In a previous post, I discussed the lessened requirements of searches conducted by school officials, that of reasonableness under all of the circumstances surrounding the search. This is because the Supreme Court has recognized the need to balance a student’s privacy interests against the need for teachers and administration to maintain order and control over the classroom environment.[1] This framework works particularly well in the traditional sense of searching a student’s belongings, automobile, and even their school desks and lockers.[2]
What happens, however, if your school seeks to subject its students to random drug testing, without having reasonable suspicion to do so? This qualifies as a search, subject to the reasonableness standard, but “certain exceptions to the reasonable standard [exist], whereby your child may be subject to drug testing regardless of whether or not they are suspected of taking illicit drugs.”[3]
Does Random Drug Testing Violate the Fourth Amendment?
In 1995, the U.S. Supreme Court determined that random drug testing of student-athletes via urinalysis did not run afoul of the Fourth Amendment.[4] The Court articulated a three-part balancing test that must be used in determining whether a constitutional violation occurs in this context: the nature of the privacy interest upon which the search intrudes,[5] the character of intrusion,[6] and the nature and immediacy of the governmental concern and the efficacy of the means to meet it.[7] A school’s interest in combating student drug use has long been recognized. The Court reasoned that student-athletes have a further diminished expectation of privacy compared to regular students (consider communal showers and shared locker rooms) and noted the voluntary nature of participation.
Seven years later, the U.S. Supreme Court extended these principles to allow random drug testing of students who participate in any extracurricular school activities.[8] This includes chess clubs, band and choral ensembles, or even teams that participate in academic competitions. As my colleagues explained, “The circumstances surrounding a urinalysis test are no different than going to the restroom in a public facility, and a monitor is present only to make sure that your child does not tamper with the urine specimen,” a process that has been constitutionally upheld.[9]
Final Take-Away
So as a parent, what’s the take-away from this discussion? When your child wishes to participate in an extracurricular activity and the school intends to implement a suspicionless drug testing program, they may do so, but are required to adhere to the principles of Vernonia and Earls. In addition, it is comforting that the Court in Earls specifically articulated that access to the results is on a strict “need to know” basis;[10] in addition, schools are not permitted to either punish your child or hand over the results to the police.
Of course, the balancing test applied to drug testing renders a subjective analysis, and as such it is important to seek the advice of an experienced school law practitioner if your child is subject to one at his or her school.
[1] New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).
[2] Connecticut General Statutes § 54-33n.
[3] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at 60.
[4] Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).
[5] Id. at 654.
[6] Id. 658.
[7] Id. 660.
[8] Board of Education Independent School District No. 92 v. Earls, 536 U.S. 822 (2002).
[9] Id. at 833.
[10] Id.
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