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School Board Journal
November / December 1995
January / February 1996

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Random drug testing?
Caution advised

By ALAN T. SRAGA, JOHN M. IZZO, and JANET L. SCHWIETERS

Although the U.S. Supreme Court upheld random drug testing of student athletes in a recent case, school administrators should take caution not to view the high court's decision in Vernonia School District v. Acton (1) as carte blanche to institute random drug testing of students. For many reasons, other courts will differ as to how they read this decision and thus, how they rule on future cases of contested drug testing programs.

In upholding the Vernonia schools' testing program, the Court stressed the following facts:

• Several other alternatives such as educational programs, guest speakers and drug sniffing dogs had been exhausted;

• The drug problem was epidemic;

• Drug related injuries had occurred; and

• Teachers had witnessed drug use.

Factual background

Both the District Court and the U. S. Supreme Court point out that a testing program outside of this factual background would be closely scrutinized for constitutionality.

Vernonia, Oregon, is a small logging community of about 3000. Nearly two-thirds of high school students and three-fourths of elementary school students participate in district sponsored athletics. In the mid 1980s, school staff and administrators began to notice a "startling and progressive" increase in drug use. As drug use became more glamorized, blatant and open, students became more vocal in their attraction to and defense of drugs.

Classroom disruptions and school disciplinary reports increased three-fold and staff reported direct observation of student drug use. The district concluded that "a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion" fueled by epidemic drug use. Clubs began to form around drug use.

Athletic coaches were convinced that drug use contributed to at least one injury and that diminished reaction time made others more susceptible to injury. They were also concerned that the numbing effects of drugs enabled injured athletes to play, risking further injury.

Investigation determined that student athletes were the leaders of the drug activity. The district tried educational programs, seminars, guest speakers and theatrical presentations on the effects of drugs. Specially trained dogs were brought in to sniff for drugs in lockers. Nothing worked. Experts demonstrated that "youth really need a compelling reason to stop using drugs." Mass expulsion was considered but abandoned in favor of a less drastic alternative a random drug testing program. The program was introduced to parents at a district-wide meeting and received unanimous support from those who attended.

The parents of James Acton, a seventh grade student, were not among the supporters. James was not allowed to take part in his school's football program after he and his parents refused to consent to the testing on the basis that it required James to submit to a urinalysis when there was no evidence that he had used drugs. They filed a suit in federal court, claiming the policy violated the Fourth and Fourteenth Amendments and the Oregon Constitution. The District Court upheld the drug-testing plan and the parents appealed the decision. The Ninth Circuit Court of Appeals reversed the decision, criticizing a Seventh Circuit decision upholding a similar plan in Schaill v. Tippecanoe County School Corporation. (2)

Special needs

The reasonableness and hence the constitutionality of such a search depends upon a balancing of the degree of intrusion on an individual's privacy against the strength of the government's interests. Any invasion of privacy should be narrowly tailored to intrude as little as possible, but the least intrusive means is not required. For example, searching the suspected leaders of the drug culture rather than all students is intrusive but narrowly tailored. Searching only proven drug users would be the least intrusive.

Using this balancing test, the Supreme Court determined that a random drug testing program applied to participants in interscholastic athletic competition was constitutional based on the following reasoning:

• The search was administrative and thus subject to only a reasonableness requirement under the United States Supreme Court ruling in New Jersey v. T.L.O. (3)

• Public school students have a lesser expectation of privacy than members of the general population, and student athletes even less. When students go out for a team, they voluntarily submit themselves to a higher degree of regulation (i.e. physical exams, grade requirements and others including non-use of drugs). The Court cited approvingly the Seventh Circuit's determination in Schaill v. Fippicanoe that there is "an element of `communal undress' in athletic participation." (4)

• The governmental interest was "important indeed perhaps compelling." This included drug-related disruption of classes, evidence of physical harm to athletes and proof of growing use in the school. The need for the state to act to deter drug use is at least as important as enforcing drug importation laws (5) and more immediate than a program based on nationwide use of drugs without any proof that a problem existed among the individual's subject to the test. (6)

• The intrusion was negligible. The students remained dressed and in closed stalls (girls) or with back turned to monitor standing 10-15 feet away (boys). Results were disclosed to a limited number of persons. Nothing other than drugs was tested for (not pregnancy, diabetes, etc.) and advance disclosure of any prescription drugs taken was assumed to have been done in a very confidential manner. The test was extremely accurate (99.94%). Security, privacy, confidentiality and accuracy were maximized under the circumstances.

