Supreme Court of the United States
Vernonia School District 47J v. Wayne Acton
Decided June 26, 1995 – 515 U.S. 646
Justice SCALIA delivered the opinion of the Court.
The Student Athlete Drug Policy adopted by School District 47J in the town of Vernonia, Oregon, authorizes random urinalysis drug testing of students who participate in the District’s school athletics programs. We granted certiorari to decide whether this violates the Fourth and Fourteenth Amendments to the United States Constitution.
Petitioner Vernonia School District 47J (District) operates one high school and three grade schools in the logging community of Vernonia, Oregon. As elsewhere in small-town America, school sports play a prominent role in the town’s life, and student athletes are admired in their schools and in the community.
Initially, the District responded to the drug problem by offering special classes, speakers, and presentations designed to deter drug use. It even brought in a specially trained dog to detect drugs, but the drug problem persisted. At that point, District officials began considering a drug-testing program. They held a parent “input night” to discuss the proposed Student Athlete Drug Policy (Policy), and the parents in attendance gave their unanimous approval. The school board approved the Policy for implementation in the fall of 1989. Its expressed purpose is to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs.
The Policy applies to all students participating in interscholastic athletics. Students wishing to play sports must sign a form consenting to the testing and must obtain the written consent of their parents. Athletes are tested at the beginning of the season for their sport. In addition, once each week of the season the names of the athletes are placed in a “pool” from which a student, with the supervision of two adults, blindly draws the names of 10% of the athletes for random testing. Those selected are notified and tested that same day, if possible.
In the fall of 1991, respondent James Acton, then a seventh grader, signed up to play football at one of the District’s grade schools. He was denied participation, however, because he and his parents refused to sign the testing consent forms. The Actons filed suit, seeking declaratory and injunctive relief from enforcement of the Policy on the grounds that it violated the Fourth and Fourteenth Amendments to the United States Constitution. After a bench trial, the District Court entered an order denying the claims on the merits and dismissing the action. The United States Court of Appeals for the Ninth Circuit reversed, holding that the Policy violated both the Fourth and Fourteenth Amendments. We granted certiorari.
As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness.” [W]hether a particular search meets the reasonableness standard “‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’” Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant [supported by probable cause]. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”
The first factor to be considered is the nature of the privacy interest upon which the search here at issue intrudes. Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.
Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the “reasonableness” inquiry cannot disregard the schools’ custodial and tutelary responsibility for children. For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases.
Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require “suiting up” before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford. The locker rooms in Vernonia are typical: No individual dressing rooms are provided; shower heads are lined up along a wall, unseparated by any sort of partition or curtain; not even all the toilet stalls have doors. As the United States Court of Appeals for the Seventh Circuit has noted, there is “an element of ‘communal undress’ inherent in athletic participation.”
There is an additional respect in which school athletes have a reduced expectation of privacy. By choosing to “go out for the team,” they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally. In Vernonia’s public schools, they must submit to a preseason physical exam (James testified that his included the giving of a urine sample), they must acquire adequate insurance coverage or sign an insurance waiver, maintain a minimum grade point average, and comply with any “rules of conduct, dress, training hours and related matters as may be established for each sport by the head coach and athletic director with the principal’s approval.” Somewhat like adults who choose to participate in a “closely regulated industry,” students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy.
Taking into account all the factors we have considered above—the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search—we conclude Vernonia’s Policy is reasonable and hence constitutional.
We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care. Just as when the government conducts a search in its capacity as employer (a warrantless search of an absent employee’s desk to obtain an urgently needed file, for example), the relevant question is whether that intrusion upon privacy is one that a reasonable employer might engage in; so also when the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake. Given the findings of need made by the District Court, we conclude that in the present case it is.
We may note that the primary guardians of Vernonia’s schoolchildren appear to agree. The record shows no objection to this districtwide program by any parents other than the couple before us here—even though, as we have described, a public meeting was held to obtain parents’ views. We find insufficient basis to contradict the judgment of Vernonia’s parents, its school board, and the District Court, as to what was reasonably in the interest of these children under the circumstances.
We  vacate the judgment, and remand the case to the Court of Appeals for further proceedings consistent with this opinion.
The population of our Nation’s public schools, grades 7 through 12, numbers around 18 million. By the reasoning of today’s decision, the millions of these students who participate in interscholastic sports, an overwhelming majority of whom have given school officials no reason whatsoever to suspect they use drugs at school, are open to an intrusive bodily search.
