Linke Ex Rel. Linke v. Northwestern School Corp.

Attorney for Appellants

Kenneth J. Falk

Indiana Civil Liberties Union

Indianapolis, IN

Attorneys for Amici Curiae

Anthony S. Benton

Laura L. Bowker

Stuart & Branigin

Lafayette, IN

David R. Day

Johnson, Smith, Pence & Heath LLP

Indianapolis, IN

David J. Emmert

Indianapolis, IN

Attorneys for Appellee

Julia Blackwell Gelinas

John H. Daerr

Thomas E. Wheeler, II

Locke, Reynolds LLP

Indianapolis, IN

IN THE

INDIANA SUPREME COURT

ROSA J. LINKE, REENA M. LINKE,

(By their next friends and parents),

SCOTT L. LINKE and NOREEN L. LINKE,

Appellants (Plaintiffs below),

v.

NORTHWESTERN SCHOOL CORP.,

Appellee (Defendant below).

)

) Supreme Court No.

) 34S05-0103-CV-151

)

) Court of Appeals No.

) 34A05-9910-CV-467

)

)

)

APPEAL FROM THE HOWARD CIRCUIT COURT

The Honorable Lynn Murray, Judge

Cause No. 34C01-9902-CP-131

ON PETITION TO TRANSFER

March 5, 2002

SULLIVAN, Justice.

Rosa and Reena Linke, students in the Northwestern School Corporation

in Howard County, contend that the school’s random drug testing program

violates their rights under the Indiana Constitution to be free from

unreasonable searches and seizures. After weighing the students’ privacy

interests and the character of the search against the nature and immediacy

of the governmental concern at issue, we conclude that the drug-testing

program here is constitutional.

Background

Northwestern School Corporation (NSC) is a public school system

covering rural and suburban areas of Howard County near Kokomo. It

operates two elementary schools, one middle school, and one high school.

In the mid-1990s, drug usage in middle and high schools became a

concern to the administrators at NSC. In the spring of 1995, the Indiana

Prevention and Resource Center released a survey regarding drug, alcohol,

and tobacco usage by students in grades seven through ten at NSC schools.

The survey showed higher than average use of gateway drugs among some

students. Specifically, it found that NSC’s eighth graders used

amphetamines at a rate higher than state prevalence rates; ninth graders

used drugs, alcohol, and cigarettes at higher than the state prevalence

rates; and tenth graders reported a higher daily use of alcohol than state

prevalence rates.

Drug abuse continued to be a problem at NSC high and middle schools.

During the 1998-99 school year, there were two suspensions and two

expulsions in the high school and five suspensions and five expulsions in

the middle school because of student drug usage. Beginning in 1987, three

Northwestern High School students (including a recent graduate) died in

drug related incidents. The most recent death, in 1996, occurred after a

student overdosed on morphine pills acquired from a fellow student while at

school. These contraband pills passed through a chain of student hands

before finding their final resting place.

The 1996 death caused serious concern. In response, a task force

consisting of administrators, teachers, staff, and interested parents was

formed to examine NSC’s approach to drugs. In order better to fulfill

NSC’s zero tolerance policy towards drug abuse, the task force addressed

three primary areas: anti-drug curriculum; incorporation of special anti-

drug programs; and development of a student drug testing policy.

The task force created the Northwestern School Corporation Extra-

Curricular Activities and Student Driver Drug Testing Policy (“Policy”)

effective January 12, 1999. Its purpose is “(1) to provide for the health

and safety of students; (2) to undermine the effects of peer pressure by

providing a legitimate reason for students to refuse to use illegal drugs;

and (3) to encourage students who use drugs to participate in drug

treatment programs.” The Policy is explicitly not a punitive enterprise.

Under the Policy, testing positive for banned substances does not result in

academic penalty, results of drug test are not documented in any student’s

academic records, and information regarding the results is not disclosed to

criminal or juvenile authorities absent binding legal compulsion.

The Policy applies to all middle and high school students, grades 7-

12, participating in school athletics, specified extra-curricular and co-

curricular[1] activities, as well as to all student drivers who wish to

park their vehicles on campus. The activities included by the Policy are

athletics, academic teams, student government, musical performances, drama,

Future Farmers of America, National Honor Society, and Students Against

Drunk Driving. Students wishing to engage in one of these activities are

required to sign a form consenting to the testing and must also obtain

written consent from a parent or guardian.[2] Students participating in co-

curricular activities who choose not to participate in the testing program

are given an opportunity to prepare alternative assignments, for academic

credit, in lieu of participating in public performances.

A computer-based system, designed specifically for the purpose of

randomly selecting individuals for drug testing, is used to pick the

students. Midwest Testing, a testing firm that notifies the school

principals who will be tested, currently handles this process. Students

are not given advance warning of the testing.

Upon selection, a student is escorted to a trailer that is driven to

the school by Midwest Testing. Only one student is taken to the trailer

at a time. The student is given a specimen bottle and is allowed to enter

the restroom facility in the trailer unattended. The facility has a

commode containing blue dye and all water faucets are turned off so that

water cannot be used to dilute a specimen. Once inside the restroom

facility, the student is separated from the monitor by a closed door.

After producing a specimen, the student leaves the restroom, hands the

specimen to the Midwest Testing employee to be sealed, initials the sealed

bag, and returns to class.

The specimens are sent to Witham Laboratories, an independent

laboratory, where they are tested only for the substances banned by the

Policy.[3] The testing laboratory does not know the identity of the

students tested and NSC follows strict procedures regarding the chain of

custody and access to test results. Negative test results are mailed to

the designated authority. Positive specimens, on the other hand, are

retested. If the re-test is positive, Witham communicates the specimen

number of the positive result to a building administrator who alerts the

student’s school principal. The principal is then able to determine the

identity of the student by reference to the specimen number. In such

instances, the principal holds a conference with the student and his or her

parents and at that time the student is given the opportunity to submit

documentation that would justify a positive result, e.g., prescription

medication. Failure to provide a satisfactory explanation for a positive

test results in further action by the school.

Athletes testing positive are governed by an athletic code of conduct.

Students participating in all other activities are governed by a student

activities code of conduct. Under both codes, a student may be barred from

participating in an activity for up to 365 days. However, the consequences

vary based upon the activity and substance.

A student is entitled to be re-tested, at the school’s expense, when

the drug for which the student tested positive would be expected to have

disappeared from the student’s body. A negative test at this time allows

the student to return to full participation in the activity but a positive

re-test is deemed to constitute reasonable suspicion, such that NSC

reserves the right to re-test the student throughout the remainder of the

school year. A positive re-test also bars the student from returning to

the activity until such time as the student tests negative. Beyond the

first re-test, the Policy does not require the school to pay for additional

tests requested by the student.

Rosa and Reena Linke (“the Linkes”) were both students at

Northwestern High School, a part of NSC, when this lawsuit was filed. At

the time of the suit, Rosa was a junior who participated in track, National

Honor Society, Students Against Drunk Driving, the Prom Committee, and

Academic Competition. She also had a driver’s license and wanted to drive

to school. Reena was a freshman participating in choir, track, Academic

Competition, Sunshine Society, and Fellowship of Christian Athletes. Their

claim was that the Policy violated the Search and Seizure Clause, art. I, §

11, and the Privileges and Immunities Clause, art. I, § 23, of the Indiana

Constitution.

The trial court granted summary judgment in favor of NSC. The Court

of Appeals reversed, holding that, in regard to school children, the Search

and Seizure Clause, art. I, § 11, of the Indiana Constitution implicitly

contains “a general requirement of individualized suspicion,” which was not

met by the Policy. See Linke v. Northwestern School Corp., 734 N.E.2d 252,

259 (Ind. App. 2000). We granted transfer. Linke vs. Northwestern School

Corp., No. 34S05-0103-CV-151, 2001 Ind. LEXIS 229 (Mar. 5, 2001).

Discussion

I

The Search and Seizure Clause, art. I, § 11, of the Indiana

Constitution (“Section 11”) provides, “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable

search or seizure, shall not be violated; 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.”

Although Section 11 is almost identical to the Fourth Amendment of the

United States Constitution, this court's analysis of claims arising under

Section 11 is separate and distinct from Fourth Amendment analysis. See

Moran v. State, 644 N.E.2d 536, 538 (Ind. 1994). However, in this regard

federal law and the law of sister states may have persuasive force. Id.

A

The Linkes correctly contend that urinalysis drug testing constitutes

a search under Section 11. “In the law of searches and seizures, the term

‘search’ implies prying into hidden places for that which is concealed.”

