RANDOM Drug Testing Bad

Since I’ve been after debaters to argue that random drug testing/searches is bad, I thought I’d include some evidence.
Full file —
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In Vernonia v. Action, the Supreme Court said that in some circumstances, namely a search of a group of students athletes, that reasonable suspicion is not even required for a search of a student. This decision has been applied to allow widespread random searching through drug testing

Charles Floyd Neil explains,

Chalres Neil Floyd, law student, 1997, Arkansas Law Review, Case Note: Searches in the Absence of Individualized Suspicion: The Case of Vernonia School District 47J v. Acton, p. 335
The Fourth Amendment of the United States Constitution requires that all searches be reasonable and that no warrants be issued except when based on probable cause. There has been considerable debate over whether the warrant and probable cause requirements should be used as a yardstick to measure the reasonableness of a search, or whether a search can be reasonable in the complete absence of a warrant and probable cause. Regardless of one’s opinion as to the outcome of the debate, it is clear that recently the United States Supreme Court has favored having reasonableness be the only required measure of the constitutionality of a search. In Vernonia School District 47J v. Acton, 1 the Court polarized the debate to its farthest extreme. The Court upheld a search not only in the absence of a warrant and probable cause, but also in the absence of any individualized suspicion whatsoever. The Court based its finding of reasonableness on factors wholly independent of the constitutional guidelines of probable cause and the warrant requirement. [Continues]  In Vernonia School District 47J v. Acton, 95 the Supreme Court upheld the suspicionless drug testing of student athletes. Consequently, public schools throughout the United States can require students to sign a form consenting to random drug testing in order to participate in interscholastic athletics. In fact, some school districts have extended this ruling to apply random drug testing to students involved in all extracurricular activities, students wanting to leave school grounds at lunch, or even students who want to drive a car to school. 

And the Supreme Court allowed the expansion. In Acton and Earls, the Court rejected probable cause requirements for random searches of students in extra curricular activities.

Thomas Proctor explains,

Thomas Proctor, 2005, Bringham Young University Law Review, Constitutionality of Testing High School Male Athletes for Steroids Under Vernonia School District v. Acton and Board of Education v. Earls, http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2254&context=lawreview, p. 1354-6
As might be expected, considering the similarity in issues and facts, the Court’s analysis of the Fourth Amendment in Earls relied heavily on Acton. 136 The Earls Court again emphasized that probable cause was not necessary to establish the reasonableness of a search when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable,” 137 and further noted, “this Court has previously held that “special needs’ inhere in the public school context.” 138 Quoting Acton, the Court stated, “the “reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.” 139 According to the Court, it is this “custodial and tutelary” responsibility that creates the special need. After noting this principle, the Court then applied the three-pronged balancing test set forth in Acton to determine whether the search was reasonable. 140 In considering the first prong – “the nature of the privacy interest allegedly compromised,” 141 – the Court essentially set a bright-line rule that students who participate in a school activity with its own “rules and requirements” have a reduced expectation of privacy. The Court relied on Acton in explaining that “[a] student’s privacy interest is limited in a public school environment.” 142 Examples of this limitation include “physical examinations and vaccinations against disease.” 143 The Court also found that students who participate in “competitive extracurricular activities voluntarily [subject themselves to many of the same intrusions on their privacy as do athletes” because the activities they participate in have “their own rules and requirements.” 144 The Court thus held that the Earls students had a “limited expectation of privacy.” 145 In Earls, then, the Court expanded the group of students who had limited expectations of privacy from student athletes to all students who participated in extracurricular activities. The Court glossed over the second part of the third prong – the efficacy of random testing to meet the school’s drug problem. It simply held that “testing students who participate in extracurricular activities is a reasonably effective means of addressing the School District’s legitimate concerns in preventing, deterring, and detecting drug use.” 156 The majority did not cite any statistics or evidence that the drug testing actually would decrease drug use at the school. The Court simply assumed that testing would detect, deter, and prevent drug use. Since it found that the testing policy at issue in Earls met all three prongs of the Acton test, the Court held that it was a reasonable search under the Fourth Amendment. 157 In conclusion, the Court in Acton and Earls held that random drug testing in schools can be constitutional so long as the drug testing satisfies Acton’s three-pronged balancing test. As a result, the Court essentially established bright-line rules for the first two prongs and the first part of the third prong. The first prong is satisfied if the students have voluntarily submitted to some extracurricular school activity. Likewise, the testing will meet the second prong if it is performed in a manner as discreet as the testing procedures in Acton and Earls. Further, the Court’s broad holding in Earls established that as long as the nation continues to experience a “drug epidemic,” public schools will have an important interest in preventing drug abuse. These bright-line rules indicate that the majority of drug-testing policies in public schools would be a reasonable search.

