Citations
- 94 F. Supp. 2d 1290
Full opinion text
ORDER
CARNES, District Judge.
This case is presently before the Court on defendant Tracey Morgan’s Motion for Summary Judgment [61], defendant R.G. Roberts’ Motion for Summary Judgment [62], defendant Ralph Matthews’ Motion for Summary Judgment [64], defendant Clayton County School District’s Motion for Summary Judgment [65], defendant Zannie Billingslea’s Motion for Summary Judgment [68], defendant Clayton County’s Motion for Summary Judgment [72], and defendant Tracey Morgan’s Motion to Seal a Page of her Motion for Summary Judgment [84-A], The Court has reviewed the record and the arguments of the parties and, for the reasons set forth below, concludes that defendant Tracey Morgan’s Motion for Summary Judgment [61] should be GRANTED, defendant R.G. Roberts’ Motion for Summary Judgment [62] should be GRANTED, defendant Ralph Matthews’ Motion for Summary Judgment [64] should be GRANTED, defendant Clayton County School District’s Motion for Summary Judgment [65] should be GRANTED, defendant Zannie Billingslea’s Motion for Summary Judgment [68] should be GRANTED, defendant Clayton County’s Motion for Summary Judgment [72] should be GRANTED, and defendant Tracey Morgan’s Motion to Seal a Page of her Motion for Summary Judgment [84-A] should be DENIED.
BACKGROUND
I. The events of October SI, 1996
On the morning of October 31, 1996, plaintiff Sergio Evans brought an envelope containing $26.00 to his school, West Clayton Elementary School in Clayton County, Georgia. (Pis.’ Resp. to Defs. Clayton County School District & Matthews’ Stmt, of Mat. Facts [81] at ¶ 1.) Sergio collected this money by selling candy to raise funds to enable the fifth grade to take a field trip to Tennessee. (Id. at ¶ 8.) Upon arriving at his classroom, Sergio placed the envelope on a table near the desk of his teacher, Tracey Morgan. (Id. at ¶ 9.) A few moments later, after Sergio and Ms. Morgan discovered that the envelope was no longer on the table, Sergio searched around the table and in his belongings in an attempt to locate the envelope. (Pis.’ Resp. to Def. Roberts’ Stmt, of Mat. Facts [83] at ¶ 4.) In addition, Morgan searched around the classroom for the envelope, taking the trash cans outside of the class to search through them. (Id. at ¶ 7.) Before Morgan left the classroom, the Drug Resistance Awareness Education (hereinafter “DARE”) officer, Zannie Billingslea, had arrived to teach the students a drug awareness lesson. (Morgan Dep. at 55-56.) Morgan left the room, leaving Billing-slea with the children.
While outside the room, Morgan attempted to call Sergio’s mother to ensure that Sergio had brought the money to school with him. (Pis.’ Resp. [81] at ¶ 11.) Morgan then brought the trash cans with her to the school’s workroom, where she encountered defendant R.A. Roberts, the assistant principal of the school, and Ma-dricia Nettles, a school paraprofessional. (Pis.’ Resp. to Def. Roberts’ Stmt, of Mat. Facts [83] at ¶ 9.) Morgan explained to Roberts that money was missing from her classroom and asked if she could perform a search to find the money. (Id. at ¶ 10.) Roberts first asked if Morgan had collected all of the fund-raising and lunch monies she was supposed to collect that day. (Id. at ¶ 11.) What occurred next is disputed. Roberts asserts that she authorized a search, but gave Morgan specific limitations as to the extent of the search — authorizing only a search of the girls’ purses and the boys’ pockets but stopping short of authorizing a strip search of the children. (Roberts’ Dep. at 59-60.) Morgan, on the other hand, testified that Roberts authorized a search but did not specify exactly how the search should be performed. (Morgan Dep. at 56, 60-62.) The parties also dispute whether Roberts gave Morgan permission to utilize Billingslea in any search of the children. (Id.; Roberts Dep. at 62.)
After speaking with Roberts, Morgan returned to her classroom and began to search for the missing envelope. (Pis.’ Resp. [81] at ¶ 19.) First, as officer Bil-lingslea watched from the back of the room, Morgan looked through the students’ personal belongings, including the students’ bookbags, desks, and decorative pumpkins on each desk. (Id. at ¶¶ 19-20.) Then, Morgan searched in the female students’ purses and had each student remove his or her shoes, allowing her to pat down each student’s socks. (Id. at ¶ 19.) Finally, Morgan asked the students to turn out their front pockets and allow her to pat down their back pockets. (Id.) This search did not result in the discovery of the lost envelope and did not suggest any one student as a particular suspect in the disappearance of the envelope. (Id. at ¶ 21.)
Morgan told Billingslea that the money had not been found and asked him to help her in a further search of the children. (Id. at ¶ 24.) At this time, Billingslea suggested to Morgan that some children might be wearing an extra set of pants and that the money might be located in a lower layer of clothing. (Def. Billingslea’s Stmt, of Mat. Facts [68] at ¶ 7; Morgan Dep. at 73-74.) Morgan broke the male children up into groups of four and five and sent them group by group to the boys’ bathroom with Billingslea. (Pis.’ Resp. [81] at ¶ 25.)
At this point, the evidence is in dispute. Some of the boys testified that, once in the bathroom, Billingslea pulled down his pants and underwear to his ankles to demonstrate what the children were required to do. (Brown Dep. at 20, 22, 26; Casey Dep. at 14, 65-67; Crawford Dep. at 13, 21; Willis Dep. at 14-15; Starks Dep. at 17, 47; CE Dep. at 29; DK Dep. at 14; FN Dep. at 10,13, 23; IUQ Dep. at 11-12, 20; and ICU Dep. at 12, 20.) Plaintiffs also claim that Billingslea told the children that “if they did not pull down their pants and lift their shirts as he exhibited, then they would be suspended from school or taken to jail. (Pis.’ Br. [82] at 4-5.) Consequently, the boys dropped then-pants, and some of the boys dropped both their pants and their underwear. (Pis.’ Resp. [81] at ¶ 26.) The search resulted in no discovery of the missing envelope.
