Amicus Curiae Brief — Vernonia School Dist. 47J v. Acton

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No. 94-590

In the Supreme Court of the

OCTOBER TERM, 1994

VERNONIA SCHOOL DISTRICT 47J, PETITIONER

Vv.

WAYNE ACTON AND JUDY ACTON, ETC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

DREwW S. DAys, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

PAUL BENDER

Deputy Solicitor General

RICHARD H. SEAMON

Assistant to the Solicitor

General

LEONARD SCHAITMAN

EDWARD HIMMELFARB

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

in)

QUESTION PRESENTED

Whether petitioner violates the Fourth Amendment by

requiring students who wish to participate in

interscholastic sports to agree to take suspicionless

urine tests for alcohol and illegal drugs.

(I)

TABLE OF CONTENTS

Page

BS Gr UD WPUIIIOE CORIO cncccccccccccccccccccccccccscccccccccecccccceee 1

a ss cunssesssonnonooscooccoes 3

a acrcacecsnsnanansecnccoves 10

Argument:

Petitioner’s program for the suspicionless drug testing

of student athletes comports with the Fourth Amend-

RIE Gubesctiittdendencsncbeccntasccssedsnscscescsccncscccscccececcccceccoceces 12

I. Petitioner’s drug-testing program should be re-

viewed under the balancing approach of Skinner

ited cbceccnencescnsccszcccnsoccccocece 12

II. Petitioner’s drug-testing program is reasonable

under the balancing approach of Skinner and Von

I cnc eccentincenennnonccncnscooecs 15

A. Petitioner’s drug-testing program serves com-

pelling governmental interests that would be

jeopardized if individualized suspicion were

ST iiilineiensentennsaneidetsccensenscaceszesccceeseceses 17

B. Petitioner’s drug-testing program poses only a

limited threat to the legitimate privacy interests

of students covered by the program ................... 23

C. Petitioner’s drug-testing program has safeguards

to prevent random or arbitrary searches by

as ccccrecesanengnasncecee 24

orc ceessesnsensnssonscoossooooscoes 26

TABLE OF AUTHORITIES

Cases:

Brown v. Boar? of Education, 347 U.S. 483 (1954) ......... 17

Camara v. Municipal Court, 387 U.S. 523 (1967) ............ 25

Delaware v. Prouse, 440 U.S. 648 (1979) ................ 9, 15, 25

- Griffin v. Wisconsin, 483 U.S. 868 (1987) ...................0000 16

Mapp v. Ohio, 367 U.S. 643 (1961) .............ccccceccseseeeeeeeees 12

(IIT)

Cases—Continued: Page

Michigan Dep't of State Police v. Sitz, 496 U.S. 444

CRED ecncrenscanensnscsccnsssnamesnistannnniinnbigenetninadinsaienn 25

Nationai Treasury Employees Union v. Von Raab,

GBD US. GEG (BGBB) ...cccccccccccccccccescccccccccccccccscccesscensccceses passim

New Jersey v. T.L.O., 469 U.S. 325 (1985) ............ 2, 11, 13, 15,

16, 17, 24, 25

New York v. Burger, 482 U.S. 691 (1987) ................:00cs0e 16

O'Connor v. Ortega, 480 U.S. 709 (1987) ............cccceceeeeee ee 16

Schall v. Martin, 467 U.S. 253 (1984) .0..............ccccecceeeeees 24

Skinner v. Railway Labor Executives’ Ass'n, 489 U.S. 602

CERIO ccscccccneseacesdavencesedsenesdasetasenesnsmemasesiniimdbnietneie passim

Constitutions and statutes:

CED, GURER, BI, BY ccccccnsseccscssecnensncnscossmneninnsaseseneinnate passim

Ga, GI, Bis WO ectnttiicrccsieccisicesediiennnniidcinteidntaetbiiemnaniics 7,8

Drug-Free Schools and Communities Act of 1986,

SD WEBAS. GGUS BIB, ccencreccccescnsssccccnsescaszsensseccessessscereees 1, 18

SD TR. FR cecnentetteninsinntinenttiscineiivins 17

20 U.S.C. 3192(d) (Supp. V 1993) ............cccccceseeeees 2

Goals 2000: Educate America Act, Pub. L. No. 103-227,

§ 102(7), 108 Stat. 182-133 (1994) 00.0.0... cece eeeseeeeeeeeeeees 2

Improving America’s Schools Act of 1994, Pub. L. No.

103-382, 108 Stat. 3518:

BB GK renee naoe 17

FF & F&F eer ee roneeen 2, 18

ge & § & i+ (j- Genoa 2

Oe i Se eich cataieialiieelearaiiernicias inline tistical 7

Miscellaneous:

Bureau of Justice Statistics, U.S. Dep’t of Justice,

Teenage Victims: A National Crime Study Report

ee 22

1 Core Institute, Southern Illinois Univ., Alcohol and

Drugs on American College Campuses (1989-1991) ........ 17-18

S. Greenbaum, Drugs, Delinquency, and Other Data

CRED ceccnenssetnnrtremnstsensnsntapisinemeindiiamsinaainiinpetaninnes 18

H.R. Rep. No. 425, 108d Cong., 2d Sess. (1994) .........0.0-+. 18, 21

Miscellaneous—Continued:

1 National Institute on Drug Abuse, National Survey

Results on Drug Use from the Monitoring the Future

i I

National School Boards Association, Violence in the

Schools: How America's School Boards Are Safe-

guarding Our Children (1998) ..........ccccccccceceseseecsececeeeeee

2 Office of Juvenile Justice and Delinquency Prevention,

Office of Justice Programs, U.S. Dep’t of Justice,

Juvenile Justice (Spring/Summer 1994) ...............0000000..