Supreme Court Justice O’Conner wrote in Vernonia v. Acton, 1995, that such a random search is a substantial invasion of privacy

But whether a blanket search is “better,” ante, at 18, than a regime based on individualized suspicion is not a debate in which we should engage. In my view, it is not open to judges or government officials to decide on policy grounds which is better and which is worse. For most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment. And we have allowed exceptions in recent years only where it has been clear that a suspicion based regime would be ineffectual. Because that is not the case here, I dissent. In Carroll v. United States, 267 U.S. 132 (1925), the Court explained that “[t]he Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.” Id., at 147. Applying this standard, the Court first held that a search of a car was not unreasonable merely because it was warrantless; because obtaining a warrant is impractical for an easily movable object such as a car, the Court explained, a warrant is not required. The Court also held, however, that a warrantless car search was unreasonable unless supported by some level of individualized suspicion, namely probable cause. Significantly, the Court did not base its conclusion on the express probable cause requirement contained in the Warrant Clause, which, as just noted, the Court found inapplicable. Rather, the Court rested its views on “what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted” and “[what] will conserve public interests as well as the interests and rights of individual citizens.” Id., at 149. With respect to the “rights of individual citizens,” the Court eventually offered the simple yet powerful intuition that “those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.” Id., at 154. More important for the purposes of this case, the Court clearly indicated that evenhanded treatment was no substitute for the individualized suspicion requirement: “It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.” Id., at 153-154. The Carroll Court’s view that blanket searches are “intolerable and unreasonable” is well grounded in history. As recently confirmed in one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken, see W. Cuddihy, The Fourth Amendment: Origins and Original Meaning (1990) (Ph.D. Dissertation at Claremont Graduate School) (hereinafter Cuddihy), what the Framers of the Fourth Amendment most strongly opposed, with limited exceptions wholly inapplicable here, were general searches–that is, searches by general warrant, by writ of assistance, by broad statute, or by any other similar authority. See id., at 1402, 1499, 1555; see also Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 Mem. St. U. L. Rev. 483, 528 (1994); Maclin, When the Cure for the Fourth Amendment Is Worse Than the Disease, 68 S. Cal. L. Rev. 1, 9-12 (1994); L. Levy, Original Intent and the Framers’ Constitution 221-246 (1988). Although, ironically, such warrants, writs, and statutes typically required individualized suspicion, see, e.g., Cuddihy 1140 (“Typical of the American warrants of 1761-76 was Starke’s `tobacco’ warrant, which commanded its bearer to `enter any suspected Houses’ “) (emphasis added), such requirements were subjective and largely unenforceable. Accordingly, these various forms of authority led in practice to “virtually unrestrained,” and hence “general,” searches. J. Landynski, Search and Seizure and the Supreme Court 20 (1966). To be sure, the Fourth Amendment, in the Warrant Clause, prohibits by name only searches by general warrants. But that was only because the abuses of the general warrant were particularly vivid in the minds of the Framers’ generation, Cuddihy 1554-1560, and not because the Framers viewed other kinds of general searches as any less unreasonable. “Prohibition of the general warrant was part of a larger scheme to extinguish general searches categorically.” Id., at 1499. More important, there is no indication in the historical materials that the Framers’ opposition to general searches stemmed solely from the fact that they allowed officials to single out individuals for arbitrary reasons, and thus that officials could render them reasonable simply by making sure to extend their search to every house in a given area or to every person in a given group. See Delaware v. Prouse, 440 U.S. 648, 664 (1979) (Rehnquist, J., dissenting) (referring to this as the “`misery loves company'” theory of the Fourth Amendment). On the contrary, although general searches were typically arbitrary, they were not invariably so. Some general searches, for example, were of the arguably evenhanded “door to door” kind. Cuddihy 1091; see also id., at 377, 1502, 1557. Indeed, Cuddihy’s descriptions of a few blanket searches suggests they may have been considered more worrisome than the typical general search. See id., at 575 (“One type of warrant [between 1700 and 1760] went beyond a general search, in which the searcher entered and inspected suspicious places, by requiring him to search entire categories of places whether he suspected them or not”); id., at 478 (“During the exigencies of Queen Anne’s War, two colonies even authorized searches in 1706 that extended to entire geographic areas, not just to suspicious houses in a district, as conventional general warrants allowed”). Perhaps most telling of all, as reflected in the text of the Warrant Clause, the particular way the Framers chose to curb the abuses of general warrants–and by implication, all general searches–was not to impose a novel “evenhandedness” requirement; it was to retain the individualized suspicion requirement contained in the typical general warrant, but to make that requirement meaningful and enforceable, for instance, by raising the required level of individualized suspicion to objective probable cause. See U. S. Const., Amdt. 4. So, for example, when the same Congress that proposed the Fourth Amendment authorized duty collectors to search for concealed goods subject to import duties, specific warrants were required for searches on land; but even for searches at sea, where warrants were impractical and thus not required, Congress nonetheless limited officials to searching only those ships and vessels “in which [a collector] shall have reason to suspect any goods, wares or merchandise s
