Summer Blockbusters

Theft, strip searches, sex (ed), drugs and alcohol (policy), Friday the 13th … sounds like the makings of a sizzling summer blockbuster, doesn’t it?  Nope.  It’s just another week in the life of a school lawyer!

Let’s start out with breaking news out of the Fifth Circuit Court of Appeals, which did not take kindly to an alleged strip search of an entire middle school choir class.

According to the suit, $50 went missing and the middle school’s assistant principal was called to investigate.  The AP took all 22 girls to the female school nurse to conduct strip searches.  The searches involving taking each one to the bathroom, where the nurse checked the waistband of the girls’ panties, loosened their bras, and checked under their shirts.  The suit alleges that the girls had to lift their shirts so they were exposed from the shoulder to the waist.  No parents were notified.  No money was found.   Parents sued claiming constitutional violations, but the trial court dismissed the claims.

On appeal, the issue was whether the suit stated enough facts to hold the district liable for the AP’s actions.  Remember, to state a claim for a constitutional violation against a school district under 42 U.S.C. § 1983, a lawsuit has to allege that the constitutional violation resulted from an official policy, custom, or practice that was the “moving force” behind the violation.

A refresher on student searches:

  • To search a student’s person, a school official must generally have reasonable suspicion that the search will reveal evidence of a violation of school rules or the law.
  • The search must be reasonably related in scope to the circumstances which justified the search. The scope will be permissible when it is not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

According to the 5th Circuit, when the search is of the student’s underwear, additional requirements apply.  That is, a search of a student’s underwear is “impermissibly intrusive unless the school officials reasonably suspect either that the object of the search is dangerous, or that it is actually likely to be hidden in the student’s underwear.”

So, in this case, the AP violated “clearly established law” against all 22 of the students unless the AP “reasonably suspected” that the missing $50 cash (1) would be found on that particular student’s person and either (2) would be found specifically in that girl’s underwear or (3) would pose a dangerous threat to students.  It was undisputed that the searches failed all three conditions.

Okay, so the AP’s search may have been flawed, but how does that translate into school district liability?

The parents alleged a “failure to train” theory of liability that is recognized by the U.S. Supreme Court.  Under that theory, a district can be liable if there is such a widespread pattern of violations that the need for training should have been obvious to district policymakers.  Even if such a widespread pattern didn’t exist, deliberate indifference to the students’ constitutional rights can still be inferred if the risk of violations was or should have been an “obvious” or “highly predictable consequence” of the alleged training inadequacy.

The lawsuit claimed that the district provided no training to its employees regarding student searches.  The appeals court concluded:

Here, the alleged facts, taken together and assumed to be true, permit the reasonable inference—i.e., the claim has facial plausibility—that the risk of public officials’ conducting unconstitutional searches was or should have been a “highly predictable consequence” of the school district’s decision to provide its staff no training regarding the Constitution’s constraints on searches.

The case was allowed to proceed.  Keep in mind that this case is in its very early stages.  That’s why the court “assumed” all of the facts to be true and referred to the “plausibility” of the claims.  Whether the district actually failed to provide training and whether the risks of unconstitutional searches was or should have been known and obvious to district policymakers will be the subject of discovery and more legal briefing as the case moves forward.

Suffice it to say, this case is must-reading for school administrators and policymakers.  It would behoove districts to look at the training provided to administrators and staff on student searches and all student constitutionally-protected rights.  Regular, thorough, and well-documented training is crucial in defending against these types of “failure to train” lawsuits.  The case is Littell v. Houston Indep. Sch. Dist., No. 16-20717, 2018 WL 3149148 (5th Cir. June 27, 2018).


Tomorrow:  AG Ken Paxton sends another letter to Fort Worth ISD.