                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3268
                                    ___________

Jane Doe, by her parents and next        *
friends Mr. and Mrs. John Doe,           *
individually and on behalf of a plaintiff*
class consisting of all secondary public *
school students who have started the     *
seventh grade in the Little Rock School  *
District as of the 1999-2000 school      * Appeal from the United States
year,                                    * District Court for the Eastern
                                         * District of Arkansas.
             Appellant,                  *
                                         *
      v.                                 *
                                         *
Little Rock School District,             *
                                         *
             Appellee.                   *
                                    ___________

                               Submitted: May 13, 2004
                                  Filed: August 18, 2004
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       This case requires us to decide whether the practice of the Little Rock School
District (LRSD) that subjects secondary public school students to random,
suspicionless searches of their persons and belongings by school officials is
unconstitutional. We conclude that such searches violate the students' fourth
amendment rights because they unreasonably invade their legitimate expectations of
privacy.

       Jane Doe is a secondary school student in the LRSD. One day during the
school year, all of the students in Ms. Doe's classroom were ordered to leave the room
after removing everything from their pockets and placing all of their belongings,
including their backpacks and purses, on the desks in front of them. While the
students were in the hall outside their classroom, school personnel searched the items
that the students had left behind, including Ms. Doe's purse, and they discovered
marijuana in a container in her purse. The parties have stipulated that LRSD has a
practice of regularly conducting searches of randomly selected classrooms in this
manner.

       In her amended complaint, Ms. Doe, individually and on behalf of a class of
"all secondary public school students who have started seventh grade in the [LRSD]
as of the 1999-2000 school year," claimed that this method of conducting searches
is unconstitutional, and sought declaratory and injunctive relief pursuant to 42 U.S.C.
§ 1983. After certifying the case as a class action, the district court entered judgment
for the LRSD and dismissed the complaint with prejudice. We reverse.

                                            I.
       The fourth amendment provides that "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated." U.S. Const. amend. IV. The fourteenth amendment extends
this constitutional guarantee to searches by state officers, including public school
officials. See New Jersey v. T.L.O., 469 U.S. 325, 334-37 (1985). "In carrying out
searches ... school officials act as representatives of the State, not merely as
surrogates for the parents, and they cannot claim the parents' immunity from the
strictures of the Fourth Amendment." Id. at 336-37. "Reasonableness" is "the
touchstone of the constitutionality of a governmental search," Board of Educ. of

                                          -2-
Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 828 (2002),
and the relevant constitutional question in school search cases is "whether the search
was reasonable in all the circumstances," Thompson v. Carthage Sch. Dist., 87 F.3d
979, 982 (8th Cir. 1996).

       In determining whether a particular type of school search is constitutionally
reasonable, we engage in a fact-specific "balancing" inquiry, under which the
magnitude of the government's need to conduct the search at issue is weighed against
the nature of the invasion that the search entails. "On one side of the balance are
arrayed the individual's legitimate expectations of privacy and personal security; on
the other, the government's need for effective methods to deal with breaches of public
order." T.L.O., 469 U.S. at 337.

       The Supreme Court has developed a framework designed to make the required
balancing of privacy and security interests somewhat less amorphous than it might
otherwise be. A reviewing court is to consider first the "scope of the legitimate
expectation of privacy at issue," then the "character of the intrusion that is
complained of," and finally the "nature and immediacy of the governmental concern
at issue" and the efficacy of the means employed for dealing with it. See Vernonia
Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-66 (1995). The district court addressed
each of these considerations in turn, and decided that they all supported the
conclusion that the search practice involved in this case was reasonable. In particular,
the district court stated in its order that LRSD students have only a "limited privacy
interest," and that the search practice is "minimally intrusive, is preceded by adequate
notice, is motivated by a significant policy concern, and is directed towards an
immediate, legitimate need." Given these determinations, the district court held that
"the search policy" was constitutional because it "reasonably serves the school
district's important interest in detecting and preventing drug use among its students."
In reaching this conclusion, the district court relied heavily on two recent cases in
which the Supreme Court upheld school district policies that allowed only those

                                          -3-
students who agree to be subject to random drug testing to participate in school
athletics or other competitive extracurricular activities. See Vernonia, 515 U.S. at
648, 664-65; Earls, 536 U.S. at 825.

