Video surveillance of school locker rooms was unreasonable, and Vernonia (the student athlete drug testing case) and T.L.O. (searches by school officials on reasonable suspicion) did not support the surveillance and keeping the tapes. Also, the surveillance did not have qualified immunity. Brannum v. Overton County Sch. Bd., 516 F.3d 489, 2008 FED App. 0083P (6th Cir. 2008):
The Fourth Amendment does not protect all expectations of privacy; only those that society recognizes as reasonable and legitimate. T.L.O., 469 U.S. at 338. The Supreme Court has acknowledged that generally, students have a less robust expectation of privacy than is afforded the general population. Id. at 348 (Powell, J., concurring). Indeed, this expectation may be even less for student athletes in locker rooms, which the Court has previously observed are places “not notable for the privacy they afford.” Vernonia, 515 U.S. at 657.
This does not mean, however, that a student’s expectation of privacy in his or her school locker room is nonexistent. In fact, we have stated before that even in locker rooms, students retain “a significant privacy interest in their unclothed bodies.” Beard, 402 F.3d at 604. Unlike the situation in Vernonia, where the students and their parents were well aware that participation in school sports was conditioned on the students submitting to the drug testing policies, neither the students nor their parents in this case were aware of the video surveillance in the locker rooms, to say nothing of the videotaping. Further, while the Court in Vernonia pointed out the lower level of privacy typically associated with school locker rooms, we are satisfied that students using the LMS locker rooms could reasonably expect that no one, especially the school administrators, would videotape them, without their knowledge, in various states of undress while they changed their clothes for an athletic activity.
C.
Video surveillance is inherently intrusive. As one authority has put it, a video camera “sees all, and forgets nothing.” Constitutionality of Secret Video Surveillance, 91 A.L.R.5th 585, § 2 (2001). In Vernonia, the Supreme Court addressed the intrusiveness of a procedure employed for obtaining urine samples from students in order to conduct drug screening. The male students produced urine samples at a urinal along a wall while a male monitor watched from a distance. The female students produced samples in individual enclosed stalls while a female monitor stood outside. Neither the males nor the females were forced to remove their clothing before the monitors or expose themselves to the monitors. Vernonia, 515 U.S. at 658. The Court determined that the procedural precautions directed at ensuring the privacy of the students were significant, which helped to ensure that the policy was minimally invasive in practice.
In Beard, we considered the constitutionality of a strip search conducted by the school officials when a student reported that she was missing some money. The male and female students were separated and taken to different places in the school. The female students, while in full view of the others and the school officials, were required to lift up their shirts and pull down their pants without removing their undergarments. The males, on the other hand, were forced to remove their outer clothing and pull down their undergarments for inspection by the school official. We found that the character and scope of this search was unreasonably intrusive upon the students’ privacy. Beard, 402 F.3d at 605-06.
In this case, the scope of the search consisted of the video recording and image storage of the children while changing their clothes. In Vernonia, procedural safeguards were put into place to protect the students’ privacy, but in this case, the school officials wholly failed to institute any policies designed to protect the privacy of the students and did not even advise the students or their parents that students were being videotaped. Likewise, as the female students in Beard were inspected while in their undergarments, the students here were also observed in their undergarments while they were in the school locker rooms. We believe that the scope of the secret surveillance in this case, like the strip search in Beard, significantly invaded the students’ reasonable expectations of privacy.
D.
In determining whether a search is excessive in its scope, “the nature and immediacy of the governmental concern” that prompted the search is considered. Vernonia, 515 U.S. at 660. Of course, a valid purpose does not necessarily validate the means employed to achieve it. In order to satisfy the constitutional requirements, the means employed must be congruent to the end sought. See T.L.O., 469 U.S. at 341-42.
. . .
In this case, the defendants were prompted to install video surveillance cameras by a concern that school safety measures should be enhanced. It is indisputable that the operation of the video cameras intruded upon the students’ privacy; the question is whether, given the purpose for which the cameras were operating, the intrusion was reasonable. One measure of reasonableness is the congruence or incongruence of the policy to be served (student safety), and the means adopted to serve it. Surveillance of school hallways and other areas in which students mingle in the normal course of student life is one thing; camera surveillance of students dressing and undressing in the locker room–a place specifically set aside to offer privacy–is quite another. The two do not stand on equal footing.
Stated differently, the surveillance methodology employed, in particular the installation and operation of the cameras in the locker rooms, in order to be reasonable in its scope, must be congruent to the need for such a search in order to serve the policy goal of school safety and security. There is nothing whatsoever in this record to indicate that the defendants entertained any concerns about student safety or security in the locker rooms that would reasonably justify the installation of the cameras to record all the activities there. The defendants do not claim that any misconduct occurred in these areas in the past or that the plan to install the surveillance equipment in the school locker rooms was adopted because of any reasonable suspicion of wrongful activity or injurious behavior in the future. Indeed, the record suggests that the school board members and Director Needham were not even aware that cameras were positioned to monitor activities in the locker rooms.
