Kuehn v. Renton School District No. 403

694 P.2d 1078, 103 Wash. 2d 594

• Court: Washington Supreme Court
• Decided: January 11, 1985
• Docket: 49873-3
• Status: Published

Opinions

Williams, C.J.

The validity of searches of schoolchildren by school officials is judged by the reasonable belief standard. The reasonable belief standard requires that there be a reasonable belief on the part of the searching school official that the individual student searched possesses a prohibited item. When school officials search large groups of students solely for the purpose of deterring disruptive conduct and without any suspicion of each individual searched, the search does not meet the reasonable belief standard. Because the search at issue here was conducted without individualized suspicion the student's rights under the Fourth Amendment were violated. We therefore reverse the trial court's determination of this issue.

Hazen High School, operated by Renton School District 403, offered, as an accredited, graded course, the Hazen High School Wind Ensemble. In addition to required class participation, the Ensemble each year visited different locations to perform concerts. The concert trips were not mandatory; and if students could not afford to participate, their grades were unaffected. Participation required signed parent permission slips.

Adam Kuehn was a member of the Ensemble. In 1982, his senior year at Hazen High School, the Ensemble planned a concert trip to Vancouver, B.C. As a condition of participation, each student going on the trip was to be subjected to a predeparture luggage search by parent chaperons. The decision to search was inspired by an incident 2 years earlier on the Ensemble's trip to Astoria, Oregon, when two students were caught with liquor in their hotel rooms. The search requirement was implemented for the 1981 Ensemble trip, and again for the 1982 trip. The school's music director, the student band council, the parent booster club, and the school administration were united in support of the policy.

Adam Kuehn objected to the 1982 luggage search as did his parents. Despite negotiations, the school refused to abandon the policy or to exempt Adam. The school principal issued a letter stating that the luggage check was a condition of participation, and that students had the option of not participating. The Kuehns sought a temporary restraining order just prior to departure, but the order was denied. Adam arrived at the luggage check with his suitcase locked and a note from his mother stating that she had inspected his luggage, that it contained nothing illegal, and that Adam wanted no one but customs officials to search his luggage. Adam was prohibited from going on the trip.

The plaintiffs then filed an amended complaint alleging a violation of rights under 42 U.S.C. § 1983. Specifically, they contend that the search violated the fourth amendment to the United States Constitution and article 1, section 7 of the Washington State Constitution. They further allege emotional damages. The trial court found that the plaintiffs' case was moot and not of public interest or constitutional significance. Nonetheless, the court held that the search was reasonable, and that Adam had only a minimal expectation of privacy because the luggage might have been searched at the border and there was advance notice. Direct review was granted by this court pursuant to RAP 4.2. We reverse.

I

The District argues and the trial court held the 42 U.S.C. § 1983 action moot since Adam never submitted to the search, declaratory relief was impossible to grant, and there was no showing at trial that the search would be repeated. We disagree.

"A case is moot if a court can no longer provide effective relief", In re Cross, 99 Wn.2d 373, 376-77, 662 P.2d 828 (1983), and the issues it presents are "purely academic". State v. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983). Although declaratory relief may be impossible to grant due to an intervening occurrence, the existence of a monetary dispute arising out of a declaratory action will prevent the action from becoming moot. McGary v. Westlake Investors, 99 Wn.2d 280, 284, 661 P.2d 971 (1983).

While plaintiffs cannot be granted the declaratory relief they sought 2 years ago to enjoin the allegedly unconstitutional search requirement, nevertheless, since 42 U.S.C. § 1983 provides nominal damages and attorney fees for civil rights violations, this issue remains to be resolved between these parties. The District is incorrect in arguing plaintiffs must demonstrate actual injuries. In a 42 U.S.C. § 1983 action they need only establish a violation of their constitutional rights. Carey v. Piphus, 435 U.S. 247, 266-67, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978). Furthermore, we find the unusual constitutional issues presented by this case to be of continuing and substantial public interest. Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 233, 635 P.2d 108 (1981).

II

This action arises under 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity . . .

Plaintiffs must show both a deprivation of a federal right and that the offending action was "under color of law." Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).

A

The Fourth Amendment prohibits unreasonable searches. When law enforcement officials search, probable cause "is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness." Camara v. Municipal Court, 387 U.S. 523, 534, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967).

