Posts

Student Athlete Drug Testing Policies

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.

Implications

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.”

Conclusion

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.

Share This:

Doping, Restraint of Trade, Denial of Natural Justice

 

Case of Johnson v Athletics Canada and IAAF (Ontario Court of Justice, Canada, 25.7.97)

Issues: Doping; lifetime ban; validity of sanction; restraint of trade; denial of natural justice

Ben Johnson, was banned for two years in 1988 at the Olympic Games in Seoul, where he ran 100m sprint in 9.79 second! He tested positive for stanozolol, the use of which his coach did not deny. He was attacked by Carl Lewis, who was given the gold medal. Linford Christie moved up to the silver medal and won gold at the next Games. All of them, including Dennis Mitchell and Desai Williams, were at some point suspected of doping.

In 1993, Ben Johnson competed in Montreal and was tested after the race. The sample tested positive and Johnson did not exercise his right of appeal under the rules of Athletics Canada (AC) and the International Amateur Athletics Federation (IAAF). He was therefore banned for life. Johnson applied to the Ontario Court of Justice for a declaration that the lifetime ban issued against him by AC and the IAAF, which barred his participation in athletics events, was contrary to the common law doctrine of restraint of trade.

In his application, Johnson claimed that he had not appealed because of apprehension regarding the partiality of the Appeal Committee. Johnson’s primary submission was that the lifetime ban constituted restraint of trade. He also claimed that he had been denied justice under Natural Law because the proceedings of the IAAF and AC in 1993 had been unfair.

Under the Restraint of Trade issue, Johnson contended that the lifetime ban constituted restraint of trade in the form of an activity from which he earned his livelihood. The Court of Justice accepted that the lifetime ban was in restraint of trade because AC and IAAF enabled Johnson to exploit his talents in order to earn a living. It was clear that the financial gain resulted from participation in competitions.

However, the ban was deemed reasonable and was not an illegal restraint of trade because it was necessary to protect Johnson from the effects of use of prohibited substances for the sake of his own health. It was also necessary to protect the right of athletes to fair competition and to know that the race involved only their own skill, strength and spirit rather than their pharmacologist. The public also had an interest in the protection of the integrity of the sport.

As to the Denial of Natural Justice, Johnson argued that the actions and proceedings of the IAAF and AC in 1993 had been unfair and that, as a result, he had been denied natural justice. The constituent elements of natural justice had been set out by the Supreme Court of Canada in the case of Lakeside Colony of Hutterian Brethren v Hoffer (1992): “The content of the principles of natural justice is flexible and depends on the circumstances in which the question arises. However, the most basic requirements are that of notice, opportunity to make representations and an unbiased tribunal.” Johnson was at all times represented by counsel, entitled to hearings and presentation of evidence, but had failed to avail himself of any of the various opportunities available to him for further hearings on the merits. Thus, degree of fairness under the Natural Law was met.

Ben Johnson’s case is actually one of the long line of stanozolol cases – so long that Wikipedia has its own entry: List of Doping in Sport, Stanozolol Sec. 1.6. Stanozolol abuse began almost immediately after it was discovered and brought to market in 1962 under the tradenames Winstrol and Stromba. It can be legitimately used in senile post-menopausal osteoporosis, debility in elderly patients, some gastrointestinal disorders, trauma, anemia, during post-operative convalescence, and it is also used as a veterinary drug to stimulate appetite and weight gain; but even in veterinary medicine, it is used sparingly because it may cause tumors.

Share This: