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Littell v. Houston Independent School District

United States Court of Appeals, Fifth Circuit

June 27, 2018

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

          Appeal from the United States District Court for the Southern District of Texas

          Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.


         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.



         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 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.


         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, 557 U.S. 364, 375 (2009); New Jersey v. T.L.O., 469 U.S. 325, 341 (1985). It instructs that searches must be "reasonable," and that "[a] search is reasonable if it meets both of the following criteria":

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, 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.


         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."


         Two of the girls' mothers sued the Houston Independent School District in federal district court on their daughters' behalves. They asserted claims under 42 U.S.C. § 1983 and the Texas Constitution. As relief, they sought compensatory damages, as well as an injunction requiring the school district to clarify its search policy and provide at least some Fourth Amendment training.

         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.


         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, 675 F.3d 849, 854 (5th Cir. 2012) (en banc); see also Leatherman v. Tar-rant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993) (no heightened pleading standard for municipal § 1983 liability). To survive a motion to dismiss, a complaint need not contain "detailed factual allegations"; rather, it need only allege facts sufficient to "state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. ...

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