Petition for Writ of Certiorari — Vernonia School Dist. 47J v. Acton

~ Supreme Court, U.S.

1) FiLeED

94 590 SEP 3.019%

No.

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

VERNONIA SCHOOL DISTRICT 47J,

Petitioner,

Vv.

WAYNE and JUDY ACTON, guardians ad

litem for JAMES ACTON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

TIMOTHY R. VOLPERT

Counsel of Record

Davis Wright Tremaine

1300 SW 5th Avenue

Portland, OR 97201

(503) 241-2300

Counsel for Petitioners

i

QUESTION PRESENTED FOR REVIEW

Whether Vernonia School District

47J's program of random drug testing of

middle and high school student athletes

in the absence of individualized

suspicion is a constitutionally

reasonable "search" under the Fourth

Amendment to the United States

Constitution?

ii

STATEMENT PURSUANT TO RULE 29.1

Petitioner is not a corporation and

has no parent companies, subsidiaries or

affiliates.

TABLE OF CONTENTS

OPINIONS BELOW ........-.

JURISDICTION ..... ++ © © « «

CONSTITUTIONAL PROVISIONS

INVOLVED . . . + «+ © © © © © « «@

STATEMENT OF THE CASE

Facts Relevant to the

CET aT 6 i. 6 6 «© © « ¢

Trial Court Proceedings

The Ruling of the United

States Court of Appeals for

the Ninth Circuit .....

REASONS FOR GRANTING THE PETITION

1. The Holding Below Directly

Conflicts with an Existing

Seventh Circuit Holding

2. This Case Presents the

Opportunity for the Supreme

Court to Expand its Holding

in New Jersey v. TLO by

Specifically Addressing School

Searches in the Absence of

Individualized Suspicion

14

17

19

28

iv

3. Educating Children in an

Environment Free From Drugs,

Excessive Discipline Problems

and a Heightened Risk of

Physical Injury Justifies

Urinalysis Drug Testing of

Student Athletes ........ 38

ee eee ee ee 45

ean © + 6 ee «6 es 8s 6 © 6 la

eae — @¢ = se ee ee wee weet 76a

ne S° +e Se ee ee 6 ee 143a

Cases Page

Acton v. Vernonia School

Dist., 23 F.3d 1514

(9th Cir. 1994) >. >. >. * . >. . . . 4, 8,

11-14, 17-

20, 24-26,

40-42

Acton v. Vernonia School Dist.,

796 F. Supp. 1356 (D.

1, We sit tee wee cs CO,

Dimeo v. Griffin,

943 F.2d 679 (7th Cir. 1991) . . . 26-27

National Treasury Employees

Union v. Von Raab, 489 U.S.

EE See

New Jersey v. TLO,

469 U.S. 325

(1985) . . . . . . . . . . 7 22, 26, 28-

36, 38-40,

43

Schaill by Kross v. Tippecanoe

County Sch. Corp., 864 F.2d

1309 (7th Cir. 1988) reh'g

denied (1989) se 6 20-24,

26, 34

vi 1

Skinner v. Railway Labor PETITION FOR WRIT OF CERTIORARI

Executives' Ass'n., 489 U.S. a

a ee a eee ee ee ee Petitioner, Vernonia School District

University of Colorado v. 473, respectfully petitions for a writ of

Derdeyn, 863 P.2d 929 ;

(Colo. 1993), cert. denied certiorari to review the judgment of the

__. U.S. __, 114 S&S. Ct. ;

1646 (1994) ......4 24444 + 43-44 United States Court of Appeals for the

Ninth Circuit in this case.

Statutes:

OPINIONS BELOW

28 U.S.C. §@ 12884 . «© © se ee eo eevee @ a

The opinion of the United States

O8 GiO.G.:8 898 «we cose vnecne B& .

Court of Appeals for the Ninth Circuit

28 U.S.C. § 1367 . «. «© «© © © © © © «@ 15 ;

(Pet. App. A, infra) is reported at 23

68 0.8.6..6 0003 2. ce eee sveves 3 —

F.3d 1514 (9th Cir. 1994). The opinion

42 U.S.C. § 1988 .. . «© «© © © © @ » 3

of the United States District Court (Pet.

Constitutions: App. B, infra) is reported at 796 F.

OR. CONST. Art. I, § 9 .. . . 17-19, 24 Supp. 1354 (D. Or. 1992).

U.S. CONST. amend. IV... ... 2, 17- JURISDICTION

19, 28-29 —_

The opinion and judgment of the

Miscellaneous: United States Court of Appeals for the

a Se ee Ninth Circuit were filed on May 5, 1994

(Pet. App. A). Petitioner's timely peti-

tion for rehearing was denied by that

2

court by order of July 8, 1994 (Pet. App.

C). The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

U.8. Const. Amend. IV.

"The right of the people to be

secure in their persons, hous-

es, papers, and effects,

against unreasonable searches

and seizures, shall not be vio-

lated, and no Warrants shall

issue, but upon probable cause,

supported by Oath or affirma-

tion, and particularly describ-

ing the place to be searched,

and the persons or things to be

seized."

ee

3

STATEMENT OF THE CASE

Petitioner, Vernonia School District

47J (hereinafter "the District"), estab-

lished a policy allowing it to conduct

urinalysis drug testing of its middle and

high school student athletes to protect

those students from physical injury and

to counteract an epidemic of drug use and

disciplinary problems involving student

athletes and other students in the Dis-

trict.

Respondents Wayne and Judy Acton, as

guardians ad litem for James Acton, a 12-

year old student in the 7th grade of

Washington Grade School in Vernonia Ore-

gon, objected to the District's drug-

testing program and, represented by the

ACLU, filed an action under 42 U.S.C.

1983 and 1988 seeking a judicial declara-

tion that the drug-testing policy vio-

4

lates guarantees in the federal and state

constitutions against unreasonable

searches. Respondents also sought an

injunction against enforcement of the

policy.

Facts Relevant to the Petition.’

Vernonia, Oregon is a small logging

community of approximately 3000. The

community has a central interest in

school district activities in general and

in athletics in particular. 796 F. Supp.

at 1356 (Pet. App. B at 76a). A signifi-

cant majority of Vernonia high school and

elementary school students participate in

District sponsored athletics. [Id.,

' The Ninth Circuit found no clear error in

the district court's findings of fact. 23 F.3d

at 1519 (Pet. App. A at 20a). The facts stated

herein are therefore largely taken from the dis-

trict court's findings. On occasion, petitioner

will cite to facts recited by the Ninth Circuit.

5

(Pet. App. B at 77a.)’

Although discipline and drug use had

not previously been a significant problem

in the Vernonia schools, beginning in the

mid-to-late 1980s, the teaching staff

began noticing "a startling and progres-

sive increase in students' use of drugs

and alcohol." Id., (Pet. App. B at

78a.) The administration investigated

the source and attempted to address this

increasing problem through education.

796 F. Supp. at 1357 (Pet. App. B at 82a-

84a).’ Yet, as time passed, the glamor-

* Interscholastic athletics play a dominant

role in the Vernonia community and student ath-

letes are well known and admired. Approximately

60-65% of the high school students and 75% of the

elementary school students participate in Dis-

trict sponsored athletics. Id., (Pet. App. B at

76a-77a.)

> Initially, the Vernonia High School princi-

pal met with the teaching staff and asked them to

gauge the magnitude of the drug and alcohol prob-

lem and to determine what responsive steps should

be taken. The school administration first at-

tempted to deter drug and alcohol use through

education. Special classes were held on the

effect and addictive nature of drugs. The school

6

ization and use of drugs and alcohol be-

came more blatant. Students boasted

about drug use. Drug paraphernalia was

confiscated on school grounds, and open

use of drugs was observed at a local cafe

across the street from the high school.

Class decorum suffered. Outbursts of

profane language during class, rude and

obscene statements directed at other stu-

dents and "a general flagrant attitude

that there was nothing the school could

do about their conduct or their use of

drugs or alcohol" typified a usual day.

796 F. Supp. at 1356-57 (Pet. App. B at

79a-80a). There was an almost three-fold

administration invited well-known speakers to ad-

dress the students, hoping the speakers could

reach the students. Seminars within classes,

polls, and theatrical presentations were all

tested but failed to achieve any significant

impact on the disruptive atmosphere. The day

after the presentation of a play directed at the

problems caused by drug use, several sophomore

athletes were caught cutting classes to hold a

party where arrests took place for the use of

intoxicants. Id.

7

increase in classroom disruptions and

disciplinary reports between 1986 and

1989.‘

Drug and alcohol use invaded the

sports program. 796 F. Supp. at 1357

(Pet. App. B at 80a). In fact, the ad-

ministration determined that the leading

student athletes were also the leaders of

the drug activity, thus endangering "the

very center of activity of the school and

the community." Id., (Pet. App. B at

82a-83a). Students consumed alcohol ina

bus after a game. Others stole alcohol

from a store after a track meet. At

* Vernonia teachers felt upset and helpless

as students increasingly expressed their attrac-

tion to, and vocal defense of, the use of drugs.

One teacher, who had never experienced classroom

discipline problems in the past, was ready to

give up 15 years of service because of her frus-

tration in dealing with this new situation.

Organizations formed within the student drug

culture, taking such names as the "Big Elk" or

the “Drug Cartel.” Loud “bugling” or “head butt-

ing” became the symbols for these groups. 796 F.

Supp. at 1356 (Pet. App. B at 79a~-80a).

8

least one of the student scushisetions

which formed within the drug culture--the

Big Elk--was composed largely of ath-

letes. Athletes turned in classroom as-

Signments which bragged about drug use.

23 F.3d at 1516 (Pet. App. A at 3a-4a).

Ron Svenson, a teacher and coach,

testified that suspected drug use con-

tributed to the serious injury of a wres-

tler who failed to execute a basic maneu-

ver. Likewise, the football coach gave

"convincing testimony" that drug use af-

fected certain football players who ig-

nored or forgot well-drilled safety rou-

tines. 796 F. Supp. at 1357 (Pet. App. B

at 8la). Parents reported that they had

heard of drug use on a football trip and,

when confronted by the principal, stu-

dents admitted that they had used mari-

Juana. 23 F.3d at 1516 (Pet. App. A at

9

4a). Svenson expressed a concern that

use of intoxicants slowed the reaction

time of athletes, and thereby made them

more susceptible to injury. 796 F. Supp.

at 1357 (Pet. App. B at 81la).° That con-

cern was corroborated by testimony from

Dr. Robert L. Dupont, a nationally recog-

nized expert on drug abuse.°

The school administrators feared

that the corruption of the school's lead-

ing athletes would have a significant

poisoning impact upon the broader student

population, including the younger and

’ Svenson also testified that a student in-

jured in a regular physical education class is

much more apt to disclose an injury than one

engaged in interscholastic activity, given the

highly competitive atmosphere of the latter.

This sense of pride and desire to stay in the

game, when coupled with the numbing influence of

drugs, became a significant concern to all in-

volved in the athletic program. Id., (Pet. App. B

at 82a).

6 Dr. DuPont explained the deleterious ef-

fects of drugs and alcohol on a teenager's moti-

vation, memory, judgment, reaction, coordination

and performance. Id., (Pet. App. B at 8la).

10

more impressionable elementary school

students who emulated the older athletes.

Id., (Pet. App. B at 83a).

The evidence at trial “amply demon-

strate that the administration was at its

wits end and that a large segment of the

student body, particularly those involved

in interscholastic athletics, was in a

state of rebellion." Id., (Pet. App. B

at 85a). Disciplinary actions had

reached “epidemic proportions." Id. The

administration concluded that the rebel-

lion "was being fueled by alcohol and

drug abuse as well as the student's

misperceptions about the drug culture."

Id., (Pet. App. B at 85a-86a). The ad-

ministration also concluded that, unless

it took immediate action, the problem

would worsen and become more widespread.

At one point, the administration felt the

11

only practical solution was mass expul-

sion. 796 F. Supp. at 1357-58 (Pet. App.

B at 86a).’

Having tried all other reasonable

alternatives, the District began investi-

gating drug testing in 1988. The Dis-

trict conducted a study of such programs

in other parts of the country. 796 F.

Supp. at 1358 (Pet. App. B at 86a-87a).

The District obtained a lawyer, consid-

ered legal opinions and held meetings of

interested parents. In 1989, the Dis-

trict board approved a drug testing pro-

gram. Id., (Pet. App. B at 87a).

The policy involved testing by uri-

nalysis for amphetamines, marijuana, co-

; The Ninth Circuit reviewed the record

and found,"... that drug use appeared to be more

extreme than it should be and even appeared to be

growing. It was sufficient to give them [Verno-

nia administrators and faculty] concern for the

future of the youth they had responsibility for.

Based upon the evidence, we cannot say that con-

cern was unreasonable." 23 F.3d at 1519 (Pet.

App. A at 20a).

12

caine and LSD. 23 F.3d at 1517. (Pet.

App. A at 7a). It was limited in scope

to student athletes and narrowly tailored

to effectuate the District's objectives.

The District took significant steps to

limit the extent of the intrusion, to

protect the chain of custody and to main-

tain the confidentiality of the results.

As the Ninth Circuit found, the policy

was completely random and vested no dis-

cretion in any District officials. 23

F.3d at 1522 (Pet. App. A at 36a-37a).°

Penalties imposed for positive tests

where progressive, ranging from partici-

pation in a drug treatment program with

weekly testing to suspension from athlet-

ics for the current and two subsequent

* The mechanics of the policy were never in

dispute. They are set forth adequately and con-

cisely in the district court's opinion, 796 F.

Supp. at 1358-1359 (Pet. App. B at 87a-9la) and

in the Ninth Circuit's opinion, 23 F.3d at 1516-

17 (Pet. App. A at 4a-6a).

13

athletic seasons.® Results were not dis-

closed to criminal authorities and could

not be used for school disciplinary pro-

ceedings such as suspension or expulsion

from school. 796 F. Supp. at 1364 (Pet.

App. B at 121a).

Finally, as the Ninth Circuit ac-

knowledged, the policy accomplished its

* If a student tested positive and that test

was confirmed by a second test, the parents were

notified. A due process hearing was then held by

the principal with the student and parents. For

a first offense, the student was given the option

of: (a) participating in an assistance program

and taking weekly urinalysis for six weeks; or

(b) suspension from athletics for the remainder

of the current season and next athletic season.

The student would then be retested prior to the

start of the next athletic season for which he or

she was eligible. 796 F. Supp. at 1358-1359

(Pet. App. B at 9la-92a). As the policy is writ-

ten, a second offense resulted in the student

being suspended from participating in athletics

for the remainder of the current season and the

next athletic season for which he or she was

eligible. 23 F.3d at 1517 (Pet. App. A at 8a).

However, although not spelled out in the policy,

a student athlete who committed a second offense

was allowed to continue participating in sports

if he or she submitted to counseling and weekly

urinalysis. 796 F. Supp. at 1359 (Pet. App. B at

92a). The third offense resulted in the

student's suspension from athletics for the re-

mainder of the current season and the next two

athletic seasons. 23 F.3d at 1517 (Pet. App. A

at 8a).

14

desired goal. “Every teacher who testi-

fied had noticed an improvement in disci-

pline, a reduction in disciplinary refer-

rals, and a decrease in drug use and the

glorification of drug culture since the

Policy was implemented." 23 F.3d at 1522

(Pet. App. A at 34a).

Trial Court Proceedings.

The district court had jurisdiction

over the Fourth Amendment claim under 28

U.S.C. § 1331 and supplemental jurisdic-

tion over the Oregon constitutional cause

of action under 28 U.S.C. § 1367(a). 23

F.3d at 1517 (Pet. App. A at 10a). The

district court ruled that the District's

drug-testing policy did not violate ei-

ther the federal or state constitutions

and entered a judgment dismissing the

action. 796 F. Supp. at 1368 (Pet. App.

B at 143a). The district court found

15

that several factors weighed in favor of

the District's drug testing policy in-

cluding: (1) evidence of specific in-

stances where coaches had observed ath-

letes performing unsafely under the in-

fluence of intoxicants; (2) evidence that

athletes in the District's schools were

role models for this entire community so

that deterring athletes from drug use

would also deter other students; (3) the

fact that the policy was limited in scope

and narrowly tailored to effectuate the

District's objectives; (4) the fact that

the policy was implemented in a middle

and high school setting, where courts

should accord deference to school admin-

istrators "in matters concerning disci-

pline and maintaining order;" (5) the

facts that the District considered and

actually tried several alternative meth-

16

ods of dealing with the increase of drug

and alcohol disciplinary problems before

instituting its drug testing program, and

that less intrusive "screening" methods

for detecting drug use have proven inef-

fective; (6) the facts that the District

had taken significant steps to limit the

extent of the intrusion including confi-

dentiality of the results, that the re-

sults were not disclosed to criminal au-

thorities and that the test results could

not be used for school disciplinary pro-

ceedings such as suspension or expul-

sions; and (7) the fact that the program

limited the degree of discretion that

could be exercised by coaches and school

administrators. 735 F. Supp. at 1363-65

(Pet. App. B at 115a-122a).

17

The Ruling of the United states

Court of Appeals for the Ninth Cir-

cuit.