While searching the children in the bathroom, Lenard Grace, a student from another fifth grade class, entered the bathroom. (Id. at ¶ 28.) Lenard protested that he was not in Morgan’s class and should not be searched. (Grace Dep. at 10-11.) Despite the protestations, Billing-slea told Lenard to loosen his belt and turn out his pockets. (Id. at 11.) Lenard complied, and Billingslea grabbed Lenard by the pants, shaking them to see if anything would fall out. (Id.) Billingslea found no envelope on Lenard, and his “shake down” resulted in no evidence of wrongdoing. After completion of the searches, all of the boys returned to Morgan’s classroom, except for Lenard who returned to his fifth grade classroom.
After Billingslea completed his search of the boys, Morgan directed all of the girls in the class to line up in the hall outside the girls’ bathroom. (Pis.’ Br. [81] at 11.) Morgan took the girls in her class to the girls’ restroom in groups of approximately two to five students at a time. (Defs. Clayton County School District & Matthews’ Stmt, of Mat. Facts [65] at ¶ 32; Pis.’ Resp. to Defs. Clayton County School District & Matthews’ Stmt, of Mat. Facts [81] at ¶ 32.) While in the restroom, Morgan conducted a search of the children; however, the scope of the search is in dispute. Plaintiffs claim that the girls were forced to lower their pants and raise their dresses or shirts; the girls were also asked to “pop up” their bras to expose their breasts to ensure that the envelope was not stowed beneath their bras. (Pis.’ Resp. [81] at ¶¶ 33-34.) Some girls claimed that Morgan physically touched them as she actually searched their bras and dresses. (Champion Dep. at 13-14; Australia Nettles Dep. at 11-12; Willing-ham Dep. at 11, 34; Tiffany Thomas Dep. at 32; Sales Dep. at 12-13; Def. Morgan’s Stmt, of Mat. Facts [61] at ¶8.) These searches did not turn up any money. (Defs.’ Stmt, of Mat. Facts [65] at ¶ 36.)
That afternoon, Tiffany Thomas’ father, Gregory Thomas went to the school after his daughter informed him about the search and approached principal Ralph Matthews. (Pis.’ Br. [81] at 14.) Mr. Thomas asked about a strip search that had occurred in the school. (Matthews Dep. at 50-51.) Matthews initially denied that a strip search had occurred because he assumed that he “would have been aware if something of that magnitude had occurred that particular school day.” {Id. at 51-52.) After speaking to the parent, Matthews ran into Morgan who assured him that no strip search had occurred that day. {Id. at 54-55.) Morgan did inform Matthews that a search had occurred that included the searching of more than one student, and Morgan assured Matthews that she would call the parents of the children in her class that night to deal with the situation. {Id. at 55-56; Morgan Dep. at 115-17.)
II. The School’s Investigation
The next morning at 8:15 A.M., three sets of parents arrived at the school to meet with Roberts and Matthews concerning the searches. (Matthews Dep. at 59.) After a volatile discussion, Matthews assured the parents that the incident would be thoroughly investigated. {Id. at 60-61.) The three sets of parents checked their kids out of school and left the premises. {Id. at 64.) After discussing the matter among themselves, Roberts and Matthews determined that Roberts should gather the students and have them write statements regarding what had occurred the day before. (Matthews Dep. at 64-65; Roberts Dep. at 85.) After reading the statements, Matthews and Roberts determined that Morgan needed to be brought into the office to give her statement. (Roberts Dep. at 98.) Morgan was at home sick that day, and Roberts called and asked her to come in to make the statement. (Morgan Dep. at 115.) Morgan came into the office and wrote down her description of the events of the previous day. It is undisputed that Roberts and Morgan’s recollection of the events leading up to the search of the children differed. (Morgan Dep. at 121; Roberts Dep. at 104-06; and Matthews Dep. at 106.)
Back at home, Morgan called Matthews to inform him that the second statement that she gave to Roberts was not accurate. (Morgan Dep. at 130.) Morgan explained that she felt that she was forced to change her statement and that she and Roberts disagreed as to the exact authorization given by Roberts to Morgan regarding the scope of the search that was conducted. (Matthews Dep. at 108-09.) Matthews allowed Morgan to write a third statement at home and submit it to him the following day. {Id. at 109.)
The Clayton County School District launched an investigation into the searches. One of the two Executive Directors of the School District, Dr. Ozias Pearson, became involved in the investigation and assigned Dr. Marty Whiteman, one of the two directors of personnel for the school district, to interview Roberts and Matthews regarding the searches and to accompany Dr. Bill Chavis to interview Morgan. (Whiteman Dep. at 21.) These officials did not interview any of the students involved, but simply relied on the students’ statements written the day after the event. (Id. at 22.) Whiteman concluded, in his report to the school district, that the searches were not “anything out of the ordinary” and were not “strip searches.” (Id. at 51; Pis.’ School Exs. [84] at Ex. 9.)
