Student Drug Testing Expands – Again
By Martha Mccarthy

Concerns over student and staff safety in public schools are manifesting themselves in zero-tolerance policies and stringent disciplinary practices. One of the most controversial strategies is to subject students to urinalysis screening for drug use.

In June, 2002, the United States Supreme Court delivered an important decision, Board of Education v. Earls, in which it upheld a school district’s program that requires all middle and high school students to consent to urinalysis testing for drugs as a prerequisite to participation in extracurricular activities. Although in practice only students participating in competitive activities have been tested, the reach of the policy is far broader.

Reversing the Tenth Circuit Court of Appeals, the Supreme Court in Earls relied heavily on its 1995 decision, Vernonia School District 47J v. Acton, in which it upheld random drug testing of student athletes in public schools. In both cases the Court found no violation of the Fourth Amendment’s protection against unreasonable government searches. The Court in Earls concluded that students participating in extracurricular activities have a limited expectation of privacy as they voluntarily subject themselves to many of the same privacy invasions as do student athletes. The Court also noted that the intrusion on privacy is not significant, given that a faculty monitor waits outside the closed restroom stall while the student produces the urine sample. The Supreme Court was convinced of the need for the program, given the evidence presented of a nationwide drug epidemic and increased drug use in the school district itself. The Court further noted that a demonstrated drug abuse problem is not always necessary to justify implementation of a suspicion-less drug-testing program.

Even before the Earls decision, public school students could be subjected to urinalysis with reasonable suspicion of drug use. But courts have not spoken in unison as to what it takes to establish such reasonable suspicion. In 1999, the Seventh Circuit Court of Appeals in Willis v. Anderson did not find reasonable suspicion to test all students as a condition of returning to school if they had been suspended for various offenses, including fighting and truancy, as there was not a sufficient connection between those behaviors and drug use. The court further observed that unlike students who elect to participate in extracurricular activities, the students who have been suspended have not voluntarily consented to be drug tested.

The need to establish reasonable suspicion on an individual basis may decline if the Supreme Court continues to expand the category of students who can be subjected to blanket or random urinalysis. The majority of secondary students participate in at least one extracurricular activity, so they can now be tested for drug use. Although school districts have not implemented suspicion-less drug-testing programs for their entire student bodies, given the Supreme Court’s rulings in Acton and Earls, there may be movement in this direction.#

Martha McCarthy, Ph.D. is the Chancellor Professor, School of Education, Indiana University.

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