499 F.Supp. 223 (E.D.Tex. 1980), TY-80-219, Jones v. Latexo Independent School Dist.

Docket Nº:TY-80-219-CA.
Citation:499 F.Supp. 223
Party Name:Hortencia JONES et al. v. LATEXO INDEPENDENT SCHOOL DISTRICT et al.
Case Date:September 03, 1980
Court:United States District Courts, 5th Circuit, Eastern District of Texas

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499 F.Supp. 223 (E.D.Tex. 1980)

Hortencia JONES et al.



No. TY-80-219-CA.

United States District Court, E.D. Texas

Sept. 3, 1980

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Patrick A. Mueller, Robert B. O'Keefe, East Texas Legal Services, Nacogdoches, Tex., Virginia M. Schramm, Dwight Cook, East Texas Legal Services, Tyler, Tex., for plaintiffs.

James W. Turner, Crockett, Tex., for defendants.


JUSTICE, Chief Judge.

On April 11, 1980, the student body at the school operated by the Latexo Independent School District was subjected to the super-sensitive nose of "Merko", a dog trained to detect the odor of marijuana and other narcotics, as well as various other substances. Those students designated by Merko to be emanating such odors were subsequently searched by school authorities. Merko also sniffed the students' automobiles, which were parked in the school parking lot, in an effort to detect the odor of contraband. Vehicles singled out by the dog were thoroughly searched. As a result of this procedure, six students were suspended from school for possession of "drug paraphernalia" on campus in violation of school regulations.

Plaintiffs in this action are three of the suspended students, all siblings, and their parent. They challenge the school's actions, demanding injunctive and declaratory relief, and likewise damages under 42 U.S.C. s 1983. Their complaint, originally filed on July 9, 1980, and amended on August 18, 1980, alleges that the sniffing carried out by Merko and the resulting searches violated their fourth amendment rights. The plaintiffs also allege that their suspension from school on the basis of evidence obtained through such procedures, and without constitutionally-mandated due

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process of law, violated the fourteenth amendment. 1

An evidentiary hearing on plaintiffs' motion for a preliminary injunction consumed three days beginning on August 18, 1980, during which extensive oral testimony and documentary exhibits were presented. It is on the basis of that factual record that the plaintiffs' motion has been decided.


On March 17, 1980, the School Board of the Latexo Independent School District voted to employ the services of Security Associates Incorporated (SAI) to combat what it perceived to be a growing problem of drug abuse in the Latexo public school. SAI, a private corporation, proposed to inspect the school's students and property for contraband periodically, on unannounced occasions, with the aid of a "sniffer dog" trained to detect a wide variety of illicit odors. 2 Prior to the first such inspection, the student body at Latexo attended an assembly program designed to deter on-campus drug use. At the assembly, defendant Acker, the School Superintendent, explained the rules prohibiting the possession of drugs, drug paraphernalia, tobacco, and other contraband on campus. SAI personnel narrated a slide presentation depicting the dangers of drug abuse. Merko, the trained "sniffer dog" and Kim Lounsberry, the dog's handler or "interdictor", were also present. Together, they demonstrated Merko's ability to ferret out hidden contraband. Superintendent Acker warned the students that Merko would be making surprise visits to the campus to search for drugs and other contraband.

On April 11th, Merko and Ms. Lounsberry appeared at the Latexo school to conduct their first inspection of the campus. Along with Superintendent Acker and a teacher, Ms. Dunn, they moved from classroom to classroom where the students sat at their desks. While the students remained seated, Merko, accompanied by his handler, walked up and down the aisles in the room sniffing each child in turn before departing. If Merko detected a target odor (contraband of some description) emerging from any student, he "alerted" (signaled) his handler, who informed Mr. Acker of the suspect's identity after the dog left the classroom. The dog then proceeded to the student parking lot where it employed its sensitive nostrils to locate additional illicit smells.

Two of the plaintiff students, Scott and Michael Jones, were singled out by Merko during the class-by-class hunt for contraband. They, like all other students so selected by the dog, were removed from class and told to empty their pockets. A cigarette lighter was taken from Scott. The search of Michael's pockets revealed a hair clip which appeared to be burnt and a bottle of "Sinex" nasal spray. The vehicles driven to school by Scott and Michael were also picked out by Merko and searched. Items identified by Kim Lounsberry as "roaches" (the tag ends of marijuana cigarettes) were found in both vehicles. 3 A plastic box identified

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by Ms. Lounsberry as a case for carrying "joints" (marijuana cigarettes) was also found in the vehicle Scott had brought to school.

