Appeals Court Rules in Separate Strip-Search, Prom Breath-Test Cases

By Mark Walsh — August 01, 2016 5 min read
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A federal appeals court, in separate rulings involving the Fourth Amendment, has denied immunity for a school administrator in the strip search of a student to look for drugs, but upheld the use of portable blood-alcohol tests for students entering the high school prom.

Separate panels of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, issued the significant rulings involving school searches of students late last week.

In the drug case, a three-judge panel ruled unanimously on July 29 that an assistant principal faces potential personal liability for allegedly requiring a Georgia 7th grader to remove his underwear in a search for marijuana.

In the prom case, a separate three-judge panel, also ruling unanimously, held on July 28 that administrators at a Florida high school were immune from liability over an incident in which some 40 students arrived at the prom in a party bus and were required to take a Breathalyzer test. By the time the tests were applied to all students in the group, the prom was over.

The two cases should give school law experts plenty to think about.

Strip Search

In D.H. v. McDowell, the 11th Circuit court considered the appeal on behalf of the student identified in court papers in D.H., a 7th grader at Eddie White Academy in Hampton, Ga.

In February 2011, administrators at the school received a report that a student other than D.H. had marijuana and was distributing it to other students. That student was questioned, and a search of his backpack turned up marijuana. Meanwhile, that student implicated another, who implicated another, who implicated D.H.

Two of the other students had marijuana, including one who pulled it from his underpants. That prompted administrators and the school resource officer to require the other suspected students remove pants and at least pull the waistband out of their underwear.

When D.H. was summoned to the school office, a male assistant principal, Tyrus McDowell, first asked him to remove his shoes, empty his pockets, and take off his pants, all in front of other school officials and the other suspected students.

D.H. says in court papers that McDowell then made him lower his underpants down to his ankles. (The administrator testified that he only asked D.H. to pull out the waistband of his underpants, but the court was required to credit D.H.'s account since the administrators were seeking immunity.)

No marijuana was found on D.H. His mother sued the administrators, the SRO, the school district, and others, alleging the strip search violated her son’s rights.

A federal district court granted summary judgment to the school district and qualified immunity to most of the officials, but it held that McDowell had violated D.H.'s Fourth Amendment right to be free from unreasonable searches.

McDowell appealed to the 11th Circuit, and in the July 29 decision, the court upheld the denial of immunity for McDowell. The appeals court analyzed the case under its key precedents on school searches, including its 2009 decision in Safford Unified School District v. Redding, which held unconstitutional a strip search of female student by administrators looking for ibuprofen.

The 11th Circuit court found that McDowell’s strip search of D.H. was reasonable at its inception because other students had been hiding marijuana, including one in his underpants, and because a student had implicated D.H.

But the court went on to hold that the scope of the search as alleged by D.H.—requiring that he completely lower his underpants, in front of several other people—was unreasonable.

“By forcing D.H. to strip naked in front of his peers, McDowell exposed D.H. to an unnecessary level of intrusion that rendered the search excessive in scope and, therefore, unconstitutional,” the 11th Circuit court said.

The court suggested that the method that McDowell claims he used—asking D.H. to stretch out the waistband of his underpants—likely would pass constitutional muster under all circumstances in this case. Because a “genuine issue of material fact” existed about whose version of the search was true, the case had to go to trial, the court said.

Prom Breath Tests

The 2014 Junior/Senior Prom of Jensen Beach High School in the Martin County, Fla., school district will be memorable for the 40 students who arrived on a prom bus, but not for the traditional reasons.

The students had signed “zero tolerance forms” acknowledging that no drugs or alcohol was permitted at the prom, and that they may be subject to a breath test.

After riding the prom bus to a local park for pictures and then to dinner, the students arrived at the Port St. Lucie Civic Center at about 10:15 p.m. School officials could have kept them out for arriving after 10 p.m., but instead they decided to search the bus. (The court analyzed that and upheld its constitutionality, but let’s skip ahead.)

The bus search turned up an empty champagne bottle and some party cups, so school officials decided to conduct Breathalyzer tests of all 40 students. The tests took a while, and even when students passed, they were not allowed into the prom until the whole group was tested. Some who said they would rather just go home, before or after they were tested, were told they could not leave.

By the time the testing was completed, it was near midnight, and the prom was over. Every student in the group registered a 0.0 blood-alcohol content level.

The students sued the school district and various officials, alleging that their Fourth Amendment right to be free from unreasonable search and seizure were violated.

In its July 28 decision in Ziegler v. Martin County School District, the 11th Circuit court upheld the breath tests of the students. But it went on to hold that the “continued detention” of all the students until all in the group had been tested was unreasonable.

“We now hold, when government officials need to conduct breathalyzer or urine tests on students, the testing must be accomplished in a reasonably expeditious time period,” the court said. “Once exonerated by the test, the student must be free to go.”

Because the appeals court agreed that the school officials deserved immunity on that question, it upheld a district court ruling that granted summary judgment to all the defendants.

A version of this news article first appeared in The School Law Blog.