       After reviewing the reasonableness issue de novo, we conclude that the district
court underestimated the extent to which the LRSD's search practice intrudes upon
its students' legitimate privacy interests, and overestimated the substantiality of the
LRSD's factual showing that such an intrusion was necessary to address a significant
difficulty in the schools. Students presumptively have a legitimate, though limited,
expectation of privacy in the personal belongings that they bring into public schools.
Because subjecting students to full-scale, suspicionless searches eliminates virtually
all of their privacy in their belongings, and there is no evidence in the record of
special circumstances that would justify so considerable an intrusion, we hold that the
search practice is unconstitutional.

                                          II.
       We ask first whether secondary public school students in the LRSD retain any
legitimate expectations of privacy. The district court, quoting Earls, 536 U.S. at 830,
noted that a " 'student's privacy interest is limited in a public school environment
where the State is responsible for maintaining discipline, health, and safety.' "
Students in public schools do indeed have lesser expectations of privacy than people
generally have in public situations, due in large part to the government's
responsibilities "as guardian and tutor of children entrusted to its care." Vernonia,
515 U.S. at 665 (footnote omitted). Public school students' privacy interests,
however, are not nonexistent. We think it is clear that schoolchildren are entitled to
expect some degree of privacy in the personal items that they bring to school.

      As a general matter, "the Fourth Amendment provides protection to the owner
of every container that conceals its contents from plain view," United States v. Ross,
456 U.S. 798, 822-23 (1982), and public school students thus retain a protection

                                         -4-
against "unreasonable" searches of their backpacks and purses by school officials.
Schoolchildren have a legitimate need to bring items of personal property into their
schools, which are their "homes away from home" where they are required by
compulsory attendance laws to spend a substantial portion of their waking hours.
They "at a minimum must bring to school not only the supplies needed for their
studies, but also keys, money, and the necessaries of personal hygiene and grooming,"
and they may also carry with them "such nondisruptive yet highly personal items as
photographs, letters, and diaries." T.L.O., 469 U.S. at 339. Unlike prisoners, who
"retain no legitimate expectations of privacy in their cells" after having been
convicted and incarcerated, see id. at 338, public school students have traditionally
been treated as presumptively responsible persons entitled to some modicum of
privacy in their personal belongings, at least to the extent that recognition of such
privacy interests does not unduly burden the maintenance of security and order in
schools.

        The Supreme Court has observed that there is a tension between the types of
privacy "interests protected by the Fourth Amendment and the interest of the States
in providing a safe environment conducive to education in the public schools," id. at
332 n.2, and has concluded that the fourth amendment allows school officials some
flexibility in resolving this tension. But it has characterized as "severely flawed" a
state's argument that "because of the pervasive supervision to which children in the
schools are necessarily subject, a child has virtually no legitimate expectation of
privacy in articles of personal property 'unnecessarily' carried into a school." Id. at
338. While the Court has acknowledged that students' privacy rights are limited due
to the "difficulty of maintaining discipline in the public schools," and that "drug use
and violent crime in the schools have become major social problems," it has stated
that "the situation is not so dire that students in the schools may claim no legitimate
expectations of privacy." Id. at 338-39.




                                         -5-
       It is true that the legitimate expectation of privacy retained by members of
certain sub-populations of a public school's student body falls below the already
limited baseline level of privacy afforded to public school students generally. For
instance, the Supreme Court has analogized students who voluntarily participate in
school athletics or other competitive extracurricular activities to adults who choose
to participate in a "closely regulated industry," in that both groups voluntarily subject
themselves to "intrusions upon normal rights and privileges, including privacy."
Vernonia, 515 U.S. at 656-57 (internal quotations omitted); Earls, 536 U.S. at 831-
32. Sports and other competitive extracurricular activities usually have separate
systems of rules that do not apply to the student body as a whole, and often involve
such requirements as mandatory physicals, frequent communal undress, and traveling
and lodging in close confines. By consciously choosing to "go out for the team" or
other competitive extracurricular endeavor, such students agree to waive certain
privacy expectations that they would otherwise have as students in exchange for the
privilege of participating in the activity. But the search regime at issue here is
imposed upon the entire student body, so the LRSD cannot reasonably claim that
those subject to search have made a voluntary tradeoff of some of their privacy
interests in exchange for a benefit or privilege.

