This paper will examine the constitutional rights of high school athletics tested for drugs in order to participate in a sport. Schools are not testing students that participate in extra curriculum activities and they are not sanctioned to the scrutiny of having their rights violated. In reading some recent articles, parents are in turmoil about their child’s privacy and dignity being violated. Parents also want to know why students participating in extracurricular activities are not mandated to test for drugs. Throughout schools in the United States, some cases have sustained drug testing on only athletics, but some still say it’s an infringement of the 4th amendment. Many cases have been heard at the Supreme Court and lower courts questioning the violation of the student’s Fourth Amendment. Testing athletes for drugs is not unconstitutional; however, only testing athletes and not all students are involved in an extra curriculum school activity can seem unfair and unethical.
School districts in our nation are facing many problems involving controversial and legality issues. Students should do have the right to the freedom of speech, expression, and privacy while they are at school. They also have a responsibility while they are at school to fulfill their obligation as students and adhere to the rules of the school and the laws of the state. All students should be treated fair in the education system but that doesn’t always mean that they get treated equal. High school athletics can be tested for drugs in school districts throughout the country but students that partake in extracurricular activities, such as the marching band or forensic team, may not to subject to drug testing. There are reasons that high school athletes should be tested for drugs. Testing athletes for drugs is not unconstitutional and doesn’t violate the student’s fourth amendment.
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) was a U.S. Supreme Court decision which upheld the constitutionality of random drug testing regimen implemented by the local public schools in Vernonia, Oregon. Under that regimen, student athletes were required to submit to random drug testing before being allowed to participate in sports. During the season, 10% of all athletes were selected at random for testing. The Supreme Court held that although the tests were searches under the Fourth Amendment, they were reasonable in light of the schools’ interest in preventing teenage drug use. The Fourth Amendment of the United States Constitution says, “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” (U.S. Const. amend. IV).
In the Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), the United States Supreme Court ruled in Applying Skinner and Von Raab Test. (Vernonia School District v. Acton, 1995). The Skinner and Von Raab Test. Is based on a “compelling need” for a suspicion less drug testing policy existed only when the government established that public safety or national security were in danger. In its next case dealing with suspicion less drug testing, the Court moved away from to “compelling need” test and encouraged more suspicion less drug testing programs. The privacy interests of the student athletes were then balanced against the governmental interest involved. In the case Vernonia School District 47J v. Acton ,the Court moved away from the “compelling need” test used in Skinner and Von Raab, adopting a more liberal “important interest” test. The Court stated that the Government’s interest was “important,” if not “compelling.” The Government has an interest in deterring schoolchildren from using drugs (Lang, 200)
In the Vernonia School District 47J v. Acton (1995) a divided Supreme Court upheld as constitutional a school district policy which required students to consent to random drug testing as a condition for participation in interscholastic athletics. Balancing the student’s expectations of privacy and the nature of the test’s intrusion against the government’s interest in drug-free schools, the Court held that the drug policy did not violate the Fourth Amendment given such factors as: the athletes’ relatively low expectation of privacy (e.g. due to the requirements of communal undress and preseason physical exams); the fact that the athletes were leaders in the school’s drug culture, which was “in a state of rebellion”; and that the tests were “directed more narrowly to drug use by athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high.” (Vernonia School District v. Acton, 1995).
In the Supreme Court Case Board of Education v. Earls, the Supreme Court held constitutional an Oklahoma school policy of randomly drug testing students who participate in competitive, non-athletic extracurricular activities. In reversing a federal court ruling, the 5-4 Court stated in its majority opinion that it found such a policy “a reasonably effective means of addressing the school district’s legitimate concerns in preventing, deterring and detecting drug use.” In her dissent, Justice Ginsberg wrote that “the particular testing program upheld…is not reasonable, it is capricious, even perverse (Board of Education v. Earls, 122 S.Ct. 2559 , 2002)
In an article by Damian Sofsian, he writes, “Opponents of drug testing claim that it is a violation of privacy to require students to take drug tests. Privacy advocates suggest that with requests for mandatory drug screenings comes the potential for abuse. A few cases have existed in which a student was randomly searched and found to be in possession of drug paraphernalia. In these cases, the students were either suspended from school or sent to drug rehabilitation centers; it is often the case that these students were productive in school and were not necessarily considered to be problem students. Regardless of these isolated cases, many school districts defend the benefits of drug testing. Although formal statistics do not prove the theory, many educational experts believe that high school drug testing deters students from using or abusing illegal drugs “(Sofsian 2005).
