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Joye v. Hunterdon Central Regional High School Board of Education

July 09, 2003

MICHAEL AND DEBORAH JOYE, ON BEHALF OF THEMSELVES AND THEIR MINOR CHILD, SHAUN JOYE; PHIL AND JOAN GREINER, ON BEHALF OF THEMSELVES AND THEIR MINOR CHILD, MELISSA GREINER; MARK AND LINDA ZDEPSKI, ON BEHALF OF THEMSELVES AND THEIR MINOR CHILD, ANNA ZDEPSKI, PLAINTIFFS-APPELLANTS,
v.
HUNTERDON CENTRAL REGIONAL HIGH SCHOOL BOARD OF EDUCATION AND ACTING SUPERINTENDENT OF SCHOOLS, JUDITH GRAY, IN HER OFFICIAL CAPACITY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 353 N.J. Super. 600 (2002).

SYLLABUS BY THE COURT

This appeal involves a constitutional challenge to a high school's random drug and alcohol testing program.

Hunterdon Central Regional High School is located in Flemington and provides secondary education to approximately 2,500 students enrolled in grades nine through twelve. Since 1987, administrators have implemented several policies designed to deter students from using alcohol and illegal drugs, and to counsel students who are experiencing substance-abuse problems. The school occasionally conducts searches of student lockers and so-called "dog-sniffing sweeps" in concert with the county prosecutor. Under a suspicion-based program in place since 1996, the school also tests individual students suspected of using illicit drugs or alcohol. The locker searches, dogsniffing sweeps, and suspicion-based tests are not challenged in this appeal.

Lisa Brady, the school's principal, indicated in a certification that despite these efforts, in 1997 the administrators continued to have concerns about illegal drug and alcohol use by students. Coaches, teachers, and administrators reported anecdotally their concern about what they perceived to be a growing problem. The principal also reported that in 1997, she personally became aware of two students snorting heroin on school premises. Reports from the suspicion-based program appeared to corroborate the reports. During the 1996-97 school year, the school tested thirty students for illegal drug use, twenty seven (or ninety percent) of whom tested positive.

The Board of Education retained the services of Rocky Mountain Behavioral Science Institute, Inc. (RMBSI) to conduct a survey regarding the nature and extent of illegal drug and alcohol use by Hunterdon Central students. Students were required to answer a written questionnaire on an anonymous basis. The survey reveals that as of the 1996-97 school year, over thirty-three percent of students between grades ten and twelve had used marijuana; that thirteen percent of seniors had tried cocaine; twelve percent of juniors had used hallucinogens; twelve percent of sophomores had tried stimulants; and twenty-one percent of freshmen had tried inhalants. Moreover, a substantial portion of the student body perceives that illegal drugs readily are available.

Responding to those results and to feedback from the school staff, the Board implemented its first random drug and alcohol testing program in July 1997. The program required parents or guardians to consent to having their children subjected to random testing as a condition of participating in athletic activities. Between 1998 and 2000, over 1,000 student athletes per school year became eligible for testing. Of that number, the school randomly tested approximately 100 student athletes a year. Less than five percent of those tested positive for drug or alcohol use.

Shortly after the initial program took effect, the Board held a public meeting where David Evans, an expert on teen drug use and a parent of a Hunterdon Central student, responded to questions raised by students and their parents. At Evans' suggestion, the Board established a task force to evaluate the then-current drug testing procedure and to present recommendations for any needed revisions. The Board appointed Evans as the task force's chair, and Joan Greiner, a drug-testing opponent and a plaintiff in this case, as its vice chair.

Brady, then a vice principal, served as a task force member. She explained that the task force heard from students and coaches who supported the program because it was working. The clear perception was that drug use among athletes had declined significantly because of the possibility of being tested. Students explained that it had eased peer pressure by giving student athletes a reason not to participate in use of alcohol and drugs. The task force solicited public input and held a public meeting. It also obtained law enforcement data from the municipalities that send students to Hunterdon Central. The task fore issued its final report in November 1998. Over Joan Greiner's lone objection, task force members voted to expand the school's random drug and alcohol testing program to include students who held parking permits or who engaged in non-athletic extracurricular activities.

The Board reviewed the task force's report and continued to hold public meetings to address the subject. The Board also recommissioned the RMBSI in 1999 to conduct a follow-up survey. Although the survey revealed that illegal drug use had declined, the Board concluded that student use of alcohol, marijuana, cocaine, and other drugs still was at an unacceptable level.

