Brian Cornfield, a Minor, by His Mother and Next Friend, Janet Lewis v. Consolidated High School District No. 230, Richard Spencer, and James Frye

(7th Cir.1991)(discussing nothing inherently 945 F.2d 967 cal ble. We find unbelieva- marijuana ble about Dixon's version of the events- culation of sentence for manu 2D1.1), Kelly gun § facture under Guideline nied, cert. de was able to conceal the -, 1228, partly partly - U.S. in his shoe and under his (1992). Kelly's argument, pants. "inherently L.Ed.2d 463 then, Absent unbelievable" although testimony, jury's credibility is that the federal statutes determina- Jewel, marijuana tion will stand. United States v. and Guidelines define as a con substance, (7th Cir.1991). trolled his state conviction for 947 F.2d Conse- delivery marijuana quently, cannot be used to we find no reason to disturb the calculate his base offense level because the jury's verdict. state where he was convicted has named Sentencing Challenge punishing marijuana delivery D. the law some thing other than "Controlled Substances Kelly contends that the district Kelly prior Act." has two convictions un improperly upon court relied his conviction Act; der the Illinois Cannabis Control each delivery for unlawful of cannabis under the year Kelly's Act, carried a four sentence. se Illinois Cannabis Control 720 ILCS challenge mantic to the calculation of his (formerly 561/2,para. 550/1 Ill.Rev.Stat. ch. wholly merit, base offense level is and we affirm his sentence. without 701), to calculate his base offense level Sentencing 2K2.1(a). § under Guideline "The district court's sentence ... will be proper applica III. affirmed if it results from a sentencing guidelines tion of the to the foregoing reasons, judgment For the Herrera,

facts." United States v. 878 of the district court is (7th Cir.1989). give F.2d We AFFIRMED. ap "due deference" to the district court's plication guidelines to the facts. Id. (citing 3742(e)). § 18 U.S.C. 2K2.1(a)(1) provides § Guideline that a assigned base offense level of 26 should be prior if the defendant has at least two felony convictions for a "controlled sub- Kelly stance offense." delivery has a conviction for cocaine, a violation of the Illi- CORNFIELD, minor, By Brian his Act, nois Controlled Substances 720 ILCS friend, Mother and next Janet (formerly 561/2, 570/100 Ill.Rev.Stat. ch. LEWIS, Plaintiff-Appellant,

