Message in a Bottle: Vernonia School District 47J v. Acton

Transcription

MESSAGE IN A BOTTLE: VERNONIA SCHOOL
DISTRICT 47J v. ACTON
-"[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."'
INTRODUCTION
The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue
but upon probable cause, supported by Oath or affirmation,
and particularly describing the2 place to be searched, and the
persons or things to be seized.
The purpose of the Fourth Amendment is to safeguard individual
privacy and security from the unjustified or arbitrary intrusions of
government officials. 3 These prohibitions apply to searches conducted
by both civil and criminal authorities. 4 Because the Fourteenth
Amendment makes the Fourth Amendment applicable to the states,
the prohibition against unreasonable searches and seizures thus applies not only to the federal government, but also to the states and
5
their officials, including school boards of education.
The United States Constitution does not proscribe all searches,
but only those which are "unreasonable."6 Whether a particular
search satisfies the "reasonableness" requirement depends, at least in
part, upon the object of the search and the circumstances under which
the search takes place.7 When the object of a search is to discover
evidence of criminal activities, satisfaction of the reasonableness test
1. Statement of James Acton's father on the witness stand, Vernonia School Dis-
trict 47J v. Acton, 115 S.Ct. 2386, 2404 (1995) (Tr. 9, Apr. 29, 1994).
2. U.S. CONST. amend. IV.
3. New Jersey v. T.L.O., 469 U.S. 325, 335 (1985).
4. T.L.O., 469 U.S. at 335 (stating that "[ilt
would be anomalous to say that the
individual and his private property are fully protected by the Fourth Amendment only
when the individual is suspected of criminal behavior").
5. Id.
6. Carroll v. United States, 267 U.S. 132, 146 (1925).
7. T.L.O., 469 U.S. at 337.
CREIGHTON LAW REVIEW
[Vol. 29
usually requires that the government official obtain a judicially issued
warrant prior to the search.8
Neither a judicially issued warrant nor probable cause, however,
is an indispensable prerequisite to a government official's authority to
conduct a search. 9 In certain situations, when "special needs, beyond
the normal need for ordinary law enforcement, make the warrant and
probable cause requirement impracticable," a search that is carried
out pursuant to neither warrant nor probable cause may nonetheless
pass constitutional muster.' 0 In these situations, the United States
Supreme Court has instituted a "balancing test," weighing the intrusion upon the individual's reasonable privacy expectations against the
government's legitimate interest in conducting the search."
The
Supreme Court has held that these "special needs" exist in the context
of the public schools.'
2
In Vernonia School District 47J v. Acton,' 3 the Vernonia School
District ("District") responded to what it perceived as a drug-driven
disciplinary crisis by implementing a "suspicionless" and random drug
testing policy targeting those athletes involved in interscholastic
sports.' 4 The parents of James Acton, a student in the Vernonia
School District, brought an action challenging the District's
mandatory drug testing program.' 5 The Actons argued that the District's policy violated James' Fourth Amendment rights, which protect
against unreasonable searches and seizures.' 6 In its decision, the
United States Supreme Court followed its prior precedent and employed the "special needs" balancing test, finding that the District's
drug testing policy did not constitute a violation of James' right to be
i7
free from unreasonable searches.
8. Vernonia Sch. Dist. 47J, 115 S.Ct. at 2390. There are, of course, certain welldelineated exceptions to the warrant requirement. Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 619 (1988). These exceptions, for the most part, are beyond
the scope of this Note. See infra notes 259-386 and accompanying text for a discussion
of suspicionless testing within the context of the public schools.
9. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989).
10. Griffin v. Wisconsin, 483 U.S. 868, 873 (1987).
11. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). See
United States v. Place, 462 U.S. 696, 703 (1983).
12. Vernonia Sch. Dist. 47J, 115 S.Ct. at 2391. The United States Supreme Court
has explained that, in the school setting, the warrant requirement would hinder the
"swift and informal disciplinary procedures" that are needed and that a strict adherence
to the rule that searches be based on probable cause would undermine the teachers' and
administrators' need to have a free hand in maintaining order in the schools. Id. at
2391 (quoting New Jersey v. T.L.O., 469 U.S. 325, 340 (1984)).
13. 115 S. Ct. 2386 (1995).
14. Acton v. Vernonia Sch. Dist. 47J, 23 F.3d 1514, 1516-17 (9th Cir. 1994), vacated, 115 S. Ct. 2386 (1995).
15. Vernonia Sch. Dist, 47J v. Acton, 115 S. Ct. 2386, 2390 (1995).
16. Vernonia Sch. Dist. 47J, 115 S. Ct. at 2390.
17. Id. at 2390, 2396.
1996]
DRUG TESTING IN SCHOOLS
This Note will, first, review the holding of the United States
Supreme Court in Vernonia School District 47J v. Acton.1 8 Second,
this Note will examine the balancing test set forth in Skinner v. Railway Labor Executives Association 19 and National Treasury Employees
Union v. Von Raab20 as well as the leniency afforded to public school
officials with respect to the Fourth Amendment under New Jersey v.
T.L.O. 2 1 Third, after reviewing court decisions involving suspicionless
searches, this Note will apply the reasoning of those decisions to the
facts in Vernonia and will conclude that the opinion of the United
States Supreme Court in Vernonia Sch. Dist. 47J v. Acton 22 was erroneous in light of the provisions of the Fourth Amendment and existing
case law.
28
FACTS AND HOLDING
Vernonia, Oregon, a rural logging community of approximately
3,000 persons, operated three grade schools and one high school
School
within the community. 2 4 Total enrollment within the Vernonia
25
District ("District") consisted of approximately 690 students.
Citizens of small towns across America tend to take a keen and
proprietary interest in their school sports teams, and, as such, interscholastic athletics were an item of central interest in Vernonia. 2 6 An
estimated 60-65% of the high school students took part in the District's athletic programs, and the percentage of participants among
the elementary school pupils was even higher. 2 7 Vernonia's athletes
and enjoyed a certain amount of prestige
were admired by their peers
28
within the community.
Drug use in the District's school system was not a major problem
prior to the 1980s. 29 However, beginning in 1985, teachers, coaches,
18. See infra notes 25-113 and accompanying text.
19. 489 U.S. 602 (1989).
20. 489 U.S. 656 (1989).
21. 469 U.S. 325 (1985). See infra notes 227-49 and accompanying text.
22. 115 S. Ct. at 2386 (1995).
24. Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386 (1995).
25. Brief for Petitioner at 3, Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386
(1995) (No. 94-590).
26. Id.
27. Acton v. Vernonia Sch. Dist. 47J, 796 F. Supp. at 1354, 1356, vacated, 115 S.
Ct. 2386 (1995). About 75% of the elementary school students took part in districtsponsored athletics, Id.
28. Vernonia Sch. Dist. 47J, 115 S. Ct. at 2388. For grades seven through twelve,
the District offered seven different sports at the interscholastic level: cross county, football, track, basketball, wrestling, volleyball, and golf. Brief for Respondent at 1,
Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386 (1995) (No. 94-590).
29. Acton v. Vernonia Sch. Dist. 47J, 23 F.3d 1514, 1516 (9th Cir. 1994), vacated,
115 S. Ct. 2386 (1995).
[Vol. 29
and administrators noticed a sharp increase in disciplinary problems,
30
drug and alcohol abuse, and the glorification of the drug culture.
During the 1988-89 school year, more than twice the number of disci31
Stuplinary referrals occurred than were made in the early 1980s.
dents exhibited bizarre behavior during school hours and were
disrespectful and profane. 32 The students also formed cliques, taking
for themselves some rather unusual appellations, including "The Big
Elks" and "The Drug Cartel."3 3 The members of these groups, some of
whom were athletes, displayed their camaraderie by means of "bugling" and "head-butting" when they met in the hallways. 3 4 On one
occasion, five of the school's finest athletes skipped school, held a
party, and were subsequently arrested on alcohol and marijuana
36
charges. 3 5 Other students stole liquor following a track meet.
School officials were convinced that the leading student athletes
were also the ringleaders of the drug-inspired counterculture. 37 The
District was concerned that substance abuse by athletes would increase the chances of sports-related injuries. 38 Faced with "disciplinary problems of epidemic proportions," the District responded by
offering various classes, speakers, and presentations aimed at the deterrence of drug use. 39 The problem, however, persisted. 40 Despite
30. Vernonia Sch. Dist. 47J, 115 S. Ct. at 2388-89. The record reflected several
incidents exemplifying student drug use. Id. at 2403. For example, one teacher had
often seen students smoking marijuana during the school day at a cafe across the street.
Id. Another teacher received several essays glorifying drug and alcohol use. Id. A boy
was also injured at a wrestling match when he failed to properly execute a basic safety
maneuver. Id. When the coach went to check on him later, the student's hotel room
smelled of marijuana. Id. Parents also heard rumors of drug use on a football trip. Id.
When confronted, the students admitted using marijuana. Id.
32. Id. at 2388, 2403. The United States Supreme Court explained that:
One student presented himself to his teacher as 'clearly obviously inebriated'
and had to be sent home. Still another was observed dancing and singing at
the top of his voice at the back of the classroom; when the teacher asked what
was going on, he replied, "Well, I'm just high on life."
Id. at 2403, 2388.
33. Vernonia Sch. Dist. 47J, 796 F. Supp. at 1356.
34. Brief for Petitioner at 6, Vernonia Sch. Dist. 47J (No. 94-590).
35. Id.
37. Vernonia Sch. Dist. 47J, 115 S.Ct. at 2388.
38. Id. The Court explained that the high school coach watched a wrestler suffer a
severe sternum injury during a match. Id. Football players also failed to execute welldrilled safety maneuvers. Id. The football coach attributed this to drug use. Id. See
also United States Supreme Court, transcript of oral argument, March 28, 1995, p. 3435 (stating that only one injury might have been tied to drug use, but this was not
confirmed by tests.)
39. Vernonia Sch. Dist. 47J, 796 F. Supp. at 1357; Vernonia Sch. Dist. 47J, 115 S.
Ct. at 2388. The District even brought in a drug sniffing dog for one day. Id.; Brief for
Respondent at 1, Vernonia Sch. Dist. 47J (No. 94-590).
1996]
these measures, a substantial portion of the student population, including a number of those who took part in interscholastic athletics,
remained "in a state of rebellion." 4 1 Therefore, the District determined that immediate action was necessary to combat the growing
42
problem.
The District concluded that "the rebellion was being fueled by alcohol and drug abuse as well as the students' misperceptions about
the drug culture."43 As a result, the District considered the possibility of implementing a drug testing program. 4 4 During a specially convened "parent input night," the parents in attendance unanimously
approved the proposed Student Athlete Drug Policy ("Policy"), which
the School Board subsequently approved and implemented during the
fall of the 1989 school year. 45 The District's policy originally applied
to all extracurricular activities, including drama, band, and student
government, but was later modified to apply only to athletic
46
programs.
The Policy's purpose was to protect the health and safety of student athletes by preventing and deterring drug use and applied to all
students in the school district who participated in interscholastic athletics, including grade school student James Acton.4 7 Students who
wished to play team sports at the interscholastic level had to first consent in writing to drug testing by urinalysis and obtain parental con48
sent to the testing.
All participants in the athletic programs were tested at the commencement of the season for their particular sport. 4 9 School officials
then tested approximately ten percent of the athletes at random each
week.5 0 The athletes were individually notified and tested during the
41. Id. None of the District's measures seemed to have an effect on the students'
behavior. Vernonia Sch. Dist. 47J, 796 F. Supp. at 1358.
45. Id.
46. Brief for Respondent at 9, Vernonia Sch. Dist. 47J (No. 94-590). To "assure its
legality," the policy was eventually modified to its present form, which affected only
student athletes involved in interscholastic sports. Brief for Petitioner at 9, Vernonia
Sch. Dist. 47J (No. 94-590); Brief for Respondent at 9, Vernonia Sch. Dist. 47J (No. 94590). The original Policy was in effect from September of 1989 through August of 1990.
Id.
47. Vernonia Sch. Dist. 47J, 115 S. Ct. at 2389-90.
48. Vernonia Sch. Dist. 47J, 23 F.3d at 1516; Vernonia Sch. Dist. 47J, 115 S. Ct. at
2389.
50. Id. at 1357. Each week, numbers corresponding to the participating athletes'
names were placed in a pool. Id. A student then drew the numbers from the pool for