The Board ultimately accepted the task force's recommendation in December 1999. Fully implemented as of September 2000, the expanded policy authorizes the school's Administration to conduct random drug testing of all students engaged in ext racurricular activities and all students authorized to park on school premises. The policy sets forth the consequences should a student test positive for drug or alcohol use. For a first infraction, the school suspends the student from participating in the sport or other extracurricular activity, and similarly suspends his or her parking privilege. The suspensions remain in effect until the student completes a five-day preventative education program and submits a urinalysis indicating no alcohol or drug use. The student also is required to attend a minimum of five counseling sessions with a student assistance coordinator and to undergo further treatment, if necessary. For a second infraction, the school suspends the student from the extracurricular activity and revokes the parking privilege for sixty days. It requires the student to attend a five-day education program and a minimum of ten counseling sessions with a student assistance coordinator, and to resubmit a urinalysis free of alcohol or illegal drugs at the conclusion of the suspension period. The school also reserves the right to conduct periodic, unannounced tests on any student who commits a second infraction.

Hunterdon Central treats a student's test result as a confidential health record. The results cannot be released except under highly limited circumstances, such as when directed by a court. In addition, no record can be used to initiate or substantiate any criminal charges against a student or to conduct any investigation of a student.

Challenging the program's constitutionality on behalf of themselves and their respective children, three sets of parents filed suit in August 2000. The trial court agreed with plaintiffs, invalidating the entire program. The court determined the program violated the prohibition against unreasonable searches and seizures under Article I, paragraph 7 of the New Jersey Constitution. With one member dissenting, the Appellate Division reversed the trial court's determination in a reported opinion written by Judge Stern. Joye v. Hunterdon Cent. Bd. of Educ., 353 N.J. Super. 600 (2002). Plaintiffs appealed to this Court as of right.

HELD

The School Board's random drug and alcohol testing program is permissible under Article I, paragraph 7 of the New Jersey Constitution.

1. The parties do not dispute that Hunterdon Central's random drug and alcohol testing program plainly is constitutional under federal law. The sole issue is whether the program offends the New Jersey Constitution. Although the Court is not bound by federal decisions when interpreting our State's constitution, federal decisional law may serve to guide the Court in resolving such issues. In Vernonia School District 47J v. Acton, The opinion of the court was delivered by: Verniero, J.

Argued February 19, 2003

We are called on to evaluate the constitutionality of a high school's random drug and alcohol testing program. The program applies to all students who participate in athletic and non-athletic extracurricular activities, or who possess school parking permits. Students who test positive for drug or alcohol use are suspended temporarily from those activities or must relinquish their parking permits. They also are required to receive counseling and to seek other treatment if necessary. They are not, however, prosecuted or otherwise exposed to criminal liability. The United States Supreme Court has upheld similar programs of other states, concluding that they do not offend the United States Constitution. We hold that the program before us does not violate the New Jersey Constitution.

Specifically, the school's substance-abuse problem has been documented by survey results showing that a third of the students in the upper grades have used illegal drugs and that forty percent of students in the same grades have been intoxicated within the survey's prior twelve-month period. Those results are consistent with other data, including information regarding three deaths due to heroin overdoses in municipalities within the school district, and consistent with testimony of counselors and other school personnel. Against that record, we reject the suggestion of our dissenting colleagues that the New Jersey Constitution requires school officials to wait for the problem to worsen before addressing it in the manner sought here.

In following the course charted by our federal counterpart, we do not signal a retreat from this Court's history of affording citizens enhanced protections under our State's constitution. The New Jersey Constitution remains a critical safeguard against unreasonable, unfair, and overbearing governmental action. The program before us, however, reflects no such conduct. Instead, it is consistent with existing law recognizing that students have a diminished expectation of privacy in a public-school context. Equally important, our law further provides that school officials are responsible for the children entrusted to their care. From that perspective, the program represents a rational attempt by those officials and by approving parents to address a documented problem of illegal drug and alcohol use affecting a sizable portion of the student population. The program is reasonable and, therefore, constitutional.

Finally, we do not share the dissent's apparent view that every public high school automatically will satisfy the special-needs test that we more fully describe below. Although some of the test's factors, such as the students' diminished expectation of privacy, are common to all schools, other factors, such as the scope of specific drug or alcohol use, might vary from school to school. We leave open the possibility that a future program will not pass constitutional muster either because the school's chosen method of specimen collection is overly intrusive in view of alternative methods, or because the underlying drug and alcohol use at the particular school simply is inadequate to justify it.

I.

We derive our summary of the essential facts largely from certifications and other information submitted to the trial court. The parties do not dispute those facts.

