Sports Law Paper2004FINAL

TABLE OF CONTENTS

INTRODUCTION...................................................................................................2

ANALYSIS............................................................................................................8

BACKGROUND.............................................................................................................................................8BROOKS: THE OLD STANDARD...........................................................................................................8

VERNONIA: Random Suspicionless Drug Testing of Student Athletes Constitutional.......................11THE SPECIAL NEEDS EXCEPTION TO THE FOURTEENTH AMENDMENT................................13NATURE OF THE STUDENT PRIVACY INTEREST...........................................................................15CHARACTER IF THE INTRUSION.......................................................................................................17NATURE OF THE GOVERNMENT INTEREST, IMMEDIACY AND EFFICACY............................17

THE AFTERMATH: Stare Decisis and the Extension of Vernonia.......................................................19LIMITS ON VERNONIA.........................................................................................................................22EARLS: THE NEW STANDARD............................................................................................................23

CONCLUSION....................................................................................................23

DPayne Page 1 of 23 5/1/2023

INTRODUCTION

The misuse of drugs and medication in the world of professional sports has been

recognized as an important problem for more than 20 years. There has always been “For

Cause” drug testing in professional sports. However, these policies have generally been

viewed as ineffective because they did not deter the use of controlled substances by

professional athletes. Not only did there have to be probable cause for the drug test,

notice was also usually given so that the athlete was well aware of or may have chosen

when she would be tested. The commissioners of the various sporting leagues have used

their influence in the best interest of the sport to institute drug-testing policies, which test

athletes for controlled substances randomly and regardless of suspicion. These

commissioners act in an effort to maintain the integrity of the sport and under the long-

standing assumption that he has the duty to protect the “best interests of the sport.”1 .

These policies have not been well received by athletes or the unions, which represent

them because on their face, they seem to impede on some constitutional rights to privacy.

However, through unions and the collective bargaining process available in most

professional sports, players and owners have the opportunity to reach an agreement on

effective drug testing programs that do not impede upon the privacy interests of the

players. This does not preclude the issue from entering the courts, but it does at least

provide an opportunity for agreement without litigation.

For the most part, public debate has centered on professional sports; little

attention has been paid to the drama as it is unfolding with respect to student athletes. As

1 Sports and the Law: Text, Cases, Problems, Second Edition (St. Paul, Minn.: West Group, 1998) page 1.


there are no unions at the interscholastic level of athletic competition, there can be no

collective bargaining agreement with regard to random, suspicionless drug testing.

Instead, the issue had to be addressed by the courts. In 1994, in the case of Hill v.

National Collegiate Athletic Association, 865 P. 2d 633 (Cal., 1994), the California

Supreme Court considered whether a drug testing policy employed by the National

Collegiate Athletic Association (NCAA) was an infringement on the student athletes’

right to privacy. In Hill, the Supreme Court of California reversed the trial court and the

Court of Appeals decision when it ruled that the NCAA drug testing policy was not a

violation of the student athlete’s state constitutional right to privacy.2 Among the Court’s

findings were that students in general, have a diminished right to privacy. Moreover,

student athletes have an even lower expectation of privacy than does the non-athlete.

Such reasoning would become integral to later decisions finding no constitutional

violation concerning suspicionless drug testing of student athletes.

“By its nature, participation in intercollegiate athletics, particularly in highly competitive postseason championship events, involves close regulation and scrutiny of the physical fitness and bodily condition of student athletes. Required physical examinations (including urinalysis), and special regulation of sleep habits, diet, fitness, and other activities that intrude significantly on privacy interests are routine aspects of a college athlete's life not shared by other students or the population at large. Athletes frequently disrobe in the presence of one another and their athletic mentors and assistants in locker room settings where private bodily parts are readily observable by others of the same sex. They also exchange information about their physical condition and medical treatment with coaches, trainers, and others who have a "need to know."As a result of its unique set of demands, athletic participation carries with it social norms that effectively diminish the athlete's reasonable expectation of personal

