Opposition Brief — Vernonia School Dist. 47J v. Acton

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Buproms Court, U9

a FILED

| OCT 31 1994

No. 94-590

OFFICE OF Ire CLERK

IN THE 7

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

RESPONDENTS’ BRIEF IN OPPOSITION

Thomas M. Christ

ACLU Foundation of Oregon, Inc.

101 S.W. Main, Suite 2000

Portland, OR 97204

(503) 221-1011

Counsel of Record for Respondents

QUESTION PRESENTED

Does petitioner’s drug testing

program constitute an unreasonable search

under Article I, section 9, of the Oregon

Constitution?

vi.

CONTENTS

Opinions Below .

Jurisdiction .

Constitutional Provisions

Statement of the Case

Reasons for Denying Certiorari

No Federal Question .

Risk of Advisory Opinion .

No Conflict among the Circuits

Inadequate Record... .

Issue Unlikely to Recur .

Issue not Ripe for Review .

No Role for the Court to Play

8. Issue Already Decided. .

Gomeaweaem « «© 6 2

iii

AUTHORITIES

Cases

AFGE, Local 1533 v. Cheney,

944 F.2d 503 (9th Cir.

1991) oe ee

Acton v. Vernonia School

District 47J, 796 F.Supp.

1354 (D. Or. 1992)

Acton v. Vernonia School

District 47J, 23 F.3d

1514 (9th Cir. 1994)

Bluestein v. Skinner,

908 F.2d 451 (9th Cir.

1990), cert. denied 498

U.S. 1083 (1991)

Guiney v. Roache,

873 F.2d 1557 (lst Cir.

1989) *6¢ @ e

Herb v. Pitcairn,

324 U.S. 117, 125-26

(1945) ee

IBEW, Local 1245 v. Skinner,

913 F.2d 1454 (9th Cir.

1990) ee eee

IBEW, Local 1245 v. U.S. NRC,

966 F.2d 521 (9th Cir.

1992) ss « 8

passim

33-34

International Brotherhood of

Teamsters v. Dept. of

Transp.,

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

Kentucky v. Stincer,

482 U.S. 730 (1987)

National Treasury Employees

Union v. Von Raab,

489 U.S. 656

(1989) .... 239, 30-33, 35,

New Jersey v. TLO,

469 U.S. 325 (1985)

Oliver v. United States,

466 U.S. 170 (1984)

Richards v. United States,

369 U.S. 1 (1962)

Ross v. Moffitt,

417 U.S. 600 (1974)

Schaill by Kross v.

Tippecanoe County Sch.

Corp., 864 F.2d

1309 (7th Cir.

1988) .. . . 28-29, 31, 35,

Skinner v. Railway Labor

Executives Ass’‘n,

489 U.S. 602

(1989) .... 29-30, 32, 33,

40-43

42-43

26-27

40-43

State v. Campbell,

306 Or. 157, 759 P.2d

1040 (1988) ‘

State v. Caraher,

293 Or. 741, 653 P.2d

942 (1982) ,

State v. Dixson/Digby,

307 Or. 195, 766 P.2d

1015 (1988) ‘

State v. Hoskinson,

320 Or. 83, P.2d

(1994) 7

State v. Tourtillott,

289 Or. 845, 854, 618

P.2d 423, 427 (1980),

cert. denied, 451 US

Sra Vaneer © « © «¢

Taylor v. O’Grady,

888 F.2d 1189 (7th

Cir. 1988)

Statutes

28 U.S.C. 1254(1)

Constitutional Provisions

Oregon Constitution,

Article I, section 9

United States Constitution,

Fourth Amendment

OPINIONS BELOW

Respondents Wayne and Judy Acton

(the Actons), guardians ad litem for

their son, James Acton, 12, brought this

action to enjoin petitioner Vernonia

School District 47J (the District) from

enforcing a random drug testing program

for student athletes. They alleged that

the program offends Article I, section 9,

of the Oregon Constitution, as well as

the Fourth Amendment to the United States

Constitution, both of which prohibit

"unreasonable searches." The District

Court found no violation of either

constitution and entered judgment against

the Actons. Acton v. Vernonia School

District 47J, 796 F.Supp. 1354 (D. Or.

1992) (Pet. App. B at 76a). They

appealed, and the Court of Appeals

reversed. Acton v. Vernonia School

District 47J, 23 F.3d 1514 (9th Cir.