The Ninth Circuit reversed the judg-

ment of the District Court and held that

the District's drug-testing policy vio-

lated the Fourth Amendment and therefore

violated Article I, Section 9 of the Ore-

gon Constitution. 23 F.3d at 1526 (9th

Cir. 1994) (Pet. App. A at 59a-60a)."°

The Ninth Circuit found both that

petitioner's drug testing policy contrib-

' The Ninth Circuit noted that the Oregon

courts have never decided a random drug testing

case, leaving the court “without a compass that

clearly points us in the right direction unless

we use a federal compass.” 23 F.3d at 1518 (Pet.

App. A at 16a). The court then stated:

Therefore, in our ensuing discussion

we will, to the extent possible, re-

fer to the guideposts set out for us

by the Oregon courts. But, particu-

larly in the specific area of urine

testing-the core issue in this

case—we will unabashedly refer to

federal law and decide the case based

upon the Fourth Amendment, confident

in our view that Oregon itself would

do no less.

23 F.3d at 1519 (Pet. App. A at 17a-18a).

18

uted to reaching the desired goal of re-

ducing drug use among students, and that

it was nondiscretionary because it was

truly random. 23 F.3d at 1522 (Pet. App.

A at 34a-37a). Despite these findings,

the Ninth Circuit held:

Given the Fourth Amendment,

given our traditions, given our

law, we are constrained to hold

that the Policy is invalid un-

der the Fourth Amendment. That

being so, Oregon would find it

invalid under Article I, Sec-

tion 9, of its Constitu-

tion.

23 F.3d at 1527 (Pet. App. A at 65a).

In a concurring opinion, Judge

Reinhardt emphasized that the Ninth

Circuit's opinion holds that the policy

violates the Fourth Amendment to the

United States Constitution as well as

Article I, Section 9 of the Oregon Con-

stitution. Justice Reinhardt wrote:

Although I am in complete

agreement with the reasoning

6 a Fee a ee me

19

and the result in Judge

Fernandez's opinion for the

court, I write separately to

emphasize that while our opin-

ion holds expressly that Verno-

nia School District's drug

testing policy is violative of

Article I, Section 9 of the

Oregon Constitution, it also

necessarily holds that the pol-

icy violates the Fourth Amend-

ment to the United States Con-

stitution. Indeed, the opinion

cannot be read otherwise:

there is no way to "avoid" a

federal constitutional holding

in this case, because Article

I, Section 9 and the Fourth

Amendment are textually identi-

cal and are interpreted "coex-

tensively." Moreover, our de-

cision is based almost exclu-

Sively on the application of

federal law. Under the circunm-

stances, our holding cannot be

confined to one of Oregon law.

23 F.3d 1527 (Reinhardt, J., concurring)

(Pet. App. A at 65a-66a).

REASONS FOR GRANTING THE PETITION

1. The Holding Below Directly Con-

flicts with an Existing Seventh Cir-

cuit Holding.

The Ninth Circuit's decision below

directly conflicts with an existing hold-

20

ing by the Seventh Circuit in Schaill by

Kross v. Tippecanoe County Sch. Corp.,

864 F.3d 1309 (7th Cir. 1988) reh'g de-

nied (1989).'' In Tippecanoe, the Sev-

enth Circuit held that a high school's

random drug testing program, which was

very similar to the District's drug test-

ing program, is valid under the Fourth

Amendment. 864 F.2d at 1322. As the

Ninth Circuit tersely summarized: "[I]n

a nutshell, we simply do not agree with

the Seventh Circuit." 23 F.3d at 1527.

(Pet. App. A at 63a).

The student athletes in Tippecanoe

and their parents were required to sign a

form consenting to urinalysis. The stu-

dents had assigned numbers, and the num-

'' This Court's Rule 10.1(a) includes as one

of the reasons it will consider for granting a

writ of certiorari: "When a United States court

of appeals has rendered a decision in conflict

with the decision of another United States court

of appeals on the same matter ..."

21

bers were randomly drawn to select stu-

dents for testing. Testing was carefully

monitored and conducted by a private lab-

oratory, and all positive tests were re-

peated. Students and parents or guard-

ians were allowed to explain any positive

result. 864 F.2d at 1311.

The penalty imposed under the

Tippecanoe policy was suspension from

participation in interscholastic sports,

with the percentage of suspension ranging

from 30% of remaining games (first posi-

tive result) to suspension from all in-

terscholastic sports programs during the

remainder of a student's high school ca-

reer (fourth positive result). No other

penalties were imposed and students could

decrease the specified punishment by par-

ticipating in an approved drug counseling

program. Id.

22

The school administrators in

Tippecanoe also faced a serious drug

problem among student athletes, although

on balance the instant case was even

worse. As is noted above, substantial

evidence in this case demonstrated "that

the administration was at its wits end

and that a large segment of the student

body, particularly those involved in in-

terscholastic athletics, were ina state

of rebellion. 796 F. Supp. at 1357 (Pet.

App. B at 85a).

In light of this court's holding in

New Jersey v. TLO, 469 U.S. 325 (1985),

the appellate court in Tippecanoe first

held that the probable cause and warrant

requirements were not applicable to the

program, and that the appropriate method

for determining constitutionality was to

apply the “general fourth amendment stan-

23

dard of reasonableness." 864 F.2d at

1315. However, because the program was

not based upon any individualized suspi-

cion, the court held the school district

to a “heavier burden" to justify its pro-

gram. Id. The court balanced the priva-

cy interests of the students against the

government's objectives and the nature

and degree of the intrusion and then up-

held the constitutionality of the policy,

concluding:

[T}]he convergence of several

important factors convinces us

that the searches involved here

take place in one of the rela-

tively unusual environments in

which suspicionless searches

are permissible: interscholas-

tic athletes have diminished

expectations of privacy, and

have voluntarily chosen to par-

ticipate in an activity which

subjects them to pervasive reg-

ulation of off-campus behavior;

the school's interest in pre-

serving a drug-free athletic

program is substantial, and

cannot adequately be furthered

by less intrusive measures; the

24

TSC program adequately limits

the discretion of the officials

performing the search; and the

information sought is intended

to be used solely for noncrimi-

nal educational and rehabilita-

tive purposes. Based on a

careful and considered weighing

of these factors, we conclude

that the TSC urinalysis program

does not violate the fourth

amendment.

864 F.2d at 1322 (footnote omitted). The

court found that the school board in

Tippecanoe was “entitled to considerable

deference" in implementing its drug test-

ing program because the board likely knew

"how to best deal with a serious threat

to the school's learning environment."

864 F.2d at 1321.

The holding in Tippecanoe contrasts

starkly with the Ninth Circuit's holding:

Thus, when we mix all of the

elements together - the slight

weight in favor of efficiency,

the privacy interest, the gov-

ernmental interest, and the

discretionary factor - and step

back to look at the compound

25

they yield, it becomes apparent

that the Policy violates the

Fourth Amendment. It follows

that it also violates Article

I, Section 9 of the Oregon Con-

stitution.

23 F.3d at 1526 (Pet. App. A at 59a-60a).

The Ninth Circuit squarely acknowl-

edged the direct conflict between its

holding and that in the Tippecanoe case:

Before concluding, we must ac-

knowledge that in Schaill v.

Tippecanoe County Sch. Corp.,

864 F.2d 1309 (7th Cir. 1988),

the court upheld a random drug

testing program very similar to

the one we now review. Perhaps

that court found a more compel-

ling set of facts than we dis-

cover here, but we are unable

to say so after reading the

opinion. We believe, instead,

that the Seventh Circuit has

unduly minimized the privacy

interests of students. It has

also given undue weight to the

governmental interest by focus-

ing on the general problems

generated by the drug plague,

rather than upon the question

of whether the danger to safety

is so high as to be compel-

ling.’ We could fill more pag-

es reiterating what we have

already said, but, in a nut-

26

shell, we simply do not agree

with the Seventh Circuit.

23 F.3d at 1527 (Pet. App. A at 62a-63a).”

12

The footnote in the quoted passage says:

We note that the Schaill court bal-

anced the students’ privacy interests

against the school district's "“sub-

stantial interest in enforcement of

its proposed random urinalysis pro-

gram." 864 F.2d at 1321 (emphasis

added). In contrast, subsequent Su-

preme Court cases have allowed random

urinalysis programs only after find-

ing compelling governmental interests

that outweigh employees’ diminished

expectations of privacy. See Skin-

ner, 489 U.S. at 626-33, 109 S. Ct.

at 1418-21; Von Raab, 489 U.S. at

670-77, 109 S. Ct. at 1393-96.

23 F.3d at 1527 n. 3 (Pet. App. A at 63a).

The subsequent cases referred to in that

footnote apply a “compelling governmental inter-

est" standard to random drug testing in non-

school settings. As noted in Section 2 below,

given this Court's holding in New Jersey v. TLO,

469 U.S. 325 (1985), which allows a more flexible

Fourth Amendment standard in schools, it is

doubtful that the “compelling governmental inter-

est" standard applies to drug testing by school

administrators. Thus, it is unlikely the Seventh

Circuit would apply any different standard in the

school setting today.

In fact, the Seventh Circuit has since

cited Tippecanoe without casting any doubt on its

continuing validity. In Dimeo v. Griffin, 943

F.2d 679 (7th Cir. 1991), the Seventh Circuit,

sitting en banc, upheld the constitutionality of

random drug testing of horse race participants by

a state racing board. In doing so, the court

—

|

:

4

27

This case therefore presents a clear

conflict between the circuits. As a re-

sult of the Ninth Circuit's decision,

middle and high schools in Oregon, Wash-

ington, Idaho, Montana, Nevada, Alaska,

Arizona, Hawaii and California are pro-

hibited from conducting random drug test-

ing to safeguard the health and safety of

student athletes. On the other hand,

high schools in Indiana, Illinois and

Wisconsin may conduct such testing.

School officials in other states can only

guess as to the constitutionality of drug

testing of middle and high school ath-

letes, but will inevitably be deterred by

the risk of incurring massive legal ex-

divided random drug testing cases into three

categories: transportation workers, the leading

case being Skinner; government employees, the

leading case being Von Raab; and sports cases.

The Seventh Circuit in Dimeo placed Tippecanoe in

the third category, saying that the decision

there was based “on the idea that the Fourth

Amendment applies with diminished force in

schools”. 943 F.2d at 685.

28

penses in challenges to the constitution-

ality of drug testing programs. The fed-

eral constitution should not be inter-

preted to have opposing meanings in dif-

ferent regions of the country, especially

on an issue as important as this to the

maintenance of our public schools.

2. This Case Presents the Opportu-

nity for the Supreme Court to Expand

its Holding in New Jersey v. TLO by

Specifically Addressing School

Searches in the Absence of Individu-

alized Suspicion.

This Court recognized that high

school students may be treated different-

ly from adults for Fourth Amendment pur-

poses in New Jersey v. TLO, 469 U.S. 325

(1985). There, a 14-year-old student was

discovered smoking in the lavatory and

was taken to the assistant vice

principal's office. Upon hearing the

report, the assistant vice principal

searched the student's purse for ciga-

a ated

—lidlephhe tp th had BO

4 ee

29

rettes. During the search, he discovered

rolling papers, marijuana, a pipe, a

fairly substantial amount of money and

possible records of drug sales to other

students. Thereafter, the State brought

delinquency charges against the student

and the admissibility of the items seized

by the vice principal was ultimately ap-

pealed to the Supreme Court. 469 U.S. at

328-29.

The Supreme Court held that the

Fourth Amendment's prohibition on unrea-

sonable searches and seizures applied to

searches conducted by public school offi-

cials, but that the school setting re-

quires some “easing” of the usual Fourth

Amendment restrictions to enable school

administrators to preserve order and

maintain an adequate, educational envi-

ronment. 469 U.S. at 334, 339-340. The

30

Supreme Court held that, ". . . the le-

gality of a search of a student should

depend simply on the reasonableness, un-

der all the circumstances, of the

search." 469 U.S. at 341. The Court ex-

plained further:

Such a search will be permissi-

ble in its scope when the mea-

sures 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 na-

ture of the infraction.

469 U.S. at 342 (footnote omitted).

The Supreme Court noted that it was not

at that point deciding "whether individu-

alized suspicion is an essential element

of the reasonableness standard we adopt

for searches by school authorities." 469

U.S. at 342, n. 8. But the Court added

that ". the Fourth Amendment imposes

no irreducible requirement of such suspi-

cion." Id. quoting United States v. Mar-

|

:

31

tinez-Fuente, 428 U.S. 543, 560-61

(1976). Thus, while TLO provided in-

valuable guidance to school administra-

tors regarding searches of students and

certainly shed light on the issue pre-

sented in the instant case, it did not

directly address the application of the

Fourth Amendment in schools in the ab-

sence of individualized suspicion. This

case presents the Court with an opportu-

nity to address the issue which was not

addressed in TLO, by deciding if and un-

der what circumstances middle and high

school searches without individualized

suspicion are constitutionally valid.

This issue is of great importance to edu-

cators attempting to deal with drug prob-

lems in schools.” As the administrators

' This Cou: ‘s Rule 10.1l(c) includes as one

of the reasons it will consider granting a writ

of certiorari: "“Whena. . United States court

of appeals has decided an important question of

32

of the District found in this case, the

deterrence provided by random drug test-

ing may be the only effective way to deal

with a drug use epidemic among school

children."

Clearly drug abuse and its attendant

discipline problems in public schools

nationwide can pose a serious threat to

the education of our children, requiring

in some circumstances a more flexible

Fourth Amendment standard than that ap-

plied in non-school settings. As this

federal law which has not been, but should be,

settled by this Court."

‘ At trial, Dr. Dupont testified that visual

observations (even by professionals) are not

reliable indicators of whether a student has

consumed alcohol or drugs. He testified that,

since many people do not display outward manifes-

tations of drug or alcohol abuse, application of

the reasonable and individualized suspicion stan-

dard is an unreliable and impractical tool to aid

in preventing accidents before they happen. 796

F. Supp. at 1364 (Pet. App. B at 120a). The Dis-

trict Court found Dr. Dupont's testimony “par-

ticularly persuasive on the significant deterrent

effects that a random drug testing program can

have on a youthful population." 796 F. Supp. at

1363. (Pet. App. B at 116a).

;

:

3

5

:

,

:

:

i

4

y

4

33

Court noted in TLO:

Against the child's interest in

privacy must be set the sub-

stantial interest of teachers

and administrators in maintain-

ing discipline in the classroom

and on school grounds. Main-

taining order in the classroom

has never been easy, but in

recent years, school disorder

has often taken particularly

ugly forms: drug use and vio-

lent crime in the schools have

become major social problems.

See generally i NIE, U. S.

Dept. of Health, Education and

Welfare, Violent Schools--Safe

Schools: The Safe School Study

Report to the Congress (1978).

Even in schools that have been

spared the most severe disci-

plinary problems, the preserva-

tion of order and a proper edu-

cational environment requires

close supervision of school-

children, as well as the en-

forcement of rules against con-

duct that would be perfectly

permissible if undertaken by an

adult. “Events calling for

discipline are frequent occur-

rences and sometimes require

immediate, effective action."

Goss v Lopez, 419 U.S., at 580.

Accordingly, we have recognized

that maintaining security and

order in the schools requires a

certain degree of flexibility

in school disciplinary proce-

34

dures, and we have respected

the value of preserving the

informality of the student-

teacher relationship. See id.,

at 582-583; Ingraham v Wright,

430 U.S. at 680-682.

469 U.S. at 339-340.

In the instant case, a “large seg-

ment of the student body, particularly

those involved in interscholastic athlet-

ics . . . was in a state of rebellion.

Disciplinary action had reached epidemic

proportions." 796 F. Supp. 1357 (Pet.

App. B at 85a).

At issue here is whether it is rea-

sonable for school authorities to impose

random drug testing where they are faced

with a drug and disciplinary problem that

threatens the very fabric of the school,

and where they have tried all lesser mea-

sures conceivable by them to deal with

the problems created by student drug

abuse. School officials across this na-

© 0 te eevee, dab Neil ddt SOR aed

Aoi

mag.

Che aE 0 ee FRE DOE ch tw es OR te ek

35

tion deal with variations on the same,

catastrophic theme presented here. The

directly opposing holdings in Tippecanoe

and Acton leave public school officials

in need of guidance on the standard to be

imposed where, as here, a serious drug

and classroom discipline problem requires

random searches. This Court would do a

great service by addressing the unre-

solved issue in TLO: the validity of

random testing in public schools in the

absence of individualized suspicion.

The Ninth Circuit mentioned TLO, but

did not pay heed to the requirement of

TLO that there be an “easing” of Fourth

Amendment restrictions and a "degree of

flexibility" in the school setting. 23

F.3d at 1522, 1525 (Pet. App. A at 35a-

36a and 52a-53a). The Ninth’Circuit in-

stead held the school district here to

36

exactly the same, “compelling governmen-

tal interest" standard this Court re-

quired for random drug testing in the

non-school settings presented in Skin-

ner v. Railway Labor Executives’ Ass'n.,

489 U.S. 602, 617 (1989) and National

Treasury Employees Union v. Von Raab, 489

U.S. 656 (1989), 23 F.2d at 1526 (Pet.

