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

IN THE

Supreme Cot of the Wuited Ps

OCTOBER TERM, 1994 ~

VERNONIA SCHOOL DisTRICT 47J,

Petitioner,

v.

WAYNE and Jupy ACTON,

guardians ad litem for JAMES ACTON,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE

NATIONAL LEAGUE OF CITIES,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, COUNCIL OF STATE GOVERNMENTS,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

AND U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

RICHARD RUDA *

Chief Counsel

LEE FENNELL

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 484-4850

* Counsel of Record for the

Amici Curiae

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

:

Whether the Vernonia School District’s random drug

testing program for student athletes is reasonable under

the Fourth Amendment.

= oseneeeeneeeietieeemneueeaeeee RA AL LL SOR 3 A RE RET EY a UR

TABLE OF CONTENTS

EEE EEE

VERNONIA’S SUSPICIONLESS DRUG TEST-

ING PROGRAM IS REASONABLE UNDER THE

FOURTH AMENDMENT. 0002220. cccceseseeececeeee

A. The Vernonia Testing Program Serves Com-

pelling Governmental Interests

1. The School District Has A Compelling In-

terest In Maintaining Sufficient Discipline

To Fulfill Its Educational Mission ................

2. The School District Has A Compelling In-

terest In Preserving The Health And Safety

Of Its Students And In Preventing Injury

ie

3. The School District’s Testing Program Was

Uniquely Effective In Advancing Both Of

These Compelling Governmental Interests..

B. The Vernonia Testing Program Is Narrowly

Tailored And Implemented In A Manner Which

I

1. Limiting Drug Testing To Interscholastic

Athletes Minimizes Intrusion ..................

(iii)

10

13

16

17

iv

TABLE OF CONTENTS—Continued

2. Interscholastic Athletes, By Virtue Of Their

Participation In A Pervasively Monitored Ac-

tivity, Have A Diminished Expectation Of

TR RAS Mi RAND Fadia ah i 5h a

8. The Setting, Procedure, Purpose, And Con-

sequences Of The Test Minimize Intrusion....

C. The Compelling Interests Served By The Pro-

gram Far Outweigh The Intrusion On Fourth

BE. IED coicninsuitttaicepactieiintntnimaiiniattniiotates

SINE nesecsinnaveusunicransenenstinnasnnstsnmngtssmssuciengannasatignetio

Page

R

Vv

TABLE OF AUTHORITIES

Cases Page

Brown v. Board of Education, 347 U.S. 4838

ITT contesnethtitetenbabiahieandatentsiiiadaiitaadinianetaiat pecsnstentitite 1,8

Camara v. Municipal Court, 387 U.S. 528 (1967).. 6

Delaware v. Prouse, 440 U.S. 648 (1979) ................ 6

Epperson v. Arkansas, 398 U.S. 97 (1968) ............ 1

Goss v. Lopez, 419 U.S. 656 (1975) .........-.--.c00-00-- 8, 8,9

Ingraham v. Wright, 480 U.S. 651 (1977) ............. 9

Jacobson v. Massachusetts, 197 U.S. 11 (1905)...... 10

Nat'l Treasury Employees Union v. Von Raab, 489

ened passim

New Jersey v. T.L.O., 469 U.S. 325 (1985) ............ passim

New York v. Burger, 482 U.S. 691 (1987) ............. 24

Schaill v. Tippecanoe County School Corp., 864

F.2d 1809 (7th Cir. 1988) ie aA aE passim

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

ns passim

Tinker v. Des Moines Indep. School Dist., 398 U.S.

ett are ti ee te a aaa ee 8, 8-9

United States v. Biswell, 406 U.S. 811 (1972) ........ 24

United States v. Carroll Towing Co., 159 F.2d 169

(2d Cir. 1947) ...... A ASS eS 26

United States v. Dennis, 183 F.2d 201 (2d Cir.

1950), aff'd, 341 U.S. 494 (1951) ..0000 26-27

United States v. Martinez-Fuerte, 428 U.S. 5438

na a A RE 6

Constitutional Provisions

i TT NC 6

Other Authorities

Herb Appenzeller, Managing Sports and Risk

Management Strategies (1998) ...0........-.cccccee00e-- 22

James S. Coleman, The Adolescent Society: The

Social Life of the Teenager and Its Impact on

Education (1961) .................. 19

Committee on Schoo! Health, American Academy

of Pediatrics, Schvol Health: A Guide for Health

Professionals, 1987 Revision (1987) .................... 10,11

vi

TABLE OF AUTHORITIES—Continued

Page

Robert H. Coombs, Drug Testing As Experienced

By Mandatory Participants, in Robert 11. Coombs

& Louis Jolyon West, eds., Drug Testing: Issues

and Options 202 (1991) ...0............ecccccccocceeeee-se 14, 24, 25

Dr. Jerald Hawkins, Drugs and Other Ingesta:

Effects on Athletic Performance, in Herb Ap-

penzeller, Managing Sports and Risk Manage-

ment Strategies 90 (1998) ...2..........2..cccccceeeeeeeee 11-12, 18

Richard A. Hawley, The Bumpy Road to Drug-

Free Schools, 72 Phi Delta Kappan 310 (Dec.

REI Rr PRA AL b+ 9h Rt NO 11

Michael Janofsky, “Drug Use Rising Among Teen-

Agers, Study Says,” New York Times, Dec. 13,

ee citiieeeceeencniceitinneaticinastinientbiat ied initienich tates 2,19

Lloyd D. Johnston et al., National Survey Results

on Drug Use from Monitoring the Future Study,

1975-1993 (National Institutes of Health 1994) .. 2

Irvin A. Keller & Charles E. Forsythe, Administra-

tion of High School Athletics (7th ed. 1984) ...... 22

John Leland, “Just Say Maybe,” Newsweek, Nov.

apace eee apa iE Honk Ve 19

Wilbert Marcellus Leonard II, A Sociological Per-

spective of Sport (4th ed. 1993) .......000.00000000... 19

Andrew W. Miracle, Jr., and C. Roger Rees, Les-

sons of the Locker Room: The Myth of School

PE ITI oss cicceteuibhartinciainntasmendcendiantentd 14, 18, 19, 20

Richard A. Posner, Economic Analysis of Law (3d

I 27

William C. Rhoden, “Athletes At Risk Too Often,”

New York Times, Dec. 11, 1998 at 31 ~................ 21

William C. Rhoden, “Deaths of Youthful Athletes

Raise Questions Over Testing,” New York

Times, March 14, 1994 at Al... 20-21

M.F. Stuck, Adolescent Worlds: Drug Use and

Athletic Activity (1990) ...................................... 17,18

Deborah Klein Walker et al., Children’s Health

Care and the Schools, in Mark J. Schlesinger &

Leon Eisenberg, eds., Children in a Changing

Health System: Assessments and een for

Reform 265 (1990) .. 10, 23

vii

TABLE OF AUTHORITIES—Continued

Page

Eric D. Zemper, Drug Testing in Athletics, in

Robert H. Coombs & Louis Jolyon West, eds.,

Drug Testing: Issues and Options 118 (1991).... 23

In THE

Sipreme Cot of the Muited States

OcTOBER TERM, 1994

No. 94-590

VERNONIA SCHOOL DisTRICT 47],

Petitioner,

v.