III. The Police Department Investigation
On November 1, 1996, the Clayton County Police Department (hereinafter “CCPD”) first heard about the searches after a media representative called the CCPD Criminal Investigation Division. (Pis.’ Resp. [82] at ¶¶ 31-32; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 31-32.) Upon receipt of this call from the media, the matter was immediately referred to Clayton County Chief of Police Ronnie Clackum. (Pis.’ Resp. [82] at ¶ 33; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶ 33.) Clackum contacted Lieutenant Wally Woodcock to determine if a search had been performed. Contrary to the usual practices of the CCPD, Billing-slea had failed to complete an incident report about the searches and, when asked about the searches, Billingslea denied any participation in the searches. (Pis.’ Resp. [82] at ¶¶ 35-37; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 35-37.) That same day, Clackum met with Billing-slea to discuss the incident and assigned Woodcock to investigate the matter. (Pis.’ Resp. [82] at ¶¶ 38-39; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 38-39.)
Woodcock’s investigation consisted of interviews with Billingslea and numerous school officials and included a review of the students’ written statements regarding the search. On January 13, 1997, Woodcock concluded his investigation, and Clackum issued a Letter of Reprimand to Billing-slea on February 14,1997. (Pis.’ Resp.[82] at ¶¶ 41, 45; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 41, 45; and Pis.’ Police Exs. [84] at Ex. 23 (“Letter of Reprimand”).) In early March 1997, Billing-slea received his 1996-97 annual evaluation, which contained a discussion of the incident. (Pis.’ Resp. [82] at ¶ 46; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶ 46.) At this evaluation, both Woodcock and Clackum recommended a pay increase of only 2.5%, two grades below what most officers received. During this evaluation, Woodcock recommended that Billingslea take additional training in specific areas addressing the law of search and seizure and students’ rights. (Pis.’ Resp. [82] at ¶¶ 48-53; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 48-53.) Billingslea never took such training, however, as he was terminated from employment as a result of an untruthful interview given to the Atlanta Journal-Constitution regarding the reprimand he received from the department. Billingslea was suspended on April 21, 1997 and fired on April 24, 1997. (Pis.’ Resp. [82] at ¶¶ 54-60; Def. Clayton County’s Stmt, of Mat. Facts [72] at ¶¶ 54-60.)
IV. Plaintiffs’ Complaint
Plaintiffs brought this lawsuit on May 27, 1997 and amended their complaint on December 1, 1998. In the amended complaint, plaintiffs alleged several causes of action. First, plaintiffs brought federal claims pursuant to 42 U.S.C. § 1983 alleging that defendants Morgan, Roberts, Matthews, Billingslea, Clayton County, and Clayton County School District “deprived the students of their right to privacy, to be secure in their persons and to be free from unreasonable searches and seizures as protected by the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution.” (Amend.Compl. [53] at ¶ 102.) Further plaintiffs allege that “the actions of defendants deprived the students of their right to due process under the Fourteenth Amendment to the United States Constitution.” (Id. at ¶ 103.) Second, plaintiffs brought state claims against all defendants alleging both state constitutional violations and statutory violations. Plaintiffs ask for both monetary and injunctive relief. (Id. at 23.) All six defendants have filed motions for summary judgment that are presently before the Court.
DISCUSSION
I. Summary Judgment Standard
Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party’s case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. 2548.
The movant bears the initial responsibility of asserting the basis for his motion. Id. at 323, 106 S.Ct. 2548; Apcoa, Inc. v. Fidelity Nat’l Bank, 906 F.2d 610, 611 (11th Cir.1990). However, the movant is not required to negate his opponent’s claim. The movant may discharge his burden by merely “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. After the movant has carried his burden, the nonmoving party is then required to “go beyond the pleadings” and present competent evidence designating “ ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)). While the court is to view all evidence and factual inferences in a light most favorable to the nonmoving party, Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988), “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A fact is material when it is identified as such by the controlling substantive law. Id. at 248, 106 S.Ct. 2505. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. at 249-50, 106 S.Ct. 2505. The nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted). An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is “merely colorable” or is “not significantly probative.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. Thus, to survive a motion for summary judgment, the nonmoving party must come foiward with specific evidence of evet'y element material to that party’s case so as to create a genuine issue for trial.
II. Plaintiffs’ Federal Constitutional Claims
Plaintiffs allege violations of several constitutional amendments including the First Amendment, Fourth Amendment, Fifth Amendment, Ninth Amendment, and Fourteenth Amendment and have sued under section 1983 to redress these violations. (Amend.Compl. at ¶ 102.) The individual defendants — Morgan, Roberts, Mathews, and Billingslea — argue that then-actions do not amount to a constitutional violation under any of these amendments. Alternatively, the individual defendants argue that they are entitled to qualified immunity as to all constitutional claims.
As an initial matter, plaintiffs have offered no support for their claims that their First Amendment or Fifth Amendment rights have been violated. Indeed, plaintiffs have conceded that their First and Fifth Amendment claims against Clayton County and the individual defendants should be dismissed. (Pis.’ Br. [82] at 23 n. 7; Pis.’ Br. [83] at 5 n. 2.) Accordingly, all defendants are GRANTED summary judgment as to plaintiffs’ First and Fourteenth Amendment claims.
As to plaintiffs’ Ninth Amendment claim, plaintiffs make no attempt to flesh out the parameters of their Ninth Amendment claim. See Bishop v. Aronov, 926 F.2d 1066, 1078 n. 9 (11th Cir.1991). As plaintiffs admit, the students “raise then-claims under the Fourth and Fourteenth Amendment.” (Pis.’ Br. [83] at 5 n. 2.) The Court concludes that plaintiffs’ claims are adequately addressed under the Fourth and Fourteenth Amendments, and thus defendants’ motions for summary judgment as to plaintiffs’ Ninth Amendment claims are GRANTED.
Plaintiffs’ remaining constitutional claims allege a violation of their Fourth Amendment rights. Additionally, plaintiffs allege a Fourteenth Amendment substantive due process claim. Defendants argue that, as plaintiffs’ claims stem from the searches, plaintiffs’ Fourteenth Amendment substantive due process claims must be dismissed. The Court agrees. See Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
In Graham, the Supreme Court held:
[AJU claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.
