JUDGES: THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and
SCALIA, KENNEDY, and BREYER, JJ., joined. BREYER, J., filed a concurring
opinion. O'CONNOR, J., filed a dissenting opinion, in which SOUTER, J., joined.
GINSBURG, J., filed a dissenting opinion, in which STEVENS, O'CONNOR, and
SOUTER, JJ., joined.
OPINION:
[*2562] JUSTICE THOMAS delivered the opinion of the
Court.
The Student Activities
Drug Testing Policy implemented by the Board of Education of Independent
School District No. 92 of Pottawatomie County (School District) requires all students who participate in
competitive
extracurricular activities to submit to
drug testing. Because this Policy reasonably serves the School District's important interest
in detecting and preventing
drug use among its students, we hold that it is constitutional.
I
The city of Tecumseh, Oklahoma, is a rural community located approximately 40
miles southeast of Oklahoma City. The
School District administers all Tecumseh public schools. In the fall of 1998, the
School District adopted the Student Activities
Drug Testing Policy (Policy), which requires all middle and
high school students to consent to
drug testing in order to participate in any
extracurricular activity. In practice, the Policy has been applied only to
competitive
extracurricular activities sanctioned by the Oklahoma Secondary Schools Activities Association, such as
the Academic Team, Future Farmers of
[*2563] America, Future Homemakers of America, band,
choir, pom pon, cheerleading, and
athletics. Under the Policy, students are required to take
[**9] a drug test before
participating in an
extracurricular activity, must submit to random
drug testing while
participating in that activity, and must agree to be tested at any time upon reasonable
suspicion. The urinalysis tests are designed to detect only the use of illegal
drugs, including amphetamines, marijuana, cocaine, opiates, and barbituates,
not medical conditions or the presence of authorized prescription medications.
At the time of the[] suit, [Lindsay Earls] . . . attended Tecumseh
High School [and] . . . was a member of the show choir, the marching band, the
Academic Team, and the National Honor Society. . . .
II
The Fourth Amendment to the United States Constitution protects "the
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures." Searches by public
school officials, such as the collection of urine samples, implicate Fourth
Amendment interests. We must therefore review the School District's Policy for
"reasonableness,
[**13]
" which is the touchstone of the constitutionality of a governmental search.
In the criminal context, reasonableness usually requires a showing of
probable cause. The probable-cause standard, however,
"is peculiarly related to criminal investigations" and may be unsuited to determining the
reasonableness of administrative searches where the
"Government seeks to
prevent the development of hazardous conditions." The Court has also held that
a warrant and finding of probable cause are unnecessary in the
public school context because such requirements
"'would unduly interfere with the maintenance of the swift and informal
disciplinary procedures [that are] needed.'"
Vernonia,
supra, 515 U.S. at 653 (quoting
T. L. O.,
supra, 469 U.S. at 340-341).
Given that the School District's Policy is not in any way related to the
conduct of criminal investigations, see Part II-B,
infra, respondents do not contend that the
School District
[**14] requires probable cause before
testing students for
drug use. Respondents instead argue that
drug testing must be based at least on some level of
individualized suspicion. See Brief for Respondents 12-14. It is true that we generally determine the
reasonableness of a search by
balancing the nature of the
intrusion on the individual's
privacy against the promotion of legitimate governmental interests. See
Delaware v. Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). But we have long held that
"the
Fourth Amendment imposes no irreducible requirement of [individualized] suspicion."
United States v. Martinez-Fuerte, 428 U.S. 543, 561, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976).
"In certain limited circumstances, the Government's need to discover such latent
or hidden conditions, or to prevent their development, is sufficiently
compelling to justify the
intrusion on
privacy entailed by conducting such searches without any measure of
individualized suspicion."
Von Raab,
supra, 489 U.S. at 668; see also
Skinner,
supra, 489 U.S. at 624. Therefore, in the context of safety and administrative
regulations, a search unsupported by probable cause may be reasonable
"when 'special needs, beyond the normal need
[**15] for law enforcement, make the warrant and probable-cause requirement
impracticable.'"
Griffin v. Wisconsin, 483 U.S. 868, 873, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987) (quoting
T. L. O., supra, at 351 (Blackmun, J., concurring in judgment)); see also
Vernonia,
supra, 515 U.S. at 653;
Skinner,
supra, 489 U.S. at 619.
Significantly, this Court has previously held that
"special needs" inhere in the
public school context. See
Vernonia, supra, at 653;
T. L. O., supra, at 339-340. While
schoolchildren do not shed their constitutional rights when they enter the schoolhouse, see
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 21 L. Ed. 2d 731,
[*2565] 89 S. Ct. 733, 49 Ohio Op. 2d 222 (1969),
"Fourth Amendment rights . . . are different in public schools than elsewhere; the 'reasonableness' inquiry cannot disregard the schools'
custodial and tutelary responsibility for children."
Vernonia,
supra, 515 U.S. at 656. In particular, a finding of
individualized suspicion may not be necessary when a school conducts
drug testing.
In
Vernonia, this Court held that the
suspicionless
drug testing of
athletes was constitutional. The Court, however, did not simply authorize
[**16] all school
drug testing, but rather conducted a fact-specific
balancing of the
intrusion on the children's
Fourth Amendment rights against the promotion of legitimate governmental interests. See
515 U.S. at 652-653. Applying the principles of
Vernonia to the somewhat different facts of this case, we conclude that Tecumseh's
Policy is also constitutional.
A
We first consider the nature of the
privacy interest allegedly compromised by the
drug testing. See
id., at 654. As in
Vernonia, the context of the
public school environment serves as the backdrop for the analysis of the
privacy interest at stake and the
reasonableness of the
drug testing policy in general. See
ibid. ("Central . . . is 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"); see also
id., at 665 ("The most significant element in this case is the first we discussed: that the
Policy was undertaken in furtherance of the government's responsibilities,
under a
public school system, as guardian and tutor of children entrusted to its care");
ibid.