Moran, 644 N.E.2d at 540 (citing Lindsey v. State, 246 Ind. 431, 439, 204

N.E.2d 357, 362 (1965)). In finding that urinalysis testing constitutes a

search under the Fourth Amendment, the United States Supreme Court has

noted, “chemical analysis of urine … can reveal a host of private medical

facts.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989);

see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).

Similarly, Judge Friedlander has written that “the taking of bodily samples

[for evaluation] constitutes a search.” Cutter v. State, 646 N.E.2d 704,

711 (Ind. Ct. App. 1995), transfer denied; cf. DeVaney v. State, 259 Ind.

483, 487, 288 N.E.2d 732, 735 (1972) (holding that the taking of a blood

sample constituted a Section 11 search).

Given that NSC is a public school corporation and that its drug

testing policy is a Section 11 search, it is necessary to determine whether

the search violates Section 11.

B

In Moran and Brown v. State, 653 N.E.2d 77 (Ind. 1995), we held that

the measure of whether a government search violated Section 11 is whether

the process is "reasonable." Id. at 80. Here, the Linkes and NSC advance

differing views as to the appropriate measure of reasonableness. The

Linkes argue that in order to be reasonable under Section 11, a school drug

testing policy must be based on the element of individualized suspicion.

Under this conception, random drug testing of students would violate

Section 11 since, by definition, a random program is not based on

individualized suspicion. On the other hand, NSC argues that the

appropriate measure of reasonableness under Section 11 is substantially

similar to the one expounded in Vernonia School District 47J v. Acton, 515

U.S. 646 (1995), where the Supreme Court balanced the intrusion of the

search on the individual’s Fourth Amendment interests with its promotion of

legitimate governmental interests. Id. at 653-654 (quoting Skinner, 489

U.S. at 619, and Delaware v. Prouse, 440 U.S. 648, 654 (1979)). Under this

approach, NSC maintains, the Policy meets the reasonableness requirement of

Section 11.

The Linkes point out that we have held “that a police officer may not

stop a motorist in Indiana for a possible seat belt violation unless that

officer reasonably suspects that the driver or a passenger in the vehicle

is not wearing a seat belt as required by law.” Baldwin v. Reagan, 715

N.E.2d 332, 337 (Ind. 1999). From this proposition, they argue, and the

Court of Appeals held, that for any search to meet Section 11 muster, it

must be based on “individualized suspicion.” Linke, 734 N.E.2d at 259.

We do not think the individualized suspicion requirement of Baldwin v.

Reagan is so readily transferable to this case. Baldwin v. Reagan – and

Moran and Brown before it – focused on the role of Section 11 in protecting

those areas of life that Hoosiers regard as private “from unreasonable

police activity.” See Moran, 644 N.E.2d at 540 (emphasis added); Brown,

653 N.E.2d at 79 (noting that protection from unreasonable searches and

seizures plays a uniquely important role in the context of criminal

procedure). Preventing unreasonable law enforcement activity was a key

factor motivating our holding in Baldwin v. Reagan that individualized

suspicion of a seatbelt violation is required in order to stop a motorist

for that purpose. 715 N.E.2d at 337.

A search conducted by a school corporation is substantively different

than a search conducted to enforce the law. This is in no small part due

to the different role played by law enforcers and teachers.

Law enforcement officers function as adversaries of criminal suspects.

These officers have the responsibility to investigate criminal

activity, to locate and arrest those who violate our laws, and to

facilitate the charging and bringing of such persons to trial. Rarely

does this type of adversarial relationship exist between school

authorities and pupils. Instead, there is a commonality of interests

between teachers and their pupils.

New Jersey v. T.L.O., 469 U.S. 325, 349-350 (1985).

Under the Policy, test results are not volunteered to law enforcement,

nor are they used for any internal disciplinary function. Absent such

consequences, we do not believe the rationale for individualized suspicion

is as strong here as in the seat belt enforcement context. Cf. Oman v.

State, 737 N.E.2d 1131, 1146-47 (Ind. 2000) (holding that under the Fourth

Amendment the results of an employee's administrative drug test can be used

in a criminal prosecution, but only if obtained by valid legal process

externally initiated from the employment setting), cert. denied, 122 S.Ct.

38 (2001).

While Brown emphasized that reasonableness was the touchstone of

Section 11 analysis, it framed the question as “whether, in the totality of

these circumstances,” the police conduct at issue was reasonable. 653

N.E.2d at 79-80. We believe that balancing the students’ interests against

the school corporation’s better comports with this totality of the

circumstances framework than a per se requirement of individualized

suspicion.

There is precedent for this approach. In determining that the

totality of the circumstances allows consideration of police officer

safety, we stated that “[i]n construing and applying ‘unreasonable’ under

Section 11, we recognize that Indiana citizens have been concerned not only

with personal privacy but also with safety, security, and protection from

crime.” Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001); see also

Carter v. State, 692 N.E.2d 464, 466 (Ind. App. 1997) (“[A]n individual's

rights protected under Article I, § 11 are not absolute. We must balance

competing rights and ‘look to the reasonableness of the intrusion and

permit brief investigatory stops based upon reasonable suspicion of

criminal activity.’” (citations omitted)).

We adopt the analytical approach of Vernonia School District 47J v.

Acton in these circumstances. Broadly stated, we will weigh the nature of

the privacy interest upon which the search intrudes, the character of the

intrusion that is complained of, and the nature and immediacy of the

governmental concern to determine whether the Policy is reasonable under

the totality of these circumstances. 515 U.S. at 658-660.

C

C-1

In weighing the nature of the privacy interest upon which a search

under the Policy intrudes, the first – and chief – consideration

influencing our analysis is the Linkes’ status as middle and high school

students.

Our law does not accord students the same privacy interests as

adults. “Traditionally at common law, and still today, unemancipated

minors lack some of the most fundamental rights of self-determination.”

Acton, 515 U.S. at 654. The United States Supreme Court has taken the view

that while public schools are state actors subject to constitutional

oversight, the nature of a school’s role “is custodial and tutelary,

permitting a degree of supervision and control that could not be exercised

over free adults.” Id. at 655; T.L.O., 469 U.S. at 333. Indiana law

codifies this view. For example, in passing compulsory education laws that

mandate the availability of public elementary education for its citizenry,

the State “has recognized that public schools stand ‘in the relation of

parents and guardians to the students’ … regarding [all] matters of

discipline and conduct of students.” Higginbottom v. Keithley, 103 F.

Supp. 2d 1075, 1080 (S.D. Ind. 1999), quoting Ind. Code § 20-8.1-5.1-3(b)

(1988).

The Linkes concede that the privacy interest of juveniles is not the

same as adults’ but argue that minors are actually accorded greater

protection. However, the authority relied upon by the Linkes does not

stand for the notion that a student’s privacy interest should be granted

greater weight. To the contrary, it stands for the proposition that, under

certain circumstances, the State plays an active role in dictating the

course of children’s lives. See Manners v. State, 210 Ind. 648, 5 N.E.2d

300 (1936) (upholding statute making it a felony for a father to fail to

provide for a child on the reasoning that “[m]inor children are the subject

of the solicitude of the law because it is assumed that until maturity they

are not capable of protecting themselves.”); see also Adams v. State, 244

Ind. 460, 465, 193 N.E.2d 362, 364 (1963) (stating that juvenile courts

exercise parental supervision and may properly restrain a minor’s liberty

in the exercise of discipline, rehabilitation, and training). Rather than

bolster their argument, the Linkes’ cited authority reinforces the

principle that a minor’s liberty interest is sometimes less than that of an

adult.

In light of the fact that minors in school are subject to supervision

and control that could not be exercised over free adults and in view of the

legislature’s codification of the custodial and protective role of Indiana

public schools, we find that students are entitled to less privacy at

school than adults would enjoy in comparable situations. Cf. T.L.O., 469

U.S. at 348 (“In any realistic sense, students within the school

environment have a lesser expectation of privacy than members of the

population generally.”).

A second factor influencing a student’s privacy interest is consent.

A voluntary decision to submit to random drug testing further decreases the

student’s legitimate expectation of privacy, increasing the likelihood of a

testing policy’s Section 11 reasonableness. Of course, a coerced decision

is not consensual. For this reason “[t]he consent, and the circumstances

in which it was given, bear upon the reasonableness” of the Policy. See

Ferguson v. City of Charleston, 532 U.S. 67, 91 (2001) (Kennedy, J.,

concurring).

