On March 12, 2019, the Eleventh Circuit Court of Appeals decided Jackson v. McCurry[i], in which the court examined whether school officials were entitled to qualified immunity for a warrantless search of a student’s cellphone as well as prohibiting the student’s father from various school functions. A summary of the relevant facts of Jackson, taken directly from the case, is as follows:
The events began when a student, E.D.J., was accused of making fun of another student, M, for not making the volleyball team. After Josh Kemp, an administrative assistant to Assistant Principal Bo Oates and Principal Sandi Veliz, investigated the allegation, Oates decided to search E.D.J.’s cellphone to see if she had sent texts about M. After Oates did so, he returned the cellphone and concluded that E.D.J. had not violated any school rule. In response to the search, E.D.J.’s father, Richard Jackson, confronted several school officials by phone and in person. As a result of these interactions, Superintendent David McCurry decided that Jackson was a threat to the safety of the school’s employees and students and prohibited Jackson from appearing on school premises except to bring E.D.J. to and from school and to attend E.D.J.’s volleyball games. After Jackson mentioned the possibility of litigation, McCurry also allegedly told Jackson he was not permitted to attend a public meeting of the local school board to discuss his grievances. In spite of what McCurry’s letter said, when Jackson attempted to attend one of E.D.J.’s volleyball games, he was removed from school premises by Veliz, Kemp, and Ryan Smith, the school’s resource officer.[ii]
Jackson and his wife filed suit against the school officials and alleged that their daughter’s Fourth Amendment rights were violated by the warrantless search of the cell phone, Jackson’s First Amendment rights were violated by his prohibition of attending certain functions and speaking teachers, and Jackson’s Fourth Amendment rights were violated when he was removed from his daughter’s volleyball game. The district court granted qualified immunity for all school official defendant’s and dismissed the suit. Jackson appealed to the Eleventh Circuit Court of Appeals. This article will only address the first two issues:
(1) Did the “in school” search of Jackson’s daughter’s cell phone, conducted by a school official, violate a clearly established Fourth Amendment right; and
(2) Did the school superintendent violate a clearly established First Amendment right when he prohibited Jackson from coming onto school premises?
At the outset, it is important to note that when a school official is sued for constitutional violations, he or she is entitled to qualified immunity if the official was engaged in a discretionary function. A discretionary function is one that requires an official to make a decision from a variety of options, such as whether to search a phone, whether to prohibit a person from entering school property, and whether to remove someone from school property. In order to defeat qualified immunity, a plaintiff must show (1) the officer violated a federally protected right, and (2) the right was clearly established such that a reasonable officer would have known the conduct was unlawful. The court can answer either part of the test first, but to defeat immunity, the plaintiff must succeed on both parts.
Whether the law is “clearly established,” the second prong of the qualified immunity analysis, can be proven in three ways: (1) by showing factually similar case law from the Supreme Court, Eleventh Circuit, or highest court of the state in which the incident occurred (here, Georgia), (2) by pointing to a broader, established legal principal that clearly controls the incident, or (3) by showing the wrongfulness of the official conduct obviously violates the constitution.
With qualified immunity explained, the court of appeals set out to answer each issue, choosing to first analyze the second prong of the qualified immunity analysis for each issue.
Issue One: Did the “in school” search of Jackson’s daughter’s cell phone, conducted by a school official, violate a clearly established Fourth Amendment right?
The court of appeals first examined the law related to searches of students in school. The court stated
In [New Jersey v.] T.L.O., the Supreme Court established general parameters for searches of school students by public-school officials. The Court held that searches of the person or property of a student by public-school officials are governed by “a Fourth Amendment standard of reasonableness that stops short of probable cause.” 469 U.S. at 341. Under this standard, determining whether a search conducted by school officials was reasonable involves “a twofold inquiry” that considers “first . . . ‘whether the . . . action was justified at its inception,'” id. (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)), and “second . . . whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.'” Id. (citation and internal quotation marks omitted). The Court explained that “[u]nder ordinary circumstances, a search of a student by a teacher or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” Id. at 341-42 (footnote omitted). And the Court said that “[s]uch a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id. at 342.[iii] [emphasis added]
The plaintiff’s argued that Riley v. California[iv], in which the Supreme Court held that the search incident to arrest exception did not apply to cell phones because they are capable of holding vast amounts of personal data, clearly established that the defendant school officials could not search the phone without a warrant. However, the Supreme Court held that a search warrant is generally required to search a cell phone.[v] Specifically, the court stated
Riley does not alter our conclusion. In Riley, the Supreme Court held that “a warrant is generally required before” police officers may search “the information on a cell phone,” “even when a cell phone is seized incident to arrest,” 573 U.S. at 401, but it did not attempt to spell out how its holding could be transposed to the setting of a public school. True, because the reasoning of Riley treats cellphone searches as especially intrusive in comparison to searches incident to arrest of personal property, see id. at 393-98, a search of a student’s cellphone might require a more compelling justification than that required to search a student’s other personal effects under T.L.O. Cf. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 374 (2009) (holding that a strip search of a student by school officials is “categorically distinct” and “requir[es] distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings”). But that conclusion hardly “follow[s] immediately” from T.L.O. and Riley “and thus was not clearly established by” the holdings of those decisions.[vi] [emphasis added]
The Eleventh Circuit also noted that there was no case law from the Supreme Court, Eleventh Circuit, or Supreme Court of Georgia that placed the search of Jackson’s daughter’s phone beyond debate as unreasonable under the Fourth Amendment. The plaintiff’s attempted to cite district court and out-of-circuit decisions but the Eleventh Circuit stated that those cases cannot “clearly establish” law in this circuit.
Therefore, the Eleventh Circuit affirmed the grant of qualified immunity regarding this issue.
Issue Two: Did the school superintendent violate a clearly established First Amendment right when he prohibited Jackson from coming onto school premises?
Jackson argued that the superintendent’s letter prohibiting him from coming onto school property except to drop his daughter off at school and to attend volleyball games also prohibited him from all contact with teachers, coaches, and students, even off of school premises.
After a review of the letter, the Eleventh Circuit observed that any reasonable person would understand the letter to refer to contact only on school premises. The court then stated
The restriction on Jackson’s on-campus communication with school officials and students did not amount to a violation of clearly established law. Jackson does not point to a single decision of this Court, the Supreme Court of the United States, or the Georgia Supreme Court that articulates even the general framework for assessing claims that a school official impermissibly restricted a parent’s rights under the First Amendment on school property. And the few decisions of our sister circuits reviewing claims similar to Jackson’s have uniformly concluded that there is no clearly established right for parents to access school property to exercise their rights under the First Amendment. See Johnson v. Perry, 859 F.3d 156, 175 (2d Cir. 2017) (holding that school official was entitled to qualified immunity for “bann[ing] [the plaintiff] from [school] property for purposes other than attendance at sporting events” because “we cannot conclude that a parent has a general and unlimited First Amendment right of access to school property”); Lovern v. Edwards, 190 F.3d 648, 656 (4th Cir. 1999) (holding that there was no federal jurisdiction over a claim predicated on the exclusion of a parent from school premises because the claim was “plainly insubstantial and entirely frivolous” and “a monument to what ought not to be in a federal court” (internal quotation marks omitted).[vii] [emphasis added]
As such, the court of appeals affirmed the grant of qualified immunity on this issue.
[i] No. 18-10231 (1th Cir. Decided March 12, 2019 Unpublished)
[ii] Id. at 2-3
[iii] Id. at 12-13
[iv] 573 U.S. 373 (2014)
[v] Jackson at 15
[vii] Id. at 19-20