1994) (Pet. App. A at la). The appeals

court ruled for the Actons on their state

claim and, therefore, found it

unnecessary decide their federal claim.

Id. at 1518 (Pet. App. A. at 16a) ("We

are therefore constrained, in the first

instance, tc decide this case on Oregon

constitutional grounds.").

It.

JURISDICTION

The petition for writ of certiorari

was filed on September 28, 1994, within

90 days of the denial of the District’s

timely petition for rehearing (July 8,

1994). (Pet. App. C at 143a). This

court has jurisdiction under 28 U.S.C.

1254(1).

Itt.

PERTINENT CONSTITUTIONAL PROVISIONS

Article I, section 9, of the Oregon

Constitution reads:

"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."

The Fourth Amendment to the United

States Constitution 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."

Iv.

STATEMENT OF THE CASE

The District’s statement of the case

contains several misstatements, which, as

explained later, may bear on what issues

would be before the Court if it grants

certiorari. The Actons bring them to the

Court’s attention pursuant to Rule 15.1.’

First Misstatement: There was an

"epidemic of drug use" among the

District’s students before the drug

testing policy. (Pet. at 3).

* Curiously, most of the "facts" in the

District’s statement of the case are drawn not from

the evidence but rather from the District Court’s

opinion, which the Court of Appeals overturned. Pet.

at 4n.1. As discussed more fully below, there is

little or no evidence to support the District Court’s

findings about drug use by District students.

In fact, the record contains little

or no evidence that any students were

using drugs. What it contains is mostly

complaints by some teachers about a

perceived decline in student deportment

before the policy was adopted. Students,

the teachers said, were becoming

increasingly unruly, disruptive, and

insubordinate in the classroom, leading

to a perceived (but never proven) rise in

the number of students that teachers sent

to administrators to be disciplined for

misbehaving, commonly known as

"disciplinary referrals." For want of

some other explanation for the change in

student conduct, the teachers assumed

that the unruly students must be on

drugs. This assumption was supported, in

the teachers’ minds, by unconfirmed,

second-hand reports of off-campus drug

use, almost all of it hearsay or hearsay

within hearsay,’ and by reports of

students romanticizing drugs in papers

and hallway conversations.’

For example, the school principal testified:

"Four football players talked to the football coach

and admitted that they have used drugs, and

amphetamines were those drugs, and the coach told

me[{.]) [T]he kids never came forward and said, you

know, they did. ..." Tr. 24. In other words, four

students told the football coach that they had used

amphetamines. The coach told principal what he had

heard, and the principal repeated it at trial. Later,

the principal admitted that he had never actually

caught a student taking drugs and that he was acting

solely on hearsay reports. Tr. 57.

The wrestling coach also testified: "When I was

an assistant coach the head football coach was called

in and I believe it was in the football season of ‘85

and apprised of the fact that parents called and said

that some of their sons -- that other kids on the team

had done drugs on a road trip. .. ." Tr. 104.

Translated, what the wrestling coach said is that the

football coach told him that some parents told the

football coach that some students told the parents

that some other students had taken drugs during a road

trip.

The district court recognized that the

District’s case was built on hearsay, Tr. 143-44, and

allowed the Actons a continuing objection on that

grounds. Tr. 24. The court also said, twice, that it

would not rely on hearsay to find that students were

actually taking drugs, Tr. 25, 116-17, but eventually

it did just that.

> A teacher who taught composition to 90 or so

students each year for 13 years testified that 8 or 9

of them -- which works out to less than one percent of

all of her students -- had written papers that

romanticized drugs. Tr. 88, 91, 98. There is no

evidence that any of those students, or others who

were overheard in the hallway bragging about drug use,

actually took drugs, or that this was anything but

Clearly, the teachers thought they

had a drug "problem," which, of course,

is a "matter of perception or

definition," as the Court of Appeals

noted. 23 F.3d at 1519 (Pet. App. A at

20a). But they never came close to

proving that they actually had a drug

problem, certainly not one of "epidemic"

proportions, as the District suggests in

its petition.

Second Misstatement: Drug use

"invaded the [District’s] sports

juvenile bravado.

