Sports Law Paper2004FINAL

TABLE OF CONTENTS
INTRODUCTION .................................................................................................2
ANALYSIS ............................................................................................................8
BACKGROUND.............................................................................................................................................8
BROOKS: THE OLD STANDARD........................................................................................................... 8
VERNONIA: Random Suspicionless Drug Testing of Student Athletes Constitutional......................11
THE SPECIAL NEEDS EXCEPTION TO THE FOURTEENTH AMENDMENT................................13
NATURE OF THE STUDENT PRIVACY INTEREST...........................................................................15
CHARACTER IF THE INTRUSION....................................................................................................... 16
NATURE OF THE GOVERNMENT INTEREST, IMMEDIACY AND EFFICACY............................17
THE AFTERMATH: Stare Decisis and the Extension of Vernonia........................................................18
LIMITS ON VERNONIA..........................................................................................................................22
EARLS: THE NEW STANDARD............................................................................................................23
CONCLUSION ...................................................................................................23
DPayne Page 1 of 23 7/8/2015

INTRODUCTION
The misuse of drugs and medication in the world of professional sports has been
recognized as an important problem for more than 20 years. There has always been “For
Cause” drug testing in professional sports. However, these policies have generally been
viewed as ineffective because they did not deter the use of controlled substances by
professional athletes. Not only did there have to be probable cause for the drug test,
notice was also usually given so that the athlete was well aware of or may have chosen
when she would be tested. The commissioners of the various sporting leagues have used
their influence in the best interest of the sport to institute drug-testing policies, which test
athletes for controlled substances randomly and regardless of suspicion. These
commissioners act in an effort to maintain the integrity of the sport and under the long-
standing assumption that he has the duty to protect the “best interests of the sport.”1
.
These policies have not been well received by athletes or the unions, which represent
them because on their face, they seem to impede on some constitutional rights to privacy.
However, through unions and the collective bargaining process available in most
professional sports, players and owners have the opportunity to reach an agreement on
effective drug testing programs that do not impede upon the privacy interests of the
players. This does not preclude the issue from entering the courts, but it does at least
provide an opportunity for agreement without litigation.
For the most part, public debate has centered on professional sports; little
attention has been paid to the drama as it is unfolding with respect to student athletes. As
1
Sports and the Law: Text, Cases, Problems, Second Edition (St. Paul, Minn.: West
Group, 1998) page 1.

there are no unions at the interscholastic level of athletic competition, there can be no
collective bargaining agreement with regard to random, suspicionless drug testing.
Instead, the issue had to be addressed by the courts. In 1994, in the case of Hill v.
National Collegiate Athletic Association, 865 P. 2d 633 (Cal., 1994), the California
Supreme Court considered whether a drug testing policy employed by the National
Collegiate Athletic Association (NCAA) was an infringement on the student athletes’
right to privacy. In Hill, the Supreme Court of California reversed the trial court and the
Court of Appeals decision when it ruled that the NCAA drug testing policy was not a
violation of the student athlete’s state constitutional right to privacy.2
Among the Court’s
findings were that students in general, have a diminished right to privacy. Moreover,
student athletes have an even lower expectation of privacy than does the non-athlete.
Such reasoning would become integral to later decisions finding no constitutional
violation concerning suspicionless drug testing of student athletes.
“By its nature, participation in intercollegiate athletics,
particularly in highly competitive postseason championship
events, involves close regulation and scrutiny of the
physical fitness and bodily condition of student athletes.
Required physical examinations (including urinalysis), and
special regulation of sleep habits, diet, fitness, and other
activities that intrude significantly on privacy interests are
routine aspects of a college athlete's life not shared by other
students or the population at large. Athletes frequently
disrobe in the presence of one another and their athletic
mentors and assistants in locker room settings where
private bodily parts are readily observable by others of the
same sex. They also exchange information about their
physical condition and medical treatment with coaches,
trainers, and others who have a "need to know."
As a result of its unique set of demands, athletic
participation carries with it social norms that effectively
diminish the athlete's reasonable expectation of personal
privacy in his or her bodily condition, both internal and
2
Hill v. National Collegiate Athletic Association, 865 P. 2d 633, 668 (Cal., 1994).