2 Hill v. National Collegiate Athletic Association, 865 P. 2d 633, 668 (Cal., 1994).


privacy in his or her bodily condition, both internal and external.”3

The court used a balancing test usually applied in cases where State action or

legislation has a countervailing Federal interest or statute; in such cases, there must be a

compelling state interest that outweighs the interests of the Federal law. Although the

NCAA is a private organization, a provision called the Privacy Initiative in the California

state constitution provided for a cause of action against both private and public entities.4

The California Court applied this balancing test; substituting the NCAA as the state actor

and the California State constitution as the Federal statute and found that the state

interests were significant enough to outweigh the student athlete’s already diminished

right to privacy.

Nearly one year earlier, the Colorado Supreme Court held exactly the opposite in

a similar case titled University of Colorado v. Derdeyn, 863 P.2d 929 (Colo., 1993).

Student athletes challenged the constitutionality of the state university's mandatory

random, suspicionless urinalysis drug testing program based on the Fourth Amendment

protection against unreasonable searches and seizures, as made enforceable against the

states by the Due Process Clause of the Fourteenth Amendment, as well as the

corresponding provision in the Colorado State constitution.5

In its analysis, the court began by characterizing the university’s implementation

of the drug testing program as a government action because the University of Colorado is

a state school. Consequently, the collection of urine for urinalysis was identified as a

search within the meaning of the Fourth Amendment. The court then had to determine

3 Id at 658.4 Id at 644.5 University of Colorado v. Derdeyn, 863 P.2d 929, 929 (Colo., 1993).


whether there was a conflict between the state action and the constitutional right to be

free from unreasonable searches and seizures, as guaranteed by the Fourth Amendment of

the United States Constitution and the Colorado State constitution. In finding that there

was a conflict in this case, the court interpreted the nature of voluntary participation in

the drug testing program in terms of consent. Although a consent form had to be signed

before an athlete could be tested, the court said that consent could not be found where a

refusal of consent results in the denial of a governmental benefit.6 Next, the court had to

decide whether the search was reasonable and therefore, permitted by the Constitution.

The Court held that, in the absence of voluntary consents, the university's random,

suspicionless urinalysis drug testing of student athletes was an unconstitutional search

because it unreasonable without individualized suspicion; the policy intruded on the

individual’s privacy interest.7

In comparison, the California and Colorado Supreme Courts decided significantly

similar cases resulting in opposite holdings. This may be attributable to the factual

differences between the cases with regard to the manner of policy implementation. In

Hill, a central factor in the analysis was that no compelling need for randomly drug

testing student athletes was found; partially due to the very few positive results from the

test in 1986 and 1987, but also because the court said the policy was overbroad because it

banned even useful drugs and medications that were meant to improve the health of the

athlete.8 Integral to the decision in Derdeyn was the finding that there was no consent

given by the student. Also of paramount importance in the decision was that the court

minimized the need for the party seeking to implement the drug testing policy to

6 Id at 934.7 Id at 937.8 Hill, 865 P. 2d at 640.


demonstrate a compelling interest. The Court inserted its own perception as to what

interests were being advanced by the school district’s drug policy.

“The majority's analysis of the asserted interests offered by CU to support its suspicionless drug-testing program for student athletes is limited to the observation that CU asserts no significant public safety interests… I disagree with this analysis and conclude that CU's implementation of its suspicionless drug- testing program for student athletes serves important and valid public interests, including protecting the health and safety of intercollegiate student athletes and preventing drug use by other students who look to student athletes as role models.”9

The court seemed to go out of its way to fashion a compelling interest that was

not even advanced by the defendant asserting the policy. Because minor factual

differences could produce such disparate results and because the aforementioned

decisions were only controlling precedent to the courts below them, there was no

uniformity across jurisdictions on the issue of random, suspicionless drug testing of

athletes at the interscholastic level until 1995, when the Supreme Court was faced with

deciding whether such drug testing was constitutional.

