Short Take: The Pervs Of Lanier Middle School

It was outrageous enough when a school administrator decided that it was a good idea to shake out 13-year-old Savanna Redding’s bra to search for demon Ibuprofen, but zero tolerance for drugs means the stupidest thing to do makes sense to grocery clerks. And the Supreme Court’s wimpish, near-apologetic message, that maybe, just maybe, vice principals should not strip search kids absent really good reason, may not have been sufficiently clear.

During a sixth-grade choir class, an assistant principal allegedly ordered a mass, suspicionless strip search of the underwear of twenty-two preteen girls.

What possible exigency could have demanded such extreme action? A murder? A heroin overdose? A threat of a school shooting?

Those allegations describe how $50 went missing during a sixth-grade choir class at Houston’s public Lanier Middle School. Assistant Principal Verlinda Higgins was brought in to investigate. When no money turned up, the school police officer “suggested that girls like to hide things in their bras and panties.” Higgins took all twenty-two girls in the choir class to the female school nurse, who strip searched them, taking them one at a time into a bathroom, where she “check[ed] around the waistband of [their] panties,” loosened their bras, and checked “under their shirts.” The girls “were made to lift their shirts so they were exposed from the shoulder to the waist.” No parents were notified, despite the girls’ requests. No money was found.

Houston school policy allowed invasive searches, because schools have rules.

This document provides a simpler—and broader—rule for deciding when a search is proper:

Students and their personal effects are subject to being searched by school officials, if a school official has reasonable cause to believe that the student is in possession of contraband. . . . If a school official has reasonable cause to believe that contraband is present, he or she may institute a search.

Of course, what constitutes “reasonable cause” is left to the unilateral determination of a school administrator, with the “instruction” of yet more school policy.

Reasonable cause is the standard for a search on school property or at school-related events and is based on the school official’s specific reasonable inferences which he or she is entitled to draw from the facts in light of the school official’s experience. Specific reasonable inferences may be drawn from instances including but not limited to a tip from a reliable student, suspicious behavior that suggests that contra-band is present, a smell indicating the presence of contraband, or a bulge in a pocket, etc. Reasonable cause should not be based on a mere hunch.

Well, that clarifies it, sufficient that a vice principal, at the urging of a school resource officer, is left to her own devices to decide whether today is a good day to strip-search 22 preteen girls.

The Fifth Circuit reversed the district court’s dismissal of the § 1983 action under a Monell theory of municipal liability due to these school rules.

Applied here, this clearly established law means that Higgins violated the constitutional rights of the twenty-two girls unless Higgins reasonably suspected that the missing $50 cash (1) would be found on that particular girl’s person and either (2) would be found specifically in that girl’s underwear or (3) would pose a dangerous threat to students. For what are perhaps obvious reasons, the parties do not dispute that the alleged search failed all three conditions. It was clearly unconstitutional.

And it required a circuit court of appeals to hold this, because it eluded the vice principal, the school district and the district court judge that such a vague yet permissive district policy that allowed 22 preteen girls to have their panties searched without anything remotely sufficient to suggest that any one of them had the $50 was outrageously unconstitutional.

And even if they did have reason to believe that one of the girls, just one, had stolen the $50, school administrators searching girls’ panties without their parent’s knowledge remains twisted and wholly improper.

If one of the girls stole the $50, then isolate her, call the parents and in their presence with a same-sex administrator, conduct the search. But be damn sure about it before forcing that humiliation and trauma on a child. And if your information is so utterly lacking that you can’t distinguish between 22 girls, then you have nothing close to reasonable cause and your strip search is just perverse. If we care so much about children, let’s start with the conduct of dangerous and harmful school administrators.

13 comments on “Short Take: The Pervs Of Lanier Middle School

      1. Lee Keller King

        But you can get what you need.

        Me? I prefer Too Old to Rock and Roll, but Too Young to Die.

        🙂

    1. Hunting Guy

      Robert Heinlein.

      “A child’s life is like a piece of paper on which every person leaves a mark.“

  1. Skink

    This is a very close call and for at least two reasons: the parties conceded the rule was facially constitutional, and it appears only the school district was sued, not the individual actor. The first isn’t surprising because there are nearly no instances of unconstitutional written policies, but a brief explanation for those not doing this stuff every day. I’ll be brief.

