828 F.2d 1151 (6th Cir. 1987), 86-5352, Webb v. McCullough

Docket Nº:86-5352.
Citation:828 F.2d 1151
Party Name:Wendy E. WEBB, et al., Plaintiffs-Appellants, v. Thomas T. McCULLOUGH, et al., Defendants-Appellees.
Case Date:September 17, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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828 F.2d 1151 (6th Cir. 1987)

Wendy E. WEBB, et al., Plaintiffs-Appellants,

v.

Thomas T. McCULLOUGH, et al., Defendants-Appellees.

No. 86-5352.

United States Court of Appeals, Sixth Circuit

September 17, 1987

Submitted May 8, 1987.

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Roy Webb, Elaine Webb, Wendy E. Webb. pro se.

Randall L. Nelson, Eugene Collins and Associates, Chattanooga, Tenn., W. Lee Maddux, for defendants-appellees.

Before GUY and BOGGS, Circuit Judges and EDWARDS, Senior Circuit Judge.

BOGGS, Circuit Judge.

Wendy Webb (Webb) was sent home early from a high school trip to Hawaii and suspended from school after a search of

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her hotel room revealed alleged violations of school and trip rules. She sued the school administrators for alleged violations of her Fourth and Fourteenth Amendment rights. The district court granted defendants summary judgment on all the federal claims based on the searches and suspensions, and therefore dismissed pendent state claims. We affirm the grant of summary judgment on the searches and suspensions, but remand due to the possibility that an alleged battery violated Webb's substantive due process rights.

I

Webb joined about 140 other members of the Hixson High School Band in a trip to Hawaii for a band competition in late March 1985. On March 29, Webb and her roommates were getting ready to go shopping when Appellee Thomas McCullough, the Hixson High School Principal, (McCullough), used a key to enter their hotel room without warning, in the company of Mr. Crumley, a chaperone, according to Webb. All four roommates were present, one in bra and shorts. The two men left, and Mrs. McCullough entered and told the girls to finish dressing. According to McCullough, he announced his and Crumley's presence before entering, and his wife entered first to assure that the girls were dressed. McCullough and Crumley re-entered, and according to Webb, informed the girls that the front desk had told him to search the room for alcoholic beverages. He searched the bedroom, bathroom, and Webb's suitcase, including "personal hygiene items." Neither that search nor contemporaneous searches of other students' rooms found any alcoholic beverages.

That evening, McCullough held a meeting and told students that he had reason to believe that the rules had been violated. According to Webb, McCullough told the group that anyone caught with alcohol or illegal drugs would be sent home, and anyone who violated curfew would have to come in earlier the following night. The students were dismissed at approximately 10:50 p.m. and Webb and her roommates went back to their room.

As Webb and her roommates returned to their room, they saw another female student in the hall, talking to two unknown boys. The girl and the two boys then came to Webb's door and Webb and her roommates sat in the hall immediately outside the door to their room talking with them. Webb's chaperone, Mrs. Bandy, gave Webb and the roommate permission to stay there until Bandy had completed her room checks.

According to Webb, there was a phone call for her as she sat talking with the other girls and the two boys, which she entered the room to answer. One of the boys followed Webb. According to Webb, she told him he couldn't stay, and went into the hallway to ask her roommates why he was in the room. McCullough then told Webb and her roommates to go into their room. They replied that they had been given permission by their chaperone to stay there for a while.

McCullough then directed the one boy in the hall to leave and told the girls to go to their room. Webb and the roommates went into their room. According to McCullough, he entered the room and found no one else present, whereupon he left. Webb disputes this, claiming that only Bandy came in shortly thereafter to discuss the next day's schedule. Neither party states any knowledge of the other boy's whereabouts, at that point.

According to McCullough, upon being informed by one of the chaperones that some students had used an unoccupied room adjacent to, and sharing a balcony with, Webb's room the previous night, he notified a hotel security officer, who opened the room. Upon entering, McCullough saw a teenage boy on the balcony of the room. The boy jumped over a barrier between the two sections of the balcony. McCullough then re-entered Webb's room, and saw the boy jump back to the balcony outside the unoccupied room. The boy was then apprehended by the security officer. According to Webb, McCullough then re-entered the room and stated that there was a boy on the balcony. He left, and motioned for Bandy to leave. He then told the girls to

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pack their bags because he was sending them home on the first available flight, as a boy had been caught by the security guard. While he was doing this, one of the chaperones found a six-pack of beer and a quart of wine in the adjacent room's refrigerator.

