                                 ___________

                                 No. 95-2276
                                 ___________

Cleoria Thompson, as next           *
friend of Ramone Lea, a minor,      *
                                    *
                                    *
      Plaintiff - Appellee,         *
                                    *
      v.                            *
                                    *
Carthage School District;           *
Randy King, individually and in     * Appeal from the United States
his capacity as Superintendent      * District Court for the
of Schools; Randy Harris, Bruce     * Eastern District of Arkansas.
McCracken, Curtis Rushing, Gail     *
Toney, individually and in          *
their official capacity as          *
Members of the Board of             *
Education; Norma Bartel, Ralph      *
Malone, individually and in         *
their capacity as employees of      *
the Carthage School District,       *
                                    *
      Defendants - Appellants.      *
                               ___________

                   Submitted:     January 11, 1996

                        Filed:   June 28, 1996
                                 ___________

Before LOKEN, REAVLEY,* and HANSEN, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


       Ramone Lea was expelled from Carthage High School after school
officials found crack cocaine in his coat pocket while looking for guns and
knives reported to be on school grounds.         The district court awarded
$10,000 in § 1983 damages for "wrongful expulsion" because the search had
violated Lea's Fourth Amendment




     *The HONORABLE THOMAS M. REAVLEY, United States Circuit Judge
     for the Fifth Circuit, sitting by designation.
rights.    The Carthage School District, four members of its Board of
Education, the school Superintendent, and the educators who performed the
search appeal.   Concluding that the Fourth Amendment exclusionary rule does
not   apply to school disciplinary hearings, and that the search was
constitutionally reasonable, we reverse.


                                      I.


      Carthage is a small, rural school district in which all grades are
housed at one location.   Total enrollment is about 225; 90 to 100 students
attend the High School.     On the morning of October 26, 1993, a school bus
driver told Norma Bartel, the High School principal, that there were fresh
cuts on seats of her bus.    Concerned that a knife or other cutting weapon
was on the school grounds, Bartel concluded that all male students in
grades six to twelve should be searched.    After the search began, students
told Bartel that there was a gun at the school that morning.


      Bartel and science teacher Ralph Malone conducted the search by
bringing each class of students to Malone's classroom.    The students were
told to remove their jackets, shoes, and socks, empty their pockets, and
place these items on large tables in the science room.    Bartel and Malone
then checked the students for concealed weapons with a metal detector.
Malone would pat down a student if the metal detector sounded, as it often
did because of the metal brads on the students' blue jeans.      Malone and
Bartel also patted the students' coats and removed any objects they could
feel in the coat pockets.    They completed the search before Superintendent
Randy King arrived at 9:30 that morning.


      Lea was a ninth grade student at the time of the search.      Neither
Bartel nor Malone had reason to suspect that Lea had cut the school bus
seats or had brought a weapon to school that morning.   Lea's class was one
of the last to be searched in the science room.   Malone searched Lea's coat
pocket and found a used




                                      -2-
book of matches, a match box, and a cigarette package.       Considering these
items to be contraband, Malone showed them to Bartel, and she brought them
to her office.    Bartel found only cereal in the cigarette package but
discovered "a white substance" in the match box.      She took the match box
to King, who turned it over to a deputy sheriff.    A test revealed that the
white substance was crack cocaine.    After a hearing, Lea was expelled for
the remainder of the school year.


      Lea and his guardian, Cleoria Thompson, commenced this § 1983 action,
alleging that the search and expulsion violated Lea's Fourth Amendment
rights, and that the expulsion hearing denied him due process.     The parties
submitted the case on depositions and affidavits.    The district court held
that the expulsion proceeding comported with due process, but that Lea's
expulsion was wrongful because the search had violated his Fourth Amendment
rights.    The school officials had no "individualized, particularized
suspicion" that Lea was carrying a weapon or other contraband, and "there
was no adequate basis in the evidence to justify the initial decision to
search all 6-12 grade boys."   In addition, the court reasoned, Bartel and
Malone seized the match box after they knew that Lea did not possess a
knife or gun.    The court awarded Lea $10,000 in compensatory damages
against defendants Bartel, Malone, King, and the school board members who
voted for expulsion.   It awarded Lea a reasonable attorney's fee, granted
a declaratory judgment that his Fourth Amendment rights were violated, but
declined to issue an injunction.     This appeal followed.


                                     II.


