Random, suspicionless drug testing of high school athletes.

• Author: Shutler, Samantha Elizabeth
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Vernonia Sch. Dist. 47J v. Acton,(1) the United States Supreme Court addressed whether a school district could impose random and suspicionless urinalysis drug testing on high school student athletes. The Court held that such testing did not violate students' Fourth Amendment rights and was therefore constitutional.(2) In so deciding, the Court vastly expanded the permissible realm of drug testing contexts beyond the limits defined in two earlier decisions, Skinner v. National Railway Labor Executives Ass'n(3) and National Treasury Employees Union v. Von Raab.(4) In those cases, the Court previously stated that the government could only transcend the Fourth Amendment requirement of individualized suspicion where it had a compelling interest at stake, namely a threat to public safety or national security.(5) The Vernonia Court argued that, because high school athletes have decreased expectations of privacy by virtue of their participation in extracurricular athletics, the suspicionless drug testing was constitutionally justified.(6)

   This Note argues that the Supreme Court overstepped the boundaries of the Fourth Amendment in two ways: first, by finding the interest of the Vernonia District in promulgating the drug testing to be "compelling" given the paucity of the evidence of athletes using drugs; and second, by holding that student athletes have diminished privacy expectations solely due to the structure and requirements of the athletic program. This Note concludes that the Supreme Court reached its decision primarily for policy reasons, specifically the eradication of drug use among America's children. Although this reason is a noble one, it does not justify the consequence of eroding constitutional privacy rights of children.

2. BACKGROUND

   1. CONSTITUTIONAL ORIGINS OF THE FOURTH AMENDMENT

      The Fourth Amendment to the United States Constitution provides:

      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.(7)

      The Fourth Amendment was drafted in reaction to the "general warrants" used in England, which allowed British officers to capriciously search colonial homes and workplaces for criminal evidence, seditious literature, or illegally imported goods.(8)

      Countless Supreme Court cases recognize that the basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. These cases harmonize with the well-established idea that the Fourth Amendment gives concrete expression to a right of the people which is "basic to a free society."(9)

      As indicated by the wording of the Fourth Amendment, "reasonableness" is the ultimate measure of the constitutionality of a government search.(10) Courts generally determine the "reasonableness" of a search by a balancing test, though the conditions and prerequisites for such a test depend on whether the search is conducted in a criminal or administrative context.

   2. INTERPRETATION OF THE FOURTH AMENDMENT IN THE CRIMINAL CONTEXT

      When law enforcement officials conduct a search to uncover evidence of criminal wrongdoing, the "reasonableness" requirement of the Fourth Amendment generally requires them to obtain a judicial warrant.(11) Where a warrant is required, the Warrant Clause of the Fourth Amendment(12) mandates that courts may not issue them without probable cause.(13) Whether a warrant is always required, however, has been a matter of judicial interpretation. Therefore, the Fourth Amendment case law in the criminal context has delineated several exceptions to the warrant requirement,(14) indicating that the reasonableness of a search does not require a warrant in all instances.(15)

      Initially, the Supreme Court required probable cause as a prerequisite for a full-scale search in the criminal context, regardless of whether such a search was conducted pursuant to a warrant or under one of the recognized exceptions to the warrant requirement. In the context of warrantless searches, one of the first Supreme Court cases to explicitly articulate this probable cause standard was Carroll v. United States.(16) The Carroll Court held that a warrantless search of a car was unreasonable unless supported by some level of individualized suspicion, namely probable cause, thus implying that such a search conducted under individualized suspicion would be a valid exception to the warrant requirement.(17) The Court did not base its conclusion on the express probable cause requirement contained in the Warrant Clause of the Fourth Amendment,(18) but rather on the Framers' interpretation of unreasonable searches, the interests of the public, and the interests of individuals.(19) The Carroll Court declared further that blanket, warrantless searches are "intolerable and unreasonable."(20)

      Later case law relaxed Carroll's strict probable cause requirement in the area of warrantless criminal searches indicating that, where a warrant is not required, probable cause is not necessary either.(21) The Supreme Court has stated that a criminal search not based on probable cause will pass Fourth Amendment muster, "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable."(22) When deciding whether such "special needs" exist, the Court balances the search's intrusion upon individual interests against its promotion of legitimate governmental interests.(23)

      For example, in Terry v. Ohio,(24) the Court relaxed the probable cause requirement for a "minimally intrusive search" to something short of probable cause.(25) Specifically, the Court held that if a police officer observes unusual behavior which suggests criminal activity, then he may conduct a careful and limited search of the suspected individual's outer clothing without a warrant.(26) One year later, consistent with its decision in Terry, the Court enunciated an exception to the warrant requirement for a criminal search conducted incident to arrest.(27)

   3. INTERPRETATION OF THE FOURTH AMENDMENT IN THE ADMINISTRATIVE CONTEXT

      While both administrative and criminal searches are constitutional if conducted pursuant to a warrant or probable cause as directed by the Fourth Amendment, criminal searches differ from administrative searches in two important respects. First, criminal searches are conducted for the purpose of uncovering evidence related to criminal activity.(28) Administrative searches, on the other hand, are not conducted with the specific purpose of uncovering criminal evidence, but rather are administered according to a policy established by a politically accountable body that "sufficiently limit[s] official discretion."(29)

      Second, criminal searches are only constitutionally justified if conducted pursuant to a warrant or under an exception to the warrant requirement, including probable cause.(30) Thus, the probable cause standard(31) "is peculiarly related to criminal investigations"(32) and is largely unhelpful in assessing the reasonableness of administrative searches.(33) This is particularly true where the government conducts a search to prevent the development of hazardous conditions or to detect blanket violations, the existence of which do not generate articulable grounds or probable cause for searching any particular persons.(34) Rather, in the administrative context, courts employ a balancing test which weighs the government interest in conducting the search against the individual privacy interests affected by the search.(35) Hence, courts judge administrative searches by different standards and balancing tests than criminal searches.

      The Supreme Court first recognized that a government official possessed the authority to conduct an administrative search in Camara v. Municipal Court.(36) In Camara, an apartment occupant denied access to a housing inspector investigating housing code violations without a warrant.(37) The Supreme Court applied a balancing test, weighing the public needs furthered by the proposed search, namely the elimination of hazardous housing code violations, against the invasion of the occupant's privacy.(38) The Court then concluded that the inspector's intended search was reasonable, and thus constitutional.(39) The Court based its conclusion on the finding that inspectors could not detect building code violations, such as faulty wiring, from the outside; consequently inspections were necessary to ensure public safety.(40) In rendering its decision, however, the Court emphasized that administrative searches significantly intrude upon individual privacy interests; therefore, where no emergency exists, the Court mandated that the entity conducting the search either procure a warrant or conduct the search pursuant to one of the other recognized exceptions to the warrant requirement.(41)

      Twelve years later, in Delaware v. Prouse,(42) the Supreme Court clarified the Camara balancing test. The Court enunciated four factors for courts to balance when determining the reasonableness of an administrative search: (1) the importance of the governmental interest; (2) the physical or psychological intrusion upon the individual's privacy interests; (3) the amount of discretion exercised by the official conducting the search; and (4) the effectiveness and necessity of the intrusion in reaching law enforcement goals.(43)

      As discussed below, courts have consistently applied the four factors in Prouse as part of a general balancing test, either in total or in part, when they have assessed the reasonableness of administrative searches in public schools and in the workplace.

   4. ADMINISTRATIVE SEARCHES IN PUBLIC SCHOOLS

      The Supreme Court has utilized a balancing test approach, similar to...