Following the vehicle searches, Superintendent Acker summoned plaintiff Michele Jones from class. Merko had previously sniffed Michele during his tour of the classrooms without "alerting" on her. When Michele arrived at the parking lot, her purse was searched. A small piece of metal tubing and a hemostat, identified by Ms. Lounsberry as "drug paraphernalia", were found and taken from her at that time.

Superintendent Acker informed the three Jones children that they had been found in possession of drug paraphernalia and other contraband in violation of school rules. He gave them an opportunity to rebut the charges orally. Following a brief discussion during which all three children denied that the items seized had been used in connection with drugs, they were suspended from school for a period of three days and sent home. 4 Superintendent Acker informed Mrs. Jones by telephone of the reason for the suspension and met with her and her three children on April 14 to discuss the matter more extensively. No hearing as such was ever held, nor were any of the plaintiffs informed that they had a right to appeal the Superintendent's decision to the School Board.

Pursuant to school policy, three points for each day missed due to suspension were deducted from the course grades of each student for the final quarter of the school year. As a result of the nine point penalty imposed on Scott Jones, it became mathematically impossible for him to pass American History, a required course, before he took the final examination. Faced with the inevitability of failure, this high school senior declined to take his final examination in American History and in two other courses he was enrolled in. As a result, Scott failed to graduate with his classmates in June. The other two Jones children were able to pass all their courses despite the grade penalty resulting from their suspension.

Merko and his handler paid several subsequent surprise visits to the Latexo school during which the procedure described above was generally repeated. On June 23, 1980, the Latexo School Board voted to rehire SAI and its canine detection service for the 1980-81 school year beginning on September 2, 1980.


I. Jurisdiction.

The blanket inspection carried out by the "sniffer dog" and the resulting searches of selected students and private vehicles constituted state action cognizable under 42 U.S.C. s 1983. School boards, no less than other state entities, are subject to the commands of the fourteenth amendment, Board of Education v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1148, 1185, 87 L.Ed. 1628 (1943), and are amenable to suit. Kingsville I.S.D. v. Cooper, 611 F.2d 1109, 1112 (5th Cir. 1980). While the doctrine of in loco parentis places the school teacher or employee in the role of a parent for some purposes, that doctrine cannot transcend constitutional rights. Picha v. Wielgos, 410 F.Supp. 1214, 1218 (N.D.Ill.1976); Bellnier v. Lund, 438 F.Supp. 47, 51 (N.D.N.Y.1977).

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Thus, the individual defendants implementing School Board policy, like the School District itself, are legally accountable for any constitutional violations they might have committed in the performance of their public duties.

The fact that some of the challenged actions were carried out by employees of SAI, a private corporation, does not lessen the degree of state involvement. The entire drug detection program at the Latexo school was initiated and implemented at the direction of the School Board and with the active involvement of Superintendent Acker and other school personnel. At the very least, the school was a joint participant in the program at all times, rendering the challenged conduct state action under the fourteenth amendment. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 861, 6 L.Ed.2d 45 (1961). Moreover, the students subjected to Merko's sniffing and the subsequent search of their pockets and belongings were present in school as required by the state's compulsory attendance law, Tex.Educ.Code Ann. s 21.032 (Vernon 1972). They were thus prohibited from leaving to avoid the search had they wished to do so.

Plaintiffs seek to invoke the jurisdiction of this court under 28 U.S.C. s 1343(3). Since the suit would allegedly redress the deprivation, under color of law, of rights secured by the Constitution, jurisdiction under that statute must be exercised unless the federal question alleged is clearly immaterial or wholly insubstantial. Walsh v. Louisiana High School Athletic Assoc., 616 F.2d 152, 156 (5th Cir. 1980). Neither of those barriers to federal jurisdiction is present here.

II. The School's Anti-Drug Policy.

The School Board's concern over the problem of drug abuse in the Latexo Independent School District was most...

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