OCTOBER TERM, 1994
Syllabus
VERNONIA SCHOOL DISTRICT 47J
v. ACTON ET UX., GUARDIANS
AD LITEM FOR ACTON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 94-590. Argued March 28, 1995-Decided June 26,1995
Motivated by the discovery that athletes were leaders in the
student drug culture and concern that drug use increases the risk
of sports-related injury, petitioner school district (District)
adopted the Student Athlete Drug Policy (Policy), which authorizes
random urinalysis drug testing of students who participate in its
athletics programs. Respondent Acton was denied participation in
his school's football program when he and his parents (also
respondents) refused to consent to the testing. They then filed
this suit, seeking declaratory and injunctive relief on the grounds
that the Policy violated the Fourth and Fourteenth Amendments and
the Oregon Constitution. The District Court denied the claims, but
the Court of Appeals reversed, holding that the Policy violated
both the Federal and State Constitutions.
Held: The Policy is constitutional under the Fourth and
Fourteenth Amendments. Pp. 652-666.
(a) State-compelled collection and testing of urine constitutes
a "search" under the Fourth Amendment.
Skinner v.
Railway
Labor Executives' Assn., 489 U. S. 602, 617. Where
there was no clear practice, either approving or disapproving the
type of search at issue, at the time the constitutional provision
was enacted, the "reasonableness" of a search is judged by
balancing the intrusion on the individual's Fourth Amendment
interests against the promotion of legitimate governmental
interests. Pp. 652-654.
(b) The first factor to be considered in determining
reasonableness is the nature of the privacy interest on which the
search intrudes. Here, the subjects of the Policy are children who
have been committed to the temporary custody of the State as
schoolmaster; in that capacity, the State may exercise a degree of
supervision and control greater than it could exercise over free
adults. The requirements that public school children submit to
physical examinations and be vaccinated indicate that they have a
lesser privacy expectation with regard to medical examinations and
procedures than the general population. Student athletes have even
less of a legitimate privacy expectation, for an element of
communal undress is inherent in athletic participation, and
athletes are
647
subject to preseason physical exams and rules regulating their
conduct. Pp. 654-657.
(c) The privacy interests compromised by the process of
obtaining urine samples under the Policy are negligible, since the
conditions of collection are nearly identical to those typically
encountered in public restrooms. In addition, the tests look only
for standard drugs, not medical conditions, and the results are
released to a limited group. Pp. 658-660.
(d) The nature and immediacy of the governmental concern at
issue, and the efficacy of this means for meeting it, also favor a
finding of reasonableness. The importance of deterring drug use by
all this Nation's schoolchildren cannot be doubted. Moreover, the
Policy is directed more narrowly to drug use by athletes, where the
risk of physical harm to the user and other players is high. The
District Court's conclusion that the District's concerns were
immediate is not clearly erroneous, and it is self-evident that a
drug problem largely caused by athletes, and of particular danger
to athletes, is effectively addressed by ensuring that athletes do
not use drugs. The Fourth Amendment does not require that the
"least intrusive" search be conducted, so respondents' argument
that the drug testing could be based on suspicion of drug use, if
true, would not be fatal; and that alternative entails its own
substantial difficulties. Pp. 660-664.
23 F.3d
1514, vacated and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and KENNEDY, THOMAS, GINSBURG, and BREYER, JJ.,
joined. GINSBURG, J., filed a concurring opinion,
post, p.
666. O'CONNOR, J., filed a dissenting opinion, in which STEVENS and
SOUTER, JJ., joined,
post, p.666.
Timothy R. Volpert argued the cause for petitioner. With
him on the briefs was
Claudia Larkins.
Richard H. Seamon argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Days, Assistant Attorney General Hunger, Deputy Solicitor
General Bender, Leonard Schaitman, and Edward Himmelfarb.
648
Thomas M. Christ argued the cause for respondents.
With him on the brief were John A. Wittmayer and Steven R.
Shapiro. *
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-Iate 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.
*Briefs of
amici curiae urging reversal were filed for
the American Alliance for Rights & Responsibilities by
Steven P. Fulton and
Robert Teir; for the California
Interscholastic Federation by
Andrew Patterson; for the
Criminal Justice Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson; for the Institute
for a Drug-Free Workplace by
Benjamin W Hahn; for the
National League of Cities et al. by
Richard Ruda and
Lee
Fennell; for the National School Boards Association by
Gwendolyn H. Gregory, August W Steinhilber, and
Thomas A.
Shannon; for Paradise Valley Unified School District No. 69 by
Thomas C.
Horne; and for the Washington Legal
Foundation et al. by
Richard K. Willard, Daniel J.
Popeo, and
David A. Price.
649
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, as the District Court found, athletes were the leaders of the
drug culture. 796 F. Supp. 1354, 1357 (Ore. 1992). 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. According to the
District Court:
"[T]he administration was at its wits end and ... a large
segment of the student body, particularly those involved in
interscholastic athletics, was in a state of rebellion.
Disciplinary actions had reached 'epidemic proportions.' The
coincidence of an almost three-fold increase in classroom
disruptions and disciplinary reports along with the staff's direct
observations of students using drugs or glamorizing drug and
alcohol use led the administration to the inescapable conclusion
that the rebellion was being fueled by alcohol and drug abuse as
well as the student's misperceptions about the drug culture."
Ibid.
At that point, District officials began considering a
drugtesting program. They held a parent "input night" to dis-
650
cuss 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.
The samples are sent to an independent laboratory, which
routinely tests them for amphetamines, cocaine, and marijuana.
Other drugs, such as LSD, may be screened at the
651
request of the District, but the identity of a particular
student does not determine which drugs will be tested. The
laboratory's procedures are 99.94% accurate. The District follows
strict procedures regarding the chain of custody and access to test
results. The laboratory does not know the identity of the students
whose samples it tests. It is authorized to mail written test
reports only to the superintendent and to provide test results to
District personnel by telephone only after the requesting official
recites a code confirming his authority. Only the superintendent,
principals, viceprincipals, and athletic directors have access to
test results, and the results are not kept for more than one
year.
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, respondent 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, seeking declaratory and injunctive relief from enforcement of
the Policy on the grounds that it violated the Fourth and
Fourteenth Amendments to the United States Constitution and Article
I, § 9, of the Ore-
652
gon Constitution. After a bench trial, the District Court
entered an order denying the claims on the merits and dismissing
the action. 796 F. Supp., at 1355. The United States Court of
Appeals for the Ninth Circuit reversed, holding that the Policy
violated both the Fourth and Fourteenth Amendments and Article I, §
9, of the Oregon Constitution.
23 F.3d
1514 (1994). We granted certiorari. 513 U. S. 1013 (1994).
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,
Elkins v.
United
States, 364 U. S.
206, 213 (1960), including public school officials,
New
Jersey v.
T. L. 0., 469 U. S. 325, 336-337
(1985). In
Skinner v.
Railway Labor Executives'
Assn., 489 U. S.
