Herrera v. Santa Fe Public Schools (956 F. Supp. 2d 1191, 2013)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Individual School Defendant Melanie Romero’s Motion for Summary Judgment on Count I of the Second Amended Complaint Based Upon Qualified Immunity, filed Nov. 13, 2012 (Doc. 113)(“Motion for Summary Judgment”). The Court held a hearing on December 20, 2012. The primary issues are: (i) whether the personal involvement of Defendant Melanie Romero, the principal of Capital High School in Santa Fe, New Mexico, in the Plaintiffs’ pat-down searches, to which they were subjected for admittance to the Capital High School prom, violated the Plaintiffs’ rights guaranteed under the Fourth and Fourteenth Amendments to the United States Constitution; and (ii) whether the Plaintiffs’ constitutional rights that Romero violated, if any, were clearly established at the time of the prom in April, 2011. The Court will grant the Motion for Summary Judgment, because Romero is entitled to qualified immunity. The Court concludes that, by requesting that guards from Defendant ASI, New Mexico, LLC perform pat-down searches of all Prom attendees, Romero violated the Plaintiffs’ constitutional rights. The Court further concludes, however, that the Plaintiffs’ right to be free from these suspicion-less pat-down searches was not clearly established at the time of the Prom in April, 2011. Additionally, with respect to Plaintiff Candice Herrera’s 42 U.S.C. § 1983 claim, the Plaintiffs establish a genuine issue of fact whether Romero saw the ASI New Mexico guard require C. Herrera to lift her dress, and expose her bare leg above her knee. Romero is entitled to qualified immunity, however, even if Romero saw that conduct, because it was not clearly established in April, 2011, that a search requiring female students to lift their dresses up above their knees was an unreasonable, and thus unconstitutional, search in the public school context.

FACTUAL BACKGROUND

This case arises from searches that occurred at the April 16, 2011, Capital High prom. See Second Amended Complaint ¶¶3-4, at 2-3, filed September 18, 2012 (Doc. 100); Motion for Summary Judgment ¶ 1, at 6 (setting forth this fact); Plaintiffs’ Opposition to Defendant Romero’s Motion for Summary Judgment Based On Qualified Immunity ¶ 1, at 8, filed November 30, 2012 (Doc. 126)(“MSJ Response”)(not controverting this fact). Capital High is a high school located in Santa Fe, New Mexico, and is in the Santa Fe Public School District. See Second Amended Complaint ¶¶ 18-20, at 5-6; Motion for Summary Judgment ¶ 2, at 6 (setting forth this fact); MSJ Response ¶ 2, at 8 (not controverting this fact). Each of the four individual Plaintiffs were subject to pat-down searches when they entered the prom. C. Herrera, in her deposition, testified:

[The ASI New Mexico security guard] had me spread my arms and legs out, and she patted along my arms, touched along the waist. And then she grabbed the outer part of my bra and moved it here. And then she grabbed the inner part of my bra and moved it here. And then she cupped my breasts and shook them.... [T]hen afterwards she moved down to my waist and then she went all the way down my leg. And then she felt over my dress and then she pulled the dress up to about mid-thigh and she felt up the bare leg, as well.

Deposition of Candice Herrera at 198:17-199:3, 199:18-200:9 (taken July 27, 2012), filed November 13, 2012(Doc. 113-4)(“C. Herrera Depo.”); MSJ Response ¶ 1A, at 3 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). Plaintiff T.H. testified in her deposition:

She asked me to spread my arms out and she ran her hands along my arms which she could clearly see. And then she continued down to pat down my waist and my hips.... And then she— and then she went back up and cupped both my breasts and shook them. And then she continued down to pat down the sides of my dress. And then she lifted up my dress and with her bare hands she ran her hands down along the inside of my legs.

Deposition of T.H. at 58:20-23, 59:9-14 (taken August 13, 2012), filed November 13, 2012 (Doc. 113-7)(“T.H. Depo.”). See MSJ Response ¶ IB, at 3-4 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). Plaintiff Ashley Hurtado testified about the ASI New Mexico guard’s pat-down search:

She went down the side of my body and then she went with her hands with her palms facing in and went around my breasts and went inside with her thumb to check if I had anything in my cleavage. Went down — again down my body. Went down both my thighs. My inner included.

Deposition of Ashley Hurtado at 109:23-110:4 (taken July 30, 2012), filed November 13, 2012 (Doc. 113-5)(“Hurtado Depo.”). See MSJ Response ¶ 1C, at 4 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). Plaintiff Arianna London also testified about the ASI New Mexico employee’s pat-down search:

So she told me to spread my legs and then she patted my legs down. And then she went all the way up and then she did the other leg and then she lifted my skirt a little bit and she patted my legs even more. And then she patted the front of me, so she did my stomach and my sides and then she did my chest. And then she put her hands underneath the seams of my dress and on the sides and on the back. And then she patted my back side down.

See Deposition of Arianna London 181:22-185:14, 186:14-21 (taken August 24, 2012), filed November 13, 2012 (Doc. 113— 6)(“London Depo.”). See MSJ Response ¶ ID, at 4 (setting forth this fact); MSJ Reply at 4 (not controverting this fact).

The governing and policy-making body for the Santa Fe Public School District (“SFPS”) is the Board of Education of SFPS (“Board of Education”). N.M.S.A. 1978, § 22-5-4; Second Amended Complaint ¶¶ 17-18, at 5; Motion for Summary Judgment ¶ 3, at 6 (setting forth this fact). Romero had no authority to make policies within SFPS. Compare N.M.S.A.1978, § 22-10A-18 (providing powers and duties and duties of school principal), with N.M.S.A.1978, § 22-5-4 (Providing the powers and duties of a Board of Education); Motion for Summary Judgment ¶ 7, at 7 (setting forth this fact). Romero maintained authority, however, to set policies and procedures related to Capital High and Capital High events. See, e.g., Transcript of the Videotaped Deposition of Bobbie J. Gutierrez, Vol. I at 123:4-9 (taken March 22, 2012), filed November 30, 2012 (Doc. 126-9)(“Gutierrez Depo. Vol. I”); Deposition of Melanie Romero at 132:7-24 (taken March 19, 2012), filed November 30, 2012 (Doc. 126-5)(“Romero Depo.”); Deposition of Martin “Mark” Archuleta, Vol. I at 122:17-123:6 (taken March 9, 2012)(“Archuleta Depo.”); MSJ Response ¶ 3, at 8 (setting forth this fact); Individual School Defendant Melanie Romero’s Reply to Plaintiffs’ Opposition to Defendant Romero’s Motion for Summary Judgment Based Upon Qualified Immunity [Doc. 126] at 2, 5, filed December 17, 2012 (Doc. 130)(“MSJ Reply”)(not controverting this fact).

