Doe et al v. Champaign Community Unit 4 School District et al

Filing 70

OPINION: The Defendants' Motion for Summary Judgment is GRANTED on the Plaintiffs' claim against the Board and DENIED on the Plaintiffs' claims against Principal Howard. The Clerk is directed to terminate Arthur Culver, Sue Grey, Stig Lanesskog, Tom Lockman, Greg Novak, Jamar Brown, Kristine Chalifax, and David Tomlinson from this case. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 5/29/2015. (MJ, ilcd)

E-FILED

Friday, 29 May, 2015 04:10:17 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOHN DOE and JANE DOE, as
Parents and Next Friends of
D.M., a minor,
Plaintiffs,
v.
CHAMPAIGN COMMUNITY UNIT
4 SCHOOL DISTRICT, et al.,
Defendants.

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Civil No. 11-3355

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Before the Court is the Defendants’ Motion for Summary
Judgment (d/e 55). The motion is GRANTED in part and DENIED
in part. Questions of material fact prevent granting summary
judgment on the Plaintiffs’ claims against Rhonda Howard, but
summary judgment is granted on the Plaintiffs’ claims against the
members of the school board.
I. BACKGROUND
This case arises out of a search conducted by Defendant
Rhonda Howard on D.M., the then-16-year-old son of Plaintiffs

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John and Jane Doe, while D.M. was a student at Academic
Academy in Champaign, Illinois, and Howard was the principal
there. On the morning of January 21, 2011, Principal Howard was
informed by a staff member that there was a strong marijuana odor
present in the hallway outside of Room 113. Howard dep., d/e 66
at 13. Principal Howard entered Room 113 at around 9:00 AM. Id.
at 17. School started at 9, but there were only four students in the
room at that time. Id. at 17-18. Principal Howard spoke with those
four students, but she did not feel that they were the source of the
marijuana smell. Id. Principal Howard then left Room 113 to check
the neighboring Room 112 for the marijuana smell. Id. at 18.
When she could not locate the smell there, she went on to check
other areas of the school. Id.
The parties differ on when they believe D.M. arrived at school
on January 21, 2011. Principal Howard states that D.M. arrived by
9:15, while D.M. remembers getting to school at 9:30. Compare
Howard dep., d/e 66 at 12, with D.M. Dep., d/e 61 at 32. D.M.
entered Room 113, where he had his first class of the day, hung up
his coat on a hook near the door, and sat in the front row in the
seat closest to the door. D.M. Dep., d/e 61 at 34. By this time,

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Principal Howard had finished checking the rest of the school and
she returned to Room 113. Howard dep., d/e 66 at 19. When she
entered the room, she smelled a strong marijuana smell by the front
door. Id. at 19-20. After walking around the room, she decided
that D.M.’s coat was the source of the smell. Id. at 20. She did not
initially know who owned the coat, but when she asked whose coat
it was, D.M. identified it as his coat. Id. at 20-21. Principal
Howard then observed the class for several minutes and claims to
have observed that D.M. had “droopy, puffy” eyes and that he was
laughing and giggling. Id. at 21. Based on her observations of
D.M., Principal Howard asked D.M. to accompany her to her office.
Howard dep., d/e 66 at 21.
The Plaintiffs dispute that there was any smell on D.M.’s coat,
Jane Doe dep., d/e 62 at 15, that D.M.’s eyes were red, D.M. Dep.,
d/e 61 at 67, and that D.M. was laughing or giggling, id. at 68. The
Plaintiffs concede that D.M.’s eyes may have been puffy or droopy
but state that this appearance was caused by lack of sleep and the
fact that D.M. had woken up recently. D.M. Dep., d/e 61 at 68.
D.M. also states that Principal Howard did not walk around Room
113 before pulling D.M. out of class and that she instead asked him

