Robert HORTON, as next friend of Robby Horton, Heather
Horton and Sandra Sanchez, on their own behalf and
on behalf of all others similarly
situated, Plaintiffs-Appellants,
v.
GOOSE CREEK INDEPENDENT SCHOOL DISTRICT, Dеfendant-Appellee.
No. 81-2215.
United States Court of Appeals,
Fifth Circuit.
Nov. 1, 1982.
Arthur Val Perkins, Stefan Presser, Houston, Tex., for plaintiffs-appellants.
Richard A. Peebles, Baytown, Tex., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Texas.
ON PETITION FOR REHEARING
Before WISDOM, RANDALL and TATE, Circuit Judges.
PER CURIAM:
The defendant's petition for panel rehearing is granted, the opinion originally published (
This case presents a question of first impression in this circuit: as a matter of constitutional law, can a school district, acting in good faith in an effort to deal with a serious drug and alcohol problem, subject students, their lockers, and their automobiles to the exploratory sniffing of dogs trained to detect certain contraband? We must consider the special circumstances peculiar to the public school environment, the duty of school officials to protect the minors in their care, the growing problem of drug and alcohol abuse in the schools, the students' interest in the integrity of their persons and effects, and the importance of demonstrating to the young that constitutional guarantees are not only lofty theories but do in practice control our government. Bearing in mind all these considerations, we hold that the dogs' sniffing of cars and lockers does not constitute a search within the purview of the fourth amendment. We hold further that the dogs' sniffing of the childrens' persons does constitute a search within the purview of the fourth amendment, and that in a school setting, individualized reasonable suspicion is required in order for the sniffing to be constitutional.
I. PROCEDURAL AND FACTUAL BACKGROUND.
The named plaintiffs, Robby Horton, Heather Horton, and Sandra Sanchez, brought this action by their next friend, Robert Horton, seeking to represent all students enrolled in the Goose Creek Consolidated Independent School District (GCISD) in a challenge under 42 U.S.C. § 1983 to the defendant school district's canine drug detection program.
The defendant, GCISD, adopted the challenged program in response to a growing drug and alcohol abuse problem in the schools. It contracted with a security services firm, Securities Associates International, Inc. (SAI), that provides dogs (generally Doberman pinschers and German shepherds) trained to alert their handlers to the presence of any one of approximately sixty different substances, including alcohol and drugs, both over-the-counter and contrоlled. The defendant conducted assemblies in the elementary schools to acquaint the children with the dogs and informed students in the junior and senior high schools of the program. On a random and unannounced basis, the dogs are taken to the various schools in the district, where they sniff students' lockers and automobiles. They also go into the classrooms, on leashes, to sniff the students themselves. During their "playtime" at the schools, the dogs are sometimes taken off their leashes. When a dog alerts the handler to the odor of an illicit substance on a student's person, after the sweep of the class is completed and the dog and handler have departed, a school official discreetly asks the student to leave the class and go to the administrator's office, where he is subjected to a search of pockets, purse, and outer garments.1 When a dog alerts his handler to an automobile, the student driver is asked to open the doors and the trunk. If he refuses, the school notifies the parents. When a dog alerts his handler to a locker, the school searches the locker without the consent of the student to whom it is assigned. If the student is found to possess substances that violate school policy, he may agree to seek outside counseling; otherwise the administrator may recommend to the superintendent that the student be suspended. Second-time violators do not have the option of counseling.
The named plaintiffs were all subjected to the sniffing of the canine drug detectors. Two of them, Robby Horton and Sandra Sanchez, triggered alerts. School officials questioned Sandra, took her purse, and searched it without her consent. They found a small bottle of perfume, which they returned to her. Robby was asked to empty his pockets, which he did. When nothing incriminating was found, the school officials searched his socks and lower pants legs but again found no contraband.2
The plaintiffs brought this action, alleging a violation of the fourth amendment prohibition of unreasonable searches and seizures and a violation of the fourteenth amendment prohibition of deprivations of liberty and property without due process. On a motion for class certification and cross-motions for summary judgment, the district court denied certification and held that the sniffing, although it is a search, is not unreasonable. Further, it held that reasonable cause is the standard for searches of students and their property by school officials acting in loco parentis, and the alert of the dogs provides reasonable cause for searches of lockers and cars as well as for searches of the pockets, purses, and outer garments of students. Finally, the district court held that the program does not violate the due process clause, because it subjects the students to minimal intrusion, humiliation, and fear. The plaintiffs appeal both on the merits and on the question of class certification.
