Random Suspicionless Drug Testing of Students
Good Policy or Slippery Slope?

The blindfold & pan-balance is the time-honored image of fair application of the law. The application of statutes, regulations, and case law is always a balancing act, but perhaps nowhere in the last 40 years has the beam been swinging wilder and wider than in the justification for warrantless, even of suspicionless searches conducted by our schools. The escalation of drug use and school violence is high profile and a serious trend. In responding to these threats the courts have allowed schools increasingly greater latitude, arguably at the expense of individual freedoms. These are serious issues where there is no "bright line." The war on drugs, like the current war on terrorism, must be fought diligently, with the goal of eradicating the problem, yet the rights of the individual must still be respected. In what was perhaps a very insightful comment, Justice Marshall's dissent in Skinner, making reference to Internment camps and McCarthyism, sharply criticized the application of the special needs doctrine. Warning, "when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret."

Shiloh CUSD#1 implemented a random drug testing policy in 1999 and this paper will discuss the "shifting" legal boundaries, the goals for the policy, analyze our current policy, and conclude with a few recommendations. The policy was implemented in response to a serious and growing district problem. The courts have recognized the special relationship between schools and students. -"not act merely in loco parentis …their power over students is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults." (Veronia). Shiloh must apply the trust of the courts fairly and we must also instill in our students an understanding of their rights under the constitution, teaching them to protect those rights. Truly a balancing act, where we cannot afford to miss a step along the beam.

Starting in the 1950's the legal boundaries have swung toward giving power to the state when analyzing the fourth and fourteenth amendments. However starting in the late 1990's it appears the courts have recognized the danger of this standard and begun to close this opening. The Supreme Court will decide the Earls case this summer, which has the potential to redefine the "reasonableness standard".

The protection from search and seizure is set forth in the fourth amendment.
"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."
The amendment consists of two clauses referred to as the "reasonableness clause" and the "warrant clause". These can be interpreted as either "conjunctive" or "disjunctive". Until 1960's the courts applied the conjunctive interpretation requiring probably cause. Starting in the 60's, the analysis began to shift to a more open disjunctive interpretation where the Fourth amendment only prevents "unreasonable searches."

The turning point, especially as it applies to schools, was T.L.O. v. New Jersey(1985). This was a case where a principal proceeded to search a student's purse starting with only reasonable suspicion. The Supreme Court did establish for the first time that public school officials are government actors for Fourth Amendment purposes. Searches or seizures of schoolchildren and their belongings must comply with the Fourth Amendment. However, the T.L.O. Court further applied the Camara "reasonableness" standard for noncriminal searches and seizures, and thus established the "special needs doctrine." Where by a search to be legal must be "justified at its inception" by a certain degree of suspicion and conducted so that "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive." (North Western Law Review)

The line of cases leading directly to the legality of random drug testing stretch the "reasonableness standard" even further, eliminating even the requirement for individualized suspicion when there was a serious threat and compelling government interest. On the same day in 1989 the Supreme Court decided Skinner v. Railway Labor Executives and National Treasure Employees Union v. Von Raab. Skinner dealing with drug testing transportation workers involved in accidents, and Von Raab the testing of government employees who carry weapons. Both cases specifically noted both a "significant safety hazard" and "compelling government interest" The fact that it was especially difficult to observe these employees in the field and apply a more appropriate individualized suspicion test was a significant point in the court allowing a search without any individualized suspicion. Schools have used this argument and continued to expand the scope of their own testing.

The first Supreme Court test of a school implementing a random drug testing policy was Veronia School District v. Acton (1995). The school district documented a serious drug problem among the athletes. These students were seen as role models for other students and the problems were becoming disruptive to the school environment. The court noted students are minors in the custody of the school and possess a lesser expectation of privacy than does general public. The student athletes have a lower privacy expectation yet. Noting "communal dress", "physical exams", "minimum grade point average", all of which are voluntary. The test is an invasion of privacy, but it is minimal since the procedure for collecting the urine was nearly "identical to those typically encountered in public restrooms." The test results were not turned over to law enforcement and students could avoid being in the testing pool by choosing not to participate. In their explanation the court was careful to state the fact the Veronica policy passed constitutional muster should not be interpreted to imply suspcionless testing could be constitutionally extended to other segments of the student population.

