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Hough v. Shakopee Public Schools (I.S.D. No. 720): US District Court : 1983 | 4TH AMENDMENT | EDUCATION - searching all school kids every day not OK if not an 'in-lieu-of-jail' school

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
TRISTAN J. HOUGH and TREVIN A.
HOUGH, by and through their Guardian and
Parent, RAYNE ABBOTT; DANIEL J.
MANTHEY; EMILY TROSETH; and
DAVID MORAVEC,
Plaintiffs,
v.
SHAKOPEE PUBLIC SCHOOLS
(INDEPENDENT SCHOOL DISTRICT
NO. 720); SHAKOPEE BOARD OF
EDUCATION; KATHY MCKAY, Director
of Special Education for Shakopee Public
Schools, in her individual capacity;
MINNESOTA RIVER VALLEY SPECIAL
EDUCATION COOPERATIVE (JOINT
POWERS SCHOOL DISTRICT NO. 993);
LEZLIE PRETTYMAN OLSON, Director, in
her individual capacity; DARREN KERMES,
Director, in his individual capacity;
COLLEEN TROSEN, Special Education
Coordinator, in her individual capacity; and
BARBARA BAHNSON, Special Education
Administrator, in her individual capacity,
Defendants.
Case No. 07-CV-2508 (PJS/RLE)
ORDER ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT AND MOTION
FOR SEPARATE TRIALS
Margaret OSullivan Kane, KANE EDUCATION LAW, LLC, for plaintiffs.
Amy E. Mace, RATWIK ROSZAK & MALONEY, for defendants Shakopee Public
Schools, Shakopee Board of Education, and Kathy McKay.
Timothy J. OConnor, LIND JENSEN SULLIVAN & PETERSON, PA, for defendants
Minnesota River Valley Special Education Cooperative, Lezlie Prettyman Olson, Darren
Kermes, Colleen Trosen, and Barbara Bahnson.
1Shakopees public-school system is Independent School District No. 720. Defendant
Shakopee Board of Education is the group of elected officials who run Shakopees public-school
system. Although plaintiffs name both Shakopee Public Schools and the Shakopee Board of
Education as defendants in their complaint, plaintiffs claims against these two entities are
identical. The Court therefore generally refers to both entities together as Shakopee.
-2-
Plaintiffs were enrolled in special-education programs operated by defendant Minnesota
River Valley Special Education Cooperative (MRVSEC). Defendant Shakopee Public Schools
(Shakopee) is one of six school districts that belong to MRVSEC.1 Shakopee often refers its
students with special needs to programs run by MRVSEC. Three of the five plaintiffs in this
action were referred by Shakopee to MRVSEC; the other two plaintiffs were referred by districts
that are not parties to this action.
The MRVSEC programs attended by plaintiffs differed in many respects, but they had
one thing in common: Every student was searched every day when he or she arrived at school.
Generally speaking, students had their backpacks and purses searched, and students were
required to empty their pockets, remove their shoes and socks, turn down the waistband of their
pants, and sometimes to submit to a patdown search.
This is essentially a Fourth Amendment case, but plaintiffs have filed a kitchen-sink
complaint, in which they allege not only that the searches violated the Fourth Amendment, but
also that the searches violated numerous other provisions of the United States Constitution, the
Minnesota Constitution, federal statutes, Minnesota statutes, and the common law. Plaintiffs
contend that the searches violated their rights under the Fourteenth Amendment to procedural
due process, substantive due process, and equal protection of the laws. Plaintiffs raise dueprocess
claims under the Minnesota Constitution. Plaintiffs contend that the searches amounted
to disability discrimination in violation of Title II of the Americans with Disabilities Act
2Plaintiffs initial complaint also raised claims with respect to plaintiff Tristan Hough for
violations of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400-50.
Those claims were severed on the Courts own motion under Rule 21(b) of the Federal Rules of
Civil Procedure. Order Mar. 14, 2008 [Docket No. 78]. The Court also dismissed various claims
pursuant to the parties stipulation. Id. at 6-7; Stip. of Dism. [Docket No. 76]. The operative
complaint in this matter is the Second Amended Complaint, filed September 16, 2008 [Docket
No. 181].
-3-
(ADA), 42 U.S.C. 12132, the Rehabilitation Act, 29 U.S.C. 794 (known as 504 of the
Act), and the Minnesota Human Rights Act (MHRA), Minn. Stat. 363A.12 subd. 1. And
plaintiffs bring tort claims under Minnesota law for intrusion upon seclusion (a type of invasion
of privacy).2
The parties cross-move for summary judgment, and Shakopee moves for a separate trial if
its motion for summary judgment is denied. For the reasons that follow, the Court grants
summary judgment to all defendants on all of plaintiffs claims, with two exceptions: First, the
Court grants summary judgment to plaintiffs on their Fourth Amendment claim against
MRVSEC. Second, the Court denies summary judgment both to plaintiffs and to the MRVSEC
defendants on the claims of Trevin Hough and Daniel Manthey for intrusion upon seclusion. The
Court also denies as moot Shakopees motion for a separate trial.
I. BACKGROUND
MRVSEC is a school district established under Minnesotas Joint Powers Statute, Minn.
Stat. 123A.15, to serve students who need special education. For the sake of convenience, the
Court will sometimes refer to these as disabled students or as students with special needs.
MRVSEC enrolls students from each of its six member districts: Shakopee, Belle Plaine, Jordan,
New Prague, Prior Lake-Savage, and Montgomery-Lonsdale. Kermes Aff. 2 [Docket No. 144].
MRVSECs governing board is made up of one representative from each of these six districts.
3The record does not appear to include evidence about searches at MRVSECs PLUS
program (attended for one year by Tristan Hough). The Court therefore does not deem plaintiffs
to be challenging the search policy of the PLUS program. The Court also does not deem
plaintiffs to be challenging the search policy of Carver-Scott Educational Cooperative, an entity
that is not a part of this suit and that both Daniel Manthey and Trevin Hough attended for periods
of time.
-4-
Individual defendants Lezlie Prettyman Olson, Darren Kermes, Colleen Trosen, and Barbara
Bahnson are all former or current officials of MRVSEC. Individual defendant Kathy McKay is
the Director of Special Services (including special-education services) for the Shakopee school
district.
MRVSEC operates programs at several different locations. Within a particular program,
MRVSEC may group students according to their age or their needs into what are effectively subprograms.
Four MRVSEC programs are at issue in this case: the New Prague Education Center
(New Prague), the Oasis program, the River Valley Education Center (River Valley), and the
Town Square Education Center (Town Square). Within River Valley, there is both a junior
high and a senior high, as well as a program for students with pervasive developmental disorders
(PDD). Within Town Square, there are programs called Crossings I, Crossings II,
Potentials, Journeys, and Pathways. Town Square serves high-school-age students and,
overall, is a transition program aimed at preparing its students to live independently. Town
Square is located in a shopping mall.3
All of these programs are designated as Setting IV programs under federal law.
Bahnson Aff. 17 [Docket No. 143]. Setting IV programs are non-residential public schools that
exclusively serve disabled students. Id. 12.
4Bahnson Aff. 3 (The Code of Conduct at issue has been used by MRVSEC since
1998. Searches at the Town Square Transition Center began in 2001.), 6 (In the past 10 years
since the searches at issue were initiated, there have been no objections by students or parents to
the search policy.).
5According to the Second Amended Complaint, the claims of Tristan and Trevin Hough
are being brought by and through their Guardian and Parent, Rayne Abbott . . . . Second Am.
Compl. at 1. Abbott has no claims of her own, and the Court therefore refers to Tristan and
Trevin as plaintiffs.
6The caption of the Second Amended Complaint erroneously lists Emily Trosen as a
plaintiff. Second Am. Compl. at 1. Emilys last name is Troseth. (Trosen is the last name
of one of the defendants.)
7Except as otherwise indicated, the facts about plaintiffs are taken from the joint
stipulation of facts filed by the parties at the Courts request. Stip. of Facts [Docket No. 185].
The Court appreciates the parties assistance in clarifying the facts.
-5-
The parties generally agree that plaintiffs were searched at the beginning of every school
day when they attended New Prague, Oasis, River Valley, and Town Square. These searches
have been conducted at Town Square since 2001 and at the other programs since 1998.4 The
searches are discussed in detail below, in connection with plaintiffs Fourth Amendment claims.
Plaintiffs Daniel Manthey, Tristan Hough, and Trevin Hough, who lived in the Shakopee
school district at the time of the events underlying this suit, are suing Shakopee and MRVSEC
and associated individual defendants.5 Plaintiffs Emily Troseth6 and David Moravec, who lived
outside of the Shakopee school district, are suing only MRVSEC and the MRVSEC-associated
individual defendants. The Court summarizes below the basic facts about each plaintiff.7 To
avoid confusion, the Court refers to plaintiffs by their first names (as do the parties).
-6-
A. Daniel
Daniel began attending junior high at River Valley in December 2003, when he was
fourteen years old. He attended River Valley for the rest of the 20032004 school year, except
for a short period in May 2004 when he attended the Carver-Scott Educational Cooperative. In
the fall of 2004, Daniel was incarcerated at the Hastings Juvenile Services Center. After he was
released, he attended senior high half-time at River Valley and half-time at Shakopee Senior
High from December 2004 through December 2005. Daniel then attended Shakopee Senior High
full-time from January 2006 through March 2007, and attended programs at Carver-Scott
Educational Cooperative thereafter. In total, then, Daniel attended River Valley programs for
about two years, from December 2003 to December 2005. Daniel turned eighteen in
January 2007.
An assessment of Daniels special-education needs conducted in January 2003 found that
he was eligible for special-education services based on an Other Health Disability. OConnor
Aff. [Docket No. 129] Ex. 8 at MRV00093. Specifically, the assessment concluded that Daniel
suffered dysthymia (a type of chronic depression) and attention-deficit hyperactivity disorder
(ADHD). Id. at MRV00092. Further, the assessment said that Daniel showed a pattern of
emotional or behavioral responses that are of significant concern to his mother and school staff
and that his inability to manage his behavior in the school setting is greatly impacting his
success . . . . Id. at MRV00093. According to the evaluation, when he was in the eighth grade,
Daniel had several serious behavior problems such as refusal to cooperate, verbal abuse,
disruptive behavior, pulling fire alarm with a false 911 call, pushing, shoving, scuffling and
physical assault. Id. at MRV00081.
8In its summary-judgment brief, MRVSEC bases its narrative about Daniel on hearsay
from various police reports and incident reports. MRVSEC Mem. Supp. Mot. S.J. at 4-6 [Docket
No. 124]. Some of this hearsay might (or might not) be admissible under an exception to the
hearsay rule, but MRVSEC has not even tried to establish the admissibility of the hearsay
evidence on which it relies. The Court has therefore ignored the various police reports and
incident reports cited by MRVSEC.
-7-
Subsequent individual education plans (IEPs) based on the January 2003 evaluation
identified Daniels primary disability as Emotional/Behavior Disorder. Mace Aff. [Docket
No. 122] Ex. 24 at 1 (IEP dated December 2003); Mace Aff. Ex. 26 at MRV00052 (IEP dated
December 2004); Mace Aff. Ex. 25 at 1 (IEP dated May 2004). An IEP dated November 17,
2005 and based on an evaluation prepared the same day identified Daniels primary disability as
Other Health Disabilities. Mace Aff. Ex. 27 at 1.