Id. at 396, 109 S.Ct. 1865 (emphasis in original); see also Tinney v. Shores, 77 F.3d 378, 381 (11th Cir.1996). Here, plaintiffs claim that they were unlawfully searched; it is axiomatic that unlawful search and seizure claim falls within the confines of the Fourth Amendment. Graham, 490 U.S. at 394, 109 S.Ct. 1865. Accordingly, the standards promulgated by the Fourth Amendment will govern this dispute.
A. Unlawful Search and Seizure Claims Against Defendants Morgan, Roberts, Matthews, and Bil-lingslea
Initially, the individual defendants claim that their actions do not rise to the level of a constitutional violation and, accordingly, that they are entitled to summary judgment. Alternatively, the individual defendants contend that they are entitled to qualified immunity as to plaintiffs’ Fourth Amendment claims.
1. Existence of a Constitutional Violation
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “It is now beyond dispute that ‘the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.’ ” New Jersey v. T.L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (quoting Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)).
In T.L.O., the Supreme Court determined that the “strictures of the Fourth Amendment” apply to searches of students by school officials. Id. at 336-37, 105 S.Ct. 733. Nevertheless, the Court also made clear that the standards for determining the legality of a search of students would be more fluid than those applicable to a search of adults. Specifically, the Court determined that “the legality of a search of a student should depend simply on the reasonableness, under the circumstances, of the search.” Id. at 341, 105 S.Ct. 733. In addition:
[determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the ... action was justified at its inception,” [ ]; second, one must determine whether the search as actually conducted “was fea-sonably related in scope to the circumstances which justified the interference in the first place,” [ ]. Under ordinary circumstances, a search of a student by a teacher or other school official will be “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. Such a search will be permissible in its scope when the 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. at 341-42, 105 S.Ct. 733 (citations and footnotes omitted). Accordingly, the reasonableness of a search of a student by school officials necessarily involves a two-part inquiry: (1) whether the search was justified in its inception and (2) whether the search was reasonable in scope in light of the age and sex of the student and the intrusiveness of the search. Critically, in footnote, the Court noted that “[w]e do not decide whether individualized suspicion is an essential element of the reasonableness standard we adopt for searches by school authorities.” Id. at 342 n. 8, 105 S.Ct. 733.
As the Supreme Court in T.L.O. did not determine the propriety of strip searches in schools, this Court must look to circuit court case law for help in answering the questions presented in this litigation. The Eleventh Circuit has approved the strip search of a juvenile in a jail setting where the police had reasonable suspicion that the juvenile possessed contraband, but it has not directly addressed the standards that must be applied to strip searches in a school setting. In Justice v. City of Peachtree City, 961 F.2d 188 (11th Cir.1992), a fourteen-year-old female arrestee, was required to remove her outer garments, expose her breasts, and stand before female officers clad only in her panties. Id. at 191. While the juvenile was playing hooky from school at the time of the arrest, the search occurred in a jail, not a school, setting. Although noting the ’ obvious expectation of privacy in not having one’s “private parts” exposed and recognizing that “a strip search represents a serious intrusion upon personal rights,” id. at 192, the Eleventh Circuit upheld the strip search, which was based on reasonable suspicion that the detainee was concealing weapons or contraband, as being justified by legitimate institutional considerations. Id. at 193. Further, it concluded that the search was conducted in a minimally intrusive manner; that is, female guards searched the female detainee, the search was conducted in a private room, and the search did not extend to body cavities. Id.
Given the obvious factual dissimilarities, Justice is not terribly useful in deciding this case. It does establish that even juveniles may be subjected to a strip search if the juvenile has been arrested and if there is reasonable suspicion; it does not, however, set out the requisite level of suspicion in a school setting nor does it prescribe how particularized, within a group of individuals, the suspicion as to any particular individual must be to justify the search of that individual.
As noted, supra, at n. 15, the Eleventh Circuit has confronted the strip search of students in a case somewhat analogous to this case, but it did not issue a dispositive ruling as to the specific standards required. In Jenkins v. Talladega City Board of Education, 115 F.3d 821 (11th Cir.1997) (en banc), a second grade student informed her teacher that $7.00 was missing from the student’s purse.- Based on the accusation of another student, suspicion soon focused on three other students in the class; these three students were then twice subjected to strip searches — first by the teacher and then by the principal — in an effort to find the missing money. Although the en banc court disclaimed any determination of the constitutional merits of the strip searches, it nevertheless strongly signaled its understanding of the dilemma faced by a school officials in such a situation and its deference, as a general matter, to the judgment of school officials in determining how to proceed in investigating the particular wrongdoing before it. Id. at 828.
Specifically, the majority exhaustively illustrated how the general and fluid precepts of earlier authority could not give the defendant school officials sufficient notice that their particular conduct was unconstitutional, even assuming, of course, that it was unconstitutional. Having demonstrated the absence of clear legal authority to inform the officials of any unlawfulness of their actions, the court could have stopped there. It proceeded, however, to make certain observations about the propriety of the particular search. For example, the court noted its belief that the strip searches were reasonably related to the objective of finding the missing $7.00. Jenkins, 115 F.3d at 827 n. 5. Further, in response to the plaintiffs’ argument that the theft of a small amount of money should not trigger a step as intrusive as a strip search, the court “rejected plaintiffs’] attempt to trivialize the nature of the infraction; the stealing of $7.00 in an elementary classroom reasonably could be considered by the school officials to be a matter of serious concern.” Id. Indeed, bolstering this last point, the court quoted the majority opinion in T.L.O.:
We are unwilling to adopt a standard under which the legality of a search is dependent upon a judge’s evaluation of the relative importance of various school rules. The maintenance of discipline in the schools requires not only that students be restrained from assaulting one another, abusing drugs and alcohol, and committing other crimes, but also that students conform themselves to the standards of conduct prescribed by school authorities.... The promulgation of a rule forbidding specified conduct presumably reflects a judgment on the part of school officials that such conduct is destructive of school order or of a proper educational environment. Absent any suggestion that the rule violates some substantive constitutional guarantee, the courts should, as a general matter, defer to that judgment and refrain from attempting to distinguish between rules that are important to the preservation of order in the schools and rules that are not.