To date the only Supreme Court decision where, random drug testing was found unconstitutional has been Chandler v Miller (1997). This was in reference to a Georgia Statute, requiring testing of all state legislatures. This case did set an outer limit where the court stated the testing would be constitutional only if the government could demonstrate a special need, and then only when it passed the balancing test. In the Chandler case the court equated "special need" with "substantial need". Despite the warnings in Veronia and the Chandler decision, continually pushing the limit is exactly what schools have done.

The lower courts have continued to review and decide a multitude of cases and there are notable differences between the circuits. Seventh Circuit (covering Illinois) is especially rich with cases. Testing policies are highly popular in Indiana schools

The first case heard by the Seventh Circuit was Schaill v. Tipecanoe County School Corp (1988). This was decided before Veronia, but the court applied almost verbatim the reasoning in Veronia, relying strongly on T.L.O. for guidance. This policy like Veronia applied only to student athletes and the court found there were adequate safeguards.

In 1998, the Seventh Circuit substantially extended the student groups targeted for random testing in Todd v. Rush County Schools. This is still the law in the Seventh Circuit. The case concerned a policy requiring students who wished to participate in any school-sponsored extracurricular activity or to drive to and from school to consent to random drug tests. The opinion given was notable in its brevity, basically just extended Veronia and their own Schaill rulings. The decision identified the voluntary nature of participation in extracurricular activities, the limitations on direct student supervision possible outside the classroom, and extended the argument of lesser expectation of privacy. Again finding those in extra curriculars were the student leaders. This policy affected 77% of the student population in 1996-97, a sign of the continued slide toward testing all students.

The Willlis case (Willis v. Anderson Community School Corp. 1998), in the Seventh Circuit) did begin to place some limits on allowable testing. A possible a turning point in Seventh Circuit reasoning where the rapid advancement down the slope toward testing all students was discussed. This was a case involving a policy requiring students to submit to random testing when they were suspended from school and other disciplinary issues before they could return to class. The court finally determined this went too far. No case has specifically stated the difference between activities, which are privilege, and those, which are rights, yet I feel this, must be part of the basis for these decisions. Extracurricular activities are carefully identified by schools as privileges, while with compulsory attendance laws, class attendance and class grades must surely border on being rights. In Willis, the discipline involved loss of credit. The court made strong reference to the fact in the instances this policy applied to, there was a direct observation of the student during a one-on-one conference with a school official. Thus providing the opportunity for the applying the more appropriate individualized suspicion standard.

The most recent case decided in the Seventh Circuit has been Joy v. Penn-Harris-Madison School Corp (2000). There is no doubt this case is a turning point in analysis by the Seventh Circuit. Again this was a policy involving random drug testing of all extracurriculars, and included driving to and from school. This policy tested for drugs, alcohol, and tobacco. The challenge in this case was for students driving where in Todd, none of the plaintiffs challenged on that ground. The court's analysis concurred that student drivers are less experienced and school grounds are especially dangerous zones with young children, and all students arriving and leaving at the same time. The court did accept the prior argument from Todd concerning extracurriculars, but specifically stated they only accepted due to being bound by Todd (stare decisis) and actually issued a plea for the Supreme Court to re-review and provide better guidelines. In the end the policy was grudgingly upheld, with only the nicotine test being disallowed

While it is the Seventh Circuit Case Law, which sets the limits for Shiloh, it is worth noting a few cases in other circuits. Trinidad School District No. 1 v. Lopez (1998), in Colorado found that a policy applied to students in marching band did not have a lesser expectation of privacy. The marching band also contained a classroom grade component. The policy was held unconstitutional. In Texas there have been multiple challenges to policies. In Gardner v. Tulia Independent School District No. 2 (2000) the policy applied to all 7-12 grade students in any extracurricular activity was held unconstitutional. The school had no evidence of a drug problem to establish the "special need". Even more extreme was the Lockney policy mandating testing of all students (Tannahill v. Lockney Independent School Dist. - 2001). The court analyzed the case, found the district failed to demonstrate a sufficient special need, and granted summary judgment for the plaintiff.