("When the government
[**17] acts as guardian and tutor the relevant question is whether the search is one
that a reasonable guardian and tutor might undertake").
A student's
privacy interest is limited in a
public school environment where the State is responsible for maintaining discipline, health,
and safety.
Schoolchildren are routinely required to submit to physical examinations and vaccinations
against disease. See
id., at 656. Securing order in the school environment sometimes requires that students be
subjected to greater controls than those appropriate for adults. See
T. L. O., supra, 469 U.S. at 350 (Powell, J., concurring) ("Without first establishing discipline and maintaining order,
teachers cannot begin to educate their students. And apart from education, the school
has the obligation to protect pupils from mistreatment by other children, and
also to protect
teachers themselves from violence by the few students whose conduct in recent years has
prompted national concern").
Respondents argue that because children
participating in nonathletic
extracurricular activities are not subject to regular physicals and
communal
undress, they have a stronger
expectation of privacy than the
[**18]
athletes tested in
Vernonia. See Brief for Respondents 18-20. This distinction, however, was not essential
to our decision in
Vernonia, which depended primarily upon the school's custodial
responsibility and authority.
In any event, students who participate in
competitive
extracurricular activities
[*2566] voluntarily subject themselves to many of the same
intrusions on their
privacy as do
athletes. n4 Some of these clubs and activities require occasional off-campus travel and
communal
undress. All of them have their own rules and requirements for
participating students that do not apply to the student body as a whole.
115 F. Supp. 2d at 1289-1290. For example, each of the
competitive
extracurricular activities governed by the Policy must abide by the rules of the Oklahoma Secondary
Schools Activities Association, and a faculty sponsor monitors the students for
compliance with the various rules dictated by the clubs and activities. See
id. at 1290. This regulation of
extracurricular activities further diminishes the
expectation of privacy among
schoolchildren. Cf.
Vernonia, supra, 515 U.S. at 657 ("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" (internal
quotation marks omitted)). We therefore
[**20] conclude that the students affected by this Policy have a limited
expectation of privacy.
B
Next, we consider the character of the
intrusion imposed by the Policy. See
Vernonia, supra, at 658. Urination is
"an excretory function traditionally shielded by great
privacy."
Skinner, 489 U.S. at 626. But the
"degree of
intrusion" on one's
privacy caused by collecting a urine sample
"depends upon the manner in which production of the urine sample is monitored."
Under the Policy, a faculty monitor waits outside the closed restroom stall
for the student to produce
[**21] a sample and must
"listen for the normal sounds of urination in order to guard against tampered
specimens and to insure an accurate chain of custody." App. 199. The monitor then pours the sample into two bottles that are sealed
and placed into a mailing pouch along with a consent form signed by the
student. This procedure is virtually identical to that reviewed in
Vernonia, except that it additionally protects
privacy by allowing male students to produce their samples behind a closed stall.
Given that we considered the method of collection in
Vernonia a
"negligible"
intrusion,
515 U.S., at 658, the method here is even less problematic.
In addition, the Policy clearly requires that the test results be kept in
confidential files separate from a student's other educational records and
released to school personnel only on a
"need to know" basis. Respondents nonetheless contend that the
intrusion on students'
privacy is significant because the Policy fails to protect effectively against the
disclosure of confidential information and, specifically, that the school
"has been careless in protecting that information: for example, the
Choir
teacher looked at students' prescription
[**22] drug lists and left them where other students could see them." Brief for Respondents 24. But the
choir
teacher is someone with a
"need to know," because during off-campus trips she needs to know what medications are taken
by her students. Even before the Policy was enacted the
choir
teacher had access to this information. See App. 132. In any event, there is no
allegation that any other student did see such information. This one example of
alleged carelessness hardly increases the character of the
intrusion.
Moreover, the test results are not turned over to any law enforcement
authority. Nor do the test results here lead
[*2567] to the imposition of discipline or have any academic consequences. Cf.
Vernonia,
supra, at 658, and n. 2. Rather, the only consequence of a failed drug test is to
limit the student's privilege of
participating in
extracurricular activities. Indeed, a student may test positive for drugs twice and still be allowed to
participate in
extracurricular activities. After the first positive test, the school contacts the student's parent or
guardian for a meeting. The student may continue to participate in the activity
if within five days of the meeting
[**23] the student shows proof of receiving drug counseling and submits to a second
drug test in two weeks. For the second positive test, the student is suspended
from participation in all
extracurricular activities for 14 days, must complete four hours of substance abuse counseling, and must
submit to monthly drug tests. Only after a third positive test will the student
be suspended from
participating in any
extracurricular activity for the remainder of the school year, or 88 school days, whichever is
longer. See App. 201-202.
Given the minimally intrusive nature of the sample collection and the limited
uses to which the test results are put, we conclude that the invasion of
students'
privacy is not significant.
C
Finally, this Court must consider the nature and immediacy of the government's
concerns and the efficacy of the Policy in meeting them. See
Vernonia, 515 U.S., at 660. This Court has already articulated in detail the importance of the
governmental concern in preventing
drug use by
schoolchildren. See
id., at 661-662. The
drug abuse problem among our Nation's youth has hardly abated since
Vernonia was decided in 1995. In fact, evidence suggests
[**24] that it has only grown worse. n5 As in
Vernonia,
"the necessity for the State to act is magnified by the fact that this evil is
being visited not just upon individuals at large, but upon children for whom it
has undertaken a special responsibility of care and direction."
Id., at 662. The health and safety risks identified in
Vernonia apply with equal force to Tecumseh's children. Indeed, the nationwide drug
epidemic makes the war against drugs a pressing concern in every school.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 For instance, the number of 12th graders using any illicit drug increased
from 48.4 percent in 1995 to 53.9 percent in 2001. The number of 12th graders
reporting they had used marijuana jumped from 41.7 percent to 49.0 percent
during that same period. See Department of Health and Human Services,
Monitoring the Future: National Results on Adolescent
Drug Use, Overview of Key Findings (2001) (Table 1).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Additionally, the
School District in this case has presented specific evidence of
drug use at Tecumseh schools.
