Drug Detection in Schools

1. Drug Detection in Schools Class 14

2. Searches in Schools Generally • New Jersey v T.L.O. gave broad discretion to school officials to search students • Diminished right to privacy in schools • Way beyond “plain sight” exceptions to Fourth Amendment searches, and broad interpretation of reasonable suspicion, based more on “sufficient probability” • Greater deference to school officials searching for drugs or weapons, but this assumes we understand where the line stands between serious and minor offenses

3. Does the school’s interest vary by context of the search? • Is the calculus of the search different when the search is conducted in the school, in the school parking lot, in the locker room after school, or when the Math Team practices? • Does the balance of the school’s interests tip toward the school and away from the student’s privacy in one of these circumstances more than others? Why? • Does the Exclusionary Rule serve as a deterrent to school authorities in constraining their search parameters and discretion? • Thompson v Carthage (1996, CA) says no

4. Drug Testing Generally • Automobile drivers – Schmerber v California – delay resulting from obtaining a warrant, etc., would result in destruction of evidence (metabolizing alcohol) • Railroad employees – Skinner v. Railway Labor Executives Association – blood tests are so routine in society that they no longer constitute an intrusion but collection of urine samples is a greater invasion of privacy • Is fitness-for-duty test rationale justified? Or should it be confined to those who have had railway accidents? Parallels to schools?

5. Private employers – Alaska 1977 legislation. State legislation authorizes employers to conduct urine screens, employers shielded from tort liability if confidential data are disclosed • Pregnant women – Ferguson vs. City of Charleston (South Carolina), Whitner – mandatory testing of pregnant women in medical facilities, doctor-patient privacy is diminished because of threat to fetus if mother uses drugs

6. Doctrines Justifying Broad School Search Individualized v. Generalized Suspicion Threshold questions – what estimate of prevalence justifies mass search? Does presumption of broad probability influence weight accorded to individual factors? What are the boundaries on individualized suspicion? Ind. suspicion need not arise from collective suspicion And vice-versa (Desilets v Clearview Regional Board of Ed’n, 1993, NJ) Reasonable suspicion is prevailing std., not probable cause

7. School Cases • Doe v Renfroe (ND) • Does any search itself violate 4th Amendment (generalized suspicion in pursuit of valid educational goal) • Was use of dogs a search, and does 4th Amendment apply, and if so, how does school context mitigate 4th Amendment protections? • Is special search of clothing pursuant to dog’s alert a 4th Amendment violation? • Is body search unreasonable intrusion based on dog warning?

8. Does prior evidence of drug use by students justify search – and provide context for generalized suspicion? • Students have no expectation of privacy with respect to lockers, but to clothing? Purses (T.L.O.)? Body? • The “mild inconvenience” of pocket search or purse does not extend to body search • Would this threshold have been neutralized is student had overt signs of intoxication? Wads of cash?

9. Student Cases • Vernonia v Acton (1995) – student athletes constitute “special needs” – • suspicionless searches are ok if they serve “valid” prophylactic purpose analogous to Skinner, customs officials, drunk drivers, etc. • These needs are “compelling” • What are special needs here? What is compelling about them? • Danger of physical harm during sports • Student athletes are leaders of drug culture • “State of rebellion fueled by drug and alcohol use” • Role models

10. Pottawatomie County and Independent School District 92 v. Lindsay Earles and Lacey Earles (536 U.S. 822, 122 S.Ct. 2559) (2002) • Suspicionless drug testing of students inall extracurricular activity • Extension of Vernonia logic, beyond initial harm concern • Advances school district’s interests in preventing and deterring drug abuse among its children • S.C. ruled that an “emergency” need not be present to justify policy, preventive rationale is sufficient • but said that one was present anyway, relying heavily on hearsay • Earls argues that if she objects, she will suffer in college competition from not having extracurricular activities on her record

11. The 48 Hours Story • Reflect back, how can the school system defend its search? • Can the school system defend the offensive tactic? • Is there constitutional ground to consider the harm developmentally of subjecting children to these searches? What evidence? • Is the search less objectionable as policy if no guns or dogs?