The Critical Issue: Did the A.P. tell the boy to drop his underpants to his ankles? Or not?

As Assistant Principal McDowell decided what to do with D.H., a 7th grade boy, here’s what he already knew: 1) marijuana had been found on three other 7th grade boys that morning; 2) one of those boys fingered D.H., soon to be known as “the plaintiff;”  3) one of the 7th graders had hidden the weed in his underpants—in fact, Mr. McDowell believed (mistakenly, as it turned out) that two of them had concealed the marijuana in their U-Trou.

What to do?  How extensive of a search would you conduct?

After D.H. denied having any drugs, Mr. McDowell ordered him to empty his backpack, which the boy did. Nothing there.  Next: take off your shoes, empty your pockets and take off your shirt and pants. Still nothing.  Now the boy is standing in the A.P.’s office in his boxer shorts.

What happened next is in dispute. The boy says that the A.P. told him to drop his drawers to his ankles.  The A.P. says he only told the boy to pull out the elastic waistband of the boxers.  Believe it or not: the personal liability of the A.P. will turn on which version of that story turns out to be true.  The 11th Circuit held that if the boy was, in fact, instructed to drop U-Trou to the floor, then the A.P. would be held personally liable for a constitutional violation.

There are some key lessons to be learned from this case.

1. A strip search is a “categorically distinct” type of search. The court says that it is a “quantum leap” to go from outer clothing and backpacks to “exposure of intimate parts.”

2. To be legal, any search of a student must be “justified at inception” and “reasonable in scope.” A search might satisfy the first standard but not the second.  That’s what happened here.

3. Don’t ever conduct a strip search of a student in the presence of other students. That day in the office there were three other students present. The court repeatedly mentioned the presence of the other students as a key factor in the decision.

While McDowell’s strip search of D.H. was justified at its inception, we readily conclude that forcing D.H. to strip fully naked in front of his peers was unconstitutionally excessive in scope.  Even where a student strip search is justified at its inception, the 4th Amendment requires the execution of the search to be reasonable in scope.

So the search was unconstitutional.  The A.P. violated the boy’s constitutional rights. And yet, he will not be held personally liable if the fact finder (judge or jury) determines that the instruction was to pull out the waistband, rather than to drop the underpants to the ground.  That’s because school officials are immune from liability unless they violate legal standards that are “clearly established.” The court said it was “clearly established” that you can’t make a kid drop his drawers to his ankles in front of his peers. But it is not “clearly established” that it’s illegal to make that student pull out the elastic waistband on his boxers.

On such subtle distinctions cases are decided.

The case of D.H. v. Clayton County School District was decided by the 11th Circuit Court of Appeals on July 29, 2016.  We found it at 2016 WL 4056030.


File this one under:  SEARCH AND SEIZURE

Tomorrow: Is burping in class a criminal offense?