Id. at 828 (quoting T.L.O., 469 U.S. at 342 n. 9, 105 S.Ct. 733). Summarizing in its own words the teachings of T.L.O., the en banc court concluded:
Faced with a series of abstraction, on the one hand, and a declaration of seeming deference to the judgments of school officials, on the other, it is difficult to discern how T.L.O. could be interpreted to compel the conclusion that these defendants — or, more accurately, all reasonable educators standing in defendants’ place- — should have known that their conduct violated a clearly established constitutional right.
Id. Qualified immunity notwithstanding, that the court in Jenkins chose not to go ahead and denounce the search on constitutional grounds, so that future educators would not conduct strip searches in these circumstances, and that the court articulated sympathy toward the school officials in their difficult task of maintaining order, suggests, at the least, that the court was not convinced that the strip search in its case was unconstitutional.
Looking outside the Eleventh Circuit, at least two other circuits have confronted the issue of strip searches of students within the context of a public school setting. Doe v. Renfrow, 631 F.2d 91 (7th Cir.1980), involved a strip search of a thirteen-year-old girl in a public school where the search was performed without reasonable cause to believe the child possessed contraband. Finding the search to be illegal, a panel of the Seventh Circuit declared:
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 principal of human decency. Apart from any constitutional readings and rulings, simple common sense would indicate that the conduct of the school officials in permitting such a nude search was not only unlawful but outrageous under “settled indisputable principles of law.”
Id. at 92-93. Moreover, the panel stated, “We suggest as strongly as possible that the conduct herein described exceeded the ‘bounds of reason’ by two and a half country miles.” Id. at 93.
In Tarter v. Raybuck, 742 F.2d 977 (6th Cir.1984), a panel of the Sixth Circuit addressed, and upheld, a search of a high school student by school authorities. In that case, the plaintiff, a high school junior, was suspected of selling marijuana to another student on campus. Several school officials, who had witnessed what they thought to be an exchange of marijuana between plaintiff and another student, ordered the student into the clinic of the school and asked him to empty his pockets and remove his jacket, boots, and shirt. Plaintiff complied with the officials’ request but refused to remove his pants. Id. at 979-80.
Although this case predated the Supreme Court’s T.L.O. decision, a panel of the Sixth Circuit analyzed the search utilizing a two-prong analysis. First, the panel held “that a school official or teacher’s reasonable search of a student’s person does not violate the student’s fourth amendment rights, if the school official has reasonable cause to believe that the search is necessary in the furtherance of maintaining school discipline and order, or his duty to maintain a safe environment conducive to education.” Id. at 982. Second, the panel noted “that not only must there be a reasonable ground to institute the search, the search itself must be reasonable.” Id. Utilizing this analysis, the panel determined that the school officials clearly had reasonable grounds for the search because they had personally witnessed plaintiff engaged in what they reasonably believed was a sale of drugs. Id. at 983. The panel found that the defendants “had particularized suspicion of spe-cifie individuals” and “were not making a general search of a large group of students.” Id. Moreover, the panel found that the search was reasonable in scope. Id.' at 984 n. 7.
In Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316 (7th Cir.1993), a panel of the Seventh Circuit once again addressed a strip search of a high school student in a public school. Addressing T.L.O.’s first prong, the reasonable suspicion prong, the panel noted “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.” Id. at 1321. As to the second prong, the panel noted that “[a] nude search of a student by an administrator or teacher of the opposite sex would obviously violate this standard,” as would “a highly intrusive search in response to a minor infraction.” Id. at 1320.
Turning to the facts of the case, the panel recognized that the officials relied on several sources of information to justify their search, “the cumulative effect of which is sufficient to create a reasonable suspicion that [plaintiff] was crotching drugs.” Id. at 1323 (footnote added). Addressing the second prong, although the panel found that “the sixteen-year-old [plaintiff] was of an age at which children are extremely self-conscious about their bodies,” it determined that the search of the child was permissible in scope because the male officials performed the non-body cavity search on the nude male student in the privacy of a locked locker room where no other students could see him. Id. Accordingly, the panel determined that the school officials did not violate the plaintiffs Fourth Amendment rights by conducting the nude search of the sixteen-year-old boy.
In addition to the circuit opinions discussed above, one recent district court case merits discussion, as it is factually similar to the case at hand. In Konop v. Northwestern School District, 26 F.Supp.2d 1189 (D.S.D.1998), $200 was reported missing to the principal of a high school. The principal asked the eighth grade girls to remain in the lunchroom and announced his intention to search them until he found the missing money. Id. at 1202. The principal ordered each student to place the contents of their pockets on the tables in front of them so that he could inspect them. After this search turned up no money, the principal asked several female employees to take two girls at a time to the locker room to search them for the missing money. Id. These girls were ordered “to strip like they were in physical education class,” and then searched. Id. at 1203. After all the girls were searched unsuccessfully, the principal searched lockers, book lockers, and cars for the money. Id. at 1202.
After reviewing case law from around the country, including the cases cited supra, the district court reasoned:
T.L.O. has been applied time and time again and certain rules are clear: (1) a strip search is not justified absent individualized suspicion unless there is a legitimate safety concern (e.g.weapons); (2) school officials must be investigating allegations of violation of the law or school rules and only individual accusations justify a strip search; and (3) strip searches must be designed to be minimally intrusive, taking into account the item for which the search is conducted.
