-43. Yet, the Court did little to explain how the factors
Nos. 03-1904/1942 Beard, et al. v. Whitmore Lake School, et al. Page 8
should be applied in the wide variety of factual circumstances facing school officials today. Accordingly,
T.L.O. is useful in “guiding us in determining the law in many different kinds of circumstances”; but is not
“the kind of clear law” necessary to have clearly established the unlawfulness of the defendants’ actions in
this case. See Brosseau, 125 S. Ct. at 599 (quoting Pace v. Capobianco, 283 F.3d 1275, 1283 (11th Cir.
2002)). In fact, this court has previously recognized that “the reasonableness standard articulated in New
Jersey v. T.L.O., has left courts later confronted with the issue either reluctant or unable to define what type
of official conduct would be subject to a 42 U.S.C. § 1983 cause of action.” Williams v. Ellington, 936 F.2d
881, 886 (6th Cir. 1991). In Vernonia, the Court clarified the situation only to the extent that it found that
some searches undertaken without individualized suspicion are reasonable. Given the lack of a factual
context similar to that of this case, T.L.O. and Vernonia could not have “truly compelled” the defendants
to realize that they were acting illegally when they participated in the searches of the students in this case.
The Sixth Circuit cases involving student strip searches also do not clearly establish the
unconstitutionality of the searches in the instant case. Indeed, in Williams, 936 F.2d 881, and Tarter v.
Raybuck, 742 F.2d 977 (6th Cir. 1984), strip searches of students were found to be reasonable. Although
the officials in each of those cases possessed individualized suspicion as to the particular student searched,
the cases do not clearly state that such individualized suspicion is absolutely necessary to justify such a
search. And while one district court case from this circuit, Cales v. Howell Public Schools, 635 F. Supp. 454
(E.D. Mich. 1985), found a strip search of a student not to be reasonable, the holding of the district court
was that, although the school officials did have reasonable suspicion to suspect the particular student of
violating some school rule, it did not have reason to suspect that the student was violating the rule against
drug usage, the actual object of the search. While the principle of Cales could be argued to be analogous
to a group search, the analogy is not so obvious as to establish clearly the unreasonableness of the group
searches in this case. The Sixth Circuit cases thus simply do not “truly compel” the conclusion that the
searches in this case were not reasonable.
Finally, we recognize that, at the time the searches were conducted, the Seventh Circuit had held that
the strip search of a student in particular circumstances was not reasonable. See Doe v. Renfrow, 631 F.2d
91 (7th Cir. 1980) (nude body search of a 13-year-old girl following an alert by police dog). In addition,
some district courts in other circuits have held student strip searches to be unreasonable in cases more
closely analogous to the instant case. See Bell v. Marseilles Elementary Sch., 160 F. Supp. 2d 883, 891 n.9
(N.D. Ill. 2001); Konop v. Northwestern Sch. Dist., 26 F. Supp. 2d 1189, 1201 (D. S.D. 1998); Oliver, 919
F. Supp. at 1218; Bellnier v. Lund, 438 F. Supp. 47 (N.D.N.Y. 1977).
These cases were not sufficient to establish clearly the unlawfulness of the defendants’ actions in
this case. In the “rare instance” where it is proper to seek guidance from outside this circuit, the law will
only be clearly established where the cases from outside this circuit “both point unmistakably to the
unconstitutionality of the conduct complained of and [are] so clearly foreshadowed by applicable direct
authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on
constitutional grounds, would be found wanting.” Williams, 936 F.2d at 885. The cases dealing with school
strip searches from courts in other circuits are not “clearly foreshadowed by applicable direct authority,”
and therefore do not clearly establish that the searches in this case were unreasonable.
III. Conclusion
Because the searches in this case did not violate clearly established law, the defendants are entitled
to qualified immunity. The denial of summary judgment is accordingly REVERSED.