At the time of the prom, Romero was the Capital High principal. See Second Amended Complaint ¶ 20, at 6; Motion for Summary Judgment ¶ 4, at 7 (setting forth this fact); MSJ Response ¶4, at 8 (not controverting this fact). The prom was held off Capital High promises at the Santa Fe Convention Center located in Santa Fe. See Second Amended Complaint ¶ 3, at 2; id. ¶ 27, at 8; Motion for Summary Judgment ¶ 5, at 7 (setting forth this fact); MSJ Response ¶ 5, at 8 (not controverting this fact). The prom was a school-sponsored event. See Second Amended Complaint ¶¶ 27-28, at 8; Motion for Summary Judgment ¶ 6, at 7 (setting forth this fact); MSJ Response ¶ 6, at 8 (not controverting this fact). ASI New Mexico provided school security services generally to SFPS and specifically for the prom based on a publicly bid and awarded contract pursuant to the New Mexico Procurement Code. See Second Amended Complaint ¶¶ 24-26, at 7; Proposal No. 1, General 2008-09 School Security Services at 11-15 (dated May 1, 2008), filed October 2, 2012 (Doc. 102-3)(“ASI New Mexico Proposal”); Motion for Summary Judgment ¶ 8, at 7 (setting forth this fact); MSJ Response ¶ 8, at 8 (not controverting this fact).

At the time of the prom, and for a number of years before the prom, the two high schools in the SFPS, Capital High and Santa Fe High School, had a practice of having guards provided by ASI New Mexico perform pat-down searches of all attendees at proms and similar events, such as homecoming or other dances. See Romero Depo. at 53:5-54:22, 138:19-139:8, 235:15-22; Deposition of Cynthia Clarke, Ph.D. at 34:1-16, 37:20-38:5 (taken May 14, 2012), filed November 13, 2012 (Doc. 113-9)(“Clarke Depo.”); C. Herrera Depo. at 198:17-199:3, 199:18-200:9; Affidavit of Candice Herrera ¶ 26, at 5 (dated May 16, 2011), filed November 13, 2012 (Doc. 113— 10)(“C. Herrera Affidavit”); Archuleta Depo. at 45:6-7, 133:2-16, 134:7-11; Motion for Summary Judgment ¶ 9, at 7 (setting forth this fact); MSJ Response ¶ 9, at 8 (not controverting this fact).

Both SFPS administration and ASI New Mexico supervisory employees believe that the searches at such school events, in general, and at the prom, in particular, were reasonably required to exclude drugs, alcohol, weapons, and tobacco from, the prom and to dissuade attendees from taking such things to the prom. See Archuleta Depo. at 115:18-116:19, 126:14-127:8, 112:3-23, 130:11-15, 131:2-132:3; Romero Depo. at 101:10-102:5, 102:18-104:7, 105: 3-106: 6; Affidavit of Melanie Romero ¶ 4, at 2 (dated November 12, 2012), filed November 13, 2012 (Doc. 113-14)(“Romero Affidavit”); Motion for Summary Judgment ¶ 10, at 8 (setting forth this fact). Romero and ASI New Mexico supervising employee Rebecca Reyes acknowledge that the search protocols do not prevent students from bringing prohibited items into proms. See Romero Depo. at 102:19-104:1; Deposition of Rebecca Reyes at 97:10-24 (taken May 8, 2012), filed November 30, 2012 (Doc. 126-6)(“Reyes Depo.”); MSJ Response ¶¶ 10 & 11, at 8 (setting forth this fact); MSJ Reply at 2. Romero and others believed it was reasonable and necessary to perform pat-down and possession searches of the prom attendees, because there is a history of students and event attendees hiding banned items to take those items into events. See Romero Depo. at 101:0-104:1, 168:18-169:8; Archuleta Depo. at 112:3-23, 113:7-25, 115:14-116:19, 117:9-19; Clarke Depo. at 33:5-25, 68:13-69:24; 80:9-20; 106:17-108:16; Romero Affidavit ¶ 3, at 1; Motion for Summary Judgment ¶ 11, at 8 (setting forth this fact).

C. Herrera underwent pat-down searches by ASI New Mexico guards at the 2010 Capital High prom and homecoming dances and, therefore, she knew she would be subject to a pat-down search when she arrived at the prom. See C. Herrera Depo. at 198:17-200:9, 201:4-202:15, 203:11-204:24; Motion for Summary Judgment ¶ 12, at 8 (setting forth this fact). C. Herrera’s sister, T.H., attended homecoming dances in 2010 and 2011 with C. Herrera before the prom. See T.H. Depo. at 128:8-129:8; Motion for Summary Judgment ¶ 14, at 9 (setting forth this fact); MSJ Response ¶ 14, at 9 (not controverting this fact). There were pat-down searches at the 2010 and 2011 Capital High homecoming dances, which both C. Herrera and T.H. attended. C. Herrera Depo. at 202:5-8, 203:11-22; Motion for Summary Judgment ¶ 15, at 9 (setting forth this fact); MSJ Response ¶ 15, at 9 (not controverting this fact). In addition, pat-down searches were conducted at the 2010 Capital High prom, which C. Herrera attended. See C. Herrera Depo. 198:17-20; Motion for Summary Judgment ¶ 15, at 9 (setting forth this fact); MSJ Response ¶ 15, at 9 (not controverting this fact). Hurtado underwent a pat-down search without groping at the 2009 Capital High prom and did not have a problem with the basic pat-down searches. See Hurtado Depo. at 153:23-154:12; Motion for Summary Judgment ¶ 16, at 9 (setting forth this fact). Plaintiff Arianna London underwent pat-down searches at Rio Grande High School, in Albuquerque, New Mexico, as well as at certain concert venues, without objection. See London Depo. at 181:22-185:14, 186:14-21; Motion for Summary Judgment ¶ 17, at 9 (setting forth this fact); MSJ Response ¶ 17, at 9 (not controverting this fact).

