Vernonia School District v. Acton Supreme Court of the United States Argued March 28, 1995. Decided June 26, 1995. Case Text Class Exercises

Justice SCALIA delivered the opinion of the Court.

The Student Athlete Drug Policy adopted by School District 47J in the town of Vernonia, Oregon, authorizes random urinalysis drug testing of students who participate in the District’s school athletics programs. We granted certiorari to decide whether this violates the Fourth and Fourteenth Amendments to the United States Constitution.

I

A

Petitioner Vernonia School District 47J (District) operates one high school and three grade schools in the logging community of Vernonia, Oregon. As elsewhere in small-town America, school sports play a prominent role in the town’s life, and student athletes are admired in their schools and in the community.

Drugs had not been a major problem in Vernonia schools. In the mid-to-late 1980’s, however, teachers and administrators observed a sharp increase in drug use. Students began to speak out about their attraction to the drug culture, and to boast that there was nothing the school could do about it. Along with more drugs came more disciplinary problems. Between 1988 and 1989 the number of disciplinary referrals in Vernonia schools rose to more than twice the number reported in the early 1980’s, and several students were suspended. Students became increasingly rude during class; outbursts of profane language became common.

Not only were student athletes included among the drug users but . . . athletes were the leaders of the drug culture. This caused the District’s administrators particular concern, since drug use increases the risk of sports-related injury. Expert testimony at the trial confirmed the deleterious effects of drugs on motivation, memory, judgment, reaction, coordination, and performance. The high school football and wrestling coach witnessed a severe sternum injury suffered by a wrestler, and various omissions of safety procedures and misexecutions by football players, all attributable in his belief to the effects of drug use.

Initially, the District responded to the drug problem by offering special classes, speakers, and presentations designed to deter drug use. It even brought in a specially trained dog to detect drugs, but the drug problem persisted. . . . At that point, District officials began considering a drug-testing program. They held a parent "input night" to discuss the proposed Student Athlete Drug Policy (Policy), and the parents in attendance gave their unanimous approval. The school board approved the Policy for implementation in the fall of 1989. Its expressed purpose is to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs.

B

The Policy applies to all students participating in interscholastic athletics. Students wishing to play sports must sign a form consenting to the testing and must obtain the written consent of their parents. Athletes are tested at the beginning of the season for their sport. In addition, once each week of the season the names of the athletes are placed in a "pool" from which a student, with the supervision of two adults, blindly draws the names of 10% of the athletes for random testing. Those selected are notified and tested that same day, if possible.

The student to be tested completes a specimen control form which bears an assigned number. Prescription medications that the student is taking must be identified by providing a copy of the prescription or a doctor’s authorization. The student then enters an empty locker room accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a urinal, remaining fully clothed with his back to the monitor, who stands approximately 12 to 15 feet behind the student. Monitors may (though do not always) watch the student while he produces the sample, and they listen for normal sounds of urination. Girls produce samples in an enclosed bathroom stall, so that they can be heard but not observed. After the sample is produced, it is given to the monitor, who checks it for temperature and tampering and then transfers it to a vial.

. . .

If a sample tests positive, a second test is administered as soon as possible to confirm the result. If the second test is negative, no further action is taken. If the second test is positive, the athlete’s parents are notified, and the school principal convenes a meeting with the student and his parents, at which the student is given the option of (1) participating for six weeks in an assistance program that includes weekly urinalysis, or (2) suffering suspension from athletics for the remainder of the current season and the next athletic season. The student is then retested prior to the start of the next athletic season for which he or she is eligible. The Policy states that a second offense results in automatic imposition of option (2); a third offense in suspension for the remainder of the current season and the next two athletic seasons.

C

In the fall of 1991, . . . James Acton, then a seventh-grader, signed up to play football at one of the District’s grade schools. He was denied participation, however, because he and his parents refused to sign the testing consent forms. The Actons filed suit.

II

The Fourth Amendment to the United States Constitution provides that the Federal Government shall not violate "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . ." We have held that the Fourteenth Amendment extends this constitutional guarantee to searches and seizures by state officers, including public school officials. [We have] held that state-compelled collection and testing of urine, such as that required by the Student Athlete Drug Policy, constitutes a "search" subject to the demands of the Fourth Amendment.

