York v. Wahkiakum School District and the Future of School Searches Under the Washington State Constitution Kerem Murat Levitas

• Citation: Vol. 84 No. 1
• Publication year: 2021

YORK V. WAHKIAKUM SCHOOL DISTRICT AND THE FUTURE OF SCHOOL SEARCHES UNDER THE WASHINGTON STATE CONSTITUTION

Kerem Murat Levitas

Abstract: In March 2008, the Supreme Court of Washington decided York v. Wahkiakum School District,(fn1) a case involving mandatory, suspicionless drug testing of student athletes. The court struck down the testing regime, but, unable to agree on the grounds for invalidating the testing, issued three separate opinions. The lead opinion argued that suspicionless testing could never be countenanced under the Washington Constitution. Two concurrences argued that suspicionless testing could be permissible under certain circumstances pursuant to a variant of the federal special-needs doctrine. This Note reviews search-and-seizure protections under the United States and Washington constitutions, their application to school search law, and gives an overview of York. Finally, this Note argues that jurisprudential, democratic, and educational values all counsel in favor of following York's lead opinion and maintaining an individualized-suspicion requirement for school searches.

INTRODUCTION

In March 2008, a divided Supreme Court of Washington decided York v. Wahkiakum School District, a case that involved a suspicionless drug-testing regime in which the school district tested all of its student-athletes. While the court's nine justices unanimously struck down the program as a violation of article 1, section 7 (Section 7) of the Washington State Constitution, they did not produce a majority opinion.

The lead opinion, written by Justice Sanders and signed by three other justices, rejected the federal special-needs exception to the warrant requirement in the school context. Two concurrences, one written by Justice Madsen and signed by three other justices, and the other written by Justice James Johnson, argued that the State Constitution does allow for a special-needs exception in Washington schools, but that the facts before the court did not satisfy the requirements of that exception.

This split decision provides no clear answers to school districts, students, school administrators, practitioners, or lower courts as to whether a special-needs exception exists for Washington's public schools. Clear doctrine on this point is critically important for all stakeholders: students must know the parameters of their privacy rights, schools need to plan for drug control within clearly defined contours of the law, and the uniform administration of justice requires that lower courts have clear directives. This Note weighs the strengths and weaknesses of the various opinions and argues that the Supreme Court of Washington should adhere to a bright-line requirement of individualized suspicion for all school searches.

Part I compares the basic jurisprudence of the U. S. Constitution's Fourth Amendment with Section 7 of the Washington State Constitution and shows that the state provision more vigorously protects the privacy of Washington residents than do the federal guarantees. Part II explains how Fourth Amendment rules apply to searches performed in schools and shows that they allow for suspicionless drug testing of students. Part III introduces Washington cases that have applied Section 7 in the school context, and demonstrates that the opinions have all relied upon individualized suspicion of wrongdoing when upholding invasions of students' privacy. Part IV presents York v. Wahkiakum School District, describing the underlying controversy and summarizing the court's three major opinions. Finally, Part V argues that Washington courts should follow the lead opinion's approach in York when evaluating school searches, as jurisprudential, democratic, and educational values all counsel in favor of an individualized-suspicion requirement.

I. THE WASHINGTON CONSTITUTION PROVIDES BROADER SEARCH-AND-SEIZURE PROTECTIONS THAN THE FOURTH AMENDMENT

A. The Fourth Amendment's Prohibition on Unreasonable Searches Allows Many Warrantless Searches

The Fourth Amendment of the U. S. Constitution contains two different clauses. The Search Clause guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]"(fn2) The Warrant Clause commands that "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."(fn3)

A search occurs if a state actor intrudes upon an individual's "actual (subjective) expectation of privacy," where that expectation is one that "society is prepared to recognize as 'reasonable. '" (fn4) A search occurs only if both conditions are present.(fn5)

There is disagreement, however, about how to evaluate whether a search satisfies the reasonableness requirement of the Fourth Amendment. The Supreme Court has historically interpreted the guarantees of the Search Clause in the context of the Warrant Clause.(fn6) Under this view, the U.S. Constitution requires that law-enforcement officers have a warrant authorizing a search in order to satisfy the reasonableness requirement.(fn7) As the Court emphasized in its landmark Katz v. United States,(fn8) decision, a search conducted "without prior approval by judge or magistrate, [is] per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions."(fn9)

Another school of thought views the Warrant Clause as delineating the requirements for a warrant, not the bounds of reasonableness. (fn10) This perspective argues that the ultimate measure of the constitutionality of a government search, therefore, is "reasonableness."(fn11) The Court appears to have adopted this approach recently, divorcing its search analysis from the Warrant Clause.(fn12) In Samson v. California,(fn13) for example, the Court explained its "general Fourth Amendment approach" without once referring to the Warrant Clause.(fn14) Instead, it applied a reasonableness balancing test,(fn15) "examin[ing] the totality of the circumstances" and "assessing, on the one hand, the degree to which [the search] intrudes upon the individual's privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests."(fn16) Using this test, the Court upheld the suspicionless search of a parolee in good standing, concluding that the government's "'overwhelming interest' in supervising parolees"(fn17) outweighed the parolee's "severely diminished expectations of privacy," which exist "by virtue of their status alone."(fn18)

Extending its balancing-test jurisprudence, the Court established a "special needs" category of searches. Under this exception to the warrant requirement, a law-enforcement official may conduct searches without a warrant or probable cause when (1) a special need for the search beyond ordinary law enforcement exists, and (2) obtaining a warrant or establishing probable cause would be impractical.(fn19) If both requirements are met, the Court employs the same balancing test articulated in Samson. The Court has used special-needs balancing to sanction suspicionless-search programs in several cases. For example, the Court has approved the suspicionless drug testing of customs officials, based on the "special need" of "deter[ring] drug use among those eligible for promotion to sensitive positions . . . ."(fn20) The Court also sanctioned random drunk-driving checkpoints, as they addressed the special danger that drunk driving poses to community safety.(fn21) In short, the Fourth Amendment's reasonableness requirement has allowed for searches based on reasonableness balancing and, in certain circumstances, special-needs rather than strict adherence to the warrant and probable cause standard.

B. Article I, Section 7 Provides Broader Search Protections and Presumes that All Searches Require Warrants

Washington courts have not always consistently applied Section 7 when deciding search-and-seizure cases. Section 7 entered a period of dormancy after 1961's Mapp v. Ohio,(fn22) which made Fourth Amendment protections applicable to the states through the Due Process Clause.(fn23) Effectively, Fourth Amendment law provided such a high bar of rights that Washington courts generally did not analyze their own constitution's protections during this period.(fn24) However, when the pendulum swung the other way and Fourth Amendment rights were cut back under the Burger(fn25) and Rehnquist Courts,(fn26) Washington courts reasserted an independent reading of Section 7.(fn27)

Today, Section 7 is broadly acknowledged to provide greater protections than the Fourth Amendment. Indeed, many Section 7 protections were developed as specific reactions to federal cases that restricted Fourth Amendment guarantees.(fn28) Independent analysis is now so well established that courts forego the typical analysis required to determine if a state-constitutional provision offers greater protection than its federal counterpart.(fn29)

The text of Section 7 stands in fairly significant contrast to the Fourth Amendment. It provides, in its entirety, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."(fn30) Unlike the Fourth Amendment, which has a Search Clause that requires reasonableness and a Warrant Clause that requires...