external.”3
The court used a balancing test usually applied in cases where State action or
legislation has a countervailing Federal interest or statute; in such cases, there must be a
compelling state interest that outweighs the interests of the Federal law. Although the
NCAA is a private organization, a provision called the Privacy Initiative in the California
state constitution provided for a cause of action against both private and public entities.4
The California Court applied this balancing test; substituting the NCAA as the state actor
and the California State constitution as the Federal statute and found that the state
interests were significant enough to outweigh the student athlete’s already diminished
right to privacy.
Nearly one year earlier, the Colorado Supreme Court held exactly the opposite in
a similar case titled University of Colorado v. Derdeyn, 863 P.2d 929 (Colo., 1993).
Student athletes challenged the constitutionality of the state university's mandatory
random, suspicionless urinalysis drug testing program based on the Fourth Amendment
protection against unreasonable searches and seizures, as made enforceable against the
states by the Due Process Clause of the Fourteenth Amendment, as well as the
corresponding provision in the Colorado State constitution.5
In its analysis, the court began by characterizing the university’s implementation
of the drug testing program as a government action because the University of Colorado is
a state school. Consequently, the collection of urine for urinalysis was identified as a
search within the meaning of the Fourth Amendment. The court then had to determine
whether there was a conflict between the state action and the constitutional right to be
3
Id at 658.
4
Id at 644.
5
University of Colorado v. Derdeyn, 863 P.2d 929, 929 (Colo., 1993).

free from unreasonable searches and seizures, as guaranteed by the Fourth Amendment of
the United States Constitution and the Colorado State constitution. In finding that there
was a conflict in this case, the court interpreted the nature of voluntary participation in
the drug testing program in terms of consent. Although a consent form had to be signed
before an athlete could be tested, the court said that consent could not be found where a
refusal of consent results in the denial of a governmental benefit.6
Next, the court had to
decide whether the search was reasonable and therefore, permitted by the Constitution.
The Court held that, in the absence of voluntary consents, the university's random,
suspicionless urinalysis drug testing of student athletes was an unconstitutional search
because it unreasonable without individualized suspicion; the policy intruded on the
individual’s privacy interest.7
In comparison, the California and Colorado Supreme Courts decided significantly
similar cases resulting in opposite holdings. This may be attributable to the factual
differences between the cases with regard to the manner of policy implementation. In
Hill, a central factor in the analysis was that no compelling need for randomly drug
testing student athletes was found; partially due to the very few positive results from the
test in 1986 and 1987, but also because the court said the policy was overbroad because it
banned even useful drugs and medications that were meant to improve the health of the
athlete.8
Integral to the decision in Derdeyn was the finding that there was no consent
given by the student. Also of paramount importance in the decision was that the court
minimized the need for the party seeking to implement the drug testing policy to
demonstrate a compelling interest. The Court inserted its own perception as to what
6
Id at 934.
7
Id at 937.
8
Hill, 865 P. 2d at 640.

interests were being advanced by the school district’s drug policy.
“The majority's analysis of the asserted interests offered by
CU to support its suspicionless drug-testing program for
student athletes is limited to the observation that CU asserts
no significant public safety interests… I disagree with this
analysis and conclude that CU's implementation of its
suspicionless drug- testing program for student athletes
serves important and valid public interests, including
protecting the health and safety of intercollegiate student
athletes and preventing drug use by other students who
look to student athletes as role models.”9
The court seemed to go out of its way to fashion a compelling interest that was
not even advanced by the defendant asserting the policy. Because minor factual
differences could produce such disparate results and because the aforementioned
decisions were only controlling precedent to the courts below them, there was no
uniformity across jurisdictions on the issue of random, suspicionless drug testing of
athletes at the interscholastic level until 1995, when the Supreme Court was faced with
deciding whether such drug testing was constitutional.
In 1995, in the case of Vernonia School District 47J v. Acton, The Supreme
Court held that suspicionless drug testing of public school students choosing to
participate in extracurricular athletics was constitutional.10
This decision established the
foundation upon which many school districts and local legislatures began to create drug-
testing policies to address a drug use problem or to prevent one in a particular segment of
the student population- the student athletes.
However, some drug testing policies were not confined to the student athlete
population. Some school districts began to require a drug screen for students wishing to
participate in non-athletic extracurricular activities such as the glee club, academic clubs,
9
Derdeyn, 863 P.2d at 960.
10
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).