WAYNE and Jupy ACTON,

guardians ad litem for JAMES ACTON,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE

NATIONAL LEAGUE OF CITIES,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, COUNCIL OF STATE GOVERNMENTS,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

AND US. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state,

county, and municipal governments and officials through-

| out the United States, have a compelling interest in legal

issues that affect state and local governments. Public edu-

cation is “perhaps the most important function of state

and local governments.” Brown v. Board of Education,

347 U.S. 483, 493 (1954); see also Epperson v. Arkansas,

393 U.S. 97, 104 (1968). The ability of States and local

school districts to implement policies which will enable

them to appropriately carry out their educational mission

ee

2

and to preserve the health and safety of their students is

therefore of central importance to amici.

Drug abuse is on the rise in our nation’s schools, pre-

senting risks to the health and education of students.

Results of a study released last month indicate that illicit

drug use is increasing among secondary school students.

See Michael Janofsky, “Drug Use Rising Among Teen-

Agers, Study Says,” New York Times, Dec. 13, 1994 at

p. Al (reporting results of nationwide annual survey con-

ducted by the University of Michigan’s Institute for Social

Research). Of particular concern is heightened drug use

among middle school students. For example, the study

found that “eighth graders were using marijuana at a

higher rate than in prior years,” with 13% reporting usage

within the past year, up from 7.2% in 1992. Id.; see 1

Lloyd Johnston et al., National Survey Results on Drug

Use from Monitoring the Future Study, 1975-1993 24

(National Institutes of Health 1994) (by the end of

eighth grade, 32% of American students have tried an

illicit drug; 47% have done so by the end of twelfth

grade).

The court of appeals’ ruling strikes down a reasoned

program implemented as a last resort, after careful de-

liberation and consultation with parents, see Pet. App.

84a-88a, by a school district in which substance abuse

had become so pervasive as to seriously compromise the

schools’ educational mission and the District's ability to

protect student athletes from injury, see id. at 79a-84a.

Given the tremendous destructive potential of drugs and

alcohol, this limitation on schools’ authority to meaning-

fully address such a severe crisis is of significant concern.

Because of the importance of this issue to amici and

their members, amici submit this brief to assist the Court

in its resolution of this case.’

The parties have consented to the filing of this brief amici

curiae. Letters indicating their consent have been filed with the

Clerk of the Court.

3

STATEMENT

Amici adopt petitioner’s statement of the case.

SUMMARY OF ARGUMENT

Because the Fourth Amendment prohibits only unrea-

sonable searches, “the permissibility of a particular prac-

tice ‘is judged by balancing its intrusion on the individual’s

Fourth Amendment interests against its promotion of

legitimate governmental interests.’” Skinner v. Railway

Labor Executives’ Ass'n, 489 U.S. 602, 619 (1989)

(citation omitted). This reasonableness inquiry is fact-

intensive and requires careful consideration of the circum-

stances and context of a particular search. See, e.g., New

Jersey v. T.L.O., 469 U.S. 325, 337 (1985). An exami-

nation of the facts of this case demonstrates that the

intrusion occasioned by the Vernonia drug testing program

was far outweighed by the School District’s compelling

interests in restoring sufficient discipline to enable educa-

tion to take place, and in protecting the health and safcty

of its students.

1. As the Court has observed, “[s]ome modicum of

discipline and order is essential if the educational function

is to be performed.” Goss v. Lopez, 419 U.S. 565, 580

(1975). Hence, “the Court has repeatedly emphasized

the need for affirming the comprehensive authority of the

States and of school officials, consistent with fundamental

constitutional safeguards, to prescribe and control conduct

in the schools.” Tinker v. Des Moines Indep. School

Dist., 393 U.S. 503, 507 (1969). In the Vernonia schools,

widespread and flagrant drug abuse led to a complete

breakdown of discipline. See Pet. App. 80a-87a. The

School District clearly had a compelling interest in restor-

ing an environment in which learning could take place.

The School District also has a compelling interest in

protecting the health and safety of its students. Schools

have long served a health mission in the community, and

are routinely involved in providing preventive care to

4

schoolchildren. Given this role, the schools’ compelling

interest in combatting drug use, “one of the greatest prob-

lems affecting the health and welfare of our population,”

Nat'l Treasury Employees Union v. Von Raab, 489 U.S.

656, 668 (1989), is beyond question. This interest is

particularly acute with respect to student athletes, whose

drug use presents unique health hazards, as well as the

potential for serious injury. See, e.g., J.A. 69-70, 72.

The School District’s drug testing program was ex-

tremely effective in turning back the epidemic of drug

abuse in the Vernonia schools and achieving these com-

pelling interests. See Pet. App. 34a; J.A. 43. Moreover,

given the District’s lack of success with numerous alterna-

tives, it appears that no other approach could have been

as effective. While a measure need not be the “least

intrusive” alternative to be valid under the Fourth Amend-

ment, the absence of other alternatives capable of achiev-

ing the District’s compelling interests weighs heavily in

favor of the program’s reasonableness.

2. While “[t]he interference with individual privacy

that results from the collection of a urine sample for

subsequent chemical analysis could be substantial in some

circumstances,” Von Raab, 489 U.S. at 671, a number of

factors present in this case serve to decrease the level of

intrusion. The testing program was narrowly targeted at

a single extracurricular activity in which drug use and

discipline problems were prevalent, the risks associated

with drug use were at their height, unique incentives to

use drugs existed, and changes in behavior could be

expected to have the largest effect on the student body as

a whole. See, e.g., Pet. App. 117a.

The narrow tailoring of the testing program to inter-

scholastic athletics is also significant given the fact that

student athletes are already subject to numerous rules and

regulations governing their behavior, including the require-

ment that they submit to a physical examination which

includes providing a urine sample. See Pet. App. 94a &

5

n.2. The nonpunitive nature of the consequences of failing

or refusing to take a drug test further reduce the intrusion.

Positive test results “are not disclosed to criminal authori-

ties and may not be used as the basis for school discipli-

nary proceedings such as suspension or expulsions.” Pet.

App. 121a-22a.

3. When the compelling governmental interests achieved

by the testing program are balanced against the intrusion

which the testing requires, it is clear that the program is

not unreasonable under the Fourth Amendment. The

court of appeals’ contrary conclusion is largely based on

its erroneous view that suspicionless testing is justified only

where the risk of a dramatic, discrete, mass disaster is

presented—“some additional horrible element, some ter-

rible threat to safety . . . some shooting, some explosion,

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

top secret national security.” Pet. App. 58a.

Not only does this approach discount the fact that very

serious injury and death can result from drug use by

student athletes, it also fails to take into account the

fact that the probability as well as the severity of a given

harm is relevant to the reasonableness inquiry. In this

case, the disaster—the inability of the District to educate

its students and protect them from injury—was already

well underway when the District took action.

