Bettina Littell v. Houston Independent Sch
Opinion
During a sixth-grade choir class, an assistant principal allegedly ordered a mass, suspicionless strip search of the underwear of twenty-two preteen girls. All agree the search violated the girls' constitutional rights under Texas and federal law. Even so, the district court dismissed the girls' lawsuit against the school district for failure to state a claim. We reverse.
I
A
For purposes of this appeal, we take as true the amended complaint's factual allegations. Those allegations describe how $50 went missing during a sixth-grade choir class at Houston's public Lanier Middle School. Assistant Principal Verlinda Higgins was brought in to investigate. When no money turned up, the school *620 police officer "suggested that girls like to hide things in their bras and panties." Higgins took all twenty-two girls in the choir class to the female school nurse, who strip searched them, taking them one at a time into a bathroom, where she "check[ed] around the waistband of [their] panties," loosened their bras, and checked "under their shirts." The girls "were made to lift their shirts so they were exposed from the shoulder to the waist." No parents were notified, despite the girls' requests. No money was found.
B
The Houston Independent School District allegedly permits its school officials to conduct invasive searches of students' persons-but provides no training as to how to do so legally. Instead, employees are left to rely on the school district's written search policy as set forth in three official school district documents attached to the amended complaint.
The first document, labeled "Legal Policy FNF," states in abstract terms the federal legal standard governing student searches.
See
Safford Unified Sch. Dist. No. 1 v. Redding
,
1. The action is justified at the inception, i.e., the school official has reasonable grounds for suspecting that the search will uncover evidence of a rule violation or a criminal violation.
2. The scope of the search is reasonably related to the circumstances that justified the search in the first place, i.e., the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
Legal Policy FNF also provides citation to the Fourth Amendment of the U.S. Constitution, New Jersey v. T.L.O. , and a federal district court opinion from 1980 dealing with dog-sniff searches of cars. The document gives no further explanation or detail, however, as to what its two criteria mean, or how teachers and administrators can tell when they are met. 1
A second document, titled "Regulation FNF2," sets forth certain implementing procedures. This document provides a simpler-and broader-rule for deciding when a search is proper:
Students and their personal effects are subject to being searched by school officials, *621 if a school official has reasonable cause to believe that the student is in possession of contraband. ... If a school official has reasonable cause to believe that contraband is present, he or she may institute a search.
Regulation FNF2 further defines "contraband" as "all substances or materials, the presence of which are prohibited by Board policy or state law." And it briefly attempts to define the legal phrase "reasonable cause." 2
The last relevant document is page four of the Student Code of Conduct. This document purports to "brief[ly] descri[be]" the school district's legal policies and regulations. Its summary of the student-search policy is further condensed:
School officials are empowered to conduct reasonable searches of students and school property when there is reasonable cause to believe that students may be in possession of drugs, weapons, alcohol, or other materials ("contraband") in violation of school policy or state law. Students who bring contraband onto school grounds may be searched ....
Apart from inserting the quoted language into these three documents, the school district allegedly does nothing to apprise its employees of the standards that govern whether, when, and how public officials may constitutionally search a student's person and/or underwear.
C
In the wake of the mass strip search in this case, the school's principal issued a memo admonishing Higgins for "[r]equesting a search of the students' person[s] for items other than 'contraband.' " It is unclear why the principal did not consider stolen money to qualify as "contraband" under Regulation FNF2 and/or the Student Code of Conduct, given that theft is "prohibited by ... state law." Regardless, the supposed lack of "contraband" appears to have been the principal's only concern; the memo never criticized the search for invading the underwear of twenty-two preteen girls, or for doing so without particularized suspicion.
The memo likewise made no mention of Legal Policy FNF or Regulation FNF2. Instead, it instructed Higgins to "follow [the school district's] policy and procedures in the Student Code of Conduct," and to "revisit page 4 of [that Code] for policy procedures concerning school officials and reasonable search of students." The memo further made clear that, at least in the principal's mind, such strip searches of students are not per se improper under school district policy. Rather than forbidding all strip searches going forward, the memo requested: "In the future, if you feel a student must have a search requiring a strip search, please notify me before proceeding."
