*1 S018180. Jan. [No. 1994.] al., et
JENNIFER HILL Plaintiffs and Respondents, ASSOCIATION, COLLEGIATE NATIONAL ATHLETIC Defendant Appellant;
BOARD OF TRUSTEES OF LELAND STANFORD JUNIOR UNIVERSITY, Intervener and Respondent.
Counsel Stewart, Swanson, Sutro, & E. Pillsbury, Douglas Craig Madison C. Floyd, Kitchin, J. Gangwere, & John George Clarke H. Midgley, Gangwere, Kitchin, Hanson, for & Archer Kristina Hanson Archer Richard J. and Defendant and Appellant. Harleston, Pash, S. Burling, Jeffrey Jeffrey & H.
Covington Gregg Levy, Dollarhide, Paul, Walker, Walker, C. Mary & Robert F. Hastings, Janofsky Kristoff, Berkowitz, Schachter, and Thomas & Victor Schachter Orenstein Geidt Amici of Defendant and Appellant. E. Curiae on behalf Chen, Brockett, Schlosser, M. Keker & C. Alan L. Edward Margaret Crosby, Harriman, Keker, Nest, Nest, Van Susan J. Brockett & Robert A. Van Kramer Plaintiffs and Respondents. Michael J. Proctor Karin for Grodin, III, & Mayeda, R. John True Larkin Goldstein M. Joseph Saperstein, and Respondents. and Brad as Amici Curiae behalf of Plaintiffs Seligman Rice, Roster, Howard, Zumwalt, L. Michael Debra Susan K. Hoerger, Rabkin, Falk, Jr., Nemerovski, Robertson, Falk & B. Canady, Jerome Steven L. for Intervener Mayer Respondent.
Opinion LUCAS, (NCAA) Athletic Association Collegiate C. J. National throughout athletic regulates intercollegiate competition sponsors selected randomly United Under the NCAA’s drug program, States. and football student athletes college competing postseason championships closely of their urine under bowl are games required provide samples chemically analyzed proscribed monitored conditions. Urine are samples subject Athletes testing “positive” disqualification. substances. *8 Plaintiffs, (Stan- University who were Stanford attending student athletes NCAA, trial, ford) time its contending drug testing at the sued I, their article program by violated secured section in the adopted plain- California Stanford intervened suit and Constitution. tiffs’ to be an Finding plaintiffs’ the NCAA’s invasion position. program right court its enforcement privacy, enjoined superior permanently and against other Stanford Court of plaintiffs Appeal upheld athletes. the injunction. nature,
itsBy sports demands competition highly disciplined physical in Unlike activity conducted accordance set of social norms. special the general student athletes examina- population, undergo frequent physical tions, trainers, reveal their and medical and and bodily conditions coaches often dress in doing, and undress same-sex locker rooms. so nor- they and mally reasonably a measure of their for the forgo exchange personal and professional benefits of extracurricular athletics.
A student athlete’s already diminished is out- expectation weighed legitimate objectives NCAA’s regulatory conducting events, testing for As a proscribed drugs. sponsor regulator and of sporting the NCAA has self-evident interests fair and ensuring vigorous competi- tion, as well as the health protecting safety and of student athletes. These interests justify set of testing rules calculated to achieve drug reasonably drug-free athletic competition. NCAA’s rules contain elements designed this accomplish purpose, including: (1) advance notice to athletes of testing procedures testing; written consent to selection of random athletes actually engaged (3) monitored collection of a competition; sample of a selected urine in athlete’s avoid order to substitution or contam- ination; disclosure, chain custody, limited procedures other designed safeguard and its confidentiality process formulated, outcome. As the NCAA’s do not regulations legiti- offend mate interests of student athletes. reasons, below,
For these as more the NCAA’s fully discussed testing program does not violate state constitutional plaintiffs’ right to We will privacy. therefore reverse the judgment Court Appeal direct of final entry judgment favor of the NCAA. Proceedings
Statement Facts and Below Plaintiffs’ action for relief We summa- injunctive was tried to court. rize the facts revealed uncontradicted evidence the record and findings of trial court. *9 1,000 NCAA, and univer- colleges more
The a association of than private sities, competition. and athletic intercollegiate was created to foster regulate institutions, and collectively by acting NCAA rules are made member college institutions at national conventions. Member democratically to participation as a condition are to abide NCAA rules required athletes events. NCAA-sponsored Adoption Drug Testing 1. to the NCAA’s Leading Events of use. drug student athlete In the NCAA enacted a rule prohibiting Venezuela, Caracas, later, several Pan American Games years Ten Others withdrew college positive prohibited drugs. student athletes tested In testing. response from when faced with the competition prospect incident, (USOC) drug a developed Committee the United States Olympic the International Olympic after the program modeled program Committee, Following early which been established 1970’s. had USOC, among student drug NCAA use began study lead of the athletes. nation- University to conduct a NCAA commissioned State Michigan use revealed substantial
wide athlete use. The results survey college drug using reported surveyed of a athletes variety drugs—8 percent hashish, cocaine, 17 percent amphetamines, marijuana percent steroids using players reported steroids. Nine of football percent percent time; within the twelve using preceding some six steroids percent reported months. Conference, Pacific 10 the members of NCAA’s January a Stanford, to adopt on the NCAA calling introduced a resolution
including that “the use recited drug testing program. resolution mandatory drugs represents performance-enhancing controlled substances and allegedly of amateur integrity and a threat to danger health students sport.” resolution, NCAA created on the Pacific 10 Conference
Acting recom- The committee study testing. committee to use special drug model, Olympic based on the drug testing mended a comprehensive program maintaining legitimate “The NCAA has a interest concluding part: athletics, insuring competition fair integrity intercollegiate including athletes. The use all student safety the health and protecting participating is a viola- individual student-athletes of ‘performance-enhancing’ drugs safety health and competition, poses potential tion of the ethic of fair [and] hazard those and a utilizing safety hazard to those such drugs potential ensuring most effective method of competing such individuals. The enhancing’ drugs through student-athletes utilizing ‘performance consistent, national testing program.” *10 convention,
At the committee’s drug the use and NCAA’s At the was referred back for further and refinement. proposal study convention, the committee’s revised was overwhelm- proposal adopted has ing vote of the member testing program institutions. NCAA’s continued, amendments, with certain the time this through appeal.
2. The Drug Testing NCAA Program
The NCAA use in student athlete of chemical substances several prohibits stimulants; (1) categories, (2) including: psychomotor and nervous system steroids; (3) (in anabolic alcohol and rifle events only); beta blockers diuretics; trial, drugs. street At the time of amines sympathomimetic (a medications) class of included in in many substances were also included the NCAA’s list of banned The NCAA its drugs. has amended rules to delete sympathomimetic amines from its of proscribed list substances.
Student athletes in seeking participate competition NCAA-sponsored are required to statement and form. New sign three-part consent forms must be executed at each beginning of The first year competition. part form affirms meets NCAA signator eligibility regulations that he or she duly has known reported any violations those regulations. form, Consent,
The second of the part entitled Amendment Buckley tests, form, authorizes limited disclosure of the NCAA drug results of records, academic financial aid and other information transcripts, pertaining to NCAA eligibility, authorized of the athlete’s institution representatives conference, well as NCAA. The items of be information to disclosed are in identified the statement as records” pursuant “education the federal (20 Educational Rights Privacy Act 1974. U.S.C. 1232(g).) §
The final part of form is a “Drug-Testing Consent” including following provisions: form,
“By signing part this you certify you agree to be tested for drugs. NCAA, before,
“You agree to allow during year, during this academic after in you in participate any NCAA any championship postseason NCAA, listed drugs test for the banned you certified game football Manual. l-7(b) the NCAA Regulation Executive that are described drug testing for NCAA “You reviewed the procedures NCAA Drug-Testing Program brochure. (the if NCAA finds traces of test you positive “You understand that ineligible participate will you drugs your body), banned days. for least competition postseason positive for and then test days,
“If and lose you positive eligibility test restored, eligibility will lose again eligibility postseason after your you and next year. all the current academic *11 sports tests, if your drug “You that this consent and the results of understand Amendment Buckley the will be disclosed in accordance with only any, consent.” for the student
The dated Testing signature spaces Consent contains Drug minor, and, the sign Failure to athlete if the athlete is a a parent. student form, Consent, renders the student Testing three-part including Drug athlete to NCAA-sponsored competition. ineligible participate All by urinalysis. at NCAA athletic events Drug testing conducted bowl are games athletes events or championship postseason student testing for ac- Particular athletes are chosen subject testing. potentially criteria or other selection include random selection cording may plans finish, time, or use. suspicion such as team position, place playing event, in an his her athletic following participation written notice Upon The athlete to a station. report the selected athlete must collection promptly At collection by choose to be a witness-observer. accompanied station, code num- beaker with a plastic-sealed personal athlete picks as the In of the same sex ber. of an NCAA official monitor presence athlete, The 100-200 milliliters. the athlete a urine supplies specimen documented, identified, A labeled samples divided into two specimen is laborato- testing Both are of three certified and B. delivered one samples and acknowl- provide signed receipts Chain of custody procedures ries. each transfer point. edgments A by chromatography/ is tested laboratory, gas
At the portion sample avail- analysis scientifically most accurate method spectometry—the mass by use of confirmed proscribed drugs, able. Positive findings, signifying A, the laboratory reviewed by and then testing sample another portion decodes number. NCAA director and to the NCAA code reported college director of to the athletic relays positive findings reports marked “confidential.” letter overnight involved university telephone Within finding. the athlete of the notify positive institution is required urine is B of the athlete’s finding, sample 24 hours of notice of a positive NCAA committee. designated to a finding may appealed tested.A positive Refusal by A eligibility. test results loss of positive finding postseason yields student NCAA-mandated drug testing procedures athlete to follow offending competition.1 the same athlete is barred from consequence—the Drug Testing Program 3. Effects of whether the violated considering plain- NCAA’s drug program
tiffs’ state constitutional the trial court and the Court privacy, drug testing program NCAA to demonstrate that its Appeal required advanced a the following: state interest” each of “compelling by proving i.e., furthered its stated program safeguard integrity purposes, athletes; athletic and to the health and of student competition protect safety (2) the utility resulting impair- program manifestly outweighed any *12 (3) ment of the and there alternatives privacy right; drug testing were no less offensive to interests. scientists,
Much of the trial was devoted to a debate among physicians, sports professionals regarding the merits of NCAA’s list of pro- scribed and the There drugs general of its efficacy drug testing program. were differences wide sharp range subjects, on a professional opinions banned, including what substances should well the attitudes and be as steroids) behaviors of athletes and coaches toward certain that drugs (e.g., some may regard as athletic The trial court’s find- enhancing performance. sustained ings, Court of favored side of Appeal, heavily plaintiffs’ professional debate.
