1. 4th and 5th Amendment issues in sport and physical activity
Chapter 7
4th and 5th Amendment issues in sport and physical activity

2. 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

3. 4th Amendment
This is the section of the bill of rights that guarantees privacy even though privacy is not mentioned in the amendment
Rights that belong to the fundamental right category may only be violated if they can meet strict scrutiny
In sports this comes into play with drug testing and locker searches

4. Locker searches
Searching homes and cars can only be done if there is probable cause and a warrant is issued
A school locker is a different matter, the student has a smaller expectation of privacy, and even less if the school owns the lock
As the expectation of privacy diminishes so does the need for legal justification for the search
A school owned lock diminishes privacy to a point where a warrant supported by probable cause is no longer needed in order for a state actor to constitutionally search the locker

5. Locker searches
Before the court cases New Jersey v. TTLO coaches and schools used the doctrine of in loco parentis to free them from constitutional restraints
This means that they acted in as a parent when the child was in their care
A parent does not need to have a warrant to search their kids room, so the school does not either
This also meant that the school had to care for the child the same as their parents would

6. Locker searches
After this case a generalized search, without individual suspicion, by a state actor of school lockers and bags with the hope of finding something was a violation of 4th amendment rights
Individualized suspicion was required
Before and after the TLO case a warrant was still needed if the search was to come from law enforcement
This case made in loco parentis less effective and had to have 3 steps to search
A reasonable suspicion
And individualized suspicion
A reasonable scope

7. Drug Testing
Drug testing athletes does not just bring up 4th amendment issues but 5th amendment protection against self incrimination and 14th amendment equal protection issues
This vast amount of protections has not stopped drug testing at the NCAA or local high schools
Veronia V Acton
In this case the courts never looked at the 14th amendment of equal protection
The issues were only viewed in mild scrutiny because being an athlete does not put them in a suspect class
The 5th amendment was ignored in this case because the results were not given to the local authorities
This case focused on 4th amendment issues
It would seem that after the Veronia case that school officials do not need individualized suspicion to perform a search, and not just a locker but the intrusive bodily fluid as well

8. Drug Testing
In 2002 the supreme court looked at another drug testing issue in the Earls case
This case dealt with drug testing in any student group not just athletes
Because it involved all school groups it didn’t focus on the 14th amendment
Because the results were not given to the police it didn’t focus on the 5th amendment
This was again a 4th amendment issue

9. Drug Testing
The decision of the Earls case was based on the result of the veronia case
Many people believe the veronia case was wrongly decided
The majorities logic focused on five points
Students engaged in extracurricular activities and were accustomed to a lack of privacy
Test procedures were similar to those used in Veronia and thus had already passed constitutional muster
Urine collection was not a significant invasion of privacy and results were not used to punish the student
The school district had provided some level of evidence that its drug testing program was needed and reasonably effective
The veronia case had not required and individualized suspicion before testing
the veronia and earls cases make it clear that this type of testing is constitutional

10. Due process
The right to due process is promised in the 5th and 14th amendments
The 14th amendment added state and local actors that have to follow due process as well as the federal government

11. Due Process Substantive due process considers
The fairness of who is selected for a given restriction
What type of right fundamental or nonfundamental is being violated and determines whether that restriction is fair
If fundamental right then strict scrutiny applies
If nonfundamental right then mild scrutiny applies

12. Due Process
Procedural Due process relates less to what is being done, or to whom it is being done, but how it is being done
They are guaranteeing a fair set of rules for the deprivation, not that the depravations are fair
If we look at the Veronia case substantive would look singling out individual athletes where procedural would look at the process of that drug testing

13. Due Process
The degree or procedural due process depends on the grip the person has on a life, liberty, or property interest
If a coach has a one year contract and is dismissed at the end, they have no grip, or expectation of continued employment
However if the coach was dismissed at year one of a three year contract, the coach would be owed significant due process because the coach would have a strong grip or expectation of continued employment