ubject to duty shall be concealed.” The Collection Act of July 31, 1789, §24, 1 Stat. 43 (emphasis added); see also Cuddihy 1490-1491 (“The Collection Act of 1789 was [the] most significant [of all early search statutes], for it identified the techniques of search and seizure that the framers of the amendment believed reasonable while they were framing it”). Not surprisingly, the Carroll Court relied on this statute and other subsequent ones like it in arriving at its views. See Carroll, 267 U. S., at 150-151, 154; cf. Clancy, supra, at 489 (“While the plain language of the Amendment does not mandate individualized suspicion as a necessary component of all searches and seizures, the historical record demonstrates that the framers believed that individualized suspicion was an inherent quality of reasonable searches and seizures”). True, not all searches around the time the Fourth Amendment was adopted required individualized suspicion–although most did. A search incident to arrest was an obvious example of one that did not, see Cuddihy 1518, but even those searches shared the essential characteristics that distinguish suspicion based searches from abusive general searches: they only “affec[t] one person at a time,” Krull, 480U. S., at 365 (O’Connor, J., dissenting), and they are generally avoidable by refraining from wrongdoing. See supra, at 1-2. Protection of privacy, not evenhandedness, was then and is now the touchstone of the Fourth Amendment. The view that mass, suspicionless searches, however evenhanded, are generally unreasonable remains inviolate in the criminal law enforcement context, see Ybarra v. Illinois, 444 U.S. 85 (1979) (invalidating evenhanded, nonaccusatory patdown for weapons of all patrons in a tavern in which there was probable cause to think drug dealing was going on), at least where the search is more than minimally intrusive, see Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (upholding the brief and easily avoidable detention, for purposes of observing signs of intoxication, of all motorists approaching a roadblock). It is worth noting in this regard that state compelled, state monitored collection and testing of urine, while perhaps not the most intrusive of searches, see, e. g., Bell v. Wolfish, 441 U.S. 520, 558-560 (1979) (visual body cavity searches), is still “particularly destructive of privacy and offensive to personal dignity.” Treasury Employees v. Von Raab, 489 U.S. 656, 680 (1989) (Scalia, J., dissenting); see also ante, at 11; Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 617 (1989). We have not hesitated to treat monitored bowel movements as highly intrusive (even in the special border search context), compare United States v. Martinez Fuerte, 428 U.S. 543 (1976) (brief interrogative stops of all motorists crossing certain border checkpoint reasonable without individualized suspicion), with United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (monitored bowel movement of border crossers reasonable only upon reasonable suspicion of alimentary canal smuggling), and it is not easy to draw a distinction. See Fried, Privacy, 77 Yale L. J. 475, 487 (1968) (“[I]n our culture the excretory functions are shielded by more or less absolute privacy”). And certainly monitored urination combined with urine testing is more intrusive than some personal searches we have said trigger Fourth Amendment protections in the past. See, e. g., Cupp v. Murphy, 412 U.S. 291, 295 (1973) (Stewart, J.) (characterizing the scraping of dirt from under a person’s fingernails as a “`severe, though brief, intrusion upon cherished personal security'”). Finally, the collection and testing of urine is, of course, a search of a person, one of only four categories of suspect searches the Constitution mentions by name. See U. S. Const., Amdt. 4 (listing “persons, houses, papers, and effects”); cf. Cuddihy 835, 1518, 1552, n. 394 (indicating long history of outrage at personal searches before 1789). Thus, it remains the law that the police cannot, say, subject to drug testing every person entering or leaving a certain drug ridden neighborhood in order to find evidence of crime. 3 W. LaFave, Search and Seizure §9.5(b), pp. 551-553 (2d ed. 1987) (hereinafter LaFave). And this is true even though it is hard to think of a more compelling government interest than the need to fight the scourge of drugs on our streets and in our neighborhoods. Nor could it be otherwise, for if being evenhanded were enough to justify evaluating a search regime under an open ended balancing test, the Warrant Clause, which presupposes that there is some category of searches for which individualized suspicion is non negotiable, see 2 LaFave §4.1, at 118, would be a dead letter.

