Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, Lindsay, et al.

Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, Lindsay, et al.

By: Kendra E. Fish & Stephanie Pfeffer, Medill News ServiceQuestions presented

Does it violate the 4th Amendment's protection against unreasonable searches and seizures for a public school district to enforce a policy requiring students who wish to participate in extracurricular activities to submit to random, suspicionless urinalysis drug testing, if the policy is supported by no more than negligible evidence of drug abuse problems among students subject to the test?

Brief

On Sept. 14, 1998, the public school district in Tecumseh, Oklahoma adopted the Student Activities Drug Testing Policy. The policy opened the door to mandatory, suspicionless drug testing of high school students participating in extracurricular activities: band, choir, color guard, Future Farmers of America, Future Homemakers of America and the school's athletic and academic teams. Students refusing to take the drug test were barred from their chosen activity.

The random drug testing occurred eight times during the 1998-1999 school year and about 20 students were tested each time. Test results were placed in confidential files separate from other student files.

On Aug. 18, 1999, Lindsay Earls, a member of Tecumseh's show choir, the marching band and the academic team, and Daniel James, who sought to participate in the academic team, challenged the drug testing policy by filing suit in federal court against the school district and the school board.

They believed the 4th Amendment protects members of the choir, band and other non-athletic activities from the suspicionless, mandatory urinalysis. Furthermore, they said the school had not demonstrated a "special need" for drug testing sufficient to override 4th Amendment protections. In fact, according to their attorney, Graham A. Boyd, the school district's annual reports showed low and decreasing drug use throughout the decade.

The federal court found in favor of the school district, ruling the drug testing did not violate the 4th Amendment's prohibition against unreasonable searches.

On March 21, 2001, a divided 10th Circuit Court of Appeals panel reversed, holding that "any district seeking to impose a random suspicionless drug testing policy as a condition to participation in a school activity must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem."

In analyzing whether the Tecumseh school district had demonstrated a "special need" for drug testing, the majority looked to the 1995 Supreme Court case Vernonia School District v. Acton-the only Supreme Court case dealing with suspicionless drug testing in the public school setting.

The Supreme Court stated in Vernonia that school authorities are permitted a degree of supervision and control over students that would not be exercised over free adults. Therefore, a relaxation of the 4th Amendment's standards can occur in the public school setting.

Vernonia set forth two factors, according to the majority: that the testing policy "was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care"; and that the district had demonstrated a severe need for the testing. By applying these factors the majority concluded there was no evident drug crisis or epidemic that demonstrated the need for drug testing. Therefore, the majority concluded that drug testing at Tecumseh violated the 4th Amendment.

In so holding, the majority rejected the school district's argument that students involved in non-athletic activities are at risk for physical harm from drug abuse. For example, the district had argued, band members carry heavy instruments, FFA members wrestle large animals at times, and since these groups travel they have less supervision than regular students.

"It is difficult to imagine how participants in vocal choir, or the academic team, or even the FHA are in physical danger if they compete in those activities while using drugs, any more than any student is at risk simply from using drugs," Judge Stephen Anderson wrote for the majority.

The majority reached its conclusion, it said, to ensure that schools were not free to subject any and all students to drug tests randomly and without suspicion. "Without any limitation, schools could test all of their students simply as a condition of attending school," Anderson cautioned. "The District admits it could not test its entire student body and we doubt very much that the Supreme Court would permit such broad testing were the issue presented to it."

The majority all but invited the U.S Supreme Court to take on the issue.

"In reaching this result, we realize that we are disagreeing with two of our fellow circuits [the 7th & 8th]. However, there are other courts [the Colorado Supreme Court and two federal district courts in the 5th Circuit] with which we are in agreement," Anderson wrote. "This issue is obviously a difficult one with which courts will continue to grapple."

Which is just what Judge David Ebel did in dissent.

"[D]rugs are a particularly serious problem in our public schools, not just because of alarming rates of drug usage among school-age children," Ebel wrote, "but also both because young people are especially susceptible to peer pressure encouraging the use of drugs and because especially virulent health damage caused by drug use among school-age children."

Ebel went on to note, as the Supreme Court did in its 1985 opinion in New Jersey v. T.L.O., that because search warrants and probable cause are impractical in the school setting, suspicionless drug testing do less damage to the cooperative anding relationship needed between students and teachers.