Office of National Drug Control Policy, Executive Office

of the President, National Drug Control Strategy:

Reclaiming Our Communities from Drugs and Violence

Ga TURE sacseiinccnscisaiteiisit leeteiinaletetilepainbcniatabiataidhinasnapaiaiipacigiaen

Page

17, 18

In the Supreme Court of the Gnited States

OCTOBER TERM, 1994

No. 94-590

VERNONIA ScHoo.L District 47J, PETITIONER

YD.

WAYNE ACTON AND JupDY ACTON, ETC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether a school

district may, consistently with the Fourth Amendment,

conduct suspicionless drug testing of student athletes.

Although education is primarily the responsibility of

state and local governments, the federal government has

a substantial interest in the question presented here.

The federal government provides large amounts of

money to support state and local drug-education and

drug-prevention programs. Of particular relevance,

Congress has authorized federal grants under the Drug-

Free Schools and Communities Act of 1986 (1986 Act) to

be used for, among other things, “non-discriminatory

(1)

random drug testing programs for students voluntarily

participating in athletic activities.” 20 U.S.C. 3192(d)

(Supp. V 1993).' In addition, the federal government has a

strong interest in preserving flexibility for school

districts in designing programs and policies that will

enable them to achieve the National Education Goals, one

of which is to minimize student drug use and create an

environment conducive to learning in the schools. Goals

2000: Educate America Act, Pub. L. No. 103-227, § 102(7),

108 Stat. 132-133 (1994). The United States participated

as an amicus curiae in New Jersey v. T.L.O., 469 U.S. 325

(1985), which addressed the application of the Fourth

Amendment to searches of school students by school

officials. Moreover, federal officials were parties to

cases in this Court involving Fourth Amendment

challenges to drug-testing programs for employees. See

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S.

602 (1989); National Treasury Employees Union v. Von

Raab, 489 U.S. 656 (1989).

' The Department of Education, which administers the 1986

Act, advises us that more than $390 million was appropriated

under the Act for state and local education authorities for fiscal

year 1993; the amount appropriated for fiscal year 1994 was more

than $274 million. The Department of Education also advises us

that petitioner has received yearly grants under the 1986 Act of

approximately $7,500. In October, 1994, Congress enacted a

reauthorization of the 1986 Act; the new Act takes effect in July,

1995. Improving America’s Schools Act of 1994, Pub. L. No. 103-

382, § 101, 108 Stat. 3672-3690. Although the new Act does not

explicitly authorize the use of federal grants for random drug

testing of student athletes, that use continues to be permitted

under the new Act. See 108 Stat. 3682-3684.

STATEMENT

l.a. Vernonia, Oregon, is a logging town of about 3000

people located northwest of Portland. Petitioner,

Vernonia School District 47J, runs two schools there:

Washington Grade School and Vernonia High School.

Pet. App. 2a, 77a. Until the early 1980s, discipline was

not a major problem at the schools, and illegal drug use

was limited to “‘fringe’ elements” among the students.

Id. at 79a.

That situation changed between 1985 and 1989. During

that period, the schools confronted a “marked increase

in disciplinary problems, student drug use, and the

glorification of drug culture.” Pet. App. 2a. Drug para-

phernalia was confiscated from students. /d. at 8la.

Students smoked marijuana at a coffee shop across the

street from the high school. Students boasted about

their drug use, telling teachers that there was nothing

the school could do about it. /d. at 80a-81a; see also Tr.

21, 26. Students formed organizations, such as the

“Drug Cartel” and the “Big Elks,” that glorified drug

use. Pet. App. 4a. There was a threefold increase in

classroom disruptions and disciplinary reports. /d. at

80a-81la, 86a.

The drug and discipline problems centered around the

student athletes. Student athletes made up most of the

membership of the “Big Elks,” which distinguished itself

by bizarre behavior that teachers believed could only be

due to drug use. Tr. 129. Several student athletes were

caught drinking alcohol in a bus after a game; others

were caught stealing alcohol from a store after a track

meet. Pet. App. 8la. A student wrestler hurt himself by

failing to execute a basic safety maneuver at a wrestling

meet. His coach attributed the injury to drug use

because the team had practiced the maneuver repeatedly

and because the student’s hotel room reeked of marijuana

when the coach visited it on the morning after the meet.

Id. at 8la-82a. The same coach testified that drug use

was affecting some student football players by causing

them to ignore or forget basic safety routines. Jd. at 82a;

see also Tr. 110-113.

School officials talked to parents and students, who

confirmed that the increasing discipline problems were

caused by the increasing student drug use. Further

investigation showed that the leaders among the student

drug users were the student athletes. Pet. App. 83a.

That caused particular concern because school athletics

“play a dominant role in the community and student

athletes are well known and admired.” /d. at 77a-78a.

School officials considered and tried several measures

before adopting the drug-testing program at issue here.

They held numerous, ongoing drug-education programs,

which had no discernible effect. Pet. App. 84a-85a. On

one occasion, they brought a drug-sniffing dog into one of

the schocis. /d. at 85a. They even considered “mass

expulsion” of the offending students. /d. at 86a-87a.

