Appeals Court Rejects Race-Bias Challenge to Drug Testing at a Catholic High School

By Mark Walsh — March 30, 2017 2 min read
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A federal appeals court has rejected a challenge to student drug testing at a Roman Catholic high school, holding that claims of race discrimination in the administration of the testing lacked evidence.

A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, also ruled that the testing did not involve government action, even though Marian Catholic High School in Chicago Heights, Ill., has received federal grants for the drug testing.

The high school, run by the Dominican Sisters, requires its students to sign contracts about conduct that include giving the school permission to perform random drug tests. (The appeals court said the contracts, and the question of whether students could legally enter into them, were not at issue in the case.)

In the 2015-16 academic year, the school used a method that involved taking a hair sample from the student and sending it off to be tested. Students who test positive are subject to counseling or expulsion.

The program was challenged by seven students who received false positive readings on the school drug tests. Each tested positive for cocaine in the school’s test, and then did second tests with other health providers, and all tested negative.

Six of the students are African-American and one is white. Some of the black students were expelled despite the negative results in followup tests. Two such students were told their Afro or dreadlock hairstyles were causing problems with the school drug tests. The one white student was expelled after a positive result on the school test, despite a negative result on his followup.

A school counselor told some of the students that she thought the followup tests were conducted after illegal drugs had worked their way out of the student’s systems.

The students sued the school, the counselor, and the school’s testing company, alleging race discrimination, including a racially disparate impact in the drug testing. A federal district court dismissed the suit, ruling that it did not present a plausible claim of race bias.

In its March 29 decision in L.P. v. Marian Catholic High School, the 7th Circuit court panel upheld the district court. The court said there was no evidence that the school counselor or the testing company were making decisions based on race.

The school counselor had perhaps “unwarranted” trust in the hair sample tests, the court said, but “there is no allegation that she tended to credit later negative tests for white students, but not for African-American students.”

And the students’ racially disparate-impact theory was not helped by the fact that the lone white student in the group was one of those who was expelled, the court said.

Finally, the court said there was no “state action” by the religious high school, which would be required for the students to win on their civil rights claims. Neither the federal drug testing grant nor the fact that the school is registered with the state of Illinois altered that analysis, the court said.

“Drug-testing programs are sensitive, and we readily accept the proposition that errors can creep into test results,” the appeals court said. “But errors alone do not violate the laws against racial discrimination, without some showing that distinctions (usually intentional, but sometimes based on disproportionate impact) based on race explain what is going on. The operative complaint in this case fails to meet this burden.”

A version of this news article first appeared in The School Law Blog.