This case involves the application of the well-established precepts of qualified immunity to a specific set of facts that concern a search of elementary school-children who were suspected of having stolen money from a classmate. The district court granted summary judgment in favor of the defendants on all claims. For the reasons that follow, we affirm.

Certain critical facts in this case are disputed by the parties. For the limited purpose of our analysis of the issue of qualified immunity at the summary judgment stage, we are bound to view the facts in the light most favorable to the plaintiffs. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962) (per curiam). In 1992, at the time the events giving rise to this action occurred, Cassandra Jenkins and Oneika McKenzie were eight-year-old second graders in elementary school in Talladega, Alabama. On the afternoon of May 1, one of Jenkins' and McKenzie's classmates informed their teacher, Hilda Fannin, that $7.00 was missing from her purse. Based on a student's accusation that Jenkins had placed the money in McKenzie's backpack, Fannin initially searched the backpack but failed to find the money there. Several students subsequently implicated Jenkins, McKenzie, and a male classmate, Anthony Jamerson, in the alleged theft. Fannin took the children into the hallway and questioned them regarding the money, at which time Jenkins and McKenzie mutually accused each other of the theft. At the suggestion of another teacher, Susannah Herring, Fannin asked the students to remove their socks and shoes. When these efforts failed to reveal the allegedly stolen money, Herring, along with a guidance counselor, Melba Sirmon, who had by this time become involved in the situation, directed Jenkins and McKenzie to the girls' restroom. Jenkins testified that Herring ordered them to enter the bathroom stalls and come back out with their underpants down to their ankles. McKenzie offered conflicting testimony as to whether they were instructed to put their clothes back on while inside the bathroom stall or exit the stalls unclothed. Jenkins' and McKenzie's testimony is consistent, however, with respect to the assertion that they were asked to remove their clothes while inside the restroom.

Having again failed to discover the missing money, Herring and Sirmon brought Jenkins, McKenzie, and Jamerson to the office of the school principal, Crawford Nelson. In response to Nelson's inquiries regarding the money, Jamerson volunteered that it was hidden behind a file cabinet. A search in that location failed to uncover the money. Jenkins and McKenzie both contend that Herring then escorted them to the restroom a second time where they were again asked to remove their clothes in an effort to locate the $7.00.

The parents of Jenkins and McKenzie filed a complaint on their behalf against the Talladega City Board of Education and nine individual defendants. In the complaint, the plaintiffs alleged, pursuant to 42 U.S.C. § 1983, that Jenkins and McKenzie had been strip-searched in violation of their rights provided under the Fourth and Fourteenth Amendments. In addition, the complaint set forth violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and Alabama law. In a series of memorandum opinions, the district court dismissed all claims for money damages and granted summary judgment in favor of (1) all defendants on plaintiffs' Title VI and Title IX claims; (2) the Board of Education with respect to the plaintiffs' § 1983 claims; (3) all individually-named defendants on the basis of qualified immunity; and (4) all defendants on all remaining federal claims for injunctive and declaratory relief, and all state law claims. We affirm the district court's disposition of this case in its entirety. Because we believe that the only issue raised in this appeal that warrants further examination concerns the court's determination that the individual defendants are entitled to qualified immunity with respect to the plaintiffs' Fourth Amendment § 1983 claims, our discussion is confined solely to this issue.