6

ARGUMENT

VERNONIA’S SUSPICIONLESS DRUG TESTING PRO-

GRAM IS REASONABLE UNDER THE FOURTH

AMENDMENT

The Fourth Amendment prohibits only “unreasonable

searches and seizures.” U.S. Const. amend. IV; see Skinner

v. Railway Labor Executives’ Ass'n, 489 U.S. 602, 618-19

(1989). In assessing reasonableness under the Fourth

Amendment, the Court has used a balancing approach

whereby “the permissibility of a particular practice ‘is

judged by balancing its intrusion on the individual’s

Fourth Amendment interests against its promotion of legit-

imate governmental interests.’” /d. at 619 (quoting Dela-

ware v. Prouse, 440 U.S. 648, 654 (1979): United States

v. Martinez-Fuerte, 428 U.S. 543 (1976)).2 Because

“what is reasonable depends on the context within which

a search takes place,” New Jersey v. T.L.O., 469 USS.

325, 337 (1985), the Court has followed “the longstand-

ing principle that neither a warrant nor probable cause,

nor, indeed, any measure of individualized suspicion, is an

indispensable component of reasonableness in every Cir-

cumstance.” Nat'l Treasury Employees Union v. Von

Raab, 489 U.S. 656, 665 (1989).*

2 See also New Jersey v. T.L.O., 469 U.S. 325, 337 (1985) (“The

determination of the standard of reasonableness governing any

specific class of searches requires ‘balancing the need to search

against the invasion which the search entails.’ ”’) (quoting Camara

v. Municipal Court, 387 U.S. 523, 536-37 (1967) ); Nat’l Treasury

Employees Union v. Von Raab, 489 U.S. 656, 681 (1989) (Scalia,

J., dissenting) (in determining whether a particular search is

reasonable, “the answer depends largely upon the social necessity

that prompts the search”).

* It is clear that none of those elements is required here. Because

the testing is conducted in a school setting, neither a warrant nor

probable cause is required. See T.L.O., 469 U.S. at 340-41. More-

over, respondents concede, as they must, that individualized suspi-

cion is not a necessary element for finding a school-based search

reasonable under the Fourth Amendment. See Opp. 44.

The Court’s cases establish that individualized suspicion is not

necessary for reasonableness “where a Fourth Amendment intrusion

7

The inquiry into reasonableness is, therefore, a fact-

intensive one, the outcome of which turns on a particular-

ized assessment of the circumstances surrounding, and in-

terests implicated by, a given search. An examination of

the facts surrounding the Vernonia drug testing program

demonstrates that the intrusion occasioned by the pro-

gram was Clearly outweighed by the School District’s com-

pelling interest in turning back an epidemic of substance

abuse which had drastically compromised its educational

mission, and had resulted in actual and potential injuries

and health hazards to its students.

A. The Vernonia Testing Program Serves Compelling

Governmental Interests

The School District’s testing program serves two com-

pelling governmental interests, either of which would alone

be sufficient to outweigh the intrusion occasioned by the

test: first, the restoration of discipline sufficient to enable

the District to perform its educational mission; and sec-

ond, the amelioration of a dangerous situation that was

threatening the health of its students and the Safety of its

athletes.*

serves special governmental needs, beyond the norma! need for law

enforcement,” Von Raab, 489 U.S. at 665-66, as where there is a

compelling need to discover or prevent “latent or hidden condi-

tions.” Jd. at 668; see also Skinner, 489 US. at 624. Vernonia’s

drug testing plainly serves special! governmental needs unrelated

to law enforcement. Test results are not turned over to law en-

forcement authorities, Pet. App. 12la; instead, the program is

designed to deter and treat drug use among student athletes.

Moreover, drug use and impairment is a “latent or hidden con-

dition[]"” which makes a requirement of individualized suspicion

impracticable. See pp. 15-16, infra ( discussing inability to detect

drug impairment among students).

* Amici agree with petitioner that, in light of T.L.0., it is ques-

tionable whether a compelling governmental interest is required for

reasonableness, rather than merely a substantial governmental in-

terest. See Pet. 38; id. at 35-36. That question need not be resolved

in this case, however, since the governmental interests at issue here

are plainly compelling ones.

1. The School District Has A Compelling Interest In

Maintaining Sufficient Discipline To Fulfill Its Ed-

ucational Mission

Because of its pervasive impact on the quality of life

and the well-being of the citizenry, “education is perhaps

the most important function of state and local govern-

ments.” Brown v. Board of Education, 347 U.S. 483,

493 (1954). Clearly, States and local school districts

have a compelling interest in meaningfully carrying out

that function. See T.L.0., 469 U.S. at 350 (Powell, J.,

concurring). As the Court has observed, the maintenance

of “[s]ome modicum of discipline and order is essential

if the educational function is to be performed.” Goss v.

Lopez, 419 U.S. 565, 580 (1975). Justice Powell made

a similar observation in T7.L.O.:

The primary duty of school officials and teachers,

as the Court states, is the education and training of

young people. A State has a compelling interest in

assuring that the schools meet this responsibility.

Without first establishing discipline and maintaining

order, teachers cannot begin to educate their students.

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

Thus, “the Court has repeatedly emphasized the need

for affirming the comprehensive authority of the States

5 Justice Powell elsewhere elaborated on the importance of dis-

cipline to the educational] function of the school:

Education in any meaningful sense includes the inculcation

of an understanding in each pupil of the necessity of rules and

obedience thereto. This understanding is no less important

than learning to read and write. One who does not comprehend

the meaning and necessity of discipline is handicapped not

merely in his education but throughout his subsequent life.

In an age when the home and church play a diminishing role

in shaping the character and value judgments of the yong,

a heavier responsibility falls upon the schools.

Goss, 419 U.S. at 593 (Powell, J., dissenting); see also Tinker v.

Des Moines Indep. School Dist., 393 U.S. 503, 524 (1969) (Black,

J., dissenting) (“School discipline, like parental discipline, is an

integral and important part of training our children to be good

citizens—to be better citizens.”’).

9

and of school officials, consistent with fundamental con-

stitutional safeguards, to prescribe and control conduct

in the schools.” Tinker v. Des Moines Indep. School

Dist., 393 U.S. 503, 507 (1969); see also Goss, 419

U.S. at 589-90 (Powell, J., dissenting). The Court has

also emphasized that “[a]ssessment of the need for, and

the appropriate means of maintaining, school discipline

is committed generally to the discretion of school authori-

ties subject to state law.” Ingraham vy. Wright, 430 US.

651, 681-82 (1977).

Drug abuse, which the Court has characterized as “one

of the most serious problems confronting our society to-

day,” Von Raab, 489 U.S. at 674, plainly threatens the

maintenance of discipline essential to the educational mis-

sion. As the Court observed in T.L.O., “[m Jaintaining

order in the classroom has never been easy, but in recent

years, school disorder has often taken particularly ugly

forms: drug use and violent crime in the schools have

become major social problems.” 469 U.S. at 339 (cita-

tions omitted); see also Goss, 419 U.S. at 591-92 (Powell,

J., dissenting).