602, 617 (1989), we held that state-compelled collection and
testing of urine, such as that required by the Policy, constitutes
a "search" subject to the demands of the Fourth Amendment. See also
Treasury Employees v.
Von Raab, 489 U. S. 656, 665
(1989).
As the text of the Fourth Amendment indicates, the ultimate
measure of the constitutionality of a governmental search is
"reasonableness." At least in a case such as this, where there was
no clear practice, either approving or disapproving the type of
search at issue, at the time the constitutional provision was
enacted,l whether a particular search meets the reasonableness
standard "'is judged by balancing
1 Not until 1852 did Massachusetts, the pioneer in the "common
school" movement, enact a compulsory school-attendance law, and as
late as the 1870's only 14 States had such laws. R. Butts, Public
Education in the United States From Revolution to Reform 102-103
(1978); 1 Children and Youth in America 467-468 (R. Bremner ed.
1970). The drug problem, and the technology of drug testing, are of
course even more recent.
653
its intrusion on the individual's Fourth Amendment interests
against its promotion of legitimate governmental interests.'"
Skinner, supra, at 619 (quoting
Delaware v.
Prouse, 440 U.
S. 648, 654 (1979)). Where a search is undertaken by law
enforcement officials to discover evidence of criminal wrongdoing,
this Court has said that reasonableness generally requires the
obtaining of a judicial warrant,
Skinner, supra, at 619.
Warrants cannot be issued, of course, without the showing of
probable cause required by the Warrant Clause. But a warrant is not
required to establish the reasonableness of
all government
searches; and when a warrant is not required (and the Warrant
Clause therefore not applicable), probable cause is not invariably
required either. A search unsupported by probable cause can be
constitutional, we have said, "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).
We have found such "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 on probable cause" would
undercut "the substantial need of teachers and administrators for
freedom to maintain order in the schools."
T. L. 0., 469 U.
S., at 340, 341. The school search we approved in
T. L. 0.,
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,'"
id., at 342, n.
8 (quoting
United States v.
MartinezFuerte, 428 U. S. 543, 560-561
(1976)). We have upheld suspicionless searches and seizures to
conduct drug testing of railroad personnel involved in train
accidents, see
Skinner, supra; to conduct random drug
testing of federal customs officers who carry arms or are involved
in drug interdiction,
654
see
Von Raab, supra; and to maintain automobile
checkpoints looking for illegal immigrants and contraband,
Martinez-Fuerte, supra, and drunk drivers,
Michigan Dept.
of State Police v.
Sitz, 496 U. S. 444 (1990).
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."
T.
L. 0., 469 U. S., at 338. What expectations are legitimate
varies, of course, with context, id., at 337, depending, for
example, upon whether the individual asserting the privacy interest
is at home, at work, in a car, or in a public park. In addition,
the legitimacy of certain privacy expectations vis-a-vis the State
may depend upon the individual's legal relationship with the State.
For example, in
Griffin, supra, we held that, although a
"probationer's home, like anyone else's, is protected by the Fourth
Amendmen[t]," the supervisory relationship between probationer and
State justifies "a degree of impingement upon [a probationer's]
privacy that would not be constitutional if applied to the public
at large." 483 U. S., at 873, 875. 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. See 59 Am. Jur. 2d, Parent and Child §
10 (1987). 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 fact, the tutor or schoolmas-
655
ter is the very prototype of that status. As Blackstone
describes it, a parent "may ... delegate part of his parental
authority, during his life, to the tutor or schoolmaster of his
child; who is then
in loco parentis, and has such a portion
of the power of the parent committed to his charge, viz. that of
restraint and correction, as may be necessary to answer the
purposes for which he is employed." 1 W. Blackstone, Commentaries
on the Laws of England 441 (1769).
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. 469 U. S., at 336. Such a view of things, we said, "is
not entirely 'consonant with compulsory education laws,'"
ibid. (quoting
Ingraham v.
Wright, 430 U. S. 651, 662
(1977)), and is inconsistent with our prior decisions treating
school officials as state actors for purposes of the Due Process
and Free Speech Clauses,
T. L. 0., supra, at 336. But while
denying that the State's power over schoolchildren is formally no
more than the delegated power of their parents,
T. L. 0. 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. "[A] proper
educational environment requires close supervision of
schoolchildren, as well as the enforcement of rules against conduct
that would be perfectly permissible if undertaken by an adult." 469
U. S., at 339. While we do not, of course, suggest that public
schools as a general matter have such a degree of control over
children as to give rise to a constitutional "duty to protect," see
DeShaney v.
Winnebago County Dept. of Social Servs.,
489 U. S. 189,
200 (1989), we have acknowledged that for many purposes "school
authorities ac[t]
in loco parentis," Bethel School Dist. No.
403 v.
Fraser, 478 U. S. 675, 684
(1986), with the power and indeed the duty to "inculcate the habits
and manners of civility," id., at 681 (internal quotation marks
omitted). Thus, while children assuredly do not "shed their
constitutional
656
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. See,
e. g., Goss v.
Lopez,
419 U. S. 565,
581-582 (1975) (due process for a student challenging disciplinary
suspension requires only that the teacher "informally discuss the
alleged misconduct with the student minutes after it has
occurred");
Fraser, supra, at 683 ("[I]t is a highly
appropriate function of public school education to prohibit the use
of vulgar and offensive terms in public discourse");
Hazelwood
School Dist. v.
Kuhlmeier, 484 U. S. 260, 273 (1988)
(public school authorities may censor school-sponsored
publications, so long as the censorship is "reasonably related to
legitimate pedagogical concerns");
Ingraham, supra, at 682
("Imposing additional administrative safeguards [upon corporal
punishment] ... would ... entail a significant intrusion into an
area of primary educational responsibility").
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. According to the
American Academy of Pediatrics, most public schools "provide vision
and hearing screening and dental and dermatological checks ....
Others also mandate scoliosis screening at appropriate grade
levels." Committee on School Health, American Academy of
Pediatrics, School Health: A Guide for Health Professionals 2
(1987). In the 1991-1992 school year, all 50 States required public
school students to be vaccinated against diphtheria, measles,
rubella, and polio. U. S. Dept. of Health & Human Services,
Public Health Service, Centers for Disease Control, State
Immunization Requirements 1991-1992, p. 1. Particularly with regard
to medical examinations and proce-
657
dures, therefore, "students within the school environment have a
lesser expectation of privacy than members of the population
generally."
T. L. 0., supra, at 348 (Powell, J.,
concurring).
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,"
Schaill
by Kross v.
Tippecanoe County School Corp., 864 F.2d
1309, 1318 (1988).
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, App. 17), 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." Record,
Exh. 2, p. 30, , 8. 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. See
Skinner, 489 U. S., at 627;
United States v.
Biswell, 406
U. S. 311, 316 (1972).
658
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." 489 U.
S., at 626. We noted, however, that the degree of intrusion depends
upon the manner in which production of the urine sample is
monitored.
