OCTOBER TERM, 2001
Syllabus
BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT NO. 92 OF
POTTAWATOMIE COUNTY ET AL.
v. EARLS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No. 01-332. Argued March 19, 2002-Decided June 27, 2002
The Student Activities Drug Testing Policy (Policy) adopted by
the Tecumseh, Oklahoma, School District (School District) requires
all middle and high school students to consent to urinalysis
testing for drugs 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 (OSSAA). Respondent high
school students and their parents brought this 42 U. S. C. § 1983
action for equitable relief, alleging that the Policy violates the
Fourth Amendment. Applying
Vernonia School Dist. 47J v.
Acton, 515 U.
S. 646, in which this Court upheld the suspicionless drug
testing of school athletes, the District Court granted the School
District summary judgment. The Tenth Circuit reversed, holding that
the Policy violated the Fourth Amendment. It concluded that before
imposing a suspicionless drug testing program a school must
demonstrate some identifiable drug abuse problem among a sufficient
number of those tested, such that testing that group will actually
redress its drug problem. The court then held that the School
District had failed to demonstrate such a problem among Tecumseh
students participating in competitive extracurricular
activities.
Held: Tecumseh's Policy is a reasonable means of
furthering the School District's important interest in preventing
and deterring drug use among its schoolchildren and does not
violate the Fourth Amendment. Pp. 828-838.
(a) Because searches by public school officials implicate Fourth
Amendment interests, see,
e. g., Vernonia, 515
U. S., at 652, the Court must review the Policy for
"reasonableness," the touchstone of constitutionality. In contrast
to the criminal context, a probable-cause finding is unnecessary in
the public school context because it would unduly interfere with
maintenance of the swift and informal disciplinary procedures that
are needed. In the public school context, a search may be
reasonable when supported by "special needs" beyond the normal need
for law enforcement. Because the "reasonableness" inquiry cannot
dis-
823
regard the schools' custodial and tutelary responsibility for
children,
id., at 656, a finding of individualized suspicion
may not be necessary. In upholding the suspicionless drug testing
of athletes, the
Vernonia Court conducted a fact-specific
balancing of the intrusion on the children's Fourth Amendment
rights against the promotion of legitimate governmental interests.
Applying
Vernonia's principles to the somewhat different
facts of this case demonstrates that Tecumseh's Policy is also
constitutional. Pp. 828-830.
(b) Considering first the nature of the privacy interest
allegedly compromised by the drug testing, see
Vernonia, 515
U. S., at 654, the Court concludes that the students affected by
this Policy have a limited expectation of privacy. 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
Vernonia athletes. This distinction, however, was not
essential in
Vernonia, which depended primarily upon the
school's custodial responsibility and authority. See,
e.
g., id., at 665. In any event, students who participate in
competitive extracurricular activities voluntarily subject
themselves to many of the same intrusions on their privacy as do
athletes. Some of these clubs and activities require occasional
off-campus travel and communal undress, and all of them have their
own rules and requirements that do not apply to the student body as
a whole. Each of them must abide by OSSAA rules, and a faculty
sponsor monitors students for compliance with the various rules
dictated by the clubs and activities. Such regulation further
diminishes the schoolchildren's expectation of privacy. Pp.
830-832.
(c) Considering next the character of the intrusion imposed by
the Policy, see
Vernonia, 515 U. S., at 658, the Court
concludes that the invasion of students' privacy is not
significant, given the minimally intrusive nature of the sample
collection and the limited uses to which the test results are put.
The degree of intrusion caused by collecting a urine sample depends
upon the manner in which production of the sample is monitored.
Under the Policy, a faculty monitor waits outside the closed
restroom stall for the student to produce a sample and must listen
for the normal sounds of urination to guard against tampered
specimens and ensure an accurate chain of custody. This procedure
is virtually identical to the "negligible" intrusion approved in
Vernonia, ibid. The Policy clearly requires that test
results be kept in confidential files separate from a student's
other records and released to school personnel only on a "need to
know" basis. Moreover, the test results are not turned over to any
law enforcement authority. Nor do the test
824
Syllabus
results lead to the imposition of discipline or have any
academic consequences. Rather, the only consequence of a failed
drug test is to limit the student's privilege of participating in
extracurricular activities. Pp. 832-834.
