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Published in Print: April 13, 2005, as Court: Class Strip-Searches Unconstitutional

Court: Class Strip-Searches Unconstitutional

Educators in Mich. case ruled immune because state of law wasn't clear.

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If a student says she’s had money stolen in school, don’t strip-search the whole class to ferret it out.

That was the message last week from a federal appeals court that laid down new legal parameters for student searches in the judicial circuit covering Kentucky, Michigan, Ohio, and Tennessee.

Tackling a topic that has cropped up in schools around the country, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, unanimously held on April 4 that a strip-search of students at a Michigan high school in May 2000 violated the Fourth Amendment’s bar to unreasonable searches.

But the court also concluded that the law was not so clearly established at the time that teachers and a police officer involved in the search in Whitmore Lake, Mich., should have known that their actions were illegal.

For that reason, the court held, those employees were not liable and the group of eight students who filed a civil lawsuit over the incident at Whitmore Lake High School could not collect damages. The ruling overturned a lower court decision denying the employees’ attempt to get the case thrown out on the grounds that were immune from liability.

Despite that reversal, Matthew E. Krichbaum, an Ann Arbor, Mich., lawyer who represented the students on behalf of the American Civil Liberties Union of Michigan, said he was pleased with the ruling.

“We’re happy that the court so clearly recognized the unconstitutionality of the searches,” he said. “The main thing we wanted to make sure is that these kinds of strip-searches never happen again.”

They will never happen again in Whitmore Lake, if Superintendent Scott A. Menzel has his way. He said last week that the teachers involved had not followed the district’s policy on student searches. That policy stipulates that “[s]earch of a student’s person or intimate personal belongings shall be conducted … only in exceptional circumstances when the health or safety of the student or of others is immediately threatened.”

Mr. Menzel noted that a U.S. District Court judge in Detroit had cleared the 1,300-student district itself of liability in the case, in part because its policy passed constitutional muster.

“There were some errors in judgment,” Mr. Menzel said last week. “As we go forward, it’s been made very clear to our staff that that type of search is not permitted.”

‘Highly Intrusive’

The search in question took place after a girl reported that $364 had been stolen from her gym bag during a physical education class.

Teachers then searched the whole class of roughly 20 boys and five girls in their respective locker rooms. Boys had to remove their shirts and pull down their underwear in a shower room, court papers say, while the girls had to strip to their underwear in a locker room in front of one another. The teachers did not touch the students.

After school officials reported the theft to police, an officer arrived midway through the search and advised them to continue, according to court papers. In the end, the money was not found.

The 6th Circuit court pointed to several factors that made the “highly intrusive” searches unreasonable, including that they were aimed at recovering money.

“School administrators have a real interest in maintaining an atmosphere free of theft,” the panel’s opinion said. “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.”

Further, the searches involved “a large number of students,” none of whom consented to the search. Staff members also had no reason to suspect any of the youngsters individually.

Still, the court held that at the time of the searches, “prior law involving strip-searches of students did not clearly establish that the defendants’ actions in this case were unconstitutional.”

The appeals panel said two U.S. Supreme Court opinions on student searches “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.”

In the first case, New Jersey v. T.L.O., the Supreme Court held in 1985 that a school official was justified in searching the purse of a student suspected of smoking in the restroom. In the second, Vernonia School District v. Acton, the high court in 1995 upheld a school system’s policy of randomly testing student athletes for drugs.

Some rulings in the 6th Circuit have specifically addressed strip-searches, but their net effect was not to “truly compel the conclusion that the searches in this case were not reasonable,” the panel found.

And while the panel cited several rulings from other federal judicial circuits in which in-school strip-searches were found unreasonable, it concluded that those cases fell short of clearly signaling that the Whitmore Lake search crossed the constitutional line.

Timothy J. Mullins, a lawyer who represented the employees, said he considered the ruling fair. “If the different circuits can’t figure this out, how do you expect teachers on the front line to figure that out?” he said.

That said, he agreed with Mr. Krichbaum that school officials are now on notice that group strip-searches for money are not the way to go.

“Now there’s no more doubt,” Mr. Krichbaum said. “The next defendant won’t get off.”

Vol. 24, Issue 31, Pages 3,22

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