or the Future Farmers of America.11
These types of policies gave rise to much litigation
as parents and public school students brought claims in federal and state courts seeking
injunctions and declaratory relief. They challenged these mandatory drug-testing policies
on constitutional grounds, claiming that these policies violated the Due Process Clause of
the Fourteenth Amendment, as well as the Fourth Amendment protection against
unreasonable searches and seizures.
Although there was a lot of litigation in federal and state courts, the Supreme
Court did not attempt to determine whether or not the Court’s ruling in Vernonia
extended to non-athletic extracurricular activities until 2002 in the case of Board of
Education of Independent School District No. 92 of Pottawatomie County V. Earls.12
In
Earls, The Supreme Court ruled that testing students who participate in extracurricular
activities is a reasonable search within the meaning of the Fourth Amendment and
therefore, constitutional.13
Ultimately, Earls may have raised more questions than it answered. Where does
this decision leave society in the future? How far are these policies from testing the
entire student body for drugs, alcohol, or tobacco regardless of suspicion? At what point
does the privacy interest of the individual begin outweigh the countervailing interests of
the school district or local legislature? Although it may be difficult to imagine a world
where everyone is subject to random drug tests in the interest of the state, the reasoning
provided by the Court in Earls seems to indicate an entry upon a slippery slope, which
may ultimately create just such an America.
11
Journal of Legislation 2002 page 1
12
Board of Education of Independent School District No. 92 of Pottawatomie County v.
Acton, 536 U.S. 822 (2002).
13
Id at 837.

ANALYSIS
BACKGROUND
BROOKS: THE OLD STANDARD
Before Vernonia, the only authority on drug testing students participating in
extracurricular activities was Brooks v. East Chambers Consolidated Independent
School District, 730 F. Supp. 759 (S.D. Texas, 1989), a United States District Court
decision in the Southern District in 1989. In Brooks, a high school student brought a
class action suit challenging the constitutionality of the school district’s drug testing
program because he was in danger of being excluded from the Future Farmers of
America for failure to submit to a drug test. The Court held in favor of the students and
granted an injunction to enjoin the district from disqualifying a student for participation
in any extra curricular for failure to submit to a drug test.14
In August of 1988, East Chambers County Consolidated Independent School
District (ECCCISD) implemented a mandatory drug-testing program for any student
seeking to participate in any extracurricular activity.15
All participants were to be tested
once at the beginning of the semester and then at random throughout the school year. If a
student refused to be tested, the consequence was exclusion from the activity until they
agreed to be tested. Students who tested positive are excluded from all activities until
they produce a negative test. Subsequent positive tests were punished by longer periods
14
Brooks v. East Chambers Consolidated Independent School District, 730 F. Supp. 759,
766 (S.D. Texas, 1989)
15
Id at 759.

of exclusion form extracurricular activities. At the time of litigation, only Brooks and
one other student had refused to be tested.16
The court began its analysis by identifying the school district as a government
actor and therefore, the implementation of the program a government action. Searches
conducted by private entities are not subject to the same scrutiny to which actions of
public officials are subject.17
The court then looked at the Fourth Amendment in the
context of the Fourteenth Amendment’s Due Process clause and the protection against
unreasonable searches and seizures.
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.18
In this analysis, the court determined that the taking of a urine sample qualified as
a search within the meaning of the Fourth Amendment. Relying on National Treasury
Employees Union v. Von Raab, 489 US 656 (1989), the court now had to decide
whether the search was a reasonable one. Here the court distinguishes between
reasonable search in the criminal sense and a reasonable search by a school official. In
the criminal sense, a reasonable search usually requires probable cause and a warrant, as
born out in the language of the statute. However, there is a lower threshold for school
officials; usually a search must be based on individualized suspicion that the search will
discover evidence of wrongdoing. Otherwise, there must be an extraordinary
circumstance or compelling need to undertake a search without reasonable suspicion.19
16
Id at 762.
17
Id at 763.
18
US Constitution 4th
Amendment
19
Brooks, 730 F. Supp. at 765.

