Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls: Will Louisiana Halt the United States Supreme Court s Continuous Corrosion of Student Fourth Amendment Rights?

• Author: Ashley S. Green
• Pages: 197-218

Page 197

I would like to extend my sincere gratitude to Professor John Devlin for his insight and guidance in developing this note. I thank my parents, Frederic and Beth, and husband Chad for their love and support through such a rough year. I love you and I hope I have made you proud. I dedicate this note to two people. To my late grandfather, Ted Cormier-;here in spirit and always in my heart, thank you for teaching me the value of an education and the importance of family. To my son, Aidan-;may you grow to love and respect your country and stand up for your rights that so many have died for.

There is a circle around every individual human being which no government ought to be permitted to overstep, that there is, or ought to be, some space in human existence thus entrenched around and sacred from authoritarian intrusion. No one who professes the smallest regard for human freedom or dignity can ever call this into question. ¹

-;Thomas Jefferson

Introduction

More than three decades have passed since the United States Supreme Court in Tinker v. Des Moines Independent Community School District² recognized student constitutional rights by declaring that constitutional protections are not shed at the schoolhouse gate.³Today, in the twenty-first century, that statement has been the source of many a footnote, but rarely a source of application because student rights have not only been shed, but have more or less evaporated. While the Supreme Court has not yet abandoned Fourth Amendment protections altogether for people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures,⁴ it has, in essence, excluded schoolchildren from the definition of "people."

While some believe that statement to be harsh, this is, unfortunately, the undeniable conclusion that can be reached by anyone who has read Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls,⁵ which upheld a policy requiring Page 198 all students who participated in extracurricular activities to submit to suspicionless drug testing despite minimal evidence of a drug problem within the school.⁶ In upholding the policy, the Supreme Court basically trumped the government's "special need" to prevent and deter student drug use over the rights proclaimed by that two-hundred-yearold contract we call the United States Constitution. Reading the Court's opinion makes it difficult to ignore the possible future ramifications. Although the world is currently experiencing a widespread drug problem, truncating student Fourth Amendment rights is not the answer. In the end, it may do more harm than good by causing students to shy away from the one thing acknowledged to be a deterrent from drug abuse-;participation in student extracurricular activities. Louisiana, however, may choose to provide its citizens a remedy to prevent this continuing corrosion of individual rights. At least one state has used its own constitution to strike down a student drug-testing policy similar to the policy approved of in Earls.⁷ In order for Louisiana to preserve the fundamental liberties it holds dear, the Louisiana Supreme Court should protect its citizens from unreasonable governmental intrusion by applying Louisiana's constitution and making a declaration that, while the United States Supreme Court has appeared to have abandoned the maxim set out in Tinker, Louisiana will continue to support the view that students do not shed their rights at the schoolhouse gate.

Part I of this article discusses two important Supreme Court cases preceding Earlsthat involve constitutional challenges to student searches. Part II, which discusses in detail the Earlsopinion, is followed by an analysis of the case using a balancing test set forth by the Supreme Court. This analysis not only attempts to distinguish the Earls policy from a previous policy upheld by the United States Supreme Court, but illustrates the consequences Earls will have in the future. Part III then focuses on Louisiana's constitution, current legislation, and jurisprudence to determine whether Louisiana will prevent the continuous corrosion of student rights.

I Fourth Amendment School Searches Preceding Earls

A New Jersey v. T.L.O

T.L.O.was the first Supreme Court case addressing Fourth Amendment searches in the school context. ⁸ There, school officials Page 199 searched a purse of a student suspected of smoking and came upon marijuana cigarettes. The United States Supreme Court granted certiorari to decide whether the evidence produced by the search should be suppressed. The Court first began its analysis by declaring that school officials are not exempt from Fourth Amendment requirements merely because of their tutelary nature.⁹ In citing Tinker,the Court stated that, "[i]f school authorities are state actors for purposes of the constitutional guarantees of freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising parental rather than public authority when conducting searches of their students."¹⁰ The Court, however, held the evidence to be admissible on the theory that there must be some balancing test to accommodate both student privacy interests and the substantial need for school administrators and teachers to maintain order and discipline within the schools.¹¹ Therefore, in order to maintain an adequate learning environment, school officials are not bound by probable cause requirements and may search students if the search is based on reasonable suspicion. In order to determine whether the search passes constitutional muster, a test of reasonableness must be performed when conducting both criminal and administrative searches.¹²

B Veronia School District 47J v. Acton-;Expanding the Scope of Student Searches

In 1995, the Supreme Court ruled on the Veronia School District's drug implementation policy that randomly tested student athletes. ¹³The court held the policy constitutional when it refused to apply a standard of reasonable suspicion. Instead, the court formulated a three-part test to determine when Fourth Amendment searches by school officials are reasonable. According to the Court, one must look at (1) the nature of the privacy interest,¹⁴ (2) the character of the intrusion imposed by the policy,¹⁵ and (3) the nature and immediacy of the government's concerns.¹⁶

Before fully introducing Veronia's test, it is important to note that the Veronia School District faced extraordinary circumstances when it decided to implement its drug-testing policy. A sharp increase in Page 200 student drug use was noted in the late 1980's. By the mid-1990's, student drug use was so rampant that it was difficult for teachers to control the students in the classroom, and many disciplinary proceedings were held due to this widespread drug problem.¹⁷Students began to boast of their attraction to the drug culture and some informed school officials that nothing could be done to solve the problem.¹⁸ Evidence also indicated that, not only were athletes abusing drugs, but they were, in fact, the leaders of the drug culture. Further, injuries sustained by student athletes had grown,¹⁹ causing concern about student safety. This situation caused the School District to implement the drug-testing policy requiring student athletes to submit to random drug-testing.

1. The Nature of Veronia Athletes' Privacy Interests

In determining the nature of the athletes privacy interests, the Court stressed that students have a lesser expectation of privacy than adults because of the tutelary nature that school officials exercise over them, but that they retain legitimate privacy expectations nonetheless.²⁰ This privacy expectation is even less with student athletes, who must abide by athletic rules and regulations and submit to routine physical examinations.²¹ Also, since athletic dressing facilities do not have separate shower and dressing facilities, there is an element of communal undress associated with athletic participation.²² Student athletes in a school setting also have a lower expectation of privacy because their adult counterparts are routinely subjected to suspicionless drug testing. After weighing all of the facts in the case, the Court determined that the nature of the privacy interests purported by Veronia'sathletes was minimal.

2. Character of the Intrusion Imposed by Veronia's Policy

Urinary drug-testing has been determined to be a great intrusion of privacy upon a person, but the Court has often looked to the manner in which the test is conducted to determine the degree of that intrusion.²³ The Court analyzed the Veronia School District's testing Page 201 procedure to determine whether the District's policy created an unnecessary invasion of privacy. The plaintiffs in Veroniaargued that the Policy imposed a requirement on students selected for random drug testing to produce their...