App. A at 57a-59a). TLO authorizes a

more flexible standard for searches in

schools than for searches in non-school

settings.’ The Ninth Circuit ruled out

'S As the district court concluded on the

basis of TLO:

Although the types and magni-

tude of safety and security concerns

addressed in Skinner and Von Raab

differ from those faced by students,

teachers and coaches who participate

in middle and high school athletic

programs, courts have acknowledged

that the public school is a unique

setting in which the constraints of

the Fourth Amendment are "re-

laxed." . . . Thus, although student

athletes who use drugs do not pose

the magnitude of a threat to society

that, say, an intoxicated air traffic

controller might, the fact that the

eon ATA

tae

i ed ee ee Pe Tae ee ee ee were

elie NR kN of le m1 Ral SB

37

such a flexible standard that accounts

for the specific problems and concerns of

the school setting. In so doing, the

Ninth Circuit denied those school offi-

cials the "degree of flexibility" this

Court has recognized is necessary to

maintain security, order and an environ-

ment conducive to education in the

schools. 469 U.S. at 339-340.

That is patently unfair to a school

administration such as the one in Verno-

nia which was "at its wits end." 796 F.

Supp. at 1357 (Pet. App. B at 85a). The

job of school officials is to educate the

children who are their students. Educa-

searches take place within the school

setting, as part of a program de-

signed to maintain discipline, en-

force athletic program regulations,

and protect the safety of student

athletes, is a significant factor

that must weigh heavily in any bal-

ancing process.

796 F. Supp. at 1361 (Pet. App. B at 102a-105a).

38

tion cannot occur where, as the district

court found here, disciplinary problems

are “epidemic" and mass expulsions seem

the only reasonable alternative to drug

testing. Id., (Pet. App. B at 85a-86a).

This Court should specifically consider

the issue of suspicionless drug testing

in schools in light of its holding in

TLO.

3. Educating Children in an Envi-

ronment Free From Drugs, Excessive

Discipline Problems and a Heightened

Risk of Physical Injury Justifies

Urinalysis Drug Testing of student

Athletes.

As noted above, given the holding in

TLO, it is not at all clear that the Dis-

trict was required to show a "compelling

governmental interest" to justify its

drug testing program. But even if such a

showing were required, the Ninth Circuit

erred in holding that school officials do

not have a compelling governmental inter-

_ ow Te ) ee

39

est in dealing with an epidemic of drug

use and discipline problems like that

presented in the Vernonia schools. In

his concurring opinion in TLO, Justice

Powell, joined by Justice O'Connor, rec-

ognized that a state has a "compelling

interest" in educating and training its

young people:

The primary duty of the school

officials and teachers, as the

Court states, is the education

and training of young people.

A State has a compelling inter-

est in assuring that the

schools meet this responsibili-

ty. Without first establishing

discipline and maintaining or-

der, teachers cannot begin to

educate their students. And

apart from education, the

school has the obligation to

protect pupils from mistreat-

ment by other children, and

also to protect teachers them-

selves from violence by the few

students whose conduct in re-

cent years has prompted nation-

al concern. For me, it would

be unreasonable and at odds

with history to argue that the

full panoply of constitutional

rules applies with the same

40

force and effect in the school-

house as it does in the en-

forcement of criminal laws.

469 U.S. at 350 (Powell, J., concurring)

(footnote omitted). Similarly, Justice

Blackmun, in his concurrence, noted that:

Education “is perhaps the most

important function" of govern-

ment, Brown v. Board of Educa-

tion, 347 U.S. 483, 493, and

government has a heightened

obligation to safeguard stu-

dents whom it compels to attend

schools.

469 U.S. at 353 (Blackmun, J., concur-

ring).

The Ninth Circuit nevertheless re-

jected the argument that the District's

interest was sufficiently "compelling" to

justify drug testing. 23 F.3d at 1526

(Pet. App. A at 57a-59a). The Ninth Cir-

cuit acknowledged the tragedy of drug

usage by students:

Having uncaring, disrespectful,

drug impaired children in our

schools is tragic. Having them

_

41

anywhere is equally tragic. In

fact, it is tragic to have

adults of that type in our so-

ciety. It is widely conceded

that what drug usage has done

to the fabric of our society is

a tragedy of national propor-

tions.

23 F.3d at 1526 (Pet. App. A at 57a-58a).

But the Ninth Circuit apparently did not

believe that the conditions facing the

Vernonia school administration were

"tragic" enough to justify the solution

the District was driven to impose. Ac-

cording to the Ninth Circuit,

suspicionless drug testing requires,

"some additional horrible event, some

terrible threat to society that can flow

from the presence of drugs - some shoot-

ing, some explosion, some crash of train,

truck, or aircraft, or some breach of top

secret national security." 23 F.3d at

1526 (Pet. App. A at 58a).

In other words, the Ninth Circuit

42

concluded that the risk of someone being

shot or involved in a train crash is of a

greater magnitude than the risk that a

child participating in high school or

middle school athletics will be seriously

injured on the playing field as a result

of drug use, or that a whole school, fol-

lowing the lead of student athletes, will

suffer from an "epidemic" of drug abuse

and disciplinary problems. The shootings

and train crashes which the Ninth Circuit

said justify drug testing may, at first

glance, seem more dramatic than the trag-

edy that faced the teachers and adminis-

trators in the Vernonia schools. But

that is deceptive.

The situation presented to the

teachers and administrators in Vernonia,

had it not been promptly remedied, would

have had a profound, negative effect on

43

every student in the Vernonia public

schools. It is obvious that education

cannot occur in an environment poisoned

by a significant number of children abus-

ing drugs. It is equally obvious that

school officials cannot preserve the

safety of students playing sports under

the influence of drugs. As Justice

Blackmun noted in his concurrence in TLO,

government has a “heightened obligation

to safeguard" these very students.

469 U.S. at 353.'® Public school offi-

'© Petitioner recognizes that this Court

recently denied the petition for writ of certio-

rari in University of Colorado v. Derdeyn, 863

P.2d 929 (Colo. 1993), cert. denied _ U.S. __,

114 S. Ct. 1646 (1994). That case presented the

issue of whether the University of Colorado's

random, suspicionless drug testing of college

athletes violated the Fourth Amendment to the

United States Constitution. 863 P.2d at 930.

But the instant case is readily distinguishable

from Derdeyn. Respondents’ ward was a 12-year-

old grade school student, not an adult intercol-

legiate athlete at a major university. The Dis-

trict is charged with protecting its young stu-

dents in a way that a major university for adult

students is not. There is also an inculcative

role which society has assigned to our grade

schools and high schools, which is not expected

44

cials dedicated to educating and protect-

ing students should not be left without

the tools available to accomplish the

crucial job our society has assigned to

them. This Court should establish a na-

tional standard for drug testing in

schools.

of a major university. The duty of establishing

discipline, maintaining order, and protecting and

nurturing students is far greater in middle

schools and high schools than in colleges.

The district court in the instant case

pointed out that Derdeyn involved students who

have, for the most part, reached the age of

adulthood, and then distinguished Derdeyn as

follows:

University programs are far less

structured, class attendance is vol-

untary and discipline is largely left

to the students. I also note that

the role of an athletic program on a

large University is far different

than that of a rural middle school or

high school with limited alternative

activities. 796 F. Supp. at 1363-64,

n. 7 (Pet. App. B at 118a).

Derdeyn is also distinguishable because

there was no evidence in that case of actual drug

problems or drug related injuries among the

University's athletes. See, University of Colo-

rado v. Derdeyn, 863 P2d at 933.

45

CONCLUSION

The petition for writ of certiorari

should be granted.

Dated: September 28, 1994.

Respec. fully submitted,

TIMOTHY R. VOLPERT

Counsel of Record

DAVIS WRIGHT TREMAINE

2300 First Interstate Tower

1300 S.W. Fifth Avenue

Portland, Oregon 97201

(503) 241-2300

COUNSEL FOR PETITIONER

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

No. 92-35520

WAYNE ACTON and JUDY ACTON, guardians ad

litem for JAMES ACTON,

Plaintiffs-Appellants,

Vv.

VERNONIA SCHOOL DISTRICT 47J,

Defendant-Appellee.

Argued and Submitted November 3, 1993

Decided May 5, 1994

[23 F.2d 1514]

Before: Stephen Reinhardt, Melvin

Brunetti, and Ferdinand F. Fernandez,

Circuit Judges.

Opinion by Judge Fernandez; Concurrence

by Judge Reinhardt. |

FERNANDEZ, Circuit Judge:

Wayne and Judy Acton, guardians ad

litem for James Acton, appeal the

district court's judgment at trial that

the Vernonia School District's mandatory

random drug testing policy for

2a

participants in interscholastic athletics

("the Policy") does not violate James's

right to be free from unreasonable

searches, under either Article I, Section

9 of the Oregon Constitution or the

Fourth Amendment. We reverse.

BACKGROUND

The District runs two schools,

Washington Grade School and Vernonia High

School. Several teachers in the District

testified that prior to 1985 drugs and

alcohol were used by only a small group

of students and that there were very few

discipline problems in the schools.

Between 1985 and 1989, however, teachers

and administrators began to perceive a

marked increase in disciplinary problems,

student drug use, and the glorification

of drug culture. Athletic coaches

noticed an increase in the number and

3a

severity of injuries, which they

attributed to greater drug use. They

testified to a number of incidents where

students had, or were suspected to have,

used drugs. They personally saw some of

the problems, but were told of others.

Some of the involved students were

athletes and others were not. Among

other things, one teacher had often seen

students smoking marijuana during the

school day at a coffee shop across the

street from the high school. An English

teacher received several essays

describing and glorying in scenes of

student drug and alcohol use. At one

wrestling meet a boy was seriously

injured when he failed to perform a basic

well-drilled safety maneuver. The

student's hotel room smelled of marijuana

when the coach later went to check on his

4a

condition. Parents reported that they

had heard of drug use on a football trip,

and students confronted by the principal

admitted that they had used marijuana.

Students even formed rowdy groups. One

group called itself the "Big Elk." It was

composed largely of athletes. Another

group called itself the "Drug Cartel."

By 1989, Mr. Aultman, the principal

of the grade school, and his faculty felt

that they had to do something to combat

the growing drug problem. They had

attempted drug education programs and

even a drug-sniffing dog, but they

noticed no decrease in disciplinary

problems or in drug use. They decided to

institute the Policy.

The Policy was unanimously adopted

by the Vernonia School Board in the fall

of 1989. By its terms, all students who

5a

want to participate in interscholastic

athletics are required to sign a form

authorizing the District to perform a

drug test on a urine sample provided by

the student. All interscholastic

student-athletes are tested at the

beginning of each athletic season in

which they compete. During the season,

student athietes are tested at random on

a weekly basis.

Boys and girls are tested in

different areas of the school. Girls go

to the office of Ms. King, the director

of girls' athletics, and boys go to the

boys' locker room. Each student fills

out part of a specimen control form,

which assigns a number to the specimen.

The faculty monitor then gives the

student a testing packet, which contains

a cup and a vial. Boys go to the urinals

6a

in the boys' locker room bathroom and

produce a specimen in the cup. A male

faculty member, either Mr. Aultman or Mr.

Svenson, a coach, is seated on a bench

some 12 to 15 feet away while the boy

urinates. The student remains fully

clothed with his back to the monitor. At

no time does the monitor have a view of

the student's genitals. Aultman and

Svenson testified that they do not always

watch the student while he produces the

specimen, but they generally listen for

the normal sounds of urination. After

the student produces the specimen, he

returns the cup to the monitor who checks

it for temperature and obvious signs of

tampering. The monitor pours the

specimen into the vial. The procedure

for girls differs only slightly.

7a

Samples are sent to Metrolab, a

private company that specializes in drug

testing by urinalysis. Security

procedures protect the chain of

possession and the identity of the

student. The tests screen for

creatinine, amphetamines, cocaine

marijuana and LSD. They are

approximately 99.94% accurate. Test

results are reported by telephone to

authorized District personnel. Positive

tests are mailed to the District's

superintendent.

If a student's test returns

positive, a second test is administered

as soon as possible to confirm the

results. The District notifies the

student's parents after the second

positive test. If the second test is

negative, no disciplinary action is

8a

taken. A student who returns two

positive tests is given two options. The

student may either participate in a drug

counseling program for six weeks and

submit to weekly drug tests or accept a

suspension from the athletic program for

the remainder of the current season and

the entire following athletic season.

For the second offense, the Policy

states that a student is suspended from

participating in athletics for the

remainder of the current season and the

next athletic season, with no other

option. The third offense draws a

suspension for the remainder of the

current season and the next two athletic

seasons with no opportunity to reduce the

penalty. Any student who refuses to

submit to a drug test at any time is

suspended from the team for the remainder

9a

of the athletic season.

James was a seventh grader at

Washington Grade School during the 1991-

92 academic year. In the fall, he tried

out for the football team. At the first

practice team members were given drug

testing consent forms to sign and to have

their parents sign. James brought the

form home, but he and his parents decided

that they did not want to sign the forn.

Because James refused to consent to drug

testing, he was suspended from

interscholastic athletics for the season.

No evidence suggested that James has ever

used drugs or that the District has any

reason to suspect that he has.

James's parents brought this action

Claiming that the Policy violated James's

right to be free from unreasonable

government searches under both the Fourth

10a

Amendment of the United States

Constitution and Article I, Section 9 of

the Oregon Constitution. After a trial,

the district court rejected both claims.

Acton v. Vernonia Sch. Dist., 796 F.

Supp. 1354 (D.Or.1992) (Acton I). This

appeal ensued.

JURISDICTION AND STANDARD

OF REVIEW

The district court had jurisdiction

over the Fourth Amendment claim under 28

U.S.C. § 1331. It had supplemental

jurisdiction over the Oregon

constitutional cause of action. 28 U.S.C.

§ 1367(a). We have jurisdiction under 28

U.S.C. § 1291.

We review the district court's

findings of fact for clear error.

Fed.R.Civ.P. 52(a). "A finding is

‘clearly erroneous' when although there

is evidence to support it, the reviewing

lla

court on the entire evidence is left with

the definite and firm conviction that a

mistake has been committed." United

States v. United States Gypsum Co., 333

U.S. 364, 395, 68 S.Ct. 525, 542, 92

L.Ed. 746 (1948). Questions of federal

law are reviewed de novo, Bordallo v.

Reyes, 763 F.2d 1098, 1102 (9th

Cir.1985), as are questions of state law,

In re McLinn, 739 F.2d 1395, 1403 (9th

Cir.1984) (en banc).

DISCUSSION

The Actons assert that the District

failed to prove that there actually was a

drug problem. They say that there was no

foundation upon which to build a drug

policy. They go on to argue that even if

there were a drug problem, it did not

justify a random testing program. We

disagree with their first contention, but

12a

agree with the second one.

Before turning to a discussion of

the substantive issues, we must address

the somewhat arcane question of whether

we should decide this case on the basis

of the Oregon Constitution or on the

basis of the United States Constitution.

We have held that when the state and

federal constitutional provisions are

"coextensive," we can decide the federal

constitutional claims because that will

also decide the state constitutional

Claims. See Los Angeles County Bar

Ass'n v. Eu, 979 F.2d 697, 705 n.4 (9th

Cir.1992). However, if they are not

coextensive and the state constitution

actually gives more protection than the

federal constitution, we decide validity

under the state constitution in order to

avoid addressing federal constitutional

13a

claims unnecessarily. See, e.g., Ellis

v. City of La Mesa, 990 F.2d 1518, 1524

(9th Cir.1993); Hewitt v. Joyner, 940

F.2d 1561, 1565 (9th Cir.1991), cert.

denied, — U.S. —, 112 S.Ct. 969, 117

L.Ed.2d 134 (1992). Oregon presents us

with a variation on these themes.

The language of Article I, Section 9

of the Oregon Constitution regarding

searches and seizures is almost exactly

the same as the language of the Fourth

Amendment. To the extent the provisions

read differently, the Oregon courts have

said that the language differences are of

no consequence. See State v. Flores, 280

Or. 273, 279-81, 570 P.2d 965, 968-69

(1977). Nonetheless, Oregon insists that

its constitutional provision can give

more protection than the federal

constitution and that it sometimes does

14a

so. See State v. Caraher, 293 Or. 741,

748-50, 653 P.2d 942, 946-47 (1982); see

also State v. Florance, 270 Or. 169, 182-

83, 527 P.2d 1202, 1208-09 (1974),

overruled on other grounds by Caraher,

293 Or. at 748-50, 653 P.2d at 946-47.

For example, in Nelson v. Lane County,

304 Or. 97, 743 P.2d 692 (1987) (Nelson

II) the court found, in effect, that a

roadblock stop violated the Oregon

Constitution due to a lack of proper

authorization, despite the fact that it

would not violate the Fourth Amendment.

Id. at 101-11, 743 P.2d at 694-700. We

say “in effect" because it is not

entirely clear whether the authorization

requirement is a matter of general law

rather than a matter of Oregon

constitutional analysis. In any event,

it must be taken into account when the

15a

Oregon constitutional provision is

analyzed. Furthermore, Oregon courts, or

judges on those courts, have gone out of

their way to insist that the federal

constitutional analysis does not control

Oregon search and seizure analysis. See,

e.g., Nelson II, 304 Or. at 101-02, 743

P.2d at 694; State v. Boyanovsky, 304 Or.