The trial court found in invades testing that NCAA part drug program (1) the privacy interests of student athletes them: to disclose by requiring case, 1Since the expanded drug testing program trial in this the NCAA has its and made convention, consequences more serious the of a positive finding. At its the NCAA approved mandatory, year-round testing program, although program was restricted to the testing players through August program, of NCAA Division I football Under the new 1992. first-time year’s eligibility. testing positive offenders lose an entire Those a second time for drugs” year “street lose eligibility. caught using another And those steroids twice are intercollegiate (Note, banned Drug Testing from athletics for life. and the Student Athlete: Meeting Challenge (1990) 116-117.) the Constitutional 76 Iowa L.Rev. about their physical and other information they may using medications monitor; conditions; in the and medical to urinate presence in their substances a urine that reveals chemical and other provide sample bodies. more drugs any
The found athletes do not use college court further that class. It observed college general than students as frequently 1986-1987, NCAA’s year drug program, the first 3,511 ineligible proscribed tested for were declared because drugs athletes football, engaged athletes were drug ineligible, use. Of the 34 declared field, and 2 the football players, was track and were basketball. Of field tested athlete had tested for use of steroids. track positive steroids, the for cocaine. players for two basketball positive need” for “compelling From the court there was no findings, its concluded college integrity the health of athletes or drug testing protect court, “over- athletic the NCAA was program competition. According pre- medications and broad” because it banned “useful” over-the-counter The court the health of athlete.” scription drugs “designed to improve in its professed observed the NCAA had not been consistent completely measles to require concern the health of athletes as shown its failure postseason athletes measles outbreaks at vaccinations of despite previous drug- or rehabilitation services for competition provide counselling or to it is wrong single The court added that Stanford “believes using athletes. for its and “favors education students.” drug testing” out athletes for evidence that found NCAA had failed to produce trial court also diuretics, substances, marijuana, certain e.g., amphetamines, banned however, heroin, find, It did enhance athletic actually performance. do so. and that cocaine marijuana clearly impairs performance athletic *13 enhance drugs may that use certain alleged Addressing perception by are drugs perceived the court found that performance, generally “a major enhance or be college performance athletes and coaches to use, according With to steroid problem.” respect “perception,” court, certain in football.” “might only positions is that steroids help types use, drug general
On the the court offered its public issue of perception harm doing more drug testing view ‘the NCAA program probably drug NCAA failed to show that than and further determined the had good,” to the education based reasonable were inadequate and suspicion drug task of use athletes. controlling by conclusions, that the NCAA’s
From the trial court determined its of Stanford rights violated the state constitutional testing program wher- It of those athletes enjoined any testing student athletes. permanently conducted, California.2 ever it whether inside or outside of might factual findings On the Court of the trial court’s upheld appeal, Appeal drug testing and sustained its the NCAA’s legal regarding determinations its that the NCAA had failed to establish program, including holding state trial court’s “compelling program. interest” support affirmed. We judgment, granted was including permanent injunction, review.
Discussion I, “All Article section of the California people Constitution provides: nature free and and have inalienable these are independent rights. Among and enjoying defending life and and liberty, acquiring, possessing, protecting (Italics and and property, pursuing obtaining privacy.” safety, happiness, added.) I, Constitution, “and added article phrase was to California privacy” (the
section an initiative the voters on November adopted by Amendment). Initiative Privacy
To resolve between the we three dispute address parties, questions (1) first impression this court: Does the Initiative Privacy govern NCAA; conduct of if it private, nongovernmental entities such as the does, what standard legal is to be invasions of applied assessing alleged standard, under that privacy; is the NCAA’s drug testing program violation of state constitutional privacy right? Application
1. Privacy Right Constitutional California Nongovernmental Entities
Neither nor plaintiffs Stanford assert that the NCAA is an agency instrumentality government aor vehicle for state action. Case law gener- ally confirms the status NCAA as a private organization, comprised universities, American colleges and democratically by its own governed *14 injunction 2The provides hereby as follows: Collegiate is ordered that the National “[I]t permanently enjoined Athletic Association is enforcing requirement from its that Stanford [University] signed drug testing obtain requiring consent forms from its or Stanford athlet[es] sign athletes to such participating forms as condition for in NCAA activities. NCAA not ineligible punitive declare athlete or take against action such athlete for failure to comply with or participate drug testing program any way in the NCAA or in discriminate against Stanford or its athletes virtue of their refusal of this order.” 16 (National (1988) 488 v. Tarkanian Collegiate Athletic Assn.
membership. 469, 179, 488, actor S.Ct. is private U.S. 197 L.Ed.2d 109 [102 454] [NCAA Collegiate v. National powers”]; that “enjoy[s] governmental no Arlosoroff 1019, 1984) (4th voluntary “a Ass’n 746 F.2d 1021 is Athletic Cir. [NCAA institutions”]; University O’Halloran v. association of and public private of 997, 1001, (W.D.Wash. 1988) on other 679 revd. Washington F.Supp. 856 F.2d is private entity].) 1375 grounds, [NCAA its the NCAA its attack on asserts judgment, opening Initiative does this the Privacy status action because private dispositive We against disagree. action entities. embody right nongovernmental not I, is an enumeration of Article 1 of the California Constitution section among be “inalienable all is declared to rights” “Privacy” Californians. rights, declarations of rights. those of broad constitutional Typical rights other relationship section does not define its “privacy” explain is to interests. Nor it how or whom specify against does not this Mere use of the definitive safeguarded. word “privacy” well- were two and Privacy time of the Initiative there distinct regard—at federal (appli- established Constitution legal sources rights—the action) and law and only government statutory provisions cable common (See entities). nongovernmental pt. as well discussion (applicable against 2, post.) in a manner Initiative is to be Privacy applied interpreted with intent the voters of body enacting
consistent it: probable 492, (1991) (Legislature State of California. v. Eu 54 Cal.3d [286 873, 283, 1309]; In re W. 37 Cal.3d Cal.Rptr. 816 P.2d Lance 631, When, here, of an 744].) language P.2d as Cal.Rptr. [210 initiative measure does definitive resolution of a point question “ indicia of intent ‘it is to consider the voters’ interpretation, appropriate include the other than the . . . Such indicia language provision itself.’ (Legisla contained official ballot analysis arguments pamphlet.” Wholesale, Eu, 504, Kennedy ture v. at p. part 54 Cal.3d quoting 245, Cal.Rptr. v. State Cal.3d Equalization Inc. Bd. 1360]; High Dist. v. State Valley 806 P.2d see also Joint Sch. Amador Equalization (1978) Bd. Cal.3d 245-246 1281].) P.2d dealing Proposition official ballot section with pamphlet Initiative, the measure Privacy arguments against contains 11 is replete
well as rebuttals. The favor of argument Proposition information-amassing references to of both “government” practices *15 Amends, Const, Stats, with (Ballot and to Cal. Pamp., “business.” Proposed voters, (Nov. 1972) Ballot Gen. arguments to Elec. p. [hereafter Kenneth Argument].) Cory The authors of the argument, then-Assemblyman Moscone, govern- and of both George emphasized then-Senator capacity mental disseminate nongovernmental gather, and and agencies keep, or its checking restricting sensitive information its personal accuracy without agreed use to or mutually legitimate otherwise purposes. there are
As favor of observes: “At argument present Proposition no effective and restraints on the activities of government information legal business. This amendment creates a and of privacy enforceable for every prevents government Californian. The . . . and H] business unnecessary interests and collecting stockpiling from information about us misusing gathered and in order to purpose one from information for serve other purposes or to us. . The embarrass . . proliferation [f] government and business which we records over have no control limits our our ability control . . . Even is the personal dangerous lives. more ffl loss of control over the government and records on accuracy business known, individuals. . . Even if . the existence of this few information government private to review their agencies businesses individuals permit files and Argument, supra, license, insurance a dossier is correct errors. policy, file opened pp. a tax [1] 26-27, . . . Each time we and an return, italics omitted and informational interview apply profile for added.) job[,] is sketched.” credit card or a get a drivers’ (Ballot life rebuttal to argument 11 and the Proposition argument favor against Proposition both of which were written then-Senator James Whetmore, do not contest the measure’s on impact “busi potential Rather, ness” as well “government.” they only the need for challenge additional privacy safeguards, observing: say “To there are at no present effective restraints on the information activities of and business government (Ballot untrue.” simply added.) Argument, italics Oppo nents further that the argued is essential receipt personal information effectuate the private and party relationships transactions referred to by measure, cards, proponents of the e.g., credit life policies, insurance (Ibid) employment interviews. in the repeated emphasis ballot competing arguments private party transactions, as well as
relationships govern- individual encounters ment, underscores efforts of the create Privacy Initiative’s framers to enforceable privacy rights against government both agencies private entities. As we have recognized: overbroad collection retention “[T]he of unnecessary personal by government information and business interests”
18 “ ” was Privacy which Initiative one ‘mischiefs’ at principal was of 94, 757, 533 (1975) 13 (White Cal.Rptr. directed. v. Davis Cal.3d 775 [120 222], added.) italics P.2d addressed the squarely question none of our decisions has
Although enforced against right may whether state constitutional to privacy our Superior (we had Schmidt v. no occasion to decide issue private parties 389, 750, 370, 932]), fn. 14 769 P.2d (1989) Court 48 Cal.3d Cal.Rptr. [256 (See, answered in the affirmative. the Courts of have Appeal consistently 1034, (1989) 215 1040- e.g., Corp. Cal.App.3d Wilkinson Times Mirror Wilkinson]; Broad Miller National Cal.Rptr. 1044 [264 194] [hereafter 1463, 668, 69 (1986) casting Cal.Rptr. Co. 187 1489-1493 Cal.App.3d [232 1027]; (1986) 841- Cal.App.3d Brownbridge A.L.R.4th Cutter v. 183 545]; Kinsey Cal.App.3d v. Macur Cal.Rptr. 843 [228 608]; University Cal.App.3d Porten v. San Francisco of Porten]; Fem. also see Chico 829-830 Cal.Rptr. 839] [hereafter 1983) (E.D.Cal. F.Supp. Glen Women’s Health Cr. v. Butte Med. S. 1190, 1201-1203.) Porten, damages supra, college sought student Cal.App.3d had, institution, Francisco, it of University alleging
from San a private reason, transcript disclosed his academic good without his permission held agency. Appeal from school to a Court government another state for violation university the student had stated a cause of action against the unauthorized by alleging his state constitutional right privacy a pur- academic information for use of and confidential improper personal on the references not in creation retention. Relying with its pose keeping as that in the we have the court noted “business” argument quoted, ballot concluded: Privacy well as was the focus Initiative and government hence, it a judicial “The confers provision self-executing; constitutional not protected on all right Privacy action Californians. [Citations.] action; right it is which merely state considered inalienable against (Id. 829-830.) by anyone.” not be violated pp. Wilkinson, reviewed court Cal.App.3d
Similarly, the California constitutional holding cases of its that prior support protection against private employer required afforded Emphasizing examinations. pre-employment part physical Initiative extended the conduct concerns underlying Privacy entities, “Com- the court observed: governmental nongovernmental both in contemporary with the use of experience ever-increasing computers mon needed and intended [Privacy that the was society confirms Initiative] safeguard governmen- individual from intrusion both private only personal it too evident that tal action. That common makes experience and activities capabilities is threatened information-gathering If the well. just government, private but business as dream, exist as than a or a of both memory power public is to more *17 and about individual citizens institutions to collect data private preserve of would subject must to constitutional control. Any expectations data if and retention of government’s indeed be the collection illusory only 1043.) (Id. were restricted.” at retain,
In its the NCAA in to day-to-day generate, operations, position use and about and others. In this personal information student athletes it is no a credit different from card insurance respect, purveyor, company, (the in private argu- or a used the ballot employer private entity examples ments) in its it to affect interests of those with whom capacity deals.3
The NCAA
urges us to
action
impose
prerequisite
nonetheless
a state
under the
suits
Privacy Initiative because it adds
declaration
“privacy”
rights portion
of
of our state
correctly
Constitution.
NCAA
observes
our decisions
in
declaration
construing
provisions
rights
other
impose
357,
(1979)
a state action
(e.g., People v.
Cal.3d
requirement
Zelinski
575,
seizure];
P.2d
Cal.Rptr.
[155
1000] [search
Garfinkle
268,
208,
(1978)
Court
Superior
21 Cal.3d
P.2d
281-282
Cal.Rptr.
[146
340,
925],
(1978)
app. dism.
Finally, the NCAA
reading
advocates a
history
narrow
Initiative,
Privacy
the reference
calling
to “business”
ballot arguments
3The NCAA does not assert
its nonprofit
aspect
organization
status or
other
of its
operations
any immunity
entitles it
regulations
generally applicable
from laws or
We
businesses.
have been
to no authority
support
directed
that would
such an assertion.
(Contra, see
Regents
NCAA v. Board
Univ.
