NORML Report
by Paul Armentano, NORML Publications Director
and Donna Shea, NORML Foundation Legal Director

Seemingly turning its back to the United States Constitution, years of precedent, the most inherent civil liberties, and a nation that prides itself on the virtues of limited government, in June 1995 the Supreme Court ruled in favor of a Vernonia, Washington School District law mandating drug tests for all secondary school athletes regardless of reasonable suspicion.  While Justice Antonin Scalia's majority opinion of the Court notes that this
decision will not serve as a slippery slope toward the eventual mass testing of all students, the tragic irony of this case is that this latest decision is -- in itself -- the end result of just such a downward spiral.

Urinalysis And The Courts: Before The "War On Drugs"

Though it may come as a surprise to many, a quick look at the federal record indicates that the lower federal and state courts once had a history of striking down mass drug testing programs as unreasonable searches and seizures. The courts maintained this tradition until as late as the mid-1980s. Examples of this are numerous and widespread. For instance, in 1986 the United States District Court of Tennessee (Lovvorn v. City of Chattanooga) ruled that the mass urine testing of fire-fighters without individualized "reasonable suspicion" was in violation of the fourth amendment . This decision was handed down despite the State's arguments that it had both a  compelling interest in having its fire fighters free from drugs and "the presumption that fire-fighters who [generally] live in the same quarters..., routinely undress in each other's presence, and use common restroom facilities are consequently subject to less of a degree of privacy than are ordinary citizens".   Similar past lower court decisions negating mass urinalysis as unconstitutional include: Capua v. City of Plainfield, 643 F. Supp. 1507, 1513-20 (D.N.J. 1986) (testing firefighters at random), Patchogue-Medford Congress of Teachers v. Board of Ed., 119 A.D. (1986) (testing all probationary teachers), and Jones v. McKenzie, 628 F. Supp. 1500, (D.D.C. 1986) (testing of school bus attendants), rev'd, 833
F.2d 335 (D.C. Cir. 1987).

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Around this same time, other lower courts also reviewed several cases regarding the legitimacy of student drug testing. Like the examples listed above, the courts habitually struck these proposed laws down as unconstitutional. In Odenheim v. Carlstadt-East Rutherford Regional School District, a 1985 New Jersey Supreme Court case whose facts bear startling similarities to those in Vernonia, the Court maintained that the school's policy of requiring students to submit urine samples for drug testing violated students' rights to be free from nreasonable search and seizure, their right to due process, and their legitimate expectation of privacy and personal security.

In this example, the regional board of Education had adopted a policy that made urinalysis a necessary part of the state-mandated physical. This policy was implemented as a measure to curb what was perceived to be growing student drug use in the high school. The Board of Education contended that the testing was strictly a "medical procedure" and that "no civil or criminal sanctions [were] imposed in the event of a positive test." In other words, the defendants argued that the Board of Education had a compelling interest to keep its students drug-free. Therefore, they felt that the incorporation of mandatory student drug testing was an effective preventive measure that overrode the students' constitutional right to, privacy.

The New Jersey Supreme Court, however, disagreed. In its eyes, "urine testing unquestionably violate[d] the reasonable privacy expectations of school children."    The Court found that "the raw numbers and percentages of students... [using drugs] as compared with the total student body [28 students tested positive for marijuana out of a population of 520] is not reasonably related...to the circumstances which justified the interference, urinalysis, in the first place."

Another regulation involving students and drug testing was also struck down by the lower courts that same year. In Anable v. Ford (W.D. Ark. July 16, 1985) (unpublished), the court concluded that urine searches were unconstitutional because they do not effectively determine whether an adolescent had violated school rules regarding the use or possession of drugs at school.  The court ruled this way because the urinalysis provides no information as to whether any given student had used, possessed, or was under the influence [of drugs] while at school.  Citing a U.S. Supreme Court decision (New Jersey v. T.L.O., 469 U.S. 325 [1985]) , the court found no choice other than to rule that urine testing by teachers and educational administrators was inappropriate. The court in this case also deemed student drug testing to be unconstitutional on the inherently invasive nature of urinalysis. Much like the ruling handed down by the New Jersey Supreme Court, the Arkansas Court concluded that the excessive intrusive nature of the test is not justified by its need.

On the basis of a series of consistent lower and appellate court decisions, it appeared that the American courts had established a firm position regarding drug testing both in the schools and in the public workplace as being unconstitutional. However, in the years following 1985, certainly as a direct result of the snowballing momentum of America's newly launched "War on Drugs", this long-held position suddenly began to waver.