At the beginning of the ninth grade, before he enrolled in MRVSEC, Daniel was expelled
from two different schools. First, Daniel was expelled from Shakopee Junior High after he
brought a pocketknife to school. OConnor Aff. Ex. 3 (Daniel Dep.) at 13-15. He was then
expelled from the Carver-Scott Educational Cooperative after less than two weeks for threatening
to kill a fellow student. Id. at 23-24, 148. The police were called because of the threat, and
Daniel was charged in juvenile court. Id. at 24-25. Daniel has also been convicted as a juvenile
for assaulting or threatening family members. Id. at 39-40.
While at River Valley, Daniel was once found with a lighter in his pocket. Id. at 66. The
police were called to River Valley roughly five to ten times on Daniels account. Id. at 80-81,
85-86. When he was at Shakopee High School, the police were called once because of an alleged
threat made by Daniel. Daniel denied having threatened anyone, but he was convicted in juvenile
court. Id. at 111-12.8
9The record is unclear as to whether the Crossings program was always at Town
Square. It makes no practical difference, however, because it is undisputed that students in the
Crossings program were subject to the challenged searches, whether the program was located
at Town Square or elsewhere.
-8-
B. Tristan
Tristan participated in MRVSECs PLUS program at an ordinary middle school for most
of the 19971998 school year, when he was twelve years old. Toward the end of that school year
(in April 1998), Tristan began attending the PDD program at River Valley. He remained in that
program throughout the next two school years (19981999 and 19992000). Tristan began
splitting his time between the River Valley PDD program and Town Square in October 2000,
when he was fifteen. For most of the 20002001 school year, he attended the River Valley PDD
program from Monday to Thursday and attended MRVSECs Crossings program on Fridays.9
Toward the end of that school year (in April 2001), Tristan started attending the Crossings
program full-time. For the next four school years (that is, through April 2005), Tristan was
enrolled in Town Square or in the Crossings program. In April 2005, Tristan attended New
Prague.
Overall, Tristan was enrolled in a challenged MRVSEC program for roughly seven years,
from April 1998 through April 2005. Tristan turned eighteen in June 2003, and he received his
high-school diploma in June 2008.
According to an IEP prepared in May 2003 and based on an evaluation from
February 2001, Tristans primary disability was autism-spectrum disorder. OConnor Aff. Ex. 10
at MRV01540. A subsequent IEP prepared in September 2004 and based on an evaluation from
March 2004 listed Tristans primary disability as Emotional/Behavior Disorder. OConnor
-9-
Aff. Ex. 34 at MRV01828. And an IEP prepared in March 2006 and also based on the
March 2004 evaluation listed Tristans primary disability as autism-spectrum disorder and his
secondary disability as Specific Learning Disability. Kane Aff. [Docket No. 172] Ex. 16 at 1.
Tristans mother is his legal guardian.
While Tristan was at Town Square, the Shakopee police were called to the school roughly
twenty times on Tristans account. OConnor Aff. Ex. 9 (Tristan Dep.) at 63-68. According to
Tristan, these police calls were unjustified. Id. at 69 (I havent given them any reason [to call
the police], no.), 82 (Ive never given [the police] a reason to even show up at the school for
me.). Tristan has never been arrested, id. at 100, although he was hospitalized at least once
because of concerns that he was a danger to himself, id. at 68-69.
Tristan was suspended from Town Square five or more times. Id. at 119. On one
occasion, Tristan was suspended for bringing to school a Leatherman multi-tool (a type of tool
with an integrated knife, pliers, and screwdrivers, among other things). Id. at 134-35. On
another occasion, he was suspended after he gave his fanny pack to a teacher for safekeeping and
a search of the fanny pack turned up an arrowhead and nunchaku. Id. at 13638.
C. Trevin
Trevin, Tristans younger brother, attended middle school and high school at New Prague
from 1999 through May 2003. Trevin enrolled in the Town Square Potentials program at the
start of the 20032004 school year, when he was sixteen, and attended Town Square for three
years, through April 2006. Trevin transferred to a program at the Carver-Scott Education
Cooperative in May 2006 and attended that program until June 2008, when he graduated from
the program at age twenty.
-10-
According to a school-registration form dated September 2003, Trevin was
developmentally delayed and learning disabled, as well as having attention-deficit hyperactivity
disorder and panic attacks. Mace Aff. Ex. 5 at 1. IEPs dated January 2004 and January 2005,
both of which were based on an evaluation from April 2002, identified Trevins primary
disability as Emotional/Behavior Disorder. OConnor Aff. Ex. 12 at MRV00454; OConnor
Aff. Ex. 37 at MRV00219. A subsequent IEP dated June 2005, based on an evaluation from May
2005, identified Trevins primary disability as mild to moderate developmental cognitive delay.
Mace Aff. Ex. 12 at 1.
While attending Town Square, Trevin was suspended at least once, in January 2005, for
possessing a marijuana pipe. OConnor Aff. Ex. 11 (Trevin Dep.) at 12-13; Kane Aff. [Docket
No. 152] Ex. 12. The pipe was discovered when Trevin was searched by Town Square staff at
the beginning of the school day. Trevin Dep. at 15. Town Square staff called the police when
they found the pipe, and Trevin was cited for possession of drug paraphernalia in violation of
Minn. Stat. 152.092. Kane Aff. [Docket No. 152] Ex. 12 at 3. On three or more occasions,
Town Square staff discovered marijuana on Trevins person in the course of the routine searches.
Trevin Dep. at 20-21. On one of these occasions, Town Square staff called the Shakopee police,
who issued a citation to Trevin for possession of a small amount of marijuana. Kane Aff.
[Docket No. 152] Ex. 13.
D. Emily
Emily attended MRVSECs Oasis program beginning in April 1999, when she was
thirteen, through December 2000. Emily then transferred to New Prague, which she attended for
a year and a half, through the end of the 20012002 school year. For the next three school years,
-11-
from August 2002 through May 2005, Emily was enrolled in the Pathways program at Town
Square. She graduated from the program in May 2005, at age nineteen.
According to a neuropsychological evaluation completed in October 2000, Emily
exhibited difficulty sustaining attention, disinhibition, impulsivity, and mood instability.
OConnor Aff. Ex. 14 at MRV01098. The evaluator diagnosed her as having pervasive
developmental disorder and said that she would require more structure and external direction
than others her age due to her executive functioning deficits and her resulting difficulty selfdirecting
and self-monitoring. Id. at MRV01099. According to an IEP dated January 2004 and
based on an evaluation from June 2002, Emilys primary disability was Emotional/Behavior
Disorder. OConnor Aff. Ex. 15 at MRV00868.
E. David
David was enrolled in the Crossings II program at Town Square for the 20042005
school year. At the end of that year, when he was twenty, David graduated from the program.
David suffers from static encephelopathy and has speech problems as a result. OConnor Aff.
Ex. 18 at MRV02390-91. According to an IEP dated February 2005, Davids primary disability
was Physical Impairment. OConnor Aff. Ex. 36.
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A dispute over
a fact is material only if its resolution might affect the outcome of the suit under the governing
Plaintiffs assert, in the Second A 10 mended Complaint, a Fourth Amendment claim in
Count 1 and a separate claim for violations of 42 U.S.C. 1983 in Count 3. But it is blackletter
law that one cannot go into court and claim a violation of 1983 for 1983, by itself,
does not protect anyone against anything. Chapman v. Houston Welfare Rights Org., 441 U.S.
600, 617 (1979). The Court construes plaintiffs to raise in Count 1 a claim under 1983 for the
violation of their Fourth Amendment rights. Count 3, standing alone, fails to state a claim, and is
dismissed for that reason.
11Although plaintiffs initial complaint included official-capacity claims against some
individual defendants, the Second Amended Complaint asserts only individual-capacity claims
against the individual defendants.
-12-
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a
fact is genuine only if the evidence is such that a reasonable jury could return a verdict for
either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir. 2006). In
considering a motion for summary judgment, a court must view the evidence and the inferences
that may be reasonably drawn from the evidence in the light most favorable to the non-moving
party. Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir. 2004).
B. Fourth Amendment
Plaintiffs bring suit under 42 U.S.C. 1983, contending that their Fourth Amendment
rights were violated when they were subjected to daily searches at school.10 Because different
defendants raise different defenses, the Court first considers the claims against MRVSEC, then
the claims against Shakopee, and finally the claims against the individual defendants.11 Before
addressing the specific claims, though, the Court first summarizes the relevant law governing
school searches.
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1. The Constitutionality of School Searches
The Supreme Court held in New Jersey v. T.L.O. that the Fourth Amendments
prohibition on unreasonable searches and seizures applies to searches conducted by public
school officials. 469 U.S. 325, 333 (1985). Whether a school search is lawful under the Fourth
Amendment depend[s] simply on the reasonableness, under all the circumstances, of the
search. Id. at 341. School searches can be based on something less than probable cause to
believe that a crime has been committed or is underway. Id.
T.L.O. held that the constitutionality of school searches, like the constitutionality of any
search, should be assessed in two steps. Id. At the first step, the court asks whether the search
was justified at its inception; at the second step, the court asks whether the search was
reasonably related in scope to the circumstances which justified the interference in the first
place. Id. (quotations omitted). With respect to school searches in particular, T.L.O. said:
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.
Id. at 341-42.
T.L.O. expressly reserved the question whether and under what circumstances students
could be searched in the absence of individualized suspicion of wrongdoing. Id. at 342 n.8.
Since T.L.O., the Supreme Court has established that school searches do not always need to be
supported by individualized suspicion. Instead, suspicionless searches can be justified by
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special needs, beyond the normal need for law enforcement . . . . Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646, 653 (1995) (quotations omitted).
In Vernonia School District, the Court upheld a school districts policy of subjecting
student athletes to random, suspicionless drug tests. In holding the policy constitutionally
permissible, the Court found that the student athletes had a diminished expectation of privacy.
Id. at 657 ([S]tudents who voluntarily participate in school athletics have reason to expect
intrusions upon normal rights and privileges, including privacy.). The Court further found that
the challenged drug tests were not particularly invasive because the students provided urine
samples in private, the samples were tested only for drugs, and the test results were not turned
over to law enforcement authorities or used for any internal disciplinary function. Id. at 658;
see also id. at 658 n.2 (the search here is undertaken for prophylactic and distinctly nonpunitive
purposes). And the Court found that the schools interest in deterring student drug use was
important indeed, perhaps compelling . . . . Id. at 661. In addition, the Court pointed out
that the drug-testing policy was directed narrowly to drug use by student athletes, where the risk
of immediate physical harm to the drug user or those with whom he is playing his sport is
particularly high. Id. at 662. Finally, the Court found that the policy effectively addressed the
problem of drug use by student athletes by making sure that athletes do not use drugs. Id.
at 663. Given these findings about the schools drug-testing policy, the problem addressed by the
policy, and the students expectations of privacy, the Court held that the challenged drug test was
constitutionally permissible because it was a search that a reasonable guardian and tutor might
undertake. Id. at 665.
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More recently, the Supreme Court held that schools may conduct random, suspicionless
drug tests not only of student athletes (as in Vernonia School District) but also of any student
who participates in competitive extracurricular activities (such as, for instance, Future Farmers of
America, choir, and band), provided that the students participation in such activities is
conditioned on his consent to such drug testing. Bd. of Educ. of Indep. Sch. Dist. No. 92 of
Pottawotomie County v. Earls, 536 U.S. 822 (2002). In reaching this conclusion, the Court
weighed the degree of the invasion of students privacy by the drug tests against the significance
of the need for the drug-testing policy.