       As the district court noted, a passage that was added to the LRSD's current
Secondary Student Rights and Responsibilities Handbook, which is distributed to
students at the beginning of the school year, provides that "[b]ook bags, backpacks,
purses and similar containers are permitted on school property as a convenience for
students," and that "[i]f brought onto school property, such containers and their
contents are at all times subject to random and periodic inspections by school
officials." But we do not think that this handbook passage has effected a waiver by
LRSD students of any expectations of privacy that they would otherwise have. The
students are required by state law to attend school, and have not entered into a
contract that incorporates the handbook or voluntarily assented to be bound by its
terms. The lack of mutual consent to the student handbook makes it fundamentally

                                          -6-
different from an employee handbook, which may create an enforceable contract
between an employer and employee under traditional contract principles. The LRSD
may not deprive its students of privacy expectations protected by the fourth
amendment simply by announcing that the expectations will no longer be honored.

                                          III.
       Given that public school students retain some legitimate expectation of privacy
in their persons and belongings, we are bound to inquire into the character of the
intrusion that the LRSD's search practice imposes. We respectfully disagree with the
district court's determination that the search practices of the LRSD are "minimally
intrusive."

       Unlike the suspicionless searches of participants in school sports and other
competitive extracurricular activities that the Supreme Court approved in Vernonia
and Earls, in which "the privacy interests compromised by the process" of the
searches were deemed "negligible," Vernonia, 515 U.S. at 658, see Earls, 536 U.S.
at 832-33, the type of search at issue here invades students' privacy interests in a
major way. "A search of a child's person or of a closed purse or other bag carried on
her person, no less than a similar search carried out on an adult, is undoubtedly a
severe violation of subjective expectations of privacy." T.L.O., 469 U.S. at 337-38
(footnote omitted). Students often carry items of a personal or private nature in their
pockets and bags, and many students (whether or not they are carrying contraband)
must surely feel uncomfortable or embarrassed when officials decide to rifle through
their personal belongings.

       Whatever privacy interests the LRSD students have in the personal belongings
that they bring to school are wholly obliterated by the search practice at issue here,
because all such belongings are subject to being searched at any time without notice,
individualized suspicion, or any apparent limit to the extensiveness of the search.
Full-scale searches that involve people rummaging through personal belongings

                                         -7-
concealed within a container are manifestly more intrusive than searches effected by
using metal detectors or dogs. Indeed, dogs and magnetometers are often employed
in conducting constitutionally reasonable large-scale "administrative" searches
precisely because they are minimally intrusive, and provide an effective means for
adducing the requisite degree of individualized suspicion to conduct further, more
intrusive searches. The type of search that the LRSD has decided to employ, in
contrast, is highly intrusive, and we are not aware of any cases indicating that such
searches in schools pass constitutional muster absent individualized suspicion,
consent or waiver of privacy interests by those searched, or extenuating
circumstances that pose a grave security threat.

       Another relevant consideration is the purpose for which the fruits of the
searches at issue are used. In Vernonia and Earls, which involved drug testing of
voluntary participants in competitive extracurricular activities, the results of the
searches at issue were never disclosed to law enforcement authorities, and the most
serious form of discipline that could possibly result from failing the tests was
exclusion from the relevant extracurricular activities. See Earls, 536 U.S. at 833;
Vernonia, 515 U.S. at 651. The Court in Earls, 536 U.S. at 834, found that "the
limited uses to which the test results are put" contributed significantly to a conclusion
that the invasion of the students' privacy was insignificant. In sharp contrast to these
cases, the fruits of the searches at issue here are apparently regularly turned over to
law enforcement officials and are used in criminal proceedings against students
whose contraband is discovered. In fact, Ms. Doe was convicted of a misdemeanor
as a result of the search of her purse. Because the LRSD's searches can lead directly
to the imposition of punitive criminal sanctions, the character of the intrusions is
qualitatively more severe than that in Vernonia and Earls. Rather than acting in loco
parentis, with the goal of promoting the students' welfare, the government officials
conducting the searches are in large part playing a law enforcement role with the goal
of ferreting out crime and collecting evidence to be used in prosecuting students.



                                          -8-
                                          IV.
        We consider finally the nature and immediacy of the governmental concerns
that gave rise to the searches at issue here. A sliding scale is used in evaluating the
reasonableness of a search, that is, the government is entitled to inflict more serious
intrusions upon legitimate expectations of privacy as the governmental interest served
by the intrusions becomes more compelling. A governmental interest need not meet
some "fixed, minimum quantum of governmental concern," but merely has to be
"important enough to justify the particular search at hand," considering the degree of
its intrusiveness. Vernonia, 515 U.S. at 661. The district court determined that the
LRSD's search practice is "directed towards an immediate, legitimate need." It failed,
however, to point to any evidence indicating that the LRSD has experienced any
significant and immediate difficulties sufficient to give rise to a special need for such
an unprecedented practice.