      At the outset, we confront an issue ignored by the parties and the
district court -- whether the Fourth Amendment's exclusionary rule applies
in school disciplinary proceedings.    At oral argument, we invited counsel
to submit supplemental briefs addressing this issue, but neither side did
so.   The issue is critical because the




                                      -3-
district court awarded substantial damages for wrongful expulsion, based
entirely on the proposition that Lea could not be expelled for possessing
crack cocaine discovered during an illegal search.
     The judicially-created exclusionary rule precludes admission of
unlawfully seized evidence in criminal trials.                   "In the complex and
turbulent history of the rule, the Court never has applied it to exclude
evidence from a civil proceeding, federal or state."                 United States v.
Janis, 428 U.S. 433, 447 (1976).           In Janis, the Court held that the rule
does not apply in federal tax proceedings to bar evidence illegally seized
by state officials.      In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the
Court held that the rule does not apply in civil INS deportation hearings.
The Court's "framework" for deciding whether the exclusionary rule applies
in a particular civil proceeding is to analyze whether the likely benefit
of excluding illegally obtained evidence outweighs the societal costs of
exclusion.     Id. at 1041.


     The societal costs of applying the rule in school disciplinary
proceedings are very high.        For example, the exclusionary rule might bar
a high school from expelling a student who confessed to killing a classmate
on campus if his confession was not preceded by Miranda warnings.               We doubt
that any parent would compromise school safety in this fashion.                  To the
extent the exclusionary rule prevents the disciplining of students who
disrupt education or endanger other students, it frustrates the critical
governmental function of educating and protecting children.


     Moreover, "maintaining security and order in the schools requires a
certain degree of flexibility in school disciplinary procedures."                    New
Jersey   v.   T.L.O.,   469     U.S.   325,    340   (1985).      Application   of   the
exclusionary     rule   would    require      suppression      hearing-like   inquiries
inconsistent with the demands of school discipline, demands that led the
Court to impose very limited due




                                           -4-
process requirements in Goss v. Lopez, 419 U.S. 565, 583-84 (1975).
     The benefit of the exclusionary rule depends upon whether it would
effectively deter Fourth Amendment violations.               In that regard, this case
is like Lopez-Mendoza in one important respect -- school officials both
conducted the search and imposed the student discipline.                        Knowing that
evidence     they    illegally    seize     will    be   excluded    at    any    subsequent
disciplinary proceeding would likely have a strong deterrent effect.                       See
468 U.S. at 1042-43.


     But there are also important differences between school discipline
and the deportation proceeding at issue in Lopez-Mendoza.                   The dissenters
in that case argued for the exclusionary rule "[b]ecause INS agents are law
enforcement officials whose mission is closely analogous to that of police
officers and because civil deportation proceedings are to INS agents what
criminal trials are to police officers."                 468 U.S. at 1053 (White, J.,
dissenting).    School officials, on the other hand, are not law enforcement
officers.     They do not have an adversarial relationship with students.
"Instead, there is a commonality of interests between teachers and their
pupils.      The    attitude     of   the   typical      teacher    is    one    of    personal
responsibility for the student's welfare as well as for his education."
T.L.O., 469 U.S. at 350 (Powell, J., concurring).                   Moreover, children's
legitimate     expectations      of   privacy      are   somewhat   limited       at    school.
Therefore, while the Fourth Amendment applies to searches by school
officials, its reasonableness standard, when applied to school searches,
"stops short of probable cause."            T.L.O., 469 U.S. at 341.


     In these circumstances, we conclude that there is little need for the
exclusionary rule's likely deterrent effect.              Indeed, we see some risk that
application of the rule would deter educators from undertaking disciplinary
proceedings that are needed to keep the schools safe and to control student
misbehavior.        In any event, any deterrence benefit would not begin to
outweigh the high




                                            -5-
societal costs of imposing the rule.   Therefore, like most district courts
that have published opinions applying Janis and Lopez-Mendoza,1 we conclude
that the exclusionary rule may not be applied to prevent school officials
from disciplining students based upon the fruits of a search conducted on
school grounds.    Accordingly, Lea was not wrongfully expelled, and the
$10,000 damage award must be reversed.2


                                   III.