Court of assumed that entities Appeal private with to claims of invasion of government respect agencies standards from a few of our cases conduct Borrowing involving privacy. citizens, imposed its with individual the lower courts government dealings interest” in (1) state proving “compelling on the NCAA burden of both: means of drug testing; and the absence of alternative support of (See Long City Long Beach v. City Emp. that interest. accomplishing 660]; White v. Beach 41 Cal.3d 719 P.2d 948 [227 Davis, 775.) to shoulder the supra, Cal.3d at Because NCAA failed p. burden, it was from its enjoined carrying drug testing program. out purported The Ballot “privacy.” The text of the Initiative does not define Privacy alone,” to a to be left “right favor includes broad references Argument 1989) (Alaska Drilling, 4See Luedtke Nabors Alaska Inc. 768 P.2d surrounding amendment [“history adoption A.L.R.4th 75] private as well as applies evinces a clear intent the clause voters California governmental action”]. interest,” it a “fundamental and and to include calling compelling purporting families, homes, thoughts, within its no than “our dimensions less our our emotions, communion, our our our our freedom of expressions, personalities, (Ballot and we Argument, our freedom to associate choose.” people 27.) supra, at such terms afford p. vague and Regrettably, all-encompassing little of the state guidance legal workable definition consti- developing tutional to privacy. readily focus of the Initiative is discernible. principal Privacy use, Argument
Ballot warns of information unnecessary gathering, dissemination public private “government snoop entities—images “ ing,” stored and computer generated ‘cradle-to-grave’ pro “dossiers” and files (Ballot American” dominate the every framers’ voters. appeal Argument, 26.) The supra, government evil addressed business p. conduct “collecting and stockpiling unnecessary information . . . misusing gathered information for one serve other order to purpose or to purposes (Id. embarrass . . . .” “The [Privacy Initiative’s] primary purpose to afford individuals some protection against measure of Davis, this most modern threat personal (White privacy.” *19 Cal.3d at p.
Although argument in favor does contain a reference to a cryptic “compelling need” for in public abridgement of the reference occurs privacy, the context of informational privacy rights against government. argu- ment states in “The part: right is an American heritage important First, Third, essential to the rights guaranteed fundamental by Fourth, Fifth, and Ninth Amendments to U.S. Constitution. This should be abridged only when there is public Some compelling need. infor- mation may remain designated public as records but when the availabil- only ity of such is clearly public (Ballot interest.” Argument, information p. added.) italics Nothing this passage compels conclu- sion that the phrase need” “compelling public was intended to a supply single, all-encompassing test for legal privacy rights.
Even within the context government the limited information-gathering, references in the ballot to arguments “compelling” necessity the ballot arguments are not When pressed consistent. by the opponents Privacy Initiative, who maintained that the new right to would un- place wieldy government burdens efforts to obtain information needed to police the welfare system, the framers equivocated, narrowing their description initiative’s effect. a rebuttal to the argument against the Privacy Initiative, Assemblyman Cory stated part: “The to not privacy will welfare nor destroy undermine It any important government program. to public’s need know. [The and the necessity’ limited ‘compelling public any government collecting will Privacy prevent not Initiative] infor- from misuse this only prevent it needs. It will legitimately mation information preclude collection extraneous purposes and unauthorized frivolous added.) supra, (Ballot italics Argument, information.” “legitimate- a “need information The references to to know” public reference to the prior serve limit narrow ly by government need[ed]” may information A mere need” for interest.” “compelling “legitimate public not be may of information overwhelming. type be less than Similarly, task, but the govern- a government or “frivolous” pursuit “extraneous” if a For may “compelling.” example, ment’s claim of entitlement not be in the or effectiveness greater efficiency “need” perceived merely represents function, means fulfillment no some but its performance public not might regarded it government operation, existence or indispensable reveal, And the framers of yet, as the ballot “compelling.” arguments of their arguments at least in to the Privacy preferred, responding Initiative than privacy right a more to the opponents, pragmatic approach flexible the isolated term interest” to demand. public appears “compelling entities, a interest” standard
As applied private “compelling public inter- Private entities ends and pursue private additional difficulties. poses ests, had establish organization not If government. every those of private state interest” to justify public interest” “compelling “compelling fail do so had an on individual it would activity privacy, impact most, all, in the if referred to conceivable cases. To use example insurance extending selling ballot business credit or arguments, private information, have obtaining commercial need for legitimate personal *20 interest,” let such is not transformed into a “state thereby but a need legally alone one. “compelling”
The in the on the Initiative is useful Argument Privacy identifying Ballot authors, it clear or provide evils that concerned its but does general interest” for for a universal standard unequivocal “compelling public support Indeed, argument context circumstances.5 the regardless of or privacy rights, Rather, bottom, it in standards. guidance developing offers little in interests at “legitimate” counsels careful context of all asserted evaluation in stake the resolution of claims. embody competing political often the rhetoric interests arguments 5Ballot sound-bite general sought vying support. may identifying useful be in the evils popular they However votes, measure, to not to by they principally designed to be an initiative are win remedied arguments or The present thoughtful precise explication legal tests standards. ballot “public” to “business” entities reflect here no different—their diverse references both, yield legal useful information-gathering power by abuses of but do not
perceived right scope gauge privacy. standard with which limits of the
23 Although single language confined to the word “privacy,” legal be more in a suitable stan- Privacy helpful developing Initiative Privacy of the by dard. term was not coined the authors “privacy” adopted by Initiative. At time the Initiative was considered and Privacy voters, and defined several right recognized had been distinct branches of the law. construed, When an initiative have judicially contains terms that been ' “ ” ’ ” ‘the have is almost that those terms presumption irresistible’ “ “ “‘ ” ’ ” ‘in
been used have precise they and technical sense’ which 131, (1989) been used (In courts. re Harris Cal.3d [260 288, 1057], People (1985) P.2d Weidert 39 Cal.3d Cal.Rptr. quoting 57, W., 380]; 845-846 705 P.2d see In re Lance Cal.Rptr. also supra, 37 Cal.3d fn. adopting body presumed to [“The thereof.”]; aware of laws existing judicial People construction Weidert, 844; 39 Cal.3d p.at In re D. Cal.3d Jeanice Therefore, effect].) P.2d order 1087] [same Initiative, discern the meaning “privacy” as used we must Privacy examine the legal various roots of the privacy concept.
a. Sources Right Privacy The pre-initiative judicial construction the right to privacy developed two along distinct a common law right, lines: some supplemented statutes, instances by protecting a diverse set of individual from interests entities; interference nongovernmental (2) a federal constitutional right, derived from various Bill provisions Rights, took distinct shape United States Court decisions in the Supreme safeguarding 1960’s rights individuals and private entities from government invasion.
(1) The common law origin of law common often traced to a seminal law review article written at the end of the last D. century. Samuel Warren and Louis D. Brandeis observed a trend in tort law protection extending beyond property rights to what *21 described they as “inviolate personality”— “the right of determining, ordinarily, to what extent person’s] thoughts, [a sentiments, and (Warren emotions shall be communicated to others.” & Brandeis, 205, Right 193, The Privacy (1890) 4 198.) Harv.L.Rev. Warren and Brandeis attempted together to weave various of law into a ” strands tort single thread—in Judge Thomas Cooley’s a ‘to let phrase, “right be alone.’ (Id. later, at p. Nearly years Brandeis regarded privacy as right broad-based and rooted in the federal he Constitution. As stated: “The Government, conferred, . against our . .
makers of Constitution right most rights of let alone—the most right comprehensive to be 438, (1928) (Olmstead 277 U.S. States valued civilized men.” United 564, Brandeis, 376]; (dis. of opn. 66 A.L.R. L.Ed. 48 S.Ct. D.) Warren and tradition legal begun Initiative’s debt to the Privacy right is the privacy “The of
Brandéis is revealed ballot arguments: homes, families, our thoughts, It our our alone. ... our protects left communion, emotions, our our freedom our expressions, personalities, (Ballot Argument, we choose.” people and our freedom to associate with the added.) supra, at italics to privacy, a right after Warren and Brandéis
Seventy years proposed the invasion case analyzed development Dean William L. Prosser law tort, violating kinds four distinct of activities distilling matters; (1) rise to intrusion into giving liability: private tort protection facts; in false (2) (3) a a publicity placing person disclosure of public private (Prosser, (4) name or likeness. light; and misappropriation person’s 381, 389.) classification was adopted 48 Cal.L.Rev. Prosser’s Privacy 652A-652E. California by the Restatement Second of Torts sections of privacy classification generally common law has followed Prosser’s Witkin, Law (5 in the of Cal. Summary interests as embodied Restatement. Torts, 580-594, 674-693.) (9th 1988) ed. pp. §§ and different interests tort seeks to vindicate multiple room, home, act hospital from freedom to without observation range exploitation or other to the to control the commercial place ability private 652B; 652C; Torts, (Rest.2d a name see also Miller National or picture. §§ Co., Broadcasting producer Cal.App.3d [television film efforts camera crew entered home unsuccessful permission without life had suffered heart husband who paramedics plaintiff’s save Sears, attack]; Noble v. Roebuck & Co. 33 Cal.App.3d room investigator hospital 73 A.L.R.3d entered [private 1164] Code, for Civil to recover interrogate patient]; [right damages § likeness, voice, name, or signature use knowing person’s photograph, law].) cumulative to the common statutory commercial exploitation; identifies invasion of categories Each of four of common law or process distinct interest associated with an individual’s control of her is a of his life. To the extent there common products personal them, it interference (usually by denominator to be among improper appears communication) life with aspects consigned means of observation *22 widely the realm the and confidential” shared “personal by strong of norms. social
“The law invasion of interests of safeguards tort privacy] [common in the civility. every- individuals maintenance rules of ... ... [In [f] life day we normative set of experience privacy] inherently as social life, tort, a our of life. ... In the practices way constitute way is a we one ‘privacy’ many label use to forms simply identify aspect which we It is respect maintain less community. important maintained, of the be than that the life purity community label forms of it (Post, which The part preserved.” Privacy Social Foundations of (1989) 77 Cal.L.Rev. rights
Privacy also have from psychological emanating per- foundations sonal needs and maintain identity establish and self-esteem by controlling “In self-disclosure: in which society often role multiple, conflicting per- individual, formances are demanded of each mean- original etymological ing word ‘person’—mask—has taken new on fear meaning. [People] them; exposure only not to those closest much outrage of the underlying right asserted is a reaction to known exposure persons only through business or other secondary relationships. claim is not so much one of total secrecy it of the one’s circle of intimacy—to define choose who shall see beneath the quotidian mask. Loss of control over which ‘face’ [citations], one puts result literal may loss of self-identity and is humiliating beneath the gaze of whose curiosity those treats a human being (Briscoe Association, as an object.” v. Reader’s Digest Inc. 4 Cal.3d 1], P.2d 57 A.L.R.3d fn. omitted.) The legally amorphous character of a tort based on social custom and psychological well-being did not escape either common law judges or American Law Institute commentators. The common law contains several important limiting that have its principles becom prevented ing an all-encompassing and always assertion of litigable right. individual kind