para. 1100). He concedes this conviction is proper basis for the calculation of his CONSOLIDATED HIGH SCHOOL DIS But, contends, base offense level. be- Spencer, marijuana TRICT NO. Richard cause his convictions were under Frye, Defendants-Appellees. Illinois' "Cannabis Control Act" rather James Act," than its "Controlled Substances No. 92-1863. guideline requiring federal a controlled Appeals, United States Court of upon substance offense forbids reliance Seventh Circuit. marijuana convictions. Argued We can find no cases which consider this Nov. 1992. argument, probably patently because it is April 23, Decided undisputed absurd. It is that under 21 I(c)(17) § U.S.C. 812 Schedule and 21 U.S.C. § the federal controlled substance accompanying statutes Guideline 2D1.1(c), marijuana § is a controlled sub- See, e.g., Webb, stance. United States v. suspicion alerted them to her that Cornfield Another appeared well-endowed.” “too teacher, Lawler, Joyce and teacher’s aide Stacy’s Lori observa- Walsh corroborated bulge in tion of an unusual defendant crotch area. Neither took following day time. The action at that boarding the home when bus him aside. took bulge the unusual himself had observed sweatpants. the crotch area of Cornfield’s Believing sixteen-year-old “crotching” drugs, Spencer Frye and was accompany Frye’s him them to asked investigate office to further. con- When their, suspicion, fronted with began grew agitated yelling and obsceni- request, Frye ties. At Cornfield’s tele- phoned the minor’s mother Janet Lewis for a search. She refused. seek consent Frye proceeded Spencer nevertheless and Believing pat a with the search. down excessively and ineffective at intrusive detecting drugs, they escorted Cornfield to a boys’ locker room to conduct making certain that no one search. After room, they present in the locker else was Spencer door. then stood locked the about Cornfield, fifteen feet and side, standing opposite approximate- away, they had ly ten to twelve feet while put a him remove street clothes and his Spencer Frye visually gym and uniform. Hutchison, Hutchison, L. Anders Richard body physically and inspected his naked Park, Associates, (argued), IL Tinley & per- inspected clothes. Neither man his plaintiff-appellant. They found body cavity search. formed (ar- Chemers, Ruff Edward B. M. Robert drugs or other contra- no evidence of Bruton, Pretzel & Stouf- gued), G. Michael re- the school bus was band. Afterwards defendants-appellees. fer, IL for Chicago, called, home. took Cornfield it Alleging the search violated EASTERBROOK, FLAUM Before Fourth, Fifth, and Fourteenth Amendment WOOD, Jr., Senior Judges, and Circuit brought an action under rights, Cornfield Judge. Circuit against High Consolidated U.S.C. 1983 § FLAUM, Judge. (“District 230”), Circuit No. 230 School District High Sandburg parent organization of Carl a behav- was enrolled in Brian Cornfield School, Frye in against Sandburg program at Carl ioral disorder capacities. and individual professional Kathy Stacy, aide a teacher’s High School. program, found him outside in that I. rules building in violation of school school affidavits, filing After the district 7, reported 1991. When she on March summary judgment favor granted court Spencer, Richard infraction in their individual Stacy Frye, also teacher, Dean Richard 1879, 20 L.Ed.2d 1, 20, 88 S.Ct. de review we decision capacities, Court, According to the (1968). Inc., F.2d Allied-Signal, v.Doe novo. by a teacher of a student search “a examining the Cir.1991). In (7th 1007, 1008 incep- its at ‘justified official school inferences all record, draw we grounds are reasonable there when tion’ to the favorable most light it up turn will the search suspecting Michal, Lohorn party. nonmoving violated or has student that the evidence Cir.1990). The non-mov F.2d or the rules law violating either pleadings rest cannot party ing 341-42, 105 at T.L.O., school.” facts specific identify must alone, but inception” its 743. “Justified S.Ct. triable genuine ais there establish not mean does context present sufficient find evidence Unless issue. right to search administrator in favor jury verdict to sustain way in a merely acts who a student grant affirm party, we nonmoving the stu- suspicion a reasonable creates v. Lib Anderson summary judgment. or law. regulation some has violated dent Inc., 477 U.S. Lobby, erty only if the is warranted Rather, (1986). L.Ed.2d sus- a reasonable creates conduct student’s lawor regulation particular picion that A. serving violated, the search with been on we address question first The Sec- violation. of that evidence produce of Corn strip search the in is whether permissible