The record is replete with evidence that drug use at

the Vernonia schools was so pervasive that it led to a

complete breakdown of discipline, making the fulfillment

of the educational iaission impossible. See Pet. App. 86a-

87a (“[d]isciplinary actions had reached ‘epidemic pro-

portions,’” with “an almost three-fold increase in class-

room disruptions and disciplinary reports along with the

staff's direct observations of students using drugs or

glamorizing drug and alcohol use,” leading the administra-

tion to conclude, at one point, “that the only practical

solution was mass expulsion”); see generally Pet. App.

80a-8la; 83a-87a. The District unquestionably had a

compelling interest in alleviating that problem and re-

storing an environment in which learning could take

place.

10

2. The School District Has A Compelling Interest In

Preserving The Health And Safety Of Its Students

And In Preventing Injury To Student Athletes

While education is the primary mission of the schools,

preserving the “safety of schoolchildren” who are “com-

pel[led] to attend school” is also of paramount importance.

T.L.O., 469 U.S. at 353 (Blackmun, J., concurring ).

Schools have long served a health mission in the com-

munity, dating back to the last decade of the nineteenth

century, when increasing enrollments began to present

a heightened risk of the spread of contagious diseases.

See Committee on School Health, American Academy of

Pediatrics, School Health: A Guide for Health Profes-

sionals, 1987 Revision 2 (1987).°

Schools are often actively involved in the delivery of

preventive health care to children.’ For example, “[m Jost

of the 16,000 public school districts in the United States

now provide vision and hearing screening and dental and

dermatological checks. . . . Others also mandate scoliosis

Screening at appropriate grade levels.” School Health at 2.

Similarly, “[mJass immunization programs can be effi-

ciently performed in schools.” Jd. at 156. Such school-

based health services are well established and broadly

* See also Deborah Klein Walker et al., Children’s Health Care

and the Schools, in Mark J. Schlesinger & Leon Eisenberg, eds.,

Children in a Changing Health System: Assessments and Pro-

posals for Reform 265, 265 (1990). Schools have often advanced

children’s health by performing a “gatekeeping function,” id. at

285; for example, most States require certain immunizations for

school entry. See id. at 268 (Table 11.1). The Court has long

recognized the legitimacy of state action directed at maintaining

health and controlling the spread of contagious disease. See, e.9.,

Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding com-

pulsory smallpox vaccinations).

™“Because of the concentration of children in schools, there are

major potential economies of scale in delivering a wide range of

preventive services, including screening for health conditions and

health education ... .” Walker, Children’s Health Care and the

Schools, in Schlesinger & Eisenberg, Children in a Changing Health

System at 265-66.

11

accepted, despite the fact that they may involve some

degree of intrusion. See, e.g., id. at 208 (scoliosis screen-

ing requires student’s back to be exposed during examina-

tion).

The health risks associated with drug use are well

established and at least as compelling as the risks associ-

ated with other health threats for which schools routinely

screen. See Von Raab, 489 U.S. at 668 ( describing drugs

as “one of the greatest problems affecting the health and

welfare of our population”). Moreover, drugs present

special health hazards for adolescents, including neuro-

logical and developmental damage that directly under-

mines the schools’ goal of education. See Richard A.

Hawley, The Bumpy Road to Drug-Free Schools, 72 Phi

Delta Kappan 310, 314 (1990) ( “Maturing nervous sys-

tems are more critically impaired by intoxicants than

mature ones are; childhood losses in learning are lifelong

and profound.”). In addition, children are at great risk

of developing chemical dependence. See id. (“children

grow chemically dependent more quickly than adults, and

their record of recovery is depressingly poor”).

Drugs also present unique hazards for athletes. For

example, the effects of amphetamines include “[{a]n arti-

ficially induced heart rate increase, [p]eripheral vascocon-

striction, [b]lood pressure increase, and [masking of the

normal fatigue response,” making them “very dangerous

drug[s] when used during exercise of any type.” Dr.

Jerald Hawkins, Drugs and Other Ingesta: Effects on

Athletic Performance, in Herb Appenzeller, Managing

Sports and Risk Management Strategies 90, 90-91

(1993). Marijuana can also have dangerous physical

effects on athletes, including “{iJrregular blood pressure

responses during changes in body position,” “[(rJeduction

in the oxygen-carrying capacity of the blood,” and “{iJn-

hibition of the normal sweating responses resulting in

increased body temperature.” Jd. at 94. The “potentially

deadly” effects of cocaine include “[v ]asoconstriction,

12

[e]levated blood pressure,” and “[p]ossible coronary artery

spasms and myocardial infarction.” Jd. at 94. As expert

witness Dr. Robert L. DuPont testified,

cocaine in particular is a risk, not just in terms of

playing through pain or not attending to the training

that the person has, but also in terms of the heart

danger because the athletics itself . . . always raise[s]

the heart rate in competitive athletics to high levels.

And you add to that the unpredictable effect of co-

caine and you have a very dangerous combination.

J.A. 72.

The deleterious impact of drugs on judgment, reaction

and coordination, and perception of pain can also have

disastrous consequences for athletes. See Pet. App. 82a.*

Dr. DuPont testified that participants in high school and

middle school interscholastic athletics who use drugs are

at “substantially greater risk” of injury to themselves and

to others. J.A. 69.

Specifically, Dr. DuPont testified that drug use “leads

people to take risks” and “not to follow instructions to

reduce the risks.” J.A. 70. Hence, drug impaired athletes

are “operating outside of the guidelines that they have

learned and, therefore, increase their probability that

*In Schaill v. Tippecanoe County School Corp., 864 F.2d 1309

(7th Cir. 1989), the Seventh Circuit, in upholding a drug testing

program for student athletes similar to Vernonia’s, relied on exten-

sive testimony and factual findings at trial concerning the harm

associated with drug use by student athletes:

Due to alterations of mood, reductions of motor coordination

and changes in the perception of pain attributable to drug use,

the health and safety of athletes was particularly threatened.

At trial, Jacob Burton, the assistant principal and athletic

director at McCutcheon High School, testified to three in-

stances in which athletes had admitted that injuries had been

caused or exacerbated by drug impairment during athletic con-

tests. In one instance, a baseball player misjudged a pitch

and turned toward the ball, suffering a broken nose as a result.

Id. at 1320. See also Pet. App. 8la-82a; J.A. 55-56 (testimony of

Coach Ronald Svenson).

ee

13

they’re going to have an injury.” /d.° Significantly, an

athlete using drugs presents a risk not only to himself,

but also to those with whom he is competing. See id.’

Thus, in competitive athletics, as in other situations in

which drug testing has been approved by the Court, “even

a momentary lapse of attention can have disastrous conse-

quences.” Skinner, 489 U.S. at 628.

3. The School District’s Testing Program Was

Uniquely Effective In Advancing Both Of These

Compelling Governmental Interests

The School District’s testing program proved highly

effective in ameliorating the substance abuse problems that

had plagued Vernonia schools and in restoring discipline

so that education could take place, student health be

preserved, and needless athletic injuries be prevented. As

the court of appeals noted, “[e]very 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 imple-

mented.” Pet. App. 34a. Moreover, Vernonia Athletic

Director Marcia King noted a decrease in athletic injuries

after the program was implemented. J.A. 43.