Initially, every of conduct that strays from social custom or implicates personal feelings gives rise to common law cause of action for invasion of privacy. various branches tort refer generally to conduct that is “highly to a offensive reasonable thereby person,” empha sizing importance objective invasion, context the alleged including: (1) harm, the likelihood of serious particularly to emotional victim; sensibilities of the the presence or absence of countervailing interests based on competing social render norms which the defendant’s *23 inoffensive; in exposing pros- interest legitimate public
conduct e.g., otherwise private might justify crime that ecuting publication serious information behavior.6
Moreover, must have con- in an invasion case privacy plaintiff expectation with an actual himself or herself a manner consistent ducted i.e., his or her conduct he have or she must not manifested privacy, If voluntary consent to the invasive actions of defendant. voluntary consent offensive to deemed “highly is a defendant’s conduct will be present, rarely Torts, 652B, (Rest.2d liability. § tort justify a reasonable so as person” he then “since is not liability plaintiff com. c observation public [no seclusion, eye”]; to the public his is public open appearance 224, 230 P.2d (1953) 40 Cal.2d Publishing 441] Gill v. Hearst Co. [253 in a assumed voluntarily waived any right privacy “pose [plaintiffs (1990) 220 Broadcasting Co. Aisenson v. American market public place”]; 146,162 whether an relevant to factor Cal.Rptr. 379] [“One Cal.App.3d [269 the extent to which is to a reasonable is person’ intrusion offensive ‘highly entered into voluntarily public is at issue privacy whose person right P. 91] [no Melvin Reid sphere.”]; Cal.App. can be no privacy matters “There publicized consent: Cal.3d Kapellas that which is see also already public.”]; Kofman the law 912].) The maxim of “volenti 36-37 P.2d consents) as well to (no applies non is done to one who injuria” wrong fit 892A, Code, Torts, a; Civ. (Rest.2d com. see also of privacy § invasion tort. § “ ” interest, a privacy an invasion of determining ‘offensiveness’ consider, of the intru- things, degree law other “the among
common courts context, sion, the intrusion as surrounding conduct and circumstances he into which objectives, setting well as the intruder’s motives and intrudes, (Miller v. is invaded.” those whose expectations Co., 1483-1484.) Broadcasting pp. National Cal.App.3d Thus, globally law is neither absolute nor common that must vague, but confined to sets of interests carefully specific interests before against competing be the balance inevitably weighed in a A expectation is judicially recognized. plaintiffs circumstances, context must under specific objectively be reasonable 652B, 6See, Torts, (intrusion private d into e.g., Restatement Second of sections comment 652C, d (appro highly person), affairs be a kind offensive to reasonable comment must incidental use priation of commercial or other value of name likeness essential—mere 652D, comment actionable), (publicity given highly c must be offensive private life 652E, (false light highly c person), publicity must offensive reasonable comment person). reasonable *24 involved. As one com- light of social interests especially competing interests, balancing “Through mentator has summarized: careful courts action which developed specific protected causes of law] [common was Although privacy somewhat well-defined aspects personal privacy. an courts clearly worthy legal protection, identified as interest of some in the did not or undue generally give privacy privileged place weight Right Privacy (Kelso, Constitutional balancing process.” California’s 327, (1992) Kelso].) 19 L.Rev. Pepperdine 376 [hereafter Our reference to the common law consti- as California background tutional right privacy is not intended to that the constitutional suggest right is circumscribed the common law The ballot not by arguments tort. do reveal such limitation. To the law contrary, privacy common invasion by disclosure of facts be public private that actionable disclosure requires widely and confined published to a few or limited circum- persons Torts, 652D, contrast, (Rest.2d a.) stances. arguments com. the ballot § describe privacy and interests right “prevents government business from and or collecting information about us and stockpiling unnecessary misusing gathered information for one order to serve other purpose supra, (Ballot 27.) or to purposes embarrass us.” Argument, p. Obviously, at sensitive if personal may information be even disclosure is misused its limited.7 law,
By referring to the common we seek merely to draw the one upon hundred years legal term experience surrounding the in identi- “privacy” fying legally protected privacy interests and in describing by the process which such interests are compared weighed against other values. That experience suggests the common law’s insistence on reason- objectively able expectations norms, based on widely shared social serious violations of those expectations, thorough consideration of competing interests, an invaluable guide constitutional privacy litigation. 7Particularly professional fiduciary when relationships premised confidentiality at (such issue as patient psychotherapist client), doctor and right state constitutional privacy may by (See, invaded a less-than-public e.g., dissemination information. (1991) Urbaniak v. Newton Cal.App.3d 226 Cal.Rptr. [complaint stated [277 354] cause of against physicians action nonpublic positive disclosure of status for human immunodeficiency virus.].) Moreover, the right common law of privacy “may by only” not be violated word mouth “ be infringed can only ‘printings, writings, pictures permanent or other publications (Grimes 694, 698, (1966) ....”’ v. Carter 241 Cal.App.2d Cal.Rptr. 1310]; A.L.R.3d see also (1965) Gautier General Cal.App.2d Tel. Co. 309 Reid, 404]; Melvin v. 290.) Although Cal.App. p. Initiative Privacy reveals no voter intent to extend the common law to gossip, create a cause of action for mere age radio), (e.g., oral mass media widespread upon oral disclosure tread our state right (H constitutional readily as as written dissemination. & El M Associates v. Centro Cal.App.3d Cal.Rptr. 392].) 412 [167 right constitutional federal “an as important refer to the to
The ballot arguments
rights guaranteed
and essential to the fundamental
American heritage
Constitution,”
First, Third, Fourth, and Ninth Amendments to the U.S.
recognized
federal constitutional
invoking thereby
(Ballot
supra, Argument,
Court.
Supreme
decisions of the United States
*25
following
two-thirds
Initiative was
before
voters
Privacy
placed
Const.,
XVIII,
(Cal.
art.
Testi-
the Legislature.
§
vote of each house of
Committee,
with staff
together
Constitution
mony
Assembly
before
the Senate Constitution
for that committee and
reports
analyses prepared
Committee,
right
reference to the federal constitutional
explicit
makes
v. Connecticut
as it
with Griswold
developed beginning
privacy, particularly
510,
19
(Kelso, supra,
(1965) 381
479
L.Ed.2d
use devices and contraceptive giving reference to a explicit federal contains no Although use. Constitution cited Rights in the Bill of right, implicit provisions the court found “privacy” First, Third, Fourth, Amendments— in and Ninth the ballot argument—the it from what called the emanating “penumbras" “zones of privacy” within those “zones of The court located guarantees. constitutional specific the use of regarding made married privacy” personal persons decisions Connecticut, (Griswold 381 at 484 p. U.S. [14 birth control devices. 514-515].) L.Ed.2d at pp. in marital interest
Concurring justices sought Griswold place other, law less “penumbral”, violated anticontraception “ (381 con constitutional U.S. 479: ‘tradition grounds. [collective] ” in Due rights science of our fundamental manifested people’ regarding 520]) at (id., at p. p. Process Clause and Ninth Amendment 493 L.Ed.2d [14 (conc. J.); in the of ordered Goldberg, ‘implicit concept “basic values opn. ” in at (id., pp. Amendment L.Ed.2d p. [14 Fourteenth liberty’ Harlan, no “end” of 524-525]) (conc. J.); denied because due opn. process (id., L.Ed.2d at government pp. law at issue support p. could state [14 White, J.).) has 528-529]) (conc. justices’ approach The concurring opn. in at analysis amorphous been to the more preferred “penumbral” 261, 279, (Cruzan fn. (1990) least recent case. v. Missouri 497 U.S. one 224, 242, refuse medical treatment [right L.Ed.2d 110 S.Ct. [111 2841] liberty Amendment interest rather than analyzed part Fourteenth to privacy].) Supreme post-Griswold Court has included within implicit sexual, marital, “certain of freedom choice rights repro matters,”
ductive
has
sexual
recognized general right
engage
but
Nowak,
(3
activities done
Rotunda &
Treatise on
private.
298;
18.26,
cf.,
1992)
(2d
Roe v.
e.g.,
Constitutional Law
ed.
Wade
§
(1973)
The Fourth Amendment’s search and seizure clause
sometimes
is
referred
(See,
to as
Treasury
“privacy” provision.
Employees v. Von
e.g.,
656,
685,
(1989)
706,
Raab
1384].)
489 U.S.
672
L.Ed.2d
109 S.Ct.
[103
seizures,
The Fourth Amendment does not proscribe all searches and
but only those that are
(Skinner Railway
unreasonable.
v.
Labor Executives’
602,
(1989)
639, 661,
Assn.
489
1402].)
U.S.
619
L.Ed.2d
109 S.Ct.
[103
Under the Fourth Amendment and the
search and
parallel
I,
seizure clause of
(art.
13),
the California Constitution
the reasonableness
§
of particular searches and seizures is determined
test
by general balancing
“weighing
gravity of the governmental
or
interest
concern served
public
degree
and the
to which the [challenged government
advances that
conduct]
against
concern
the intrusiveness of the interference with individual liberty.”
rights
8Like other
contained in or
provisions
Rights,
derived from
of the Bill of
the federal
right
constitutional
to privacy
against
applies only
(1st
state
(Pittsley
action.
v.
Cir.
Warish
1991)
(Ingersoll Palmer 1299].)9 P.2d as protecting characterized the federal cases “sometimes
Collectively,
One
kinds
interests.
two
in fact involved at least
different
have
‘privacy’
matters, of personal
disclosure
avoiding
the individual interest
of important
certain kinds
making
in independence
interest
another
L.Ed.2d
(Whalen
U.S.
v. Roe
598-600 [51
decisions.”
Whalen],
interest is
omitted.)
former
fns.
When it is functions scrutiny generally strict applied, card,” interest at because the state’s invalidating any attempt regulation state (See, right. rarely abridgement sufficiently compelling justify area of search and by Privacy no broader “privacy” protected 9The Initiative is I, 13 by section seizure Amendment or article “privacy” protected than Fourth 623, (1983) 33 (People [190 the California Constitution. v. Crowson Cal.3d 629 389].) 660 P.2d
31 (1978) First National Bank 435 U.S. e.g., Boston v. Bellotti [55 1,11 707, 724, 1407]; L.Ed.2d U.S. Loving Virginia 98 S.Ct. v. 1017-1018, Gunther, Court, 1817]; Supreme L.Ed.2d 87 S.Ct. “ theory 1971 Term ‘strict’ Harv.L.Rev. scrutiny [strict fact”].) scrutiny and fatal in But the Court has not endorsed strict Supreme all all levels Even in privacy-based interests at conceivable of intrusion. fields of specific high federal such as abortion privacy protection, rights, court has review. difficulty a consistent standard of experienced articulating Wade, Roe e.g., v. L.Ed.2d at (Compare, supra, U.S. at 155-156 pp. pp. state with Planned Parent- “compelling [reference 178-179] interest”] hood Pennsylvania Southeastern 505 U.S. Casey, supra, p._[120 at 713-715, 742-743, 748-749, 2820, 2842, L.Ed.2d pp. S.Ct. at pp. unable to arrive at majority legal 2847] [court standard to position regarding measure burdens on abortion rights: justices three favor “undue burden” standard, justice one “strict scrutiny,” justices five various other rules and standards].)
In summary, outside the separate context of Fourth Amendment searches
seizures,
the “penumbral” federal constitutional
has
been
applied
intrusions
government into narrow and defined class
personal
autonomy interests
and reproductive decisions.
contraceptive
There is at least some
that what have
prospect
been
regarded
“privacy”
interests may henceforth be viewed as Fourteenth Amendment “liberty”
Missouri,
interests
federal
(See,
constitutional analysis.
e.g., Cruzan
hazard,
497 U.S.
But whatever predictions
might
one
the murky
character of federal constitutional privacy
at this
teaches
analysis
stage
privacy interests and accompanying
standards are
legal
flexibly
best viewed
xt.10
conte
“While
least two of our cases
Privacy
decided before the
part
Initiative referred in
to a
constitutional
privacy,
a closer examination of those cases
grounding
reveals a
*28
statutory or
provisions
constitutional
creating
(In
a “privacy” right.
(1970)
re
2
Lifschutz
829,
557,
Cal.3d 415
Cal.Rptr.
[85
467 P.2d
44 A.L.R.3d
broad federal constitutional
1] [no
right
Griswold;
of
in disclosures to psychotherapist
interprets
under
court
psychother
apist-patient privilege as inapplicable
issue];
to
City
communications at
Carmel-by-the-Sea
of
263,
259,
(1970)
v. Young
1,
2
Cal.3d
Cal.Rptr.