II. THE CONSTITUTIONALITY OF THE DOG SNIFFING.
Although the specific problem presented in this case is new to the Fifth Circuit, a district court in this circuit and appellate courts for the Seventh and Tenth Circuits have decided similar cases. In the most recent case, Zamora v. Pomeroy,
The Seventh Circuit reached the same result on facts similar to those presented by the GCISD program. In Doe v. Renfrow,
A district court in our own circuit, on the other hand, reached the opposite result, explicitly rejecting Doe v. Renfrow. Jones v. Lаtexo Independent School District,
The problem presented in this case is the convergence of two troubling questions. First, is the sniff of a drug-detecting dog a "search" within the purview of the fourth amendment? Second, to what extent does the fourth amendment protect students against searches by school administrators seeking to maintain a safe environment conducive to education? On each question, we find an abundance of precedent but scant guidance.
A. The Canine Sniff as a Search.
Frequent use of drug-detecting dogs by law enforcement officials has led to a great number of cases challenging the admissibility of the fruits of a canine sniff.3 From these cases, one proposition is clear and universally accepted: if the police have some basis for suspecting an individual of possessing contraband, they may, consonant with the fourth amendment, use a drug-detecting dog to sniff checked luggage,4 shipped packages,5 storage lockers,6 trailers,7 or cars.8 While the rationales of these cases are not the same, the majority view is that the sniffing of objects by a dog is not a search. See, e.g., United States v. Waltzer,
The decision to characterize an action as a search is in essence a conclusion about whether the fourth amendment applies at all. If an activity is not a search or seizure (assuming the activity does not violate some other constitutional or statutory provision), then the government enjoys a virtual carte blanche to do as it pleases. The activity is "excluded from judicial control and the command of reasonableness." Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 393 (1974). We must analyze the question of whether dog sniffing is a search in terms of whether the sniffing offends reasonable expectations of privacy, Katz v. United States,
We have already held that the sniffing by dogs of luggage checked in an airport, United States v. Goldstein,
The courts have in effect adopted a doctrine of "public smell" analogous to the exclusion from fourth amendment coverage of things exposed to the public "view." Katz, supra. See also United States v. Ventresca,
We find Goldstein to be controlling on the question of whether the dogs' sniffing of student lockers in public hallways and automobiles parked on public parking lots was a search. The sniffs occurred while the objects were unattended and positioned in public view. Had the principal of the school wandered past the lockers and smelled the pungent aroma of marijuana wafting through the corridors, it would be difficult to contend that a search had occurred. Goldstein stands for the proposition that the use of the dogs' nose to ferret out the scent from inanimate objects in public places is not treated any differently. We hold accordingly that the sniffs of the lockers and cars13 did not сonstitute a search and therefore we need make no inquiry into the reasonableness of the sniffing of the lockers and automobiles.
The use of the dogs to sniff the students, however, presents an entirely different problem. After all, the fourth amendment "protects people, not places." Katz v. United States,
The students' persons certainly are not the subject of lowered expectations of privacy. On the contrary, society recognizes the interest in the integrity of one's person, and the fourth amendment applies with its fullest vigor against any intrusion on the human body. In fact, the Supreme Court has suggested that all governmental intrusions upon personal security are governed by the fourth amendment:
In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness. Cf. Brinegar v. United States,
Terry v. Ohio,
The circuit courts have unanimously assumed that the use of magnetometers in airport terminals to detect concealed weapons, an activity fаr less intrusive than the use of large dogs to sniff the bodies of children, is a search. The Fourth Circuit originally held that the magnetometer walk-through
is still a search. Indeed, that is the very purpose of the magnetometer: to search for metal and disclose its presence in areas where there is a normal expectation of privacy.