(d) Finally, considering 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, the Court concludes
that the Policy effectively serves the School District's interest
in protecting its students' safety and health. Preventing drug use
by schoolchildren is an important governmental concern. See
id., at 661-662. The health and safety risks identified in
Vernonia apply with equal force to Tecumseh's children. The
School District has also presented specific evidence of drug use at
Tecumseh schools. Teachers testified that they saw students who
appeared to be under the influence of drugs and heard students
speaking openly about using drugs. A drug dog found marijuana near
the school parking lot. Police found drugs or drug paraphernalia in
a car driven by an extracurricular club member. And the school
board president reported that people in the community were calling
the board to discuss the "drug situation." Respondents consider the
proffered evidence insufficient and argue that there is no real and
immediate interest to justify a policy of drug testing nonathletes.
But a demonstrated drug abuse problem is not always necessary to
the validity of a testing regime, even though some showing of a
problem does shore up an assertion of a special need for a
suspicionless general search program.
Chandler v.
Miller, 520 U.
S. 305, 319. The School District has provided sufficient
evidence to shore up its program. Furthermore, this Court has not
required a particularized or pervasive drug problem before allowing
the government to conduct suspicionless drug testing. See,
e.
g., Treasury Employees v.
Von Raab, 489 U. S. 656, 673-674.
The need to prevent and deter the substantial harm of childhood
drug use provides the necessary immediacy for a school testing
policy. 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. Pp. 834-838.
242 F.3d
1264, reversed.
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,
post, p. 838.
O'CONNOR, J., filed a dissenting opinion, in which SOUTER, J.,
joined,
post, p. 842. GINSBURG, J., filed a dissent-
825
ing opinion, in which STEVENS, O'CONNOR, and SOUTER, JJ.,
joined,
post, p.842.
Linda Maria Meoli argued the cause for petitioners.
With her on the briefs were Stephanie
J. Mather and
William P. Bleakley.
Deputy Solicitor General Clement argued the cause for the United
States as amicus curiae urging reversal. With him on the brief were
Solicitor General Olson, Assistant Attorney General McCallum,
Gregory G. Garre, Leonard Schaitman, and Lowell v: Sturgill,
Jr.
Graham A. Boyd argued the cause for respondents. With him
on the brief was
Steven R. Shapiro. *
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.
* A brief of
amici curiae urging reversal was filed for
the Washington Legal Foundation et al. by
Richard Willard,
Daniel J. Popeo, and
Richard A. Samp.
Briefs of
amici curiae urging affirmance were filed for
the American Academy of Pediatrics et al. by
David T.
Goldberg and
Daniel N. Abrahamson; for Jean Burkett et
al. by
Craig Goldblatt; for the Juvenile Law Center et al.
by
Marsha L. Levick; for the National Association of
Criminal Defense Lawyers et al. by
John Wesley Hall, Jr., Lisa
B. Kemler, Timothy Lynch, and
Kevin B. Zeese; and for
the Rutherford Institute by
John W Whitehead, Steven H.
Aden, and
Jamin B. Raskin.
Briefs of
amici curiae were filed for the Drug-Free
Schools Coalition et al. by
David G.
Evans; for the
National School Boards Association et al. by
Julie K. Underwood,
Christopher B. Gilbert, and
Thomas E. Wheeler; and for
Professor Akhil Reed Amar et al. by
Julia M. Carpenter.
826
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 America, Future Homemakers of
America, band, choir, pom pon, cheerleading, and athletics. Under
the Policy, students are required to take 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 their suit, both respondents attended Tecumseh
High School. Respondent Lindsay Earls was a member of the show
choir, the marching band, the Academic Team, and the National Honor
Society. Respondent Daniel James sought to participate in the
Academic Team.1 Together with their parents, Earls and James
brought a Rev.