review must be ond, search the Fourth the consistent with rea- adopted was field measures scope: “[T]he estab Supreme Court of the objectives Amendment. to the related sonably reconcil Jersey v. T.L. O. light in excessively New intrusive lished not search with of children interests the privacy ing the student of the age and sex the does order to maintain of schools Id. needs the infraction.” the nature probable to a adherence strict require not “rea is Therefore, a search whether Amendment for Fourth standard cause sense will constitutional sonable” the language, express By its purposes. the search. context according the vary only unrea prohibits Amendment Fourth should be points couple of regard, this searches: sonable of a search nude A apparent. immediately underlying command the Although teacher administrator by an student always Amendment Fourth obviously violate would sex opposite the reasonable, seizures Moreover, highly intru standard. this the con- depends on what is infrac a minor response search sive place. takes a search which text within the comport with similarly tion of rea- of the standard The determination Supreme by the advocated sliding scale class any specific governing elaborate, sonableness search “[a] T.L.O. Court “balancing the need requires purse of searches a closed or of person a child’s the which the invasions against to search no less person, on her bag carried bal- side one On entails.” an search out carried search a similar than legiti- individual’s arrayed ance are violation undoubtedly a severe adult, is person- privacy and expectations privacy.” mate Id. expectations subjective other, govern- security; Accordingly, al at 740-41. to deal methods effective need for Renfrow, ment’s in Doe as we concluded order. public curiam), Cir.1980) cert. (per breaches F.2d 91 1022, 101 S.Ct. 733, 741, denied, U.S. U.S. opin adopted (1982),which omitted). To (citations L.Ed.2d (1985) L.Ed.2d 720 Renfrow, court, Doe v. district fash- balance, ion strike “[sjubject- (N.D.Ind.1979), F.Supp. evaluating two-prong test ioned than nude search to a student ing a is constitu- aof student search whether pocket of a mild inconvenience just “justified must be First, search tional. into intrusion is an search, it rather Ohio, 392 Terry v. inception.” its justifiable expectation (1988). First, individual’s basic of Ga.L.Rev. 897 the likelihood Indeed, privacy.” ampli Id. at 1024. engaging a child is in independent require does fied this concern: “It activity criminal will tend to increase with constitutional scholar to conclude that a age Second, of the child. a child’s thirteen-year-old search of- a nude child is capacity meaningfully consent to the rights an invasion of constitutional of some strip search decision depend magnitude. More than that: it is a viola age.1 child’s principle tion of known of human de ages Since the of seven and fourteen are Therefore, cency.” 631 F.2d at 92-93. as regarded important periods transition intrusiveness of the of a student development, child they also can serve as intensifies, so too does the standard of useful guideposts for us here. In fact, Fourth Amendment reasonableness. What these age same correspond divisions neatly suspicion constitute reasonable for a assumptions long employed in crimi- pocket search of a locker or even a or nal law. At common law children under pocketbook may fall well short of reason age of seven were considered to be ableness for a nude search. without criminal capacity. Children over Thus, this flexible standard al age' of fourteen having were treated as lows a administrator or court to the same criminal capacity as adults. And weigh the interest of a school in maintain children ages between the of seven and ing against privacy order the substantial fourteen presumed were incapable to be interests of in their bodies. In committing crimes, although this presump- regard, seriously dispute this no one would words, rebuttable. In other ado- tion. that a nude search of a child is traumatic. generally presumed lescents are to be as See, Coler, e.g., Darryl H. v. 801 F.2d capable independent activity criminal as (7th Cir.1986); Meese, Flores v. By, contrast, adults. elementary school F.Supp. (C.D.Cal.1988); Bellnier children are likely engage far less to inde- Lund, (N.D.N.Y. F.Supp. pendently in activity, including criminal 1977). impact The actual strip of a concealing private contraband in areas. will, course, vary with the individual Accordingly, adolescents generally child, predict, which is difficult to and with capacity have same as adults to under- age, Although the child’s which not. search, stand the strip issues involved in a in age T.L.O. identified including deciding whether to consent. Be- one of the factors used to evaluate the cause presumption regarding ele- search, reasonableness of a it did not elabo children, mentary school we would natural- age rate how mattered. Whether the child ly circumspect be much more about their is seven or seventeen is nonetheless rele ability comprehend impact strip of a Group vant. for the Advancement of search, sum, or to consent to one. In Psychiatry, How Old is Enough?