131, 137, 743 P.2d 711, 714 (1987)

(Gillette, J., specially concurring) ;

Caraher, 293 Or. at 748-52, 653 P.2d at

946-48; Nelson v. Lane County, 79 Or.App.

753, 760, 720 P.2d 1291, 1296 (1986)

(Nelson I);' see also State v. Ainsworth,

310 Or. 613, 619 n.8, 801 P.2d 749, 752

n.8 (1990) (aerial search questions for

’ This case was affirmed on other

grounds in Nelson II. Thus, this iteration of

the case is probably not controlling precedent.

See Rogers v. Saylor, 88 Or.App. 480, 483-84, 746

P.2d 718, 720 (1987), rev’d on other grounds, 306

Or. 267, 760 P.2d 232 (1988).

16a

Oregon purposes are different from what

they are for federal purposes. The

result, however, appears to be the same).

We are therefore constrained, in the

first instance, to decide this case on

Oregon constitutional grounds. That,

however, is no mean task. Oregon law

regarding random searches in general is

not entirely clear. More importantly, as

far as we can ascertain, the Oregon

courts have never decided a random drug

testing case. We are, therefore, left

without a compass that Clearly points us

in the right direction unless we use a

federal compass. We can say with

absolute confidence that the Oregon

Constitution will not be construed to

offer less protection than the Fourth

Amendment. It is highly likely that it

will be found to offer more protection.

17a

We also take note of the fact that the

Oregon Supreme Court itself has often

decided cases by declaring that "although

at liberty to adopt a stricter

test," it will apply Fourth Amendment

analysis because that is, at least, a

floor. State v. Tourtillott, 289 Or.

845, 854, 618 P.2d 423, 427 (1980), cert.

denied, 451 U.S. 972, 101 S.Ct. 2051, 68

L.Ed.2d 352 (1981). Having done that,

the court has then gone on to state that

a particular search violates neither the

Fourth Amendment nor Article I, Section

9. Id. at 859, 618 P.2d at 430; see also

Flores, 280 Or. at 277-82, 570 P.2d at

967-70.

Therefore, in our ensuing discussion

we will, to the extent possible, refer to

the guideposts set out for us by the

Oregon courts. But, particularly in the

18a

specific area of urine testing—the core

issue in this case-we will unabashedly

refer to federal law and decide the case

based upon the Fourth Amendment,

confident in our view that Oregon itself

would do no less.

I. Evidentiary Questions

The Actons make two basic challenges

to the district court's finding that a

drug problem existed. They argue that

much of the evidence upon which the court

relied was inadmissible hearsay. Insofar

as the court relied on admissible

evidence, they contend that it shows only

that the faculty in the District believed

that there was a drug problem, not that

there actually was one.

The district court found that the

Policy is limited to the one activity

that is likely to have the greatest

19a

impact "on the drug and alcohol abuse

problem[(,)" Acton I, 796 F. Supp. at

1363, that there was "ample evidence in

the record to support the [Djistrict's

claim that alcohol and drug use were the

primary causes of disruptions and

disciplinary problems during school

hours," id. at 1367, and that “coaches

have observed athletes perform poorly and

unsafely while under the influence of

some intoxicant." Id. at 1363.

The underlying evidence need not be

extensively reported here. We, however,

have read the record. It demonstrates

that both the administrators and the

faculty beheld instances of drug use and

glorification. They also perceived

actions of athletes and others that were

so far out of the norm that use of drugs

was a logical inference. Besides that,

20a

they were told of incidents by others who

were concerned and who had no reason to

lie. Perhaps dubbing this a "problem" is

a matter of perception or definition.

What appears to be a problem in one place

might seem to be a minor annoyance

elsewhere. Suffice it to say that drug

use appeared to be more extreme than it

should be and even seemed to be growing.

It was sufficient to give them concern

for the future of the youths they had

responsibility for. Based upon the

evidence, we cannot say that the concern

was unreasonable. Similarly, we cannot

say that the district court committed

clear error in finding the facts.

However, we reemphasize that what

the evidence shows, and all it shows, is

that there was some drug usage in the

schools, that student discipline had

21a

declined, that athletes were involved,

and that there was reason to believe that

one athlete had suffered an injury

because of drug usage and others may

have. Moreover, administrators,

teachers, parents, and ultimately the

school board were deeply concerned and

they developed the Policy in order to

deal with the "problem."

II. Constitutional Analysis

Article I, Section 9 of the Oregon

Constitution provides:

No law shall violate the right

of the people to be secure in

their persons, houses, papers,

and effects, against

unreasonable search, or

seizure; 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.

As we have already said and as can be

plainly seen, this phraseology is not

22a

materially different from that of the

Fourth Amendment. In Oregon, the courts

ask three questions when they are

considering an Article I, Section 9

search case: was there a search; did the

executive official have the authority to

conduct the search; and was the search

reasonable? So will we.

We first turn to the question of

whether the conduct of a government

official constitutes a "search" in the

constitutional sense. See State v.

Gerrish, 311 Or. 506, 510, 815 P.2d 1244,

1246 (1991); Ainsworth, 310 Or. at 616-

17, 801 P.2d at 750. The Oregon Supreme

Court has stated that "Article I, section

9, protects privacy and possessory

interests from unreasonable governmental

intrusion." Id. at 617, 801 P.2d at 751;

see also State v. Tanner, 304 Or. 312,

23a

319, 745 P.2d 757, 760 (1987) (“three

interests [are] protected by section 9:

privacy, property, and some sort of

a. . . right to be protected from

undignified, forcible violations of the

person") (internal quotation and citation

omitted). Any time a government inquiry

intrudes upon one of these rights, it is

an Article I, Section 9 "search." See

State v. Campbell, 306 Or. 157, 170-72,

759 P.2d 1040, 1047-49 (1988); State v.

Owens, 302 Or. 196, 206, 729 P.2d 524,

530 (1986).

Because the Oregon courts have not

decided a urine testing case, we turn to

Fourth Amendment law to decide if the

collection and testing of urine is a

search. Of course, it is. See

Skinner v. Railway Labor Executives’

Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402,

24a

1413, 103 L.Ed.2d 639 (1989). Thus, it

cannot be doubted that collection and

testing pursuant to the Policy was a

search within the meaning of Article I,

Section 9. Given the requirements of the

Fourth Amendment, it could hardly be

otherwise.

The next question is whether the

executive officials who executed the

search had authority to do so. The

Oregon Supreme Court has stated that

"the function of [Article I, Section 9)

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.’" AFSCME Local 2623 v. Department

of Corrections, 315 Or. 74, 82, 843 P.2d

409, 414 (1992) (quoting State v. Weist,

302 Or. 370, 376, 730 P.2d 26, 29

25a

(1986)). If a search is not authorized,

the court's inquiry ends. The search

violates the state constitution.

State v. Atkinson, 298 Or. 1, 8-11, 688

P.2d 832, 836-38 (1984); see Nelson II,

304 Or. at 105-06, 743 P.2d at 696-97.

Constitutionally satisfactory

authorization to search may come from one

of four sources. First, in most cases,

"“(ajbsent consent, law enforcement

officials must have a warrant to

search...." State v. Bridewell, 306 Or.

231, 235, 759 P.2d 1054, 1057 (1988). A

warrant is always sufficient

authorization to search. Next, a

warrantless search is permissible if it

falls within one of the "specifically

established and carefully delineated

exceptions to the warrant requirement,"

that is, consent, search incident to

26a

arrest, plain view, exigent

circumstances, inventory search, and

"stop and frisk." Id. Third,

authorization by a legislative enactment

that defines and limits official

authority satisfies Article I, Section 9

in some cases. AFSCME, 315 Or. at 82-83,

843 P.2d at 414. Finally, even if a

legislative grant of authority does not

sufficiently limit the scope of executive

discretion, the executive itself may

provide limits by establishing a

systematically administered program

pursuant to its statutory authority. Id.

Oregon courts analyze "criminal"

searches and “administrative" searches

differently.’ Criminal searches are only

+

7 The classification of a search

depends upon "(t)jhe purpose of the search and the

consequences that flow from it." Nelson II, 304

Or. at 104, 743 P.2d at 696. If the consequences

of noncompliance with whatever standards the

inspection is meant to uphold are noncriminal,

27a

permissible under Article I, Section 9 if

they conform with the warrant clause or

one of its recognized exceptions. Nelson

IT, 304 Or. at 104, 743 P.2d at 696. By

contrast, the warrant clause and its

exceptions do not provide the exclusive

authorizations for an administrative

search. Oregon courts have also upheld

administrative searches against Article

I, Section 9 challenge, where they have

been authorized by legislative enactments

or administered according to executive

programs that sufficiently limit official

discretion. AFSCME, 315 Or. at 82-83,

843 P.2d at 414; see State v. Boyanovsky,

304 Or. 131, 133-34, 743 P.2d 711, 712

the search is “civil, or “administrative.” By

contrast, if offenders face criminal sanctions,

the inspection implicates criminal law

enforcement purposes. Id. A search in the

Criminal context can be administrative in nature.

See Atkinson, 298 Or. at 10-11, 688 P.2d at 837-

38 (police inventory search).

28a

(1987). The district court found that

the Policy was properly authorized by a

politically accountable body when it was

adopted by a vote of the Board. Acton I,

796 F. Supp. at 1367. That finding is

not challenged on appeal.

The third question is whether the

search was "reasonable." Here again the

analysis proceeds differently for

criminal and administrative searches.

Criminal searches are reasonable only if

authorized by a warrant or an exception

to the warrant requirement. No Oregon

court has upheld a criminal search

without finding that the executive

official had a reasonable individualized

suspicion that evidence of wrongdoing

would be found on the person or at the

place being searched. Nelson II, 304 Or.

at 101, 743 P.2d at 694 ("searches for

29a

evidence to be used in a criminal

prosecution, conducted without a warrant

or suspicion of wrongdoing violate

Article I, section 9"); see also

Boyanovsky, 304 Or. at 133-34, 743 P.2d

at 712 (1987).

Administrative searches conducted

pursuant to a warrant or an exception to

the warrant requirement are also

reasonable. An administrative search

satisfies the reasonableness inquiry if

its procedures require officers to have

an individualized suspicion of wrongdoing

before conducting a search. See AFSCME,

315 Or. at 83, 843 P.2d at 414. A

suspicionless administrative search may

also withstand a state constitutional

challenge.

In Tourtillott, the Oregon Supreme

Court held that a fixed game checkpoint,

30a

at which police stop all cars travelling

on certain roads to check for hunting

licenses, does not violate Article I,

Section 9 even though police do not have

an individualized suspicion that they

will discover evidence of wrongdoing in

any particular car. 289 Or. at 859, 618

P.2d at 430. In reaching its decision,

the court relied upon an analysis of

federal law. In particular, it referred

to Delaware v. Prouse, 440 U.S. 648, 99

S.Ct. 1391, 59 L.Ed.2d 660 (1979). In

Prouse, the Court developed a four part

analysis for determining the

reasonableness of random, suspicionless

searches and seizures. As it said, "the

permissibility of a particular law

enforcement practice is judged by

balancing its intrusion on the

individual's Fourth Amendment interests

31a

against its promotion of legitimate

governmental interests." Id. at 654, 99

S.Ct. at 1396. From Prouse, four

considerations, no one of which is

determinative, can be distilled: (1) the

importance of the governmental interests;

(2) the degree of physical and

psychological intrusion on the citizen's

rights; (3) the amount of discretion the

procedure vests in individual officials;

and (4) the efficiency of the procedure -

that is how well it contributes to the

reaching of its purported goals and how

necessary it is. Id. at 653-63, 99 S. Ct.

1396-1401. These are the factors that

the Oregon Supreme Court identified and

adopted. See Tourtillott, 289 Or. at

864, 618 P.2d at 433. That court then

determined that a random search procedure

which passed muster under the factors

32a

“was not unreasonable under either the

Fourth Amendment of the United States

Constitution or Article I, section 9 of

the Oregon Constitution." Id. at 859, 618

P.2d at 430.

It has since been suggested that the

Tourtillott analysis was really made

under the Fourth Amendment and was not a

complete explication of the reach of

Article I, Section 9. See, e.g. Nelson

II, 304 Or. at 101-02, 743 P.2d at 694.

Nonetheless, the Oregon Supreme Court has

not substituted a new test, so if some

nuance remains to be added to the Prouse

and Tourtillott analysis, we are not

aware of what that is. At any rate, we

need not enter the lists on that issue.

If Tourtillott does set forth the proper

test under the Oregon Constitution, as it

seems to, we must apply what amounts to

33a

the Prouse analysis. If it does not,

Oregon law is unclear, and we will turn

to the federal constitution for ed

There we find the Prouse test. Again,

that will at least establish the floor,

regardless of where Oregon may later

discover the ceiling.

It is clear that the Policy

authorizes administrative, noc criminal,

searches. It is equally clear that the

school administrators do not obtain

search warrants and do not claim that

administration of the tests fits into one

of the exceptions to the warrant

requirement. Furthermore, the District

concedes that, as is the case with most

students who are tested, it had no reason

to suspect that James has ever taken

drugs. Testing is totally suspicionless.

As a suspicionless, administrative search

34a

program, the Policy can only withstand

Article I, Section 9 challenge if the

drug tests that it authorizes are

reasonable, under the four factor

analysis outlined in Prouse and

Tourtillott.

Two factors weigh in favor of the

Policy's constitutionality. The Policy

contributed to reaching the desired goal.

Every teacher who testified had noticed

an improvement in discipline, a reduction

in disciplinary referrals, and a decrease

in drug use and the glorification of drug

culture since the Policy was implemented.

Thus, the efficiency factor weighs

Slightly in favor of the Policy. We say

Slightly because the exact nature of the

goal is not entirely clear. If the goal

was to avoid athletic injuries, testing

of athletes was certainly a good way to

35a

approach that problem. If the goal was

to reduce drug use in the student body in

general, testing athletes seems to be a

considerably more roundabout way of

reaching that goal. Furthermore, if, as

the testimony showed, teachers and

administrators could detect behavior and

physical problems that rather clearly

appeared to be drug related, a program

designed to target those who displayed

the problems might be more efficient,

although it might also present

difficulties of its own when it came to

discretionary enforcement. Of course,

the Supreme Court has recognized that a

somewhat relaxed standard of suspicion

may well justify searches of students.

New Jersey v. T.L.O., 469 U.S. 325, 341-

42, 105 S.Ct. 733, 743, 83 L.Ed.2d 720

(1985). That does not mean that the

36a

Court decided that no form of

individualized suspicion is required in

schools. Id. at 342 n.8, 105 S.Ct. at

743 n.8. It does overcome some of the

difficulty that is often mentioned when

individualized testing is suggested.

Certainly the Policy seems to have helped

the District realize its goals of making

the school run more smoothly. Its use

and a return to normalcy coincided.

Whether random testing was necessary to

reach that goal is somewhat more

questionable. However, on balance we

believe the efficiency factor favors the

District's position.

Moreover, neither party contests the

district court's finding that drug

testing under the Policy is completely

Testing is initially required of

random.

all athletes and then conducted on a

er sateen

37a

lottery basis throughout the athletic

season. It vests no discretion in any

District officials. This favors the

Policy. That leaves importance and

intrusiveness. In this case they are

dispositive. They dispose of the Policy.

In Tourtillott, the Oregon Supreme

Court held that enforcing hunting and

fishing laws was a sufficient state

interest to justify a checkpoint at which

police ask drivers for their hunting

licenses, or if none was presented, for

their driving licenses and automobile

registrations. 289 Or. at 864-67, 618

P.2d at 433-34. The District contends

that if the state's interest in freeing

its forests and streams from unlicensed

hunters and fisherman is important enough

to justify a random search procedure, so

is its interest in freeing its schools

38a

from the pernicious effects of illegal

drugs. We do agree that keeping children

away from drugs is at least as important

as keeping unlicensed hunters away from

the forests, but we must reject the

District's argument. The two situations

are not at all comparable.

Tourtillott merely approved of a

checkpoint stop. In 1976, the United

States Supreme Court approved fixed

immigration checkpoints in Texas and

Southern California. United States v.

Martinez-Fuerte, 428 U.S. 543, 96 S.Ct.

3074, 49 L.Ed.2d 1116 (1976). Because

the level of intrusion on privacy was so

limited, the Court only required the

government to justify the policy with a

legitimate interest. Id. at 561-62, 96

S.Ct. at 3084-85. The desire to exclude

illegal aliens was sufficient.

39a

As we have already said, the Oregon

appellate courts have never decided a

random drug testing case. The federal

courts have. When confronted with a

random drug testing case, the Supreme

Court did not point to the kind of

governmental interest—legitimatethat it

found to be sufficient in its earlier

checkpoint case. It found a compelling

government interest. Skinner, 489 U.S.

at 628-33, 109 S.Ct. at 1419-22. Oregon

would, no doubt, do the same when

deciding the case under Article I,

Section 9. But left without explicit

guidance from the Oregon Courts, we will

turn to a Fourth Amendment analysis.

That analysis will not only uncover the

legal principies, but will also flesh

them out by some consideration of the

facts of the relevant cases. We will

40a

also consider the private and

governmental interests together. While

they are separate elements, they are

intertwined in any analysis to a very

high degree, for they are not separate

little weights to be put on a chemist's

balance. Rather, different mixtures of

the values they represent will yield

different results, just as different

mixtures of chemicals will yield

different reactions.

