# Theodore v. Delaware Valley School District

> Commonwealth Court of Pennsylvania · November 6, 2000 · 761 A.2d 652

URL: https://www.frixlaw.com/law-library/cases/9732067

## Case

- **Full name:** Louis THEODORE, Mary Ellen Theodore, and Jennifer Lynn Theodore, Individually and Louis Theodore and Mary Ellen Theodore, as the Natural Guardians of the Infant Kimberly Ann Theodore, Appellants, v. the DELAWARE VALLEY SCHOOL DISTRICT
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** November 6, 2000
- **Citations:** 761 A.2d 652; 2000 Pa. Commw. LEXIS 600; 2000 WL 1653836
- **Precedential status:** Published
- **Opinion:** Concurrence by Friedman
- **Judges:** Doyle, Colins, McGinley, Smith, Pellegrini, Friedman, Leadbetter
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9732067

## How later opinions describe it (automated extraction)

- holding unconstitutional a suspicionless drug testing policy applicable to those participating in extracurricular activities and driving to school

## Opinion text

FRIEDMAN, Judge,
concurring.
Like the majority, I would reverse and remand the order of the Court of Common Pleas of Pike County (trial court) which granted the Delaware Valley School District’s (School District) demurrer and dismissed Jennifer Lynn Theodore’s and Kimberly Ann Theodore’s (Students) complaint challenging the School District’s policy of “Drug Testing and Alcohol Testing for Extracurricular Participation, Driving and Parking Permit Privileges” (Policy 227). 1 However, my analysis of the issues presented by the Students on appeal differs from that of the majority. Moreover, unlike the majority, which declines to address whether Policy 227 infringes on any parental rights, I would affirm the trial court’s order with respect to Louis Theodore and Mary Ellen Theodore (Parents) because I do not believe that their claim is ripe.
I. Students’ Claim
In the case of In re F.B., 555 Pa. 661 , 726 A.2d 361 (1999), cert. denied, 528 U.S. 1060 , 120 S.Ct. 613 , 145 L.Ed.2d 508 (1999), oui supreme court stated that, *663 when reviewing the constitutionality of a school search directed at the entire student population under the Pennsylvania Constitution, courts must consider: (1) the students’ privacy interest; (2) the nature of the intrusion created by the search; (3) notice; and (4) the overall purpose to be achieved by the search and the immediate reasons prompting the decision to conduct the actual search. I agree with the majority that this legal framework is appropriate here despite the fact that Policy 227 does not involve searches directed at the entire school population. It is a simple matter to modify the fourth factor to be: the overall purpose to be achieved by the search of the particular class of students and the immediate reasons prompting the decision to conduct the actual search of the particular class of students. Guided by the analysis of our supreme court in In re F.B., I will now examine the four factors.
A. Privacy Interest
School students possess a legitimate expectation of privacy in their person and personal belongings. In re F.B. A student’s expectation of privacy in his or her school locker is minimal where the locker is the property of the school, the locker combination is kept on file in the school office and students are forewarned that their lockers are subject to a “reasonable suspicion” search. Commonwealth v. Cass, 551 Pa. 25, 38 , 709 A.2d 350, 356 (1998), cert. denied, 525 U.S. 833 , 119 S.Ct. 89 , 142 L.Ed.2d 70 (1998). The privacy interest is “obviously higher” where the search involves a scan of the students’ bodies with a hand-held metal detector, a physical inspection of the students’ book bags, purses and coats and an examination of the contents of the students’ pockets. In re F.B., 555 Pa. at 668-69 , 726 A.2d at 365 . Indeed, “[t]he search of a person always involves a greater degree of intrusion upon one’s privacy interest than the search of a thing.” Id. (citing Commonwealth v. Martin, 534 Pa. 136 , 626 A.2d 556 (1993) (stating that a different interest is implicated where the search involves the person)). Here, the privacy interest is presumably higher because it does not involve a “thing;” it involves a student’s “person,” specifically, a student’s breath, blood and urine. 2
The U.S. Supreme Court has held that the privacy interest of public school students in their person is diminished by the requirement that students undergo routine physical exams and vaccinations. Vernonia School District 47J v. Acton, 515 U.S. 646 , 115 S.Ct. 2386 , 132 L.Ed.2d 564 (1995). 3 However, I agree with Justice O’Connor that neither physical exams nor vaccinations are relevant to a Fourth Amendment analysis; physical exams are not searches for medical conditions that reflect wrongdoing on the part of the student, and vaccinations are not searches for anything in particular. Vemonia School District (O’Connor, J. dissenting). Therefore, I would not diminish a student’s privacy interest in his or her person because of any required physical exams and vaccinations.