Because Von Raab involved the suspicionless drug testing of Custom agents, an
occupation associated with a high level of risk and danger, not to mention possible
contact with illegal drugs, the Supreme Court found that such testing was justified and
that the Custom Service employees had a reduced expectation of privacy. The court in
Brooks found that ECCCISD’s drug testing program was unreasonable because the
district did not demonstrate a compelling need to conduct the testing, as was
demonstrated in the Von Raab case. Among other factors, which contributed to the
court’s assessment of unreasonable was that the program was not likely to accomplish its
ostensible goals of deterring drug use because the testing took place so far in advance of
the time at which a student may begin to participate in a given extracurricular.20
Secondly, the only consequence was exclusion from the activity. The policy did not
consider the fact that the student might choose drugs over the extracurricular. The state
interest asserted by ECCCISD’s drug policy was not sufficient to outweigh the students’
privacy interest.
About four years later in 1993, a similar case arose at the state level when the
University of Colorado attempted to implement a random drug testing policy that would
test student athletes throughout their season. The policy was met with strong opposition
and as a result, students sued to challenge the constitutionality of the policy on the
grounds that it violated the Fourth Amendment prohibition against unreasonable searches
and seizures. In the case of University of Colorado v. Derdeyn, the Supreme Court of
Colorado held that the drug policy was unconstitutional because it violated the Fourth
Amendment, as well as the equivalent provision in the Colorado State constitution and
infringed on the student athlete’s reasonable expectation of privacy. The Court found
20
Id at 766.

that student athletes did not have a diminished expectation of privacy below that of the
non-athlete student, the university’s interests in maintaining the integrity of its athletic
program was not sufficient to justify the intrusion into the private lives of student
athletes, and the requirement of a consent form signed by the student athlete is not
considered voluntary participation.21
VERNONIA: Random Suspicionless Drug Testing of
Student Athletes Constitutional
In 1995, The Supreme Court decided the seminal case that would become
precedent for similar cases in lower courts. Stare Decisis would shape future Supreme
Court decisions, binding courts to conform to the Vernonia holding where applicable. In
Vernonia, the Supreme Court established the rule for random, suspicionless drug testing
of student athletes. Yet, in the wake of this decision, the clarity that the Court had hoped
for did not manifest. Though bound by the doctrine of Stare Decisis, lower court
decisions often had powerful dissents from the majority, even as in the case of Vernonia
itself.
In 1989, a local school board in Vernonia, Oregon implemented the Student
Athlete Drug Policy, which required all students wishing to participate in interscholastic
athletics to acquire their parents’ written consent. The policy further required that after
an initial drug screen at the beginning of the season, ten percent of the student athlete
population would be tested at random weekly. The policy applied to all students
participating in interscholastic athletics and required both an initial drug screen at the
beginning of the season for each sport, as well as a random selection of 10% of the pool
21
Sports and the Law: Text, Cases, Problems, Second Edition (St. Paul, Minn.: West
Group, 1998) page 65.