* Exacerbating this risk to student athletes is the “highly com-

petitive atmosphere” of interscholastic sports, which may discour-

age an athlete from disclosing injuries. See Pet. App. 82a-83a

(discussing testimony of Ronald Svenson, a teacher and wrestling

coach). As the district court noted, “[t]his 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.” Jd. at 83a.

Moreover, there was concern that a badly injured student athlete

requiring emergency medical care might fail to disclose his illicit

drug use to medical personnel and thereby risk a potentially life-

threatening drug interaction. J.A. 61 (testimony of Ronald

Svenson).

1° For example, athletes using drugs “might use a blocking tech-

nique that they were specifically trained was a risk to the other

person” or a technique “that would put [themselves] at risk of a

head injury or spinal cord injury or some other kind of injury.”

J.A. 70 (testimony of Dr. Robert L. Dupont).

14

The reason for the program's success is apparent. Quite

simply, Vernonia’s program provided students with “a

compelling . . . incentive to stop using drugs,” see Pet.

App. 85a, by conditioning participation in interscholastic

athletics, which is highly prestigious and much sought-

after, on a clean drug test. See Andrew J. Miracle, Jr. &

C. Roger Rees, Lessons of the Locker Room: The Myth

of School Sports 108 (1994) (“star athletes... . may in-

deed conform to socially acceptable behavior because it is

necessary for maintaining athletic involvement”): id.

(“High school athletes may be forced to conform to school

norms by the threat of losing a valued activity... .”).

The favorable results of the Vernonia program are also

consistent with the results of a Study of athiete drug

testing at the university level. See generally, Robert H.

Coombs, Drug Testing As Experienced By Mandatory Par-

ticipants, in Robert H. Coombs & Louis Joylon West, eds.,

Drug Testing: Issues and Options 202 (1991). In that

study, “[mJore than half of all respondents (52.8 percent)

credited the drug-testing policy as giving them a socially

acceptable way to refuse drugs.” Jd. at 210." Presumably,

the provision of a socially acceptable excuse for refusing

drugs would be even more important at the middle school

and high school level, where peer pressure is far more

intense and students are making threshold decisions re-

garding drug use. Indeed, one of the explicit goals set

forth in Vernonia’s Student Athlete Drug Policy is “pro-

viding a legitimate reason for students. to Say ‘no’ to drug

use.” J.A. 7,

Finally, contrary to respondents’ Suggestion, see Opp.

38 n.12, there were no “less intrusive alternatives” which

"! Moreover, a majority (62.4 percent) of the tested athletes

agreed that “mandatory drug testing is an effective way to prevent

drug use,” and three-quarters (76 percent) agreed that testing

“deters some athletes from substance use.” Jd. at 206. Factors

such as “team loyalty” and “[ fljear that negative test results will

jeopardize current and future opportunities” were important moti-

vations. Jd. As one athlete put it, “(d)rug testing has forced us to

make a commitment to the team and has kept us clean.” Jd.

15

would have been effective in achieving these results.”

The School District had already tried a number of alterna-

tives, to no avail. See Pet. App. 84a-85a. As Ralph

Aultman, principal of the Vernonia grade school, testified,

We would have kids get suspended. . . . [Discipli-

nary] referrals were very, very high. There [were]

two or three expulsions. We'd try everything in our

power from punitive discipline to having our staff

work with kids, to bringing in drug dogs and authori-

ties and speakers and like I said, we spent a lot of

money trying every resource at our command to stop

the problem.

J.A. 25.

Significantly, testing based on individualized suspicion

of drug use, an alternative urged by respondents, Opp. 38

n.12, and alluded to by the court of appeals, Pet. App.

59a-60a, would be wholly ineffective. As expert testimony

presented below establishes, adolescents’ impairment from

drug use is often impossible to detect. Dr. DuPont testi-

fied that teachers, coaches, and administrators in a high

school or middle school would have virtually no ability to

determine through observation which students were under

the influence of drugs and alcohol, and that “even if they

were specifically trained they would miss . . . more than

90 percent of the impairment caused by drugs and alco-

hol.” J.A. 67.

Because of these difficulties, “[t]he only standard [for

determining impairment] is the drug test.” /d. Despite

extensive study with other forms of impairment tests,

“none of these have proved useful in any setting whatso-

‘2 The Court has made clear that the Fourth Amendment does

not require government actors to implement the least intrusive

alternative, since such a requirement would lead courts to “second-

guess” decisions made after careful consideration by governmental

bodies. Skinner, 489 U.S. at 629 n. 9. Nevertheless, the absence

of less intrusive alternatives in this case weighs in favor of the

reasonableness of the District’s action.

16

ever as an alternative to the drug test.” J.A. 74.*° Forcing

teachers and administrators to make use of such ill-suited

tools for detecting drug use would not only be ineffective,

it would also further divert energy and attention from the

school’s primary function—educating students. Cf. T.L.O.,

469 US. at 353 (Blackmun, J., concurring) (“A teacher’s

focus is, and should be, on teaching and helping students,

rather than on developing evidence against a particular

troublemaker.” ).

B. The Vernonia Testing Program Is Narrowly Tailored

And Implemented In A Manner Which Minimizes

Intrusion

Requiring a urine sample unquestionably involves some

degree of intrusion. Indeed, the Court has noted that

“(t]he interference with individual privacy that results

from the collection of a urine sample for subsequent chem-

ical analysis could be substantial in some circumstances.”

Von Raab, 489 U.S. at 671. But, as the Court has made

clear, the degree of intrusiveness implicated in a specific

urine testing situation depends on a number of factors,

including the scope and context of the testing, the ex-

pectations of privacy of those being tested, and the pur-

pcse, design, and consequences of the test itself. See id.

13As Dr. Dupont testified,

[T}here has been a very large effort made to find suitable im-

pairment tests. And the basic reasoning for this is to find

some kind of a screening test that would be the equivalent of

the roadside sobriety test to establish probable cause or a

reasonable basis for a drug test. ... It’s a major funding

area of the National Institute on Drug Abuse. The simple

summary of the report of that work is that, with some interest-

ing exceptions, it has not proven to be of any value. In fact,

it actually creates problems when these sorts of tests are intro-

duced, because the tests are not well correlated with drug use

or drug-caused impairment; they both under identify drug

problems and over identify other problems. So that they end

up missing large numbers of people who have drug-caused

impairment, and they include people who have no impairment

whatsoever in them. They’re also extremely subject to sub-

version.

J.A. 73-74.

ee ee eee

. Bie ee oo

ARES a

ee,

17

at 668-75; Skinner, 489 U.S. at 620-21, 624-34. In this

case, all of these factors serve to minimize intrusion.

1. Limiting Drug Testing To Interscholastic Athletes

Minimizes Intrusion

Instead of requiring drug testing of all students, “the

Vernonia policy is limited to the one activity which, in

that community, is likely to have the greatest impact on

the drug and alcohol abuse problem given the documented

evidence of incidents involving particular students.” Pet.

