Drug Testing of Students
Drug testing of students most often arises in two circumstances: tests conducted when a school official reasonably believes that a student is under the influence of a controlled substance not permitted by law or school policy, and tests conducted pursuant to a policy permitting random, suspicionless drug tests. Usually, the drugs targeted are those that are considered serious and dangerous, such as marijuana and alcohol, but not nicotine. Likely the most popular test implemented is urinalysis. Other drug tests include searches with breathalyzers and analysis of hair samples. With some limitations in policy and practice, student drug testing is lawful in both suspicion-based and random circumstances.
Suspicion-based searches of students are governed, largely, by the Supreme Court decision in New Jersey v. T. L. O. In T. L. O., a high school teacher discovered two students smoking in a bathroom, in contravention of school policy. The two girls were questioned by the assistant principal. One girl admitted the violation. The other one denied it, and the assistant principal searched her purse and found cigarettes, rolling papers, marijuana, and other contraband that implicated her in drug dealing. The student filed a motion to suppress the evidence, claiming the search violated her Fourth Amendment rights to be free from unreasonable search and seizure.
The Supreme Court upheld the search, rejecting the application of the warrant and probable cause requirement and adopting a two-part “reasonable suspicion” test, also applicable today in suspicion-based drug tests. First, the search must be justified at its inception, meaning that there must be reliable physical or eyewitness evidence that the search will reveal a violation of a school rule or law. Second, the search must be reasonable in scope such that it must be related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the contraband and the infraction.
The possession or use of drugs on school property is against school policy as well as in violation of law. So the first step is typically met as long as the information brought to the school administrator leading the search is reliable. The second step is trickier and must be handled with careful watch on privacy rights. For example, school officials should allow the student to produce a desired urine sample in a closed stall. Suspicion-based drug tests may be conducted on any student reasonably suspected of violating drug-related law or school policy (Gutin v. Washington Township Board of Education, 2006).
Random, suspicionless drug tests are usually reserved for students who participate in interscholastic athletics or other extracurricular activities. The most typical form of drug test is urinalysis; breathalyzers and tests of hair samples are viable, as well. Subject to important policy implications, random, suspicionless drug tests are lawful and do not violate the Fourth Amendment. The Supreme Court heard this basic legal challenge to urinalysis drug tests of students and held in favor of the school in both cases.
In 1995, in Vernonia School District 47J v. Acton, the Court upheld a test applied to athletes in grades 7 through 12. In 2002, in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, the Court upheld a similar policy and practice applied to all high school students involved in competitive extracurricular activities. The Earls Court reaffirmed a useful three-part test to scrutinize random, suspicionless student drug testing.
First, courts look at the nature of the privacy interest. In both Vernonia and Earls, the Court held that the expectation of privacy in the students subject to the policy was limited by the fact that they voluntarily joined extracurricular activities, which already have additional rules. Further, the Court explained that the custodial and tutelary responsibilities of the school outweigh students’ rights when health, safety, and education are of primary concern.
Second, the character of the intrusion was minimal. Each student subject to the policy typically submits to a test at the beginning of the season or activity and then is subject to random tests throughout. The procedures used in these two landmark cases, especially Earls, were respectful of students’ privacy: The urine sample was produced in a closed stall, with a monitor listening for “the normal sounds of urination,” and the results were kept confidential and were subject to further testing for confirmation. In Earls, positive results were not turned over to law enforcement. Students violating the policy were subject only to lost privileges in extracurricular activities, and that deprivation was longer than 14 days only after the third positive test. No other discipline was imposed.
Third is the nature and immediacy of the governmental concern. While evidence of actual drug use among the population of students subject to the policy would appear to be important to justify a random drug testing policy, courts have not typically required it, in light of the seriousness of drug use among young people. According to the Court in Earls,
The need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school drug-testing policy. Indeed, it would make little sense to require a school district to wait for the substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use. (p. 836)
The board of education in Earls successfully expanded its drug testing policy to include students in all competitive extracurricular activities, not just athletics. How wide open this door has become, though, is still a matter of some debate. School officials should be careful to exclude from coverage those students who earn academic credit, such as participants in a marching band. Conditioning academic credit on the submission to random drug testing is questionable legally.
With mixed success, other school officials have attempted to expand random drug testing to students who drive to school. In Theodore v. Delaware Valley School District, the Supreme Court of Pennsylvania struck down a policy requiring random tests for those in extracurricular activities and those who wished to obtain a parking permit. Yet, in Joye v. Hunterdon Regional High School Board of Education, the Supreme Court of New Jersey upheld a similar policy.
It is important to reiterate the aspects of the policy in Earls that made it strong enough to combat the drug use problem in the schools, yet protective enough of the privacy rights of students. Policymakers are encouraged to check their policies for similar safeguards.
Patrick D. Pauken
See also Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls; Locker Searches; New Jersey v. T. L. O.; Privacy Rights of Students; Strip Searches; Vernonia School District 47J v. Acton
- Beckham, J. C. (2005). Searches in public schools. In K. E. Lane, M. J. Connelly, J. F. Mead, M. A. Gooden, & S. Eckes (Eds.), The principal’s legal handbook (3rd ed., pp. 37–57). Dayton, OH: Education Law Association.
- Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002), on remand, 300 F.3d 1222 (10th Cir. 2002).
- Gutin v. Washington Township Board of Education, 467 F. Supp. 2d 414 (D.N.J. 2006).
- Joye v. Hunterdon Regional High School Board of Education, 826 A.2d 624 (N.J. 2003).
- New Jersey v. T. L. O., 469 U.S. 325 (1985).
- Theodore v. Delaware Valley School District, 836 A.2d 76 (Pa. 2003).
- Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).