[**25]
Teachers testified that they had seen students who appeared to be under the influence
of drugs and that they had heard students speaking openly about using drugs.
See,
e.g., App. 72 (deposition of Dean Rogers);
id., at 115 (deposition of Sheila Evans). A drug dog found marijuana cigarettes
near the school parking lot. Police officers once found drugs or drug
paraphernalia in a car driven by a Future Farmers of America member. And the
school board president reported that people in the community were calling the
board to discuss the
"drug situation." See
115 F. Supp. 2d at 1285-1286. We decline to second- guess the finding of the District Court that
"viewing the evidence as a whole, it cannot be reasonably disputed that the [School District] was faced with a 'drug problem' when it adopted the Policy."
Id. at 1287.
Respondents consider the proffered evidence insufficient and argue that there
is no
"real and immediate interest" to justify a policy of
drug testing nonathletes. Brief for Respondents 32. We have recognized, however, that
"[a] demonstrated problem of
drug abuse . . . [is] not in all cases necessary to the validity of a
testing
[**26] regime," but that some showing does
"shore
[*2568] up an assertion of special need for a
suspicionless general search program."
Chandler v. Miller, 520 U.S. 305, 319 (1997). The
School District has provided sufficient evidence to shore up the need for its
drug testing program.
Furthermore, this Court has not required a particularized or pervasive
drug problem before allowing the government to conduct
suspicionless
drug testing. For instance, in
Von Raab the Court upheld the
drug testing of customs officials on a purely preventive basis, without any documented
history of
drug use by such officials. See
489 U.S. at 673. In response to the lack of evidence relating to
drug use, the Court noted generally that
"drug abuse is one of the most serious problems confronting our society today," and that programs to prevent and detect
drug use among customs officials could not be deemed unreasonable.
Id. at 674; cf.
Skinner, 489 U.S. at 607, and n. 1 (noting nationwide studies that identified on-the-job alcohol and
drug use by railroad employees). Likewise, the need to prevent and deter the
substantial harm of childhood
drug use
[**27] provides the necessary immediacy for a school
testing policy. Indeed, it would make little sense to require a
school district to wait for a substantial portion of its students to begin using drugs before
it was allowed to institute a
drug testing program designed to deter
drug use.
Given the nationwide epidemic of
drug use, and the evidence of increased
drug use in Tecumseh schools, it was entirely reasonable for the
School District to enact this particular
drug testing policy. We reject the Court of Appeals' novel test that
"any district seeking to impose a random
suspicionless
drug testing policy as a condition to participation in a school activity must demonstrate
that there is some identifiable
drug abuse problem among a sufficient number of those subject to the
testing, such that
testing that group of students will actually redress its
drug problem."
242 F.3d at 1278. Among other problems, it would be difficult to administer such a test. As we
cannot articulate a threshold level of
drug use that would suffice to justify a
drug testing program for
schoolchildren, we refuse to fashion what would in effect be a constitutional quantum of
drug use necessary to show a
[**28]
"drug problem."
Respondents also argue that the
testing of nonathletes does not implicate any safety concerns, and that safety is a
"crucial factor" in applying the special needs framework. Brief for Respondents 25-27. They
contend that there must be
"surpassing safety interests,"
Skinner,
supra, 489 U.S. at 634, or
"extraordinary safety and national security hazards,"
Von Raab,
supra, 489 U.S. at 674, in order to override the usual protections of the
Fourth Amendment. See Brief for Respondents 25-26. Respondents are correct that safety factors
into the special needs analysis, but the safety interest furthered by
drug testing is undoubtedly substantial for all children,
athletes and nonathletes alike. We know all too well that
drug use carries a variety of health risks for children, including death from overdose.
We also reject respondents' argument that
drug testing must presumptively be based upon an individualized reasonable suspicion of
wrongdoing because such a
testing regime would be less intrusive. See
id., at 12-16. In this context, the
Fourth Amendment does not require a finding of
individualized suspicion, see
supra, at 5, and we decline to impose such a requirement
[**29] on schools attempting to prevent and detect
drug use by students. Moreover, we question whether
testing based on
individualized suspicion in fact would be less intrusive. Such a regime would place an additional
burden on
public school
teachers who are already tasked with the difficult job of maintaining order and
discipline. A program of
individualized suspicion might unfairly target
[*2569] members of unpopular groups. The fear of lawsuits resulting from such targeted
searches may chill enforcement of the program, rendering it ineffective in
combating
drug use. See
Vernonia, 515 U.S., at 663-664 (offering similar reasons for why
"testing based on 'suspicion' of
drug use would not be better, but worse"). In any case, this Court has repeatedly stated that
reasonableness under the
Fourth Amendment does not require employing the least intrusive means, because
"the logic of such elaborate less-restrictive-alternative arguments could raise
insuperable barriers to the exercise of virtually all search-and-seizure powers."
Martinez-Fuerte, 428 U.S., at 556-557, n. 12; see also
Skinner,
supra, 489 U.S. at 624 ("[A] showing of
individualized suspicion is not a constitutional
[**30] floor, below which a search must be presumed unreasonable").
Finally, we find that
testing students who participate in
extracurricular activities is a reasonably effective means of addressing the School District's legitimate
concerns in preventing, deterring, and detecting
drug use. While in
Vernonia there might have been a closer fit between the
testing of
athletes and the trial court's finding that the
drug problem was
"fueled by the 'role model' effect of
athletes'
drug use," such a finding was not essential to the holding.
515 U.S. at 663; cf.
id., at 684-685 (O'CONNOR, J., dissenting) (questioning the extent of the
drug problem, especially as applied to
athletes).
