SCHOOL LAW: "REASONABLE" DRUG TESTING

The Supreme Court draws a clear line for school districts.

The Fourth Amendment contains one of the law's great fudge words: It
prohibits "unreasonable" searches and seizures. But the very
elasticity of "reasonableness" can be both a blessing and a curse for
school officials. Sometimes, courts rely on the word to give school
officials great flexibility, but in other cases, "reasonableness"
proves to be a standardless standard that gives school officials
inadequate guidance.

School employees yearn for clear rules -- what lawyers call "bright
line rules" that are so clear and broad that nonlawyers can easily
apply them to large categories of cases. The U.S. Supreme Court's
recent decision about random drug testing for students taking part in
extracurricular activities has given school officials just such a
bright line rule.

The case, Board of Education of Independent School District No. 92 of
Pottawatomie County v. Earls, concerned a policy of the school board
in Tecumseh, Okla., that requires all students who participate in
extracurricular activities to submit to random urinalysis to test for
the presence of illegal drugs. Here are the facts, taken from the
majority opinion of the Supreme Court.

The Policy

The district adopted the drug testing policy in 1998, only three years
after the Supreme Court's 1995 decision in Vernonia School District v.
Acton upheld an Oregon school district's drug testing policy for
athletes. The Tecumseh policy requires all middle school and high
school students to agree to drug testing as a condition of taking part
in extracurricular activities. The district has applied the policy
only to competitive interscholastic activities, such as band, choir,
cheerleading, Future Farmers of America (FFA), Future Homemakers of
America (FHA), and -- of course -- sports.

The Tecumseh policy, then, casts a markedly wider net than the
Vernonia policy. It requires students to submit to urinalysis before
joining an extracurricular group, to random urinalysis for the period
of time in which they participate, and to urinalysis at any time if
school employees have reasonable suspicion of drug use. The test
detects only illegal drugs, and it does not detect alcohol.

The policy requires a student to provide a urine sample in a closed
restroom stall while a teacher waits outside. The teacher pours the
sample into two bottles, seals the bottles, and puts them in a mailing
pouch with the student's signed consent form.

If a student tests positive, school employees will meet with the
student's parents. The student can continue to take part in the
activity if he or she receives counseling and takes a second drug
test. After a second positive test, the school will suspend the
student from all extracurricular activities for 14 days, and the
student must take a drug test every month. A third positive test will
result in suspension from extracurricular activities for the rest of
the school year or 88 school days -- whichever is longer.

The policy contains these confidentiality provisions: Results must be
kept in confidential files apart from students' other records; school
employees may review the results only if they have a legitimate need
to know them; and the school district does not give drug test results
to law enforcement agencies. A positive test does not trigger
disciplinary or academic penalties.

Students Lindsay Earls and Daniel James and their parents sued the
Tecumseh school board in Federal District Court, contending that the
policy violates the Fourth Amendment. They did not challenge the
district's drug testing for athletes. Lindsay was a member of the
National Honor Society, the academic team, the show choir, and the
marching band. Daniel wanted to join the academic team.

The district court upheld the policy. But on appeal, the U.S. Court of
Appeals for the 10th Circuit ruled for Lindsay and Daniel (see
"Testing the Limits on Drug Tests,"ASBJ, August 2001,). The U.S.
Supreme Court then agreed to the board's request to review the case.

The Legal Analysis

In a 5-4 decision, the Supreme Court reversed the 10th Circuit's
decision and upheld the policy. Writing for the majority, Justice
Clarence Thomas cast this case as a logical extension of Vernonia.

First, he contrasted the law governing searches by law enforcement
officers with searches of students conducted by school employees. In
ordinary cases, law enforcement officers must have a search warrant
and probable cause to conduct a search. As Thomas explained, the
Fourth Amendment holds school searches to a lower, more flexible
standard: A school employee does not need a search warrant to search a
student, and a school search is "reasonable" under the Fourth
Amendment if the employee has an "articulable suspicion" that the
search will reveal contraband or a violation of a law or school rule.

Thomas rejected the argument of Lindsay and Daniel that school
searches always require "individualized suspicion" of wrongdoing by
the particular student to be searched. He wrote that individualized
suspicion might not be necessary if "special needs" justify a school
search.

Then Thomas followed the four-part analysis used by the Supreme Court
to decide whether a challenged search is "reasonable" under the Fourth
Amendment by considering (1) the nature and strength of the privacy
interests of students affected by the policy, (2) the degree of
intrusion into that privacy, (3) the nature and strength of the school
district's interests, and (4) the degree to which the policy satisfies
those interests.

* Privacy interests. Justice Thomas stated that students have
relatively low interest in privacy because schools have a
responsibility to preserve health, safety, and discipline among
students. For example, he noted, school regulations require students
to undergo medical examinations and to submit to vaccinations. Thomas
also wrote that students taking part in competitive, nonathletic
extracurricular activities voluntarily agree to some of the same
privacy limitations faced by athletes, such as regulation of conduct
and sometimes even communal undress during trips off campus.

* Degree of intrusion. Thomas found that the Tecumseh procedure for
collecting urine samples is no more physically intrusive than the
Vernonia procedure, which the high court had regarded as "negligible."
The confidentiality of test results and the nondisciplinary and
nonacademic consequences of positive tests also limit the policy's
intrusive effect, he said. Lindsay and Daniel had alleged that a choir
teacher had left students' prescription drug lists out where other
students might see them, but Thomas dismissed this episode as merely
one minor instance of carelessness.