Consistent with past Capital High practice, Romero asked the ASI New Mexico personnel providing security services at the pr.om to perform pat-down searches on attendees entering the Santa Fe Convention Center. See Romero Depo. at 130:16—132:20, 137:18-139:24; Deposition of Daniel Aguilar 237:3-21 (taken March 8, 2012), filed November 13, 2012 (Doc. 113-12)(“Aguilar Depo.”); Romero Affidavit ¶¶ 3, 4, at 1, 2; Motion for Summary Judgment ¶ 18, at 9 (setting forth this fact); MSJ Response ¶ 18, at 9 (not controverting this fact). Romero did not pat down or physically assist in patting down the Plaintiffs at the prom. Female ASI New Mexico employees performed the pat-down searches on female attendees at the prom after the attendees entered the Santa Fe Convention Center. See Second Amended Complaint, ¶¶ 42, 43, 56, 61, 62, 65, 66 and 67, at 10, 12-13; C. Herrera Depo. at 114:16-115:4; T. Herrera Depo. at 58:16-23; Hurtado Depo. at 115:23-116:9; London Depo. at 118:11-13, 119:18-21; Romero Affidavit ¶ 12, at 3; Motion for Summary Judgment ¶ 19, at 9-10 (setting forth this fact); MSJ Response ¶ 19, at 9 (not controverting this fact). Romero participated in the searches of students’ bags and purses. See Romero Depo. at 151:3—11; C. Herrera Depo. at 148:6-19; MSJ Response ¶ 6, at 5 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). ASI New Mexico, an independent contractor, employed the ASI New Mexico guards at the prom, and ASI New Mexico’s chain of command supervised these guards. See Second Amended Complaint ¶ 26, at 7; ASI New Mexico Proposal at 11-15; Motion for Summary Judgment ¶ 20, at 10 (setting forth this fact); MSJ Response ¶ 20 (not controverting this fact). Romero had the responsibility to ensure that both school officials and ASI New Mexico guards at the prom followed search “protocols.” Romero Depo. at 139:9-24. See MSJ Response ¶ 10, at 5 (setting forth this fact); MSJ Reply at 5 (not controverting this fact). Romero instructed Mark Archuleta, an ASI New Mexico supervisor, that she wanted pat-down searches conducted at the prom, but did not specify, nor did she give any direction, how the pat-down searches would be conducted. See Romero Depo. at 132:7-24; Romero Affidavit ¶¶ 3, 5, 6, 7, 8 and 10, at 1-3; Motion for Summary Judgment ¶21, at 10 (setting forth this fact); MSJ Response ¶ 21, at 10 (not controverting this fact).

The pat-down searches of the Plaintiffs were performed “in public view in the lobby of the Santa Fe Convention Center.” Complaint ¶¶ 54, 59, 64 and 69, at 11, 12, 13, and 14. See Motion for Summary Judgment ¶ 22, at 10 (setting forth this fact); MSJ Response ¶ 22, at 10 (not controverting this fact). ASI New Mexico employees Rebecca Reyes and Sandra Vigil conducted pat-down searches of female students at the 2011 Capital High prom. See Reyes Depo. at 85:19-21; Deposition of Sandra Vigil at 46:21-47:2 (taken July 24, 2012), filed November 30, 2012 (Doc. 126-12); MSJ Response ¶ 18, at 6 (setting forth this fact); MSJ Reply at 6 (not controverting this fact). The pat-down searches of the Plaintiffs were performed within a few feet of at least four SFPS employees, including Romero. See Complaint, ¶¶ 7 and 44, at 3 and 10; Motion for Summary Judgment ¶ 23, at 10 (setting forth this fact); MSJ Response ¶ 23, at 10 (not controverting this fact). At least eighteen SFPS employees were present at the prom. See Electronic Mail Transmission from Melanie Romero to Bobbie Gutierrez at 1 (dated May 23, 2011), filed November 30, 2011 (Doc. 126-11); Romero Depo. at 140:10-20 (identifying the e-mail to Gutierrez); MSJ Response ¶ 23, at 10 (setting forth this fact); MSJ Reply at 3 (not controverting this fact). Romero observed the pat-down searches of some of the female students entering the prom. See Romero Depo. at 161:16-23; MSJ Response ¶ 3, at 4 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). Romero did not see any search that included touching the attendees’ breasts or pulling their bras. See Romero Depo. at 236:16-238:6, 238:20-240:22, 244:10-16; Clarke Depo. at 74:25-75:25; Deposition of Susan Lujan at 112:9-16 (taken April 20, 2012), filed November 13, 2012 (Doc. 113—13)(“Lujan Depo.”); Lucero Depo. at 148:6-149:1; 54:7-10; 60:15-25; Romero Affidavit ¶ 13, at 3; Motion for Summary Judgment ¶24, at 10 (setting forth this fact). Romero did not have any individualized suspicion of any student entering the Prom. See Romero Depo. at 168:23-170:21; MSJ Response ¶ 25, at 7 (setting forth this fact); MSJ Reply at 6 (not controverting this fact).

ASI New Mexico had a contract with the SFPS to provide security services for schools in the Santa Fe Public School District. ASI New Mexico was hired based in part upon its experience and training in security services, including how a standard school-appropriate pat down should be conducted. See Romero Affidavit ¶ 6, at 2; Motion for Summary Judgment ¶ 25, at 10 (setting forth this fact); MSJ Response ¶ 25, at 10 (not controverting this fact). There is no evidence that Romero should have expected at any time before the prom that ASI New Mexico personnel performing pat-down searches at the prom would touch the breasts or bare legs, or pull female attendees’ bras, as the searches at earlier Capital High dances and similar off-campus events did not involve touching the breasts or bare legs, or pulling bras. See Romero Depo. at 218:9-20, 221:20-222:20; C. Herrera Depo. 198:17-200:9, 201:4-202:15, 203:11-204:24; Hurtado Depo. at 153:23-154:12; Motion for Summary Judgment ¶26, at 11 (setting forth this fact); MSJ Response ¶ 26, at 10 (not controverting this fact). Romero did not observe ASI New Mexico personnel touching the Plaintiffs’ or any other female attendees’ breasts or pulling their bras, while performing pat-down searches at the prom, and did not observe ASI New Mexico personnel touching London’s, Hurtado’s, or T.H.’s bare legs. See Romero Depo. 236:16-20; 237:7-21; 239:16-23; 240:6-22; 244:10-23; Romero Affidavit ¶ 13. Romero acknowledges that she had the power to stop the pat-down searches, as she testified that, if she had seen an ASI New Mexico security guard place her hands on a student’s breasts and shake them, or grab a student’s bra, she “would have immediately stopped it.” Romero Depo. at 236:21-240:5; Romero Affidavit ¶ 14, at 3; Motion for Summary Judgment ¶ 32, at 12 (setting forth this fact); MSJ Response ¶ 15, at 6 (setting forth the same fact).