The U.S. Supreme Court has also indicated that the legitimate privacy expectations of students are even less with regard to student athletes because there is an *664 element of communal undress inherent in athletic participation. Vemonia School District. However, according to the complaint before us, Jennifer is not a student athlete, and Kimberly participates only in tennis, swimming and track. (R.R. at 5a.) Moreover, the complaint does not aver that there is an element of communal undress for female members of the tennis, swimming or track teams, and, in dealing with a demurrer, we may not presume that there is communal undressing. 4 Therefore, we may not diminish the privacy interest at stake here based on communal undressing. 5
Inasmuch as the complaint contains no allegations that would allow this court to diminish the Students’ expectation of privacy in their person, I would conclude at this point in the proceedings that their privacy interest might not be minimal. 6
B. Nature of the Intrusion
In the case of In re F.B., our supreme court determined that passing a hand-held metal scanner over a student’s outer clothing is non-invasive, and, therefore, such a search is minimally intrusive. Here, however, because the search involves a student’s breath, blood and urine, the search clearly is invasive. Based on this distinction alone, I would conclude that the intrusion in this case might not be minimal. In re F.B.
The majority concludes otherwise, holding that the method utilized to obtain samples of urine is minimally intrusive because the urine sample is collected by means that are no more intrusive than the regular use of a public restroom. (Majority op. at 660-61.) However, the complaint before us does not explain in detail' how urine samples are collected. Policy 227, which is Exhibit A of the complaint, states only that: “Urine ... samples shall be collected by trained medical personnel in a manner that balances the values of privacy and confidentiality with the accuracy of the tests.” (R.R. at 16a.) Such a statement does not begin to describe what actually happens when a urine sample is collected.
In Vernonia School District, 515 U.S. at 658 , 115 S.Ct. 2386 , the U.S. Supreme Court stated that collecting samples for urinalysis intrudes upon an excretory function that is traditionally shielded by great privacy. The court further stated that the degree of intrusion “depends upon the manner in which production of the urine sample is monitored.” Id. The collection process in Vemonia School District, unlike the situation here, was described in great detail.
The student to be tested completes a specimen control form.... The student then enters an empty locker room accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a urinal, remaining fully clothed with his back to the monitor, who stands approximately 12 to 15 feet behind the student. Monitors may (though do not always) watch the student while he produces the sample, and they listen for normal sounds of urina *665 tion. Girls produce samples in an enclosed bathroom stall, so that they can be heard but not observed. After the sample is produced, it is given to the monitor, who checks it for temperature and tampering and then transfers it to a vial.
Vernonia School District, 515 U.S. at 650 , 115 S.Ct. 2386 . The U.S. Supreme Court reasoned that these conditions are nearly identical to those typically encountered in public restrooms; therefore, the intrusion is negligible. Id. at 658 , 115 S.Ct. 2386 . However, because Policy 227 is so vague about urine collection procedures, I fail to see how this court can reach the same conclusion.
I note that the Supreme Court of Colorado questioned the U.S. Supreme Court’s public restroom analogy. In Trinidad School District No. 1 v. Lopez By and Through Lopez, 963 P.2d 1095, 1108 (Colo.1998), the Colorado court stated:
Ordinarily, a student has some choice about when to use the rest room and when to urinate. The fact that one student [in this case] was not able to urinate after several attempts because he was too embarrassed underscores this point. Ordinarily, a student does not have an official monitor, a person whose sole purpose is to prevent a student from altering the student’s urine sample, listening to (and perhaps watching from behind) the student urinating. Ordinarily, a student does not have to urinate into a container and present his or her urine sample to a school district representative for temperature assessment, labeling, and preparation for analysis. Ordinarily, a student urinates simply because the body requires it, not because a school district insists that the student provide a urine sample on demand in order for the school district to search it for the presence of drugs.