Ibid. 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 schoolchildren
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. See id., at 617. 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. 796 F.
Supp., at 1364; see also 23 F. 3d, at 1521.2
2 Despite the fact that, like routine school physicals and
vaccinationswhich the dissent apparently finds unobjectionable even
though they "are both blanket searches of a sort,"
post, at
682-the search here is undertaken for prophylactic and distinctly
nonpunitive purposes (protecting
659
Respondents argue, however, that the District's Policy is in
fact more intrusive than this suggests, because it requires the
students, if they are to avoid sanctions for a falsely positive
test, to identify
in advance prescription medications they
are taking. We agree that this raises some cause for concern. In
Von Raab, we flagged as one of the salutary features of the
Customs Service drug-testing program the fact that employees were
not required to disclose medical information unless they tested
positive, and, even then, the information was supplied to a
licensed physician rather than to the Government employer. See
Von Raab, 489 U. S., at 672-673, n. 2. On the other hand, we
have never indicated that requiring advance disclosure of
medications is
per se unreasonable. Indeed, in
Skinner we held that it was not "a significant invasion of
privacy." 489 U. S., at 626, n. 7. It can be argued that, in
Skinner, the disclosure went only to the medical personnel
taking the sample, and the Government personnel analyzing it, see
id., at 609, but see
id., at 610 (railroad personnel
responsible for forwarding the sample, and presumably accompanying
information, to the Government's testing lab); and that disclosure
to teachers and coaches-to persons who personally
know the
student-is a greater invasion of privacy. Assuming for the sake of
argu-
student athletes from injury, and deterring drug use in the
student population), see 796 F. Supp., at 1363, the dissent would
nonetheless lump this search together with "evidentiary" searches,
which generally require probable cause, see
supra, at 653,
because, from the student's perspective, the test may be "regarded"
or "understood" as punishment,
post, at 683684. In light of
the District Court's findings regarding the purposes and
consequences of the testing, any such perception is by definition
an irrational one, which is protected nowhere else in the law. In
any event, our point is not, as the dissent apparently believes,
post, at 682-683, that
since student vaccinations and
physical exams are constitutionally reasonable, student drug
testing must be so as well; but rather that, by reason of those
prevalent practices, public school children in general, and student
athletes in particular, have a diminished expectation of privacy.
See
supra, at 656-657.
660
ment that both those propositions are true, we do not believe
they establish a difference that respondents are entitled to rely
on here.
The General Authorization Form that respondents refused to sign,
which refusal was the basis for James's exclusion from the sports
program, said only (in relevant part): "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." App. 10-11. 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,
see id., at 29, 42, 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."
Id., at 8. 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 respondents 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. In both
Skinner and
Von Raab, we
characterized the government interest motivating the search as
"compelling."
Skinner, supra, at 628 (interest in preventing
railway accidents);
Von Raab, supra, at 670 (in-
661
terest in ensuring fitness of customs officials to interdict
drugs and handle firearms). Relying on these cases, the 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." 796 F.
Supp., at 1363. The Court of Appeals appears to have agreed with
this view. See 23 F. 3d, at 1526. 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 that
appears
important enough to justify the particular search at
hand, in light of other factors that 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, which was the governmental concern in
Von Raab,
supra, at 668, or deterring drug use by engineers and trainmen,
which was the governmental concern in
Skinner, supra, at
628. 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." Hawley, The Bumpy
Road to Drug-Free Schools, 72 Phi Delta Kappan 310, 314 (1990). See
also Estroff, Schwartz, & Hoffmann, Adolescent Cocaine Abuse:
Addictive Potential, Behavioral and Psychiatric Effects, 28
Clinical Pediatrics 550
662
(Dec. 1989); Kandel, Davies, Karus, & Yamaguchi, The
Consequences in Young Adulthood of Adolescent Drug Involvement, 43
Arch. Gen. Psychiatry 746 (Aug. 1986). And of course the effects of
a drug-infested school are visited not just upon the users, but
upon the entire student body and faculty, as 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.
Amphetamines produce an "artificially induced heart rate increase,
[p]eripheral vasoconstriction, [b]lood pressure increase, and
[m]asking of the normal fatigue response," making them a "very
dangerous drug when used during exercise of any type." Hawkins,
Drugs and Other Ingesta: Effects on Athletic Performance, in H.
Appenzeller, Managing Sports and Risk Management Strategies 90,
90-91 (1993). Marijuana causes "[i]rregular blood pressure
responses during changes in body position," "[r]eduction in the
oxygen-carrying capacity of the blood," and "[i]nhibition of the
normal sweating responses resulting in increased body temperature."
Id., at 94. Cocaine produces "[v]asoconstriction[,]
[e]levated blood pressure," and "[p]ossible coronary artery spasms
and myocardial infarction."
Ibid.
As for the immediacy of the District's concerns: We are not
inclined to question-indeed, we could not possibly find clearly
erroneous-the District Court's conclusion that "a large segment of
the student body, particularly those in-
663
volved 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." 796 F. Supp., at 1357. That is an immediate crisis
of greater proportions than existed in
Skinner, where we
upheld the Government's drug-testing program based on findings of
drug use by railroad employees nationwide, without proof that a
problem existed on the particular railroads whose employees were
subject to the test. See
Skinner, 489 U. S., at 607. And of
much greater proportions than existed in
Von Raab, where
there was no documented history of drug use by any customs
officials. See
Von Raab, 489 U. S., at 673;
id., at
683 (SCALIA, J., dissenting).
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. Respondents argue that a "less intrusive means to
the same end" was available, namely, "drug testing on suspicion of
drug use." Brief for Respondents 45-46. We have repeatedly refused
to declare that only the "least intrusive" search practicable can
be reasonable under the Fourth Amendment.
Skinner, supra, at
629, n. 9 (collecting cases). Respondents' alternative entails
substantial difficulties-if it is indeed practicable at all. It may
be impracticable, for one thing, simply because the parents who are
willing to accept random drug testing for athletes are not willing
to accept accusatory drug testing for all students, which
transforms the process into a badge of shame. Respondents' proposal
brings the risk that teachers will impose testing arbitrarily upon
troublesome but not drug-likely students. It generates the expense
of defending lawsuits that charge such arbitrary imposition, or
that simply demand greater process before accusatory drug
664
testing is imposed. And not least of all, it adds to the
everexpanding diversionary duties of schoolteachers the new
function of spotting and bringing to account drug abuse, a task for
which they are ill prepared, and which is not readily compatible
with their vocation. Cf.
Skinner, supra, at 628 (quoting 50
Fed. Reg. 31526 (1985)) (a drug impaired individual "will seldom
display any outward 'signs detectable by the lay person or, in many
cases, even the physician' ");
Goss, 419 U. S., at 594
(Powell, J., dissenting) ("There is an ongoing relationship, one in
which the teacher must occupy many roles-educator, adviser, friend,
and, at times, parentsubstitute. It is rarely adversary in nature
... ") (footnote omitted). In many respects, we think, testing
based on "suspicion" of drug use would not be better, but
worse.3
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
3 There is no basis for the dissent's insinuation that in
upholding the District's Policy we are equating the Fourth
Amendment status of schoolchildren and prisoners, who, the dissent
asserts, may have what it calls the "categorical protection" of a
"strong preference for an individualized suspicion requirement,"
post, at 681. The case on which it relies for that
proposition,
Bell v.
