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Right to Privacy

Right to Privacy

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Home Civics Right to Privacy History Drug Testing Rights

Drug Testing Rights

  • Drug tests are considered "searches" entitled to Fourth Amendment protection
  • In 1995 case Acton v. Vernonia, an Oregon 12-year-old went to court to protest mandatory drug testing of all student athletes, saying it violated his privacy
  • Supreme Court majority ruled drug testing legal, but three justices dissented

The drug testing case of the Oregon twelve-year old raised new questions. For starters, was a drug test a type of search that violated Fourth Amendment protections? Over the years, the courts have had to consider whether a lengthy list of information-yielding procedures were actually searches, and they have concluded that many are not. The police do not need to even think about the Fourth Amendment when they obtain voice analyses, hand-writing samples, and fingerprints; the courts have said that none of these are entitled to Fourth Amendment protections because people have no reasonable expectation of privacy in these areas. But the courts have ruled that people do have a reasonable expectation of privacy surrounding other things such as their blood, urine, and even their breath. Therefore, these are protected against unreasonable searches, and the police and other government agencies can only obtain these with a warrant or by meeting one of a handful of exceptions permitting warrantless searches.

The first question presented by the drug-testing case had therefore been answered. Obtaining a urine sample for the purpose of testing for drug use was subject to Fourth Amendment protections. The question thus became, did the district program meet the standard of "reasonableness under all of the circumstances"? The district argued that student drug use was increasing dramatically and that student athletes were among the leaders in the teen "drug culture." Other methods, such as drug education, had been tried and had failed to reduce drug use. Moreover, the drug tests were conducted in a reasonable fashion, and they were conducted privately; the only other person in the room was an adult who either turned away or remained outside the stall. The results were made known to only a few school officials, and if a student tested positive a second test was administered to confirm the results.

But lawyers for the student argued that the there was no information specific to their client linking him to drug use. In other words, the school was subjecting him to a test, which the lawyers claimed was invasive and embarrassing, without the tiniest piece of evidence that he had ever used drugs. What was reasonable about this? The Fourth Amendment was inspired, they argued, by colonists' objections to similar indiscriminate search warrants used by the British. Writs of assistance had provided British customs officers with a sort of blank-check authorization to search all colonial homes and vessels for smuggled goods. Americans believed that their rights were violated by these blanket searches and therefore they had written into their constitution a protection against just this sort of indiscriminate invasion.

On 26 June 1995, the Supreme Court delivered its decision in Vernonia School District v. Acton. Citing the compelling drug problem and the influence of student athletes, it held that the drug testing program was reasonable and that the test itself was not unreasonably invasive of the students' privacy. Athletes, the Court argued, are accustomed to less privacy than other students; they shower and change in a common locker room. Thus, the court concluded, both the objectives and the methods of the search met the standard of reasonableness established in New Jersey v. T.L.O.

But three Justices disagreed. In their dissent, they echoed the student's argument that the very essence of the Fourth Amendment was being violated. In upholding a blanket search program, one that made no effort to differentiate between those who might or might not be using drugs, the Court had upheld the very thing that colonists had set out to eliminate in their opposition to writs of assistance.

Perhaps so. But it is also true that over the past several decades the broader community has asked schools to do far more than just educate their students. They have demanded that schools assume a primary role in identifying and addressing other social pathologies such as drug use, teen pregnancy, eating disorders, and child obesity. If this trend continues, it seems likely that schools will seek even broader authority over the young people sent to them for a growing list of reasons, and it seems similarly likely that the courts will continue to authorize them to do what others seem unwilling or unable to do.

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