No one attending the prom, including the Plaintiffs, informed Romero that ASI New Mexico personnel performing pat-down searches at the prom touched any prom attendees’ breasts or bare legs, or pulled any attendees’ bras, until several days after the prom, when nothing could be done to stop any such behavior. See Romero Affidavit ¶¶ 13 and 14, at 3; T. Herrera Depo. at 75:17-76:15; Hurtado Depo. at 134:3-10, 135:9-24; London Depo. at 135:13-24, 139:15-140:10; C. Herrera Depo. at 183:20-184:22; Motion for Summary Judgment ¶ 28, at 11 (setting forth this fact); MSJ Response ¶ 28, at 10 (not controverting this fact). Vince Herrera, C. Herrera’s and T. H.’s father, left a telephone message for Romero on April 19, 2011, three days after the prom, informing her about an alleged problem at the prom. See Romero Depo. at 188:2-25, 241:19-242:2; Deposition of Vincent Herrera at 114:1-15 (taken July 12, 2012), filed November 30, 2012 (Doc. 126-14)(‘V. Herrera Depo.”). Twelve days after the prom, on April 28, 2011, Romero learned that C. Herrera was alleging that a female, ASI New Mexico-employed security guard grabbed her breasts and stroked her bare legs. See Romero Depo. at 190:4-193:3; Motion for Summary Judgment ¶ 29, at 11-12 (setting forth this fact). Hurtado and London never informed Romero of alleged problems with the searches at the prom until they sued her on November 16, 2011, with the filing of the First Amended Complaint. See Doc. 64; Hurtado Depo. at 134:3-10, 135:9-24; London Depo. at 135:13-24, 139:15-140:10; Motion for Summary Judgment ¶ 30, at 12 (setting forth this fact); MSJ Response ¶ 30, at 11 (not controverting this fact). During the time that Romero was a Capital High co-principal or principal, she was not aware that anyone had complained of being inappropriately touched during a pat-down search conducted at Capital High or at any off-campus, Capital High-sponsored event before she learned of C. Herrera’s allegations. See Romero Depo. at 218:9-20, 240:23-242:2; Motion for Summary Judgment ¶ 31, at 12 (setting forth this fact); MSJ Response ¶ 31, at 11 (not disputing this fact).

PROCEDURAL BACKGROUND

On May 17, 2011, C. Herrera and T.H. filed their Complaint, asking for, among the requested relief, a declaratory judgment finding that the Defendants violated their civil rights and for a preliminary and permanent injunction:

[PJrohibiting all Defendants, except Santa Fe Public Schools and Santa Fe Public Schools Board of Education, from engaging in such conduct and directing [the same] Defendants ... to take all affirmative steps necessary to remedy the effects of the illegal conduct described herein and to prevent similar occurrences in the future.

Complaint at 28, filed May 17, 2011 (Doc. 1) . On that same day, C. Herrera filed Plaintiff Candice Herrera’s Motion for Temporary Restraining Order (Doc. 2) (“TRO Motion”), asking the Court to temporarily restrain “Defendants Bobbie Gutierrez, Principal Melanie Romero, Principal Robert Stephens, and the individual members of the Santa Fe Public Schools Board of Education to refrain from conducting searches at the 2011 Santa Fe High School Prom or the 2011 Capital High School Graduation.” TRO Motion at 1. On May 19, 2011, the Court held a hearing on the TRO Motion. On May 20, 2011, the Court issued a Memorandum Opinion and Order granting in part and denying in part the TRO Motion. See Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174 (D.N.M.2011)(Browning, J.)(“TRO Opinion”). The Court concluded that the pat-down searches to which C. Herrera and T.H. were allegedly subjected before entering the Capital High prom were likely unconstitutional, and that the factors weighed in favor of granting C. Herrera’s request for a temporary restraining order. See 792 F.Supp.2d at 1178. The Court thus ordered Capital High and Santa Fe High to cease suspicionless pat-down searches, as the schools had done them in the past, at their dances and precluding them from performing the searches at the schools’ graduation ceremonies, but allowing less invasive visual searches and searches with a magnetic wand, and also ordering ASI New Mexico guards to undergo instruction from Transportation Safety Administration officials on performing searches:

The Court orders Defendant Santa Fe Public Schools (“SFPS”) to send students who may attend the 2011 Santa Fe High School prom a notice stating that they may be subject to a search, describing what the search may be, and informing the students what items they may not bring into the prom and that those items may be confiscated. The Court also orders SFPS to send students who may attend the 2011 Capital High School Graduation a notice stating that they may be subject to a search, describing what the search may be, and informing the students what items they may not bring into the graduation and that those items may be confiscated. The Court directs the Defendants to refrain from conducting patdown searches of every student as a first approach. The security officers must conduct graduated searches. The security officers may conduct a visual inspection, order students to unzip or to remove their graduation gowns to show their clothes, order students to spread their legs, and screen students with a magnetometric wand. The officers may, as part of the visual observation, ask the students to remove jackets and shoes. If the security officers detect something on a student’s person with a wand, they must first ask the student to remove the object. If they have reasonable grounds, based on personal observation or other sources, 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, the security officers may conduct a pat-down search of the student. The officers or agents should use a graduated approach to the pat-down searches similar to that TSA uses and, where appropriate, with open hand out. The security officers may look in the students’ possessions, but they may not dump out the students’ possessions on a public table. The officer may remove objects in an orderly way, at a table removed from the public view, but not from the student’s vision, to see all contents. The officers may inspect telephones and cameras, and ask students to open them if necessary. The officers may confiscate alcohol, drugs, weapons, and other items that SFPS has notified the students may be confiscated, at least for some items, for the duration of the event; the officer may not, at the prom, confiscate hand lotion, and, at both events, the quantity of prescription medication that the student can show he or she needs to take during the event. The Court orders the SFPS to require Defendant ASI New Mexico, LLC (“ASI”) to provide at least one Transportation Security Administration (“TSA”) certified person at the 2011 Santa Fe High School and at the 2011 Capital High School Graduation prom to supervise the searches. The Court also orders SFPS to require ASI to train its employees working these events about TSA procedures. The Plaintiffs may have a third-party observer selected by the Plaintiffs at both events to observe the searches conducted at the events to ensure compliance with the Court’s order. The observer will be a witness only, however, and shall not interfere with the school’s compliance with the order. The Court anticipates the School’s good-faith compliance with its order.

Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d at 1200-01.

The Plaintiffs filed their Second Amended Complaint on September 18, 2012. See Doc. 100. Like the two previous versions, the Second Amended Complaint includes a claim against Romero in her individual capacity. Count I alleges a claim under 42 U.S.C. § 1983 for violation of the Plaintiffs’ Fourth Amendment rights to “be secure in their persons and effects against unreasonable searches and seizures.” Second Amended Complaint ¶ 135, at 24. On October 24, 2012, Romero and the other School Defendants moved to dismiss the remaining counts — II through V — of the Second Amended Complaint. See School Defendants’ Motion for Summary Judgment on Counts II, III, IV, and V of the Second Amended Complaint [Doc. 100] under the Tort Claims Act and Memorandum in Support (Doc. 108). On November 9, 2012, the Plaintiffs’ counsel informed Defendants SFPS Board of Education, Barbara Gudwin, Glenn Winkle, Linda Trujillo, Frank Montano, and Steven J. Carrillo, in their official capacity as SFPS Board of Education members, Bobbie J. Gutierrez, in her official capacity as SFPS Superintendent, Romero, in her official capacity as Capital High Principal, and Leslie Kilmer, in her official capacity as Santa Fe High School Principal (collectively “School Defendants”) that the Plaintiffs would concede the motion and file a rule 41 dismissal of Counts II-V of the Second Amended Complaint against all School Defendants, which the Plaintiffs filed on November 13, 2012. See Plaintiffs’ Unopposed Motion to Voluntarily Dismiss Counts II-V Against the Schools [sic] Defendants (Doc. 114). On November 15, 2012, the Court entered an Order granting the Plaintiffs’ motion, and dismissing Counts II, III, IV, and V against Defendants SFPS Board of Education; Barbara Gudwin, Glenn Wikle, Linda Trujillo, Frank Montano, and Steven J. Carrillo, in their official capacities as members of the SFPS Board of Education; Bobbie J. Gutierrez, in her official capacity as Superintendent of SFPS; Melanie Romero, in her official capacity as Principal of Capital High School; and Leslie Kilmer, in her official capacity as Principal of Santa Fe High School; and dismissing as moot the School Defendants’ Motion for Summary Judgment on Counts II, III, IV, and V of the Second Amended Complaint [Doc. 100] under the Tort Claims Act and Memorandum in Support. See Order at 1 (Doc. 118).