Some teachers testified that an unspecified

group of students took to calling themselves the "Big

Elks," for some unknown reason. Tr. 68-69, 81, 128-

31. They went around the school “bugling”" and butting

their heads together, again for unknown reasons. Tr.

91. Amother group called itself the "Drug Cartel“ and

did equally strange things. Tr. 91. As usual, school

officials assumed that all strange behavior must be

drug-induced, not simply juvenile, and thus concluded

that these two cliques were part of some underground

drug culture. Pet. at 7 n. 4. There is no evidence,

however, that any "Elk" or "Cartellian" actually took

drugs.

program," endangering the athletes.

(Pet. 7).

If there is little evidence of drug

use in the classroom, there is no

evidence of drug use in the sports

program. Indeed, the District conceded,

in a pre-trial interrogatory, that it was

unable to confirm even one drug-related

injury in the entire history of its

sports program. Ex. 4. The District

"suspects" that one athlete may have been

injured while competing on drugs, but

that suspicion is based on evidence so

skimpy it barely passes the straight-face

test.‘ There simply is no tenable

* The wrestling coach testified that a high

school student was injured in an “away” match when he

failed to react quickly to a hold his opponent put on

him. Tr. 110-11. The next day the coach went to the

hotel room the wrestler was sharing with three other

students. While there the coach smelled what he

believed to be marijuana and concluded that “somebody

in the room was smoking." Tr. 111-12. Of course,

that "somebody" was not necessarily the injured

wrestler, and even if it was him, it does not follow

that he had also smoked marijuana before the match the

day before. The coach was the first to admit that

evidence of any student ever competing in

a District-sponsored athletic event while

under the influence of illegal drugs.°*

Third Misstatement: The drug

testing policy “accomplished its goal."

(Pet. at 13-14).

The goal of the policy was to keep

student athletes from competing while

under the influence of drugs and thus to

prevent athletic injuries. But since

there is no evidence that any students

were in fact taking drugs and then

competing, and since there were as many

this evidence leads nowhere: “There was no way of

particularly proving at that point in time whether he

was under the influence [during the match])." Tr. 112.

. The Court may be as baffled as the Actons

by the District’s assertions that (1) drug use was

rampant in its sports program and (2) drug-affected

athletes present a grave risk of harm to themselves

and their opponents, when the District admits that

there have been no confirmed drug-related athletic

injuries in the history of its sports program. That

admission appears to disprove at least one of those

assertions, if not both of then.

drug-related athletic injuries before the

policy took effect as after -- to wit,

none -- it is impossible to conclude that

the policy accomplished anything except

an invasion of student privacy.

It is true that some teachers noted

an improvement in classroom behavior

after the policy was adopted, but that

wasn’t the goal of the policy -- at least

not the stated goal.* Moreover, since

there is no basis for finding that the

previously unruly students were unruly

because of drugs, there is no basis for

concluding that the policy had anything

to do with the turnaround in their

As discussed below, the policy originally

applied to all extracurricular activities, athletic

and nonathletic, Tr. 45-46; Ex. 5 at 16, and thus

affected almost every student in the district.

Later, the District limited the policy to

extracurricular athletics. Tr. 45-46. Even with that

limitation, the policy still affected over half of the

student body. Tr. 20, 58; Ex 5 at 5.

behavior. The policy could not alter a

condition that did not exist.’

Even if classroom deportment was

entirely drug-driven, and even if the

improvement in deportment was due solely

to a decline in drug use -- big ifs on

this record -- it still cannot be

asserted, without resort to guesswork and

speculation, that the decline in drug use

was due to drug testing, rather than to

the District’s other drug eradication

programs.

The District’s own expert, Dr.

DuPont, testified that drug use among

high school students has declined

steadily, both statewide and nationwide,

since the mid-1980s, which includes the

A school principal testified that it seemed to

him that the number of disciplinary referrals rose

before the policy was adopted and declined afterwards.

Tr. 21, 43-44. But he provided no statistics to back

this up. Moreover, there is no evidence that any of

the referrals, before or after, were for illicit drug

use.

period of time when the District’s drug

testing policy was in force. Ex. 106 at

13-15, 74; see also Tr. 45 and Ex. 106.

Whatever caused this trend -- Dr. DuPont

attributes it to decreasing societal

tolerance of drugs and widespread

publicity over the drug-related deaths of

Len Bias and other prominent athletes --

may also account for the trend observed

in Vernonia (if in fact there was a trend

there).