Id. at 1201. Relying on these observations, the court concluded that the strip searches were illegal.
While two of the above cases from outside the Eleventh Circuit suggest that the search in this case was unconstitutional, these cases are of persuasive value only; as noted, the Eleventh Circuit has not ruled dispositively on the question before this Court. That being so, this Court is forced to decide, without the benefit of Eleventh Circuit precedent, whether the search here was reasonable. It does so, well aware that such judicial line-drawing necessarily occurs after the fact, without the exigencies faced by the school official. Accordingly, in appraising the reasonableness of a particular disciplinary or investigative action by a school official, both the Supreme Court and Eleventh Circuit advocate some deference toward the decisions of often beleaguered educators who serve in the trenches everyday. For that reason, any decision that a particular action by a school official exceeded constitutional limits should be as narrowly drawn as possible, as a broader rule may not consider other potential incidents not before the Court and, accordingly, may be overly expansive in its reach.
In this case, one must evaluate several variables: the extent to which suspicion must be individualized to warrant any kind of search; the propriety of strip searches, generally, in a school setting; and the appropriate level of intrusiveness of a search, given non-individualized suspicion. Further, the Court must filter these variables through the two-part test set out in T.L.O.: (1) whether the action was justified at its inception and (2) whether the search as actually conducted was reasonable in scope. The Court interprets the first prong as looking to whether there was sufficient justification to engage in any sort of “encounter” with or search of the student and the second prong as triggering an inquiry whether the particular encounter or search was reasonable based on the suspicious facts triggering its use.
Looking first to the degree to which suspicion must be individualized, as a general matter, this Court cannot conclude, as plaintiffs suggest, that individualized suspicion is always necessary before any type of search may be undertaken in a school setting. If, for example, school officials received information that an unidentified student had hidden a bomb somewhere in the school, this Court assumes that the school would be acting reasonably — and thus constitutionally — if it searched the lockers and book bags of every student in the school, even though it is clear under this hypothetical that the school officials would possess no individualized suspicion as to any one student.
Further, the term “individualized suspicion,” itself, somewhat begs definition. For example, if a school official receives information that a student may possess contraband, this official clearly has “individualized suspicion” directed toward that student. If the official learns, however, that this student, plus two other students, had been seen at different times that day with the contraband — apparently, the facts in Jenkins — but that at the time of the information, it is not clear which one, if any of these three children, presently have the items, then there is clearly some suspicion directed at each of the three children, even though it is clear that only one of the children will likely be in possession of the contraband at any one time and even though there is no greater suspicion of any one of the three children than of the other two.
Another example: if the school official receives credible information that a student is secreting guns or bombs or drugs or some other contraband and further that, by his attire, the informant can discern that the unidentified student is a member of a ten-member high school gang whose members wear this distinctive attire, this Court will also assume that the school official might well be justified, at the least, in searching the bags and lockers of these ten members of the gang. Obviously, with the expansion of the group to which the “individualized suspicion” attaches, the analysis gets trickier, for which reason the word “individualized” begins to offer little assistance and, instead, the term “suspicion” or “reasonable suspicion” becomes the operative term.
Accordingly, applying the first prong of T.L.O. to this case, the Court concludes that the teacher had the requisite suspicion to conduct some type of search of the students in her fifth grade class for the missing $26.00. The teacher had reason to believe that the money was missing’: a student had told her that he had put this money on her desk moments before and that the money had disappeared. Allowing a theft to go undiscovered and unsanctioned would not have promoted the long-term well-being" of the thief or the victim, as the latter was out money that he had earned selling candy for a school trip and the former would have intuited early in life that crime does pay. Moreover, the deterrence value of a search could arguably insure that other would-be thieves would think twice before purloining another student’s valuables. A school that takes a casual attitude toward the theft of another student’s candy money may well soon encounter disobedience of even more serious rules, as well as the erosion of order and a sense of well-being by students. Accordingly, had the teacher limited her search to a search of the book bags, desks, or purses of the students in the class, this Court would have no problem concluding that such measures were reasonable pursuant to the second prong of the T.L.O. test, which governs the appropriateness of the particular type of search undertaken. Looking in a fifth grader’s personal belongings, which presumably teachers sometimes do anyway to find missing homework or misplaced books, does not strike this Court as overly intrusive. Indeed, had the teacher required the children to empty their pockets or even take off their shoes and socks to search for the money, the Court would not view that measure as unreasonable.
In this case, however, the teacher went beyond the above steps and also imposed a “strip search” on each of the fifth graders, requiring each student, in the presence of other students of the same sex, to partially undress. That event first triggers a need to determine whether strip searches are ever reasonable in a school setting. From a reading of the earlier cited cases, this Court concludes that strip searches can sometimes be sustainable in a school setting if, for example, the school official has reasonable suspicion that a particular student may be in possession of dangerous items, drugs, contraband, stolen items, or the like.
The next obvious question then is: if strip searches may conceivably be legal when the teacher had a particularized suspicion that one, or a few, students are in possession of contraband, can such searches ever be justified under the circumstances present in this case, in which the teacher reasonably suspects that at least one of the twenty-two students in her class was in possession of the item, but she does not know which of the twenty-two pupils is the culprit? The Court does not foreclose the possibility that there could be circumstances under which the answer would be yes. The Court assumes, without deciding, that if the item suspected of being hidden were a dangerous weapon, drugs, or even a very valuable stolen item, a more intrusive search of the entire class might, in some circumstances, be sustainable. Nevertheless, the Court concludes that the search in this case was not reasonable under all the circumstances: meaning that the search was unconstitutional.