Vernonia did not require the school to test the group of students most likely to use
drugs, but rather considered the constitutionality of the program in the
context of the public school's
custodial responsibilities. Evaluating the Policy in this context, we conclude that the
drug testing of Tecumseh students who participate in
extracurricular activities effectively serves the School District's interest in protecting the safety and
health of its students.
III
Within the limits
[**31] of the
Fourth Amendment, local school boards must assess the desirability of
drug testing
schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to
its wisdom. Rather, we hold only that Tecumseh's Policy is a reasonable means
of furthering the School District's important interest in preventing and
deterring
drug use among its
schoolchildren. Accordingly, we reverse the judgment of the Court of Appeals.
It is so ordered.
CONCUR: JUSTICE BREYER, concurring.
I agree with the Court that
Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), governs this case and requires reversal of the Tenth Circuit's decision. The
school's
drug testing program addresses a serious national problem by focusing upon demand, avoiding the use
of criminal or disciplinary sanctions, and relying upon professional counseling
and treatment. See App. 201-202. In my view, this program does not violate the
Fourth Amendment's prohibition of
"unreasonable searches and seizures." I reach this conclusion primarily for the reasons given by the Court, but I
would emphasize several underlying considerations, which I understand to be
consistent with the
[**32] Court's opinion.
I
In respect to the school's need for the
drug testing program, I would emphasize the following: First, the
drug problem in our Nation's schools is serious in terms of size, the kinds of drugs being
used, and the consequences of that use both for our children and the rest of
us. See,
e.g., White House Nat. Drug Control Strategy 25 (Feb. 2002) (drug abuse leads annually to about 20,000 deaths, $ 160 billion in economic costs);
Department of Health and Human Services, L. Johnston et al., Monitoring the
Future: National Results on
[*2570] Adolescent
Drug Use, Overview of Key Findings 5 (2001) (Monitoring the Future) (more than one-third
of all students have used illegal drugs before completing the eighth grade;
more than half before completing
high school);
ibid. (about 30% of all students use drugs other than marijuana
prior to completing
high school (emphasis added)); National Center on Addiction and Substance Abuse, Malignant
Neglect: Substance Abuse and America's Schools 15 (Sept. 2001) (Malignant
Neglect) (early use leads to later drug dependence); Nat. Drug Control
Strategy,
supra, at 1 (same).
Second, the government's emphasis upon supply side interdiction
[**33] apparently has not reduced teenage use in recent years. Compare R. Perl, CRS
Issue Brief for Congress, Drug Control: International Policy and Options CRS-1
(Dec. 12, 2001) (supply side programs account for 66% of the federal drug
control budget), with Partnership for a Drug-Free America, 2001 Partnership
Attitude Tracking Study: Key Findings 1 (showing increase in teenage
drug use in early 1990's, peak in 1997, holding steady thereafter); 2000-2001 PRIDE
National Summary: Alcohol, Tobacco, Illicit Drugs, Violence and Related
Behaviors, Grades 6 thru 12 (Apr. 5, 2002),
http://www.pridesurveys.com/us00.pdf (slight rise in
high school
drug use in 2000-2001); Monitoring the Future, Table 1 (lifetime prevalence of
drug use increasing over last 10 years).
Third,
public school systems must find effective ways to deal with this problem. Today's public
expects its schools not simply to teach the fundamentals, but
"to shoulder the burden of feeding students breakfast and lunch, offering before
and after school child care services, and providing medical and psychological
services," all in a school environment that is safe and encourages learning. Brief for
National School Boards Association
[**34] et al. as
Amici Curiae 3-4. See also
Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 681, 92 L. Ed. 2d 549, 106 S. Ct. 3159 (1986) (Schools
"'prepare pupils for citizenship in the Republic [and] inculcate the habits and
manners of civility as values in themselves conductive to happiness and as
indispensable to the practice of self-government in the community and the
nation'") (quoting C. Beard
& M. Beard, New Basic History of the United States 228 (1968)). The law itself
recognizes these responsibilities with the phrase
in loco parentis -- a phrase that draws its legal force primarily from the needs of younger
students (who here are necessarily grouped together with older
high school students) and which reflects, not that a child or adolescent lacks an interest
in
privacy, but that a child's or adolescent's school-related
privacy interest, when compared to the
privacy interests of an adult, has different dimensions. Cf.
Vernonia, supra, at 654-655. A
public school system that fails adequately to carry out its responsibilities may well see
parents send their children to private or parochial school instead -- with help
from the State. See
Zelman v. Simmons-Harris, 2002 U.S. LEXIS 4885
[**35]
ante, p. __.
Fourth, the program at issue here seeks to discourage demand for drugs by
changing the school's environment in order to combat the single most important
factor leading school children to take drugs, namely, peer pressure. Malignant
Neglect 4 (students
"whose friends use illicit drugs are more than 10 times likelier to use illicit
drugs than those whose friends do not"). It offers the adolescent a nonthreatening reason to decline his friend's
druguse invitations, namely, that he intends to play baseball, participate in
debate, join the band, or engage in any one of half a dozen useful,
interesting, and important activities.
II
In respect to the privacy-related burden that the
drug testing program imposes upon students, I would emphasize the following: First, not everyone
would agree
[*2571] with this Court's characterization of the privacy-related significance of
urine sampling as
"negligible."
Ante, at 9 (quoting
Vernonia, 515 U.S., at 658). Some find the procedure no more intrusive than a routine medical examination,
but others are seriously embarrassed by the need to provide a urine sample with
someone listening
"outside the closed restroom stall,"
[**36]
ante, at 8. When trying to resolve this kind of close question involving the
interpretation of constitutional values, I believe it important that the school
board provided an opportunity for the airing of these differences at public
meetings designed to give the entire community
"the opportunity to be able to participate" in developing the drug policy. App. 87. The board used this democratic,
participatory process to uncover and to resolve differences, giving weight to
the fact that the process, in this instance, revealed little, if any, objection
to the proposed
testing program.