       We conclude that the LRSD has in fact failed to demonstrate the existence of
a need sufficient to justify the substantial intrusions upon the students' privacy
interests that the search practice entails. While the LRSD has expressed some
generalized concerns about the existence of weapons and drugs in its schools, it
conceded at oral argument that there is nothing in the record regarding the magnitude
of any problems with weapons or drugs that it has actually experienced. All schools
surely have an interest in minimizing the harm that the existence of weapons and
controlled substances might visit upon a student population, but public schools have
never been entitled to conduct random, full-scale searches of students' personal
belongings because of a mere apprehension.

       In both Vernonia and Earls, the principal cases relied on by the LRSD, the
school districts offered particularized evidence to "shore up" their assertions of a
special need to institute administrative search programs for extracurricular-activity
participants. See Earls, 536 U.S. at 835. In Vernonia, the record demonstrated that
"a large segment of the student body, particularly those involved in interscholastic

                                          -9-
athletics, was in a state of rebellion," "disciplinary actions had reached 'epidemic
proportions,' " and "the rebellion was being fueled by alcohol and drug abuse."
Vernonia, 515 U.S. at 662-63. The Court emphasized, moreover, that the school
district had particularly compelling safety concerns because its "athletes were the
leaders of the drug culture" and "drug use increases the risk of sports-related injury."
Id. at 649. Similarly, in Earls, the school district had "presented specific evidence of
drug use" at its schools, leading to the district court's finding that the school district
was "faced with a 'drug problem' when it adopted the policy." Earls, 536 U.S. at 834-
35.

       We have upheld a blanket school search somewhat like the one at issue here
when school officials had received specific information giving them reasonable
grounds to believe that the students' safety was in jeopardy. In Thompson, 87 F.3d
at 980, 982-83, we determined that a single "generalized but minimally intrusive
search" of all male students in the sixth through twelfth grades for knives and guns
was "constitutionally reasonable" because "fresh cuts" on the seats of a school bus
and student reports that there was a gun at the school that morning provided
particularized evidence that there were dangerous weapons present on school
grounds. In Thompson, as in Earls and Vernonia, random, suspicionless searches by
school officials were deemed reasonable only after a specific showing was made that
not engaging in the searches would have jeopardized some important governmental
interest. No such showing has been made here.

                                            V.
         While the line separating reasonable and unreasonable school searches is
sometimes indistinct, we think it plain enough that the LRSD's search practice crosses
it. In light of the government's legitimate interest in maintaining discipline and safety
in the public schools, the privacy that students in those schools are reasonably entitled
to expect is limited. The LRSD's search practice, however, effectively reduces these
expectations to nothing, and the record contains no evidence of unique circumstances

                                          -10-
that would justify significant intrusions. The mere assertion that there are substantial
problems associated with drugs and weapons in its schools does not give the LRSD
carte blanche to inflict highly intrusive, random searches upon its general student
body. We therefore reverse the judgment of the district court, and we remand for
entry of a judgment not inconsistent with this opinion.

BEAM, Circuit Judge, concurring and dissenting.

       In this case, Jane Doe asserts an individual claim plus an additional claim as
the class representative for "all secondary public school students who have started the
seventh grade in the Little Rock School District (LRSD) as of the 1999-2000 school
year." I concur in the result reached by the court in Doe's individual claim but dissent
from the court's conclusions in the class claim. More specifically, I disagree with the
court's ruling, which enjoins LRSD from conducting "suspicionless searches of
[students'] persons and belongings" since "such searches violate the students' fourth
amendment rights because they unreasonably invade their legitimate expectations of
privacy." Ante at 1-2. I respectfully suggest that neither the facts stipulated by the
parties nor applicable precedent support this conclusion.

      At the outset, I question the certification of a class in this matter,
notwithstanding the failure of LRSD to object. Initially, Doe asserted a claim
contending that the LRSD policy was unconstitutional on its face and as applied to
her. Upon motion of LRSD, the facial claim was dismissed and as noted in the first
footnote of Doe's opening brief, "[t]he constitutionality of the Policy, on its face, is
not an issue in this appeal."

      In an amended complaint, Doe asserted the class claim, and argued that the
action was "maintainable under either Rule 23(b)(2) or 23(b)(3), . . . [but] would be
best pursued under Rule 23(b)(2)." LRSD did not object, in essence permitting the



                                         -11-
reassertion of the previously dismissed facial claim. As a result, the validity of the
class was never addressed by the trial court.

