# Weber v. Oakridge School District 76 > Court of Appeals of Oregon · October 23, 2002 · 184 Or. App. 415 URL: https://www.frixlaw.com/law-library/cases/9796211 ## Case - **Full name:** John WEBER and Shannon Weber, Guardians Ad Litem for Ginelle Weber, a Minor, Appellants - Cross-Respondents, v. OAKRIDGE SCHOOL DISTRICT 76, Respondent - Cross-Appellant - **Court:** Court of Appeals of Oregon - **Decided:** October 23, 2002 - **Citations:** 184 Or. App. 415; 56 P.3d 504 - **Precedential status:** Published - **Opinion:** Concurrence by Schuman - **Judges:** Landau, Brewer, Schuman - **Cited by:** 13 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/9796211 ## Opinion text SCHUMAN, J., concurring. I write separately for two reasons: to emphasize the narrowness of the holding in the majority opinion and to air *444 one disagreement with its analysis of the administrative search exception to the warrant requirement. First, the majority’s lucid and thorough opinion holds only this: the trial court did not err in concluding that the record plaintiffs made in this case (two affidavits) and the argument they relied on exclusively (the warrant requirement of Article I, section 9, of the Oregon Constitution does not have an “administrative search” exception) do not establish that defendant’s drug testing program deprives their daughter of a constitutionally guaranteed right to be free from unreasonable searches and seizures. More to the point, the majority opinion does not establish that random, suspicionless drug tests of high school student athletes are constitutional; it holds only that these plaintiffs did not put on a case proving that this program is unconstitutional. With no deviation from the precedent that the majority opinion establishes, we could hold in a future case that some other student athlete drug testing program violates Article I, section 9, or that an identical program, challenged differently, does so. Second, my disagreement with the majority’s administrative search analysis revolves around the role of “reasonableness.” Relying principally on State v. Atkinson, 298 Or 1 , 688 P2d 832 (1984), and Nelson v. Lane County, 304 Or 97 , 743 P2d 692 (1987), the majority holds that an administrative search is per se reasonable, and therefore lawful, if it proceeds under authority from a politically accountable lawmaking body, is structured so as to preclude the exercise of discretion by those who administer it, and is “reasonable in relation to its purpose.” 184 Or App at 437 (quoting State v. Rounds, 73 Or App 148, 153 , 698 P2d 71 , rev den, 299 Or 663 (1985)). Reasonableness, in the majority’s view, enters the analysis only in determining whether the search that the policy authorizes arguably promotes the accomplishment of the policy’s objective and is limited in scope so as not to authorize a search that is unrelated to that objective; there is no requirement that the overall policy or the program itself be reasonable. 184 Or App at 437.1 disagree. I maintain that a lawful administrative search must not only meet the three requirements developed in Atkinson and Nelson ; it must also pass an overall reasonableness test implicit in those opinions. *445 This may seem a trivial quibble. Why should it matter whether the reasonableness inquiry enters the analysis at one stage rather than another? But consider this hypothetical administrative search program: a city council, in response to a well-documented epidemic of heroin and methamphetamine use, passes an ordinance creating a program under which official “drug monitors” are authorized to conduct thorough late night searches of homes, including searches of bedrooms and patdowns of their occupants, be they adults, children or infants. A computer selects addresses at random. The “drug monitors” must follow specific, rigid rules detailing every step of the process. None of the rules allows for any exercise of discretion. A citizen in whose home officers find specified illegal drugs must either submit to an intensive course of substance abuse counseling or forfeit all city-provided services including police and fire protection, public parks, and libraries. No other consequences occur; the “monitors” will not report search results to any law enforcement agencies. Under the majority’s test as I understand it, this administrative search program, despite a draconian protocol offensive to every civilized conception of privacy and liberty, is per se reasonable, and therefore lawful, because the search program is “reasonable in relation to its purpose,” that is, the program is likely to promote the success of the policy’s mission, and it does not authorize a search that is more intensive than necessary to accomplish the mission. Under an overall reasonableness test, on the other hand, the program obviously would fail. Close examination of the existing Oregon administrative search jurisprudence supports an overall reasonableness requirement. Of particular importance is the court’s explanation in Nelson of the function that politically accountable authority plays in the rationale underlying the administrative search exception. The court, quoting its opinion in State v. Weist, 302 Or 370, 376 , 730 P2d 26 (1986), noted that the function of the warrant requirement in the criminal law context is “to subordinate the power of executive officers over the people and their houses, papers, and effects to legal controls beyond the executive branch itself.” Nelson, 304 Or at 104 . The court continued: *446 “In Atkinson , we suggested that another method existed for administrative searches. We held that an administrative search conducted without individualized suspicion of wrongdoing could be valid if it were permitted by a ‘source of the authority,’ that is, a law or ordinance providing sufficient indications of the purposes and limits of executive authority, and if it were carried out pursuant to ‘a properly authorized administrative program, designed and systematically administered’ to control the discretion of non-supervisory officers.” Nelson, 304 Or at 104 (footnote and citation omitted). Thus, the legislation creating and limiting administrative search programs serves the same purpose as a judicial warrant: both act as a check on unrestrained executive power. Yet it is clear that the mere existence of a warrant does not make a search per se reasonable; the warrant itself is subject to a variety of requirements. It must be supported by “probable cause,” it must be sufficiently specific, it cannot be stale, hearsay information it contains must be credible, and so forth. Those requirements add up to an overall requirement that the warrant establish the reasonableness of the search it authorizes. By the same token, the administrative analog to a warrant— legislative authorization — should also be subject to some limitation. It, too, must pass an overall reasonableness test. In the criminal context, in other words, the check on executive abuse is itself checked, and the same should hold true in the administrative context. That analysis follows from the text of Article I, section 9, itself, which establishes the “right of the people” to be free from “unreasonable search.” A rule that applies the reasonableness requirement only to the means-end relationship between the search and its objective may protect the people from poorly conceived or inefficient search programs, but it will not protect them from rational, carefully planned, effective search programs such as the one I hypothesize above that are obviously unreasonable in scope or objective. Under either the majority’s analysis or mine, there is much in defendant’s search program that is unreasonable. What is reasonable about requiring an innocent 15-year-old girl, untainted by even an allegation of drug use, to urinate under direct observation, even if she is permitted while doing *447 so to use a “modesty drape,” whatever that might be? What is reasonable, in fact, about teaching schoolchildren that they are presumed guilty of drug use until proven innocent? What is reasonable about a program that provides no predeprivation appeal process to guard against erroneously applied standards or, for example, chain-of-custody errors? About a program that would require a student taking prescription antidepressants that create what she knows to be a false positive “voluntarily” to reveal the fact that she takes the medication or face ineligibility for school sports? Those arguments, had they been made to the trial court, might have carried some weight. Further, much of what is reasonable about the program in this case — the need for it, the accuracy of its testing methods, and its likelihood of success in achieving its goals — is reasonable, as it were, by default: defendant put on evidence supporting those propositions, and plaintiffs, who had the burden of establishing unreasonableness, left them uncontradicted. In other words, on this record, in this case, plaintiffs have not met their burden. They neither presented evidence of unreasonableness nor, for that matter, seriously argued that unreasonableness mattered. For that reason, I concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796211. Public record. Not legal advice.