Herrera v. Santa Fe Pub. Sch., CIV 11–0422 JB/KBM.

• Citation: 273 Ed. Law Rep. 290,792 F.Supp.2d 1174
• Decision Date: 20 May 2011
• Docket Number: No. CIV 11–0422 JB/KBM.,CIV 11–0422 JB/KBM.
• Parties: Candice HERRERA and T.H., a minor by and through her father and guardian Vincent Herrera, and all others similarly situated, Plaintiffs,v.SANTA FE PUBLIC SCHOOLS, Santa Fe Public Schools Board Of Education, Barbara Gudwin, Glenn Wikle, Linda Trujillo, Frank Montano, Steven J. Carrillo, in their official capacities as members of the Santa Fe Public Schools Board of Education, Bobbie J. Gutierrez, in her official capacity as Superintendent of Santa Fe Public Schools, Melanie Romero, individually and in her official capacity as Principal of Capital High School, Robert Stephens, in his official capacity as Principal of Santa Fe High School as a necessary party for complete relief, ASI New Mexico, LLC, John/Jane Doe Nos. 1–8, Defendants.
• Court: U.S. District Court — District of New Mexico

792 F.Supp.2d 1174

273 Ed. Law Rep. 290

Candice HERRERA and T.H., a minor by and through her father and guardian Vincent Herrera, and all others similarly situated, Plaintiffs,

v.SANTA FE PUBLIC SCHOOLS, Santa Fe Public Schools Board Of Education, Barbara Gudwin, Glenn Wikle, Linda Trujillo, Frank Montano, Steven J. Carrillo, in their official capacities as members of the Santa Fe Public Schools Board of Education, Bobbie J. Gutierrez, in her official capacity as Superintendent of Santa Fe Public Schools, Melanie Romero, individually and in her official capacity as Principal of Capital High School, Robert Stephens, in his official capacity as Principal of Santa Fe High School as a necessary party for complete relief, ASI New Mexico, LLC, John/Jane Doe Nos. 1–8, Defendants.

No. CIV 11–0422 JB/KBM.

United States District Court, D. New Mexico.

May 20, 2011.

Megan Moran–Gates, Reed N. Colfax, Relman, Dane & Colfax PLLC, Aimee Bevan, O'Friel & Levy, P.C., Santa Fe, NM, Attorneys for the Plaintiffs.

AMENDED MEMORANDUM OPINION AND ORDER ¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Plaintiff Candice Herrera's Motion for Temporary Restraining Order, filed May 17, 2011 (Doc. 2). The Court held a hearing on May 19, 2011. The primary issue is whether the Court should enter a temporary restraining order, pursuant to rule 65(b), prohibiting the Defendants from conducting searches at the 2011 Santa Fe High School prom and the 2011 Capital High School graduation. The Court will grant the motion in part and deny the motion in part. The Court will not preclude all searches and confiscation, but will not allow the searches and confiscations as done in the past. The Court will issue a temporary restraining order, directing the Defendants to limit their searches, because it finds that Plaintiff Candice Herrera has shown that she will suffer irreparable injury unless some temporary restraining order issues, that there is a substantial likelihood that C. Herrera will prevail on the merits of some of her claims under 42 U.S.C. § 1983, that the threatened injury outweighs whatever damage the restraining order may cause the Defendants, and that the restraining order would not be adverse to the public interest.²

FINDINGS OF FACT

A temporary restraining order requires the Court to make predictions about the plaintiff's likelihood of success. “[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.” Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir.2009) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); other quotations omitted). “The Federal Rules of Evidence do not apply to preliminary injunction hearings.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir.2003).

1. On April 16, 2011, C. Herrera and her younger sister, T.H., attended Capital High School's prom at the Santa Fe Convention Center. See Transcript of Hearing at 66:1–3 (taken May 19, 2011)(Colfax, C. Herrera)(“Tr.”); ³ Affidavit of T.H. ¶ 2, at 1 (sworn May 16, 2011), filed May 17, 2011 (Doc. 2–3).

2. Like other students at Capitol High, C. Herrera and her sister were dressed in formal clothes. See Tr. at 67:4–5 (Colfax, C. Herrera); T.H. Aff. ¶ 3, at 1.

3. When C. Herrera walked into the convention center, school officials checked her school identification and took her prom ticket; they then told her to go to a security table. See Tr. at 67:13–18 (Colfax, C. Herrera).

4. Defendant Santa Fe Public Schools (“SFPS”) has been conducting searches at extracurricular activities since approximately 2004; in 2005, SFPS entered into a contract for security services with Defendant ASI New Mexico, LLC. See id. at 51:10–14 (Gutierrez).

5. SFPS has faced instances where students had alcohol, drugs, or weapons at graduation or prom. See Tr. at 50:21–51:7, 53:19–20 (Sanchez, Gutierrez).

6. There were two security lines at the Capital High School prom; one for males and one for females. See id. at 67:22 (C. Herrera).

