Jenkins by Hall v. Talladega City Bd. of Educ.

• Citation: 95 F.3d 1036
• Decision Date: 23 September 1996
• Docket Number: No. 95-6243,95-6243
• Parties: 112 Ed. Law Rep. 90 Cassandra JENKINS, a minor, by her mother and next friend, Sandra HALL; Onieka McKenzie, a minor, by her mother and next friend, Elizabeth McKenzie, Plaintiffs-Appellants, v. TALLADEGA CITY BOARD OF EDUCATION; Susannah Herring, individually and in her capacity as a teacher of Graham Elementary School; Melba Sirmon, individually and in her capacity as counselor at Graham Elementary School, Defendants-Appellees, Charles Kurley, in his official capacity as Superintendent of the Talladega City School District, et al., Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1036

95 F.3d 1036

112 Ed. Law Rep. 90

Cassandra JENKINS, a minor, by her mother and next friend,

Sandra HALL; Onieka McKenzie, a minor, by her

mother and next friend, Elizabeth

McKenzie, Plaintiffs-Appellants, v. TALLADEGA CITY BOARD OF EDUCATION; Susannah Herring,

individually and in her capacity as a teacher of Graham

Elementary School; Melba Sirmon, individually and in her

capacity as counselor at Graham Elementary School,

Defendants-Appellees,

Charles Kurley, in his official capacity as Superintendent

of the Talladega City School District, et al., Defendants.

No. 95-6243.

United States Court of Appeals, Eleventh Circuit.

Sept. 23, 1996.

Order Granting Rehearing En Banc and Vacating Panel Opinion

Oct. 16, 1996.

Devarieste Curry, Beveridge & Diamond, Washington, DC, for appellants.

Donald B. Sweeney, Jr., Valerie Theresa Kisor, Rives & Peterson, Birmingham, AL, for appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

This action was brought on behalf of two elementary school students who allegedly were strip searched by a teacher and guidance counselor after having been accused of stealing money from a classmate. The district court concluded that defendants were entitled to summary judgment on all claims. In particular, the court granted the individual defendants summary judgment on plaintiffs' § 1983 Fourth Amendment claims. We affirm all of the district court's summary judgment orders, except for the grant of qualified immunity to defendants on the Fourth Amendment claims, which we reverse.

I.

In 1992, Cassandra Jenkins and Onieka McKenzie were eight-year-old second graders at Graham Elementary School in Talladega, Alabama. On the afternoon of May 1, one of Cassandra's and Onieka's classmates told their teacher, Hilda Fannin, that $7 was missing from her purse. Another classmate told Fannin that Cassandra had taken the money and stashed it in Onieka's backpack. After searching the backpack and finding no money, Fannin questioned Cassandra and Onieka in the hallway outside the classroom. The girls accused each other, as well as a male classmate, Anthony Jemison, of the theft.

As Fannin's questioning of Cassandra, Onieka, and Anthony continued in the hallway, the school music teacher, Susannah Herring, approached. Upon being informed of the theft accusation, Herring took charge of the investigation. First, she instructed the three students to take off their shoes and socks. No money was revealed. Herring then summoned Melba Sirmon, a guidance counselor whose office was nearby. Herring and Sirmon took Cassandra and Onieka to the girls' restroom.

Inside the restroom, Herring told Cassandra and Onieka to "check" their clothes for the money. According to Cassandra, Herring ordered them to go inside the stalls and come back out with their underpants down to their ankles. ¹ As Cassandra and Onieka entered separate stalls and locked the doors, Sirmon left the restroom to check on Anthony, who was waiting outside. Shortly after she returned, according to Cassandra, Cassandra and Onieka emerged from the stalls with their underpants pulled down to their ankles. Herring asked them if they had found the money, and they replied that they had not. Sirmon allowed them to return to their stalls and pull their underpants back up. ²

Herring and Sirmon then escorted Cassandra, Onieka, and Anthony to the office of the school principal, Crawford Nelson. After hearing Herring's account of what had happened, ³ Nelson interrogated the three children about the location of the stolen cash. Anthony claimed that the money was hidden behind a file cabinet and then, when nothing was found there, that it was stashed in a locker. Nelson concluded that Anthony had no idea where the money was and dismissed him.