Limited guidelines

In Tippecanoe the Seventh Circuit upheld a drug testing program similar to the one proposed in Acton on less compelling facts. Based on information about drug use on the baseball team, the coach ordered team members tested. Five of sixteen were positive. This result and the school district's general concern over nationwide drug use served as the incentive to implement random testing for all athletes. There was no indication that drug-related disciplinary action was a problem or that injuries related to drug use had been documented, but there was a generalized concern about drug use by athletes.

The lower federal courts are likely to differ in how broadly Acton should be read and thus in how future challenges to random drug testing will be adjudicated. Prior to Acton, some lower courts struck down drug testing programs that were too generalized, (8) or where there was no record of injuries received as a result of drug or alcohol use and there was no evidence that athletes were more likely than others to use drugs. (9) Other courts invalidating testing programs have stressed that the school or district had no record of significant drug usage among the students or disciplinary problems related to drug use; that the targeted group was not defined as identified leaders of the drug culture, or that there was no demonstration that injury among the group was more likely as a result of drug use. (10)

Where injury is a justification, the timing of the test is also important. Drug testing at the beginning of school was found too remote and unrelated to detecting drug use during an athletic season and preventing athletic injuries. (11)

In concurring with the decision in Acton, Justice Ginsburg cautioned that the Court had reserved the question whether, "on no more showing than made here," drug testing on all students, not just athletes, would be upheld. The District Court was more specific in its concern whether a similar program in a large metropolitan school or in other small rural schools could withstand scrutiny would "necessarily depend, at a minimum, upon evidence of drug related problems, attempts to address the problems in less intrusive ways, and establishing a connection between the stated objectives and the means chosen to achieve those objectives." Both comments stress how important the factual background of a specific case will be.

A look at the marshaling of facts and detail reported in Acton, as well as other decisions where lower courts have struck down similar plans, might suggest that equally compelling facts will be necessary to sustain random drug testing in schools.

Notes

2. Schaill by Kross v. Tippecanoe County School Corporation, 864 F.2d 1309 (7th Cir. 1988).

3. New Jersey v T.L.O., 469 U.S. 325, 105 S Ct. 733 (1984). Search of a student's purse was deemed warranted where there was suspicion she had cigarettes in the purse and had been smoking in violation of a school policy. Rolling papers discovered in the purse gave rise to criminal sanctions or even internal disciplinary procedures, i.e. suspension or expulsion.

4. Schaill v Tippecanoe, 864 2d at 1318.

5. Treasury Employees v. Von Raab, 489 U.S. 656 (1989). No documented drug use by any customs officials but government's need to control drug importation "sufficiently weighty" to uphold search.

6. Skinner v. Railway Labor Executives' Assn, 489 U.S. 602 (1989). Government's drug testing program based on findings of drug use by railroad employees nationwide without proof that a problem existed on the particular railroads whose employees were subject to the test upheld.

7. Schaill v. Tippecanoe, 864 F.2d 1309. The Seventh Circuit Court of Appeals hears cases from federal district courts in Illinois, Wisconsin and Indiana.

8. Horton v. Goose Creek Independent School District, 690 F.2d.470 (Fifth Circuit, 1982). General student population subjected to random and unannounced "search" by drug sniffing dogs without prior consent.

9. Moule v. Paradise Valley Unified School District No. 69, 863 F Supp. 1098 (Arizona 1994). District not aware of any injuries or that athletes were more likely than other students to use drugs.

10. Brooks v. East Chambers Consolidated Independent School District, 730 F. Supp. 759, (Texas 1989). The issue was drug testing for all extra curricular activities absent evidence of any major problems within activities or the school in general.

11. Id. at 765. Testing a student at the beginning of semester, weeks before he participates in an extra curricular event, is too remote in time and does not give information about recent drug use that might affect performance.

Alan T. Sraga and John M. Izzo are attorneys with Scariano, Kula, Ellch and Himes, Chicago. Janet L. Schwieters is a law clerk with the firm, and a December graduate of DePaul College of Law.