Supreme Court Set To Rule on High School Drug Testing Case

DRUG TESTING April 1995

On Mar. 28, the Supreme Court heard arguments in a case challenging the rights of schools to randomly test their students for drug use (Vernonia School District v. Acton, No. 94-590; ); 57 CrL 3009; for background, see 23 F.3d 1514, 62 LW 2714 (9th Cir. 1994)).

In 1991, James Acton tried out for his school's seventh-grade football team. His parents, Wayne and Judy Acton, refused to sign a drug testing consent form for their son James, and he was banned from participating in any school sports.

Vernonia School District admits there was no evidence that James Acton had used drugs, but argues the mandatory drug testing program for student athletes was necessary because teachers said drugs were causing major disciplinary problems at the school. After drug education and using dogs to sniff out drugs failed, the school started testing student athletes for marijuana, cocaine, and amphetamines at the beginning of each season and then randomly throughout the year. The school district had attempted to institute a mandatory drug testing program for all students involved in extracurricular activities, but later limited it to only student athletes.

"I was like one of the smartest kids in the class," James Acton said. "I never got a referral [to the principal's office] -- and I thought that was proof enough for them to see I wasn't taking drugs. I didn't want to be forsaken from sports and decided I should do something. My only option was pursue it in the courts."

The Ninth Circuit Court of Appeals overturned a May 1994 district court ruling that upheld the school district's policy. "Children are compelled to attend school," the appeals court said in its ruling, "but nothing suggests that they lose their right to privacy in their excretory functions when they do so. While they must attend classes and follow school rules, that does not indicate they have given up their basic privacy rights."

Both the school district and the Actons' attorneys agree that the case tests the limits of the Fourth Amendment. "While students have Fourth Amendment rights in the school setting, those rights are diminished at least to the extent that schools may conduct reasonable searches of students without a warrant or probable cause," argued the school district in its brief to the Supreme Court.

The case could raise broad questions about the right of the government to require drug testing. During oral arguments, however, some justices indicated that they would rule on the small issue of drug testing in public schools.

One issue in the case that was of concern to some of the justices was the claim by the school district that drug use was causing major problems in the school, especially among student athletes. Justice John Paul Stevens said that if school officials knew that drug use was such a problem, they should have also known what individual students were involved.

Justice Anthony M. Kennedy suggested that perhaps all students should be tested, even in schools where drugs do not appear to be a problem "in the interest of keeping it that way."

Other justices said the case would hinge on whether students have lesser privacy rights than adults. Justice Antonin Scalia advocated that position, arguing that "students are kids not adults."

Among those filing "friend of the court" briefs on behalf of the school district were the Department of Justice, the National School Boards Association, the Institute for a Drug-Free Workplace, the U.S. Conference of Mayors, the National League of Cities, the National Association of Counties, and the International City/County Management Association. The American Civil Liberties Association filed a brief in support of the Actons.

The Supreme Court last ruled on the ssue in 1989, when it upheld the constitutionality of drug testing in a pair of cases. By a vote of 7-2 in Skinner v. Railway Labor Executives Association, the Court upheld federal blood, urine, and breath testing of employees involved in train accidents (489 U.S. 602 (1989)). In National Treasury Employees Union v. von Raab, the Court voted 5-4 to uphold a U.S. Customs Service regulation requiring urinalysis testing of applicants for jobs in drug interdiction or for jobs requiring carrying a firearm (489 U.S. 656 (1989)).

The court is expected to rule in the case by late June.

[For more information about this case, see Henry J. Reske, "Leveling the Playing Fields," ABA Journal, Mar. 1995, p. 40; Joan Biskupic, "Justices to Decide if Middle and High Schools Can Test Athletes for Drug Use," Washington Post, Nov. 29, 1994, p. A11; Joan Biskupic, "Drug Cases Vs. Privacy Comes to High Court This Week," Washington Post, Mar. 26, 1995, p. A17; "Justices Focus on Student Rights in Student Drug Testing Case," Drug Detection Report, Apr. 5, 1995, p. 1; "Justice Department Files Brief Backing Drug Testing of Students," Drug Detection Report, Feb. 21, 1995, p. 1; Stuart Taylor, Jr., "How Not (and How) to Drug-Test Our Kids," Legal Times, Apr. 10, 1995, p. 25.]