### *The HONORABLE THOMAS M. REAVL EY, United States Circuit Judge

for the Fifth Circuit, sitting by designation. ___________ No. 95-2276

___________ Cleoria Thompson, as next * friend of Ramone Lea, a minor, * * * Plaintiff - Appellee, * * v. * * Carthage School District; * Randy King, individually and in * Appeal from the United States his capacity as Superintendent * District Court for the of Schools; Randy Harris, Bruce * Eastern District of Arkansas. McCracken, Curtis Rushing, Gail * Toney, individually and in * their official capacity as * Members of the Board of * Education; Norma Bartel, Ralph * Malone, individually and in * their capacity as employees of * the Carthage School District, * * Defendants - Appellants. *

___________ Submitted: January 11, 1996 Filed: June 28, 1996

___________ Before LOKEN, REAVLEY, and HANSEN, Circuit Judges. *

___________ LOKEN, Circuit Judge.

Ramone L ea was expelled from Carthage High School after schoo l officials found crack cocaine in his coat pocket while looking for guns an d kniv es reported to be on school grounds. The district court awarde d $10,000 in § 1983 dam ages for "wrongful expulsion" because the search had violated Lea's Fourth Amendment

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rights. The Carthage School District, four members of its Board o f Education, the school Superintendent, and the educators who performed the search appeal. Concluding that the Fourth Amendment exclusionary rule doe s not appl y to school disciplinary hearings, and that the search wa s constitutionally reasonable, we reverse.

I.

Carthag e is a small, rural school district in which all grades ar e housed at one location. Total enrollment is abo ut 225; 90 to 100 students attend the High Schoo l. On the morning of October 26, 1993, a school bus driver told Norma Bartel, the High School princi pal, that there were fresh cuts on seats of her bus. Concerned that a knife or other cutting weapon
was on the school grounds, Bartel concluded that all male students i n grades six to twelve should be searched. After the search began, students told Bartel that there was a gun at the school that morning.

Bartel and science teacher Ralph Malone conducted the search b y bringing each class o f students to Malone's classroom. The students were told to remove their jackets, shoes, and socks, empty their pockets, and place these items on large tables in the science room. Bartel and Malone then checked the students for concealed weapons with a metal detector

. Malone would pat down a student if the metal det ector sounded, as it often did bec ause of the metal brads on the students' blue jeans. Malone an d Bartel also patted th e students' coats and removed any objects they could feel in the coat pockets. They completed the se arch before Superintendent Randy King arrived at 9:30 that morning.

Lea wa s a ninth grade student at the time of the search. Neithe r Bartel nor Malone had reason to suspect that Lea had cut the school bu s seats or had brought a weapon to school that mor ning. Lea's class was one of the last to be searched in the science room. Malone searched Lea's coa t pocket and found a used

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book of matches, a ma tch box, and a cigarette package. Considering these items to be contraband, Malone showed them to Ba rtel, and she brought them to her office. Bartel found only cereal in the cigarette package bu t discovered "a white substance" in the match box. She took the match box to King, who turned it over to a deputy sheriff. A test revealed that the white substance was c rack cocaine. After a hearing, Lea was expelled for the remainder of the school year.
Lea and his guardian, Cleoria Thompson, commenced this § 1983 a ction, allegi ng that the search and expulsion violated Lea's Fourth Amendmen t rights, and that the expulsion hearing denied him due process. The partie s submitted the case on depositions and affidavits . The district court held that the expulsion proceeding comported with due process, but that Lea's expulsion was wrongful because the search had violated his Fourth Amendmen t ri ghts. The school officials had no "individualized, particularize d suspicion" that Lea w as carrying a weapon or other contraband, and "there
was no adequate basis in the evidence to justify the initial decision to search all 6-12 grade boys." In addition, the court reasoned, Bartel and Malone s eized the match box after they knew that Lea did not possess a knif e or gun. The court awarded Lea $10,000 in compensatory damage s against defendants Ba rtel, Malone, King, and the school board members who voted for expulsion. It awarded Lea a reasonable attorney's fee, granted a declaratory judgment that his Fourth Amendment rights were violated, but declined to issue an injunction. This appeal followed.

II.