Wolfish, 441 U. S. 520 (1979),
displays no stronger a preference for individualized suspicion than
we do today. It reiterates the proposition on which we rely, that
'''elaborate less-restrictivealternative arguments could raise
insuperable barriers to the exercise of virtually all
search-and-seizure powers.'''
Id., at 559, n. 40 (quoting
United States v.
Martinez-Fuerte, 428 U. S. 543, 556-557,
n. 12 (1976)). Even
Wolfish's arguendo "assum[ption] that
the existence of less intrusive alternatives is relevant to the
determination of the reasonableness of the particular search method
at issue," 441 U. S., at 559, n. 40, does not support the dissent,
for the opinion ultimately rejected the hypothesized alternative
(as we do) on the ground that it would impair other policies
important to the institution. See id., at 560, n. 40 (monitoring of
visits instead of conducting body searches would destroy "the
confidentiality and intimacy that these visits are intended to
afford").
665
by the search-we conclude Vernonia's Policy is reasonable and
hence constitutional.
We caution against the assumption that suspicionless drug
testing will readily pass constitutional muster in other contexts.
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.4 Just as when
the government conducts a search in its capacity as employer (a
warrantless search of an absent employee's desk to obtain an
urgently needed file, for example), the relevant question is
whether that intrusion upon privacy is one that a reasonable
employer might engage in, see
O'Connor v.
Ortega,
480 U. S. 709
(1987); so also when the government acts as guardian and tutor the
relevant question is whether the search is one that a reasonable
guardian and tutor might undertake. Given the findings of need made
by the District Court, we conclude that in the present case it
is.
We may note that the primary guardians of Vernonia's
schoolchildren appear to agree. The record shows no objection to
this districtwide program by any parents other than the couple
before us here-even though, as we have described, a public meeting
was held to obtain parents' views. We find insufficient basis to
contradict the judgment of Vernonia's parents, its school board,
and the District Court, as to what was reasonably in the interest
of these children under the circumstances.
4 The dissent devotes a few meager paragraphs of its 21 pages to
this central aspect of the testing program, see
post, at
680-682, in the course of which it shows none of the interest in
the original meaning of the Fourth Amendment displayed elsewhere in
the opinion, see
post, at 669-671. Of course at the time of
the framing, as well as at the time of the adoption of the
Fourteenth Amendment, children had substantially fewer "rights"
than legislatures and courts confer upon them today. See 1 D.
Kramer, Legal Rights of Children § 1.02, p. 9 (2d ed. 1994); Wald,
Children's Rights:
A Framework for Analysis, 12 U. C. D. L. Rev. 255, 256
(1979).
666
***
The Ninth Circuit held that Vernonia's Policy not only violated
the Fourth Amendment, but also, by reason of that violation,
contravened Article I, § 9, of the Oregon Constitution. Our
conclusion that the former holding was in error means that the
latter holding rested on a flawed premise. We therefore vacate the
judgment, and remand the case to the Court of Appeals for further
proceedings consistent with this opinion.
It is so ordered.
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.
Ante, at 650, 657
(reduced privacy expectation and closer school regulation of
student athletes), 662 (drug use by athletes risks immediate
physical harm to users and those with whom they play).
Correspondingly, the most severe sanction allowed under the
District's policy is suspension from extracurricular athletic
programs.
Ante, at 651. 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. Cf.
United States v.
Edwards, 498 F.2d
496, 500 (CA2 1974) (Friendly, J.) (in contrast to search
without notice and opportunity to avoid examination, airport search
of passengers and luggage is avoidable "by choosing not to travel
by air") (internal quotation marks omitted).
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. See U. S. Dept. of
667
Education, National Center for Education Statistics, Digest of
Education Statistics 58 (1994) (Table 43). 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.
In justifying this result, the Court dispenses with a
requirement of individualized suspicion on considered policy
grounds. First, it explains that precisely because
every
student athlete is being tested, there is no concern that school
officials might act arbitrarily in choosing whom to test. Second, a
broad-based search regime, the Court reasons, dilutes the
accusatory nature of the search. In making these policy arguments,
of course, the Court sidesteps powerful, countervailing privacy
concerns. Blanket searches, because they can involve "thousands or
millions" of searches, "pos[e] a greater threat to liberty" than do
suspicion-based ones, which "affec[t] one person at a time,"
Illinois v.
Krull, 480 U. S. 340, 365 (1987)
(O'CONNOR, J., dissenting). Searches based on individualized
suspicion also afford potential targets considerable control over
whether they will, in fact, be searched because a person can avoid
such a search by not acting in an objectively suspicious way. And
given that the surest way to avoid acting suspiciously is to avoid
the underlying wrongdoing, the costs of such a regime, one would
think, are minimal.
But whether a blanket search is "better,"
ante, at 664,
than a regime based on individualized suspicion is not a debate in
which we should engage. In my view, it is not open to judges or
government officials to decide on policy grounds which is better
and which is worse. For most of our constitutional history, mass,
suspicionless searches have been generally considered
per se
unreasonable within the meaning of the Fourth Amendment. And we
have allowed exceptions
668
in recent years only where it has been clear that a
suspicionbased regime would be ineffectual. Because that is not the
case here, I dissent.
I A
In
Carroll v.
United States, 267 U. S. 132 (1925), the
Court explained that "[t]he Fourth Amendment does not denounce all
searches or seizures, but only such as are unreasonable."
Id., at 147. Applying this standard, the Court first held
that a search of a car was not unreasonable merely because it was
warrantless; because obtaining a warrant is impractical for an
easily movable object such as a car, the Court explained, a warrant
is not required. The Court also held, however, that a warrantless
car search
was unreasonable unless supported by some level
of individualized suspicion, namely, probable cause. Significantly,
the Court did not base its conclusion on the
express
probable cause requirement contained in the Warrant Clause, which,
as just noted, the Court found inapplicable. Rather, the Court
rested its views on "what was deemed an unreasonable search and
seizure when [the Fourth Amendment] was adopted" and "[what] will
conserve public interests as well as the interests and rights of
individual citizens."
Id., at 149. With respect to the
"rights of individual citizens," the Court eventually offered the
simple yet powerful intuition that "those lawfully within the
country, entitled to use the public highways, have a right to free
passage without interruption or search unless there is known to a
competent official authorized to search, probable cause for
believing that their vehicles are carrying contraband or illegal
merchandise."
Id., at 154.