Hunterdon Central Regional High School (Hunterdon Central) is located in Flemington and provides secondary education to approximately 2,500 students enrolled in grades nine through twelve. Since 1987, school administrators have implemented several policies designed to deter students from using alcohol and illegal drugs, and to counsel students who are experiencing substance-abuse problems. The school provides drug-related awareness programs in individual classes and through larger student assemblies. In addition, it maintains a student assistance program (SAP) that employs three full-time professionals who counsel students and their families regarding drug and alcohol abuse.

The school occasionally conducts searches of student lockers and so-called "dog-sniffing sweeps" in concert with the county prosecutor. Under a suspicion-based program in place since 1996, the school also tests individual students who are suspected of using illicit drugs or alcohol. The locker searches, dog-sniffing sweeps, and suspicion-based tests are not challenged in this appeal.

Lisa Brady is the school's principal. Brady submitted a certification in which she indicated that despite the above efforts, in 1997 administrators continued to have concerns "about the apparent presence of illegal drug and alcohol use by students." She explained that "[c]oaches, teachers and administrators reported anecdotally their concern about what they perceived to be a growing problem." The principal also reported that in 1997 she "personally became aware of two students snorting heroin on school premises." Results from the suspicion-based program appeared to corroborate the anecdotal reports. During the 1996-97 school year, the school tested thirty students for illegal drug use based on reasonable suspicion, twenty-seven (or ninety percent) of whom tested positive.

To assist it in better understanding the scope of the perceived problem, the Hunterdon Central Regional High School Board of Education (Board) retained the services of the Rocky Mountain Behavioral Science Institute, Inc. (RMBSI) of Fort Collins, Colorado. The Board commissioned the RMBSI to conduct a survey regarding "the nature and extent of illegal drug and alcohol use by Hunterdon Central students[.]" The survey consisted of a written questionnaire administered to students that took approximately thirty-five minutes to complete. On an anonymous basis, the survey questioned students about their history with drugs and alcohol, and the frequency and intensity of any current use. According to Brady, "the [s]chool was assured that the [s]urvey was scientifically reliable due to its built in controls to detect erroneous or exaggerated responses and its consistency checks."

The survey reveals that as of the 1996-97 school year, over thirty-three percent of Hunterdon Central's students between grades ten and twelve had used marijuana within the preceding twelve-month period. It also indicates that thirteen percent of seniors had tried cocaine; twelve percent of juniors had used hallucinogens; twelve percent of sophomores had tried stimulants; and twenty-one percent of freshmen had tried inhalants. Moreover, a substantial portion of the student body perceives that illegal drugs readily are available. As for alcohol, the study indicates that over forty percent of students between grades ten and twelve had "been drunk" within the twelve-month period prior to the survey, and over eighty-five percent of all students had tried alcohol.

Responding to those results and to "continual feedback from the school staff," the Board implemented its first random drug and alcohol testing program in July 1997. The Board confined the program to students who participated in interscholastic sports. The program required parents or guardians to consent to having their children subjected to random testing as a condition of participating in the school's athletic activities. Between 1998 and 2000, over 1,000 student athletes per school year became eligible for testing. Of that number, the school randomly tested approximately 100 student athletes a year. Less than five percent of those students tested positive for drug or alcohol use. (The exact number is not in the record. Brady indicated that because the number is so low, publishing it might reveal student identities, a circumstance that the school seeks to avoid consistent with confidentiality rules.)

Shortly after that initial program took effect, the Board held a public meeting at which David Evans, an expert on teen drug use and himself a parent of a Hunterdon Central student, responded to questions raised by students and their parents. At Evans' suggestion, the Board established a task force to "evaluate [the then-current] drug testing procedure in place at Hunterdon Central and [to] present recommendations" for any needed revisions. The Board appointed Evans as the task force's chair and appointed Joan Greiner, a drug-testing opponent (and a plaintiff in this case), as its vice chair.

According to Evans, the task force "was comprised of student representatives, and representatives from parents, the booster club, the [SAP], school administration, teachers, coaches, and drug testing experts."

The task force met for a period of several months, beginning in January 1998 and concluding in November 1998. It evaluated existing substance-abuse programs at the school, including the random drug testing program for athletes, as well as information provided by SAP staff and information related to day-to-day drug and alcohol problems among students. In addition, it reviewed national and New Jersey data on student drug abuse, and received information from administrators, coaches, the school nurse, and other individuals concerning Hunterdon Central's drug situation.