1 The District Court noted that the School District's
allegations concerning Daniel James called his standing to sue into
question because his failing grades made him ineligible to
participate in any interscholastic competition. See 115 F. Supp. 2d
1281, 1282, n. 1 (WD Okla. 2000). The court noted, however, that
the dispute need not be resolved because Lindsay Earls had
standing, and therefore the court was required to address the
constitutionality of the drug testing policy. See
ibid.
Because we are likewise satisfied that Earls has standing, we need
not address whether James also has standing.
827
Stat. § 1979,42 U. S. C. § 1983, action against the School
District, challenging the Policy both on its face and as applied to
their participation in extracurricular activities.2 They alleged
that the Policy violates the Fourth Amendment as incorporated by
the Fourteenth Amendment and requested injunctive and declarative
relief. They also argued that the School District failed to
identify a special need for testing students who participate in
extracurricular activities, and that the "Drug Testing Policy
neither addresses a proven problem nor promises to bring any
benefit to students or the school." App. 9.
Applying the principles articulated in
Vernonia School
Dist. J,7J v.
Acton, 515 U. S. 646 (1995), in
which we upheld the suspicionless drug testing of school athletes,
the United States District Court for the Western District of
Oklahoma rejected respondents' claim that the Policy was
unconstitutional and granted summary judgment to the School
District. The court noted that "special needs" exist in the public
school context and that, although the School District did "not show
a drug problem of epidemic proportions," there was a history of
drug abuse starting in 1970 that presented "legitimate cause for
concern." 115 F. Supp. 2d 1281, 1287 (2000). The District Court
also held that the Policy was effective because "[i]t can scarcely
be disputed that the drug problem among the student body is
effectively addressed by making sure that the large number of
students participating in competitive, extracurricular activities
do not use drugs."
Id., at 1295.
The United States Court of Appeals for the Tenth Circuit
reversed, holding that the Policy violated the Fourth Amendment.
The Court of Appeals agreed with the District Court that the Policy
must be evaluated in the "unique environment of the school
setting," but reached a different conclu-
2 The respondents did not challenge the Policy either as it
applies to athletes or as it provides for drug testing upon
reasonable, individualized suspicion. See App. 28.
828
sion as to the Policy's constitutionality.
242
F.3d 1264, 1270 (2001). Before imposing a suspicionless drug
testing program, the Court of Appeals concluded that a school "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."
Id., at 1278. The Court of Appeals then held that
because the School District failed to demonstrate such a problem
existed among Tecumseh students participating in competitive
extracurricular activities, the Policy was unconstitutional. We
granted certiorari, 534 U. S. 1015 (2001), and now reverse.
II
The Fourth Amendment to the United States Constitution protects
"[t]he 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. See
Vernonia, supra, at 652; cf.
New Jersey v.
T. L.
0., 469 U. S.
325, 334 (1985). We must therefore review the School District's
Policy for "reasonableness," which is the touchstone of the
constitutionality of a governmental search.
In the criminal context, reasonableness usually requires a
showing of probable cause. See,
e. g., Skinner v.
Railway
Labor Executives' Assn., 489 U. S. 602, 619
(1989). 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."
Treasury Employees v.
Von Raab, 489 U. S. 656, 667-668
(1989) (internal quotation marks and citations omitted) (collecting
cases). 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 infor-
829
mal disciplinary procedures [that are] needed.'"
Vernonia,
supra, at 653 (quoting
T. L. 0., supra, 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
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 (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
(1976). "[I]n 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, at 668; see also
Skinner, supra, 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 for law enforcement, make the warrant and probable-cause
requirement impracticable.'"
Griffin v.
Wisconsin,
483 U. S. 868,
873 (1987) (quoting
T. L. 0., supra, at 351 (Blackmun, J.,
concurring in judgment)); see also
Vernonia, supra, at 653;
Skinner, supra, at 619.
Significantly, this Court has previously held that "special
needs" inhere in the public school context. See
Vernonia,
supra, at 653;
T. L. 0., 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
(1969), "Fourth
830
Amendment rights ... are different in public schools than
elsewhere; the 'reasonableness' inquiry cannot disregard the
schools' custodial and tutelary responsibility for children."
Vernonia, 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 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
id., 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. ("[W]hen the government 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
831
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.