More important for the purposes of this case, the Court clearly
indicated that evenhanded treatment was no substitute for the
individualized suspicion requirement:
"It would be intolerable and unreasonable if a prohibition agent
were authorized to stop every automobile on
669
the chance of finding liquor and thus subject all persons
lawfully using the highways to the inconvenience and indignity of
such a search." Id., at 153-154.
The
Carroll Court's view that blanket searches are
"intolerable and unreasonable" is well grounded in history. As
recently confirmed in one of the most exhaustive analyses of the
original meaning of the Fourth Amendment ever undertaken, see W.
Cuddihy, The Fourth Amendment: Origins and Original Meaning (1990)
(Ph.D. Dissertation at Claremont Graduate School) (hereinafter
Cuddihy), what 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.
See id., at 1402, 1499, 1555; see also Clancy, The Role of
Individualized Suspicion in Assessing the Reasonableness of
Searches and Seizures, 25 Mem. St. U. L. Rev. 483, 528 (1994);
Maclin, When the Cure for the Fourth Amendment Is Worse Than the
Disease, 68 S. Cal. L. Rev. 1,9-12 (1994); L. Levy, Original Intent
and the Framers' Constitution 221-246 (1988). Although, ironically,
such warrants, writs, and statutes typically required
individualized suspicion, see,
e. g., Cuddihy 1140 ("Typical
of the American warrants of 1761-76 was Starke's 'tobacco' warrant,
which commanded its bearer to 'enter any
suspected
Houses''') (emphasis added), such requirements were subjective and
largely unenforceable. Accordingly, these various forms of
authority led in practice to "virtually unrestrained," and hence
"general," searches. J. Landynski, Search and Seizure and the
Supreme Court 20 (1966). To be sure, the Fourth Amendment, in the
Warrant Clause, prohibits by name only searches by general
warrants. But that was only because the abuses of the general
warrant were particularly vivid in the minds of the Framers'
generation, Cuddihy 1554-1560, and not because the Framers viewed
other kinds of general searches as any less unreasonable.
"Prohibition of the general warrant was part of a
670
larger scheme to extinguish general searches categorically."
Id., at 1499.
More important, there is no indication in the historical
materials that the Framers' opposition to general searches stemmed
solely from the fact that they allowed officials to single out
individuals for arbitrary reasons, and thus that officials could
render them reasonable simply by making sure to extend their search
to
every house in a given area or to
every person in
a given group. See
Delaware v.
Prouse, 440 U. S. 648,
664 (1979) (REHNQUIST, J., dissenting) (referring to this as the "
'misery loves company' " theory of the Fourth Amendment). On the
contrary, although general searches were typically arbitrary, they
were not invariably so. Some general searches, for example, were of
the arguably evenhanded "door-to-door" kind. Cuddihy 1091; see also
id., at 377, 1502, 1557. Indeed, Cuddihy's descriptions of a few
blanket searches suggest they may have been considered
more
worrisome than the typical general search. See
id., at 575
("One type of warrant [between 1700 and 1760] went beyond a general
search, in which the searcher entered and inspected suspicious
places, by requiring him to search entire categories of places
whether he suspected them or not"); id., at 478 ("During the
exigencies of Queen Anne's War, two colonies even authorized
searches in 1706 that extended to entire geographic areas, not just
to suspicious houses in a district, as conventional general
warrants allowed").
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. See
U. S. Const., Arndt. 4. So, for example, when the same Congress
that
671
proposed the Fourth Amendment authorized duty collectors to
search for concealed goods subject to import duties, specific
warrants were required for searches on land; but even for searches
at sea, where warrants were impractical and thus not required,
Congress nonetheless limited officials to searching only those
ships and vessels "in which [a collector]
shall have reason to
suspect any goods, wares or merchandise subject to duty shall
be concealed." The Collection Act of July 31, 1789, § 24, 1 Stat.
43 (emphasis added); see also Cuddihy 1490-1491 ("The Collection
Act of 1789 was [the] most significant [of all early search
statutes], for it identified the techniques of search and seizure
that the framers of the amendment believed reasonable while they
were framing it"). Not surprisingly, the
Carroll Court
relied on this statute and other subsequent ones like it in
arriving at its views. See
Carroll, 267 U. S., at 150-151,
154; cf. Clancy,
supra, at 489 ("While the plain language of
the Amendment does not mandate individualized suspicion as a
necessary component of all searches and seizures, the historical
record demonstrates that the framers believed that individualized
suspicion was an inherent quality of reasonable searches and
seizures").
True, not all searches around the time the Fourth Amendment was
adopted required individualized suspicion-although most did. A
search incident to arrest was an obvious example of one that did
not, see Cuddihy 1518, but even those searches shared the essential
characteristics that distinguish suspicion-based searches from
abusive general searches: they only "affec[t] one person at a
time,"
Krull, 480 U. S., at 365 (O'CONNOR, J., dissenting),
and they are generally avoidable by refraining from wrongdoing. See
supra, at 667. Protection of privacy, not evenhandedness,
was then and is now the touchstone of the Fourth Amendment.
The view that mass, suspicionless searches, however evenhanded,
are generally unreasonable remains inviolate in the criminal law
enforcement context, see
Ybarra v.
Illinois, 444
672
u. S. 85 (1979) (invalidating evenhanded, nonaccusatory patdown
for weapons of all patrons in a tavern in which there was probable
cause to think drug dealing was going on), at least where the
search is more than minimally intrusive, see
Michigan Dept. of
State Police v.
Sitz, 496 U. S. 444 (1990)
(upholding the brief and easily avoidable detention, for purposes
of observing signs of intoxication, of all motorists approaching a
roadblock). It is worth noting in this regard that state-compelled,
state-monitored collection and testing of urine, while perhaps not
the most intrusive of searches, see,
e. g., Bell v.
Wolfish, 441
U. S. 520, 558-560 (1979) (visual body cavity searches), is
still "particularly destructive of privacy and offensive to
personal dignity."
Treasury Employees v.
Von Raab,
489 U. S. 656,
680 (1989) (SCALIA, J., dissenting); see also
ante, at 658;
Skinner v.
Railway Labor Executives' Assn., 489 U. S. 602, 617
(1989). We have not hesitated to treat monitored bowel movements as
highly intrusive (even in the special border search context),
compare
United States v.
Martinez-Fuerte, 428 U. S. 543 (1976)
(brief interrogative stops of all motorists crossing certain border
checkpoint reasonable without individualized suspicion), with
United States v.
Montoya de Hernandez, 473 U. S. 531 (1985)
(monitored bowel movement of border crossers reasonable only upon
reasonable suspicion of alimentary canal smuggling), and it is not
easy to draw a distinction. See Fried, Privacy, 77 Yale L. J. 475,
487 (1968) ("[I]n our culture the excretory functions are shielded
by more or less absolute privacy"). And certainly monitored
urination combined with urine testing is more intrusive than some
personal searches we have said trigger Fourth Amendment protections
in the past. See,
e. g., Cupp v.
