Pee-to-park: should public high school students applying for on-campus parking privileges be required to pass a drug test?

• Author: Hartman, Jared M.

1. INTRODUCTION II. CASE-LAW BACKGROUND A. Public High School Students Retain Constitutional Rights B. The Fourth Amendment Scrutiny 1. Privacy expectations that society recognizes as reasonable 2. Urinalysis constitutes a search and seizure 3. Warrants and probable cause 4. Reasonable suspicion in public schools C. The Supreme Court's Analysis of Suspicionless Drug-Testing Programs 1. Suspicionless drug-testing programs in general 2. Suspicionless drug-testing programs in public high schools III. VERNONIA FACTORS APPLIED A. Special Needs B. The Privacy Interests Implicated by the Search C. The Invasiveness of the Drug-Testing Program D. The Nature and Immediacy of the School's Concerns E. The Efficacy of the Drug-Testing Program IV. PUBLIC POLICY CONSIDERATIONS A. Special Needs B. The Nature of the Privacy Interests Implicated C. Invasiveness D. The Efficacy of Drug-Testing Programs E. Slippery Slope V. CONCLUSION I. INTRODUCTION

   High school can be a challenging time for many teenagers. They are faced with the challenge of developing into independent young adults, while being subjected to constant authoritative control and scrutiny. Teenagers are even subject to authoritative supervision outside of the home by such figures as schoolteachers, guidance counselors, athletic coaches, and student group advisors. In many cases, these adult authority figures are in a relationship of trust and confidence with the students, often to a degree where the adult is seen as a surrogate parent or role model.

   In such relationships, how would most students react if asked by these authority figures to submit to a suspicionless (1) drug test? Would the students feel that someone they trust and admire is accusing them of wrongdoing, and feel that they must vindicate themselves by passing the test? (2) Would the students be afraid to assert their right not to take the test out of fear of being seen as deceptive?

   In an effort to battle adolescent drug use, many school districts have implemented drug-testing programs that focus on certain groups of students without any particularized suspicion of drug use by any of the individual students. Schools obtain consent to these programs by conditioning participation in certain activities on passing the drug test. For example, many schools condition participation in interscholastic athletics on passing a drug test. (3) Some schools also condition participation in any competitive, interscholastic activity, such as band or choir, on passing a drug test. (4)

   Although the Supreme Court of the United States (5) has specifically addressed and upheld these latter examples, (6) schools have implemented drug-testing programs in other contexts as well. For example, Groveport Madison, a public high school in Groveport, Ohio, recently adopted a policy that requires all students applying for an on-campus parking permit to pass an initial drug test, and to also submit to a monthly random drawing of students to be tested. (7) This program requires students to pay an annual fee of $26, and has been attributed with causing the number of students applying for on-campus parking permits to decrease by 25% from the previous year. (8) The school's first random test yielded three positive results for marijuana out of 37 samples. (9) Students who fail the test are punished with a three-week suspension of parking privileges and are required to undergo counseling. (10)

   The Groveport Madison program has produced mixed feelings among the local community. Columbus Dispatch reporter Mike Harden quoted Groveport Madison Principal Mike Beck as saying that, early in the program's existence, he estimated parental support for the program as being "70-30 for." (11) However, the program has upset at least one parent. Ken Dustheimer, whose daughter attended Groveport Madison at the time, lodged a complaint concerning the program's legality with the American Civil Liberties Union (ACLU) of Ohio. (12) Although the ACLU of Ohio has not taken any formal legal action regarding the program, Gary Daniels, Litigation Coordinator and spokesman for the ACLU of Ohio, stated that "[the program] definitely raises constitutional concerns." (13)

   This note will address the concerns raised by suspicionless drug-testing programs in public high schools by ultimately arguing that public policy considerations should be factored into the Supreme Court's balancing test, (14) and that such considerations will weigh the balance against expanding drug-testing programs to contexts beyond those already upheld by the Supreme Court. (15) At the least, this note will argue that the Groveport Madison drug-testing program, imposed on students applying for on-campus parking privileges, should not be upheld. However, before this argument can be properly asserted, a number of pertinent topics must be discussed.