[85
466 P.2d
Constitutional of elements of a a clear statement of Our do not contain cases to privacy. the state constitutional of action for invasion of cause courts that the lower convincing Plaintiffs and Stanford succeeded on impact plaintiffs’ privacy conceivable any required justify NCAA was its drug and to establish interest” by “compelling interests inter the NCAA’s furthering was the “least restrictive” alternative program alternative” restrictive NCAA interest/least “compelling ests. The assails test; consider its defense. We naturally come to and Stanford plaintiffs Initiative. Privacy of the light history positions parties Davis, supra, from White emanates Privacy jurisprudence Our Initiative White, a taxpayer’s demurrer general Cal.3d we upheld against 757. depart- funds for a public police seeking enjoin complaint expenditures University Califor- at the university ment’s covert surveillance classes a level (Id. 773.) complaint alleged at nia at Los Angeles. p. “extensive, routine, classes university police covert surveillance (Id. history.” nation’s our meetings” “unprecedented was organization and under- informants 776.) According ¿negations, police p. plaintiffs functions, students, university as attended agents cover themselves disguised attendance, despite statements made others by dossiers of compiled the absence of any illegal activity. we assumed the truth of
Because White necessarily arose on pleadings, the ultimate regarding question, and intimated no view plaintiffs allegations i.e., had been rights whether state and federal constitutional plaintiffs (White conduct of law enforcement authorities. challenged violated Davis, 776.) to academic Focusing rights 13 Cal.3d at p. plaintiffs’ as revealed alleged freedom and freedom we held the facts expression, the exercise government “likely upon conduct a substantial restraint pose surveillance of First Amendment that “the challenged observed rights” if can demonstrate a ‘compelling’ activities can be sustained defendant only of First Amendment justifies state interest which the resultant deterrence means less intrusive on and which cannot be served alternative rights (Id. fundamental rights.” we characterized privacy, on the state
Commenting constitutional in the as “intru- alleged complaint inherently the law enforcement conduct sive,” have to “contest opportunity defendant would noting govern- well allegations designate compelling as complaint *29 Davis, (White supra, mental . . . .” upon they rely interests which 776.) p. Cal.3d at in did not
Properly analyzed, our decision White establish blanket all interest” test for state constitutional cases. “compelling dght-to-privacy According to the White was allegations, government spending plaintiffs’ taxpayer gather containing dollars to and construct dossiers information of There surreptitious by government agents. observations academic speech was no legitimate government interest this its continuation activity; threatened to of rights harass embarrass citizens the exercise their free expression charge association. Plaintiffs White thus pertains government one invasion of distinct set of interests—those which the First Amendment and “our overlap relate to “our freedom expressions,” communion,” of and “our freedom to with the we choose.” people associate (Ballot Argument, supra, 27.) at p.
This view of Whiteis cited supported by examination authority court. The court White refers without discussion to three cases support “compelling its interests” governmental language. None of the cases our state involves constitutional right of privacy.
Two of the three cases cited White deal with freedom expression the concomitant to hold right City office. In public Carmel-by-the-Sea v. Young, Cal.3d plaintiffs attacked a conflict-of- sweeping interest law requiring “every officer” and public “each candidate” for state or local file public office to a statement disclosing all investments in excess $10,000 officer, owned by the a spouse, (Id. child. 262.) a minor p. Drawing state and federal cases a First Amendment recognizing right participate we political activity, emphasized restraining that laws political expression justified must be aby government showing of state “compelling “ as purpose” well as an absence of any “alternatives” that are offen- ‘less ” “ ” sive’ or ‘less subversive of (Id. rights.’ 264-265.) constitutional at pp. Finding conflict-of-interest statute overbroad and not to a subject reason- construction, able limiting we held it (Id. 272.) unconstitutional. at p. In County Nevada v. MacMillen 11 Cal.3d 670-672 [114 1345], 522 P.2d we upheld a revision of the conflict-of- interest law designed to satisfy demands City Carmel-by-the-Sea. Both of the conflict of interest cases make reference to a but privacy, in the context of the federal “penumbral” right. (City Carmel-by-the-Sea v. Young, supra, 266-268; MacMillen, Cal.3d at pp. County Nevada v. supra, Cal.3d at
The third case cited in White—the Court’s Supreme Griswold decision— involves the federal “penumbral” to married applied couple’s right to use contraceptives. White refers Justice Goldberg’s
34
standard
interest
a
state
concurring
“compelling”
which discusses
opinion,
Davis,
(White
supra,
liberty.”
v.
for
encroachment on
“significant
personal
a
Connecticut,
776,
supra,
at p.
381 U.S.
497
13
Griswold v.
citing
Cal.3d at p.
J.).) The standard is
(conc. opn. Goldberg,
at
pp.
L.Ed.2d
522-523]
[14
(1959)
L.Ed.2d
U.S. 516
City
[4
from Bates v.
Little Rock
361
borrowed
480,
412],
the Advancement of Colored
a National Association for
80 S.Ct.
aspect
as an
involving
disclosure case
membership-list
“privacy”
People
Amendment. Justice Gold
First
by
freedom association protected
majority
the views of three justices.
concurrence
berg’s
represented
interest”
“compelling
does not
by
adopt
written
Justice
opinion,
Douglas,
Connecticut,
(Griswold
supra,
pp.
As have observed “pri- from the federal emanating penumbral interest” standard “compelling cites, it our decision authority decisions. Based on its vacy” language to right constitutional signifies only White that some of the state aspects action freedom government impacting obvious privacy—those implicating state “compelling and association—are accompanied by expression interest” standard. lan- use interest” “compelling
Some of our decisions White following to less balancing scrutiny others on tests intense guage; rely giving appear context, i.e., the kind of privacy interests. The particular specific nonprivacy and any interest involved and the nature and seriousness of invasion interests, Where the analysis. remains factor in the the critical countervailing to personal case of an interest fundamental involves an obvious invasion freedom to from sterilization or the autonomy, e.g., involuntary freedom familial interest” must be pursue relationships, “compelling consensual If, contrast, privacy privacy to overcome vital interest. present central, general balancing interest is bona fide tests dispute, less employed.11 above, of a every
For the reasons stated we decline to hold that assertion I, 1 by “compelling interest under article section must be overcome 11See, Court, (right e.g., Superior supra, pages Schmidt v. 48 Cal.3d familial 389-390 25; park excluding persons under no not violated mobilehome rule reference interest;” interests); against “compelling appears competing court balance interest Beach, 948, page 41 Long City Employees City Long Beach Assn. Cal.3d state (polygraph testing government employees city; equal case decided on footnote protection grounds; “compelling governmental interest” reference footnote dictum Cal.Rptr. privacy); Doyle Bar constitutional v. State Cal.3d records; (State subpoena Bar for clients’ interest “is P.2d trust account 942] disclosure”); against Conservatorship Valerie N. absolute but must be balanced the need (right P.2d elect sterilization Cal.3d 760] constitutional must contraception; method of restriction on exercise of fundamental justified by power regulating that is the state in “compelling police interest within
35 unambig- of the Initiative Privacy interest." Neither nor language history far-reaching such a standard. In view the and multifaceted uously of supports of to right impermissible character such a standard privacy, imports adjudication. of inflexibility into constitutional process remains, however, There of standard to be legal the correct question our on assessing privacy. claims for invasion of Based applied plaintiffs’ Initiative, in the review we will describe Privacy of history remainder of this of the cause of action for violation of part elements might state constitutional to and the be asserted right defenses privacy such a against cause of action.
(1) A legally protected privacy interest
The first essential element of a state constitutional cause of action for invasion of is the privacy protected identification of specific, legally denominator, their privacy interest. Whatever common interests privacy best assessed and in separately right Just as the is not privacy context. absolute, interests do privacy encompass all conceivable assertions of individual rights. Legally recognized interests are of two privacy generally (1) classes: interests or precluding dissemination misuse of sensitive and (“informational (2) confidential information interests privacy”); making intimate personal or conducting personal decisions activities without observation, intrusion, or interference (“autonomy privacy”).
Informational the core value furthered the Privacy Initiative. Davis, (White v. 774.) 13 A Cal.3d at of p. class information particular when private well-established social norms the need to maxi recognize mize individual control over its unjustified dissemination and use to prevent embarrassment or Such indignity. norms create a threshold ex reasonable observes, pectation in the data at issue. As the argument ballot 505, subject”); People 431, (1983) Stritzinger 34 Cal.3d Cal.Rptr. 511 P.2d [194 668 738] interests; (patient’s privacy interest psychotherapy yield must compelling state detection prevention of child interest); abuse constitutes such an Reproductive Committee to Defend (1981) Rights Myers 866, 779, Cal.3d 252 625 Cal.Rptr. P.2d 20 A.L.R.4th [172 1118] abortions; (invalidating restrictions state funding applying employed Bagley standard 499, (1966) 401, v. Washington Township Hosp. Dist. 65 Cal.2d Cal.Rptr. 505-507 [55 409], case, political P.2d speech to rights protection); City equal Santa 539, 436, (1980) Barbara v. Adamson 27 Cal.3d Cal.Rptr. P.2d 12 A.L.R.4th (right blood, to live in an family 219] alternative with persons marriage, not related adoption; abridgement justified by need); must be Municipal compelling public Loder v. Court 17 Cal.3d (no Cal.Rptr. privacy right P.2d 624] record; crime; expungement of arrest reference to public reporting common law interest in “compelling interest”); reference to Valley v. Superior Bank Nevada Court 15 Cal.3d (bank 656-657 [125 542 P.2d expectation customer has reasonable 977] affairs; privacy in bank records referring customer’s financial must against litigant’s right facts). balanced civil to discover and business government California constitutional privacy “prevents interests from [1] collecting stockpiling unnecessary information about us and from [2] misusing information gathered one purpose order (Ballot supra, at Argument, serve other embarrass us.” purposes *32 Initiative. The ballot the Privacy is also concern of Autonomy privacy certain safeguarding refer to the federal constitutional tradition of arguments in the of interference form government intimate and decisions from personal 27.) But do (Ballot supra, p. they and laws. penal regulatory Argument, freedom of action that not create of purport personal unbridled or agencies be either may against government private vindicated lawsuits entities. or persons of norms informa- safeguard particular type
Whether established social interven- tion or from or protect specific public private decision personal governing is to the usual of law positive tion be determined from sources development, law constitutional privacy—common development, enactment, Privacy statutory and the ballot arguments accompanying Initiative. Privacy Expectation Reasonable of of
The second a state cause essential element of constitutional on privacy action invasion of is a expectation for reasonable privacy plaintiffs part.
“The extent of interest of the circumstanc- privacy] independent [a Gonzalez, (Plante es.” Even when a supra, legally 575 F.2d at p. cognizable interest is factors affect privacy present, may person’s other im- notice of an reasonable For advance expectation privacy. example, “ dignity action serve to ‘limit intrusion pending may upon personal [an] ” Palmer, (Ingersoll that would security’ regarded otherwise serious. supra, checkpoints].) 43 Cal.3d at use of p. [upholding sobriety addition, customs, surrounding settings particu- practices, physical (See, lar activities create inhibit expectations privacy. reasonable Whalen, e.g., [reporting 429 U.S. at L.Ed.2d at p. 75] law government was and “not prescriptions established supported from a of other invasions of meaningfully distinguishable unpleasant host care”]; that are associated with facets of health Fraternal many Police, 1987) (3d Order Cir. F.2d Lodge City Philadelphia No. 5 v. 105, 114 invasion that applicants promo- of privacy requirement [no tion to unit information police part disclose medical financial special historically “has been because awareness that such disclosure applicant in similar required by those positions”].)
A founded “reasonable” entitlement expectation objective (See, broadly based and norms. Rest.2d widely accepted community e.g., 652D, Torts, supra, com. c afforded to the plaintiff’s protection § [“The interest his must be relative the time and place, customs of to the his occupation and to habits of plaintiff neighbors fellow citizens.”]
Finally, presence voluntarily absence of to consent opportunities activities impacting interests affects obviously expectations (See 2(a)(1), ante.) participant. pt. *33 privacy Serious invasion interest
No could if community function intrusion into realm of every private action, trivial, no matter how rise slight or to a cause of action for gave invasion of not privacy. “Complete does exist this world privacy except desert, and anyone who is a hermit must and endure the expect ordinary (Rest.2d incidents is community life of which he a part.” Torts, 652D, supra, c.) com. must § Actionable invasions privacy nature, sufficiently serious their and actual scope, potential impact or constitute an breach of the egregious social norms underlying privacy Thus, right. the extent and of the invasion is an gravity indispensable consideration in assessing alleged invasion of privacy.
c. to a State Privacy Constitutional Cause Action Defenses absolute;
Privacy concerns are not they against must be balanced Bar, 20; other important (Doyle interests. supra, State 32 Cal.3d at p. Wilkinson, supra, 1046.) at act which has Cal.App.3d p. every “[N]ot some impact on personal privacy invokes the protections of Constitu [our .... court should not play tion] card trump unconstitutionality [A] to protect absolutely (215 every assertion of individual privacy.” Cal.App.3d at p.