At the outset, we confront an issue ignored by the parties and th e district court -- whether the Fourth Amendment's exclusionary rule applies in school disciplinar y proceedings. At oral argument, we invited counsel to submit supplementa l briefs addressing this issue, but neither side did so. The issue is critical because the

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district court awarded substantial damages for wrongful expulsion, based entirely on the propo sition that Lea could not be expelled for possessing crack cocaine discovered during an illegal search. The judicially-created exclusionary rule precludes admission o f unlawfully seized evidence in criminal trials. "In the complex an d turbulent history of the rule, the Court never has applied it to exclude evide nce from a civil proceeding, federal or state." United States v

. Janis , 428 U.S. 433, 447 (1976). In Janis , the Court held that the rule does not apply in federal tax proceedings to bar evidence illegally seized by state officials. In INS v. Lopez-Mendoza , 468 U.S. 1032 (1984), th e Court held that the rule does not apply in civil INS deportation hearings. The Court's "framework" for deciding whether the exclusionary rule applies in a particular civil proceeding is to analyze whether the likely benefit of excluding illegally obtained evidence outweighs the societal costs of exclusion. Id . at 1041.

The societal costs of applying the rule in school disciplinar y proceedings are very high. For example, the exclusionary rule might bar
a high school from expelling a student who confessed to killing a classmat e
on campus if his confession was not preceded by Miranda warnings. We doub t that any parent would compromise school safety in this fashion. To th e extent the exclusionary rule prevents the disciplining of students wh o disrupt education or endanger other students, it frustrates the critical governmental function of educating and protecting children.

Moreover, "maintaining security and order in the schools requires a certai n degree of flexibility in school disciplinary procedures." Ne w Jersey v. T.L.O. , 469 U.S. 325, 340 (1985). Application of th e exclusionaryrule would require suppression hearing-like inquirie s inconsistent with the demands of school discipline, demands that led the Court to impose very limited due

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process requirements in Goss v. Lopez , 419 U.S. 565, 583-84 (1975). The bene fit of the exclusionary rule depends upon whether it woul d effectively deter Fou rth Amendment violations. In that regard, this case is like Lopez-Mendoza in one important respect -- school officials bot h conducted the search and imposed the student discipline. Knowing tha t eviden ce they illegally seize will be excluded at any subsequen t disciplinary proceedi ng would likely have a strong deterrent effect. See 468 U.S. at 1042-43.

Bu t there are also important differences between school disciplin e and the deportation p roceeding at issue in Lopez-Mendoza . The dissenters in that case argued for the exclusionary rule "[b]ecause INS agents are la w enforcement officials whose mission is closely a nalogous to that of police officers and because civil deportation proceedings are to INS agents what criminal trials are to police officers." 468 U.S. at 1053 (White, J. , dissenting). School officials, on the other han d, are not law enforcement officers. They do not have an adversarial relationship with students

. "Instead, there is a commonality of interests between teachers and their pupils. The attitude of the typical teacher is one of persona l
res ponsibilityfor the student's welfare as well as for his education. " T.L .O. , 469 U.S. at 350 (Powell, J., concurring). Moreover, children' s legitimate expectations of privacy are somewhat limited at school

. Theref ore, while the Fourth Amendment applies to searches by schoo l officials, its reasonableness standard, when applied to school searches, "stops short of probable cause." T.L.O. , 469 U.S. at 341.

In these circumstances, we conclude that there is little need f or the exclusionary rule's likely deterrent effect. Indeed, we see some risk tha t application of the rule would deter educators from undertaking disciplinar y proceedings that are needed to keep the schools safe and to control studen t misbehavio r. In any event, any deterrence benefit would not begin t o outweigh the high

### See James v. Unified Sch. Dist. No. 512 , 899 F. Supp. 530 , 1 

### 533-34 (D. Kan. 1995); Morale v. Grigel , 422 F. Supp. 988, 9 99-1001 (D.N.H. 1976); Ekelund v. Secr etary of Commerce , 418 F. Supp. 102, 106 (E.D.N.Y. 1976). Contra , Jones v. Latexo Indep. Sch. Dist. , 499 F. Supp. 223, 238-39 (E.D. Tex. 1980). Like the Supreme Court in T.L.O. , we do not consider whether 2 

### evidence illegally seized by s chool officials on school grounds is admi ssible at a subsequent criminal trial or delinquenc y proceeding. See 469 U.S. at 333 n.3.
-6- societal costs of imposing the rule. Therefore, like most district courts that have published opinions applying Janis and Lopez-Mendoza , we conclude 1 that the exclusionary rule may not be applied to prevent school officials from disciplining stu dents based upon the fruits of a search conducted on school grounds. Accordingly, Lea was not wrongfully expelled, and th e $10,000 damage award must be reversed. 2