United States v. Epperson,
The commentators agree that "the intensive smelling of people, even if done by dogs, (is) indecent and demeaning." 74 Nw.U.L.Rev. at 850; see also 71 J.Crim.L. & Criminology at 44. Most persons in our society deliberately attempt not to expose the odors emanating from their bodies to public smell. In contrast, where the Supreme Court has upheld limited investigations of body characteristics not justified by individualized suspicion, it has done so on the grounds that the particular characteristic was routinely exhibited to the public. United States v. Dionisio,
We need only look at the record in this case to see how a dog's sniffing technique-i.e., sniffing around each child, putting his nose on the child and scratching and manifesting other signs of excitement in the case of an alert-is intrusive. The SAI representative explained that Doberman pinschers and German shepherds were used precisely because of the image maintained by the large dogs. Newman depo. at 16. Plaintiff, Heather Horton, described what happened when the dog entered the classrooms:
Well, we were in the middle of a major French exam and the dog came in and walked up and down the aisles and stopped at every desk and sniffed on each side all around the people, the feet, the parts where you keep your books under the desk.
H. Horton depo. at 3. Ms. Horton went on to express her fear of the large dogs. Id. at 12. The SAI representative testified that the dogs put their noses "up against" the persons they are investigating. Newmаn depo. at 43.
On the basis of our examination of the record which indicates the degree of personal intrusiveness involved in this type of activity, we hold that sniffing by dogs of the students' persons in the manner involved in this case is a search within the purview of the fourth amendment. We need not decide today whether the use of dogs to sniff people in some other manner, e.g., at some distance, is a search.
Our decision that the sniffing is a search does not, however, compel the conclusion that it is constitutionally impermissible. The fourth amendment does not prohibit all searches; it only restricts the government to "reasonable" searches. The reasonableness of the procedure turns in this case on the school environment, to be discussed in Part II.B. But the reasonableness is also governed in part by general fourth amendment principles.
A dog's sniff of a person, particularly where the dogs actually touch the person as they do in the GCISD program, may be analogous to the warrantless "stop and frisk" upheld by the Supreme Court on the basis of a suspicion that fell short of probable cause. Terry v. Ohio,
The Court in effect adopted a balancing approach whereby the intrusiveness of the search is measured against society's need for the information. See generally 1 W. LaFave, Search and Seizure § 2.2(a), at 236 (1978). Similarly, the courts have upheld the warrantless use of magnetometers in light of their minimally intrusive character as weighed against the danger of skyjacking. E.g., Cyzewski, supra. Because the sniffing in this case occurred in a school envirоnment, we need not address the question whether the sniffing of a person in a non-school setting is sufficiently intrusive to require the full panoply of fourth amendment protections-probable cause and a warrant-or whether such sniffing is less intrusive, requiring only reasonable suspicion. We leave that question for another day.
B. The Fourth Amendment in the Public Schools.
The courts have encountered substantial difficulty in accommodating the fourth amendment to the special situation presented by the public schools, where school officials have both a right and a duty to provide a safe environment conducive to education. At one time, it was not uncommon for a court to view the school official who searched a student as acting under authority derived from the parent and therefore as a private party not subject to the constraints of the fourth amendment. See, e.g., Mercer v. State,
But the decision that school officials are governed by the fourth amendment does not dictate a holding that their activity in this case was unconstitutional. The basic concern of the fourth amendment is reasonableness,17 and reasonableness depends on the circumstances. Often the ordinary requirements of the fourth amendment are modified to deal with special situations. See, e.g., Terry, supra; Marshall v. Barlow's, Inc.,
When the school official acts in furtherance of his duty to maintain a safe environment conducive to education,19 the usual accommodation is to require that the school official have "reasonable cause" for his action. Although the standard is less stringent than that applicable to law enforcement officers, it requires more of the school official than good faith or minimal restraint. The Constitution does not permit good intentions to justify objectively outrageous intrusions on student privacy.20 See, e.g., Bellnier, supra; M. v. Board of Education,
At least one case has held that the reasonable cause standard applicable in the schools requires individualized suspicion. Bellnier, supra. There, a teacher had reason to believe that someone in her class of fifth graders had stolen three dollars, but had no reason to suspect any particular pupil. When a search of the coats and coatroom revealed nothing, the teacher and principal required each pupil to remove his shoes and empty his pockets. The twо officials then required each student to step into the washroom and strip to his undergarments. The court held the search unconstitutional, requiring the existence of facts giving the official reasonable particularized suspicions as a predicate for a search. Accord, People v. Scott D.,