—The legitimate expectations privacy that stu- (1989); Ages Rights Responsibilities and dents in school claim are not monolith- Consent, Competence (Gary Children’s ic. al., 1983); B. Melton et eds. generally see Shatz, Donovan, Hong, S. M. and J. The B. Strip Search Children and the Fourth Amendment, (1991); 26 U.S.F.L.Rev. 1 M. Whether the search of Cornfield Gardner, Privacy comports Student in the two-prong Wake with the stan T.L.O. Appeal T.L.O.: An requires scrutiny Individualized dard careful of the cir for Suspicion Requirement surrounding Valid cumstances the search. One for Schools, Searches and Seizures in the dispute: fact is not in in a Cornfield was impact vary 1. The of the search will also become more conscious of their bodies self- age Perhaps counterintuitively, of the child. Consequently, po- conscious about them. very young degree child would suffer a lesser tential for search to cause embarrassment and of trauma from a nude search than an older grow humiliation increases as children older. go through puberty, child. As they children Sandburg’s Head to Carl high communicated at program disorder behavioral 24,1990 he had on October that Sutor Dean contends Cornfield regard, this school. Cornfield was that information received exclusively behavior- problems that Head students. sup- marijuana to selling reed thin a too would al, which Frye. Corn- this to conveyed for a Dean Sutor suspicion port point at some acknowledged in such also field that The fact search: Stacy, Kathy that and Sutor, presence behavior inconsistent exhibit program Su- not for cocaine. analysis erratically does a urine he failed behave drug users that this as Frye a stu- that Spencer conclusion inevitably to tor advised lead is a program disorder ain behavioral well. dent however, Frye, Spencer drug user. Spencer that argues Cornfield indepen- of other number ato attested any man- formed reasonably have not could reasonableness support factors dent Ex- drugs. possessed that he belief ner of possession drug suspicions he that incidents of these couple cept for Cornfield. re- acknowledged or could either teachers, had of Cornfield’s one Spencer, remainder maintains fute, Cornfield than appellant contact with direct he denies Specifically, occurred. never several affidavit in his alleged he drugs, that crotched he ever that suspi- of his ground on which incidents bus, he marijuana smoked Cornfield Spencer, According to cions. grounds, marijuana onto brought to December prior stated once positive test he would he stated February and that drugs dealing he test, a cocaine failed he had marijuana, marijuana. positive test he acknowledged to he did also believed thought about constantly he else anyone drug rehabilitation complete successfully mother Furthermore, Cornfield’s drugs. And of 1990. December program left that Cornfield affidavit her asserts was found January he was because program drug rehab The school. bullet live of a possession con- program “inappropriate.” found Spencer’s giving rise remaining incidents disor- deficit had attention cluded unspecified some occurred suspicion also His mother drug problem. der, anot strip search: to the date prior time the bus even on he that was contends the reported had driver bus Cornfield’s marijuana. smelled day driver the the Cornfield where marijuana smell incidents these any of denying that report- In bus, one student the sitting on was arguing effectively occurred, smoking mar- Cornfield Cornfield having observed ed to form unreasonable bus, it would that another one on occasion ijuana is, That grounds. the stated suspicion on of Cornfield’s Spencer had advised student re- Frye could nor Spencer drugs while neither possession informa- of the portion to related significant had himself ceived Cornfield grounds, those thinking because constantly they relied on which was tion that he Spencer Kathy According to Corn- Sta- aide teacher’s occurred. drugs, and never events about facts affidavits, only undisputed Cornfield Spencer that the informed cy had field’s during strip drugs the leading up to “crotched” he had events prior to the claimed Spencer a sin- report, mother’s house. Jackson’s raid were Officer police