Drug Testing of High School Athletes

DRUG TESTING July 1994

The U.S. Court of Appeals for the Ninth Circuit held, in Acton v. Vernonia School District, CA 9, No. 92-35520, 5/5/94, that an Oregon high school's student athlete drug testing program violated the fourth amendment and the state constitution. "Federal Appeals Court Strikes Down Random Testing for Student Athletes," The National Report on Substance Abuse, 6/17/94, p. 4). The drug testing program was ruled to be in violation of the constitution because student athletes' privacy rights outweighed the government interest in reducing the dangers of drug use.

The school district argued that student athletes have a reduced expectation of privacy because they are engaged in a voluntary and highly regulated activity. The court, however, rejected these assertions. "High school athletes do not go through extensive background checks in order to join their teams", wrote Judge Ferdinand F. Fernandez for a three-judge panel. "Nor, in general, do their lives or the lives of others depend upon their ability to perform their roles on the football team." In regard to the voluntary participation in high school sports, Fernandez wrote that high school sports are "part of the educational process; part of what tax dollars pay for," and students "do not have to surrender their right to privacy in order to secure their right to participate in athletics. Participation in interscholastic sports does not significantly diminish a high school athlete's reasonable expectation that he will not be compelled to submit to suspicionless drug testing by urinalysis." Fernandez wrote that the claim that conditions in the school locker room diminish an athlete's expectation of privacy is "similarly unavailing." "Normal locker room or restroom activities are a far cry from having an authority figure watch, listen to, and gather the results of one's urination," he said.

Commenting on the 1988, Seventh Circuit decision in Schaill v. Tippecanoe County Sch. Corp., 864 F.2d 1309, which upheld a similar drug testing program, Fernandez wrote, "in a nut shell, we simply do not agree with the Seventh Circuit." This split in circuits sets up the possibility of review by the U.S. Supreme Court.