We start with Skinner, where the

Court emphasized the need to balance

governmental and privacy interests in any

Fourth Amendment analysis. Id. at 619,

109 S.Ct. at 1414. In Skinner, the Court

referred to the number of train accidents

which had occurred over the last decade

and which were drug or alcohol related.

Id. at 607, 109 S.Ct. at 1408. It went

ee ni er Se oe ee vos

WSs ed

ee eee

i et al a I te tt em Ml i me

a

4la

on to mention the injuries and property

loss that had resulted; there had even

been 25 fatalities. Id. The Court said:

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. We believe

this is true of the intrusions

in question here.

Id. at 624, 109 S.Ct. at 1417.

The Court emphasized that as a

general rule "the collection and testing

of urine intrudes upon expectations of

privacy that society has long recognized

as reasonable...." Id. at 617, 109 S.Ct.

at 1413. As it said:

There are few activities in our

society more personal or

private than the passing of

urine. Most people describe it

by euphemisms if they talk

about it at all. It isa

42a

function traditionally

performed without public

observation; indeed, its

performance in public is

generally prohibited by law as

well as social custon.

Id. (quotation and citation omitted.)

However, the Court found that in the

pervasively regulated railroad industry,

the employees' expectations of privacy

were diminished. While they might not be

exactly minimal, they were at a rather

low ebb because the employees in question

had been the principal focus of

regulatory concern for a very long time.

Id. at 627-28, 109 S.Ct. at 1418-19.

Against this rather minimal employee

interest the Court set what it described

as the compelling interest of the

government in testing without a showing

of individualized suspicion. It

explained that determination as follows:

"Employees subject to the tests discharge

7

;

|

|

|

§

|

7

,

43a

duties fraught with such risks of injury

to others that even a momentary lapse of

attention can have disastrous

conseguences." Id. at 628, 109 S.Ct. at

1419. Given the minimal employee

interest and the compelling governmental

interest, the Court upheld the drug

testing program.

In National Treasury Employees

Union v. Von Raab, 489 U.S. 656, 109

S.Ct. 1384, 103 L.Ed.2d 685 (1989), the

Court was presented with a somewhat

different kind of safety concern. There

it dealt with certain groups of employees

in the Customs Service. Those were

employees who were directly involved in

drug interdiction or enforcement, those

who carried firearms, and those who

The Court

handled classified material.

determined that testing the first two of

44a

these groups was valid; we will discuss

the third later in this opinion.

As to the first two areas of

coverage, the Court declared that

employees involved in the interdiction of

drugs and those who carry firearms have a

diminished expectation of privacy

because, considering the nature of their

duties, they “reasonably should expect

effective inquiry into their fitness and

probity." Id. at 672, 109 S.Ct. at 1394.

They should expect that reasonable tests

will be applied to them.

To some extent the discussion of

their expectations was a reiteration of

the governmental interest discussion in

which the Court declared that those who

interdicted drugs are “our Nation's first

line of defense against one of the

greatest problems affecting the health

45a

and welfare of our population." Id. at

668, 109 S.Ct. at 1392. As such, they

are subject to trickery, bribes,

temptation, and extreme physical danger.

Thus they must be "physically fit, and

have unimpeachable integrity and

judgment." Id. at 670, 109 S.Ct. at 1393.

Turning to employees who carry guns, the

Court said that those "who may use deadly

force ‘plainly discharge duties fraught

with such risks of injury to others that

even a momentary lapse of attention can

have disastrous consequences.’" Id.

(citation omitted) . Given that analysis

of interests, the Court, not

surprisingly, determined that the

suspicionless testing of those employees

was proper.

Our cases have approved the

expansion of drug testing to still more

46a

employees, but that has always been in

the context of truly serious concerns of

a safety nature. In AFGE Local 1533 v.

Cheney, 944 F.2d 503 (9th Cir.1991), for

example, we pointed out that people who

are required to hold top secret security

clearances are in a position to obtain

information “the unauthorized disclosure

of which reasonably could be expected to

cause exceptionally grave damage to the

national-security." Id. at 504 (internal

quotation omitted). Those individuals,

we said, have positions which subject

them to regular close review of their

personal lives, as a result of which

their expectations of privacy are much

attenuated. Id. at 507. The compelling

nature of the government's interest, on

the other hand, is found in the gravity

of the risk. It takes no hierophant to

47a

see that the very safety of this country

and its citizens can be seriously

compromised by a drug-afflicted person

with access to top secret materials. See

also Department of the Navy v. Egan, 484

U.S. 518, 527-28, 108 S.Ct. 818, 824, 98

L.Ed.2d 918 (1988).

Our other cases are to the same

effect. See IBEW, Local 1245 v. United

States Nuclear Regulatory Commln, 966

F.2d 521 (9th Cir.1992) (IBEW v. NRC)

(diminished expectation of privacy

conceded, and the danger of catastrophic

harm in a nuclear accident is

compelling); International Bhd. of

Teamsters v. Department of Transp., 932

F.2d 1292 (9th Cir.1991) (privacy

expectations of truck drivers are

markedly reduced, and given the size of

commercial trucks and the possible danger

48a

from their loads, the government's

interest is compelling); IBEW, Local

1245 v. Skinner, 913 F.2d 1454 (9th

Cir.1990) (the privacy interest of gas

pipeline workers is diminished in this

regulated industry, and the terrible

accidents that can occur show a

compelling government interest) ;

Bluestein v. Skinner, 908 F.2d 451 (9th

Cir.1990) (diminished expectation of

privacy conceded, and the interest of the

government in preventing air crash

disasters is compelling), cert. denied,

498 U.S. 1083, 111 S.Ct. 954, 112 L.Ed.2d

1042 (1991).

The nature of the Fourth Amendment

analysis is further illuminated by the

Court's comments on those who cannot

necessarily be covered by random testing.

In Von Raab, for example, although the

49a

Court approved testing of front-line and

gun-toting workers, it did not as readily

accept the notion that for security

reasons a compelling government interest

justifies the testing of all accountants,

animal caretakers, attorneys, baggage

clerks, coop students, electrical

equipment repairers, mail clerks and

messengers in the Customs Department. 489

U.S. at 678, 109 S.Ct. at 1397. The

Court returned the case for further

findings regarding them. Similarly, in

IBEW v. NRC, in a concurring opinion

joined by two judges of the three-judge

panel, we expressed serious doubt that

the danger of nuclear accidents justified

drug testing of all clerical workers. 966

F.2d at 528-29. See also Taylor v.

O'Grady, 888 F.2d 1189, 1199 (7th

Cir.1989) (while prison employees in

50a

direct contact with prisoners can be

tested, other prison personnel cannot be

- “generalized interest in the integrity

of the work force" is not enough);

Harmon v. Thornburgh, 278 U.S. App. D.C.

382, 878 F.2d 484, 492-93 (D.C.Cir.1989)

(while attorneys with access to top

secret information can be tested, other

attorneys in the DOJ who merely deal with

grand juries and prosecute criminal cases

cannot be, as a group), cert. denied, 493

U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949

(1990).

It can, therefore, be readily seen

that although the courts have been

willing—perhaps too willing—to allow

employee drug testing, they have done so

in cases fraught with danger where the

interests of the person to be tested were

attenuated. We must consider the

51a

efficacy of the Policy with these

principles in mind.

As we turn to our analysis we must

be ever mindful that "students [do not]

shed their constitutional rights... at

the schoolhouse gate." Tinker v. Des

Moines Indep. Community Sch. Dist., 393

U.S. 503, 506, 89 S.Ct. 733, 736, 21

L.Ed.2d 731 (1969). School boards have:

important, delicate, and highly

discretionary functions, but

none that they may not perform

within the limits of the Bill

of Rights. That they are

educating the young for

citizenship is reason for

scrupulous protection of

Constitutional freedoms of the

individual, if we are not to

strangle the free mind at its

source and teach youth to

discount important principles

of our government as mere

platitudes.

West Virginia State Bd. of Educ. v.

Barnette, 319 U.S. 624, 637, 63 S.Ct.

1178, 1185, 87 L.Ed. 1628 (1943).

52a

Children are compelled to attend

school, but nothing suggests that they

lose their right to privacy in their

excretory functions when they do so.

While they must attend classes and follow

school rules, that does not indicate they

have given up their basic privacy rights.

It is true, of course, that after a

complete application of the balancing

test, the Supreme Court did allow

individualized searches of students based

upon a somewhat lessened standard of

suspicion than that which applies

elsewhere. But the Court was careful to

say that "the situation is not so dire

that students in the schools may claim no

legitimate expectations of privacy."

T.L.0O., 469 U.S. at 338, 105 S.Ct. at

741. In fact, the Court suggested,

without holding, that a student's

53a

interest in privacy is not of the minimal

kind that had been found to justify

random searches in the past. Id. at 342

n.-8, 105 S.Ct. at 743 n.8. There simply

is no sufficient basis for saying that

the privacy interests of students are

much less robust than the interests of

people in general.

Nor can we say that the privacy

interests of athletes are substantially

lower than those of students in general.

The District's argument that student-

athletes have a reduced expectation of

privacy because of their participation in

an activity with many rules analogizes to

inapposite cases. Training rules and

grade point average requirements are not

the sort of extensive government

regulation that has been found to

diminish the expectation of privacy of

54a

workers in high risk industries or high

security areas of the government. See,

e.g., IBEW v. NRC, 966 F.2d at 525

(workers at nuclear power plants); AFGE,

944 F.2d at 507 (Navy civilian employees

who hold "Top Secret with Access"

security clearances); Bluestein, 908 F.2d

at 456 n.7 (airline workers). High

school athletes do not go through

extensive background checks in order to

join their teams. Nor, in general, do

their lives or the lives of others depend

upon their ability to perform their roles

on the football team. Participation in

interscholastic sports does not

significantly diminish a high school

athlete's reasonable expectation that he

will not be compelled to submit to

suspicionless drug testing by urinalysis.

Appellee's contention that conditions in

55a

the school locker room reduce an

athlete's expectation of privacy is

Similarly unavailing. Normal locker room

Or rest room activities are a far cry

from having an authority figure watch,

listen to, and gather the results of

one's urination.

We recognize that, in some sense,

students, participation in athletics is

"voluntary." That, too, is insufficient

to reduce their privacy interests to a

minimal level. Participation in

athletics is obviously highly desirable

and encouraged, as this record shows.

The fact is that parents wish to have

their children obtain the physical and

mental benefits of organized sports.

That, too, is part of the educational

process; part of what tax dollars pay

for. While separating mind and body

56a

might be a fine idea for scientific

purposes, we have learned that they are

inextricably intertwined. Ina word,

what benefits one, benefits the other.

Children, students, do not have to

surrender their right to privacy in order

to secure their right to participate in

athletics. Athletes' right to privacy

also remains robust.

But the strength of the government's

interests must be considered. Those

interests themselves are not minimal.

The District wishes to prevent

unnecessary athletic injuries, to reduce

the attraction of drugs among other

students, and to improve discipline.

Certainly those are worthy goals.

However, worthy as they are, they suffer

by comparison to the kinds of dangers

that have existed when random testing has

57a

been approved. The extreme dangers and

hazards involved in the prior cases are

simply not present here. The prospect

that an athlete might hurt himself or a

competitor is real enough, but it is not

a risk of the same magnitude as an

airplane or train wreck, or a gas

pipeline or nuclear power plant disaster.

The concern that our children will fail

to acquire knowledge or respect is also

real enough, but it, too, does not reach

the level of the concerns that have

permitted suspicionless testing. All of

this is true as a general proposition,

and nothing in this record shows a

Situation or problem so exacerbated as to

take it beyond the generality.

Having uncaring, disrespectful,

drug-impaired children in our schools is

tragic. Having them anywhere is equally

a

58a

tragic. In fact, it is tragic to have

adults of that type in our society. It

is widely conceded that what drug usage

has done to the fabric of our society is

a tragedy of national proportions. We do

not disagree with that. However, it is

not the type of potential disaster that

has caused the Court or us to find a

governmental interest compelling enough

to permit suspicionless testing. It has

been lurking as a background condition

for our determinations, but that is all.

Its presence has been referred to, but

the disaster or tragedy has been some

additional horrible element, some

terrible threat to safety that can flow

from the presence of drugs—some shooting,

some explosion, some crash of train,

truck, or aircraft, or some breach of top

secret national security. The record

59a

shows no such possibility here. Nor does

it show that the incremental difficulties

involved in athletics elevated the drug

danger so far above the norm that the

government interest became compelling.

The District has alluded to the

possibility that it could incur liability

if it knowingly fielded a team of drug-

affected students. No doubt it could.

We agree that it need not do that, but

our concession is a far cry from saying

that the District can mandatorily test

everyone. Given the standard made

possible by T.L.0., the District's

argument might well justify

individualized testing; on this record,

it does not justify random testing.

Thus, when we mix all of the

elements together—the Slight weight in

favor of efficiency, the privacy

60a

interest, the governmental interest, and

the discretionary factor—and step back to

look at the compound they yield, it

becomes apparent that the Policy violates

the Fourth Amendment. It follows that it

also violates Article I, Section 9 of the

Oregon Constitution.

It is important to understand the

contours and outer limits of our holding.

We do not, as we have already suggested,

decide that there could be no appropriate

individualized testing program. More

than that, we do not say that there could

never be a case where a random search

would be appropriate in a school setting.

See, e.g., In re Isiah B, 176 Wis.2d 639,

500 N.W.2da 637 (after a series of

shootings on campus, rumors indicated

that there would be a shootout on

November 19, 1990; a random search of

6la

lockers on that date was upheld), cert.

denied, — U.S.—, 114 S.Ct. 231, 126

L.Ed.2d 186 (1993). But see Brooks v.

East Chambers Consol. Indep. Sch. Dist.,

730 F. Supp. 759 (S.D.Tex.1989) (initial

and random drug testing of all students

who wish to participate in

extracurricular activities violates the

Fourth Amendment) , aff'd, 930 F.2d 915

(Sth Cir.1991); Derdeyn v. University of

Colorado, 832 P.2d 1031 (Colo. App.1991)

(random drug testing of athletes violates

Fourth Amendment; governmental interest

not compelling) aff'd, 863 P.2da 929

(Col0.1993); Odenheim v. Carlstadt-East

Rutherford Regional Sch. Dist., 211

N.J.Super. 54, £510 A.2da 709 (Ch.Div.1985)

(drug testing of all students violates

Fourth Amendment) . Moreover, we do not

decide whether a program based upon the

62a

truly voluntary consent of individual

parents to have their child randomly

testednot, no testing, no playing—would

obviate the difficulties we find with the

Policy.

Before concluding, we must

acknowledge that in Schaill v. Tippecanoe

County Sch. Corp., 864 F.2d 1309 (7th

Cir.1988), the court upheld a random drug

testing pro_ram very similar to the one

we now review. Perhaps that court found

a more compelling set of facts than we

discover here, but we are unable to say

so after reading the opinion. We

believe, instead, that the Seventh

Circuit has unduly minimized the privacy

interests of students. It has also given

undue weight to the governmental interest

by focusing on the general problems

generated by the drug plague, rather than

63a

upon the question of whether the danger

to safety is so high as to be

compelling.’ We could fill more pages

reiterating what we have already said,

but, in a nutshell, we simply do not

agree with the Seventh Circuit.

CONCLUSION

We understand the importance of

having drug-free children, and the sorrow

our society is reaping from the fact that

the drugs which have invaded it have

found their way into our children's

hands. We also understand the deep

concerns of parents, teachers,

3

We note that the Schaill court balanced

the students’ privacy interests against the

school district's “substantial interest in

enforcement of its proposed random urinalysis

program.” 864 F.2d at 1321 (emphasis added). In

contrast, subsequent Supreme Court cases have

allowed random urinalysis programs only after

finding compelling governmental interests that

outweigh employees’ diminished expectations of

Privacy. See Skinner, 489 U.S. at 626-33, 109

S.Ct. at 1418-21; Von Raab, 489 U.S. at 670-77,

109 S.Ct. at 1393-96.

64a

administrators, and school boards. We

have no doubt that the District and those

associated with it have proceeded in all

good faith.

However, we also understand the

concern of our forebears and the

importance of the protections given by

the constitutional provisions which

prohibit unreasonable searches and

seizures. We are all too aware of the

dangers to our liberties that those

provisions are designed to protect

against and of the constant pressures

upon them, despite centuries of living

with and under their protections.

We have found that we must live with

a certain amount of discomfort, even

danger, if we are to maintain

constitutional protections. If they are

to continue to exist and flourish, we and

65a

our children must understand them, profit

from them, and believe in then. They

are, after all, just words, ideas,

beliefs, and principles. But if we are

vigilant there is a great deal of power

in the word "just."

Given the Fourth Amendment, given

our traditions, given our law, we are

constrained to hold that the Policy is

invalid under the Fourth Amendment. That

being so, Oregon would find it invalid

under Article I, Section 9, of its

Constitution. As we have already

indicated, it would probably do so with

less lucubration, and with less spilt

ink.