of student athletes to be tested each week of the season. Only the superintendent,
principals, vice-principals, and athletic directors had access to the test results, and the
results were not kept for more than one year. If a student tested positive, after
confirmation of the accuracy of the result, the student’s parents were notified and asked
to meet with the principal for the purposes of discussing the consequences of testing
positive. At this meeting students were given the option of (1) participating for six weeks
in an assistance program that includes weekly urinalysis, or (2) suffering suspension form
athletics for the remainder of the current season and the next season as well. The student
is then retested before the next athletic season; a second offense resulted in an automatic
imposition of option (2) and a third offense resulted in suspension for the remainder of
the current season and the next two athletic seasons.22
In 1991, Mr. Acton, a seventh grade student had been denied membership on the
school football team because his parents refused to sign the consent form for the drug
testing policy. Wayne Acton and his parents brought suit against the Vernonia School
District, challenging the policy of random, suspicionless urinalysis as a prerequisite for
participation in interscholastic athletics. Although the District Court upheld the school
district’s policy, the Court of Appeals reversed and remanded the case accordingly. The
School District sought certiorari from the Supreme Court and it was granted. The Court
was faced with resolving whether or not the Vernonia School District’s random drug
testing policy was in violation of the Fourth Amendment protection against unreasonable
searches and seizures and thus, were also a violation of Due Process according to the
Fourteenth Amendment to the United States Constitution. The Court would lay out a
balancing test in Vernonia that would be used to determine that constitutionality of such
22
Vernonia , 515 U.S. at 651.

cases for all lower courts in the near and distant future. Courts would have to weigh the
interests advanced by the policy against the privacy interest of the individual. In
balancing the two, courts would have to consider the nature of the nature of the privacy
interest, the nature of the invasion, and whether or not there was a special need that
required the action without probable cause and because a warrant was impracticable, as
required by the text of the Fourth Amendment. Finally, courts would have to consider
the nature of the government interest, and the immediacy and efficacy of the means for
addressing the problem.
THE SPECIAL NEEDS EXCEPTION TO THE FOURTEENTH
AMENDMENT
Justice Scalia delivered the opinion of the Court. The analysis began by assessing
the drug problem in Vernonia schools, as demonstrated by the facts in evidence.
Teachers and administrators testified at trial that they perceived a sharp increase in drug
use at the school level. They attributed this increase in drug use to the increase in
disciplinary problems in the schools. Furthermore, the District Court found that the
student athletes were the leaders of the drug culture, which was a cause for concern, since
drug use increases the risk of sports related injury.23
The school district responded to the
problem initially by offering special classes and seminars designed to deter drug use, but
the drug problem persisted. The District Court found that disciplinary action had reached
epidemic proportions and the administration was at its wits end as to how it should
combat the growing drug problem. School officials began to consider instituting a drug-
testing program to address the problem and produced a proposed drug testing policy,
which was supported unanimously by parents who attended a meeting seeking parent
23
Id at 649.

input on the issue. Subsequently, the school board enacted the drug testing policy in the
fall of the next school year. The policy’s express purpose was to prevent student athletes
from using drugs, to protect their health and safety, and to provide users with assistance
programs.24
The Court then scrutinized the school district’s policy in terms of light of the
textual language of the Fourth Amendment to the Constitution
“The Fourth Amendment o the United States Constitution
provides that the Federal Government shall not violate
“[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures…” We have held that the Fourteenth
Amendment extends this constitutional guarantee to
searches and seizures by state officers, including public
school officials. In [Skinner], we held that state-compelled
collection and testing of urine, such as that required by the
Policy, constitutes a "search" subject to the demands of the
Fourth Amendment.”25
Accordingly, the Court recognized the state-mandated collection and testing of
urine as required by the school district’s policy was a state action, which constituted a
search within the meaning of the Fourth Amendment. Here the Court relied on its
previous decisions in cases such as Skinner v. Railway Labor Executives’ Association,
489 U.S. 602 (1989), New Jersey v. T.L.O., 469 U.S. 325 (1985), and Von Raab.26
Although none of the preceding cases involved suspicionless drug testing as it applied to
student athletes, they did shed some light on the Vernonia case because they defined what
constitutes a government action, whether or not that action falls into the category of a
search or seizure and whether or not that search or seizure is reasonable under the Fourth
24
Id at 650.
25
Id at 652.
26
Von Raab, 489 U.S. 656.