testing purposes but was not informed of the students' names corresponding to the
numbers drawn. Id.
866
[Vol. 29
possible, on the
course of the day. 5 ' The urine sample was collected,5if
2
same day that the student was selected for testing.
The selected student was then instructed to complete a numbered
specimen control form.5 3 The student identified in advance any prescription medications taken and also submitted a doctor's authorization or a copy of the prescription. 54 An adult male monitor then
escorted the boys to a vacant locker room.55 The boys, who remained
fully clothed, were instructed to stand facing the urinals while urinating into the specimen cup.5 6 The adult monitor stood behind the boys
at a distance of twelve to fifteen feet and listened for the sounds of
normal urination.5 7 Girls first reported to the office of their athletic
director and then produced their samples from inside an enclosed toilet stall.5 8 The female monitor stood outside the stall, alert for the
59
signals of meddling or misconduct in producing the specimen.
The student returned the specimen cup to the monitor who
60
checked it for temperature and other obvious signs of tampering.
The monitor then poured the urine specimen from the collection cup
into a vial that was labeled, sent to an independent laboratory, and
61
tested for the presence of amphetamines, cocaine, and marijuana.
The specimens were not screened for the presence of alcohol or per62
formance enhancing drugs such as steroids.
52. Id.
53. Id.
54.
Id.
56. Id.
58. Vernonia Sch. Dist. 47J,23 F.3d at 1516; Vernonia Sch. Dist. 47J, 796 F. Supp.
at 1358.
59. Vernonia Sch. Dist. 47J, 796 F. Supp. 1357.
60. Id.
61. Id. The District could also request that the laboratory screen the sample for
the presence of LSD. Vernonia Sch. Dist. 47J, 115 S. Ct. at 2389. The identity of the
individual student, however, did not govern the choice of the substances for which the
laboratory tested. Id.
62. Brief for Petitioner at 9, Vernonia Sch. Dist 47J (No. 94-590); Brief for Respondent at 9, Vernonia Sch. Dist. 47J, (No. 94-590). The District Court stated that the
urine samples were also screened for alcohol. Vernonia Sch.Dist. 47J, 796 F. Supp. at
1358. This statement, however, did not appear in any of the subsequent opinions, and
the Respondent's brief specifically mentioned alcohol as a substance that was "notably
absent from the list" of substances for which the samples were screened. Vernonia Sch.
Dist. 47J, 23 F.3d at 1514; Vernonia Sch. Dist. 47J, 796 F. Supp. at 1354; Brief for
Respondent at 9, Vernonia Sch. Dist. 47J, (No. 94-590). The Reply Brief for the Petitioner did not contest this assertion, but stated: "The Actons note that the Policy does
not test for alcohol and steroids. The District need not show that the Policy was either
the broadest deterrent possible or the least restrictive alternative." Reply Brief for the
Petitioner at 17, Vernonia Sch. Dist. 47J (No. 94-590).
1996]
If the student tested positive, the District conducted a second test
as soon as possible to confirm or repudiate the result. 63 The District
64
took no further action if the result of the second test was negative.
If the result of the second test was also positive, the District then notified the student's parents. 6 5 A student who returned two positive results was given the option of either being subjected to weekly drug
tests and attending a substance abuse counseling program for a period
of six weeks or of being suspended from sports for the rest of the season and for the entire upcoming season. 66 The District suspended for
the season any student who, at any time, refused to be tested.6 7 As of
68
1994, only two students had tested positive.
In the fall of 1991, James Acton was a seventh grade student at
the Washington Grade School in Vernonia. 69 James tried out for the
football team, and the school distributed drug testing consent forms at
the first practice. 70 James and his parents together made the decision
to refuse to sign the consent forms. 7 1 As a result, the District sus72
pended James from the team for the remainder of the 1991 season.
No evidence suggested that James used drugs or that the District had
reason to suspect that he did.73 Further, there was virtually no evi74
dence that the Washington Grade School had a drug problem.
63. Vernonia Sch. Dist. 47J, 23 F.3d at 1517.
64. Id.
65. Id.
66. Id. A third "offense" required that the student be suspended for the rest of the
current season as well as for the two following seasons. Vernonia Sch. Dist. 47J, 115 S.
Ct. at 2390.
68. Brief of Respondent at 8, Vernonia Sch. Dist. 47J (No. 94-590). The program
was implemented in the fall of 1989. Vernonia Sch. Dist. 47J, 796 F. Supp. at 1354.
69. Id. at 1359.
70. Id.
73. Id. See Robert C. Farley, Jr., Search of the Student Athlete - Acton v.
Vernonia School District47J,23 F.3d 1514 (9th Cir. 1994) cert. granted, 115 S.Ct. 571
(Nov. 28, 1994). 69 TEMp. L. REv. 439, 442 (1995).
74. Vernonia Sch. Dist. 47J, 115 S.Ct. at 2405 (O'Connor, J., dissenting). Justice
Sandra Day O'Connor stated:
There is virtually no evidence in the record of a drug problem at the Washington Grade School .... [Of the four witnesses who testified to drug-related
incidents, three were teachers and/or coaches at the high school, 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. The only evidence
of a grade school drug problem... 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.' 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."
Id. (O'Connor, J., dissenting).
[Vol. 29
Following his suspension from the football team, James' parents filed
suit on his behalf in the United States District Court for the District of
Oregon. 75 The Actons sought declaratory and injunctive relief, claiming that the Policy violated James' rights under both the Fourth
Amendment and Article I, Section 9 of the Oregon Constitution. 76 The
district court denied relief, and the Actons appealed. 77 The United
States Court of Appeals for the Ninth Circuit reversed, holding that
the District's need to search its students did not outweigh the legitimate privacy interests of the students. 78 The District appealed, and
79
the United States Supreme Court granted certiorari.
On appeal, the United States Supreme Court vacated the judgment of the Ninth Circuit and remanded the case for proceedings consistent with its opinion.80 The Supreme Court found that the
District's testing program was a reasonable search, and, thus, that the
Policy was constitutional. 8 ' Justice Antonin Scalia, writing for the
Court, noted that the collection and analysis of urine in the manner
prescribed by the Policy constituted a state-initiated "search," subject
to the strictures of the Fourth Amendment. 2 The Court stated that
the constitutionality of a search is ultimately to be measured against a
standard of "reasonableness" and that reasonableness generally requires a warrant or a finding of probable cause.8 3 The Court further
explained that, under certain circumstances, neither a warrant nor
probable cause is necessary for a search to meet constitutional standards.8 4 The Court stated that an evaluation of the reasonableness of
75.
Vernonia Sch. Dist. 47J, 23 F.3d at 1517; Vernonia Sch. Dist.47J, 796 F. Supp.
at 1356.
76. Vernonia Sch. Dist. 47J, 796 F. Supp. at 1356. Article I, Section 9 of the Oregon Constitution provides:
SECTION 9. UNREASONABLE SEARCHES OR SEIZURES. No law shall violate the
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable search, or seizure; and no warrant shall issue but upon
probable cause, supported by oath, or affirmation, and particularly describing
the place to be searched, and the person or thing to be seized.
Const. of Oregon, art. I, § 9.
The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.
U.S. CONST. amend. IV.
77. Vernonia Sch. Dist. 47J, 23 F.3d 1516.
78. Id. at 1525-27.
79. Vernonia Sch. Dist. 47J, 115 S.Ct. at 571 (1994) (mem.).
81. Id. at 2396.
82. Id. at 2390.
83. Id.
84. Id. at 2390-91.
1996]
a search necessitated balancing its "intrusion on the individual's
Fourth Amendment interests against its promotion of legitimate governmental interests."8 5
The Court stated that the first factor to consider when evaluating
the reasonableness of a search is the scope of the privacy interest intruded upon by the search.8 6 The Court noted that the interest must
be a legitimate expectation of privacy that will vary both with the con87
text and with the legal relationship of the individual with the state.
The Court noted that minors lack the most "fundamental rights of
self-determination."8 8 In the school context, the Court stated that
teachers and administrators stand in loco parentis with respect to the
children, and so the state, through its schools, possesses a degree of
"supervision and control" over the students who are entrusted to the
schools' care that the state does not possess over free adults.8 9 The
Court also found that schoolchildren, and student athletes in particular, have a "diminished expectation of privacy" compared with that of
members of the public at large. 90
The Court stated that the second factor to consider when evaluating the reasonableness of the search is the intrusion of the search
upon the privacy interests of the student athletes. 9 1 The Court found
that the conditions under which the testing was conducted in the
Vernonia School District were "nearly identical" to those found in public restrooms. 92 The Court characterized the intrusion upon the students' privacy interests as "negligible." 93 The Court also discounted
the other intrusion which urinalysis posed to the students' privacy interest - the advance disclosure of prescription medications and the
private physiological information disclosed by the screening process
itself. 94 The Court explained that these intrusions were minimized
because the results of the testing were only disclosed to school personnel having a "need to know" and did not become the basis of any disciplinary action. 95
85. Id. at 2390.
86. Id. at 2391.
87. Id. The Court explained that the Fourth Amendment does not protect all privacy expectations, but only those privacy expectations recognized by society. Id.
89. Id.
90. Id. at 2392. With respect to student athletes, the Court explained that sports
are not for the bashful. Id. The Court pointed out that athletes change and shower in
front of one another. Id. The Court also noted that, by choosing to participate in a
sport, athletes also chose to be subject to more regulation than the average student. Id.
92. Id.
93. Id.
94. Id. at 2393-94.
95. Id. at 2393.
870
[Vol. 29
The Court explained that the third factor to examine was the government interest at issue and the efficacy of the means the government used to achieve its interest. 9 6 The Court noted that the
government had a special and compelling interest in maintaining order in the schools and in protecting the health and safety of student
athletes from the menace of drug use. 9 7 The Court explained that
drug use has its most severe effects during the school years and disrupts the educational process. 98
The Court stated that a drug problem "fueled" by athletes who are
role models is effectively addressed by ensuring that athletes refrain
from drug use. 99 The Court noted that the least intrusive search - a
search based on suspicion - is not the only reasonable search under
the Fourth Amendment.10 0 The Court explained that testing based on
suspicion would become a "badge of shame" for those students who
were singled out for testing and that there was a danger that the testing might be conducted arbitrarily. 10 1 The Court also noted that suspicion based testing would require teachers to detect drug use, a duty
for which they are not well prepared. 10 2 Based on these factors, the
03
Court held the Policy to be constitutional. 1
Justice Sandra Day O'Connor wrote a dissenting opinion, joined
by Justices Stevens and Souter. 1° 4 Justice O'Connor criticized the
majority's statement that the Fourth Amendment does not mandate
that a "search be conducted by the least intrusive means."105 Justice
O'Connor stated that suspicion based testing was not just a less intrusive alternative, "but one with a legal pedigree as old as the Fourth
Amendment itself," and should not be abandoned on policy
grounds.' 0 6 Justice O'Connor also noted that mass suspicionless
searches have traditionally been held to be per se unreasonable under
the Fourth Amendment and that the Court previously allowed exceptions to the suspicion requirement only where a suspicion based
96.
97.
98.
99.
100.
101.
102.
103.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
at
at
at
at
at
2394.
2396.
2395.
2395-96.
2396.
at 2395.
at 2396. Justice Ruth Bader Ginsburg filed a concurring opinion, interpret-
ing the Court's holding as reserving comment on the question of whether all public
school students could be required to submit to drug testing by urinalysis. Id. at 2397
(Ginsburg, J., concurring).
104. Vernonia Sch. Dist. 47J, 115 S. Ct. at 2396 (O'Connor, J., dissenting).
105. Id. at 2396 (O'Connor, J., dissenting).
19961
search would clearly prove ineffective.10 7 Justice O'Connor, noting
that the facts of Vernonia did not satisfy these exceptions, dissented.1 0 8 Justice O'Connor noted that the majority's opinion opened
the door for intrusive bodily searches of millions of students involved
in interscholastic sports, most of whom have given officials no reason
to believe that they are using drugs.' 0 9 Justice O'Connor further
noted that suspicionless searches have previously been allowed only in