In 1988, school officials began to consider adopting a

drug-testing program. The program at issue here was

implemented in the fall of 1989, after it had been endorsed

at a meeting of parents and approved by the School Board

and the Superintendent. Pet. App. 4a, 87a-88a.

b. Under petitioner’s drug-testing program, a student

who wishes to participate in interscholastic sports

(which are held for grades 7 and above) must sign, and

have his parents or guardians sign, a form consenting to

the drug testing of the student. Each student athlete is

tested for drugs before each sports season. In addition,

10% of the student athletes are tested each week of the

season based on a lottery system. Any student athlete

who refuses to be tested may be suspended from the

athletic program. Pet. App. 4a-5a, 88a-89a; Tr. 47.

The testing procedure during the season is essentially

the same for male and female students at both the grade

school and the high school. A student goes into a locker

room, where he or she is given a cup and a vial by a

teacher or coach of the student’s gender. Male students

go to a urinal and urinate into the cup, fully clothed and

with their backs to the adult monitor; female students go

into an enclosed toilet stall to produce their samples.

The monitors are close enough to hear the student

urinate. The student hands the cup to the monitor, who

pours its contents into the vial. The student puts a lid on

the vial; the monitor seais the vial with security tape;

and they both sign and date the tape. A specimen control

number is written on the tape; the vial is put into a

plastic bag; and the bag is sealed. The student then

completes a control form affirming that the sample is his

or hers. Pet. App. 5a-6a, 89a-9la; Tr. 38, 73-75.

The urine samples go to Metrolab, a private laboratory

in Portland. Metrolab tests them for alcohol, ampheta-

mines, cocaine, and marijuana, with an accuracy rate of

99.94%. If a sample tests positive, Metrolab tests it

again. Metrolab reports positive results to the school by

telephone and in writing. Pet. App. 7a, 92a.

The school takes action only if a sample tests positive

twice. In that event, the school meets with the student

and his or her parents or guardians. At the meeting, the

student is given a choice: If the student wishes to stay

in the athletic program, he or she must agree to receive

drug counselling and be tested every week for six weeks;

otherwise, the student is suspended from the athletic

program for the rest of that season and the following one.

The student has this choice both the first time and the

second time that the student has a confirmed positive

drug test. The third time a student tests positive for

drugs, however, he or she is suspended from the athletic

program for the rest of the season and the next two

seasons. Pet. App. 7a-8a, 93a; Tr. 50-53.

Petitioner's written policy states that the drug-

testing program “is not punitive.” PX 1, at 2. Test

results are available only to certain school officials;

otherwise, they “remain confidential.” Pet. App. 121a.

Test results “may only be used to suspend the student

from participation in the athletic program—test results

are not disclosed to criminal authorities and may not be

used as the basis for school disciplinary proceedings

such as suspension or expulsions.” /d. at 121la-122a.

At the end of the first school year in which the drug-

testing program was implemented (1989-1990), the

number of disciplinary referrals decreased to 50% of

those for the previous year. Tr. 22, 43; see also Pet. App.

34a-36a. School officials attributed the decrease pri-

marily to the drug-testing program. Tr. 44-45, 137; see

also Pet. App. 34a.

c. In the fall of 1991, James Acton, a seventh-grader in

the Washington Grade School, signed up for the football

team. He also took the physical examination that peti-

tioner requires (independently of the drug-testing pro-

gram challenged here) of all students who wish to

participate in interscholastic sports. As part of that

exam, he provided a urine sample. Pet. App. 94a & n.2;

Tr. 13-14. At the first football practice, he was given the

consent form that had to be signed under petitioner’s

drug-testing program. James and his parents refused to

sign it. Because of their refusal, James could not try

out for the football team. Jd. at 9a, 94a-95a; Tr. 7-9, 12-13.

2. James’ parents, respondents here, brought this

action against petitioner in the United States District

Court for the District of Oregon, relying on 42 U.S.C.

1983. They claimed that petitioner’s drug-testing pro-

gram violates the Fourth Amendment of the United

States Constitution and Article I, Section 9, of the

Oregon Constitution. They sought declaratory and

injunctive relief barring the program. Pet. App. 76a.

After a bench trial, the district court entered judgment

for petitioner, holding that the program comports with

the Fourth Amendment and the cognate provision of

Oregon's Constitution. /d. at 76a-142a.

To decide the Fourth Amendment issue, the district

court “engage[d] in a balancing test.” Pet. App. 113a-

114a. Under that test, the court required petitioner to

“demonstrate a ‘compelling need’ for the program” that

outweighed the student’s legitimate expectation of

privacy. /d. at 114a. The court held that petitioner made

that showing, based on the following determinations:

(1) drug use was threatening the physical safety of

student athletes, id. at 115a-116a;

(2) student athletes are role models for other

students, including with regard to the use (or non-

use) of drugs, id. at 116a-117a;

(3) the drug-testing program is aimed at the one

activity—participation in interscholastic sports—

that causes it to have the greatest deterrent effect,

id. at 117a;

(4) student athletes have diminished expectations of

privacy, compared to other students, because they

are required to have physical examinations, and they

have little privacy in the locker room, id. at 117a-

118a;

(5) the drug-testing program was adopted, not as

a “fishing expedition” or a “moral crusade,” but

instead “for the limited purposes of addressing

student safety in athletic programs and, ultimately,

maintaining discipline in the classrooms,” id. at

118a-119a;

(6) “the school district considered and actually tried

several alternative methods of dealing with the

increase in drug and alcohol related disciplinary

problems” before turning to drug testing, id. at 119a-

120a;

(7) petitioner took “significant steps” to limit the

intrusiveness of the testing, in that students are not

watched when they give urine samples, the samples

are tested only for alcohol and certain illegal drugs,

and the test results are highly accurate, confidential,

and used only to determine eligibility for inter-

scholastic sports, id. at 121la-122a; and

(8) the drug-testing program “limits the degree of

discretion that may be exercised by coaches and

school administrators,” since it provides for testing

of all student athletes at the beginning of each season

and on a lottery basis during the season, id. at 122a.

