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*
Honorable William W. Schwarzer, Senior U.S. District Judge
for the Northern District of California, sitting by designation.
United States Court of Appeals,
Eleventh Circuit.
No. 95-6243.
Cassandra JENKINS, a minor, by her mother and next friend, Sandra
HALL; Onieka McKenzie, a minor, by her mother and next friend,
Elizabeth McKenzie, Plaintiffs-Appellants,
v.
TALLADEGA CITY BOARD OF EDUCATION; Susannah Herring,
individually and in her capacity as a teacher of Graham Elementary
School; Melba Sirmon, individually and in her capacity as
counselor at Graham Elementary School, Defendants-Appellees,
Charles Kurley, in his official capacity as Superintendent of the
Talladega City School District, et al., Defendants.
Sept. 23, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. 94-PT-739-E), Robert B. Propst, Judge.
Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER
*
, Senior
District Judge.
KRAVITCH, Circuit Judge:
This action was brought on behalf of two elementary school
students who allegedly were strip searched by a teacher and
guidance counselor after having been accused of stealing money from
a classmate. The district court concluded that defendants were
entitled to summary judgment on all claims. In particular, the
court granted the individual defendants summary judgment on
plaintiffs' § 1983 Fourth Amendment claims. We affirm all of the
district court's summary judgment orders, except for the grant of
qualified immunity to defendants on the Fourth Amendment claims,
which we reverse.
1
Herring claims that she merely told Cassandra and Onieka to
"check" their clothes, not to remove them.
I.
In 1992, Cassandra Jenkins and Onieka McKenzie were
eight-year-old second graders at Graham Elementary School in
Talladega, Alabama. On the afternoon of May 1, one of Cassandra's
and Onieka's classmates told their teacher, Hilda Fannin, that $7
was missing from her purse. Another classmate told Fannin that
Cassandra had taken the money and stashed it in Onieka's backpack.
After searching the backpack and finding no money, Fannin
questioned Cassandra and Onieka in the hallway outside the
classroom. The girls accused each other, as well as a male
classmate, Anthony Jemison, of the theft.
As Fannin's questioning of Cassandra, Onieka, and Anthony
continued in the hallway, the school music teacher, Susannah
Herring, approached. Upon being informed of the theft accusation,
Herring took charge of the investigation. First, she instructed
the three students to take off their shoes and socks. No money was
revealed. Herring then summoned Melba Sirmon, a guidance counselor
whose office was nearby. Herring and Sirmon took Cassandra and
Onieka to the girls' restroom.
Inside the restroom, Herring told Cassandra and Onieka to
"check" their clothes for the money. According to Cassandra,
Herring ordered them to go inside the stalls and come back out with
their underpants down to their ankles.
1
As Cassandra and Onieka
entered separate stalls and locked the doors, Sirmon left the
restroom to check on Anthony, who was waiting outside. Shortly
2
Onieka testified that she and Cassandra pulled their
underpants down and back up while inside the locked stalls and
that neither came out of the stalls with her underpants down.

3
Although Herring apparently did not inform Nelson that
Cassandra and Onieka had removed their clothes in the restroom,
Nelson testified that he expressed disapproval of her forcing the
girls to remove their shoes and socks.

4
Herring and Sirmon assert that they only took Cassandra and
Onieka to the restroom once, before they met with Nelson; thus,
they dispute the girls' description of the second restroom
incident in its entirety. There is no evidence that Nelson
authorized or was aware of a second restroom trip.
after she returned, according to Cassandra, Cassandra and Onieka
emerged from the stalls with their underpants pulled down to their
ankles. Herring asked them if they had found the money, and they
replied that they had not. Sirmon allowed them to return to their
stalls and pull their underpants back up.
2
Herring and Sirmon then escorted Cassandra, Onieka, and
Anthony to the office of the school principal, Crawford Nelson.
After hearing Herring's account of what had happened,
3
Nelson
interrogated the three children about the location of the stolen
cash. Anthony claimed that the money was hidden behind a file
cabinet and then, when nothing was found there, that it was stashed
in a locker. Nelson concluded that Anthony had no idea where the
money was and dismissed him.
From Nelson's office, Herring and Sirmon took Cassandra and
Onieka back to the restroom.
4
Inside, Herring ordered the two
girls to take off their dresses, which they did. Cassandra was
wearing a slip; Onieka was wearing only underpants. Herring then
instructed them to shake their dresses, and she shook the slip
Cassandra was wearing. After nothing was found, Cassandra and
5
Cassandra and Onieka, who are black, claim that the
searches conducted by Herring and Sirmon, who are white, were
discriminatory based on race and gender. With respect to gender,
Onieka were allowed to put their dresses back on. This account was
corroborated by a witness. Joyce Merritt Shears, the parent of
another student, was walking in the hallway past the girls'
restroom while Cassandra and Onieka were being searched. Shears
heard children crying and an adult say either "remove your slip" or
"hold up your slip." Entering the restroom to investigate, Shears
saw Cassandra and Onieka, "one in their panties and the other one
in their slip."
The Talladega City Board of Education ("Board") conducted an
investigation of the strip search. After a hearing, the Board
concluded that Herring had committed a "gross error in judgment"
regarding the manner in which she investigated the alleged theft;
that Sirmon had erred in her judgment by assisting Herring, failing
to notify the principal immediately, and not calling Cassandra's
and Onieka's parents; and that Nelson had erred in his judgment by
not calling the girls' parents and failing to establish a uniform
policy for dealing with theft in the school. Despite the
superintendent's recommendation that Herring be fired, the Board
did not impose any serious sanctions.
Plaintiffs, on behalf of Cassandra and Onieka, filed a
complaint against the Board and nine individual defendants
(including Nelson, Herring, and Sirmon) in 1994, alleging, pursuant
to 42 U.S.C. § 1983, that they had been strip searched in violation
of the Fourth Amendment, Title VI of the Civil Rights Act of 1964,
and Title IX of the Education Amendments of 1972,
5
and also plaintiffs observe that Anthony Jemison was not strip searched
despite also being accused of the theft. With respect to race,
they point to other searches in Talladega schools that, they
allege, demonstrate a correlation between the intrusiveness of
the searches and the race of the students searched. After
carefully reviewing the record, we agree with the district court
that the plaintiffs have failed to present sufficient evidence of
discrimination based on gender or race to survive the summary
judgment motion.
alleging violations of Alabama tort law. The district court
initially dismissed all claims for money damages against all
defendants, except for those against Herring and Sirmon in their
individual capacities and those against the Board. Then, on its
own initiative, the court entered an order stating that it was
reconsidering whether Herring and Sirmon were entitled to qualified
immunity for the allegedly unconstitutional search in light of
recent Eleventh Circuit decisions. The court proceeded to grant
summary judgment on the basis of qualified immunity in favor of the
individual defendants on the Fourth Amendment claim. In addition,
the court granted summary judgment for all defendants on the Title
VI and Title IX claims, finding no substantial evidence of
discrimination based on race or gender; for the Board on the §
1983 Fourth Amendment claim, finding no basis for municipal
liability; for all defendants on the claims for injunctive and
declaratory relief, finding that the plaintiffs lacked standing to
bring these claims; and for individual defendants on the state law
claims, finding that the defendants were entitled to qualified
immunity under Article I, § 14 of the Alabama Constitution.
Plaintiffs now appeal.
II.
We affirm the grant of summary judgment for all defendants on
6
Although we do not adopt the district court's thorough
memorandum opinions on these issues as part of the opinion of
this court, we generally find the court's analysis cogent and
persuasive. Plaintiffs' contentions on appeal regarding thes