instances where a suspicion based search would have been
ineffective. 11 0
Justice O'Connor then pointed out that the driving force behind
the District's Policy was its desire to end the class disruptions caused
by a few high school students whom the District suspected of drug
use.'
Justice O'Connor explained that the "great irony of this case"
was that the District could have solved its discipline problems by
means of a suspicion based testing program that would have been permissible under previous Supreme Court decisions."i 2 Justice
O'Connor found that the District's policy swept too broadly and imprecisely to be a reasonable search within the meaning of the Fourth
i3
Amendment."
BACKGROUND
The Fourth Amendment does not prohibit all searches; it only prohibits unreasonable searches."i 4 The United States Supreme Court
has recognized the offensive character of search by general warrant." i 5 The particularity requirement of the Warrant Clause repudiated the practice of search by general warrants."i 6 This requirement
made "general searches ...impossible and prevents the seizure of one
thing under a warrant describing another."" i 7 For searches at sea,
where warrants were not required, the same Congress that proposed
the Fourth Amendment passed legislation limiting officials to search107. Id. at 2397 (O'Connor, J., dissenting). See Kenneth Nuger, The Special Needs
Rationale:Creating a Chasm in FourthAmendment Analysis, 32 SANTA CLARA L. REv.
89, 115 (1992).
108. Veronia Sch. Dist. 47J, 115 S. Ct. at 2387 (O'Connor, J., dissenting).
110. Id. (O'Connor, J., dissenting).
114. Carroll v. United States, 267 U.S. 132, 146 (1925).
115. Berger v. New York, 388 U.S. 41, 57-58 (1967).
116. Berger, 388 U.S. at 57-58.
117. Marron v. United States, 275 U.S. 192, 196 (1927).
[Vol. 29
ing only those ships in which they had "reason to suspect" that contra8
band was concealed.1
In Carroll v. United States,1 1 9 the United States Supreme Court
recognized that in some situations it is impractical to obtain a warrant
for an automobile search. 120 The Court held that the legality of such a
search and any ensuing seizure depends on whether the officer has
"reasonable or probable cause for believing that the automobile which
he stops and seizes [contains contraband]." 121 Probable cause exists
when the facts and circumstances give rise to a reasonable belief that
an offense has been committed. 12 2 The Court also condemned the concept of mass, suspicionless searches of automobiles on the highways,
characterizing such searches as both "intolerable and
23
unreasonable.'
118. The Collection Act of July 31, 1789, § 24, 1 Stat. 43 (1789). See Carroll v.
United States, 267 U.S. 132, 149 (1925) (discussing the distinction drawn by Congress
between the necessity for a warrant to search homes and buildings on land and the
reasonable suspicion required to search a vessel that could be moved outside the reach
of a warrant).
119. 267 U.S. 132 (1925).
120. Carroll v. United States, 267 U.S. 132, 153 (1925). In Carroll,federal prohibition agents recognized the occupants of an automobile as the same persons who had
been the objects of an unsuccessful undercover liquor buy some months earlier. Carroll,
267 U.S. at 135. The agents stopped and searched the automobile and seized the whiskey it contained. Id. at 136. The defendants were arrested, indicted, and convicted of
violating the National Prohibition Act. Id. at 134. The defendants appealed their convictions on the ground that the search of their automobile and the seizure of the liquor
were violations of the Fourth Amendment. Id.
121. Carroll, 267 U.S. at 155-56. The United States Supreme Court first departed
from a requirement of individualized suspicion in Camara v. Municipal Court of City
and County of San Francisco, 387 U.S. 523 (1967); See Thomas K. Clancy, The Role of
Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25
MEM. ST. U. L. REv. 483, 544-49 (1995). In Camara,an inspector from the San Francisco Department of Public Health entered Camara's apartment building to make a routine search for violations of the housing code. Camara, 387 U.S. at 525. Upon learning
that Camara was using the rear of his leased premises as a personal residence, the
inspector demanded that Camara permit an inspection. Id. at 526. Camara refused to
allow the inspector inside without a search warrant. Id. The inspector returned two
'days later without a warrant and was again refused entry. Id. Camara received a citation in the mail, mandating that he appear at the district attorney's office. Id. When
Camara did not appear, the inspectors returned to Camara's home and informed him
that the law required that he permit the inspection. Id. Camara was eventually arrested for refusing to permit the inspection. Id. at 527. On appeal from the California
Supreme Court, the United States Supreme Court explained that warrantless searches
must still comply with a standard of "reasonableness." Id. at 525, 531. In arriving at its
finding that the search was "reasonable," the Court balanced the need to search against
the invasion posed by the search. Id. at 536. The Court also noted a strong public
interest in preventing or abating dangerous conditions and that the intrusion was relatively limited in nature. Id.
122. Carroll, 267 U.S. at 161.
123. Id. at 153-54. The Court explained that "[iut would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of
finding liquor and thus subject all persons lawfully using the highways to the inconven-
1996]
873
SUSPICIONLESS SEARCHES AND THE "SPECIAL NEEDS" BALANCING TEST
The United States Supreme Court has recognized that "special
needs," outside the scope of ordinary law enforcement, sometimes
render the warrant and individualized suspicion requirements impractical. 124 This "special needs" test was first articulated by Justice
Harry Blackmun in New Jersey v. T.L.O. 1 25 and was later adopted by
12 6
the majority as the special needs rule.
When special needs exist, courts have employed a balancing test
measuring the level of intrusion upon an individual's legitimate expectations of privacy against the government's legitimate interest in conducting the search. 127 This balancing test is applied to a wide range
of governmental intrusions upon individual privacy. 128 When the requirement of individualized suspicion has been rendered impractical,
there must be sufficient other safeguards to ensure that the "individual's reasonable expectation of privacy is not 'subject to the discretion
of the official in the field.'
"129
ience and indignity of such a search." Id. See Delaware v. Prouse, 440 U.S. 648 (1979)
(holding that a suspicionless stop of a motorist for a license and registration check resulting in discovery of marijuana was unconstitutional); Ybarra v. Illinois, 444 U.S. 85
(1979) (holding that patting down all tavern patrons in an establishment suspected of
being a drug dealing site was unconstitutional); United States v. Brignoni-Ponce, 422
U.S. 873 (1975) (holding that roving Border Patrol agents' random stops of vehicles to
check for illegal aliens was unconstitutional). But see United States v. Martinez-Fuerte,
428 U.S. 543 (1976) (holding that fixed checkpoint stop of all motorists was consistent
with the Fourth Amendment); Michigan Dept. of State Police v. Sitz, 496 U.S. 444
(1990) (holding that a sobriety checkpoint program was consistent with the Fourth
Amendment).
124. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-666 (1989).
125. New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring).
Justice Harry Blackmun stated:
While the Fourth Amendment speaks in terms of freedom from unreasonable
searches, the Amendment does not leave the reasonableness of most searches
to the judgment of courts or government officers; the Framers of the Amendment balanced the interests involved and decided that a search is reasonable
only if supported by a judicial warrant based on probable cause. [citations
omitted] Only in exceptional circumstances, in which special needs, beyond the
normal need for law enforcement, make the warrant and probable cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers.
T.L.O., 469 U.S. at 351 (Blackmun, J., concurring).
126. Russell W. Galloway, Jr., Basic FourthAmendment Analysis, 32 SANTA CLARA
L. REV. 737 n.111 (1992).
127. Von Raab, 489 U.S. at 665-66.
128. Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 MEM. ST. U. L. REv. 483, 544 (1995).
129. Delaware v. Prouse, 440 U.S. 648, 654-55 (1979) (citations omitted). See
Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 532
(1967).
[Vol. 29
The United States Supreme Court, in Delaware v. Prouse,13 0 held
that random, suspicionless searches of automobiles for the purpose of
checking for licenses and registrations were unconstitutional. 13 1
Prouse's automobile was stopped by a police officer who smelled marijuana smoke as he approached the vehicle.' 3 2 The officer then seized
marijuana that was in plain view inside the car. 13 3 Prouse was indicted for possession of a controlled substance.' 3 4 At a hearing on a
motion to suppress the marijuana seized during the stop, the officer
testified that he had observed no suspicious activity prior to stopping
the vehicle and had only stopped the vehicle to check the driver's license and registration. 135 The trial court granted the motion to suppress, finding that the stop and detention were entirely capricious and
therefore violative of the Fourth Amendment.136 The state appealed,
and the Delaware Supreme Court affirmed. 137 The state again ap38
pealed, and the United States Supreme Court granted certiorari.'
On appeal, the United States Supreme Court noted that the exercise of discretion by law enforcement officials was ultimately to be
measured by a standard of "reasonableness."1 39 A particular practice
of law enforcement was to be evaluated by balancing the intrusion of
the practice upon the individual's privacy interests against the legitimate government interests furthered by the intrusion. 14 0 In those situations where individualized suspicion was precluded by the balance
of interests, the Supreme Court explained that there must be other
reliable safeguards ensuring that the individual's legitimate expectations of privacy were not "subject to the discretion of the official in the
field."14 1 The Court acknowledged that the state had a "vital interest"
in ensuring that only safe vehicles and qualified drivers were permitted to use the roads. 142 Nonetheless, the Court held that, because the
percentage of unlicensed or unregistered drivers was very small compared to the number of licensed drivers who would be stopped in order
to find the violators, the resulting contribution to safety was a marginal one that did not justify such an intrusion. 143 The Court ultimately
130.
440 U.S. 648 (1979).
131. Delaware v. Prouse, 440 U.S. 648, 657 (1979).
132. Prouse, 440 U.S. at 650.
133. Id.
134. Id.
135. Id.
136. Id. at 651.
137.
138.
139.
140.
141.
142.
143.
Id.
Delaware v. Prouse, 439 U.S. 816 (1978) (mem.).
Prouse, 440 U.S. at 653.
Id.
Id. at 654-55.
Id. at 658.
Id. at 659-60.
19961
held that the spot check did not qualify as a reasonable search under
14 4
the Fourth Amendment.
Mass Suspicionless Searches
The United States Supreme Court has also examined situations
in which a suspicionless search has the potential for involving vast
numbers of innocent citizens. 14 5 In United States v. BrignoniPonce,14 6 the Supreme Court held a suspicionless Border Patrol stop
to be unconstitutional because the law enforcement needs did not justify the potential for almost unlimited interference with lawful traffic
at the sole discretion of officers of United States Border Patrol. 147 In
Brignoni-Ponce,United States Border Patrol officers on roving patrol
stopped and questioned the occupants of an automobile.1 48 The officers stopped the car because the driver and his two passengers appeared to be of Mexican descent. 14 9 Upon questioning the occupants
of the automobile, the officers determined that the passengers were
illegal aliens. 150 The officers arrested all three persons, and the
driver of the car was charged with knowingly transporting illegal immigrants. 15 1 At trial, Brignoni-Ponce, the driver of the vehicle, moved
to suppress any testimony given by or regarding his two passengers on
the grounds that the officers had illegally seized the evidence. 152 The
trial court denied the motion and allowed the testimony. 153 The
United States Court of Appeals for the Ninth Circuit reversed, holding
that the Fourth Amendment prohibited the stopping of a vehicle in the
absence of a "founded suspicion" that the occupants were illegal
aliens. 15 4 The Ninth Circuit found that Mexican ancestry alone could
not give rise to such a suspicion. 15 5 The United States appealed, and
the United States Supreme Court granted certiorari. 156
The United States Supreme Court affirmed the decision of the
Ninth Circuit.' 5 7 The Supreme Court balanced the "valid public interest" of preventing illegal border crossings against the interference
144.
145.
146.
Id. at 660.
See infra notes 146-98 and accompanying text.
422 U.S. 873 (1975).
147. United States v. Brignoni-Ponce, 422 U.S. 873, 882-83, 896 (1975).
148. Brignoni-Ponce, 422 U.S. at 875.
149. Id.
150. Id.
151. Id.
152. Id. Respondent Brignoni-Ponce argued that the evidence was "the fruit of an
illegal seizure." Id.
153. Brignoni-Ponce,422 U.S. at 875.
154. Id. at 876.
155. Id.
156.
Bowen v. United States, 419 U.S. 824 (1974) (mem.).
[Vol. 29
with individual liberty posed by roving Border Patrol stops.' 58
