Legally Weird - The FindLaw Legal Curiosities Blog

Texas School's Underwear 'Poop Inspections' Prompt Investigation

The administration at an elementary school in Gustine, Texas, was fed up with "finding poop on the gym floor," as one parent told Dallas' WFAA-TV. (Apparently, it was an ongoing problem.) They decided to get to the bottom of the caper by forcing students to pull down their pants and expose their underwear to check for poo.

Predictably, the school's actions angered parents -- along with the school district's superintendent, who said he would take "disciplinary action."

Was this independent investigation into the ca-ca caper even legal?

Strip Searches at School

The U.S. Supreme Court faced a similar dilemma in 2009, when it had to decide whether the search of a 13-year-old girl's underwear was constitutional. The girl's crime? Allegedly possessing a single 400 mg Ibuprofen pill.

The Court concluded that "reasonable suspicion" was the standard for conducting searches at school -- less than the probable cause required out in the real world. And was that search reasonable? Absolutely not, the Court said, noting that "the content of the suspicion failed to match the degree of intrusion."

Though possessing such a pill was technically against school rules (a 400 mg dose is prescription-only, and the school requires prior parental approval for a child to have prescription drugs at school), a single prescription-strength analgesic wasn't dangerous enough to permit a strip search, the Court explained. So, even if it were true that the girl had a 400 mg Ibuprofen pill hidden somewhere on her body, that fact alone wasn't enough to merit the intrusion and "indignity" of a strip search.

The majority opinion used the word "danger" several times. So would poop on the gym floor be dangerous enough to merit strip searches in the current Texas debacle? Probably not. There's no reason to believe that, even if school officials found poo in someone's drawers, it would present a danger to the school or to anyone else.

Offensive? Sure. Annoying? Certainly, especially for the person who has to clean it up. But not dangerous.

Qualified Immunity

Here's some more bad news for the Texas school. In the 2009 Supreme Court case, that school had the benefit of "qualified immunity," a doctrine that protects public officials who act in the absence of established law. Back then, no Supreme Court decision had said school officials couldn't strip search students to find non-dangerous prescription drugs, so the school district was ultimately protected from liability.

Because that case is on the books now, the Gustine Independent School District and its employees are on notice that strip searches for non-dangerous contraband are unconstitutional. That fact opens up the school to a potential lawsuit for which it can't use "qualified immunity" as a defense.

The superintendent hasn't said what will happen, as the investigation is still ongoing. Presumably, someone's getting fired, and we wouldn't be surprised if someone ends up getting sued.

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