Murphy, 412 U. S. 291, 295 (1973)
(Stewart, J.) (characterizing the scraping of dirt from under a
person's fingernails as a " 'severe, though brief, intrusion upon
cherished personal security''') (citation omitted). Finally, the
collection and testing of urine is, of course, a search of a
person, one of only four categories of suspect
673
searches the Constitution mentions by name. See U. S. Const.,
Arndt. 4 (listing "persons, houses, papers, and effects"); cf.
Cuddihy 835, 1518, 1552, n. 394 (indicating long history of outrage
at personal searches before 1789).
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. 3 W. LaFave,
Search and Seizure § 9.5(b), pp. 551-553 (2d ed. 1987) (hereinafter
LaFave). 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. Nor could it be
otherwise, for if being evenhanded were enough to justify
evaluating a search regime under an open-ended balancing test, the
Warrant Clause, which presupposes that there is
some
category of searches for which individualized suspicion is
nonnegotiable, see 2 LaFave § 4.1, at 118, would be a dead
letter.
Outside the criminal context, however, in response to the
exigencies of modern life, our cases have upheld several evenhanded
blanket searches, including some that are more than minimally
intrusive, after balancing the invasion of privacy against the
government's strong need. Most of these cases, of course, are
distinguishable insofar as they involved searches either not of a
personally intrusive nature, such as searches of closely regulated
businesses, see,
e. g.,
New York v.
Burger,
482 U. S. 691,
699-703 (1987); cf. Cuddihy 1501 ("Even the states with the
strongest constitutional restrictions on general searches had long
exposed commercial establishments to warrantless inspection"), or
arising in unique contexts such as prisons, see,
e. g., Wolfish,
supra, at 558-560 (visual body cavity searches of prisoners
following contact visits); cf. Cuddihy 1516-1519, 1552-1553
(indicating that searches incident to arrest and prisoner searches
were the only common personal searches at time of founding). This
certainly explains why JUSTICE SCALIA, in his dissent in our recent
Von Raab decision, found it significant that "[u]ntil
674
today this Court had upheld a bodily search separate from arrest
and without individualized suspicion of wrongdoing only with
respect to prison inmates, relying upon the uniquely dangerous
nature of that environment."
Von Raab, supra, at 680
(citation omitted).
In any event, in many of the cases that can be distinguished on
the grounds suggested above and, more important, in
all of
the cases that cannot, see,
e. g., Skinner, supra (blanket
drug testing scheme);
Von Raab, supra (same); cf.
Camara v.
Municipal Court of City and County of San
Francisco, 387 U.
S. 523 (1967) (area-wide searches of private residences), we
upheld the suspicionless search only after first recognizing the
Fourth Amendment's longstanding preference for a suspicion-based
search regime, and then pointing to sound reasons why such a regime
would likely be ineffectual under the unusual circumstances
presented. In
Skinner, for example, we stated outright that"
'some quantum of individualized suspicion'" is "usually required"
under the Fourth Amendment,
Skinner, supra, at 624, quoting
Martinez-Fuerte, supra, at 560, and we built the requirement
into the test we announced: "In limited circumstances, where the
privacy interests implicated by the search are minimal, and where
an important governmental interest furthered by the intrusion
would be placed in jeopardy by a requirement of individualized
suspicion, a search may be reasonable despite the absence of
such suspicion," 489 U. S., at 624 (emphasis added). The obvious
negative implication of this reasoning is that, if such an
individualized suspicion requirement would
not place the
government's objectives in jeopardy, the requirement should not be
forsaken. See also
Von Raab, supra, at 665-666.
Accordingly, we upheld the suspicionless regime at issue in
Skinner on the firm understanding that a requirement of
individualized suspicion for testing train operators for drug or
alcohol impairment following serious train accidents would be
unworkable because "the scene of a serious rail
675
accident is chaotic."
Skinner, 489 U. S., at 631. (Of
course, it could be plausibly argued that the fact that testing
occurred only
after train operators were involved in serious
train accidents amounted to an individualized suspicion requirement
in all but name, in light of the record evidence of a strong link
between serious train accidents and drug and alcohol use.) We have
performed a similar inquiry in the other cases as well. See
Von
Raab, 489 U. S., at 674 (suspicion requirement for searches of
customs officials for drug impairment impractical because "not
feasible to subject [such] employees and their work product to the
kind of dayto-day scrutiny that is the norm in more traditional
office environments");
Camara, supra, at 537 (suspicion
requirement for searches of homes for safety code violations
impractical because conditions such as "faulty wiring" not
observable from outside of house); see also Wolfish, 441 U. S., at
559-560, n. 40 (suspicion requirement for searches of prisoners for
smuggling following contact visits impractical because observation
necessary to gain suspicion would cause "obvious disruption of the
confidentiality and intimacy that these visits are intended to
afford");
Martinez-Fuerte, 428 U. S., at 557 ("A requirement
that stops on major routes inland always be based on reasonable
suspicion would be impractical because the flow of traffic tends to
be too heavy to allow the particularized study of a given car that
would enable it to be identified as a possible carrier of illegal
aliens");
United States v.
Edwards, 498 F.2d
496, 500 (CA2 1974) (Friendly, J.) (suspicion-based searches of
airport passengers' carry-on luggage impractical because of the
great number of plane travelers and "conceded inapplicability" of
the profile method of detecting hijackers).
Moreover, an individualized suspicion requirement was often
impractical in these cases because they involved situations in
which even one undetected instance of wrongdoing could have
injurious consequences for a great number of people. See,
e. g.,
Camara, supra, at 535 (even one safety code
676
violation can cause "fires and epidemics [that] ravage large
urban areas");
Skinner, supra, at 628 (even one drug- or
alcohol-impaired train operator can lead to the "disastrous
consequences" of a train wreck, such as "great human loss");
Von
Raab, supra, at 670, 674, 677 (even one customs official caught
up in drugs can, by virtue of impairment, susceptibility to bribes,
or indifference, result in the noninterdiction of a "sizable drug
shipmen[t]," which eventually injures the lives of thousands, or to
a breach of "national security");
Edwards, supra, at 500
(even one hijacked airplane can destroy "'hundreds of human lives
and millions of dollars of property''') (citation omitted).
B
The instant case stands in marked contrast. One searches today's
majority opinion in vain for recognition that history and precedent
establish that individualized suspicion is "usually required" under
the Fourth Amendment (regardless of whether a warrant and probable
cause are also required) and that, in the area of intrusive
personal searches, the only recognized exception is for situations
in which a suspicion-based scheme would be likely ineffectual. See
supra, at 674-675 and this page. Far from acknowledging
anything special about individualized suspicion, the Court treats a
suspicionbased regime as if it were just any run-of-the-mill, less
intrusive alternative-that is, an alternative that officials may
bypass if the lesser intrusion, in their reasonable estimation, is
outweighed by policy concerns unrelated to practicability.