Ebel's fault with the majority opinion was that the majority contadicted itself by appearing "to reimpose a special needs requirement toward the end of its opinion." First the majority said the school district does not need to demonstrate a special need for setting forth a drug testing policy and then they said a school district must demonstrate an identifiable drug abuse problem in order to test for drugs in a constitutional manner.

"It is difficult to imagine an interest more compelling than stemming the tide of illegal drug use by young women and men before they subject themselves, and our society, to substantial risk and heartache," Ebel wrote.

Ebel agreed with the majority on one point; the need for clarification from the Supreme Court.

"I respectfully dissent and encourage the school district to seek an en banc rehearing by this court so that we may reconsider our decision," Ebel wrote. "Failing that, perhaps the Supreme Court will grant a writ of certiorari to resolve the split among the circuits that we have today created on the important constitutional issue presented in this case."

On Nov. 8, 2001, the Supreme Court did just that, and on June 27, 2002, after reviewing the drug testing policy for "reasonableness" and weighing the nature of the privacy intrusion against the promotion of legitimate government interests, the Court ruled 5-4 that the random drug testing of students who participate in competitive extracurricular activities reasonably furthers the district's interest in detecting and preventing drug use, and therefore doesn't violate the 4th Amendment.

Justice Clarence Thomas wrote the opinion for the majority. Drawing heavily on the 1995 precedent set in Veronia School Dist. 47J v. Acton, in which the Court upheld the random, suspicionless drug testing of school athletes, Thomas reiterated that "Fourth Amendment rights? are different in public schools than elsewhere; the 'reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children."

This means that schools have a greater interest in protecting children than in maintaining their privacy; public schoolchildren do not have the same privacy rights as adults. Moreover, wrote Thomas, "students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes," like group requirements or communal showers. The majority also likened the physical risks associated with athletic drug abuse to other activities as well, like carrying a heavy instrument in a band.

Second, the Court considered the character of the intrusion and decided that the manner in which the drug tests were conducted, the expectation of confidentiality with the results, and the results not being turned over to law enforcement authorities proved a negligible invasion of privacy.

Third, the Court focused on the "nature and immediacy of the government's concerns." In Veronia, the Court had stated: "The necessity for the State to act is magnified by the fact that this evil is being visited?upon children for whom it has undertaken a special responsibility of care and direction." The Court also noted that the Tecumseh school district had some evidence of school drug use, validating its concerns.

Justices Ruth Bader Ginsburg, John Paul Stevens, Sandra Day O' Connor and David Souter dissented. "The particular testing program upheld today is not reasonable, it is capricious, even perverse," wrote Ginsburg, saying that the circumstances in the Tecumseh case were much different than those in Veronia.

First, while the Veronia decision stressed the school's responsibility for the safety of children, the dissenters emphasized that the health risks carried by drug use are present for all school children, not just student athletes and those involved in competitive extracurricular activities. "Veronia cannot be read to endorse invasive and suspicionless drug testing of all students upon any evidence of drug use, solely because drugs jeopardize the life and health of those who use them," Ginsburg wrote. "Many children, like many adults, engage in dangerous activities on their own time; that the children are enrolled in school scarcely allows the government to monitor all such activities."

In response to the majority's notion about the voluntary nature of the activities, the dissent argued that while participation is technically voluntary, "it's essential in reality for students applying to college, and, for all participants, a significant contributor to the breadth and quality of the educational experience."

Second, the dissent argued that, unlike the Veronia athletes, the Tecumseh students did not have a reduced expectation of privacy that would make drug testing less invasive. Ginsburg admitted that athletes do change clothes in front of each other and take communal showers, but competitive extracurricular activities "serve students of all manners: the modest and shy along with the bold and uninhibited" and that these students are accustomed to privacy even on out-of-town trips.

Third, the dissent argued that the "nature and immediacy of the governmental concern" about Veronia's admitted drug problem was much less evident in Tecumseh. They also said band members do not have the same susceptibility to drug-related injury as athletes. "Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh," wrote Ginsburg, most students are engaged in "activities that are not safety sensitive to an unusual degree."

In conclusion, Ginsburg wrote, "Tecumseh's policy thus falls short doubly if deterrence is its aim: It invades the privacy of students who need deterrence least, and risks steering students at greatest risk for substance abuse away from extracurricular activities that potentially may pallatiate drug problems."