In 1995, in the case of Vernonia School District 47J v. Acton, The Supreme

Court held that suspicionless drug testing of public school students choosing to

participate in extracurricular athletics was constitutional.10 This decision established the

foundation upon which many school districts and local legislatures began to create drug-

testing policies to address a drug use problem or to prevent one in a particular segment of

the student population- the student athletes.

However, some drug testing policies were not confined to the student athlete

population. Some school districts began to require a drug screen for students wishing to

9 Derdeyn, 863 P.2d at 960.10 Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).


participate in non-athletic extracurricular activities such as the glee club, academic clubs,

or the Future Farmers of America.11 These types of policies gave rise to much litigation

as parents and public school students brought claims in federal and state courts seeking

injunctions and declaratory relief. They challenged these mandatory drug-testing policies

on constitutional grounds, claiming that these policies violated the Due Process Clause of

the Fourteenth Amendment, as well as the Fourth Amendment protection against

unreasonable searches and seizures.

Although there was a lot of litigation in federal and state courts, the Supreme

Court did not attempt to determine whether or not the Court’s ruling in Vernonia

extended to non-athletic extracurricular activities until 2002 in the case of Board of

Education of Independent School District No. 92 of Pottawatomie County V. Earls.12 In

Earls, The Supreme Court ruled that testing students who participate in extracurricular

activities is a reasonable search within the meaning of the Fourth Amendment and

therefore, constitutional.13

Ultimately, Earls may have raised more questions than it answered. Where does

this decision leave society in the future? How far are these policies from testing the

entire student body for drugs, alcohol, or tobacco regardless of suspicion? At what point

does the privacy interest of the individual begin outweigh the countervailing interests of

the school district or local legislature? Although it may be difficult to imagine a world

where everyone is subject to random drug tests in the interest of the state, the reasoning

11 Journal of Legislation 2002 page 112 Board of Education of Independent School District No. 92 of Pottawatomie County v. Acton, 536 U.S. 822 (2002).13 Id at 837.


provided by the Court in Earls seems to indicate an entry upon a slippery slope, which

may ultimately create just such an America.

ANALYSIS

BACKGROUND

BROOKS: THE OLD STANDARD

Before Vernonia, the only authority on drug testing students participating in

extracurricular activities was Brooks v. East Chambers Consolidated Independent

School District, 730 F. Supp. 759 (S.D. Texas, 1989), a United States District Court

decision in the Southern District in 1989. In Brooks, a high school student brought a

class action suit challenging the constitutionality of the school district’s drug testing

program because he was in danger of being excluded from the Future Farmers of

America for failure to submit to a drug test. The Court held in favor of the students and

granted an injunction to enjoin the district from disqualifying a student for participation

in any extra curricular for failure to submit to a drug test.14

In August of 1988, East Chambers County Consolidated Independent School

District (ECCCISD) implemented a mandatory drug-testing program for any student

seeking to participate in any extracurricular activity.15 All participants were to be tested

once at the beginning of the semester and then at random throughout the school year. If a

student refused to be tested, the consequence was exclusion from the activity until they

14 Brooks v. East Chambers Consolidated Independent School District, 730 F. Supp. 759, 766 (S.D. Texas, 1989) 15 Id at 759.


agreed to be tested. Students who tested positive are excluded from all activities until

they produce a negative test. Subsequent positive tests were punished by longer periods

of exclusion form extracurricular activities. At the time of litigation, only Brooks and

one other student had refused to be tested.16

The court began its analysis by identifying the school district as a government

actor and therefore, the implementation of the program a government action. Searches

conducted by private entities are not subject to the same scrutiny to which actions of

public officials are subject.17 The court then looked at the Fourth Amendment in the

context of the Fourteenth Amendment’s Due Process clause and the protection against

unreasonable searches and seizures.