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to step out immediately after she came into the class. Id. at 77.
After asking D.M. to step out of the class, Principal Howard
took D.M.’s backpack and coat with her, and D.M. followed
Principal Howard to her office. Howard dep., d/e 66 at 21; D.M.
Dep., d/e 61 at 44. When they got to Principal Howard’s office,
Principal Howard told D.M. that she had pulled him out of class
because he was high. Howard dep., d/e 66 at 25; D.M. Dep., d/e
61 at 44. D.M. responded by either laughing or smirking and told
Principal Howard that he did not smoke marijuana. D.M. Dep., d/e
61 at 44-45, 78. He also told Principal Howard that fatigue could
have caused him to have droopy eyes and given the impression that
he was high, but he reiterated that he was not actually high. Id. at
45.
Principal Howard then told D.M. that she was going to conduct
a search for marijuana. Howard dep., d/e 66 at 27; D.M. dep., d/e
61 at 44-45. She began the search by having D.M. empty out his
pockets while she searched D.M.’s coat and backpack. Howard
dep., d/e 66 at 27-28, 31; D.M. Dep., d/e 61 at 45-47. Principal
Howard emptied out the pockets of the coat and felt down the
lining, looked through D.M.’s backpack, and placed the contents of

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the coat and bag on her desk. Howard dep., d/e 66 at 28-29; D.M.
Dep., d/e 61 at 45-47. After D.M. pulled out the pockets of his
jeans to show Principal Howard that his pockets were empty,
Principal Howard pulled on the inside-out pockets to make sure the
pockets were fully pulled out. D.M. Dep., d/e 61 at 48. Principal
Howard then asked D.M. to remove his shoes, and she looked over
the inside and outside of the shoes. Howard dep., d/e 66 at 32;
D.M. Dep., d/e 61 at 46, 49. She also had D.M. roll down his socks
and pull up his pant legs so she could see if D.M. was hiding
anything in his socks. Howard dep., d/e 66 at 32-33; D.M. Dep.,
d/e 61 at 46.
The parties dispute what happened next. D.M. states that
Principal Howard had him unbuckle his belt and roll down the top
of his jeans so that the top of his underwear was exposed. D.M.
Dep., d/e 61 at 50. She then had him remove his shirt, and she
walked around him to see if he was hiding anything in his
waistband or boxers. Id. at 49-51. Principal Howard states that
she had D.M. “raise” his shirt so that she could see his waistline,
Howard dep., d/e 66 at 58, but she also states that having a
student roll down the top of his pants or lift up his shirt to expose

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his midsection would exceed her authority to search a student, id.
at 54, and she denies that she had him take his shirt off, id. at 70.
D.M. and Principal Howard also dispute whether Principal Howard’s
assistant was present for the search or whether the assistant did
not enter Principal Howard’s office until after Principal Howard had
finished searching D.M. Compare Howard dep., d/e 66 at 24-25,
with D.M. Dep., d/e 61 at 53.
Principal Howard did not find any contraband on D.M., and
after she finished searching him, she walked him back to class.
Howard dep., d/e 66 at 34-35; D.M. Dep., d/e 61 at 53-54.
Principal Howard did not search any of the other students in D.M.’s
class. D.M. dep., d/e 61 at 64; Jane Doe dep., d/e 62 at 22; John
Doe dep., d/e 63 at 29. D.M. stated that Principal Howard also did
not sniff any students other than D.M. and the only other AfricanAmerican student in class. D.M. dep., d/e 61 at 55. After walking
D.M. back to class, Principal Howard called D.M.’s mother, Plaintiff
Jane Doe. Howard dep., d/e 66 at 36; Jane Doe dep., d/e 62 at 23.
Principal Howard told Ms. Doe about the search of D.M., but at that
point, Principal Howard did not give Ms. Doe any details about the
search, and she did not tell Ms. Doe that no other students had

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been searched. Howard dep., d/e 66 at 36; Jane Doe dep., d/e 62
at 23. At lunchtime, D.M. called his mother and told her how upset
he was because of the search. D.M. dep., d/e 61 at 70; Jane Doe
dep., d/e 62 at 17-18, 20-21. Ms. Doe then called Principal Howard
back and requested a meeting to discuss the search with her. Jane
Doe dep., d/e 62 at 25.
The weekend after the search occurred, D.M. travelled to
Chicago to spend time with his father. John Doe dep., d/e 63 at
15; D.M. dep., d/e 61 at 72. D.M. was noticeably upset after the
search, and he spoke to some religious mentors about what had
happened. John Doe dep., d/e 63 at 15-16, 27-28; D.M. dep., d/e
61 at 72. Later, D.M. sought counseling with the school counselor.
D.M. dep., d/e 61 at 73-74.
The Plaintiffs met with Principal Howard on January 25,
2011—the Tuesday after the search, which had occurred on a
Friday. John Doe dep., d/e 63 at 24. Present at the meeting were
Ms. Doe and her brother (D.M.’s uncle), Principal Howard, and
Orlando Thomas, a representative of the School Board. Jane Doe
dep., d/e 62 at 26. D.M.’s father, Plaintiff John Doe, was present
by telephone. Id. at 26; John Doe dep., d/e 63 at 17. D.M.’s