0., 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 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. 3
In any event, students who participate in competitive
extracurricular activities voluntarily subject themselves to many
of the same intrusions on their privacy as do athletes.4
3JUSTICE GINSBURG argues that
Vernonia School Dist. 47J
v.
Acton, 515
U. S. 646 (1995), depended on the fact that the drug testing
program applied only to student athletes. But even the passage
cited by the dissent manifests the supplemental nature of this
factor, as the Court in
Vernonia stated that "[l]egitimate
privacy expectations are
even less with regard to student
athletes." See
post, at 847 (quoting
Vernonia, 515 U.
S., at 657) (emphasis added). In upholding the drug testing program
in
Vernonia, we considered the school context "[c]entral"
and "[t]he most significant element."
Id., at 654, 665. This
hefty weight on the side of the school's balance applies with
similar force in this case even though we undertake a separate
balancing with regard to this particular program.
4JUSTICE GINSBURG'S observations with regard to extracurricular
activities apply with equal force to athletics. See
post, at
845 ("Participation in such [extracurricular] 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").
832
Some of these clubs and activities require occasional offcampus
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, 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 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."
Vernonia, supra, at 658.
Under the Policy, a faculty monitor waits outside the closed
restroom stall for the student to produce 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
833
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 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 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 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
834
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 that it has only grown worse.5 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.
Additionally, the School District in this case has presented
specific evidence of drug use at Tecumseh schools. Teachers
testified that they had seen students who appeared to be
5 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).
835
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 12851286. We decline to second-guess the
finding of the District Court that "[v]iewing 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 regime," but that some showing does "shore 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
836
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 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 "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, at 634, or "extraordinary
safety and national security hazards,"
Von Raab, supra, 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
837
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 829, and we decline to impose such a
requirement 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 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 "[t]he logic of such
elaborate less-restrictivealternative 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, at 624 ("[A]
showing of individualized suspicion is not a constitutional 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
838
BREYER, J., concurring
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 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.
JUSTICE BREYER, concurring.
I agree with the Court that
Vernonia School Dist.
J,7J 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
839
emphasize several underlying considerations, which I understand
to be consistent with the 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 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
apparently has not reduced teenage use in recent years. Compare R.
Perl, CRS Issue Brief for Congress, Drug Control: International
Policy and Options CRS-l (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 (Jul. 16, 2002),
http://www.pridesurveys.com/main/supportfiles/
natsumOO.pdf, p. 15 (slight rise in high school drug use in
840
BREYER, J., concurring
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 et al. as
Amici Curiae 3-4. See also
Bethel School Dist. No .
.1,03 v.
Fraser, 478 U. S. 675, 681 (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, ante, p.
639.
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 schoolchildren 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
nonthreat-
841
ening reason to decline his friend's drug-use invitations,
namely, that he intends to play baseball, participate in debate,
join the band, or engage in anyone 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 with this Court's characterization
of the privacy-related significance of urine sampling as
"'negligible.'"
Ante, at 833 (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,"
ante, at 832. 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 837,
or leave those whose behavior is slightly abnormal
842
GINSBURG, J., dissenting
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.
JUSTICE O'CONNOR, with whom JUSTICE SOUTER joins,
dissenting.
I dissented in
Vernonia School Dist. J,7J 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. J,7J v.
Acton, 515 U.
S. 646 (1995), this Court determined that a school
843
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 "increase[d] 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, 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 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.
"[T]he 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. 0.,
469 U. S.
325, 341 (1985). Although" 'special needs' inhere in the public
school context," see
ante, at 829 (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 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 con-
844
GINSBURG, J., dissenting
text." 515 U. S., at 653 (quoting
Griffin, 483 U. S., at
873). The Court observed:
"[WJhile 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.
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. "[O]ur decision in
Vernonia," the Court states,
"depended primarily upon the school's custodial responsibility and
authority."
Ante, at 831; see also
ante, at 840
(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 836-837 (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, en-
845
gage in dangerous activities on their own time; that the
children are enrolled in school scarcely allows government to
monitor all such activities. If a student has a reasonable
subjective expectation of privacy in the personal items she brings
to school, see
T. L. 0., 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 ("[I]t 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 participate in competitive extracurricular
activities voluntarily subject themselves to" additional rules not
applicable to other students.
