By Jordan Davies

                                                                      March 2, 2010

                                                                                                                                                                                  A.P. Gov

     Does random drug testing of high school athletes violate the reasonable search and seizure clause of the Fourth Amendment?  

That was the question argued on March 28, 1995 in the case Vernonia v. Acton in front of 9 Supreme Court Justices, Rehnquist, Stevens, O' Connor, Scalia, Kennedy, Souter, Thomas, Ginsberg, and Breyer. 

    The town of Vernonia was known for its small size, isolation and ... increasing drug problem, especially among those looked upon as role models in the community, the athletes. In a town like Vernonia where there is little much else to do but go to the Friday night games, the continued performance and well being of the athletes was always a big concern. However, starting in the mid 1980's, Vernonia seemed to be on a rapid decline in both performance, and esteem among its students, and its players. The athletes of the town were those most prominently noticed as displaying the symptoms of drug use. They were 'in a state of rebellion', (1) and leaders of the movement. They also began voicing their strong attraction to drugs and stated there was nothing the school could do about their rampant use.  Furthermore, the students became exceedingly rude, causing outbursts in class, and commonly speaking profanity.  In fact, in 1988 and 1989 the number of disciplinary referrals in Vernonia doubled as compared to the early 1980's. The high school football and wrestling coach witnessed some severe injuries and lack of competence and safety among the players, which may also have been attributed to drug use. 

     After this behavior had left 'the administration...at wits end' a parent 'input night' (1) was held to discuss the potential Student Athlete Drug Policy, and it had overwhelming parent approval.  The drug-testing program was then implemented in 1989 and applied to all students participating in interscholastics.  The policy was as follows; the students with the intention to play sports, must sign a form consenting along with their parents that they be drug tested, athletes were tested at the beginning of the season for each sport, once a week of the season the athletes were drawn, 10% each week and finally, students were notified and tested the same day. (1)

     In 1991, two year after the plan was implemented, Wayne Acton (who was then in 7th grade) signed up to play football, but was deterred upon failing to sign a consent form for the schools drug policy and realizing that in order to play, he had to take a drug test at the beginning of the season, then likely again during the season. Soon after, the Actons sued, claiming that the Fourth Amendment which states that the Federal Government shall not violate "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures..."was violated by the schools drug enforcement policy. (1)

      Both the cases New Jersey vs. T.L.O. (1985) and Skinner vs. Railway Labor Executives' Assn. (1989) proved to be valuable precedents in the decision of Vernonia vs. Acton. New Jersey vs. T.L.O. was relevant because that case determined that 'the Fourteenth Amendment extends the constitutional guarantee to searches and seizures by state officers.' (1) In terms of Vernonia vs. Acton, the case meant that searches and seizures, by the collection of ones urine by school officials was constitutional. The second case used for precedent, Skinner vs. Railway, was relevant to this case because this allowed the state compelled collection and testing of urine which also constitutes a search in terms of the Fourth Amendment which the school Vernonia School District, did.  

      On June 27, 2002, the justices voted 5-4 in favor of the Vernonia School District with Scalia, Rehnquist, Kennedy, Thomas, Ginsberg and Breyer concurring, and O' Conner, Stevens, and Souter dissenting. This case concludes that public schools can in fact drug test their students in a randomly chosen fashion and that the policy implemented by the Vernonia School District did not violate the Fourth Amendment.  The judges also decided that Acton's concern over privacy was illegitimate and minute and not a defining factor in the case.  The benefits or lack thereof of the final standings of the case depends on the person. While some may've argued that the cases' rulings that drug testing was okay in the public schools was a complete deprivation of privacy and that the rights to the Fourth Amendment weren’t upheld, others may argue that the policy as a whole, is purposeful to deter drug use in the schools.

     Personally, I do not think the school violated the 4th Amendment by implementing a mandatory drug policy for its students involved in extracurriculars and particularly for the school's athletes. Neither the argument Acton's lawyer presented of privacy, nor its potential violation of the Fourth Amendment hold up.

     There are two aspects to the privacy issue, personal intrusion privacy and the intrusion on the government in terms of the knowledge of ones illnesses, or what drugs one is taking, legal or illegal. Firstly, the issue of intrusion, or the lack of privacy while one is urinating is insignificant. As Justice Scalia states in his deliverance of the decision in the case, sports are 'not for the bashful', (1) nor are they notable for the privacy they afford, If an adult man walked into the bathroom and proceeded to use the urinal next to Wayne Acton, he shouldn't or wouldn't have a problem with that because that proximity and exposure to another man is the nature of using a urinal. What is the difference between a man standing 10 or more feet behind him and a man standing next to him while he urinates? The fact that the one behind him may be watching or not? Males watch him undress, and more commonly, use the bathroom daily. If he doesn't have an issue with using the bathroom within less than a foot proximity to another man, as would make going to the bathroom in public restrooms difficult, then what is the concern over a man standing over 10 feet behind him observing from the back which is much less obtrusive than the latter. The observer sees no more, and in fact less than a man using the bathroom next to him, but that isn’t Actons concern is it? Peeing is not an extremely private thing especially among athletes.  James would be using the bathroom in no different way than he always does, and in fact with more privacy than a normal locker room situation during observation.  If privacy were such an issue for Wayne, once he passed the initial drug test at the start of the season (he didn't even get that far) how would he have mentally survived the sight of 50 naked boys 5 days out of the week? Professional athletes require many physical and intrusive exams, as a concern for safety, fairness, and the athletes well being only, and to not do so, would lead to such incidents as the football and wrestling coach noticed among their athletes. 

              Acton's potential fear about the drugs in his system or preexisting conditions being disclosed to the government after the test is also illegitimate. Firstly, the test only checks for illegal drugs and not if a person is on any medication or has any medical conditions such as epilepsy, or diabetes. Second, the test is standard for all athletes, no one is treated differently in terms of what the urine is tested for, nor does it change based on a particular student for any reason. Thirdly, the results are disclosed only to a limited group of school personal of whom the test results may involve, and is not turned over to the police or used for any internal disciplinary function.   

     Finally, the school did have reasonable reason to test the students for drugs, and especially those involved in extracurriculars because of the strong image the athletes, mainly, uphold and because of the incidents both in the classroom and out that the student athletes had been displaying.  The school was only implementing this program to protect their image, teach the students to make wise decisions while deterring drug use, and reduce the likelihood of drug related sports injuries all of which are valid reasons to test students.  The drug policy is fair, and only upon two positive tests is the student removed from the extracurricular.  It also does not subject students to be tested solely on the basis of suspicion, which would be humiliating, demoralizing, and frankly, ineffective. 

     In conclusion, if Acton can’t see the sole good intentions the school has for implementing this program for all students involved in extracurriculars, nor can he handle the, in reality, ‘unobtrusive’ privacy issue, which is no more obtrusive than he would normally encounter upon using a locker room urinal, then he should retire the idea of extracurricular activities in his high school and college career, all together.   

(1) VERNONIA SCHOOL DISTRICT V. WAYNE ACTON 

     http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/veronia.html (accessed February 2010)