1998 -NMCA- 51, Kennedy v. Dexter Consolidated Schools

Decision Date03 February 1998
Docket NumberNo. 17710,17710
Citation124 N.M. 764,1998 NMCA 51,955 P.2d 693
Parties, 125 Ed. Law Rep. 947, 1998 -NMCA- 51 Crystal KENNEDY, Plaintiff-Appellee, v. DEXTER CONSOLIDATED SCHOOLS, Donald Warren, Kent Perry, Sue Rodriguez and James Derrick, Defendants-Appellants. Randy FORD, Plaintiff-Appellee, v. DEXTER CONSOLIDATED SCHOOLS, Donald Warren, Kent Perry and Jim Derrick, Defendants-Appellants.
CourtCourt of Appeals of New Mexico

Michael L. Stout, Stout & Winterbottom, Roswell, for Appellee Randy Ford.

Tandy Hunt, Randy K. Clark, Tandy Hunt, P.C., Roswell, for Appellee Crystal Kennedy.

Robert D. Castille, Michele Marks, David B. Lawrenz, Simons, Cuddy & Friedman, LLP, Santa Fe, for Appellants.


HARTZ, Chief Judge.

¶1 In March 1992 Dexter High School student Monica Fresquez reported to her teacher, Randy Ragland, that a ring she had left on her desk was missing. The investigation of the ring's disappearance eventually led to the strip search by school personnel of the two Plaintiffs, Crystal Kennedy and Randy Ford, both of whom were students in Ragland's class. They sued Dexter Consolidated Schools (the School District) and six school employees involved in the investigation, claiming violations of their civil rights. After a jury trial the district court entered judgment against five defendants (the Defendants): the School District, School Superintendent James Derrick, Dexter High School Principal Donald Warren, high school counselor Kent Perry, and Sue Rodriguez, the principal's secretary. Kennedy and Ford were each awarded $50,000 in compensatory damages. Kennedy was also awarded punitive damages of $50,000 against Warren and $25,000 each against Perry and Rodriguez; and Ford was awarded $50,000 in punitive damages against Warren and $25,000 against Perry.

¶2 On appeal the Defendants claim the following grounds for reversal of the judgments against them: (1) there was insufficient evidence to support liability of the School District or Superintendent Derrick; (2) evidence of school strip searches conducted in 1989 should not have been admitted; (3) the district court failed to instruct the jury on essential elements of the causes of action against the School District and the superintendent; (4) the individual Defendants were entitled to qualified immunity with respect to all claims; (5) the awards of punitive damages were improper; (6) the district court improperly excluded evidence of Plaintiff Ford's drug and alcohol use; (7) the district court permitted prejudicial closing argument; (8) the district court improperly refused to instruct the jury that compensation for constitutional violations must be based on actual damages; (9) Plaintiffs did not make a showing sufficient to support the award of attorney's fees; and (10) the award of prejudgment interest was improper. The School District also contends that it is entitled to Eleventh Amendment immunity, but it recognizes that this Court is bound by a recent New Mexico Supreme Court opinion adverse to the contention, Daddow v. Carlsbad Mun. Sch. Dist., 120 N.M. 97, 105, 898 P.2d 1235, 1243 (1995). Some of the alleged errors do not require reversal because the claim of error, even if meritorious, was not preserved in the district court or the error was harmless. Other errors, however, require reversal of portions of the judgment. We affirm the judgment against the School District, except that we remand for reconsideration of attorney's fees. We reverse the judgments against the individual Defendants, but we permit retrial with respect to (a) Kennedy's claims for compensatory damages against Superintendent Derrick, Principal Warren, and his secretary, Rodriguez; (b) Kennedy's claim against Warren for punitive damages; and (c) Ford's claims against Warren for compensatory and punitive damages. Perry is entitled to qualified immunity on the claims of both Kennedy and Ford, and Derrick is entitled to qualified immunity with respect to Ford's claims. There was insufficient evidence to support an award of punitive damages against Rodriguez. We deny Plaintiffs' Motion Requesting Certification to the New Mexico Supreme Court.