Earls reaffirmed that [a] students privacy interest is limited in a public school
environment where the State is responsible for maintaining discipline, health, and safety. Id.
at 830. Earls also rejected any distinction, for drug-testing purposes, between competitive, nonathletic
extracurricular activities and athletics, noting that students who participate in
competitive extracurricular activities voluntarily subject themselves to many of the same
intrusions on their privacy as do athletes. Id. at 831. Earls noted that competitive, non-athletic
extracurricular activities were subject to state regulation, and held that such regulation further
diminishes the expectation of privacy among schoolchildren. Id. at 832.
Further, Earls relied on the limited uses to which the test results are put in finding that
the tests did not significantly burden the students privacy. Id. at 834. Earls noted that the test
results were kept in confidential files separate from a students other educational records and
released to school personnel only on a need to know basis. Id. at 833. Earls also observed
that the test results were not turned over to any law enforcement authority and did not lead to
the imposition of discipline or have any academic consequences. Id.
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With respect to the need for the drug-testing policy, Earls found that the nationwide
drug epidemic makes the war against drugs a pressing concern in every school. Id. at 834.
More specifically, Earls observed that the school district presented specific evidence of drug
use in its schools. Id. But Earls rejected the argument that the school district was required to
show a particularized or pervasive drug problem to justify the challenged drug-testing policy.
Id. at 835. Rather, Earls held that the nationwide epidemic of drug use together with
evidence of increased drug use in the districts schools was a sufficient basis for the policy. Id.
at 836. Earls also found that the safety interest furthered by drug testing is undoubtedly
substantial for all children, athletes and nonathletes alike. Id. Based on all these factors, Earls
found the challenged drug-testing policy to be a reasonable means of furthering the School
Districts important interest in preventing and deterring drug use among its schoolchildren and
thus to comport with the Fourth Amendment. Id. at 838.
Vernonia School District and Earls, taken together, provide guidance for assessing the
constitutionality of a schools drug-testing policy. But the searches in Vernonia School District
and Earls were far removed from the searches conducted by MRVSEC. In Vernonia School
District and Earls, students were required to urinate into a specimen cup in private; their
backpacks and purses were not searched, they did not have to empty their pockets, they did not
have to remove any clothing, no one looked inside the clothing they kept on, and they were not
patted down.
In Doe v. Little Rock School District, 380 F.3d 349 (8th Cir. 2004), the Eighth Circuit
considered the constitutionality of school searches that were somewhat closer to the searches
conducted by MRVSEC. Doe involved a challenge to a school districts policy of conducting
12The first paragraph of Doe says that the case presents the question whether a school
districts practice of random, suspicionless searches of [students] persons and belongings by
school officials is unconstitutional. 380 F.3d at 351 (emphasis added). In the balance of the
opinion, however, Doe describes only searches of students belongings, not of their persons.
-17-
random, suspicionless searches of students belongings. 380 F.3d at 351. Specifically, the
school district would select a classroom at random and instruct the students in that room to empty
their pockets and place all of their belongings, including backpacks and purses, on their desks.
Id. Students were then instructed to leave the room. Id. With the students absent, school
personnel would search the belongings; the searches included rummaging through personal
belongings concealed within the backpacks and purses. Id. at 355. At no time were the students
themselves searched.12
In holding that the search policy violated the Fourth Amendment, the Eighth Circuit
conducted the balancing test called for in Vernonia School District and Earls and weighed three
factors: (1) the scope of the students legitimate expectation of privacy; (2) the nature of the
intrusion; and (3) the need for, and the effectiveness of, the intrusion in furthering the
government interest at stake. Id. at 352. Doe held: Because subjecting students to full-scale,
suspicionless searches eliminates virtually all of their privacy in their belongings, and there is no
evidence in the record of special circumstances that would justify so considerable an intrusion,
we hold that the search practice is unconstitutional. Id. at 352-53.
In reaching this conclusion, Doe acknowledged that all students have a diminished
expectation of privacy, and that some subgroups of students (such as student athletes) voluntarily
give up additional privacy in exchange for the right to participate in certain activities. Id. at 353-
54. But the entire student body was subject to the challenged searches, and thus Doe rejected the
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argument that the students had made a voluntary tradeoff of some of their privacy interests in
exchange for a benefit or privilege. Id. at 354. Doe also rejected the school boards argument
that the students expectation of privacy was diminished by a passage in the student handbook
which described the schools search policy and which said that students belongings could be
searched at any time. Id.
Doe then held that the challenged searches invade[] students privacy interests in a major
way. Id. at 354. Doe said that the students privacy interests . . . in the personal belongings
that they bring to school are wholly obliterated by the search practice at issue here . . . . Id.
at 355. Doe contrasted the challenged searches which it characterized as highly intrusive
with minimally intrusive and constitutionally reasonable administrative searches using dogs
or metal detectors. Id. Doe also noted that because any contraband turned up during the searches
was regularly turned over to law-enforcement officials and used in criminal proceedings, the
intrusion on students privacy was qualitatively more severe than that in Vernonia and Earls.
Id.
Doe also found that the school district had no evidence of any significant and immediate
difficulties sufficient to give rise to a special need for such an unprecedented practice that is,
the practice of random, suspicionless searches of students belongings. Id. at 356. The district
instead offered only generalized concerns about the existence of weapons and drugs in its
schools, without providing evidence about the magnitude of any problems with weapons or
drugs that it has actually experienced. Id. Doe held that such generalized evidence was not
enough. Rather, to justify the challenged random, suspicionless searches, the school was
required to make a specific showing . . . that not engaging in the searches would have
-19-
jeopardized some important governmental interest. Id. at 356. Put another way, because the
schools search policy effectively reduced the students privacy interests to nothing, the school
was required to show unique circumstances that would justify significant intrusions on those
privacy interests. Id. at 356-57. The districts mere assertion that there are substantial problems
associated with drugs and weapons in its schools was insufficient to establish the requisite
unique circumstances, and the search policy was therefore unconstitutional. Id. at 357.
2. MRVSEC
Although they quibble over some details, the parties generally agree that plaintiffs were
routinely searched at the beginning of every school day when they were enrolled in the New
Prague, Oasis, River Valley, and Town Square programs. MRVSEC contends that these routine
searches were consistent with the Fourth Amendment. After closely examining the record and
the three Doe factors, the Court disagrees.
a. Scope of the Legitimate Expectation of Privacy
The expectation of privacy of any student is limited in a public school environment
where the State is responsible for maintaining discipline, health, and safety. Earls, 536 U.S. at
830. MRVSEC argues that the expectation of privacy of a student who needs special education
is even more limited than the expectation of privacy of a student who does not. MRVSEC Mem.
Supp. Mot. S.J. (MRVSEC SJ Mem.) at 16-17 [Docket No. 124]. MRVSEC points out, for
example, that disabled students must disclose substantial personal information, including
information about their medical history, to participate in special-education programs. As a result,
MRVSEC contends, students with special needs, unlike students without special needs, have
little or no expectation of privacy at school.
-20-
The Court disagrees. Certainly, special-needs students must sacrifice, to a least a limited
extent, the privacy of medical and other information about their disabilities. And some students
with special needs may have to sacrifice other privacy interests; for example, a disabled student
who needs help going to the bathroom or with personal hygiene would necessarily have a
reduced expectation of privacy. But all special-education students do not forfeit all expectations
of privacy by virtue of being disabled. Students with disabilities remain members of the human
family; they generally have the same expectation of privacy in their bodies, and clothing, and
personal possessions as any other student. The fact that, say, the medical records of an autistic
student must be disclosed to a limited number of school officials does not mean that the autistic
student somehow gives up his bodily integrity.
MRVSEC argues that even if forfeiting privacy is not inherent in being a student with
special needs, such a student somehow waives his right to privacy when he chooses to accept
special-education services from a school district. But participating in a special-education
program is very different from participating in athletics (as in Vernonia School District) or in
competitive extracurricular activities (as in Earls). No student is entitled under the law to play
football or sing in the choir, but every disabled student is entitled under the law to specialeducation
services. Moreover, because school attendance is compulsory, a students participation
in a special-education program is not voluntary in the same way that participation in
extracurricular activities is voluntary. MRVSEC cannot reasonably claim that those subject to
search have made a voluntary tradeoff of some of their privacy interests in exchange for a benefit
or privilege. Doe, 380 F.3d at 354.
13The Town Square code of conduct for 20042005 provides: All students may be
searched when they enter the building. Students may be asked to turn out their pockets and staff
may also search bags and clothing. Kane Aff. [Docket No. 131] Ex. 1 at MRV01818. The
December and September 2000 codes of conduct for River Valley, New Prague, and the Oasis
program are more definite. They provide: All students may be searched when they enter the
building. Students may be asked to turn out their pockets and staff will search bags and
clothing. Id. at MRV00033 (River Valley Senior High); id. at MRV00029 (River Valley Junior
High); id. at MRV00025 (River Valley Crossings); id. at MRV00017 (New Prague); id. at
MRV00021 (Oasis).
Interestingly, a search policy adopted by MRVSEC in 2007 for MRVSEC as a whole is
much more limited. It provides: The personal possessions of students and/or a students person
may be searched when school officials have a reasonable suspicion that the search will uncover a
violation of law or school rules. The search will be reasonable in its scope and intrusiveness.
Kane Aff. [Docket No. 131] Ex. 2 at SD-517 to -518.
14The record contains no consent form for David. The record contains a consent form
signed in December 2003 by Daniel and his mother in which Daniel promises to obey all
guidelines and rules in accordance with the River Valley Junior High Code of Conduct while
being transported by school and staff automobile. OConnor Aff. Ex. 32 at MRV00122
(continued...)
-21-
The Court also rejects MRVSECs argument that its codes of conduct which inform
students that they may be searched diminish the students expectations of privacy.13 The
Eighth Circuit quickly dispatched this argument in Doe: [MRVSEC] may not deprive its
students of privacy expectations protected by the fourth amendment simply by announcing that
the expectations will no longer be honored. Id.
MRVSEC seems to argue, though, that special-needs students waive any expectation of
privacy when they sign a form acknowledging that they have received the code of conduct and
agree to abide by it. The Court disagrees. To begin with, the Court has grave doubts that an
acknowledgment signed by a disabled minor has any legal effect whatsoever. Even if the Courts
doubts are not well-founded, MRVSEC has provided acknowledgment forms for only some of
the plaintiffs and for only some of the relevant time periods.14 More important, MRVSEC has
14(...continued)
(emphasis added). This consent form relates only to Daniels conduct while riding in the above
said automobile. Id.
With respect to Town Square, the record contains Code of Conduct acknowledgment
forms signed by Trevin, Emily, and Tristan. By signing the form, the student affirms that he or
she understand[s] and agree[s] to follow the expectations of the program. See, e.g., OConnor
Aff. Ex. 33 at MRV00786. But the forms do not cover the entire relevant time period for any of
these three plaintiffs, and some forms were signed by plaintiffs alone when they were minors, not
by plaintiffs parents.
