Order Code RS21082
Updated July 15, 2002
Student Drug Testing: Constitutional Issues
American Law Division
Issues of personal privacy and application of Fourth Amendment safeguards
against “unreasonable” governmental searches and seizures are the focus of judicial
rulings on the constitutionality of “suspicionless” random drug testing of public school
students. Generally speaking, governmental actors are required by the Fourth
Amendment to obtain warrants based on probable cause in order to effectuate
constitutional searches and seizure. An exception to ordinary warrant requirements has
gradually evolved, however, for cases where a “special need” of the government, not
related to criminal law enforcement, is found by the courts to outweigh any “diminished
expectation” of privacy invaded by the search. The special needs analysis, first applied
to administrative searches to enforce municipal health and safety regulations, has been
extended by the Supreme Court to uphold suspicionless drug testing of employees in
federally regulated industries, and random testing of high school student athletes.
Revisiting the issue last term, in Board of Education of Independent School District No.
92 of Pottawatomie County v. Earls, the U.S. Supreme Court upheld a drug testing
program of students participating in non-athletic extracurricular activities, even though
negligible evidence of a drug use problem among such students was shown.
Issues of personal privacy and application of Fourth Amendment safeguards against
“unreasonable” governmental searches and seizures are the focus of judicial challenges
to the constitutionality of “suspicionless” random drug testing of public school students.
Generally speaking, governmental actors are required by the Fourth Amendment to
obtain warrants based on probable cause in order to effectuate constitutional searches and
seizure. An exception to ordinary warrant requirements has gradually evolved, however,
for cases where a “special need” of the government, not related to criminal law
enforcement, is found by the courts to outweigh any “diminished expectation” of privacy
invaded by the search. The special needs analysis, first applied to administrative
searches to enforce municipal health and safety regulations, has been extended by the
Supreme Court to uphold suspicionless drug testing of employees in federally regulated
industries,1 and random testing of high school student athletes. Revisiting the issue last
term, in Board of Education of Independent School District No. 92 of Pottawatomie
County v. Earls, the U.S. Supreme Court upheld a drug testing program of students
participating in non-athletic extracurricular activities, even though negligible evidence
of a drug use problem among such students was shown.
Several terms ago, in Vernonia School District 47J v. Acton,2 the High Court first
considered the constitutionality of student drug testing in the public schools. At issue
there was a school district program for random drug testing of high school student
athletes, which had been implemented in response to a perceived increase in student drug
activity. All student athletes and their parents had to sign forms consenting to testing,
which occurred at the season’s beginning and randomly thereafter on a weekly basis for
the season’s duration. Students testing a confirmed positive were given the option of
participating in a drug assistance program or a suspension from athletics for the current
and following season. A 6 to 3 majority of the Court, led by Justice Scalia, upheld the
program against Fourth Amendment challenge. Central to the majority’s rationale was
the “custodial and tutelary” relationship that is created when children are “committed to
the temporary custody of the State as school master,” in effect “permitting a degree of
supervision and control that could not be exercised over free adults.” Students had
diminished expectations of privacy by virtue of routinely required medical examinations,
a factor compounded in the case of student athletes by insurance requirements, minimum
academic standards, and the general lack of privacy in the locker room and “communal
undress” that is “inherent in athletic participation. Moreover, because “school sports are
not for the bashful,” student athletes were found to have a lower expectation of privacy
than other students.
Balanced against this diminished privacy interest was the nature of the intrusion and
importance of the governmental interest at stake. First, the school district had mitigated
actual intrusion by implementing urine collection procedures that simulated conditions
“nearly identical to those typically encountered in public restrooms”; by analyzing the
urine sample only for presence of illegal drugs – not for other medical information, such
as disease conditions, diabetes, or pregnancy; and by insuring that positive test results
were not turned over to law enforcement officials. School officials unquestionably had
an interest in deterring student drug use as part of their “special responsibility of care and
direction” toward students. That interest was magnified in Vernonia by judicial findings
that, prior to implementation of the program, “a large segment of the student body,
particularly those involved in interscholastic athletics, was in a state of rebellion . . .
fueled by drug and alcohol abuse.” School officials’ interest became “perhaps
compelling” in the case of student athletes due to “the risk of physical harm to the drug
user or those with whom he is playing his sport.” Consequently, the Court dismissed
Acton’s argument for a less intrusive policy of suspicion-based testing, reasoning that
the Fourth Amendment only requires that government officials adopt reasonable policies,
not the least intrusive ones available. The majority in Vernonia cautioned “against the
assumption that suspicionless drug-testing will readily pass muster in other constitutional
contexts.” Justice Ginsburg’s brief concurrence also emphasized her understanding that
See Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989); National Treasury
Employee’s Union v. Von Raab, 489 U.S. 656 (1989).
515 U.S. 646 (1995).
the decision applied only to testing of student athletes, expressly reserving the issue of
whether such programs could be constitutionally extended to other segments of the
student population. Justice O’Connor’s dissent distinguished public employee and
student drug testing, arguing that suspicion-based testing would be entirely effective in
the high school setting.