III.
In concluding that the search violated Lea's Fourth Amendment r ights, the district court emphasized the fact that Bartel and Malone had n o individualized reason to suspect Lea of carryinga weapon. In T.L.O. , 469 U.S. at 342 n.8, the Supreme Court had left open the issue whethe r individualized suspicion is always required for school searches. However, after the district court decided this case, the Supreme Court upheld rando m drug testing of high school athletes despite the absence of individualized suspicion in Vernonia Sch. Dist. 47J v. Acton , 115 S. Ct. 2386 (1995). Th e Court clarified that individualized suspicion is not always required for sch ool searches. It recognized that the drug testing at issue wa s inherently intrusive. (Taking a urine sample and requiring disclosure of health information is more intrusive than, for example, looking in a purse , the search at issue in T.L.O. ) But the Court concluded that thi s sign ificant privacy invasion was justified by the important governmen t interest in reducing drug abuse by student athletes. 115 S. Ct. at 2396.

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Vernonia impacts this case in one significant way -- it confirm s that the doctrine of qualified immunity bars any award of damages. Th e indivi dual defendants did not violate clearly established law when the y decided to search all the older male students for dangerous weapon s reported to be on the school grounds. See Ander son v. Creighton , 483 U.S. 635, 639-40 (1987). The dist rict court rejected Lea's due process claim and denied hi m injunctive relief. With a damage award now fore closed by Vernonia and our decision that there w as no wrongful expulsion, the award of an attorney's fe e must also be reversed. See Farrar v. Hobby , 113 S. Ct. 566, 57 5 (1992). That ends th e case, except for a difficult issue that has little remain ing practical significance -- whether the district court erred i n declaring that the search violated Lea's Fourth Amendment rights.

The Four th Amendment inquiry in school search cases is whether th e searchwas reasonable in all the circumstances. The inquiry focuses o n whether the search was justified at its inception, whether its scope was reasonably related to the circumstances justifying a search, and the exten t of the privacy intrusion. See T.L.O. , 469 U.S. at 341. In a schoo l setting, "the relevant question is whether the search is one that a reasonable guardian and tutor might undertake." Vernonia , 115 S. Ct. at 2397. We review the reasonableness issue de novo

. See United States v. Brown , 51 F.3d 131, 132 (8th Cir. 1995).

The d istrict court concluded that the broad search for knives an d guns was not justified at its inception because the Carthage Schoo l District was not faci ng a "serious, on-going, problem with such dangerous instru mentalities." In our view, that analysis is inconsistent wit h Vernonia

. Principal Bartel had two independent reasons to suspect that on e
or more weapons had been brought to school that morning. Though she had no basis for suspecting any particular student, this was a risk to student safety and school

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discipline that no "reasonable guardian and tuto r" could ignore. Bartel's respon se was to issue a sweeping, but minimally intrusive command , "Ch ildren, take off your shoes and socks and empty your pockets." W e conclude that Bartel's decision to undertake this generalized but minimall y intru sive search for dangerous weapons was constitutionally reasonable

. See Cornfield v. Consolidated High Sch. Dist. No. 230 , 991 F.2d 1316, 1320

- 21 (7th Cir. 1993).
The district court further concluded that the scope of the sear ch was not reasonably relate d to its original purpose because Lea's pockets were searched after the metal detector had revealed that he did not possess a gun or knife. But in a school setting, Fourth Amendment reasonablenes s does not turn on "hairsplitting argumentation." T.L.O. , 469 U.S. at 346 n.12. If Lea had emptied his own coat pocket, the cigarette package and match box would have become contraband in plain view. It is no t constitutionally sign ificant that teacher Malone emptied the pocket after Lea put his jacket on the table. Moreover, once Bartel and Malon e reasonably decided to quickly search many childr en's pockets for dangerous weapons, it is not realistic to require them to abort the search of a pa rticular child who does not appear to be in possession of suc h contraband.

To summarize, while we share the district court's concern ove r
excess ive use of sweeping searches of school children's persons an d belongings, even in a minimally intrusive manner, we conclude that th e
sea rchundertaken in this case passes muster under T.L.O. and Vernonia

. The judgment of the district court is reversed and the case is remanded fo r entry of judgment in favor of defendants.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.