Specifically, with respect to Trevin, the record contains one Town Square
acknowledgment form signed by him in September 2004, when he was seventeen, and initialed
by an unidentified person. OConnor Aff. Ex. 31 at MRV00408. But Trevin started attending
Town Square in August 2003, and he attended New Prague before then. The record does not
contain a New Prague acknowledgment form signed by Trevin.
With respect to Emily, the record contains one Town Square acknowledgment form
signed by her in August 2004, when she was nineteen. OConnor Aff. Ex. 33 at MRV00786.
But Emily started attending Town Square in August 2002 and attended New Prague and the
Oasis program before then. The record does not contain acknowledgment forms from Emily for
either of these programs.
Finally, with respect to Tristan, the record contains Town Square acknowledgment forms
dated August 2002 and August 2004 and signed by both Tristan and his mother. OConnor Aff.
Ex. 30 at MRV01503, MRV01822. But Tristan started attending Town Square part-time in
October 2000 and full-time in April 2001. And he attended River Valley full-time from April
1998 to May 2000, and part-time from October 2000 to April 2001. The record contains no
River Valley acknowledgment forms signed by Tristan. But the record does contain a New
Prague acknowledgment form signed by Tristan and his mother in April 2005, which is the only
time that Tristan attended New Prague. Id. at MRV02119.
-22-
not established that it may legitimately condition students participation in its programs on their
agreement to the search conditions found in the codes of conduct. As noted above, school
attendance is compulsory, and students have a right to special-education services. Thus, a
students consent to a search policy like MRVSECs is illusory unless the student has a genuine
alternative that is, unless the student has a choice of at least two special-education programs
of relatively equal quality and accessibility, one of which has a search condition, and one of
which does not.
15Kermes asserts in his affidavit: MRVSEC is one special education option among many
available to students who are residents of MRVSEC member districts who qualify for special
educational services. Comparable programs of equivalent quality are always available for
students who elect, for whatever reason, not to attend MRVSEC. Kermes Aff. 6. Notably
absent from Kermess affidavit, however, is any assertion about whether those comparable
programs have a search policy like MRVSECs.
16Bahnson described her research in connection with developing the challenged search
policies as follows:
We visited other separate site programs in the metro area and kind
of outlying ones, and I went with the team, and we walked through,
looked at their documentation, saw how they set things up. We
discussed then what we thought would be workable and still
consistent with our philosophy and how we wanted to run the
building and we took those things.
Bahnson Dep. at 15. Bahnson said that two special-education programs that she visited in the
19971998 school year, Thompson Heights in South St. Paul and Crossroads in St. Francis, were
then doing daily searches like the ones challenged in this case. Id. at 27-29.
-23-
Although MRVSEC asserted at the summary-judgment hearing that students do have
such a choice, the record contains almost no evidence supporting MRVSECs assertion.15
Indeed, the sparse evidence in the record suggests that similar special-education programs have
search conditions like MRVSECs.16 And even if equivalent programs without search conditions
exist, whether MRVSEC could require students to consent to its search policy as a condition of
enrollment in MRVSEC programs would be a difficult legal question one that the Court need
not address given the near-total lack of evidence about the quality, accessibility, and search
policies of alternative programs, and given the paucity of evidence about whether plaintiffs ever
in fact gave effective consent to the searches.
In sum, the Court finds that, while the legitimate expectation of privacy retained by
special-education students falls below the already limited baseline level of privacy afforded to
public school students generally, Doe, 380 F.3d at 353-54, special-education students
The cited excerpts from Bahnsons deposition 17 are attached to the first Kane Affidavit
[Docket No. 131] as a labeled, unnumbered exhibit.
18At her deposition, Trosen and plaintiffs counsel had the following exchange about the
searches at the Town Square programs:
Q: What youre saying is children were asked to turn things
over; is that correct?
A: Yes.
Q: And that was the extent of it? Pockets werent turned
inside out? Shoes and socks werent taken off? Bags
werent opened and looked into?
A: No. All of those things happened. I think I said bags were
looked into, but, you know, every day I dont think it was
the exact search or the exact same person, but shoes were
not always taken off. Pockets, kids always sort of just
automatically, if they had a coat with 16 pockets on it, we
(continued...)
-24-
nevertheless retain some legitimate expectation of privacy in their bodies, clothing, and personal
possessions.
b. Character of the Intrusion
MRVSEC argues that the searches were minimally intrusive because they were
administrative and predictable: every student was searched before entering the building.
MRVSEC SJ Mem. at 19. MRVSEC also asserts that the fruits of the search[es] were only used
for internal, regulatory purposes and were not turned over to the police. Id. at 18.
MRVSEC dramatically underestimates the intrusiveness of the searches. Although
different witnesses described the searches somewhat differently, MRVSEC concedes that, as a
general rule, students were asked to remove their shoes and socks, turn down the waistband of
their pants, empty their pockets, and (at least sometimes) submit to a patdown. MRVSEC SJ
Mem. at 19; Bahnson Dep. at 25-26;17 Trosen Dep. at 33-36;18 see also Daniel Dep. at 64-65.19
18(...continued)
might just take their coat off and let you just feel the coat.
But pulling the pockets out was just a pretty routine thing
for the students. Or they would say, I dont have anything
in my pockets today. But on a daily basis in terms of
physically, anybody physically patting somebody down,
that wasnt a regular thing.
Q: But it did happen?
A: Oh, yes.
Q: And this happened to all the children that came into the
program?
A: Yes.
Trosen Dep. at 35-36. The cited excerpts from Trosens deposition are attached to the first Kane
Affidavit [Docket No. 131] as a labeled, unnumbered exhibit.
19Daniel and MRVSECs counsel had the following exchange at Daniels deposition:
Q: Can you describe [the search]?
A: I guess you could say hed pat you down or whatever and
make you turn your pockets inside out. If you were wearing
like a sweatshirt or whatever, hed check your hood, and
hed check the pocket that sits in front. Hed make you
take off your shoes or whatever, and youd pound them on
the ground so if there was anything in there, I guess it
would fall out or whatever. But yeah, he would pat you
down or whatever and search us that way.
. . .
Q: The teacher would put hands on you?
A: Yes.
Q: And what would they pat down?
A: Arms and legs. And then they would take your waistline
where your pants are, and they would like shake it or
whatever.
Daniel Dep. at 64-65.
-25-
Further, one of MRVSECs own witnesses, Barbara Bahnson, testified that students must pull up
their pant legs if they are wearing baggy pants, and that students backpacks and purses are
The cited excerpts from Olsons deposition 20 are attached to the first Kane Affidavit
[Docket No. 131] as an unnumbered exhibit labeled LPO Depo.
21According to the Town Square code of conduct for 20042005, if a student brings a
weapon to school, [p]arents will be notified and depending on the circumstances, legal action
may be taken. Kane Aff. [Docket No. 131] Ex. 1 at MRV01819. And with respect to alcohol or
drugs, [i]f a student is found to be in possession or suspected possession of alcohol or drugs, the
items will be confiscated, [and] law enforcement will be notified along with parents.
Id. at MRV01820 (emphasis added).
The River Valley Senior High code of conduct dated December 2000 uses somewhat
stronger language. It provides that if a student brings a weapon to school, [p]arents will be
notified and depending on the circumstances, consequences in the program and legal action will
be taken. Id. at MRV00034 (emphasis added). With respect to drugs, the code of conduct
provides: If a student is found to be in possession or suspected to be in possession of alcohol or
drugs, the items will be confiscated and parents will be notified. Law enforcement will be
notified. Id. (emphasis added). The codes of conduct for several other MRVSEC programs
dated September 2000 have similar provisions. Id. at MRV00030 (River Valley Junior High);
MRV00026 (River Valley Crossings program); MRV00022 (River Valley Oasis program);
MRV00018 (New Prague Education Center).
-26-
searched if the students want to bring them into class. Bahnson Dep. at 25-26. Other MRVSEC
witnesses testified that backpacks and purses are routinely searched. Olson Dep. at 60;20 Trosen
Dep. at 33 (The staff may open the purse and look in the purse or open a backpack.).
In addition, MRVSEC distorts the record when it says that the results of the searches
were not shared with the police. As a matter of policy, MRVSECs codes of conduct for the
New Prague, Oasis, River Valley, and Town Square programs expressly require that drugs or
weapons found during a search be turned over to the police.21 And as a matter of practice,
plaintiffs have provided evidence that on at least two occasions, drugs or drug paraphernalia
found by the school during searches of Trevin were turned over to the police, who issued
citations to Trevin for breaking the law. Kane Aff. [Docket No. 152] Exs. 12-13; Trevin Dep.
at 13-14. Finally, MRVSECs witnesses confirmed that all drugs, and some weapons, found
22MRVSECs curious argument that being searched every day is less intrusive then being
searched at random once in a while defies common sense.
-27-
during a search would be turned over to the police. Bahnson Dep. at 26 (If [something found
during a search] was illegal like it was drugs or a knife or something, we would call parents. We
would call the police.); Trosen Dep. at 39 (My next step [if I found marijuana during a search]
would be to call the police liaison.).
An otherwise valid administrative search for instance, a search for weapons with a
metal detector will not necessarily become invalid just because the results of the search are
turned over to the police. See New York v. Burger, 482 U.S. 691, 717 (1987) (holding that an
otherwise valid administrative search is not rendered illegal by the fact that the inspecting
officer has the power to arrest individuals for crimes uncovered during the search but unrelated
to the reason for the search); C.N.H. v. Florida, 927 So. 2d 1, 3 (Fla. Ct. App. 2006) (citing
Burger). But, as in Doe, defendants policy of turning contraband over to the police increases the
intrusiveness of the challenged searches.
On the whole, MRVSECs searches were extraordinarily intrusive. As in Doe, the
students backpacks and purses, and the contents of their pockets, were searched. Doe found
such searches to be highly intrusive and characterized them as wholly obliterating the
students privacy interests . . . in the personal belongings that they bring to school. Id. at 355.
But whereas Doe involved occasional searches of the possessions of randomly selected students,
MRVSEC searched the possessions of every student every day. Thus, even if MRVSEC had
stopped at searching possessions, its searches would have been far more intrusive than the
highly intrusive searches struck down in Doe.22
-28-
But MRVSEC did not stop at searching possessions. MRVSEC searched people. The
students not only had their backpacks, purses, and the contents of their pockets searched, but
students were required to partially disrobe (i.e., to take off their shoes and socks, and sometimes
coats, sweaters, or sweatshirts) and to permit school employees to look inside their clothes (i.e.,
under their waistbands and pant legs). And, most importantly, the students were touched. Every
day, every student either was patted down or was at least subject to being patted down.
MRVSECs searches were as intrusive as any government search that any American
citizen is likely to experience in her lifetime, unless she is incarcerated. Anyone who has been
thoroughly searched at an airport who has had her arms, legs, chest, and back touched by a
stranger, and then had her most personal possessions pawed through knows exactly how
intrusive such a search is. The MRVSEC searches were even more intrusive, and every student
experienced them every day.
In sum, the Court concludes that the MRVSEC searches were extraordinarily intrusive
far more intrusive than the searches approved in Vernonia School District and Earls, and far
more intrusive than the searches disapproved in Doe. In none of those cases did school officials,
without individualized suspicion, force students to take off clothing, look inside of students
clothing, or touch students. Indeed, with the exception of one case (discussed below) involving
students who had committed crimes and were attending what was essentially a correctional
facility, defendants have not cited a single case in which a court approved suspicionless searches
of students that were nearly as intrusive as MRVSECs.