And this is way beyond what is reasonable for schools to do to fulfill their responsibilities and it is way beyond even considerations the students might have more limited privacy rights in schools.

O’Connor continues.

The instant case, however, asks whether the Fourth Amendment is even more lenient than that, i.e., whether it is so lenient that students may be deprived of the Fourth Amendment‘s only remaining, and most basic, categorical protection: its strong preference for an individualized suspicion requirement, with its accompanying antipathy toward personally intrusive, blanket searches of mostly innocent people. It is not at all clear that people in prison lack this categorical protection, see Wolfish, 441 U. S., at 558-560 (upholding certain suspicionless searches of prison inmates); but cf. supra, at 10 (indicating why suspicion requirement was impractical in Wolfish), and we have said “we are not yet ready to hold that the schools and the prisons need be equated for purposes of the Fourth Amendment.” T. L. O., supra, at 338-339. Thus, if we are to mean what we often proclaim–that students do not “shed their constitutional rights . . . at the schoolhouse gate,” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969)–the answer must plainly be no. [n.1] For the contrary position, the Court relies on cases such as T. L. O., Ingraham v. Wright, 430 U.S. 651 (1977), and Goss v. Lopez, 419 U.S. 565 (1975). See ante, at 8-10. But I find the Court’s reliance on these cases ironic. If anything, they affirm that schools have substantial constitutional leeway in carrying out their traditional mission of responding to particularized wrongdoing. See T. L. O., supra (leeway in investigating particularized wrongdoing); Ingraham, supra (leeway in punishing particularized wrongdoing); Goss, supra (leeway in choosing procedures by which particularized wrongdoing is punished). By contrast, intrusive, blanket searches of school children, most of whom are innocent, for evidence of serious wrongdoing are not part of any traditional school function of which I am aware. Indeed, many schools, like many parents, prefer to trust their children unless given reason to do otherwise. As James Acton’s father said on the witness stand, “[suspicionless testing] sends a message to children that are trying to be responsible citizens . . . that they have to prove that they’re innocent . . . , and I think that kind of sets a bad tone for citizenship.” Tr. 9 (Apr. 29, 1992). I find unpersuasive the Court’s reliance, ante, at 10, on the widespread practice of physical examinations and vaccinations, which are both blanket searches of a sort. Of course, for these practices to have any Fourth Amendment significance, the Court has to assume that these physical exams and vaccinations are typically “required” to a similar extent that urine testing and collection is required in the instant case, i.e., that they are required regardless of parental objection and that some meaningful sanction attaches to the failure to submit. In any event, without forming any particular view of such searches, it is worth noting that a suspicion requirement for vaccinations is not merely impractical; it is nonsensical, for vaccinations are not searches for anything in particular and so there is nothing about which to be suspicious. Nor is this saying anything new; it is the same theory on which, in part, we have repeatedly upheld certain inventory searches. See, e.g., South Dakota v. Opperman, 428 U.S. 364, 370, n. 5 (1976) (“The probable cause approach is unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions”). As for physical examinations, the practicability of a suspicion requirement is highly doubtful because the conditions for which these physical exams ordinarily search, such as latent heart conditions, do not manifest themselves in observable behavior the way school drug use does. See supra, at 14. It might also be noted that physical exams (and of course vaccinations) are not searches for conditions that reflect wrongdoing on the part of the student, and so are wholly nonaccusatory and have no consequences that can be regarded as punitive. These facts may explain the absence of Fourth Amendment challenges to such searches. By contrast, although I agree with the Court that the accusatory nature of the District’s testing program is diluted by making it a blanket one, any testing program that searches for conditions plainly reflecting serious wrongdoing can never be made wholly nonaccusatory from the student’s perspective, the motives for the program notwithstanding; and for the same reason, the substantial consequences that can flow from a positive test, such as suspension from sports, are invariably–and quite reasonably–understood as punishment. The best proof that the District’s testing program is to some extent accusatory can be found in James Acton’s own explanation on the witness stand as to why he did not want to submit to drug testing: “Because I feel that they have no reason to think I was taking drugs.” Tr. 13 (Apr. 29, 1992). It is hard to think of a manner of explanation that resonates more intensely in our Fourth Amendment tradition than this.

