Urineschool: A study of the impact of the Earls decision on high school random drug testing policies

Journal of Law and Education, Jul 2003 by Conlon, Cynthia Kelly

ABSTRACT

This article examines the impact of a recent U.S. Supreme Court decision on public high schools' random drug testing policies. Board of Education v. Earls1 upheld public school authorities' right to conduct random drug testing of students participating in competitive extracurricular activities. This article reports the results of a survey of high school principals regarding their reactions to this decision. The results show that the principals are very divided, with some expressing strong support for the decision and others strongly opposed. While three of the ten schools in the study have some type of random drug testing, only one school instituted its policy following the Earls decision and did not choose to test students in extracurricular activities. The study also found that larger high schools were more likely to institute random drug testing and that high-functioning and troubled schools were the least likely to adopt random drug testing policies.

I. INTRODUCTION

On June 27, 2002, the United States Supreme Court handed down a decision which gave public high school officials the legal authority to conduct suspicionless drug tests of any student involved in a competitive extracurricular activity.2 The 5-4 majority in Board of Education v. Earls held that the random drug testing policy adopted by the Tecumseh, Oklahoma, school district was a reasonable means of furthering the school district's important interest in preventing and deterring drug use among its schoolchildren and therefore did not violate the Fourth Amendment.3 Seven years earlier, in Vernonia School District v. Acton,4 the Court had approved suspicionless drug testing of student athletes. The Earls decision extends Vernonia and greatly expands school authorities' power to conduct suspicionless searches of students.

School officials need not accept the Supreme Court's invitation, of course, and research shows that since Vernonia opened the option, most schools have not. For example, a study of youth education and society, conducted by the University of Michigan's Institute for Social Research found that only about twenty of the 600 schools surveyed from 1999-2001 had some type of student drug testing program.5 Similarly, a recent study of Illinois school districts found that the overwhelming majority of districts had not conducted random drug testing and had no plans to do so.6

This article is an attempt to assess high school principals' reactions to the Earls decision, and to determine whether they plan to institute or expand random drug testing of students in the wake of Earls.

II. THE EARLS Case: FACTUAL BACKGROUND

In the fall of 1998, the school district of Tecumseh, Oklahoma, adopted a Student Activities Drug Testing Policy which required all middle and high school students to consent to drug testing in order to participate in any extracurricular activity. However, the policy was applied only to competitive extracurricular activities. There were three mandates for the students in the policy. Students were required to take a drug test before participating in the extracurricular activity, had to agree to submit to random testing while participating in the activity, and had to agree to be tested at any time based upon reasonable suspicion. The mandatory urinalysis test was designed to detect only illegal drugs and the results were kept confidential. No disciplinary or academic sanctions were imposed for a positive test. In addition, the policy included an appeals process that permitted the student to continue competing until the appeal was determined.

Lindsay Earls, a member of the Tecumseh High School show choir, marching band, academic team, and the National Honor Society, objected to submitting to random drug testing when the school had no reason to believe that she had ever used drugs. Together with her parents and another high school student, Daniel James, she brought a lawsuit claiming that the policy violated her right to be free from unreasonable searches and seizures under the Fourth and Fourteenth Amendments.7 The United States District Court for the Western District of Oklahoma granted summary judgment for the school district. The United States Court of Appeals for the Tenth Circuit reversed, holding that the policy violated the Fourth Amendment. The United States Supreme Court disagreed, and ruled for the school district.

III. LEGAL BACKGROUND

The Fourth Amendment provides that:

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.8

The Fourth Amendment is designed to protect individuals from the government's intrusion into their private lives. It generally requires that government officials possess a warrant based on probable cause prior to conducting a search. The Court has held, however, that the full force of the amendment does not apply in certain non-criminal situations when it may be impractical for the government to meet these requirements. In these "special needs" situations, different standards apply.9