The principles of qualified immunity set out in Lassiter v. Alabama A & M Univ., 28 F.3d 1146 (11th Cir.1994) (en banc), continue to be the guiding directives for deciding cases involving the question of a state actor's entitlement to qualified immunity in this circuit. Although these rules have been identified on numerous occasions, we reiterate some of them here to establish and clarify the framework that necessarily informs our analysis of the issue before us. "Qualified immunity protects government officials performing discretionary functions from civil trials (and the other burdens of litigation, including discovery) and from liability if their conduct violates no 'clearly established statutory or constitutional rights of which a reasonable person would have known.' " Lassiter, 28 F.3d at 1149 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). "For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant's place, that 'what he is doing' violates federal law." Id. (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987)). "For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances." Lassiter, 28 F.3d at 1150. Plaintiffs submit that on May 1, 1992, the law regarding the constitutionally permissible scope of a search of students while attending school was so clearly defined that these defendants were on notice that the type of search conducted in this instance violated Jenkins' and McKenzie's rights guaranteed by the Fourth Amendment. In support of this proposition, plaintiffs point to the Supreme Court's application of the Fourth Amendment in the context of school searches in New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985).1 T.L.O. involved the search of a fourteen-year-old high school student's purse after the student was discovered smoking in the lavatory in violation of school rules. More specifically, a teacher found T.L.O. and a companion smoking in the restroom and took them to the principal's office where, in the presence of the assistant vice principal, the companion admitted--and T.L.O denied--having committed the infraction with which they were accused. The vice principal proceeded to examine T.L.O.'s purse to ascertain whether it contained cigarettes. When the search revealed a pack of cigarettes, the vice principal removed the pack and observed within the purse a package of rolling papers. Further exploration revealed the presence of a small quantity of marijuana along with several items of drug paraphernalia.

The Supreme Court determined at the outset that the Fourth Amendment applied to searches conducted by school authorities. T.L.O., 469 U.S. at 335, 105 S.Ct. at 740. The Court, however, rejected the proposition that searches within the school setting must be based on probable cause as that term is understood in the context of Fourth Amendment jurisprudence; rather, the Court articulated the following standard to guide a pragmatic analysis of Fourth Amendment claims of this sort:

[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider "whether the ... action was justified at its inception"; second, one must determine whether the search as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the first place." Under 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. Such 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.

T.L.O., 469 U.S. at 341-42, 105 S.Ct. at 742-43 (citations omitted). Plaintiffs acknowledge that the factual circumstances set forth in T.L.O. differ significantly from those present in this action, but suggest that the aforementioned language sufficiently delineated the factors that necessarily must inform school authorities who seek to search a student suspected of breaching a school regulation such that the defendants in this case reasonably must have known that their search of Jenkins and McKenzie--and particularly that aspect of the search that involved the removal of articles of clothing--exceeded the bounds of "reasonableness" established by the Court in T.L.O. We disagree.2

Notwithstanding the Court's enunciation in T.L.O. of a two-part test to adjudicate Fourth Amendment school-search claims, the Court did not apply its own test strictly to the facts presented in that case; indeed, after finding that the initial decision to open T.L.O.'s purse to search for cigarettes was justified in light of a teacher's report that the student had been smoking in the restroom, the Court concluded that

[t]he suspicion upon which the search for marihuana was founded was provided when Mr. Choplick observed a package of rolling papers in the purse as he removed the pack of cigarettes.... The discovery of the rolling papers concededly gave rise to a reasonable suspicion that T.L.O. was carrying marihuana as well as cigarettes in her purse. This suspicion justified further exploration of T.L.O.'s purse, which turned up more evidence of drug-related activities .... Under these circumstances, it was not unreasonable to extend the search to a separate zippered compartment of the purse; and when a search of that compartment revealed an index card containing a list of "people who owe me money" as well as two letters, the inference that T.L.O. was involved in marihuana trafficking was substantial enough to justify Mr. Choplick in examining the letters to determine whether they contained any further evidence. In short, we cannot conclude that the search for marihuana was unreasonable in any respect.

T.L.O., 469 U.S. at 347, 105 S.Ct. at 745-46. Specific application of the factors established to define the constitutionally permissible parameters of a school search--that is, that it be "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"--is notably absent from the Court's discussion and conclusion with respect to T.L.O. The Court's determination is grounded solely in the notion that each successive discovery of items in T.L.O.'s purse by the vice principal provided reasonable suspicion and thereby legitimated further searching. There is no illustration, indication, or hint as to how the enumerated factors might come into play when other concrete circumstances are faced by school personnel.3