       Many students at LRSD (and their parents) may and likely do support the
implementation of the LRSD policy for personal security reasons. Since each of them
is entitled, for whatever reason, to waive his or her Fourth Amendment rights, Rule
23(b) (either (2) or (3)) cannot be invoked in this case because Rule 23(a)(4) has not
been fulfilled. Doe simply cannot "fairly and adequately protect the interests" of
those members of the class who would not assert their rights. Fed. R. Civ. P.
23(a)(4); see, e.g., Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 485-87
(5th Cir. 1982) (addressing appropriate ways of dealing with intraclass antagonism).

       But even if the interests of antagonistic class members were properly
represented by Doe (or otherwise accounted for), the class claim fails for an even
more important reason: Fourth Amendment rights are personal and may not be
asserted vicariously. United States v. Monie, 907 F.2d 793, 794 (8th Cir. 1990)
(citing United States v. Nabors, 761 F.2d 465, 468 (8th Cir. 1985)). And the
existence of an expectation of privacy has a subjective facet. Oliver v. United States,
466 U.S. 170, 177-78 (1984); United States v. Mendoza, 281 F.3d 712, 715 (8th Cir.),
cert. denied 537 U.S. 1004 (2002).1 So, given the nature of these rights, there needs


      1
        Unlike the court, I believe the student handbook affects this subjective facet
of the expectation of privacy. While I generally agree that the government cannot
"deprive its [citizens] of privacy expectations protected by the fourth amendment
simply by announcing that the expectations will no longer be honored," ante at 7, I
do believe that an entity charged with "custodial and tutelary responsibilities," Bd.
of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 830 (2002) (quoting
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995)), can affect its subjects'
expectations of privacy. As explained below, in the case of Doe individually,
exceeding those responsibilities impacts the analysis and could give rise to a
constitutional violation.
       For this reason, I also do not believe contractual notions of waiver are

                                         -12-
to be a determination that each member of the class has a legitimate expectation of
privacy based upon the facts stipulated. United States v. Gomez, 16 F.3d 254, 256
(8th Cir. 1994); United States v. Macklin, 902 F.2d 1320, 1330 (8th Cir. 1990). This
did not occur, nor could it have occurred given the evidence available. Thus, the
district court's dismissal of the purported class claim was correct.

       I agree with almost every aspect of the court's discussion of the law concerning
diminished expectations of privacy enjoyed by students in connection with secondary
school search policies. My quibble with the court involves the evidence presented
and how the court evaluates it under established precedent. In my view, the facts
stipulated make Doe's case extremely close, but in no way establish a class-wide
violation.

      The court correctly notes that a student's expectation of privacy does not
disappear within the framework of school searches. Vernonia School District 47J v.
Acton, 515 U.S. 646 (1995), Board of Education of Independent School District No.
92 v. Earls, 536 U.S. 822 (2002), and this circuit's later interpretations of these
rulings confirm this notion. But those same cases make any expectation of privacy
almost indiscernible under the facts of this case.

       In my view, Vernonia and Earls appreciate the limited expectation of privacy,
but allow a school to search if the search is not too intrusive, if the school's concerns
are immediate, and if the means employed to serve the school's concerns serve that


applicable in the school setting. Rather, the handbook in a public school has a notice
function to which voluntary participation in, for example, extra-curricular activities
is irrelevant. Thus, I don't think the fact that students are subject to compulsory
education really matters because "mutual consent" (sometimes evident on the
student's part by his voluntary participation) is unnecessary. And even if contractual
notions of waiver were applicable, why, given the handbook's warning, does the
student's voluntary use of a portable container not constitute a waiver?

                                          -13-
immediate concern. Obviously, this test is vague. After all, it is a balance with which
we are dealing—an earnest effort to delineate the notion of reasonableness in the
context of government action. Thus, a useful benchmark is prior cases that have
applied this test.

       It seems to me that the "nature of the intrusion" in this case was noticeably less
intrusive than the extraction and testing of body fluids discussed in Earls and
Vernonia and tends to support an affirmance of the district court. But it is the
immediacy of the school's concerns that I believe is misstated here. I agree with
Judge Bowman's opinion in Miller v. Wilkes, 172 F.3d 574 (8th Cir. 1999) (now
vacated because of Miller's exodus from the subject school system). Judge Bowman,
acknowledging Vernonia, states, "Drug and alcohol abuse in public schools is a
serious social problem today in every part of the country. (Indeed, to the extent any
party thinks it necessary to do so, we take judicial notice of that fact. See Fed. R.
Evid. 201 (generally known fact).)" The same is true, I submit, with the dangers of
weapons that may pose threats of bodily harm to members of the student body. And,
in this case, the stipulated facts address that specific problem.