D
Two of the girls' mothers sued the Houston Independent School District in federal district court on their daughters' behalves. They asserted claims under
*622
The school district moved to dismiss the complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). While its motion was pending, the school district responded to Plaintiffs' first set of interrogatories, and in doing so provided copies of the documents described above. See Fed. R. Civ. P. 33(d). The district court subsequently granted the school district's motion and dismissed the complaint without prejudice.
Plaintiffs promptly amended their complaint, this time attaching copies of the school district's interrogatory responses and the documents the school district had provided. 3 It was not enough. The district court granted the school district's renewed motion to dismiss the action under Rule 12(b)(6), while denying further leave to amend. This appeal followed.
II
We review a district court's dismissal under Rule 12(b)(6) de novo, "accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiffs."
Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex rel. Keys
,
III
The central issue on appeal is whether the amended complaint states a claim for municipal liability against the school district under
Thus, to state a § 1983 claim against the school district, the amended complaint must allege sufficient factual content to permit the reasonable inference
*623
(1) that a constitutional violation occurred and (2) that an "official policy" attributable to the school district's policymakers (3) "was the moving force" behind it.
See, e.g.
,
Magee
,
A
That the alleged facts demonstrate a constitutional violation is presently undisputed. A brief discussion of why the alleged search was unconstitutional, however, will nonetheless prove helpful.
To search a student's person, school officials must generally have reasonable suspicion that the search will reveal evidence of a violation of school rules or the law.
T.L.O.
,
When the search is of the student's
underwear
, moreover, additional requirements apply. Underwear searches are "embarrassing, frightening, and humiliating."
Applied here, this clearly established law means that Higgins violated the constitutional rights of the twenty-two girls unless Higgins reasonably suspected that the missing $50 cash (1) would be found on that particular girl's person and either (2) would be found specifically in that girl's underwear or (3) would pose a dangerous threat to students. For what are perhaps obvious reasons, the parties do not dispute that the alleged search *624 failed all three conditions. It was clearly unconstitutional.
B
The parties' real dispute concerns whether Plaintiffs adequately allege an "official municipal policy" on which § 1983 liability may rest.
See
Monell
, 436 U.S. at 691,
1
The Supreme Court established the "failure to train" method of proving municipal liability in
City of Canton v. Harris
,
Canton
envisioned two means of proving deliberate indifference. Sometimes,
Canton
said, municipal employees will violate constitutional rights "so often" that the factfinder can infer from the pattern of violations that "the need for further training must have been plainly obvious to the ... policymakers."
But even absent proof of pattern, deliberate indifference can still be inferred if the factfinder determines that the risk of constitutional violations was or should have been an "obvious" or "highly predictable consequence" of the alleged training inadequacy.
Thus, for example, if a city policymaker opts to provide no training whatsoever to police officers concerning the established and recurring constitutional duty not to use excessive deadly force, a factfinder may reasonably infer that the city acted with the requisite deliberate indifference. The Supreme Court explained as much in Canton , by way of hypothetical:
[C]ity policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force, see Tennessee v. Garner ,471 U.S. 1 [105 S.Ct. 1694 ,85 L.Ed.2d 1 ] (1985), can be said to be "so obvious[ ]" that failure to do so could properly be characterized as "deliberate indifference" to constitutional rights.
2
Here, the alleged facts, taken together and assumed to be true, permit the reasonable inference-i.e., the claim has facial plausibility-that the risk of public officials' conducting unconstitutional searches was or should have been a "highly predictable consequence" of the school district's decision to provide its staff no training regarding the Constitution's constraints on searches. Indeed, Plaintiffs' allegations mirror Canton 's hypothetical in all material respects.
As in
Canton
, "[t]he constitutional duty of the individual officer [not to conduct unreasonable searches] is clear," with ample "constitutional guide-posts for municipalities."
Also as in
Canton
, the constitutional duty not to conduct unreasonable searches is plausibly alleged to arise "in recurrent situations that a particular employee is certain to face."
