Test case: drugs and extracurricular activities: Supreme Court rules random drug testing is constitutional without identifiable drug problem – NRPA Law Review
James Kozlowski
In the case of Board of Education of Independent School Dist. No. 92 of Pottawatomie County v. Earls, No. 01-332 (U.S. 06/27/2002), the U.S. Supreme Court ruled in favor of the constitutionality of a mandatory drug testing policy for all students who participated in competitive extracurricular activities. The decision reversed the federal circuit court’s decision, which was the subject of the July 2001 NRPA Law Review. The facts of the case were as follows:
The city of Tecumseh, Okla., is a rural community located approximately 40
miles southeast of Oklahoma City. The school district administers all
Tecumseh public schools. In the fall of 1998, the school district adopted
the Student Activities Drug Testing Policy, which requires all middle and
high school students to consent to drug testing in order to participate in
any extracurricular activity.
Under the policy students are required to take a drug test before
participating in an extracurricular activity; must submit to random drug
testing while participating in that activity and must agree to be tested at
any time upon reasonable suspicion. The urinalysis tests are designed to
detect only the use of illegal drugs, including amphetamines, marijuana,
cocaine, opiates and barbituates, not medical conditions or the presence of
authorized prescription medications.
During this time, Lindsay and James were students attending Tecumseh High School and either participating or planned to participate in non-athletic extracurricular activities. In their complaint, the students alleged that the policy constituted an unreasonable governmental search and seizure in violation of the Fourth Amendment, which was applicable to the school board through the 14th Amendment to the U.S. Constitution. The students claimed the school district had “failed to identify a special need for testing students who participate in extracurricular activities.”
Applying the principles articulated by the Supreme Court in Vernonia School Dist. 47 J v. Acton, 515 U. S. 646 (1995), the federal district court rejected the students’ claim that the policy was unconstitutional and granted summary judgment in favor of the school district. In Vernonia, the Supreme Court had upheld “the suspicionless drug testing of school athletes.”
In this instance, the federal district court noted that “special needs exist in the public school context and that, although the school district did not show a drug problem of epidemic proportions, there was a history of drug abuse starting in 1970 that presented legitimate cause for concern.” Moreover, the district court found “the drug problem among the student body is effectively addressed by making sure that the large number of students participating in competitive, extracurricular activities do not use drugs.”
The students appealed to the U.S. Court of Appeals for the Tenth Circuit. The federal appeals court reversed, holding that the policy violated the Fourth Amendment. In reaching this conclusion, the appeals court held that a school “must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem.” The appeals court concluded the policy was unconstitutional because the school district had failed to “demonstrate such a problem existed among Tecumseh students participating in competitive extracurricular activities.” The Supreme Court granted the school board’s petition to review this decision.
Search Standards
As cited by the Supreme Court, “[t]he Fourth Amendment to the United States Constitution protects the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” Moreover, the court acknowledged that “[s]earches by public school officials, such as the collection of urine samples, implicate Fourth Amendment interests.” Accordingly, the court stated it “would review the school district’s policy for `reasonableness,’ which is the touchstone of the constitutionality of a governmental search.”
On appeal, the students had argued that “drug testing must be based at least on some level of individualized suspicion.” The Supreme Court rejected this argument.
It is true that we generally determine the reasonableness of a search by
balancing the nature of the intrusion on the individual’s privacy against
the promotion of legitimate governmental interests. But we have long held
that the Fourth Amendment imposes no irreducible requirement of
individualized suspicion. In certain limited circumstances, the
government’s need to discover such latent or hidden conditions, or to
prevent their development, is sufficiently compelling to justify the
intrusion on privacy entailed by conducting such searches without any
measure of individualized suspicion.
While school children do not shed their constitutional rights when they
enter the schoolhouse, Fourth Amendment rights are different in public
schools than elsewhere; the “reasonableness” inquiry cannot disregard the
schools’ custodial and tutelary responsibility for children. In particular,
a finding of individualized suspicion may not be necessary when a school
conducts drug testing.
Accordingly, in considering the constitutionality of a drug testing policy, the Supreme Court would conduct “a fact-specific balancing of the intrusion on the children’s Fourth Amendment rights against the promotion of legitimate governmental interests.” In so doing, the court would “first consider the nature of the privacy interest allegedly compromised by the drug testing.” The court found it significant that “the policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.”
When the government acts as guardian and tutor the relevant question is
whether the search is one that a reasonable guardian and tutor might
undertake. A student’s privacy interest is limited in a public school
environment where the state is responsible for maintaining discipline,
health and safety. School children are routinely required to submit to
physical examinations and vaccinations against disease.