Prior to the Drug-War era, drug testing without reasonable suspicion had only been upheld by the courts in the military context. This policy was challenged in Committee for GI Rights v. Callaway (518 F.2d 466 [1975]), but was declared constitutional by the court because of what they ruled to be an "administrative search exception" to the fourth amendment. The court reasoned that the state's strong public interest to ensure military readiness and expediency outweighs the privacy interests of servicemen, whose fourth amendment rights are already somewhat diminished. In short, the administrative search exception balances the state's interest against the constitutional interest of the individual and allows for a relaxing of the fourth amendment when the state's interest is viewed to be overwhelming and/or predominant.   Few would argue that the defense of the nation against foreign invaders or against terrorism is not a legitimate compelling state interest.  Moreover, military servicemen historically have been subjected to serve under significantly less constitutional freedoms than those enjoyed by the rest of society. Therefore, the court's "exception" in this specific case is arguable.  However, as America began to enter the Reagan and Bush years, the administrative search "exception" began to creep into cases outside of the military.

In the late 1980s, as national anti-drug rhetoric and zeal mounted, workplace employee drug testing programs were widely implemented.  Many of these programs called for mass testing without individualized suspicion. In response to these policies and a growing American political climate that supported a "zero-tolerance" approach to drug use, many circuit courts began relaxing the "reasonable suspicion standard" of the past (see, e.g., Lovvorn v. City of Chattanooga, above) and, instead began widely applying the administrative search exception wherever they deemed it to be even remotely applicable.

The first major appellate court ruling approving mass urinalysis procedures in the public workplace through this administrative justification was Shoemaker v. Handel (795 F. 2d 1136  [3rd Cir. 986]). In this precedent-setting case, five well-known jockeys brought action challenging New Jersey Racing Commission regulations that required all official jockeys, trainers, or grooms to submit to breathalyzers and urine testing. The jockeys argued that such testing was unreasonable -- and thus unconstitutional--absent individualized suspicion. However, citing the administrative search exception, the U.S. Third Circuit Court of Appeals decided that, "warrantless searches or seizures by voluntary participants in [a] highly [state regulated...industry are reasonable".   Consequently, the court ruled that "the state's interest in the revenue generated by wagering and the vulnerability of the industry to untoward influences" overrides the individual's constitutional right to privacy.

Dramatic Changes on the Way

In the years following the Shoemaker decision, lower courts began to uphold this new line of thinking. For example, the administrative exception has been successfully applied to federal employees, including prison guards (McDonell v. Hunter, 809 F.2d 1302 [8th Cir. 987]), nuclear power plant employees (Rushton v. Nebraska Pub. Power Dist., 844 F. 2d 562 [8th Cir. 1988]), Custom Service employees (National Treasury Employees Union (NTEU) v. Von Raab, 108 S. Ct. 1072, 1988), public school teachers (Jones v. Jenkins, No. 86-5198, June 27, 1989), and others.

Probably the most significant of all these cases was NTEU v. Von Raab. In this case, a program was instituted requiring all employees seeking promotions to certain "sensitive positions" to submit to urinalysis regardless of the existence of probable cause or individualized suspicion of drug use. The uniform testing policy had the potential to infringe upon the privacy of over 120,000 federal employees.  Furthermore, the Commissioner for the Customs service stated that the workplace was "largely drug-free" to begin with, thus making the intrusion appear unnecessary.  However, disregarding all these factors leaning against such a policy, the Supreme Court concluded that the testing was reasonable because of the administrative search exception to the Fourth Amendment, and affirmed the state's interest in a drug-free workplace and the protection of "truly sensitive information" over the individual interests of its employees.  The Court reasoned that those individuals seeking employment in sensitive positions must assume that inquiries will be made into their drug use and therefore will have a diminished expectation of privacy.

The revolutionary Von Raab decision signaled a major departure in thought for the American justice system. Suddenly, what had once been the "exception" became the rule. Individual privacy, a right once thought to be guaranteed by the First and Fourth Amendments to the Constitution, was no longer seen as legitimate when balanced against the state interest to win the "War on Drugs." Furthermore, no longer did the courts require individualized suspicion to uphold drug testing. In fact, the Von Raab ruling demonstrated that urinalysis may now be upheld even when there is no suspicion of drug use at all. As one law scholar wrote, this approach to justice would be equal to eliminating the need for probable cause standards to search homes because there exists a strong state interest in eliminating crime.