Thus, even if Policy 227 described urine collection procedures like those in the Fourth Amendment case of Vemonia School District, it is not certain that the Students would lose on this issue under the Pennsylvania Constitution.
C. Notice
In order for notice to be sufficient under In re F.B., the school must inform the students of “the criteria which must be present before a ... search can proceed[ 7 ] and the manner for conducting the actual search.” In re F.B., 555 Pa. at 670 , 726 A.2d at 366 . The information about the manner for conducting the search must be outlined in detail, so that the “students are fully prepared for the process and made aware of the scope of that process .” In re F.B., 555 Pa. at 671 , 726 A.2d at 366 . The detailed statement also “provides a check on those conducting the search not to exceed their limited authority.” Id.
Here, Policy 227 contains no statement indicating what criteria must be present before the school proceeds with a search. Policy 227 provides for “[r]andom testing ... on a monthly basis for five percent of the extracurricular and driving students.” (R.R. at 15a.) If the testing is “random,” then there are no criteria for proceeding with a search. With respect to the manner of conducting the search, Policy 227 contains no details about the collection of a urine sample. (See R.R. at 16a.) If the students are not told precisely how the school is going to collect their urine, the students cannot be fully prepared for the process. Moreover, without clearly articulated guidelines for the process, there is no “check” on those conducting the search. Therefore, I conclude that the School District’s notice to the Students here is insufficient.
The majority never discusses whether the notice here is sufficient, but simply states that the notice in this case lessens *666 the intrusiveness of the testing. (Majority-op. at 660-61.) Evidently, then, the majority assumes that the notice is adequate, explaining that each student must agree in writing to the testing and that “the only consequence” for refusing to agree is that the student will not be allowed to participate in extracurricular activities. (Majority op. at 660-61.) I cannot agree with this analysis.
First, I do not agree that a student’s inability to participate in extracurricular activities is insignificant. Involvement in a school’s extracurricular offerings is a “vital adjunct to the educational experience.” Trinidad School District, 963 P.2d at 1109 . Excluding a student from all extracurricular activities deprives that student of a great deal of what the modern school has to offer in terms of academic and personal development. Id.
Second, I do not believe, as the majority suggests, that because students agree in writing to the testing, they do so voluntarily. “[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 extracurricular activities is that they must engage in such activities.” Id. at 1109 . Thus, to the extent that any student agrees in writing to random urinalysis testing, it is not likely that all students do so on a voluntary basis. See id.
D. Overall Purpose and Immediate Reasons
The final factor to be considered here involves two elements: (1) the overall purpose that the School District hopes to achieve by searching students in extracurricular activities and students with driving privileges; and (2) the immediate reasons prompting the decision to conduct the actual search of the Students in this case.
The stated purpose of Policy 227 is to prevent these groups of students from using drugs because the use of drugs endangers their health and safety. (R.R. at 13a.) The majority acknowledges that there may be a special need to test student athletes and students with driving privileges, but the majority points out that the School District has not shown a special need or justification for testing students engaged in extracurricular activities. (Majority op. at 661.)
I agree with the majority that the School District has not shown a special need to test students in extracurricular activities. I also note that there is nothing before us that would indicate a special need to test students with driving privileges. The Department of Transportation (DOT) has a statutory authority to issue driver licenses to student drivers, and special restrictions apply for student drivers who are sixteen or seventeen years of age. See Section 1503 of the Vehicle Code, 75 Pa.C.S. § 1503. Student drivers who violate DUI laws are subject to statutory penalties, like other drivers. See section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547. The majority evidently believes that local police are incapable of effectively enforcing Pennsylvania’s traffic laws within the School District. Otherwise, there would be no special need for Policy 227 as it relates to student drivers. However, there is nothing before us indicating that the trained law enforcement officers within the School District have failed to adequately enforce the traffic laws.