      13.    LRSD believes that the ability to randomly search students [sic]
             book bags, backpacks, purses and similar containers is necessary
             to discourage, and hopefully prevent, students from bringing
             weapons and drugs into LRSD's secondary schools.

      14.    Since implementation of its search policy, LRSD has discovered
             and disciplined student [sic] for bringing weapons to school as
             small as razor blades. There have also been incidents in which
             students have attempted to use razor blades as weapons.

Doe v. Little Rock Sch. Dist., No. LR-C-99-386, Joint Stipulation of Facts (E.D. Ark.
July 17, 2000). If the search was justified because of the school's weaponry concerns,
but merely incidentally detected drugs, there would be no Fourth Amendment issue.


                                          -14-
Accordingly, I believe that LRSD has amply demonstrated an immediate concern that
justifies the intrusion upon each class member's privacy interests. And I believe the
random searches serve that concern by deterring possession.

       Finally, although a close question on the stipulated facts and the evidence the
district court was entitled to consider through judicial notice, I agree with the court's
analysis of Doe's individual claim. The distinguishing feature to me is the police
involvement in the fruits of Doe's search. I do not see any evidence in the record
showing that other class members suffered this sanction or that the school, as a matter
of practice or policy, always turns the fruits over to police, although the policy allows
them to do so.2 In my view, this has a profound impact on the way in which we
should view this case. Although I don't believe this fact takes the case out of the
Vernonia and Earls test for reasonableness—i.e., it does not make a warrant or
probable cause necessary in a situation such as this, Cason v. Cook, 810 F.2d 188,
192 (8th Cir. 1987)—I do believe it affects the bottom-line reasonableness inquiry.
See id. at 193.

       As noted by the court, in Vernonia and Earls the results of the searches at issue
were never disclosed to law enforcement authorities. Nor were they disclosed in
Miller. 172 F.3d at 579-80. Here they were, and a criminal prosecution ensued. By
turning the fruits of its search over to police, the school reduced the extent to which
it was acting under its "'custodial and tutelary responsibility'" Earls, 536 U.S. at 830
(quoting Vernonia, 515 U.S. at 656), and instead, brought it much closer to acting in
the investigatory role for which the probable-cause standard is intended. Id. at 828.
In other words, its "special needs," Vernonia, 515 U.S. at 653, became ordinary.

      This was no small act. A school board's members are quite sensitive to the
objections of its electorate. And that electorate, given the focused responsibilities of


      2
       Again, the constitutionality of the policy as written is not at issue here.

                                          -15-
the school board, is particularly observant of how the school treats students. Law
enforcement, though a government actor that is subject to political pressure, is subject
to the will of a different electorate. That electorate may be unversed in the problems
of LRSD or concerned with the numerous other problems with which its elected
officials (e.g., sheriffs, chiefs of police, or county attorneys) must deal. Thus,
political pressure is less likely to protect students from unreasonable searches through
its impact on law enforcement, than it is through its impact on school governance.
LRSD, by calling upon this other government actor, diminished the extent to which
we could rely on political processes to keep the government in check and, thus,
introduced the need for a particular level of constitutional limitation.

       The diminished expectation of privacy was also not so diminished. It is one
thing for a student to expect, and society to allow, a search that remains within the
school walls. It is quite another to expect tolerance when those searches invoke the
criminal justice system.3

       Ironically, calling upon the police after random searches probably heightens
the extent to which the searches serve a school's immediate concern with deterrence
and thereby may make other students safer. But it also brings into the picture notions
of detection and criminal punishment—not-so-peculiar facets of police work—that
make the student's shepherd much more like the criminal's.

       On balance, I conclude that the school district's search was unreasonable as to
Doe. Thus, the declaratory judgment and injunction should issue on Doe's behalf.
If, however, LRSD conducts its searches without individualized suspicion and
refrains from sharing the fruits thereof with the police, I believe its actions are fully
constitutional. The class has shown no more than that here. In sum, I concur in the


      3
      Relatedly, subjecting an individual to criminal sanction is an intrusive
measure, though perhaps this does not make the search itself any more intrusive.

                                          -16-
court's reversal regarding Doe's individual claim but would affirm the district court
on the class claim.
                        ______________________________




                                        -17-