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teacher and Principal Howard’s assistant were also at the meeting.
D.M. dep., d/e 61 at 77. The parties dispute what occurred during
the meeting. John and Jane Doe allege that Principal Howard
acknowledged that she did not smell marijuana on D.M. when they
got to her office. John Doe dep., d/e 63 at 22; Jane Doe dep., d/e
62 at 34. Principal Howard disputes that she told the Plaintiffs that
she did not smell marijuana on D.M. in her office, and she testified
that she did still smell marijuana on D.M.’s coat when they reached
her office. Howard dep., d/e 66 at 36, 41-42. The Plaintiffs also
stated that, after D.M.’s uncle questioned Principal Howard about
the grounds for her search, she could not offer an explanation for
why she searched D.M. and she eventually broke down in tears and
apologized. D.M. dep., d/e 61 at 85-87; John Doe dep., d/e 63 at
18, 23; Jane Doe dep., d/e 62 at 28, 32-33. They further allege
that Orlando Thomas admitted that Principal Howard had made
mistakes in her search of D.M. and that he stated would review the
school’s search policy with her. D.M. dep., d/e 61 at 87-88; John
Doe dep., d/e 63 at 18, 24; Jane Doe dep., d/e 62 at 28, 33, 36.
Principal Howard acknowledges apologizing to the Plaintiffs, but she
testified that the apology was “for the way the parents felt,” not

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necessarily for what Principal Howard had done. Howard dep., d/e
66 at 42, 70.
On September 20, 2011, Mr. and Ms. Doe filed suit against
Principal Howard, Champaign Community Unit 4 School District,
the Superintendent of Champaign Community Unit 4 School
District, and all of the members of the Board of Education of
Champaign Community Unit 4 School District (“the Board”).
Compl., d/e 1. The Plaintiffs’ complaint has faced two motions to
dismiss and has been amended twice. In ruling on those motions to
dismiss, the Court dismissed claims against Principal Howard in
her official capacity and claims against the Board because the
Court found that the Plaintiffs had not shown any wrongdoing on
the part of the Board. See Op. of July 12, 2013, d/e 33. The latest
version of the Plaintiffs’ complaint brings § 1983 claims against
Principal Howard for violations of D.M.’s Fourth Amendment rights
“not to be apprehended or taken into possession or custody” and
“not to be subjected to unreasonable searches and seizures,” as well
as his Fifth and Fourteenth Amendment “right not to be deprived of
life, liberty, or property without due process of law.” Sec. Am.
Compl., d/e 34 at 7-8. The Second Amended Complaint also brings

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a § 1981 claim against Principal Howard for violating D.M.’s “right
not to be racially profiled.” Id. at 8-10. Lastly, the Plaintiffs bring a
§1983 claim against the Board that is largely the same as the claim
that the Court previously dismissed. Compare id. at 10-12 with
First Am. Compl., d/e 28 at 13-14. The Defendants now move for
summary judgment against the Plaintiffs’ claims on the grounds
that Principal Howard is entitled to qualified immunity and
summary judgment against the Plaintiffs’ §§ 1983 and 1981 claims
and that the Board is entitled to summary judgment on the
Plaintiffs’ § 1983 claim against the Board. Defs.’ Mot. for Summ. J.,
d/e 55.
II. LEGAL STANDARDS
Summary judgment is appropriate where the record, viewed in
the light most favorable to the nonmovant, reveals that there are no
genuine issues as to any material fact, meaning that the moving
party is entitled to a judgment as a matter of law. Fed. R. Civ. P.
56(a); Trentadue v. Redmon, 619 F.3d 648, 652 (7th Cir. 2010)
(noting that all reasonable inferences must be drawn in favor of the
nonmovant). The party moving for summary judgment bears the
burden of establishing the absence of any genuine issues of