NSC maintains that the Policy’s requirement that student participants

submit to random drug testing does not compel consent because it only

applies to privileged activities. The Linkes take issue with this

characterization. Citing the Supreme Court of Colorado in Trinidad School

District No. 1 v. Lopez, the Linkes argue that it is necessary to

participate in extracurricular activities to be successful in today’s

world. (Br. of Appellants at 26, quoting Lopez, 963 P.2d 1095, 1109 (Colo.

1998) (“[T]he reality for many students who wish to pursue post-secondary

educational training and/or professional vocations requiring experience

garnered only by participating in the extracurricular activities is that

they must engage in such activities. … [I]involvement in a school’s

extracurricular offerings is a vital adjunct to the educational

experience.”)).

The Policy is different from that at issue in Lopez. The Lopez court

noted, “two for-credit classes that are part of the regular curriculum of

course offerings are inextricably linked to the ‘extracurricular’ activity

of marching band. … The record reflects that the consequence of enrolling

in a class and failing to participate in the marching band is severe: the

student will receive a failing grade.” 963 P.2d at 1105. Thus, the policy

under review in Lopez effectively gave failing grades to students who

refused to submit to a drug test. The Supreme Court of Colorado found this

to be unreasonable, in part because it applied to students taking the

normal curriculum.

We are sensitive to the issue raised by the Supreme Court of Colorado.

Students do not forfeit their privacy interest simply by virtue of

attendance at school. “Today’s public school officials … act in

furtherance of publicly mandated educational and disciplinary policies,”

T.L.O., 469 U.S. at 336, and statutes on the books compel school

attendance. See Ind. Code § 20-8.1-3-17 (1998). However, the Policy does

not require drug testing for students enrolled in compulsory regular

classes. Rather, students in voluntary activities for which they receive

academic credit (co-curricular activities) are given the option of

providing alternative for-credit assignments. The Policy is different from

the one reviewed by the Supreme Court of Colorado in that NSC students are

not deprived of the opportunity to receive academic credit from co-

curricular activities if they choose not to submit to drug testing. They

are only deprived from participating in the extra-curricular portion of the

activities.

We acknowledge that this does alter the usual voluntariness calculus

because, in all likelihood, at least some adverse consequences may attach

to the inability to so participate. We further acknowledge that, while

schools are not the only outlet for extracurricular activities,

participation in school sponsored extracurricular activities may benefit

some students who wish to pursue post-secondary educational or professional

training. However, in order for consent to be voluntary in this context,

it does not follow that there be absolutely no disadvantage to a refusal to

give consent. See Ferguson, 532 U.S. at 91 (“[t]he person searched has

given consent, as defined to take into account that the consent was not

voluntary in the full sense of the word.”) (Kennedy, J., concurring);

Acton, 515 U.S. at 650 (1995) (“[s]tudents wishing to play sports must sign

a form consenting to the testing and must obtain the written consent of

their parents.”). The fact that refusal to agree to drug testing results

in forfeiture of the opportunity to obtain certain benefits is not so

weighty as to constitute forced consent. See Todd v. Rush County Schools,

133 F.3d 984, 986 (7th Cir.), cert. denied 525 U.S. 824 (1998).

A third factor influencing the privacy interests of students is

whether they have volunteered for an already regulated activity. See

Acton, 515 U.S. at 657 (“[b]y choosing to ‘go out for the team,’ [student

athletes] voluntarily subject themselves to a degree of regulation even

higher than imposed on students generally.”). There can be little doubt

that student athletics are highly regulated. See Schaill v. Tippecanoe

County Sch. Corp., 864 F.2d 1309, 1318 (7th Cir. 1988) (“the Indiana High

School Athletic Association has extensive requirements which it imposes

upon schools and individuals participating in interscholastic athletics.”).

To a lesser extent, non-athletic extracurricular activities are also

regulated in that various activities or clubs impose rules and requirements

to which participants must comply. See Earls v. Tecumseh Pub. Sch. Dist.

No. 92, 242 F.3d 1264, 1276 (10th Cir.) (“students participating in non-

athletic extracurricular activities … agree to follow the directives and

adhere to the rules set out by the … director of the activity.”), cert.

granted, 122 S. Ct. 509 (2001).[4] The extent to which a voluntary

activity is already regulated can further influence a student’s Section 11

privacy interest.

C-2

The character of the intrusion that is complained of provides another

element contributing to reasonableness in the school context. The Linkes

view urinalysis testing “as extremely intrusive, demeaning, and

embarrassing.” Urinalysis implicates an “excretory function traditionally

shielded by great privacy.” See Skinner v. Ry. Labor Executives’ Ass’n,

489 U.S. 602, 626 (1989); Acton, 515 U.S. at 658. However, the manner in

which the sample is acquired influences the ultimate weight given to the

Linkes’ embarrassment. See Acton, 515 U.S. at 658; Schail, 864 F.2d at

1318.

In Acton, the Supreme Court found urinalysis testing reasonable when

students urinated in plain view of attendants, in part because it was no

more intrusive than a visit to a standard public restroom. See 515 U.S. at

577. In contrast, NSC students are escorted to a testing facility in a

manner such that only one student is present at a time. The student then

enters a private room and is allowed to close the door. Attendants do not

watch the student. In this case, the Policy is much less intrusive than

the one examined by the Supreme Court in Acton.

Other important factors to consider in evaluating the character of

the intrusion are what the test searches for, the amount of discretion

given to the testers, and to whom results are disclosed. The Policy

restricts the test to a pre-set list of banned substances. No student is

compelled to provide additional private information (such as medications

used). Even after a positive test, the choice of whether to disseminate

additional explanatory information is left to the student. At no point in

the process do school officials have discretion to choose whom to test or

for what to test. Various measures are taken throughout the process to

insure both the integrity of the tests and the privacy of the students,

including limiting the persons privy to test results to the greatest

possible extent.

A final factor to consider in evaluating the character of the

intrusion is whether the test is punitive or preventative and

rehabilitative. A punitive testing regime by a school corporation is a

more severe intrusion upon a student’s Section 11 privacy interest than a

non-punitive search conducted in furtherance of a school’s custodial and

protective role. See Acton, 515 U.S. at 658 n. 2; Lopez, 963 P.2d at 1116

(Scott, J., dissenting).

Section 11 protects those areas of life that Hoosiers regard as

private “from unreasonable police activity.” See Moran, 644 N.E.2d at 540

(emphasis added). We have also noted that protection from unreasonable

searches and seizures plays a uniquely important role in the context of

criminal procedure. See Brown, 653 N.E.2d at 79. The emphasis on

preventing unreasonable law enforcement activity was a factor motivating

our holding in Baldwin v. Reagan that reasonable suspicion of a seatbelt

violation is required in order to stop a motorist for that purpose. 715

N.E.2d 332, 337 (Ind. 1999).

However, a preventative or rehabilitative search conducted by a school

corporation is substantively different than a search conducted to enforce

the law. A preventative or rehabilitative search is inherent to a school

corporation’s function. Students generally understand that the

“preservation of … a proper educational environment requires close

supervision” and thus the intrusion on privacy is less severe. See T.L.O.,

469 U.S. at 339.

In the present matter, the record shows that test results are not

volunteered to law enforcement, nor are they used for any internal

disciplinary function. Students are merely barred, for varying periods of

time, from participating in privileged activities. As a result, the Policy

must be viewed as preventative or rehabilitative. A policy involving a

disciplinary function, such as suspension or expulsion from school, could

be punitive and is not implicated here. The care exhibited by NSC to

protect student privacy and to create a non-punitive test mitigates against

the Linkes’ privacy concern. A drug testing policy not so carefully

crafted might not. Cf. Ferguson, 532 U.S. at 68 (noting the “critical

difference” between drug tests conducted without a warrant or

individualized suspicion when law enforcement provides a central and

indispensable feature of the policy and when drug testing is conducted for

a purpose distinct from the State’s general interest in law enforcement).

C-3

We last evaluate NSC’s interest in drug testing certain students.

NSC proffers the need to fight and deter drug abuse among its students in

general and its students who act as role models and representatives of the

school in particular. It also asserts a related interest in insuring the

health and safety of its students. The Linkes counter that NSC’s only

legitimate interest is in stopping abuses that may occur on campus,

something they argue that the Policy does not properly achieve.

That NSC has the responsibility of supervising its students and

enforcing desirable behavior in carrying out school purposes is not

questioned. Ind. Code § 20-8.1-5.1-3;[5] see also Ind. Const. art. VIII, §

1.[6] In the mid-1990s, drug usage in NSC’s middle and high schools caused

administrators to worry that they were not properly fulfilling this

function. Most notably, a 1995 study of drug usage in NSC schools showed

higher than average use of gateway drugs in the middle and high schools. A

year later, an NSC student acquired morphine pills from a fellow student at

school and subsequently died from an overdose. In response, NSC

commissioned the task force of school officials and parents that created

the Policy.

