                     REVISED, OCTOBER 5, 2000

                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                           No. 98-31335


DIANE MILLIGAN, Individually and on Behalf of her Minor Son, Eric
  Milligan; WAYNE WALKER, Individually and on Behalf of his Minor
 Son, Logan Walker; JOHN LAURENSON, Individually and on Behalf of
      his Minor Son, Nathan Laurenson; RICARDO S. CRUZ, SR.,
 Individually and on Behalf of his Minor Son, Chance Cruz; DENNIS
 KAHOE, Individually and on Behalf of his Minor Son, Rocky Kahoe,

                           Plaintiffs-Appellees-Cross-Appellants,

                                 v.

  THE CITY OF SLIDELL, through the Slidell Police Department,

                                          Defendant-Cross-Appellee,

    JOHN EMERY, Sergeant, and LOUIS THOMPSON, Reserve Officer

                             Defendants-Appellants-Cross-Appellees



      Appeals from the United States District Court for the
                  Eastern District of Louisiana

                        September 27, 2000


Before REYNALDO G. GARZA, JONES and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

          In this civil rights case, the district court held that

police officers nominally invaded the rights of high school students

by having them called out of class for questioning about a rumored
after-school fight.     We reverse.       Even assuming that the students

had some kind of right to avoid detention at school for disciplinary

questioning, the “seizure” effected here was reasonable because

students’ Fourth Amendment rights are evaluated according to the

“special needs” of the public school environment.               See Vernovia

School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132

L.Ed.2d 564 (1995).

                      FACTS AND PROCEDURAL HISTORY

            On January 26, 1997 a fight occurred involving several of

the plaintiffs, who attended Salmen High, and Louis Thompson’s two

high    school-aged   sons,   who   attended   Slidell   High   in   Slidell,

Louisiana.    Two days later, a Salmen High student named David Gelis

contacted Thompson and informed him that a retaliatory fight,

possibly involving weapons, was to occur at Slidell.            According to

Gelis, he had heard some people were “going to jump” Thompson’s

sons.    Thompson contacted Emery the next morning about the possible

fight, and, after discussing the issue with Salmen’s football coach,

the three men went to Salmen High to defuse the situation.

            Thompson had compiled a list of students, with the help

of his sons and perhaps also Mr. Gelis, who were alleged or known

to have been involved in the previous altercation or were believed

to be enemies of the Thompson boys.         At the high school, Emery and

Thompson requested that Vice Principal Smith call certain students



                                      2
from class for questioning.    Vice Principal Smith did so.      The

officers first met with the coach and several football players, who

confirmed that a fight involving baseball bats was going to occur

later that day at Slidell High.       The officers next met with the

plaintiffs.   The meeting lasted ten to fifteen minutes, as the

officers questioned the students about the fight and warned them

that their parents would be called if a fight should occur and an

investigation connected them to it.    Vice Principal Smith testified

that the officers had no physical contact with the students and that

the students appeared to want to tell their side of the story.   Eric

Milligan, the only plaintiff to testify, asserted that he felt

physically intimidated and that he did not feel free to leave the

meeting, as the assistant principal had called him into her office.

The officers’ intervention succeeded in warding off any show-down.

          Through their parents, the plaintiffs filed suit against

Thompson, Emery and the City of Slidell.     After a bench trial, the

district court dismissed the claim against the city but held that

the two officers had violated the plaintiffs’ Fourth Amendment

rights and were not entitled to qualified immunity.     Although the

plaintiffs had not proven compensatory damages, the court awarded

nominal damages.   That finding deprived them of “prevailing party”

status, and the court accordingly refused to award attorneys’ fees.

Both sides appealed.



                                  3
                                  DISCUSSION

             Qualified immunity shields public officials, like the

officers    here,   from   damages     actions   unless   their   conduct    was

unreasonable in light of clearly established law.                 See Elder v.

Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 1123, 127 L.Ed.2d 344

(1994).     In a qualified immunity case, a court often initially

decides whether the facts establish a violation of a constitutional

right at all.       See Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct.

1692, 1697, 143 L.Ed.2d 818 (1999).         Whether a constitutional right

has been violated is a question of law that this court reviews de

novo.     See United States v. Hernandez-Zuniga, 2000 WL 767381 (5th

Cir. 2000).      If the facts establish a constitutional violation,

courts then consider whether that right was clearly established.

See Wilson, 526 U.S. at 609.

             The district court held that officers Emery and Thompson

violated the students’ clearly established Fourth Amendment rights

by   detaining      them   in    the    Vice-Principal’s       office   without

particularized suspicion that any of them had engaged in or was

about to engage in criminal misconduct.          The district court, unsure

how to characterize what happened, settled on the Terry case1 as the

closest    Fourth   Amendment    analogy    --   hence,   he   concluded,    the

officers conducted an “investigative detention,” which under Terry


     1
          Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

                                        4
requires    reasonable     suspicion   of    past   or   incipient    criminal

activity.      Even   if   this   analysis   were   generally    correct    for

investigative activities of the sort the officers performed -- a

proposition we do not comment on -- it fails in this case because

it neglects the all-important school context.

            Some elementary principles: The Fourth Amendment protects

the “right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and seizures.”