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.18

In this analysis, the court determined that the taking of a urine sample qualified as

a search within the meaning of the Fourth Amendment. Relying on National Treasury

Employees Union v. Von Raab, 489 US 656 (1989), the court now had to decide

whether the search was a reasonable one. Here the court distinguishes between

reasonable search in the criminal sense and a reasonable search by a school official. In

the criminal sense, a reasonable search usually requires probable cause and a warrant, as

born out in the language of the statute. However, there is a lower threshold for school

officials; usually a search must be based on individualized suspicion that the search will

16 Id at 762.17 Id at 763.18 US Constitution 4th Amendment


discover evidence of wrongdoing. Otherwise, there must be an extraordinary

circumstance or compelling need to undertake a search without reasonable suspicion.19

Because Von Raab involved the suspicionless drug testing of Custom agents, an

occupation associated with a high level of risk and danger, not to mention possible

contact with illegal drugs, the Supreme Court found that such testing was justified and

that the Custom Service employees had a reduced expectation of privacy. The court in

Brooks found that ECCCISD’s drug testing program was unreasonable because the

district did not demonstrate a compelling need to conduct the testing, as was

demonstrated in the Von Raab case. Among other factors, which contributed to the

court’s assessment of unreasonable was that the program was not likely to accomplish its

ostensible goals of deterring drug use because the testing took place so far in advance of

the time at which a student may begin to participate in a given extracurricular.20

Secondly, the only consequence was exclusion from the activity. The policy did not

consider the fact that the student might choose drugs over the extracurricular. The state

interest asserted by ECCCISD’s drug policy was not sufficient to outweigh the students’

privacy interest.

About four years later in 1993, a similar case arose at the state level when the

University of Colorado attempted to implement a random drug testing policy that would

test student athletes throughout their season. The policy was met with strong opposition

and as a result, students sued to challenge the constitutionality of the policy on the

grounds that it violated the Fourth Amendment prohibition against unreasonable searches

and seizures. In the case of University of Colorado v. Derdeyn, the Supreme Court of

19 Brooks, 730 F. Supp. at 765.20 Id at 766.


Colorado held that the drug policy was unconstitutional because it violated the Fourth

Amendment, as well as the equivalent provision in the Colorado State constitution and

infringed on the student athlete’s reasonable expectation of privacy. The Court found

that student athletes did not have a diminished expectation of privacy below that of the

non-athlete student, the university’s interests in maintaining the integrity of its athletic

program was not sufficient to justify the intrusion into the private lives of student

athletes, and the requirement of a consent form signed by the student athlete is not

considered voluntary participation.21

VERNONIA: Random Suspicionless Drug Testing of Student Athletes Constitutional

In 1995, The Supreme Court decided the seminal case that would become

precedent for similar cases in lower courts. Stare Decisis would shape future Supreme

Court decisions, binding courts to conform to the Vernonia holding where applicable. In

Vernonia, the Supreme Court established the rule for random, suspicionless drug testing

of student athletes. Yet, in the wake of this decision, the clarity that the Court had hoped

for did not manifest. Though bound by the doctrine of Stare Decisis, lower court

decisions often had powerful dissents from the majority, even as in the case of Vernonia

itself.

In 1989, a local school board in Vernonia, Oregon implemented the Student

Athlete Drug Policy, which required all students wishing to participate in interscholastic

athletics to acquire their parents’ written consent. The policy further required that after

an initial drug screen at the beginning of the season, ten percent of the student athlete

21 Sports and the Law: Text, Cases, Problems, Second Edition (St. Paul, Minn.: West Group, 1998) page 65.


population would be tested at random weekly. The policy applied to all students

participating in interscholastic athletics and required both an initial drug screen at the

beginning of the season for each sport, as well as a random selection of 10% of the pool

of student athletes to be tested each week of the season. Only the superintendent,

principals, vice-principals, and athletic directors had access to the test results, and the

results were not kept for more than one year. If a student tested positive, after

confirmation of the accuracy of the result, the student’s parents were notified and asked

to meet with the principal for the purposes of discussing the consequences of testing

positive. At this meeting students were given the option of (1) participating for six weeks

in an assistance program that includes weekly urinalysis, or (2) suffering suspension form

athletics for the remainder of the current season and the next season as well. The student

is then retested before the next athletic season; a second offense resulted in an automatic

imposition of option (2) and a third offense resulted in suspension for the remainder of

the current season and the next two athletic seasons.22

In 1991, Mr. Acton, a seventh grade student had been denied membership on the

school football team because his parents refused to sign the consent form for the drug

testing policy. Wayne Acton and his parents brought suit against the Vernonia School