Brady, then a vice principal, served as a task force member. She explained:

[W]e heard from students and coaches who supported the [existing athletic testing] program because it was working. The clear perception was that drug use among athletes had declined significantly because of the possibility of being tested. One student explained that it eased peer pressure by giving student athletes a reason not to participate in use of alcohol and drugs. We consider the low positive rate [the previously cited five-percent figure] to indicate program success.

The task force solicited public input by sending letters to parents and holding a public meeting in October 1998. It also obtained law enforcement data, including arrest reports and drug overdoses, from the municipalities that send students to Hunterdon Central. The task force member who gathered that data reported:

[I]n the 1996-1997 school year the police statistics from the Township of Raritan, one of Hunterdon Central's sending districts[,] reported 103 arrests for drug related offenses. Of these 103 arrests, 41 were juveniles. There were 15 juveniles arrested for alcohol related offenses and three deaths associated with heroin overdose. For the 1997-1998 school year, the police statistics for the Raritan sending district showed 91 arrests for drug related offenses. Of these 91 arrests, 33 were juvenile.

The task force issued its final report in November 1998. Over Joan Greiner's lone objection, task force members voted to expand the school's random drug and alcohol testing program to include students who held parking permits or who engaged in non-athletic extracurricular activities.

The Board reviewed the task force's report and continued to hold public meetings to address the subject. The Board also re-commissioned the RMBSI in 1999 to conduct a follow-up survey for the 1999-2000 school year. Although the survey revealed that illegal drug use had declined, the Board concluded that student use of alcohol, marijuana, cocaine, and other drugs still was at an unacceptable level. Brady described the Board's reaction:

The School Board commissioned RMBSI to do a follow up survey in 1999-2000. According to [the 1999-2000] survey, drug use was thankfully down in most categories. We believe it was down due, in part, to the success of random drug testing among the substantial number of students who engage in athletics. While drug use was generally down, however, use of marijuana was up slightly among seniors, use of cocaine was still at 7% for juniors, and there was still an unacceptably significant use of drugs among students in general.

Other school personnel spoke of their experiences with student drug and alcohol use, which appeared consistent with the survey results. A retired student assistance coordinator stated that during her thirteen-year tenure at Hunterdon Central she had "observed a steady increase in the number of students using drugs and a major increase in the frequency and amount of drugs."

Another coordinator, who also served as a task force member, reported that during her twenty-seven-year tenure at the school she had observed a measurable increase in student referrals to the SAP. The work load of "[c]ounselors dealing with drug and alcohol problems increased at least 33% from the [1996-97] to [1999-2000] school year[s,] requiring a third [s]tudent [a]ssistance [c]ounselor position to be established and filled." During that same period, the SAP "handled over 300 referrals per year." The coordinator also indicated that "many of the referrals are athletes and students engaged in extracurricular activities."

According to Brady, while the Board undertook its review, "illegal drug and alcohol use continued to be a problem among the student body in general." The school maintained its suspicion-based program during that period. Under that program, the school tested thirty-one students during the 1998-99 school year, twenty-eight (or ninety percent) of whom tested positive. In the 1999-2000 school year, the school tested forty-six students, thirty-eight (or eighty-two percent) of whom tested positive. Brady also stated that "[m]ost recently in the Spring of 2000, four students who ingested illegal drugs became sick at school[.]"

The Board ultimately accepted the task force's recommendation in December 1999. Fully implemented as of September 2000, the expanded policy "authorizes the [school's] Administration to conduct random drug testing of all students engaged in extracurricular activities and all students authorized to park on school premises." It defines extracurricular activity as "[a]ny non-credit activity in which a student participates." When the Board announced its decision it listed promotion of health and safety as one of its primary objectives. It also stated that the policy sought "to deter drug use, thereby countering peer pressure which may encourage indulgence" and "to encourage students who use alcohol and drugs to participate in rehabilitative programs[.]"

The program requires both the student and his or her parent or guardian to execute a consent form. The form includes an acknowledgment that the student is eligible for testing "throughout the designated time of participation" in an athletic or non-athletic extracurricular activity or while the student holds a parking permit. By signing the form, the student also indicates:

I understand fully that my performance as a participant and the reputation of my school are dependent, in part, on my conduct as an individual. I hereby agree to accept and abide by the standards, rules and regulations set forth by the [Board] and the sponsors for the activity in which I participate.

I authorize the Hunterdon Central Regional High School District to conduct a test on a urine specimen and saliva specimen and/or breath specimen that I provide on site to test for alcohol and drug use if my name is drawn from the random pool. Pursuant to the Student Random Drug and Alcohol Policy, I also authorize the release of information concerning the results of such test to designated District personnel.