The district court engaged in a similar analysis to

conclude that the drug-testing program satisfies Article

I, Section 9, of the Oregon Constitution. Pet. App. 138a-

142a.

3. The United States Court of Appeals for the Ninth

Circuit reversed, holding that petitioner’s drug-testing

program “is invalid under the Fourth Amendment,” and,

consequently, that “Oregon would find it invalid under

Article I, Section 9, of its Constitution.” Pet. App. 65a.

(The latter holding followed from the first, the court of

appeals determined, because Oregon courts would con-

strue the state constitutional provision to provide at

least as much protection as does the Fourth Amendment

in this case. /d. at 18a; see also id. at 66a (Reinhardt, J.,

concurring).)

Before addressing respondents’ constitutional chal-

lenges, the court of appeals rejected their challenge to

the district court’s findings of fact (Pet. App. 19a-20a):

[The record] demonstrates that both the ad-

ministrators 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, they were told of incidents by others who were

concerned and who had no reason to lie.

The court of appeals analyzed the constitutionality of

the program in light of four factors that it derived from

Delaware v. Prouse, 440 U.S. 648 (1979) (Pet. App. 31a):

(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.

The court determined that the third and fourth factors

“weigh in favor of the [program’s] constitutionality.” Jd.

at 34a. As to the third factor, the court observed that the

program “vests no discretion in any District officials.”

Id. at 37a. As to the fourth factor, the court observed

that “[e]very teacher who-testified had noticed an im-

provement in discipline, a reduction in disciplinary refer-

rals, and a decrease in drug use and the glorification of

drug culture since the [program] was implemented.” /d.

at 34a.

The court of appeals nonetheless determined that the

first and second factors were “dispositive” of the drug-

testing program’s unconstitutionality. Pet. App. 37a. In

the court’s estimation, the school’s goals of protecting

student athletes and deterring drug use by all students

are “worthy” but do not concern “the type of potential

disaster that has caused [this] Court or [the Ninth

Circuit] to find a governmental interest compelling

enough to permit suspicionless testing.” Jd. at 56a, 58a.

The court also found that the privacy interests of

students covered by petitioner’s program are not “much

less robust than the interests of people in general.” /d.

at 53a.

SUMMARY OF ARGUMENT

I. Petitioner’s drug-testing program should be

reviewed under the same balancing approach that this

Court used 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), to

review Fourth Amendment challenges to suspicionless

drug-testing programs. In Skinner and Von Raab, the

Court upheld suspicionless drug-testing programs by

balancing the individual’s legitimate privacy interests

against the government’s interests. The Court found

that the particular programs at issue there passed the

balancing test because they (1) served “compelling”

governmental interests that would be jeopardized if

individualized suspicion were required; (2) posed only a

limited threat to the legitimate expectations of privacy

of those covered by the programs; and (3) provided

safeguards to limit the discretion of the officers admin-

istering the programs.

Il. When reviewed under the balancing approach of

Skinner and Von Raab, petitioner’s drug-testing

program satisfies the Fourth Amendment.

First, petitioner’s program serves compelling govern-

mental interests: the protection of student athletes f:om

physical injury and the deterrence of drug use by

students generally. The State’s interest in “the educa-

tion and training of young people” is “compelling.” New

Jersey v. T.L.O., 469 U.S. 325, 350 (1985) (Powell, J.,

concurring). Petitioner showed that it could not

effectively educate its students in the wake of the drug

and discipline problems that developed in the mid-1980s

without a drug-prevention program that included, as a

reasonable component thereof, a program of drug-testing

for athletes. Petitioner also showed that its interests

could not have been served by drug testing based only

upon individualized suspicion.

Second, petitioner’s program poses only a limited

threat to the legitimate privacy interests of the students

covered by it. “[S]tudents within the school environment

have a lesser expectation of privacy than members of the

population generally.” 7'.L.0., 469 U.S. at 348 (Powell, J.,

concurring). Moreover, petitioner showed that the

student athletes covered by its program have lesser le-

gitimate expectations of privacy with regard to physical

examinations than do students in general.

Finally, petitioner’s program leaves little room for

discretion by “officials in the field.” It provides for all

student athletes to be tested at the start of each season

and for student athletes to be tested on a lottery basis

during the season. That procedure minimizes the risk of

random or arbitrary violations of the Fourth Amendment

by individual government officials.

