11th Circuit: School Can Be Sued for Public Strip Search
August 12, 2016 (Fault Lines) — The 11th Circuit Court of Appeals held that a 12-year-old student may sue the school that forced him to take off his underwear and bend over in front of his vice-principal, a school resource officer, and three classmates, all in an effort to discover hidden marijuana.
In D.H. vs. Clayton County School District, D.H. sued the Clayton County School and his vice principal for the strip search, arguing that it violated his 4th amendment rights. The school argued that it wasn’t clearly established that it couldn’t strip search students in public to find small amounts of contraband, but the district court didn’t buy it, so it was forced to appeal.
It all began when an anonymous student with a bright future in the DEA informed the school resource officer that a student on campus, D.V., had marijuana and was passing it around. So the cop and vice principal grabbed D.V. from class and searched his backpack, only to find no drugs.
But D.V. had the bright idea of saying that it was really another student who had weed, R.C. So they grabbed R.C. and searched his backpack for drugs. No drugs. But RC names a third student who had drugs, T.D. T.D. is apparently so used to a high level of adult scrutiny that, as soon as he’s called into the vice principal’s office, he unbuttons his pants and drops them, pulling a small baggie of weed out of his underwear.
Vindicated by this major drug bust, our heroes renewed their searches, finding marijuana in D.V.’s backpack on the second search, and in R.C.’s sock. So far, so good. But, perhaps spurred on by this elaborate game of marijuana tag, the boys decided to name a fourth conspirator, D.H.
Now a little knowledge is a dangerous thing. And none of the adults in the room had known, apparently, that you could find drugs hidden in a student’s underwear. This was knowledge that had to be applied immediately. So when D.H. came in and, like the other boys, denied having drugs, the school resource officer and assistant principal briefly searched his backpack, then had him start removing his clothing.
So D.H. is in this room with three of his classmates and these two adults. First, he has to take off his shoes, then drop his pants. Then his shirt and socks. He’s standing there in his underwear. The officer asks that he take that off, too. D.H. asks if he could please just do this part of the search in the bathroom, but the assistant principal, suspecting a trick, declines.
So D.H. is forced to stand with his underwear around his ankles in this room, his genitals exposed, as the adults diligently look for drugs. There were none.
Thankfully, the 11th Circuit sees the problem with this. When students are exposed to searches, particularly strip searches, the school has to show that the search was justified and reasonable.
The Supreme Court already held in 2011 that you can’t force a middle school girl to go to the nurse’s office and stretch her underwear and bra for inspection to find contraband ibuprofen, though school administrators received qualified immunity as this had not yet been clearly established as something they could not do. And the 11th Circuit had earlier weighed in on a case where thirteen students were forced to strip so that teachers on a field trip could find $26 that had gone missing.
Here, the 11th Circuit thought it was totally reasonable to perform some kinds of strip searches on a student who may have marijuana, just that it’s not reasonable to make them hang around naked to do it. Aleve, you see, is not contraband in the same way that marijuana is:
We acknowledge that Safford involved, in part, a 400 mg “prescription strength” ibuprofen pill that is not necessarily available over the counter (though one could presumably take two over-the-counter 200 mg ibuprofen pills). However, there is no question that marijuana, a controlled substance, presents a greater danger to school safety than even a “prescription strength” ibuprofen pill.
Weed. It’s a menace. Sure, unlike with ibuprofen, it’s pretty hard to overdose on it. And the evidence that it’s addictive is pretty weak. And prohibition predominantly affects minorities, destroying their access to public housing and college loans. But still, the DEA persists in calling it a Schedule I drug even as we allow children to be given over-the-counter cough medicine with no apparent medical benefit.
Still, despite punting on whether a strip search was justified at its inception, the 11th Circuit seemed to reach the right result:
Simply put, while McDowell’s decision to strip search D.H. was justified at its inception, his decision to force D.H. to stand fully nude in front of his peers made the search excessive in scope. There was no exigency that prevented McDowell from asking D.H. to pull his waistband away from his body, from taking D.H. to a private place, or from excusing the other students to an area outside of his office. By forcing D.H. to strip naked in front of his peers, McDowell exposed D.H. to an unnecessary level of intrusion that rendered the search excessive in scope and, therefore, unconstitutional. Because McDowell violated D.H.’s constitutional rights, we next examine whether clearly established law put McDowell on notice that he was doing so.
This is one of those Pyrrhic victory moments. It’s fantastic that schools can’t force students to get naked solely because some other student says they have marijuana. Really. But did we need a court case to decide that? Did we need three separate adults to think it was a good idea first, and go to court to defend that notion?
Theres an old story about a foolish leader and a comparatively reasonable child. We invoke it in just such circumstances. When we strip search a child on the off chance of finding drugs, it is the emperor who has no clothes
 At some point in the exchange, the vice principal (a woman) stepped out and let an assistant principal conduct the searches.