Deterring drug abuse by children in school is an important and

legitimate concern for our schools. Drug abuse severely harms youths and

impacts on a school’s educational mission. “‘Maturing nervous systems are

more critically impaired by intoxicants than mature ones are; childhood

losses in learning are lifelong and profound’; ‘children grow chemically

dependent more quickly than adults and their record of recovery is

depressingly poor.’” Acton, 515 U.S. at 661. What is more, “the effects

of a drug-infested school are visited not just upon the users, but upon the

entire student body and faculty.” Id. at 662. NSC’s interest in deterring

drug use is further enhanced by the fact that three of its students have

died of drug related causes since 1987, that it had scientific data

illustrating a burgeoning drug problem on its middle and high school

campuses, and that drug use continues to be an identifiable problem at the

middle and high schools. See Skinner, 489 U.S. at 607 (upholding a

Government drug-testing program based on findings of drug use by railroad

employees nationwide without proof that a problem existed on the particular

railroads whose employees were subject to the test).

NSC’s interest in testing the included students is further heightened

by the fact that the relevant extracurricular activities all have off

campus components. NSC needs a broader range of tools to insure compliance

with its rules when activities occur off campus. This is due, in large

part, to the fact that greater ranges of activities occur during

extracurricular activities than during normal school hours. See Webb v.

McCullough, 828 F.2d 1151, 1157 (6th Cir. 1987) (affirming grant of summary

judgment upholding a public school principal’s search of the private hotel

room of a high school student during a voluntary, off campus, school

sponsored field trip). There are many more ways for a student to be

injured, to endanger fellow students, to transgress school rules, or to

violate the law while participating in an extracurricular off campus event

(such as a band competition in another city or a non-curricular field trip)

than during the relative order of school hours. See Id. Indeed, parents

may be reluctant to allow their children to participate in voluntary school

activities if schools are not permitted to take the reasonable steps taken

here by NSC to prevent drug use. See Id.

If drug abuse increases the physical danger of participation in a

school-sponsored activity, a school corporation’s interest in deterring

drug abuse becomes stronger. This is undoubtedly the case with school

athletics. See Acton, 515 U.S. at 662 (“[a]part from psychological effects

… the particular drugs screened by the District’s Policy have been

demonstrated to pose substantial physical risks to athletes.”). Likewise,

we note that driving while intoxicated presents significant physical risks

to drivers, their passengers, and pedestrians. See Todd v. Rush County

Schools, 983 F. Supp. 799, 806 (S.D. Ind.), aff’d 133 F.3d 984 (7th Cir.

1997), cert. denied, 525 U.S. 824 (1998).

While the risk of physical injury seems remote in the other

activities covered by the Policy, NSC argues that its interest in promoting

the health and safety of these students is equivalent to that of student

athletes and student drivers. It is true that “successful extracurricular

activities require healthy students,” see Todd v. Rush County Schools, 133

F.3d 984, 986 (7th Cir. 1997), but the absence of increased physical danger

means that NSC’s general interest in health and safety is not increased in

these situations. After all, healthy students are important to most of

what a school does and the need does not grow simply because a student

chooses to participate in an activity. NSC further maintains, however,

that its interest in deterring student drug abuse is increased by the facts

that student athletes and student participants in extracurricular

activities are role models for other students and are representatives of

their schools in the community. The Linkes respond that there is “nothing

in the record to demonstrate that band members are viewed as role models or

student leaders.”

The record does not address whether their peers view students

participating in the tested activities as role models. NSC’s interest in

testing may well be heightened were such a fact shown. See Acton, 515 U.S.

at 662-663. Nonetheless, it is evident that NSC holds the participants out

as role models by submitting the participants to additional rules above and

beyond “normal,” and by sending participants to community functions as

school representatives. The fact that NSC has identified a drug problem at

its middle and high schools gives it an interest in experimenting with

methods to deter drug use. This aspect of the Policy supports NSC’s

interdiction efforts by giving students who represent the school in an

organized activity a valid response to peers who may pressure them into

using drugs.

Chandler v. Miller, 520 U.S. 305 (1995), in which the Supreme Court

invalidated a program of suspicionless drug testing of Georgia political

candidates, does not suggest a different conclusion. In Chandler, the

Supreme Court determined that suspicionless drug testing of candidates was

solely symbolic because (1) the tests were not based on evidence of a drug

problem among the State’s elected officials, (2) those officials typically

do not perform high risk, safety sensitive tasks, and (3) the tests

immediately aided no interdiction effort. Id. at 321-322. The

circumstances creating context for the Policy under our review are

different. In addition to the fact that it is public school students who

are tested here, the Policy has been prompted by concrete evidence of drug

abuse by NSC junior and high school students (some of whom engage in safety

sensitive tasks) and all testing is merely a component of a broader

interdiction effort created by local officials in conjunction with

interested parents. Chandler acknowledged the “critical” importance of

context, stating that school drug tests are different because “a local

government bears large ‘responsibilities, under a public school system, as

guardian and tutor of children entrusted to its care.’” Id. at 316. It

also emphasized that “[a] demonstrated problem of drug abuse, while not in

all cases necessary to the validity of a testing regime, would shore up an

assertion of special need for a suspicionless general search program.” Id.

at 319 (citation omitted).

D

In light of the totality of the circumstances, the Policy does not

violate Section 11. Our constitution does not forbid schools from taking

reasonable measures to deter drug abuse on their campuses but they must do

so with due regard for the rights of students.

We reiterate that our evaluation of this matter is particularly

influenced by the facts that students’ privacy interests are less than

those of adults and that both students and their parents or guardians must

give consent. We have also been influenced in general by schools’

custodial and protective interest in their students and in particular by

the fact that the Policy was created with parent involvement as an element

of a comprehensive interdiction program. Furthermore, the higher than

average rate of drug use at NSC middle and high schools, the recent drug

related deaths, and the continued presence of illegal drugs on campus

strengthens NSC’s legitimate interest in this matter. We do note that the

strength of NSC’s interest in deterring drug abuse is not uniform for all

students. In this regard, the Policy is most defensible in regard to

athletes and student drivers. The school’s interest in protecting these

students is increased by the risk of physical danger and, in the case of

student athletes, by the fact that they represent the school as role

models. While the rationale for testing students involved in co-curricular

activities is not so strong, for the reasons already stated, it does not

violate Section 11 in this case.

II

The Linkes also argue that the Policy violates the Privileges and

Immunities Clause, art. I, § 23, of the Indiana Constitution (“Section

23”). Section 23 provides:

The General Assembly shall not grant to any citizen, or class of

citizens, privileges or immunities, which, upon the same terms, cannot

equally belong to all citizens.

In the watershed case of Collins v. Day, 644 N.E.2d 72 (Ind.1994), we

held that the analytical framework required to resolve Section 23 claims

examines whether "the disparate treatment ... [is] reasonably related to

inherent characteristics which distinguish the unequally treated classes."

Id. at 80. Collins requires that the challenger bear the burden "to

negative every reasonable basis for the classification." Id. at 81. This

is because of the substantial deference due the enactment. Id. at 80. In

addition, "the preferential treatment must be uniformly applicable and

equally available to all persons similarly situated." Id.

The Linkes’ contend that Section 23 is violated because a class of

students who participate in certain extracurricular activities[7] are

subjected to random drug testing while students who participate in other

extracurricular activities[8] are not.

We find that the Linkes have not carried their burden to "negative

every reasonable basis" for random drug testing imposed upon the class of

which they are a member. Under Collins, we determine whether there are

inherent distinctions between the activities subject to the Policy and

those not. Largely for the reasons set forth in Part I-C-3 supra, we find

the "reasonable relationship" test met.

The Policy focuses on those activities in which the participating

students represent the school outside of the normal school day hours,

receive special privileges as a result of their participation, or place the

participating student in a leadership or role model position. The school

activities not covered are strictly in-school activities that take place

during school hours. Consequently, the students who engage in the school

activities not covered by the Policy do not represent the school by

publicly performing or working within the community. While the Linkes

argue that the newspaper and yearbook are extracurricular activities

requiring students to "engage in activities outside of the school day,"

Brief of Appellant 30, these activities are purely curricular. (R. at 76.)

These classes are taken for a grade and do not require any activity

outside the normal school day. (Id.)