"The special needs doctrine clearly has failed to provide courts with a coherent basis on which to render search and seizure decisions. The fact that different courts have reached completely opposite outcomes when applying special needs to virtually indistinguishable situations only serves to emphasize this point. That school districts feel empowered to push the envelope continually by enacting policies that cover increasingly broader segments of the student population is another indication of the failure of special needs to articulate a clear framework for determining the constitutionality of suspicionless drug tests". (North Western Legal Review 2001)

The Earls case from the Tenth Circuit currently being decided by the Supreme Court, which will set the bar for drug testing in schools. Oral arguments were heard in March and the case is expected to be decide this summer.

With all the controversy and constitutional questions, why would Shiloh want to push the limits and implement a drug testing policy for students? Why take the risk? What are our goals? It must be out of concern for the safety of our students, in order to help them make good decisions and to develop healthy habits at an influential and formative point in their lives. The incidence of increasing violence and drug experimentation among the students was documented and a random testing policy has the potential to curb these trends. There is the risk here similar to chemotherapy where the cure may be as dangerous as the disease, but if held in check it can be effective. Perhaps one of the strongest arguments is as a tool to fight peer pressure. If a student can use the excuse of possibly being tested as an excuse to say "NO", that alone may make the risk worth it.

The school environment has perennially been a fragile ecosphere. The policy is not to be used as a disciplinary measure or as a penalty impacting student academic performance. On the contrary it is to promote academic performance. The desire is to maintain order and discipline by minimizing school violence, lessening disruptive behaviors, and certainly to promote a safer environment. Student athletes, drivers, and those in competitive extracurricular activities are at increased risk of injury to themselves and their fellow students when experimenting with drugs or alcohol.

The history leading up to the adoption of the current policy is important to understanding Shiloh's drug testing policy. In two years prior to adopting the policy (97-98 & 98-99), there were increasing discipline problems, incidence of student fighting, and drug confiscations at school. There were also several student arrests for alcohol and drug possession outside school. A local teen health grant called "I Sing the Body Electric" surveyed all schools in east-central Illinois documenting a higher than national average incidence of drug use. The community was demanding something be done to reverse the trend. The board investigated policies used by other schools (primarily nearby Indiana school districts), and formed a committee to address the issue. The committee consisted of teachers, administrators, board members, parents, and other community members. There were three open meetings that spring held to discuss the issue, resulting in a recommendation and board adoption of the current policy.

From the beginning the community has been supportive of all provisions except the inclusion of a test for nicotine. Even that has calmed and at this time parents of students in lower grades ask for the policy to share with their children. It is not uncommon for a parent/guardian to anonymously request their child be tested. The district continues to hold at least one open meeting per year to monitor the policies effectiveness and community support.

To be constitutionally acceptable the school policy must establish the "special need" and then pass three tests.1) "nature of the privacy interest" 2) "character of the particular intrusion involved" 3) "nature and immediacy of the governmental concert at issue" This is the balance. The current Shiloh policy was crafted to "pass constitutional muster" borrowing heavily from Veronia, and Todd. The district used their own discipline records and the regional health survey to document the "special need". When deciding how wide to apply the policy, the community feeling was that any policy must be applied to all privileged activities and not just athletics. Since there had been several student accidents attributed to drugs and alcohol during the prior year there was also a insistence it apply to students driving to and from school.

Great efforts are made to insure the selection process is truly random. The collection process is designed to be as minimally invasive as possible, with no direct observation of the students. Perhaps not invasive enough as will be discussed later. Positive results are not used unless verified by two tests, and the penalties for infraction are less than those approved in Todd and Veronia. The consequences of a positive test are also structured to help students seek help with penalties decreased when they do.

The penalties are only applied to extracurricular participation, nothing from the tests is shared with law enforcement, and there is no record of the results maintained with the normal student records. The due process rights in the current policy are probably one of its strengths. Students are advised of their rights, and have the option to refuse with consequences. At each step the parents are notified, with both the student and the parent advised they have a right to challenge, even being given the steps needed to proceed with a challenge.