REVERSED and REMANDED

REINHARDT, Circuit Judge concurring:

Although I am in complete agreement

with the reasoning and the result in

66a

‘Judge Fernandez's opinion for the court,

I write separately to emphasize that

while our opinion holds expressly that

Vernonia School District's drug testing

policy is violative of Article I, Section

9 of the Oregon Constitution, it also

necessarily holds that the policy

violates the Fourth Amendment to the

United States Constitution. Indeed, the

opinion cannot be read otherwise: there

is no way to "avoid" a federal

constitutional holding in this case,

because Article I, Section 9 and the

Fourth Amendment are textually identical

and are interpreted "coextensively."

Moreover, our decision is based almost

exclusively on the application of federal

law. Under the circumstances, our

holding cannot be confined to one of

Oregon law.

67a

Generally, federal courts will avoid

federal constitutional issues when the

alternative ground of decision is one of

state statutory or constitutional law.

Hewitt v. Joyner, 940 F.2d 1561, 1565

(9th Cir.1991) (state "no {religious}

preference" clause, rather than

dissimilar religion clauses of First

Amendment, held proper ground for

decision). Where, however, a question

involves identical or "coextensive" state

and federal constitutional provisions, a

holding based on state constitutional law

does not "avoid" answering the federal

question as well. As both Oregon law and

Judge Fernandez's opinion for the court

make clear, Article I, Section 9 and the

Fourth Amendment are textually

"coextensive" and are interpreted

68a

identically.' See State v. Flores, 280

Or. 273, 279-81, 570 P.2d 965, 968-69

(1977). ("(T)here is no reason, based on

either the text or the history of Article

' The Fourth Amendment reads:

The right of the people to

be secure in their person,

houses, papers, and

effects, against

unreasonable searches and

seizures, shall not be

violated, and no Warrants

shall issue, but upon

probable cause, supported

by Oath or affirmation,

and particularly

describing the place to be

searched, and the persons

or things to be seized.

Article I, section 9 of the Oregon

Constitution provides:

No law shall violate the

right of the people to be

secure in their persons,

houses, papers, and

effects, against

unreasonable search or

seizure; 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.

69a

I, Sec. 9, to suppose that that section

has a different meaning from the Fourth

Amendment."). Therefore, a decision on

the meaning of Article I, Section 9 is by

necessity also a decision on the meaning

of the Fourth Amendment. Any attempt to

limit our decision to Article I, Section

9 would be sheer flim-flammery.

We acknowledged this simple fact in

Los Angeles County Bar Ass'n v. Eu, 979

F.2d 697, 705 n.4 (9th Cir.1992). In Eu,

we held that the right to access to the

courts provided in the California

Constitution and the Fourteenth Amendment

were coextensive and decided plaintiff's

right-to-access claim under the federal

provision. The Supreme Court, without

any analysis, adopted the same approach

in Wisconsin v. Constantineau, 400 U.S.

433, 27 L.Ed.2d 515, 91 S.Ct. 507 (1971).

70a

In Constantineau, the Court struck down a

Wisconsin statute on the basis of federal

due process without addressing the

dissent's assertion that an identical due

process provision of the Wisconsin

Constitution was sufficient to dispose of

the case.

Interestingly, Chief Justice Lucas

of the California Supreme Court has

suggested that state courts, when faced

with complex and sensitive constitutional

questions implicating coextensive state

and federal provisions, should defer

decision on the state provision in favor

of the federal one. See Sands v. Morongo

Unified School Dist., 53 Cal.3d 863, 281

Cal.Rptr. 34, 809 P.2d 809 (1991) (en

banc) (religious invocation and

benedictions at public high school

violate coextensive clauses of the

7la

federal and California Constitutions).

Such deferral, Justice Lucas explained,

would invite early review of the state

court's decision by the United States

Supreme Court, the "primary interpreter

and protector of the guarantees of the

Bill of Rights. . .." Id. 281 Cal.Rptr.

at 59, 809 P.Ld at 834-835 (Lucas, J.,

concurring) . I point this out because if

Justice Lucas is correct, and we were to

attempt to base our holding solely on

Article I, Section 9, we would be faced

with the anomalous situation wherein

state courts avoid state constitutional

questions but freely reach sensitive

federal constitutional questions while

federal courts avoid federal

constitutional questions in favor of

resolution on the basis of coextensive

state constitutional provisions. That

72a

would make even less sense than many of

the other contortions in which we engage

in our continuing effort to avoid doing

justice by relying on arcane procedural

precepts.

The process is not as simple as

Chief Justice Lucas suggests, however.

State courts are free to give broader

meaning to state constitutional

provisions with similar language, so long

as they are relying on state law and not

just on their interpretations of federal

cases. They may give a more expansive

protection to individual rights, but not

a lesser one. In any event, this is not

that type of case. There is as yet no

independent Oregon determination of the

status of drug testing under Article I,

Section 9. Lacking such guidance, we are

obliged to refer to federal law,

73a

specifically to federal judicial

construction of the Fourth Amendment.

In any event, there are good common

sense reasons why we are unable to avoid

a federal decision in this case. Even

without the guidance of E£u and

Constantineau, it seems likely that the

identical plain language of the Fourth

Amendment and Article I, Section 9 will

result in similar interpretation. It is

true that in the future the Oregon courts

could choose to interpret Article Be

Section 9 to provide more protection than

the Fourth Amendment against randon,

Suspicionless drug searches. As stated

above, however, there are as yet no

Oregon cases that apply Article I,

Section 9 to the question of drug

testing. Hence, as Judge Fernandez's

opinion correctly states, we are unable

74a

to interpret Article I, Section 9 without

"a federal compass"; i.e., we have only

Fourth Amendment jurisprudence to guide

our analysis. Therefore, we first are

obliged to clarify the extent of the

Fourth Amendment restraint on random drug

searches. Toward that end, we determine

that the Vernonia School District's

random, suspicionless drug testing policy

for interscholastic athletes is

inconsistent with the Fourth Amendment.

Equipped with our "federal compass," we

also determine that the policy is

inconsistent with Article I, Section 9.

As Judge Fernandez's opinion clearly

shows, we could not have reached our

conclusion regarding Article I, Section 9

without first holding that the school

75a

district's policy violates the Fourth

Amendment.

76a

APPENDIX B

United States District Court

for the District of Oregon.

Civ. No. 91-1154~MA.

WAYNE and JUDY ACTON, guardians ad litem

for JAMES ACTON,

Plaintiffs,

Vv.

VERNONIA SCHOOL DISTRICT 47J,

Defendant.

May 7, 1992.

(796 F.Supp. 1354]

OPINION

MARSH, Judge.

Plaintiffs filed this action for

declaratory and injunctive relief claim-

ing that the Vernonia School District's

drug testing policy violates their son's

rights under the Fourth Amendment of the

United States Constitution and Article l,

Section 9 of the Oregon Constitution.

—

é

77a

The following constitutes my findings of

fact and conclusions of law pursuant to

Fed.R.Civ.P. 52.

FACTS

I. Background

Vernonia, Oregon, is a small logging

community of approximately 3000 persons

including all those living within or near

the city limits. Plaintiffs Wayne and

Judy Acton reside in Vernonia and their

son James, age 12, is enrolled in the

seventh grade of Washington Grade School.

Due to its small size and somewhat remote

location, Vernonia is typified by its

central interest in school district ac-

tivities in general and athletics in par-

ticular. Witnesses explained that the

entertainment opportunities in Vernonia

are fairly limited so that interscholas-

tic athletics play a dominant role in the

78a

community and student athletes are well

known and admired. Approximately 60-65%

of the high school students and 75% of

the elementary school students partici-

pate in district sponsored athletics.

The school district employs a small

but stable and closely knit teaching

staff with deep ties to the community.

For instance, two of the teachers who

testified at trial grew up and attended

school in Vernonia. Randall Aultman, the

current principal of Washington Grade

School, has a long tenure with the dis-

trict and has held the positions of As-

sistant Superintendent and principal of

the high school. Other teachers who tes-

tified had years of experience in the

district, and I was impressed by their

knowledge and concern for the community,

its students and school systen.

79a

Aultman and the teachers testified

that, up until the early 1980s, disci-

pline at the Vernonia schools was not a

problem. The teachers were well ac-

quainted with the students and their fam-

ilies and students were generally cooper-

ative and respectful both in the class-

rooms and during after-school activities.

Drug and alcohol use, although present,

was limited to certain small "fringe"

elements of the student population.

Then, in the mid-to-late 1980s, the staff

began noticing a startling and progres-

Sive increase in students' use of drugs

and alcohol. As the administration be-

came more aware of the problem, it began

investigating its possible source.

Aultman met with the teaching staff and

asked them to look for any signs of drug

or alcohol use to gauge the magnitude of

80a

the problem and to try to determine what

responsive steps should be taken.

In the meantime the glamorization

and use of drugs and alcohol became more

blatant. All of the teachers who testi-

fied at trial expressed how appalled and

helpless they felt as students increas-

ingly expressed their attraction to, and

vocal defense of, the use of drugs. Stu-

dents boasted about drug use and regaled

one another with stories of the latest

"high" or "party". Class decorum suf-

fered. One teacher, who had never expe-

rienced classroom discipline problems in

the past, was ready to give up 15 years

of service because of her frustration and

apparent inability to deal with this new ~

situation. Outbursts of profane language

during class, rude and obscene statements

directed at other students, and a general

8la

flagrant attitude that there was nothing

the school could do about their conduct

or their use of drugs or alcohol typified

a usual day. Organizations formed within

the student drug culture taking such

names as the "Big Elks" or the "Drug Car-

tel." Loud “bugling" or “head butting"

were the calling cards of these groups.

Drug paraphernalia was confiscated on

schools grounds, and open use of drugs

was observed at a local cafe across the

street from the high school.

Drug and alcohol use also invaded

the sports program. Students consumed

alcohol on a bus after a game. Others

stole alcohol from a store after a track

meet. Ron Svenson, a teacher and wres-

tling coach, testified that suspected

drug use contributed to the injury of a

wrestler who failed to execute a basic

82a

maneuver. When visiting the hotel room

of the student the next day the smell of

marijuana permeated the area. Svenson

also gave convincing testimony that drug

use affected certain football players in

that they ignored or forgot well-drilled

safety routines. He also expressed a

concern that the use of intoxicants would

Slow down their reaction time and hence,

make them more susceptible to injury.

Svenson's concerns were corroborated by

the testimony of Dr. DuPont, who ex-

plained the deleterious effects of drugs

and alcohol on a person's motivation,

memory, judgment, reaction, coordination

and performance.

Svenson also explained that a stu-

dent injured in a regular physical educa-

tion class is much more apt to disclose

an injury than one engaged in interscho-

83a

lastic activity, given the highly compet-

itive atmosphere of the latter. This

sense of pride and desire to stay in the

game, when coupled with the numbing in-

fluence of drugs, became a significant

concern to all involved in the athletic

program.

School officials had a clear percep-

tion that the discipline problems they

were experiencing were the result of sub-

stance abuse. Informal interviews with

responsible students and parents con-

firmed that fact. Based upon the

administration's investigation, it also

became clear that the leaders of this

activity were also the leading student

athletes. Thus, the very center of ac-

tivity of the school and the community

was endangered. Further, the administra-

tion was concerned that the corruption of

84a

the school's leading athletes might have

a significant poisoning impact upon the

broader student population, including the

younger and more impressionable elementa-

ry school students who would eventually

seek to emulate their elders. No evi-

dence was presented that refuted any of

the facts set forth nor the conclusions

reached by the school officials.

Following its initial investigation,

the school administration attempted to

address this problem and deter drug and

alcohol use through education. Special

classes were held on the effect and ad-

dictive nature of drugs. Special speak-

ers were invited who the school hoped

would have a particular charm with the

students. Seminars within classes,

polls, and theatrical presentations were

all tested and failed to achieve any sig-

85a

nificant impact on the disruptive atmo-

sphere. The day after the presentation

of a play directed at the evils of drug

use, several sophomore athletes were

caught cutting classes to hold a party

where arrests took place for the use of

intoxicants. The administration even

brought in a specially trained dog to

sniff for drugs in locker area, but none

of these efforts deterred the students.

As Dr. DuPont confirmed, youth who use

drugs are typically in denial and think

they can control their drug use. Thus,

Simply telling them that drug use is bad

for their health and that they should

stop using is invariably ineffective.

DuPont testified that what youth really

need is a compelling reason or incentive

to stop using drugs.

The evidence amply demonstrated that

86a

the administration was at its wits end

and that a large segment of the student

body, particularly those involved in in-

terscholastic athletics, was in a state

of rebellion. Disciplinary actions had

reached "epidemic proportions." The coin-

cidence of an almost three-fold increase

in classroom disruptions and disciplinary

reports along with the staff's direct

observations of students using drugs or

glamorizing drug and alcohol use led the

administration to the inescapable conclu-

sion that the rebellion was being fueled

by alcohol and drug abuse as well as the

student's misperceptions about the drug

culture. It also became readily apparent

to staff that, unless it took immediate

action, the problem was going to get far

worse and widespread before it got bet-

ter. At one point, the administration

87a

felt that the only practical solution was

mass expulsion. Fortunately for the city

of Vernonia, school officials remained

vigilant in their efforts and continued

to pursue less drastic alternatives.

Spurred on by an article in the lo-

cal Oregonian, the idea of a drug testing

program was considered. While the idea

had been discussed before, concerns over

its legality had deferred its consider-

ation in favor of exhausting other alter-

natives. But sometime in 1988, borne out

of necessity, the idea was investigated.

A study was made of such programs across

the country. Legal opinions were stud-

ied, legal counsel obtained, and parent

meetings were held. Finally, with the

blessing of the administration, a unani-

mous vote of parents at the meeting, and

approval of the superintendent a plan was

88a

submitted to the School Board and ap-

proved for implementation beginning in

the fall of 1989.

II. Defendant's Drug Testing Policy

All students who desire to partici-

pate in interscholastic athletics are

required to sign a form authorizing the

District to conduct a test on a urine

specimen provided by the student as a

prerequisite to participation in the ath-

letic program. The test requirement is

applied to all students and is limited to

determining whether the student has been

using illegal drugs and/or alcohol.

All students in the athletic program

are tested at the beginning of each ath-

letic season in which they participate.

During the season, student athletes are

tested at random on a weekly basis. The

89a

names of all students participating in

sports during that season are placed in a

"pool" and approximately ten percent of

the names are drawn from the "pool" each

week. A student draws numbers represent-

ing names from the "pool," but is not

aware of the names he or she draws. Stu-

dents whose numbers are drawn are tested

one at a time throughout that day.

The procedure for the test varies

Slightly for boys and girls. Boys begin

the process by filling out of a portion

of a specimen control form which assigns

the student a number. The student is

then given a testing packet which con-

tains a cup and a vial. The student en-

ters an empty locker room with a male

school official acting as a monitor. The

monitor opens the packet and provides the

student with the cup. The student then

90a

proceeds to a urinal to produce the sam-

ple. While producing the sample. the

student remains fully clothed and has his

back to the monitor. The monitor is

present to assure that there is no tam-

pering and remains 12 to 15 feet behind

the student.

After producing the sample, the stu-

dent returns the cup to the monitor. The

monitor checks the sample for temperature

and signs of tampering. The monitor then

transfers the sample into a vial, and the

student places a lid on the vial. The

vial is sealed with security tape which

the student signs and dates. The vial is

assigned a number which coincides with

the student's number on the specimen con-

trol form and then is placed in a plastic

bag which is also sealed and signed and

dated by the student. Finally, the stu-

9la

dent completes the specimen control form

by verifying that the specimen is his and

that the specimen and package were se-

curely sealed in his presence.

The procedure for girls differs only

in that a female school official acts as

a monitor and the sample is produced in

an enclosed stall with a toilet. The

monitor remains outside the stall and

listens for signs of tampering.

92a

The samples are sent for testing to

Metrolab under security procedures de-

signed to protect the chain of posses~

sion. Metrolab technicians do not know

the identity of the person being tested

and rely solely upon the assigned numbers

for identification. The test screens for

amphetamines, cocaine, marijuana, and

alcohol and has an accuracy of appr¢ xi-

mately 99.94%. Test results are reported

by telephone to authorized Vernonia

School District personnel. Positive re-

sults are also mailed to the district

superintendent.

If a student's test is positive, a

second test will be administered as soon

as possible to confirm the results. Par-

ents will be notified after the second

positive test. If the second test is

negative, no further action will be tak-

93a

en. If the second test is positive, the

school notifies the parents or guardians

and conducts a hearing with the student

and his or her parents. At this hearing,

the student will be given the option of

either participating in an assistance

program and taking a weekly drug test for

six weeks or suspension from the athletic

program for the remainder of the current

season and the next athletic season. The

student will be retested before beginning

the next season for which he or she is

eligible.

At trial, Aultman testified that,

though not spelled out in the written

policy, a student athlete who commits a

second offense may also continue partici-

pating in the athletic program if he or

she submits to counseling and weekly uri-

nalysis.

Ss

94a

III. Basis of the Plaintiffs' Claim

In the Fall of 1991, James Acton, a

seventh grade student attending Washing-

ton Grade School in the Vernonia School

District, signed up to participate in

district-sponsored football. To partici-

pate in football, James had to take a

physical examination.’ James attended the

first football practice and received the

District's consent form for drug and al-

cohol testing. After discussing the form

with his parents, they decided not to

sign it. James and his parents scheduled

a meeting with Aultman.