7. A security officer, who was wearing a uniform that said ASI, asked C. Herrera to spread her arms and legs; the security officer then patted down C. Herrera, touching her arms, her stomach, and cupping and shaking C. Herrera's breasts; she also lifted C. Herrera's floor length dress to mid-thigh level and touched C. Herrera's legs. See Tr. at 68:12–24 (Colfax, C. Herrera).

8. The security officer then took C. Herrera's shoes, shook them, and hit them on the table. See id. at 70:25–71:1 (C. Herrera).

9. The security officer then passed a wand around C. Herrera. See id. at 69:2 (C. Herrera).

10. The security officer then had C. Herrera walk forward to a table where they dumped the contents of her purse on the table, and moved the contents around to look for contraband. See Tr. at 71:14–17 (C. Herrera).

11. The security officers confiscated C. Herrera's hand lotion, her manicure kit which had her nail file and nail clippers, and her prescription medication for dizziness. See Tr. at 72:1–12 (Colfax, C. Herrera).

12. C. Herrera saw other students being searched at the entrance to the prom. See id. at 74:7–10 (Colfax, C. Herrera).

13. C. Herrera intends to attend the Santa Fe High School prom on May 21, 2011 and her graduation from Capital High School on May 27, 2011. See id. at 76:8–9 (C. Herrera).

14. She is concerned that, if she attends these events. she will undergo a similar search. See id. at 76:10–13 (Colfax, C. Herrera).

15. Although C. Herrera had attended three proms previously, and three homecoming dances, she had never been touched during a search. See id. at 80:7–21 (C. Herrera, Sanchez)(stating that she was wanded but was never touched).

16. Prom and graduation are voluntary events; attendance is not required by the schools and walking in graduation is not required to obtain one's high school degree. See Tr. at 80:25–83:7 (Sanchez, C. Herrera).

17. Other school districts, such as Albuquerque Public Schools, do not conduct pat-down searches at graduations. See id. at 14:17–15:3 (Sanchez, Court).

18. The rules in the Santa Fe Public Schools Code of Conduct “apply to students whenever students are: 1. present in any school or on property of the school district; [or] 2. at any school-sponsored activity, regardless of its location.” Santa Fe Public Schools Code of Conduct at 10 (Plaintiff's Exhibit 2).

19. In a section entitled “Scope and Extent of Searches of Students,” the Santa Fe Public Schools Code of Conduct states:

More intrusive searches, such as pat-downs, may be conducted only on the basis of reasonable suspicion of the individual student to be searched. The more intrusive the search of a student's person, the greater the necessity that school officials be able to articulate the specific basis of the suspicion, justifying such a search.

Santa Fe Public Schools Code of Conduct at 57.

PROCEDURAL BACKGROUND

On May 17, 2011, C. Herrera filed Plaintiff Candice Herrera's Motion for Temporary Restraining Order. See Doc. 2. She asks the Court to enter a restraining order directing the Defendants to refrain from conducting searches at the 2011 Santa Fe High School prom or the 2011 Capital High School graduation. She argues that she will suffer irreparable injury if a temporary restraining order does not issue, that she is likely to prevail on the merits of her claims under 42 U.S.C. § 1983 that the Defendants' conduct violates the Fourth Amendment to the United States Constitution, that the threatened injury to her outweighs whatever damage a restraining order may have on the Defendants, and that the restraining order would not be adverse to the public interest.

On May 19, 2011, Defendants SFPS, Board of Education for the Santa Fe Public Schools, Barbara Gudwin, Glenn Wikle, Linda Trujillo, Frank Montano, Steven J. Carrillo, Bobbie J. Gutierrez, Melanie Romero, and Robert Stephens (collectively “the School District Defendants”) filed the School District Defendants' Response in Opposition to Plaintiffs' Motion for Temporary Restraining Order. See Doc. 28. The School District Defendants ask the Court to deny C. Herrera's request for a temporary restraining order. They argue that students who voluntarily participate in extracurricular activities, such as prom and graduation, have a substantially reduced expectation of privacy. They argue that, given the substantially reduced expectation of privacy, the pat-down searches are not unreasonably offensive or intrusive compared to the governmental interests in health and safety. They argue that suspicionless pat-down searches of the students' persons are permissible, because the expectation of privacy has been drastically reduced because of participation in extracurricular activities, and because the searches are conducted to detect drugs, alcohol, and weapons.

At the hearing, Plaintiffs' counsel represented that this action has been filed as a class action, and that the Court should thus issue relief on behalf of the students for whom the action was filed. At the hearing, the Court ordered the School District Defendants to send a notice to students indicating that, at Santa Fe High School's prom, they may be subject to a search, to describe what that search may be, and to indicate what items the students may not bring to prom and that those items may be confiscated. The Court ordered the School District Defendants to file the notice with the Court.

On May 20, 2011, the School District Defendants filed the notice with the Court. See Santa Fe High School Prom Rules and Reminders, filed May 20, 2011 (Doc. 29). This document stated that the SFPS' Code of Conduct would be enforced. It indicated that a search of students and their possessions may be conducted, and that the search may include a body wand and, if necessary, a body pat-down and the inspection of shoes, jackets, purses, bags, or other items. It also indicated that...