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Supreme Court Lets Stand Ruling on Alleged Student Strip Search

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Washington

The U.S. Supreme Court refused last week to hear the appeal of two Alabama elementary school girls who allege they were strip-searched by a teacher and counselor looking for $7 missing from a classmate's purse.

The justices, acting without comment on Nov. 10, left intact lower-court rulings that granted the two school employees immunity from a lawsuit charging that their actions violated the girls' Fourth Amendment right to be free from unreasonable searches.

In an 8-3 ruling, the full U.S. Court of Appeals for the 11th Circuit ruled in June that the employees of the Talladega, Ala., school district merited immunity because strip searches of students are not clearly unconstitutional.

But school law experts said last week that the appeals court ruling, and the Supreme Court's refusal to intervene, should not be viewed as an endorsement of strip-searching students.

"I have written articles and advice for school boards in which I have said strip searches are not appropriate as a general rule," said Donald B. Sweeney, a lawyer for the Talladega city school district.

Mr. Sweeney said that his advice is not inconsistent with his defense of the teacher and counselor because such searches are not clearly unconstitutional under Supreme Court precedents.

Even the majority on the 11th Circuit court said the teacher and counselor "likely exercised questionable judgment" in the alleged search. The dissenting judges said strip-searching students for missing money ignores "common sense" and "is a violation of any known principle of human decency."

The appeal in Jenkins v. Herring (Case No. 97-381) involved two girls who were 2nd graders at Graham Elementary School in 1992.

Missing $7

Cassandra Jenkins and Oneika McKenzie, and their mothers, contend in court papers that a classmate accused the girls of taking $7 from another student's purse.

Music teacher Susannah Herring and counselor Melba Simon allegedly took the girls into the bathroom and ordered them to lower their underpants down to their ankles. They allegedly conducted a second strip search a short time later, but did not find the money.

The Talladega school board conducted an investigation and concluded that no strip searches had taken place. But the board found that Ms. Herring and Ms. Simon had shown errors in judgment in their handling of the matter.

The federal Department of Education's office for civil rights also investigated the case and concluded that the evidence did not substantiate that the girls had been strip-searched.

But the girls sued the school district, school officials, and the teacher and counselor. Because the defendants sought summary judgment, the courts were required to treat the girls' allegations essentially as if they were true.

A federal district judge granted summary judgment to all the defendants in 1994. But a three-judge panel of the 11th Circuit court ruled that the alleged actions of the teacher and counselor were clearly unconstitutional; thus, the lawsuit could proceed.

The full 11th Circuit court, based in Atlanta, set aside that decision and ruled in favor of the school employees. The majority said it was not clear that the Supreme Court's key opinion regarding school officials' searches of students makes strip searches unconstitutional. In its 1985 ruling in New Jersey v. T.L.O., the high court upheld the search of a student's purse for drugs and said school officials' searches of students must meet a standard of reasonableness.

The dissenting appeals court judges in the Alabama case said that under T.L.O., the teacher and counselor "lacked even arguable reasonable suspicion to strip-search Jenkins and McKenzie."

Guidance Sought

In their appeal to the high court, lawyers for the two girls argued that the alleged strip search violated the standard set in T.L.O. and conflicts with rulings on strip searches by two other federal appeals courts.

Their brief said that the two other appeals courts, as well as the West Virginia Supreme Court, have concluded that strip-searching students for small amounts of missing money violates clearly established Fourth Amendment rights to be free from unreasonable searches.

Citing a litany of recent news clippings about strip searches of students, the brief said the high court's guidance "is urgently needed on ... the extent to which the Constitution sets constraints on strip searches."

The court's refusal to review the case leaves the 11th Circuit ruling intact as a precedent in Alabama, Florida, and Georgia.

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