Expanding the Scope of Suspicionless Drug Testing in Public Schools - C. Ashley Royal

• Publication year: 2003

Special Contribution

Expanding the Scope of

Suspicionless Drug Testing in

Public Schoolsby C. Ashley Royal*

I. Introduction

During the last term, the Supreme Court issued an important new opinion regarding suspicionless drug testing in public schools. The case of Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls¹ substantially expanded the scope of students subject to a school drug testing policy beyond what was allowed under the earlier case of Vernonia School District 47J v. Acton,² which only authorized the testing of student athletes.³ This Article first considers some of the unusual principles that apply to an analysis of the Fourth Amendment⁴ in a public school context as explained by the Court in New Jersey v. T.L.O.⁵ and then examines the opinion in Vernonia and its progeny, Pottawatomie.

II. School Searches

School officials do not have absolute authority over their students. Students in school and out of school are persons protected by the constitution. They have fundamental rights that the state must respect, just as students must respect their obligations to the state.⁶ Consequently, the Fourth Amendment protects students in public schools.

The Fourth Amendment's prohibition of unreasonable searches and seizures applies to searches conducted by public school officials.⁷ Boards of education are not excepted from acting within the limits of the Bill of Rights, as applied to the states through the Fourteenth Amendment,⁸ because Fourth Amendment restraints apply to governmental action, not just law enforcement action.⁹ Moreover, unlike a private school that acts in loco parentis and only with the delegated power of the parent, a public school does not simply stand in the place of the parent without constitutional restraint because such power "is not entirely 'consonant with compulsory education laws.'"¹⁰ Yet, the nature of the public school official's role is "custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults."¹¹

In New Jersey v. T.L.O., the first major Supreme Court case involving school searches, a teacher found a student smoking a cigarette in a school bathroom and took her to the principal's office. When the assistant vice principal asked the student about smoking, she denied it, so he demanded to see her purse. When he opened the purse, he found cigarettes and cigarette rolling papers, which are commonly used to roll marijuana cigarettes. He then searched the purse thoroughly and found marijuana, drug paraphernalia, a substantial sum of money, an index card noting students who owed her money, and two letters indicating that she was a marijuana dealer.¹² The Court held that the search did not violate her Fourth Amendment rights.¹³

As the Court explained, "A search of a child's person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy."¹⁴ But, the Fourth Amendment only protects legitimate expectations of privacy, not unreasonable or illegitimate expectations of privacy.¹⁵ Moreover, "[a]gainst the child's interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on the school grounds,"¹⁶ which leads to striking "the balance between the school child's legitimate expectations of privacy and the school's equally legitimate need to maintain an environment in which learning can take place."¹⁷ Although the Fourth Amendment's reasonableness principle still controls the constitutionality of the intrusion, this balancing of interests, combined with the special relationship of a public school with its students, modifies the warrant requirement and the typical probable cause requirements commonly imposed on law enforcement officers.

The Supreme Court has determined that the warrant requirement is particularly ill suited to the school environment, in which swift and informal discipline is needed, and has held that school officials do not need a warrant to search a student.¹⁸ The Court has also modified the level of suspicion of illicit activity required to justify a search involving students in public schools.¹⁹ As a consequence, probable cause is not required. The legality of a search of a student depends on the reasonableness of the search under all the circumstances:

Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the

measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.²⁰

By focusing on the reasonableness of the search, school officials can rely on reason and common sense rather than on the complexities of the Fourth Amendment standards for probable cause.²¹ This lowering of the usual Fourth Amendment standards is appropriate because the Supreme Court has found that public schools have special needs beyond the normal needs of law enforcement.²² Such special needs include drug testing policies.

III. Mandatory Drug Testing Programs in Public Schools

In Vernonia School District 47J v. Acton, the school district enacted a drug testing policy for all athletes that required them to sign a consent form authorizing the district to take a urine sample from all athletes at the beginning of the season. The drug policy also authorized random drug tests of ten percent of student athletes during the school year. The district implemented the policy because of an increasing rate of drug use within the student body and evidence that drug use among student athletes increased the risk of sports injuries.²³ The expressed purpose of the policy "[was] to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs."²⁴ The Court considered the purpose of the drug policy and the reasonableness of the protocol and found the policy constitution-al.²⁵ In analyzing the constitutionality of the policy, the Supreme Court examined three factors to determine the policy's reasonableness under the circumstances.²⁶

First, the Court looked at the nature of the privacy interest the search intruded on and the scope of the legitimate expectation of privacy, and it noted that privacy expectations vary with the context, such as whether the person is "at home, at work, in a car, or in a public park."²⁷ As a part of this analysis, the Court also considered the individual's legal relationship to the state.²⁸ Central to the Court's ruling in Vernonia was the proposition that the subjects of the drug policy were children who had been committed to the temporary custody of the state.²⁹ As the Court explained, the "'reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children."³⁰ The Court looked to common law and found a long tradition of significant control over students. It explained:

Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination—including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them. In fact, the tutor or schoolmaster is the very prototype of that status. As Blackstone describes it, a parent "may . . . delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed."³¹

The Court also considered other routine medical requirements and examinations mandated for students, which result in a lower expectation of privacy for students than for the population at large.³² Regarding these routine medical requirements, the Court explained:

For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases .... Particularly with regard to medical examinations and procedures, therefore, "students within the school environment have a lesser expectation of privacy than members of the population generally."³³

The Court then noted that most...