search he had student, that and Cornfield’s fact by attested gle tip also another throughout Cornfield He contends view bullet. opportunity of a live possession first 1991 was incidents, along with March and year; three these that bulge day unusual Frye on had observed Spencer he and time perceptions area. search, crotch not sufficient are strip Cornfield’s However, suspicion. a reasonable create affidavit, Spencer Frye’s According to corroborated and aides teachers several inci- or information Frye shared in Corn- bulge unusual of an suspicion addition, Pa- their In Cornfield. involving dents importantly, More area. crotch field’s William Jackson police officer Park los suspicion that Cornfield was Spencer sonable on which statements some crotching drugs. from third were Frye apparently relied has not Cornfield not Cornfield. parties, prong inquiry our The second con- statements, if even these established permissible was cerns whether Spencer untrue, not made or were hand, scope. the one On the sixteen- reasonably them believe Frye could not year-old age Cornfield was at which be true. extremely self-conscious about children bodies; thus, potential impact of a grant court’s the district overcome However, strip search was substantial. would need judgment, Cornfield summary Frye’s suspicion given issue of material genuine establish crotching drugs, was their con- Cornfield with a number are faced Because we fact. the least that a search was clusion served as a foun- allegedly incidents way deny or their sus- intrusive confirm suspicion, whether reasonable dation adminis- was not unreasonable. As picions actually occurred is ma- incidents individual tered, personnel per- male school two undisput- number of only if the total terial privacy the search and did so formed suffi- facts are not uncontroverted ed or boys’ locker con- room. Cornfield suspicion. to form cient that other could have seen tends purposes of Thus, while we assume although say anyone he does him Frye Spencer and summary judgment that actually changed, Spenc- did. As Cornfield statements rely on direct did not Frye observed from a certain dis- er having denies that Cornfield away ensure could not tance made, considered they nonetheless any drugs or contraband conceal factors wholly uncontested the three than addition, suspected carrying. was suspicion. to form their Frye physically touch Spencer and did not differ from other search, case does body cavity subject him to a him Spencer and in that indignity search cases they student have him suffer the nor did on evidence or their decision Frye standing based naked them allowed before but period they over some put gym that had occurred while events him to uniform v. El- Finally, Williams of time. Williams his street clothes. searched Cf. Cir.1991)(events drugs no 936 F.2d 881 found lington, fact par- suspicion for not allow us to giving rise to reasonable other contraband does week). the search retrospectively in same strip search occurred tial conclude scope. evokes some con- unreasonable aspect of the case This and adminis- cern because school teachers C. negative marshal incidents trators can requested sum- contrary discounting any Spencer and also perceptions while grounds they mary judgment on the over the may accumulate evidence immunity. months, qualified “Under longer.2 entitled to or are of a number of course however, immunity, public stand, qualified of doctrine facts of this the As the case discretionary functions performing relied on number officials damages protected against from reported by vari- suits relatively recent incidents clearly estab- their conduct violates aides as well as unless ous teachers and rights of constitutional statutory or observations, the cumulative ef- lished persona] person would to create a rea- a reasonable which fect of which is sufficient apprised fact that of the or school administrator Certainly, between the lack of communication deficit disorder compli- suffers from attention has a student parents and his teachers Cornfield's certainly react dif- would diagnosis and is on medication the of his behav- cated his cause. If disorder, by student. ferently to erratic behavior deficit was attention ioral difficulties important may be conveyed even example, this to Communication never mother learning disabili- respect According to students with to their affi- with ties, authorities. the school may particularly vulnerable to bias- davits, be the im- who were under their condi- successfully misperceptions because es and pression that had drug program. A teacher completed tion. the rehab 1324 them, view allegations and factual pleaded 510, 511 Bobbitt, F.2d 881 v.Doe