At the meeting, the Actons explained

to Aultman that they objected to the drug

testing policy because it required James

to submit to a urinalysis in the absence

of any evidence that he had used drugs or

? The physical examination included giving a

urine sample.

95a

alcohol. Aultman informed the Actons

that James could not participate in dis-

trict-sponsored athletics without a

Signed consent form. The Actons notified

the district Superintendent, Ellis Mason,

of their decision. Mason confirmed that

James could not participate in district-

sponsored sports without a signed consent

form. There is no dispute that the poli-

Cy was applied to James in the same man-

ner as it was applied to all other stu-

dents who sought to participate in inter-

scholastic athletics and was not based

upon any individualized Suspicion that

James had used drugs or alcohol.

96a

DISCUSSION

Bs The Fourth Amendment’?

The Fourth Amendment to the United

States Constitution provides:

"The right of the people to be

secure in their persons, hous-

es, papers and effects against

unreasonable searches and sei-

zures 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

persons or things to be

seized."

The collection and testing of urine

constitutes a "search" within the meaning

of the Fourth Amendment. Skinner v.

Railway Labor Executives Assn,, 489 U.S.

602, 109 S.Ct. 1402, 1413, 103 L.Ed.2d

639 (1989). The urinalysis test is a

> It is undisputed that defendant's drug

testing program constitutes a "state action” for

the purposes of establishing the threshold con-

stitutional inquiry. See e.g. Brooks v. East

Chambers Consol. Ind. School Dist., 730 F.Supp.

759, 762-3 (S.D.Tex.1989) aff’d 930 F.2d 915 (5th

Cir.1991).

97a

"search," regardless of whether the act

of urination is observed, because the

test necessarily discloses facts about

which an ordinary citizen has a reason-

able expectation of privacy. National

Treasury Employees Union v. Von Raab, 816

F.2d 170, 175-6 (5th Cir.1987) aff'd 489

U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685

(1989). Procedures for collecting urine

samples necessarily invade a personal

function “traditionally shielded by great

privacy." Id., 109 S.Ct. at 1418. The

Fourth Amendment applies to government

searches undertaken for a purpose other

than criminal law enforcement. See e.g.

National Treasury Employees Union v. Von

Raab, 109 S.Ct. at 1390 (urinalysis test-

ing of customs service employees who face

potential of dismissal must satisfy

Fourth Amendment reasonableness require-

98a

ment).

In the criminal context, the Fourth

Amendment dictates that searches conduct-

ed without a warrant are per se unreason-

able, subject to a few well-delineated

exceptions. Katz v. United States, 389

U.S. 347, 357, 88 S.Ct. 507, 514, 19

L.Ed.2d 576 (1967). The “essential pur-

pose" of a warrant is to protect

citizens' privacy interests and assure

that any searches or seizures are "not

the random or arbitrary acts of govern-

ment agents." Skinner, 109 S.Ct. at 1415;

see also Delaware v. Prouse, 440 U.S.

648, 654-55, 99 S.Ct. 1391, 1396-97, 59

L.Ed.2d 660 (1979) (proscriptions of

Fourth Amendment designed to avoid the

'grave danger' of abuse of official dis-

99a

cretion) .‘

The application of the Fourth Amend-

ment to a civil administrative context is

a relatively recent development in the

law. The majority of the cases that have

addressed this issue have done so in the

employment context. For example, in

Skinner, railroad employees challenged

several provisions of the Federal Rail-

road Administration's regulations which

required railroads to conduct urine,

blood and breath tests following acci-

dents or violations of certain safety

rules to assist in its investigation and

“In Prouse, the Court held that random auto-

mobile “safety checks" conducted by police offi-

cers without the benefit of any objective crite-

ria to guide their discretion were unconstitu-

tional. The Court noted however, that its hold-

ing “does not preclude ... states from developing

methods for spot checks that involve less intru-

sion or that do not involve the unconstrained

exercise of discretion. Questioning of all o2n-

coming traffic at roadblock-type stops is one

possible alternative." 440 U.S. at 664, 99 S.Ct.

at 1401.

100a

to take whatever remedial actions were

necessary against employees. Positive

tests could result in administrative dis-

cipline, including dismissal, but would

not subject an employee to criminal pros-

ecution. The Court noted that, given the

factual context, "a warrant would do lit-

tle to further these [governmental]

aims." Id., 109 S.Ct. at 1415. Further,

the Court explained that although some

"“suantum" of individualized suspicion

would "usually" be required in the ab-

sence of probable cause, that "a showing

of individualized suspicion is not a con-

stitutional floor, below which a search

must be presumed unreasonable." Id., at

1417.

The Court analyzed the challenged

regulations by balancing the interests

sought to be achieved by the government

10la

against the intrusion upon the employees’

privacy to determine if the challenged

tests were "reasonable." Id., at 1421-

1422; see also Von Raab, 109 S.Ct. at

1392 (applying Skinner balancing test to

urinalysis tests of applicants for cus-

toms officials promotions). The Court

found that the employees had a diminished

expectation of privacy since they worked

in a highly safety oriented industry

which was already subject to significant

regulation. Id., 109 S.ct. at 1417; see

also Von Raab, 109 S.ct. at 1392 (dimin-

ished expectation of privacy due to expo-

Sure to controlled substances); IBEW Lo-

cal 1245 v. Skinner, 913 F.2d 1454 (9th

Cir.1990) (upholding constitutionality of

testing employees who work on natural gas

and hazardous liquid Pipelines); and

Bluestein v. Skinner, 908 F.2d 451 (9th

102a

—, 111

cir.1990), cert. denied, — U.S. .

S.ct. 954, 112 L.Ed.2d 1042 (1991) (up~

air-

holding random urinalysis testing of

i-

line personnel with safety responsibil

ties). The Court concluded that the

; ; =

government's "compelling" interests i

s'

railway safety outweighed the employee

- at

privacy concerns. Skinner, 109 S.Ct

- at

1421; see also Von Raab, 109 S.Ct

1396.° |

Thus, although not expressly doing

ve

so, the Supreme Court appears to ha

’

“ se"

abandoned the Fourth Amendment “per

. *. . . n fa-

analysis utilized in criminal law 1

j j e

vor of a “balancing” test in which th

individual-

government, in the absence of individ

ect-

. Von Raab, the Court apestsicaliy = —

r loyees' contention that — .

= ayy: ee there were so few ro a

— roximately five tested pos ny Ai

3200. be sar in light of the olgnneseers | a

a pee the tests would have on — oi

oor aan off duty. Id., 109 S.Ct.

re)

103a

ized suspicion or probable cause, must

demonstrate a "compelling need" for the

invasion which outweighs the individuals

interest in privacy.® The Supreme Court's

decisions in Skinner and Von Raab, and

the Ninth Circuit's decisions in IBEW and

Bluestein, demonstrate that the govern-

ment may show a "compelling need" which

obviates the need for either a warrant or

individualized Suspicion if security or

safety interests are implicated.

Although the types and magnitude of

Safety and security concerns addressed in

Skinner and Von Raab differ from those

* This is not meant to imply that there ex-

ists a separate and distinct "administrative"

search doctrine. See Schaill v. Tippecanoe Coun-

ty School Corp., 864 F.2d 1309, 1316, n. 7, reh’g

denied (7th Cir.1988) (discussing debate sur-

rounding ‘administrative search’ doctrine).

Instead, as discussed more fully infra, I find

that the existence (Or absence) of criminal pen-

alties is but one factor which I must consider in

determining the weight of individual privacy

interests.

104a

faced by students, teachers and coaches

who participate in middle and high school

athletic programs, courts have acknowl-

edged that the public school is a unique

setting in which the constraints of the

Fourth Amendment are "relaxed." In New

Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct.

733 83 L.Ed.2d 720 (1985), a 14 year old

student who was discovered smoking in the

lavatory was taken to the assistant vice

principal's office. Upon hearing the

report, the assistant vice principal

searched the student's purse for ciga-

rettes. During the search, he discovered

rolling papers, marijuana, a pipe, a

fairly substantial amount of money and

possible records of drug sales to other

students. Thereafter, the state brought

delinquency charges against the student

and the admissibility of the items seized

105a

by the vice-principal was ultimately ap-

pealed to the Supreme Court. The Court

held that the Fourth Amendment's prohibi-

tion on unreasonable searches and sei-

zures applies to searches conducted by

public school officials, but that the

school setting requires some "easing" of

the restrictions to enable school admin-

istrators to preserve order and maintain

an adequate educational environment.

Id., at 334, 340-41, 105 S.Ct. at 738,

742-43. Thus, although student athletes

who use drugs do not pose the magnitude

of a threat to society that, say, an in-

toxicated air traffic controller might,

the fact that the searches take place

within the school setting, as part of a

program designed to maintain discipline,

enforce athletic program regulations, and

protect the safety of student athletes,

106a

is a significant factor that must weigh

heavily in any balancing process.

Further, relying upon the “fundamen-

tal command" of the Fourth Amendment that

all searches be “reasonable,” the Court

in T.L.O. held:

"(T}he legality of a search of

a student should depend simply

on the reasonableness, under

all the circumstances, of the

search. Determining the rea-

sonableness of any search in-

volves a twofold inquiry:

first, one must consider wheth-

er the action was justified at

its inception ... second, one

must determine whether the

search as actually conducted

was reasonably related in scope

to the circumstances which jus-

tified the interference in the

first place."

Id., at 341-42, 105 S.Ct. at 742-43 (ci-

tations omitted). In a footnote, the

Court pointed out that it was not con-

fronted with the issue of whether indi-

vidualized suspicion was an essential

element of the reasonableness standard.

107a

Id., at 343 n. 8, 105 S.Ct. at 743 n. 8.

However, the Court emphasized that the

"Fourth Amendment imposes no irreducible

requirement of such [individualized] sus-

picion." Id. Thus, although the context

of the T.L.O. case involved the search of

an individual student, the Court express-

ly held that "any search" of a student be

measured by "reasonableness" based upon

the totality of the circumstances and

balancing of relative interests.

Whether and how the "reasonableness"

analysis and rationale supporting the

decisions in Skinner, Von Raab, and

T.L.O. may be extended to an athletic

program under guidelines adopted by a

school board is a question that has yet

to be directly addressed by either the

Supreme Court or the Ninth Circuit. How-

ever, several other courts have confront-

108a

ed the issue. In Schaill v. Tippecanoe

County School District, 864 F.2d 1309

(7th Cir.1988) reh'g denied (1989)’, sev-

eral students challenged the constitu-

tionality of the school system's program

for random urine testing for interscho-

lastic athletes. Under the program, all

students desiring to participate in in-

terscholastic athletics and their parents

had to agree to submit to random urinaly-

sis testing. A positive test would re-

sult in suspension from participation in

all or a portion of the athletic season

unless the student agreed to participate

in a drug treatment program. In light of

the Supreme Court's holding in T.L.O.,

the court began its inquiry by noting

that the probable cause and warrant re~-

? Although Tippecanoe was ultimately pub-

lished in 1989, it predates the Supreme Court's

decisions in Skinner and Von Raab.

109a

quirements were not applicable to the

program. Instead, the court found that

the test should be under the "general

Fourth Amendment standard of reasonable-

ness." Id., at 1315. However, because

the program was premised upon a lack of

any individualized suspicion, the court

found that the school district bore a

“heavier burden" to justify its contem-

plated actions. Id.; compare Brooks, 730

F.Supp. at 764 (search of students must

be based upon individualized suspicion

absent "extraordinary" circumstances) .

Although the court did not quantify how

heavy that burden should be, I find that

the analysis presaged the Supreme Court's

"compelling need" standard in Skinner and

Von Raab. Accordingly, the court bal-

anced the privacy interests of the stu-

dents against the government's objectives

110a

and the nature and degree of the intru-

sion. Factors which the court found

weighed in favor of the program's reason-

ableness included: first, the random na~

ture of the testing which necessarily

limited official discretion; second, the

limited non-punitive purposes for the

search; third, evidence to support a

finding that the use of drugs posed a

"particular threat" to athletes; fourth,

evidence of at least three student inju-

ries that had been caused or exacerbated

by drug impairment; fifth, substantial

evidence that alternatives methods of

investigation would not adequately serve

the school's goals; sixth, the diminished

expectations that student athletes enjoy

by the public nature of the events and by

the existence of other regulations and

restrictions; and seventh, the incorpora~

lila

tion of adequate privacy safeguards such

as the strict limits on disclosure of

test results and the lack of direct visu-

al observation during the testing proce-

dures.

In Derdeyn v. University of Colora-

do, 832 P.2d 1031 (Colo.App.1991), stu-

dents challenged a drug testing program

for intercollegiate athletics at the Uni-

versity of Colorado. In that program, a

student was randomly selected for a rapid

eye movement test which, if found posi-

tive, would lead to a urinalysis test.

The court held that the University's in-

terest in securing a drug free athletic

program was not compelling and held that

the testing procedures violated the

Fourth Amendment of the U.S. Constitu-

tion. The court enjoined the University

from continuing the testing procedures in

112a

the absence of reasonable suspicion to

believe that an athlete was using drugs.

The court specifically noted that there

was no evidence in the record to indicate

that student athletes used drugs more

than other persons of similar age among

the general population and no evidence of

actual drug problems or drug related in-

juries among University athletes. See

also Hill v. NCAA, 7 Cal.App.4th 1738,

273 Cal.Rptr. 402, petition for review

granted 276 Cal.Rptr. 319, 801 P.2dad 1070

(1990) (college drug testing program in-

valid under California constitution given

lack of evidence to show utility of pro-

gram outweighed students’ privacy

rights); and Brooks, 730 F.Supp. 759,

764-65 (urinalysis of all students par-

ticipating in all extracurricular activi-

ties unconstitutional given laxity in

113a

testing procedures and lack of any evi-

dence to show connection between drug

use, participation in extra-curricular

activities and injuries sought to be

avoided); and Anable v. Ford, 653 F.Supp.

22, 40-41, modified in part 663 F.Supp.

149 (W.D.Ark.1985) (finding urinalysis of

individual students suspected of marijua-

na use unconstitutional given unreliable

test results and insufficient evidence to

justify intrusive procedures utilized).

Based upon the guidance provided by

these cases, I find that I must determine

whether defendant's urinalysis testing

program is "reasonable" in light of all

of the justifications underlying the in-

stitution of the program and the circun-

stances surrounding its administration.

To assess the "reasonableness" of the

progrem, I find that I must engage in a

114a

balancing test. Because defendant stipu-

lates that it had no individualized sus-

picion that James had ever used drugs or

alcohol, I find that the school district

must demonstrate a "compelling need" for

the program. Although it is impossible

to define the term "compelling need" with

any degree of specificity, I find that

the cases discussed, supra, are instruc-

tive and provide an adequate "spectrum"

by which I may measure the testing proce-

dures and justification put forth in this

case. The Supreme Court, in Skinner and

Von Raab, teaches that a search may be

"reasonable" in the absence of a search

warrant or individualized suspicion where

the safety and security interests of the

public significantly outweigh the privacy

interests of certain employees who work

in industries that carry a high risk of

115a

serious accidents or who are exposed to

illegal substances. Brooks, Hill and

Derdeyn teach that a school may not jus-

tify a random urinalysis program upon

amorphous statistics or generalized no-

tions about the national drug problem.

Finally, the Seventh Circuit Court of

Appeals, in Tippecanoe, teaches that a

schools random urinalysis program for

interscholastic athletes which employs

the least intrusive means possible to

effectuate this goal may withstand con-

stitutional scrutiny if based upon spe-

cific evidence of drug related injuries

and disciplinary concerns.

In considering all of the evidence

produced in this case, I find that

there are several factors which weigh in

favor of the district's drug testing pol-

icy. First, and foremost, there is evi-

116a

dence in the record of specific instances

in which coaches have observed athletes

perform poorly and unsafely while under

the influence of some intoxicant. On one

occasion, a wrestler was seriously in-

jured and subsequently observed to smell

of marijuana.

Next, there is evidence to show that

athletes at Vernonia, perhaps more be-

cause of its rural setting, are role mod-

els for the entire community. The "Big

Elks," the "Drug Cartel" or their succes-

sors are clearly leaders for other stu-

dents and if they are deterred from drug

use by threat of suspension from the ath-

letic program, then it is reasonable for

school administrators to believe that

other students will also be deterred.

The testimony of Dr. DuPont was particu-

larly persuasive on the significant de-

117a

terrent effects that a random drug test-

ing program can have on a youthful popu-

lation.

Further, the affected activity is

limited in Scope and narrowly tailored to

effectuate the district's objectives.

Unlike the policy challenged in Brooks,

which applied random drug testing to all

extra-curricular activities, the Vernonia

policy is limited to the one activity

which, in that community, is likely to

have the greatest impact on the drug and

alcohol abuse problem given the document-

ed evidence of incidents involving par-

ticular students. The regulations al-

ready require that students undergo a

Physical examination prior to participa-

tion, the locker rooms themselves are

Open spaces and do not provide a great

deal of privacy when Students shower and

118a

change. Thus, drug testing is but one

part of a substantial number of other

rules and regulations governing athletes.