Fourth Misstatement: The Ninth

Circuit held that the District’s drug

testing policy violates the Fourth

Amendment. Pet. at 17.

It is sometimes hard to tell whether

a case has been decided on state or

federal grounds where, as here, the

complaint includes both state and federal

claims. In this case, however, the Ninth

Circuit took care to explain that it was

ruling for the Actons on their state

constitutional claim, "in order to avoid

addressing federal constitutional claims

unnecessarily." 23 F.3d at 1518 (Pet.

App. A at 12a-13a). At the outset of its

opinion, the court said: "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." Id.

(Pet. App. A at 12a). The court then

noted that, although Article I,

section 9, and the Fourth Amendment are

worded almost exactly the same, Oregon

nonetheless "insists that its

constitutional provision can give more

protection than the federal constitution

and that it sometimes does so." Id.

(Pet. App. A at 13a-14a) (citing cases).

"Furthermore," the court said, "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." Id. (Pet. App. A at 15a)

(again citing cases).*® The court

concluded, therefore, that it was

“constrained, in the first instance, to

decide this case on Oregon constitutional

grounds." Id. (Pet. App. A at 16a).

The court then proceeded with a

lengthy discussion of Article I,

section 9, and the Oregon cases

* In one of the cited case, State v. Tourtillott,

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

denied, 451 US 972 (1981), the Oregon Supreme Court

said that it would apply "the Fourth Amendment

analyses" of the United States Supreme Court,

"although we are at liberty to adopt a stricter test

under our own constitution."

construing it, which establish a

three-part test for deciding Article I,

section 9, search cases: (1) Was there a

search? (2) Did the officials conducting

the search have authority to do so? and

(3) Was the search reasonable? Id. at

1519 et seq. (Pet. App. A at 22a et

seq.). To the extent that Oregon

precedents left some holes in the

analysis, the court looked for guidance

to federal caselaw. But the federal

citations do not change the fact that

what the court was deciding -- and all

that it was deciding -- was whether the

District’s drug testing policy complied

with the Oregon Constitution. That is

why Judge Reinhardt felt compelled to

write a concurring opinion in which he

expressed his view that the majority

opinion decided the case on both the

state claim and the federal claim.

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

Omitted Facts: The District’s

statement of the case does not fully

describe its drug testing policy.

As first enacted, the policy applied

to any student who wished to participate

in any extracurricular activity, athletic

or nonathletic, including, for examples,

band, drama, and student government. Tr.

45-46; Exh. at 15-16. Later, concerned

that it might be overreaching, the school

board limited the policy to athletics.

Tr. 46-47.

As amended, the policy provides that

no student at any level -- first grade

through twelfth -- may participate ina

district-sponsored athletic program

unless he consents, through his parent or

guardian, to have his urine tested for

certain illicit drugs at the start of the

program, and also consents to random

testing during the course of the program.

Exh. 1. The drugs for which the district

tests are cocaine, marijuana,

amphetamines, and, occasionally, LSD.

Exh. 4 at 4-5; Exh. 5 at 15, 17, and 24.

Notably absent from this list is the most

commonly abused drug -- alcohol. Id.’

Also excluded are steroids or other

performance-enhancing substances. Id.

Every athlete is tested at least

once each year, at the start of the first

athletic season in which he competes.

Exh. 4 at 1; Exh. 5 at 21. Thus, if a

student tries out for football or cross

country, he will be tested in the fall.

The District Court erred when it said the

District tests for alcohol. Pet. App. B at 92a.

If he skips fall and winter sports in

favor of track or golf, he will be tested

in the spring.

Student athletes are also subject to

random tests, conducted weekly during

each athletic season. Their names are

written on separate pieces of paper and

placed together in a box. A student is

then selected to draw several names from

the box while two teachers watch. The

students whose names are drawn are

notified and tested that same day; some

are even called from class for testing.

Afterwards their names go back in the

box. Tr. 47-48; Exh. 4 at 3. There is

no guarantee that any given student will

ever be selected for random testing. On

the other hand, there is no guarantee

that any given student wili not be

selected each week of every season in

which he or she competes. Exh. 5 at 21.

The method of testing depends on the

sex of the student. Boys are taken to

the locker room, where, one at a time,

they urinate into a vial while a male

teacher watches and listens close behind.