     In concluding that the search violated Lea's Fourth Amendment rights,
the district court emphasized the fact that Bartel and Malone had no
individualized reason to suspect Lea of carrying a weapon.   In T.L.O., 469
U.S. at 342 n.8, the Supreme Court had left open the issue whether
individualized suspicion is always required for school searches.   However,
after the district court decided this case, the Supreme Court upheld random
drug testing of high school athletes despite the absence of individualized
suspicion in Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386 (1995).   The
Court clarified that individualized suspicion is not always required for
school searches.     It recognized that the drug testing at issue was
inherently intrusive.   (Taking a urine sample and requiring disclosure of
health information is more intrusive than, for example, looking in a purse,
the search at issue in T.L.O.)         But the Court concluded that this
significant privacy invasion was justified by the important government
interest in reducing drug abuse by student athletes.   115 S. Ct. at 2396.




         1
      See James v. Unified Sch. Dist. No. 512, 899 F. Supp. 530,
533-34 (D. Kan. 1995); Morale v. Grigel, 422 F. Supp. 988, 999-1001
(D.N.H. 1976); Ekelund v. Secretary of Commerce, 418 F. Supp. 102,
106 (E.D.N.Y. 1976). Contra, Jones v. Latexo Indep. Sch. Dist.,
499 F. Supp. 223, 238-39 (E.D. Tex. 1980).
     2
      Like the Supreme Court in T.L.O., we do not consider whether
evidence illegally seized by school officials on school grounds is
admissible at a subsequent criminal trial or delinquency
proceeding. See 469 U.S. at 333 n.3.

                                    -6-
        Vernonia impacts this case in one significant way -- it confirms that
the doctrine of qualified immunity bars any award of damages.            The
individual defendants did not violate clearly established law when they
decided to search all the older male students for dangerous weapons
reported to be on the school grounds.    See Anderson v. Creighton, 483 U.S.
635, 639-40 (1987).
        The district court rejected Lea's due process claim and denied him
injunctive relief.    With a damage award now foreclosed by Vernonia and our
decision that there was no wrongful expulsion, the award of an attorney's
fee must also be reversed.       See Farrar v. Hobby, 113 S. Ct. 566, 575
(1992).    That ends the case, except for a difficult issue that has little
remaining practical significance -- whether the district court erred in
declaring that the search violated Lea's Fourth Amendment rights.


        The Fourth Amendment inquiry in school search cases is whether the
search was reasonable in all the circumstances.      The inquiry focuses on
whether the search was justified at its inception, whether its scope was
reasonably related to the circumstances justifying a search, and the extent
of the privacy intrusion.      See T.L.O., 469 U.S. at 341.      In a school
setting, "the relevant question is whether the search is one that a
reasonable guardian and tutor might undertake."      Vernonia, 115 S. Ct. at
2397.     We review the reasonableness issue de novo.   See United States v.
Brown, 51 F.3d 131, 132 (8th Cir. 1995).


        The district court concluded that the broad search for knives and
guns was not justified at its inception because the Carthage School
District was not facing a "serious, on-going, problem with such dangerous
instrumentalities."      In our view, that analysis is inconsistent with
Vernonia.    Principal Bartel had two independent reasons to suspect that one
or more weapons had been brought to school that morning.      Though she had
no basis for suspecting any particular student, this was a risk to student
safety and school




                                     -7-
discipline that no "reasonable guardian and tutor" could ignore.                           Bartel's
response       was   to    issue    a     sweeping,    but    minimally      intrusive     command,
"Children, take off your shoes and socks and empty your pockets."                                  We
conclude that Bartel's decision to undertake this generalized but minimally
intrusive search for dangerous weapons was constitutionally reasonable.
See Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1320-
21 (7th Cir. 1993).


        The district court further concluded that the scope of the search was
not reasonably related to its original purpose because Lea's pockets were
searched after the metal detector had revealed that he did not possess a
gun or knife.        But in a school setting, Fourth Amendment reasonableness
does not turn on "hairsplitting argumentation."                         T.L.O., 469 U.S. at 346
n.12.    If Lea had emptied his own coat pocket, the cigarette package and
match    box    would      have    become    contraband       in    plain    view.    It    is    not
constitutionally significant that teacher Malone emptied the pocket after
Lea put his jacket on the table.                       Moreover, once Bartel and Malone
reasonably decided to quickly search many children's pockets for dangerous
weapons, it is not realistic to require them to abort the search of a
particular      child      who     does    not   appear      to    be   in   possession    of    such
contraband.


        To summarize, while we share the district court's concern over
excessive use of sweeping searches of school children's persons and
belongings, even in a minimally intrusive manner, we conclude that the
search undertaken in this case passes muster under T.L.O. and Vernonia.
The judgment of the district court is reversed and the case is remanded for
entry of judgment in favor of defendants.


        A true copy.


                Attest:


                          CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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