The reasonable belief standard was adopted to permit searches of students by school officials on a lower quantum of evidence than that required for a search by law enforcement officers. State v. McKinnon, 88 Wn.2d 75, 558 P.2d 781 (1977); 2 W. LaFave, Search and Seizure § 10.11(b), at 456 (1978). In McKinnon we recognized that the need for immediate action on the part of the school official may preclude the procurement of a search warrant based upon probable cause. We did not authorize purely disciplinary searches, but rather set forth standards to be used in the determination of reasonableness: " [T]he child's age, history, and school record, the prevalence and seriousness of the problem in the school to which the search was directed, the exigency to make the search without delay, and the probative value and reliability of the information used as a justification for the search." (Citations omitted.) McKinnon, at 81. Not one of these standards is met here.

To meet the reasonable belief standard, it was necessary for the school officials to have some basis for believing that drugs or alcohol would be found in the luggage of each individual student searched.¹ These school officials did not believe they would find anything.

In any sufficiently large group, there is a statistical probability that someone will have contraband in his possession. The Fourth Amendment demands more than a generalized probability; it requires that the suspicion be particularized with respect to each individual searched. Ybarra v. Illinois, 444 U.S. 85, 91, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979); Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir. 1982) (requiring individualized suspicion under reasonable belief standard in searches by school officials), cert. denied, 463 U.S. 1207, 77 L. Ed. 2d 1387, 103 S. Ct. 3556 (1983); Bellnier v. Lund, 438 F. Supp. 47 (N.D.N.Y. 1977) (search invalid where no reasonable suspicion that each student searched possessed contraband). The factors prescribed in McKinnon evidence the requirement of individualized suspicion. In the absence of individualized suspicion of wrongdoing, the search is a general search. "[W]e never authorize general, exploratory searches." State v. Helmka, 86 Wn.2d 91, 93, 542 P.2d 115 (1975).

There was no basis whatsoever to believe that Adam Kuehn or any of the students had prohibited items in their luggage. The reasonable belief standard was not met.

It makes no difference whether the search was conducted by the band director, the principal, or the parents. When a private person is acting under the authority of the State, Fourth Amendment protections apply. United States v. Walther, 652 F.2d 788 (9th Cir. 1981); see Coolidge v. New Hampshire, 403 U.S. 443, 487, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). It is clear that the parents conducted the search with the sanction and enforcement authority of the school officials.

Contrary to the trial court's view, neither the voluntary nature of the activity nor the preannouncement of the search, standing alone, make the search constitutional. We unequivocally disapproved of the general search of rock concert patrons whose attendance was certainly voluntary. Jacobsen v. Seattle, 98 Wn.2d 668, 658 P.2d 653 (1983). Participation in the Wind Ensemble trip, while voluntary, was not a private outing. Instéad, it was an authorized school activity, in which Ensemble members were expected to participate unless they could not financially afford to do so. Further, the mere announcement that a constitutional right must be waived in order to participate in the school activity cannot make the search reasonable. In another case where preannouncement of a search of students' lockers was the offered justification, the court countered: "[I]f the Government announced that all telephone lines would henceforth be tapped, . . . the public would not lose its expectation of privacy in using the telephone." Jones v. Latexo Indep. Sch. Dist., 499 F. Supp. 223, 234 (E.D. Tex. 1980).

We are neither unmindful nor unsympathetic to the great responsibility borne by the band director and parent chaperons in supervising a large group of high school students on a trip to a foreign country. Nonetheless, an important consideration in the weighing of public needs against individual rights is the availability of less burdensome alternatives to the intrusion. Jacobsen, at 674. For example, the school might have required the parents of each student to examine their own child's luggage, and to vouch for the contents as Kathryn Kuehn did. The school might have impressed upon the students the consequences of a border search when contraband is found. Stern disciplinary measures might have been announced by the school authorities, with a signed acknowledgment required from each participant and his or her parents.

The defendants suggest that a search by parents is somehow less intrusive and more delicate than a search by border guards. This thinking is faulty in several respects: The possibility of a search at the border is remote. A search by an anonymous stranger acting in an official capacity may be far less embarrassing to a student carrying something of a private nature than would be one conducted by the parent of a classmate. A border guard searches pursuant to legal authority. The school's pre-trip search does not make the probability of a subsequent search at the border more or less likely. Finally, a deprivation of a constitutional right cannot be justified by a citizen's not retaining the same right in a foreign country; otherwise all potential travelers could be stripped of their rights in advance of departure.