As an initial matter, I have serious doubts whether the Court is
right that the District reasonably found that the lesser intrusion
of a suspicion-based testing program outweighed its genuine
concerns for the adversarial nature of such a program, and for its
abuses. See
ante, at 663-664. For one thing, there are
significant safeguards against abuses. The fear that a
suspicion-based regime will lead to the testing of "troublesome but
not drug-likely" students,
677
ante, at 663, for example, ignores that the required
level of suspicion in the school context is objectively
reasonable suspicion. In this respect, the facts of our
decision in
New Jersey v.
T. L. 0., 469 U. S. 325 (1985),
should be reassuring. There, we found reasonable suspicion to
search a ninth-grade girl's purse for cigarettes after a teacher
caught the girl smoking in the bathroom with a companion who
admitted it. See id., at 328, 345-346. Moreover, any distress
arising from what turns out to be a false accusation can be
minimized by keeping the entire process confidential.
For another thing, the District's concern for the adversarial
nature of a suspicion-based regime (which appears to extend even to
those who are
rightly accused) seems to ignore the fact that
such a regime would not exist in a vacuum. Schools already have
adversarial, disciplinary schemes that require teachers and
administrators in many areas besides drug use to investigate
student wrongdoing (often by means of accusatory searches); to make
determinations about whether the wrongdoing occurred; and to impose
punishment. To such a scheme, suspicion-based drug testing would be
only a minor addition. The District's own elaborate disciplinary
scheme is reflected in its handbook, which, among other things,
lists the following disciplinary "problem areas" carrying serious
sanctions: "DEFIANCE OF AUTHORITY," "DISORDERLY OR DISRUPTIVE
CONDUCT INCLUDING FOUL LANGUAGE," "AUTOMOBILE USE OR MISUSE,"
"FORGERY OR LYING," "GAMBLING," "THEFT," "TOBACCO," "MISCHIEF,"
"VANDALISM," "RECKLESSLY ENDANGERING," "MENACING OR HARASSMENT,"
"ASSAULT," "FIGHTING," "WEAPONS," "EXTORTION," "EXPLOSIVE DEVICES,"
and "ARSON." Record, Exh. 2, p. 11; see also id., at 20-21 (listing
rules regulating dress and grooming, public displays of affection,
and the wearing of hats inside); cf. id., at 8 ("RESPONSIBILITIES
OF SCHOOLS" include "To develop and distribute to parents and
students reasonable rules
678
and regulations governing student behavior and attendance" and
"To provide fair and reasonable standards of conduct and to enforce
those standards through appropriate disciplinary action"). The high
number of disciplinary referrals in the record in this case
illustrates the District's robust scheme in action.
In addition to overstating its concerns with a suspicionbased
program, the District seems to have
understated the extent
to which such a program is less intrusive of students' privacy. By
invading the privacy of a few students rather than many
(nationwide, of thousands rather than millions), and by giving
potential search targets substantial control over whether they
will, in fact, be searched, a suspicionbased scheme is
significantly less intrusive.
In any event, whether the Court is right that the District
reasonably weighed the lesser intrusion of a suspicion-based scheme
against its policy concerns is beside the point. As stated, a
suspicion-based search regime is not just any less intrusive
alternative; the individualized suspicion requirement has a legal
pedigree as old as the Fourth Amendment itself, and it may not be
easily cast aside in the name of policy concerns. It may only be
forsaken, our cases in the personal search context have
established, if a suspicion-based regime would likely be
ineffectual.
But having misconstrued the fundamental role of the
individualized suspicion requirement in Fourth Amendment analysis,
the Court never seriously engages the practicality of such a
requirement in the instant case. And that failure is crucial
because nowhere is it
less clear that an individualized
suspicion requirement would be ineffectual than in the school
context. In most schools, the entire pool of potential search
targets-students-is under constant supervision by teachers and
administrators and coaches, be it in classrooms, hallways, or
locker rooms. See T. L. 0., 469 U. S., at 339 ("[A] proper
educational environment requires close supervision of
schoolchildren").
679
The record here indicates that the Vernonia schools are no
exception. 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 inschool
drug use-and thus that would have justified a drugrelated search
under our
T. L. O. decision. See
id., at 340342
(warrant and probable cause not required for school searches;
reasonable suspicion sufficient). 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. Tr. 67 (Apr. 29, 1992). Another group was caught skipping
school and using drugs at one of the students' houses. See id., at
93-94. Several students actually
admitted their drug use to
school officials (some of them being caught with marijuana pipes).
See id., at 24. One student presented himself to his teacher as
"clearly obviously inebriated" and had to be sent home.
Id.,
at 68. 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."
Id., at 89-90. To take a final example, on a certain road
trip, the school wrestling coach smelled marijuana smoke in a motel
room occupied by four wrestlers, see id., at 110-112, an
observation that (after some questioning) would probably have given
him reasonable suspicion to test one or all of them. Cf. 4 LaFave §
10.11(b), at 169 ("[I]n most instances the evidence of wrongdoing
prompting teachers or principals to conduct searches is
sufficiently detailed and specific to meet the traditional probable
cause test").
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 (for which the District
appears already to have rules in place, see Record, Exh. 2, at 14,
17) would have gone a long way toward solving Ver-
680
nonia's school drug problem while preserving the Fourth
Amendment rights of James Acton and others like him. And were there
any doubt about such a conclusion, it is removed by indications in
the record that suspicion-based testing could have been
supplemented by an equally vigorous campaign to have Vernonia's
parents encourage their children to submit to the District's
voluntary drug testing program. See id., at 32 (describing
the voluntary program);
ante, at 665 (noting widespread
parental support for drug testing). 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.
Arizona v.
Hicks, 480 U. S. 321, 329
(1987). 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 counterargument 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,
ante, at 655-656, schools have traditionally
had special guardianlike responsibilities for children that
necessitate a degree of constitutional leeway. This principle
explains the considerable Fourth Amendment leeway we gave school
officials in
T. L. O. In that case, we held that children at
school do not enjoy two of the Fourth Amendment's traditional
categorical protections against unreasonable searches and seizures:
the warrant requirement
681
and the probable cause requirement. See
T. L. 0.,469 U.
S., at 337-343. And this was true even though the same children
enjoy such protections "in a non school setting."
Id., at
348 (Powell, J., concurring).
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, see
Wolfish, 441 U. S., at 558-560 (upholding certain
suspicionless searches of prison inmates); but cf.
supra, at
675 (indicating why suspicion requirement was impractical in
Wolfish), and we have said "[w]e are not yet ready to hold
that the schools and the prisons need be equated for purposes of
the Fourth Amendment." T. L. 0.,
supra, at 338-339. Thus, if
we are to mean what we often proclaim-that students 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 answer must plainly be no.1
1 The Court says I pay short shrift to the original meaning of
the Fourth Amendment as it relates to searches of public school
children. See
ante, at 665, n. 4. As an initial matter, the
historical materials on what the Framers thought of official
searches of children, let alone of public school children (the
concept of which did not exist at the time, see
ante, at
652, n. 1), are extremely scarce. Perhaps because of this, the
Court does not itself offer an account of the original meaning, but
rather resorts to the general proposition that children had fewer
recognized rights at the time of the framing than they do today.
