Drug Testing - Federal Court Opinions

Mandatory Suspicionless Testing of Student Athletes Ruled Constitutional

The legal foundation for suspicionless student drug testing rests upon Vernonia v. Acton (1995). In that landmark decision, the Supreme Court upheld the constitutionality of a school policy requiring student athletes to pass random urinalysis tests as a ground for participation in interscholastic sports. The Court rejected a Fourth Amendment claim asserting that such tests are an unconstitutional invasion of privacy. Closely watched nationwide, the decision effectively opened the door for school districts to institute similar policies of their own.

In the late 1980s, school authorities in the small logging community of Vernonia, Oregon, noticed a sharp increase in illegal drug usage and a doubling in student disciplinary problems. They observed that student athletes were leaders of the drug culture. Officials responded by offering anti-drug classes and presentations, along with conducting drug sweeps with dogs. After these education and interdiction efforts failed, a large segment of the student body was deemed to be in "a state of rebellion," according to findings of the Oregon District Court.

With the support of some parents, school officials next implemented a drug-testing policy for student athletes in fall 1989. It had three goals: prevent athlete drug use, protect student health and safety, and provide drug assistance programs. It imposed strict eligibility requirements: parents of student athletes had to submit a consent form for drug testing of their children, and the student athletes had to submit to tests. Once weekly the school randomly tested 10 percent of all student athletes by taking urine samples that were analyzed for illegal drug usage — a procedure known as urinalysis.

A legal challenge to the policy arose when a student and his parents refused to consent to drug testing and he was denied the chance to play football. Their lawsuit charged that the district violated his Fourth Amendment right to be free from unreasonable searches and seizures as well as his privacy rights under the Oregon state constitution. The District Court rejected their claims, but they won on appeal. The school district then appealed to the U.S. Supreme Court.

In its 6-3 decision, the majority followed earlier precedents. In particular, it looked back on its landmark decision regarding privacy for public school students, New Jersey v. T.L.O. (1985). That decision extended the great basis in U.S. law for privacy — Fourth Amendment protections — to public school students. It held that they, too, were protected from "unreasonable" searches and seizures of their persons and property by authorities, since public school authorities are agents of the government. But T.L.O. set the standard that Fourth Amendment rights are "different in public schools than elsewhere." In lowering student rights, the Court did so observing that public school authorities have a compelling interest in supervision and maintaining order that outweighs individual student rights.

In Vernonia, the majority went further. First, it distinguished the rights of student athletes from the already reduced privacy rights of the public school student body. Justice Antonin Scalia's majority opinion stated that student athletes have an even lower expectation of privacy since they routinely undress in locker rooms, noting that "school sports are not for the bashful." Second, it approved the particulars of the Vernonia school district's policy. The urinalysis was performed under minimally intrusive conditions similar to those in the schools' restrooms. There was no concern that school officials might arbitrarily accuse certain students because every student athlete was subject to being tested. Furthermore, participation was ultimately voluntary, since no one was required to play sports. And finally, the school's goals in reducing a serious drug abuse and disciplinary problem justified the testing.

Three justices dissented. Writing for the dissenters, Sandra Day O'Connor observed that mass suspicionless searches of groups had been found unconstitutional throughout most of the court's history, except in cases where the alternative — searching only those under suspicion — was ineffectual. She concluded that the school's policy was too broad and too imprecise to be constitutional under the Fourth Amendment.

Lower Court Disagreement over Broader Extracurricular Student Testing

The practical effect of Vernonia was to clear the way for student athlete drug-testing in schools nationwide. But the decision did not envision what happened next. By the mid-1990s, schools had begun adopting even broader testing policies that expanded the definition of testable extracurricular activities to include activities such as band and choir and, as in the extreme instance of Lockney, Texas, the entire junior high school student body. This broadening set the stage for the next constitutional challenges, which resulted in conflicting verdicts among federal circuit courts. Given these varying rulings, there is as of 2002 no single standard in federal caselaw for when public schools may require students to pass drug tests.

Initially, one such policy passed constitutional approval. In 1998, a three-judge panel of the Seventh Circuit Court of Appeals upheld a school system's broad drug testing program in Todd v. Rush County Schools (1998). At issue was a policy by the Rush County School Board of Indiana, which in 1996 banned a high school student from participation in extracurricular programs unless the student first passed negative for alcohol and other drugs, or tobacco in a random, unannounced urinalysis exam. The policy covered students in activities ranging from the Library Club to the Future Farmers of America Officers, as well as those who merely drove to and from school. Any student failing the urinalysis lost eligibility until such time as he or she successfully passed.

In rejecting a challenge to the policy, the Seventh Circuit found that the policy was consistent with the Supreme Court's ruling in Vernonia. Its brief opinion found sufficient similarity between the intent of the Indiana and Vernonia programs: deterring drug use rather than punishing users. The broader scope of the Indiana policy was not a constitutional problem, as the court observed that nonathletic extracurricular activities also "require healthy students." Its own 1988 decision on drug-testing student athletes, Schaill v. Tippecanoe County School Corp., also supported the broader policy. The Supreme Court declined to review the case. As with the earlier Vernonia decision, the New York Times reported that the Seventh Circuit's decision "set off a wave of such policies" nationwide. Ironically, however, the Indiana policy was later struck down on state constitutional grounds.

In 2001, a dramatically different verdict appeared. A panel of the Tenth Circuit Court of Appeals ruled that drug-testing for eligibility for extracurricular activities violated Oklahoma public school students' rights in Earls v. Tecumseh. Unlike the Seventh Circuit, the panel followed a very narrow reading of Vernonia. It applied that decision's facts and conclusions to the circumstances of the Tecumseh School District in Pottawatomie County, Oklahoma, and found sharp differences. No widespread drug problem existed in the school, unlike the Vernonia district. Moreover, the panel rejected the district's contention that drug testing was justified because extracurricular activities involved safety risks for unsupervised students. Instead, the panel ruled that the tests imposed unreasonable searches upon students in violation of their Fourth Amendment rights.

The Tenth Circuit panel specifically addressed the question of when a school drug testing policy was appropriate. It expressly stated that it did not expect schools to wait until drug abuse problems grew out of control. However, if school officials faced no requirements, they would be free to test students as a condition of attending school — an outcome that the justices did not believe the Supreme Court would uphold.

Significantly, the Earls decisions signaled a deep rift between two federal circuits in how to interpret Vernonia. Presumably for this reason, the Supreme Court accepted the case for review, with a decision expected some time in 2002. Lingering questions about the permissibility and scope of such policies may also have inspired the Court to return to the question. Indeed, in 2001, legal observers noted a shift in federal opinions away from support for student drug-testing policies. In addition to the Todd case, a federal judge struck down the pervasive policy of testing all public school students in grades seven through 12 in Tannahill v. Lockney School District (2001), while state courts also ruled against policies.