As a result, the court concluded that “the students affected by this policy have a limited expectation of privacy.” The court then considered “the character of the intrusion imposed by the policy.” In so doing, the court noted that “[u]rination is an excretory function traditionally shielded by great privacy.” The court acknowledged, however, that “the degree of intrusion on one’s privacy caused by collecting a urine sample depends upon the manner in which production of the urine sample is monitored.” The court found “the minimally intrusive nature of the sample collection and the limited uses to which the test results are put” did not constitute a significant invasion of students’ privacy.
Under the policy, a faculty monitor waits outside the closed restroom stall
for the student to produce a sample and must listen for the normal sounds
of urination in order to guard against tampered specimens and to insure an
accurate chain of custody. The monitor then pours the sample into two
bottles that are sealed and placed into a mailing pouch along with a
consent form signed by the student.
In addition, the policy clearly requires that the test results be kept in
confidential files separate from a student’s other educational records and
released to school personnel only on a “need to know” basis. Moreover, the
test results are not turned over to any law enforcement authority. Nor do
the test results here lead to the imposition of discipline or have any
academic consequences. Rather, the only consequence of a failed drug test
is to limit the student’s privilege of participating in extracurricular
activities. Indeed, a student may test positive for drugs twice and still
be allowed to participate in extracurricular activities.
Immediate Governmental Concern
Having addressed the policy’s intrusion on the children’s Fourth Amendment rights, the court then considered “the nature and immediacy of the government’s concerns and the efficacy of the policy in meeting them.” While noting “the importance of the governmental concern in preventing drug use by school children,” the court found that “the school district in this case has presented specific evidence of drug use at Tecumseh schools.”
Teachers testified that they had seen students who appeared to be under the
influence of drugs and that they had heard students speaking openly about
using drugs. A drug dog found marijuana cigarettes near the school parking
lot. Police officers once found drugs or drug paraphernalia in a car driven
by a Future Farmers of America member. And the school board president
reported that people in the community were calling the board to discuss the
“drug situation.”
Based upon such evidence, the Supreme Court refused to “second-guess the finding of the district court that viewing the evidence as a whole, it cannot be reasonably disputed that the school district was faced with a `drug problem’ when it adopted the policy.” On appeal, the students claimed this evidence was insufficient to establish a “real and immediate” governmental concern that would “justify a policy of drug testing non-athletes.” The court disagreed. According to the Supreme Court, “a particularized or pervasive drug problem” is not required “before allowing the government to conduct suspicionless drug testing.” On the contrary, the court found “sortie showing does shore up an assertion of special need for a suspicionless general search program.”
Applying this reasoning to the facts of the case, the court found the school district had “provided sufficient evidence to shore up the need for its drug testing program.”
[T]he need to prevent and deter the substantial harm of childhood drug use
provides the necessary immediacy for a school testing policy. Indeed, it
would make little sense to require a school district to wait for a
substantial portion of its students to begin using drugs before it was
allowed to institute a drug testing program designed to deter drug use.
Accordingly, the Supreme Court “reject[ed] the Court of Appeals’ novel test that any district seeking to impose a random suspicionless drug testing policy as a condition to participation in a school activity must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem.”
Among other problems, it would be difficult to administer such a test. As
we cannot articulate a threshold level of drug use that would suffice to
justify a drug testing program for schoolchildren, we refuse to fashion
what would in effect be a constitutional quantum of drug use necessary to
show a “drug problem.”
As a result, the Supreme Court concluded that “testing students who participate in extracurricular activities is a reasonably effective means of addressing the school district’s legitimate concerns in preventing, deterring and detecting drug use.” Moreover, the court found that “the drug testing of Tecumseh students who participate in extracurricular activities effectively serves the school district’s interest in protecting the safety and health of its students.”
Within the limits of the Fourth Amendment, local school boards must assess
the desirability of drug testing schoolchildren. In upholding the
constitutionality of the policy, we express no opinion as to its wisdom.
Rather, we hold only that Tecumseh’s policy is a reasonable means of
furthering the school district’s important interest in preventing and
deterring drug use among its schoolchildren.
Accordingly, the Supreme court reversed the judgment of the Court of Appeals, which had found the policy unconstitutional.
Dr. Kozlowski is an associate professor in the health, fitness and recreation resources program at George Mason University, in Fairfax, Va., and legal/legislative counsel to the NRPA Division of Public Policy. He can be reached at jkozlows@gmu.edu or http://mason.gmu.edu/~jkozlows.
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