Tr. 38-41, 121-127; Exh. 4 at 4; Exh. 5

at 21-22. Girls produce their samples in

an enclosed stall while a female teacher

stands outside listening for the normal

sounds of urination through a vent in the

door. Tr. 72-75, 78-79; Exh. 4 at 4;

Exh. 5 at 21-22.

Any student who refuses to be

tested, as James Acton did, is

automatically suspended from the sports

program for the remainder of the athletic

season. Exh. 1 atl. If a student

flunks the test -- that is, if his urine

tests "positive" for the presence of the

target drugs -- he will be disciplined as

follows. For a first "offense" the

student will be given a choice between

"(p]anticipating in an assistance program

and taking weekly drug tests for six

weeks" or "be[ing] suspended from

participating in athletics for the

remainder of the current season and the

next season for which he/she is

eligible." Id. at 2. For a second

"offense" the first option is removed;

the student is suspended for the

remainder of the current season and all

of the next season. Id. A third

"offense" results in suspension through

the next two seasons. Id.’°

20 At trial, Randy Aultman, the principal of

James’s grade school, was confused about the exact

terms of the policy. He testified that a student who

commits a second "offense" may continue participating

in athletics if he submits to weekly counseling and

drug testing. Tr. 51-53. The written policy -- which

is alleged in the complaint and admitted in the answer

In the three and one-half years of

testing before the trial in this case,

only two students, both in high school,

tested "positive." Tr. 64; Exh. 5 at 24.

Vv.

REASONS FOR DENYING CERTIORARI

There are several reasons to deny

certiorari. Here are the main ones:

1. No Federal Question

The Court of Appeals decided this

case under state law, not federal. It

held that the District’s drug testing

policy violates Article I, section 9, of

the Oregon Constitution. In deciding

what Article I, section 9, requires, the

court referred, at times, to Fourth

Amendment cases, believing the Oregon

-- Clearly provides that a second "offense" results in

an automatic suspension.

Supreme Court would do the same, since

there are no Oregon drug testing cases.

But that does not change the fact that

what the Court of Appeals was doing was

speculating on how the Oregon Supreme

Court would decide this case under Oregon

law if it had been filed in state court.

This Court should not join in that

speculation. Instead, it should follow

its long-standing practice of deferring

to the lower federal courts on issues of

state law. See, e.g., Richards v. United

States, 369 U.S. 1, 16 n. 35 (1962).

2. Risk of an Advisory Opinion

The Court of Appeals concluded that

the District’s drug testing policy

violates the Fourth Amendment and,

therefore, that it must also violate

Article I, section 9, of the Oregon

Constitution, because Article I, section

9, provides at least as much protection

as the Fourth Amendment, and probably

more. As the court explained, "We can

say with absolute confidence that the

Oregon Constitution will not be construed

[by Oregon courts] to offer less

protection than the Fourth Amendment.

[And] [i]t is highly likely that it will

be found to offer more protection."

23 F.3d at 1518. That being so, a

decision by this Court, whichever way it

went, would not affect the judgment

below. If the Court agrees that the drug

testing policy violates the federal

constitution that would, of course, leave

the judgment intact. The result would no

doubt be the same if the Court decided

that the policy did not violate the

federal constitution, because the Court

of Appeals, on remand, could still decide

-- and given its view of Oregon law,

probably would decide -- that the policy

nevertheless violates the more-shielding

state constitution. It follows that an

opinion by this Court on the impact of

the Fourth Amendment on the District’s

drug testing policy would probably be

advisory and would not resolve this case.

The situation might be different if

Oregon, like some states, construed its

bill of rights to be coextensive with the

federal Bill of Rights. Then, a ruling

by this Court on the reach of the Fourth

Amendment would decide as well the reach

of Article I, section 9, and thus

conclude this action. Compare Kentucky

v. Stincer, 482 U.S. 730, 735 n. 7 (1987)

(although the Kentucky Supreme Court

found violations of both the Kentucky

Constitution and the Sixth Amendment, it

gave no indication that respondent’s

rights under the former were broader than

under the latter, and thus the Supreme

Court’s resolution of the federal claim

would also decide the state claim). But,

as the Ninth Circuit noted, the Oregon

Supreme Court has repeatedly said that

Oregon’s constitutional safeguards may --

and often do -- reach farther than their

federal analogues despite similarities in

language.