In justifying this result, the Court dispenses with a requirement of individualized suspicion on considered policy grounds. First, it explains that precisely because every student athlete is being tested, there is no concern that school officials might act arbitrarily in choosing whom to test. Second, a broad-based search regime, the Court reasons, dilutes the accusatory nature of the search. In making these policy arguments, of course, the Court sidesteps powerful, countervailing privacy concerns. Blanket searches, because they can involve “thousands or millions” of searches, “pos[e] a greater threat to liberty” than do suspicion-based ones, which “affec[t] one person at a time.” Searches based on individualized suspicion also afford potential targets considerable control over whether they will, in fact, be searched because a person can avoid such a search by not acting in an objectively suspicious way. And given that the surest way to avoid acting suspiciously is to avoid the underlying wrongdoing, the costs of such a regime, one would think, are minimal.
But whether a blanket search is “better” 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.
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Seven years after deciding Vernonia, the Court considered a public school drug testing program that went beyond athletes and included participants in activities such as the debate team, band, and Future Farmers of America. While the district policy stated that students involved in any extracurricular activity could be tested, the record reflected that in practice testing was limited to participants in “competitive extracurricular activities.” In Board of Education, Pottawatomie County v. Earls (2002), concerning an Dartmouth-bound honors student in the school choir who declined to be drug tests, the Supreme Court majority declared that submission to drug tests can be imposed as a condition for participation in extracurricular activities.
Notes, Comments, and Questions
Since the Court decided Vernonia and Earls, public schools have continued to explore how much of the student population can be subjected to mandatory drug testing. Although courts have not yet approved a policy mandating the testing of all students at a public school, school districts have been largely successful in requiring testing of broad portions of the student population.
Consider these examples:
Some schools have required students to submit to drug testing if they wish to park on school grounds. See, e.g., Joy v. Penn-Harris-Madison School Corp., 212 F.3d 1052 (7th Cir. 2000). Lawful? Why or why not?
A public technical college adopted a policy requiring that all students at the college submit to drug tests. See Kittle-Aikeley v. Strong, 844 F.3d 727 (8th Cir. 2016) (en banc). Lawful? Why or why not? What if the policy applied only to students in certain academic programs?
In the case of the technical college, the Eighth Circuit upheld mandatory drug testing of students enrolled in “safety-sensitive programs.” Dissenting judges would have allowed testing of all students because there was no reason “to assume that [the college’s] students pursuing an education in its non-safety-sensitive programs are not likewise fully impacted by the same illicit drug-abuse crisis” that justified the testing of students in safety-sensitive programs. Other courts could reach different results in similar cases.
According to a national survey of school districts, many public schools operate drug testing programs that involve random testing of all students, seemingly in excess of what the Court has allowed. See Chris Ringwalt et al., “Random Drug Testing in US Public School Districts,” 98 Am. J. Pub. Health 826 (May 2008) (“28% randomly tested all students”). Further litigation on this issue seems likely.
Notes, Comments, and Questions
Re: the Supreme Court’s rejection of warrantless drug testing of pregnant women at a public hospital in Ferguson v. City of Charleston (2000): Although no one today would recommend use of crack cocaine by pregnant women, it turns out that much of the science behind the so-called “crack baby” epidemic has been debunked. Predictions like that of “a bio-underclass, a generation of physically damaged cocaine babies whose biological inferiority is stamped at birth”—from a 1989 column in the Washington Post—or a flood of 4 million kids whose “neurological, emotional and learning problems will severely test teachers and schools”—from a 1990 article in the New York Times—appear alarmist in hindsight. See Vann R. Newkirk II, “What the ‘Crack Baby’ Panic Reveals about the Opioid Epidemic,” Atlantic (July 16, 2017) (noting the greater empathy extended to pregnant women using opiates than was shown to crack-addicted mothers). Legal scholars noted that in the late 1980s, a trend emerged wherein prosecutors used laws previously used to punish abuse of children after birth—such as involuntary manslaughter and delivery of drugs to a minor—to prosecute pregnant drug users. See, e.g., D. M. McGinnis, Comment, “Prosecution of Mothers of Drug-Exposed Babies: Constitutional and Criminal Theory,” 139 U. Pa. L. Rev. 505 (1990).
In our next chapter, we consider our final selection of exceptions to the warrant requirement.