Like the city in
Canton
, moreover, the school district cannot rely on its employees to come pre-equipped with legal knowledge. Just as "[t]here is no reason to assume police academy applicants are familiar with the constitutional constraints on the use of deadly force,"
Connick
,
In these circumstances, the Supreme Court has said, "there is an obvious need
*627
for
some
form of training."
We emphasize, however, that our conclusion in no way ordains Plaintiffs' ultimate success. Without a pattern of constitutional violations, deliberate indifference can be inferred only in narrow and extreme circumstances like those of Canton 's hypothetical. And in the thirty years since Canton issued, actual cases reaching those extremes have proved fortunately rare. 6 Perhaps at summary judgment or at trial, the evidence in this case, too, will reveal the allegations of deliberate indifference to have been unfounded. The evidence might show, for example, that no one reasonably expects school officials to conduct "searches" within the meaning of the Fourth Amendment. Or it might show that, contrary to Plaintiffs' allegations, the school district does provide legal search training to employees who might reasonably be expected to need it.
But if Plaintiffs' allegations prove true-that is, if the school district knew or should have known that officials like Higgins would certainly be placed in situations implicating Fourth Amendment search law; if the school district knew or should have known that those officials would lack the legal knowledge necessary to handle those situations; and if the school district nonetheless failed to provide those officials any legal training on the subject-then the factfinder will be entitled (but not required) to infer that the school district acted with deliberate indifference to its students' Fourth Amendment rights. In such a case, "[t]he likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that situation will violate citizens' rights c[an] justify a finding that policymakers'
*628
decision not to train the officer reflected 'deliberate indifference' to the obvious consequence of the policymakers' choice-namely, a violation of a specific constitutional or statutory right."
Brown
,
3
The contrary arguments presented to us fail to engage the applicable legal framework. For example, the district court's analysis turns on its erroneous assumption that, without a pattern of unconstitutional searches, the school district could not have been on notice of the need to provide at least
some
type of Fourth Amendment training.
7
But in light of
Canton
, the Fifth Circuit recognizes an "exception" to the pattern method of proving deliberate indifference for cases in which "a constitutional violation was the highly predictable consequence" of the alleged failure to train.
E.g.
,
Burge
,
The school district, meanwhile, devotes wide swaths of its brief to asserting the facial constitutionality of its written search policies. Because those policies correctly state the law, the school district says, unlawful searches could not have been an "obvious" consequence of enacting them. The first difficulty with this argument is its premise: in fact, the school district's written search policies are at best incomplete guides to actual Fourth Amendment law, capturing none of the alleged search's constitutional defects. Compare supra Part I-B, with supra Part III-A. Although the policies describe the "knowledge component" of the reasonable suspicion standard (i.e., the requisite degree of certainty that contraband "[be] present"), they make no mention of the requirement that there be reasonable suspicion linking the contraband to a particular student. See, e.g. , supra note 2. And the policies are wholly silent with respect to the additional requirements for strip searches, i.e., that there be reasonable suspicion that the object of the search will be found specifically in the student's underwear or else be dangerous. If anything, the policies say the opposite: they appear to condone the use of strip searches to locate any "contraband," defined as any item possessed in violation of the law or school policy.
But even accepting the school district's incorrect premise, this argument is still beside the point. The Supreme Court in
Canton
"reject[ed] [the] contention that only unconstitutional policies are actionable under [ § 1983 ]."
Only two portions of the school district's brief confront the
Canton
framework. Those portions assert that the risk of unconstitutional searches could not plausibly have been an "obvious consequence" of providing no Fourth Amendment training because (1) the missing $50 unambiguously fell outside the written policies' definition of "contraband" and (2) Fourth Amendment caselaw is not "void for vagueness." The relevance of the first point is unclear, but it is in any event incorrect. Because Texas law prohibits theft,
see
We hold that deliberate indifference is plausibly alleged.
C
Of course, deliberate indifference is not the whole story. Plaintiffs' "failure to train" theory will also require proof of causation: "Would the injury have been avoided had the employee been trained under a program that was not deficient in the identified respect?"