As of the trial court's opinion (January 4, 2001), students and their parents or guardians had executed 866 consent forms.

The trial court succinctly summarized the testing procedure used for students engaged in either athletic or non athletic extracurricular activities:

Specifically, each week the Athletic Director contacts a grade level Vice Principal and oversees the drawing from a box of ID numbers on the morning of testing. Parents are called to be informed that their child has been selected to be tested and they are given the right to attend if they so [choose]. The Athletic Director then contacts the appropriate grade level Vice Principal and the student's schedule is pulled to ascertain the least disruptive time for the testing. At that time, the student is contacted by the Vice Principal and informed that he or she has been selected for a random drug test. The Vice Principal then accompanies the student to the nearest Health Office where the student is interviewed by the nurse and is required to provide a urine sample. The sample is provided in a rest room with the door closed. The sample is tested for adulteration. If the test [for illegal substances] is positive, the parents are called if they are not already there. A second test based on the sample provided is then performed by... an outside testing laboratory. [The laboratory] conducts a gas chromatography mass spectrometry... test which lists the exact chemical nature of the drug. The results of that test are returned to the school within 24 hours. The second test is designed to ensure against false positives.

The policy sets forth the consequences should a student test positive for drugs or alcohol. For a first infraction, the school suspends the student from participating in the sport or other extracurricular activity, and similarly suspends his or her parking privilege. Those suspensions remain in effect until the student completes a five-day preventative education program and submits a urinalysis indicating no alcohol or drug use. The school also requires the student to attend a minimum of five counseling sessions with a student assistance coordinator and to undergo further treatment if necessary.

For a second infraction, the school suspends the student from the athletic or non-athletic activity and revokes his or her parking privilege for sixty days, starting from the date of the test that indicated the second violation. The school requires the student to attend a five-day education program, to attend a minimum of ten counseling sessions with a student assistance coordinator, and to resubmit a urinalysis free of alcohol or illegal drugs as of the conclusion of the suspension period. The school also reserves the right to conduct "periodic, unannounced" tests on any student found to have committed a second infraction.

Hunterdon Central treats a student's test result as a confidential health record pursuant to regulations of the New Jersey Department of Education. Those regulations provide that "[i]nformation obtained by the school's alcohol and other drug testing program which would identify the student as an alcohol or other drug user may be disclosed only for those purposes and under those conditions permitted by [federal regulations]." N.J.A.C. 6A:16-1.5(c)(2). Federal regulations, in turn, prohibit the release of such records except under highly limited circumstances (such as when a court directs their disclosure). 42 C.F.R. §§ 2.1, 2.2. Federal regulations also provide that no record "may be used to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient." Id. at §§ 2.1(c), 2.2(c). Accordingly, Hunterdon Central does not share individual test results with law enforcement authorities.

Challenging the program's constitutionality on behalf of themselves and their respective children, three sets of parents (collectively, plaintiffs) filed this suit in August 2000. Their complaint seeks to overturn the school's entire random-based policy, including its athletic and non-athletic components. Defendants are the Board and the Superintendent of Schools.

Joan Greiner, formerly the task force's vice chair, is one of the plaintiffs. She submitted a certification on behalf of herself and her husband contending that the Board's policy violated their daughter's right to privacy and "interfer[ed] with our parental rights to raise our daughter as we think best and to teach her the personal responsibility she needs as a young adult." The complaint asserts a similar contention on behalf of the other two sets of plaintiffs. Greiner also expressed a concern that if subjected to the program, her daughter would have had "to reveal medical information if she [had been] selected for random testing." More broadly, Greiner stated that "there was no evidence of the existence of drug or alcohol problems specifically among students who participate in sports, extracurricular activities, or who have parking permits."

John Brasell, Jr., the Board's president, submitted a certification defending the Board's decision. He described the development of the program's athletic and non-athletic components, outlining the chronology noted above. He also stated that, in his "years as a Board member," he has observed that parents "have a tendency to react openly when opposing a program or policy[.]" He further noted that "[i]n a school district representing approximately 2,500 students, 4,000 parents and over 15,000 households only 3 students and their parents are in opposition [to the program]." In Brasell's view, that fact "speak[s] very loudly in favor of the Board's policy."

The Board president also certified:

I believe this Board has taken the steps to ensure that due diligence was applied and that our policy fairly balances the privacy rights of students and the obligation we have as public officials to protect students in the care of our school. I further believe we have taken the patient, well-thought out approach to implement a policy that we believe will assist our students in combating one of the leading killers of our youth today. This program has proven to be successful with our athletes and will continue to work to deter drug use if expanded to include our students with parking permits and those engaged in extracurricular activities.