Second, the
testing program avoids subjecting the entire school to
testing. And it preserves an option for a conscientious objector. He can refuse
testing while paying a price (nonparticipation) that is serious, but less severe than
expulsion from the school.
Third, a contrary reading of the Constitution, as requiring
"individualized suspicion" in this
public school context, could well lead schools to push the boundaries of
"individualized suspicion" to its outer limits, using subjective criteria that may
"unfairly target members of unpopular groups,"
ante, at 13, or leave those whose behavior is
[**37] slightly abnormal stigmatized in the minds of others. See Belsky, Random vs.
Suspicion-Based
Drug Testing in the Public Schools -- A Surprising Civil Liberties Dilemma,
27 Okla. City U. L. Rev. 1, 20-21 (forthcoming 2002) (listing court-approved factors justifying suspicion-based
drug testing, including tiredness, overactivity, quietness, boisterousness, sloppiness,
excessive meticulousness, and tardiness). If so, direct application of the
Fourth Amendment's prohibition against
"unreasonable searches and seizures" will further that Amendment's liberty-protecting objectives at least to the
same extent as application of the mediating
"individualized suspicion" test, where, as here, the
testing program is neither criminal nor disciplinary in nature.
* * *
I cannot know whether the school's
drug testing program will work. But, in my view, the Constitution does not prohibit the effort.
Emphasizing the considerations I have mentioned, along with others to which the
Court refers, I conclude that the school's
drug testing program, constitutionally speaking, is not
"unreasonable." And I join the Court's opinion.
DISSENT: JUSTICE O'CONNOR, with
[**38] whom JUSTICE SOUTER joins, dissenting.
I dissented in
Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), and continue to believe that case was wrongly decided. Because
Vernonia is now this Court's precedent, and because I agree that petitioners' program
fails even under the
balancing approach adopted in that case, I join JUSTICE GINSBURG's dissent.
JUSTICE GINSBURG, with whom JUSTICE STEVENS, JUSTICE O'CONNOR, and JUSTICE
SOUTER join, dissenting.
Seven years ago, in
Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), this Court determined that a school district's policy of randomly
testing the urine of its student
athletes for illicit drugs did not violate the
Fourth Amendment. In so ruling, the Court emphasized that
drug use
"increased the risk of sports-related injury" and that Vernonia's
athletes were the
"leaders" of an aggressive local
"drug culture" that had reached
"'epidemic proportions.'"
Id., at 649. Today,
[*2572] the Court relies upon
Vernonia
to permit a
school district with a
drug problem its superintendent repeatedly described as
"not . . . major," see App. 180, 186, 191, to test the urine of an
[**39] academic team member solely by reason of her participation in a nonathletic,
competitive
extracurricular activity -- participation associated with neither special dangers from, nor
particular predilections for,
drug use.
"The legality of a search of a student," this Court has instructed,
"should depend simply on the
reasonableness, under all the circumstances, of the search."
New Jersey v. T. L. O., 469 U.S. 325, 341 (1985). Although
"'special needs' inhere in the
public school context," see
ante, at 5 (quoting
Vernonia, 515 U.S., at 653), those needs are not so expansive or malleable as to render reasonable any
program of student
drug testing a
school district elects to install. The particular
testing program upheld today is not reasonable, it is capricious, even perverse:
Petitioners' policy targets for
testing a student population least likely to be at risk from illicit drugs and their
damaging effects. I therefore dissent.
I
A
A search unsupported by probable cause nevertheless may be consistent with the
Fourth Amendment
"when special needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement
[**40] impracticable."
Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal
quotation marks omitted). In
Vernonia,
this Court made clear that
"such 'special needs' . . . exist in the
public school context."
515 U.S. at 653 (quoting
Griffin, 483 U.S., at 873). The Court observed:
"While children assuredly do not 'shed their constitutional rights . . . at the
schoolhouse gate,'
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969), the nature of those rights is what is appropriate for children in school . . .
.
Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in
public schools than elsewhere; the 'reasonableness' inquiry cannot disregard the schools'
custodial and tutelary responsibility for children."
515 U.S. at 655-656 (other citations omitted).
The
Vernonia
Court concluded that a
public school district facing a disruptive and explosive
drug abuse problem sparked by members of its
athletic teams had
"special needs" that justified
suspicionless
testing of district
athletes as a condition of their
athletic participation.
[**41]
This case presents circumstances dispositively different from those of
Vernonia. True, as the Court stresses, Tecumseh students
participating in
competitive
extracurricular activities other than
athletics share two relevant characteristics with the
athletes of
Vernonia.
First, both groups attend public schools.
"Our decision in
Vernonia," the Court states,
"depended primarily upon the school's
custodial responsibility and authority."
Ante, at 7; see also
ante, at 3 (BREYER, J., concurring) (school districts act
in loco parentis). Concern for student health and safety is basic to the school's caretaking,
and it is undeniable that
"drug use carries a variety of health risks for children, including death from overdose."
Ante, at 13 (majority opinion).
Those risks, however, are present for
all
schoolchildren.
Vernonia cannot be read to endorse invasive and
suspicionless
drug testing of all students upon any evidence of
drug use, solely because drugs jeopardize the life and health of those who use them.
Many children, like many adults, engage in dangerous activities on their own
time; that the children are enrolled in school scarcely allows government
[**42] to monitor all
[*2573] such activities. If a student has a reasonable subjective
expectation of privacy in the personal items she brings to school, see
T. L. O., 469 U.S., at 338-339, surely she has a similar expectation regarding the chemical composition of her
urine. Had the
Vernonia
Court agreed that
public school attendance, in and of itself, permitted the State to test each student's blood
or urine for drugs, the opinion in
Vernonia
could have saved many words. See,
e.g.,
515 U.S. at 662 ("It must not be lost sight of that [the Vernonia
School District] program is directed . . . to
drug use by school
athletes, where the risk of immediate physical harm to the drug user or those with whom
he is playing his sport is particularly high.").
