Legal Clips, [March 2008]The Washington State Supreme Court has ruled that a school district’s random, suspicionless drug testing of student athletes violates a state constitution provision that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” After Wahkiakum School District (WSD) responded to persistent drug and alcohol problems with a policy requiring random drug testing of all students who participate in interscholastic athletics, some parents filed suit in state court, asking for a preliminary injunction against the policy. The trial court denied the request, and the state appeals court dismissed the petition as moot, since the district had stopped enforcing the policy pending the trial court's decision on the merits. The trial court then ruled that “while the school district’s policy ‘approached the tolerance limit’ of our constitution, the policy was nevertheless constitutional and narrowly tailored to reach a compelling government end.” The state supreme court granted the parents’ request for direct review.
The high court noted that U.S. Supreme Court established in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), that random drug testing of student athletes does not violation the Fourth Amendment of the U.S. Constitution. However, the Washington court noted that it had never addressed whether such a policy violates the state constitution. The court focused on whether the state constitution follows the federal standard or provides greater protection to students in the state of Washington. While Fourth Amendment analysis hinges on whether a warrantless search is reasonable, the court found, analysis under the state constitution hinges on whether the search has “authority of law”—in other words, a warrant. In some other areas the Washington Constitution provides greater protections than the federal. Determining whether greater protection also should be afforded here required subjecting WSD’s policy to a two-part test: (1) whether asking student-athletes to provide urine samples constitutes a “disturbance of one’s private affairs”; and, if so, (2) whether the “authority of law” justifies the intrusion, which is satisfied by a warrant or “a few jealously guarded exceptions.”
Starting with the “private affairs” prong, the court found that requiring a student to provide an onsite urine specimen intrudes upon a privacy interest. Both federal and state courts agree that requiring production of a urine specimen intrudes on one’s reasonable expectation of privacy, and the Washington court noted that it offered “heightened protection for bodily functions compared to the federal courts.” Although students have a lower expectation of privacy and a state appeals court had held that the state constitution affords students no greater protections from searches by school officials than is guaranteed by the Fourth Amendment, the high court noted that this earlier ruling did not involve drug testing, was decided prior to Vernonia, and was not binding on the supreme court. As a result, the court concluded that “interfering with a student athlete’s bodily functions disturbs one’s private affairs.”
As for the “authority of law” prong, the court rejected WSD’s request that it adopt the federal “special needs” doctrine as a narrow exception. After reviewing state case law involving circumstances similar to those in which federal courts have found a special need, the high court stated that “we have not created a general special needs exception or adopted a strict scrutiny type analysis that would allow the State to depart from the warrant requirement whenever it could articulate a special need beyond the normal need for law enforcement.” Noting its own “long history of striking down exploratory searches not based on at least reasonable suspicion,” the court emphasized that in the few instances where it had sanctioned suspicionless searches, either it had relied entirely on federal law or the search was in the context of criminal investigations or dealing with prisoners. Finally, the court found that it could not “draw a principled line permitting drug testing only student athletes.” If it allowed such testing, there would be noting preventing “school districts from either later drug testing students participating in any extracurricular activities, as federal courts now allow, or testing the entire student population.”
York v. Wahkiakum Sch. Dist. No. 200, No. 78946-1 (Wash. Mar. 13, 2008)
[Editor’s Note: In separate opinions below concurring in the judgment, Justices Madsen and Johnson criticized the majority’s outright rejection of the special needs exception, and Justice Chambers briefly pointed out the court’s seemingly paradoxical stance that a person retains greater privacy interest in his urine than the court recently found a person retained in his saliva or DNA. Background on the case and more information on drug testing of students and other challenges brought under state constitutions instead of the U.S. constitution are at the last link.]
Madsen concurrence
Johnson concurrence
NSBA School Law pages on York v. Wahkiakum Sch. Dist. No. 200