Romero filed her Motion for Summary Judgment on November 13, 2012, moving the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, to enter judgment in her favor on Count I based upon qualified immunity. See Motion for Summary Judgment at 1. Romero asserts that “the facts adduced in discovery are very different than those based almost solely upon Plaintiff Candice Herrera’s unopposed testimony at the TRO hearing.” Motion for Summary Judgment at 13. Romero argues that she is entitled to qualified immunity, because it was not clearly established in the United States Court of Appeals for the Tenth Circuit on April 16, 2011, “that requesting ASI New Mexico to perform a limited, school appropriate pat-down and possession search (that does not include groping or inappropriate touching) of all attendees to an off-campus high school prom, for the protection and safety of the attendees and the public, violated the Fourth Amendment.” Motion for Summary Judgment at 14. Regarding her conduct, Romero notes that she asked ASI New Mexico to have its employees perform pat-down searches of the prom attendees, because

[h]er experience as an administrator in SFPS high schools, and the experiences, which she had heard from other SFPS employees and ASI supervisors and employees, led her to reasonably believe that standard pat-down searches were reasonably necessary at the Prom to exclude contraband from the event and to dissuade attendees from bringing contraband to the event.

Motion for Summary Judgment at 15. According to Romero, SFPS principals “have shared that belief back to at least 2004.” Motion for Summary Judgment at 15. She asserts that “[t]here is no evidence suggesting that Principal Romero knew the request violated the attendees’ rights or that she had any intent to violate anyone’s constitutional rights,” and that “[s]he was just trying to protect her students from themselves at an event well-known to be characterized by attendees making bad decisions before, during and after such events.” Motion for Summary Judgment at 15.

In relation to these facts, Romero argues:

The issue for the “clearly established” prong of the qualified immunity test is whether it was clearly established on April 16, 2011 that a limited, school-appropriate, pat-down and possession search of all attendees to an off-campus high school prom, pursued for the protection and safety of the attendees, violated the attendees’ constitutional rights.

Motion for Summary Judgment at 15-16 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Romero approaches the question by examining the authorities that the Court cited in its TRO Opinion, granting the Plaintiffs’ request for a temporary restraining order: Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d at 1174. See Motion for Summary Judgment at 16. Addressing those authorities, Romero contends that it is clearly established “[sjearches in the school context are granted more leeway than the usual law enforcement searches because of the special needs inherent in dealing with students.” Motion for Summary Judgment at 16. Romero points out that no Tenth Circuit or Supreme Court opinion of which she knows has declared that pat-down searches of attendees at a school-sponsored prom are “per se, unreasonable and unconstitutional,” and asserts that “the rules established are that a school search (at least in the context of searching a student believed to have violated the law or school rules) is reasonable if it was justified at its inception and the search was reasonably related in scope to the circumstances justifying the search.” Motion for Summary Judgment at 17 (citing New Jersey v. T.L.O., 469 U.S. 325, 341-42, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)). Romero asserts that a search’s scope is reasonable “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 nature of the infraction.” Motion for Summary Judgment at 18 (quoting New Jersey v. T.L.O., 469 U.S. at 342, 105 S.Ct. 733). She also asserts that “the T. L.O. standards are broad ones and do not provide public school employees much detail regarding the contours of the rules and the rights they protect .... [and] courts, including the Supreme Court, have struggled to apply the T.L.O. standards in different circumstances.” Motion for Summary Judgment at 18.

Romero discusses the Supreme Court’s application of the search rule it announced in New Jersey v. T.L.O. and in its more recent cases of Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), and Board of Education of Independent School District No. 92 v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Edüd 735 (2002). See Motion for Summary Judgment at 18. Romero asserts that, in relation to the urinalysis testing in Board of Education of Independent School District No. 92 v. Earls particularly, the high school students going to prom here are analogous to the athletes participating in sports in that case, and the searches without suspicion are justified based on the students’ limited privacy expectations. See Motion for Summary Judgment at 18-19. She contends, however, that outside of providing the general proposition about the reduced privacy expectation, because the search was for safety purposes rather than for purposes of finding criminal activity, “Vernonia and Earls provide little guidance to a high school principal trying to keep her students and their guests safe by excluding weapons, drugs, alcohol and tobacco from being taken to the Prom.” Motion for Summary Judgment at 19.

As to whether the violated right was clearly established at the time of the alleged violation, Romero asserts that there is no Tenth Circuit opinion on point. See Motion for Summary Judgment at 19. She asserts that there is no Tenth Circuit or Supreme Court authority

which would have clearly informed Principal Romero that a limited pat-down search (without untoward groping) for the purpose of excluding, or dissuading attendees from bringing weapons, drugs, alcohol, or tobacco to the Prom, undertaken for the protection and safety of the attendees from themselves and each other, violates the Fourth Amendment. Indeed, the TRO Opinion cites no Tenth Circuit authority to support the conclusion that Candice Herrera was likely to succeed on her Fourth Amendment claim, let alone a case that would clearly establish such a standard.

Motion for Summary Judgment at 19-20. Romero also contends that there is also no clearly established precedent outside of the Tenth Circuit. She argues that the other three cases to which the Court cited in the TRO Opinion “present very different circumstances from searches occurring only at a school-sponsored party and possibly the most dangerous school-sponsored event of the year when considering the health of the attendees.” Motion to Dismiss at 20. Romero asserts that the Court’s statement in the TRO Opinion—that “[g]overnment may not condition the receipt of a benefit or privilege on the relinquishment of a constitutional right” Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d at 1183—“cannot be applied in the context of public schools consistent with controlling Supreme Court law.” Motion for Summary Judgment at 21. She argues that there is no reasonable basis on which to distinguish students’ limited waiver of their Fourth Amendment rights when they decide to participate in extracurricular sports activities, as the Supreme Court found in Board of Education of Independent School District No. 92 v. Earls, and finding that students waived their rights when they decided to participate in the off-campus prom. See Motion for Summary Judgment at 21. Romero thus asserts: “It was not clearly established law in the Tenth Circuit on April 16, 2011 that a limited, school-appropriate, pat-down and possession search of all attendees to an off-campus high school prom, pursued for the protection and safety of the attendees, violated the attendees’ Fourth Amendment rights.” Motion to Dismiss at 21.