The second commonality to which the Court points is the voluntary character of
both interscholastic
athletics and other
competitive
extracurricular activities.
"By choosing to 'go out for the team,' [school
athletes] voluntarily subject themselves to a degree of regulation even higher than that
imposed on students generally."
Id., at 657. Comparably, the Court today observes,
"students who
[**43] participate in
competitive
extracurricular activities voluntarily subject themselves to" additional rules not applicable to other students.
Ante, at 7.
The comparison is enlightening. While
extracurricular activities are
"voluntary" in the sense that they are not required for graduation, they are part of the
school's educational program; for that reason, the petitioner (hereinafter
School District) is justified in expending public resources to make them available.
Participation in such activities is a key component of school life, essential
in reality for students applying to college, and, for all participants, a
significant contributor to the breadth and quality of the educational
experience. See Brief for Respondents 6; Brief for American Academy of
Pediatrics et al. as
Amici Curiae 8-9. Students
"volunteer" for
extracurricular pursuits in the same way they might volunteer for honors classes: They subject
themselves to additional requirements, but they do so in order to take full
advantage of the education offered them. Cf.
Lee v. Weisman, 505 U.S. 577, 595, 120 L. Ed. 2d 467, 112 S. Ct. 2649 (1992) ("Attendance may not be required by official decree, yet it is apparent that a
student
[**44] is not free to absent herself from the graduation exercise in any real sense
of the term 'voluntary,' for absence would require forfeiture of those
intangible benefits which have motivated the student through youth and all her
high school years.").
Voluntary participation in
athletics has a distinctly different dimension: Schools regulate student
athletes discretely because
competitive school sports by their nature require
communal
undress and, more important, expose students to physical risks that schools have a
duty to mitigate. For the very reason that schools cannot offer a program of
competitive
athletics without intimately affecting the
privacy of students,
Vernonia reasonably analogized school
athletes to
"adults who choose to participate in a closely regulated industry."
515 U.S. at 657 (internal
quotation marks omitted). Industries fall within the closely regulated category when the
nature of their activities requires substantial government oversight. See,
e.g.,
United States v. Biswell, 406 U.S. 311, 315, 32 L. Ed. 2d 87, 92 S. Ct. 1593-316 (1972). Interscholastic
athletics similarly require close safety and health regulation; a school's
choir, band, and academic
[**45] team do not.
In short,
Vernonia
applied, it did not repudiate, the principle that
"the legality of a search of a student should depend simply on the
reasonableness,
under all the circumstances, of the search."
T. L. O., 469 U.S., at 341 (emphasis added). Enrollment in a
public school, and election to participate in school activities beyond the bare minimum that
the curriculum requires, are indeed factors relevant
[*2574] to
reasonableness, but they do not on their own justify intrusive,
suspicionless searches.
Vernonia, accordingly, did not rest upon these factors; instead, the Court performed
what today's majority aptly describes as a
"fact-specific
balancing,"
ante, at 6.
Balancing of that order, applied to the facts now before the Court, should yield a
result other than the one the Court announces today.
B
Vernonia
initially considered
"the nature of the
privacy interest upon which the search [there] at issue intruded."
515 U.S. at 654. The Court emphasized that student
athletes' expectations of
privacy are necessarily attenuated:
"Legitimate
privacy expectations are even less with regard to student
athletes. School sports are not
[**46] for the bashful. They require 'suiting up' before each practice or event, and
showering and changing afterwards. Public school locker rooms, the usual sites
for these activities, are not notable for the
privacy they afford. The locker rooms in Vernonia are typical: No individual dressing
rooms are provided; shower heads are lined up along a wall, unseparated by any
sort of partition or curtain; not even all the toilet stalls have doors . . . .
There is an element of
communal
undress inherent in
athletic participation."
Id., at 657 (internal
quotation marks omitted).
Competitive
extracurricular activities other than
athletics, however, serve students of all manner: the modest and shy along with the bold
and uninhibited. Activities of the kind plaintiff-respondent Lindsay Earls
pursued --
choir, show
choir, marching band, and academic team -- afford opportunities to gain
self-assurance, to
"come to know faculty members in a less formal setting than the typical
classroom," and to acquire
"positive social supports and networks [that] play a critical role in periods of
heightened stress." Brief for American Academy of Pediatrics et al. as
Amici Curiae 13.
On "occasional [**47] out-of-town trips," students like Lindsay
Earls "must sleep together in communal settings and use communal bathrooms."
242 F.3d 1264, 1275 (CA10 2001). But those situations are hardly equivalent to
the routine communal undress associated with athletics; the School District
itself admits that when such trips occur, "public-like restroom facilities,"
which presumably include enclosed stalls, are ordinarily available for
changing, and that "more modest students" find other ways to maintain their
privacy.
After describing school
athletes' reduced
expectation of privacy, the
Vernonia
Court turned to
"the character
[**48] of the
intrusion . . . complained of."
Observing that students produce urine samples in a bathroom stall with a coach
or
teacher outside,
Vernonia
typed the
privacy interests compromised by the process of obtaining samples
"negligible."
Ibid. As to the required pretest disclosure of prescription medications taken, the
Court assumed that
"the
School District would have permitted [a student] to provide the requested information in a
confidential manner -- for example, in a sealed envelope delivered to the
testing lab."
Id., at 660. On that assumption, the Court concluded that Vernonia's
athletes faced no significant invasion of
privacy.
In this case, however, Lindsay Earls and her parents allege that the
School District handled personal information collected under the policy carelessly, with
little regard for its confidentiality. Information about
[*2575] students' prescription drug use, they assert, was routinely viewed by
Lindsay's
choir
teacher, who left files containing the information unlocked and unsealed, where others,
including students, could see them; and test results were given out to all
activity sponsors whether or not they
[**49] had a clear
"need to know." See Brief for Respondents 6, 24; App. 105-106, 131. But see
id.,
at 199 (policy requires that
"the medication list shall be submitted to the lab in a sealed and confidential
envelope and shall not be viewed by district employees").