A division of opinion soon emerged among the lower courts as to how broadly
Vernonia could be applied to permit “suspicionless” drug testing that included student
groups beyond athletes. The question was first confronted by the Seventh and Eighth
Circuits in nearly identical cases, Todd v. Rush County Schools3 and Miller v. Wilkes,4
involving random drug testing policies that applied not only to student athletes, but also
to students participating in any other extracurricular activity. While no actual or
imminent drug problem was identified among the affected student populations in either
case, the policies were upheld. The school policy in Todd applied not only to
participation in extracurricular activities but also to students who drove to and from
school, all of whom were subject to random drug testing.5 In a sequel to Todd, Joy v.
Penn-Harris-Madison School Corp.,6 212 F. 3d 1052 (7th Cir. 2000), the Seventh Circuit
reconsidered a policy mandating random drug testing of students who drive to school, as
well as those who participate in extracurricular activities. Conceding that the Todd
outcome was not compelled by Vernonia, and that Todd was crucial to Joy, the court
resorted to stare decisis as a basis for upholding the policy, finding that Vernonia
allowed the testing of student drivers. Expressing concern, however, that “[t]he danger
of slippery slope continues to haunt our jurisprudence,”7 the appeals court emphasized
that it was not sanctioning drug testing of an entire student population, tacitly
encouraging the Supreme Court to revisit the issue and provide the lower courts with
Parting company with the Todd line of decisions was Trinadad School District No.
1 v. Lopez, 8 where the Colorado Supreme Court disapproved of a policy for drug testing
all students in extracurricular activities where there was no convincing evidence of higher
drug usage rates by students participating in extracurricular activities, or that the
reasonable privacy expectations of such students had been so diminished by constraints
of the sports culture, or otherwise, as those imposed on student athletes in Vernonia.
Instead of targeting students in formal school activities, the policy in Willis v. Anderson
School Corp.9 mandated testing for any student who “possesses or uses tobacco products;
is suspended for three or more days for fighting; is habitually truant; or violates any other
133 F.3d 984 (7th Cir.), cert. denied, 525 U.S. 824 (1998).
172 F.3d 574 (8th Cir.), vacated as moot, 172 F.3d 582 (8th Cir. 1999).
In practice, the policy affected nearly the entire student body, with 728 of 950 high school
students consenting to random tests in the 1996-97 academic year.
212 F.3d 1052 (7th Cir. 2000).
Id. at 1066.
963 P.2d 1095 (Colo. 1998).
158 F.3d 415 (7th Cir. 1998).
school rule that results in at least a three-day suspension.”10 Because Indiana law
required one-on-one meetings with such students prior to suspension, in effect permitting
observation of any suspicious drug-related behavior, the drug testing policy was rejected
since the “benefits of deterrence” alone did not warrant departure from traditional
“reasonable suspicion” standards.
A conflict among the circuits was created when the Tenth Circuit refused to permit
the random testing of students participating in extracurricular activities outside of the
sports arena. In 1998 the Tecumseh Public School District adopted a “Student Activities
Drug Testing Policy,” which required “suspicionless drug testing” of students wishing
to participate “in any extracurricular activity.” Such activities included Future Farmers
of America, Future Homemakers of America, academic teams, band, chorus,
cheerleading, and athletics. Any student who refused to submit to random testing for
illegal drugs was barred from all such activities, but was not otherwise subject to penalty
or academic sanction. Lindsay Earls challenged the district’s policy “as a condition” to
her membership in the high school’s show choir, marching band, and academic team, but
did not protest the policy as applied to student athletics. The district court granted the
school district summary judgment, but was reversed on appeal. The Tenth Circuit panel
found that any “special need” that the school district had for suspicionless testing of
students in these circumstances was less immediate than the risk of injury posed to
student athletes in Vernonia, particularly “given the paucity of evidence of an actual drug
abuse problem among those subject to the Policy” in the Earls case.
On June 27, 2002, by a 5 to 4 vote, the U.S. Supreme Court reversed the decision of
the Tenth Circuit and held that the Tecumseh school district’s random drug testing
program was a “reasonable means” of preventing and deterring student drug use and did
not violate the Fourth Amendment.. The Court’s decision, written by Justice Thomas was
joined by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Breyer. In its role
as “guardian and tutor,” the majority reasoned, the state has responsibility for the
discipline, health, and safety of students whose privacy interests are correspondingly
limited and subject to “greater control than those for adults.” Moreover, students who
participate in extracurricular activities “have a limited expectation of privacy” as they
participate in the activities and clubs on a voluntary basis, subject themselves to other
intrusions of privacy, and meet official rules for participation. The fact that student
athletes in the Vernonia case were regularly subject to physical exams and communal
undress was not deemed “essential” to the outcome there. Instead, that decision
“depended primarily upon the school’s custodial responsibility and authority,” which was
equally applicable to athletic and nonathletic activities.