In the absence of detailed guidance, no reasonable school official could glean from these broadly-worded phrases whether the search of a younger or older student might be deemed more or less intrusive; whether the search of a boy or girl is more or less reasonable, and at what age or grade level; and what constitutes an infraction great enough to warrant a constitutionally reasonable search or, conversely, minor enough such that a search of property or person would be characterized as unreasonable. In short, as conceded by the plaintiffs, neither the Supreme Court nor any court in this circuit nor the Alabama courts, on or before May 1, 1992, had ever actually applied the test established in T.L.O. to define a reasonable (or unreasonable) search in the context of facts materially similar to those of this school search.4 Without such practical, factbased application, school officials in this circuit were left to interpret, balance, and evaluate such terms as "measures ... 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." T.L.O., 469 U.S. at 342, 105 S.Ct. at 743. As we have previously noted, "[p]ublic officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases." Adams v. St. Lucie County Sheriff's Dept., 962 F.2d 1563, 1575 (11th Cir.1992) (Edmondson, J., dissenting), dissent approved en banc, 998 F.2d 923 (11th Cir.1993) (per curiam). Similarly, school officials cannot be required to construe general legal formulations that have not once been applied to a specific set of facts by any binding judicial authority.5

Indeed, not only does the language used by the Court to announce a legal standard regarding the permissible scope of a reasonable school search lack specificity6 but, it appears, purposefully so. In response to Justice Stevens' criticism of this standard on the ground, among others, that the Court had failed to distinguish between types of infractions that might reasonably justify a search, Justice White, writing for the majority, explained:

We are unwilling to adopt a standard under which the legality of a search is dependent upon a judge's evaluation of the relative importance of various school rules. The maintenance of discipline in the schools requires not only that students be restrained from assaulting one another, abusing drugs and alcohol, and committing other crimes, but also that students conform themselves to the standards of conduct prescribed by school authorities.... The promulgation of a rule forbidding specified conduct presumably reflects a judgment on the part of school officials that such conduct is destructive of school order or of a proper educational environment. Absent any suggestion that the rule violates some substantive constitutional guarantee, the courts should, as a general matter, defer to that judgment and refrain from attempting to distinguish between rules that are important to the preservation of order in the schools and rules that are not.

T.L.O., 469 U.S. at 342 n. 9, 105 S. Ct. at 743 n. 9. The foregoing discussion not only indicates the Court's deliberate hesitation to narrow and define explicitly, in a practical, factual sense, the terminology used to establish its "reasonableness" test but, more importantly, further suggests that T.L.O. did not attempt to establish clearly the contours of a Fourth Amendment right as applied to the wide variety of possible school settings different from those involved in T.L.O. Faced with a series of abstractions, on the one hand, and a declaration of seeming deference to the judgments of school officials, on the other, it is difficult to discern how T.L.O. could be interpreted to compel the conclusion that these defendants--or, more accurately, all reasonable educators standing in defendants' place--should have known that their conduct violated a clearly established constitutional right.

We will not engage in polemics regarding the wisdom of the defendants' conduct in this case; suffice it to say that the defendants likely exercised questionable judgment given the circumstances with which they were confronted. Our job, however, is to decide a narrow legal issue in light of our binding circuit precedent: on May 1, 1992, the date on which the relevant conduct at issue in this case occurred, was the law clearly established such that all reasonable teachers standing in the defendants' place reasonably should have known that the search to locate allegedly stolen money violated Jenkins' and McKenzie's Fourth Amendment rights? Applying the principles explicitly stated in Lassiter, we conclude that, at the time these events took place, the law pertaining to the application of the Fourth Amendment to the search of students at school had not been developed in a concrete, factually similar context to the extent that educators were on notice that their conduct was constitutionally impermissible. Accordingly, the defendants are entitled to qualified immunity in this case. We AFFIRM.

