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

James Acton was a seventh-grader who signed up to play football in the fall of 1991 but was denied participation when his parents refused to sign the consent form for drug testing. They claimed that enforcement of the school's drug testing policy was a violation of the Fourth and Fourteenth Amendments. The District Court dismissed the action16 but the Ninth Circuit Court of Appeals reversed,17 finding violations of both the U.S. Constitution and the Oregon Constitution. In a 6-3 decision written by Justice Scalia, the Supreme Court reversed.18

Justice Scalia began by noting that the search approved in T.L.O. had been based on individualized suspicion but that the Fourth Amendment itself imposes no irreducible requirement of such suspicion. In fact, since the T.L.O. case, the Court had upheld suspicionless drug testing of railroad personnel involved in train accidents19 and federal customs officers who carry arms or are involved in drug interdiction.20 In addition, the Court had upheld random stops at automobile checkpoints where officers were looking for drunk drivers.21 The Court in each of these situations had balanced the intrusion on the individual's Fourth Amendment interests against the government's legitimate interests and found that the government's "special needs" justified a Fourth Amendment exception.

The Court found Vernonia presented a similar case. To reach this conclusion, the majority engaged in a three-step analysis. They first examined the nature of the privacy interest upon which the search intruded. They noted that the nature of the power that school authorities exercise over students is custodial and tutelary, permitting a degree of supervision that could not be exercised over adults. Therefore students have a lesser expectation of privacy than members of the population generally, with student athletes having even lower legitimate privacy expectations.22 Student athletes engage in communal showering and dressing and voluntarily subject themselves to other requirements that non-athletes need not to meet (i.e. preseason exams, minimum grade point averages, insurance waivers, training hours, and rules of conduct).

The Court then turned to examine the character of the intrusion on which the complaint was based. Recognizing that the excretory function has traditionally been shielded by great privacy, the majority noted that the degree of intrusion depends upon the manner in which production of the urine sample is monitored. Here the students were subjected to conditions similar to those faced in any public restroom, and the Court concluded that the privacy interests compromised by the process of obtaining the urine were negligible.23 In addition, the Court emphasized that the results of the tests were disclosed only to a limited class of school personnel and were not turned over to law enforcement authorities.

Finally, the Court turned to examine the nature and immediacy of the governmental concern at issue, as well as the efficacy of the means for meeting it. The majority recognized that deterring drug use is important and perhaps even compelling.24 School years are the time when the effects of drugs are most severe. The risks from drug use are especially significant for student athletes, the group covered by the policy at issue in Vernonia. Regarding immediacy, the Court referred to evidence presented by the school authorities, who maintained that a large segment of the student population was in rebellion, especially the student athletes, and that disciplinary problems had reached "epidemic proportions."25 As to the efficacy of this approach, the majority found it to be "self-evident"26 that a policy directed at a drug problem largely fueled by athletes was properly addressed by testing athletes. Taking into account all of these factors, the Court concluded that the Vernonia School District's policy was reasonable and hence constitutional.27