Drug Testing - What are the legal issues?

In 1995, The Supreme Court ruled on a case (Vernonia School District 47J vs. Acton) of a young athlete being denied participation in high school athletics because of refusing to agree to undergo drug testing according the school's policy for all athletes. Below is a synopsis of the case excerpted from The Steroids Game, authored by Dr. Charles E. Yesalis and Virginia S. Cowart, and published by Human Kinetics.

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THE ACTON CASE
During the1992 school year, James Acton was a seventh grade student who wanted to play football. The school district required all members of the team and their parents to sign a consent form for random urinalysis tests. The Actons refused to sign the form and James was suspended from interscholastic athletics. The Actons then brought suit charging that the school policy violated James' right to be free from unreasonable government searches under both the Fourth Amendment and Article 1, Section 9 of the Oregon Constitution.

After the federal district court upheld the constitutionality of the school policy, the Actons appealed. The federal appeals court in San Francisco reversed the lower court decision. In agreeing with the Actons, the appeals court made the type of drug testing James was facing illegal in the nine western states in its jurisdiction. The U.S. Supreme Court upheld the constitutionality of the testing procedure, however. The arguments in favor of a drug testing policy for school students is that it is prompted by serious questions of a safety nature and that a random suspicionless drug testing program does not discriminate against any individual.

Speaking for the Court, Justice Antonin Scalia said that the State could exercise a greater degree of supervision and control over schoolchildren than it could over free adults. The Court also said that in order to participate in sports, the athlete must make some concession to the public interest in conducting athletics in a drug-free setting. It also said that the school drug testing policy was a response to drug usage by athletes.

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The above material from "The Steroids Game" by Charles E. Yesalis and Virginia S. Cowart. Copyright © 1998 by Charles E. Yesalis and Virginia S. Cowart. Excerpted by permission of Human Kinetics, Champaign, IL. Available in bookstores or by calling 1-800-747-4457. $16.95 plus shipping/handling. This book contains other information about legal issues regarding drug testing as does "Anabolic Steroids in Sport and Exercise," edited by Dr. Charles E. Yesalis also available from Human Kinetics.

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Other information regarding the 1995 Supreme Court ruling and its impact may be found in the following articles:

Court Upholds Drug Testing for Student Athletes in Education Week (Volume 14, Number 40), July 12, 1995.

Sports and the Courts: Several issues should be considered before starting drug-testing program by Tim Flannery. Interscholastic Athletic Administration (Volume 22, No. 3), Spring 1996.

Sports and the Courts: Despite Court's ruling on drug testing, school leaders should move cautiously by the NIAAA Publication Committee. Interscholastic Athletic Administration (Volume 22, No. 1), Fall 1995.

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Listed below are some of the major issues the Supreme Court and lower courts have considered when determining the constitutionality of drug testing.

• A person or students' right to privacy and protection from unreasonable search

• The degree of control and supervision over school-aged children that a school can exert

• School activities as a privilege, not a right; thus additional requirements are often allowed that may not be for the general student body

• The position as role models of those tested

• The risk of physical harm (injuries) resulting from athletics

• Communal undress is usually part of athletics, thus privacy is lessened

• Evidence substantiating drug use at a high and/or increasing rate among the targeted group (athletes or all school activity participants) and evidence that other interventions have been attempted

The Fourth Amendment to the U.S. Constitution, which provides protection against unreasonable search and seizure, does not guarantee a right to privacy. Some state constitutions do so. However, the 6 to 3 ruling by the Supreme Court to uphold the Vernonia, Oregon school district's right to drug test student athletes cited all the other factors as outweighing the student's right to privacy or protection from search or seizure.

However, not all these factors would apply to non-athletic school activity participants. In particular, a communal state of undress is not common to non-athletic school activity participation. Neither is the risk physical harm. Drug use rates among other activity participants may be different than athletes or may not be known. School activities, like band, may be taken for credit and part of the school academic curriculum. Thus the activity may be viewed differently (i.e. not strictly as a privilege, but a right) and could affect the legality of drug testing as well as other additional expectations. Because all of the above factors were cited in the Vernonia vs. Acton Supreme Court ruling, it is difficult to predict how courts would rule if one or several of these other items were not significant factors. Other factors not present in Vernonia vs. Acton could also come into play.