We agree with NSC that testing those students who are at an increased

risk of physical harm or are role models and leaders by virtue of their

participation in certain extracurricular activities is "reasonably related

to achieving the school's purpose in providing for the health and safety of

students, and undermining the effects of peer pressure by providing a

legitimate reason for students to refuse to use illegal drugs and by

encouraging students who use drugs to participate in drug treatment

programs." (Trial Court's Conclusions of Law, R. at 509). We find no

violation of Section 23.

Conclusion

Having previously granted transfer, we now affirm the judgment of the

trial court.

SHEPARD, C.J., and DICKSON, J., concur.

BOEHM, J., dissents with separate opinion in which RUCKER, J., concurs.

ATTORNEY FOR APPELLANTS

Kenneth J. Falk

Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE

Anthony S. Benton

Laura L. Bowker

Lafayette, Indiana

David R. Day

Indianapolis, Indiana

David J. Emmert

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Julia Blackwell Gelinas

John H. Daerr

Thomas E. Wheeler, II

Indianapolis, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

ROSA J. LINKE, REENA M. LINKE, )

(By their next friends and parents), )

SCOTT L. LINKE and NOREEN )

L. LINKE, )

)

Appellants (Plaintiffs Below), ) Indiana Supreme Court

) Cause No. 34S05-0103-CV-151

v. )

) Indiana Court of Appeals

NORTHWESTERN SCHOOL CORP., ) Cause No. 34A05-9910-CV-467

)

Appellee (Defendant Below). )

__________________________________________________________________

APPEAL FROM THE HOWARD CIRCUIT COURT

The Honorable Lynn Murray, Judge

Cause No. 34C01-9902-CP-131

__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________

March 5, 2002

BOEHM, Justice, dissenting.

I respectfully dissent. The majority adopts the methodology of

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995), and concludes that

NSC’s drug testing fits within a very narrow exception to the general

probable cause requirement, the so-called “special needs” exception.

However, assuming it is proper to analyze Indiana constitutional claims in

the Vernonia framework, I do not agree that NSC has carried its burden of

proving that its program meets the standard of reasonableness the “special

needs” doctrine requires. Rather, this program amounts to imposition of a

general random testing program with no sound footing in concern for the

educational mission of the school corporation, as opposed to general law

enforcement. Nor is there a justification for selecting these students

from the general school population.

For many of the same reasons, I conclude that NSC’s program violates

the requirement of Article I, Section 23 of the Indiana Constitution that a

classification must be reasonably related to the characteristics—in this

case, participation in certain school activities—that define the class.

I. What it Means to Have “Special Needs”

Three cases, in particular, are important to understanding why NSC’s

random drug testing program violates Article I, Section 11 of the Indiana

Constitution.

A. New Jersey v. T.L.O.

The “special needs” doctrine, in the context of searches by school

officials, has its roots in New Jersey v. T.L.O., 469 U.S. 325 (1985),

where the United States Supreme Court held that the Fourth Amendment’s

usual probable cause standard should not apply in a school setting. In

T.L.O., a teacher discovered two students smoking in a school lavatory in

violation of school rules. The teacher took the pair to the assistant

principal’s office, where T.L.O., in response to the assistant principal’s

questioning, denied having ever smoked. Searching T.L.O.’s purse, the

assistant principal found a pack of cigarettes along with various drug

paraphernalia. T.L.O. was later adjudged a delinquent.

T.L.O. claimed that the search violated the Fourth Amendment. The

Court agreed that the Fourth Amendment applied to searches conducted by

school officials, but nevertheless concluded that school officials may

conduct searches in the absence of the requirements imposed by the Fourth

Amendment on other governmental searches. Id. at 340. The Court offered

this explanation why a level of suspicion lower than that of probable cause

is required for searches conducted by school officials, at least in the

context of searches for evidence of school rule violations:

[T]he legality of a search of a student should depend simply on the

reasonableness, under all the circumstances, of the search.

Determining the reasonableness of any search involves a twofold

inquiry: first, one must consider “whether the . . . action was

justified at its inception,” Terry v. Ohio, 392 U.S., at 20; second,

one must determine whether the search as actually conducted “was

reasonably related in scope to the circumstances which justified the

interference in the first place,” ibid. Under ordinary circumstances,

a search of a student by a teacher or other school official will be

“justified at its inception” 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.

Such a search will be permissible in its scope when the measures

adopted are reasonably related to the objectives of the search and not

excessively intrusive in light of the age and sex of the student and

the nature of the infraction.

Id. at 341-42. However, the Court also emphasized that there were limits

to the authority of school officials to conduct a search under this lowered

constitutional bar. Specifically, “the reasonableness standard should

ensure that the interests of students will be invaded no more than is

necessary to achieve the legitimate end of preserving order in the

schools.” Id. at 343.

Justice Blackmun’s concurring opinion introduced the phrase “special

needs” into the public discourse on school searches. He expressed concern

that a balancing test might become the rule rather than the exception. To

curb this potential, he wrote, “Only in those 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.” Id. at

351 (Blackmun, J., concurring). Searches in a school setting based on a

lower standard are appropriate, he concluded, because of the need for

immediate action on the part of teachers attempting to maintain order in

the classroom.

B. Vernonia School District 47J v. Acton

The next principal case is Vernonia Sch. Dist. 47J v. Acton, 515 U.S.

646 (1995), on which the majority relies to justify its conclusion that

NSC’s drug testing program is reasonable. In Vernonia, the United States

Supreme Court upheld a random drug testing program instituted by an Oregon

school district. The plan called for testing of athletes only. In

upholding this plan, the Court specifically endorsed Justice Blackmun’s

concurrence in T.L.O. and found that, on the facts presented, the Vernonia

school district established a “special need” justifying the imposition of

drug testing on a specific group of students. The Court relied heavily on

the facts found by the district court that the Vernonia school district was

faced with an “immediate crisis” and had been able to target the

instigators as coming from the student-athlete population. Id. at 663.[9]

The Court relied on T.L.O. for the proposition that, in the public school

context, a search unsupported by probable cause can be constitutional when

the district demonstrates “special needs,” i.e. where strict adherence to

the probable cause requirement would undercut “‘the substantial need of

teachers and administrators for freedom to maintain order in the schools.’”

Id. at 653 (quoting T.L.O., 469 U.S. at 341). The Court cited three

factors supporting the reasonableness of the Vernonia program—the decreased

expectation of privacy of the student athletes, the relative

unobtrusiveness of the search, and the severity of the need met by the

search.

None of these three is present in force to support NSC’s plan. NSC’s

program applies to athletes, student drivers, and participants in a wide

range of extra-curricular and co-curricular activities from Future Farmers

of America to the school band. NSC’s evidence of substance abuse in its

schools is a survey conducted by the Indiana Prevention Resource Center in

1995 and given to students in grades seven through ten. Notably absent

from the results is any data suggesting that students who claimed to have

used a given substance also participated in one of the activities covered

by NSC’s testing program. The testing intrudes on students who in no way

qualify for the lessened expectation of privacy some cases, like Vernonia,

have attributed to athletes.

C. Chandler v. Miller

In Chandler v. Miller, 520 U.S. 305 (1997), the United States Supreme

Court explained in further detail when it is appropriate to apply the

“special needs” doctrine. The Court in Chandler found unconstitutional

Georgia’s policy of requiring certain candidates for public office to

submit to drug testing. Justice Ginsburg, writing for an eight-member

majority, explained that to successfully make the case that a “special

need” exists, a government actor must demonstrate a “concrete danger

demanding departure from the Fourth Amendment’s main rule.” Id. at 319.

Georgia argued that its testing policy passed constitutional muster

based on the Court’s earlier decisions upholding suspicionless testing of

student athletes, Vernonia, 515 U.S. 646, certain United States Treasury

employees, Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989),

and certain railroad employees, Skinner v. Ry. Labor Executives’ Ass’n, 489

U.S. 602 (1989). The Court explained that the employees subject to testing

in Von Raab were “directly involved [in] drug interdiction,”[10] Skinner

offered “evidence of drug and alcohol abuse by railway employees engaged in

safety-sensitive tasks,” and Vernonia responded to an “immediate crisis

prompted by a sharp rise in students’ use of unlawful drugs.” Georgia’s

plan to screen candidates for public office failed to address a “concrete

danger,” the Court explained, because: (1) the record did not suggest that

the hazards argued by the state were “real and not simply hypothetical for

Georgia’s polity”; (2) the requirement was not well designed to identify

drug users; (3) it was feasible, within the environment of public office,

to note erratic conduct that would lead to a suspicion of drug use; and (4)

the risk to public safety was neither substantial nor real. 520 U.S. at

319-23.

