Public school drug testing: the impact of Acton.

• Author: Rosenberg, Irene Merker

When the rights of children in the public schools(1) and the safeguards of the Fourth Amendment(2) intersect in a case before the United States Supreme Court, it is no surprise that both lose.(3) So it was that in Vernonia School District v. Acton,(4) the Court reversed a Ninth Circuit ruling(5) and upheld a public school district's policy authorizing random urinalysis drug testing of grade school and high school students who voluntarily participated in interscholastic athletic programs.(6)

Justice Scalia, writing for the six-person majority,(7) continued the Court's expansion of administrative searches that do not require individualized suspicion because the purpose of the search is to achieve an objective other than enforcement of the penal laws.(8) At the same time, building on its ruling in New Jersey v.T.L.O.(9) and other cases dealing with the rights of children in public schools,(10) the Court narrowed the Fourth Amendment privacy rights of students and their parents. While T.L.O. dispensed with the need for either a warrant or probable cause in searching students for evidence of wrongdoing,(11) Acton went farther, eliminating even the need for the individualized suspicion that was present in the T.L.O. case.(12)

Although Justice Ginsburg concurred in the decision on the understanding that the holding was restricted to students who voluntarily participate in interscholastic athletics,(13) a close reading of the majority opinion suggests otherwise.(14) If the ruling is not so limited, millions of school children may be forced to urinate into test tubes while being monitored--conditions that Justice Scalia likened to those "typically encountered in public restrooms."(15) Justice O'Connor's dissenting opinion, joined by Justices Stevens and Souter, castigated the majority for failing to adhere to either history or precedent. She argued that, for the first time, the Court allowed a random search of innocent persons even though a suspicion-based program would have been feasible.(16)

Justice Scalia's majority opinion is susceptible of varying interpretations. On the one hand, even if it is not as limited as Justice Ginsburg suggested--that is, to interscholastic athletes and no others--the ruling may at least be confined to public school students. According to this view, clearly facilitating, if not driving, the result in Acton was that the tests in question were being performed on school children rather than adults. If that were the case, Acton would be following an established judicial trend of selective invocation of the status of childhood only as a basis for diminution of constitutional protection and never for enhancement purposes.(17) This reading of Acton flows primarily from the Court's narrow interpretation of the privacy rights of students.

In administrative search cases, however, the standard is one of reasonableness, and, in making that determination, the Justices use a multi-factor balancing test, only one element of which is the individual privacy interest.(18) The Acton Court's analysis of the intrusion on that interest and its assessment of the government interest were dependent only in part on considerations related to children. Engaging in a reasonableness inquiry completely divorced from the warrant and probable cause requirements of the Fourth Amendment, the majority manipulated the constituent factors in the balancing test, easing the government's burden of establishing appropriate ends and means(19) and minimizing not just the individual privacy right(20) but also the intrusion on it(21)--an analysis that might well have implications for adults as well as children.(22) Because the entire balancing test for reasonableness is fluid and highly subjective, and because only one of the balancing factors in Acton relates exclusively to children, it is not possible to write the decision off as merely another case limiting the constitutional rights of minors. Read this way, Acton is a far more ominous development in Fourth Amendment jurisprudence.

1. THE ACTON Decision

   1. Background

      The record in the case indicated that there had been a significant rise in drug use and disciplinary problems at the Vernonia schools, and school athletes were leaders of the drug culture. There was also testimony that drug use had led to increased injuries among participants in interscholastic sports.(23) Although the school district had tried different methods to combat the problem, including education and drug-detecting dogs, the record showed that disciplinary problems had persisted and increased. After holding a meeting with parents, who overwhelmingly supported random drug testing of student athletes, the district approved such a policy.(24)

      The new policy applied to all students participating in interscholastic athletic programs. These students and their parents were required to sign consent forms at the beginning of the season, and refusal to do so resulted in exclusion from the athletic program. Once each week of the season, ten percent of the athletes were randomly selected for drug testing(25) and, while giving urine samples, were monitored to prevent fraud. Those taking prescribed medications had to provide a prescription or doctor's authorization in advance of the testing. The laboratory performing the tests mailed written results to the superintendent and telephoned them to requesting district officials after the latter recited a code that confirmed their authority. If a test was positive,(26) another was given. If that test also was positive, the parents were contacted, and there was a meeting with the parents, the student, and school officials, at which the student was given the option of either participating in a six-week "assistance program" that included weekly urinalysis or being suspended from athletics for that season and the following season.(27)

      The plaintiffs in Acton were a seventh-grader and his parents, who refused to sign the necessary consent forms, viewing the testing as an invasion of privacy.(28) The district court refused to grant injunctive or declaratory relief on either federal or state constitutional grounds.(29) The Ninth Circuit reversed, finding violations of the Fourth Amendment and a corresponding provision of the Oregon Constitution.(30)

   2. The Majority Opinion

      Touching lightly on his original intent philosophy,(31) but offering barely a nod in the direction of the explicit language of the Fourth Amendment,(32) Justice Scalia passed over the general rule requiring a warrant and probable cause and moved almost immediately to the exception.(33) In the "special needs" cases, the Court upheld searches on a lesser showing than that seemingly required by the terms of the amendment because of the states' concern with matters beyond criminal law enforcement.(34) The majority stressed the overarching criterion of reasonableness in the Fourth Amendment, viewing reasonableness in isolation, that is, disconnected from the warrant clause and its probable cause standard.(35)

      Although New Jersey v. T.L.O.(36) established that "special needs" were present in the public school context, that case involved a search of a public school student's purse for evidence of wrongdoing based on individualized suspicion, with the Court explicitly leaving open whether such searches required a particularized basis for invasion of privacy interests.(37) That issue had, however, been resolved outside the public school arena. Specifically, the Court had validated urinalysis drug testing without individualized suspicion in two cases. The majority relied on Skinner v. Railway Labor Executives' Association,(38) which upheld such testing for railroad personnel involved in serious train accidents, and National Treasury Employees Union v. Von Raub,(39) which approved suspicionless urinalysis for certain federal customs officers who carry weapons or are directly involved in drug interdiction. In still other cases, said Justice Scalia, suspicionless stops at automobile checkpoints to detect illegal immigrants(40) and intoxicated drivers(41) were found not to violate the Fourth Amendment, thus lending further constitutional support to the school district's policy.(42)

      Turning to the balancing test traditionally used in "special needs" cases, Justice Scalia assessed the individual interest in privacy, the nature of the intrusion on that interest, and the competing governmental interest. In his analysis of the implicated privacy right, Justice Scalia emphasized that, "[c]entral, in our view, to the present case is the fact that the subjects of the [drug testing] Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster."(43)

      That Justice Scalia was focusing on students rather than student athletes becomes even clearer in his analysis of the scope of the privacy interest. He noted that, both at common law and in modern times, minors have suffered substantial restrictions on their liberty. Children are subject to the control of their parents, and when parents put their offspring in public schools, the state's power over them is "custodial and tutelary."(44) Although there is case law upholding the constitutional rights of students in public schools, the Court was careful to note in those cases that students' rights are not coterminous with those of adults.(45) This body of law allowed the majority to conclude that "Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the 'reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children."(46)

      Justice Scalia asserted that the right of schools to require students to submit to physical examinations and vaccinations demonstrated that, regarding medical examinations and procedures, public school students have diminished expectations of privacy.(47) The majority then went on to discuss student athletes'...