In granting summary judgment to the
School District, the District Court observed that the District's
"Policy expressly provides for confidentiality of test results, and the Court
must assume that the confidentiality provisions will be honored."
115 F. Supp. 2d 1281, 1293 (WD Okla. 2000). The assumption is unwarranted. Unlike
Vernonia, where the District Court held a bench trial before ruling in the School
District's favor, this case was decided by the District Court on summary
judgment. At that stage, doubtful matters should not have been resolved in
favor of the judgment seeker. See
United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)
(per curiam)
("On summary judgment the inferences to be drawn from the underlying facts
contained in [affidavits, attached exhibits, and depositions] must be viewed in
the light most favorable to the party opposing the motion."); see also 10A
[**50] C. Wright, A. Miller,
& M. Kane, Federal Practice and Procedure
§ 2716, pp. 274-277 (3d ed. 1998).
Finally, the
"nature and immediacy of the governmental concern,"
Vernonia, 515 U.S., at 660, faced by the Vernonia
School District dwarfed that confronting Tecumseh administrators. Vernonia initiated its
drug testing policy in response to an alarming situation:
"[A] large segment of the student body, particularly those involved in
interscholastic
athletics, was in a state of rebellion . . . fueled by alcohol and
drug abuse as well as the student[s'] misperceptions about the drug culture."
Id., at 649 (internal
quotation marks omitted). Tecumseh, by contrast, repeatedly reported to the Federal
Government during the period leading up to the adoption of the policy that
"types of drugs [other than alcohol and tobacco] including controlled dangerous
substances, are present [in the schools] but have not identified themselves as
major problems at this time." 1998-1999 Tecumseh School's Application for Funds under the Safe and Drug-Free
Schools and Communities Program, reprinted at App. 191; accord, 1996- 1997
Application, reprinted at App. 186; 1995-1996 Application,
[**51] reprinted at App. 180. n2 As the Tenth Circuit observed,
"without a demonstrated
drug abuse problem among the group being tested, the efficacy of the District's solution
to its perceived problem is . . . greatly diminished."
242 F.3d at 1277.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 The Court finds it sufficient that there be evidence of
some
drug use in Tecumseh's schools:
"As we cannot articulate a threshold level of
drug use that would suffice to justify a
drug testing program for
schoolchildren, we refuse to fashion what would in effect be a constitutional quantum of
drug use necessary to show a 'drug problem.'"
Ante, at 12. One need not establish a bright-line
"constitutional quantum of
drug use" to recognize the relevance of the superintendent's reports characterizing
drug use among Tecumseh's students as
"not . . . [a] major problem," App. 180, 186, 191.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The
School District cites
Treasury Employees v. Von Raab, 489 U.S. 656, 673-674 (1989), in which this Court permitted random
drug testing of customs
[**52] agents absent
"any perceived
drug problem among Customs employees," given that
"drug abuse is one of the most serious problems confronting our society today." See also
Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 607, and n. 1 (1989) (upholding random drug and alcohol
testing of railway employees based upon industry-wide,
[*2576] rather than railway-specific, evidence of drug and alcohol problems). The
tests in
Von Raab and
Railway Labor Executives, however, were installed to avoid enormous risks to the lives and limbs of
others, not dominantly in response to the health risks to users invariably
present in any case of
drug use. See
Von Raab, 489 U.S., at 674 (drug use by customs agents involved in drug interdiction creates
"extraordinary safety and national security hazards");
Railway Labor Executives, 489 U.S., at 628 (railway operators
"discharge duties fraught with such risks of injury to others that even a
momentary lapse of attention can have disastrous consequences"); see also
Chandler v. Miller, 520 U.S. 305, 321 (1997) ("Von Raab must be read in its unique context").
Not only did the
[**53] Vernonia and Tecumseh districts confront drug problems of distinctly different
magnitudes, they also chose different solutions: Vernonia limited its policy to
athletes; Tecumseh indiscriminately subjected to
testing all participants in
competitive
extracurricular activities. Urging that
"the safety interest furthered by
drug testing is undoubtedly substantial for all children,
athletes and nonathletes alike,"
ante, at 13, the Court cuts out an element essential to the
Vernonia
judgment. Citing medical literature on the effects of combining illicit drug
use with physical exertion, the
Vernonia
Court emphasized that
"the particular drugs screened by [Vernonia's] Policy have been demonstrated to
pose substantial physical risks to
athletes."
515 U.S. at 662; see also
id., at 666 (GINSBURG, J., concurring) (Vernonia limited to
"those seeking to engage with others in team sports"). We have since confirmed that these special risks were necessary to our
decision in
Vernonia. See
Chandler, 520 U.S., at 317 (Vernonia
"emphasized the importance of deterring
drug use by
schoolchildren and the risk of injury a drug-using
[**54] student
athlete cast on himself and those engaged with him on the playing field"); see also
Ferguson v. Charleston, 532 U.S. 67, 87, 149 L. Ed. 2d 205, 121 S. Ct. 1281 (2001) (KENNEDY, J., concurring) (Vernonia's policy had goal of
"'deterring
drug use by our Nation's
schoolchildren,' and particularly by student-athletes, because 'the risk of immediate physical
harm to the drug user or those with whom he is playing his sport is
particularly high'") (quoting
Vernonia, 515 U.S., at 661-662).