known.” to be inferences reasonable the along with Fitzgerald, v. Cir.1989) (citing Harlow (7th favor- light most them, the 2738, 73 drawn 2727, 818, 800, S.Ct. 102 457 U.S. Racine, City v. Ellsworth him. Furthermore, able (1982)). “[t]he 396 L.Ed.2d Cir.1985). 182, (7th 184 sufficiently 774 F.2d must be right of the contours un official reasonable clear A. doing violates ishe that what derstand U.S. 483 Creighton, v. Dept. Social Anderson v. Monell right.” Under 3039, 3034, 97 L.Ed.2d York, municipalities, in 640, 635, New Services of Fairman, F.2d 795 v. held Azeez see (1987); boards, may not be 523 cluding school Cir.1986). To determine (7th simply because 1296, 1301 1983 section under liable clearly established acting was within the law the tortfeasor employed whether they violation, ask alleged Rath employment. time the his or her scope the in relation clear only was “when law the liability attaches er, municipal “whether public the confronting facts or cus policy specific government’s the aof execution v. Green by she acted.” he or when its lawmakers official made tom, whether Cir.1987); (7th Carlson, fairly F.2d be may 826 or acts edicts whose those 818, F.2d 820 Lightner, Powers policy, inflicts accord represent official said denied, U.S. 484 Cir.1987), cert. entity is (7th an government 821 that the injury 658, L.Ed.2d S.Ct. 1983.” under responsible § L.Ed.2d (1988). 694, 98 S.Ct. cannot Furthermore, plaintiffs (1978). of estab- the burden Cornfield, bears who they can liability unless claim points right, particularized lishing of its enforcement demonstrate F.2d 91 Renfrow, v.Doe our decision behind “moving force” policy was the unconstitu- proof Cir.1980), as City Okla violation. constitutional Ac- of students. strip searches tionality of 808, 823, 105 Tuttle, 471 U.S. City v. homa con- sharp condemnation tually, our (1985) (plu L.Ed.2d case in that officials duct least, there very (“At the opinion) rality fact stemmed link between affirmative be must any without executed of Doe vio particular constitutional and the policy rea- without suspicion and individualized establish order alleged.”). In lation Id. at 92-93. cause. sonable Renfrow’s look plaintiff policy, of a existence cause reasonable requirement munici pronouncements official to: consistent in fact searching students bodies, agency action legislative pal or subsequently enunciated standard with the authority, ac delegated accordance de- found addition, we have in T.L.O. decisionmak- final by individuals tions under conduct to fendants’ or custom. authority, inaction ing Because Cornfield the circumstances. taken actions placing not succeeded identi has not Because Cornfield “clearly Frye outside by Spencer by the enacted guidelines specific fied norm, they are constitutional established” governing District 230 state immunity. qualified entitled ac only individual students, argue can day carry the inaction. tion or II. need to es claim, former final decision- Frye had Dean tablish complaint, Corn- count other In the officials those Only authority. making Frye were alleges field au policymaking requisite possess who 230 which of District policy implementing establishing “official capable thority are sus- strip searches endorsed Monell. meaning of within the policy” contra- drugs or carrying pected recognized that v. Cincinnati Pembaur appealing Because band. circumstances, “mu appropriate to under a motion grant of court’s the district single imposed for liability may be nicipal well- true accept dismiss, as policy- state law to determine who has final policymakers.” municipal decision 1298, 1292, making authority does little to reveal how a 469, 480, 106 S.Ct. U.S. (1986) opinion). municipal court evaluates the actions of a (plurality L.Ed.2d 452 agent. Certainly necessarily employee dis- someone Moreover, hierarchy is not authority fly municipal with executive whose actions inasmuch as of the issue positive state or local is not upon the act of the face of law predicated liability may be under Monell and its progeny. policymaker has been who a low-level subordinate even Rice, area, 397, 401 Auriemma v. limited 957 F.2d authority in a delegated final Cir.1992). However, may not exercise of execu- official’s order high-level while opposed legislative possesses authority tive to unless he or she actionable —as necessarily respect authority inconsistent decisionmaking authority with final —is See, Pembaur, e.g., 483, Id. at policymaking. 106 with area. particular to 481-84, 475 U.S. at 106 S.Ct. at 1299-1300. at 1300. S.Ct. course, Appellants argue ques that the identifying those Of Frye’s authority policy policy is tion of Dean to set authority to make vested with begins ends with ch. 122 discretion Ill.Rev.Stat. The exercise of no mean feat. alone, official, exactly. provision 10-20.5.3 Not This standing particular If by a authority liability. only a school board’s elaborates give rise to does not rules; adopt if the to it does not answer only attach Municipal liability should given question of whether the state or a “a deliberate decision was unconstitutional delegated authority if action” and school board follow a course of choice to disciplinary deans to handle mat the decision- individual law authorized state or local establishing as sensitive as searches of students. final ters “responsible for maker Arguably, practice committing respect to the sub such policy with government Pembaur, everything to the discretion of a subor question.” ject matter could result the actions of the at 1300. More dinate at 106 S.Ct. conducted, subordinate, being however mu has confirmed recently, the long authority” nicipal policy is a as as official policymaking that “final v. Dallas Inde acting scope of his or her em question of state law. Jett within Dist., 701, 737, hand, the other ployment. On absence pendent School 491 U.S. (1989) enough support 2702, policy of a written is not L.Ed.2d 598 109 S.Ct. Pembauer, 483, policymaking final au at 106 an inference (citing 475 U.S. law, delegated to a 1300). thority has been subor local as well State and “ are other indications of a But there usage’ having the force dinate. ‘custom concerning the searches of students. Praptnik, 485 U.S. law,” policy Louis v. St. paragraph next example, L.Ed.2d For 924 n. 124 n. principals vests school (1988), officials or Illinois School Code may illustrate which re responsibility “to utilize the fi entities are endowed with governmental agen enforcement regard proper law authority sources policymaking nal stu safety and welfare of particu cies when the allegedly caused the action by the are threatened statutory violation. dents and teachers lar constitutional drugs and Ill.Rev. Jett, illegal use of 109 S.Ct. at 491 U.S. alcohol.” 1110-21.4(a).4 Does this mean However, ch. 122 say that a court must look Stat. adopt poli- empowered provision School boards reads: 3. The request necessary cy school officials adopt all to authorize and enforce Rules. rules for the the adopted by management government officials for the assistance of law enforcement public their district. Rules schools of conducting purpose reasonable searches the school board shall be filed drugs, illegal grounds and lockers for inspection public in the administrative office through including the use searches conducted district. dogs. specially trained ch. 122 10-20.5. Ill.Rev.Stat. ¶ ch. 122 10-22.10a. Ill.Rev.Stat. ¶ recognizes possi- School Code in fact 4. The inspections drugs: necessity of for ble 1326 Jones, 787 Cir.1981); (7th accord 639, 650 obliges school which policy is a there

