In the Summer 2012 edition of Education News, we discussed anAllegheny County school district’s board policy which provided for the exclusion from school activities of any student who was charged or implicated in off-campus incidents involving alcohol or drug use and the upholding of that policy by a County Court   of Common Pleas judge.  But do you have to wait until a student is caught possessing or under the influence before you can take action?  Can school districts use consent to drug testing as a condition of participation in activities or in order to obtain a permit to park on school property?  As is often the case, the answers to these questions are complicated, and careful planning and policy-drafting is essential if your district is going to implement random drug testing for students.

By way of background, in 1995, the United States Supreme Court held in Vernonia School District v. Acton that an Oregon school district’s policy of requiring student athletes to submit to random, suspicionless drug testing did not violate the Fourth Amendment to the U.S Constitution because the district had a compelling interest in preventing drug and alcohol use and the test did not constitute a significant invasion of privacy.  However, when the Delaware Valley School District attempted to implement a substantially similar policy, which included random testing not only for student athletes but also for students participating in extracurricular activities of any kind and those seeking parking permits, the Pennsylvania Supreme Court declared it unlawful.  In Theodore v. Delaware Valley School District, the Pennsylvania Supreme Court held that the Pennsylvania Constitution provides greater privacy protection than the federal Constitution, and struck down the policy.  The Pennsylvania Supreme Court noted that the District had presented almost no evidence indicating a drug and alcohol problem in its schools and no evidence which suggested that the large group of students who would be subject to the testing requirements was particularly susceptible to drug and alcohol use.  The Court stated that it would have been a closer call if the policy at issue had been limited to student-athletes and parking-permit students, but the district’s inclusion of students involved in band, chess club, drama club and other academic clubs in its drug testing was overbroad without a showing that students in those activities posed a danger to themselves or others as a result of drug use.

Nearly ten years after the Pennsylvania Supreme Court struck down the first policy, theDelaware Valley School Districtadopted another policy calling for random drug testing of students enrolled in extracurricular activities from seventh grade on.  Once again, the new policy has landed the District in court, with a suit filed in 2011 by the parents of two female students who were angered when their 12 year-old seventh grader was required to sign a drug test-authorizing permission slip to participate in the scrapbooking club.  Judge Kameen of the Court of Common Pleas of Pike County granted a Preliminary Injunction barring the District from enforcing its policy while the suit is pending.  Specifically, Judge Kameen concluded that the District failed to demonstrate a specific need for its wide-ranging policy and a basis for believing that the policy will address a prevalent drug problem.

In spite of the litigation caused by Delaware Valley’s drug testing policy, a search of school board policies statewide reveals that several Districts have implemented drug testing policies which have not, as yet, been challenged.  If your district chooses to adopt a similar policy, there is a risk of litigation, but certain measures can be taken to manage that risk.

Specifically, consider the policy’s scope.  In order to promote student health and welfare, districts will want to apply their policy as broadly as possible, but the Pennsylvania Supreme Court has held that random drug testing must be applied to groups with a demonstrated need that must be addressed.  For example, students who are permitted to drive and park on school property constitute a danger to themselves and others if they are under the influence, and student athletes who engage in practices and competitions with other student athletes similarly pose a risk of harm to themselves and others if they are actively using drugs or alcohol.  Those groups of students can be subjected to a random drug testing policy if the district can document the existing problem.  However, that same rationale does not apply to most extracurricular activities.  If you intend to extend the policy to other groups, there must be a specific documented need in the event the policy is challenged.  Proof can be in the form of a documented propensity for members of a particular organization to exhibit drug or alcohol use, or a specific quality of the program which makes it dangerous to have student participants using drugs or alcohol, such as those activities requiring sustained physical exertion.

The district’s “need” to expand the policy to cover other student groups cannot be based on subjective impressions or opinions.  You should accumulate data concerning any in-school or out-of-school drug use of particular students, and couple that data with any local, state or federal findings regarding student drug use or risks.  All data should be in written form which can be reviewed and analyzed by decision makers prior to the policy’s adoption.  The data should also be kept on record in the event there is a challenge to the district’s policy.

It is likely that litigation regarding these types of policies will continue, but if your district desires to adopt such a policy, thorough due diligence may keep you out of court while permitting your staff to take action to discourage student drug and alcohol use.

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Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.