Although this case and Vernonia both address school programs, for

several reasons NSC’s plan is closer to Georgia’s plan for wanna-be

officeholders than the Vernonia plan for its students. First, the survey

and other evidence relied upon by NSC may establish a drug problem, but not

among the categories of students tested. Second, the testing, though

intended to prevent school-wide drug use, identifies only drug users among

the population of students who submit to the program. Third, it is

feasible, as NSC’s own policy makes clear, for NSC officials to determine

when a reasonable suspicion of drug use exists. Fourth, NSC has not shown

any evidence, of the type presented in Vernonia, of drug use as a source of

significant problems in conducting the school’s educational program.

II. Applying the “Special Needs” Analysis to NSC’s Program

I agree with the majority that the relevant inquiry under Article I,

Section 11 of the Indiana Constitution is whether, given the totality of

the circumstances, the searches conducted by NSC are reasonable. Brown v.

State, 653 N.E.2d 77, 79-80 (Ind. 1995). In this respect, the Indiana

Constitution is very similar, if not identical, to the formulation adopted

for the Fourth Amendment in Vernonia: reasonableness under all the

circumstances. 515 U.S. at 652 (“[T]he ultimate measure of the

constitutionality of a governmental search is ‘reasonableness.’”). The

majority concludes that the appropriate “circumstances” to examine are the

same as those balanced by the Court in Vernonia: the nature of the privacy

interest; the character of the intrusion; and the nature and immediacy of

the governmental concern. So far, so good. But, in applying the reasoning

of Vernonia in light of Chandler, I arrive at a different conclusion from

the majority’s.

A. Overcoming the Linkes’ Privacy Interests

The majority finds the Linkes’ privacy interests of minimal weight

based on three propositions: (1) students’ privacy interests are less than

those of adults; (2) students “consent” to the searches; and (3) the tested

students are held out by NSC as “role models.” I think the first is true

only to a limited extent, and the other two are not true at all.

1. Extent of Control Over Students

The majority contends that the Linkes’ privacy interests deserve

lesser protection than Article I, Section 11 would normally demand because

schools are allowed a degree of “supervision and control that could not be

exercised over free adults.” I agree that Indiana law generally supports

that view. However, a school’s “degree of supervision” is not without its

limits. The majority relies on the notion that schools stand in the

relation of parents and guardians to its students in matters of conduct and

discipline. This may justify the imposition of drug testing when matters

of conduct and discipline are at issue. But it does not carry equal weight

when suspicionless searches are conducted as a matter of routine. Indeed,

in T.L.O., the United States Supreme Court cautioned against such a laissez-

faire view of the role of school officials who conduct searches:

If school authorities are state actors for purposes of the

constitutional guarantees of freedom of expression and due process, it

is difficult to understand why they should be deemed to be exercising

parental rather than public authority when conducting searches of

their students. More generally, the Court has recognized that “the

concept of parental delegation” as a source of school authority is not

entirely “consonant with compulsory education laws.” Ingraham v.

Wright, 430 U.S. 651, 662 (1977). Today’s public school officials do

not merely exercise authority voluntarily conferred on them by

individual parents; rather, they act in furtherance of publicly

mandated educational and disciplinary policies. . . . In carrying out

searches and other disciplinary functions pursuant to such policies,

school officials act as representatives of the State, not merely as

surrogates for the parents . . . .

469 U.S. at 336. It is also noteworthy that, although the education of

Indiana’s students is one of the most highly regulated enterprises of our

state government, nowhere in the specifically enumerated powers and duties

of this state’s school corporations has the legislature given explicit

authority for random drug testing of students.[11]

2. “Consent” to Searches and “Already Regulated Activities”

Among the categories of students affected by the NSC program are those

enrolled in some for-credit courses whose activities take place off school

premises. The majority concludes that, because alternative for-credit

assignments are available to take the place of the portion of the course

that triggers the testing requirement, the decision whether to submit to

testing is “voluntary.” But the effects of refusing to submit to drug

testing in those courses may be quite harsh. Consider, for example, a

member of the choir who hopes to enter a performing arts program in

college. He or she is permitted, as the majority points out, to

participate in “alternative for-credit assignments,” but is denied the

opportunity to perform in public with the rest of the chorus. When the

time comes to apply to the performing arts program, if that student refuses

to participate in the “voluntary” program, he or she may be able to

document a high grade in choir, but has a gaping void in performance

experience.

The majority identifies one set of for-credit coursework as

“compulsory regular classes,” and describes participation in everything

else “voluntary.” But the aspiring vocalist’s appearance in public

concerts is no more a “voluntary” activity than the future math major’s

electing calculus, when algebra will satisfy the high school diploma

requirements. Cf. Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1109

(Colo. 1998) (extra-curricular activities are a “vital adjunct to the

educational experience”). That the student receives academic credit from

the alternative program does not change the fact that the student is

essentially given a different course from the one provided his or her

peers, because of a “voluntary” decision not to take a drug test.

I agree that participation in certain extra-curricular activities may

open the door to some fashion of drug testing. Athletics have

traditionally been the primary target of such programs. See, e.g.,

Vernonia (student-athletes subject to testing because they were the

“leaders” of the drug culture and instigators of severe discipline

problems). There may well be some basis for drug testing as a safety

measure in activities accompanied by significant physical stress. I find

far less tenable the notion that participation in non-athletic

extracurriculars also opens the door to such an intrusive practice. There

is nothing peculiar about National Honor Society, for instance, that

suggests that its members must “subject themselves, by virtue of their

participation . . . to regulations that further reduce their expectation of

privacy.” Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1063 (7th

Cir. 2000). As more fully developed in Part II.C, I believe that in order

to be reasonable under all the circumstances, the scope of the testing

program must bear some relation to the identified issue the program is

meant to address. The NSC plan fails that test.

3. The “Role Model” Theory

The majority concedes that the record “does not address whether their

peers view students participating in the tested activities as role models,”

but finds persuasive the fact that NSC holds the affected students out as

such. This writer is further removed from high school than his colleagues.

But even a casual reviewer of pop culture must view with extreme

skepticism the undocumented claim that participants in this broad list of

activities are all, or even predominantly, viewed by their peers as role

models.[12] In any event, whether the affected party is or is not held out

as a “role model” is not adequate to justify NSC’s program on a “special

needs” basis. As the U.S. Supreme Court put it, “[I]f a need of the ‘set a

good example’ genre were sufficient to overwhelm a Fourth Amendment

objection, then the care this Court took to explain why the needs in

Skinner, Von Raab, and Vernonia ranked as ‘special’ wasted many words in

entirely unnecessary, perhaps even misleading, elaborations.” Chandler,

520 U.S. at 322. Rather than supporting the need for testing, the fact that

NSC advances its “role model” theory underscores the paucity of evidence

that testing of the affected students has any relation to NSC’s drug

problem.

B. Character of the Intrusion

1. Article I, Section 11 Applies Equally to All Government Agencies

I disagree with the majority to the extent it suggests that a search

is less intrusive if conducted by school officials, rather than police. I

am aware of no authority suggesting that Article I, Section 11 applies more

stringently to police activity than that of other government agencies. Nor

does the text of Article I, Section 11 support such a result. The majority

emphasizes the words “police” and “law enforcement” in the cited portions

of Baldwin v. Reagan, 715 N.E.2d 332 (Ind. 1999), Brown, 653 N.E.2d 77

(Ind. 1995), and Moran v. State, 644 N.E.2d 536 (Ind. 1994) to suggest that

Article I, Section 11 carries greater weight in those situations than when

school officials’ conduct is at issue. Those cases referred to police

activity because the seizures in those cases were conducted by police

officers. There is nothing in those cases to suggest a different result if

the seizure were conducted by a different arm of government. Indeed, other

cases frequently refer to the constraint on searches by government in

general, not just by the police. See Moran, 644 N.E.2d at 540 (“The

protection afforded [by Article I, Section 11] is against official and not

private acts.”); Hutchinson v. State, 477 N.E.2d 850, 853 (Ind. 1985) (“The

constitutional prohibitions against unreasonable searches and seizures

provide protection from such acts by the government.”); Torres v. State,

442 N.E.2d 1021, 1023 (Ind. 1982) (same); cf. New Jersey v. T.L.O., 469

U.S. at 335 (“[T]his Court has never limited the [Fourth] Amendment’s

prohibition on unreasonable searches and seizures to operations conducted

by the police.”).