Random searches desensitize students to the importance of privacy

Charles Neil Floyd, law student, 1997, Arkansas Law Review, Case Note: Searches in the Absence of Individualized Suspicion: The Case of Vernonia School District 47J v. Acton, p. 361-2
First, the Court’s attempt to limit this case to a public school context involving only student athletes is less than convincing. The Court made similar attempts to limit Skinner and Von Raab to situations that were matters of life and death – and in which the search was strictly necessary. In T.L.O., the Court also attempted to limit random searches by maintaining a requirement of reasonable suspicion. Yet, the Court in Vernonia extended those decisions beyond their original scope. And now the Court’s holding in Vernonia has been extended by some school districts to include all extracurricular activities. 176 Moreover, considering the fact that our children will grow up in a society where they are regularly compelled to submit to random drug testing, it is only natural to assume that they will be even more desensitized to what should constitute a legitimate expectation of privacy. The next generation may find that applying for a driver’s license or living inside the city limits so diminishes one’s expectation of privacy that the government is able to search without any degree of individualized suspicion.

Next, let’s not our impacts – Privacy is critical to dignity

Schneier 6 — Bruce Schneier, Chief Technology Officer for Counterpane Internet Security, Fellow at the Berkman Center for Internet and Society at Harvard Law School, Program Fellow at the New America Foundation’s Open Technology Institute, Board Member of the Electronic Frontier Foundation, Advisory Board Member of the Electronic Privacy Information Center, 2006 (“The Eternal Value of Privacy,” Wired, May 18th, Available Online at http://www.wired.com/news/columns/0,70886-0.html, Accessed 05-22-2006)
The most common retort against privacy advocates — by those in favor of ID checks, cameras, databases, data mining and other wholesale surveillance measures — is this line: “If you aren’t doing anything wrong, what do you have to hide?” Some clever answers: “If I’m not doing anything wrong, then you have no cause to watch me.” “Because the government gets to define what’s wrong, and they keep changing the definition.” “Because you might do something wrong with my information.” My problem with quips like these — as right as they are — is that they accept the premise that privacy is about hiding a wrong. It’s not. Privacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect. Two proverbs say it best: Quis custodiet custodes ipsos? (“Who watches the watchers?”) and “Absolute power corrupts absolutely.” Cardinal Richelieu understood the value of surveillance when he famously said, “If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged.” Watch someone long enough, and you’ll find something to arrest — or just blackmail — with. Privacy is important because without it, surveillance information will be abused: to peep, to sell to marketers and to spy on political enemies — whoever they happen to be at the time. Privacy protects us from abuses by those in power, even if we’re doing nothing wrong at the time of surveillance. We do nothing wrong when we make love or go to the bathroom. We are not deliberately hiding anything when we seek out private places for reflection or conversation. We keep private journals, sing in the privacy of the shower, and write letters to secret lovers and then burn them. Privacy is a basic human need. A future in which privacy would face constant assault was so alien to the framers of the Constitution that it never occurred to them to call out privacy as an explicit right. Privacy was inherent to the nobility of their being and their cause. Of course being watched in your own home was unreasonable. Watching at all was an act so unseemly as to be inconceivable among gentlemen in their day. You watched convicted criminals, not free citizens. You ruled your own home. It’s intrinsic to the concept of liberty. For if we are observed in all matters, we are constantly under threat of correction, judgment, criticism, even plagiarism of our own uniqueness. We become children, fettered under watchful eyes, constantly fearful that – either now or in the uncertain future – patterns we leave behind will be brought back to implicate us, by whatever authority has now become focused upon our once-private and innocent acts. We lose our individuality, because everything we do is observable and recordable. How many of us have paused during conversation in the past four-and-a-half years, suddenly aware that we might be eavesdropped on? Probably it was a phone conversation, although maybe it was an e-mail or instant-message exchange or a conversation in a public place. Maybe the topic was terrorism, or politics, or Islam. We stop suddenly, momentarily afraid that our words might be taken out of context, then we laugh at our paranoia and go on. But our demeanor has changed, and our words are subtly altered. This is the loss of freedom we face when our privacy is taken from us. This is life in former East Germany, or life in Saddam Hussein’s Iraq. And it’s our future as we allow an ever-intrusive eye into our personal, private lives. Too many wrongly characterize the debate as “security versus privacy.” The real choice is liberty versus control. Tyranny, whether it arises under threat of foreign physical attack or under constant domestic authoritative scrutiny, is still tyranny. Liberty requires security without intrusion, security plus privacy. Widespread police surveillance is the very definition of a police state. And that’s why we should champion privacy even when we have nothing to hide.