ARGUMENT

PETITIONER’S PROGRAM FOR THE SUSPICION-

LESS DRUG TESTING OF STUDENT ATHLETES

COMPORTS WITH THE FOURTH AMENDMENT

Petitioner’s drug-testing program plainly implicates

the Fourth Amendment (as made applicable to the States

by the Fourteenth Amendment, see Mapp v. Ohio, 367

U.S. 643 (1961)). That is because petitioner’s program

entails “the collection and testing of urine,” which

“must be deemed searches under the Fourth Amend-

ment.” Skinner v. Railway Labor Executives’ Ass’n,

489 U.S. 602, 617 (1989); see National Treasury Em-

ployees Union v. Von Raab, 489 U.S. 656, 665 (1989). In

Skinner and Von Raab, this Court upheld, against

Fourth Amendment challenges, programs for the suspi-

cionless drug testing of certain groups of employees. We

show in Part I below that the approach of Skinner and

Von Raab should be used to review respondents’ Fourth

Amendment challenge to petitioner’s program. We show

in Part II below that, under that approach, petitioner’s

program comports with the Fourth Amendment.

I. Petitioner’s Drug-Testing Program Should Be

Reviewed Under The Balancing Approach of

Skinner And Von Raab

“Except in certain well-defined circumstances,”

Skinner, 489 U.S. at 619, the Fourth Amendment re-

quires a search to “be supported * * * by a warrant

issued upon probable cause,” Von Raab, 489 U.S. at 665.

In Skinner and Von Raab, this Court held that “where a

Fourth Amendment intrusion serves special govern-

mental needs, beyond the normal need for law enforce-

ment, it is necessary to balance the individual’s privacy

expectations against the Government’s interests to

determine whether it is impractical to require a warrant

or some level of individualized suspicion in the particular

context.” Von Raab, 489 U.S. at 665-666; see Skinner,

489 U.S. at 624. The Court in Skinner and Von Raab

further held that the programs before it were reasonable

under a balancing test to the extent that they (1) served

compelling governmental interests that would be

jeopardized if individualized suspicion were required; (2)

posed only a limited threat to the legitimate expectations

of privacy of those covered by the programs; and (3) had

safeguards to prevent random or arbitrary violations of

the Fourth Amendment by government officials.

Petitioner’s program is reasonable on the same grounds.

The Court in Skinner and Von Raab proceeded in two

stages. First, the Court held that the programs before it

did not automatically violate the Fourth Amendment

merely because they provided for searches without

warrants or probable cause. See Skinner, 489 U.S. at

618-624; Von Raab, 489 U.S. at 665-668. The Court based

that holding on the existence of “special needs, beyond

the normal need for law enforcement,” that “ma[d]e the

warrant and probable-cause requirement impracticable.”

Skinner, 489 U.S. at 619 (quoting New Jersey v. T.L.O.,

469 U.S. 325, 351 (1985) (Blackmun, J., concurring in the

judgment); Von Raab, 489 U.S. at 665-666.

The Court in Skinner and Von Raab then turned to

the question whether the programs before it satisfied

the reasonableness requirement of the Fourth Amend-

ment. To decide that question, the Court balanced the

governmental interests served by the programs against

the legitimate privacy interests of those covered by the

programs. In holding that the governmental interests

outweighed the individual interests, the Court made

three determinations.

First, the Court in Skinner and Von Raab determined

that the drug-testing programs before it served

“compelling” governmental interests that would be

jeopardized if searches had to be conducted based only on

individualized suspicion. Thus, in Skinner, the Court

determined that “the Government interest in testing

without a showing of individualized suspicion is com-

pelling” with respect to railroad employees involved in

train accidents and certain violations of train-operating

rules. 489 U.S. at 628; see also id. at 609-611, 633. The

Court reasoned that those employees “can cause great

human loss before any signs of impairment become

noticeable.” Jd. at 628. In Von Raab, the Court deter-

mined that a program for the drug testing of U.S.

Customs Service employees who are directly involved in

drug interdiction or who carry firearms serves the

government’s “compelling interests in safeguarding our

borders and the public safety.” 489 U.S. at 677; see also

id. at 660-661.

Second, the Court in Skinner and Von Raab deter-

mined that the programs did not unduly interfere with

the legitimate privacy expectations of those covered by

the programs. The Court recognized that urine tests,

which were required by both programs at issue, could

raise significant privacy concerns in most contexts.

Skinner, 489 U.S. at 626; Von Raab, 489 U.S. at 671. But

the Court held that those concerns were minimized in

each case by two factors that have particular relevance

to the present case: (1) the program was designed “to

reduce the intrusiveness of the collection process,”

Skinner, 489 U.S. at 626; see Von Raab, 489 U.S. at 672

n.2; and (2) the covered employees had diminished expec-

tations of privacy compared to the population in general,

see Skinner, 489 U.S at 627; Von Raab, 489 U.S. at 672.

Finally, the Court in Skinner and Von Raab deter-

mined that the standards for testing prescribed by the

programs before it minimized the risk of arbitrary

enforcement by individual government officials. Thus, in

Skinner, the Court found it significant that the drug-

testing program for railroad employees posed no risk of

“random or arbitrary” enforcement by government

agents because of “the standardized nature of the tests

and the minimal discretion vested in those charged with

administering the program.” 489 U.S. at 622. Similarly,

in Von Raab, the Court determined that, because of the

criteria for testing specified in the program admini-

stered by the U.S. Customs Service, a covered employee

“is simply not subject to the discretion of the official in

the field.” 489 U.S. at 667 (internal quotation marks

omitted). See also New Jersey v. T.L.O., 469 U.S. 325,

342 n.8 (1985) (“Exceptions to the requirement of indivi-

dualized suspicion are generally appropriate only where

the privacy interests implicated by a search are minimal

and where ‘other safeguards’ are available ‘to assure that

the individual’s reasonable expectation of privacy is not

“subject to the discretion of the official in the field.”’”