¶3 Witnesses at trial disputed the precise timing and sequence of events, but most material facts were uncontested. Monica Fresquez was a student in the second-period computer class taught by Randy Ragland. The students in the class were freshmen and sophomores, aged 14 and 15. During class on March 6, 1992 Fresquez removed her rings and placed them on her computer console. She then left her desk to retrieve a graded paper from Ragland. When she returned, she could not find her diamond ring, which she thought had been one of the rings left on the console. After searching briefly for the ring, she reported the loss to Ragland. Ragland, Fresquez, and the other ten students in the class searched the classroom. When the ring was not found, Ragland consulted with Principal Warren, who reviewed the provisions of the school policy manual relating to searches. The students other than Fresquez were not permitted to leave the room, even after the second period ended. Warren spoke to the students. So did counselor Perry. After asking Ragland to leave the room, Perry told the students that he would turn out the lights, leave the room for a short time, and, if the ring was left on the table during his absence, no questions would be asked. When the ring did not appear, Perry interviewed each student individually in his office. That process also failed to uncover the ring. The students were then taken individually to the school restrooms and strip searched. Principal Warren and the male Athletic Director searched the male students; Sue Rodriguez, the Principal's secretary, and Mary Kuykendall, a teacher, searched the female students. The searches did not produce the ring.

¶4 Crystal Kennedy gave the following account of her search: She was the first female searched. When Warren asked the class who wanted to "go first," she thought she was finally receiving permission to go to the restroom. Rodriguez and Kuykendall accompanied her to the restroom. She was told to keep the door on the bathroom stall open while she used the facilities. Rodriguez observed her in the stall. As she stood up, with her pants and underwear down, she was instructed to remove her shoes, socks, pants, and shirt, and to pull her brassiere away from her body and shake it out.

¶5 Randy Ford testified that he was escorted to the restroom by Warren and another adult male. He also thought that he was going only to use the facilities. After using the urinal, Ford was asked by the men to remove his clothes. He took off his shoes, socks, shirt, and pants, stripping down to his boxer shorts. He was then asked to pull the shorts away from his waist. Ford and several other students testified at trial that he arrived in class after the ring was reported missing. They said that students protested to Ragland and Perry that Ford should therefore not be searched. Ford further testified that he told Warren in the restroom that he had not been in Ragland's classroom that day before the ring was reported missing.

¶6 There was also evidence at trial of a similar incident several years earlier. In 1989, when Derrick was the principal, about 20 students in a class at Dexter Junior High School had been subjected to strip searches when a student reported the loss of a few dollars. After some protests about the searches, the school policy manual was modified to give students the right to request the presence of a parent during a search.


¶7 Plaintiffs' judgment was awarded pursuant to the federal Civil Rights Act of 1871, 42 U.S.C. § 1983, which creates a cause of action for damages for persons whose rights under the United States Constitution have been violated by state or local officials. Plaintiffs contend that the Defendants violated constitutional restrictions on searches and seizures.

I. The Constitutional Standard

¶8 Ordinarily, law enforcement officers investigating the theft of a ring could not conduct a search of a suspect's person without probable cause. See New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985). But the "custodial and tutelary" nature of the "State's power over school children ... permit[s] a degree of supervision and control that could not be exercised over free adults." Vernonia School District 47J v. Acton, 515 U.S. 646, 655, 115 S.Ct. 2386, 2392, 132 L.Ed.2d 564 (1995) (upholding random urinalysis drug testing of student athletes). "[W]hile children assuredly do not 'shed their constitutional rights ... at the schoolhouse gate,' Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 [89 S.Ct. 733, 736, 21 L.Ed.2d 731] (1969), the nature of those rights is what is appropriate for children in school." Id. at 655-56, 115 S.Ct. at 2392.

¶9 Thus, in T.L.O. the United States Supreme Court held that school officials did not need a search warrant, or even probable cause, to search a student's purse for contraband. The Court held that the warrant requirement "would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools," 469 U.S. at 340, 105 S.Ct. at 742, and that "strict adherence" to a probable-cause requirement could not be justified in light of "the substantial need of teachers and administrators for freedom to maintain order in the schools." Id. at 341, 105 S.Ct. at 742; see Vernonia Sch. Dist., 515 U.S. at 653, 115 S.Ct. at 2390-91. Consequently, "the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." T.L.O., 469 U.S. at 341, 105 S.Ct. at 742. To be reasonable, a school search must satisfy a two-step test. First, the search must be "justified at its inception," id., by "reasonable grounds for suspecting that the search will turn up evidence...

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    ...officials, punitive damages against three of the officials, and attorney's fees to Plaintiffs. In Kennedy v. Dexter Consolidated Schools, 1998-NMCA-051, 124 N.M. 764, 955 P.2d 693, the Court of Appeals affirmed the compensatory damages against the school district, but reversed all judgments......
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