Cornfield by Lewis v. Consolidated High School Dist. No. 230

• Decision Date: 23 April 1993
• Docket Number: No. 92-1863,92-1863
• Parties: 82 Ed. Law Rep. 379 Brian CORNFIELD, a minor, By his Mother and next friend, Janet LEWIS, Plaintiff-Appellant, v. CONSOLIDATED HIGH SCHOOL DISTRICT NO. 230, Richard Spencer, and James Frye, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1316

991 F.2d 1316

82 Ed. Law Rep. 379

Brian CORNFIELD, a minor, By his Mother and next friend, Janet LEWIS, Plaintiff-Appellant, v. CONSOLIDATED HIGH SCHOOL DISTRICT NO. 230, Richard Spencer, and James Frye, Defendants-Appellees.

No. 92-1863.

United States Court of Appeals,

Seventh Circuit.

Argued Nov. 12, 1992.

Decided April 23, 1993.

Richard L. Hutchison, Hutchison, Anders & Associates, Tinley Park, IL (argued), for plaintiff-appellant.

Robert M. Chemers, Edward B. Ruff (argued), Michael G. Bruton, Pretzel & Stouffer, Chicago, IL for defendants-appellees.

Before FLAUM and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

FLAUM, Circuit Judge.

Brian Cornfield was enrolled in a behavioral disorder program at Carl Sandburg High School. Kathy Stacy, a teacher's aide in that program, found him outside the school building in violation of school rules on March 7, 1991. When she reported the infraction to Richard Spencer, Cornfield's teacher, and Dean Richard Frye, Stacy also alerted them to her suspicion that Cornfield appeared "too well-endowed." Another teacher, Joyce Lawler, and teacher's aide Lori Walsh corroborated Stacy's observation of an unusual bulge in Cornfield's crotch area. Neither defendant took any action at that time. The following day Cornfield was boarding the bus home when Spencer and Frye took him aside. Spencer himself had observed the unusual bulge in the crotch area of Cornfield's sweatpants. Believing the sixteen-year-old Cornfield was "crotching" drugs, Spencer and Frye asked him to accompany them to Frye's office to investigate further. When confronted with their suspicion, Cornfield grew agitated and began yelling obscenities. At Cornfield's request, Frye telephoned the minor's mother Janet Lewis to seek consent for a search. She refused.

Spencer and Frye nevertheless proceeded with the search. Believing a pat down to be excessively intrusive and ineffective at detecting drugs, they escorted Cornfield to the boys' locker room to conduct a strip search. After making certain that no one else was present in the locker room, they locked the door. Spencer then stood about fifteen feet from Cornfield, and Frye was standing on the opposite side, approximately ten to twelve feet away, while they had him remove his street clothes and put on a gym uniform. Spencer and Frye visually inspected his naked body and physically inspected his clothes. Neither man performed a body cavity search. They found no evidence of drugs or any other contraband. Afterwards the school bus was recalled, and it took Cornfield home.

Alleging that the search violated his Fourth, Fifth, and Fourteenth Amendment rights, Cornfield brought an action under 42 U.S.C. § 1983 against Consolidated High School District No. 230 ("District 230"), the parent organization of Carl Sandburg High School, and against Spencer and Frye in their professional and individual capacities.

I.

After the filing of affidavits, the district court granted summary judgment in favor of Spencer and Frye in their individual capacities, a decision that we review de novo. Doe v. Allied-Signal, Inc., 925 F.2d 1007, 1008 (7th Cir.1991). In examining the record, we draw all reasonable inferences from it in the light most favorable to the nonmoving party. Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990). The non-moving party cannot rest on the pleadings alone, but must identify specific facts to establish that there is a genuine triable issue. Unless we find evidence sufficient to sustain a jury verdict in favor of the nonmoving party, we will affirm the grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

A.

The first question we address on review is whether the strip search of Cornfield was consistent with the Fourth Amendment. The Supreme Court established in New Jersey v. T.L.O. that reconciling the privacy interests of children with the needs of schools to maintain order does not require strict adherence to a probable cause standard for Fourth Amendment purposes. By its express language, the Fourth Amendment prohibits only unreasonable searches:

Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place. The determination of the standard of reasonableness governing any specific class of searches requires "balancing the need to search against the invasions which the search entails." On one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security; on the other, the government's need for effective methods to deal with breaches of public order.