In Jacobsen, we observed that most of the persons subjected to the rock concert unconstitutional patdown were juveniles and young adults. We stated: "[T]he damage to the understanding of constitutional guaranties of freedom from unreasonable searches on the part of these young persons is incalculable." Jacobsen, at 674. The students on the band trip were subjected to unreasonable searches at the direction of school officials entrusted with teaching civic responsibilities and rights. "That [the schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." West Va. State Bd. of Educ. v. Bar-nette, 319 U.S. 624, 637, 87 L. Ed. 1628, 63 S. Ct. 1178, 147 A.L.R. 674 (1943). The general search is anathema to Fourth Amendment and Const. art. 1, § 7 protections, and except for the most compelling situations, should not be countenanced.

B

A second determination required in a 42 U.S.C. § 1983 action is whether the action was under "color of law." '"Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken "under color of" state law."' Monroe v. Pape, 365 U.S. 167, 184, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961) (citing United States v. Classic, 313 U.S. 299, 85 L. Ed. 1368, 61 S. Ct. 1031 (1941)), overruled on other grounds in Monell v. Department of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).

That all defendants here were clothed with authority of state law is apparent. Our statutes provide the principal and teacher with the authority to establish rules of conduct and discipline, oblige student compliance, and authorize parent participation. See, e.g., RCW 28A.58.200, RCW 28A.58.201, and RCW 28A.58.1011(3). "It is enough that [a private person] is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting 'under color' of law for purposes of § 1983 actions." (Citations omitted.) Dennis v. Sparks, 449 U.S. 24, 27-28, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980). Thus, the school principal, the band director, and the parent booster club members were clothed with the authority of state law when they announced their policy of requiring students' submission of luggage for search prior to departure.

Conclusion

The school officials, subject to Fourth Amendment restrictions, did not comply with the reasonable belief standard when they mandated submission to an across-the-board search of each student's luggage as a condition to participation in a school activity. The actions of the school officials were carried out under color of law. We reverse the trial court and remand for further proceedings not inconsistent with this opinion.

Brachtenbach, Dore, and Pearson, JJ., concur.

1 In the cases where the reasonable belief standard was held applicable, the searching school official had some basis for suspecting a particular student of misconduct prior to initiating the search. See, e.g., State v. Baccino, 282 A.2d 869 (Del. Super. Ct. 1971); State v. D.T.W., 425 So. 2d 1383 (Fla. Dist. Ct. App. 1983); State v. Young, 234 Ga. 488, 216 S.E.2d 586, cert. denied, 423 U.S. 1039, 46 L. Ed. 2d 413, 96 S. Ct. 576 (1975); Picha v. Wielgos, 410 F. Supp. 1214 (N.D. Ill. 1976); M. v. Board of Educ., 429 F. Supp. 288 (S.D. Ill. 1977); Doe v. Renfrow, 475 F. Supp. 1012 (N.D. Ind. 1979), aff'd in part, 631 F.2d 91 (7th Cir. 1980), cert. denied, 451 U.S. 1022, 69 L. Ed. 2d 395, 101 S. Ct. 3015 (1981); Stern v. New Haven Comm'ty Schs., 529 F. Supp. 31 (E.D. Mich. 1981); State ex rel. T.L.O., 94 N. J. 331, 463 A.2d 934, cert. granted, 464 U.S. 991 (1983); M.M. v. Anker, 477 F. Supp. 837 (E.D.N.Y.), aff'd, 607 F.2d 588 (2d Cir. 1979); Tarter v. Raybuck, 556 F. Supp. 625 (N.D. Ohio 1983), aff'd in part, 742 F.2d 977 (6th Cir. 1984); R.C.M. v. State, 660 S.W.2d 552 (Tex. Ct. App. 1983); Jones v. Latexo Indep. Sch. Dist., 499 F. Supp. 223 (E.D. Tex. 1980); Collier v. Miller, 414 F. Supp. 1357 (S.D. Tex. 1976); L.L. v. Circuit Court, 90 Wis. 2d 585, 280 N.W.2d 343 (Ct. App. 1979).