Canton
,
Given the relatively egregious nature of the alleged constitutional violation in this case, see supra Part III-A, we think it plausible that even a modicum of Fourth Amendment training would have alerted Higgins that the search she ordered was unconstitutional. We also think it plausible that Higgins would not have undertaken the search had she known it was illegal. Thus, to the extent the amended complaint plausibly alleges deliberate indifference, it *630 also plausibly alleges causation. We cannot affirm the district court's alternative basis for dismissing Plaintiffs' federal claims. The order dismissing those federal claims must, accordingly, be reversed.
IV
In addition to asserting federal claims, Plaintiffs seek injunctive relief under article 1, section 9 of the Texas Constitution (which prohibits unreasonable searches). They ask the district court to order the school district to clarify its search policy and provide minimally adequate search training.
The parties and the district court have implicitly assumed throughout this litigation that Texas law recognizes an implied cause of action under which plaintiffs can sue to enjoin municipal policies that cause constitutional violations (e.g., a policy of failing to train), even if those policies are not
themselves
unconstitutional.
Cf.
City of Beaumont v. Bouillion
,
Even with that assumption in place, however, the district court dismissed Plaintiffs' Texas-law causes of action for failure to state a claim. It did so for two independent reasons, both of which were error.
A
First, the district court dismissed the Texas-law claims based on its previous determination that, under the standards of causation applicable to § 1983 suits for municipal liability, "Plaintiffs fail to allege sufficient facts to indicate that [the school district's allegedly] deficient training of its employees was the 'moving force' behind the constitutional violations."
We have already rejected the district court's conclusion on this point. In fact, we have held, Plaintiffs do allege sufficient factual content to permit the reasonable inference that, but for the alleged failure to train, the alleged constitutional violations would not have occurred. See supra Part III-C. And, to the extent the district court intended to rely on its conclusion that Plaintiffs fail adequately to allege deliberate indifference, we have rejected that conclusion, too. See supra Part III-B. This stated rationale from the district court cannot justify dismissing Plaintiffs' state-law claims.
B
Second, the district court dismissed the Texas-law claims because, in its view, "what Plaintiffs appear to be asking
*631
for is an 'obey-the-law' injunction," which the district court thought "would be too vague ... to give a reasonable person notice" of what it would require. For support, the district court cited Rule 65(d) of the Federal Rules of Civil Procedure, which defines the required scope and content of district court injunctions. Under Rule 65(d), "[a] general injunction which in essence orders a defendant to obey the law is not permitted."
Meyer v. Brown & Root Const. Co.
,
We reverse this determination. As an initial matter, it is far from clear that Rule 65(d) can ever justify dismissing a cause of action at the pleading stage. Rule 65(d) governs the scope and content of injunctions; it does not purport to set a pleading standard. Neither the district court nor the school district cites any case suggesting that a complaint's failure to propose sufficiently specific injunction language is grounds for a Rule 12(b)(6) dismissal. 10
To the extent Rule 65(d) can theoretically justify a pleading-stage dismissal, moreover, we expect that it can do so only if there is no conceivable way to frame the requested relief in adequately specific terms. That is not the case here. Far from merely requesting that the school district be enjoined from violating the Fourth Amendment, the amended complaint seeks, in its words,
injunctive relief ... prohibiting the use of strip searches of students at [Houston Independent School District] schools unless and until:
(1) The [written] Student Search Policy is clearly defined; including who can be searched, under what circumstances a student can be subjected to a search, what can be searched for, when a search is reasonable, and the procedures for implementing said search;
(2) A procedure for implementing a search of a student's person is clearly *632 documented, including but not limited to proper ways to obtain consent, who is to be notified and when they are to be notified that a search is occurring; and
(3) [The school district] implements a training program for all employees so that student's Constitutional Rights are protected.