(quoting Delaware v. Prouse, 440 U.S. 648, 654-655

(1979)).

II. Petitioner’s Drug-Testing Program Is Rea-

sonable Under The Balancing Approach of

Skinner And Von Raab

We discussed above the standard that this Court

applied in upholding suspicionless drug-testing pro-

grams for employees under a balancing of interests in

Skinner and Von Raab. See pp. 12-15, supra. A suspi-

cionless drug-testing program for students should not be

subject to a more stringent standard.’ And because

petitioner’s program satisfies the standard applied in

Skinner and Von Raab, this case does not provide an

occasion for addressing petitioner’s contention that a

less stringent standard applies to suspicionless drug-

testing programs for students. See Pet. 35-37; see also

Pet. 38.

2 In New Jersey v. T.L.0., supra, the Court held that “school

officials need not obtain a warrant before searching a student who

is under their authority,” and that such searches do not need to

“be based on probable cause to believe that the subject of the search

has violated or is violating the law.” 469 U.S. at 340, 341. This

Court has subsequently made clear that those holdings were based

on the existence of “special needs” of the same sort as were found

to exist in Skinner and Von Raab. See 7.L.0., 469 U.S. at 351

(Blackmun, J., concurring in the judgment) (“Only in those

exceptional circumstances in which special needs, beyond the

normal need for law enforcement, make the warrant and probable-

cause requirement impracticable, is a court entitled to substitute

its balancing of interests for that of the Framers.”); see also

Skinner, 489 U.S. at 619 (quoting concurring opinion of Blackmun,

J., in T.L.0.); Von Raab, 489 U.S. at 665-666 (paraphrasing same);

Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting same); New

York v. Burger, 482 U.S. 691, 702 (1987) (quoting same); O’Connor

v. Ortega, 480 U.S. 709, 720 (1987) (plurality opinion) (quoting

same). Under 7.L.0., because petitioner’s drug-testing program

serves “special needs,” it is not per se invalid on the grounds that

it permits searches without warrants or probable cause. By the

same token, the existence of such “special needs” does not mean

that petitioner’s program necessarily comports with the Fourth

Amendment. It must still be determined whether the program

satisfies the Fourth Amendment’s reasonableness requirement.

That determination should be made under the balancing approach

of Skinner and Von Raab.

A. Petitioner’s drug-testing program serves

compelling governmental interests that

would be jeopardized if individualized

suspicion were required

1. “Education ‘is perhaps the most important

function’ of government.” T7.L.0., 469 U.S. at 353

(Blackmun, J., concurring in the judgment) (quoting

Brown v. Board of Education, 347 U.S. 483, 493 (1954)).

Consequently, “[a] State has a compelling interest in

assuring that the schools” effectively perform that

function. 7.L.0., 469 U.S. at 350 (Powell, J., concurring).

Petitioner showed that it could not effectively educate

its students unless it undertook suspicionless drug

testing as part of a broader drug-prevention program.

Petitioner also showed that the interests served by that

program would be jeopardized if individualized suspicion

were required. Under those circumstances, petitioner

demonstrated that its program was supported by com-

pelling governmental interests.

A school cannot effectively educate its students when

a significant number of them uses alcohol or illegal

drugs on a regular basis, for three reasons. First, the

use of drugs and alcohol “significantly impede[s] the

learning process” of the individual user. 20 U.S.C.

3172(3); Improving America’s Schools Act of 1994, Pub.

L. No. 103-382, § 101, 108 Stat. 3672 (“Findings”; Section

4002(2)).’ Second, student drug users may cause violence

% See also 1 National Institute on Drug Abuse, National Survey

Results on Drug Use from the Monitoring the Future Study, 1975-

1993, at 64-65 (1994) “hereinafter National Survey Results|

(discussing differences in rates of drug use between college-bound

and non-college-bound students); 1 Core Institute, Southern Illinois

Univ., Alcohol and Drugs on American College Campuses 24, Table

and lesser disruptions that keep other students from

learning. See 108 Stat. 3672-3690 (amending Drug-Free

Schools and Communities Act of 1986, 20 U.S.C. 3171 et

seq., to authorize federal funding for violence, as well as

drug, prevention programs).‘ Third, as more students

begin to use drugs, more are tempted to begin using

them, because of peer pressure.”

Petitioner proved that each of these factors was

operative here. Petitioner showed that in the mid-1980s

its schools faced a dramatic erosion of student discipline.

As the district court found (Pet. App. 80a-81a):

Outbursts of profane language during class, rude and

obscene statements directed at other students, 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.

2-11 (1989-1991) (showing inverse relationship between number of

drinks of alcohol per week and college students’ grade point

average).

4 The House Committee Report on the 1994 legislation

explained (H.R. Rep. No. 425, 103d Cong., 2d Sess. 29 (1994)):

Drugs and violence are related in many ways. Some drugs

affect the user in ways that make violence more likely. Some

drug users commit violent acts to get money to buy drugs.

Violence is common in drug trafficking as a result of

disagreements about transactions and because traffickers use

violence as a way to gain coinpetitive advantage.