Ante, at 831.
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
846
GINSBURG, J., dissenting
"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 (1992) ("Attendance may not be required by
official decree, yet it is apparent that a student 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, 315-316
(1972). Interscholastic athletics similarly require close safety
and health regulation; a school's choir, band, and academic 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. 0., 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 to reasonableness, but they
do not on their own justify intrusive, suspicionless searches.
Vernonia, accordingly, did not rest upon these
847
factors; instead, the Court performed what to day's majority
aptly describes as a "fact-specific balancing,"
ante, at
830. 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 intrude[d]." 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 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 .... [T]here 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 out-of-town trips," students like Lindsay Earls
"must sleep together in communal settings and use
848
GINSBURG, J., dissenting
communal bathrooms."
242 F.3d
1264, 1275 (CAlO 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.
Brief for Petitioners 34.1
After describing school athletes' reduced expectation of
privacy, the
Vernonia Court turned to "the character of the
intrusion ... complained of." 515 U. S., at 658. 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 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 had a clear "need to
know." See
1 According to Tecumseh's choir teacher, choir participants who
chose not to wear their choir uniforms to school on the days of
competitions could change either in "a rest room in a building" or
on the bus, where "[m]any of them have figured out how to [change]
without having [anyone] ... see anything." 2 Appellants' App. in
No. 00-6128 (CAlO), p.296.
849
Brief for Respondents 6, 24; App. 105-106, 131. But see
id., at 199 (policy requires that "[t]he 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 "[p]olicy 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 (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 lOA 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 Tecum-
850
GINSBURG, J., dissenting
seh School's Application for Funds under the Safe and DrugFree
Schools and Communities Program, reprinted at App. 191; accord,
1996-1997 Application, reprinted at App. 186; 1995-1996
Application, reprinted at App. 180.2 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.
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 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, rather than railwayspecific,
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
2 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 836. 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 proble[m]," App. 180, 186, 191.
851
also
Chandler v.
Miller, 520 U. S. 305, 321 (1997)
("Von Raab must be read in its unique context").
Not only did the 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 836,
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 student
athlete cast on himself and those engaged with him on the playing
field"); see also
Ferguson v.
Charleston, 532 U. S. 67, 87 (2001)
(KENNEDY, J., concurring) (Vernonia's policy had goal of"
'[d]eterring 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
852
GINSBURG, J., dissenting
"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 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 (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 subject to
urinalysis in Tecumseh.3 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 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
3 Cross-country runners and volleyball players, by contrast,
engage in substantial physical exertion. See
Vernonia School
Dist. 47J v.
Acton, 515 U. S. 646,663 (1995)
(describing special dangers of combining drug use with athletics
generally).
853
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
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.4
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
4 The Court notes that programs of individualized suspicion,
unlike those using random testing, "might unfairly target members
of unpopular groups."
Ante, at 837; see also
ante, at
841-842 (BREYER, J., concurring). Assuming,
arguendo, that
this is so, the School District here has not exchanged
individualized suspicion for random testing. It has installed
random testing in addition to, rather than in lieu of, testing "at
any time when there is reasonable suspicion." App. 197.
854
GINSBURG, J., dissenting
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 "d[id] not fit within the closely guarded category
of constitutionally permissible suspicionless searches." 520 U. S.,
at 309. Georgia's testing prescription, the record showed,
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 846-848, 849853. 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 communica-
855
tion of this message does not trump the right of personseven of
children within the schoolhouse gate-to be "secure in their persons
... against unreasonable searches and seizures." U. S. Const.,
Arndt. 4.
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.'" 520 U. S., at 322 (quoting
Olmstead
v.
United States, 277 U. S. 438, 485
(1928)). 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."
Vernonia, 515 U. S.,
at 656. 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 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, 319 U. S. 624, 637
(1943).
***
For the reasons stated, I would affirm the judgment of the Tenth
Circuit declaring the testing policy at issue unconstitutional.
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