The trial court agreed with plaintiffs, invalidating the entire program. The court determined that the program violated the prohibition against unreasonable searches and seizures under Article I, paragraph 7 of the New Jersey Constitution, a provision analogous to the Fourth Amendment of the United States Constitution. With one member of the panel dissenting, the Appellate Division reversed the trial court's determination in a reported opinion written by Judge Stern. Joye v. Hunterdon Cent. Bd. of Educ., 353 N.J. Super. 600 (2002). Plaintiffs appealed to this Court as of right. R. 2:2-1(a)(2). We granted amicus curiae status to the New Jersey School Boards Association and to numerous anti-drug organizations (the organizational amici), all of which join defendants in defending the school's expanded policy.

II.

A.

We note preliminarily that the student plaintiffs no longer attend Hunterdon Central, having completed all grades and having graduated since the trial court's decision. The school's testing program, therefore, no longer confronts them, a circumstance that renders moot their underlying complaint. Nonetheless, we elect to resolve their constitutional challenge given its public significance and the likelihood "that controversies similar to this one will present themselves in the future." Clymer v. Summit Bancorp., 171 N.J. 57, 66 (2002); see also State v. Hackett, 166 N.J. 66, 70 (2001) (electing to resolve criminal appeal even though defendant had passed away because case involved "important public issues in need of resolution").

B.

Turning to the merits of their arguments, the parties do not dispute that Hunterdon Central's random drug and alcohol testing program plainly is constitutional under federal law. The sole issue is whether the program offends the New Jersey Constitution. Although we are not bound by federal decisions when interpreting our State's constitution, "federal decisional law may serve to guide us in our resolution of New Jersey issues[.]" State v. Cooke, 163 N.J. 657, 670 (2000). We turn, then, to two pertinent decisions of the United States Supreme Court that will provide a backdrop to our disposition.

The seminal case addressing random or suspicionless drug testing in a public school is Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995). In that case, a school district in Oregon adopted a policy that required "all students participating in interscholastic athletics" to consent to random drug testing. Id. at 650, 115 S. Ct. at 2389, 132 L. Ed. 2d at 572. The Supreme Court described the difficulties experienced by school administrators that prompted them to implement the policy:

"[T]he administration was at its wits end and... a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion. Disciplinary actions had reached 'epidemic proportions.' The coincidence of an almost three-fold increase in classroom disruptions and disciplinary reports along with the staff's direct observations of students using drugs or glamorizing drug and alcohol use led the administration to the inescapable conclusion that the rebellion was being fueled by alcohol and drug abuse as well as the student's misperceptions about the drug culture."

[Id. at 649, 115 S. Ct. at 2389, 132 L. Ed. 2d at 572 (internal citation omitted).]

In evaluating the policy under a special-needs balancing test, the Court first considered the nature of the privacy interest at stake. The Court explained that "[p]articularly with regard to medical examinations and procedures,... 'students within the school environment have a lesser expectation of privacy than members of the population generally.'" Id. at 657, 115 S. Ct. at 2392, 132 L. Ed. 2d at 577 (quoting New Jersey v. T.L.O., 469 U.S. 325, 348, 105 S. Ct. 733, 746, 83 L. Ed. 2d 720, 739 (1985) (Powell, J., concurring)). It further observed that student athletes have an expectation of privacy even lower than that of other students. The Court stated that "[b]y choosing to 'go out for the team,' [student athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally." Id. at 657, 115 S. Ct. at 2393, 132 L. Ed. 2d at 577.

The Court next considered the nature of the intrusion engendered by the policy. In the Court's view, even though the collection of urine intrudes on an "'excretory function traditionally shielded by great privacy,'... the degree of intrusion depends upon the manner in which production of the urine sample is monitored." Id. at 658, 115 S. Ct. at 2393, 132 L. Ed. 2d at 577 (quoting Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 626, 109 S. Ct. 1402, 1418, 103 L. Ed. 2d 639, 666 (1989)). The Court noted that the school collected urine samples under conditions "nearly identical to those typically encountered in public restrooms[.]" Ibid. Under those circumstances, the Court concluded that "the privacy interests compromised by the process" were "negligible." Ibid.

The Court's privacy analysis also included the scope of the urinalysis itself. In that regard, the Court found it significant that the tests sought to reveal only drug use and not "whether the student is, for example, epileptic, pregnant, or diabetic[.]" Id. at 658, 115 S. Ct. at 239, 132 L. Ed. 2d at 578. Moreover, the Court emphasized that the school disclosed the test results only to a limited number of personnel on a need-to-know basis, and that it did not forward the results to law enforcement authorities for criminal prosecution. Ibid.

