Revisiting Drug Testing in High Schools – Where Do We Stand?

From about 1990 to 2005, one of the most debated and controversial topics related to high school activity programs was drug testing in high schools for participation- and safety-related matters.

There was support for drug testing because there was a belief that a drug-testing protocol could identify a drug-use problem at a school, and because other methods to deal with the drug problem were seemingly not working. Voices against drug testing felt that drug testing to prove a student did not use drugs/alcohol was an unconstitutional “search and seizure” violation of the Fourth Amendment. Let’s revisit the issue.

Drug Testing
A drug test is a toxicology screen that determines the approximate amount and type of legal or illegal drugs taken. Toxicology screening can be done fairly quickly. The test is most often done using a urine or blood sample. In some cases, a sample of saliva or hair may be used. The results can show the presence of one specific drug or a variety of drugs at once. Further testing may be needed to determine the exact amount of a particular drug in the body and to confirm the results.

The most common type of drug test is a urine sample test. These are seen as more private and less intrusive than a blood, hair or saliva test.

Why Drug Testing Is Used
The United States Supreme Court long ago determined that drug-testing protocols adopted by public school districts do constitute a Fourth Amendment “search and seizure.” Therefore, the justification for such a search must be obvious, compelling and related to a sound and constitutionally acceptable justification of using this power.

Supporters assert that drug testing promotes a safe and drugfree environment and schools can more easily identify students at risk and provide early intervention. Opponents voice concerns about privacy, that a drug test is unnecessarily invasive and that mandatory testing without reasonable suspicion encroaches upon students’ personal lives, typically focusing on punishment rather than the underlying causes of substance abuse.

Typically, drug testing is implemented because there is demonstrably a clear need for drug and alcohol intervention in a school. Determining a “clear need” can be difficult. This can potentially stigmatize and alienate students who need support.

Current Legal Status
With support by U.S. Supreme Court rulings, school districts across the country have long recognized that the districts clearly have an interest in detecting and preventing drug use among its students. As a result, drug-testing protocols must be tailored to meet existing constitutional standards. Because attending public schools is a right, there can be no drug-testing requirement to attend school. However, since participation in extracurricular activities is a privilege, drug-testing requirements can be implemented to participate. The following legal cases provide the legal framework for consideration and guidance.

The first major case on the topic was in 1995, Vernonia School District 47J v Wayne Acton (U.S. Supreme Court, 1995). In that case, student-athletes were required to undergo random urinalysis as a method of detecting use of illegal controlled substances. Use of these substances was also a violation of the school district athletics code. In this case, the U.S. Supreme Court found this practice constitutional because:

a. It did not cause athletes to be expelled from school (no property right loss);

b. Athletes had an opportunity to receive assessment and rehabilitative services (and not face punishment) pursuant to a positive test finding;

c. Athletes could refuse to take the test and although refusal resulted in temporary suspension, this disciplinary action did not constitute abridgement of a property right.

The Supreme Court held that this was not a violation of the right to attend school. Rather, it was a loss of the privilege to participate in a sports program.

The U.S. Supreme Court weighed in again in 2002. In Board of Education of Pottawatomie v. Earls (Oklahoma 2002), a lawsuit was filed challenging a school district’s policy of suspicionless drug testing for students as a precondition to participation in extracurricular athletic activities. The Supreme Court held that, because the policy reasonably serves the School District’s important interest in detecting and preventing drug use among its students, it is constitutional. The Court reasoned that the Board of Education’s general regulation of extracurricular activities diminished the expectation of privacy among students and that the Board’s method of obtaining urine samples and maintaining test results was minimally intrusive on the students’ limited privacy interest. The key language is:

“Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh’s Policy is a reasonable means of furthering the School District’s important interest in preventing and deterring drug use among its schoolchildren….”

This means that the U.S. Constitution does not limit school districts from implementing a blanket drug-testing policy if they see fit. It need not be predicated upon an existing, identifiable and rampant drug problem.

There have been cases, however, where a State Supreme Court ruled that the State Constitution prohibited such a sweeping drugtesting policy as allowed under the Earls case.

In Theodore v. Delaware Valley School District, (Pennsylvania Supreme Court 2003), the Delaware Valley School District adopted a policy that authorized random, suspicionless drug and alcohol testing of students who held school parking permits or participated in voluntary extracurricular activities. Testing was required in five different circumstances: initial testing, random testing, reasonable suspicion testing, return-to-activity testing and follow-up testing. Students must have submitted to testing initially when they registered, as a precondition, to participate in an extracurricular activity or to apply for a parking permit.

A complaint was filed seeking to stop the testing policy on grounds that it violated students’ right to privacy under Article I, Section 8 of the Pennsylvania Constitution. The testing protocol would have been legal under the Supreme Court’s interpretation of search and seizure under the Earls case. However, Article I, Section 8 application is different. “The cases decided under Article I, [Section] 8, have recognized a ‘strong notion of privacy,’ which is greater than that of the Fourth Amendment.” The Supreme Court of Pennsylvania ruled that without a showing of a specific need, random drug testing is unconstitutional under state search and seizure law.

