Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822; 122 S. Ct. 2559; 153 L. Ed. 2d 73 (2002)
Facts—Pottawatomie County School District in Oklahoma instituted a Student Activities Drug Testing Policy requiring students participating in extracurricular activities to be subject to random urine tests. Samples were given in closed stalls with faculty members listening. Earls, a member of a number of nonathletic extracurricular activities challenged this regulation as a violation of the Fourth and Fourteenth Amendments. The District Court granted summary judgment for the school district, but the U.S. Tenth Circuit Court of Appeals reversed.
Question—Is the Pottawatomie District’s random drug testing of students in extracurricular activities reasonable given Fourth and Fourteenth Amendment requirements?
Decision—Yes.
Reasons—J. Thomas (5–4). “Reasonableness” is “the touchstone of the constitutionality of a governmental search.” In the “criminal context,” this requires “probable cause.” Respondents believe that drug testing in the school context requires “individualized suspicion,” but Thomas disagrees. In Veronia School District 47J v. Acton, 515 U.S. 646 (1995), the Supreme Court upheld drug testing for student athletes. Although such athletes were more routinely subject to deprivation of privacy by situations of collective undress, that issue was not dispositive. What is critical is that both cases involve “a school environment where the State is responsible for maintaining discipline, health, and safety.” Like athletes, students in extracurricular activities are subject to faculty supervision on trips. The testing here is even less intrusive than that in Veronia, students found to have been taking drugs are given chances to enter drug counseling, and information is not shared with law enforcement authorities. The school faced evidence of drug use, including observations by teachers of students who appeared to be on drugs and overheard conversations on the subject, and such use is part of a “nationwide epidemic.” A requirement that tests be administered only in cases of individual suspicion could unfairly target minorities. Although Thomas believed the policy to be constitutional, he expressed no opinion as to the policy’s wisdom.
J. Breyer, concurring, emphasized the seriousness of the national drug problem. He also placed significance on the fact that a “conscientious objector” could “refuse testing while paying a price (nonparticipation) that is serious, but less severe than expulsion from the school.”
J. O’Connor’s dissent stated her continuing disagreement with the Veronia decision.
J. Ginsburg’s dissent called the majority decision unreasonable, “capricious,” and even “perverse.” She saw no more reason to test students in extracurricular activities than to test others since all are subject to similar health risks. Students in nonathletic extracurricular activities that do not involve undressing and showering together have not forfeited as much privacy as others and do not pose as great a threat to others as those playing sports. Students in extracurricular activities are less likely than others to be on drugs. This policy thus “invades the privacy of students who need deterrence least, and risks steering students at greatest risk for substance abuse away from extracurricular involvement that potentially may palliate drug problems.” Schools, like governments, teach by example, and the Pottawatomie County schools set a bad example by diminishing students’ constitutional protections.