og:..“u;._.L;;“C:} H/ 9/../CX5<:? ;- R p+. :44 9g 7/? 86-997 A Congressional Research Service The Library of Congress Washington, D.C. 20540 DRUG TESTING IN THE SCHOOLS: A LEGAL ANALYSIS \ M. Maureen Murphy Legislative Attorney American Law Division October 10, 1986 GO . V9”"""9nt Publications Uni+ AUG 0 I 1994 Washington Unwersity Lim-am; St Louis. Mo 53130 IIIII|iiifWflm[flfl[[ilEj@i[[ifllijEf[[H['iflWIiElIll! DRUG TESTING IN THE SCHOOLS: A LEGAL ANALYSIS Introduction. Public concern about drug abuse appears to be at a high 1/ 2/ P1-t<_‘-h in the summer of 1987,- and teenagers see drugs their top problem.- Approximately one-third of private employers are testing for drugs in the 3/ workplace .— An attempt to test teachers has met with constitutional objections. . . PatcLogg_e-Medford Congress of Teachers v. Board of Education of,Pa,tchogu_e-Medford Union Free School District, 55 L.W. 2114 (August 26, 1986). Some schools have 47 1 . begun tests of students. School districts in approximately one-fifth of the states are reported to have begun or to be in the process of beginning drug 5/ testing programs for s,tu’®!t athletes. (Se _. 6, , 6 L/ Acco tqfikllxonducted by the Gallup Organization, Inc., con- cern aboutfidr’ g*ab, sé-f_,,' r than it has been in four decades. National page 1986) . 3/ E. 3/ Donnglly, H., "Privacy in the Workplace," Congressional Quarterly Editorial Research Reports, 207 (March 21, 1986). Legal implications of this are discussed in "Drug Testing and Urinalysis in the Workplace," a C0118?-'essional Research Service Report, dated April 16, 1986. i/ The New York Times, p. 17, Sec. 11 CN col. (September 21, 1986), (available in NEXIS, Infobank Library, NYT file, September 26, 1986), reports that some Connecticut school districts are testing their students for drug use. An article in the August 19, 1986, New York Times, p. A-14, col. 6, discusses a °°mP\11sory drug testing program for students involved in extracurricular acti- ,‘,’,1t.,j,-e_,+‘3,.;_._?lpl=1 the, town of Hawkins, Texas. A positive test result means ineligi- bi]-1t$’i "to ‘participate in extracurricular activities for three months. Maryland schools are testing athletes. New York Times, p. D-23, col. 1 (July__3o, 1986). 1 §/ According to a survey of the National Federation of State High School "A33°¢1ations, o’f,””36"’states responding to a survey, 11 reported either having 3<‘-h°01 districts with drug testing programs or "seriously contemplating" such P1’-'°81-‘ams for fall 1986. New York Times, p. A-26. col. 1 (July 2, l986)(avail- able 111 NEXIS Itrfobank Library, NYT file, September 7, 1986). CRS-2 This report will examine the legal implications of drug testing in public and private schools. It will first summarize the general legal principles that apply to schools, then examine the principles that have emerged in the litigation involving drug testing in other situations and, finally, discuss the limited caselaw involving drug testing in the schools. legal Principles Applicable to Public and6§rivate Schools. Urinalysis testing for drugs has been held to be a search-' and, thus, to bring the Fourth Amendment's protection against unreasonable search and seizurezj into play. There is a developing body of caselaw on the issue of precisely what is reason- able in the context of drug testing urinalysis programs. Houever, the Fourth Amendment applies only to government action, thus, private schools are not directly covered by its constraints. In general, unless a particular state" has a statute or a state constitutional provision that is directly applicable, private schools are free to begin programs that might be impossible in public schools provided those programs are within the scope of the agreement or §/ Storms v. Coughlin, 600 F. Supp. 1214 (S.D.N.Y. 1984); McDonnell v. Hunter, 612 F. Supp. 1122 (S.D. I0. 1985). Z] The Fourth Amendment to the United States Constitution proclaims: 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. CRS-3 8/ a contract between the parents and the school . and the programs do not violate 9/ other applicable laws. Public schools, on the other hand, are state agencies and, thus, are within the ambit of the Fourth Amendment's protection. The courts, however, recognize“ that the school situation is one requiring certain constraints upon student's liberty in the interest of the primary function of education. Protection against unreasonable search and seizure in the school situation is modified according to a balancing test for reasonableness that evaluates the student's interest in liberty against the state's or school's interest in maintaining the discipline necessary to educate the student body for assumption of the role of ,. enlightened citizenry. In New Jersey v. T.L.0., U.S. ____, 105 S. Ct. 733 (1985), the Supreme Court explicitly extended the protection of the Fourth Amendment to the school situation. It found, however, that searching the purse of a student observed smoking cigarettes in violation of school rules was not an unreasonable search in violation of the Fourth Amendment. Compulsory drug testing of students is the kind of public school program that might involve violation of Fourth Amendment rights. The federal courts have upheld compulsory random drug testing by the government only in very 10/ limited situations since urinalysis testing involves a Fourth Amendment search._' .