The results over the last three years show a continual decrease in incidence of positive results. During this year there have been no positive tests for alcohol (previously there were even midweek at 9 am). Nicotine and marihuana are still the most common with nicotine infractions leading 3 to 1. Nicotine is not counted as an infraction for a student who is over 18, and only drives to school.

On it's face, the policy appears to be working. The parents are more receptive than ever and the number of violation continues to decrease. However maybe it is that the students have learned to beat the system as much as the policy is having the desired effect. During this year we still have had off campus student accidents, which were alcohol related. One of the most damming incidents was the weekend arrest of a student where he was found to be crotching a clean urine sample. Did he learn this trick in from our policy?

Should Shiloh retain, revise, or retract it's current policy? I would argue at this time it is best for the district stay the course, but here more than anywhere, never become complacent. The sample collection process needs to be rethought and the clause it now contains allowing more direct observation (such as listening) applied at least once in a while to insure students do not feel they can substitute or trade samples as is alleged by some.

The most controversial component of the Shiloh policy has always been the testing for nicotine. After the finding in Joy, it appears that test should not be enforced. I do feel it has had a positive impact in reducing smoking among students. Counter to the finding in Joy, it may be possible to legitimately establish a "safety component" to student smoking. For instance the student driving onto school grounds and trying to hide a cigarette is not paying attention to the child running out from behind the bus. These arguments should be thought through to see if the requirement for the test could be justified if it were challenged.

I certainly recommend continuing to document the trends and to host an annual community input session on the policy. Will the policy fall victim to it's own success? It was the "special need" which allowed the district to create the policy in the first place. If the policy is effective at eliminating that need, can the policy still be justified? The key is maintaining community support. When the community is no longer supportive, the policy will have outlived its usefulness. The outcome of the current Earl Case before the Supreme Court may have direct application to the Shiloh policy and should be carefully reviewed when decided.

This paper opened with the question "good policy or slippery slope?" The courts have given schools wide latitude in the creation of suspicionless drug testing policies. At least in Shiloh's experience these policies do seem to be achieving some of their intended goals, but is the consequent loss of personal freedom worth the risk? We may be teaching students the wrong lesson. The fact that schools have pushed the envelope so rapidly toward testing all students makes it appear that way. The balance is teetering and appears likely to soon swing the other way. It would be wisest for schools to use the reasonable search option judiciously, applying the much better "individualized suspicion" standard. The rush toward random testing is in part a flea from the stigma and danger of having to accuse a student of a wrong before testing the student. True this carries with it a risk, but school officials should rely on their good faith immunity and accept the responsibility the same as we profess to expect from our students.

Bibliography of Information Sources

ACLU Factsheet: "Student Drug Testing - Relevant Case Law", Earl's v. Board of Education, http://www.aclu.org/library/earlsfact1.html

Bourdeau, John A., "Supreme Court's Views on Mandatory Testing for Drugs or Alcohol", American Law Review, 145 ALR Fed 335, West's Group, 1998

"Does Dade County's Proposed Mandatory Drug Testing Plan Violate High School Student's Rights" Journal of Juvenile Law, La Verne Law Review, Inc. 1998

Dorr, Kathleen, M. J.D. "Validity under Federal Constitution of Regulations, Rules, and Statutes Allowing Drug Testing of Students" American Law Review, 87 ALR 148, The Lawyers Co-operative Publishing Company, 1998 and 87 ALR 148 Pocket Part, West's Group, 2001

Ilg, Timothy J. and Russo, Charles J., "Ten Pointers for Safely Implementing Student Drug Tests in your District", Managing School Business, LPR Publications, Dec 17, 1998

Lexis-Nexis text of Case Opinions (T.L.O., Singer, Van Raab, Veronia, Joy, Earls, et. al.)

Shiloh CUSD#1, Extra Curricular Handbook, 2001-2002

Shiloh CUSD#1, Board Policy 7.300, Extracurricular Activities

Smiley, Jennifer, "Rethinking the 'Special Needs' Doctrine: Suspicionless Drug Testing of High School Students and the Narrowing of Fourth Amendment Protections", Northwestern Law Review, 2001

Author of policy analysis: Terence J. Sullivan
Paper completed April 2002, for EOL 469 Course

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