-29-
c. Nature and Immediacy of the Government Concern
MRVSEC contends that its searches were justified by compelling government interests.
Specifically, MRVSEC contends that its students are cognitively impaired, emotionally
disturbed, and suffer an extensive range of developmental disorders and therefore by definition
require quiet, controlled, restrictive environments in which the challenges presented by these
disorders can be overcome. Id. at 21-22. According to MRVSEC, its searches were conducted
to remove distractions, create a calm and focused learning environment wherein students feel
safe, and attempt to teach these students who have been unsuccessful in numerous other
education settings. Id. at 22.
Although MRVSEC offers little evidence of the fact, the Court is willing to assume that
MRVSECs students do indeed have a special need for a safe and distraction-free environment.
But this need cannot by itself justify the extremely intrusive searches that are at issue in
this case.
No one disputes that MRVSEC can legitimately ban from the classroom things like iPods,
cell phones, lighters, cigarettes, and knives the dangerous and distracting items that it
contends its search policy is directed at. MRVSEC SJ Mem. at 22. Thus, MRVSEC can ask its
students not to bring such items to school in the first place, or to place them with school staff for
safekeeping during the day if students do bring them to school. Indeed, MRVSEC does just this,
and plaintiffs have not challenged MRVSECs policy requiring that such items be turned over at
the schoolhouse door.
If students voluntarily comply with a requirement that they leave dangerous or distracting
items at home, or check them with staff, then MRVSECs stated goal of maintaining a safe,
-30-
distraction-free classroom environment will be met. Accordingly, MRVSECs search policy can
be justified only to the extent that students cannot be expected to voluntarily comply with the
MRVSEC rules about dangerous and distracting items.
Although MRVSEC has evidence that three of the five plaintiffs have, in fact, brought to
school forbidden items that have been discovered during searches, this evidence is insufficient to
justify an intrusive search of every student every day. MRVSEC has given the Court no reason
to believe that far less intrusive searches would not adequately ensure compliance with the
guidelines about dangerous and distracting items. Virtually every item that school officials have
identified as being dangerous or distracting (guns, knives, cell phones, iPods, and lighters), as
well as virtually every dangerous or distracting item that any plaintiff has ever brought to school
(Leatherman multi-tools, nunchaku, and lighters), could be detected with a metal detector. Such
screening would be far less intrusive than the searches MRVSEC now employs and, quite
possibly, would be more effective at detecting dangerous or distracting items. As the Eighth
Circuit has pointed out: [D]ogs and magnetometers are often employed in conducting
constitutionally reasonable large-scale administrative searches precisely because they are
minimally intrusive, and provide an effective means for adducing the requisite degree of
individualized suspicion to conduct further, more intrusive searches. Doe, 380 F.3d at 355.
The search policy could be narrowed in other respects. The policy could be changed so
that illegal items that are found are not required to be turned over to law enforcement. Students
could be given the option of checking backpacks, purses, and coats with school officials at the
beginning of the day in lieu of having those items searched. And more thorough searches could
be reserved for students who set off a metal detector or otherwise give school officials some
23In cases in which school searches for weapons have been upheld against constitutional
challenges, schools have generally used stationary or handheld metal detectors to do screening
searches, and only searched students physically if the metal detector was activated. See, e.g., In
re Latasha W., 70 Cal. Rptr. 2d 886, 887 (Cal. Ct. App. 1998) (Students were not touched
during the search, and were required to open pockets or jackets only if they triggered the metal
detector.); Florida v. J.A., 679 So. 2d 316, 318 (Fla. Ct. App. 1996) (The students are scanned
with the wand by a team member of the same sex. If the wand indicates the presence of metal
the student is asked to remove any object in that area which may be triggering the device. If the
wand again alerts to the presence of metal, the area is patted down. All coats, bags and other
items are also scanned with the wand. If the wand alerts, the team member looks inside the item
for weapons.); In re S.S., 680 A.2d 1172, 1173 (Pa. Super. Ct. 1996) (holding that the Fourth
Amendment was not violated by a search in which students were scanned with a metal detector
and students coats and belongings, after being placed on a table, were patted down); People v.
Pruitt, 662 N.E.2d 540, 547 (Ill. Ct. App. 1996) (in holding that Fourth Amendment was not
violated by requiring students to walk through metal detectors, finding that [t]he intrusion was
minimal, not involving any physical touching until the metal detector reacted); People v. Dukes,
580 N.Y.S.2d 850, 851 (N.Y. Crim. Ct. 1992) ([W]hen a students bag or parcel activates the
scanning device [i.e., a handheld metal detector], the officer is to request the student to open the
container in question so that the officer can look for weapons. If a students body activates the
device, the officer first repeats the request to remove metal objects. A second scan is then
conducted and if the device is activated again, the officer escorts the student to a private area
where a more thorough search is conducted.).
-31-
reason to suspect that they are carrying dangerous or disruptive items.23 MRVSEC has submitted
no evidence that these or other less intrusive alternatives would not adequately accomplish the
purposes of the intrusive searches that MRVSEC now employs.
Finally, it is important to note that the distraction-free-classroom rationale advanced by
MRVSEC in this litigation does not appear to have been the actual rationale behind the adoption
of the search policy. Rather, MRVSECs witnesses testified that the search policy was adopted,
at least in part, not for educational purposes, but for punitive and public-relations ones. For
instance, Olson, MRVSECs former director, testified that she discussed the Town Square code
of conduct with the school board [b]ecause there were safety concerns related to having it [i.e.,
-32-
the Town Square program] in a mall and how we could help the community feel good about it.
Olson Dep. at 52-53.
With respect to the search policies at the other MRVSEC programs, Bahnson testified
that MRVSEC adopted the policies after learning that similar special-education programs in the
area had similar policies. Bahnson Dep. at 27-29. She testified further that, in her opinion, the
school had reasonable suspicion to routinely search children in MRVSEC programs based on
[t]he fact that theyre already in an off site [emotional-behavior disorder] program, and that
many of them have in their history brought the reason theyre in the building is because
theyve been expelled from their school or brought things to their school. Id. at 34-35.
Implicitly recognizing that this punitive, suspicion-based rationale is inconsistent with
MRVSECs position in this litigation about the purpose of the searches, Bahnson stated in an
affidavit filed with MRVSECs summary-judgment papers that MRVSEC had no policy
requiring that students are to be administratively searched before entering the building only upon
reasonable suspicion. Bahnson Aff. 4. But a party cannot defeat summary judgment with an
affidavit that contradicts earlier sworn testimony. Camfield Tires, Inc. v. Michelin Tire Corp.,
719 F.2d 1361, 1365 (8th Cir. 1983) (If a party who has been examined at length on deposition
could raise an issue of fact simply by submitting an affidavit contradicting his own earlier
testimony, this would greatly diminish the utility of summary judgment as a procedure for
screening out sham issues of fact.); see also Sandoval v. Am. Bldg. Maint. Indus., 552
F. Supp. 2d 867, 876 n.3 (D. Minn. 2008) (citing Camfield Tires).
MRVSEC programs are educational, not punitive. Bahnson asserts that school districts
may . . . refer a student with a disability who has had a weapons or drug violation at school to a
24For example: Tristans 2003 IEP justified his placement in a setting IV program as
follows:
Tristan needs a small, predictable setting with few distractions and
transitions. He needs a setting that is responsive to his immediate
needs for problem-solving, behavior, and safety. Due to his unique
needs the IEP team feels that a community based setting with
opportunity to practice skills in applicable environments will best
meet Tristans needs at this time.
OConnor Aff. Ex. 10 at MRV01545.
Trevins 2004 IEP justified his placement in a setting IV program as follows:
Trevin needs small group/individual educational instruction for
functional reading, math, written language, and daily living skills.
He needs social skills instruction and the chance to practice what
he has learned in a safe environment. . . . Trevin is transported in a
special education van because his school district does not offer the
type of education he needs. Trevin needs shortened assignments.
He also needs more in class time to complete assignments.
OConnor Aff. Ex. 12 at MRV00464-65.
Emilys 2004 IEP justified her placement in a setting IV program as follows:
Because of the need for structure, supervision, individualized
academic support and flexibility, therapeutic support, and
immediate feedback, the team agrees that the least restrictive
setting for Emily is a small, nurturing setting. This environment
provides a more individualized, confidential, and responsive
learning program. The team agrees that support through special
(continued...)
-33-
MRVSEC level IV program as a less restrictive alternative to a homebound placement, Bahnson
Aff. 19, but this vague assertion does not transform an educational program into a punitive one.
Indeed, when asked at her deposition how many students were in MRVSEC programs because
they had been expelled from a previous school or had brought a dangerous weapon to school,
Bahnson could not answer. Bahnson Dep. at 35. Moreover, the IEPs for plaintiffs do not
indicate that any of them were sent to MRVSEC because of drug or weapons violations at a
previous school.24
24(...continued)
education in a general education building would not meet Emilys
needs because of the high degree of structure, supervision,
individualized instruction, and support needed.
OConnor Aff. Ex. 15 at MRV00876.
Davids 2005 IEP explained his placement as follows:
David is currently attending [Town Square] Crossings II a
transition program. David needs an environment that will allow
him to learn the skills necessary to be successful in adulthood.
David needs a small group setting.
OConnor Aff. Ex. 36 at MRV02365.
Only Daniels placement in a MRVSEC program seems to have been, at least arguably,
disciplinary. Daniels 2004 IEP explains his placement this way:
The team determined that behavior does interfere with Dannys
ability to access general education and impact his educational
progress. In developing an educational program, positive,
proactive strategies will be put in place to maximize his
opportunity to have access to general education curriculum and
extra-curricular activities. A school-based program with 4 hours a
day of support from special education was not sufficient for Danny
to make adequate progress academically or behaviorally. An
alternative school was tried but he was removed from there after
less than a week for aggressive and unsafe behaviors. A separate
site, special education program can provide the support and
interventions he needs to be successful. The team agreed that a
class at Shakopee High School for one hour a day will be
scheduled in the fall of 2004.
OConnor Aff. Ex. 35 at MRV00047.
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The fact that MRVSEC programs are educational, not punitive, is a crucial distinction
between this case and a case on which MRVSEC relies heavily, C.N.H. v. Florida, 927 So. 2d 1
(Fla. Ct. App. 2006). C.N.H. held that a schools policy of conducting daily suspicionless patdown
searches of every student every morning did not violate the Fourth Amendment. Id. at 2.
But the school in C.N.H. was an alternative school to which students were sent before they are
actually confined and in lieu of being confined, and [v]irtually all of the students were there
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by court order and were not eligible to attend ordinary public schools. Id. The students were
individuals who had already been involved in criminal offenses, and who were receiving a last
chance to redeem themselves. Id. at 5.
There is no evidence that MRVSEC students attend its programs in lieu of juvenile
detention. And there is insufficient evidence that MRVSEC students have such significant
disciplinary problems that every one of them must be intrusively searched every day as a means
of maintaining a safe and distraction-free classroom environment. Although the Fourth
Amendment does not require a school to adopt the least-intrusive means of searching its students,
it does require that searches be reasonable. See Earls, 536 U.S. at 837 ([R]easonableness under
the Fourth Amendment does not require employing the least intrusive means . . . .). MRVSECs
policy of daily, suspicionless searches is not reasonable in light of the evidence offered by
MRVSEC in this case, and accordingly it does not pass constitutional muster under T.L.O.,
Vernonia School District, Earls, and Doe.