C. The Further Searches.
The plaintiffs urge that, even if the initial sniffing of the cars and lockers by the dogs is permissible, the dogs' reactions do not give the defendant a sufficiently strong basis for suspicion to justify a further search. The district court stated that the "generalized perception of a problem of drug and alcohol abuse" along with the positive reaction of the dog give the school sufficient cause to believe that the student occupant or driver has violated school policy to justify opening the locker or car and searching it. The court did not, however, make any finding on the reliability of the dogs, and there was no evidence in the record to support such a finding. In fact, although the representative of SAI asserted that the dogs were quite reliable, he admitted that there were no comprehensive records kept of those incidents when the dogs reacted positively in the absence of contraband. On this record, then, we cannot say whether the reaction of the dogs provided adequate cause for more intrusive searches, and summary judgment is inappropriate. Fed.R.Civ.P. 56(c). We remand to the district court for development of the record on that point. The standard enunciated by the district court, however, was proper: GCISD need not show that the dogs are infallible or even that they are reliable enough to give the defendant probable cause; instead, the dogs must be reasonably reliable. It will not, however, be enough to show that the dogs are reasonably reliable in indicating the presence or recent presence of contraband. If the reaction is to justify a search, it must give rise to reasonable suspicion that the search will produce something-i.e., reasonable suspicion that contraband is currently present. If the school does have reasonable cause to suspect the presence of contraband, the ease with which it can be destroyed or moved presents an exigent circumstance that excuses the warrant requirement, e.g., United States v. Petty,
III. THE DUE PROCESS VIOLATION.
The plaintiffs also argue that the use of the dogs violates their rights under the fourteenth amendment, by depriving them of a liberty interest without due process. Because of our disposition of the fourth amendment issues arising out of the sniffing of the students, see Part II, we need not decide whether that practice entails a due process violation. The question remains whether the presence of a dog on campus, and the practice of occasionally allowing him to play on campus unrestrained by a leash but supervised by the handler, constitute a violation of the due process clause.
The dogs trained and providеd by SAI are large animals-usually German shepherds and Doberman pinschers, and occasionally Labradors-breeds selected because the animals are often sold to police forces who, according to the testimony of the SAI representative, use these dogs to maintain an image of strength and ferocity. The individual animals, however, are selected on the basis of their docility, and SAI has never received a complaint about the dogs' injuring anyone in any way.21 The defendant goes to considerable pains to educate the younger students, who are more likely to be frightened, by introducing the dogs at assemblies and demonstrating their friendliness. Furthermore, there is nothing in the record to indicate that those students who do not wish to join in the play with the dogs cannot avoid them.22
We recognize that large dogs, particularly those breeds that are sometimes used as attack dogs, often engender an irrational fear, and we do question the wisdom of permitting them to roam parts of the campus unleashed. But, as long as the dogs are carefully selected for their nonaggressive character, and the hаndlers supervise them during their playtime, we do not think that the minimal "harassment" arising from their mere presence on campus rises to the level of a constitutional violation.23
IV. CLASS CERTIFICATION.
The plaintiffs sought to maintain a class action under Rule 23, Fed.R.Civ.P. 23, requesting the district court to certify a class of all students currently enrolled in GCISD schools. The defendant opposed class certification, and the district court refused to certify the class.
The decision to grant or to deny certification is, as the defendant contends, initially committed to the sound discretion of the district judge, and the decision will not be overturned except for abuse of discretion. See, e.g., Doninger v. Pacific Northwest Bell, Inc.,
(1) The class must be so numerous that joinder of all members is impracticable;
(2) There must be questions of law or fact common to the class;
(3) The claims or defenses of the representative parties must be typical of the claims or defenses of the class; and
(4) The representative parties must fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). In addition, the action must fit within one of the categories of actions described in Rule 23(b).