The diverse and somewhat character amorphous privacy right necessarily requires privacy interests be identified and specifically carefully or compared and competing countervailing nonpri- privacy interests in vacy test.” The “balancing diverse comparison balancing of interests is to the central privacy of both common and consti- jurisprudence tutional law. constitutional of the state interest not a violation of a is privacy
Invasion Legiti- interest. justified by competing if the invasion is privacy beneficial socially authorized and legally derive from mate interests is importance Their relative entities. private activities of government public of a particular central functions their proximity determined is to be to be an invasion alleged Conduct private enterprise. important it legitimate the extent which furthers evaluated based on ante; supra, pp. (See Ballot 2(a), Argument, pt. interests. competing 26-27.) interests, the plaintiff countervailing on with defense based
Confronted and use of the availability of demonstrating undertake the burden measures, conduct alternatives the defendant’s safeguards, protective (Whalen, supra, 429 intrusion on interests. that would minimize the 498-500]; Railway Labor Skinner L.Ed.2d at pp. U.S. at 600-602 pp. Assn., at pp. fn. L.Ed.2d 489 U.S. Executives’ information limited and confidential 665-666].) For if is example, intrusion legitimate have a to those who shielded disclosure carefully except from hand, know, if sensitive On the assuaged. other need concerns are nonexistent, safeguards slipshod information and feasible gathered readily accomplished can be legitimate or if defendant’s objectives interests, the prospect little or no impact alternative means having *34 is enhanced. of actionable invasion of agency. not government a organization, NCAA is a private of norms strength importance of the relative
Judicial assessment opposed in of differ cases countervailing may private, interests action. government,
First, areas basic power of coercive presence government the pervasive citizenry the freedoms of the dangers life greater of human typically poses has the only ability “The government than by private actions persons. actions, it has its through the populace more than a limited sector of affect taxes, over social form and control grants, both economic power, agencies, law enforcement through programs, physical power, welfare private most powerful that of the beyond which are of coercion far capable the Con Too Much Abandoning Asking Is State Action actors.” (Sundby, Const.L.Q. Sundby].) 142-143 (1989) Hastings [hereafter stitution? Second, and alternatives has greater “an individual choice generally (Sun dealing government.” than when with actors dealing private usually individuals Const.L.Q. 143.) at p. Initially, dby, supra, Hastings landlords, others with vendors and have choice range among employers, sure, in the market- whom deal. To be they varying degrees competition even in limited or no place may broaden or narrow But cases of range. to the to seek a competition, groups may Legislature individuals and turn as undesirable. statutory remedy against regarded business specific practice State governments regulation and federal extensive of all routinely engage our has unre- aspects business. Neither nor been Legislature Congress entities that are sponsive nongovernment concerns based on activities of Code, 432.2, (See, affect the perceived e.g., Lab. subd. privacy. § (a) shall employer any applicant employment demand or or require [“No prospective employment or to submit to or take employee polygraph, lie detector similar test or examination as condition of or employment continued U.S.C. employment”]; [regulating use private employer § examination].) of polygraph
Third, conduct, private voluntary the activities of associations particularly of persons, carries its own mantle of constitutional the form of protection freedom of association. Private a right, govern- citizens have not secured to ment, to communicate and associate with one another on mutually negotiated terms and conditions. The state argument recognizes ballot constitu- tional “our privacy protects freedom communion and our freedom part to associate with the (Ballot we choose.” people Argument, p. Freedom of association also protected by First Amendment and extends to legitimate all organizations, (Britt whether popular unpopular. Superior Court Cal.3d 574 P.2d 854 [143 Tribe, 766]; 18-2, see (2d 1988) also American Law Constitutional ed. § rationale [noting of federal constitutional state action requirement protects choices, “the freedom to make certain such as choices persons with whom which is under [one “basic any conception associates]” liberty”].)
These generalized differences between action public private *35 If, affect rights privacy differently different contexts. a example, plaintiff a claiming of the violation state constitutional privacy was able to freely choose among or competing public private entities obtaining service, access to some her opportunity, commodity, or his privacy or contrast, interest may weigh less in the if balance. a public private item, entity controls access vitally to a it a have necessary may correspond- ingly greater impact on the rights of those with it deals. privacy whom
Summary Elements and of Defenses Initiative, Based on our of the review hold Privacy we that a plaintiff of alleging invasion in violation state privacy constitu tional privacy (1) must establish each of a following: legally interest; of (2) expectation privacy a reasonable protected privacy circumstances; invasion constituting a serious defendant by conduct of privacy. case given in a is present interest legally recognized
Whether a privacy (Cf. Publishing Gill Hearst the court. by of law to be decided a question Harcourt, Brace, 229; Co., Jovanovich supra, Johnson v. Cal.2d cases].) law Cal.Rptr. 370] [common Cal.App.3d circum- a expectation privacy has reasonable Whether plaintiff invasion of a constitutes serious whether defendant’s conduct stances and material facts If the undisputed mixed of law and fact. privacy questions on impact or an insubstantial expectation no reasonable of privacy show interests, as matter of adjudicated of invasion bemay question law. negating case by in a constitutional privacy
A defendant state may prevail as an pleading proving, just by of the three elements discussed defense, it justified because that the invasion of affirmative The plaintiff, more interests. countervailing furthers one or substantively turn, show- countervailing interests defendant’s assertion rebut a may which conduct alternatives defendant’s there are feasible and effective ing course, may a defendant also interests. Of have a lesser impact consent, hands, etc., defenses, unclean e.g., available other plead prove relief the claim and the in view of the nature of be appropriate requested. or an alternative countervailing interest
The existence of sufficient law for court. questions threshold present course conduct of alternatives feasibility interests and strength countervailing relative material facts fact. in cases where Again, mixed of law and present questions bemay appropriate. as a matter of law adjudication are undisputed, Privacy to This Case the Elements Invasion Application 3. Appeal uphold NCAA the decision of the Court of challenges as violation its injunction against drug testing program ing permanent record, review the We will therefore privacy. the state constitutional right court, of a of the elements trial findings light made including them. we have discussed just cause of action for invasion of *36 impacts testing that NCAA’s drug program Plaintiffs assert correctly First, athlete’s urina- monitoring an by interests. legally protected privacy tion, by function that law bodily on a human the NCAA’s intrudes program and in observers. social custom is and without generally performed private Assn., (Cf. U.S. supra, Skinner v. Executives’ Railway Labor Code, 659-660]; or maintenance L.Ed.2d Pen. 653n § [installation misdemeanor].) mirror restroom two-way permitting observation of Second, urine and about his by collecting testing and athlete’s inquiring substances, or her and the NCAA obtains ingestion medications other body information about the internal medical of an athlete’s state regarded (Board Quality as and Medical Assurance confidential. personal v. Gherardini 93 Cal.App.3d per 55] [“A intimate, son’s medical is an area of more more profile privacy infinitely in than personal recognized and nature areas quality many already judicially Wilkinson, 1048.) see protected.”]; also Cal.App.3d Observation of urination and medical disclosure of information cause embarrassment to individual athletes. The first implicates autonomy priva- in cy—an interest from freedom observation a function rec- performing ognized by social norms private. as The second informational implicates privacy—an interest limiting disclosure of confidential information about But, noted, condition. have bodily as we these privacy identification of end, interests is the beginning, analysis. of the a. Freedom From During Observation Urination
(1) Reasonable expectations privacy The observation of urination—a human excretory function—obviously implicates interests.12 But the reasonable expectations plaintiffs (and other athletes) student must be private urination viewed within the context of intercollegiate athletic normal activity condi- tions under which it is undertaken. nature, athletics,
By its participation intercollegiate particularly events, highly competitive postseason involves close championship regula- tion and scrutiny physical bodily fitness and condition of student athletes. Required physical examinations (including urinalysis), special habits, diet, fitness, regulation of sleep other activities intrude significantly interests are college routine of a athlete’s aspects life not shared by other students or the Athletes fre- population large. quently disrobe presence one another and their athletic mentors and culture, 12In our generally regarded private, urination is perhaps but not absolutely private in all settings. by conceivable “Men urinate public side side in without restrooms little, no, though very embarrassment even there is attempt partition and often the urinals. offices, physicians’ In hospitals and samples urine both are generally men and women nurses taken female prescribed technicians under those conditions similar to (Dimeo (7th 1990) Cir. [athletic rules].” F.2d Griffin *37 readily are bodily parts where settings private locker room assistants information about also exchange sex. They others of same observable by coaches, trainers, and with medical treatment condition and their physical a “need know.” who have others demands, carries athletic participation its
As a result of set unique expectation reasonable diminish the athlete’s effectively norms that it social condition, external. internal and or her both bodily in his personal privacy involving testing drug programs practical reality, of this recognition “privacy” Amendment Fourth have survived routinely athletic competition visible, and well- a highly pervasive, has become Drug testing challenges.13 intercollegiate of athletic accepted part competition, particularly reasonably It is a at (Schaill, supra, p. 864 F.2d levels. professional athlete, in advanced one engaged life of an especially expected part temptations corresponding where the stakes and of competition, levels high. dimin- further expectation
The student athlete’s reasonable notice testing program—advance the NCAA’s drug ished two elements of come as A test does not drug testing. and the to consent to opportunity disclosure of match. Full at the end of a surprise postseason unwelcome is made at the testing procedures NCAA’s banned substances rules season, competition postseason before the long of the athletic beginning disclosure, in- testing may place. Following which take during drug Thus, athletes obtained. of each athlete is formed written consent student drug testing the NCAA’s program information regarding have complete selected they may or refuse before are afforded the to consent opportunity for testing. sure, testing disqualified drug refuses consent
To be an athlete who athlete’s not render the But this does from NCAA competition. consequence Athletic par- sense. meaningful legal testing involuntary consent to society necessity benefit or an economic government is not a ticipation of the state constitutional has decreed must be to all. One open aspect Corp. County School Tippecanoe Kross v. Schaill leading example, in the case 13For consisting in 1988) (7th appeals upheld program F.2d the federal court of Cir. athletes, of ‘communal noting the “element drug testing high school part of random examinations physical and central role of participation” inherent in athletic undress’ (Id. Griffin, supra, F.2d Dimeo 1318.) (See also p. training athletic evaluation. generally noting reduced drug testing racing participants, [upholding of horse 1986) (3d Cir. v. Handel F.2d Shoemaker general]; privacy expectations athletes in Washington, supra, University [same]; O’Halloran 1141-1143 A.L.R.Fed. 405] 997, 1005, (9th 1988) [upholding grounds Cir. 856 F.2d F.Supp. on other revd. physical examina noting undress” and routine program, “communal NCAA’s tions].)
43 (Ballot “our to associate with the we choose.” people freedom in Argument, supra, organized activity at carried p. Participation any by private, nongovernment organization necessarily willingness entails one in forgo rights assertion of individual otherwise have order might the receive benefits of communal association. have
Plaintiffs and Stanford no legal right intercollegiate to participate Interscholastic Federation (Cf. athletic competition. Steffes California (1986) 355].) Their so ability to do Cal.App.3d their adhere com- necessarily willingness to arrive at and depends upon their mutual understandings mon their competitors regarding sporting institutions, NCAA endeavor. The member democratically governed by its institutions, Stanford.14 including Acting collectively, those Stan- including ford, rules, If, make the and including drug those use regarding testing. rules, the knowing and plaintiffs game, they Stanford choose play have, act, by social and legal voluntarily convention and fully acquiesced application those rules. To view matter otherwise would impair all rights associational NCAA institutions and athletes.
(2) Seriousness invasion Although diminished the athletic by setting and exercise informed consent, plaintiffs’ privacy interests are rendered de minimis. thereby act, monitor, Direct observation of urination aby an intrusive to be appears cases, to the unique NCAA’s in- Other decided program. including those methods, volving athlete have drug testing, involved invasive testing less Dimeo typically (See, unobserved urination in e.g., a restroom stall. Griffin, supra, “(relative) F.2d p. specimen given [urine privacy” toilet stall with representative standing observing but not by urination]; Schaill v. Tippecanoe Corp., Kross County School urination; F.2d direct visual [no observation of monitor stands outside stall to listen for normal sounds of check urination and to tempera- ture of hand].) sample NCAA’s use of a particularly intrusive monitored urination further procedure justifies even under inquiry, condi- tions of decreased expectations privacy.
