Vernonia School District v. Acton 47J, 515 U.S. 646 (1995), was a U.S. Supreme Court decision which upheld random drug testing policies of student athletes in public schools. In Vernonia, the drug testing had been preceded by a series of attempts to eradicate drugs and widespread drug-related disciplinary problems. The District Court found that athletes were “the leaders of the drug culture.” (796 F. Supp. 1354, 1357). Initially, the District tried to tackle the issue by introducing special “drug problem” classes, speakers, and presentations designed to deter drug use, and even conducted K9 sniff searches – but to no avail. Disciplinary problems “had reached epidemic proportions,” at which point random drug testing appeared to be the only choice.
The school tested 10% of the athletes and the samples were sent to an independent laboratory, which is a common procedure under the WADA rules (World Anti-Doping Agency). The search is uncomfortable and intrusive. As a professional athlete, I have been tested many times, and can still be tested at any time, even at home, upon a 24-hour notice. Repercussions are severe: if I were found with any prohibited substance in my system, I would suffer a 2-year ban in swimming and a lifetime ban in bodybuilding, not to mention the social stigma (being posted up in the Hall of Shame and publicly known as a “juicer”).
In Vernonia, WADA rules were followed: if a sample tested positive, a second test was administered as soon as possible to confirm the result (two samples A and B are collected from athletes and, if A is positive, sample B is tested). If the second test was positive, the athlete’s parents were notified, and the school principal would convene a meeting with the student and his parents, at which the student is given the option of either:
- participating for six weeks in an assistance program that includes weekly urinalysis, or
- suffering suspension from athletics for the remainder of the current season and the next athletic season.
The Policy stated that “a second offense results in automatic imposition of” suspension for the current season, and a third offense “in suspension for the remainder of the current season and the next two athletic seasons.” Such rules are very lenient in comparison to the consequences professional athletes would suffer in similar cases. Perhaps, the school should have invited a professional athlete, someone from the NFL or NBA, widely admired by the students, to explain the consequences to them.
The Fourth Amendment to 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.” The Fourth Amendment is applicable to the states via the Fourteenth Amendment (e.g. New Jersey v. T.L.O., 469 U.S. 325, 336-337 (1985)). The High Court held in Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 617 (1989), that drug testing of urine constitutes a “search” under the Fourth Amendment.
The search must be reasonable, which means it must be only as intrusive as necessary to promote “legitimate governmental interests” (Skinner, supra, at 619 – quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)). Where searches are conducted by law enforcement, reasonableness implies that the police must obtain a warrant, issued upon a showing of probable cause. Nevertheless, warrantless searches may be reasonable where special needs exist, “beyond the normal need for law enforcement.” (Griffin v. Wisconsin, 483 U.S. 868, 873 (1987))
In T.L.O. (at 340, 341), the High Court found such “special needs” may exist in the public school context, where the warrant requirement “would unduly interfere with the maintenance of the swift and informal disciplinary procedures” and the need to maintain order in the schools. The key to a warrantless search in T.L.O. was “individualized suspicion of wrongdoing.”
In Vernonia, the High Court considered:
1) the nature of the privacy interest upon which the search at issue intruded: under the Fourth Amendment, only “legitimate” privacy interests are protected;
2) supervisory (in loco parentis) relationship between students and school actors: the “custodial and tutelary responsibility for children” which includes vaccinations, medical checks and screenings, etc. – therefore, students “within the school environment have a lesser expectation of privacy than members of the population generally.” (T.L.O., 469 U.S., at 348);
3) the special status of athletes, holding that “legitimate privacy expectations are even less with regard to student athletes” because they change in locker rooms, conduct contact activities, shower together, etc. – activities that the High Court characterized summarily as containing “an element of `communal undress’ inherent in athletic participation.” (citing Schaill by Kross v. Tippecanoe County School Corp., 864 F. 2d 1309, 1318 (1988));
4) the “compelling need” for the program (796 F. Supp., at 1363) – in other words, a “compelling state interest.”
The High Court ruled that all these points were met in Vernonia. It also developed and elucidated upon the defendants’ point that drugs are inherently dangerous to the young organism, the “role model” affects athletes’ drug use, and that, therefore, the “least intrusive” search practicable under the Fourth Amendment was not practicable in this case.
Taking into account “the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search,” the High Court concluded that Vernonia’s Policy was “reasonable and hence constitutional.”
Suspicionless warrantless drug testing will likely be challenged again. The school officials must beware of the key criteria: minimal intrusiveness of the search in view of the age and sex of the students, and their status as guardians and tutors whose rights are given to them by children’s parents. Therefore, the district and schools must develop a unified, clear policy and obtain parents’ consent.