In just a few short years, America's national concern to combat illicit drug use has wreaked havoc upon the rights delineated in our Constitution. Unfortunately, as the national zeal toward eliminating drugs in society began to grow exponentially, so did courts' willingness to find more and more "exceptions" to the Fourth Amendment prohibitions against unreasonable searches and seizures.   This is a dangerous trend.  It has altered the courts' proper role as an objective moderator of the distribution of power has, instead, turned the courts into nothing more than a federal tool used to promote political goals. 

The Supreme Court And Student Drug Testing Today

Citing a drug crisis in the Vernonia high school that the Supreme Court deemed to have reached "epidemic proportions," the Court ruled on June 26, 1995 to uphold a secondary school policy mandating urinalysis for all high school and junior high athletes regardless of individual suspicion of drug use.   Particularly disturbing about this case is that Justice Scalia wrote the majority opinion for the Court. Justice Scalia had previously opposed the idea of mass testing without suspicion just six years prior, when he wrote a dissenting opinion in Von Raab. One can surmise that his dramatic shift in thinking came about as a direct result of America's inundating Drug War propaganda, and/or political pressure.

The Vernonia ruling is highly disturbing because it shows many Americans have been so sufficiently blinded and scared by the federal government's propaganda that citizens may now be content to sacrifice their constitutional heritage and individual rights in order to support "the cause." The "epidemic" drug use that Vernonia claimed to be suffering from resulted in a total of only 12 positive drug tests in four and a half years since the mandatory urinalysis program had been instituted. (The school drug policy that the New Jersey Supreme Court struck down in 1985 as unjustified had netted more than three times as many positive results in one year as had Vernonia's policy in four.) Such figures hardly represent an epidemic by any standards. By comparison, urinalysis of high-school students in the 1985 Odenheim case (above) had garnered more than twice as many positive tests in only one year. Yet, that school's drug testing policy was deemed to have been unreasonable by the New Jersey Supreme Court. Of course, that ruling was ten years ago and was handed down before our nation's political leaders proposed to use any means necessary to win the "War on Drugs."

Justice Scalia also justified the Court's decision in Vernonia by stating that students, as a whole, traditionally lack many fundamental rights of self-determination. From this, he concluded that student athletes have an even lower expectation of privacy than does the general student body. This was because athletes also serve as role models, and are dressing and showering in close proximity to other students. This first point is debatable at best. All students are in some way role models to other students. Are not those in the honor society considered to be role models and representatives of the school? Could not the band, drama club, or any other public group be portrayed as such?

The second point, however, should not be open to discussion. Justice Scalia's "school sports are not for the bashful" rationale is fundamentally flawed. One could claim that mandatory gym class compels students to engage in many private functions such as showering. Should one assume, then, that public school is not for the bashful?

Lastly, Justice Scalia's comments that school officials can act "in loco parentis" as a means of further defending the constitutionality of high-school urinalysis is yet another indication of the lengths today's courts will go to justify actions that are historically unjustifiable. In this instance, Justice Scalia's remarks practically border on hypocrisy, for in New Jersey v. T.L.O. the Supreme Court flatly rejected this doctrine.

In the T.L.O. decision, the Court concluded that "it is difficult to understand why [school authorities] should be deemed to be exercising parental rather than public authority when conducting searches of their students".   The Court then determined that school officials cannot act as surrogate parents, but rather, they must act "as representatives of the State."  Justice Scalia's decision to ignore this aspect of T.L.O. in order to promote a federal Administration's anti-drug zeal in Vernonia is unforgivable.

Despite the onset of the War on Drugs, neither the wording of the Constitution nor the precedents set by our nation's courts just a decade ago have changed. What has altered dramatically is the federal government's investment in continuing the War on Drugs at the cost of our cherished freedoms.   This intolerance has spilled over into the court system and has, dangerously, given the courts -- a supposedly objective body -- a serious political agenda. Just as the courts once found discrimination against Asian Americans to be constitutional due to the growing national public intolerance of that race in World War II, so has the Supreme Court deemed it appropriate to disregard the Constitution when the parties in question are drug users. Such action was disgraceful fifty years ago and it remains disgraceful today. The court system is meant to uphold our nation's Constitution and administer justice equitably. Unfortunately, in a nation that has engaged in a war against its own people, the nation's highest court appears no longer ready to effectively do either.

 

Reprinted with Permission of National NORML