See also S. Greenbaum, Drugs, Delinquency, and Other Data in 2

Office of Juvenile Justice and Delinquency Prevention, Office of

Justice Programs, U.S. Dep’t of Justice, Juvenile Justice 3-4

(Spring/Summer 1994).

5 See 1 National Survey Results 228 (“It is generally

acknowledged that much of youthful drug use is initiated through

a peer social-learning process.”).

The district court also found that the dramatic increase

in discipline problems stemmed from an equally dramatic

increase in drug and alcohol use by students (ibid.):

All of the teachers who testified at trial expressed

how appalled and helpless they felt as students

increasingly expressed their attraction to, and vocal

defense of, the use of drugs. Students boasted about

drug use and regaled one another with stories of the

latest “high” or “party.” * * * Organizations

formed within the student drug culture taking such

names as the “Big Elks” or the “Drug Cartel.”

* * * 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.

The district court further found that, from petitioner’s

investigation, it “became clear that the leaders of this

[drug] activity were also the leading student athletes.”

Id. at 83a. The drug activity was, the district court

found, endangering not only the physical safety of

student athletes who used drugs but also the welfare of

their peers, for whom student athletes served as role

models, including with respect to drug use. Jd. at 83a-

84a, 116a-117a.

Respondents’ challenge to the district court’s

findings, which they renew here (Br. in Opp. 4-16), was

rejected by the court of appeals (Pet. App. 18a-21a); in

any event, it “evinces an unduly narrow view of the

context in which [petitioner’s] testing program was

implemented.” Von Raab, 489 U.S. at 674. Respondents

primarily dispute that there was an “epidemic” of drug

use in Vernonia’s schools. Br. in Opp. 4-7. “Epidemic”

or not, there is no question that drug use in Vernonia’s

schools was substantial; in addition, petitioner’s program

was designed to deter students from taking drugs in the

first place as much as it was designed to detect those

who were already taking drugs. Cf. Von Raab, 489 U.S.

at 674 (“The Service’s program is designed to prevent

the promotion of drug users to sensitive positions as

much as it is designed to detect those employees who use

drugs.”). In light of that purpose and the fact that

petitioner’s program covers only student athletes, it was

sufficient for petitioner to show that a significant

portion of the student body was using drugs or alcohol on

a regular basis, to the severe detriment of student

discipline on a school-wide basis; that student drug use

was most acute among the student athletes, whose drug

use exposed them to increased risk of physical injury;

and that the student athletes served as role models for

other students, such that the use of drugs or alcohol by a

significant portion of the student athletes reasonably

could be expected to encourage drug use by other

students.

Moreover, the adoption of the drug-testing program

was not a precipitous response to the drug problem.

School officials first investigated the problem by talking

to parents, teachers, and coaches. They then conducted

ongoing drug-education programs. On one occasion they

brought a drug-sniffing dog into the school, and they

considered mass expulsion. It was only after substantial

drug use continued that they considered drug testing.

Then, too, they proceeded cautiously and methodically,

by investigating drug-testing programs in other schools

and obtaining legal advice. Pet. App. 85a-88a. The

program that was instituted was a measured response to

a demonstrated problem, not a “fishing expedition” or a

“moral crusade.” Jd. at 118a.

The Ninth Circuit deemed the goals underlying

petitioner’s program to be “worthy,” but not “com-

pelling.” Pet. App. 56a-58a. The court considered the

goals less than compelling because it did not believe that

the drug problem in Vernonia schools posed a “terrible

threat to safety” such as “some shooting, some explo-

sion, some crash of train, truck, or aircraft, or some

breach of top secret national security.” /d. at 58a. That

belief, in turn, appeared to be based on the notion that a

student who uses drugs hurts only him- or herself.

As discussed above, the record refutes the notion that

the harm of substantial drug use in schools is limited to

the individual users. Moreover, petitioner’s experience

in that regard is consistent with the national data. Cf.

Von Raab, 489 U.S. at 674 (in assessing governmental

interest, Court notes that “drug abuse is one of the most

serious problems confronting our society today”). In

addition to the immediate destructive effects of drug use

on the educational process, the Department of Education

advises us that there were about 50 homicides in the

nation’s schools last year. In addition, “[aJ}bout 3 million

thefts and violent crimes occur on or near a school

campus each year, nearly 16,000 incidents per school

day.” H.R. Rep. No. 425, 103d Cong., 2d Sess. 29 (1994).

Experts believe that many, if not most, of those incidents

are drug-related.®

® In 1994, the National School Boards Association reported that,

according to its recent survey of 729 school districts and numerous

school leaders, 45% of the incidents of violence in the schools

during the 1992-1993 school year were drug-related. See Violence

in the Schools: How America’s School Boards Are Safeguarding

Our Children 6 (1993). The Bureau of Justice Statistics within the

Department of Justice reports that, according to the National

Crime Survey, 37% of all violent crimes committed against young

2. Petitioner showed that its drug-prevention

program would be jeopardized by requiring individualized

suspicion for drug testing, for the same reasons that

obtained in Skinner.

Here, as in Skinner, the evidence showed that it is not

always possible to detect the signs of alcohol and drug

use. See Pet. App. 120a (crediting testimony that “visual

observations (even by professionals) are simply not

reliable indicators of whether [a] student may have

consumed alcohol or drugs”); cf. Skinner, 489 U.S. at

628-629. Thus, like the program at issue in Skinner,

petitioner’s program has a greater deterrent effect than

would a program based on individualized suspicion,

because it increases the likelihood of detection. Cf. id. at

630.

