The opinion of the court was delivered by: MUNSON
MEMORANDUM - DECISION AND ORDER
This is an action whereby the plaintiff children, through their parents comme next friends, seek redress for an allegedly unlawful strip search claimed to have been conducted or condoned by defendants, all of whom are employed by the Auburn Enlarged City School District in one capacity or another. Plaintiffs seek legal, injunctive, and declaratory relief in their action, which is maintained under 42 U.S.C. §§ 1983 and 1985, as well as the Fourth, Ninth and Fourteenth Amendments of the United States Constitution. Jurisdiction is alleged to exist by virtue of 28 U.S.C. §§ 1331, 1343(3) and 1343(4). Both parties have moved for a summary judgment, pursuant to F.R.C.P. Rule 56, with plaintiffs seeking a partial summary judgment, the issue of damages to be left for trial. A review of the pleadings, as supplemented by the affidavits of defendants Lund, Reardon, Parker, Butcher, and Knox, reveals that, with one minor exception which will not affect the outcome of the pending motion, there are no material issues of fact to be determined with respect to the question of defendants' liability. This case is therefore an appropriate one for a summary judgment. F.R.C.P. Rule 56.
On the morning of December 6, 1974, plaintiffs and their classmates, members of the fifth grade class at Auburn's Lincoln Elementary School, arrived at the classroom in their usual fashion. Each of the students entered the classroom and placed his outer garment in a coatroom located wholly within, and accessible only from, the classroom itself. The teacher of the class, defendant Reardon, stood at or near the classroom door during this time while the student teacher, defendant Olson, remained inside the classroom. Once inside the room, no student left prior to the alleged search now the subject of this action.
Sometime that morning, and prior to the commencement of class, plaintiff Leonti complained to defendant Olson that he was missing $3.00 from his coat pocket. Plaintiff Leonti stated that he was sure that he had $4.00 when he arrived at school, showing defendant Reardon the four raffle ticket stubs indicating sales proceeds in the amount of $4.00, only $1.00 of which remained in Leonti's pocket.
An appeal by defendant Reardon to the class regarding knowledge of the missing money proved fruitless. Being aware of prior complaints from class members of missing money, lunches, and other items, and knowing that no one had left the classroom that morning, defendant Reardon commenced a search of the class, with the aid of fellow teachers and school officials, all of whom are named as defendants herein.
The outer garments hanging in the coatroom were searched initially. The students were then asked to empty their pockets and remove their shoes. A search of those items failed to reveal the missing money. The class members were then taken to their respective restrooms, the girls to the girls' room by defendants Olson and Butcher, and the boys to the boys' room by defendants Reardon, Parker, and Lund. The students were there ordered to strip down to their undergarments, and their clothes were searched.
When the strip searches proved futile, the students were returned to the classroom. There, a search was conducted of their desks, books, and once again of their coats.
The entire search lasted approximately two hours, with the strip searches taking about fifteen minutes. The missing money was never located.
Defendant Knox was employed in December of 1974 by the Auburn Enlarged City School District as the Superintendent of Schools. Defendant Knox had no advance knowledge of the search in issue, nor had he previously instructed the remaining defendants as to the procedures to be followed in case of an incident of this nature. Defendant Knox's sole participation in the incident occurred on December 9, 1974, when, while speaking at a formal meeting of the School Board, he defended the legality of the search in issue.
It is clear that the major thrust of plaintiffs' cause of action is based upon 42 U.S.C. § 1983,
inasmuch as there is no allegation of racial or other class-based invidiously discriminatory animus behind the defendant conspirators' actions, nor is there alleged the existence of a conspiracy, both of which are required in order to state a cause of action under 42 U.S.C. § 1985. Waits v. McGowan, 516 F.2d 203 (3d Cir. 1975). Section 1983 requires a showing of action "under color of any statute, ordinance, regulation, custom, or usage of any State or Territory" to support a cause of action. This element, loosely termed as "state action", is highly amorphous, and is generally determined on a case-by-case basis after an analysis of the facts involved. Perez v. Sugarman, 499 F.2d 761 (2d Cir. 1974). State action is generally found to exist when what is involved is the exercise of power possessed only because the wrongdoer is clothed with the authority of state law. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), citing United States v. Classic, 313 U.S. 299, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941); see also Brooks v. Flagg Brothers, Inc., 553 F.2d 764 (2d Cir. 1977). As the Supreme Court has stated with reference to the Equal Protection clause of the Fourteenth Amendment, though equally applicable to the Due Process clause, state action exists when
[the] state has so far insinuated itself into a position of interdependence with [defendants' lessee] that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so "purely private" as to fall within the scope of the Fourteenth Amendment.
Burton v. Wilmington Pkg. Auth., 365 U.S. 715, 725, 81 S. Ct. 856, 862, 6 L. Ed. 2d 45 (1961). As a corollary to the state action rule, it is generally stated that to prove a cause of action under § 1983, one need not show that the constitutional or statutory infringement complained of is supported by state law, as long as there is some nexus between the state involvement and the deprivation. See, e.g., McCabe v. Nassau County Medical Center, 453 F.2d 698 (2d Cir. 1971); see also Barrett v. United Hospital, 376 F. Supp. 791 (S.D.N.Y.1974), aff'd, 506 F.2d 1395 (2d Cir. 1974).
While it would seem self-evident that the actions of a teacher or school official employed by a public municipality board of education would constitute state action under Monroe v. Pape, supra, this has not been a universally held notion among the various federal courts.
Compare Palacios v. Foltz, 441 F.2d 1196 (10th Cir. 1971), with Warren v. National Ass'n of Sec. School Principals, 375 F. Supp. 1043 (N.D.Tex.1974), and Lopez v. Williams, 372 F. Supp. 1279 (S.D.Ohio, E.D.1973), aff'd, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975); also, cf. Baltic Ind. Sch. Dist. v. South Dakota H. Sch. Act. Ass'n, 362 F. Supp. 780 (D.S.Dak.S.D.1973). In Palacios, the actions of a principal and vice-principal in refusing to allow a student to run for election to student government were found not to constitute state action, as being done pursuant to student government regulations, rather than school policy. Cf. Tinker v. Des Moines School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). In Lopez, suspension of students by a principal was found to constitute state action where the procedures used and challenged on Due Process grounds were expressly provided for in the Ohio Constitution, ...