(3) Competing interests To its justify intrusion on student athletes’ diminished expectations of privacy, NCAA two asserts countervailing interests: safeguarding drug 14The NCAA’s program adopted by, was has been continued with of, institutions, overwhelming support public NCAA’s member both and private. Al though Stanford join plaintiffs has chosen to challenging testing program NCAA’s court, does any record not reveal opposition program through Stanford-initiated to the channels, established NCAA either at the NCAA’s annual conventions or other NCAA setting. the health competition; protecting athletic integrity intercollegiate the NCAA is to athletes. The central safety purpose of student to “rules of the conducted pursuant athletic events promote competitive *39 and the NCAA creates way, own this game” by membership. enacted its vigorous, high- necessary promote the “level field” playing preserves level, in intercollegiate sports. and nationwide competition or of objectives not that purpose
Plaintiffs and Stanford do contend bad faith Nor do attribute they NCAA are to law or contrary public policy. of guardian its role as “the to the NCAA or challenge important motives competition. athletic American tradition” of intercollegiate important [the] Okla., fn. U.S. at (NCAA Regents p. Board Univ. of is, doubt, and 84].) a visible highly The NCAA without p. L.Ed.2d does, institution, high-level on monopoly as it a virtual holding, powerful in Although United States. athletic intercollegiate competition NCAA, to numer- subject like and private organizations, other businesses our seen fit to interfere Legislature neither nor has regulations, Congress ous functions, testing in area of drug whether general rulemaking its Therefore, and objec- the NCAA’s stated motives regard other fields. we tives, pre- but with hostility skepticism, “respectful not with intense (Ibid.) sumption validity.” ban to enforce a the NCAA’s decision
Considered its light history, reasonably testing program use means of a by drug on the of drugs integrity maintaining further its interest legitimate calculated to As one author observed: intercollegiate “[Athletic] athletic competition. done the best job decided on the basis of who has competition should be abilities, who her not on basis of utilizing and his or natural perfecting Athletics, in Drug Drug Testing has (Zemper, the best pharmacist." West, edits., 1991) & (Coombs and Issues Testing: Options incident specific The NCAA began study drug testing response It Pan American Games. athletes at the probable drug ingestion by amateur sporting organizations— followed other established and respected promul- Committee—in and International Olympic the USOC principally And, the NCAA its drug testing program. although and gating enforcing others, its beginning it did not so Before blindly. followed the lead do its that showed study—one the NCAA commissioned own testing program, Other studies drugs use of student athletes. significant widespread by trainers, record, testimony physicians, included as well as from extensive, substantial, others, if use student athletes. drug confirm to student athletes before warnings advance notice Despite tested in first two of the athletes program began, percent approximately use.15 years drug were declared because of operation ineligible use, But be more may whatever the incidence of provable drug perception perceived If enhance athletic than substances are potent reality. particular (whether or exter- student feel internal performance, athletes pressure nal, overt) minimize A serves to drug testing program subtle or to use them. use will be at least some pressure providing assurance result, significant detected and the user As it provides disqualified. themselves, direct to the allowing benefits student athletes them concen- trate on the merits of their task undue concern about loss of athletic without limited competitive edge. These benefits offset the impact *40 imposed by prospect testing. of
There in was evidence the record certain kinds of ample drugs—such as anabolic steroids and athletes to amphetamines—are by some perceived enhance athletic State performance. Among findings, Michigan other showed University study that 69 of the student athletes who percent reported taking steroids and those admitted percent taking amphetamines doing so “to athletic own Dr. David improve Plaintiffs’ performance.” expert, Lowenthal, wrote in “In 1985: efforts to rational spite physicians’ provide and individual therapy for and patients warnings healthy partici- despite caffeine, pants antiin- sports, salicylates, nonsteroidal consumption alcohol, steroids, . . flammatory drugs . anabolic and amphetamines improve athletic is performance rampant.” steroids,
As to anabolic Dr. Lowenthal commented: “The use of these athletes drugs by has now reached . the United alarming . . proportions. States, anabolic steroid use spread has from athletes to college professional and high school athletes. It ... would be to determine extremely difficult the number of athletes who use anabolic Much steroids different sports. information this area comes from users from former informal [and] surveys. It has been and suggested between 80 cent of male per bodybuilders and weight lifters and level national international use discus, these agents during training. Use hammer among shotputters 15Contrary plaintiffs’ argument, testing we do not regard dmg results of after the NCAA began announced and its as program only persuasive drug evidence actual use itself, student ignore athletes. Plaintiffs program self-evident deterrent effect of the particularly competitive in the context of highly sports activity. drug Once a program effect, formally announced and in athletes who wish to avoid the disastrous effects disqualification have strong ingesting incentive to prohibited refrain from substances. Indeed, possible yardstick dmg one testing program accompanied of a advance consent and publicity percentage dmg is a of positive findings test that starts low and continues either measured, at the same level downward. so program When the NCAA’s is successful. has of anabolic steroids The use javelin comparable. throwers probably competitive swimmers and other to include spread players, football rapidly athletes, as well athletes.” noncompetitive in testimony and opinions his written findings Dr. Lowenthal confirmed views, the testi- different expressed at trial. other
given Although experts record, uncontradicted light supplies considered entire mony, substantial, universal, that the perception evidence of though perhaps athletic drugs performance. certain enhance use of athletic competition realities of Finally, NCAA-sponsored the practical is, least a business part, ignored. Intercollegiate sports cannot conducted athletic contests entertainment offering public founded upon use, drug involving fair Scandals rigorous under a rule of competition. of corrup- incentives or other forms like those financial involving improper tion, public. NCAA’s in the reputation eyes sports-viewing impair to: serves program A vigorously pursued drug testing well announced and violators, reducing thereby deterrent would-be significant provide use; athlete tile disclosure of damaging public probability schools, athletes, that fair competition their and the public assure student course, Of these out- athletic events. overriding principle remains *41 integrity in the the NCAA’s overall interest safeguarding comes also serve supra, 943 F.2d Griffin, Dimeo (Cf. of athletic intercollegiate competition. partial in revenues provides interest horse racing 685 financial [state’s appearance of justification participants preserve for drug testing Handel, 1142 F.2d at p. Shoemaker reality competition]; fair the triggers the not known suspicion, is the public’s perception, [“It the horse [drug] testing in conducting state’s interest warrantless strong [in racing industry].”) safety the health and
The NCAA also has an interest in protecting in Contrary NCAA-regulated competition. student athletes who are involved characterization, a mere “naked this interest more than plaintiffs’ intercollegiate The NCAA sponsors regulates assertion paternalism.” events, physical injury athletic which their nature involve risks may athletes, NCAA creates effectively way, and others. this spectators, result, a it drugs. from the use As resulting occasions for potential injury in of those involved protecting safety concern itself with task of NCAA exists for ben- intercollegiate athletic This interest competition. only drug- all events not sporting (including efit of involved persons might injured who athletes but also innocent athletes others ingesting user), as well as the itself. drug sport NCAA’s of the strength to undermine attempt Plaintiffs Stanford find- on the trial court’s arguments of factual based interests with series noted, However, the legal as have were on findings premised we those ings. that the NCAA assumption bears the burden of establishing “compelling interest” its drug testing that cannot be addressed program by any alternative with a lesser on interests. No such impact showing required. Because trial court’s were findings on erroneous premised standard, view the (Lewis applicable legal they judgment. cannot save the (1962) Food Co. v. Fireman’s Fund Ins. Co. Cal.App.2d [24 557]; Smith v. Cal.App.2d Fetterhoff 474]; U.S., Corp. P.2d cf. Bose v. Consumers Union Inc. 466 U.S. 485, 500, 502, 516-517, L.Ed.2d 104 S.Ct. errone- ‘clearly 1949] [“ ” ous’ standard of review does not “finding to a of fact that is apply predicated law”].) misunderstanding of rule of governing Although we could remand this case for reconsideration rules light applicable law, there is no reason to do so. Uncontradicted evidence the record demonstrates as a matter of law the constitutional the NCAA’s validity of program. Without all reviewing advanced arguments by plaintiffs
Stanford, most, all, it is sufficient to if note that based on matters that are immaterial in light of elements of invasion of described above. For example, plaintiffs seek to college dismiss athlete as drug use legally insignificant, to a pointing finding that “athletes do not use drugs any more than college students generally” and another that they use “actually drugs less during athletic season than their com peers.” purported parison between student athletes and other students is college beside point. Student athletes have set themselves from their apart nonathlete peers; noted, we have have they different and diminished expectations of privacy in the is, athletic If or, context. student athletes’ use the absence of be, drug testing could substantial and detrimental to competition or to the athletes, health of student the NCAA has a significant interest conducting a testing program.
