[211 NJSuper Page 55] The material facts in this case are not in dispute. On August 7, 1985, the Carlstadt-East Rutherford Regional Board of Education (Board of Education) adopted Policy Number 5141.3 to its present policy manual. (See appendix.) This new policy, entitled "Comprehensive Medical Examination," required physicals of all students enrolled or to be enrolled in the school district. It provided that these physicals were to occur annually in or about the month of September, effective for the ensuing school year, and would consist generally of on-premise examinations by the school medical examiner and/or his appointees. The Policy further provided "these examinations are designed to identify the existence of any physical defects, illnesses or communicable diseases, as well as, but not limited to, the pupil's fitness to participate in any school-sponsored health, safety, sport and/or physical education courses as required by law." Carlstadt-East Rutherford Regional Board of Education, Policy No. 5141.3 (Introduction). It continued by stating, "These complete physical examinations will help to identify any
drug and alcohol use by the pupils. The detection of drug and/or alcohol use will enable the Board of Education to enter the pupil into an appropriate rehabilitation program designed to help the student recognize the danger and to remedy any problem that exists." Id. at Introduction.
In addition to other more traditional medical tests, the comprehensive medical examinations included drug screening designed to detect the presence of controlled dangerous substances. Section two of the Administrative Procedures for Policy, in sub-section C described the urine test to be done as a part of the physical. It states:
In the same manner and environment as above indicated, the medical examiner shall ask each pupil for a urine sample, to be obtained in a medically appropriate method. The sample shall be obtained for the purpose of discerning the level of protein, sugar, specific gravity, blood and the existence or non-existence of controlled dangerous substances, non-authorized prescription drugs as defined in the introductory statement, and alcohol. [ Id. at Section 2(c).]
A controlled dangerous substance is defined by the Policy as "a narcotic or non-narcotic substance as listed under N.J.S.A. 24:21-4, N.J.A.C. 8:65-10.1 and any prescription drug not prescribed or authorized by a medical physical." Id. at Introduction. Included among the administrative procedures for Policy 5141.3 is a section dealing with notice, conduct of the examination, private comprehensive medical examination, refusal to comply with any aspect of the comprehensive medical examination, comprehensive medical examination tests, and a clause dealing with severability.
Policy 5141.3 is totally encompassed within its four corners. Counsel for the defendants has acknowledged that there are no additional statements of policy in existence concerning Policy 5141.3 nor had the Board of Education issued any other policy statements.
Plaintiffs, a group of students attending Becton Regional High School and their parents, challenged Policy 5141.3, and on August 13, 1985, a temporary restraining order was granted, which enjoined the testing of any urine sample collected pursuant to the Policy for the presence of drugs. On September 3,
1985, the temporary order was converted to a preliminary injunction.
At trial, the parties stipulated that the student population of defendant high school was 520 for the school year September 1984 to June 1985, and 516 for the current school year. They further stipulated that for the school year September 1984 to June 1985, some 28 students either made inquiry or were referred to the student assistant counsellor and eleven in the September 1985 school year to date for drug or alcoholic inquiry or counseling. Included in this statistic were students who denied any involvement in either alcohol or drugs and others who received follow-up referral service.
Defendants contend that the urine sample is not being taken solely for the purpose of drug screening but that this very same sample is also tested for other forms of physical defects as part of the pupil examination mandated by N.J.S.A. 18A:4-4. Defendants further contend that in light of the fact that the urine sample is taken for a number of traditional medical tests and that no civil or criminal sanctions are imposed in the event of a positive test, no intrusive deprivation of privacy occurs when the specimen is examined for the presence of drugs and/or alcohol. It is their position that the testing for drug and/or alcohol use is strictly a medical procedure since in the case of a positive urine test, the doctor, parent and student will discuss whether or not there is a problem. Further, the files maintained in accordance with the Policy will be kept confidential and separate from the mandatory school files required for each student. It is also provided that upon the advice of the school physician, the superintendent will make recommendations necessary to facilitate the effective rehabilitation of the pupil. Policy 5141.3 provides that these recommendations shall be dependent in all instances upon the nature of the medical problem or potential drug and/or alcohol problem, and the cooperation received from the parent or legal guardian and pupil. The recommendations may include, but are not limited to, periodic parental conferences, referral to the district's internal
alcohol or drug supervision program, referral of the case to the Bergen County District Office of the Division of Youth and Family Services and other general conditions and/or recommendations allowed by law including the scheduling of subsequent periodic medical testing. The linchpin of defendants' argument is that drug use and/or abuse is an illness and/or a departure from normal health and therefore beyond the parameters of the law of search and seizure.
