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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 646

## Text

~ 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-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0562%3A02. Public record. Not legal advice.