    Suing the government for constitutional violations is really hard. There must be proof, or at dismissal, plausible allegations that a written or unwritten policy caused a constitutional violation. Because the policy was facially constitutional, the allegations must include widespread and pervasive unconstitutional practices by employees which are known to the school district, yet the district did nothing to correct the behavior, or as in this instance, provided no training for employing the training and the policy actually caused the violation. This is a very simplistic explanation of the law, but it is one of the most difficult requirements in the law.

    The plaintiff claimed the school district had liability because Higgins followed the policy and that action caused the violation. This argument was dead when written because the plaintiffs agreed the policy was facially constitutional and there is no vicarious liability in these cases. The plaintiffs also claimed a widespread practice of illegal searches, supposedly identifying 23 instances. This was also DOA: 22 of the 23 were in this case and the other was not before the incident, so there was no notice to the school district of unconstitutional behavior.

    That left a failure to train theory: the school district provided no training on how to implement the policy. Success on this theory is rarer than hen’s teeth. The Supreme Court has identified only one instance: LEOs must be trained in the use of firearms. Again, a pattern is required, as there must be notice of a need for training. Otherwise, the need can be obvious, as in training for firearms, but that instance is singular. Here, there were no allegations of widespread problems, so dismissal followed.

    The 5th briefly discussed the law: liability can attach if the decision not-to-train creates an “obvious” or “highly predictable” probability of constitutional violations because employees will employ the policy in “recurrent situations” that they are “certain to face.” Because there was no training, just as there was none in the use of firearms case, the court concluded that the case should go forward. As for recurrent situations, the court states searches meet this test because the policy allows employees to search students.

    And that’s where the 5th gets it wrong: the violation must still need to be a highly predictable consequence of the failure-to-train, and in this instance that requirement coincides with the widespread unconstitutional behavior. This policy was in effect for 15 years; there were no previous violations. How can unconstitutional behavior be a highly predictable consequence if it didn’t happen in the 15-year life of the policy?

    The 5th also uses some dumb language in discussing that things might change after remand and when the case comes for SJ, including some discussion that the facts might show the school board “should have known” of a need for training. That phrase shouldn’t appear in any argument, order or opinion in any of these cases. It simply is not the standard, and hasn’t been for more than 40 years.

    This case went up after dismissal. Close cases tend to go to the plaintiff at dismissal, and this one is unusual in that an amended complaint was dismissed with prejudice. Courts usually give a plaintiff three whacks before the hammer. SJ will be interesting.

  2. School Lawyer

    Glad to have your explanation, Skink. We might differ on the predictability of unconstitutional searches by untrained staff. I wouldn’t be surprised if my colleagues don’t know the difference between searching one person based on individualized suspicion and searching a roomful of possible suspects without that suspicion. Assistant principals, in particular, are often rookie administrators, and we don’t know what pre-hire training they received about searches.

    1. Skink

      What they know or what they might do matters not to the analysis. What must be alleged, and ultimately must be proven, is the need for training is obvious, either in the abstract or in practice. Another, perhaps clearer way of stating the rule is that it’s clear the lack of training will result in unconstitutional strip searches. The rule is not that it could be possible for a search to be done unconstitutionally–there are no weasel words in this stuff (“possible,” “might,” “could”); so that it might happen means nothing. And it has nothing to do with searches generally–it must be strip searches–because the claimed harm must be the same as that made “obvious” by the policy.

      Like I said, this constitutional stuff is hard.

  3. Robert Fickman

    I guess if you are a Houston assistant principal it’s ok to engage in mass groping of children as long as $50 is missing. School administrators have never been known for their sensitivity or brains. If ever you need a City where officialdom has no respect for civil liberties, Houston is your place. When I moved to Houston in 1974, I did volunteer work at the ACLU. They had a poster that pretty much captured Houston then and now. The poster showed the back side of half a dozen cops in line in riot gear. Each cop held a billy club behind his back.
    The caption at the top of the poster read
    “ WELCOME TO HOUSTON”. Well, welcome to Houston.

    1. Skink

      “I guess if you are a Houston assistant principal it’s ok to engage in mass groping of children as long as $50 is missing. ”

      No–lawyers have to bring the right claims. Some are hard; others are really hard. There is nothing in this case showing the school district condoned strip-searching the kids. In fact, the opposite is true, as the parties agreed the action was unconstitutional. The question is one of liability for the school board.

  4. Pedantic Grammar Police

    This is conditioning. They are training us from the earliest possible age to understand that we have no rights and must obey every creepy whim of anyone wearing a badge or expensive suit. It appears to be working.

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