As a policy matter, student drug testing in public schools is widely determined by school districts. State legislatures have thus far not intruded, leaving these determinations to the discretion of local school boards. As such, policies vary widely nationwide, and even from district to district within given states. Most schools still have no testing policy, but those that have adopted policies tend to fall into two categories: mandatory suspicionless testing is required of students who wish to play intramural athletics, or, more broadly, it is required not only of athletes but also of students wishing to participate in extracurricular clubs and organizations.
Legal direction on school policies has come from the courts. The highest-profile challenges to the policies have been brought in federal court on Fourth Amendment grounds, but some cases have been brought on state constitutional grounds, too. State constitutions often have broader privacy protections than are found under the federal constitution, thus providing powerful legal grounds for plaintiffs who want to challenge overly aggressive school policies.
The first state constitutional challenge against mandatory testing of student athletes came in Wilson v. Ridgefield Park Board of Education (1997). The American Civil Liberties Union brought the case against Ridgefield Park, New Jersey school board, arguing that the policy violated state constitutional privacy rights. A state superior court judge agreed, additionally finding that the school had no evidence of a severe drug problem among athletes, and temporarily blocked enforcement of the policy pending trial. But before the case could be heard, the school board dropped the policy in a 1998 settlement.
State courts in Indiana, Oregon, and Pennsylvania have also found constitutional problems with school policies. Some state courts have addressed themselves to policies resulting from the expansion of student testing to other extracurricular activities. In rejecting one such policy, the Colorado state supreme court applied the U.S. Supreme Court’s 1995 standard from Vernonia v. Acton when it held that high school marching band members have a higher expectation of privacy than student athletes who undress in locker rooms, in Trinidad School District No. 1 v. Lopez (1998). In other state litigation, school districts in Maryland and Washington discontinued policies following lawsuits. These cases signal that the legal future of suspicionless student drug testing is far from certain.