See Terry, 392 U.S. at 8 (citing U.S. Const., amend. IV).                   The

central inquiry under the Fourth Amendment is whether a search or

seizure is reasonable under all the circumstances of a particular

governmental invasion of a person’s personal security.               See Terry,

392 U.S. at 19.        To assess the reasonableness of a search or

seizure, courts balance the governmental interest against                  the

invasion which the search or seizure entails.            See id. at 20 - 21.

            Balancing renders essential a consideration of the context

in which a Fourth Amendment right is asserted.            Because this case

involves the rights of students in a public school, a full bore

Terry analysis is inappropriate.2          Rather, our inquiry is directed

by Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct.

2386, 132 L.Ed.2d 564 (1995), where the Supreme Court considered the


      2
            Terry pertains to investigation of suspected criminal activity. The
officers’ purpose in this case was to deter a fight, secure discipline in the
schools, and thus to avoid criminal sanctions.

                                       5
role of the Fourth Amendment in the school context.                           The Court

indicated that although the Fourth Amendment applies in schools, the

nature of those rights is what is appropriate for children in

school.   See id. at 655 - 56.          The reasonableness inquiry must take

into account the schools’ “custodial and tutelary responsibility for

children.”      See id. at 656.         Furthermore, students in the school

environment have a “lesser expectation of privacy than members of

the population generally.”            Vernonia, 515 U.S. at 657 (quoting New

Jersey v. T.L.O., 469 U.S. 325, 348, 105 S.Ct. 733, 746, 83 L.Ed.2d

720 (1985)).

           Turning to the students’ interests, it is not at all clear

that they have some privacy right not to be summoned to and detained

in a school official’s office for questioning on matters of school

discipline.     The Fourth Amendment does not protect all subjective

expectations of privacy, but only those recognized by society as

legitimate.     The “right” advocated by these students -- to remain

in class unhindered during the school day -- if a right at all --

is surely of less intrinsic importance than the rights not to have

one’s   property    searched      or    to       avoid   random   drug   testing    for

athletics. Yet the Supreme Court held that such invasions may occur

in schools.     See TLO,769 U.S. at347; Veronia, 515 U.S. at 664-65.

Indeed,   any    such   right    of    unhindered        attendance      is   logically

inconsistent     with   the     mandate      of    compulsory     attendance     and   a


                                             6
structured curriculum, and it hardly squares with the schools’

obligation to “inculcate the habits and manners of civility. . . .”

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681, 106 S.Ct.

3159, 3163 (1986).      Out of caution, however, we assume that some

such right exists at a low level.

            Consideration is next given to the nature and immediacy

of the governmental concern as well as the efficacy of the means

used to address it.     In this case, the school sought to protect its

students, to foster self-discipline and to deter possibly violent

misconduct.    These are compelling governmental interests.           And the

immediacy of the concerns is obvious, since the retaliatory fight

was due to happen that day.

            Furthermore, the means the officers chose to address the

potential problem was effective.           They enlisted the aid of Salmen’s

football    coach   after   learning   that     football   players   might   be

involved.     The coach, who was in a position to exert direct

authority and maintain discipline over his players, found out which

players to question. The officers proceeded through school channels

by using the Vice-Principal’s power to summon the plaintiffs (and

others) for interrogation and admonishment.           Nothing was done that

school officials could not have done themselves.              Conversely, no

more was done than necessary to discourage the fight.

            The students assert that the officers’ visit may not have

been the least intrusive way to protect the school’s interests.

                                       7
However,   the   Supreme    Court   has    refused   to   impose   any   least

restrictive means test upon searches under the Fourth Amendment.3

See Vernonia, 515 U.S. at 663.         The district court suggested that

the officers should have just gone over to Slidell High after school

and waited to see if anything happened.              This course of action

hardly seems as efficacious as the one chosen; it might well have

simply prompted a relocation or postponement of the fight.                  Nor

would talking to the parents have availed, for the fight was

scheduled to occur too soon for the parents to intervene.

            From what has been said, it should be clear that the

privacy right asserted does not outweigh the school’s interests.

Students in the school environment have a lesser expectation of

privacy than the general population.          Teachers and administrators

control their movements from the moment they arrive at school; for

example, students cannot simply walk out of a classroom.               Nor can

they walk out of a principal’s or vice-principal’s office in the

middle of any official conference.4        Students at school thus have a


      3
            The district court stated that part of the reason it found a Fourth
Amendment violation was that there were “lot[s] of things they [Emery and
Thompson] could have done [to address the problem] without detaining these
students in the office the way they did.” To the extent that the district court
implied that only the least intrusive method is lawful, it was in error. The
reasonableness of a search or seizure is evaluated on its own merits, not by
engaging in a series of ‘what ifs.’
      4
            In fact, Mr. Milligan, when asked why he had not felt free to leave
the room, responded: “What you mean? The assistant principal calls you in the
office, you can’t just walk out of a meeting.” His statement indicates that his
not feeling free to leave owed more to the custodial role of the school than it
did to the coercive authority of the officers.

                                       8
significantly    lesser   expectation      of   privacy    in   regard   to   the

temporary   “seizure”     of   their   persons    than     does   the    general

population.     That lesser expectation of privacy was in full force

here, where the Vice-Principal had called the students into her

office and attended the entire meeting.

            Considering the weakness of the claimed privacy right and

the significance of the governmental concern, the officers’ actions

were reasonable and therefore constitutional.             Because the district

court erred in finding a constitutional violation, we reverse the

district court and render judgment for the defendants.

            REVERSED and RENDERED.




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