App. 117a. The School District’s tailored approach, which

was successful in providing a schoolwide resolution of

Vernonia’s severe drug and alcohol epidemic, was ap-

propriate and effective for a number of reasons."

First, the record establishes that substance abuse was

widespread in the schools’ interscholastic athletic pro-

grams. The involvement of adolescent athletes in drug

and alcohol abuse is not unusual.” Concentrating drug

eradication efforts on interscholastic athletes makes sense

given the fact that such athletes are consistently placed

in positions in which their drug usage poses particularly

severe hazards to themselves and to others on the field.

See pp. 11-13, supra. Moreover, the nature of the athletic

competition itself provides student athletes with an in-

centive to use drugs in the hopes of enhancing their per-

formance or to dull pain so that they can continue play-

ing. As Vernonia Superintendent Ellis Mason testified,

“student athletes have reasons to take drugs which other

students don’t”; for example, they may use drugs to “get

pumped up for a game, play with pain or eliminate pain

so they could play.” J.A. 84.

14 No equal protection challenge based on the differential treat-

ment of athletes and nonathletes is presented here. Based on the

factors discussed below which justify such differential treatment.

however, it is clear that such a challenge would fail.

As one researcher studying adolescent drug use concluded,

“athletes do use drugs, and . . . participation in athletics and drugs

go hand in hand.” M.F. Stuck, Adolescent Worlds: Drug Use and

Athletic Activity 64 (1990).

18

In research on adoijescent drug use conducted by M.F.

Stuck, “[a]thletes who used marijuana gave a reason re-

lated to sports performance. It was their belief that being

high while engaged in sports enhanced performance in

some way or another.” M.F. Stuck, Adolescent Worlds:

Drug Use and Athletic Activity 79-80 (1990) (footnote

omitted). For example, one student athlete explained his

marijuana use as follows: “I love playing sports when I’m

high .... I have more energy, I can concentrate more.”

Id. at 81. Similarly, a student participating in track

stated that he used speed “[c]lause it helped me run. It

kept me going . . . I can run farther.” Jd. at 73; see id.

at 81; Dr. Jerald Hawkins, Drugs and Other Ingesta:

Effects on Athletic Performance, in Herb Appenzeller,

Managing Sports and Risk Management Strategies 90

(1993) (“amphetamines are generally used by athletes

to produce a feeling of stimulation or ‘being up’ to at-

tempt to delay fatigue or to increase aggression”). Other

athletes reported taking “codeine in order to be able to

continue playing while injured.” Stuck, Adolescent Worlds

at 81. Thus, “sport for some . . . may be the very reason

for use of certain drugs.” Jd.; see Andrew W. Miracle,

Jr., and C. Roger Rees, Lessons of the Locker Room:

The Myth of School Sports 112-13 (1994).

Moreover, the record reflects that Vernonia athletes

were the ringleaders in drug and alcohol abuse, and that

their substance abuse threatened “a significant poisoning

impact on the broader student population.” See Pet. App.

83a-84a. As Dr. DuPont explained, the behavior of

“leaders” among the peer group—those “at the top of

th[e] status hierarchy”—*“play[s] a very powerful role in

terms of shaping the behavior of large numbers of stu-

dents in the classes.” J.A. 68. Thus, “what they do

about drugs makes an enormous difference about what

other kids are going to do.” 7d.

In Vernonia, athletes are the primary peer leaders

whose behavior other students seek to copy. See Pet.

App. 116a. This is typical of American schools, in which

pa oti

a)

19

“[g]roups are formed and prestige is bestowed largely on

the basis of sport. Traditionally athletes have occupied

positions of higher status in American schools than those

who excelled in academics, art, music, or any other skill

area.” Miracle & Rees, Lessons of the Locker Room at

224." The use and glorification of drugs by Vernonia’s

student athletes thus presented a significant threat to the

student body as a whole by reinforcing the growing glori-

fication of drugs in society at large.” The School Dis-

trict reasonably concluded that reducing drug use among

athletes would have a positive spillover effect on other

Vernonia students who seek to emulate their behavior.

See Pet. App. 116a.

16 In 1961, James S. Coleman published groundbreaking research

indicating that high school athletes are given paramount status by

their peers, that star athletes are highly visible and readily identi-

fiable, and that their behavior is emulated by younger students.

See generally James S. Coleman, The Adolescent Society: The

Social Life of the Teenager and Its Impact on Education (1961) ;

see id. at 147 (“Overall, it appears that athletic stardom stands

highest as a symbol! of success, as an achievement to channel the

energies of the naive freshman, as a means of entry into the

leading crowd, as a way to gain popularity with girls, and as the

man with most friends.”) ; id. at 301 (“The boys who ‘stand out’

most among the upperclassmen are athletes; they are the only

models [an incoming freshman] has to emulate in his early and

impressionable weeks in high school.”). Coleman’s research has

been replicated several times. See Wilbert Marcellus Leonard II,

A Sociological Perspective of Sport 319-21 (4th ed. 1993). Cf.

Miracle & Rees, Lessons of the Locker Room at 108 (“[y]joung

athletes become role models for the community and the country”).

17 See, e.g., Janofsky, “Drug Use Rising Among Teen-Agers,

Study Says” New York Times, Dec. 13, 1994, at Al (increased

drug use by teenagers “attributed to ‘glamorizing’ of drugs by the

entertainment industry”); John Leland, “Just Say Maybe,” News-

week, Nov. 1, 1993, at 51 (“What is clear, and arresting, is the

rise of a popular culture that actively glorifies drug use. There is a

sea change in attitudes, if not in actual use: an emerging popula-

tion that openly espouses that drugs—at least some drugs—are no

big deal.”).

20

2. Interscholastic Athletes, By Virtue Of Their Par-

ticipation In A Pervasively Monitored Activity,

Have A Diminished Expectation Of Privacy

Also relevant to the intrusiveness inquiry is whether

the search takes place within the context of an activity

or industry that has been pervasively regulated. Partici-

pants in such activities have a reduced expectation of

privacy by virtue of the preexisting regulation. In Skin-

ner, for example, the Court found that “the expectations

of privacy of covered employees are diminished by reason

of their participation in an industry that is regulated per-

vasively to ensure safety, a goal dependent, in substantial

part, on the health and fitness of covered employees.”

489 U.S. at 627. Thus, while the Court recognized that

“some of the privacy interests implicated by the toxicologi-

cal testing at issue reasonably might be viewed as sig-

nificant in other contexts, logic and history show that a

diminished expectation of privacy attaches to information

relating to the physical condition of covered employees

and to this reasonable means of procuring such informa-

tion.” Id. at 628. See also Von Raab, 489 U.S. at 671

(“certain forms of public employment may diminish pri-

vacy expectations” such as those demanding “intrusive

inquiries into [employees’] physical fitness”).

