A US Court of Appeals for the Second Circuit panel reinstated the complaint in PHANEUF v. FRAIKIN et.al. (Docket No. 04-4783-cv) on Friday, overturning a District Court decision from the Conneticut District Court (see 330 F. Supp. 2d 74 (D.Conn.)for the decision below.) The lower court ruled that the strip search of then eighteen year old Kelly Phaneuf was not unreasonable under the standards set by the US Supreme Court in New Jersey v.T.L.O 469 U.S. 325 (1985).
In June of 2002 Ms. Phaneuf was preparing to board a bus for a school sponsored picnic. During a previously announced search of handbags, (presumably for alcohol) Phaneuf was found to be carrying a pack of cigarettes and a lighter. Though legal for the 18 year old Kelly to possess, both are contraband in school. Another girl told a gym teacher that Phaneuf told her she was going to hide marijuana down her pants to get past the search. The gym teacher found the snitch to be credible and brought the information to the school principal. The principal may or may not have known who the tipster was, but she also found the information credible. When confronted with the snitches statement, the plaintiff's denial appeared, to the veteran principal, to be evasive. Evidentially knowing that Ms. Phanuef had been a disciplinary problem in the past (though never for drug use), the principal decided that a strip search was in order. Thereafter she re-searched the pocketbook again finding the contraband.
Ms. Faiken, the school nurse was ordered to do a full strip search of the student. She at first Faiken refused, as she felt a full nude search was overly intrusive (Always go with your first impression Ms. Faiken), but the principal insisted, so they called the plaintiffs mother down to conduct and observe the search. The mother also objected, but was told that if the search was not conducted, the Plaintiff would be expelled. The search predictably yielded nothing, except for the lawsuit.
The District court while noting that a strip search of a student by public school administrators is subject to higher scrutiny than a search of a student's possessions, held that the search was reasonable at it's inception and reasonable in scope. The District Court found that the reliable tip and the suspicious manner of the denial alomg with the history of the prior trouble plaintiff had been in, permitted the recheck of the handbag. The presence of contraband (the already found and not confiscated cigarettes and lighter)raised the level of suspicion sufficiently to allow the stripsearch.
The Second Circuit disagreed. In a decision by Judge B.D. Parker writing for a unanimous panel, the court held that the search was unjustified in its inception.
The court acknowledged and settled the question of whether T.L.O's reasonableness standard was appropriate for the strip search issue. The court, noting that the T.L.O search was of a pocketbook, decided that the Second Circuit would join the other circuits that have taken up the issue, and apply the T.L.O flexible reasonableness standard to stripsearches as implied by the dicta in T.L.O..
The court analyzed the Supreme Court's test as trying to strike a balance between
"the schoolchild's legitimate expectations of privacy and the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. 469 U.S. at 340, 339. SCOTUS decided that the necessary balance was not to require probable cause to incur a search but to require that the search be reasonable under the circumstances.
The SCOTUS set up a two part test. In part one, the court held that a search of a student 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. T.L.O., 469 U.S. 341 at 342(emphasis added)(footnote omitted);
The second part requires that "the student strip search must be reasonably related in scope to the circumstances which justified the interference in the first place. Id. at 341 (quoting Terry, 392 U.S. at 20). 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. See T.L.O. at 342.
The Second Circuit panel mindful of its pre T.L.O standard requiring probable cause for student searches and noting the discomfort with stripsearches it shares with the Seventh Circuit, stated that in applying the reasonableness standard it would do so with an eye toward the fact that 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. Cornfield by Lewis v. Consol. High Sch. Dist., 991 F.2d 1316, 1320-21 (7th Cir. 1993); Hence as the level of intrusiveness goes up so does the level of what is necessary to know before one decides the stripsearch is reasonable.
Applying the sliding scale of reasonableness for nudity, to the facts of the Phaneuf case, the court held that looking at the four reasons the School district gave for the search there was less than the necessary requisite knowledge to find the search reasonable.
Now I am at a loss to really advise a school district as to how it would act, given this decision. The Court reviewed the tip and found that the pleadings were conclusory as to whether the tipster was reliable. It questioned how much reliability ought to be given the tipster even if her reliability were to be established. Noting that she had not seen the drugs or any indicia of the drugs and the understanding the vagaries of the (generic)student tipster, the panel found her not reliable enough for stripsearch use.
The panel then rejected the knowledge of prior bad acts, because they were not for drug use either. Finding that the only reason for the search was to find drugs, past bad non-drug acts do not help (and might mitigate against) the cause needed to justify a search of this coed for drugs.
In reviewing the suspicious manner of denial, the panel notes that the record is devoid of what that means. It found the principal and teacher's suspicions to be conclusory plead and hence useless. Here I think they are right. That was bad pleading and bad lawyering. We really have to layout what we are talking about. That said, everybody does it. The only way to avoid it is to have others go over your pleadings like they are second year law review cite checkers. In fact it is the only reason I can think of for hiring a notes and comment editor. (Just joking guys.)
Finally in reviewing the contraband in the purse, the court found that the finding of cigarettes was only tenuously attached to the possibility of finding marijuana in plaintiff's panties. Additionally the first time they saw the contraband, they let it go during the announced pocketbook check which was to find contraband in the first place. It was only found the second time after the decision to do the stripsearch had been set in motion by calling plaintiff's mother. However area of discussion did produce my favorite line in the decision:
"Surely, a discovery of cigarettes cannot alone support a suspicion that a student is carrying a firearm or is bootlegging gin."
Imagine what Mel Brooks could have done with that line!