that faulty “systemic” (requiring 204 in F.2d at assistance police seek to administrators enduring prac- words, inaction). In other School That conducting searches? may employees for only or their of officials tices policymaking has sanctioned Code however, does Cornfield, lock- and school liability. create grounds school of searches prac- in- widespread to their a there is allege officials school that ers, leaving not circumstance? and unconstitutional any other in nonconsensual tice of stincts Nothing no. that is 230 question in District either to of students answer searches that a infer municipal us to of Code allows School a conclusion support in the would policy- delegated been Dis- dean has that Rather, is disciplinary position liability. Furthermore, because authority. making of account liable on held be should trict 230 230 any District brought side strip neither alleged previous one this and to our of searches conduct for the policy aas as well High School Sandburg at Carl not does one attention, assume we 230 by District endorsement subsequent exist. searches strip president board consent. parental aof conducted course, the absence Of exempt a wholly does policy written Prapotnilc, plurality According to ap an liability. Such from municipality a approve policymakers authorized “[i]f incentive perverse a create would proach it, for basis and the decision subordinate’s adopt policy a boards for school chargeable be would ratification their the ef policies, or written having defined is decision municipality because immunize be to would of which fect at at 485 final.” for liability unconstitu municipalities af- alleged that pleadings, In the is risk agents. The by their actions tional President searched, 230 District ter was its head bury municipality a strip supported publicly Novosel John attempt acknowledge and than rather sand provided personnel by District 230 searches by its conduct remedy unconstitutional secured. Assum- is consent parental Accordingly, in situations employees. speaking Novosel ing, arguendo, rules, regulations, or procedures, for call subsequent endorse- 230, his District for may be itself policy amake failure equivalent be would ment of the conduct Burke, County Avery v. actionable. significant act. One authorization Cir.1981); Murray v. (4th F.2d do not is that argument to this obstacle (7th 365, 366-67 F.2d Chicago, 634 City of had policy Novosel specific know what words, practice of Cir.1980). In other ex endorsement Arguably, the mind. lacking conduct, although unconstitutional liability for create could post authorization for a basis may provide approval, formal Moreover, searches. single unconstitutional regard, In this liability. municipal support intended by non- if Novosel wrongdoing incident isolated without personnel by to es District insufficient generally policymaker imposed constraints unconsti acquiescence regard tablish un- be Tuttle, would 471 U.S. T.L.O., policy itself then the See conduct. tutional City parental 2436; regard, v. (In this Jones constitutional. Cir.1986); principally F.2d be relevant Chicago, consent F.2d Chicago, 760 District City of whether question answering Strauss cf. “sufficiently (omission consistently Dis- acted personnel sug injury alone plaintiffs egregious Having only plead- policy.) trict policy”). established an gests] endless spin out on, we could go ings to only suggests This policies. hypothetical allegation of held that haveWe a claim stated has not that Cornfield uncon incidents pattern or series alleged conclude we could which withstand required conduct stitutional exists. inaction policy of custom make failure to to dismiss a motion Strauss, F.2d at 767. F.2d Chicago, 664 City Powe v. policy.