District, challenging the policy of random, suspicionless urinalysis as a prerequisite for

participation in interscholastic athletics. Although the District Court upheld the school

district’s policy, the Court of Appeals reversed and remanded the case accordingly. The

School District sought certiorari from the Supreme Court and it was granted. The Court

was faced with resolving whether or not the Vernonia School District’s random drug

testing policy was in violation of the Fourth Amendment protection against unreasonable

22 Vernonia , 515 U.S. at 651.


searches and seizures and thus, were also a violation of Due Process according to the

Fourteenth Amendment to the United States Constitution. The Court would lay out a

balancing test in Vernonia that would be used to determine that constitutionality of such

cases for all lower courts in the near and distant future. Courts would have to weigh the

interests advanced by the policy against the privacy interest of the individual. In

balancing the two, courts would have to consider the nature of the nature of the privacy

interest, the nature of the invasion, and whether or not there was a special need that

required the action without probable cause and because a warrant was impracticable, as

required by the text of the Fourth Amendment. Finally, courts would have to consider

the nature of the government interest, and the immediacy and efficacy of the means for

addressing the problem.

THE SPECIAL NEEDS EXCEPTION TO THE FOURTEENTH AMENDMENT

Justice Scalia delivered the opinion of the Court. The analysis began by assessing

the drug problem in Vernonia schools, as demonstrated by the facts in evidence.

Teachers and administrators testified at trial that they perceived a sharp increase in drug

use at the school level. They attributed this increase in drug use to the increase in

disciplinary problems in the schools. Furthermore, the District Court found that the

student athletes were the leaders of the drug culture, which was a cause for concern, since

drug use increases the risk of sports related injury.23 The school district responded to the

problem initially by offering special classes and seminars designed to deter drug use, but

the drug problem persisted. The District Court found that disciplinary action had reached

epidemic proportions and the administration was at its wits end as to how it should 23 Id at 649.


combat the growing drug problem. School officials began to consider instituting a drug-

testing program to address the problem and produced a proposed drug testing policy,

which was supported unanimously by parents who attended a meeting seeking parent

input on the issue. Subsequently, the school board enacted the drug testing policy in the

fall of the next school year. The policy’s express purpose was to prevent student athletes

from using drugs, to protect their health and safety, and to provide users with assistance

programs.24

The Court then scrutinized the school district’s policy in terms of light of the

textual language of the Fourth Amendment to the Constitution

“The Fourth Amendment o the United States Constitution provides that the Federal Government shall not violate “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” We have held that the Fourteenth Amendment extends this constitutional guarantee to searches and seizures by state officers, including public school officials. In [Skinner], we held that state-compelled collection and testing of urine, such as that required by the Policy, constitutes a "search" subject to the demands of the Fourth Amendment.”25

Accordingly, the Court recognized the state-mandated collection and testing of

urine as required by the school district’s policy was a state action, which constituted a

search within the meaning of the Fourth Amendment. Here the Court relied on its

previous decisions in cases such as Skinner v. Railway Labor Executives’ Association,

489 U.S. 602 (1989) , New Jersey v. T.L.O., 469 U.S. 325 (1985), and Von Raab.26

Although none of the preceding cases involved suspicionless drug testing as it applied to

student athletes, they did shed some light on the Vernonia case because they defined what

24 Id at 650.25 Id at 652.26 Von Raab, 489 U.S. 656.


constitutes a government action, whether or not that action falls into the category of a

search or seizure and whether or not that search or seizure is reasonable under the Fourth

Amendment of the United States Constitution.27 The reasonableness of a search usually

requires at least probable cause, and where practicable, a warrant. However, neither a

warrant nor probable cause is necessary when there is a special need. The Court found

that such a need existed in the Vernonia School District simply because of its

classification as a school.