In addition, the middle to high

school setting itself tends to favor the

administration's policy given the stated

goals and the deference that courts

should accord school administrators in

matters concerning discipline and main-

taining order. I am satisfied by the

evidence that defendant did not institute

this policy to engage in a "fishing expe-

dition" for drug and alcohol use to carry

on a moral crusade. Rather, I find that

defendant demonstrated that its concerns

were for the limited purposes of address-

ing student safety in athletic programs

and, ultimately, maintaining discipline

119a

in the classrooms.* As defendant ac-

knowledges, the school plays a signifi-

cant role in the development of its stu-

dents and as such, owes a duty to take

such steps as are reasonable and neces-

sary to protect students from harm. Al-

though it is purely speculative, I cannot

help but wonder what liability defendant

might have faced had it failed to take

the next step in combatting the drug and

alcohol problem when confronted with such

clear evidence that students were abusing

drugs and alcohol and engaging in sports.

Also significant is the fact that

* I also note that while I find the Derdeyn

and Hill cases helpful to my analysis of the law

to apply, those cases involve college students

who have, for the most part, reached the age of

adulthood. University programs are far less

structured, class attendance is voluntary and

discipline is largely left to the students. I

also note that the role of an athletic program on

a large University is far different than that of

a rural middle school or high school with limited

alternative activities.

120a

the school district considered and actu-

ally tried several alternative methods of

dealing with the increase in drug and

alcohol related disciplinary problems

prior to instituting the drug testing

program. As I noted earlier, the school

instituted several educational programs

designed to discourage drug use and found

that the "subtle" approach not only

failed, but seemed to cause further dis-

ruptions. Less intrusive "screening"

methods have proven to be ineffective.

As Dr. DuPont explained, visual observa-

tions (even by professionals) are simply

not reliable indicators of whether that

student may have consumed alcohol or

drugs. DuPont testified that, although

some people display outward manifesta-

tions of drug or alcohol use, many others

do not, making application of the reason-

12la

able and individualized suspicion stan-

dard an unreliable and impractical tool

to aid in preventing accidents before

they happen. Thus, random drug urinaly-

sis testing was seen as the next logical

step in a progressive attempt to address

the drug and alcohol problems.

I further find that defendant has

taken significant steps to limit the ex-

tent of the intrusion. Students at Ver-

nonia, like the employees subject to

testing in Skinner and Von Raab, may pro—

duce the sample without a direct eye wit-

ness. Test results remain confidential

and may only be used to suspend the stu-

dent from participation in the athletic

program-test results are not disclosed to

criminal authorities and may not be used

as the basis for school disciplinary pro-

ceedings such as suspension or expul-

122a

sions. The scope of the test is limited

to the detection of illegal drugs and

alcohol, thus ensuring that prescription

drugs or contraceptive use will remain

undisclosed. The testing procedures

used, unlike those in Anable, are highly

effective and have an accuracy of 99.94%.

Finally, the program limits the de-

gree of discretion that may be exercised

by coaches and school administrators.

Testing during the season is random and

thus, does not implicate the kind of un-

fettered discretion which raised the con-

stitutional concerns surrounding automo-

bile "safety checks" in Delaware v.

Prouse.

When I balance all of the factors

present in this case against James' le-

gitimate expectations of privacy, I find

that his privacy interests must give way

1z3a

to the district's need to maintain order

and protect its students from injury by

use of the least intrusive means avail-

able to it. Although I recognize that

the program caters to the lowest common

denominator and that students who have

never consumed alcohol or drugs may suf-

fer a degree of embarrassment, I feel

that defendant has come forward with suf-

ficient evidence to show that its drug

testing program serves a "compelling

need." I emphasize that my holding today

is limited to the unique circumstances

which confronted the Vernonia School

staff. Defendant has proven, beyond all

possible doubt, that it was faced with a

crisis situation in attempting to main-

tain order and discipline. Based upon

the observations of teachers and coaches,

the district came to the inescapable con-

124a

clusion that their problems were directly

related to the students' unlawful use of

alcohol and drugs. Further, the

district's decision to target its athlet-

ic program for regulation given the pre-

dominant role that athletics play in this

small rural community demonstrates that

defendant made every effort to tailor

this program to the least intrusive ex-

tent possible. Thus, whether a similar

program could withstand constitutional

scrutiny in large metropolitan schools or

in other small rural schools will neces-~-

sarily depend, at a minimum, upon evi-

dence of drug related problems, attempts

to address the problems in less intrusive

ways, and establishing a connection be-

tween the stated objectives and the means

125a

chosen to achieve those objectives.”?

Based on the foregoing, I find that

defendant's drug testing program was jus-

tified at its inception and is reasonably

related in, scope to the circumstances

that exist in Vernonia. Accordingly,

plaintiffs have failed to demonstrate

that the defendant's drug testing program

unconstitutionally interferes with their

son's right to be free from unreasonable

searches or seizures under the Fourth

Amendment.

II. The Oregon Constitution, Article I

§ 9

Article I § 9 of the Oregon Consti-

tution provides:

* For example, Vernonia's drug program might

not be "reasonable" as applied to a large metro-

politan high school where the students who engage

in drug use may neither participate in, nor have

contact with students who participate in inter-

scholastic athletics.

126a

"No law shall violate the right

of the people to be secure in

their persons, house, papers,

and effects, against unreason-

able search, or seizure; and no

warrant shall issue but upon

probable case [sic], supported

by oath, or affirmation, and

particularly describing the

place to be searched, and the

person or thing to be seized."

In State v. Owens, 302 Or. 196, 206, 729

P.2d 524 (1986), the court stated that

Article I, section 9 protects privacy

interests, and that a "search" for con-

stitutional purposes occurs when a

person's privacy interests are invaded.

The Oregon Supreme Court has interpreted

Article I, section 9 independently, but

parallel to federal court interpretations

of the Fourth Amendment. State v. Brown,

301 Or. 268, 273, 721 P.2d 1357 (1986).

Oregon courts have not directly ad-

dressed administrative, non-criminal,

suspicionless searches of the type pre-

127a

sented by a school's random drug testing

program.'® However, in State v.

Tourtillott, 289 or. 845, 618 P.2d 423

(1980) cert. denied, 451 U.S. 972, 101

S.Ct. 2051, 68 L.Ed.2d 352 (1981), the

court addressed the constitutionality of

game checkpoint stops.'' puring one of

'° Prior to 1980, the court of Appeals exam-

ined and upheld the validity of administra-

tive, non-criminal searches in four cases and

treated the requirements of Oregon and federal

search and seizure law as interchangeable. See

the Discussion in 46 Op.Atty.Gen. (No. 8191,

Nov. 16, 1987) (Slip Op. at 25), citing Eddie’s

Supper Club v. OLCC, 23 Or.App. 493, 543 P.2da 19

(1975) (OLCC searches of licensed premises with-

Out warrants or individualized Suspicion); State

ex rel. Accident Prev. Div. y. Foster, 31

Or.App. 291, 570 P.2d 398 (1977) (statute allow-

ing warrant to search business premises for safe-

ty violations may issue without individualized

probable cause); State v. Westside Fish Co., 31

Or.App. 299, 570 P.2d 401 (1977) (warrantless

search of food processing plant by Fish and Game

Commission); and Accident Prevention Division v.

Hogan, 37 Or.App. 251, 586 P.2d 1132 (1978) (war-

rant issued without probable cause to determine

compliance with safety regulation).

'' The roadblocks were manned by officers of

the Oregon State Police Game Division and were

set up to check hunters’ compliance with the game

laws, to check hunting licenses and to gather

statistics on hunter success on the opening day

of deer hunting season. Tourtillott, 289 Or. at

128a

these checkpoint stops, Ms. Tourtillott

was arrested for driving with a revoked

license and was ultimately sentenced to

imprisonment for one year. There was no

dispute that the officers had neither

probable cause nor reasonable suspicion

to believe that the defendant had been

involved in criminal activity at the time

she was stopped. On appeal, the defen-

dant argued that the stop violated Arti-

cle I § 9 of the Oregon Constitution and

the Fourth Amendment of the U.S. Consti-

tution because the stop was not based

upon reasonable suspicion. The court

rejected the contention that reasonable

or individualized suspicion was a neces~

sary requisite for a valid stop. In-

stead, the court followed the reasoning

from United States Supreme Court cases

848, 618 P.2d 423.

129a

which upheld the constitutional validity

of border searches and highway safety

checks. Id., 289 Or. at 854-857, 618

P.2d 423. Like the federal decisions,

the Oregon court held that to determine

the reasonableness of the checkpoint stop

procedures, it must balance the

government's interest in the promotion of

legitimate interests against the

defendant's right to be free from unrea-

sonable seizures. Id., at 857-859, 618

P.2d 423. The Oregon court enunciated

the following four factors which it con-

Sidered particularly Significant in de-

termining the constitutionality of a par-

ticular government procedure:

(1) the importance of the govern-

mental interest at stake;

(2) the psychologically and physi-

cally intrusive nature of the

procedure;

(3) the efficiency of the procedure

130a

in reaching its desired goals;

and

(4) the degree of discretion the

procedure vests in the particu-

lar officers.

Id., at 864, 618 P.2d 423. Although the

court ultimately held that the game

checkpoint was lawful, it emphasized that

its holding was limited to determining

the constitutionality of a stop, not a

search. Id., at 861, 618 P.2d 423. The

dissent criticized the majority for its

reliance upon Supreme Court decisions

which involved administrative searches:

"I believe the majority errs in

transferring that evaluation

[of the degree of official dis-

cretion] from the context in

which the Supreme Court devel-

oped it—the context of inspec-

tions for preventative or cor-

rective purposes—to the dif-

ferent and wider context of

seizures aiming at the discov-

ery and punishment of past of-

fenses."

Id., at 873, 618 P.2d 423, Linde, J. dis-

l3la

senting.

Thereafter, in Nelson v. Lane Coun-

ty, 304 Or. 97, 743 P,2d 692 (1987), the

court considered an appeal from a civil

judgment in which the Plaintiff sought

civil remedies against three Oregon state

police officers who stopped and detained

her at a sobriety roadblock. On appeal,

the state argued that the roadblock was

justified under the reasoning in

Tourtillott and as an administrative

search. Compare State v. Anderson, 304

Or. 139, 743 P.2?d 715 (1987) and State v.

Boyanovsky, 304 Or. 131, 743 P.2d 711

(1987) {roadblocks designed to gather

evidence for criminal prosecution of

drunk drivers rather than administrative

enforcement unconstitutional absent indi-

vidualized suspicion). The three-justice

plurality did not reach the issue of the

132a

constitutionality of the roadblock, but

instead decided the case on statutory

grounds, ruling that, unlike the game

regulations which authorized the check-

point in Tourtillott, there was no ex~

press legislative authorization to con-

duct the sobriety checkpoints. The

court's holding appeared to be an out-

growth of the "unconstrained exercise of

discretion" concern voiced by the Supreme

Court in Delaware v. Prouse. Although

the roadblock stops were not the product

of a decision made by a single officer

out in the field as in Prouse, the road-

blocks were developed as part of the Ore-

gon State Police Patrol Technique Manu-

al—a group which is not "politically

accountable," or specifically authorized

by a politically accountable body to con-

duct such inspections. Id., 304 Or. at

133a

105, 743 P.2d 692. In dictum, the plu-

rality suggested that sobriety check-

points might be lawful if properly autho-

rized and “providing sufficient indica-

tions of the purposes and limits of exec-

utive authority, and if carried out pur-

Suant to a properly authorized adminis-

trative program designed and systemati-

cally administered to control the discre-

tion of non-supervisory officers." TI[d.,

at 104, 743 P.2d 692, Citing State v.

Atkinson, 298 or. 1, 9-10, 688 P.2d 832

(1984)." Two dissenting justices argued

that the majority had failed to adequate-

ly consider the state's interest in pro-

tecting its citizens from harm suffered

In Atkinson, the court held that warrant-

less, suspicionless non-criminal “inventory”

searches of lawfully impounded cars were permis-

sible under Article I § 9 if properly authorized

and administered in a Systematic, non-discretion-

ary fashion. Id., 298 Or. at 10, 688 P.2d 832.

134a

by intoxicated drivers and would apply

the four-part test of Tourtillott. >

304 Or. at 115-119, 743 P.2d 692, Peter-

son, C.J. dissenting.

Although Oregon courts have not di-

rectly addressed the issues in this case

or the legal standards to be applied to

administrative searches under Article I

§ 9 of the Oregon Constitution, I find

that the Supreme Court's decisions in

Tourtillott and Nelson provide me with

sufficient guidance to determine the va-

lidity of the challenged drug testing

program in this case. This finding is

influenced, to a large extent, by the

parties' stipulation that jurisdiction is

proper in this court. I agree with coun-

sel that remanding the state constitu-

tional challenge to the state court at

this stage in the proceedings would not

135a

serve the interests of judicial economy,

efficiency or be required in the inter-

ests of comity. Compare Castellano v.

Board of Trustees, 937 F.2d 752, 758 (2nd

Cir.), cert. denied — U.S —, 112 S.Ct.

378, 116 L.Ed.2d 329 (1991) (holding

court ‘should’ dismiss supplemental state

constitutional claim in interest of comi-

ty).

In light of Nelson, I find that I

must first determine whether the drug

testing procedures in this case were

properly "authorized." Under the Oregon

statutes, school districts are considered

“corporate bodies." O.R.S. 332.072.

School boards in each district are ex-

pressly authorized to "transact all busi-

ness coming within the jurisdiction of

the district and to sue and be sued."

Id. Further, school boards are charged

136a

with responsibility "for educating chil-

dren residing in the district" which in-

Cludes determining "what things are det-

rimental to the successful management,

good order and discipline of the schools

and the rules required to produce these

conditions." JId.; and Burkitt et al. v.

School District No. 1, et al., 195 Or.

471, 492, 246 P.2d 566 (1952) (citations

omitted). This grant of authority ex-

pressly includes the power to develop a

drug abuse program as provided by O.R.S.

336.222:

"In accordance with rules

adopted by the State Board of

Education . . . each district

school board shall adopt a com-

prehensive drug abuse policy

and implementation plan includ-

ing, but not limited to...

alcohol and drug abuse preven-

tions curriculum and public

information programs *

Unlike the Oregon State police de-

partment, which is an executive agency,

137a

the Vernonia School Board is a political-

ly accountable bedy. Each board member

is elected by the voters in the District

area. Each is subject to recall and must

face re-election. Thus, voters who op-

pose the policy may lobby the board and

voice their objections through the elec-

toral process.

Based on the foregoing, I find that

the challenged drug testing program is

authorized by Oregon statutes and was

properly promulgated and implemented by

the Vernonia School District.

AS a preliminary matter, I note that

the Oregon Supreme court has not directly

addressed the issue of whether a urinaly-

Sis test is a "search." However, Oregon

courts have held that a "search" occurs

when a person's privacy interests are

invaded. Owens, 302 Or. at 206, 729 P.2a

138a

524. In State v. Milligan, 304 Or. 659,

748 P.2da 130 (1988), the court held that

compelled extraction of blood constitutes

a search under Article I § 9. I find

that a urinalysis test is a “search” un-

der Article I § 9 of the Oregon constitu-

tion. Having determined that the drug

policy is properly “authorized" pursuant

to Oregon law and that the urinalysis

test is a "search," I now turn to the

issue of whether the program is valid

under Article I § 9 of the Oregon Consti-

tution. Based upon the court's holding

in Tourtillott, I find that the relevant

inquiry is whether the program is “rea-

sonable." The “reasonableness" of the

program must be determined by balancing

the school district's asserted interests

against the plaintiffs' right to be free

from unreasonable intrusions into his

139a

privacy. In conducting this balancing

test, I shall consider each of the four

factors articulated by the court.

The first factor is the importance

of the governmental interest at stake.

289 Or. at 864, 618 P.2d 423. In this

case, the school district's interest in

preventing and deterring drug and alcohol

abuse among the student population is

highly significant. As I noted previous-

ly, there is ample evidence in the record

to support the district's claim that al-

cohol and drug use were the primary caus-

es of disruptions and disciplinary prob-

lems during school hours. Further, there

is evidence which tends to show that al-

cohol and drug use contributed to an

athlete's injury and/or would eventually

lead to additional injuries.

The second factor is the psychologi-

140a

cally and physically intrusive nature of

the procedure. Id. Again, as discussed

in greater detail infra, I find that the

district program uses the least intrusive

method possible by insuring the confiden-

tiality of the test results and by per-

mitting students to produce the sample

without direct witness observation. Most

significantly however, is the fact that

the search program was instituted to cor-

rect behavior and deter future unlawful

conduct—it was not designed to punish the

students for past conduct and does not

expose the students to possible criminal

sanctions or investigation.

The third factor, the efficiency of

the procedure in reaching the desired

goals, is best demonstrated by the re-

sults actually achieved in this case.

Disciplinary reports are back down to

14la

"normal" levels and there have been no

subsequent reports of athletic injuries

attributable to drug or alcohol use. As

the school officials testified, the pro-

gram runs smoothly and causes no disrup-

tions to either the school or athletic

progran.

The final factor, the degree of dis-

cretion left to individual officers, is

not implicated by the program at all

Since testing is required of all appli-

cants and then conducted on a randon,

lottery-type basis during the course of

the season.

When I consider all of these factors

in light of the unique circumstances

present in the Vernonia School district,

I find that the balance of interests

weighs heavily in

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