Romero recognizes that the “Plaintiffs will claim that these were not limited, school-appropriate pat-down searches” and that, because the Plaintiffs testified on the record that “inappropriate things were done to them,” even “though the self-serving testimony of each Plaintiff may be incredible,” she concedes that “it may be enough to create justiciable fact issues.” Motion for Summary Judgment at 22. She responds, however, that “the facts are undisputed that Melanie Romero, the only Defendant sued in her individual capacity, had no part in any searches beyond asking ASI to perform limited (non-groping) pat-down searches,” and was not aware of the alleged scope of the searches until after the prom. Motion for Summary Judgment at 22.

Romero argues that this case is not about limited school-related pat-down searches, but about searches which allegedly included groping and molestation. See Motion for Summary Judgment at 23. She contends that, because she “did not order, perform, assist, observe, or have reported to her searches that included touching breasts or bare legs or pulling bras at the Prom,” and because Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), imposes liability on individuals only for their participation in a constitutional violation, the Court should dismiss her from the case. Motion for Summary Judgment at 24. Romero also argues that, even if the limited searches which she instructed ASI New Mexico to conduct at the Prom were unreasonable searches, there still cannot be any Fourth Amendment violation, as the students consented to the searches. See Motion for Summary Judgment at 25. Romero refers the Court to Johnston v. Tampa Sports Auth., 530 F.3d 1320 (11th Cir.2008), where the United States Court of Appeals for the Eleventh Circuit held that, where a patron objected to the search a stadium required him to undergo for admittance, because he nevertheless underwent the pat-down search to proceed into the stadium, there was no constitutional violation because patron consented. See Motion for Summary Judgment at 25. Romero argues that, viewed against that background, because the Plaintiffs testified that they had all undergone pat-down searches at previous school dances, expected to undergo pat-down searches at this dance, and did not refuse to undergo the pat-down searches at the prom, they consented, or Romero’s belief they consented is reasonable. She asserts that the Plaintiffs could have refused to consent to the searches by not entering the prom, but chose to consent to the searches and continue into the Prom. See Motion for Summary Judgment at 26-27. Romero asserts that, because there is no evidence that she participated in the alleged unlawful searches in any way, and because of her reasonable belief that the students consented to the search, the Court should grant summary judgment in her favor and dismiss her from the case.

On November 30, 2012, the Plaintiffs filed their MSJ Response, asserting that the Court should deny Romero’s request for summary judgment for two primary reasons. First, her motion is premised on assuming her account of the facts, which contradict the Plaintiffs’ descriptions and which is not appropriate at the summary judgment stage. Second, her motion is premised “on the assumption that if the searches did occur as Plaintiffs describe, Defendant Romero did not see them,” which the Plaintiffs assert is disputed, and thus also improper as a summary judgment basis. MSJ Response at 1-2.

The Plaintiffs assert that, at the summary-judgment stage, a court analyzing whether a defendant is entitled to qualified immunity “must construe the facts in the light most favorable to the plaintiff.” MSJ Response at 12 (citing Scott v. Harris, 550 U.S. 372, 378-80, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009)). The Plaintiffs assert:

It is beyond cavil that the pat-down searches described by the four Plaintiffs (with the cupping of the breasts, the feeling of bare legs and arms, the lifting of dresses to mid-thigh and the putting of fingers inside of a dress to check a student’s cleavage), which the Court must accept as true descriptions of the searches, violate the Fourth Amendment to the Constitution.

MSJ Response at 13. They assert that under the Fourth Amendment, “[a]s a general rule, in the school or school-activity context, officials must have ‘reasonable, individualized suspicion’ before conducting a search of a student.” MSJ Response at 13 (quoting New Jersey v. T.L.O., 469 U.S. at 341-42, 105 S.Ct. 733). The Plaintiffs concede, however, that the Supreme Court in Vernonia School District 47J v. Acton recognized that a school search “may still be reasonable without such suspicion in ‘limited circumstances where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion.’ ” MSJ Response at 14 (quoting Vernonia Sch. Dist., 515 U.S at 674, 115 S.Ct. 2386). They assert that the prom search is unconstitutional under this standard, as the means used to search in pursuit of the government’s interest to keep drugs, alcohol, weapons, and tobacco out of the Prom — the searches which included cupping the students’ breasts, feeling bare legs and arms, placing fingers inside of a dress to check cleavage, and lifting dresses to mid-thigh—are not reasonably related to that interest. See MSJ Response at 14-15.

As evidence that the scope of the searches at the prom was not reasonably related to the school’s objectives, the Plaintiffs point to Reyes’ testimony that touching students’ bare legs and arms, in plain view, would not help in accomplishing the school’s objective. See MSJ Response at 15 (citing Reyes Depo. at 73:14-21). The Plaintiffs assert that the searches were also “excessively intrusive in light of the age and sex of the students.” MSJ Response at 15. They contend further that the searches were unreasonable, as there “was no basis to believe that any of the four Plaintiffs had broken any school rule or were in any[ ][way] likely to break a school rule,” which is a threshold requirement for a reasonable school search. MSJ Response at 15-16.

As to whether Romero violated the Plaintiffs’ clearly established rights, the Plaintiffs assert that Romero misstates the issue in her Motion for Summary Judgment, and contend that the proper issue is “whether it was clearly established in 2011 that a search as described by Plaintiffs, which involves the touching of breasts, bare legs, and bra pulling, violates the Constitution.” MSJ Response at 17. They assert that the Defendants must concede that the answer to this proper question is yes, as Romero “agrees that the searches as described by Plaintiffs, or as described by ASI guard Rebecca Reyes and Capital High School employee Rose Lucero, were not appropriate.” MSJ Response at 17 (citing Romero Depo. at 211:2-10, 236:16-238:6; 238:20-240:5). According to the Plaintiffs,

Defendant Romero’s understanding that the searches as described by Plaintiffs were improper is confirmed by the precedent, as set forth above, that Plaintiffs and the Court rely on to show that the highly intrusive, suspicionless pat-down searches are not reasonably related to abstract concerns regarding drugs and alcohol at a high school dance. That precedent was issued by the Supreme Court long before the 2011 Capital High School Prom.

MSJ Response at 17.