The Fourth Amendment only protects against unreasonable searches and seizures. Although a search is presumptively reasonable if carried out pursuant to a warrant issued upon a showing of probable cause, the Fourth Amendment does not require a showing of probable cause in all cases. When “special needs” outside of ordinary law enforcement needs make obtaining a warrant impractical, the Fourth Amendment allows officials to dispense with the formality of obtaining a warrant. Such “special needs” adhere in the public school context, because administrators need to be able to maintain order within the school. The Fourth Amendment only protects against intrusions upon legitimate expectations of privacy. Central to the Court’s analysis in this case was the fact that the “subjects of the policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.” The schools act in loco parentis to the children, and have “such a portion of the power of the parent committed to his charge… as may be necessary to answer the purposes for which he was employed.” Therefore, in the public school context, the reasonableness inquiry “cannot disregard the schools’ custodial and tutelary responsibility for children.” Public schools require students to undergo vaccinations, vision, hearing, and dermatological screenings, and other examinations. Thus, public school students have a lesser expectation of privacy than members of the general public. (Wikipedia, 2010)
The United States Supreme Court addressed the issue of drug testing of students involved in extracuricular actitives. In Board of Education of Independent School District No. 92 of Pottawatomie County, et al v. Earls, 122 S Ct. 2559 (2002), the Court examined an Oklahoma school district policy requiring all middle and high school students to consent to urinalysis testing for drugs in order to participate in any extracurricular activity. The policy in practice was only applied to competitive extracurricular activities sanctioned by the Oklahoma Secondary Schools Activities Association including the Academic Team, Future Homemakers of America, Future Farmers of America, band, choir, pom-pom, cheerleading, and athletics. Under the policy, students had to submit to a random drug test before participating in the activity and had to agree to be tested at any time. Several students challenged the policy as violating their Fourth Amendment right to be free from unreasonable searches. As in Vernonia, the Supreme Court balanced the intrusion on the student’s Fourth Amendment rights against the promotion of legitimate governmental interests in determining whether the policy violated the Fourth Amendment. In examining the privacy interest of the students, the Court noted that students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same privacy intrusions as student athletes such as off-campus travel and communal undress. The Court further noted that there was no significant invasion of student privacy in conducting the drug testing. Students were allowed to produce their urine samples behind closed doors and the test results were kept in confidential files to be accessed only by “need to know” employees. The test results were not turned over to law enforcement. In addition, a student could fail the drug test twice and still be allowed some limited participation in extracurricular activities. Only after a third positive test was the student suspended from participating in any extracurricular activity for the remainder of the school year or 88 days, whichever was longer. (Pottawatomie County, et al v. Earls, 2002)
Among public school students, athletes have even less of an expectation of privacy. They suit up in locker rooms before practice. They take communal showers afterward. They subject themselves to additional regulation and medical screenings in order to participate in school sports. “Somewhat like adults who choose to participate in a ‘closely regulated industry,’ students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy.” (2010)
In looking closer to home, there are two school districts in South Carolina that have already approved the drug testing and it will go into effect this upcoming school year. Last month, Clover County School Board members approved the district’s student athlete drug testing policy. Clover is the second district in South Carolina to approve such as drug testing policy. Byrnes High School in Spartanburg District 5 school district also approved a program similar to Clovers earlier this spring. According to Sosne, the Superintendent of Clover County Schools, the school district’s lawyer Jane Turner from Columbia has worked with Assistant Superintendent Ron Wright on the policy and told the district that it would comply with the Constitution as written. Superintendent Dr. Marc Sosne and several board members characterized the policy as preventative rather than punitive and pointed to the way the policy was written to encourage parents to seek counseling for their children who test positive on the first and second test rather than immediately imposing punishments that include suspension from athletic eligibility for a period of five days on a second positive test to losing eligibility for the rest of the season on a third positive test (Allen, 2010)
Performing drug test on student athletes could become a very controversial issue for school district and superintendents. Parents are in an upheaval about their child’s privacy and dignity being violated. They also wanted to know why students participating in extracurricular activities are not included. Some cases have found drug testing, random or not, of all students are unconstitutional, so the trend has been to this theory that extracurricular and driving students can be tested. Most cases have upheld this type of testing, but some still say it’s a violation of the 4th amendment. In the two cases mentioned in this paper, the law has upheld students getting tested for drugs as a student athletic and as a non athletic in extracurricular activities. It is necessary to be fair about testing all students that represent the school and not just look at a certain group of students. Parents, educators, and students are all still not entirely supportive of the measures that the school district is taking to ensure the safety of the student and their environment. Drugs are something that students of any caliber may experiment with. Testing student athletics and non athletic students that participate in extracurrilular activities should be allowed. Drugs are illegal and students should not be allowed to do them in or out of school.
Allen, J. (2010, June 23). Clover School Board approves drug testing. Enquirer-Herald .
Board of Education v. Earls, 122 S.Ct. 2559 , 122 (Supreme Court 2002).
Lang, D. (200). Get Clean or Get Out:Landlords Drug-Testing Tenants. Journal of Law and Policy .
Sofsian, D. (2005, August 16). The Rise of High School Drug Testing. Easy Articles .
Vernonia School District v. Acton, 515 (Supreme Court 1995).
Wikipedia. (2010, October 27). Retrieved November Tuesday, 2010, from Wikipedia, the free encyclopedia: http://en.wikipedia.org/wiki/Vernonia_School_District_47J_v._Acton
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