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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Once the movant has met this burden, the nonmovant must
present evidence sufficient to create triable issues of fact on each of
the essential elements of her claim. Trentadue, 619 F.3d at 652.
The court simply determines whether there is a genuine issue of
fact for trial without weighing the evidence or evaluating the
credibility of the parties and witnesses. Outlaw v. Newkirk, 259
F.3d 833, 837 (7th Cir. 2001).
In addition to moving for summary judgment against the
Plaintiffs’ claims, the Defendants argue that Principal Howard is
entitled to qualified immunity against the Plaintiffs’ claims. State
actors are entitled to qualified immunity where their conduct does
not violate clearly established statutory or constitutional rights of
which a reasonable person would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (providing that qualified
immunity protects governmental actors from liability for civil
damages).
The court applies a two-part inquiry to determine whether a
defendant is entitled to qualified immunity. First, the court
examines whether the plaintiff has presented evidence, taken in the

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light most favorable to the plaintiff, that would allow a reasonable
fact finder to determine that the plaintiff was deprived of a
constitutional right. Sallenger v. Oakes, 473 F.3d 731, 739 (7th
Cir. 2007) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled in part by Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
Second, the court examines whether the particular constitutional
right was clearly established at the time of the alleged violation. Id.
A court may, in its discretion, address the second prong of the test
first. Pearson, 555 U.S. at 242.
The plaintiff bears the burden of establishing the existence of
a clearly established constitutional right. Rice v. Burks, 999 F.2d
1172, 1174 (7th Cir. 1993). A plaintiff may do this by either
pointing to a closely analogous case or showing that the conduct
was so egregious that no reasonable officer would have thought he
was acting lawfully. Chelios v. Heavener, 520 F.3d 678, 691 (7th
Cir. 2008); Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 723-24
(7th Cir. 2013). “Importantly, the right must be clearly established
in a particularized sense, rather than in an abstract or general
sense.” Abbott, 705 F.3d at 731. However, “a case directly on point
is not required for a right to be clearly established and ‘officials can

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still be on notice that their conduct violates established law even in
novel factual circumstances.’” Phillips v. Cmty. Ins. Corp., 678
F.3d 513, 528 (7th Cir. 2012) (quoting Hope v. Pelzer, 536 U.S. 730,
741 (2002)).
III. ANALYSIS
The Defendants argue that Principal Howard is entitled to
qualified immunity and summary judgment against the Plaintiffs’
claims because her search of D.M. “was justified at its inception
and permissible in its scope.” Defs.’ Mot. for Summ. J., d/e 55 at
1-2. The Defendants also move for summary judgment against the
Plaintiffs’ claim against the Board because, they argue, the Plaintiffs
cannot present any evidence to show that the Board acted with
“deliberate indifference” to D.M.’s rights. Id. at 2.
A. Viewing the Record in the Light Most Favorable to the
Plaintiff, a Jury Could Find that Principal Howard’s
Search Violated D.M.’s Constitutional Rights.
The Defendants argue that Principal Howard’s search was
constitutional because Principal Howard had reasonable grounds to
search D.M. and her search was reasonable in its scope. However,
when the facts are construed in the light most favorable to the
Plaintiffs, a jury could find that Principal Howard violated D.M.’s

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rights by either commencing a search without reasonable suspicion
or carrying out a search that was unreasonable in scope.
First, Principal Howard may have violated D.M.’s
constitutional rights by searching him without reasonable
suspicion. The Supreme Court has held that a search of a student
must be “‘justified at its inception’” by showing that “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.” New Jersey v. T.L.O., 469 U.S. 325,
341-42 (1985) (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). In
other words, a school official must have “a moderate chance of
finding evidence of wrongdoing” before searching a student. Safford
Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371 (2009).
The facts in the light most favorable to the Plaintiffs are that
D.M. did not giggle or laugh in class, that his eyes were not red,
that his coat did not smell like marijuana when Principal Howard
got to her office with him, and that he simply looked “sleepy.” D.M.
dep., d/e 61 at 67-68; John Doe dep., d/e 63 at 22; Jane Doe dep.,
d/e 62 at 34. The Plaintiffs’ version of what transpired at the
parent meeting with Principal Howard also demonstrate that