From Nelson's office, Herring and Sirmon took Cassandra and Onieka back to the restroom. ⁴ Inside, Herring ordered the two girls to take off their dresses, which they did. Cassandra was wearing a slip; Onieka was wearing only underpants. Herring then instructed them to shake their dresses, and she shook the slip Cassandra was wearing. After nothing was found, Cassandra and Onieka were allowed to put their dresses back on. This account was corroborated by a witness. Joyce Merritt Shears, the parent of another student, was walking in the hallway past the girls' restroom while Cassandra and Onieka were being searched. Shears heard children crying and an adult say either "remove your slip" or "hold up your slip." Entering the restroom to investigate, Shears saw Cassandra and Onieka, "one in their panties and the other one in their slip."

The Talladega City Board of Education ("Board") conducted an investigation of the strip search. After a hearing, the Board concluded that Herring had committed a "gross error in judgment" regarding the manner in which she investigated the alleged theft; that Sirmon had erred in her judgment by assisting Herring, failing to notify the principal immediately, and not calling Cassandra's and Onieka's parents; and that Nelson had erred in his judgment by not calling the girls' parents and failing to establish a uniform policy for dealing with theft in the school. Despite the superintendent's recommendation that Herring be fired, the Board did not impose any serious sanctions.

Plaintiffs, on behalf of Cassandra and Onieka, filed a complaint against the Board and nine individual defendants (including Nelson, Herring, and Sirmon) in 1994, alleging, pursuant to 42 U.S.C. § 1983, that they had been strip searched in violation of the Fourth Amendment, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972, ⁵ and also alleging violations of Alabama tort law. The district court initially dismissed all claims for money damages against all defendants, except for those against Herring and Sirmon in their individual capacities and those against the Board. Then, on its own initiative, the court entered an order stating that it was reconsidering whether Herring and Sirmon were entitled to qualified immunity for the allegedly unconstitutional search in light of recent Eleventh Circuit decisions. The court proceeded to grant summary judgment on the basis of qualified immunity in favor of the individual defendants on the Fourth Amendment claim. In addition, the court granted summary judgment for all defendants on the Title VI and Title IX claims, finding no substantial evidence of discrimination based on race or gender; for the Board on the § 1983 Fourth Amendment claim, finding no basis for municipal liability; for all defendants on the claims for injunctive and declaratory relief, finding that the plaintiffs lacked standing to bring these claims; and for individual defendants on the state law claims, finding that the defendants were entitled to qualified immunity under Article I, § 14 of the Alabama Constitution. Plaintiffs now appeal.

II.

We affirm the grant of summary judgment for all defendants on the Title VI and Title IX claims, for the Board on the Fourth Amendment § 1983 claim, for all defendants on the claims for injunctive and declaratory relief, and for the individual defendants on the state law claims. ⁶ This leaves the issue of § 1983 qualified immunity for the individual defendants on plaintiffs' Fourth Amendment claims.

The district court granted Herring and Sirmon qualified immunity, concluding that Fourth Amendment law was not "clearly established" as applied to their conduct. ⁷ We reverse the district court's decision because Fourth Amendment law was sufficiently clear in 1992 that there could be no doubt that Herring's and Sirmon's actions (construing the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiffs at the summary judgment stage) were unconstitutional.

III.

Before reaching the merits, we wish to clarify some general qualified immunity issues that seem to have confused the district court and defendants in this case.

The Supreme Court's qualified immunity doctrine attempts to strike a balance between two competing concerns: the necessity for constitutional damages actions against public officials because such actions "may offer the only realistic avenue for vindication of constitutional guarantees" and the need to limit the costs to individuals and society created by litigation against public officials--including diversion of official energies from pressing public issues, deterrence of able citizens from acceptance of public office, and "the danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.' " Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982) (quoting Gregoire v. Biddle, 177 F.2d 579, 582 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950)).

In its effort to strike the optimal balance, the Supreme Court in Harlow v. Fitzgerald established an objective test for qualified immunity: government officials performing discretionary functions are immune from § 1983 liability for monetary damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. 800, 817-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In Anderson v. Creighton, the Court explained when a right is "clearly established":

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

483 U.S....