As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is "reasonableness." . . .

We have found . . . "special needs" to exist in the public-school context. There, the warrant requirement "would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed," and "strict adherence to the requirement that searches be based upon probable cause" would undercut "the substantial need of teachers and administrators for freedom to maintain order in the schools." The school search we approved in T.L.O., while not based on probable cause, was based on individualized suspicion of wrongdoing. As we explicitly acknowledged, however, " ‘the Fourth Amendment imposes no irreducible requirement of such suspicion.’" We have upheld suspicionless searches and seizures to conduct drug testing of railroad personnel involved in train accidents, to conduct random drug testing of federal customs officers who carry arms or are involved in drug interdiction and to maintain automobile checkpoints looking for illegal immigrants and contraband and drunk drivers.

III

The first factor to be considered is the nature of the privacy interest upon which the search here at issue intrudes. The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as "legitimate.". . .Central, in our view, to the present case 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.

Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them.

In T.L.O. we rejected the notion that public schools, like private schools, exercise only parental power over their students, which of course is not subject to constitutional constraints. . . . But while denying that the State’s power over schoolchildren is formally no more than the delegated power of their parents, T.L.O. did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. . . . [W]hile children assuredly do not "shed their constitutional rights . . . at the schoolhouse gate," 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. For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases. . . . Particularly with regard to medical examinations and procedures, therefore, "students within the school environment have a lesser expectation of privacy than members of the population generally."

Legitimate privacy expectations are even less with regard to student athletes. School sports are not 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. As the United States Court of Appeals for the Seventh Circuit has noted, there is "an element of ‘communal undress’ inherent in athletic participation."

There is an additional respect in which school athletes have a reduced expectation of privacy. By choosing to "go out for the team," they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally. In Vernonia’s public schools, they must submit to a preseason physical exam (James testified that his included the giving of a urine sample), they must acquire adequate insurance coverage or sign an insurance waiver, maintain a minimum grade point average, and comply with any "rules of conduct, dress, training hours and related matters as may be established for each sport by the head coach and athletic director with the principal’s approval." 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.

IV

Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of. We recognized in Skinner that collecting the samples for urinalysis intrudes upon "an excretory function traditionally shielded by great privacy." We noted, however, that the degree of intrusion depends upon the manner in which production of the urine sample is monitored. Under the District’s Policy, male students produce samples at a urinal along a wall. They remain fully clothed and are only observed from behind, if at all. Female students produce samples in an enclosed stall, with a female monitor standing outside listening only for sounds of tampering. These conditions are nearly identical to those typically encountered in public restrooms, which men, women, and especially school children use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.

The other privacy-invasive aspect of urinalysis is, of course, the information it discloses concerning the state of the subject’s body, and the materials he has ingested. In this regard it is significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic. Moreover, the drugs for which the samples are screened are standard, and do not vary according to the identity of the student. And finally, the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function.

. . .

The General Authorization Form that [the Actons] refused to sign, which refusal was the basis for James’s exclusion from the sports program, said only . . . : "I . . . authorize the Vernonia School District to conduct a test on a urine specimen which I provide to test for drugs and/or alcohol use. I also authorize the release of information concerning the results of such a test to the Vernonia School District and to the parents and/or guardians of the student." While the practice of the District seems to have been to have a school official take medication information from the student at the time of the test, that practice is not set forth in, or required by, the Policy, which says simply: "Student athletes who . . . are or have been taking prescription medication must provide verification (either by a copy of the prescription or by doctor’s authorization) prior to being tested." It may well be that, if and when James was selected for random testing at a time that he was taking medication, the School District would have permitted him to provide the requested information in a confidential manner--for example, in a sealed envelope delivered to the testing lab. Nothing in the Policy contradicts that, and when [the Actons] choose, in effect, to challenge the Policy on its face, we will not assume the worst. Accordingly, we reach the same conclusion as in Skinner: that the invasion of privacy was not significant.

V

Finally, we turn to consider the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it. . . . [T]he District Court held that because the District’s program also called for drug testing in the absence of individualized suspicion, the District "must demonstrate a ‘compelling need’ for the program." . . . It is a mistake, however, to think that the phrase "compelling state interest," in the Fourth Amendment context, describes a fixed, minimum quantum of governmental concern, so that one can dispose of a case by answering in isolation the question: Is there a compelling state interest here? Rather, the phrase describes an interest which appears important enough to justify the particular search at hand, in light of other factors which show the search to be relatively intrusive upon a genuine expectation of privacy. Whether that relatively high degree of government concern is necessary in this case or not, we think it is met.

That the nature of the concern is important--indeed, perhaps compelling--can hardly be doubted. Deterring drug use by our Nation’s schoolchildren is at least as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs. . . . School years are the time when the physical, psychological, and addictive effects of drugs are most severe. "Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound"; "children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor." And of course . . . the educational process is disrupted. In the present case, moreover, 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. Finally, it must not be lost sight of that this program is directed more narrowly 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. Apart from psychological effects, which include impairment of judgment, slow reaction time, and a lessening of the perception of pain, the particular drugs screened by the District’s Policy have been demonstrated to pose substantial physical risks to athletes.

As for the immediacy of the District’s concerns: We are not inclined to question" . . . the District Court’s conclusion that "a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion," that "[d]isciplinary actions had reached ‘epidemic proportions,’" and that "the rebellion was being fueled by alcohol and drug abuse as well as by the student’s misperceptions about the drug culture.". . .

As to the efficacy of this means for addressing the problem: It seems to us self-evident that a drug problem largely fueled by the "role model" effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs. . . .

VI

Taking into account all the factors we have considered above--the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search--we conclude Vernonia’s Policy is reasonable and hence constitutional.

. . .

Justice GINSBURG, concurring.

The Court constantly observes that the School District’s drug-testing policy applies only to students who voluntarily participate in interscholastic athletics. Correspondingly, the most severe sanction allowed under the District’s policy is suspension from extracurricular athletic programs. I comprehend the Court’s opinion as reserving the question whether the District, on no more than the showing made here, constitutionally could impose routine drug testing not only on those seeking to engage with others in team sports, but on all students required to attend school.

Justice O’CONNOR, with whom Justice STEVENS and Justice SOUTER join, dissenting.

The population of our Nation’s public schools, grades 7 through 12, numbers around 18 million. By the reasoning of today’s decision, the millions of these students who participate in interscholastic sports, an overwhelming majority of whom have given school officials no reason whatsoever to suspect they use drugs at school, are open to an intrusive bodily search.

. . .

. . . For most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment. . . . I dissent.

I

A

. . .

. . .[W]hat the Framers of the Fourth Amendment most strongly opposed, with limited exceptions wholly inapplicable here, were general searches--that is, searches by general warrant, by writ of assistance, by broad statute, or by any other similar authority.

. . .

Perhaps most telling of all, as reflected in the text of the Warrant Clause, the particular way the Framers chose to curb the abuses of general warrants--and by implication, all general searches--was not to impose a novel "evenhandedness" requirement; it was to retain the individualized suspicion requirement contained in the typical general warrant, but to make that requirement meaningful and enforceable, for instance, by raising the required level of individualized suspicion to objective probable cause. . . .

. . . Protection of privacy, not evenhandedness, was then and is now the touchstone of the Fourth Amendment.

. . . [C]ertainly monitored urination combined with urine testing is more intrusive than some personal searches we have said trigger Fourth Amendment protections in the past. Finally, the collection and testing of urine is, of course, a search of a person, one of only four categories of suspect searches the Constitution mentions by name.

Thus, it remains the law that the police cannot, say, subject to drug testing every person entering or leaving a certain drug-ridden neighborhood in order to find evidence of crime. And this is true even though it is hard to think of a more compelling government interest than the need to fight the scourge of drugs on our streets and in our neighborhoods. . . .

. . .

. . . The great irony of this case is that most (though not all) of the evidence the District introduced to justify its suspicionless drug-testing program consisted of first or second-hand stories of particular, identifiable students acting in ways that plainly gave rise to reasonable suspicion of in-school drug use and thus that would have justified a drug-related search under our T.L.O. decision. Small groups of students, for example, were observed by a teacher "passing joints back and forth" across the street at a restaurant before school and during school hours. Another group was caught skipping school and using drugs at one of the students’ houses. Several students actually admitted their drug use to school officials (some of them being caught with marijuana pipes). One student presented himself to his teacher as "clearly obviously inebriated" and had to be sent home. Still another was observed dancing and singing at the top of his voice in the back of the classroom; when the teacher asked what was going on, he replied, "Well, I’m just high on life." To take a final example, on a certain road trip, the school wrestling coach smelled marijuana smoke in a hotel room occupied by four wrestlers, an observation that (after some questioning) would probably have given him reasonable suspicion to test one or all of them.

In light of all this evidence of drug use by particular students, there is a substantial basis for concluding that a vigorous regime of suspicion-based testing would have gone a long way toward solving Vernonia’s school drug problem while preserving the Fourth Amendment rights of James Acton and others like him. . . . In these circumstances, the Fourth Amendment dictates that a mass, suspicionless search regime is categorically unreasonable.

I recognize that a suspicion-based scheme, even where reasonably effective in controlling in-school drug use, may not be as effective as a mass, suspicionless testing regime. In one sense, that is obviously true just as it is obviously true that suspicion-based law enforcement is not as effective as mass, suspicionless enforcement might be. "But there is nothing new in the realization" that Fourth Amendment protections come with a price. Indeed, the price we pay is higher in the criminal context, given that police do not closely observe the entire class of potential search targets (all citizens in the area) and must ordinarily adhere to the rigid requirements of a warrant and probable cause.

The principal counter argument to all this, central to the Court’s opinion, is that the Fourth Amendment is more lenient with respect to school searches. That is no doubt correct, for, as the Court explains, schools have traditionally had special guardian-like responsibilities for children that necessitate a degree of constitutional leeway. . . .

The instant case, however, asks whether the Fourth Amendment is even more lenient than that, i.e., whether it is so lenient that students may be deprived of the Fourth Amendment’s only remaining, and most basic, categorical protection: its strong preference for an individualized suspicion requirement, with its accompanying antipathy toward personally intrusive, blanket searches of mostly innocent people. It is not at all clear that people in prison lack this categorical protection, and we have said "we are not yet ready to hold that the schools and the prisons need be equated for purposes of the Fourth Amendment."

For the contrary position, the Court relies on cases such as T.L.O., Ingraham v. Wright, and Goss v. Lopez. But I find the Court’s reliance on these cases ironic. If anything, they affirm that schools have substantial constitutional leeway in carrying out their traditional mission of responding to particularized wrongdoing.

By contrast, intrusive, blanket searches of school children, most of whom are innocent, for evidence of serious wrongdoing are not part of any traditional school function of which I am aware. Indeed, many schools, like many parents, prefer to trust their children unless given reason to do otherwise. As James Acton’s father said on the witness stand, "[suspicionless testing] sends a message to children that are trying to be responsible citizens . . . that they have to prove that they’re innocent . . ., and I think that kind of sets a bad tone for citizenship."

. . .

II

. . .

. . . I find unreasonable the school’s choice of student athletes as the class to subject to suspicionless testing. . . .

. . . [I]t seems to me that the far more reasonable choice would have been to focus on the class of students found to have violated published school rules against severe disruption in class and around campus--disruption that had a strong nexus to drug use, as the District established at trial. Such a choice would share two of the virtues of a suspicion-based regime: testing dramatically fewer students, tens as against hundreds, and giving students control, through their behavior, over the likelihood that they would be tested. Moreover, there would be a reduced concern for the accusatory nature of the search, because the Court’s feared "badge of shame," would already exist, due to the antecedent accusation and finding of severe disruption.

III

It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis. But we must also stay mindful that not all government responses to such times are hysterical overreactions; some crises are quite real, and when they are, they serve precisely as the compelling state interest that we have said may justify a measured intrusion on constitutional rights. The only way for judges to mediate these conflicting impulses is to do what they should do anyway: stay close to the record in each case that appears before them, and make their judgments based on that alone. Having reviewed the record here, I cannot avoid the conclusion that the District’s suspicionless policy of testing all student-athletes sweeps too broadly, and too imprecisely, to be reasonable under the Fourth Amendment.