Finally, we must consider the School District’s immediate reasons for the actual search of the Students in this case. For example, in In re F.B., the school initiated a weapons search only when the school received information that there could be trouble. However, in this case, it is apparent that the School District never has an “immediate reason” for a random search of students. It is simply done each month as a matter of course.
E. Conclusion
At this point in the proceedings, I can conclude only that: (1) the Students’ privacy interest in their person might not be *667 minimal; (2) the collection of a urine sample under Policy 227 might not be minimally intrusive; (3) the School District’s notice to Students is insufficient under In re F.B.; (4) the School District has shown no special need to search only students participating in extracurricular activities and students with driving privileges, and the School District had no immediate reason for searching Students in this case. Because the Students might prevail in their claim, I would reverse and remand for further proceedings.
III. Parents’ Claim
The Parents claim that Policy 227 violates their constitutional rights because it requires that positive drug test results be transmitted to school officials and because it requires that a student with a positive drug test receive a certain form of counseling. However, the complaint avers that the test results here were negative. (R.R. at 10a.) Thus, Policy 227 has not yet violated the constitutional rights asserted by the Parents. Because the Parents’ claim is not ripe, I would affirm the trial court’s order to that extent. 8
. Our review of a trial court order sustaining a preliminary objection in the nature of a demurrer is limited to determining whether the trial court abused its discretion or committed an error of law. Lee v. Municipality of Bethel Park, 722 A.2d 1165 (Pa.Cmwlth.1999). In ruling on a demurrer, a court must accept as true all well-pleaded material allegations, as well as all inferences reasonably deduced therefrom. Envirotest Partners v. Department of Transportation, 664 A.2d 208 (Pa.Cmwlth.1995). Moreover, in order to sustain a demurrer, it must appear with certainty that the law wih not permit recovery, and any doubt should be resolved by a refusal to sustain the demurrer. Id.
. In this particular case, the School District searched the Students' urine for drugs and alcohol. I cannot imagine a privacy interest exceeding the expectation of privacy in one’s urine. Indeed, in our culture, the excretory functions are shielded by more or less absolute privacy. Vernonia School District 47J v. Acton, 515 U.S. 646 , 115 S.Ct. 2386 , 132 L.Ed.2d 564 (1995) (O’Connor, J. dissenting).
. Of course, Vemonia School District is not binding on this court. In interpreting a provision of the Pennsylvania Constitution, we are not bound by decisions of the U.S. Supreme Court that interpret similar provisions of the federal constitution. Commonwealth v. Edmunds, 526 Pa. 374 , 586 A.2d 887 (1991). The federal constitution establishes only a minimum level for the protection of individual rights, and states are encouraged to engage in independent analysis in drawing meaning from their own state constitutions. Id.
. I note that, in some schools, students are not required to undress completely for physical education class, and, in other schools, special arrangements are made for students who are not comfortable showering after physical education classes. See Trinidad School District No. 1 v. Lopez By and Through Lopez, 963 P.2d 1095, 1107 (Colo.1998).
. I fail to see how communal undressing diminishes one’s expectation of privacy in his or her body. The fact that a student is willing to undress in front of other students, who are also undressing, for athletic purposes does not suggest that the student is willing to undress in front of any other person for any other purpose.
."In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.” Commonwealth v. Cass, 551 Pa. 25, 36-37 , 709 A.2d 350, 355-56 (1998) (quoting Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 624 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989)) (emphasis added).
. In the case of In re F.B., the school proceeded with a point-of-entry weapons search when the school became aware of information or circumstances indicating a significantly increased likelihood that students may be armed or headed for physical confrontation.
. The basic rationale of the ripeness doctrine is to prevent the courts, through the avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies. Duquesne Light Co. v. Department of Environmental Protection, 724 A.2d 413 (Pa.Cmwlth.1999).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9732067. Public record. Not legal advice.