The Court then examined "the nature and immediacy of the governmental concern at issue[,]" id. at 660, 115 S. Ct. at 2394, 132 L. Ed. 2d at 579, and expressed no doubt that deterring student drug use "is important - indeed, perhaps compelling." Id. at 661, 115 S. Ct. at 2395, 132 L. Ed. 2d at 579. The Court also viewed the policy as being narrowly tailored to detect "drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high." Id. at 662, 115 S. Ct. at 2395, 132 L. Ed. 2d at 580. Along those same lines, the Court found that "the particular drugs screened by the [drug testing policy] have been demonstrated to pose substantial physical risks to athletes." Ibid.

Considering those three factors, "the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search," the Court held that the school district's policy was "reasonable and hence constitutional." Id. at 664-65, 115 S. Ct. at 2396, 132 L. Ed. 2d at 582. Lastly, the Court cautioned that suspicionless drug testing might not "pass constitutional muster in other contexts." Id. at 665, 115 S. Ct. at 2396, 132 L. Ed. 2d 582. It emphasized that "[t]he most significant element in this case is the first we discussed: that the [drug policy] was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care." Ibid.

The Supreme Court extended Vernonia's holding in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S. Ct. 2559, 153 L. Ed. 2d 735 (2002). The drug policy at issue in that case applied "to competitive extracurricular activities" such as the "Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, pom-pom, cheerleading, and athletics." Id. at 826, 122 S. Ct. at 2562-63, 153 L. Ed. 2d at ___. The policy required all students to submit to an initial drug test before beginning an extracurricular activity, to submit to random drug testing during the period of participation, and to "agree to be tested at any time upon reasonable suspicion." Id. at 826, 122 S. Ct. at 2563, 153 L. Ed. 2d at ___.

In applying essentially the same balancing test articulated in Vernonia, the Earls Court first looked to "the nature of the privacy interests allegedly compromised by the drug testing." Earls, supra, 536 U.S. at 830, 122 S. Ct. at 2565, 153 L. Ed. 2d at ___. It reaffirmed that "[a]s in Vernonia, the context of the public school environment serves as the backdrop for the analysis of the privacy interest at stake and the reasonableness of the drug testing policy in general." Id. at 830, 122 S. Ct. at 2565, 153 L. Ed. 2d at ___ (citation omitted). The Court noted that "[i]n upholding the drug testing program in Vernonia, we considered the school context '[c]entral' and '[t]he most significant element.'" Id. at 831 n.3, 122 S. Ct. at 2565 n.3, 153 L. Ed. 2d at ___ n.3 (citation omitted).

The Court next reiterated that the privacy interests of students are limited "in a public school environment where the State is responsible for maintaining discipline, health, and safety." Id. at 830, 122 S. Ct. at 2565, 153 L. Ed. 2d at ___. It rejected the notion that "because children participating in non-athletic extracurricular activities are not subject to regular physicals and communal undress, they have a stronger expectation of privacy than the athletes tested in Vernonia." Id. at 831, 122 S. Ct. at 2565, 153 L. Ed. 2d at ___. Instead, the Court found that like athletes, students who engage in non-athletic extracurricular activities "voluntarily subject themselves to many of the same intrusions on their privacy[.]" Id. at 831, 122 S. Ct. at 2566, 153 L. Ed. 2d at ___. Such intrusions involve "occasional off-campus travel," "communal undress," and special "rules and requirements for participating students that do not apply to the student body as a whole." Id. at 832, 122 S. Ct. at 2566, 153 L. Ed. 2d at ___.

As it did in Vernonia, the Court in Earls concluded that the process of collecting urine was "minimally intrusive[.]" Id. at 834, 122 S. Ct. at 2567, 153 L. Ed. 2d at ___. The Court observed that the students' test results were kept confidential and were not forwarded to law enforcement authorities. Id. at 833, 122 S. Ct. at 2566, 153 L. Ed. 2d at ___. It further noted that positive test results did not "lead to the imposition of discipline or have any academic consequences," except to "limit the student's privilege of participating in extracurricular activities." Id. at 833, 122 S. Ct. at 2566-67, 153 L. Ed. 2d at ___.