Like the railroad employees in Skinner who “ha[d]

long been a principal focus of regulatory concern,” 489

U.S. at 628, student athletes are subject to numerous

rules and requirements. See Schaill, 864 F.2d at 1318-

19. Much of this monitoring stems from the inherent

risks associated with, the athletic activity. Injuries are

common in middle and high school interscholastic sports:

“The National Athletic Trainers’ Association (NATA)

estimates the injury total to be about 1.3 million per

year” for high school football players, basketball players,

and wrestlers. Miracle & Rees, Lessons of the Locker

Room at 110 (footnote omitted). Moreover, instances

of young athletes dying from sudden heart failure occur

with alarming frequency. See William C. Rhoden, “Deaths

of Youthful Athletes Raise Questions Over Testing,” New

‘oie St tee edie:

21

York Times, March 14, 1994 at Al, C4 col. 2-3 (the

deaths of 133 high school athletes since the 1981-82

school year were “‘non-injury related,’ mostly the result

of heart problems”) (quoting Dr. Fred Mueller)). In-

deed, “heart problems are the most common cause of

death among high school athletes.” Jd. at C4 col. 2.

In an effort to reduce these risks, state associations,

school districts, and individual schools and athletic de-

partments have adopted a wide range of measures aimed

at monitoring and preserving the health and well-being of

student athletes. The most fundamental and ubiquitous

of these measures is the physical examination, which the

Vernonia School District, like most other schools in the

country, requires its interscholastic athletes to undergo.”

See Pet. App. 94a; Pl. Ex. 2 at 30 41 (Vernonia Policy

for Interscholastic Eligibility and Competition). The

Court has viewed the requirement of a physical examina-

tion as indicative of a diminished expectation of privacy

with respect to drug testing. See Skinner, 489 U.S. at

627; see also Von Raab, 489 U.S. at 677 (listing “medical

examinations” as one of the “intrusions that may be ex-

pected to diminish [employees’] expectations of privacy in

respect of a urinalysis test”).

Significantly, the physical exam required by Vernonia,

and submitted to by James Acton, included the collection

and medical analysis of a urine sample. See Pet. App.

18The National Federation of State High School Associations

recommends a physical examination before the first year of com-

petition and annual parental consent. See Rhoden, “Deaths of

Youthful Athletes,” New York Times, March 14, 1994 at C4, col. 5.

Sixteen state associations follow this recommendation, while an

additional twenty-six state associations require a physical exam-

ination prior to each year of competition, as well as annual paruntal

consent. William C. Rhoden, “Athletes At Risk Too Often,” New

York Times, Dec. 11, 1993 at 31. The well-publicized deaths of

a number of high school athletes have spawned efforts to require

more extensive and frequent physical examinations for inter-

scholastic participation. See id.; Rhoden, “Deaths of Youthful

Athletes,” New York Times, March 14, 1994 at C4 col. 4.

22

94a n.2; J.A. 17-18. The fact that athletes are already

required to give a urine sample as part of the physical

exam, for reasons unrelated to drug testing, further sug-

gests a diminished expectation of privacy with respect to

the drug test itself. See Schaill, 864 F.2d at 1318.”

To further reduce risk to student athletes, detailed pro-

cedures are typically established for injuries and other

emergencies, see Appenzeller, Managing Sports at 104-07,

and the safety and well-being of student athletes is mon-

itored on a continuing basis by coaches and, in many

cases, team physicians. See Irvin A. Keller & Charles E.

Forsythe, Administration of High School Aihletics 293-

97 (7th ed. 1984); Appenzeller, Managing Sports at 103.

For example, athletes are individually fitted with pro-

tective equipment containing appropriate warning labels,

and this equipment is periodically inspected. Id. at 153-

54; Keller & Forsythe, Administration of High School

Athletics at 280-81. In addition, student athletes are re-

quired to submit signed parental consent forms which dis-

cuss the risks of participation. See Pl. Ex. 2 at 30 41

(Vernonia Policy for Interscholastic Eligibility and Com-

petition); see also note 18, supra (annual parental con-

sent required for participation by 42 state associations).

Student athletes are also required to abide by training

rules established by the coach as well as policies estab-

lished by the school. See generally Pl. Ex. 2 at 30 (Ver-

nonia Policy for Interscholastic Eligibility and Competi-

tion) (listing school policies for interscholastic eligibility

and competition, including policies regarding academic

performance and class attendance); id. at § 8 (“[t]he ath-

lete will comply with the rules of conduct, dress, training

19 Other features of interscholastic athletic competition also sup-

port the view that athletes huve a diminished expectation of privacy.

For example, as the district court noted, the “locker rooms them-

selves are open spaces and do not provide a great deal of privacy

when students shower and change.” Pet. App. 117a-18a; see also

Schaill, 864 F.2d at 1318 (“[t]here is an element of ‘communal

undress’ inherent in athletic participation, which suggests reduced

expectations of privacy”).

23

hours and related matters as may be established for each

sport”); see also Stuck, Adolescent Worlds at 19 (“ath-

letes’ off-the-field behavior is traditionally and typically

regulated by ‘training rules’”) (citation omitted). Even

such matters as transportation to and from games are

closely regulated. See Pl. Ex. 2 at 30 46 (Vernonia

Policy for Interscholastic Eligibility and Competition).

Moreover, athletics as a whole has been pervasively

regulated to prevent individual athletes from gaining an

unfair advantage. For decades, drug testing has been con-

ducted in athletics to deter and detect the use of per-

formance-enhancing drugs. See generally Eric D. Zemper,

Drug Testing in Athletics, in Coombs & West, Drug Test-

ing 113; see also Schaill, 864 F.2d at 1319 (discussing

“high visibility and pervasiveness of drug testing in pro-

fessional and collegiate athletics in this country and in

the Olympic Games”).

3. The Setting, Procedure, Purpose, And Consequences

Of The Test Minimize Intrusion

In addition, a number of other features of the Vernonia

testing program serve to minimize its intrusion. First,

the test is conducted in a school setting, a setting in which

students typically feel comfortable. Cf. Walker, Children’s

Health Care and the Schools, in Schlesinger & Eisenberg,

Children in a Changing Health System at 266 (“[S]chools

can more effectively address some health needs of chil-

dren and youth because they provide environments in

which students feel comfortable. Schools are a better and

less intimidating environment than physician offices or

hospitals for offering health education and counseling.” );

T.L.O., 469 U.S. at 348-50 (Powell, J., concurring)

(discussing cooperative nature of the teacher-student

relationship).

In addition, students are advised of the details of the

testing program prior to their participation in interscho-

lastic athletics. See J.A. 7-11 (Student Athlete Drug Pol-

icy). Such advance notice reduces anxiety and “signifi-

24

cantly diminishes the subjective intrusiveness” associated

with the testing process. Schaill, 864 F.2d at 1320; cf.

United States v. Biswell, 406 U.S. 311, 316 (1972); New

York v. Burger, 482 U.S. 691, 711 (1987). While the

random testing program does not permit a given student

to know in advance the days on which he will be tested,”

or the number of times during the season he will be

tested,” he is advised of the procedures for random selec-

tion, which are routinized and discretionless. See J.A. 8

(Student Athlete Drug Policy); Pet. App. 36a-37a; id.

at 88a-89a.”

The School District’s procedure for the collection of

urine samples does not materially differ from the proce-

dures approved by this Court in Skinner and Von Raab,

and by the Seventh Circuit in Schaill. Here, as in those

cases, the monitor does not view the act of urination, nor

is the student’s body exposed to the monitor. See Pet.

