Studies abound documenting widespread drug use among America’s youth. Illegal drug use cuts across social, economic and racial lines. Justice Breyer emphasized in his concurring opinion in Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls,[1] that "the drug problem in our Nation's schools is serious in terms of size, the kinds of drugs being used, and the consequences of that use both for our children and the rest of us." Federal, state and local authorities have been grappling with how best to address the problem. Drug interdiction policies and strategies have met with limited success. Proposals by groups, such as NORML, for decriminalizing and regulating drugs are unpopular with the general public.
At school districts officials have utilized a variety of prevention programs, such as DARE, in combination with random drug and alcohol testing. In 1995 the U.S. Supreme Court upheld a school district’s policy that required student athletes to consent to random drug and alcohol tests.[2] Seven years later the Court extended school districts’ random drug testing authority to students participating in extracurricular activities.[3] After Earls was decided, most groups that oppose random drug testing of students conceded that local school districts have valid Fourth Amendment grounds for implementing random drug testing policies for students participating in extracurricular activities. These groups are now focusing on state constitutional search and seizure provisions. They argue that the state provisions afford individuals greater search and seizure protections than the Fourth Amendment. This trend is illustrated in the recently decided New Jersey Supreme Court case of Joye v. Hunterdon Cent. Reg’l High Sch. Bd. of Educ.[4]
Hunterdon Central Regional High School implemented a student drug testing policy that required all students participating in extracurricular activities or holding a permit to park on school grounds to consent to suspicionless, random drug testing. Several students filed suit, challenging the policy on Fourth Amendment and state constitutional grounds. The trial court ruled that the policy "violated the prohibition against unreasonable searches and seizures under Article I, paragraph 7 of the New Jersey Constitution," a provision analogous to the Fourth Amendment of United States Constitution. Hunterdon appealed. Before the New Jersey Superior Court, Appellate Division issued its opinion, the U.S. Supreme Court decided Earls. In light that decision, the plaintiffs conceded that there was no question that Hunterdon’s policy satisfied federal constitutional search and seizure standards.
However, they contended the state constitution provided greater search and seizure protections than the Fourth Amendment. While the Appellate Division conceded that criminal defendants enjoy greater protection under the state constitution, the court pointed out that it was not "dealing with a criminal matter or a traditional search and seizure issue resulting in suppression of evidence obtained for use in a criminal trial." Noting that the New Jersey Supreme Court had stated in a prior "special needs" case, involving a search of a student’s luggage, that state law does not impose a more stringent standard than the Fourth Amendment, the court found that there was no basis "for concluding that the State Constitution warrants a different approach than that taken by the [U.S] Supreme Court [regarding] the question of [student] drug testing in public schools under the Fourth Amendment."[5] The Appellate Division reversed the trial court’s judgment and the plaintiffs appealed to the New Jersey Supreme Court.
The New Jersey Supreme Court affirmed the Appellate Division’s decision. While not bound by federal case law when interpreting the state constitution, the court nonetheless looked to federal search and seizure decisions for guidance. It concluded that Vernonia and Earls are the "seminal case[s] addressing random or suspicionless drug testing in a public school."
Analyzing the reasoning of both cases, the New Jersey Supreme Court concluded that it was appropriate to apply the three-prong "special needs" balancing test utilized in those cases to this case. Specifically, it pointed out that the school district’s "special need" justifying suspicionless drug testing to combat substance abuse was derived from the same source as the school district’s need in New Jersey v. T.L.O.[6] In that case, the Court held that the Fourth Amendment requirements of a warrant and probable cause do not apply within the public school context because of the unique school environment that already has a relaxed set of search and seizure requirements. When the court applied the three-part Vernonia test it concluded that Hunterdon satisfied the requirements of diminished privacy, minimal obtrusiveness of the testing procedures, and the need to address a well-documented and serious problem of drug use by students in the district.
In a final observation, the New Jersey Supreme Court stated that the fact that the Hunterdon Board of Education stopped well short of subjecting the entire student body to random drug testing was a central factor in finding the policy constitutional the New Jersey Constitution. It found that the ability of students to opt out of the testing pool by not participating in extracurricular activities was the policy’s saving grace. The court stated, "that option contributes to the program's reasonableness; its removal, therefore, would jeopardize the program's constitutionality. We emphasize that this is not ‘a decision opening broad vistas for suspicionless searches.’"[7]
Joye is the most recent case in a series of student drug testing lawsuits that test the limits of state constitutional. Weber v. Oakridge Sch. Dist.,[8] was decided shortly after the U.S. Supreme Court’s ruling in Earls. The Oakridge School District in Oregon adopted a policy requiring all students participating in interscholastic athletics to consent to random drug testing and to disclose any use of prescription medications. A student challenged the policy under Article I, § 9 of the Oregon Constitution. A state trial court struck down the portion of the policy that required disclosure of prescription medications, but upheld the random testing portion of the policy. The school district then revised the policy to eliminate the disclosure requirement. The student appealed on the grounds that random drug testing constitutes a warantless search, which is unreasonable under Article I, § 9 because it does not fit into any of the recognized exceptions to the warrant requirement.