In York v. Wahkiakum School District (Washington State Supreme Court 2008), the Wahkiakum School District determined that there was evidence of substantial alcohol and drug use among students. Pursuant to the school district’s statutory authority and responsibility to maintain order and discipline in its schools, to protect the health and safety of its students, and to control, supervise and regulate interschool athletics, it decided to adopt and implement a random, suspicionless drug testing where all students may be tested initially and then subjected to random drug testing during the entirety of the season. Based on the Vernonia case, the trial court ruled in favor of the school district. The case was appealed to the Washington State Supreme Court and that court decided that although pursuant to the U.S. Supreme Court’s decision in Vernonia, drug-testing programs were permissible under the Fourth Amendment to the U.S. Constitution, the Washington state constitution granted greater protections to citizens against searches and seizures than did the federal constitution.

The Washington State Supreme Court ultimately ruled in York that student-athlete drug-testing programs are unconstitutional based on the state constitution. This decision illustrates that despite the Vernonia interpretation of the federal constitution, that a drug-testing program only need be “….a reasonable means of furthering the School District’s important interest in preventing and deterring drug use among its schoolchildren….” any district that operates a drug-testing program may be subject to judicial challenges based on the applicable and more restrictive state constitution.

Contemplating Drug Testing
Why adolescents use drugs is compelling and complicated. Irrespective of whether an active drug-testing policy helps reduce use of drugs and alcohol, schools and school districts must decide whether an active drug-testing program would still be a good program to have and to use in their battle against high school drug and alcohol use.

Is implementing a drug-testing program prudent? There are ongoing studies of the drug use of student drug use in grades 6-12 that provide some important contextual information.

On December 13, 2023, a survey report from the “Monitoring the Future” organization was published. The survey was conducted by researchers at the University of Michigan, Ann Arbor, and funded by the National Institute on Drug Abuse (NIDA), part of the National Institutes of Health.

The survey report indicated the 2023 data continued to document stable or declining trends in the use of illicit drugs among these young people over many years. However, other research according to a NIDA analysis of CDC and Census data has reported a dramatic rise in overdose deaths among teens between 2010 to 2021, which remained elevated well into 2022. This increase is largely attributed to illicit fentanyl, a potent synthetic drug, contaminating the supply of counterfeit pills made to resemble prescription medications. Taken together, this data suggests that while drug use is not becoming more common among young people, it is becoming more dangerous.1 This information may heighten the interest of implementing a drug-testing program.

Answering the question whether drug testing is effective is difficult. There are many questions:

• What is meant by “effective?”

• What drugs are to be tested for?

• What is the cost and who pays?

• Is the testing protocol for rehabilitation, health help or punishment?

The typical and most frequent parent and athlete concerns expressed when contemplating adopting a drug-testing program are the following:

• Concerns about the chances of a false positive result;

• Concerns that any preconditions might/would deter students from joining sports or other extracurricular activities;

• Concerns that only certain students would be subject to the proposed tests and not all students;

• Concerns about how random is random; and

• Concerns as to how anonymity and confidentiality are maintained.

These are questions with difficult answers. However, no matter how difficult it is to find answers, school districts still can, and do, contemplate and use drug testing as a tool to help deter drug use among youth in high schools. Anecdotally, a frequent comment from athletic directors and other school administrators is that the fear of being selected for a test gives the student-athlete “cover” from peerpressure; they have an “out” because they do not want to compromise participation in the sport or activity of choice.

Leadership Implications for the Athletic Director
If an athletic director is asked to weigh-in on this topic in their school or district, at a minimum, the following should be considered in leading the discussion.

Strongly advocate that it is critical that parents, students and community members be heard – the key to the effectiveness of adopting controversial programs is to vet them through the community that these programs impact the most;

Be prepared to articulate that this type of program is not a panacea – that it is only one tool (of many) to be used in the battle against drug use in schools;

Canvas the impacted coaches/sponsors/program leaders to get their input;

Consider convening a panel of students to solicit input (many times students can be the best voices on topics such as these);

Understand as a building leader that the No. 1 concern and task in a building is the safety and security of all students, doing the most they can within constitutional frameworks and best understanding and leading on the issue of whether such a program can be a good fit and effective.

The wisdom of a drug-testing program in a high school will always open the disconnect between those who see no harm in it and those who see an unnecessary over-reach of government. However, building leadership will ultimately be tasked with seeing such a program through if adopted, so they do not have the luxury of debating the merits. If the community feels this is the thing to do, building leadership, most likely led by the building athletic director, must commit to implementation in the manner necessary to meet the goal of health and safety of all students.

Resource
National Institute on Drug Abuse, News Release December 13, 2023.