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Oregon District Liable in Illegal Student Search, Federal Court Holds

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The U.S. Court of Appeals for the Ninth Circuit, ruling that Rainier, Ore., school officials who illegally searched two students were not immune from liability under federal law, has found the school district liable for financial damages in the suit brought by the students.

The 2-1 appellate majority in Bilbrey v. Brown reversed a jury finding in federal district court that while the search was unconstitutional, the principal and teacher who searched two 5th graders were entitled to the immunity conferred by Section 1983 of the Civil Rights Act of 1871, since they acted in "good faith."

The court ruled that the officials were not entitled to the immunity because they had no evidence for the search other than the suspicion of a school-bus driver that the students had made a drug transaction.

"It is settled that the defense of 'good faith' is not established merely by an unsupported claim to that state of mind," the appellate major-ity wrote in the ruling.

Immunity at Issue

Under Section 1983, state authorities acting in an official capacity are liable for damages in civil-rights cases unless it can be proved that they acted in good faith, believing that their actions were correct.

The 113-year-old law became the focus of attention last winter when the Reagan Administration announced as part of a major school-discipline initiative that it would seek ways to broaden the law's protection of school officials in order to strengthen their capacity to carry out discipline policies.

The two Rainier students had appealed the lower court's 1979 immunity finding as well as its failure to issue "declaratory relief"--an order prohibiting such illegal searches.6The appeals court found that the plaintiff students were entitled to that relief.

The case was ordered back to district court for a trial to determine the amount to be awarded to the students and to provide the declaratory relief, a formal ruling that the search was unconstitutional.

High Court to Rule

The appeals court also found the school district liable for the students' attorney's fees, which are expected to total nearly $100,000, according to Michael Lehner, who argued for the school district.

The U.S. Supreme Court will rule this term on broader constitutional questions regarding searches of students in school, in New Jersey v. T.L.O.

The Court will decide whether the Fourth Amendment requires school officials to have probable cause and a warrant to search a student or whether their search need only be "reasonable."

The New Jersey Superior Court found "T.L.O.," a minor, guilty of possession of marijuana in 1980, but she appealed, charging that the principal who found the marijuana cigarettes had searched her purse illegally. The New Jersey Supreme Court found that, although warrantless searches are allowed, the principal lacked reasonable cause, and it suppressed the "joints" found in her purse. The state has appealed that decision, and the U.S. Supreme Court is scheduled to hear oral arguments Oct. 2.

Faulty Evidence

The two Oregon 5th graders were searched by a teacher and school principal because a school-bus driver had seen them exchange a package and suspected that it was drug-related, according to several accounts. In fact, they exchanged bubblegum, according to court documents. One of the students was required to strip down to his underwear and searched. The other was frisked.

The 1,600-student district has relinquished jurisdiction over the case to its insurance company, which is represented by Underwriters Adjusting Company. "Legally speaking, it's out of our hands," said the district's lawyer, Richard Deich.

Mr. Lehner, the company's lawyer, has recommended that the circuit court ruling be appealed but a final decision will not be reached for several weeks, he said.

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