* The school district's interests. Thomas highlighted statistics
showing a continuing "nationwide drug epidemic [that] makes the war
against drugs a pressing concern in every school." He wrote about
evidence of drug use in Tecumseh schools, including testimony by
teachers that they had seen students who seemed to be under the
influence of drugs and the finding of drugs or drug paraphernalia in a
car driven by an FFA member. Thomas concluded that a school district
does not have to show "a pervasive or particularized drug problem" in
order to demonstrate a special need for random, suspicionless drug
testing.

* The degree to which the policy satisfies those interests. Thomas
rejected the 10th Circuit's position that a school district must
demonstrate "an identifiable drug abuse problem" among a sufficient
number of the categories of students to be tested before a district
could require random testing of those students. Stressing the
preventive purpose of the policy, he wrote, "... the 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."

Thomas also cautioned, "We question whether testing based on
individualized suspicion in fact would be less intrusive. Such a
regime would place an additional burden on public school teachers who
are already tasked with the difficult job of maintaining order and
discipline. A program of individualized suspicion might unfairly
target members of unpopular groups."

Finally, Thomas downplayed two factors the high court had found important in
upholding the policy for testing athletes in Vernonia: the special safety
concerns about the impact of drugs on athletes and the evidence that the
drug abuse problem in that case had been "fueled by the 'role model' effect
of athletes' drug use." Thomas wrote that drug use poses health risks for
nonathletes and athletes alike, and that the "role model effect" was not
essential to the court's decision in Vernonia.

He concluded by disclaiming any "opinion as to [the policy's] 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."

The Dissent

Justice Ruth Bader Ginsburg spoke for four justices in her strong and
spirited dissent. The heart of her opinion was her sharp contrast
between this case and Vernonia. For example, Ginsburg observed that
the privacy interests of student athletes are unique because the
nature and extent of communal undress is unique to sports. Even if
members of a show choir might travel and stay together in motel rooms,
a shared locker room represents a quantum leap in exposure.

Also, Ginsburg wrote that the urgency of the school district's concern
in Vernonia was much greater than the urgency here. In Vernonia,
evidence showed that a "large segment of the student body,
particularly those involved in interscholastic athletics, was in a
state of rebellion ... fueled by alcohol and drug use as well as the
student[s'] misperceptions about the drug culture."

In contrast, the Tecumseh school district repeatedly stated in federal
grant applications that it did not have a major drug problem. Evidence
in Vernonia showed a causal link between substance abuse and injuries
to athletes -- a stronger, more direct causal effect than the health
risks posed to the general population. And, as Ginsburg noted, if the
general health risks posed by drugs justify testing of nonathletes,
then the majority's argument would justify random testing of all
students, not just students involved in extracurricular activities.

As Ginsburg wrote regarding safety concerns about the effects of drugs
on members of FFA, FHA, and marching bands, "Notwithstanding
nightmarish images of out-of-control flatware, livestock run amok, and
colliding tubas disturbing the peace and quiet of Tecumseh, the great
majority of students the school district seeks to test in truth are
engaged in activities that are not safety sensitive to an unusual degree."

Also, evidence in Vernonia proved that the group targeted by the tests
- -- athletes -- "were the leaders of the drug culture" because of their
prominence as teenage role models. In this case, though, the school
district did not show any role model effect caused by students
involved in extracurricular activities. As Ginsburg noted, students
who take part in extracurricular activities generally are less likely
than other students to engage in substance abuse.

She concluded, "Even if students might be deterred from drug use in
order to preserve their extracurricular eligibility, it is at least as
likely that other students might forego their extracurricular
involvement in order to avoid detection of their drug use. Tecumseh's
policy thus falls short doubly if deterrence is its aim: It invades
the privacy of students who need deterrence least, and risks steering
students at greatest risk for substance abuse away from
extracurricular involvement that potentially may palliate drug problems."

Finding the Bright Line

I believe that Ginsburg's criticism was sound. Although Thomas claimed
to rely on Vernonia as precedent, Ginsburg persuasively showed
important factual differences between the two cases on issues the
court had found crucial in upholding the Vernonia policy. Also, I'm
always surprised by the ease with which many adults devalue students'
privacy rights. After all, there's no policy requiring Supreme Court
justices to submit to urinalysis. So, as matter of legal reasoning, I
believe Ginsburg's opinion is stronger.

However, I think the key to Thomas' opinion is not whether the court's
reasoning in Vernonia applies to this case but, rather, his
recognition of school officials' practical need for a bright line
rule. Perhaps Thomas is correct in asserting that courts should not
impose on school officials and employees the burden of deciding
whether it's "reasonable" under the Fourth Amendment to suspect a
particular student of drug use. Although reasonable suspicion is the
accepted standard for most other kinds of school searches (such as
searches of backpacks and handbags), the danger of drug abuse and the
difficulty of detecting it might well justify a bright line rule that
permits random, suspicionless drug testing of certain categories of
students.

In short, the majority opinion takes advantage of the vagueness of the
word "reasonable" and rests more on pragmatism than on legal analysis.

I know what you're thinking: Why stop with students involved in
extracurricular activities? Are we on a slippery slope that starts
with upholding random drug testing for athletes in Vernonia, proceeds
to give a constitutional OK to random testing of students in
extracurricular activities in this case, and will someday end with the
Supreme Court upholding random testing of all secondary school students?

I can't predict the answer. Most of Thomas' analysis in this case
would apply equally to upholding random testing of all students. But
one key fact might change the outcome: Students who participate in
athletics and other extracurricular activities do so voluntarily, but
compulsory education laws require all students to attend school. Even
though the Supreme Court has given the green light to requiring drug
testing for participation in voluntary extracurricular activities, the
court might not agree to random testing of all students.

Here's one prediction I will make: This question will land on the Supreme
Court's doorstep soon.