3. Shakopee
MRVSEC has violated plaintiffs Fourth Amendment rights, but it does not necessarily
follow that Shakopee has also done so. Apart from asserting that the challenged searches were
lawful an argument that the Court has already rejected Shakopee contends that plaintiffs
failed to exhaust their remedies, and that Shakopee is not liable for any Fourth Amendment
violations because such violations did not result from an official custom or policy of Shakopee.
The Court rejects the exhaustion defense, but agrees that Shakopee is entitled to summary
judgment because no custom or policy of Shakopee caused the violations of plaintiffs Fourth
Amendment rights.
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a. Exhaustion
Shakopee contends that all of plaintiffs federal claims, including their claims under
1983 for violation of the Fourth Amendment, are barred because plaintiffs failed to exhaust
their administrative remedies as required by the Individuals with Disabilities Education Act
(IDEA). Mem. Supp. Shakopee Defs. Mot. S.J. (Shakopee SJ Mem.) at 9-13 [Docket
No. 120]. Section 1983 itself does not, of course, impose an exhaustion requirement. See Patsy
v. Bd. of Regents of Fla., 457 U.S. 496, 515-16 (1982); see also Porter v. Nussle, 534 U.S. 516,
523 (2002) (citing Patsy). But IDEA requires plaintiffs suing under other federal statutes and
seeking relief that is also available under IDEA to exhaust the administrative remedies
provided in IDEA. 20 U.S.C. 1415(l). See, e.g., AP v. Anoka-Hennepin Indep. Sch. Dist.
No. 11, 538 F. Supp. 2d 1125, 1152 (D. Minn. 2008); S.A.S. v. Hibbing Pub. Schs., No. 04-3204
(JRT/RLE), 2005 U.S. Dist. LEXIS 13437, at *6 (D. Minn. July 1, 2005) (This exhaustion
requirement [under the IDEA] also applies if the parent chooses to bring an IDEA type claim
under another statute, such as the ADA or Section 504, or the Constitution.).
The Court finds, however, that plaintiffs claims with respect to the search policy are not
IDEA-type claims. Such claims are ones that relate to a schools failure to provide a free
appropriate public education. AP, 538 F. Supp. 2d at 1152. It is true that some language in
plaintiffs complaint suggests that they are challenging the quality of their education. For
instance, plaintiffs assert that they were subjected to a hostile and abusive educational
environment as a result of the searches and seizures. Second Am. Compl. 43. But the core of
plaintiffs Fourth Amendment claim is the contention that they were searched unlawfully;
plaintiffs assertions with respect to the effect of the searches on their education are peripheral to
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this claim. Although plaintiffs complaint is less clear than it might be, and blurs the lines
between different types of claims, plaintiffs Fourth Amendment claim is a typical challenge to a
school search policy. See, e.g., C.N.H., 927 So. 2d 1; Doe, 380 F.3d 349; In re Latasha W., 70
Cal. Rptr. 2d 886 (Cal. Ct. App. 1998); Florida v. J.A., 679 So. 2d 316 (Fla. Ct. App. 1996); In
re S.S., 680 A.2d 1172 (Pa. Super. Ct. 1996). The mere fact that plaintiffs are disabled and
receive special-education services does not transform their Fourth Amendment challenge into an
IDEA-type claim, notwithstanding the imprecise drafting of the complaint.
b. Monell Liability
Under 1983, government entities are not vicariously liable for the constitutional
violations of their employees. Rather, a government agency can be held liable under 1983 only
if the plaintiffs injury results from execution of a governments policy or custom . . . . Monell
v. Dept of Soc. Servs., 436 U.S. 658, 694 (1978); see also Collins v. City of Harker Heights, 503
U.S. 115, 120-21 (1992) (citing Monell).
The challenged searches are conducted by MRVSEC employees pursuant to MRVSEC
policies. Shakopee is one of several school districts with a representative on MRVSECs board,
but Shakopees participation on that board is not a basis for imputing MRVSECs policies
directly to Shakopee, any more than the participation of, say, Prior Lake-Savage or Montgomery-
Lonsdale makes those districts liable to plaintiffs. Indeed, plaintiffs do not even attempt, in their
summary-judgment brief, to explain how Shakopee as opposed to MRVSEC is liable under
Monell for the searches. Pl. Mem. Supp. Mot. S.J. (Pl. SJ Mem.) at 13 [Docket No. 128] (The
MRVSEC Defendants . . . have admitted that they instituted a custom or policy of conducting
daily searches of students with disabilities . . . .) (emphasis added).
25In discussing Shakopees liability under Monell, plaintiffs assert in their brief opposing
summary judgment: Appellees have admitted that they instituted a custom or policy of
depriving disabled students of the accommodation and related services of transportation when
such children were ineligible to receive ESY services. Pl. Shakopee SJ Opp. at 12. Apparently
plaintiffs counsel recycled material from an appellate brief in an unrelated case for this section
of her brief. This is further evidence that plaintiffs do not have a serious argument that a custom
or policy of Shakopees supports a 1983 claim against it.
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In responding to Shakopees summary-judgment brief, plaintiffs suggest that Shakopees
liability under Monell arises from its failure to take[] any action to investigate the search policy
and procedure at the MRVSEC segregated facilities where the Shakopee Defendants continue to
refer special needs students. Pl. Mem. Opp. Shakopee Defs. Mot. S.J. (Pl. Shakopee SJ Opp.)
at 12-13 [Docket No. 155]. Thus, it appears that plaintiffs seek to hold Shakopee liable for its
failure to investigate MRVSECs search policy as if MRVSECs policy would have become
Shakopees once Shakopee was on notice of it.25
Whether and to what extent Shakopee knew about MRVSECs search policy is unclear.
Compare Shakopee SJ Mem. at 1819 with Pl. Shakopee SJ Opp. at 2-3. But even if Shakopee
knew of the search policy, the Court is not persuaded that such knowledge would mean that
Shakopee itself had adopted a policy or custom that caused plaintiffs injuries. The unlawful
searches were carried out by MRVSEC employees pursuant to MRVSEC policies, and Shakopee
controls neither MRVSEC nor its employees. Plaintiffs have not pointed to a single case in
which an entity like Shakopee has been found liable under 1983 for the actions of a separate
entity that it participates in but does not control. The Court is unwilling to extend 1983
liability so far.
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4. Individual Defendants
Both Shakopee and MRVSEC argue that their employees are not liable in their individual
capacity for any Fourth Amendment violations because the employees are entitled to qualified
immunity. The Court agrees. Because qualified immunity defeats plaintiffs claims against the
individual defendants, the Court need not address the individual defendants other arguments.
Qualified immunity shields government agents from liability as long as the agents
actions are objectively reasonable in light of clearly established legal principles. Anderson v.
Creighton, 483 U.S. 635, 639-40 (1987); see also Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled in part, Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). Put another way, a
government agent is entitled to qualified immunity unless the right that he violated was so
clearly established at the time that a reasonable official would have understood that his conduct
was unlawful under the circumstances[.] Kahle v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007).
As discussed above, the undisputed facts establish that MRVSEC violated plaintiffs
Fourth Amendment right to be free of unreasonable searches. But the Court does not believe that
the law with respect to school searches was so unequivocal that the searches were objectively
unreasonable in light of clearly established legal principles.
Under Doe, suspicionless searches like those challenged in this case are plainly
unconstitutional in the ordinary school setting. But MRVSEC programs are not ordinary school
settings; they serve only special-education students, and those students receive services that are
not provided or are provided to only a small minority of students in ordinary schools. In
C.N.H. v. Florida, discussed above, suspicionless searches like those challenged in this case were
upheld in the context of an alternative school for students who would otherwise have been
26In Count Two of their complaint, plaintiffs allege a claim for violation of their dueprocess
rights under the Minnesota Constitution. The Shakopee defendants properly point out
that there is no private right of action under the Minnesota Constitution. Shakopee SJ Mem.
at 44; Guite v. Wright, 976 F. Supp. 866, 871 (D. Minn. 1997). Plaintiffs did not bother to
respond to this argument, nor did plaintiffs voluntarily dismiss this claim, despite being urged by
the Court to pare down their complaint. The Court dismisses plaintiffs claims under the
Minnesota Constitution.
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confined. 927 So. 2d at 2. While the Court finds C.N.H. distinguishable, C.N.H. does provide
some support for plaintiffs position that the challenged MRVSEC searches were constitutional.
Under the circumstances of this case, it was not objectively unreasonable although it was
incorrect for defendants to conclude that sufficient special circumstances existed to justify
MRVSECs search policy under the Fourth Amendment.
C. The Fourteenth Amendments Due Process Clause26
1. Procedural Due Process
The Due Process Clause of the Fourteenth Amendment forbids states to deprive any
person of life, liberty, or property, without due process of law . . . . U.S. Const. amend. XIV,
1. To prevail on their procedural due-process claim, plaintiffs must establish two things. First,
they must show that they were deprived of a life, liberty, or property interest protected by the
Fourteenth Amendment. Second, they must show that the state deprived them of that interest
without providing adequate process. See Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 902
(8th Cir. 2000).
Although plaintiffs use the language of procedural due process in their complaint and
their briefs, plaintiffs have not given any indication of how their procedural rights as opposed
to their substantive right to be free of unreasonable searches were violated. As MRVSEC
points out, plaintiffs have not identified any process that they were deprived of and that they
27In their complaint, plaintiffs also asked the Court to enjoin defendants from conducting
further warrantless, suspicionless, unreasonable search[es] and seizures without probable cause
of all students with disabilities attending in any and all special education programs within the
Defendants schools[.] Second Am. Compl. VI (Prayer for Relief) 1. Plaintiffs have since
acknowledged that because they are no longer eligible to attend MRVSEC programs, they are not
entitled to injunctive relief. Pl. MRVSEC SJ Opp. at 27.
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wanted MRVSEC to provide before searching them. See MRVSEC SJ Mem. at 24. Plaintiffs
respond to this argument by asserting merely that they were not afforded any procedural
avenue . . . to challenge the suspicionless searches. Pl. Mem. Opp. MRVSEC Defs. Mot. S.J.
(Pl. MRVSEC SJ Opp.) at 11 [Docket No. 150].
Plaintiffs entire case, however, proceeds from the premise that the searches should not
have been conducted at all. Plaintiffs do not contend that the searches might have been
permissible if MRVSEC had followed a particular procedure with respect to each student before
searching him or her, nor do they request a procedural remedy. Instead, plaintiffs ask the Court
to [d]eclare that Defendants actions deprived the plaintiffs of their right to be free from
warrantless, suspicionless, unreasonable search[es] and seizures in violation of the Fourth and
Fourteenth Amendments to the United States Constitution. Second Am. Compl. VI (Prayer
for Relief) 3.27
The Eighth Circuit held that a procedural due-process claim did not have to be submitted
to the jury when the plaintiff offered no evidence or argument at any point during the trial
describing what procedural protections were available or should have been used in connection
with an alleged deprivation of their right under the Fourteenth Amendment to procedural due
process. Vaughn v. Ruoff, 304 F.3d 793, 795 (8th Cir. 2002). The underlying principle of
Vaughn applies in this case: A plaintiff who seeks only to stop a challenged practice entirely,
28See Zinermon v. Burch, 494 U.S. 113, 126 (1990) (holding, with respect to procedural
due-process claims, that to determine whether a constitutional violation has occurred, it is
necessary to ask what process the State provided, and whether it was constitutionally adequate.