The testing procedure itself – involving collection of urine samples, chain of custody,
and confidentiality of results – was found by Justice Thomas to be “minimally intrusive
and “virtually identical” to that approved by the Court in Vernonia. In particular, the
opinion notes, test results are kept in separate confidential files only available to school
personnel with a “need to know”; they may not be disclosed to law enforcement
authorities; and they carry no disciplinary or academic consequences other than limiting
extracurricular participation. “Given the minimally intrusive nature of the sample
collection and the limited uses to which the test results are put, we conclude that the
invasion of student’s privacy is not significant.”
Id at 417.
Finally, the majority ruled that the school district had an “important interest “ in the
health and safety of its students – including prevention and deterrence of drug use – which
was “reasonably” served by its drug testing program. Citing several anecdotal instances
of drug use at Tecumseh schools, Justice Thomas nonetheless concluded that neither
“individualized suspicion” nor a “demonstrated problem of drug abuse” were necessary
predicates for a student drug testing program, and there is no “threshold level” of drug use
that need be satisfied. Similarly, in a separate concurrence, Justice Breyer emphasized the
national scope of the “drug problem” in education and the inefficacy of “supply side
interdiction” efforts by government as factors supporting the reasonableness of the
school’s drug testing program, even in the absence of “individualized suspicion.”
Justice Ginsburg, joined in dissent by three other Justices, offered a point by point
rebuttal of the majority rationale. First, the dissenters objected, a generalized “concern”
for student health and safety, while “basic to the school’s caretaking,” was not so
“immediate” as to constitute a “special need” satisfying the Vernonia analysis. Nor
were they persuaded that drug use by students engaged in extracurricular activities other
than athletics – such as band and choir – exposed them to any greater safety risk than
nonparticipants who use drugs in the general student population. Thus, the “special
susceptibility to drug-related injury” of student athletes apparent in Vernonia was not a
factor in this case. While “voluntary” participation in extracurricular activities
necessarily entailed some additional regulation of student conduct, Justice Ginsburg
would not equate the situation to student athletics. “Interscholastic athletics . . . require
close safety and health regulation; a school’s choir, band, and academic team do not.”
More importantly, conceding evidence of some drug use among students at the Tecumseh
schools, the problem was “not . . .major” as compared to the “explosive drug abuse
problem sparked by members of athletic teams” described in Vernonia. Absent a drug
abuse problem among students participating in extracurricular activities, Justice Ginsburg
concluded, the intrusion on students’ privacy was constitutionally impermissible. Unlike
student athletes, whose reasonable expectations of privacy are diminished by the
communal nature of the sports locker room, participants in other extracurricular activities
do not relinquish all sense of personal privacy to the realities of the school environment.
Student drug-testing proliferated in public schools across the nation after the 1995
Vernonia decision. Application of the “special needs” analysis to programs of increasing
scope and variety had largely confounded the lower federal courts, which as illustrated
above, failed to achieve consistent results even as to tests administered in virtually
Beyond resolving this judicial conflict, the majority
interpretation of the Fourth Amendment in Pottowatomie County may significantly
broaden the discretion of public school officials to perform student searches in the
academic setting. Despite a relatively scant record of prior student drug abuse, Justice
Thomas’ opinion emphasizes a fairly general concern of the state for student health and
safety – and an “important” deterrence interest – as justification for a broadly based drug
testing program. Absent from the equation seems to be the risk of serious injury and
pervasive history of drug abuse by student athletes that actuated the Court’s deliberations
in Vernonia. As such, the latest opinion may set a new constitutional mark, blurring any
real distinctions for drug testing purposes between “high risk” students groups and the
general school population . Prior to the Tenth Circuit decision in Tecumseh, for example,
a federal district court in Texas invalidated a universal drug testing requirement by one
school district, which made passing a drug test a condition to public school attendance by
all students.11 Also implicated may be other “special needs” searches in the schools
involving, for example, metal detectors, drug-sniffing dogs, and random-locker
inspections, implemented by many school district as a response to school violence.12
Only once has the Supreme Court found that the government failed to find a special need
for the particular search at issue – a Georgia state requirement that candidates for certain
public offices submit to a drug test prior to election.13 Whatever outer limits there may
be to the “special needs doctrine,” however, whether as applied to universal student drug
testing or to other alleged invasions of student privacy in the academic setting, will have
to await further High Court action.
Tannahill ex rel. Tannahill v. Lockney Independent School District, 133 F. Supp.2d 919
(N.D.Tex. 2001). The school district policy in Lockney essentially made random testing a
prerequisite to attending the public schools. Any refusal to submit a consent form for urine
testing subjected the student to the same punishment as a positive result: a twenty-one day
suspension from all extracurricular activities, three days of in-school suspension and three
sessions of substance abuse counseling. All 388 of the secondary school students in the district,
except for the plaintiff, had taken the drug tests.
See B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir. 1999).
Chandler v. Miller, 520 U.S. 305 (1997).
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