§/ School regulations are considered to be within the contemplation of the contract between the school and the parents of its students. Thus, if a student is dismissed without justification, the parents are not liable for the tuition, according to the holding of Miami Military Institute v. Leff, 129 Misc. 481, 221 N.Y.S. 799 (1926). 2}: See CRS Report "Confronting Students Concerning Suspected Drug Use: Potential Liability of Educators" (September 23, 1986). 10/ Schmerber v. California, 384 U.S. 757 (1966), McDonnell v. Hunter, 612 F. Supp. (S.D."Io. 1985); Allen v. City of Marietta, 601 F. Supp. 482 (NODO Gao 0‘ CRS-4 Legal Principles Relating to Drug Testing. Government mandatory random drug testing has been found to be reasonable in situations involving the mili- tary because of the diminished expectation of privacy and requirement of obedience,ll! jockeys because they operate in a heavily regulated industry,lg/ and prisoners.l2/ Random compulsory tests have not been allowed for school 6 teachers, either new hires and or those facing tenure decisionsglé! prison employees who had signed a general consent-to-search form;l2/ and police and fire fighters.lé/ The courts have found that the Fourth Amendment's reasonableness standard has been satisfied when the government requires the testing because of objective circumstances such as requiring drivers involved in accidents to be tested after an accident. Division 241 Amalgamated Transit Union v. Susgyg 538 F.2d 1264 (7th Cir. 1976). Another example of an objective circumstance triggering a test may be requiring urinalysis testing as part of routine physical exams. 17/ Such tests are required for air pilots and for railroard operators.-—' When 11/ Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983); Committee for G.I. Rights v. Callaway, 518 F.2d 466 (D.C.Cir. 1975). ;g/ Shoemaker v. Handel, 619 F. Supp. 1089 (D.N.J. 1985). 13/ Storm v. Coughlin, 600 F. Supp. 1214 (S.D.N.Y. 1984). if] Patchogue-Medford Congress of Teachers v. Board of Education of PatchoguefMedford Union Free School District, 55 L.W. 2114 (N.Y. Sup. Ct. August 26, 1986). Aéf McDonnell v. Hunter, 612 F. Supp. 1122. léf Capga v. City of Plainfield, F. Supp. (No. 86-2992, Sept. 18, 1986);;Tom kins v. City of Plainfield, F. Supp. (D.N.J. Sept. 18, 1986). 12/ 14 C.F.R. part 67 prescribes medical tests for air pilots; 49 C.F.R. parts 218 and 225 prescribe programs for control of drugs and alcohol in rail- road operators and”inc1ude drug testing. \\ CRS-5 such tests were required of public school students, they were found to be 18/ unconstitutionalJ-_- Courts have also found that urinalysis testing for drugs on the basis of reasonable or particularized suspicion of drug use meets Fourth Amendment standards. Turner v. Fraternal Order of Police, 500 A.2d (D.C. Ct. App. 1985); !§E§_v. United States, No. 85 Civ. 5764 (S.D.N.Y. Apr. 21, 1986). It, thus, appears that to be held reasonable, drug testing by the govern- ment must be based upon some type of individualized focused suspicion of drug use or must be triggered by an objective criterion that draws a nexus with use of drugs. To be reasonable, the drug testing must also follow procedures designed to protect individual interests. In deciding that extraction of blood met due process standards, the Supreme Court held that a blood test of an unconscious person conducted by medical personnel was not unduly invasive, Schmerber v. California, 384 U.S. 757 (1966); requiring ingestion of an emetic at police headquarters however, has been held to be unconstitutional. Rochin v. California, 342 U.S. 165 (1952). The urinalysis testing program for drug detection among military service members, which has been upheld by the courts, Committee for Rights v. Callaway, 518 F.2d 466; Murray v. Haldeman, l6 M.J. 74, included an elaborate procedure for testing and for controlling the specimens while being transported to the testing laboratories and while being tested at 19/ the laboratories. The security measures included checks and counterchecks at various points, cataloging and recataloging for cross-checking, and double testing of each specimen. lfi/Vodenheim v. Carlstadt-East Rutherford Regional School District, No. C-4305 E, N.J. Superior Ct., Bergen Co. (December 9, 1985). lg] DOD Directive No. 1010.1, "Drug Abuse Testing Program" (December 28, 1984). CRS-6 Another case, Capga v. City of Plainfield, Civ. Action No. 86-2992 (D.N.J. «September 1S, 1986), suggests that courts will look closely at the procedures used in drug testing. The case involved unannounced testing of fire fighters who were awakened at 7:00 a.m., after all exits to the firestation were closed, and forced to provide urine specimens in the presence of testing agents. A . positive test result met with summary termination of employment, without notice, without provision of copies of the lab tests or any indication of what substances the accusation involved. The Plainfield police force was subjected to similar unannounced testing. The court characterized those procedures as "flagrant violation of plaintiffs‘ due process rights.” Slip op., at 3. Government drug testing programs must, therefore, meet reasonable standards, in terms of who is being tested and why, and procedural standards, in terms of how tests are conducted and by whom. Application of These Legal Standards to Testinggof Students. The cases that have been discussed have dealt with drug testing of adults, usually in the workplace, and by government employers. Students in.public schools, at. all levels, have a comparatively lower expectation of privacy and a diminished Fourth Amendment interest, as explicated by the Supreme Court in 34249, v. New Jersey, but they also have a Fifth Amendment right to procedural due process if any liberty interest is being jeopardized, as in a suspension from school. §g§§_v. E22253 419 U.S. 565 (1975). Thus, any school drug detection program must meet Fourth Amendment and Fifth Amendment standards adjusted to the particular facts of the school situation. 