KRAVITCH, Senior Circuit Judge, dissenting in which HATCHETT, Chief Judge, and BARKETT, Circuit Judge, join:

I fully agree that government officials acting within their discretionary authority should be shielded from liability for violating rights of which a reasonable person would not have known. The majority and I differ only as to whether the schoolhouse Fourth Amendment standard announced by the Supreme Court in New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985), would lead a reasonable person to understand that the conduct in this case was prohibited. The majority finds qualified immunity by characterizing the Supreme Court's test as too general to guide any teacher, unless subsequent controlling precedent has applied it to virtually identical facts. In my view, stating that a constitutional test is general or that factually similar precedent is lacking bypasses the fundamental inquiry set out by the Supreme Court: determining whether the governing constitutional standard provides sufficient guidance, given the facts of the case, "that a reasonable official would understand that what he is doing violates [a constitutional] right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987). Because I believe that T.L.O. sufficiently forewarns teachers that strip searching eight-year-olds in pursuit of a few dollars violates the Fourth Amendment, I respectfully dissent.

Qualified immunity balances the competing concerns present in civil rights suits. Immunity serves the public " 'need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.' " Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S. Ct. 2727, 2732, 73 L. Ed. 2d 396 (1982) (quoting Butz v. Economou, 438 U.S. 478, 506, 98 S. Ct. 2894, 2911, 57 L. Ed. 2d 895 (1978)). Taken too far, however, immunity can undermine the purpose of section 1983 altogether, giving officials license to violate the most basic and longstanding constitutional rights. Qualified immunity accommodates these interests by protecting those who act in reasonable reliance upon established legal principles but permitting liability for clearly unconstitutional conduct. Thus, immunity attaches only when official "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

Interpreting the term "clearly established," the Supreme Court has warned courts not to base liability upon expansive legal truisms or to ignore material factual differences between present cases and precedent establishing the asserted constitutional right. In Anderson, the Court emphasized that a right is not clearly established unless "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." 483 U.S. at 640, 107 S.Ct. at 3039.1 We since have stated that "[g]eneral propositions have little to do with ... qualified immunity." Muhammad v. Wainwright, 839 F.2d 1422, 1424 (11th Cir.1987). Thus, qualified immunity applies where the plaintiff can identify only unworkable abstractions from prior case law and cannot show how those principles would be applied later to different facts.2 Neither the Supreme Court nor this court, however, require factual identity between prior and subsequent cases, for that would create absolute immunity.3

I review these principles because the majority has taken a rigid approach to their application in the present case. Our various formulations of the "clearly established" test--that prior cases must be factually similar to the case at bar, that general abstractions are unhelpful--represent a shorthand way of saying that the clarity of a constitutional right (and, therefore, official liability) depends upon the interplay of the legal standard and the factual context to which the plaintiff alleges it applies. But it is not enough simply to label pre-existing law "general," or to identify factual distinctions in relevant precedent. Instead, a court must determine whether the generality of a rule casts doubt on its application to the present case or whether factual distinctions from prior precedent are "material," that is, they make the legal rule inapplicable in the later case or suggest that the present conduct is permissible.4 By contrast, the majority today, declaring T.L.O. both general and factually distinguishable, abandons further analysis. This, I believe, is error.

As the Supreme Court recently reaffirmed, the search for specific rules in factually concrete cases should not overshadow the purpose of such a search--determining whether the government actor had fair warning that his/her conduct was unconstitutional. In United States v. Lanier, --- U.S. ----, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997), the Court unanimously held that: (1) civil rights liability requires only "fair warning" of constitutional rights, --- U.S. at ---- - ----, 117 S. Ct. at 1224-27; and (2) neither prior Supreme Court precedent nor factually similar precedent is necessary to provide such warning. The Court confirmed that decisional law generally, not only from the Supreme Court, can establish a right. Id. at ---- - ----, 117 S. Ct. at 1226-27.5 More importantly for present purposes, the Court stressed that rights founded on general statements of law may be enforced against government actors. It observed that "notable factual distinctions" between prior cases and later ones did not require automatic immunity:

[G]eneral statements of the law are not inherently incapable of giving fair and clear warning, and ... a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though "the very action in question has [not] previously been held unlawful"....