Moreover, petitioner’s program, like the program at

issue in Skinner, “suppllies] an effective means of deter-

ring” individuals covered by the program “from using

controlled substances or alcohol in the first place.” 469

U.S. at 629. The need to deter a person’s “first use” of

drugs is especially compelling in the case of students.

Both the record in this case and studies confirm that a

person is particularly vulnerable to the “first use” of

drugs and alcohol in his or her middle and high school

years. Tr. 43; Office of National Drug Control Policy,

Executive Office of the President, National Drug

Control Strategy: Reclaiming Our Communities from

Drugs and Violence 32 (Feb. 1994).

teenagers occur at school, and about one-third of all victims of

violent crime perceived the offender to have been under the

influence of drugs or alcohol, or both, at the time of the offense.

See Teenage Victims: A National Crime Survey Report 5, 8 (May

1991).

B. Petitioner’s drug-testing program poses

only a limited threat to the legitimate

privacy interests of students covered by

the program

The legitimate privacy expectations implicated by

petitioner’s program are no greater than those

implicated by the programs upheld in Skinner and Von

Raab.

Like the programs before this Court in Skinner and

Von Raab, petitioner’s program has features that

“significantly minimize the program’s intrusion on

privacy interests.” Von Raab, 489 U.S. at 672 n.2.

Testing under petitioner’s program is predictable:

Students know that, if they decide to participate in

interscholastic sports, they will be tested at the

beginning of the season and may be tested during the

season. Cf. ibid.; Skinner, 489 U.S. at 609. Moreover,

here, as in Skinner and Von Raab, “{t]here is no direct

observation of the act of urination,” Von Raab, 489 U.S.

at 673 n.2; see Skinner, 489 U.S at 626. And here, as the

Court found in Von Raab, “urine samples may be exa-

mined only for specified drugs,” and the results of the

testing are highly accurate. 489 U.S. at 673 n.2. Indeed,

the only significant difference between petitioner’s

program and those in Skinner and Von Raab is that

under petitioner’s program test results may not be used

for criminal prosecution under any circumstances. Pet.

App. 121la-122a; cf. Skinner, 489 U.S. at 621 n.5; Von

Raab, 489 U.S. at 666. That difference, of course, makes

petitioner’s program less intrusive than those upheld in

Skinner and Von Raab.

The Ninth Circuit erred in holding that the legitimate

privacy interests of student athletes are not “much less

robust” than those of the general adult population. Pet.

App. 58a. The Court in 7.L.O0. upheld the search of a

student by school officials based on a standard lower than

probable cause. 7.L.O. thus establishes that, for Fourth

Amendment purposes, “students within the school

environment have a lesser expectation of privacy than

members of the population generally.” 469 U.S. at 348

(Powell, J., concurring); cf. Schall v. Martin, 467 U.S.

253, 265 (1984).

Moreover, the student athletes covered by petitioner’s

program have lesser expectations of privacy, with

respect to urine tests, than members of the student

population generally. Student athletes in Vernonia were

required to take urine tests as part of physical

examinations that were required independently of the

drug-testing program. Pet. App. 94a & n.2; Tr. 13-14. In

addition, the locker rooms in which student athletes

changed clothes for sports afforded little privacy.

Petitioner’s program used these same locker rooms for

collection of the required urine samples. Tr. 39-43, 75-76,

121-123, 126.

C. Petitioner's drug-testing program has safe-

guards to prevent random or arbitrary

searches by individual officials

The parties and the courts below say that petitioner’s

program allows “random” drug testing. See, e.g., Pet. i;

Pet. App. la. The program is not “random,” however, in

the pejorative sense that this Court has sometimes used

that word in Fourth Amendment analysis. On the

contrary, the “randomness” of petitioner’s program

results from its having procedures for drug testing that

leave little room for arbitrary searches by individual

government officials. The procedures thus prevent the

singling out of any particular student or group of

students for drug testing, and they therefore buttress

the reasonableness of the program.

The warrant and probable-cause requirements of the

Fourth Amendment function as safeguards against “the

random or arbitrary acts of government agents.”

Skinner, 489 U.S. at 622; see, e.g., T.L.0., 469 U.S. at 335;

Prouse, 440 U.S. at 653-655; Camara v. Municipal

Court, 387 U.S. 523, 528 (1967). When neither a warrant

nor individualized suspicion is required for a search or

seizure, “other safeguards” are required “to assure that

the individual’s reasonable expectation of privacy is not

‘subject to the discretion of the official in the field.’”

Prouse, 440 U.S. at 655 (quoting Camara, 387 U.S. at

532); T.L.O., 469 U.S. at 342 n.8. In the absence of

safeguards against abuses of discretion, a program

allowing warrantless, suspicionless searches or seizures

violates the Fourth Amendment. Compare Prouse, 440

U.S. at 655, 661 with Michigan Dep't of State Police v.

Sitz, 496 U.S. 444, 454-455 (1990).

Petitioner's program has safeguards against “random

or arbitrary” searches by school officials. Every student

athlete must be tested at the beginning of every season

and is subject to testing during the season on a lottery

basis. See p. 4, supra. As a result, the program leaves

virtually no discretion to the “official in the field.” See

Pet. App. 37a; cf. Skinner, 489 U.S. at 622; Von Raab, 489

U.S. at 667.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

Drew S. Days, Ill