The Oregon Court of Appeals ruled that the revised policy satisfied the reasonableness standards incorporated in Article I, § 9. It found that the warrant requirement of Article I, § 9 was not applicable as a matter of law because the drug testing policy constituted an administrative rather than a criminal search. As a result, the court subjected the policy to a three-part test applicable to administrative searches. It concluded that the policy satisfied the test and was, therefore, reasonable within the meaning of Article I, § 9. Addressing the prescription drug disclosure portion of the policy, the court of appeals agreed with the trial court that requiring disclosure of any prescription drug use before a student athlete has tested positive for drugs or alcohol is unreasonable within the meaning of Article I, § 9. However, the school district cured that constitutional defect when it eliminated the requirement from the policy.
While Earls was pending, the Court of Appeals of Washington and the Indiana Supreme Court addressed the validity of randomly drug testing students under their respective state constitutions. In York v. Waihkiakum Sch. Dist. No. 200,[9] Wahkiakum School District in Washington adopted a policy requiring random drug testing of all students who participate in interscholastic athletics. A group of parents filed suit in state court, claiming that the policy violated students' search and seizure rights. The state appellate court dismissed the appeal as moot, since the district had stopped enforcing the policy pending the court's decision. However, the court did discuss the merits of the claim. Relying on Vernonia, the court stated that "suspicionless searches are not unreasonable per se" and could be upheld in "special needs" circumstances.
The Indiana Supreme Court, on the other hand, addressed the merits of the state constitutional claim. In Linke v. Northwestern Sch. Corp.,[10] it upheld a district's policy requiring random drug testing of students who participate in extracurricular activities. The court utilized the three-prong Vernonia test that calls for weighing: (1) the nature of the privacy interest that the search intrudes on; (2) the character of the intrusion; and (3) the nature and immediacy of the government concern. The court acknowledged that the voluntary nature of participating in extracurricular activities lowers the privacy expectation even more for participants. The Indiana Supreme Court concluded that the school district had articulated a legitimate concern in preventing drug use and had demonstrated that random testing was a reasonable means for achieving prevention.
As these cases illustrate, state courts both prior to and after Earls have upheld random student drug testing schemes provided that they do not go beyond testing students involved in voluntary extracurricular activities. As the language in Joye states the line is firmly drawn by Vernonia and Earls at voluntary extracurricular activities. Testing entire student populations appears to go below the floor of reasonableness set by the Fourth Amendment.
In yet another novel attempt to overturn student drug testing policies, a Texas appellate court very recently addressed whether a drug testing program applied to students participating in extracurricular activities violated the First Amendment’s Free Exercise of Religion Clause.[11] The plaintiff claimed that the policy would interfere with his children’s ability to practice their Jewish faith and still participate in extracurricular activities because they consume wine during religious observances. The Texas court concluded that even though the policy might disproportionately burden a particular religious group or practice, the policy did not violate students’ free exercise of religion rights because it was one of general applicability and facially neutral with regard to religion.
In addition to the legal issues raised by random testing, the question of whether such policies are an effective means of deterring student drug use is open to debate. In the November 2002 issue, I & A reported that according to a Drug and Alcohol Testing Industry Association (DATIA) survey released October 2002 of drug and alcohol testing providers, of the 137 providers who completed the survey, 102 reported that since the Earls decision, they had not acquired any new schools implementing drug testing programs or only served the workplace drug testing market.[12] The other 35 testing providers responded that they had seen an increase in student drug testing from new and existing clients.[13]
The slow growth of student drug testing since Earls may also be attributable to the cost of such programs and the controversy that often accompanies them. A recent University of Michigan study indicates that testing is not effective in reducing student drug use.[14] Lloyd D. Johnston, one of the study’s authors, said, "We think that one reason that so few schools test their students for drugs is that it is an expensive undertaking. Schools are very pressed for funds, and I would say that the results of our investigation raise a serious question of whether drug testing is a wise investment of their scarce resources. He also added, "It’s also very controversial with a lot of parents and students. The way that drug testing has been carried out in the schools looks very unpromising. I have no doubt that one could design a drug testing program that could deter teen drug use, but at what monetary cost and at what cost in terms of intrusion into the privacy of our young people?"
[1] 536 U.S. 822, 838 (2002).
[2] Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995).
[3] Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002).
[4] 826 A.2d 624 (N.J. 2003).
[5] Joye v. Hunterdon Cent. Reg’l Bd. of Educ., 803 A.2d 706, 714 (N.J. Super. Ct. App. Div. 2002).
[6] New Jersey v. T.L.O., 469 U.S. 325 (1985).
[7] Joye v. Hunterdon Cent. Reg’l Bd. of Educ., 826 A.2d 624 (N.J. 2003), quoting Chandler v. Miller, 520 U.S. 305, 321 (1997).
[8] 56 P.3d 504 (Or. App. 2002).
[9] 40 P.3d 1198 (Wash. App. 2002).
[10] 763 N.E.2d 972 (Ind. 2002).
[11] Marble Falls Indep. Sch. Dist. v. Shell, 2003 WL 1738417 (Tex. App. Apr. 3, 2003)
[12] The Drug and Testing Industry Association, Survey of DATIA Members Indicates Increase in Student Drug Testing Programs, at http://www.datia.org/resources/survey_results.htm
[13] For a breakdown of how many schools added, increased or inquired about drug testing from these providers after Earls, see the study listed in footnote 11 or the November 2002 edition of I & A.
[14] University of Michigan, Student drug testing not effective in reducing drug use, at http://monitoringthefuture.org/pressreleases/03testingpr.pdf.