Id. at ----, 117 S.Ct. at 1227 (quoting Anderson, 483 U.S. at 640, 107 S. Ct. at 3039). The purpose of factual specificity is to warn government officials when a constitutional test does not, by its own terms, apply to present actions. Thus, it is necessary only when "an earlier case expressly leaves open whether a general rule applies to the particular type of conduct at issue...." Id.6

Lanier is consistent both with prior Supreme Court precedent and the policy underlying qualified immunity. The Court has always required only that the "unlawfulness must be apparent," Anderson, 483 U.S. at 640, 107 S. Ct. at 3039, so actors "reasonably can anticipate when their conduct may give rise to liability...." Davis v. Scherer, 468 U.S. 183, 195, 104 S. Ct. 3012, 3019, 82 L. Ed. 2d 139 (1984). Further, excepting all unconstitutional conduct governed by "general" constitutional standards would vitiate the balance struck by qualified immunity, as officials in clear violation of broad rules would escape liability.

Thus, we cannot dismiss T.L.O. by attaching the appellation "general" to the test it announces or by pointing to the absence of prior factually similar cases. In T.L.O., the Supreme Court noted lower courts' conflicting views regarding the application of the Fourth Amendment to schools, 469 U.S. at 332 n. 2, 105 S. Ct. at 737 n. 2, and squarely addressed the issues before us today: when a search by a school official is authorized, and how intrusive a search the Fourth Amendment tolerates. As the majority recounts, the Court adopted a test born of the Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), "reasonableness" standard, but did not leave us with reasonableness alone. It announced a two-pronged test: first, the search must be justified at its inception, that is, "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," 469 U.S. at 342, 105 S. Ct. at 743; and second, the search must be permissible in scope, that is, "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.7

This standard obviously can establish the law for certain factual situations. For example, if school rules disallow chewing gum on campus, would the Fourth Amendment permit a strip search by a male teacher of a young girl reasonably suspected of bubblegum possession? Plainly not. See, e.g., Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir.1993) ("A nude search of a student by an administrator or teacher of the opposite sex would obviously violate [the T.L.O.] standard. Moreover, a highly intrusive search in response to a minor infraction would similarly not comport with ... T.L.O."). Indeed, as the teachers' counsel conceded at oral argument, certain schoolhouse searches violate the Fourth Amendment as a matter of common sense. Thus, the question before our court, and incompletely answered by the majority, is whether the T.L.O. standard suggests "with obvious clarity," Lanier, --- U.S. at ----, 117 S. Ct. at 1227, that a strip search of schoolchildren for seven dollars is unconstitutional.

T.L.O., although not crystalline, is--simply on the facts of the case before us--a bright line. Herring and Sirmon lacked even arguable reasonable suspicion to strip search Jenkins and McKenzie.8 The teachers offer the following evidence as creating reasonable suspicion to search: (1) several students implicated the plaintiffs and they accused one another; (2) McKenzie earlier had gone to the restroom; (3) the money was not found in the backpack or the students' shoes and socks; and (4) historically, other children had been caught with money in their apparel. All of these justifications are specious. First, Herring and Sirmon knew only of Ashley Estell's accusation9 and the mutual finger-pointing by Jenkins, McKenzie, and Jamerson. Estell's testimony proved untrustworthy when the backpack search revealed nothing, leaving only the students' completely contradictory allegations. This testimony might be at the outer bounds of reasonable suspicion for one search, but it is not so for two.10 Second, McKenzie's trip to the bathroom, although relevant to suspicion, was not communicated to Herring or Sirmon prior to the strip search.11 Third, appellees' suggestion that the lack of evidence in the backpack or the students' shoes and socks permitted the strip search is dubious, as it rests on the questionable premise that more intrusive searches can be predicated upon prior unrevealing searches. T.L.O. makes clear that such bootstrapping is impermissible; there, the Court validated the escalating search only because additional evidence continued to emerge. See 469 U.S. at 347, 105 S. Ct. at 745-46 (discovery of rolling papers "justified further exploration of T.L.O.'s purse"; evidence of drug dealing justified expansion of search to separate zippered compartment; discovery of "list of people who owe me money" justified reading letters found in zippered compartment). Finally, there is no evidence that Herring or Sirmon knew about prior instances of other students concealing money in their clothing.12 Thus, because arguable reasonable suspicion was missing, qualified immunity is inappropriate.13