It is not difficult to imagine reforms to the school district's allegedly nonexistent Fourth Amendment training program that the district court could conceivably order without running afoul of Rule 65(d). To take some easy examples: the district court might order that the written policy be modified to mention the "nexus" requirement,
see
Zurcher
, 436 U.S. at 556,
This is not to say that the language in the amended complaint would pass muster if copied verbatim into an injunction. In the event that Plaintiffs demonstrate their entitlement to such an order (presumably after a trial), there will be opportunity for the parties and the court to resolve which particular requirements are justified by the established facts. But at the pleading stage, the rule that injunctions must do more than "order the defendant to obey the law" cannot justify the dismissal the district court entered here.
V
The district court's judgment is reversed. This case is remanded for further proceedings consistent with this opinion.
Legal Policy FNF also states that "[s]chool officials may search a student's outer clothing, pockets, or property by establishing reasonable cause or securing the student's voluntary consent." Given the reference to "outer clothing," this sentence could arguably be read to prohibit all strip searches, regardless of context. The school district, however, emphatically rejects that view. At oral argument, for example, the following exchange occurred:
THE COURT: In the policy, where it says "school officials may search a student's outer clothing, pockets, or property by establishing reasonable cause or securing consent," why doesn't that policy explicitly tell these teachers they couldn't go beyond clothing, especially if they didn't have even reasonable cause?
THE SCHOOL DISTRICT: Well, unfortunately, in this day and age, there needs to be some discretion by school administrators that would allow those types of searches to maintain the safety in our schools.
Oral Arg. at 35:44-36:15; see also, e.g. , id. at 20:33-20:45 (school district stating its position that the policy permits searches to go beyond outer clothing and pockets "under certain circumstances"). For purposes of this appeal, therefore, we do not construe Legal Policy FNF to categorically prohibit searches of students' underwear.
Regulation FNF2 defines "reasonable cause" as follows:
Reasonable cause is the standard for a search on school property or at school-related events and is based on the school official's specific reasonable inferences which he or she is entitled to draw from the facts in light of the school official's experience. Specific reasonable inferences may be drawn from instances including but not limited to a tip from a reliable student, suspicious behavior that suggests that contraband is present, a smell indicating the presence of contraband, or a bulge in a pocket, etc. Reasonable cause should not be based on a mere hunch.
Some of the school district's interrogatory responses differ from the facts alleged in the amended complaint. To the extent there are inconsistencies, our factual recitation above credits the amended complaint.
See, e.g.
,
Peña v. City of Rio Grande
,
E.g.
,
United States v. Moore
,
Because "virtually every" plaintiff alleging municipal liability can propose
some
training reform that would have prevented "the particular injury-causing conduct,"
Canton
,
We count only one published "single incident" failure-to-train case in our circuit in which the plaintiff prevailed.
See
Brown
,
The district court rejected the allegations of deliberate indifference because, in its view:
Plaintiffs have failed to demonstrate that [school district] personnel are recurrently faced with situations so similar to the facts of the instant case that the need for training would be obvious. To be more specific, Plaintiffs did not provide the Court with any prior instances when [school district] officials conducted a search of this magnitude before the event of the instant case, nor do they allege there is a pattern of complaints by other citizens. Although the strip searches in this case may have been questionable under the Fourth Amendment, any impropriety of these searches was not a product of [the written search] policy, and Plaintiffs have failed to establish a pattern of unconstitutional behavior that should have led [the school district] to begin training its employees. (emphases added).
The school district also places heavy reliance on the Eleventh Circuit's opinion in
Thomas ex rel. Thomas v. Roberts
,
Bouillion
-the only Texas case cited by the parties or the district court-held that "there is no implied private right of action for damages arising under the free speech and free assembly sections of the Texas Constitution,"
We find opinions from numerous district courts that address this issue, the majority of which agree that Rule 65(d) usually does not justify dismissal of a complaint.
See
SEC. v. Couch
, No. 3:14-CV-1747-D,
Reference
- Full Case Name
- Bettina LITTELL, as Parent and Next Friend of I.L., a Minor; Yvonne Benavides, as Parent and Next Friend of A.B., a Minor, Plaintiffs-Appellants v. HOUSTON INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee
- Cited By
- 134 cases
- Status
- Published