Evaluating the special needs doctrine in the context of higher education.

AuthorPrsha, Ryan
PositionNOTE
  1. INTRODUCTION

    On June 17, 2011, Linn State Technical College (1) adopted a drug-testing policy that read as follows:

    Linn State Technical College will begin a drug screening program in the fall semester... for students who are newly classified as degree or certificate seeking and degree or certificate seeking students returning after one or more semesters of non-enrollment at the Linn State Technical College campus or any Linn State Technical College location. (2) Never before had a public college or university in the United States implemented a mandatory school-wide drug-screening policy such as this. (3) Each and every incoming student was to be tested, and those who failed the test or refused its administration were to have their college admission withdrawn. (4) Unsurprisingly, members of the Linn State student body were troubled by this policy and filed suit against the college. (5)

    While the case law governing school drug-testing policies is fairly well developed, (6) this dispute marked the first time that the reasonable privacy expectation of college students had been scrutinized in such a fashion. (7) The issue is polarizing, and the lawsuit against Linn State was handled inconsistently at various levels of the judicial system. (8) The manner in which the case was handled will likely have broad and lasting implications on the privacy rights of college students throughout the country, not only regarding drug testing, but also in other aspects of the standard higher education experience.

    Part II of this Note discusses the legal context in which this issue must be framed and gives a brief history of how the courts have handled public school drug-testing policies to this point. Part III examines the current state of drug testing in the academic setting--specifically focusing on the ongoing legal situation at Linn State. Part IV delves into questions concerning the Eighth Circuit's current treatment of the Linn State situation, as well as the potential approaches that the judiciary could take in future cases.

  2. LEGAL BACKGROUND

    This Part will first review the intricacies of the Fourth Amendment's prohibition of unreasonable searches and seizures. It will then discuss the special needs exception to the Fourth Amendment's warrant requirement and how that exception has been applied to mandatory drug-testing policies.

    1. The Fourth Amendment and Its Special Needs Doctrine

      The Fourth Amendment is an important, yet controversial, pillar of the U.S. legal system. (9) By protecting against unreasonable searches and seizures, the doctrine establishes an essential limitation on government power. (10) In order for the government to search or seize an individual's "person[], house[], papers, [or] effects," it must first show probable cause (11) and obtain a warrant. (12) If probable cause and a warrant are present, then the search is considered reasonable, and the amendment affords no protection to the individual. (13)

      While this rule appears reasonably straightforward, there are a number of exceptions to the warrant requirement that create an aura of confusion in its practical application. One of these exceptions requires no warrant, requires no probable cause, and is potentially unlimited in scope: the special needs doctrine. (14)

      The special needs doctrine recognizes certain instances when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." (15) Such instances include administrative searches, (16) searches at border crossings (17) and checkpoints, (18) searches in jails and prisons, (19) searches of arrestees, (20) and certain drug-testing policies. (21) The litigation that surrounds drug testing at public colleges and universities has focused specifically on the drug-testing portion of the special needs exception.

    2. The Drug Test

      Courts have long recognized that the administration of a drug test by an agent of the government amounts to a "search" under the Fourth Amendment. (22) Therefore, any time a drug test is administered by or on behalf of the government, it must be conducted under the reasonableness standard. (23) Although this standard generally specifies a need for probable cause and a warrant, suspicionless drug-testing policies have been deemed acceptable under the special needs exception in three contexts: the workplace, public schools, and hospitals. (24)

      This exception was first recognized in the area of government employment. (25) In Skinner v. Railway Labor Executives' Ass'n, the Supreme Court of the United States upheld federal regulations requiring railroad workers who were involved in accidents to be drug tested. (26) In this case, the Court was clear that there was a "special need" to ensure the safety of the traveling public. (27) Further, the fact that the tested employees worked in "an industry that is regulated pervasively to ensure safety" created a diminished expectation of privacy. (28) Therefore, the government's special need to ensure safety for its passengers justified the abrogation of a citizen's Fourth Amendment protection from blood tests. (29)

      This rationale was also used in National Treasury Employees Union v. Von Raab. (30) In Von Raab, the Court upheld a U.S. Customs Service policy that required drug testing for any customs worker who was to hold a job in which firearms or drugs were present. (31) Unlike in Skinner, there was no reason to suspect that the individuals being tested in this case were using drugs. (32) Nonetheless, the Court believed that there was still a special need to make sure that any employee who carried weapons or investigated drug trafficking did not use drugs himself or herself. (33) This special need was sufficient to justify a suspicionless search. (34)

      The extent of the holdings in Skinner and Von Raab was finally limited eight years later in Chandler v. Miller. (35) In this case, the Supreme Court struck down a statute requiring all candidates running for political office to pass a drug test. (36) The Court found no special need because (1) there was "no evidence of a drug problem among... elected officials," (2) "those officials typically d[id] not perform high risk, safety-sensitive tasks, and" (3) "the required certification immediately aid[ed] no interdiction effort[s]." (37) Although drug use calls into question "an official's judgment and integrity[]... and undermines public confidence and trust in elected officials," the Court was clear that no special need could be found absent some "indication of a concrete danger demanding departure from the Fourth Amendment's main rule." (38)

      It was not until Vernonia School District 47J v. Acton in 1995 that the special needs exception was extended to cover drug testing in public schools. (39) In Acton, the Court held a public school may implement a suspicionless drug test as long as the school has a legitimate interest in doing so and the test is not too intrusive. (40) Although the "ultimate measure of the constitutionality of a governmental search is 'reasonableness,'" courts handling the tolerability of warrantless drug testing in public schools have used three factors in guiding their decisions. (41)

      1. Nature of the Privacy Interest

        Courts first examine the nature of the privacy interest upon which the search at issue intrudes. (42) The greater the privacy interest, the less likely it is that a suspicionless drug test will be found reasonable. (43) It is well accepted that the inherent custodial responsibility schools possess over their pupils creates a lesser expectation of privacy for the students within the school environment. (44)

        In Acton, the Supreme Court of the United States held that a student's participation in school-sponsored sports programs was adequate on its own to warrant the school's suspicionless, warrantless drug test of that student. (45) Although the Court "caution[ed] against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts," it also explicitly stated that "the most significant element [in deciding so in this case was]... that the 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." (46)

        This concept was taken even further in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, in which the Supreme Court held that suspicionless drug testing of students in all extracurricular activities was "a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren." (47) As the Court reasoned, "[S]tudents who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes" and should therefore be subject to the same lowered expectation of privacy. (48) This supposed consent to intrusion allowed the Earls Court to extend the Acton doctrine even further. (49)

        The rulings in Acton and Earls laid the foundation for how lower courts analyzed suspicionless drug tests of students in all public schools: the greater the involvement of the student, the greater the school's custodial responsibility. (50) This increased custodial responsibility, in turn, created a lower expectation of privacy for those students, subsequently tipping the scales of reasonableness in favor of the schools in these types of cases. (51)

      2. The Character of the Intrusion

        The second factor that courts evaluate when deciding whether a suspicionless drug test in a public school fits under the special needs doctrine is "the character of the intrusion imposed by the [drug-testing p]olicy." (52) Specifically, "the 'degree of intrusion' on one's privacy caused by [carrying out the drug test] 'depends upon the manner in which production of the [] sample is monitored.'" (53) Although this factor...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT