Transcript Drug Detection in Schools

Drug Detection in Schools
Class 16
CASE OF THE DAY
• Theodore v Delaware Valley School
District, 836 A.2d 76 (Pa. 2003)
• Facts
– Students and their parents sought to stop
suspicionless drug and alcohol testing
conducted both for afterschool activities and
for obtaining parking permits
• Initial and re-test provisions
– Lower court dismissed case, plaintiffs
appealed
• Plaintiffs claim that tests violated privacy rights,
claiming that the practice is not constitutional “as
a matter of law” (citing Vernonia and Earls.)
• Parents and students forced to sign a ‘contract’
authorizing drug testing as condition of
participation
• Protective, injury and deterrence rationales
articulated in policy
– Court finds that no statement of need is present in
policy
– School district claimed ‘general’ drug problem in
schools plus recent publicity about drugs in the county
including one arrest of a HS student
• School claimed that policy survives 4th
Amendment scrutiny:
– Intrusion was minimal
– Students had reduced expectation of privacy
– Students had notice of policy
– School district had valid interest in protecting
students’ health and safety
• Lower court agreed, said that this was
close enough to Veronia to be valid
• Lower court also ruled that policy did not
usurp parents’ rights
• Appellate court:
– privacy interests of students were lesser than interests of adults, but
privacy interests of targeted students were not less weighty than
other students
– No evidence of special need for “these students”
– Intrusions were not minimal
• Court distinguishes between body search and search involving
‘excretory’ functions
• The Science team is not the same as the Wrestling team
• Policy is perverse, targets those least likely to be engaged in prohibited
behaviors
– Notice was insufficient about when and why a search was to be
conducted
– Reasonableness test: balance of need v invasion
• But Earls (OK case) broadened Veronia ruling to include
‘past need’ as well as present – included ‘legitimate
governmental interest’ in definition of need. So, how can PA
court reject school policy?
• Afterall, hadn’t SCOTUS upheld testing even in
the absence of strong evidence of need?
• PA court says privacy trumps, including in
schools
– Reasonableness depends on reason for search and
means of effecting it
– Analogy to weapons case (In re FB) suggests that
drug issue falls short of ‘interest’ standard
– Method is not ‘efficacious’ to prevent drug use since
targets are not at high risk
– Privacy interests can be trumped, but no
demonstration of need for this broad target population
– “Slackers”??
• PA Supreme Court concurred on both issues
Searches in Schools Generally
• New Jersey v. T.L.O. (1985) gave broad
discretion to school officials to search students
– Diminished right to privacy in schools
• reduced 4th amendment requirements
– Way beyond “plain sight” exceptions to Fourth
Amendment searches, and broad interpretation of
reasonable suspicion, based more on “sufficient
probability”
– Greater deference to school officials searching for
drugs or weapons, but this assumes we understand
where the line stands between serious and minor
offenses
• Do 4th Amendment prohibitions apply to school officials?
What TLO Did Not Decide
• Exclusionary rule in school searches
• Privacy in lockers, desks or other personal
areas
• Individualized suspicion necessary for
search?
– See Lanes v State, for functions of probable
cause in search
The Search
• Was it reasonable?
– Possession of cigarettes legal?
– Does evidence of smoking trigger search of
purse?
– Plain sight exception valid?
– Lying as trigger for search?
– Is secondary search valid when triggered by
rolling papers? (search cascades are ok?)
Balancing Tests
• Privacy v Public Order
• Privacy v Protection
• Does the school’s interest vary by context of the search?
– Is the calculus of the search different when the search is
conducted in the school, in the school parking lot, in the locker
room after school, or when the Math Team practices?
– Does the balance of the school’s interests tip toward the school
and away from the student’s privacy in one of these circumstances
more than others? Why?
– Does “reasonableness” vary by context? (see Berman in NYULR)
• Does the Exclusionary Rule serve as a deterrent to school
authorities in constraining their search parameters and
discretion?
– Thompson v Carthage (1996, CA) says no
– Depends in part on whether and how notice is given
School Cases
• Doe v Renfroe (ND)
– Does any search itself violate 4th Amendment
(generalized suspicion in pursuit of valid
educational goal)
– Was use of dogs a search, and does 4th
Amendment apply, and if so, how does school
context mitigate 4th Amendment protections?
– Is special search of clothing pursuant to dog’s
alert a 4th Amendment violation?
– Is body search unreasonable intrusion based
on dog warning?
• Does prior evidence of drug use by
students justify search – and provide
context for generalized suspicion?
• Students have no expectation of privacy
with respect to lockers, but to clothing?
Purses (T.L.O.)? Body?
• The “mild inconvenience” of pocket search
or purse does not extend to body search
– Would this threshold have been neutralized is
student had overt signs of intoxication? Wads
of cash?
Drug Testing Generally
• Automobile drivers – Schmerber v California –
delay resulting from obtaining a warrant, etc.,
would result in destruction of evidence
(metabolizing alcohol)
• Railroad employees – Skinner v. Railway Labor
Executives Association – blood tests are so
routine in society that they no longer constitute
an intrusion but collection of urine samples is a
greater invasion of privacy
– Is fitness-for-duty test rationale justified? Or should it
be confined to those who have had railway
accidents? Parallels to schools?
• Private employers – Alaska 1977 legislation.
State legislation authorizes employers to
conduct urine screens, employers shielded from
tort liability if confidential data are disclosed
• Pregnant women – Ferguson v. City of
Charleston (South Carolina), Whitner –
mandatory testing of pregnant women in medical
facilities, doctor-patient privacy is diminished
because of threat to fetus if mother uses drugs
Doctrines Justifying
Broad School Search
• Individualized v. Generalized Suspicion
– Threshold questions – what estimate of prevalence
justifies mass search?
– Does presumption of broad probability influence weight
accorded to individual factors?
– What are the boundaries on individualized suspicion?
• Ind. suspicion need not arise from collective
suspicion
• And vice-versa (Desilets v Clearview Regional
Board of Ed’n, 1993, NJ)
• Reasonable suspicion is prevailing std., not
probable cause
Drug Test Cases
• Vernonia v Acton (1995) – student athletes constitute
“special needs” –
– suspicionless searches are ok if they serve “valid”
prophylactic purpose analogous to Skinner, customs
officials, drunk drivers, etc.
– These needs are “compelling”
– Degree of intrusion?
– What are special needs here? What is compelling
about them?
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Danger of physical harm during sports
Student athletes are leaders of drug culture
“State of rebellion fueled by drug and alcohol use”
Role models
• Pottawatomie County and Independent School District
92 v. Lindsay Earles and Lacey Earles (536 U.S. 822, 122
S.Ct. 2559) (2002)
– Suspicionless drug testing of students in all extracurricular
activity
• Extension of Vernonia logic, beyond initial harm concern
– Advances school district’s interests in preventing and deterring
drug abuse among its children
• S.C. ruled that an “emergency” need not be present to
justify policy, preventive rationale is sufficient
– but said that one was present anyway, relying heavily on
hearsay
• Earls argues that if she objects, she will suffer in college
competition from not having extracurricular activities on
her record
• So, is Theodore verdict correct?
The 48 Hours Story
• Reflect back, how can the school system defend
its search?
• Can the school system defend the offensive
tactic?
• Is there constitutional ground to consider the
harm developmentally of subjecting children to
these searches? What evidence?
• Is the search less objectionable as policy if no
guns or dogs?