This is especially true of Article

I, section 9. The Oregon Supreme Court

has regularly held that Oregon’s

search-and-seizure provision is not

coterminous with the Fourth Amendment,

and therefore is not controlled by

federal caselaw. For example, in State

v. Caraher, 293 Or. 741, 653 P.2d 942

(1982), the court abandoned Fourth

Amendment jurisprudence in deciding

whether a search incident to arrest was

lawful under Article I, section 9. The

court continues to chart its own course

on that particular issue, disregarding

federal precedents. See State v.

Hoskinson, 320 Or. 83, __ P.2d __

(1994). In 1988, the court rejected the

federal "reasonable expectation of

privacy" test for determining what

interests Article I, section 9, protects.

State v. Campbell, 306 Or. 157, 759 P.2d

1040 (1988). That same year, the court

declined to adopt an "open fields"

exception to the warrant and suspicion

requirements of Article I, section 9,

similar to the exception this Court

adopted for the Fourth Amendment in

Oliver v. United States, 466 U.S. 170

es —

(1984). State v. Dixson/Digby, 307 Or.

195, 766 P.2d 1015 (1988). Clearly,

Oregon follows its own compass in

deciding whether a government-ordered

search is reasonable under the state

constitution.

Years ago, Justice Jackson, writing

for the Court, observed: "[O]ur power is

to correct wrong judgments, not to revise

opinions. We are not permitted to render

an advisory opinion, and if the same

judgment would be rendered by the [lower]

court after we corrected its view of

federal laws, our review would amount to

nothing more than an advisory opinion."

Herb v. Pitcairn, 324 U.S. 117, 125-26

(1945). In the case at hand, an opinion

from this Court would be nothing more

than advisory, because even if the Court

held that the District’s drug testing

policy does not offend the federal

constitution, the lower court would not

be compelled thereby to disturb its

conclusion that the policy offends the

state constitution.

3. No Conflict among the Circuits

The District suggests that the Ninth

Circuit’s decision in this case is in

conflict with the Seventh Circuit’s

decision in Schaill by Kross v.

Tippecanoe County Sch. Corp., 864 F.2d

1309 (7th Cir. 1988), which involved a

random drug testing program similar in

some respects to the one at issue here,

but also dissimilar in several other

respects.** In fact, there is no

1. The drug testing program at issue in Schaill

was much less intrusive than the one at issue here.

It did not apply to elementary school students, 864

F.2d at 1310; students were not observed while

urinating, id. at 1311; and a student who flunked the

test was not suspended from all competition, id. at

1311 and 1319. Moreover, in Schaill, unlike here, the

conflict between the cases, because, as

explained above, this case was decided

under the Oregon Constitution, whereas

Schaill was decided under the federal

constitution.

Moreover, Schaill is no longer good

law. Schaill, decided in 1988, upheld a

drug testing program for high school

athletes because, the court said, the

school district had a "substantial"

interest in testing. 864 F.2d at 1321.

But that is the wrong test. In Skinner

v. Railway Labor Executives Ass’n, 489

U.S. 602 (1989), and National Treasury

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

(1989), decided after Schaill, this Court

held that the government-sponsored drug

testing is constitutional if the

record contained substantial evidence of both drug use

by athletes and drug-related athletic injuries. Id.

at 1310 and 1320.

government has a "compelling" interest in

testing. Skinner, 489 U.S. at 628

("(T]he government interest in testing is

compelling.") and 633 ("In view of our

conclusion that, on the present record,

the toxicological testing contemplated by

the regulations is not an undue

infringement on the justifiable

expectations of privacy of covered

employees, the Government’s compelling

interests outweigh privacy concerns.") ;

Von Raab, 489 U.S. at 677 ("In sum, we

believe the Government has demonstrated

that its compelling interests in

safeguarding our borders and the public

safety outweigh the privacy expectations

of employees who seek to be promoted to

positions that directly involve the

interdiction of illegal drugs or that

require the incumbent to carry a

firearm.") and 679 ("We hold .. . The

Government’s compelling interests in

preventing the promotion of drug users to

positions where they might endanger the

integrity of our Nation’s borders or the

life of the citizenry outweigh the

privacy interests of those who seek

promotion to these positions ... .");