The Plaintiffs argue that the Capital High search policies in its code of conduct “inform[s]” whether “it was clearly established that a principal like Defendant Romero could not institute a policy of blanket pat-down searches.” MSJ Response at 17. They point out that Capital High’s policies relating to school searches provide that searches “such as pat-downs may be conducted only on the basis of reasonable suspicion of the individual student to be searched,” that Capital High will make efforts to contact the parent and allow their presence during the search, and that the students’ personal effects, such as cellular telephones or purses, “may be searched when school officials have individual reasonable suspicion that such property” contains contraband. MSJ Response at 18 (quoting SFPS Code of Conduct at 57-58, filed November 30, 2013 (Doc. 126-13)). They assert that these policies “parrot” the school search requirements that the Supreme Court articulated in New Jersey v. T.L.O. and is “undoubtedly the product of the Schools’ legal counsel’s attempt to be consistent with existing precedent.” MSJ Response at 18. The Plaintiffs contend:

Romero stretches the bounds of credulity when she suggests that Supreme Court cases such' as Vernonia and Earls created a complex analysis that confused her regarding what suspicionless searches were permitted when her own Code of Conduct committee and the Schools’ legal counsel set forth a written policy that school officials such as herself were to follow related to student searches.

MSJ Response at 19.

In response to Romero’s contention that she was not personally involved in any alleged violation of the Plaintiffs’ Fourth Amendment rights, the Plaintiffs dispute that “she did not ‘order, perform, assist, observe, or have reported to her’ the intrusive searches,” and further assert that “the analysis of Defendant Romero’s personal involvement begins with an understanding of the nature of the relationship between her and the ASI personnel who conducted the searches.” MSJ Response at 19 (quoting Motion for Summary Judgment at 24). The Plaintiffs point out that Romero “does not dispute that she was present at the prom and observed pat-down searches,” but contends that those “searches that she observed necessarily included (for purposes of this Motion) the pulling and shaking of bras, which the searching guard describes she did for every student,” and that “two students describe seeing Ms. Romero looking right at them as the security guard lifted their dresses and patted down their bare legs.” MSJ Response at 20 (citing Reyes Statement at 1, filed November 30, 2012 (Doc. 126-7); C. Herrera Depo. at 130:12-131:2; A. London Depo. at 129:23-131:4, 132:18-133:1). They contend that Romero’s observation of the searches is sufficient to establish her personal involvement, as she failed to “intercede” when she was constitutionally required to do so. MSJ Response at 20 (citing Tanner v. San Juan Cnty. Sheriffs Office, 864 F.Supp.2d 1090 (D.N.M.2012) (Browning, J.); Dodds v. Richardson, 614 F.3d 1185, 1200-01 (10th Cir.2010)).

The Plaintiffs also argue that Romero’s suggestion that the students waived their Fourth Amendment rights in deciding to undergo the search and enter the prom fails, because the government cannot condition receipt of a privilege on an agreement to a rights waiver, and because there is no evidence that the Plaintiffs were aware they would be subjected to an intrusive pat-down search at the prom. See MSJ Response at 21-22. The Plaintiffs assert that Romero’s citation to the Eleventh Circuit’s decision in Johnston v. Tampa Sports Authority for the proposition that the “ ‘unconstitutional conditions’ doctrine”—the proposition that “ ‘government may not condition access to even a gratuitous benefit or privilege it bestows upon the sacrifice of a constitutional right.’ ” MSJ Response at 22 (quoting Blackburn v. Snow, 771 F.2d 556, 568 (1st Cir.1985))does not always apply is inapposite to this case, because the Eleventh Circuit pointed out that “ ‘the condition for entry was imposed by the NFL and the Buccaneers, both private entities, and not the government.’ ” MSJ Response at 22 (quoting Johnston v. Tampa Sports Auth., 530 F.3d at 1329)(emphasis added by the Plaintiffs). The Plaintiffs also take issue with Romero’s reading of Vernonia School District 47J v. Acton and Board of Education of Independent School District No. 92 v. Earls:

The Supreme Court did not find in those cases, as Defendant argues, that schools can condition participation in particular activities on a waiver of Fourth Amendment rights. Instead, the Supreme Court found that given all of the facts surrounding the challenged searches, they were reasonable and did not violate the Fourth Amendment.... Neither Vernonia nor Earls involved the conditioning of a benefit on the relinquishment of a constitutional right. Instead, they involved searches that the Court found were constitutional.

MSJ Response at 23.

The Plaintiffs also assert that there is no evidence that any of the Plaintiffs had “any inkling” that the prom searches would be as highly intrusive as they were. MSJ Response at 23. They contend that the fact that the evidence shows that the Plaintiffs appreciated that they were going to be subjected to pat-down searches does not mean that they anticipated searches to the same extent as they proved to be at the prom. See MSJ Response at 23-24. According to the Plaintiffs, along the same lines, their consent does not meet the “strict burden” on Romero to prove that they “impliedly waived” their Fourth Amendment rights by undergoing the searches to enter the prom. MSJ Response at 24 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir.2011)). The Plaintiffs contend that they thus did not waive their rights and that the Court should therefore deny Romero’s Motion for Summary Judgment.

On December 17, 2012, Romero filed her MSJ Reply, arguing that the Court should enter summary judgment in her favor, because it remains undisputed that she was not personally involved in the pat-down searches, and because she is entitled to qualified immunity. Romero contends that, in relation to her factual defense that she did not in any way participate in the pat-down searches at the prom, the Plaintiffs have not disputed Romero’s asserted facts that she did not request or order ASI New Mexico or ASI New Mexico employees to perform pat-down searches with groping at the prom, and that she was not the supervisor of the ASI New Mexico employees. See MSJ Reply at 8. Romero contends that the Plaintiffs point only to testimony in which Romero explains she requested the security services she needed from ASI New Mexico and requested pat-down searches generally. She asserts that the Plaintiffs have not cited any evidence that she directed the ASI New Mexico or its employees how to conduct the pat-down searches, and that there is undisputed evidence that “she did not specify the techniques ASI New Mexico employees use to perform pat-down searches.” MSJ Reply at 8. Romero also contends that the Plaintiffs have not shown a genuine issue whether Romero was informed that searches with groping were occurring during the prom, as “there is no evidence any one at the Prom informed Principal Romero of groping during pat-down searches.” MSJ Reply at 8. Romero points out that the Plaintiffs “attempt to show a dispute ... that Melanie Romero did not see any search with groping,” but that they do not support this dispute. MSJ Reply at 8. According to Romero, “in her deposition, Candice Herrera plainly admitted that she could not testify that Melanie Romero actually observed her search.” MSJ Reply at 9 (citing C. Herrera Depo. 62:6-11). Romero contends that the portions of the record upon which the Plaintiffs rely in an attempt to dispute that Romero did not observe C. Herrera’s search are insufficient, because C. Herrera testifies only that Romero smiled at her, not that Romero saw the search:

In Plaintiffs’ first citation to Candice Herrera’s deposition, at page 130, line 12 to page 131, line 2, Candice testified only that at a single point during her pat-down search, about the time the guard allegedly lifted her dress, Principal Romero looked at her (apparently in the face) and smiled. However, moments before, in testimony not cited by the Plaintiffs, Candice was somewhat clearer when asked, “Okay. And what was Melanie doing when you looked up at Melanie?” Candice answered, “She looked over and smiled at me and turned back around.” That is the extent of Candice Herrera’s testimony regarding Defendant Romero watching her alleged groping.