469 U.S. 325, 340, 105 S.Ct. 733, 741, 83 L.Ed.2d 720 (1985) (citations omitted). To strike a balance, the Supreme Court fashioned a two-prong test for evaluating whether a search of a student is constitutional. First, the search must be "justified at its inception." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). According to the Supreme Court, "a search of a student by a teacher or other school official is 'justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." T.L.O., 469 U.S. at 341-42, 105 S.Ct. at 743. "Justified at its inception" in the present context does not mean that a school administrator has the right to search a student who merely acts in a way that creates a reasonable suspicion that the student has violated some regulation or law. Rather, a search is warranted only if the student's conduct creates a reasonable suspicion that a particular regulation or law has been violated, with the search serving to produce evidence of that violation. Second, the search must be permissible in scope: "[T]he measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Id.

Therefore, whether a search is "reasonable" in the constitutional sense will vary according to the context of the search. In this regard, a couple of points should be immediately apparent. A nude search of a student by an administrator or teacher of the opposite sex would obviously violate this standard. Moreover, a highly intrusive search in response to a minor infraction would similarly not comport with the sliding scale advocated by the Supreme Court in T.L.O. To elaborate, "[a] search of a child's person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy." Id. at 337-38, 105 S.Ct. at 740-41. Accordingly, as we concluded in Doe v. Renfrow, 631 F.2d 91 (7th Cir.1980) (per curiam), cert. denied, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1982), which adopted the opinion of the district court, Doe v. Renfrow, 475 F.Supp. 1012 (N.D.Ind.1979), "[s]ubjecting a student to a nude search is more than just the mild inconvenience of a pocket search, rather it is an intrusion into an individual's basic justifiable expectation of privacy." Id. at 1024. Indeed, we amplified this concern: "It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human decency." 631 F.2d at 92-93. Therefore, as the intrusiveness of the search of a student intensifies, so too does the standard of Fourth Amendment reasonableness. What may constitute reasonable suspicion for a search of a locker or even a pocket or pocketbook may fall well short of reasonableness for a nude search.

Thus, this flexible standard allows a school administrator or court to weigh the interest of a school in maintaining order against the substantial privacy interests of students in their bodies. In this regard, no one would seriously dispute that a nude search of a child is traumatic. See, e.g., Darryl H. v. Coler, 801 F.2d 893, 901 (7th Cir.1986); Flores v. Meese, 681 F.Supp. 665, 667 (C.D.Cal.1988); Bellnier v. Lund, 438 F.Supp. 47, 53 (N.D.N.Y.1977). The actual impact of a strip search will, of course, vary with the individual child, which is difficult to predict, and with the child's age, which is not. Although the Supreme Court in T.L.O. identified age as one of the factors used to evaluate the reasonableness of a search, it did not elaborate how age mattered. Whether the child is seven or seventeen is nonetheless relevant. See Group for the Advancement of Psychiatry, How Old is Enough?--The Ages of Rights and Responsibilities (1989); Children's Competence to Consent, (Gary B. Melton et al., eds. 1983); see generally S. Shatz, M. Donovan, and J. Hong, The Strip Search of Children and the Fourth Amendment, 26 U.S.F.L.Rev. 1 (1991); M. Gardner, Student Privacy in the Wake of T.L.O.: An Appeal for an Individualized Suspicion Requirement for Valid Searches and Seizures in the Schools, 22 Ga.L.Rev. 897 (1988). First, the likelihood that a child is engaging in independent criminal activity will tend to increase with the age of the child. Second, a child's capacity to meaningfully consent to the strip search decision will depend on the child's age. ¹

Since the ages of seven and fourteen are regarded as important transition periods in child development, they also can serve as useful guideposts for us here. In fact, these same age divisions correspond neatly with assumptions long employed in criminal law. At common law children under the age of seven were considered to be without criminal capacity. Children over the age of fourteen were treated as having the same criminal capacity as adults. And children between the ages of seven and...