In this case, the district judge offered no explanation of his denial of certification, stating only that "bald assertions will not support the requirements of proof necessary to satisfy Rule 23(a)." Although an unexplained decision renders review difficult, it need not preclude affirmance if there are obvious reasons justifying the district court's decision. See, e.g., Dussouy v. Gulf Coast Investment Corp.,
The district court identified correctly the cause for concern here as the adequacy of the named plaintiff, for it is clear that the case satisfies the other prerequisites to a class action.25 First, the class includes 15,400 members-all students enrolled in GCISD who are subject to the canine sniff searches. Even though the class members reside in a relatively small geographic area, the number renders joinder impracticable. Fed.R.Civ.P. 23(a) (1). Second, there are common questions of law and fact, including how the school district conducted the sniffing procedures and the subsequent body searches, whether the sniffing constitutes a search, and, if so, whether that search is unreasonable. Fed.R.Civ.P. 23(a)(2). Third, the claims of the named plaintiffs are typical of those of the class, for all three of the named plaintiffs have been subjected to sniffing, and two of the named plaintiffs have been subjected to further searches, Fed.R.Civ.P. 23(a)(3). See note 34. Fourth, the party opposing the class has acted on grounds generally applicable to the class, so that injunctive and declaratory relief with respect to the class as a whole are appropriate, Fed.R.Civ.P. 23(b)(2), leaving only the adequacy of the named plaintiffs in question, Fed.R.Civ.P. 23(a)(4).
The adequacy requirement mandates an inquiry into the zeal and competence of the representative's counsel and into the willingness and ability of the representative to take an active role in and control the litigation and to protect the interests of absentees, see, e.g., Jaurigui v. Arizona Board of Regents,
But the possibility of antagonism27 within the class remains. Although the defendant has offered no proof of disagreement except the assertion that other parents and students have not complained about the practice, we see the chance that some class members support the canine search program as a very real possibility, and apparently the district judge agreed. In many similar cases, district judges have certified classes without discussing the problems raised by the possibility of antagonistic interests. See, e.g., Lansdale v. Tyler Junior College,
We perceive unresolved tension between the cases permitting certification in these circumstances and the leading case on adequacy of representation for purposes of binding class members, Hansberry v. Lee,
It is one thing to say that some members of a class may represent other members in a litigation where the sole and common interest of the class in the litigation is either to assert a common right or challenge an asserted obligation. It is quite another to hold that all those who are free alternatively either to assert rights or to challenge them are of a single class so that any group merely because it is of the class so constituted, may be dеemed adequately to represent any others of the class in litigating their interests in either alternative. Such a selection of representatives ... does not afford that protection to absent parties which due process requires.
Hansberry, however, cannot be read to forbid class actions29 in every case in which class members disagree. On the contrary:
... (i)n any conceivable case, some of the members of the class will wish to assert their rights while others will not wish to do so. Thus the familiar case of the stockholders' derivative suit is almost invariably brought by minority stockholders to challenge action that a majority of the stockholders approve. Yet it is routinely regarded as an appropriate class suit. Another familiar class suit is that in which one or more taxpayers of a community, suing on behalf of all, challenge the validity of a proposed public expenditure. It is difficult to believe that there has ever been such a case in which a good many of the taxpayers would not have preferred that their rights not be enforced, because of their interest in having the expenditure made. Yet no one has ever doubted the propriety of bringing such a suit as а class action.
Wright, Class Actions,
In this case, a variety of techniques was available to the district judge. For instance, he could have ordered notice of the action and of the relief requested by the plaintiff to the other students and parents to be posted or distributed to the students at the schools, an effective and relatively inexpensive way to apprise other members of the litigation and to invite intervention to challenge the representation or to oppose the named plaintiffs.31 Those who chose not to intervene would have received the notice and opportunity to be heard that fulfills the requirements of Hansberry. In addition, the trial judge could have certified the class conditionally, before considering the merits of the summary judgment motions, to provide time for disagreement among class members to come to his attention.