Concerning the immediacy and nature of the government's interests, the Court considered "the nationwide drug epidemic," id. at 834, 122 S. Ct. at 2567, 153 L. Ed. 2d at ___, as well as "the need to prevent and deter the substantial harm of childhood drug use[.]" Id. at 836, 122 S. Ct. at 2568, 153 L. Ed. 2d at ___. The Court refused to require the respondent school district to demonstrate "some identifiable drug abuse problem among a sufficient number of those subject to the testing[.]" Ibid. The Court reasoned: "[I]t would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use." Ibid.

The Court also rejected the argument that suspicion-based testing is less intrusive than random testing and that schools should limit their policies accordingly. The Court stated:

[T]he Fourth Amendment does not require a finding of individualized suspicion, and we decline to impose such a requirement on schools attempting to prevent and detect drug use by students. Moreover, we question whether testing based on individualized suspicion in fact would be less intrusive. Such a regime would place an additional burden on public school teachers who are already tasked with the difficult job of maintaining order and discipline. A program of individualized suspicion might unfairly target members of unpopular groups. The fear of lawsuits resulting from such targeted searches may chill enforcement of the program, rendering it ineffective in combating drug use. [Id. at 837, 122 S. Ct. at 2568-69, 153 L. Ed. 2d at ___ (internal citations omitted).]

Finally, the Court explained that "[w]hile in Vernonia there might have been a closer fit between the testing of athletes and the... finding that the drug problem was 'fueled by the "role model" effect of athletes' drug use,' such a finding was not essential to the holding." Id. at 837-38, 122 S. Ct. at 2569, 153 L. Ed. 2d at ___ (citation omitted). It stated that "Vernonia did not require the school to test the group of students most likely to use drugs, but rather considered the constitutionality of the program in the context of the public school's custodial responsibilities." Id. at 838, 122 S. Ct. at 2569, 153 L. Ed. 2d at ___. The Court, therefore, found that the drug testing policy was "a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren." Ibid.

In a thoughtful concurring opinion, Justice Breyer emphasized the policy considerations that, in his view, favored the Court's holding:

First, the drug problem in our Nation's schools is serious in terms of size, the kinds of drugs being used, and the consequences of that use both for our children and the rest of us.

Second, the government's emphasis upon supply side interdiction apparently has not reduced teenage use in recent years.

Third, public school systems must find effective ways to deal with this problem.... The law itself recognizes these responsibilities with the phrase in loco parentis -- a phrase that draws its legal force primarily from the needs of younger students... and which reflects, not that a child or adolescent lacks an interest in privacy, but that a child's or adolescent's school-related privacy interest, when compared to the privacy interests of an adult, has different dimensions[.]

Fourth, the program... seeks to discourage demand for drugs by changing the school's environment in order to combat the single most important factor leading school children to take drugs, namely, peer pressure. It offers the adolescent a non threatening reason to decline his friend's drug-use invitations, namely, that he intends to play baseball, participate in debate, join the band, or engage in any one of half a dozen useful, interesting, and important activities. [Id. at 839, 122 S. Ct. at 2569-70, 153 L. Ed. 2d at ___ (Breyer, J., concurring) (internal citations omitted).]

Justice Breyer also noted that the school district's policy had engendered little community opposition, suggesting that that factor is relevant when evaluating whether a policy unduly infringes on a student's privacy interests. He noted other practical considerations as well:

First, not everyone would agree with this Court's characterization of the privacy-related significance of urine sampling as "negligible." Some find the procedure no more intrusive than a routine medical examination, but others are seriously embarrassed by the need to provide a urine sample with someone listening "outside the closed restroom stall[.]" When trying to resolve this kind of close question involving the interpretation of constitutional values, I believe it important that the school board provided an opportunity for the airing of these differences at public meetings designed to give the entire community "the opportunity to be able to participate" in developing the drug policy. The board used this democratic, participatory process to uncover and to resolve differences, giving weight to the fact that the process, in this instance, revealed little, if any, objection to the proposed testing program.

Second, the testing program avoids subjecting the entire school to testing. And it preserves an option for a conscientious objector. He can refuse testing while paying a price (nonparticipation) that is serious, but less severe than expulsion from the school.

Third, a contrary reading of the Constitution, as requiring "individualized suspicion" in this public school context, could well lead schools to push the boundaries of "individualized suspicion" to its outer limits, using subjective criteria that may "unfairly target members of unpopular groups," or leave those whose behavior is slightly abnormal stigmatized in the minds of others[.] [Id. at 841-42, 122 S. Ct. at 2570-71, 153 L. Ed. 2d at ___ (Breyer, J., concurring) (internal citations omitted).]

III.

A.

With Vernonia and Earls as background, we turn to New Jersey law. Article I, paragraph 7 of the New ...


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