“We have found such "special needs" to exist in the public school context. There, the warrant requirement "would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed," and "strict adherence to the requirement that searches be based upon probable cause" would undercut "the substantial need of teachers and administrators for freedom to maintain order in the schools." [citation] The school search we approved in T.L.O., while not based on probable cause, was based on individualized suspicion of wrongdoing. As we explicitly acknowledged, however, " 'the Fourth Amendment imposes no irreducible requirement of such suspicion,' "28

NATURE OF THE STUDENT PRIVACY INTEREST

Once the Court found that the school district had a special need, it had to be

weighed against the privacy interest of the student athlete. However, the Court first had

to define exactly what legitimate rights were embraced by the privacy interest of student

athletes. Those rights depend on a number of factors, including context in which the

individual is asserting her rights, whether the individual is at home, work, in a car, or

27 Vernonia , 515 U.S. at 653.28 Id.


public park, and more importantly, the legal relationship between the individual and the

state.29

Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.30

The Court went on to say that because of the special custodial relationship

between the school and the student, the student within the school environment has a

lesser expectation of privacy than does the general population. The Court was careful not

to go so far as to say that a student sheds all constitutional rights as soon at the school

door; however, it did stipulate that Fourth Amendment rights are different in public

schools than elsewhere. Furthermore, the expectation of privacy is even further

diminished with regard to the student athlete.31 The Court makes note of the fact that

athletes voluntarily subject themselves to invasions of privacy regularly as part of

belonging to a sports team, such as communal undress and bathing, preseason physical

exams, acquiring insurance coverage or waiver, and complying with team rules and codes

of conduct. The Court likened student who voluntarily participate in athletics to the

railway workers in Skinner, who chose to work in a closely regulated industry and thus,

were subject to random, suspicionless drug testing.

CHARACTER IF THE INTRUSION

Having considered the limitations of the privacy interest of student athletes, the

Court now contemplated the nature of the intrusion. That is, the Court had to decide

29 Id at 654.30 Id.31 Id at 657.


whether the degree of the intrusion into the privacy of the individual was warranted in

light of the special need. Although the Court admitted that urinating with a monitor

outside the room was atypical, it still identified the method of collection as nearly

identical to those conditions found when using public restrooms. It was also noted that

the results of the test were only disclosed on a need to know basis and the confidentiality

of each student was protected. In light of these factors, the Court found that the intrusion

was not so significant, as to outweigh the special need and thus, render the policy

unconstitutional.32

NATURE OF THE GOVERNMENT INTEREST, IMMEDIACY AND EFFICACY

Finally, the Court had to consider the nature of the government interest and the

efficacy of the means employed to meet that interest. The Court refuses to place a

generic value or standard on the level of the government’s interest; instead, by simply

stating that in the case at the bar, the interest was important enough to justify the search.33

The Court went on to determine what interests it thought were advanced by the drug

testing policy, though the school district had not advanced any of these arguments at trial.

The Court cited general deterrence of school age children against drug use.

As for the immediacy of the government concerns, the Court pointed to the

District Court’s finding of fact that there was a drug problem at the school. However, the

Court seems to indicate that the school district need not demonstrate an existing drug

problem in order to support the immediacy of its interest, as it compared the present case

to cases such as Skinner and VonRaab, in which there was no identified drug problem 32 Vernonia, 515 U.S. at 658.33 Id at 661.


preceding implementation of the drug policy.34 Although the Court never says so

directly, it seems as though prevention of a drug problem is enough to satisfy the burden

of proof in the Vernonia balancing test; at least with regard to students in the school

environment.

The Court then turned to the efficacy of the means employed by the school district

and found that it effectively addressed the drug problem by making sure athletes did not

use drugs. Although Mr. Acton’s attorney argued that a less intrusive means was

available, namely that of drug testing only upon suspicion of drug use. The Court refused

to pigeon-hole its decision by declaring that only the least intrusive means are reasonable

under the Fourth Amendment.

