1. Drug Detection in Schools Class 16

2. CASE OF THE DAY Theodore v Delaware Valley School District, 836 A.2d 76 (Pa. 2003) Facts –Students and their parents sought to stop suspicionless drug and alcohol testing conducted both for afterschool activities and for obtaining parking permits Initial and re-test provisions –Lower court dismissed case, plaintiffs appealed

3. Plaintiffs claim that tests violated privacy rights, claiming that the practice is not constitutional “as a matter of law” (citing Vernonia and Earls.) Parents and students forced to sign a ‘contract’ authorizing drug testing as condition of participation Protective, injury and deterrence rationales articulated in policy –Court finds that no statement of need is present in policy –School district claimed ‘general’ drug problem in schools plus recent publicity about drugs in the county including one arrest of a HS student

4. School claimed that policy survives 4 th Amendment scrutiny: –Intrusion was minimal –Students had reduced expectation of privacy –Students had notice of policy –School district had valid interest in protecting students’ health and safety Lower court agreed, said that this was close enough to Veronia to be valid Lower court also ruled that policy did not usurp parents’ rights

5. Appellate court: –privacy interests of students were lesser than interests of adults, but privacy interests of targeted students were not less weighty than other students –No evidence of special need for “these students” –Intrusions were not minimal Court distinguishes between body search and search involving ‘excretory’ functions The Science team is not the same as the Wrestling team Policy is perverse, targets those least likely to be engaged in prohibited behaviors –Notice was insufficient about when and why a search was to be conducted –Reasonableness test: balance of need v invasion But Earls (OK case) broadened Veronia ruling to include ‘past need’ as well as present – included ‘legitimate governmental interest’ in definition of need. So, how can PA court reject school policy?

6. Afterall, hadn’t SCOTUS upheld testing even in the absence of strong evidence of need? PA court says privacy trumps, including in schools –Reasonableness depends on reason for search and means of effecting it –Analogy to weapons case (In re FB) suggests that drug issue falls short of ‘interest’ standard –Method is not ‘efficacious’ to prevent drug use since targets are not at high risk –Privacy interests can be trumped, but no demonstration of need for this broad target population –“Slackers”?? PA Supreme Court concurred on both issues

7. Searches in Schools Generally New Jersey v. T.L.O. (1985) gave broad discretion to school officials to search students –Diminished right to privacy in schools reduced 4 th amendment requirements –Way beyond “plain sight” exceptions to Fourth Amendment searches, and broad interpretation of reasonable suspicion, based more on “sufficient probability” –Greater deference to school officials searching for drugs or weapons, but this assumes we understand where the line stands between serious and minor offenses Do 4 th Amendment prohibitions apply to school officials?

8. What TLO Did Not Decide Exclusionary rule in school searches Privacy in lockers, desks or other personal areas Individualized suspicion necessary for search? –See Lanes v State, for functions of probable cause in search

9. The Search Was it reasonable? –Possession of cigarettes legal? –Does evidence of smoking trigger search of purse? –Plain sight exception valid? –Lying as trigger for search? –Is secondary search valid when triggered by rolling papers? (search cascades are ok?)

10. Privacy v Public Order Privacy v Protection Does the school’s interest vary by context of the search? –Is the calculus of the search different when the search is conducted in the school, in the school parking lot, in the locker room after school, or when the Math Team practices? –Does the balance of the school’s interests tip toward the school and away from the student’s privacy in one of these circumstances more than others? Why? –Does “reasonableness” vary by context? (see Berman in NYULR) Does the Exclusionary Rule serve as a deterrent to school authorities in constraining their search parameters and discretion? –Thompson v Carthage (1996, CA) says no –Depends in part on whether and how notice is given Balancing Tests

11. School Cases Doe v Renfroe (ND) –Does any search itself violate 4 th Amendment (generalized suspicion in pursuit of valid educational goal) –Was use of dogs a search, and does 4 th Amendment apply, and if so, how does school context mitigate 4 th Amendment protections? –Is special search of clothing pursuant to dog’s alert a 4 th Amendment violation? –Is body search unreasonable intrusion based on dog warning?

12. Does prior evidence of drug use by students justify search – and provide context for generalized suspicion? Students have no expectation of privacy with respect to lockers, but to clothing? Purses (T.L.O.)? Body? The “mild inconvenience” of pocket search or purse does not extend to body search –Would this threshold have been neutralized is student had overt signs of intoxication? Wads of cash?

13. Drug Testing Generally Automobile drivers – Schmerber v California – delay resulting from obtaining a warrant, etc., would result in destruction of evidence (metabolizing alcohol) Railroad employees – Skinner v. Railway Labor Executives Association – blood tests are so routine in society that they no longer constitute an intrusion but collection of urine samples is a greater invasion of privacy –Is fitness-for-duty test rationale justified? Or should it be confined to those who have had railway accidents? Parallels to schools?

14. Private employers – Alaska 1977 legislation. State legislation authorizes employers to conduct urine screens, employers shielded from tort liability if confidential data are disclosed Pregnant women – Ferguson v. City of Charleston (South Carolina), Whitner – mandatory testing of pregnant women in medical facilities, doctor-patient privacy is diminished because of threat to fetus if mother uses drugs

15. Doctrines Justifying Broad School Search Individualized v. Generalized Suspicion –Threshold questions – what estimate of prevalence justifies mass search? –Does presumption of broad probability influence weight accorded to individual factors? –What are the boundaries on individualized suspicion? Ind. suspicion need not arise from collective suspicion And vice-versa (Desilets v Clearview Regional Board of Ed’n, 1993, NJ) Reasonable suspicion is prevailing std., not probable cause

16. Drug Test Cases Vernonia v Acton (1995) – student athletes constitute “special needs” – –suspicionless searches are ok if they serve “valid” prophylactic purpose analogous to Skinner, customs officials, drunk drivers, etc. –These needs are “compelling” –Degree of intrusion? –What are special needs here? What is compelling about them? Danger of physical harm during sports Student athletes are leaders of drug culture “State of rebellion fueled by drug and alcohol use” Role models

17. Pottawatomie County and Independent School District 92 v. Lindsay Earles and Lacey Earles (536 U.S. 822, 122 S.Ct. 2559) (2002) –Suspicionless drug testing of students in all extracurricular activity Extension of Vernonia logic, beyond initial harm concern –Advances school district’s interests in preventing and deterring drug abuse among its children S.C. ruled that an “emergency” need not be present to justify policy, preventive rationale is sufficient –but said that one was present anyway, relying heavily on hearsay Earls argues that if she objects, she will suffer in college competition from not having extracurricular activities on her record So, is Theodore verdict correct?

18. The 48 Hours Story Reflect back, how can the school system defend its search? Can the school system defend the offensive tactic? Is there constitutional ground to consider the harm developmentally of subjecting children to these searches? What evidence? Is the search less objectionable as policy if no guns or dogs?