As this Court has noted that it might well uphold a strip search, under these facts, where the item in question was a weapon or possibly even drugs or maybe even just a very valuable stolen item, the distinction that therefore necessarily controls the Court’s decision is the nature of the particular item being sought. The Court concludes that where the item missing is only a small amount of money and where there is no particularized suspicion that a particular child has the money, a strip search of the entire class is disproportionate to the harm sought to be remedied, and hence unreasonable.
In concluding that the strip search was an excessive response to the theft of the $26.00, but noting that it would not automatically so conclude were the contraband in question a weapon, drugs, or valuable contraband, this Court is necessarily weighing the various infractions involved and giving lesser weight to the theft of $26.00 than to the possession of the other types of contraband. Accordingly, the Court might appear to be in violation of Justice White’s and the Eleventh Circuit’s directive that the legality of a search should not be dependant on the judge’s evaluation of the relative importance of various school rules. See discussion supra at 1302-03.
In response to such criticism, however, the Court would offer two responses. First, to apply the second prong of T.L.O. — whether the search was too intrusive to be considered reasonable — the Court has to have some frame of reference for reasonableness in determining the appropriateness of the intrusion. Second, and more importantly, however, this holding is not inconsistent with T.L.O. or Jenkins because the Court’s assessment of the importance of the rule being violated is triggered only when there is no particularized suspicion of the person being searched. Accordingly, when there is merely generalized suspicion that one member of an entire class is hiding some contraband, the nature of the contraband becomes an important consideration in deciding how intrusive the search should be. When the official has a particularized suspicion that a student or students are concealing the contraband, however, a weighing by a court of the danger or value of the contraband — and hence an assessment of the seriousness of the rule violation — con-cededly could become quite problematic. Cf. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (holding as long as police officer has probable cause to believe that traffic violation has occurred, officer may stop the car regardless of the triviality of traffic law which is violated and regardless of officer’s subjective motives for the stop). See also Ohio v. Robinette, 519 U.S. 33, 38, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).
In summary, the Court concludes that the searches in this case exceeded the bounds of reasonableness, which means that they also exceeded constitutional limits.
2. Qualified Immunity
Determining that the searches were unconstitutional, however, is just the first step in deciding whether any of the defendants have liability. Plaintiffs seek monetary damages as a result of the searches at issue and can look to only two sources to recover that money: the individual defendants who were involved in the search and/or the governmental entities that employed these people. The individual defendants — Matthews, Morgan, Roberts, and Billingslea — argue that they enjoy qualified immunity as to these official acts that they undertook in good faith. Plaintiffs, on the other hand, contend that the law governing searches and seizures was clearly established at the time the searches were conducted and therefore these individuals were necessarily on notice that their actions violated the law.
“Qualified immunity protects government officials performing discretionary functions from civil trials (and the other burdens of litigation, including discovery) and from liability if their conduct violates no ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place that ‘what he is doing’ violates federal law.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Once the defendant makes this showing, “the burden is on the plaintiff to show that, when the defendant acted, the law established the contours of a right so clearly that a reasonable official would have understood his acts were unlawful.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993), modified, 14 F.3d 583 (1994). Accordingly, there is a two-prong test to determine if qualified immunity applies: (1) were defendants performing a discretionary function when they were performing the search at issue in this case and (2) did defendants’ actions violate “clearly established law?”
As to the first inquiry, plaintiffs fail to address whether the defendants were performing discretionary functions when they performed the searches in question in this case. Hence, the Court concludes that there is no dispute that the individual defendants in this case were performing a discretionary function when they executed the searches at issue. Since “[t]here is no doubt in the present case that the officers were acting within their discretionary authority, ... the sole issue is whether their actions violated clearly established law.” Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir.1995). The burden is on the plaintiffs to show that the defendants violated clearly established law. Id. Plaintiffs cannot discharge this burden “simply by referring to general rules or abstract rights” but, rather, must point to clearly established law. Id. at 954. “When considering whether the law applicable to certain facts is clearly established, the facts of the cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case. But they do need to be materially similar.” Adams v. St. Lucie Co. Sheriff’s Dept., 962 F.2d 1563, 1575 (11th Cir.1992) (Edmonson, J., dissenting), approved en banc, 998 F.2d 923 (11th Cir.1993). However, to be clearly established “does not mean that a court must have previously found the very action in question to be unlawful, but it does mean that ‘in light of preexisting law the unlawfulness must be apparent.’ ” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir.1994) (quoting Anderson v. Creighton, 483 U.S. 685, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
The qualified immunity question presented in this case is whether Fourth Amendment law “clearly established” that the searches of the children in this case was unconstitutional. The crucial date for determining the state of school search law is the date that the searches took place, October 31, 1996. For law to be clearly established, it must have been in effect at the time of the alleged unconstitutional conduct. “In this circuit, the law can be ‘clearly established’ for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose.” Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 827 n. 4 (11th Cir.1997).
Plaintiffs argue that several cases clearly establish that the searches in question in this case were unconstitutional. Specifically, plaintiffs argue that “[c]om-pelling eleven-year-old children to submit to a mass strip search in the absence of a valid reason to suspect any individual student of wrongdoing, and reason to know many could not have engaged in wrongdoing, is clearly prohibited by the Fourth Amendment.” (Pis.’ Br. [83] at 7.) Plaintiffs rely on the standard enunciated by the Supreme Court in New Jersey v. T.L.O, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), discussed supra, and argue that this standard mandates individualized suspicion prior to searching students at a public school. Furthermore, plaintiffs argue that the Eleventh Circuit’s panel decision and subsequent en banc decision in Jenkins v. Talladega City School Board, 95 F.3d 1036 (11th Cir.1996), vacated on reh’g en banc, 115 F.3d 821 (11th Cir.1997) (en banc), follows T.L.O.’s individualized suspicion standard. Finally, plaintiffs argue that C.B. v. Driscoll, 82 F.3d 383 (11th Cir.1996) and Justice v. City of Peachtree City, 961 F.2d 188 (11th Cir.1992) provide “concrete application of the particular suspicion requirement to student/juvenile searches.” (Pis.’ Br. [83] at 9.)
