Supreme Court Expands Scope of Permitted Drug Testing in Public Schools
September 17, 2002
On June 27, 2002, the U.S. Supreme Court, in Board of
Education of Independent School District #92 of Pottawatomie County vs. Earls et
al., upheld a school district policy that required all middle and high school
students to consent to random drug testing in order to participate in any
extra-curricular activity. The Court had previously ruled on the issue of
school drug testing in 1995 in Vernonia School District 47J vs. Acton. In that
case, the Court ruled that, under certain circumstances, public schools could
engage in drug testing of high school athletes. In its recent decision, the
Court expanded the bounds of Vernonia, both in terms of the population that
could be tested and the rationale upon which it relied to support the testing.
Privacy
The closely divided Court first held that a student’s
privacy interest is limited in the public school environment where the state is
responsible for maintaining discipline, health and safety. It also found that
students who participate in competitive extracurricular activities, such as the
Academic Team, Future Farmers of America, Future Homemakers of America, band,
choir and cheerleading, voluntarily subject themselves to many of the same
intrusions on their privacy as do athletes who must regularly engage in communal
undressing.
The Court went on to hold, with respect to the character of
the intrusion involved in random testing, that although urination is generally
shielded by great privacy, there were sufficient safeguards in the district’s
policy to overcome any objection regarding the intrusion. The Court relied on
the facts that students are allowed to produce samples behind a closed stall,
the test results are kept in confidential files, and that results are not turned
over to any law enforcement authority, as mitigating factors that reduce the
intrusion on students’ privacy. In addition, the Court pointed out that there
was no consequence of a failed drug test other than to limit the student’s
privilege in participating in the extracurricular activity. Moreover, under the
policy a student has to test positive on three occasions before being suspended
from participation in extracurricular activities.
Evidence of Drug Use
Finally, the Court found that the school district had
presented specific evidence of drug use in its schools: relying on observation
by teachers of students who appeared to be under the influence of drugs, a drug
dog’s detection of marijuana cigarettes near the school parking lot, and police
officers’ having once found drugs or drug paraphernalia in a car driven by a
member of Future Farmers of America. The Court went on to state that it had not
in the past required a particularized or pervasive drug problem before allowing
the government to conduct random drug testing. According to the Court, the
“nationwide epidemic of drug use” and the evidence of drug use presented made it
“entirely reasonable for the school district to enact this particular drug
testing policy.”
Safety Concerns
The Court noted that the safety concerns that justified the
random drug testing of high school athletes also justified similar testing of
participants in non-athletic extracurricular activities because of the
generalized health threat posed by drug use.
The Justices
The majority opinion was written by Justice Thomas and
joined by Chief Justice Rehnquist, and Justices Scalia, Kennedy and Breyer.
Justice Breyer filed a concurring opinion in which he noted that his concurrence
was based on the importance of attempting to stem the drug problem in the
nation’s schools. He further noted that an important factor for him was that
the testing program avoided subjecting the entire school to testing and
preserved an option for a conscientious objector to simply refuse testing while
paying the price of non participation.
The dissent, written by Justice Ginsburg and joined by
Justices Stevens, O’Connor and Souter, argued that the Court’s decision went
dramatically further in permitting random drug testing of students than the
Court had previously allowed in Vernonia. The dissent argued that in
Vernonia
the Court emphasized that drug use increased the risk of sports-related injury
and that the school’s athletes were the leaders of an aggressive local drug
culture that had reached epidemic proportions, and that the circumstances
presented in the current case were “dispositively different” from those in
Vernonia. Indeed, the dissent noted that the health and safety concern
rationale enunciated here would support random drug testing of all public high
school students.
Justice Breyer’s concurrence in the majority opinion hinged
largely on the fact that the policy did not apply to all students.
In the event that any dissenter retires in the near future
and is replaced by a more conservative justice, look for a decision that expands
random drug testing in public schools to all students.
For more information, contact Neal McNamara, toll free at
888-688-8500, or via e-mail at nmcnamar@hklaw.com.
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