CA5: Mass suspicionless strip search of a class of 6th grade girls was clearly unreasonable with a failure to train on policy that would have prevented it

“During a sixth-grade choir class, an assistant principal allegedly ordered a mass, suspicionless strip search of the underwear of twenty-two preteen girls. All agree the search violated the girls’ constitutional rights under Texas and federal law. Even so, the district court dismissed the girls’ lawsuit against the school district for failure to state a claim. We reverse.” The search was obviously unconstitutional under clearly established law. There was a policy, but the employees were never trained in it, and this exposes the defendant school district to liability. This case is the hypothetical from Justice O’Connor’s opinion in City of Canton v. Harris, 489 U.S. 378 (1989). Littell v. Houston Independent School District, 2018 U.S. App. LEXIS 17659 (5th Cir. June 27, 2018):

That the alleged facts demonstrate a constitutional violation is presently undisputed. A brief discussion of why the alleged search was unconstitutional, however, will nonetheless prove helpful.

To search a student’s person, school officials must generally have reasonable suspicion that the search will reveal evidence of a violation of school rules or the law. T.L.O., 469 U.S. at 341-42; accord Redding, 557 U.S. at 375; 2 Wayne R. LaFave et al., Criminal Procedure § 3.9(k) (4th ed. updated Dec. 2017). Reasonable suspicion has two dimensions. One is the “knowledge component,” which measures the strength of the evidence indicating illicit activity. Redding, 557 U.S. at 370-71. The second dimension, often called the “nexus” component, measures the strength of the evidence indicating “that the specific ‘things’ to be searched for and seized are located on the property [or, in this context, the person] to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978); accord Redding, 557 U.S. at 370. Together, these elements mean that searching a student’s person requires “a moderate chance of finding evidence of wrongdoing” on the person of that specific student. Redding, 557 U.S. at 371.

When the search is of the student’s underwear, moreover, additional requirements apply. Underwear searches are “embarrassing, frightening, and humiliating.” Id. at 374-75. “[B]oth subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification ….” Id. at 374; see also Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 404 (5th Cir. 2002) (“Strip searches implicate fundamental Fourth Amendment rights.”). Thus, the Supreme Court has “ma[d]e it clear” that a search of a student’s underwear is impermissibly intrusive unless the school officials reasonably suspect either that the object of the search is dangerous, or that it is actually likely to be hidden in the student’s underwear. Redding, 557 U.S. at 377; see, e.g., id. at 368, 374-76 (search requiring thirteen-year-old student to “pull[] her underwear away from her body” held impermissibly intrusive because no evidence suggested that the “common pain relievers” sought were either dangerous or likely to be found in the girl’s underwear).

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.

. . .

The Supreme Court established the “failure to train” method of proving municipal liability in City of Canton v. Harris, 489 U.S. 378, 386-92, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). Under Canton, when a municipal entity enacts a facially valid policy but fails to train its employees to implement it in a constitutional manner, that failure constitutes “official policy” that can support municipal liability if it “amounts to deliberate indifference.” Id. at 388. To prove deliberate indifference at trial, Plaintiffs must show that, “in light of the duties assigned to specific officers or employees[,] the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need.” Id. at 390.