20/ While_there is a movement to begin testing of students -_- and the possi- bility of court challenges to such tests, we could locate only one case on I‘ J ‘ggf See fn. 3, 4, supra. CRS-7 the issue. It involves a New Jersey school district whose drug testing program was found to be unconstitutional. Odenheim v. Carlstadt-East Rutherford School gggional District, No. C-4305-85 E, N.Y. Sup. Ct., Bergen do. (December 9, 1985). In August 1985 the local board of education began a policy requiring annual medical examinations of all students in the school district, to be conducted on the school premises by school medical personnel. As part of these examinations, tests were to be administered for alcohol and drug abuse with a view toward enrolling the students in rehabilitation programs. Other medical laboratory tests were performed on the urine samples, and the school contended that the tests were purely medical and as such implicated no fiourth Amendment rights.‘ As part of the program students found to be drug users could be placed in rehabilitation programs, scheduled for periodic medical examinations, or referred to county youth services. Students failing to submit to the examina- tion were to be suspended or expelled from school under a New Jersey law that permitted suspension or expulsion for refusal to submit to a medical examination, required of all state students. The statute also permitted penalizing parents of students who failed to take the medical examination. In analyzing the case, the court relied heavily on New Jersey v. T.L.0. as indicating the test for the reasonable expectation of privacy, the protectible Fourth Amendment interest, that courts should recognize for students in school situations, quoting the following passage from that case: '. . . Under ordinary circumstances, a search of a student by a teacher or other school official will be justified at its inception: when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school._ Such a search will be per- missible in its scope when the measures adopted CRS-8 are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of_ the infraction.’ Odenheim v. Carlstadt-East Rutherford Regional School District, slip op., at 9, citing New Jersey v. T.L.0., 105 S. Ct. 733, 523. To determine whether the school's drug testing program was reasonable within the meaning of the Fourth Amendment the court looked at the school's population-over 500--versus the number of students referred to drug rehabili- tation programs in the prior year--less than thirty-and concluded that those figures were not reasonably related in scope to the circumstances that were thought to justify the inference that urinalysis was required'in the first place. Moreover, the court found the policy to be in conflict with state law which permitted expulsion for drug activity but required certain procedural protections for such disciplinary action since the urinalysis testing program permitted summary dismissal. The.school authorities contended that expulsion as a result of the tests would be a medical expulsion rather than a disciplinary one. The court refused to accept that distinction and saw it as "an attempt to control student dis- cipline under the guise ofla medical procedure, thereby circumventing strict due process requirements." Odenheim v. Carldtsdt-East Rutherford Regional School District, slip op., at 10. While one case is too little authority from which to form a generalization, this case together with related caselaw concerning: (1) government urinalysis testing of employees, prisoners, and military, and (2) constitutional protec- tion fok students in public schools, suggests that courts will sustain drug testing of students in public schools provided that it meets reasonableness 13$ CRS-9 standards. Those standards, in turn, will reflect the balance between the government or school interest in preventing drug impaired students in the schools from disturbing the discipline essential to the educational process against students‘ legitimate expectation of privacy. Where the school interest is greatest will be where the school has a severe drug problem or where a drug problem will most affect school functions; the student's privacy interests will be greatest where the school has no objective grounds for believing the student or a small group of students are drug abusers whose influence will impair the school's legitimate activities. Due process considerations will require that schools testing.students gear .~ their programs procedurally in a manner to protect the student's privacy and 21/ physical safety interest. '1‘/‘J I a/,:L&"{,\/5L» f/ll‘ . I L / ~ 1/ M. Maureen Murphy Legislative Attorney American Law Division October 10, 1986 31/ Parental permission may be necessary for minor students. wAeHaN<3Tohi UNIVEFCSITV gnLow3-MO-