According to the girls, they attempted to offer explanations, but McCullough wouldn't listen. McCullough stated that he found wine and beer in the next room.

According to Webb, McCullough then left, and she locked herself in the bathroom. One roommate was crying, and the other two called for McCullough to return. McCullough was quite angry when he realized Webb was in the bathroom. He tried to jimmy the bathroom door lock, but Webb would not let him in. He then slammed the door three or four times with his shoulder. The door finally gave way, knocking Webb against the wall. McCullough then thrust the door open again, and it struck Webb again, throwing her to the floor. He then grabbed Webb from the floor, threw her against the wall, and slapped her. She then broke away and ran to her roommates.

McCullough telephoned Webb's parents and informed them that she was being sent home. Early the next morning, March 30, he left Webb and her roommates at the airport. Their luggage was sent ahead, and they were left at the airport with stand-by tickets for any flight headed to any city on the mainland, with funds insufficient to buy meals. The girls were not able to obtain seats until approximately 24 hours later. Therefore, they had to spend the night at the airport. After another delay and a detour to Chicago, the girls arrived in Chattanooga at about 3:30 a.m. on April 1, about 36 hours after McCullough abandoned them at the airport in Hawaii.

On April 5, McCullough suspended Webb and the roommates, effective April 8, for violation of curfew, having a male in their room, having liquor in the next room, and trespassing into adjacent rooms of the hotel. Webb contends that Superintendent James McCullough (the Superintendent) knew and approved of the suspension. McCullough (the principal) met with Webb and her parents on April 8. According to Webb, he stated that he had suspended her because her parents had spoken with members of the Board of Education concerning his actions. A meeting with the Superintendent and McCullough followed on April 10. Webb then sought a federal injunction. On April 17, an agreement was reached between Webb's attorney and the City Attorney's office to readmit Webb to school. However, Webb was never allowed to return to band class.

On May 23, 1985, Webb and her parents filed suit against the principal, the Superintendent, the Chattanooga Public Schools, and the Chattanooga Board of Education, alleging violation of her 4th Amendment and 14th Amendment rights and 42 U.S.C. Sec. 1983 as to the search of her room and the suspension, and violation of Tennessee statutory and common law as to the suspension, her property right in the room and food for which she had paid, battering, intentional emotional distress, and publication of false and defamatory matter. When Webb reached her majority, the parent's claim was treated as withdrawn by their counsel, and later by the district court. They do not appeal this decision. Webb is now proceeding pro se. Thereafter, the defendants moved for summary judgment under Rule 56, Fed.R.Civ.P. The district court granted summary judgment and dismissed the pendent state law issues as to all defendants. This appeal is from that grant and dismissal.

II

A

There can be little doubt that principal Thomas McCullough was a representative of the Chattanooga Public Schools during the trip to Hawaii and hence acting under the color of state law. This is borne out by his own affidavit that:

at all times during the subject trip of the Hixson High School marching band to the state of Hawaii in late March, 1985, [I] served as chaperon[e] for the students.

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In my capacity as Principal of the school, I was in overall charge of all students on the trip.

Appendix (App). at 40 (emphasis added). It is also supported by the "Medical Information and Travel Permission" slip which Webb's parents were required to sign. The question therefore arises as to whether there any circumstances under which it is permissible for a public school official to search the private hotel room of a student.

B

The district court answered this question in the affirmative by examining the searches under the two-part test set out in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (hereinafter, TLO ), which holds that "the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." Id., 105 S.Ct. at 743-44. The first step is to determine whether the search was justified at its inception by the presence of "reasonable grounds for suspecting that the search will turn up evidence that the student violated or is violating either the law or the rules of the school." TLO, 105 S.Ct. at 744. If such grounds existed, the second step renders a search "permissible in its scope when...

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