App. 89a-90a; J.A. 28 (testimony of Ralph Aultman).

The monitor is seated 12 to 15 feet away while the sample

*°The unpredictability of test dates is itself essential to the

integrity of the testing program. See Coombs, Drug Testing As

Experienced By Mandatory Participants, in Coombs & West, Drug

Testing at 204-05, 207 (discussing the various techniques used to

thwart drug testing programs with predictable test dates); ef.

Burger, 482 U.S. at 710 (“Because stolen cars and parts often pass

quickly through an automobile junkyard, ‘frequent,’ and ‘unan-

nounced’ inspections are necessary in order to detect them. In

sum, surprise is crucial if the regulatory scheme aimed at remedy-

ing this major social problem is to function at all.’”’).

21 The fact that a given student may be randomly selected many

times during the school year, or may be tested only at the outset

of the season, does not detract from the program’s validity. The

Court rejected an analogous argument in Burger. See 482 U.S.

at 711 n.21.

*2,.No dispute has been raised concerning the fairness of the

process for random testing. See Pet. App. 36a. In addition, be-

cause the samples are screened only for a discrete set of substances,

see Pet. App. 122a, no issue concerning additional medical or per-

sonal facts that might be learned from the urine sample is pre-

sented.

25

is produced, and the monitor checks the temperature of

the sample after it is collected. Pet. App. 90a. While

the collection of urine samples is therefore subject to lim-

ited monitoring to prevent tampering or substitution of

another person’s urine, see Coombs, Drug Testing As Ex-

perienced By Mandatory Participants, in Coombs & West,

Drug Testing at 204, the intrusion is minimized.

Finally, the intrusion is minimized by the fact that the

consequences of refusing or failing a drug test are non-

punitive. Positive test results “are not disclosed to crim-

inal authorities and may not be used as the basis for

school disciplinary proceedings such as suspension or ex-

pulsions.” Pet. App. 121a-22a. The sole impact of re-

fusing or failing the drug test is on a student’s eligibility

to participate in interscholastic athletics, a purely volun-

tary extracurricular activity which, as discussed above, is

already pervasively regulated.™

C. The Compelling Interests Served By The Program

Far Outweigh The Intrusion On Fourth Amendment

Interests

When the compelling interests served by the drug test-

ing program are balanced against the intrusion the testing

requires, it is clear that the testing is not an “unreasonable

search or seizure” under the Fourth Amendment. The

court of appeals’ contrary conclusion is attributable in

part to its failure to recognize factors present in this case

23 See Schaill, 864 F.2d at 1319 & n.11. The court of appeals

attempts to underplay the voluntary nature of interscholastic ath-

letics by referencing the developmental and educational benefits

of physical activity. Pet. App. 55a-56a. But the School District

offers all of its students these benefits thruugh its physical edu-

cation program, which is provided as part of the regular curricu-

lum and for which no drug test is required. While it may be true

that interscholastic athletics are “part of what tax dollars pay

for,” id. at 55a, this does not mean that students participate in

interscholastic athletics as of right. Student athletes are sub-

ject to a wide range of training rules and school policies, and

may be excluded from participation for noncompliance. See Schaill,

864 F.2d at 1318-19 & n.9 (collecting cases).

26

which diminish the degree of intrusion and its disregard

of the fact that students who choose to participate in in-

terscholastic sports are subject to pervasive regulation as-

sociated with that activity which diminishes their expec-

tation of privacy.

Perhaps most important to the court of appeals’ con-

clusion, however, was its erroneous view that suspicionless

testing may only be implemented where there is a risk of

a dramatic, discrete mass disaster. The court of appeals

indicated that such testing could be justified only by “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.” Pet. App.

58a.

This analysis is flawed for two reasons. First, it ignores

the very severe risks that can and do flow from drug use

by athletes. Sudden death and severe injury are all too

common occurrences in middle school and high school

athletics, see pp. 20-21, supra, and the presence of drugs

substantially increases the risk of such events occurring.

See pp. 11-13, supra. This, amici submit, should unques-

tionably qualify as a “terrible threat to safety” under the

court of appeals’ approach.

Second, and more fundamentally, the court of appeals’

approach fails to recognize that it is not only the magni-

tude of a threatened harm that is relevant to the balancing

test, but also the probability of that harm occurring, ab-

sent government action.“ For example, a very low prob-

*4 Consideration of the probability of a harm’s occurrence, as

well as the severity of the harm, has been incorporated into reason-

ableness inquiries in a number of contexts, most notably by Judge

Learned Hand. See United States v. Carroll Towing Co., 159 F.2d

169, 173 (2d Cir. 1947) (Hand, J.) (whether a defendant has

acted reasonably depends both on the gravity of the injury and the

probability of its occurrence); United States v. Dennis, 183

F.2d 201, 212 (2d Cir. 1950) (Hand, J.) (“In each case [courts]

must ask whether the gravity of the ‘evil,’ discounted by its im-

probability, justifies such invasion of free speech as is necessary

27

ability of a particular harm occurring may be sufficient to

justify governmental action where the magnitude of the

harm is very great. In Von Raab, the Court permitted

suspicionless testing on a record which evidenced a rela-

tively low chance of certain potential harms occurring,

based on its assessment of the magnitude of those harms.

See 489 U.S. at 673-75 & n.3.*

Here, in contrast, the harms which the School District

sought to prevent through its drug testing program—

injury to athletes, and a deterioration of school discipline

so severe as to make the education of students impossible

—were already occurring when the District took action.

In this case, there was ample evidence that a substance

abuse epidemic of serious proportions existed in the Ver-

nonia schools, that it was particularly concentrated in the

interscholastic athletic programs, that discipline had dras-

tically deteriorated, and that drug-related injuries had

occurred.

Thus, even if the inability of an entire school to edu-

cate and protect its students is viewed as a disaster of

lesser dimensions than a shooting or a crash, it is quite

significant that the former disaster was already in prog-

ress at Vernonia when the School District took action.

The Court’s opinions should not be read to permit

suspicionless testing where a small chance of a somewhat

more dramatic disaster exists, and not to permit such

testing where a somewhat less dramatic disaster is already

underway. To draw such distinctions runs contrary to

to avoid the danger.”), aff'd, 341 U.S. 494 (1951). The relevance

of Hand’s analysis to Fourth Amendment reasonableness has been

noted. See Richard A. Posner, Economic Analysis of Law § 29.1 at

640 (3d ed. 1986) (applying Hand formula to Fourth Amendment

reasonableness inquiry).

25 There was no evidence of a drug problem among Customs

employees prior to drug testing, and drug testing failed to reveal

a drug problem. See id. at 673. Moreover, the government had

not demonstrated “even a single instance in which any of the

speculated horribles actually occurred.” Jd. at 683 (Scalia, J., dis-

senting) (emphasis in original).

28

the balancing idea that is central to the reasonableness

determination.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

RICHARD RUDA *

Chief Counsel

LEE FENNELL

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

January 12, 1995 Amici Curiae