The second citation to Candice Herrera’s testimony (page 180, lines 1 through 9) provides no more probative evidence. The cited passage begins with a question to Ms. Herrera concerning the sworn affidavit that she provided the Court as evidence for the TRO hearing which stated, “[I] saw Principal Romero look at me while my body was being searched.” However, just a few lines later, Candice was asked: “Can you describe for me what you mean by ‘severely violated and exposed?’ ” C. Herrera Depo., Exhibit 2, P. 180, lines 15 to 16. Candice answered: “If you’re pulling up — the security guard is pulling up my dress, exposing my legs, which I’m uncomfortable with ...” and continued regarding her allegations and her view of the school’s alleged duty to protect her. Id., P. 180, line 18 to P. 181, line 11. The very next exchange provided:

Q Well, you’ve already testified that you don’t know if Melanie Romero saw any of that, right?

A Yes, sir.

Id., P. 181, lines 12 to 14.

MSJ Reply at 9-10. In relation to London’s testimony about Romero watching her pat-down search, Romero argues that London testified that London watched Romero search the purse and not that Romero watched London while ASI New Mexico performed the pat-down search. See MSJ Reply at 10. Romero thus argues that, because the Plaintiffs do not show a genuine issue of fact exists whether Romero “orderfed], perform[ed], assisted], observe[d] or [knew] of any pat-down searches with groping at the Prom,” there is no genuine issue whether she personally participated in the alleged unconstitutional pat-down searches, and the Court should, under Ashcroft v. Iqbal, grant summary judgment in her favor. MSJ Reply at 10-11.

Romero also argues that, given that any alleged constitutional violation must be based on her requesting ASI New Mexico to provide pat-down searches of students entering the prom to search for weapons, drugs, alcohol and tobacco, and given that there is no Tenth Circuit opinion on point to show any clearly established law, the Court must then look to the Supreme Court, which has not clearly established this conduct to violate the Fourth Amendment, or to the SFPS’ Code of Conduct. See MSJ Reply at 11. Romero asserts that “even a cursory examination of the Supreme Court’s opinions in T.L.O., Earls and Vernonia ... shows that the policies expressed in the Code of Conduct do not express the permissible scope of Fourth Amendment searches in the context of public schools as established in those three cases.” MSJ Reply at 11. She contends: “Surely, Plaintiffs cannot then contend that a violation of the Code of Conduct by a school official creates a federal constitutional claim for violating the Fourth Amendment.” MSJ Reply at 12. According to Romero, both Vernonia School District 47J v. Acton and Board of Education of Independent School District No. 92 v. Earls stand for the proposition that school searches do not require individualized suspicion and that Plaintiffs’ assertion to the opposite is “simply wrong.” MSJ Reply at 12. She asserts, however, that the Plaintiffs’ error is not pertinent, because these cases “did not involve pat-down searches” and therefore cannot clearly establish any constitutional violation for purposes of Romero’s conduct here. MSJ Reply at 12-13.

Finally, Romero contends that Vernonia School District 47J v. Acton and Board of Education of Independent School District No. 92 v. Earls do not support that public school students cannot be forced to surrender constitutional protections in exchange for certain voluntary activities. See MSJ Reply at 13. She contends that these cases “clearly establish that a school can not subject its entire student body to drug testing through urinalysis, but may do so, without constitutional violation, to certain groups based upon the circumstances.” MSJ Reply at 13. Romero asserts that, if subjecting student athletes to urinalysis was constitutionally permissible, subjecting students to limited pat-down searches for their protection from drugs, alcohol, firearms, and tobacco is also reasonable— and is certainly not clearly established as unreasonable. See MSJ Reply at 13-14.

Romero reiterates her argument that “it is not clearly established that a pat-down search at a prom during which a contract security guard, without any school involvement, gropes a student being searched violates the Fourth Amendment.” MSJ Reply at 14. She points out that the Plaintiffs, in their response, provide no authority to the contrary, and she “suggests that a reasonable search plus abuse by another party does not result in an unconstitutional search any more than justifiably barring speech lacking First Amendment protection plus sex abuse results in a First Amendment violation.” MSJ Reply at 14. She asserts that her conduct is easily separated from any ASI New Mexico contract-employee’s alleged unconstitutional conduct. See MSJ Reply at 14. She argues that, because the Plaintiffs cannot show any dispute that she did not in any way participate in a violation of any of the Plaintiffs’ clearly established constitutional rights, the Court should grant summary judgment in her favor. See MSJ Reply at 15.

On December 20, 2012, the Court held a hearing on Romero’s Motion for Summary Judgment. Romero asserted that her Motion for Summary Judgment is very fact specific, and that the Plaintiffs’ blanket statement that C. Herrera and London saw Romero watching their patdown searches does not find support in the record. See Tr. at 5:14-22; 6:11-18 (Coppler). The Romero referred the Court to C. Herrera’s testimony, pointing out that she “testified that during a single point in her pat-down search at about the time the guard was lifting up her dress, principal Romero looked over at her and smiled. That was it.” Tr. at 6:22-25 (Coppler). She stated: “At best,” C. Herrera “can say that Melanie Romero saw the guard lift up Candice’s dress, because Candice said she looked over at me and smiled at me and then turned back around.” Tr. at 7:1-3 (Coppler). She points out that none of the Plaintiffs, or anyone else, testified that Romero observed any groping or anyone touch C. Herrera’s bare skin. See Tr. at 7:3-10 (Coppler). As to London’s testimony about Romero’s observation of London’s pat-down search, Romero asserts that London testified she was watching Romero search London’s purse and not that Romero watched any part of the pat-down search of London. See Tr. at 7: lb-23 (Coppler). She argued: “The other two plaintiffs ..., neither one of them testified at all that Melanie saw any portion of their search, and all four plaintiffs have admitted that they do not know if Melanie Romero saw any portion of their search.” Tr. at 8:2-6 (Coppler).

The Court asked the Plaintiffs if they agree that the Court should grant summary judgment in Romero’s favor with respect to the other two Plaintiffs: T.H. and A. Hurtado. See Tr. at 10:4-11 (Co