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Principal Howard was not able to explain her reasons for searching
D.M. at the time of the search. See D.M. dep., d/e 61 at 85-87;
John Doe dep., d/e 63 at 18, 23; Jane Doe dep., d/e 62 at 28, 3233. The first coherent justification that Principal Howard offered for
her search of D.M. appears to be in the statement she wrote a week
to a week and a half after she searched D.M., which was also after
she met with D.M.’s parents. See Howard statement, d/e 64;
Howard dep., d/e 66 at 43. Under these facts, a jury could find
that Principal Howard lacked reasonable suspicion to commence a
search of D.M.1
Even if Principal Howard had reasonable suspicion to begin a
search of D.M., she may have violated D.M.’s constitutional rights
by carrying out a search that was impermissible in scope. In
T.L.O., the Supreme Court held that a search must be “permissible
in its scope” by utilizing measures that “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.”
T.L.O., 469 U.S. at 342. If a search exceeds these bounds of
Notably, at Principal Howard’s deposition, Principal Howard did
not appear to understand what reasonable suspicion meant. See
Howard dep., d/e 66 at 48.
1

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reasonableness, it “crosses the constitutional boundary.” Safford,
557 U.S. at 382 (Ginsburg, J., concurring in part and dissenting in
part). The Supreme Court applied its T.L.O. holding in the context
of strip searches in Safford Unified School District No. 1 v. Redding.
In Safford, the Court analyzed the constitutionality of the search of
a 13-year-old female student by several school officials. Safford,
557 U.S. at 368-69. The student was suspected of distributing
prescription-strength ibuprofen to her classmates. Id. at 368. The
school officials required the student to remove all of her outer
clothes and “pull her bra out and to the side and shake it, and to
pull out the elastic on her underpants, thus exposing her breasts
and pelvic area to some degree.” Id. at 369.
In evaluating the constitutionality of this search, the Supreme
Court recognized that the school’s interest in preventing the
distribution of prohibited substances, combined with the officials’
reasonable suspicion that the student had distributed the
prohibited pills, justified a search of the student’s backpack and
outer clothing. Id. at 373-74. However, the Court closely
scrutinized the school’s justifications for the more intrusive strip
search and held that when “the categorically extreme intrusiveness

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of a search down to the body of an adolescent” is involved, “general
background possibilities [of finding contraband] fall short; a
reasonable search that extensive calls for suspicion that it will pay
off.” Id. at 376-77. The Court concluded that the ibuprofen pills
did not present a significant threat to students and, importantly,
that the school officials lacked “any reason to suppose that [the
student] was carrying pills in her underwear.” Id. The Court
emphasized that:
We do mean . . . to make it clear that the T.L.O. concern
to limit a school search to reasonable scope requires the
support of reasonable suspicion of danger or of resort to
underwear for hiding evidence of wrongdoing before a
search can reasonably make the quantum leap from
outer clothes and backpacks to exposure of intimate
parts. The meaning of such a search, and the
degradation its subject may reasonably feel, place a
search that intrusive in a category of its own demanding
its own specific suspicions.
Id. The Court ultimately held that the search was impermissible
but that its impermissibility was not clearly established at the time
of the search, meaning that the school officials were entitled to
qualified immunity. Id. at 377-79.
A jury could find that Principal Howard’s search of D.M. was
impermissible in scope. The Defendants are correct that marijuana

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presents a greater danger to D.M.’s fellow students than the
prescription-strength ibuprofen at issue in Safford. See Morse v.
Frederick, 551 U.S. 393, 394-95 (2007) (quoting Vernonia Sch. Dist.
47J v. Acton, 515 U.S. 646, 661 (1995)) (“[D]eterring drug use by
schoolchildren is an ‘important—indeed, perhaps compelling’
interest”). However, as in Safford, Principal Howard may not have
had reasonable grounds to justify what amounts to a partial strip
search of D.M. According to the Plaintiffs’ version of events,
Principal Howard had very little reason to suspect D.M. for
marijuana use, and yet she had D.M. remove his shirt, unbuckle
his belt, and roll down the top of his pants so that the top of his
underwear was visible. One of Principal Howard’s major reasons for
the search—the smell on D.M.’s jacket—could hardly be used to
justify a search of D.M.’s naked upper body and the waistband of
his underwear, especially if, as the Plaintiffs allege, Principal
Howard no longer smelled marijuana on D.M. once they reached
Principal Howard’s office. Without the marijuana smell to justify
her search, all Principal Howard had to justify her search was
D.M.’s “sleepy”-looking eyes. The Court finds that under the
scrutiny required by Safford, the appearance of D.M.’s eyes, without