Although the Court characterized the intrusion as "modest," the Court
nonetheless held that the Border Patrol was not justified in subjecting
potentially millions of residents of the border area to unlimited interference with their right to use the public highways, subject only to the
discretion of the Border Patrol. 159 As a result, the Court found the
roving Border Patrol stops unreasonable under the Fourth
60
Amendment.1
By contrast, one year later, the United States Supreme Court
found to be reasonable under the Fourth Amendment fixed checkpoint
stops that limited the discretion of the Border Patrol officers. 16 1 In
United States v. Martinez-Fuerte,162 the Supreme Court examined the
constitutionality of fixed checkpoint stops instituted by the United
States Border Patrol. 163 In Martinez-Fuerte, all vehicles were required to stop at a checkpoint located along Interstate 5 at a point
approximately sixty-six miles north of the Mexican border. 164 Notices
of the checkpoint's location were posted at various points along the
interstate, beginning at a distance of one mile from the checkpoint. 16 5
If a vehicle passing through the checkpoint appeared to the Border
Patrol to require further inquiry, the agents directed the driver to pull
into the secondary inspection area where the occupants were questioned regarding their citizenship. 166 Martinez-Fuerte, a resident
alien, was driving on Interstate 5 with two female passengers who
were illegal aliens.16 7 The Border Patrol directed his vehicle into the
secondary inspection area and discovered that the women were indeed
illegal aliens. 168 Martinez-Fuerte was subsequently charged with the
illegal transportation of aliens. 169 Martinez-Fuerte moved before trial
to suppress the evidence gathered during the checkpoint stop on the
grounds that the stop was made in violation of his Fourth Amendment
158. Id. at 879-80.
159. Id. at 882.
160. Id. at 883.
161. United States v. Martinez-Fuerte, 428 U.S. 543, 545, 558-59 (1976).
162. 428 U.S. 543 (1976).
163. United States v. Martinez-Fuerte, 428 U.S. 543, 545 (1976).
164. Martinez-Fuerte,428 U.S. at 545.
165. Id. at 546. The notices were large black and yellow signs with flashing lights
that read, respectively, "ALL VEHICLES STOP AHEAD, 1 MILE," "WATCH FOR
BRAKE LIGHTS," and "STOP HERE-U.S. OFFICERS." Id. at 545-46. The traffic
was funneled into two lanes by means of orange highway cones. Id. A uniformed Border Patrol agent checked traffic while standing behind a prominent "stop" sign. Id.
167. Id.
168. Id. at 547-48.
169. Id. at 548. Illegal transportation of aliens is a federal offense under 18 U.S.C.
§ 1324(aX2)(1988). Id.
1996]
rights. 170 The trial court denied the motion, and Martinez-Fuerte was
71
convicted.'
Martinez-Fuerte appealed the conviction to the United States
Court of Appeals for the Ninth Circuit. i 72 The Ninth Circuit held that
checkpoint stops violated the Fourth Amendment. 173 The Ninth Circuit found that a stop would only be constitutional if the Border Patrol, on the basis of articulable facts, reasonably suspected the
presence of illegal aliens.' 74 The Border Patrol1 75appealed, and the
United States Supreme Court granted certiorari.
On appeal, the United States Supreme Court reversed the holding
of the Ninth Circuit. 17 6 In so doing, the Supreme Court first noted
that a reasonable suspicion requirement along an interstate highway
would be impractical.' 7 7 Second, the Court concluded that the government interests outweighed the interests of private citizens. 178 The
Court found that drivers had a significantly different expectation of
privacy in their automobiles as opposed to their homes.' 79 The Court
also found that, because there was advance notice of the checkpoints
and the stops were generally brief and not susceptible to arbitrary enforcement, the intrusion into a traveler's privacy was minimal.18 0 The
Court held that the Border Patrol system of fixed checkpoints was con8
sistent with the Fourth Amendment.' '
The United States Supreme Court has also utilized the balancing
test in evaluating a system of sobriety checkpoints established by
state police.' 8 2 In Michigan Department of State Police v. Sitz, l8 3 the
Supreme Court held that the "minimally intrusive" system of sobriety
checkpoints established by the State of Michigan did not violate the
Fourth Amendment.' 8 4 In Sitz, a Sobriety Checkpoint Advisory Com170. Martinez-Fuerte,428 U.S. at 548.
171. Id. at 648-49.
172. Id. at 549. The Ninth Circuit consolidated Martinez-Fuerte's appeal with two
similar cases. Id.
173. Martinez-Fuerte,428 U.S. at 550. The United States Court of Appeals for the
Fifth Circuit, in a factually similar case, held that the Border Patrol checkpoint stops
were constitutional. Id. at 567. The Ninth and Fifth Circuit cases were consolidated at
the United States Supreme Court level. Id.
175. U.S. v. Martinez-Fuerte,423 U.S. 822 (1975) (mem.).
176. Martinez-Fuerte, 428 U.S. at 557. The United States Supreme Court affirmed
the holding of the Fifth Circuit. Id.
177. Martinez-Fuerte, 428 U.S. at 561.
178. Id.
179. Id. at 559, 562.
180. Id. at 556. See Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (holding that a highway sobriety checkpoint system was constitutional).
182. Sitz, 496 U.S. at 450-52.
183. 496 U.S. 444 (1990).
184. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 447-48 (1990).
[Vol. 29
mittee appointed by the Director of the Michigan Department of State
Police created guidelines for the establishment of sobriety checkpoints
along state roads.1 85 All vehicles moving through the checkpoint were
18 6
stopped and the drivers were examined for indicia of intoxication.
When an examining officer detected symptoms of intoxication, the motorist was directed to a point outside the flow of traffic where a license
18 7
and registration check and further sobriety tests were conducted.
An arrest was made if the field tests indicated that the motorist was
intoxicated.188
Sitz and others filed suit in the Circuit Court of Wayne County
one day prior to the date on which the first checkpoint was to be established.1 8 9 Sitz sought injunctive and declaratory relief from "potential
subjection to the checkpoints." 190 The circuit court held that the
checkpoint program violated the Fourth Amendment. 19 1 The Michigan Court of Appeals affirmed the holding of the circuit court with
respect to the Fourth Amendment holding. 192 The Michigan Supreme
Court denied the police department's application for leave to appeal. 19 3 The United States Supreme Court granted certiorari.194
In arriving at its decision, the United States Supreme Court balanced the state's interest in eradicating the drunken driving problem
against the "slight intrusion" on motorists who were stopped at the
checkpoints.1 9 5 The Supreme Court noted that a checkpoint stop was
unlikely to generate "fear and surprise" on the part of the average motorist who had not been drinking.' 96 The Court found that the state's
interest in preventing drunk driving and the extent to which the
checkpoint program advanced that interest outweighed the intrusion
upon the privacy of the individual motorists.' 9 7 Therefore, the Court
held that the sobriety checkpoint program did not violate the Fourth
Amendment.198
185. Sitz, 496 U.S. at 447.
186. Id.
187. Id.
188. Id.
189. Id. at 448.
190. Id.
191. Id. The circuit court also found that the checkpoint program violated Article 1,
§ 11 of the Michigan Constitution. Id.
192. Sitz, 496 U.S. at 448. The Michigan Court of Appeals did not reach the state
constitutional issue. Id.
193. Sitz, 496 U.S. at 448.
194. Michigan Dept. of State Police v. Sitz, 493 U.S. 806 (1989).
195. Sitz, 469 U.S. at 451.
196. Id. at 452-53.
197. Id. at 455.
198. Id. at 454.
1996]
The "Special Needs" Balancing Test as Applied to Drug Testing by
Urinalysis
The United States Supreme Court has applied the "special needs"
balancing test to uphold suspicionless drug testing by urinalysis for
government employees and for persons employed in industries covered
by a pervasive scheme of governmental regulations. 1 99 For example,
in Skinner v. Railway Labor Executives' Ass'n,200 the Supreme Court
upheld federal regulations mandating the suspicionless drug testing
of railroad employees who were directly involved in a major train accident.2 0 1 The Federal Railroad Administration ("FRA") promulgated
these regulations in response to its concern that the industry's attempts at self-regulation with respect to employee drug and alcohol
use had proven inadequate. 20 2 The regulations provided that, after a
triggering event occurred, employees were to be transported to an independent medical facility for the production and testing of samples. 20 3 The testing was not monitored, and medical professionals
unrelated to the employer collected the specimens. 20 4 Any employee
who refused to be tested was withdrawn from that portion of his em20 5
ployment covered by the regulations.
The Railway Labor Executives Association ("Association")
brought suit in the United States District Court for the Northern District of California, asking the district court to enjoin the FRA's testing
program on constitutional and statutory grounds. 20 6 The district
court granted the FRA's motion for summary judgment on the
grounds that the government's interest in public and railway safety
outweighed the railroad employees' legitimate interests in bodily integrity. 2 0 7 The United States Court of Appeals for the Ninth Circuit
reversed the decision of the district court. 20 8 The Ninth Circuit explained that the legality of the searches depended upon their "reasonableness under all the circumstances." 20 9 The Ninth Circuit held that
199.
200.
Nuger, 32 SANTA CLARA L. REV. at 110-14.
489 U.S. 602 (1989).
201. Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 609, 615, 631 (1989).
The regulations defined a major train accident as "any train accident which involves (i)
a fatality, (ii) the release of hazardous material accompanied by an evacuation or reportable injury, or (iii) damage to railroad property of $500,000 or more." Skinner, 489
U.S. at 609.
202. Skinner, 489 U.S. at 606-07.
203. Id. at 609.
204. Id. at 626-27.
205. Id. at 615.
206. Id. at 612.
207. Id. at 613.
208. Id. at 612.
209. Id. at 613.
[Vol. 29
an element of particularized suspicion was required for the search to
2 10
be reasonable.
The FRA appealed, and the United States Supreme Court granted
certiorari. 2 11 The Supreme Court reversed the decision of the Ninth
Circuit. 2 12 In evaluating the constitutionality of the FRA regulations,
the Court noted:
There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function
traditionally performed without public observation; indeed,
its performance in public is generally prohibited by law as
[Ilt is clear that the collection and
well as social custom ....
testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable. [Tihese intrusions
2 13
must be deemed searches under the Fourth Amendment.
The Court stated that, although a warrant and probable cause are
normally required for a search, there are exceptions to this requirement.2 14 These exceptions apply "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause
requirement impracticable." 2 15 In Skinner, the Supreme Court recognized that the government had a special need to ensure the safety of
the railroad. 2 16 The Court explained that a special need of this nature
justified a departure from the normal requirements of a warrant and
2 17
probable cause.
The Court contrasted the serious public safety considerations and
the potential for mass disaster with railway employees' expectations
of privacy. 21 8 The Court found that the railroad industry had a long
and well-documented history of substance abuse that had been a significant factor in numerous railroad accidents. 2 19 The Court explained that there was a legitimate government interest in protecting
the safety of the public and that this interest outweighed the employ210. Id.
211. Burnley v. Railway Labor Executives' Ass'n., 486 U.S. 602 (1988).
212. Skinner, 489 U.S. at 613.
213. Id. at 617.
214. Id. at 619.
215. Id.
216. Id. at 620.
217. Id.
218. Id. at 628.
219. Id. at 606-07. From 1975 through 1983, 45 train accidents resulting from the
errors of alcohol and drug-impaired employees produced 34 fatalities, 66 injuries, and
over $28 million in property damage. Id. at 606-08. The United States Supreme Court
stated that [an idle locomotive, sitting in the roundhouse, is harmless. It becomes
lethal when operated negligently by persons who are under the influence of alcohol or
drugs." Id. at 628.
1996]
ees' privacy concerns. 2 20 In discussing the employees' privacy concerns, the Court noted that the employees themselves had a
diminished expectation of privacy by virtue of the fact that they were
employees of an industry already subject to a pervasive scheme of
2 21
regulations.
The United States Court of Appeals for the Eighth Circuit, in a
case decided a year before the Skinner decision, balanced the employees' reasonable expectations of privacy against the government's need
to search in evaluating the suspicionless testing of nuclear power
plant employees. 22 2 The Eighth Circuit in Rushton v. Nebraska Public Power Dist.22 3 distinguished its holding in Rushton from that of the
Ninth Circuit's holding in Railway Labor Executives' Association v.
Burnley,22 4 stating that the potential for nuclear disaster was more
dangerous to the public than potential train accidents. 22 5 The Eighth
Circuit held that the employees' diminished privacy interests in the