But that proposition seems uniquely unhelpful in the present case,
for although children may have had fewer rights against the private
schoolmaster at the time of the framing than they have against
public school officials today,
parents plainly had
greater rights then than now. At the time of the framing,
for example, the fact that a child's parents refused to authorize a
private schoolmaster's search of the child would probably have
rendered any such search unlawful; after
682
For the contrary position, the Court relies on cases such as
T. L. 0., Ingraham v.
Wright, 430 U. S. 651 (1977), and
Goss v.
Lopez, 419 U. S. 565 (1975). See
ante, at 655-656. 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. See
T. L. 0.,
supra (leeway in investigating
particularized wrongdoing);
Ingraham, supra (leeway in
punishing particularized wrongdoing);
Goss, supra (leeway in
choosing procedures by which particularized wrongdoing is
punished).
By contrast, intrusive, blanket searches of schoolchildren, 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." Tr. 9 (Apr. 29,
1992).
I find unpersuasive the Court's reliance,
ante, at
656-657, on the widespread practice of physical examinations and
vaccinations, which are both blanket searches of a sort. Of course,
for these practices to have any Fourth Amendment significance, the
Court has to assume that these physical exams and vaccinations are
typically "required" to a similar extent that urine testing and
collection is required in the instant case, i.
e., that they
are required regardless of parental
all, at common law, the source of the schoolmaster's authority
over a child was a delegation of the parent's authority. See
ante, at 654-655. Today, of course, the fact that a child's
parents refuse to authorize a public school search of the child-as
James Acton's parents refused here-is of little constitutional
moment. Cf.
Ingraham v.
Wright, 430 U. S. 651, 662, n. 22
(1977) ("[P]arental approval of corporal punishment is not
constitutionally required").
683
objection and that some meaningful sanction attaches to the
failure to submit. In any event, without forming any particular
view of such searches, it is worth noting that a suspicion
requirement for vaccinations is not merely impractical; it is
nonsensical, for vaccinations are not searches
for anything in
particular and so there is nothing about which to be
suspicious. Nor is this saying anything new; it is the same theory
on which, in part, we have repeatedly upheld certain inventory
searches. See,
e. g., South Dakota v.
Opperman, 428
U. S. 364, 370, n. 5 (1976) ("The probable-cause approach is
unhelpful when analysis centers upon the reasonableness of routine
administrative caretaking functions"). As for physical
examinations, the practicability of a suspicion requirement is
highly doubtful because the conditions for which these physical
exams ordinarily search, such as latent heart conditions, do not
manifest themselves in observable behavior the way school drug use
does. See
supra, at 679-680.
It might also be noted that physical exams (and of course
vaccinations) are not searches for conditions that reflect
wrongdoing on the part of the student, and so are
wholly
nonaccusatory and have no consequences that can be regarded as
punitive. These facts may explain the absence of Fourth Amendment
challenges to such searches. By contrast, although I agree with the
Court that the accusatory nature of the District's testing program
is
diluted by making it a blanket one, any testing program
that searches for conditions plainly reflecting serious wrongdoing
can never be made wholly nonaccusatory from the student's
perspective, the motives for the program notwithstanding; and for
the same reason, the substantial consequences that can flow from a
positive test, such as suspension from sports, are invariably-and
quite reasonably-understood as punishment. The best proof that the
District's testing program is to
some extent accusatory can
be found in James Acton's own explanation on the witness stand as
to why he did not want to submit to drug testing: "Because I feel
that they have no
684
reason to think I was taking drugs." Tr. 13 (Apr. 29, 1992). It
is hard to think of a manner of explanation that resonates more
intensely in our Fourth Amendment tradition than this.
II
I do not believe that suspicionless drug testing is justified on
these facts. But even if I agreed that some such testing were
reasonable here, I see two other Fourth Amendment flaws in the
District's program.2 First, and most serious, there is virtually no
evidence in the record of a drug problem at the Washington Grade
School, which includes the seventh and eighth grades, and which
Acton attended when this litigation began. This is not surprising,
given that, of the four witnesses who testified to drug-related
incidents, three were teachers and/or coaches at the high school,
see Tr. 65; id., at 86; id., at 99, and the fourth, though the
principal of the grade school at the time of the litigation, had
been employed as principal of the high school during the years
leading up to (and beyond) the implementation of the drug testing
policy. See id., at 17. The only evidence of a grade school drug
problem that my review of the record uncovered is a "guarantee" by
the late-arriving grade school principal that "our problems we've
had in '88 and '89 didn't start at the high school level. They
started in the elementary school."
Id., at 43. But I would
hope that a single assertion of this sort would not serve as an
adequate basis on which to uphold mass, suspicionless drug testing
of two entire grades of student athletes-in Vernonia and, by the
Court's reasoning, in other school districts as well. Perhaps there
is a drug problem at the grade school, but one would not know it
from this
2 Because I agree with the Court that we may assume the
District's program allows students to confine the advanced
disclosure of highly personal prescription medications to the
testing lab, see
ante, at 660, I also agree that
Skinner controls this aspect of the case, and so do not
count the disclosure requirement among the program's flaws.
685
record. At the least, then, I would insist that the parties and
the District Court address this issue on remand.
Second, even as to the high school, I find unreasonable the
school's choice of student athletes as the class to subject to
suspicionless testing-a choice that appears to have been driven
more by a belief in what would pass constitutional muster, see id.,
at 45-47 (indicating that the original program was targeted at
students involved in any extracurricular activity), than by a
belief in what was required to meet the District's principal
disciplinary concern. Reading the full record in this case, as well
as the District Court's authoritative summary of it, 796 F. Supp.
1354, 1356-1357 (Ore. 1992), it seems quite obvious that the true
driving force behind the District's adoption of its drug testing
program was the need to combat the rise in drug-related disorder
and disruption in its classrooms and around campus. I mean no
criticism of the strength of that interest. On the contrary, where
the record demonstrates the existence of such a problem, that
interest seems self-evidently compelling. "Without first
establishing discipline and maintaining order, teachers cannot
begin to educate their students."
T. L. 0., 469 U. S., at
350 (Powell, J., concurring). And the record in this case surely
demonstrates there was a drug-related discipline problem in
Vernonia of "'epidemic proportions.'" 796 F. Supp., at 1357. The
evidence of a drug-related sports injury problem at Vernonia, by
contrast, was considerably weaker.
On this record, then, it 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, see Record, Exh. 2, at 9,
ll-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 behav-
686
ior, 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,"
ante,
at 663, would already exist, due to the antecedent accusation and
finding of severe disruption. In a lesser known aspect of
Skinner, we upheld an analogous testing scheme with little
hesitation. See
Skinner, 489 U. S., at 611 (describing"
'Authorization to Test for Cause'" scheme, according to which train
operators would be tested "in the event of certain specific rule
violations, including noncompliance with a signal and excessive
speeding").
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.
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