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more, does not amount to a specific reason “to suppose that [D.M.]
was carrying [marijuana] in [the waistband of his] underwear.” See
Safford, 557 U.S. at 376-77.
B. The Rights that Principal Howard May Have Violated Were
Clearly Established.
Furthermore, Principal Howard is not entitled to qualified
immunity because the rights she may have violated were clearly
established. T.L.O. and Safford clearly established that a search of
a student carried out without reasonable suspicion of wrongdoing,
or “a moderate chance of finding evidence of wrongdoing,” is
unconstitutional. See T.L.O., 469 U.S. at 341-42; Safford, 557 U.S.
at 371. Therefore, if a jury found that Principal Howard lacked
reasonable grounds to begin searching D.M., Principal Howard
would not be entitled to qualified immunity against D.M.’s claim
that the search was unreasonable at its inception.
Additionally, the exacting standard set by Safford put Principal
Howard on notice that her search of D.M. could have been
impermissible in scope. Principal Howard had actual notice of this
standard because she was provided with the school’s strict
regulations on searches and with information about the state of the

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law on school searches. See Ex. E to Defs.’ Mot. for Summ. J., d/e
57-2; Howard dep., d/e 66 at 47-53 (testifying that an assistant
superintendent reviewed this information with Principal Howard).
This information summarized the holdings of T.L.O. and Safford,
stating that “[u]nless school officials have reasonable particularized
suspicion with respect to the suspect and the item school officials
are looking for presents and immediate threat to the safety of school
personnel or students a strip search is unconstitutionally invasive.”
Ex. E to Defs.’ Mot. for Summ. J., d/e 57-2. The Court finds that
the facts in Safford are sufficiently analogous to this case to put
Principal Howard on notice for the purposes of qualified immunity.
See Phillips, 678 F.3d at 528 (7th Cir. 2012) (quoting Hope, 536
U.S. at 741) (“[A] case directly on point is not required for a right to
be clearly established and ‘officials can still be on notice that their
conduct violates established law even in novel factual
circumstances.’”).2
The cases cited by the Defendants do not alter this analysis.
On this point, the Court disagrees with the holding of the District of Kansas
in S.S. ex rel. Sandidge v. Turner Unified Sch. Dist. #202, No. 12-CV-02346CM, 2012 WL 6561525, at *4-5 (D. Kan. Dec. 14, 2012). The Court agrees with
the Sandidge court’s factual analysis, but feels that the court erred in requiring
a more factually analogous case than Safford to find that there had been a
violation of a clearly established right in that case.
2

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Several of the Defendants’ cited cases only involve searches of outer
clothing, as opposed to the more intrusive sort of search alleged by
the Plaintiffs in this case. See Bridgman By & Through Bridgman v.
New Trier High Sch. Dist. No. 203, 128 F.3d 1146, 1149 (7th Cir.
1997) (search of student’s outer clothing); Faber v. Monticello Cent.
Sch. Dist., No. 10-CV-01812 ER, 2013 WL 2450057, at *4 (S.D.N.Y.
June 6, 2013) (search of student’s pockets); Binder v. Cold Spring
Harbor Cent. Sch. Dist., No. CV 09-4181 SJF ARL, 2010 WL
3257708, at *6 (E.D.N.Y. July 19, 2010) (search of student’s
pockets and backpack). Similarly, Gallimore v. Henrico County
School Board, 38 F. Supp. 3d 721, 725 (E.D. Va. 2014), concerned
a pat down search, which generally does not reach the
intrusiveness of a strip search. See United States v. Dorsey, 641
F.2d 1213, 1217 (7th Cir. 1981) (“[A] patdown search, which falls
short of the intrusiveness associated with a strip search, is
governed by principles different from those applicable to strip
searches”). Furthermore, the court in Widener v. Frye, 809 F.
Supp. 35, 38 (S.D. Ohio 1992), did not scrutinize the justifications
for a school’s very intrusive search of a student. School officials in
Widener felt that a student was acting “sluggish” and possibly

