Houston appellate attorney Peter Kelly.

After a Houston Independent School District assistant principal allegedly ordered a mass suspicionless strip search of 22 preteen sixth grade girls in an attempt to locate $50, two of their mothers sued the school district, only to see their case dismissed by a federal judge—even though all parties agreed the search violated the girls’ constitutional rights.

But Houston appellate lawyer Peter Kelly recently convinced the U.S. Court of Appeals for the Fifth Circuit that the mothers should be allowed to present their civil rights case against HISD to a jury as well as pursue an injunction against the school district requiring it to clarify its search policy and provide at least some Fourth Amendment training to its employees.

The mothers alleged that an assistant principal at Houston’s Lanier Middle School was brought in to investigate how $50 went missing during their daughters’ choir class. When no money turned up, the assistant principal took all 22 girls to the female school nurse who strip searched them one at a time in a bathroom. No parents were notified despite the girls’ requests and no money was found.

HISD allegedly permits its school officials to conduct invasive searches of students’ persons but provides no training as to how to do so legally. According to school regulations, school officials are allowed to search students if the student is in possession of “contraband” including drugs, weapons or alcohol.

In the wake of the strip search, the assistant principal was admonished by the school’s principal for “requesting a search of students’ persons for items other than ‘contraband.’”

The two mothers later sued HISD in a Houston federal district court alleging violations of their daughters’ civil rights. The school district filed a motion to dismiss the case for failure to state a claim and while that motion was pending provided copies of its policies allowing strip searches of students. The district court eventually granted HISD’s motion to dismiss the case—a decision the mothers appealed to the Fifth Circuit.

In its June 27 decision in Littell v. HISD, the Fifth Circuit concluded that the school district’s failure to train its employees on how to search students legally was enough to sustain the plaintiffs’ claims that the school was deliberately indifferent to their right to be free of improper Fourth Amendment searches.

“Here, the alleged facts, taken together and assumed to be true, permit the reasonable inference—i.e., the claim has facial plausibility—that the risk of public officials’ conducting unconstitutional searches was or should have been a ‘highly predictable consequence’ of the school district’s decision to provide its staff no training regarding the Constitution’s constraints on searches,” wrote Judge Stephen Higginson in a decision reversing the trial court dismissal of the case and remanding it for further hearings.

“In short, this case presents an alleged ‘complete failure to train’ of the kind we have found actionable,” Higginson wrote. “Plaintiffs’ allegations of deliberate indifference survive a motion to dismiss.”

Kelly was pleased with the decision, one he considers a difficult win in light of the fact that there are numerous appellate decisions protecting public school districts from liability if they have a  written policy addressing a particular issue.

“HISD says, ‘Hey, we have a policy on this regarding strip searches,’” said Kelly, a partner in Kelly, Durham & Pittard. “And my argument was, ‘It’s nice that you have a policy in a notebook on a shelf, but you actually have to train people on it and make them aware of it.’ So the school district policy is not just the written policy but the practical policy of whether or not to train the people.”

Kelly even borrowed the words of an American soul music legend to make his point to the Fifth Circuit. “I quoted James Brown in my oral argument: ‘Saying it and doing it are two different things.’”

“I’m happy for my clients that we’ll finally get our day in court,’’ Kelly added.

Rebecca S. Bailey, a senior associate with Houston’s Thompson & Horton who represents HISD in the case, did not return a call for comment.