Amendment of the United States Constitution.27
The reasonableness of a search usually
requires at least probable cause, and where practicable, a warrant. However, neither a
warrant nor probable cause is necessary when there is a special need. The Court found
that such a need existed in the Vernonia School District simply because of its
classification as a school.
“We have found such "special needs" to exist in the public
school context. There, the warrant requirement "would
unduly interfere with the maintenance of the swift and
informal disciplinary procedures [that are] needed," and
"strict adherence to the requirement that searches be based
upon probable cause" would undercut "the substantial need
of teachers and administrators for freedom to maintain
order in the schools." [citation] The school search we
approved in T.L.O., while not based on probable cause, was
based on individualized suspicion of wrongdoing. As we
explicitly acknowledged, however, " 'the Fourth
Amendment imposes no irreducible requirement of such
suspicion,' "28
NATURE OF THE STUDENT PRIVACY INTEREST
Once the Court found that the school district had a special need, it had to be
weighed against the privacy interest of the student athlete. However, the Court first had
to define exactly what legitimate rights were embraced by the privacy interest of student
athletes. Those rights depend on a number of factors, including context in which the
individual is asserting her rights, whether the individual is at home, work, in a car, or
public park, and more importantly, the legal relationship between the individual and the
state.29
Central, in our view, to the present case is the fact that the
27
Vernonia , 515 U.S. at 653.
28
Id.
29
Id at 654.

subjects of the Policy are (1) children, who (2) have been
committed to the temporary custody of the State as
schoolmaster.30
The Court went on to say that because of the special custodial relationship
between the school and the student, the student within the school environment has a
lesser expectation of privacy than does the general population. The Court was careful not
to go so far as to say that a student sheds all constitutional rights as soon at the school
door; however, it did stipulate that Fourth Amendment rights are different in public
schools than elsewhere. Furthermore, the expectation of privacy is even further
diminished with regard to the student athlete.31
The Court makes note of the fact that
athletes voluntarily subject themselves to invasions of privacy regularly as part of
belonging to a sports team, such as communal undress and bathing, preseason physical
exams, acquiring insurance coverage or waiver, and complying with team rules and codes
of conduct. The Court likened student who voluntarily participate in athletics to the
railway workers in Skinner, who chose to work in a closely regulated industry and thus,
were subject to random, suspicionless drug testing.
CHARACTER IF THE INTRUSION
Having considered the limitations of the privacy interest of student athletes, the
Court now contemplated the nature of the intrusion. That is, the Court had to decide
whether the degree of the intrusion into the privacy of the individual was warranted in
light of the special need. Although the Court admitted that urinating with a monitor
outside the room was atypical, it still identified the method of collection as nearly
30
Id.
31
Id at 657.

identical to those conditions found when using public restrooms. It was also noted that
the results of the test were only disclosed on a need to know basis and the confidentiality
of each student was protected. In light of these factors, the Court found that the intrusion
was not so significant, as to outweigh the special need and thus, render the policy
unconstitutional.32
NATURE OF THE GOVERNMENT INTEREST, IMMEDIACY AND
EFFICACY
Finally, the Court had to consider the nature of the government interest and the
efficacy of the means employed to meet that interest. The Court refuses to place a
generic value or standard on the level of the government’s interest; instead, by simply
stating that in the case at the bar, the interest was important enough to justify the search.33
The Court went on to determine what interests it thought were advanced by the drug
testing policy, though the school district had not advanced any of these arguments at trial.
The Court cited general deterrence of school age children against drug use.
As for the immediacy of the government concerns, the Court pointed to the
District Court’s finding of fact that there was a drug problem at the school. However, the
Court seems to indicate that the school district need not demonstrate an existing drug
problem in order to support the immediacy of its interest, as it compared the present case
to cases such as Skinner and VonRaab, in which there was no identified drug problem
preceding implementation of the drug policy.34
Although the Court never says so
directly, it seems as though prevention of a drug problem is enough to satisfy the burden
32
Vernonia, 515 U.S. at 658.
33
Id at 661.
34
Id at 662.