We think it unnecessary to undertake these procedures in this particular case, although thеir use might increase the protection of the absentees, for we think that the parties in this case protected the interests of all absentees, as required by Hansberry.32 Though some members may disagree with the named plaintiffs, their position has been asserted energetically and forcefully by the defendant, which has argued that the school administration must be able to use these searches to combat a serious drug problem. Accord, Dierks v. Thompson,
V. CONCLUSION.
We conclude that the use of dogs in dragnet sniff-searches of the students of GCISD is unconstitutional, but that the use of the dogs in similar dragnet sniffing of lockers and cars is not, and we direct the district court to grant relief by appropriate declaration and injunction. Although the use of the dogs in dragnet sniffing of lockers and cars is permissible, we must remand to the district court for the case to proceed to trial on the reliability of the dogs' reactions as the basis for further searches. We also direct certification of a class on the issue of the constitutionality of the practices.
AFFIRMED in part, REVERSED in part, and REMANDED.
Notes
The parties agree that no such intrusive searches as strip searches or body cavity searches occur
We use "contraband" to refer to all substances that the school forbids students to possess, even if possession violates no law
The following list is not exhaustive. United States v. Johnson,
Seе, e.g., Goldstein, supra; Sullivan, supra; Bronstein, supra; Denman, supra
State v. Elkins,
United States v. Venema,
United States v. Solis,
State v. Martinez,
In reaching that conclusion, however, many of the leading cases explicitly rely on the existence of some basis for suspicion less than probable cause, before the police brought in their canine assistants. See, e.g., Bronstein at 463, 465 (Mansfield J., concurring); Sullivan, supra at 11-12; United States v. Klein,
All the cases cited in note 3, with the exception of Burns, involved unattended property. Burns involved a sniffing investigation incident to a valid arrest, so the evidence was admissible regardless of whether the sniffing qualified as a search. Thus the decided cases do not govern the sniffing of attended property or of persons
See, e.g., Goldstein; Bronstein
See, e.g., Bronstein, supra at 462 & n.3
If anything, one's expectation of privacy in a car is lower than in one's luggage. Cardwell v. Lewis,
Gardner, Sniffing for Drugs in the Classroom-Perspectives on Fourth Amendment Scope, 74 Nw.U.L.Rev. 803 (1980); Comment, Search & Seizure in the Public Schools: Are Our Children's Rights Going to the Dogs?, 24 St. Louis U.L.J. 119 (1979); Note, The Constitutionality of Canine Searches in the Classroom, 71 J.Crim.L. & Criminology 39 (1980)
See also, Bell v. Wolfish,
Tex.Educ.Code Ann. § 21.032 (Vernon Supp.1982). Given the public interest in encouraging noncompulsory secondary education and the social pressures to remain in school, as well as the difficulty of applying different standards to the 17- and 18-year-olds in the public school system, our discussion applies equally to those students not legally compelled to attend school
Terry v. Ohio,
Courts usually refer to the basis of these powers as the in loco parentis doctrine. Under that doctrine, parents were viewed as ceding their parental powers over and duties to protect the best interests of a child to the school official, who then could act toward the child in any way that the parent could, exercising the same disciplinary and supervisory powers. Although the courts no longer view this doctrine as making the official effectively a private party, they still explain the broad powers of the school official as derived from his in loco parentis duties. We cannot accept this view. The law recognizes broad powers in a parent in part because one can safely assume that the parent will exercise those powers in the best interests of the child. The school administrator's duties, however, are not always exercised with only the child who is being disciplined or searched in mind. On the contrary, the school official must bear in mind the interests of all the students committed to his supervision and frequently actions toward one child will be taken to protect other children from him. To that extent, it no longer makes sense to view the school official as the equivalent of a parent. See generally, Mercer v. State, supra at 720-21 (Hughes, J., dissenting); 59 Iowa L.Rev. at 768; cf. Young, supra
We intimate no opinion as to the standards to be applied when a school official acts at the request of the police, calls in the police before searching, or turns over the fruits of his search to the police. In that situation, when there is some component of law enforcement activity in the school official's actions, the considerations may be critically different. See, e.g., Picha v. Wielgos,
