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Illinois School Board Journal
May - June 2001

Updated survey revisits random drug testing

By Max Pierson and Steven Rittenmeyer

Editor’s note: In 1995, the United States Supreme Court issued a landmark decision in Vernonia School District v. Acton¹, legalizing limited random drug testing of public school student athletes. Following the decision, the authors, in conjunction with the Illinois Association of School Boards (IASB), conducted a survey to learn the impact of the Vernonia decision in Illinois schools.

The results were published in the November 1995 edition of The Illinois School Board Journal. Since the Vernonia decision, public and scholarly comment has abounded concerning the appropriateness of student drug testing, as well as no small amount of litigation, particularly in the federal courts that serve Illinois. Given the dynamic and volatile nature of this new aspect of contemporary public school administration, the authors felt the time had come for an expanded survey.

Despite judicial friendliness toward more expansive drug testing schemes, a survey conducted in October 2000 shows clearly that Illinois school officials remain confident that they can protect the health and safety of their students without resorting to random testing.

This was the second survey of Illinois Association of School Boards members, with the first conducted in 1995 following a landmark Supreme Court case.

In its Vernonia School District v. Acton decision, the U.S. Supreme Court declared, once again, that the reasonableness of warrantless searches was determined by balancing the individual right to privacy against government need in a particular circumstance. In the circumstance of student searches, reasonableness is determined by what is appropriate in the school setting.

Therefore, when an immediate crisis of discipline is at hand, when a drug-related and athlete-led student rebellion threatens the health and safety of the entire student population, the state interest is great.
And, according to the court, because sports are not for the bashful, voluntarily going out for the team means giving up a lot of privacy. Those who willingly reduce their expectation of privacy can reasonably be asked to submit to random testing.

In 1995, on the heels of Vernonia, a survey was faxed to all IASB members who used fax machines, or 784 of more than 869 districts. With a response rate of approximately 48 percent (375 districts), the survey found that less than 1 percent (three districts) were involved or intended to be involved with testing athletes for drugs, while 87 percent (328 districts) indicated no interest or felt need to do so. Of the other responding districts, 9 percent (35 districts) said they did not have policies in place but were giving the subject serious consideration and 2 percent (nine districts) noted they were adopting a "wait and see" attitude.²

In the next five years, the U.S. Circuit Court of Appeals for the Seventh Circuit addressed several civil rights cases stemming from the actions of Indiana school districts and substantially expanded the Vernonia ruling. Relying largely on theories of deterrence and role modeling, the Seventh Circuit Court approved random testing for illegal drugs of those participating in any extracurricular activity and of student drivers. But this court stopped short of approving testing in cases involving suspensions.

Farther west, the Colorado Supreme Court found that it was unreasonable to randomly test marching band members who received academic credit for the activity.

In October 2000, all 866 IASB members were faxed a survey of eight questions in an effort to follow-up and expand on the original 1995 drug testing survey. The survey was a single request, with no follow-up for non-respondents.

With a higher overall response rate (60 percent, compared with 48 percent in 1995), the 2000 survey found 41 districts now conducting or planning to conduct random drug testing soon. Of the 515 respondents, 474 (92 percent) replied, "No, we do not conduct student drug testing and have no plans to do so."

When the 41 testing districts were asked what extracurricular groups were being tested, 31 checked that they test athletes, 19 test participants in other extracurricular activities, seven test their band members and three test students who drive to school.

Of those districts that test, most (14 districts) reported fewer than 10 percent of their students have had to submit. However, eight districts said that they have tested 25 to 50 percent of the student population.

Fewer than five positive test results were reported by 25 of the 41 testing districts since testing began, with only one district reporting more than 25 positives.

Finally, the geography of student drug testing in Illinois is most interesting. Even though 65 percent of the student population is located north and east of the intersection of Interstates 39 and 80, only three districts in that region reported testing programs. However, 28 testing districts are located south of Interstate 80, with the largest concentrations being along the I-80 corridor and east of I-57.

Analysis of both the present state of the law and the survey data points up several points for policy makers to consider.

First, the overwhelming majority of districts feel they are doing something right and don’t need to invade the privacy of their students to maintain a good educational environment. Therefore, the few districts that do test might be able to learn from the many.

Second, if a district has been testing for an extended period of time and has obtained but a few positive results, a cost-benefit analysis is in order. These districts should begin any such examination by determining if, in fact, drug use by youngsters in the community is of such a nature and degree that other, less intrusive and less expensive methods of control can be substituted.

Finally, extra caution is advised for those districts that report testing high percentages of their student populations, particularly small districts. Legal trends seem to lean away from further expansion and toward stricter adherence to the Vernonia analysis.

Moreover, courts appear to be on the lookout for drug testing programs that are labeled "random" but which serve as vehicles to test entire student populations. Therefore, districts entertaining this option must go beyond the vague general deterrence and role modeling justifications and be prepared to demonstrate that random testing is a reasoned response to a demonstrated need.