of proof in the Vernonia balancing test; at least with regard to students in the school
environment.
The Court then turned to the efficacy of the means employed by the school district
and found that it effectively addressed the drug problem by making sure athletes did not
use drugs. Although Mr. Acton’s attorney argued that a less intrusive means was
available, namely that of drug testing only upon suspicion of drug use. The Court refused
to pigeon-hole its decision by declaring that only the least intrusive means are reasonable
under the Fourth Amendment.
Three Justices dissented in Vernonia, citing the fact that throughout history,
blanket searches without suspicion have been ruled Per Se, unreasonable. The dissent
states further that a departure from this standard is only warranted where a suspicion-
based regime would be impracticable and that was not found here.35
Instead of targeting
the student athlete population at the high school, the dissent said that a more reasonable
choice would have been those students who were causing the increased disciplinary
problems, as identified in the record. Thus, the policy would be rendered more
reasonable because it tested only those students who violated published school rules,
voluntarily broke the rules and thus, were under suspicion of possible drug use. This
would have the effect of testing dramatically fewer students and give students control
over whether or not they were affected by the policy, based on their conscious behavior.36
THE AFTERMATH: Stare Decisis and the Extension of
Vernonia
35
Id at 667.
36
Id at 685.

In 1998, the Seventh Circuit contended with the very same question answered by
Brooks eight years earlier, when the case of Todd v. Rush County Schools, 133 F. 3d
984 (7th
Cir. 1998) arose. Although Brooks ruled against random, suspicionless drug
testing of student athletes, Vernonia made it clear that Brooks was no longer the standard
and Todd confirmed it.
The parents of William and Diana Todd brought suit against the Rush County
Schools for implementing a program prohibiting any high school student from
participating in any extracurricular activities unless student obtained parental consent to
be subject to random, unannounced urinalysis examinations for drugs, alcohol, and
tobacco. The case was actually decided before ever coming to a jury trial. The District
Court for the Southern District of Indiana granted summary judgment to the defendant,
Rush County Schools and the parents appealed. The Court of Appeals ultimately held
that the school district’s drug-testing program was consistent with the Fourth Amendment
and thus, constitutional. The District Court extended the holding in Vernonia to include
random, suspicionless drug testing of students in any extracurricular activity, athletic or
not.
Circuit Judge Cummings relied on precedent set by the Supreme Court three years
earlier in Vernonia. The Court was also bound by its holding in Schaill by Kross v.
Tippecanoe County School Corp., 864 F. 2d 1309 (7th
Cir. 1988). a Seventh Circuit
case decided in 1988. Both cases upheld random urinalysis requirements for students
who participate in interscholastic athletics. The court found that although there was some
difference between those cases and the present case (namely the prohibition was on non-
athletic activities and alcohol and nicotine were added) the same reasoning applied as in

Vernonia and Schaill. The Court reasoned that because the subjects of the policy are
children under the temporary custody of the State while at school (in loco parentis) and
because extracurricular activities are a privilege, which carry prestige and status similar
to that enjoyed by student athletes, it was appropriate to include students who participate
in extracurricular activities in the drug testing.37
In the years that followed Todd, similar cases arose in various courts across the
country, some state cases and some federal. For the most part, except when the drug
testing policies have been considered extreme or overbroad, courts have continued to
extend the holding of Vernonia just as the Seventh Circuit did in Todd. However, no
court could be sure it was interpreting the law correctly, as the Supreme Court had
declined to answer such a question in Vernonia and the issue had not been raised since.
In the absence of a definitive interpretation on whether the standard in Vernonia applied
to all extracurricular activities, the outcome of a case depended on the jurisdiction. The
Eighth Circuit was faced with the issue in 1999, in the case of Miller v. Wilkes, 172 F.
3d 574 (8th
Cir. 1999). Although the case was ultimately rendered moot because the
plaintiff graduated from the school district during the appellate process, it gave an
indication of how far some courts were willing to extend the holding in Vernonia.
Pathe Miller attended school within the jurisdiction of the Cave City School
District Board of Education in Arkansas. His parents objected to a Chemical Screen Test
Policy instituted by the school district, which provided for random urinalysis of students
in grades seven through twelve, as a prerequisite for participation in any activity outside
of the regular curriculum and sued. The District entered summary judgment for the
school district and the parents appealed. Bobby Wilkes and others, who were members
37
Todd, 133 F. 3d at 986.