heavily regulated nuclear industry were outweighed by overriding
22 6
state interest in public and employee safety.
The special needs test has resulted in the validation of mass suspicionless drug testing even where the drug testing was designed to
deter conduct which the government admitted had not happened and
which was unlikely to occur in the future. 22 7 In National Treasury
Employees Union v. Von Raab,228 a case decided on the same day as
Skinner, the United States Supreme Court examined a drug testing
program implemented by the United States Customs Service ("Service"). 2 29 The testing program was not implemented in response to a
perceived problem within the Service. 230 The testing program also
failed to detect any pervasive substance abuse problem within the
231
Service.
The Service sought to make drug testing by urinalysis a prerequisite for employment in positions involving direct contact with drug interdiction, requiring the employee to carry firearms, or handling
classified material that would endanger national security if the classi220. Skinner, 489 U.S. at 621, 633.
221. Id. at 627. The United States Supreme Court noted that employees who were
subject to the tests discharged duties associated with such great risk of injury to others
that even a slight lapse of attention could have disastrous consequences. Id. at 628.
222. Rushton v. Nebraska Public Power Dist., 844 F.2d 562, 566 (8th Cir. 1988).
223. 844 F.2d 562 (8th Cir. 1988).
224. 839 F.2d 575 (9th Cir. 1988), rev'd, 489 U.S. 602 (1989).
225. Rushton v. Nebraska Public Power Dist., 844 F.2d 562, 566 (8th Cir. 1988).
226. Rushton, 844 F.2d at 566.
227. Nuger, 32 SANTA CLARA L. REv. at 98.
228. 489 U.S. 656 (1989).
229. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 659 (1989).
230. Von Raab, 489 U.S. at 673-74.
231. Id. Five out of 3,600 employees tested positive for drugs. Id. at 673.
882
[Vol. 29
fled materials were to come into the possession of drug smugglers
through the actions of a compromised employee. 23 2 The urinalysis
program allowed the employee to fix the time and place for the testing. 233 The employees were also permitted to produce the sample out
of sight of the monitor. 23 4 An employee was not required to disclose
prescription medications until such time as the employee's test returned positive. 23 5 The United States Supreme Court ultimately
found that these factors operated to minimize the intrusiveness of the
23 6
testing procedure.
The National Treasury Employees Union ("Union") filed suit in
the United States District Court for the Eastern District of Louisiana
on behalf of Customs employees who sought positions covered by the
drug testing program. 237 The Union alleged that the program violated the Fourth Amendment. 238 The district court agreed, holding
that the policy was overly intrusive and violative of the employees'
legitimate expectations of privacy. 23 9 The district court therefore enjoined the Service's drug testing program. 240 The United States Court
of Appeals for the Fifth Circuit vacated the injunction. 2 4 1 Considering
the nature and duties of the positions that were covered by the testing
program and the fact that the Service had made an attempt to minimize the intrusiveness of the search, the Fifth Circuit found that requiring consent to the search as a condition of assignment to these
particular jobs was reasonable. 2 42 The Union appealed, and the
2 43
United States Supreme Court granted certiorari.
On appeal, the United States Supreme Court applied the special
needs balancing test. 24 4 The Supreme Court noted that the government had a "compelling interest" in ensuring that Service personnel
remained physically fit and dedicated to their mission of preventing
232. Von Raab, 489 U.S. at 660-61. The Commissioner found that front-line interdiction personnel were involved in activities that, if compromised by drug abuse,
presented obvious dangers to the mission of the Service and the lives of its agents. Id.
Additionally, the Commissioner found that for the sake of public safety, armed customs
agents who could be called on to use deadly force must be drug free. Id.
233. Von Raab, 489 U.S. at 661.
234. Id.
235.
236.
237.
238.
Id. at 661, n.1.
Id. at 672, n.2.
Id. at 663.
Id.
239. Id. The court acknowledged that the government had a legitimate interest in a
work force that was drug free. Id.
240. Id.
241. Id.
242. Id. at 664.
243. Von Raab, 485 U.S. at 903 (1988).
244. Von Raab, 489 U.S. at 665.
19961
883
the importation of illegal drugs. 245 The Court further found that employees authorized to use deadly force "discharge duties fraught with
such risks of injury to others that even a momentary lapse of attention
can have disastrous consequences." 24 6 In determining the reasonable
expectations of privacy to be weighed against the compelling government interests, the Court stated that employees who carried firearms
or who were front line interdiction personnel should reasonably expect
some intrusions into their privacy with respect to inquiries as to their
fitness to perform their duties. 2 47 The reasonable expectations of privacy on the part of these classes of employees were outweighed by the
compelling government need to ensure the safety of the nation. 248
The Court remanded the case for further findings on the question of
those employees who handled classified material, partially because
the list of positions to be tested included accountants, baggage clerks,
249
and animal caretakers.
The United States Court of Appeals for the Ninth Circuit applied
the balancing test set forth in Skinner to its decision in Portillo v.
United States District Courtfor the DistrictofArizona. 2 50 Portillo had
been convicted of stealing a baby stroller, a vacuum cleaner, a cellular
telephone, and a child's car seat from a military base. 2 5 1 As part of
the standard presentence investigation required for all defendants,
the United States District Court for the District of Arizona ordered
Portillo to submit to drug testing by urinalysis. 25 2 Portillo filed an
emergency motion for stay and a petition for a writ of mandamus with
the United States Court of Appeals for the Ninth Circuit. 25 3 Using
the "special needs" balancing test, the Ninth Circuit balanced the government's "significant interest" in arriving at the proper sentencing
245. Id. at 670.
246. Id.
247. Id. at 671.
248. Id. at 672. See Kenneth C. Betts, Note, Fourth Amendment
-
Suspicionless
Urinalysis Testing: A Constitutionally "Reasonable"Weapon in the Nation's War on
Drugs? 80 J. CRnm. L. & CRumqoLoGy 1018 (1990).
249. Von Raab, 489 U.S. at 678. On remand, it was discovered that these positions
had been erroneously included with the list of those positions requiring security clearances and that these positions should not be included among the positions to be tested.
National Treasury Employees Union v. Hallett, 756 F. Supp. 947, 949 n.2 (La. 1991).
The United States District Court for the Eastern District of Louisiana found that the
testing for those who held top secret clearances was reasonable under the Fourth
Amendment. Hallett, 756 F. Supp. at 952. Employees with this clearance included gardeners and accountants. Id. See American Federation of Govt. Employees v. Cavazos,
721 F. Supp. 1361 (D.C. 1989) (holding that data entry operators did not handle sufficiently sensitive information to justify mandatory random urinalysis).
250. 15 F.3d 819, 823 (9th Cir. 1994).
251. Portillo v. United States Dist. Court for the Dist. of Arizona, 15 F.3d 819, 821
(9th Cir. 1994).
252. Portillo, 15 F.3d at 821.
253. Id.
[Vol. 29
alternative for a criminal defendant against Portillo's privacy interest. 254 The Ninth Circuit explained that, although a significant privacy interest normally attaches to the act of urination, this privacy
interest may vary with the context. 25 5 The Ninth Circuit noted that
probationers do not have the same legitimate expectations of privacy
as the ordinary citizen. 25 6 The Ninth Circuit then explained that,
even where the legitimate expectations of the individuals were diminished, an element of reasonableness is still required in the searches
undertaken by the government. 25 7 The Ninth Circuit found no evidence that Portillo's crime was related to drug use or that an exigency
existed that would have endangered the government's interest. 25 8
Therefore, the Ninth Circuit determined that drug testing by urinalysis as a routine component of a presentence investigation was
25 9
unconstitutional.
THE FOURTH AMENDMENT AND THE PUBLIC SCHOOLS
Although the United States Supreme Court once proclaimed that
"[s]tudents [do not] shed their constitutional rights. . . at the schoolhouse gate," the Supreme Court has also recognized that students enjoy somewhat less than the full constitutional protections extended to
adults or even to adolescents in a non-school setting. 2 60 Students in
public schools have been held to possess generally a lesser expectation
of privacy as compared to the expectations of privacy enjoyed by mem26 1
bers of the population at large.
The case of New Jersey v. T.L. 0.262 is the landmark case concerning the protection extended by the Fourth Amendment to students in
the public schools. 2 63 In T.L.O., the Supreme Court analyzed whether
a school official's search of a student's purse violated the Fourth
Amendment. 26 4 A teacher discovered T.L.O. and another girl smoking
2 65
in the girls' room at the high school in violation of a school rule.
254.
Id. at 822-23.
255. Id. at 823.
256. Id. Although Portillo was technically not a probationer, but a convicted criminal awaiting sentencing, the Ninth Circuit likened the nature of his release pending
sentencing to that of a supervised probationer. Id. at 823-24.
257. Portillo, 15 F.3d at 824.
258. Id.
259. Id.
260. New Jersey v. T.L.O., 469 U.S. 325, 348 (1985) (Powell, J., concurring) (quoting
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969)).
261. T.L.O., 469 U.S. at 348 (Powell, J., concurring).
262. 469 U.S. 325 (1985).
263. Frederick J. Griffith, III., New Jersey v. T.L.O. and its Progeny: The Bill of
Rights at School, 5 COOLEY L. REv. 617, 617 (1988).
264. T.L.O., 469 U.S. at 332-33.
265. Id. at 328.
19961
The teacher escorted the girls to the office where they were questioned
by the assistant vice principal. 266 T.L.O. claimed that she67had not
2
been smoking and that she, in fact, "did not smoke at all."
The assistant vice principal ushered T.L.O. into his office and insisted on seeing her purse.2 68 When the assistant vice principal
opened the purse, he found not only cigarettes, but also cigarette rolling papers. 2 69 A closer inspection yielded a small amount of marijuana, several letters, and a card bearing a list of names which
suggested that T.L.O. was dealing drugs. 2 70 The assistant vice principal turned these items over to the police who requested that T.L.O's
mother bring her child to the police station. 2 7 1 T.L.O subsequently
2 72
confessed to dealing marijuana at the school.
The State first brought delinquency charges against T.L.O. in the
Juvenile and Domestic Relations Court of Middlesex County. 273 In the
delinquency action, T.L.O. moved to suppress the evidence and the
confession on the grounds that they had been obtained during the
course of an illegal search.2 74 The juvenile court denied the motion to
suppress and concluded that the search of T.L.O.'s purse was a reasonable one. 2 75 The Appellate Division affirmed the judgment of the
2 76
juvenile court with respect to the reasonableness of the search.
27 7
T.L.O. appealed the ruling of the Appellate Division.
The New Jersey Supreme Court held that a school official could
conduct a warrantless search of a student consistent with the Fourth
Amendment so long as the official "has reasonable grounds to believe
that a student possesses evidence of illegal activity or activity which
would interfere with school discipline."2 78 The New Jersey Supreme
Court, however, held that the search of T.L.O.'s purse was unreasonable, finding that the mere possession of cigarettes did not violate
school rules. 2 79 The New Jersey Supreme Court held that a desire to
disprove T.L.O.'s claim that she was a nonsmoker did not justify the
266. Id.
267. Id.
268. Id.
269. Id. In the experience of the assistant vice-principal, rolling papers were commonly used in connection with the smoking of marijuana. Id.
270.
T.L.O., 469
U.S. at
328.
271. Id. at 328-29.
272. Id. at 329.
273. Id.
274. Id.
275. Id. The juvenile court noted that the Fourth Amendment was applicable to
searches made by school officials. Id.
276. T.L.O., 469 U.S. at 330.
277. Id.
278. Id.
279. Id. at 331.
886
[Vol. 29
assistant vice principal's search of T.L.O.'s purse. 28 0 The state ap28 1
pealed, and the United States Supreme Court granted certiorari.
On appeal, the Supreme Court noted that school officials act as
representatives of the state and are subject to the strictures of the
Fourth Amendment. 28 2 The Supreme Court determined that the
search of T.L.O.'s purse was reasonable. 283 The Court explained that
the special need for maintaining order in the public schools necessitated a relaxing of the warrant and probable cause requirements imposed by the Fourth Amendment. 28 4 The Court stated that the
validity of a search conducted in the public schools depended on the
reasonableness of the search under all the circumstances. 28 5 The
Court explained that a determination of reasonableness necessitated a
two-fold inquiry into the reasonableness of the search, both at its in28 6
ception and in its scope.