At the margins, of course, no policy of
random
drug testing is perfectly tailored to the harms it seeks to address. The
School District cites the dangers faced by members of the band, who must
"perform extremely precise routines with heavy equipment and instruments in
close proximity to other students," and by Future Farmers of America, who
"are required to individually control and restrain animals as large as 1500
pounds." Brief for Petitioners 43. For its part, the United States acknowledges that
"the linebacker faces a greater risk of serious injury if he takes the field
under the influence of drugs than the drummer in the halftime band," but parries that
"the risk of injury to a student
[**55] who is under the influence of drugs while playing golf, cross country, or
volleyball (sports covered by the policy in
Vernonia) is scarcely any greater than the risk of injury to a student . . . handling a
1500-pound steer (as [Future Farmers of America] members do) or working with
cutlery or other sharp instruments (as [Future Homemakers of America] members
do)." Brief for United States as
Amicus Curiae
18. One can demur to the Government's view of the risks
drug use poses to golfers, cf.
PGA TOUR, Inc. v. Martin, 532 U.S. 661, 687, 149 L. Ed. 2d 904, 121 S. Ct. 1879 (2001) ("golf is a low intensity activity"), for golfers were surely as marginal among the linebackers, sprinters, and
basketball players targeted for
testing in Vernonia as steer-handlers are among the choristers, musicians, and
academic-team members
[*2577] subject to urinalysis in Tecumseh. n3 Notwithstanding nightmarish images of
out-of-control flatware, livestock run amok, and colliding tubas disturbing the
peace and quiet of Tecumseh, the great majority of students the
School District seeks to test in truth are engaged in activities that are not safety sensitive
to an unusual degree. There is a difference between imperfect
[**56] tailoring and no tailoring at all.
The Vernonia district, in sum, had two good reasons for
testing
athletes: Sports team members faced special health risks and they
"were the leaders of the drug culture."
Vernonia, 515 U.S., at 649. No similar reason, and no other tenable justification, explains Tecumseh's
decision to target for
testing all participants in every
competitive
extracurricular activity. See
Chandler, 520 U.S., at 319 (drug testing candidates for office held incompatible with
Fourth Amendment because program was
"not well designed to identify candidates who violate antidrug laws").
Nationwide, students who participate in
extracurricular activities are significantly less likely to develop substance abuse
[**57] problems than are their less-involved peers. See,
e.g., N. Zill, C. Nord, & L. Loomis, Adolescent Time Use, Risky
Behavior, and Outcomes 52 (1995) (tenth graders "who reported spending no time
in school-sponsored activities were . . . 49 percent more likely to have used
drugs" than those who spent 1-4 hours per week in such activities). Even if
students might be deterred from drug use in order to preserve their
extracurricular eligibility, it is at least as likely that other students
might forgo their extracurricular involvement in order to avoid detection of
their drug use. Tecumseh's policy thus falls short doubly if deterrence is its
aim: It 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.
To summarize, this case resembles
Vernonia
only in that the School Districts in both cases conditioned engagement in
activities outside the obligatory curriculum on random subjection to
urinalysis. The defining characteristics of the two programs, however, are
entirely dissimilar. The Vernonia district sought to test a subpopulation of
students distinguished by their reduced
expectation of privacy, their special susceptibility to drug-related injury, and their heavy
involvement with
drug use. The Tecumseh district seeks to test a much larger population associated with
none of these factors. It does so, moreover, without carefully safeguarding
student confidentiality and without regard to the program's untoward effects. A
program so sweeping is not sheltered by
Vernonia; its unreasonable reach renders it impermissible under the
Fourth Amendment.
II
In
Chandler, this Court inspected
"Georgia's requirement that candidates for state office pass a drug test"; we held that the requirement
"did not fit within the closely guarded category of constitutionally permissible
suspicionless searches."
520 U.S. at 309. Georgia's
testing prescription, the record showed,
[**59]
[*2578] responded to no
"concrete danger,"
id., at 319, was supported by no evidence of a particular problem, and targeted a group not
involved in
"high-risk, safety-sensitive tasks,"
id., at 321-322. We concluded:
"What is left, after close review of Georgia's scheme, is the image the State
seeks to project. By requiring candidates for public office to submit to
drug testing, Georgia displays its commitment to the struggle against
drug abuse . . . . The need revealed, in short, is symbolic, not 'special,' as that term
draws meaning from our case law."
Ibid.
Close review of Tecumseh's policy compels a similar conclusion. That policy was
not shown to advance the
"'special needs' [existing] in the
public school context [to maintain] . . . swift and informal disciplinary procedures . . .
[and] order in the schools,"
Vernonia, 515 U.S., at 653 (internal
quotation marks omitted). See
supra, at 5-6, 8-11. What is left is the School District's undoubted
purpose to heighten awareness of its abhorrence of, and strong stand against,
drug abuse. But the desire to augment communication of this message does not
trump the right of persons [**60] -- even of children within the
schoolhouse gate -- to be "secure in their persons . . . against unreasonable
searches and seizures."
In
Chandler, the Court referred to a pathmarking dissenting opinion in
which "Justice Brandeis recognized the importance of teaching by example: 'Our
Government is the potent, the omnipresent teacher. For good or for ill, it
teaches the whole people by its example.'" That wisdom should guide decisionmakers in the instant case: The government is
nowhere more a
teacher than when it runs a
public school.
It is a sad irony that the petitioning
School District seeks to justify its edict here by trumpeting
"the schools'
custodial and tutelary responsibility for children." In regulating an
athletic program or endeavoring to combat an exploding drug epidemic, a school's
custodial obligations may permit searches that would otherwise unacceptably abridge
students' rights. When
custodial duties are not ascendant, however, schools' tutelary obligations to their
students require them
[**61] to
"teach by example" by avoiding symbolic measures that diminish constitutional protections.
"That [schools] are educating the young for citizenship is reason for scrupulous
protection of Constitutional freedoms of the individual, if we are not to
strangle the free mind at its source and teach youth to discount important
principles of our government as mere platitudes."
West Virginia Bd. of Ed. v. Barnette (1943).
* * *
For the reasons stated, I would affirm the judgment of the Tenth Circuit
declaring the
testing policy at issue unconstitutional.