of the Board of Education, were named as defendants. The Court applied the same
balancing test as in Vernonia and determined that the policy was constitutional under the
Fourth and Fourteenth Amendments.38
In 2000, in the case of Joy v. Penn-Harris-Madison School Corp.,39
Another
seventh circuit case, this Court relied on the precedents set in Todd and Vernonia. A key
factor in the analysis was that the Court did not find that there was any evidence of a
correlation between the population to be tested and any perception of a drug problem.
The policy seemed to be aimed at prevention, rather than addressing an existing concern.
Other key differences were that the policy not only randomly tested students wanting to
participate in any extracurricular activity, but also students wishing to park on campus
and that banned substances included illegal controlled substances, as well as alcohol and
nicotine. The Court eventually ruled in favor of the school drug policy, striking down the
portion of the policy that referred to nicotine testing. However, it was clear that the Court
thought Todd had extended Vernonia beyond its intended reach.
“As the previous sections make clear, the judges of this
panel believe that students involved in extracurricular
activities should not be subject to random, suspicionless
drug testing as a condition of participation in the activity.
Nevertheless, we are bound by this court's recent precedent
in Todd. Given that the opinion in Todd was issued only
two years ago, that the facts of our case do not differ
substantially from the facts in Todd, … and that the
governing Supreme Court precedent has yet to address the
matter, we believe that we must adhere to the holding in
Todd and affirm the district court's grant of summary
judgment for the School as it relates to testing students
involved in extracurricular activities.”40
38
Miller, 172 F. 3d at 582.
39
Joy v. Penn-Harris-Madison School Corp., 212 F. 3d 1052 (7th
Cir. 2000).
40
Id at 1066.

LIMITS ON VERNONIA
Although some courts were not restrained in their extension of Vernonia, other
courts tried to limit it. In another Seventh Circuit case Willis v. Anderson Community
School Corporation, 158 F.3d 415 (7th
Cir. 1998), circuit Judge Cudahy ruled that a
school policy that required drug testing of all students suspended for fighting was not
justified by special needs and was therefore, unconstitutional. The Court ruled that there
was not even enough evidence to support a finding of reasonable suspicion or probable
cause under the Fourth Amendment.41
Although the school appealed to the Supreme
Court, certiorari was denied.
That same year, the Supreme Court of Colorado decided the case of Trinidad
School District No. 1 v. Lopez, 963 P. 2d 1095 (Colo. 1998). In Trinidad, the Court
held that marching band students had a higher expectation of privacy than that of the
student athletes in Vernonia because there was not the same communal undress and
showering as for athletes and because these students received academic credit for their
participation in the band. Therefore, participation could not be deemed voluntary in the
same sense that it was in Vernonia. Furthermore, the Court found that the testing
program as applied to marching band members was not an efficacious approach to
solving the district’s student drug problem.42
Consequently, the district’s suspicionless
drug testing policy was ruled unconstitutional.
In 2001, the District Court in Texas ruled against the school district’s
suspicionless drug testing policy in Tannahill v. Lockney Independent School District,
133 F. Supp. 2d 919 (2001).43
because it was overbroad and thus, an unreasonable search
41
Willis v. Anderson Community School Corporation, 158 F.3d 415 (7th
Cir. 1998).
42
Trinidad, 963 P. 2d at 1108.
43
Tannahill v. Lockney Independent School District, 133 F. Supp. 2d 919 (N.D. Texas

under the Fourth Amendment. The policy required testing the entire junior and senior
class population, without cause. The school made no showing of any drug problem nor
any correlation with the targeted population. Therefore, the policy failed on the special
need prong of the Vernonia balancing test. The nature of the governmental interest,
coupled with the lack of any special need, were not significant enough to outweigh the
privacy interest of the students in this case.44
EARLS: THE NEW STANDARD
CONCLUSION
2001).
44
Id at 930.

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