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Searches and Seizures: Drug Testing The Supreme Court actually ruled that drug testing is an invasion of privacy to such an extent that it is a search. When drug testing is conducted by a government entity, it is governed by the Fourth Amendment. But what about drug testing in schools? Does it matter whether a school is public or private? What about drug testing at work? Can a private entity let police know of a positive result? These questions are explored here. Pages: ‹1› ‹2› ‹3› ‹4› ‹5› ‹6› ‹7› ‹8› ‹9›
I comprehend the Court's opinion as reserving the question whether the District, on no more than the showing made here, constitutionally could impose routine drug testing not only on those seeking to engage with others in team sports, but on all students required to attend school.
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By the reasoning of today's decision, the millions of these students who participate in interscholastic sports, an overwhelming majority of whom have given school officials no reason whatsoever to suspect they use drugs at school, are open to an intrusive bodily search.
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...[I]t remains the law that the police cannot, say, subject to drug testing every person entering or leaving a certain drug-ridden neighborhood in order to find evidence of crime. 3 W. LaFave, Search and Seizure § 9.5(b), pp. 551-553 (2d ed. 1987) (hereinafter LaFave). And this is true even though it is hard to think of a more compelling government interest than the need to fight the scourge of drugs on our streets and in our neighborhoods.
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The great irony of this case is that most (though not all) of the evidence the District introduced to justify its suspicionless drug testing program consisted of first- or second-hand stories of particular, identifiable students acting in ways that plainly gave rise to reasonable suspicion of in-school drug use -- and thus that would have justified a drug-related search under our T. L. O. decision. [T. L. O., Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977)] (warrant and probable cause not required for school searches; reasonable suspicion sufficient). [...]
In light of all this evidence of drug use by particular students, there is a substantial basis for concluding that a vigorous regime of suspicion-based testing (for which the District appears already to have rules in place, see Record, Exh. 2, at 14, 17) would have gone a long way toward solving Vernonia's school drug problem while preserving the Fourth Amendment rights of James Acton and others like him. [...]
I recognize that a suspicion-based scheme, even where reasonably effective in controlling in-school drug use, may not be as effective as a mass, suspicionless testing regime. In one sense, that is obviously true -- just as it is obviously true that suspicion-based law enforcement is not as effective as mass, suspicionless enforcement might be. "But there is nothing new in the realization" that Fourth Amendment protections come with a price. Arizona v. Hicks, 480 U.S. 321, 329, 94 L. Ed. 2d 347, 107 S. Ct. 1149 (1987). Indeed, the price we pay is higher in the criminal context, given that police do not closely observe the entire class of potential search targets (all citizens in the area) and must ordinarily adhere to the rigid requirements of a warrant and probable cause.
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