This inquiry would examine the procedural safeguards built into the statutory or administrative
procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by
statute or tort law.); see also Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999) (describing
elements of procedural due process claim as including allegation that the state did not afford
[plaintiffs] adequate procedural rights prior to depriving them of their protected interest);
Wudtke v. Davel, 128 F.3d 1057, 1062-63 (7th Cir. 1997) (While it can be difficult at times to
distinguish a procedural due process claim from one that is substantive, this is not such a case.
No amount of predeprivation process would have made [defendants] alleged behavior toward
[plaintiff] palatable. Post-deprivation remedies are a constitutionally acceptable substitute for
predeprivation remedies in many procedural due process cases, but they cannot substitute for
something that was itself a substantive constitutional tort.).
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rather than to be afforded procedural protections in connection with that practice, does not have a
procedural due-process claim.28 Thus, the Court finds that plaintiffs have not stated a claim for
violation of their procedural due-process rights.
2. Substantive Due Process
As noted above, plaintiffs due-process claims rest on the contention that the challenged
searches were unconstitutional. But this contention cannot support a substantive due-process
claim under 1983 and the Fourteenth Amendment.
To begin with, it is black-letter law that if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed
under the standard appropriate to that specific provision, not under the rubric of substantive due
process. United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). Because plaintiffs claims are
essentially claims for Fourth Amendment violations, plaintiffs cannot also bring substantive dueprocess
claims for the same conduct. MRVSEC made this very argument in its summary-
43-
judgment brief, and plaintiffs failed to respond to it. MRVSEC SJ Mem. at 25; MRVSEC Reply
Mem. Supp. Mot. S.J. at 5 [Docket No. 168].
Instead, plaintiffs argued that defendants conduct was so conscience-shocking that it
violated the Fourteenth Amendment. Pl. MRVSEC SJ Opp. at 10. Even if plaintiffs were
correct, though, this would not change the fact that their claim arises under the Fourth
Amendment and cannot be brought under the Fourteenth Amendment. More importantly,
though, plaintiffs are not correct, as defendants conduct was not conscience-shocking.
To prevail on a substantive due-process claim, a plaintiff must show both that the
challenged action violated a fundamental constitutional right and that the action shocks the
conscience. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998); see also Flowers v. City
of Minneapolis, 478 F.3d 869, 873 (8th Cir. 2007) (citing County of Sacramento). The shocksthe-
conscience test is, by its nature, imprecise. See County of Sacramento, 523 U.S. at 847
([T]he measure of what is conscience-shocking is no calibrated yard stick . . . .). The test
points clearly away from liability, or clearly toward it, only at the ends of the tort laws
spectrum of culpability. Id. at 848. Mere negligence will never give rise to a substantive dueprocess
violation. See Daniels v. Williams, 474 U.S. 327, 328 (1986); OConnor v. Pierson, 426
F.3d 187, 203 (2d Cir. 2005).
The Court has already found that the individual defendants are entitled to qualified
immunity because the challenged searches were not objectively unreasonable in light of clearly
established legal principles. For similar reasons, the Court finds that defendants actions were
not conscience-shocking. There is no evidence that any defendant intended to harm plaintiffs.
To the contrary, the evidence is clear that defendants believed that the challenged search policy
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was in the best interests of plaintiffs and the other students enrolled in MRVSEC programs.
Misguided but well-intentioned actions like those of defendants in this case may have violated
plaintiffs Fourth Amendment rights, but those actions come nowhere close to shocking the
conscience.
D. Anti-Discrimination Laws
1. The Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment forbids a state to deny to any
person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, 1.
Under the Clause, a state must generally treat similarly situated persons alike. Creason v. City of
Washington, 435 F.3d 820, 823 (8th Cir. 2006). Conversely, a state is not required to treat
differently situated persons alike, as long as the state provides an adequate justification for
treating one group of persons differently from another.
MRVSEC admits that it searches the students enrolled in its programs because they are
disabled; in other words, MRVSEC admits that, were its students not disabled, it would not
search them. Disability is not a suspect classification, however, and thus government policies
that treat disabled persons differently from non-disabled persons are not subject to strict scrutiny,
but only to rational-basis review. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356,
366-67 (2001). Under rational-basis review, if there is a rational relationship between the
disparity of treatment and some legitimate governmental purpose, then the challenged policy
does not violate the Equal Protection Clause. Heller v. Doe, 509 U.S. 312, 320 (1993); see also
Garrett, 531 U.S. at 367.
MRVSEC Reply Mem. Supp. 29 Mot. S.J. at 7 (MRVSEC undertook the searches to
further the legitimate government purpose of providing better special educational services to its
unique student population. Further, the searches were rationally related to the goal of removal of
distracting and dangerous items.) (citation omitted); Shakopee SJ Mem. at 32 ([Shakopees]
referrals of Plaintiffs to MRVSEC programs furthers it[s] legitimate interest in meeting its
obligation to provide [free appropriate public education] to Plaintiffs and is rationally related to
that interest. In addition, MRVSECs implementation of administrative searches furthers its
legitimate interest in maintaining a safe environment and is rationally related to that interest.).
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Both Shakopee and MRVSEC contend that the challenged search policy is supported by a
rational basis: the need to provide MRVSEC students with a safe, distraction-free environment.29
The Court agrees.
As discussed above, the Court finds that the challenged search policy is unreasonable
under the Fourth Amendment. But to say that a policy is unreasonable is very different from
saying that the policy is irrational. Under Doe, intrusive school searches like the ones challenged
by plaintiffs must be supported by unique circumstances that would justify significant
intrusions on students privacy interests. 380 F.3d at 357. This is a much higher standard than
the Equal Protection Clauses requirement that a rational relationship exist between the
challenged practice and the asserted government interest.
Providing to students with special needs an environment that is safer and freer from
distractions than the environment provided to students without special needs is plainly a
legitimate government interest. Just as plainly, that interest is rationally advanced by a policy of
routinely searching students for dangerous and distracting items. That MRVSECs search policy
is overly intrusive makes it unconstitutional under the Fourth Amendment; it does not, however,
The Court notes that, even if MRVSEC had violated p 30 laintiffs equal-protection rights,
Shakopee would not be liable under Monell for those violations for the reasons given above in
connection with plaintiffs Fourth Amendment claims.
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make the search policy irrational. The Court therefore grants summary judgment to defendants
on plaintiffs equal-protection claims.30
2. The Rehabilitation Act, the ADA, and the MHRA
Plaintiffs bring federal claims under the ADA and the Rehabilitation Act and state-law
claims under the MHRA. All of these laws contain similar prohibitions on disability
discrimination.
Title II of the ADA applies to public entities such as Shakopee and MRVSEC. See
generally 42 U.S.C. 12131-65. The section of Title II relevant to this case provides that no
qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity. 42 U.S.C. 12132.
Like the ADA, the Rehabilitation Act prohibits disability discrimination, but the
Rehabilitation Act, unlike the ADA, applies only to recipients of federal funding (such as
MRVSEC and Shakopee). The prohibition on discrimination is found in what is known as 504
of the Rehabilitation Act, which provides: No otherwise qualified individual with a disability
. . . shall, solely by reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance . . . . 29 U.S.C. 794(a).
Like the ADA and the Rehabilitation Act, the MHRA prohibits disability discrimination.
Minn. Stat. 363A.12 subd. 1. The relevant portion of the MHRA provides:
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It is an unfair discriminatory practice to discriminate against any
person in the access to, admission to, full utilization of or benefit
from any public service because of . . . disability . . . or to fail to
ensure physical and program access for disabled persons unless the
public service can demonstrate that providing the access would
impose an undue hardship on its operation.
Id.
The ADA and the Rehabilitation Act provide similar protections to disabled individuals,
as courts have often noted. See, e.g., Wojewski v. Rapid City Regl Hosp., Inc., 450 F.3d 338,
345 (8th Cir. 2006) (The Rehabilitation Act and Title I of the ADA are interchangeable in many
respects.); Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998) (The rights, procedures, and
enforcement remedies under Title II [of the ADA] are the same as under section 504 [of the
Rehabilitation Act].). And the Eighth Circuit has observed, as has this Court, that the MHRA
provides essentially the same protections as the ADA. Somers v. City of Minneapolis, 245 F.3d
782, 788 (8th Cir. 2001) (Claims under the MHRA are analyzed the same as claims under the
ADA.); Breiland v. Advance Circuits, Inc., 976 F. Supp. 858, 864 (D. Minn. 1997). The Court
will therefore generally not distinguish among these three statutes in discussing plaintiffs claims.
MRVSEC and Shakopee contend that because plaintiffs allege disability discrimination in
connection with educational services, plaintiffs must establish that MRVSEC and Shakopee
acted in bad faith or with gross misjudgment. Shakopee SJ Mem. at 27; MRVSEC SJ Mem.
at 33. But this Court held in AP v. Anoka-Hennepin Indep. School Dist. No. 11 that bad faith or
gross misjudgment is an element of a disability-discrimination claim only in the context of
substantive challenges to a disabled childs individualized education plan. 538 F. Supp. 2d
1125, 1145 (D. Minn. 2008). In cases not involving challenges to educational services, a
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showing of deliberate indifference on the defendants part is necessary and sufficient to
recover compensatory damages under the ADA or 504 . . . . Id. at 1146.
The searches challenged in this case were not themselves part of an educational program.
Although MRVSEC and Shakopee have defended the searches by arguing that they were
necessary to maintain a good learning environment, many non-education-related things such
as lights and heat are also essential to maintaining a schools learning environment. For
example, many schools use metal detectors to keep weapons out of schools, but that does not
make the use of metal detectors part of any students educational program. Because the
challenged searches were not part of the educational services provided by MRVSEC or
Shakopee, plaintiffs disability-discrimination claims require only a showing of deliberate
indifference on defendants part.
Deliberate indifference is a lesser degree of culpable intent than bad faith or gross
misjudgment, but it is still a stringent standard of fault . . . . Board of Commrs v. Brown, 520
U.S. 397, 410 (1997). A showing of simple or even heightened negligence will not suffice to
establish deliberate indifference. Id. at 407. Rather, a defendant is deliberately indifferent only if
he acts with conscious disregard for a plaintiffs rights. Id. Such conscious disregard exists
only if either (1) the defendant actually knows that its actions will violate the plaintiffs rights or
(2) such a violation is the plainly obvious consequence of the defendants actions. Id. at 410,
412; see also Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274, 291 (1998) (citing Brown);
AP, 538 F. Supp. 2d at 1146-47.
There is no evidence that any defendant knew that its actions would violate plaintiffs
rights. Further, no reasonable jury could find that a violation of plaintiffs rights was a plainly
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obvious consequence of the challenged search policy. The Court assumes, without deciding, that
deliberate indifference toward a violation of plaintiffs Fourth Amendment rights could support a
disability-discrimination claim. But as discussed above in connection with qualified immunity,
the challenged searches were not objectively unreasonable in light of clearly established legal
principles. It follows that defendants were not deliberately indifferent to plaintiffs Fourth
Amendment rights, and therefore plaintiffs discrimination claims under the ADA, 504, and the
MHRA must fail.