In accordance with present State policy, a physical examination is required pursuant to a Board of Education obligation under N.J.S.A. 18A:40-4 to ensure the physical fitness of all students. The defendants maintain that in view of this State policy, the sanction of exclusion from class for failure to submit to the exam or to provide an incomplete exam can be distinguished from that of a suspension or expulsion of a student in accordance with N.J.S.A. 18A:37-2. Under this statute, certain due process rights, including the right to be heard, must be afforded. Policy 5141.3, Section 4 provides, in sub-Section A, for the exclusion from classroom study of any student who does not provide a complete physical examination. It further states that the parent or legal guardian of the pupil will be advised of a penalty which may be imposed upon the parent or legal guardian pursuant to N.J.S.A. 18A:40-9 when such parent or legal guardian fails, within a reasonable time, to remedy the cause for exclusion.
The Policy is challenged on the basis that it violates Article I, paragraphs 1, 2, 3, 4, 5 and 7 and the Preamble of the New Jersey Constitution (1947), and the First, Third, Fourth, Fifth, Ninth and Fourteen Amendments, and the Privileges and Immunities Clause of Article IV of the United States Constitution and further that it is preempted by various state statutes. However, the primary focus of the plaintiffs' attention is upon the Policy's alleged violation of both Federal and State Constitutional proscription against unreasonable search and seizure and what plaintiffs describe as general searches of student
plaintiffs' bodies under the subterfuge of forced medical examination.
The United States Constitution proclaims that, "the right of people to be secure . . . against unreasonable searches and seizures shall not be violated." U.S. Const., Amend. IV; N.J. Const. (1947), Art. I, par. 2. Defendants contend that no individual suspicion is required because all students will be tested under Policy 5141.3 without discretion vested in any school official. The constitutional proscription against unreasonable search and seizure is not limited to only those who are suspected of criminal behavior. Instead, all searches by government officials, including inspections for administrative purposes, must satisfy constitutional reasonableness standards. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967).
The Fourth Amendment's prohibition against unreasonable searches and seizures clearly applies to searches conducted by public school officials. In New Jersey v. T.L.O., U.S. , 105 S. Ct. 733, 742, 83 L. Ed. 2d 720 (1985), Justice White stated, "[a]lthough this Court may take notice of the difficulty of maintaining discipline in the public schools today, the situation is not so dire that students in the schools may claim no legitimate expectations of privacy."
We receive guidance as to the definition of "reasonableness" from the Supreme Court when they state:
[Reasonableness] is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. [ Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 1884, 60 L. Ed. 2d 447 (1979); see also, Camara, 387 U.S. at 536-537, 87 S. Ct. at 1734-1735]
The Court in T.L.O. noted that "[o]n one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security; on the other the government's need for effective methods to deal with the breaches of public order." T.L.O., 105 S. Ct. at 741. "In other words, the court must
balance the competing interests involved on a case by case basis." Shoemaker v. Handel, 608 F. Supp. 1151, 1156-1157 (D.N.J.1985).
"Of course, the Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise 'illegitimate.' [Citations omitted] To receive the protection of the Fourth Amendment, an expectation of privacy must be one that society is 'prepared to recognize as legitimate.'" T.L.O., 105 S. Ct. at 742 ...