In addition, the scope of the strip search far exceeded what T.L.O. allows. To evaluate the scope of a search, T.L.O. directs us to consider several factors: whether there was a reasonable relationship between the means by which a student is searched and the objectives for that search; the intrusiveness of the search in light of the student's age and sex; and the intrusiveness of the search in light of the nature of the alleged infraction. Admittedly, age and sex are not particularly instructive in the present case.14 Nevertheless, this does not render T.L.O. unclear for qualified immunity purposes. Our cases confirm that a balancing test may establish the law for a specific set of facts when the "balancing would lead to the inevitable conclusion that the [particular conduct] was unlawful." Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989). Because the type of search employed here was not reasonably related to its objectives and was excessive in light of the nature of the infraction, the T.L.O. balance inevitably marks Herring and Sirmon's conduct as unconstitutional, thereby clearly establishing the law.15

The strip searches were not reasonably related to their objectives because they were excessively intrusive and unlikely to turn up evidence, and because other reasonable, minimally intrusive options were available.

It is axiomatic that a strip search represents a serious intrusion upon personal rights. In Mary Beth G. [v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.1983) ], the court referred to strip searches as "demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission."

Justice v. City of Peachtree City, 961 F.2d 188, 192 (11th Cir.1992).16 Thus, for a strip search to be reasonably related in scope to the objectives for which it was undertaken, the objectives must be weighty,17 and the search must be necessary to locate the suspected evidence. See Terry, 392 U.S. at 29-30, 88 S.Ct. at 1883-85 (search must be "confined in scope to an intrusion reasonably designed to discover" items sought and "confined ... strictly to what was minimally necessary" to locate those items). Here, acting only on the discredited testimony of one student and the contradictory allegations of the three suspects (exacerbated by threats that the police would be called to investigate), the teachers launched a full-scale strip search of two eight-year-olds, foregoing several reasonable, yet minimally intrusive, intermediate steps.

Fannin never questioned whether the money was truly stolen. She did not inquire whether the money might have been spent or misplaced, nor did she ask how Estell knew that Jenkins took the money. Fannin also did not search Jenkins's bag. Further, Herring took over the situation without asking any questions, and promptly ordered a search of the students' shoes and socks, followed by a strip search, even though there was absolutely no evidence that the girls might have the money in their underclothing. Thus, because there was not even reasonable suspicion to believe that the girls possessed contraband, because the teachers ignored less intrusive means, and because the personal invasion was extreme, the first strip search was necessarily disproportionate to its justification. The second strip search was even more blatantly unconstitutional, as no one could reasonably argue that it was necessary after the fruitless prior search.

Finally, the nature of the infraction here--a small theft--is insufficient as a matter of law to permit a strip search. T.L.O. directs us to consider the nature of the infraction because, although keeping order in the school is important, it is not determinative. Students' privacy rights must be weighed in the balance. Strip searching a student is permissible only in extraordinary cases, and only to prevent imminent harm.18 For example, if school administrators have reasonable suspicion that a student is carrying a gun on his/her person and a "pat-down" confirms this suspicion, a strip search by an administrator of the same sex, strictly limited to finding the weapon, would be permissible. The theft of $7, although morally reprehensible, poses no threat of physical danger to other students and cannot, therefore, serve as the basis for a search of this magnitude.19

As the Seventh Circuit, faced with a qualified immunity defense following a school strip search, explained:

It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human decency. Apart from any constitutional readings and rulings, simple common sense would indicate that the conduct of the school officials in permitting such a nude search was not only unlawful but outrageous under "settled indisputable principles of law."

Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir.1980) (citation omitted), cert. denied, 451 U.S. 1022, 101 S. Ct. 3015, 69 L. Ed. 2d 395 (1981). Because Herring and Sirmon flagrantly ignored common sense and, crucially, the Constitution, I would reverse the district court's order granting qualified immunity.