Exercise 5.2. What if the Vernonia School District’s policy of random drug-testing of student athletes does not work to reduce drug use in the student body and the principal decides next to randomly test (a) student council candidates; (b) students trying out for the cheerleading squad; (c) students who fail classes; (d) students on the honor roll; (e) sports coaches, student government advisers, and science teachers? Do you think that testing each of these categories of people is consistent with the Fourth Amendment? Consider the government’s interest in the search and the level of privacy intrusion. What are the pros and cons of drug-testing each group?

Exercise 5.3. In determining whether or not a search is "reasonable" under New Jersey v. T.L.O., the Court conducts a two-part analysis. First, the Court determines whether the search was "justified at its inception"--that is, whether there were reasonable grounds for suspecting the search would turn up evidence that the student was violating either the law or school rules. Second, the Court asks whether the search was reasonably related in scope to the purpose of the search and not overly intrusive in light of the student’s age and sex and the nature of the infraction. In order to analyze this second issue, the Court must balance the importance of the government’s interest against the level of violation of privacy rights.

Draw a line down the middle of a piece of paper and make two columns. At the top of the left-hand column, write "Level of Privacy Intrusion"; at the top of the right-hand column, write "Nature of Government Interest." To do a balancing test, you must compare the severity of the privacy intrusion against the weight of the government interest. (For example, in Vernonia, what is the nature of intrusion on privacy interests? What is the government’s interest in the drug test?)

Read through the following list of procedures established at various public high schools facing the problems of drug and alcohol use among students. In the "Intrusion" column of your chart, list what you think the intrusion is for each procedure and rank how intrusive you think the procedure is on a scale of 1 to 10 (10 being the highest) and why. In the "Government Interest" column, write down what you think the government interest is in the drug-testing policy and how high that interest ranks on a scale of 1 to 10. If you think one example is not a "search" at all, write it on your chart and explain why.

(a) Students entering the building at Madison High must walk through a metal detector.

(b) Students at Hamilton High must walk through a metal detector and put their book bags through an x-ray machine before entering the building.

(c) Jefferson High reserves the right to "tap" all the pay phones in the hallways of the school and listen in on conversations. Students are informed of this at the beginning of each school year.

(d) Martin Luther King High has a counselor available to talk to students about their problems. Any teacher can "sign out" from the counselor’s office student files that contain notes kept on each student’s sessions.

(e) Big City High has video cameras in the hallways filming the rows of student lockers. If students act suspiciously around their lockers, the principal searches their lockers for drugs or weapons. Videotapes are routinely turned over to the police.

(f) Small City High conducts random locker searches of all boys’ lockers and has removed all doors from the toilet stalls in the girls’ bathroom.

(g) At Kaynine High, trained police dogs sniff outside student lockers, and school officials open and search lockers when the dogs bark and alert teachers to the presence of narcotics.

(h) Southeast High has trained police dogs at school doorways sniffing each student’s backpack or bookbag as students enter the building.

(i) Detection High places young-looking undercover police officers into the senior class to befriend students and uncover information about drug dealing and about students obtaining abortions without the parental consent required under state law. They turn in several of their "friends."

(j) As a requirement for advancing to the next grade at J. Edgar Hoover High, all students must take a polygraph ("lie-detector") test and answer one question: "Did you cheat on any of your final exams this year?"

(k) At Thurgood Marshall High’s homecoming dance, all of the chaperones carry an alcohol tester. Throughout the dance, the chaperones may approach any student and have him or her blow into the machine. If alcohol is detected, a red light goes on and the student’s parents are called to take the student home.

(l) At John Marshall High’s homecoming dance, students who test positive using the same device are expelled.

Sometimes school authorities trying to stop drugs go too far for the federal courts, which are generally sympathetic to the need for sweeping security measures. In the following case we see both tendencies at work: the Seventh Circuit Court of Appeals upholds a massive dog-sniffing drug search of the entire student body at an Indiana junior and senior high school but firmly draws the line at a strip search of a thirteen-year-old student. Does this decision let the police go too far, make them stop too soon, or get the balance about right?