On appeal from the Superior Court of New Jersey, Chancery Division, Hunterdon County, Docket No. C-14031-00.
By Judges Stern, Eichen and Collester.
The opinion of the court was delivered by: Stern, P.J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendants, Hunterdon Central Regional High School ("Hunterdon Central") and its Acting Superintendent of Schools, Judith Gray, appeal from a judgment entered on January 29, 2001, declaring the policy concerning drug and alcohol testing of students at Hunterdon Central in violation of the New Jersey Constitution and enjoining defendants from implementing what the parties both call "random" substance testing at Hunterdon Central.
The challenged policy expanded a prior testing program and was established for the 2000-2001 school year, to cover "students engaged in extracurricular activities and students with permits to park on campus." Because the proofs did not show drug use above the national norm or that the "targeted" group exceeded use by other students, the trial judge issued a preliminary injunction, and, according to defendants, "the parties agreed to the entry of a final order permanently enjoining the policy so as to permit an appeal expeditiously." The trial court held that "[t]he random drug testing [program] is an invasion of the student's right to privacy and constitutes an unreasonable search and seizure under the New Jersey Constitution." The judge noted that "[o]n numerous occasions New Jersey's courts have held that the State Constitution affords greater protections from unreasonable searches and seizures than does the Fourth Amendment of the United States Constitution," and concluded that "[i]n light of the heightened privacy rights under the New Jersey Constitution and the lack of a substantial special need requiring random suspicionless testing, the Hunterdon Central Policy cannot continue [and that] [a]bsent evidence of a special need, suspicionless drug and alcohol testing violates student[s'] rights to privacy."
Plaintiffs contend that the judge's legal analysis was correct, that "special needs" were not demonstrated and that defendants' testing policy constitutes an invasion of privacy and unreasonable search and seizure under the State Constitution.
[T]he Trial Court incorrectly determined that the New Jersey Constitution affords greater protection in this area than the United States Constitution. Second, the Trial Court inappropriately clothed extracurricular activities with near constitutional protections. Third, the Trial Court also failed to recognize the diminished constitutional rights of public school students. Finally, the Trial Court's holding that random drug testing cannot proceed unless a school's drug problem exceeds the national norm and the targeted group of students uses drugs more than the general population of students is bad law, bad policy and impractical.
In this case, students, with parental consent, voluntarily agree to undergo random testing as a condition precedent to participation in extracurricular activities. Accordingly, any claimed constitutional infringement has been freely waived. In the alternative, under the appropriate "special needs" balancing test the notable goal of deterring drug use certainly outweighs the minimal intrusion of a confidential urine analysis.
The complaint was filed by parents of three Hunterdon Central students, Shaun Joye, Melissa Greiner and Anna Zdepski. At the time of the complaint, Joye was beginning his junior year, and Greiner and Zdepski were starting their senior year at Hunterdon Central. All three students were engaged in extracurricular activities and wished to continue to do so. All three were also seeking parking permits to drive to and from the school.
According to the certification of Lisa Brady, the principal of Hunterdon Central, there are approximately 2,500 students enrolled in grades 9 - 12, and Hunterdon Central has been vigorous in its efforts "to deter the use of illegal drugs and alcohol by students." It provides "drug and alcohol awareness programs" in classes and through student assemblies. It has also established a Student Assistance Program ("SAP") which employs full time professionals to counsel students and their families. From time to time, the school has conducted "dog sniffing sweeps" and "locker searches" in conjunction with the prosecutor's office and has implemented "suspicion-based" drug testing.
Despite this, the drug problem continued to grow, and in the 1996 to 1997 school year, thirty students were tested for drugs on "reasonable suspicion" and twenty-seven tested positive. Ms. Brady also became aware of two students snorting heroin on school premises in 1997.
According to the certification of John Brasell, Jr., the president of Hunterdon Central Regional High School Board of Education, the Board commissioned the Rocky Mountain Behavioral Science Institute, Inc. ("RMBSI") of Fort Collins, Colorado to conduct a study "to determine whether there indeed was a problem and, if so, the nature and extent of it." According to the RMBSI survey, over a third of Hunterdon Central students between grades 10 and 12 had used marijuana and over 10% had used hallucinogens; 12% of sophomores had used stimulants; 12% of juniors had used hallucinogens; and 13% of seniors had used cocaine. The survey also revealed that a substantial portion of the student body perceived that illegal drugs were readily available, including 38% of seniors who reported that heroin was readily "available." The perception by Hunterdon Central seniors of the widespread availability of heroin exceeded the national average, which was 35%.
In response, in 1997 the school board promulgated a random drug testing policy for student athletes that required consent by a parent or guardian to allow random drug testing as a condition of participation in the sport. A public meeting was held in October 1997, to discuss a comprehensive policy. David Evans, an expert on teen drug and alcohol abuse and the father of a child at Hunterdon Central, gave a presentation explaining drug testing and answered questions and concerns raised by parents. Based on Mr. Evans' suggestion, a community Task Force was established "to evaluate [the] current drug testing procedure . . . and present recommendations for optimization to the Board of Education . . . ." Evans was appointed as Chair, and Joan Greiner, an opponent of the drug testing and one of the plaintiffs herein, was appointed as Vice-Chair.
Evans certified that the Task Force met throughout 1998 and gathered data from the school SAP personnel and law enforcement agencies. It reviewed the substance abuse program at the school, including its ongoing suspicion-based drug testing and the random drug testing of athletes. The Task Force also "reviewed national studies on student drug abuse and received information from school administrators, coaches, the vice-principals, the school nurse and others as to the nature and extent of the drug problem at the school . . . ."
Mr. Evans further certified that the Task Force also obtained law enforcement data from the towns that "feed students to" Hunterdon Central. He certified that the "data included arrest reports, overdoses and other drug and alcohol induced mayhem." He states that in 1996-97, there were forty-one juveniles arrested for drug use with three deaths from heroin overdoses.
Jan Block, a Student Assistance/Substance Abuse Coordinator at the school, certified that she "observed a steady increase in the number of students using drugs and a major increase in the frequency and amount of drugs" from 1987 through the 1999-2000 school year when she retired.
A "follow-up survey" by RMBSI in the 1999-2000 school year showed that drug use by Hunterdon Central students was reduced. *fn1 However, the percentage of students who have used marijuana over the last twelve months among the general population (5% of ninth graders; 21% of tenth graders; 30% of eleventh graders and 33% of twelfth graders) was significant ...