Accordingly, although this Court has decided that the search in question exceeded constitutional limits, the more immediate question is whether the law had been “developed in such a concrete and factually defined context” as to make it obvious to a reasonable person in defendants’ place that the latter were violating federal law. The Court concludes that the law, as cited by plaintiff, was not so developed in this circuit as to unequivocally trigger an awareness in defendants that they were clearly violating the law. First, T.L.O., with its very general and abstract command only of reasonableness, does not offer much specific guidance of any sort. As to the Eleventh Circuit cases cited by plaintiff, Justice v. City of Peachtree City, 961 F.2d 188, 189 (11th Cir.1992), discussed supra, upheld a strip search of a juvenile detainee where there was reasonable suspicion to believe that she was in possession of drugs. In C.B. v. Driscoll, 82 F.3d 383, 385 (11th Cir.1996), the Eleventh Circuit found that school administrators had the requisite suspicion to search the outer pockets of a student’s coat based on a tip provided by another student that the former student was carrying drugs in his coat. Clearly, had the courts in Justice and C.B. held that the information known to the respective searching officials did not provide the necessary suspicion for the strip search and search of a coat, respectively, one could readily infer that the level of suspicion present in this case clearly would not warrant the search here. As these decisions upheld the searches before them, however, one can not necessarily infer that a search based on less specific information would not also be sustained.
Plaintiffs also rely on both the panel and en banc decisions in Jenkins v. Talladega City Board of Education, 95 F.3d 1036 (11th Cir.1996), vacated on reh’g en banc, 115 F.3d 821 (11th Cir.1997). See discussion supra at 1302-03. In the original panel decision [Jenkins I ], a panel of the Eleventh Circuit found that “reasonable grounds” existed to permit the search of the backpack of three children suspected of stealing money and perhaps even the search of the children’s shoes and socks. 95 F.3d at 1044. In finding the two strip searches to be unconstitutional, however, the panel concluded that “the glaring disproportion between the measures adopted and the trivial nature of the infraction— point unequivocally to the .unreasonableness of the two restroom searches (strip searches) at issue here.” Id. at 1047.
Were Jenkins I the last word, plaintiffs would prevail in their argument that the law clearly established the unconstitutionality of these searches at the time that they were conducted. Jenkins I, however, was vacated on October 16, 1996, two weeks before the search occurred in the instant case, and subsequently reheard en banc. Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821 (11th Cir.1997) (en banc) (hereinafter “Jenkins II ”). In Jenkins II, Judge Birch, the author of the dissent in the original panel decision, penned the opinion for the majority. As discussed supra, Judge Birch determined that the defendants enjoyed qualified immunity and did not expressly rule on whether the actions of the teachers and guidance counselor in the case violated the Fourth Amendment. Id. at 824 n. 2, 828.
Specifically, the en banc court held that the Supreme Court’s decision in T.L.O. could not form the basis of the “clearly established law” required to defeat the defense of qualified immunity. Although the T.L.O. Court enunciated a standard by which school searches were to be analyzed, the en banc court found that this test gives “no illustration, indication, or hint as to how the enumerated factors might come into play when other concrete circumstances are faced by school personnel.” Id. at 825. As no other cases from the Alabama Supreme Court or the Eleventh Circuit had applied T.L.O. in factually similar circumstances, the en banc court held that “[wjithout such practical, fact-based application, school officials in this circuit were left to interpret, balance, and evaluate such terms as ‘measures ... 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.- at 826-27 (citing T.L.O., 469 U.S. at 342, 105 S.Ct. 733). As “ ‘public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases,’ ” the panel found that the defendants were entitled to qualified immunity. Id. at 827, 105 S.Ct. 733 (quoting Adams v. St. Lucie County Sheriff's Dept., 962 F.2d 1563 (11th Cir.1992), approved en banc, 998 F.2d 923 (11th Cir.1993)).
For purposes of qualified immunity, the Court must determine that one of the cases cited by plaintiffs would have put the defendants on notice that their actions were in violation of the Fourth Amendment. Although plaintiffs characterize the holdings of Justice, C.B., Jenkins I, Jenkins II, and T.L.O. as mandating individualized suspicion in student search cases, this characterization is not correct. None of the cases expressly dictate the requirement of individualized suspicion in the school setting or otherwise form the basis of clearly established law as to the specific type of facts present here. A school official reading any one or all of the four cases would not be left with the firm impression that the search in question in this case violated the Constitution. Moreover, the discussion undergone by this Court supra in ultimately deciding the constitutionality of the searches should illustrate the uncertainty, and factually intensive nature, of any such decision.
Indeed, the doctrine of qualified immunity purposely sets high hurdles before a litigant can demand crippling monetary damages from a civil servant who is merely doing her job, even when a hind-sight appraisal of the employee’s job-related decision may suggest that the employee has made a bad judgment call. Most people will presumably react quite negatively to a teacher’s decision to perform a modified strip search of fifth graders to recover money stolen from another student; indeed, this Court has concluded that this decision by the teacher constituted an excessive reaction to the problem that she was facing. The teacher contends, however, that the situation facing her was less clear-cut than it might initially appear. This teacher, Ms. Morgan, taught a fifth grade class in which most of the students were too poor to be able to afford to buy their lunch. (Morgan Dep. at 60, 189.) When young Sergio Evans, who had worked to sell candy so that he could go on a class tr