Ivan Gluckman, staff counsel to the National Association of Secondary School Principals, said the Indiana decision “will be a useful precedent” for districts considering drug-testing policies.
The decision is believed to be the first in the nation to address the question of the constitutionality of drug testing for high-school athletes, and the first to find a school drug-test policy constitutional. In 1985, federal district courts in Arkansas and New Jersey struck down school policies involving required testing of entire student populations.
Not a ‘Protected’ Right
Acting in a case filed by two Indiana high-school students, U.S. District Judge Allen Sharp ruled on Feb. 1 that the Tippecanoe County district’s drug-testing requirement was permissible under the Fourth Amendment because “participation in interscholastic competition is not ... a constitutionally protected right.”
The judge also ruled that the district’s testing program, which had been barred pending the outcome of the case, did not violate athletes’ “inherent right to privacy,” nor their rights to equal protection and due process of the law under the 14th Amendment.
"[I]t was generally agreed upon by all concerned that the use of drugs, especially in the public schools, is a matter of serious national concern,” wrote Judge Sharp in his decision in the case, Schaill v. Tippecanoe County School Corporation. “When there are social concerns at stake, wide latitude will be given to school officials.”
The ruling counters recent legal victories for civil-liberties advocates, who have successfully argued against testing programs for college athletes and broad testing policies affecting all of a high school’s students.
Test Requirements
The Indiana district’s testing program requires all high-school students who wish to participate on athletic teams to sign a statement that allows school officials to randomly test them for drug use. Failure to sign the consent form automatically disqualifies a student from participation.
Students who test positive for illegal drugs will be barred from participating in 30 percent of their team’s contests. Students who test positive in subsequent screenings could be permanently sidelined.
At no point, though, can the test results be used as grounds to suspend or expel a student from school, the policy states.
The Tippecanoe program will use a sophisticated, multi-stage process for the drug screening, according to court documents.
At the first level, athletes’ urine will be analyzed by using the emit Cannabinoid Urine Assay, followed by thin-layer chromatography. If both those tests are positive, the district will use the gas-chromatography/mass-spectrography method for further confirmation.
Other federal courts have struck down drug-testing programs for teachers and other workers that used only the relatively less expensive and less reliable emit screening method.
‘Privilege,’ Not Right
Judge Sharp based his decision in part on the U.S. Supreme Court’s 1985 decision in New Jersey v. T.L.O.
In that case, the High Court found that although students have a legitimate expectation of privacy under the Fourth Amendment, school officials may conduct searches of their persons or property provided they have a “rea8sonable” basis for believing that the search will uncover evidence of illegal or prohibited activity.
All of the Tippecanoe schools’ student athletes, wrote Judge Sharp, have an equal chance of being selected to take the drug test. And because student athletes, more than nonathletes, risk injuring themselves and others while impaired by drugs, the judge concluded, school officials have a legitimate interest in keeping their athletic program drug-free.
The judge agreed with the district’s contention that participation in a high-school sport is a privilege, not a right. As a result, he wrote, a student who is denied the opportunity to participate on a team as a result of a positive drug test cannot claim that the due-process clause of the Fourteenth Amendment has been violated.
“Without minimizing the important benefits to be gleaned from high-school sports, the school correctly observed in its program and policy statement that participation in its athletic program is a privilege and not a right,” Judge Sharp wrote.
No ‘Individualized Suspicion’
Lawyers for the Indiana Civil Liberties Union, which represented the students, said they plan to seek a review of the ruling before the U.S. Court of Appeals for the Seventh Circuit.
Michael L. Gradison, executive director of the ICLU, argued that the judge erred in holding that the district could single out student-athletes as a class of students to be tested for drugs.
“The fundamental problem is that there is no individualized suspicion” that a particular athlete, or athletes in general, are more prone to drug abuse than other students, he said. “Why only student-athletes? Howabout all members of the student council ... [and] the president of the Spanish club?”
But James McGlone, a lawyer for the school district, said the program was designed to recognize the special safety risks faced by student athletes.
“The school doesn’t have to solve all problems equally, or even in the same way,” he said. “If we treat all athletes the same, the equal-protection clause is not being violated.”
School officials were expected to decide by late last week when, and if, to implement the drug-testing program.
Previous Cases
Lawyers said two previous cases involving schoolwide mandatory drug-testing for high-school students have been decided in favor of the students.
In Anable v. Ford, a federal district judge in 1985 held unconstitutional an Arkansas district’s drug-test policy requiring a student to provide a urine sample in the presence of a school official of the same sex. A New Jersey court found in the same year that a schoolwide urinalysis program constituted an unreasonable search.
Several cases are also pending in both state and federal courts that could further define the rights of college athletes.
Ivan Gluckman, staff counsel to the National Association of Secondary School Principals, said the Indiana decision “will be a useful precedent” for districts considering drug-testing policies.
He said that while his organization does not have a position on student drug-testing, he has told school officials who are interested in establishing such programs that “there is a better rationale” for testing student athletes, who are more likely to be injured than the general student population.