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smelled like marijuana, and they required him to lift his shirt, lower
his pants, and pull his gym shorts “tight around his crotch area to
permit the Defendants . . . to observe whether the Plaintiff was
concealing any drugs.” Id. at 36. Given the intrusiveness of this
search and the limited grounds to justify it, the Widener decision
would likely be reversed under Safford’s exacting standard.
The school in Cornfield by Lewis v. Consolidated High School
District No. 230, 991 F.2d 1316 (7th Cir.1993), which required a
student to strip naked for a search, had substantially greater
justifications to support such an invasive search. See Cornfield,
991 F.2d at 1319, 1322. The Seventh Circuit in Cornfield
recognized that “a highly intrusive search in response to a minor
infraction would . . . not comport with the sliding scale advocated
by the Supreme Court in T.L.O.,” and that “[w]hat 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 1320-21. The court also observed that “no one
would seriously dispute that a nude search of a child is traumatic”
and that “the potential for a search to cause embarrassment and
humiliation increases as children grow older”—concerns that were

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implicated by Principal Howard’s search of D.M. See id. at 1321 &
n.1. The Cornfield court acknowledged that the search of the
student was invasive, but concluded that reasonable grounds
existed for such a search because several teachers had observed
what appeared to be contraband hidden under the student’s clothes
in the student’s crotch area, teachers received tips from impartial
students that the student possessed and used drugs, the police had
reported to the school that the student was selling drugs to other
students, and the student previously admitted that he had sold
drugs and hidden drugs in his underwear in the past. See id. at
1322-23.
When the facts of this case are construed in the light most
favorable to the Plaintiffs, Principal Howard had very little
justification to carry out an extensive search of D.M. Therefore, this
case is distinguishable from Cornfield and is more analogous to
Safford. Under Safford, the scope of Principal Howard’s search may
have violated D.M.’s clearly established constitutional rights. For
that reason, Principal Howard is not entitled to qualified immunity
on D.M.’s claim that her search was impermissible in scope.

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C. The Board Is Entitled to Summary Judgment on the
Plaintiffs’ § 1983 Claim.
The Defendants also move for summary judgment on the
Plaintiffs’ claim against the Board. The Defendants argue that the
Plaintiffs cannot show that the Board failed to train Principal
Howard regarding proper search procedures. The Board could be
liable for Principal Howard’s allegedly illegal search if the Board
failed to train its employees regarding proper school search
procedures and if that “‘failure to train its employees . . . evidences
a “deliberate indifference”’ to the rights of students.” See Cornfield,
991 F.2d at 1327 (quoting City of Canton v. Harris, 489 U.S. 378,
389 (1989)). To impose liability on the Board, the inadequacy of
Principal Howard’s training must have been “so likely to result in
the violation of constitutional rights, that the policymakers of the
city can reasonably be said to have been deliberately indifferent to
the need” for that training. See Harris, 489 U.S. at 390.
The Board was not so indifferent in this case. As previously
discussed, the Board supplied Principal Howard with a detailed
pamphlet explaining the state of the law regarding school searches
and an assistant superintendent went over those rules with

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Principal Howard. See Howard dep., d/e 66 at 47-53; Ex. E to
Defs.’ Mot. for Summ. J., d/e 57-2. Such actions could hardly be
considered “deliberate indifference.” Therefore, the Defendants’
motion for summary judgment is granted on the Plaintiffs’ claim
against the Board.
IV. CONCLUSION
For those reasons, the Defendants’ Motion for Summary
Judgment is GRANTED on the Plaintiffs’ claim against the Board
and DENIED on the Plaintiffs’ claims against Principal Howard.
The Clerk is directed to terminate Arthur Culver, Sue Grey, Stig
Lanesskog, Tom Lockman, Greg Novak, Jamar Brown, Kristine
Chalifax, and David Tomlinson from this case.
ENTER: May 29, 2015.
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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