Three Justices dissented in Vernonia, citing the fact that throughout history,

blanket searches without suspicion have been ruled Per Se, unreasonable. The dissent

states further that a departure from this standard is only warranted where a suspicion-

based regime would be impracticable and that was not found here.35 Instead of targeting

the student athlete population at the high school, the dissent said that a more reasonable

choice would have been those students who were causing the increased disciplinary

problems, as identified in the record. Thus, the policy would be rendered more

reasonable because it tested only those students who violated published school rules,

voluntarily broke the rules and thus, were under suspicion of possible drug use. This

would have the effect of testing dramatically fewer students and give students control

over whether or not they were affected by the policy, based on their conscious behavior.36

34 Id at 662.35 Id at 667.36 Id at 685.


THE AFTERMATH: Stare Decisis and the Extension of Vernonia

In 1998, the Seventh Circuit contended with the very same question answered by

Brooks eight years earlier, when the case of Todd v. Rush County Schools, 133 F. 3d

984 (7 th Cir. 1998) arose. Although Brooks ruled against random, suspicionless drug

testing of student athletes, Vernonia made it clear that Brooks was no longer the standard

and Todd confirmed it.

The parents of William and Diana Todd brought suit against the Rush County

Schools for implementing a program prohibiting any high school student from

participating in any extracurricular activities unless student obtained parental consent to

be subject to random, unannounced urinalysis examinations for drugs, alcohol, and

tobacco. The case was actually decided before ever coming to a jury trial. The District

Court for the Southern District of Indiana granted summary judgment to the defendant,

Rush County Schools and the parents appealed. The Court of Appeals ultimately held

that the school district’s drug-testing program was consistent with the Fourth Amendment

and thus, constitutional. The District Court extended the holding in Vernonia to include

random, suspicionless drug testing of students in any extracurricular activity, athletic or

not.

Circuit Judge Cummings relied on precedent set by the Supreme Court three years

earlier in Vernonia. The Court was also bound by its holding in Schaill by Kross v.

Tippecanoe County School Corp., 864 F. 2d 1309 (7 th Cir. 1988). a Seventh Circuit

case decided in 1988. Both cases upheld random urinalysis requirements for students

who participate in interscholastic athletics. The court found that although there was some

difference between those cases and the present case (namely the prohibition was on non-


athletic activities and alcohol and nicotine were added) the same reasoning applied as in

Vernonia and Schaill. The Court reasoned that because the subjects of the policy are

children under the temporary custody of the State while at school (in loco parentis) and

because extracurricular activities are a privilege, which carry prestige and status similar

to that enjoyed by student athletes, it was appropriate to include students who participate

in extracurricular activities in the drug testing.37

In the years that followed Todd, similar cases arose in various courts across the

country, some state cases and some federal. For the most part, except when the drug

testing policies have been considered extreme or overbroad, courts have continued to

extend the holding of Vernonia just as the Seventh Circuit did in Todd. However, no

court could be sure it was interpreting the law correctly, as the Supreme Court had

declined to answer such a question in Vernonia and the issue had not been raised since.

In the absence of a definitive interpretation on whether the standard in Vernonia applied

to all extracurricular activities, the outcome of a case depended on the jurisdiction. The

Eighth Circuit was faced with the issue in 1999, in the case of Miller v. Wilkes, 172 F.

3d 574 (8 th Cir. 1999) . Although the case was ultimately rendered moot because the

plaintiff graduated from the school district during the appellate process, it gave an

indication of how far some courts were willing to extend the holding in Vernonia.