After examining the circumstances surrounding the search of
T.L.O.'s purse, the Court held that the assistant vice principal's initial
search of T.L.O.'s purse after she was discovered smoking in the girl's
room was grounded on the reasonable suspicion that he would find
cigarettes. 28 7 After his inadvertent discovery of the rolling papers,
the search for marijuana was similarly grounded in the reasonable
suspicion that he would find marijuana.28 8 The Court reserved judgment on the question of whether an individualized suspicion was nec28 9
essary to make a search reasonable under the Fourth Amendment.
In 1988, three years after the T.L.O. decision, the United States
Court of Appeals for the Seventh Circuit applied the reasonableness
standard set forth in T.L.O. to a case involving drug testing by urinal280.
281.
Id.
New Jersey v. T.L.O., 464 U.S. 991 (1983).
282.
T.L.O., 469 U.S. at 336-37.
283. Id. at 347.
284. Id. at 339-40.
285. Id. at 340.
286. Id. at 341. The United States Supreme Court noted that a search is justified at
the outset when reasonable grounds exist for suspecting that the search will uncover
evidence that the student is in violation of school rules. Id. at 341-42. The Court stated
that the search is permissible in its scope when the means used are reasonably related
to those goals. Id. at 342. Further, the Court determined that a search may not be
excessively intrusive; the sex and age of the student and the gravity of the infraction
must be considered in the evaluation of intrusiveness. Id.
287. T.L.O., 469 U.S. at 345-46.
288. Id. at 347.
289. Id. at 342, n.8. The United States Supreme Court noted that, while individualized suspicion is usually required for a constitutionally permissible search, that requirement is not absolute. See United States v. Martinez-Fuerte, 428 U.S. 543, 560-61
(1967) (stating that the Fourth Amendment does not always require individualized
suspicion).
1996]
ysis in the public schools. 29 0 In Schaill v. Tippecanoe County School
Corp.,291 a high school coach, in response to information received regarding possible substance abuse by the members of the baseball
2 92
team, ordered sixteen of the players to provide urine specimens.
Five of those students tested positive for marijuana. 29 3 Based on
these results, reports of substance abuse on the part of other athletes,
and a general concern over the pervasiveness of drug abuse in the nation's high schools, the school board instituted a random urinalysis
program for student athletes and for cheerleaders. 2 94 Prospective student athletes who were offended by the program decided not to try out
for sports and subsequently filed suit.2 95 In their action, the students
alleged that the school's drug testing policy violated their Fourth
Amendment rights. 2 9 6 The United States District Court for the District of Indiana denied the claim and ruled that the school's random
urinalysis program was constitutional. 2 97 The students appealed to
29 8
the United States Court of Appeals for the Seventh Circuit.
The Seventh Circuit reviewed the decision of the district court
and held that the random testing of student athletes by urinalysis did
not violate the Fourth Amendment. 2 99 The Seventh Circuit stated
that the combined elements of the "atmosphere of communal undress"
inherent in locker room activities associated with team sports, the
mandatory physicals that athletes must undergo prior to being accepted for the team, the training regulations to which athletes are
subject, and extensive media coverage with respect to drug use by
prominent athletes substantially diminished the student athletes' reasonable expectations of privacy. 300 These diminished expectations
were weighed against the interest of the school officials in deterring
drug use by students and in preventing sports-related injuries by
290. Schaill v. Tippecanoe County Sch. Corp., 864 F.2d 1309, 1314, 1317-18 (7th Cir.
1989).
291.
864 F.2d 1309 (7th Cir. 1988).
292.
Schaill v. Tippecanoe County Sch. Corp., 864 F.2d 1309, 1310 (7th Cir. 1988).
293. Schaill, 864 F.2d at 1310.
294. Id.
295. Id. at 1311.
296. Id. at 1310. The students alleged that the policy violated both their Fourth
Amendment rights and their right to due process under the Fourteenth Amendment.
Id.
297. Schaill, 864 F.2d at 1310.
298. Id. at 1311.
299. Id. at 1321-22.
300. Id. at 1318-19. It should be noted'that physical education is a generally a class
required for graduation. See, e.g., Looking Ahead: A Guide to Norris Middle School at
7, OMAHA PUBLIC SCHOOLs HANDBOOK, 1995-96 (noting that "Nebraska law states that
all students must participate in physical education unless they have been excused for
reason of health. Such participation is required for graduation.").
[Vol. 29
fielding a drug-free team. 3 01 Based upon its weighing of these factors,
urinalysis program at issue
the Seventh Circuit held that the random
30 2
did not violate the Fourth Amendment.
ANALYSIS
In Vernonia Sch. Dist. 47J v. Acton,3 0 3 the United States
Supreme Court failed to recognize the historical and precedential
304
value attached to the requirement of individualized suspicion.
Prior to its decision in Vernonia, the Supreme Court had held that the
legitimate privacy expectations of students were diminished within
the context of the public schools. 30 5 The Court also held in prior cases
that the conditions in the public schools had not deteriorated to the
30 6
point where students had no legitimate expectations of privacy.
The cases of Skinner v. Railway Labor Executives' Ass'n,30 7 National Treasury Employees Union v. Von Raab,30 8 and New Jersey v.
T.L.0., 3 09 collectively, provide the framework for analyzing the constitutionality of the random drug testing program instituted by the
Vernonia School District. 310 The balancing test set forth in Skinner
states, "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
31
despite the absence of such suspicion." '
301.
Schaill, 864 F.2d at 1322.
302. Id. Other courts that have addressed this issue include the United States District Court for the Southern District of Texas in Brooks v. E. Chambers Consol. Indep.
Sch. Dist., 730 F. Supp. 759 (S.D. Tex. 1989) aff'd, 930 F.2d 915 (1991) (mem.) (holding
that a suspicionless urinalysis program that applied to all students from grades seven
through twelve participating in extracurricular activities (over half the student body)
was unconstitutional); and the United States District Court for the Western District of
Arkansas in Anable v. Ford, 653 F. Supp. 22 (W.D. Ark. 1985) (holding that in the absence of high probability that a search would disclose violations, the intrusiveness of the
search was not justified by a compelling need).
303. 115 S. Ct. 2386 (1995).
304. Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386, 2401 (1995) (O'Connor, J.,
dissenting).
305. New Jersey v. T.L.O., 469 U.S. 325, 347 (1984) (Powell, J., concurring).
306. T.L.O., 469 U.S. at 338.
307. 489 U.S. 602 (1989).
308. 489 U.S. 656 (1989).
309. 469 U.S. 325 (1985).
310. Robert C. Farley, Jr., Search of the Student Athlete - Acton v. Vernonia Sch.
Dist. 47J Sch. Dist. 47J,23 F.3d 1514 (9th Cir. 1994) cert. granted, 115 S.Ct. 571 (Nov.
28, 1994) 68 TEMp. L. REV. 439, 445-47 (1995).
311. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 624 (1989).
1996]
The United States Supreme Court in Vernonia cited to Skinner in
announcing the appropriate test.3
12
The test balances the individual's
reasonable expectations of privacy and the intrusiveness of the search
against the government's legitimate interest in conducting the search
3 13
and the effectiveness of the means used to achieve that interest.
THE "SPEciAL NEEDS" BALANCING TEST AS APPLIED IN VERNONIA
Application of the "special needs" balancing test in Vernonia leads
to four points of criticism. 3 14 First, the United States Supreme Court
dismissed what it had previously recognized as a substantial and legitimate privacy interest as "negligible."3 15 Second, the Supreme
Court mischaracterized the nature of the intrusion upon that privacy
interest. 3 16 Third, the intrusion did not significantly further government interests.
3 17
Finally, the Court ignored the Fourth Amend-
ment's strong preference for a suspicion based search.3 18 Justice
O'Connor's dissent, which recognized these flaws in the majority opinion, is more persuasive than the majority opinion. 31 9
Scope of the Privacy Interest
In Vernonia, the United States Supreme Court explained that the
first factor to consider in analyzing the reasonableness of a search
under the Fourth Amendment is the privacy interest upon which the
search intrudes. 320 The Supreme Court explained that whether an
expectation of privacy is legitimate depends upon the context and the
legal relationship between the individual and the state. 3 2 1 In
Vernonia, the Court found significant the fact that the Student Athlete Drug Policy ("Policy") targeted children who had been temporarily
committed to the care and custody of the state in its role as schoolmaster.3 22 The Court noted that students' expectations of privacy,
and especially those of the student athletes, were diminished in the
32 3
school setting.
312. Vernonia Sch. Dist. 47J, 115 S. Ct. at 2390 (stating that "[wihether a particular
search meets the reasonableness standard is judged by balancing its intrusion on the
individual's Fourth Amendment interests against its promotion of legitimate governmental
313.
314.
315.
316.
317.
318.
319.
320.
321.
322.
323.
interests").
Id. at 2390-94.
Skinner, 489 U.S. at 626; Vernonia Sch. Dist. 47J, 115 S.Ct. at 2393.
Vernonia Sch. Dist. 47J, 115 S. Ct. at 2400-01 (O'Connor, J., dissenting).
See supra notes 105-13 and accompanying text.
Vernonia Sch. Dist. 47J, 115 S. Ct. at 2391.
Id.
Id.
Id. at 2392.
890
[Vol. 29
In Skinner and Vernonia, the Court held that the act of urination
is one that is "traditionally shielded by great privacy."3 24 The Court
in Vernonia first characterized the act of urination as one traditionally
shielded by great privacy and then dismissed the privacy interests
compromised by the search as "negligible."3 2 5 The Court justified this
characterization by stating that "the legitimacy of certain privacy expectations vis-A-vis the [sitate may depend on the individual's relationship with the [s]tate."3 26 In illustration, the Court noted that the
state may, for example, intrude upon the privacy of a probationer in a
manner that would be unconstitutional if applied to the ordinary citizen. 32 7 The United States Court of Appeals for the Ninth Circuit held
in Portillov. United States District Court for the DistrictofArizona,328
however, that the state cannot require a convicted criminal to submit
to urinalysis absent a showing of a correlation between the criminal's
individual crime and drug use.3 2 9 The Court determined in Vernonia
that the state may, however, require schoolchildren who have no history of drug use and who have never been suspected of drug use to
submit to urinalysis. 33 0 The Court failed to recognize that schoolchildren are a separate category of person than either prisoners or probalatter by the
tioners.3 -1 The former category is separated from the
33 2
"harsh facts of criminal conviction and incarceration."
In Vernonia, the United States Supreme Court found that, because students are required to have physical examinations and vaccinations, their legitimate expectations of privacy are diminished with
respect to medical procedures. 3 3 3 The Supreme Court also found that
the atmosphere of "communal undress" inherent in locker room situations and the pervasive regulation of student athletic activities by
324. Skinner, 489 U.S. at 626; Vernonia Sch. Dist. 47J, 115 S. Ct. at 2393.
327. Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 875 (1987)).
328. 15 F.3d 819 (1994).
329. Portillo v. United States Dist. Court for the Dist. of Arizona, 15 F.3d 819 (1994)
(holding that routine suspicionless urinalysis during presentence investigations is unconstitutional). The Ninth Circuit, although it recognized that probationers have diminished expectations of privacy, struck down a program of suspicionless testing by
urinalysis as a routine aspect of presentence investigation and found that the search
was not "reasonable" because there was no correlation between crime and drug usage.
Portillo, 15 F.3d at 823.
330. Acton v. Vernonia Sch. Dist. 47J, 23 F.3d 1514, 1517 (9th Cir. 1994); Vernonia
Sch. Dist. 47J, 115 S.Ct. at 2386, 2395 (1995).
331. See infra note 332 and accompanying text.
332. See New Jersey v. T.L.O., 469 U.S. 325, 338 (1984). The Court refused to address the issue of whether prisons and schools are equivalent for purposes of Fourth
Amendment analysis. Id. at 338-39.
1996]
school officials gave rise to a reasonable expectation of intrusions on
3 34
privacy.
The Court's rationale, however, does not withstand a close examination. 3 35 First, even if the students have diminished expectations of
privacy with respect to vaccinations and physical examinations made
for health reasons, these procedures are not searches wherein punitive consequences, such as suspension from the football team, may be
attached to the results. 3 36 Further, a vaccination cannot be reasonably construed as a "search," and there are likewise no punitive conse3 37
quences attached to the results.
Second, the Court found that an "atmosphere of communal un338
dress" diminishes the individual's legitimate expectation of privacy.
Physical education is generally a required course; under the Court's
reasoning, it would also follow that the legitimate expectations of all