I agree with the majority that, in some cases, suspicionless searches

conducted by schools have been upheld under circumstances that would

preclude a search by law enforcement. But it is not the identity of the

searching government agents that makes this so. It is the nature of the

intrusion and the reasons justifying it. That a school, rather than the

police, is charged with the unreasonable conduct is not an automatic

invitation to apply the mandate of Article I, Section 11 with less force.

2. Preventative/Rehabilitative versus Punitive Purposes

I do not place much stock in the fact that the results of NSC’s drug

tests are not routinely volunteered to law enforcement authorities.

Regardless of the stated purpose of the testing, I do not agree with the

majority that “[a] preventative or rehabilitative search is inherent to a

school corporation’s function.” Indeed, I find no support for such a

notion. A school corporation’s inherent function is to educate, not to

monitor an arbitrarily defined category of students for the use of drugs,

alcohol or nicotine, or compliance with other laws. The testing conducted

in Vernonia was necessary to that school’s inherent educational function

because the education of the students was severely affected by the

“immediate crisis prompted by the sharp rise in students’ use of unlawful

drugs.” Chandler, 520 U.S. at 319. This crisis included severe disruption

of classroom activities.

In any case, NSC’s program is not the method of preserving a proper

educational environment envisioned by T.L.O., on which the majority relies.

T.L.O. dealt with smoking in the school and the ability of teachers and

principals to respond swiftly to address conduct in the educational

environment without adhering to the formal requirements of the Fourth

Amendment. These situations certainly may require immediate action. But

that is not the case presented by NSC. Nor does NSC argue that its

students have run amok, as was the case in Vernonia. Finally, there is no

claim that the testing of these groups of students, distinct from the

population as a whole, has any relation to NSC’s perceived drug problem.

The Tenth Circuit, in Earls v. Tecumseh Pub. Sch. Dist. No. 92, 242 F.3d

1264 (10th Cir. 2001), cert. granted, 122 S. Ct. 509 (Nov. 8, 2001),

invalidated a drug testing program for that reason. The majority

distinguishes Earls based on differences between its policy and NSC’s. But

Earls turned not on the nature of the school district’s policy, but on the

classification of students subjected to the searches. The Tenth Circuit

saw “little efficacy in a drug testing policy which tests students among

whom there is no measurable drug problem.” 242 F.3d at 1277. Finally, the

“preventative” nature of NSC’s program proves too much. If it is a

legitimate objective, it gives reason for NSC to test every student.

Willis v. Anderson Cmty. Sch. Corp., 158 F.3d 415, 422 (7th Cir. 1998),

cert. denied, 526 U.S. 1019 (1999) (“If [deterrence] were the only relevant

consideration, Vernonia might as well have sanctioned blanket testing of

all children in public schools. And this it did not do.”). Of course,

such testing is not permissible. Cf. Joy, 212 F.3d at 1067 (“[T]he case

has yet to be made that a urine sample can be the ‘tuition’ at a public

school.”).

As T.L.O. reminded us: “[T]he reasonableness standard should ensure

that the interests of students will be invaded no more than is necessary to

achieve the legitimate end of preserving order in the schools.” The rights

of NSC’s students—or at least the ones NSC has chosen to test—should be

subject to no more of an intrusion than necessary to achieve NSC’s interest

in preserving order in its schools. In my view, the issue is not, as the

majority’s reasoning suggests, whether NSC’s policy is comparable to those

imposed at other schools and documented in other cases. Rather it is

whether NSC’s program, and its suspicionless testing of broad categories of

students, is justified at all. It is incumbent upon NSC to prove this, and

its failure to do so leaves its program well short of complying with

Article I, Section 11.

C. NSC’s Governmental Concern and Efficacy of its Program

1. NSC Presents No “Concrete Danger” as to the Students it Tests

The final factor in the “special needs” balance is the nature and

immediacy of NSC’s concern and the efficacy of its testing program in

addressing it. Vernonia, 515 U.S. at 660. The majority’s treatment of

Vernonia suggests that the phrase “special need” means nothing more than

that a school may identify a “drug problem” and thereafter impose random

drug testing on any student engaged in an extra- or co-curricular activity.

I do not read Vernonia that broadly. NSC carries the burden of proving

why its searches fall within the “special needs” doctrine, as applied in

Vernonia, and later clarified in Chandler. In my view, it fails to

establish the “concrete danger” to which its program responds, or—assuming

the presence of a concrete danger—that the program in its present form is

tailored to address it.

In Chandler, the United States Supreme Court explained that “the

proffered special need for drug testing must be substantial—important

enough to override the individual’s acknowledged privacy interest,

sufficiently vital to suppress the Fourth Amendment’s normal requirement of

individualized suspicion.” 520 U.S. at 318. To invoke the “special needs”

doctrine, the proponent of such a testing program must demonstrate a

“concrete danger.” Id. at 319. In Vernonia, the “concrete danger” with

regard to the school’s student athletes was evident and described as a

“state of rebellion.” 515 U.S. at 662-63. A variety of problems in the

school environment were cited. NSC argues that the survey results and the

deaths of two students in a ten-year period justify the program it has put

into place. But neither of these circumstances involved the classroom

disruption cited in Vernonia, and NSC’s superintendent could not point to

any increase in discipline problems attributable to substance abuse. It

may not take an “epidemic” before a school justifiably institutes a drug

testing program. But it must take more than the evidence presented by NSC.

If not, Article I, Section 11 may fairly be said to provide little, if

any, protection to Indiana’s students.

The concerns cited by NSC are of course significant. But even if they

rose to the level sufficient to support some testing program, NSC’s program

is not justified by its evidence. In Joy, the Seventh Circuit addressed an

Indiana school’s testing policy similar to NSC’s. Although the particulars

of the policy are unimportant to the present case, the Seventh Circuit’s

analysis is instructive.[13] The court assessed the nature of the

government’s interest, in part, by examining whether a correlation existed

between the defined test population and the abuse. NSC’s evidence of

substance abuse in its schools is a survey given to students in grades

seven through ten. However the results do not suggest a correlation

between the percentage of students claiming to have used a given substance

and those students who participate in an activity covered by NSC’s testing

program. The survey cited by NSC may indeed “demonstrate a . . .

‘correlation’ between student drug use and a need to test.” What it does

not do is demonstrate a correlation between drug use among the general

student population and a need to test the students who are subject to the

program. Cf. id. at 685 (O’Connor, J., dissenting) (criticizing the school

district’s decision to test student athletes as “a choice that appears to

have been driven more by a belief in what would pass constitutional muster

. . . than by a belief in what was required to meet the District’s

principal disciplinary concern.”). NSC cites Joy and Vernonia in support

of its claim that “[u]nder a reasonableness standard the federal courts

have found that findings like this do in fact provide a basis for testing.”

The majority appears to accept this argument. I think this misses the

point of Joy and Vernonia.

Here, as in Joy, NSC “has not proven, or even attempted to prove, that

a correlation exists between drug use and those who engage in

extracurricular activities or drug use and those who drive to school.” 212

F.3d at 1064. Thus, NSC’s program amounts to “dividing the students into

broad categories and drug testing on a category-by-category basis, which

allows for drug testing for all but the most uninvolved and isolated

students.” Id. (citing Willis, 158 F.3d at 423). Willis appropriately

described such a program as “one insidious means toward blanket testing.”

158 F.3d at 423.

2. Suspicion-Based Testing is Feasible

One driving force in the United States Supreme Court’s opinion in

Vernonia was the Court’s conclusion that a program based on individualized

suspicion would entail “substantial difficulties—if it [were] indeed

practicable at all” in order to handle the “immediate crisis” present in

the Vernonia school district. As explained in Part II.C.1, NSC does not

proffer evidence of a “concrete danger” of an immediate nature as to the

students it tests. Further, as the majority points out, NSC’s program not

only entails random testing of the selected groups of students, but also

provides that “[s]tudents may also be entered into the testing program at

the request of their parent . . . when a student shows signs of drug use

that provides reasonable suspicion to search a student.” (emphasis added).

By its own terms, NSC’s policy purports to have the ability to determine

when a “reasonable suspicion” is present for a given student.

I recognize and agree that suspicion-based searches can lead to abuses

if the grounds for suspicion are not sufficiently articulable. As noted in

State v. Gerschoffer, a scheme of random searches may be less subject to

abuse in the form of profiling or arbitrary enforcement than one that

requires reasonable suspicion. __ N.E.2d __ (Ind. 2002) (citing Akhil Reed

Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 809

(1994)). Nevertheless, the broader the net cast, and the weaker the case

for any program at all, the less persuasive this consideration becomes.