Pathe Miller attended school within the jurisdiction of the Cave City School

District Board of Education in Arkansas. His parents objected to a Chemical Screen Test

Policy instituted by the school district, which provided for random urinalysis of students

in grades seven through twelve, as a prerequisite for participation in any activity outside

of the regular curriculum and sued. The District entered summary judgment for the

37 Todd, 133 F. 3d at 986.


school district and the parents appealed. Bobby Wilkes and others, who were members

of the Board of Education, were named as defendants. The Court applied the same

balancing test as in Vernonia and determined that the policy was constitutional under the

Fourth and Fourteenth Amendments.38

In 2000, in the case of Joy v. Penn-Harris-Madison School Corp.,39 Another

seventh circuit case, this Court relied on the precedents set in Todd and Vernonia. A key

factor in the analysis was that the Court did not find that there was any evidence of a

correlation between the population to be tested and any perception of a drug problem.

The policy seemed to be aimed at prevention, rather than addressing an existing concern.

Other key differences were that the policy not only randomly tested students wanting to

participate in any extracurricular activity, but also students wishing to park on campus

and that banned substances included illegal controlled substances, as well as alcohol and

nicotine. The Court eventually ruled in favor of the school drug policy, striking down the

portion of the policy that referred to nicotine testing. However, it was clear that the Court

thought Todd had extended Vernonia beyond its intended reach.

“As the previous sections make clear, the judges of this panel believe that students involved in extracurricular activities should not be subject to random, suspicionless drug testing as a condition of participation in the activity. Nevertheless, we are bound by this court's recent precedent in Todd. Given that the opinion in Todd was issued only two years ago, that the facts of our case do not differ substantially from the facts in Todd, … and that the governing Supreme Court precedent has yet to address the matter, we believe that we must adhere to the holding in Todd and affirm the district court's grant of summary judgment for the School as it relates to testing students involved in extracurricular activities.”40

38 Miller, 172 F. 3d at 582.39 Joy v. Penn-Harris-Madison School Corp., 212 F. 3d 1052 (7 th Cir. 2000). 40 Id at 1066.


LIMITS ON VERNONIA

Although some courts were not restrained in their extension of Vernonia, other

courts tried to limit it. In another Seventh Circuit case Willis v. Anderson Community

School Corporation, 158 F.3d 415 (7 th Cir. 1998) , circuit Judge Cudahy ruled that a

school policy that required drug testing of all students suspended for fighting was not

justified by special needs and was therefore, unconstitutional. The Court ruled that there

was not even enough evidence to support a finding of reasonable suspicion or probable

cause under the Fourth Amendment.41 Although the school appealed to the Supreme

Court, certiorari was denied.

That same year, the Supreme Court of Colorado decided the case of Trinidad

School District No. 1 v. Lopez, 963 P. 2d 1095 (Colo. 1998). In Trinidad, the Court

held that marching band students had a higher expectation of privacy than that of the

student athletes in Vernonia because there was not the same communal undress and

showering as for athletes and because these students received academic credit for their

participation in the band. Therefore, participation could not be deemed voluntary in the

same sense that it was in Vernonia. Furthermore, the Court found that the testing

program as applied to marching band members was not an efficacious approach to

solving the district’s student drug problem.42 Consequently, the district’s suspicionless

drug testing policy was ruled unconstitutional.

In 2001, the District Court in Texas ruled against the school district’s

suspicionless drug testing policy in Tannahill v. Lockney Independent School District,

41 Willis v. Anderson Community School Corporation, 158 F.3d 415 (7 th Cir. 1998) .42 Trinidad, 963 P. 2d at 1108.


133 F. Supp. 2d 919 (2001).43 because it was overbroad and thus, an unreasonable search

under the Fourth Amendment. The policy required testing the entire junior and senior

class population, without cause. The school made no showing of any drug problem nor

any correlation with the targeted population. Therefore, the policy failed on the special

need prong of the Vernonia balancing test. The nature of the governmental interest,

coupled with the lack of any special need, were not significant enough to outweigh the

privacy interest of the students in this case.44

EARLS: THE NEW STANDARD

CONCLUSION

43 Tannahill v. Lockney Independent School District, 133 F. Supp. 2d 919 (N.D. Texas 2001).44 Id at 930.


Documents

Sports Law Paper2004FINAL