Who Controls Student Privacy Rights?
As a policy matter, student drug testing in public schools is widely determined by school districts. State legislatures have thus far not intruded, leaving these determinations to the discretion of local school boards. As such, policies vary widely nationwide, and even from district to district within given states. Schools that have adopted policies tend to fall into two categories. Some schools only enforce mandatory, suspicionless testing on students who wish to play intramural athletics, while others, test all students wishing to participate in extracurricular clubs and organizations.
Legal direction on school policies has come from primarily the courts. The highest-profile challenges to the policies have been brought in federal court on Fourth Amendment grounds, and no state can afford students fewer privacy protections than federal law provides. State constitutions often have broader privacy protections than are found under the federal constitution, thus providing powerful legal grounds for plaintiffs who want to challenge overly aggressive school policies. Furthermore, attending school is not a constitutional right under the federal constitution, but many state constitutions grant the right to attend school. Suspicionless drug testing as a prerequisite for some school activities could arguably interfere with the right to attend school.
Constitutional Challenges and Student Privacy
The first state constitutional challenge against mandatory testing of student athletes was brought in New Jersey in 1997 (Wilson v. Ridgefield Park Board of Education). The American Civil Liberties Union brought the case against Ridgefield Park, New Jersey school board, arguing that the policy violated state constitutional privacy rights. A state superior court judge agreed, additionally finding that the school had no evidence of a severe drug problem among athletes, and temporarily blocked enforcement of the policy pending trial. But before the case could be heard, the school board dropped the policy in a 1998 settlement.
State courts in Indiana, Oregon, and Pennsylvania have also found constitutional problems with school policies. Some state courts have considered policies that expand student testing to other extracurricular activities. In rejecting one such policy, the Colorado Supreme Court applied the U.S. Supreme Court's standard from Vernonia v. Acton (1995) when it held that high school marching band members have a higher expectation of privacy than student athletes who undress in locker rooms, in Trinidad School District No. 1 v. Lopez (1998). In other state litigation, school districts in Maryland and Washington discontinued policies following lawsuits.
A Sampling of State Drug Testing Laws
At least three states have found that random, suspicionless drug testing is unconstitutional under their state constitutions: Pennsylvania, New Jersey, and Texas. In all of those states, random drug testing is permissible only when there is a demonstrated need, such as a history of illegal steroid use among student athletes.
Indiana and Oregon's random, suspicionless drug testing policies survived constitutional review. However, the Indiana school district in question forced students to disclose their prescription medication before testing. The court found that students should not be required to disclose private medical information unless that information is necessary to explain a positive drug test.
Contact a qualified education attorney to help you navigate education rights and laws.