Likewise, no reasonable jury could find that defendants were deliberately indifferent to
plaintiffs rights under the ADA, 504, or the MHRA. There is no evidence that plaintiffs were,
on account of their disabilities, excluded from participating in or denied the benefits of any
MRVSEC program. See Shakopee SJ Mem. at 25; MRVSEC SJ Mem. at 29-30. Although
plaintiffs say that defendants pattern and practice of violating their constitutional rights is an
outright denial of the benefits of the program, saying this does not make it so. Pl. Shakopee SJ
Opp. at 26; Pl. MRVSEC SJ Opp. at 24. Plaintiffs were permitted to attend MRVSECs
programs; they were simply searched at the beginning of every day as a condition of such
attendance. The searches themselves did not cause any plaintiff to be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public
entity . . . . 42 U.S.C. 12132. And even if the searches amounted to disability discrimination
and thereby violated plaintiffs rights under the ADA, 504, or the MHRA, no reasonable jury
could find that such a violation was a plainly obvious consequence of the searches. See
Brown, 520 U.S. at 412.
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The Court also notes that plaintiffs disability-discrimination claims fail for other reasons.
With respect to Shakopee, plaintiffs have not provided any basis for holding Shakopee liable for
searches conducted at MRVSEC programs. Indeed, in responding to Shakopees contention that
it is not liable for MRVSECs actions, plaintiffs simply said that the deliberate indifference . . .
and the violations of rights of its resident students referred to the MRVSEC programs results in
significant culpability on Shakopees part. Pl. Shakopee SJ Opp. at 27-28. But this is a
conclusion, not an argument. Plaintiffs have provided no legal basis for holding Shakopee liable
under the anti-discrimination laws for the actions of MRVSEC.
With respect to the individual defendants, neither the ADA nor 504 permits suits
against individuals. See 42 U.S.C. 12131(1), 12132; Alsbrook v. City of Maumelle, 184 F.3d
999, 1005 n.8 (8th Cir. 1999) (en banc) (noting that the ADA does not permit suits against
individuals); Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (per curiam) (holding
that individuals who do not receive federal financial aid are not subject to suit under 504). And
while none of the parties has briefed this question, the Court doubts that the MHRA permits such
suits. See Minn. Stat. 363A.12 subd. 1 (It is an unfair discriminatory practice . . . to fail to
ensure physical and program access for disabled persons unless the public service can
demonstrate that providing the access would impose an undue hardship on its operation.)
(emphasis added). In any event, the Court need not decide whether individuals can be sued for
disability discrimination under the MHRA because plaintiffs MHRA claims fail for the reasons
described above.
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E. Intrusion Upon Seclusion
Plaintiffs bring a claim under Minnesota law for intrusion upon seclusion a type of
invasion of privacy. Plaintiffs concede that there is no basis for asserting such a claim against
Shakopee or McKay, and the Court therefore grants summary judgment to Shakopee and McKay
on this claim. Pl. Shakopee SJ Opp. at 32. But plaintiffs continue to assert an intrusion-uponseclusion
claim against MRVSEC and the MRVSEC-associated individual defendants. Pl.
MRVSEC SJ Opp. at 25-26.
Under Minnesota law, a defendant commits the tort of intrusion upon seclusion when she
commits (a) an intrusion; (b) that is highly offensive; . . . (c) into some matter in which a person
has a legitimate expectation of privacy. Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741,
744 (Minn. Ct. App. 2001). With respect to the second element offensiveness the plaintiff
must establish that the interference with the plaintiffs seclusion is a substantial one, of a kind
that would be highly offensive to the ordinary reasonable [person], as the result of conduct to
which the reasonable [person] would strongly object. Id. (quoting Restatement (Second) of
Torts 652(b) cmt. d (1977); alterations in Swarthout).
There is no dispute that the challenged searches intruded into a matter in which plaintiffs
had a legitimate expectation of privacy. The key question, then, is whether a reasonable jury
could find that the searches were so highly offensive that a reasonable person would strongly
object to them. Swarthout held, in reversing a grant of summary judgment to a defendant on an
intrusion-on-seclusion claim, that whether a challenged action would be highly offensive to a
reasonable person is ordinarily a question of fact. 632 N.W.2d at 745; see also Hougum v. Valley
Mem. Homes, 574 N.W.2d 812, 818 (N.D. 1998) (Issues about intent and the reasonable person
-52-
standard are ordinarily questions of fact, but they become questions of law if reasonable persons
can draw only one conclusion from the evidence.) (citation omitted).
The Court concludes that whether MRVSECs searches would have been highly offensive
to a reasonable person is a question of fact for the jury. On the one hand, the lack of
offensiveness of the searches is shown by the fact that numerous students were subjected to the
searches every day for years and few of them or their parents ever complained. On the other
hand, there are many reasons why a disabled student or her parents might not complain about the
challenged searches; the fact that they did not complain does not mean that they did not find the
searches offensive. Moreover, as described at length above, the searches were highly intrusive.
On this record, the Court declines to substitute its assessment of the offensiveness of the searches
for that of a jury.
The intrusion-upon-seclusion claims of three plaintiffs Tristan, Emily, and David
must nevertheless be dismissed, because those claims are time-barred. Under Minnesota law, the
tort of intrusion on seclusion is subject to the two-year statute of limitations for tort[s] resulting
in personal injury established in 541.07 of the Minnesota Statutes. See Manion v. Nagin,
Nos. 00-238 & 02-370, 2003 WL 21459680, at *8 (D. Minn. June 20, 2003). MRVSEC
contends that Tristan, Emily, and David all stopped attending MRVSEC programs more than two
years before this lawsuit was filed. MRVSEC SJ Mem. at 39. Plaintiffs do not dispute this;
indeed, plaintiffs did not respond at all to MRVSECs statute-of-limitations argument. See Pl.
MRVSEC SJ Opp. at 25-26. Accordingly, because the claims of Tristan, Emily, and David all
arose more than two years before this suit was filed, the Court grants summary judgment to
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MRVSEC and the MRVSEC-associated individual defendants on the intrusion-upon-seclusion
claims of these three plaintiffs.
ORDER
Based on the foregoing and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. The motion of plaintiffs for summary judgment [Docket No. 126] is GRANTED
IN PART and DENIED IN PART as follows:
a. With respect to plaintiffs claims against defendant Minnesota River
Valley Special Education Cooperative under 42 U.S.C. 1983 for
violation of the Fourth Amendment as pleaded in Count 1 of plaintiffs
second amended complaint, plaintiffs motion is GRANTED.
b. Plaintiffs motion is DENIED in all other respects.
2. The motion of defendants Shakopee Public Schools, Shakopee Board of
Education, and Kathy McKay for summary judgment [Docket No. 118] is
GRANTED.
3. The motion of defendants Minnesota River Valley Special Education Cooperative,
Lezlie Prettyman Olson, Darren Kermes, Colleen Trosen, and Barbara Bahnson
(the MRVSEC defendants) for summary judgment [Docket No. 121] is
GRANTED IN PART and DENIED IN PART as follows:
a. With respect to plaintiffs claims against defendant Minnesota River
Valley Special Education Cooperative under 42 U.S.C. 1983 for
violation of the Fourth Amendment as pleaded in Count 1 of plaintiffs
-54-
second amended complaint, the MRVSEC defendants motion is
DENIED.
b. With respect to plaintiffs claims against defendants Lezlie Prettyman
Olson, Darren Kermes, Colleen Trosen, and Barbara Bahnson under 42
U.S.C. 1983 for violation of the Fourth Amendment as pleaded in
Count 1 of plaintiffs second amended complaint, the MRVSEC
defendants motion is GRANTED.
c. With respect to plaintiffs claims under 42 U.S.C. 1983 for violation of
the Fourteenth Amendments due-process and equal-protection clauses as
pleaded in Counts 1 and 2 of plaintiffs second amended complaint, the
MRVSEC defendants motion is GRANTED.
d. With respect to plaintiffs claims under the Minnesota Constitution as
pleaded in Count 2 of plaintiffs second amended complaint, the
MRVSEC defendants motion is GRANTED.
e. With respect to plaintiffs freestanding claims under 42 U.S.C. 1983 as
pleaded in Count 3 of plaintiffs second amended complaint, the
MRVSEC defendants motion is GRANTED.
f. With respect to plaintiffs claims under 504 of the Rehabilitation Act, 29
U.S.C. 794, as pleaded in Count 4 of plaintiffs second amended
complaint, the MRVSEC defendants motion is GRANTED.
-55-
g. With respect to plaintiffs claims under the Americans with Disabilities
Act as pleaded in Count 5 of plaintiffs second amended complaint, the
MRVSEC defendants motion is GRANTED.
h. With respect to plaintiffs claims under the Minnesota Human Rights Act
as pleaded in Count 6 of plaintiffs second amended complaint, the
MRVSEC defendants motion is GRANTED.
i. With respect to the claims of plaintiffs Tristan Hough, Emily Troseth, and
David Moravec for intrusion upon seclusion as pleaded in Count 7 of
plaintiffs second amended complaint, the MRVSEC defendants motion
is GRANTED.
j. With respect to the claims of plaintiffs Trevin Hough and Daniel Manthey
for intrusion upon seclusion as pleaded in Count 7 of plaintiffs second
amended complaint, the MRVSEC defendants motion is DENIED.
4. Accordingly:
a. All of plaintiffs claims against defendants Shakopee Public Schools,
Shakopee Board of Education, and Kathy McKay are DISMISSED WITH
PREJUDICE AND ON THE MERITS.
b. The Court DECLARES that defendant Minnesota River Valley Special
Education Cooperative violated plaintiffs right under the Fourth
Amendment to be free of unreasonable searches and seizures when it
conducted the challenged searches.
-56-
c. With respect to defendants Lezlie Prettyman Olson, Darren Kermes,
Colleen Trosen, and Barbara Bahnson, all of plaintiffs claims pleaded in
Count 1 are DISMISSED WITH PREJUDICE AND ON THE MERITS.
d. With respect to defendant Minnesota River Valley Special Education
Cooperative, to the extent that Count 1 raises claims under the Fourteenth
Amendment, those claims are DISMISSED WITH PREJUDICE AND ON
THE MERITS.
e. With respect to defendants Minnesota River Valley Special Education
Cooperative, Lezlie Prettyman Olson, Darren Kermes, Colleen Trosen,
and Barbara Bahnson:
i. Count 2 for violations of the Fourteenth Amendment and of the
Minnesota Constitution is DISMISSED WITH PREJUDICE AND
ON THE MERITS.
ii. To the extent that Count 3 raises freestanding claims under 42
U.S.C. 1983, Count 3 is DISMISSED WITH PREJUDICE AND
ON THE MERITS.
iii. Count 4 for violations of 504 of the Rehabilitation Act, 29 U.S.C.
794, is DISMISSED WITH PREJUDICE AND ON THE
MERITS.
iv. Count 5 for violations of the Americans with Disabilities Act is
DISMISSED WITH PREJUDICE AND ON THE MERITS.
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v. Count 6 for violations of the Minnesota Human Rights Act is
DISMISSED WITH PREJUDICE AND ON THE MERITS.
vi. The claims of plaintiffs Tristan Hough, Emily Troseth, and David
Moravec for intrusion upon seclusion as pleaded in Count 7 are
DISMISSED WITH PREJUDICE AND ON THE MERITS.
5. The Shakopee defendants motion for a separate trial [Docket No. 161] is
DENIED AS MOOT.
Dated: March 30, 2009 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
 

 
 
 

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