   Section II of this note will begin by discussing the primary Supreme Court cases (16) that address certain legal issues relevant to drug-testing programs. (17) This section will also discuss the cases specifically addressing drug-testing programs, including those implemented by public high schools. (18) Section III of this note will apply the Supreme Court's balancing test to the Groveport Madison program. Section IV of this note will analyze certain public policy considerations according to their relevant factors in the Supreme Court's balancing test. (19) In conclusion, this note will argue that such public policy considerations weigh the Supreme Court's balancing test against the program implemented by Groveport Madison, and that high school drug-testing programs should be limited to those contexts already specifically upheld by the Court.

2. CASE-LAW BACKGROUND

   Some preliminary issues must be addressed before directly discussing the Supreme Court's treatment of public high school drug-testing programs. First, this Section will discuss the applicability of the Bill of Rights and, specifically, the Fourth Amendment to the U.S. Constitution, (20) to public high school students. Second, this Section will review certain areas of a Fourth Amendment analysis. These areas include: 1) the types of privacy expectations protected by the Fourth Amendment; 2) whether a drug test conducted via urinalysis constitutes a search and seizure that is covered by the Fourth Amendment; and 3) the standards of suspicion that must be met in particular instances for the government to justify a search. Finally, this Section will review the Supreme Court's analysis of suspicionless drug-testing programs, including those implemented by public high schools.

   1. Public High School Students Retain Constitutional Rights

      In Tinker v. Des Moines Independent Community School District, the Supreme Court held that three high school students' right to freedom of expression was violated by the school district when it indefinitely suspended the students for wearing black armbands to school in protest of the Vietnam War. (21) In dicta, the Court stated that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (22) Further, "state-operated schools may not be enclaves of totalitarianism," (23) and "students ... are 'persons' under our Constitution.... [t]hey are possessed of fundamental rights which the State must respect." (24) Additionally, the Court stated that one objective of our nation's schools is to educate students for citizenship, which is "reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to ... teach the youth to discount important principles of our government as mere platitudes." (25)

      Subsequently, in New Jersey v. T.L.O., the Supreme Court applied a Fourth Amendment analysis when it upheld a school official's search of a female student's purse. (26) Before concluding that this search was reasonable, (27) the Court inquired as to whether the Fourth Amendment applies to searches conducted by public school officials. (28) The Court declared that it is an indisputable proposition that the Fourteenth Amendment to the U.S. Constitution (29) "'prohibits unreasonable searches and seizures by state officers,"' (30) and it is "equally indisputable ... that the Fourteenth Amendment protects the rights of students against encroachment by public school officials." (31) In support of this proposition, the Court stated that schools act according to "publicly mandated educational and disciplinary policies;" (32) and, therefore, "school officials act as representatives of the State, not merely as surrogates for the parents." (33)

   2. The Fourth Amendment Scrutiny

      The Text of the Fourth Amendment reads:

       The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 

      Despite the apparent clarity of this language, its application in particular instances has been quite controversial. For example, it is not always clear what types of expectations of privacy are protected, or what types of searches must satisfy a Fourth Amendment scrutiny. Additionally, case law has created some exceptions to the requirement of a warrant based on probable cause, thereby allowing a search to be supported by either reasonable suspicion or less in certain circumstances. (34) Accordingly, this subsection will discuss the types of privacy expectations protected by the Fourth Amendment, whether a urinalysis constitutes a search and seizure that must pass constitutional muster, and the relevant standards of suspicion that officials must have in particular instances before conducting a search. (35)

      1. Privacy expectations that society recognizes as reasonable

         The Supreme Court has stated that the Fourth Amendment does not protect all expectations of...