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Lower Court Disagreement over Broader Extracurricular Student Testing

The practical effect of Vernonia was to clear the way for student athlete drug-testing in schools nationwide. But the decision did not envision what happened next. By the mid-1990s, schools had begun adopting even broader testing policies that expanded the definition of testable extracurricular activities to include activities such as band and choir and, as in the extreme instance of Lockney, Texas, the entire junior high school student body. This broadening set the stage for the next constitutional challenges, which resulted in conflicting verdicts among federal circuit courts. Given these varying rulings, there is as of 2002 no single standard in federal caselaw for when public schools may require students to pass drug tests.

Initially, one such policy passed constitutional approval. In 1998, a three-judge panel of the Seventh Circuit Court of Appeals upheld a school system’s broad drug testing program in Todd v. Rush County Schools (1998). At issue was a policy by the Rush County School Board of Indiana, which in 1996 banned a high school student from participation in extracurricular programs unless the student first passed negative for alcohol and other drugs, or tobacco in a random, unannounced urinalysis exam. The policy covered students in activities ranging from the Library Club to the Future Farmers of America Officers, as well as those who merely drove to and from school. Any student failing the urinalysis lost eligibility until such time as he or she successfully passed.

In rejecting a challenge to the policy, the Seventh Circuit found that the policy was consistent with the Supreme Court’s ruling in Vernonia. Its brief opinion found sufficient similarity between the intent of the Indiana and Vernonia programs: deterring drug use rather than punishing users. The broader scope of the Indiana policy was not a constitutional problem, as the court observed that nonathletic extracurricular activities also “require healthy students.” Its own 1988 decision on drug-testing student athletes, Schaill v. Tippecanoe County School Corp., also supported the broader policy. The Supreme Court declined to review the case. As with the earlier Vernonia decision, the New York Times reported that the Seventh Circuit’s decision “set off a wave of such policies” nationwide. Ironically, however, the Indiana policy was later struck down on state constitutional grounds.

In 2001, a dramatically different verdict appeared. A panel of the Tenth Circuit Court of Appeals ruled that drug-testing for eligibility for extracurricular activities violated Oklahoma public school students’ rights in Earls v. Tecumseh. Unlike the Seventh Circuit, the panel followed a very narrow reading of Vernonia. It applied that decision’s facts and conclusions to the circumstances of the Tecumseh School District in Pottawatomie County, Oklahoma, and found sharp differences. No widespread drug problem existed in the school, unlike the Vernonia district. Moreover, the panel rejected the district’s contention that drug testing was justified because extracurricular activities involved safety risks for unsupervised students. Instead, the panel ruled that the tests imposed unreasonable searches upon students in violation of their Fourth Amendment rights.

The Tenth Circuit panel specifically addressed the question of when a school drug testing policy was appropriate. It expressly stated that it did not expect schools to wait until drug abuse problems grew out of control. However, if school officials faced no requirements, they would be free to test students as a condition of attending school—an outcome that the justices did not believe the Supreme Court would uphold.

Significantly, the Earls decisions signaled a deep rift between two federal circuits in how to interpret Vernonia. Presumably for this reason, the Supreme Court accepted the case for review, with a decision expected some time in 2002. Lingering questions about the permissibility and scope of such policies may also have inspired the Court to return to the question. Indeed, in 2001, legal observers noted a shift in federal opinions away from support for student drug-testing policies. In addition to the Todd case, a federal judge struck down the pervasive policy of testing all public school students in grades seven through 12 in Tannahill v. Lockney School District (2001), while state courts also ruled against policies.

Inside Lower Court Disagreement over Broader Extracurricular Student Testing