Thus airport searches of everyone or of randomly selected passengers may be

very reasonable under current circumstances. But NSC’s program subjects

nearly eighty percent of its middle and high school students to random

tests, based on this very tenuous claim of a “concrete danger.”

In Willis, 158 F.3d at 421, the Seventh Circuit Court of Appeals

stated, “Under the Vernonia formulation, courts consider the feasibility of

a suspicion-based search when assessing the efficacy of the government’s

policy.” The testing program in Willis required students who were

suspended for three or more days to submit to urinalysis upon their return.

Willis was suspended for fighting, but refused to undergo testing upon his

return. The Anderson policy, like NSC’s policy, was implemented “to help

identify and intervene with those students who are using drugs as soon as

possible and to involve the parents immediately.” Id. at 417. The Seventh

Circuit, holding the program violated the Fourth Amendment, found it

significant that “the Corporation has not demonstrated that a suspicion-

based system would be unsuitable, in fact would not be highly suitable.”

Id. at 424-25. The court noted:

As a practical matter, it may be that when a suspicion-based search is

workable, the needs of the government will never be strong enough to

outweigh the privacy interests of the individual. Or, stated slightly

differently, perhaps if a suspicion-based search is feasible, the

government will have failed to show a special need that is “important

enough to override the individual’s acknowledged privacy interest,

sufficiently vital to suppress the Fourth Amendment’s normal

requirement of individualized suspicion.”

Id. at 421 (quoting Chandler, 520 U.S. at 318). Whether a suspicion-based

system is feasible is just one factor in our totality of the circumstances

analysis, but I believe—as Willis illustrates—it is a significant one in

the balance of whether the system is reasonable. Given the fact that NSC’s

own policy contemplates suspicion-based testing for some students, what is

practicable for some is practicable for all.

III. Article I, Section 23 Concerns

Article I, Section 23 of the Indiana Constitution states: “The

General Assembly shall not grant to any citizen, or class of citizens,

privileges or immunities which, upon the same terms, shall not equally

belong to all citizens.” I agree with the majority’s recitation of the

standard in Collins v. Day, 644 N.E.2d 72 (Ind. 1994). However, for many

of the reasons stated in Part II, I believe NSC’s testing program runs

afoul of Article I, Section 23.

Section 23 requires that governmental classifications be based on

inherent characteristics of the classified group and that the

classifications be reasonably related to the characteristics that define

the group. Collins, 644 N.E.2d at 79. Like many legislative

classifications, this is one that defines a group that has individuals

entering and leaving all the time as students join and drop out of various

activities. As the majority points out, defining the group by membership

in these activities meets the Collins requirement of “inherent

characteristics which distinguish” NSC students who are tested from NSC

students who are not tested. However, the stated purpose of NSC’s testing

is to “provid[e] for the health and safety of students, and undermin[e] the

effects of peer pressure by providing a legitimate reason for students to

refuse to use illegal drugs and . . . encourag[e] students who use drugs to

participate in drug treatment programs.” Nothing in that stated purpose

signifies that NSC is more concerned about the health and safety of the

students who participate in the regulated activities than those who do not.

Nor is there anything about the covered categories of students to suggest

that those students are more susceptible to the effects of peer pressure

than their non-tested colleagues. Therefore, I cannot agree that the

disparate treatment of requiring testing of some students rather than

others is in any way “reasonably related” to the distinction NSC makes

between them.

Conclusion

In conclusion, I would find NSC’s testing program, in its current

form, invalid under both Article I, Section 11 and Article I, Section 23 of

the Indiana Constitution. NSC has not presented significant evidence of a

concrete danger requiring the implementation of its policy, as it currently

stands. At the very least, NSC has not presented any evidence of a severe

drug or discipline problem among the tested categories of students. NSC’s

distinction between the tested and untested students has no rational basis,

and its testing program (a) fails to overcome the Linkes’ privacy interest,

under the Vernonia analysis, for substantial lack of efficacy, and (b)

fails the Collins equal rights and privileges analysis because the

distinction is not “reasonably related” to the policy’s stated purpose.

The majority contends that, having “identified a drug problem . . .

gives [NSC] an interest in experimenting with methods to deter drug use.”

I agree that, if a drug problem is present at NSC, it certainly has the

right to experiment and determine the most effective method of combating

the problem. However, that experimentation must have a constitutionally

valid form.

RUCKER, J., concurs.

-----------------------

[1] Co-curricular activities are activities, participation or

membership in which are an extension of and outside the normal school day

and for which academic credit or grades are earned, such as band and choir.

[2] Students may also be entered into the testing program at the

request of their parent or guardian or with the permission of the parent or

guardian when a student shows signs of drug use that provides reasonable

suspicion to search a student.

[3] The Policy permits testing for alcohol, amphetamines, anabolic

steroids, barbiturates, benzodiazepines, cocaine metabolites, LSD,

marijuana metabolites, methadone, methaqualone, nicotine, opiates,

phencyclidine, and propoxyphene. Although the Policy allows for testing of

“other specified drugs,” no other drugs are tested for.

[4] We note that the Earls court found that a random drug testing

policy violated the Fourth Amendment. The policy it reviewed differs from

the one before us in three principal respects: (1) it did not take the same

care in protecting student privacy; (2) there was much less evidence of

drug abuse than has been presented here; and (3) students were required to

pay for tests, thus creating a fee requirement for public school

extracurricular activities.

[5] Ind. Code § 20-8.1-5.1-3 provides:

“(a) Student supervision and the desirable behavior of students in

carrying out school purposes is the responsibility of a school corporation

and the students of a school corporation.

(b) In all matters relating to the discipline and conduct of students,

school corporation personnel stand in the relation of parents and guardians

to the students of the school corporation. Therefore, school corporation

personnel have the right, subject to this chapter, to take any disciplinary

action necessary to promote student conduct that conforms with an orderly

and effective educational system.

(c) Students must follow responsible directions of school personnel in

all educational settings and refrain from disruptive behavior that

interferes with the education environment.”

[6] Ind. Const. art VIII, § 1, provides:

“Knowledge and learning, general diffused throughout a community,

being essential to the preservation of a free government; it should be the

duty of the General Assembly to encourage, by all suitable means, moral,

intellectual scientific, and agricultural improvement; and provide, by law,

for a general and uniform system of Common Schools, wherein tuition shall

without charge, and equally open to all.”

[7] Those activities are academic teams, drama, Future Farmers of

America, National Honor Society, student government, and Students Against

Drunk Driving.

[8] Activities not subject to the Policy include the Euchre Club, New

Student Q&A, Ecology Club, Fellowship of Christian Athletes, Foreign

Language Club, Peer Helpers, Sunshine Society, Newspaper, Yearbook, Science

Club, Teen Issues, Sports Memorabilia, and Chess Club.

[9] Specifically, the Supreme Court cited district court findings

that:

Between 1988 and 1989 the number of disciplinary referrals in

Vernonia schools rose to more than twice the number reported in the

early 1980’s, and several students were suspended. Students became

increasingly rude during class; outbursts of profane language were

common.

Not only were student athletes included among the drugs

users but, . . . athletes were the leaders of the drug culture.

. . . .

“[A] large segment of the student body, particularly those

involved in interscholastic athletics, was in a state of rebellion, .

. . [d]isciplinary actions had reached ‘epidemic proportions,’ and . .

. the rebellion was being fueled by alcohol and drug abuse as well as

by the students’ misperceptions about the drug culture.”

515 U.S. at 649, 662-63.

[10] The Court rejected the argument that Von Raab carried greater

weight, and admonished, “Von Raab must be read in its unique context.”

Chandler, 520 U.S. at 321.

[11] By contrast, the legislature has specifically spelled out the

procedure for locker searches. Ind. Code § 20-8.1-5.1-25 (1998).

[12] I cite the recent motion picture “American Pie II,” which I

confess to having viewed by reason of friendship with the parents of its

director, whom I have known from childhood. I believe most of us could

provide more persuasive authority from our own experiences in high school.

[13] The court in Joy upheld the policy at issue as to its testing of

students participating in extra-curricular activities, but the only

apparent reason for that conclusion was the panel’s compulsion, under stare

decisis, to follow the Seventh Circuit’s earlier holding in Todd v. Rush

County Sch., 133 F.3d 984 (7th Cir. 1998), cert. denied, 525 U.S. 824

(1998), upholding a similar policy. For the reasons expressed throughout

this opinion, I disagree with the reasoning in Todd.