students are reduced by virtue of the fact that they are enrolled in a
33 9
gym class.
The employees in Skinner, Von Raab, and Rushton v. Nebraska
Public Power District3 40 had a diminished expectation of privacy due
to the fact that their employment was in a heavily regulated industry. 34 1 Adult employees of highly regulated or high risk industries
such as railroads, nuclear power plants, and the United States Customs Service might have some intimation that their legitimate expectations of privacy are reduced by the conditions of their employment
and the grave risks of impairment on the job.3 42 The pervasive regulation of student athletes by school officials entails that the students
undergo a physical examination, maintain a certain grade point average, and either obtain insurance or sign a waiver.3 4 3 . These requirements, however, are not the type of government regulation that would
diminish an individual's reasonable privacy expectations.3 4 4 Further,
334.
335.
336.
Id. at 2392-93.
Vernonia Sch. Dist. 47J, 115 S. Ct. at 2405 (O'Connor, J., dissenting) (stating
that "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").
339. See supra notes 333-38; see, e.g., Looking Ahead: A Guide to Norris Middle
School at 7, OMAHA PUBLIC SCHooLs HANDBOOK, 1995-96 (noting that "Nebraska law
states that all students must participate in physical education unless they have been
excused for reason of health. Such participation is required for graduation.").
340. 844 F.2d 562 (8th Cir. 1988).
341. Skinner, 489 U.S. at 628; Von Raab, 489 U.S. at 677-78; Rushton v. Nebraska
Public Power Dist., 844 F.2d 562, 566 (8th Cir. 1988).
342. See supra notes 199-249 and accompanying text.
344. Action v. Vernonia Sch. Dist. 47J, 23 F.3d 1514, 1525 (9th Cir. 1994).
[Vol. 29
the possibility that some student athletes are participating in sports
in an impaired condition does not carry with it the same potential for
mass disaster as is present when employees of high risk industries are
34 5
impaired on the job.
Nature of the Intrusion
In "special needs" circumstances, the United States Supreme
Court must first examine the individual's legitimate privacy interest
and then balance that privacy interest against the government's legitimate interest.3
46
The Supreme Court must take into account the na-
ture and scope of the government's intrusion into the individual's
privacy interest.3 4 7 The Court found that urinalysis involves two categories of intrusion into a privacy interest: (1) the privacy interest
compromised by the collection process itself, and (2) the personal information disclosed by the actual screening process. 34 8 Urinalysis can
be used to reveal numerous private medical facts about the subject;
the fact that the subject must disclose such private medical information as prescription medicines in advance so as to avoid skewing the
3 49
test results is also an intrusion.
In Vernonia the Court noted that the degree of the intrusion into
an individual's privacy by the collection of a specimen for testing depended on the manner in which the production of the specimen was
monitored. 350 The Court characterized the circumstances mandated
by the Vernonia School District's Policy under which the specimen
was collected as substantially the same as those found in public bathrooms.3 5 1 The Court held that the intrusion on the students' expecta-
tions of privacy was "negligible."3 52 The Court's analysis in Vernonia
failed to afford to the act of urination the privacy the Court has previ353
ously attributed to this act.
The Court in Vernonia did not discuss the fact that the use of a
public bathroom is usually not done in the presence of an authority
figure with whom one is well acquainted and whose specific intent is
to monitor one's behavior in the bathroom.3 54 In Skinner, the Court
345.
346.
347.
348.
349.
2394.
350.
351.
352.
353.
354.
Vernonia Sch. Dist. 47J, 23 F.3d at 1526.
Vernonia Sch. Dist. 47J, 115 S. Ct. at 2390-91.
Id. at 2393.
Id.
Skinner, 489 U.S. at 602, 617; Vernonia Sch. Dist. 47J, 115 S. Ct. at 2386,
Id.
Id.
See supra note 213 and accompanying text.
1996]
35 5
noted that the act of urination is extremely personal and private.
The Court in Skinner also recognized that urination is traditionally
35 6
performed in the absence of public observation.
The high degree of privacy connected with urination was again
recognized by the Court in Von Raab.3 5 7 In Von Raab, the Court recognized that the act of urination carries with it a legitimate expectation of privacy and that urinalysis testing would pose a significant
intrusion upon that interest in some circumstances.3 5 8 The dissenting
opinion filed by Justice Scalia in Von Raab characterized urinalysis as
a search that is "particularly destructive of privacy and offensive to
personal dignity." 359 Justice Scalia joined the majority opinion in
Skinner, because in that case there was evidence that those who were
to be tested were frequent users of drugs and alcohol and because
there was a connection between substance abuse by railway personnel
and harm to the public. 360 These connections in Skinner made the
search reasonable in Justice Scalia's opinion. 3 61 Justice Scalia, however, authored a dissenting opinion in Von Raab because he found
that "neither frequency of [drug] use nor connection to harm is demonstrated or even likely." 36 2 In Vernonia, there was virtually no evidence that the students who were being tested at the Washington
Grade School were drug users. 36 3 Additionally, the District could not
confirm even one drug related sports injury. 36 4 The Court's characterization of the intrusion on the students' privacy as "negligible" in
Vernonia directly contradicted the holdings in Skinner and Von Raab,
wherein the Court noted that urination is an act to which society at365
taches a great expectation of privacy.
As previously noted, the nature of the intrusion is the second factor to consider in evaluating whether an individual's privacy interests
have been unconstitutionally compromised by a government
search.3 6 6 In Von Raab, the Court recognized factors that minimized
the intrusion upon the individual's privacy.3 6 7 These factors were absent in Vernonia.3 68 In Von Raab, there was advance notice of the
355.
Skinner, 489 U.S. at 617.
356. Id.
357.
Von Raab, 489 U.S. at 671.
358. Id.
359. Id. at 680
360.
361.
(Scalia, J., dissenting).
Id. (Scalia, J., dissenting).
Id. (Scalia, J., dissenting).
362.
363.
364.
365.
Id. at 681 (Scalia, J., dissenting).
Vernonia Sch. Dist. 47J, 115 S. Ct. at 2306 (O'Connor, J., dissenting).
Brief for Respondent at 6, Vernonia Sch. Dist. 47J (No. 94-590).
366.
Id.; Skinner, 489 U.S. at 617; Von Raab, 489 U.S. at 670.
367.
368.
Vernonia Sch. Dist. 47J, 115 S.Ct. at 2389.
[Vol. 29
testing.3 69 Further, the testing was not observed by the monitor, and
the testing was conducted by an independent medical facility.3 70 Employees were not required to disclose prescription medications unless
the test returned positive. s 7 1 The Court in Von Raab stated that
3 72
these factors minimized the intrusion upon the employees' privacy.
Further, any "unsettling show of authority" was also kept to a minimum.3 73 Similarly, in Skinner, the unmonitored testing was done in
an independent medical facility.3 74 Although the railroad employees
in Skinner were required to disclose prescription medications in advance, this disclosure was not made to the employer but to the independent medical personnel conducting the tests. 37 5
In Vernonia, by contrast, there were no mitigating factors that
minimized the intrusion.3 76 For example, in Vernonia, there was no
advance notice of the testing.3 7 7 Students were picked in lottery fashion, notified, and tested on the same day.3 78 Students were required
to identify any prescription medications to the monitor at the time of
the testing.3 79 The monitor, who was also a teacher or one of the
coaches, was able to observe the collection of the urine specimen, and
the subjects were aware of the monitor's presence.38 0 The superintendent, principals, vice principals, and athletic directors had access to
the test results.3 8 1 Thus, the mitigating factors in Skinner and Von
38 2
Raab were not present in Vernonia.
Important Government Interest Must be Furthered by the Intrusion
In Vernonia, the United States Supreme Court stated that the final factor to consider in applying the balancing test was the nature of
the governmental interest at stake and the efficacy of the means employed to accomplish that end. 38 3 The Supreme Court found that deterring drug use in the public schools and ensuring that the school
369.
370.
Id.
371.
372.
373.
374.
375.
376.
377.
378.
379.
Id. at 661-62, n.1.
Id. at 663.
Id. at 672, n.2.
Skinner, 489 U.S. at 609, 626.
Id. at 626, n.7.
Vernonia Sch. Dist. 47J, 115 S. Ct. at 2389,
Id.
Id.
380. Id.; Vernonia Sch. Dist. 47J, 23 F.3d at 1516-17. The monitoring of adolescents
in the collection of urine specimens is the monitoring of those who are often uncomfortable and self-conscious with regard to their changing physiques. Brief for Respondent at
27, Vernonia Sch. Dist. 47J (No. 94-590).
1996]
environment is one conducive to learning were interests at least as
drug use among
compelling as the government's interest in38preventing
4
customs personnel or railroad employees.
In Vernonia, the District's expressed wish was to accomplish the
38 5
perfectly legitimate end of preventing drug related sports injuries.
The Court held that these interests would be legitimately furthered by
the District's random urinalysis program. 38 6 The driving force behind
the District's Policy, however, was its desire to end the class disruptions caused by a few high school students whom the District suspected of drug use. 38 7 Although there was some evidence of drug use
in the high school, the evidence of sports-related injury precipitated by
drug use was virtually nonexistent. 38 8 Other than an unsupported assertion by the former high school principal, there was no evidence in
the record whatsoever of a drug problem at the grade school attended
389
by James Acton.
In Delaware v. Prouse,390 the United States Supreme Court held
that because the percentage of unlicensed or unregistered drivers was
very small compared to the number of licensed drivers who would be
stopped to find the violators, the resulting contribution to safety was a
1 This test has
marginal one that did not justify such an intrusion. 33992
factor."
sometimes been referred to as the "efficiency
The Prouse efficiency factor further supports an argument that
the Vernonia School District's policy implemented an unreasonable
search under the Fourth Amendment.3 93 The District had an enrollment of approximately 690 students, at least 65% (or about 485 students) of which were involved in interscholastic athletics. 39 4 Of the
approximately 485 students per year who participated in sports and
were drug tested under the District's policy, only one sports injury was
tied to possible drug use.3 95 The cause of that injury was uncon-
384. Id. at 2395.
385. Id. at 2389.
386. Id. at 2395-96.
387. Id. at 2406; see Vernonia Sch. Dist. 47J, 23 F.3d at 1516.
388. Brief for Petitioner at 7, n.5, Vernonia Sch. Dist. 47J, (No. 94-590). When
questioned in an interrogatory as to whether any student had ever suffered sports injuries while under the influence of drugs, the District responded, "The District has reason
to believe that a student was injured while under the influence of drugs while participating in a District-sponsored athletic event, although this was not confirmed by tests."
Id.
389. Vernonia Sch. Dist. 47J, at 2405 (O'Connor, J., dissenting).
390. 440 U.S. 648 (1979).
391. Delaware v. Prouse, 440 U.S. 648, 659-60 (1979).
392. Vernonia Sch. Dist. 47J, 23 F.3d at 1521-22.
394. Brief for Petitioner at 3, Vernonia Sch. Dist. 47J, (No. 94-590).
395. United States Supreme Court, transcript of oral argument, March 28, 1995,
34 35
p. - .
[Vol. 29
firmed. 3 96 Only two positive tests were ever confirmed during the period from 1989 through 1991.3 97 This apparently includes the period
from 1989 through 1990, when students participating in all extracur8 98
ricular activities were subject to testing.
The District's policy of testing every student athlete proved to be
an inefficient method of identifying drug use. 39 9 In Prouse,the United
States Supreme Court held that the marginal contribution to highway
safety that might result from subjecting every vehicle and its occupants to even a limited seizure did not justify the intrusion at the discretion of law enforcement officials. 40 0 The majority in Vernonia did
not apply the Prouse efficiency analysis nor did the majority discuss1
40
the District's inefficient methodology in identifying drug users.
40 2
The Court did, however, discuss the efficacy of the District's policy.
It seemed evident to the Court that the policy effectively addressed the
school's drug problem, despite the fact that only two positive results
40 3
were ever obtained.
INDIVIDUALIZED SUSPICION -
A LESS
INTRUSIVE ALTERNATIVE
The Court has repeatedly held that, in the criminal context, blanket searches are unconstitutional if the "search is more than minimally intrusive."40 4 Thus, the police cannot require every resident of
a drug-infested neighborhood to submit to a drug test. 40 5 Outside the
scope of criminal law enforcement, a suspicionless search has only
been upheld if the search was "reasonable." 40 6 The cases of Skinner,
Von Raab, Camara v. Municipal Court of City and County of San