Contra, Stern v. New Haven Community Schools,
According to the representative of SAI, one student was scratched slightly when he played with one of the dogs, but he did not register any complaint. One who chooses to play with a large dog assumes the risk of incurring minor scratches and bruises in the rough-and-tumble, and we think that the students can differentiate between an unprovoked attack and an incidental scratch. It is unlikely that such an incident contributes to the intimidation alleged by the plaintiffs
We reiterate that we leave undecided whether the use of the dogs to sniff the students themselves would be a fourteenth amendment violation
We have found no authority to the contrary, and the plaintiffs have cited none. The only cases cited by the plaintiffs deal with the possible existence of a liberty or property interest in the renewal of government employment and the possible existence of a liberty interest in one's reputation. Board of Regents v. Roth,
The judge may have thought that the plaintiffs simply failed to meet their burden of proof. As our discussion will show, we disagree
Technically, only the requirements of section (a) of Rule 23 are "prerequisites" to a class action, and section (b) describes the categories of classes maintainable as class actions. The discussion here will treat qualification for a Rule 23(b) category as a prerequisite to class actions
We reject the suggestion in the defendant's brief that a putative representative must present proof of financial resources in order to meet his burden of proof on the issue of adequacy. The case relied upon by the defendant holds only that the class opponent may undertake discovery of the putative representative's financial condition. See Klein, supra. In the absence of any reason to believe that the named plaintiffs have inadequate resources and particularly in the light of their proven ability to litigate and pursue an appeal, we think that the plaintiffs have met their burden on this issue. See generally Comment, Class Certification: Relevance of Plaintiff's Finances and Fee Arrangements with Counsel, 40 U.Pitt.L.Rev. 70, 82 (1978)
Intra-class antagonism may be analyzed under either Rule 23(a)(4), the adequacy requirement, or Rule 23(a)(3), the typicality requirement. See 7 C. Wright & A. Miller, Federal Practice and Procedure §§ 1768, 1769 (1972). The requirements are closely related, for demanding typicality on the part of the representative helps ensure his adequacy as a representative. We prefer to analyze the question of intra-class antagonism under the requirement that the representative protect adequately the interests of the class rather than under the requirement that his claims be typical, because each class member has the claim asserted by the plaintiffs, so the plaintiffs' claims are typical, but many members do not see it as in their best interests to assert that claim. The real question then is whether, in spite of the typicality of their claims, the named plaintiffs can adequately represent the interests of thе class, including any interest in not asserting claims
See, e.g., Aiken, supra at 704; see generally 7 C. Wright & A. Miller, Federal Practice and Procedure § 1759 (1972)
Hansberry, of course, does not directly forbid class actions; it simply held that some class actions will not bind the class. But Rule 23(a) is designed to permit certification only in those cases in which the class can be bound and in which courts in subsequent actions would hold, consonant with due process, that res judicata barred any further litigation by class members on the cause of action. See Fed.R.Civ.P. 23(c)(3) (advisory committee note). Thus Hansberry indirectly prohibits class actions that will not bind the class
Fed.R.Civ.P. 23(c)(1)
Cf. Snyder v. Board of Trustees,
A second consideration supporting our decision is that the absentee members will not be much better protected from the effect of the decision if we deny certification. In a case like this one, the stare decisis effect of our decision that the sniffing procedures as they relate to the students are unconstitutional will, as a practical matter, put an end to all searches. See Ihrke, supra; Snyder, supra; Rosado v. Wyman,
There may also be disagreement among class members over appropriate relief. On that issue, we cannot depend on the defendant to represent the views of all absentees. As a result, we direct certification on the issue of liability only, a procedure explicitly provided by Rule 23(c)(4)(A)
The defendant suggested in the district court but has not argued before us that the case was moot as to Robby Horton and Sandra Sanchez, who were seniors when the complaint was filed. Robby did not graduate before the district court decision, but presumably he and Sandra have both graduated, and Heather is currently a junior. Even if the certification in this case does not "relate back" to the filing of the complaint, Sosna v. Iowa,