1327 searches, governing student standards B. school adminis- districts and district school Dis that also contends held on this cannot be accountable trators policy or having a for is liable 230 trict particular constitution- ground because develop administrative failing to custom Alternately, is not clear. duty at issue al the detec training for or to afford policies liability proper would be for a municipal on contraband investigation of tion and the need not neces- to train is failure when a “fail allegation of An premises. school outset, from the but sarily obvious in limited only available train” is ure frequency of viola- constitutional pattern must prevail, circumstances. municipality notice put the tions its to train District 230’s “failure that show responses a recur- employees’ its .that a evidences respect in a relevant employees protect the ring insufficient to situation are ” rights of to the indifference’ ‘deliberate rights Id. oth- involved. constitutional Harris, City Canton students. acquiesced words, policymakers had er 109 S.Ct. U.S. constitutional violations. pattern of in a (1989). indifference Deliberate L.Ed.2d The elusive standard. is an itself municipal custom or a Unlike would be policymakers that reasoned inaction, establishing a failure to policy light of “in when deliberately indifferent requires a form of action train em specific ... assigned to the duties level in order to rise to the something more more or different for the need ployees[,] has indifference. Cornfield deliberate obvious, inadequacy and the training is so that establishes deliber stated a claim of consti likely to result violation so 230. The two District indifference ate ensure In order to rights.” Id. tutional searching at reported incidents of misconduct instances isolated conjunction with Sandburg, even in Carl adequate generally attributable statement, pattern fall short of Novosel’s require a training program, policy the school put violations sufficient part of culpability high degree to stu potential harm on notice board Coupled a causation policymaker. us is in the record before Nothing dents. ensures this standard requirement, indifference deliberate show sufficient removed not too far alleged is violation failing to part of District challenged as training policy or proce policies develop implement together, these two inadequate. Taken handling student searches.5 dures requirement to a amount considerations remains: nevertheless concern One finding that on a liability be based itself may attempt to shield board school constructive actual or have policymakers of non- creating a buffer liability by is omission particular that a notice lack both employees who policymaking violations. in constitutional likely to result accountability to the school training and creating de Otherwise, risk we would facto drugs proliferation Given board. is con liability, superior which respondeat schools, both urban weapons in Monell, 436 U.S. trary Monell. See neither the non-urban, it remarkable at 2037-38. 98 S.Ct. nor Dis- Board of Education State Illinois specific Although responded. trict Accordingly, may it be analysis here vary, our employ its circumstances fail to train municipality could evaluating critical to various factors details respect to a clear constitutional ees search that scope of necessity and in recurrent situations implicated duty course, no school Of to face. warranted. be employee certain particular rea- without can administered Canton, n. City highly clearly, a suspicion; nebulous sonable n. 10. Given the at 1205 see, (1988); tit. e.g., however, boards, Rep. Okla.Stat.Ann. de- Law 70, school Numerous (1988) Gettings, (requiring boards G. See F. Delon & 24-102 § otherwise. cided searches). conducting Status Search Seizure Post-T.L.O. student adopt policies Schools, Ed. in Public and Practices Policies necessarily requires intrusive America, floor of STATES reach UNITED evidence compelling Plaintiff-Appellee, reflects. This reasonableness, this case inevitably committed is determination personnel. school discretion sound CRAWFORD, Defendants Leslie conducting regulations Adopting Appellant. necessarily create per- these authority of expand the 92-2696. No. no- meaningful provide instead but sonnel Appeals, States United parents. and their to students tice Circuit. Seventh reasons, decision foregoing For 1993. is Argued court March Affirmed. the district April Decided Judge, EASTERBROOK, Circuit concurring. opinion the court’s I.B of and I.A Parts Spencer convincingly that defendants show rights. violate Frye did not opinion. portions of these join

I immunity and mu- qualified discussions II are un- I.C and liability Parts nicipal Because join them. I do not

necessary, wrong this case did no

Spencer end with opinion should

over,

conclusion. a defense presented they wanted immunity because

qualified agree we to damages were paying avoid merits. Cornfield follow- Frye were argued that “policy” because set

ing or had from which deep pocket wanted the search to hold we damages were

collect subjects Both of these unconstitutional. conclude, as we once significance lose re- defendants have, individual that the we rights. constitutional spected Cornfield’s ir- litigants’ contentions

Having made comment.

relevant, should withhold adviso- subjects are these about views Our case, perhaps, to some

ry pertinent — That one. to this inconsequential but turns subject that mooted parties nor reason neither irrelevant to be out the mat- exegesis on judicial

authority

ter.

Case Details

Case Name: Brian Cornfield, a Minor, by His Mother and Next Friend, Janet Lewis v. Consolidated High School District No. 230, Richard Spencer, and James Frye

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 23, 1993

Citation: 991 F.2d 1316

Docket Number: 92-1863

Court Abbreviation: 7th Cir.