Francisco,40 7 and Rushton v. Nebraska Public Power District40 8 approved suspicionless searches involving situations wherein a single
misjudgment or violation could result in the mass disaster of a fire or
epidemic, train wreck, nuclear meltdown, or breach of national
40 9
security.
The reasonableness of a particular search depends not only upon
the government's legitimate interest in conducting the search, but also
396.
See supra note 388.
397.
398.
399.
400.
401.
402.
403.
404.
405.
406.
Brief for Petitioner, at 47, n.34, Vernonia Sch. Dist. 47J, (No. 94-590).
See supra note 46 and accompanying text.
Prouse, 440 U.S. at 659-61. See supra notes 394-98 and accompanying text.
Prouse, 440 U.S. at 660.
See Vernonia Sch. Dist. 47J, 115 S. Ct. at 2386-97.
Id. at 2395-96.
Id.; Brief for Petitioner at 47, n.3, Vernonia Sch. Dist. 47J (No. 94-590).
Vernonia Sch. Dist. 47J, 115 S. Ct. at 2399-2400 (O'Connor, J., dissenting).
Id. at 2400 (O'Connor, J., dissenting).
Id. at 2390-91 (O'Connor, J., dissenting).
407. 387 U.S. 523 (1967).
408. 844 F.2d 562 (8th Cir. 1988).
1996]
upon the means used to accomplish that end. 4 10 Prior to the Von
Raab decision, the United States Supreme Court upheld suspicionless
bodily searches only for prison inmates. 4 1 1 Following the Von Raab
decision, suspicionless searches have been approved by the Court only
because unusual circumstances existed that would render a suspicion
based search ineffective. 4 12 For example, in Skinner, the Court found
that a suspicion based search would be "unrealistic" in the chaotic aftermath of a major train accident. 4 13 In Von Raab, the Court found
that it was not feasible to subject United States Customs Service
workers to the type of day-to-day scrutiny found in the typical office
environment. 4 14 In United States v. Martinez-Fuerte,4 15 the Court
found that a requirement of individualized suspicion along an interstate highway would be impractical. 4 16 In Camara,the Court found
that it was impractical to require individualized suspicion in building
inspections because violations might not be detectable from outside
the house. 4 17 The unusual factual circumstances that have given rise
to suspicionless searches have involved situations where the search
would be unrealistic, unworkable, and impractical if suspicion were
required. 4 18 The circumstances in Vernonia make a mass suspicionless search unreasonable; a suspicion based search would have
4 19
been effective.
The Vernonia School District ("District") argued, and the Court
held, that the important government interests furthered by its drug
testing policy would be jeopardized by a requirement of individualized
suspicion, because drug impairment is difficult for the layperson, and
sometimes even for the professional, to detect. 420 Ironically, the District implemented the Policy because the District clearly felt that it
had detected a drug crisis in its schools prior to the time of the Policy's
implementation. 42 1 The District based its decision to implement the
Policy on empirical evidence of student drug use. 42 2 The perception
that there was a drug crisis and that various individual athletes were
at the heart of the crisis sprang from the teachers' and coaches' direct
410.
411.
412.
413.
414.
Von Raab, 489 U.S. at 680 (Scalia, J., dissenting).
Skinner, 489 U.S. at 631.
415. 428 U.S. 543 (1976).
416. United States v. Martinez-Fuerte, 428 U.S. 543, 557 (1976).
417. Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523,
537 (1967).
419. Vernonia Sch. Dist. 47J, 115 S.Ct. at 2404 (O'Connor, J., dissenting).
420. Id. at 2396.
[Vol. 29
observations of student behavior. 423 The drug impairment of the students at the Vernonia High School was not only detectable by layper42 4
sons, but this detectability formed the justification for the Policy.
The school officials' observations rise to the level of individualized
reasonable suspicion that justified an individual search under the
standard set forth in T.L.O.425 Had the District chosen to search
those individual athletes whom it felt were the source of the problem,
each search would have passed constitutional muster under T.L. 0.426
A requirement of reasonable suspicion would not have jeopardized the
interest of the District, because the Policy at its inception was driven
by the District's reasonable suspicion that individual athletes were us42 7
ing drugs.
The United States Supreme Court, in United States v. BrignoniPonce,4 28 found that suspicionless roving patrol checks instituted by
the Border Patrol were unconstitutional, even though those stops
were held to be only minimally intrusive. 4 29 At least part of the
Court's holding in Brignoni-Ponce derived from the fact that the Border Patrol searches had the potential for involving thousands of innocent persons. 430 The Vernonia decision has the potential for
subjecting a substantial number of the nation's nearly eighteen million schoolchildren, many of whom have supplied no reason for officials to suspect that they are drug users, to drug screening by
431
urinalysis.
The Court in T.L.O. established that the nation's schoolchildren
are not entitled to two of Fourth Amendment's traditional protections
against unreasonable searches - the warrant and probable cause requirements. 43 2 The search at issue in T.L.O. was based on individualized suspicion. 43 3 Vernonia represents an expansion of T.L.O. and a
departure from the Court's former holdings. 43 4 In Vernonia, there
425. Vernonia Sch. Dist. 47J, 115 S.Ct. at 2403 (O'Connor, J., dissenting); T.L.O.,
469 U.S. 341-42 (stating that a search will be justified when "there are reasonable
grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school").
426. Vernonia Sch. Dist. 47J, at 2403 (O'Connor, J., dissenting); T.L.O., 469 U.S. at
341-42.
427. Id. at 2404 (O'Connor, J., dissenting); see supra notes 29-37 and accompanying
text.
428. 422 U.S. 873 (1975).
429. United States v. Brignoni-Ponce, 422 U.S. 873, 880, 882 (1975).
431. Vernonia Sch. Dist. 47J, 115 S.Ct. at 2397 (O'Connor, J., dissenting).
433. Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 MEM. ST. U.L. REv. 483, 571 (1995).
1996]
899
was nothing to indicate that a suspicion based search would have been
impractical or ineffectual. 43 5 The District apparently had reasonable
suspicion as to who the core offenders were at the time of the inception
of the Policy.4 36 The next reasonable step would have been to search
those students under the guidelines of T.L.O.4 3 7 Although the exist-
ence of a less intrusive alternative for a search does not per se render
that search unreasonable, the Fourth Amendment has a strong prefer438
ence for suspicion based searches.
The Court's holding in T.L.O. would have justified the District in
Vernonia in targeting those students who had severely disrupted
classroom activities. 43 9 Students could control whether they would be
tested by means of their behavior. 440 This more reasonable alterna44 1
tive would have subjected far fewer students to testing.
The Court's decision in Vernonia opens the door for millions of
schoolchildren to be subjected to intrusive bodily searches when those
children have given officials no reason to suspect that they use drugs
at school. 44 2 As Justice Thurgood Marshall noted in Skinner,
"[Pirinciples of law, once bent, do not snap back easily."44 3 Justice
Marshall was concerned that the Court's attempts at limiting the
holdings in Von Raab and Skinner would prove ineffective. 44 4 Justice
Marshall concluded that the Skinner decision would ultimately reduce
44 5
the privacy enjoyed by all citizens.
In Skinner and Von Raab, the Court upheld suspicionless testing
by urinalysis because of the compelling state interests in the public
safety. 44 6 In Vernonia, the Court explained that "the phrase 'compelling state interest,' in the Fourth Amendment context, [does not] describe a fixed minimum quantum of governmental concern ...
Rather, the phrase describes an interest which seems important
enough to justify the particular search at hand."4 47 Thus, the balanc435. Vernonia Sch. Dist. 47J, 115 S. Ct. at 2397 (O'Connor, J., dissenting).
436. Id. at 2388-89.
437. Vernonia Sch. Dist. 47J, 115 S. Ct. at 2402 (O'Connor, J., dissenting); T.L.O.,
469 U.S. at 341-42.
438. Vernonia Sch. Dist. 47J, 115 S. Ct. at 2396, 2401-02 (O'Connor, J., dissenting)
(stating that "[a] suspicion-based search has a pedigree as old as the Fourth Amendment itself, and it may not be easily cast aside in favor of policy concerns").
439. Id. at 2406 (O'Connor, J., dissenting) (citing T.L.O., 469 U.S. at 350).
443. Skinner, 489 U.S. at 654 (Marshall, J., dissenting).
444. Kenneth C. Betts, Note, Fourth Amendment - Suspicionless Urinalysis Testing: A Constitutionally"Reasonable"Weapon in the Nation's War on Drugs? 80 J. CRmI.
L. & CRIMINOLOGY 1018, 1030 (1990).
446. Id. at 621, 633; Von Raab, 489 U.S. at 670.
[Vol. 29
ing test is reduced to a policy decision - rather than assessing
whether a search meets the requirements of probable cause, the Court
need only assess whether a particular search is reasonable with respect to the perceived importance of the particular public policy which
is at issue. 448 Justice Marshall, quoting Justice Oliver Wendell
Holmes, observed in Skinner:
'Great cases, like hard cases, make bad law. For great cases
are called great, not by reason of their importance in shaping
the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and
distorts the judgment. These immediate interests exercise a
kind of hydraulic pressure which makes what was previously
clear seem doubtful, and before which even well settled principles of law will bend. [citations omitted.] A majority of this
Court, swept away by society's obsession with stopping the
scourge of illegal drugs, today succumbs
to the popular pres44 9
sures described by Justice Holmes.
There has been a tendency in the Court's "reasonableness" analysis toward an abandonment of the requirement that government actions be based upon a showing of need.45 0 In Vernonia, for example,
the Court approved a suspicionless search despite the existence of a
less intrusive, suspicion based alternative. 4 5 1 This trend could forseeably result in suspicionless searches that have become omnipresent, and in the corresponding erosion of interests that have long been
considered to be at the heart of the protections of the Fourth
45 2
Amendment.
CONCLUSION
While the state may have a compelling interest in maintaining
order and discipline in the public schools to provide an environment
that is conducive to learning, that interest does not outweigh the substantial privacy concerns that are implicated by the random urinalysis
of student athletes. The United States Supreme Court's decision in
Vernonia School District47J v. Acton 4 58 fails both the Skinner v. Railway Labor Executives' Ass'n.4 54 and Delaware v. Prouse4 55 tests for
reasonableness in suspicionless searches.
448. Kenneth Nuger, The Special Needs Rationale: Creating a Chasm in Fourth
Amendment Analysis, 32 SANrA CLARA L. REV. 89, 89-90 (1992).
450. Clancy, 25 MEM. ST. U.L. REV. at 485.
451. Vernonia Sch. Dist. 47J, 115 S. Ct. at 2403-04 (O'Connor, J., dissenting). 452. Clancy, 25 MEM. ST. U. L. REV. at 485-86.
453. 115 S. Ct. 2386 (1995).
454. 489 U.S. 602 (1989).
455. 440 U.S. 648 (1979).
1996]
Suspicionless searches have been previously upheld by the
Supreme Court only when special needs, beyond the need for ordinary
law enforcement, have rendered the warrant and probable cause requirements impractical. The special needs balancing test evolved
from situations wherein an important government policy clashed with
an individual's privacy interests. Prior to the Vernonia decision, the
cases upholding suspicionless searches did so only because drug use
by the class of persons to be tested represented a significant danger
not only to the individuals, but to the public.
The Vernonia decision abandons the requirement of individualized suspicion on policy grounds. The Court in Vernonia also ignores
an important policy concern, namely, that while it is certainly important to provide a disciplined and orderly environment in which schoolchildren may be educated, the substance of what we teach them
within that environment is equally important. "Schools cannot expect
their students to learn the lessons of good citizenship when the school
authorities themselves disregard the fundamental principles underpinning our Constitutional freedoms."4 56 The message that the
United States Supreme Court and the Vernonia School District have
sent to students, regardless of what teachers may say in the classroom, is that there is a clear and substantial difference between the
theory of Fourth Amendment rights as envisioned by the Framers of
the Constitution and the practice of those rights in the context of the
public schools.
Leslie G. Peters-97
456.
New Jersey v. T.L.O, 469 U.S. 325, 374, n.9 (1989) (citations omitted).

Message in a Bottle: Vernonia School District 47J v. Acton

Transcription

Similar documents

Vernonia School District 47J v. Acton

Message in a Bottle: The United States Supreme Court Decision in

May 15, 2014 - Vernonia`s Voice

May 22, 2012 - Vernonia`s Voice

Planning Commission Approves Zoning Changes Volkswalking: Fun

The Cottage: A Co-op Offering Local Art and More in Scappoose

March 20, 2014 - Vernonia`s Voice

September - Stone County Hospital

February 20, 2014 - Vernonia`s Voice

inside - Local 94

Betta Fish Project Teaches Students About Life Cycle School District

Fall 2012 - IBEW Local Union #5

DIJKSTRA`S ALGORITHM

1940-01-15 BCC Meeting Minutes