Plaintiffs also point trial court that findings none of the NCAA’s banned drugs were “scientifically enhance proven” to athletic performance, noting some controversy among experts certain respecting substances. Plain- tiffs cite no authority imposing “scientific” burden of on a proof defendant case; an invasion of privacy we have located none. Scientific proof this nature would actual require drug use under competitive conditions. This kind of human experimentation would pose risks to life and limb of far greater magnitude than plaintiffs’ Moreover, asserted privacy interest in this case. the existence of continuing scientific about controversy particular or drugs on practices in athletic perceptions can settings be viewed reasonably as dictating caution and prohibition, rather than total deregulation. noted, as
Finally, we have well perception may overpower reality this area. Although the trial court found that coaches and athletes general do there “major problem,” or as a performance-enhancing as drugs
not perceive contrary part perception of a significant is clear evidence the perception confirmed own expert and athletes. Plaintiffs’ some coaches control enforced to made and Rules are often growing. that it was and opined conduct, if it individuals whose numbers of small relatively the behavior of objective. community goal undermine a would widespread, became more perception of a growing because widespread If use became drug athletic integrity reputa edge,” a “competitive users obtained drug thereby The threatened. seriously athletic could competition tion of NCAA its stay principles constitutional privacy state required by NCAA is not (Cf. Griffin, Dimeo v. one. “major” becomes a until a “minor” problem hand addressing public not limited to F.2d at [“[G]ovemment foresight.”].) reveal its want of accidents after serious safety problems maintaining drugs, the NCAA’s list of proscribed Plaintiffs also challenge found, because, “includes substances it as the trial court that it is overbroad premise the factual enhance Accepting which do not performance.” testing drug program. the NCAA’s it is not fatal to argument, plaintiffs’ so-called banning perfor- limited to NCAA’s interests are not Initially, marijuana drugs—such It also street drugs. prohibits mance-enhancing athletic retard probably and which illegal possess are and cocaine—which integrity compet- maintaining interests in The NCAA’s performance. athletes of student safety the health and itive conditions and protecting substances, and dangerous the use of illegal extends to certainly prohibiting whether athletic performance, affect might potentially as well as others or negatively. positively
Moreover, an item- us to make Initiative does not empower the Privacy in the NCAA’s each item retaining desirability review of by-item by plaintiffs interests asserted substance list. prohibited out; assuming testing in which carried the manner impacted by injure competitors may potentially at least some substances that list contains urine of monitored testing, impact thereby justify competition wane depending upon wax or interests does not on plaintiffs’ the number of such substances. caution Initiative Privacy impliedly arguments support ballot *43 of a private, the rules and regulations the kind of wholesale review of
against The Privacy Stanford. and advocated voluntary organization plaintiffs in freedom to “our interest Initiative recognizes specific privacy-related 27). at To (Ballot supra, p. Argument, we choose” associate with the people interest, undertake, a diminished under the guise protecting of a private process enacted the democratic review of the merits of rules
49 mem- would the associational freedom of organization impair organization in a manner to the Initiative itself. contrary Privacy bers purpose argue In accordance with the trial also findings, court’s plaintiffs no NCAA did “its burden of that there are less intrusive carry not proving goals assuring means available to further its asserted fair competition the health of student athletes.” Plaintiffs submit that educa- protecting tion and based alternatives on reasonable feasible suspicion random drug testing. the trial erred
Initially, court the NCAA the burden of imposing on establishing there were no less intrusive means of its accomplishing standard, legitimate objectives. Like interest” “compelling argument that such a “least restrictive alternative” burden must be invariably imposed (1) defendants cases from involve clear derives decisions that: central, invasions of autonomy-based the areas privacy rights, particularly association, of free or expression procreation, government-provided need; benefits in (2) areas of basic human are directed the invasive against conduct of government agencies rather than voluntary organ private, ions.16 izat 16See,e.g., Committeeto Reproductive Rights supra, v. Cal.3d 270 Myers, page at Defend test, element, (applying Bagley including its “no government less offensive alternatives” against discrimination abortions); medical care benefits City Carmel-by-the-Sea, supra, (“less 2 Cal.3d at pages analysis 268-269 drastic means” derived from federal freedom of candidates; speech and applied association cases by political financial disclosure no reference to of proof; balancing burden acknowledged); Superior need for Robbins Court 199, 38 Cal.3d (in-kind 213-214 P.2d welfare benefits [211 695] Assn., recipients general assistance); City see Long Employees also Beach supra, to; page (“less Cal.3d at footnote 12 intrusive means” element issue not referred reached). 506-507, Bagley Both v. Washington Towship, supra, pages City at Cal.2d 268-269, Carmel-by-the-Sea Young, pages rely Cal.3d principally at on Shelton v. 231, 237-238, Tucker U.S. 247], L.Ed.2d 81 S.Ct. First [5 similar Shelton, Amendment freedom of association and expression public cases. In school teachers required by every were law to organization joined money disclose they had or contributed to—social, political, religious, professional, five-year period. Recognizing other—over teachers, state’s interest in occupational competence and high fitness of court law, nonetheless down observing struck scope legitimate that its far exceeded state (Id. concern. 237-238].) at pp. 488-490 L.Ed.2d at stated pp. part: It “The breadth [5 legislative abridgement light must be viewed in achieving of less drastic means for (Id., careful, however, purpose.” same basic p. p. 237].) 488 L.Ed.2d It was observe that a “less might drastic means” analysis applicable in other constitutional contexts: areas, issues, involving “In other different leeway constitutional more administrative has been thought allowable efficiency accomplishing clearly interest increased constitu (Id. tional central purpose. 237].) at p. fn. 8 L.Ed.2d at [Citations.].” Thus, at the roots of government the “least restrictive alternative” lie burden cases one, infringement of fundamental expression freedoms of and association. this those Unlike *44 organization, on a private directed to case imposing
We have been no the burden privacy, of in a decreased involving expectations situation acting under possible the “least offensive alternative” as of its conduct justifying Initia- Privacy history of of language Nothing the circumstances. burden; it. we to impose decline of such justifies imposition tive Moreover, programs by posited plaintiffs—educational the alternatives from in kind and character different drug testing—are and suspicion-based who are persons little effect on Education have testing. random drug listen; are tendencies or addictive not to competitive pressures inclined testing Suspicion-based at benign attempts persuasion. to over likely prevail of suffi- availability use and the visible evidence of assumes reliable observations, which finds neither of the necessary cient resources to make least part also depends in the record. It evidentiary support substantial a situation their competitors, of athletes reporting by on the suspected In these of light other difficulties. with interest and conflicts of fraught factors, to educational adopt compelled the NCAA was not constitutionally of athletic integrity its interests in the to further or suspicion-based programs athletes. of student safety and the health competition by method used this concerns the The case presented by closest question A tested urine they samples. NCAA athletes as provide to monitor of the same sex NCAA official is observed directly athlete’s urination feet Even the diminished away. to seven as the athlete who stands some five include necessarily not setting in a locker room do expectations had functions. Plaintiffs excretory direct and intentional observation circumstances; their under the of privacy reasonable expectation NCAA was therefore was the NCAA’s conduct. impacted by interest urination. monitoring its use of direct justify required evi- substantial the NCAA introduced monitoring, direct support of order avoid can altered or substituted dence that urine samples do so. actually attempted athletes had positive findings athletic com- intercollegiate integrity preserving NCAA’s interest of unal- and accurate but effective requires just testing, petition monitoring necessary If direct tered and uncontaminated samples. it. NCAA entitled to use testing, accurate accomplish (i.e., freedom autonomy interests assertions of cases do not involve: broad-based association), in circumstances expression opposed action freedom voluntary extracurricular in a part participants expectations diminished Shelton, the NCAA’s private entity. and because activity conducted Consistent function, be accorded legally to its NCAA should valid and central purposes stated with “increased purposes those leeway” necessary accomplish kind of “administrative Tucker, 237].) (Shelton p. fn. L.Ed.2d at U.S. efficiency.” *45 evidence, as finding rejected cryptically trial court NCAA’s to ensure monitoring urinating necessary “Direct of an athlete is not follows: Plain- No were to conclusion. sample.” a valid reasons offered this support credible tiffs to point only opinion—also unaccompanied by any scant expert did offer any line of the issue. More not reasoning—on critically, plaintiffs (whether sources) that any evidence from other experts demonstrating or on impact plain- alternative direct with a lesser monitoring significantly tiffs ensuring interests the NCAA’s of accomplish objective would a valid sample.
Trial findings court must be substantial evidence on supported the record taken a evidence—it any as whole. Substantial evidence is not nature, credible, (Kroopf v. Guffey must be reasonable solid value. 807]; Bowers v. Bernards Cal.App.3d Cal.Rptr. (1984) 150 925].) Because Cal.App.3d failed plaintiffs to demonstrate with evidence the substantial presence fully viable alternatives monitoring, they short of their stopped proving case.17 case,
Notwithstanding plaintiffs’ monitoring failure of this direct proof significant remains a drug testing issue athletic and nonathletic cases. Social norms validate the mere distinction between the presence another in or person (such around area where urination place takes room) bathroom locker and the direct and observation of purposeful urination (See act someone Capua commissioned to witness it. specially City (D.N.J. 1986) 643 test under F.Supp. [urine of Plainfield Lifshitz, close surveillance “embarrassing Decresce & humiliating”]; Drug Testing the Workplace 17Justice charges Mosk’s dissent us disregarding the substantial evidence rule with
respect to the trial finding monitoring court’s that direct unnecessary of athlete urination is sample. ensure valid We plead guilty. acknowledges, plaintiffs not As Justice Mosk expert themselves offered no offering analyzing or other evidence viable alternative Rather, monitoring. direct testimony Heitzinger, expert, NCAA’s own Ronald on sole evidence which the purported finding. Heitzinger court base its unequiv testified ocally as only follows: “I have not but up heard of seen where the to screw athletes have tried they their tests so caught. will So really not we recommend that should be there (Italics added.) testing.” observed acknowledged performing testing While he without direct clients, observation at the request Heitzinger of his questioned regarding some was not feasibility any specific testing alternatives impact accuracy process. or their on view, context, In our Heitzinger’s testimony, read acknowledges obliquely when the mere possibility testing monitoring, without direct upholding while at all times the vital importance monitoring accuracy process. satisfy to ensure It testing in the does effective, plaintiff’s burden showing practical, is patently and viable alternative. It permit insufficient Privacy a court to strike privacy right. the balance in favor of the not require Initiative does something fully NCAA to settle for less than effective program. interests, monitor- direct impact greater because of its
Perhaps no decided exceptions, With two drug testing programs. is not used all ing *46 of context in the diminished even monitoring, has direct case upheld drug testing in an NCAA exception—also The first competition. athletic virtually no containing court decision later-vacated federal trial context—is a Washing- University (O’Halloran issues. of the serious analysis of of a ton, involves supra, 479 second F.Supp. p. (O’Connor v. Police after notice consent. officer police probationary 1146, 1149].) Neither N.E.2d Mass. 324 Com’r Boston of to direct monitor- of less intrusive alternatives case considers possibility ing. monitoring alternatives direct
There indeed be intrusive less a valid of insuring the tester’s fully satisfy objective could nonetheless 1993) (Fed.Cir. Department Transp. F.A.A. (See, e.g., Dixon sample. of verify designed tests temperature color and [describing F.3d 803-804 Raab, supra, Treasury v. Von also Employees urine see integrity sample]; Lifshitz, 669]; supra, Drug & L.Ed.2d at Decresce 489 U.S. at p. 144; 227-230 Testing pp. Fay, Drug in the Testing Workplace, p. accuracy insuring while to safeguard similar [outlining procedures us, necessarily we are limited to the record before Because we testing].) to direct intrusive alternatives moni- of less leave further consideration NCAA, and then judgment discretion toring initially if any. future litigation, Treatment and Privacy Medical
b. Interest in Information expectation (1) Reasonable above, medical the privacy interest plaintiffs’
As discussed under the interest is also protectable information treatment and medical However, expectation the student athlete’s reasonable Initiative. Privacy athletic competitive because of nature diminished similarly Organized which it is conducted. super under activity and norms exchange of otherwise continuing competition presupposes vised athletic medical) condition ath (and information physical confidential about trainers, Coaches, necessarily learn intimate team physicians letes. illnesses, condition, medical including bodily details of student athletes’ do not demon taken. Plaintiffs prescribed and medications problems, NCAA, in its capacity sharing similar information strate that elected voluntarily of athletic which have regulator competition plaintiffs risk to presents any greater to participate, privacy.18 (2) Seriousness invasion
Directed and medications (including about specific inquiries personal about birth control circumstances questions pills) potentially stressful of a random drug test are from undoubtedly significant privacy standpoint know,” Without a the NCAA would correspondingly important “reason have no right Again, to demand answers kinds of to these questions. *47 however, the extent of plaintiffs’ privacy by the intrusion on presented in question must considered of both the diminished light expectations in athletes questions, such which are asked and an- routinely swered in the athletic context.
(3) Competing interests Drug testing for multiple substances is a both process. Although complex parties the NCAA acknowledge has used and continues to use the best available methods of laboratory analysis, mistakes are and “false possible positives” can The occur. NCAA’s to athletes inquiries about medications and drugs are to designed ensure in accuracy testing. NCAA maintains will, complete accurate disclosure of these in by matters athletes substances, certain instances and with respect specified explain serve findings prevent embarrassment and distress occasioned further by proceedings. The record supports NCAA’s kinds contentions. These disclosures are reasonably necessary to further the threshold purpose of drug testing program—to protect integrity of competition through medium of accurate testing of athletes in engaged NCAA’s competition. interests this regard adequately its justify inquiries about medications and other ingested substances tested athletes. The NCAA follows extensive procedures test re- designed safeguard sults, including: the numbering of urine specimens, custody chain of proce-
dures, and control of disclosures regarding athletes. Plaintiffs disqualified 18The trial court also found that drug testing NCAA’s program “interferes with the athletes’ to treat themselves appropriate with over-the-counter medications as other students do.” In view of the trial court’s diminished weigh failure to or consider expectations students," of privacy of student athletes when compared with “other this finding Moreover, significance. case, lacks following trial in this the NCAA eliminated from its list of banned substances the sympathiometic drugs amines—the contained in over-the-counter medications. Much of the regarding issue over-the-counter appears medications thus to be stage. moot at this Finally, our review of the portions of the record cited the parties discloses no evidence that the applied drug testing NCAA has either its policy or its ban on the use specified preclude substances so as any obtaining medically athlete from necessary treatment injury. for disease or Plaintiffs have failed to establish an invasion of privacy in the form of interference with medical treatment. manner in which the NCAA no criticism of the
and Stanford offer serious the process athletes the results or interests student protects test drug no in which medical data or instances drug testing. They point the athlete’s than NCAA officials and were disclosed to other persons results college university. own media interest test positive observe that
Although plaintiffs plausibly inevitable, for public held responsible the NCAA cannot be results drug testing results NCAA curiosity. procedures, positive Under established school, which, turn, the athlete. informs are disclosed to the athlete’s only fail to findings. learn of Plaintiffs those with a “need to know” Only positive The uncontradicted precaution safeguard. other feasible identify the NCAA conclusion: points single evidence the record thus of athlete medical information carefully confidentiality safeguards data, NCAA to determine using only eligibility test the same There is interests. athletic accordance its demonstrated competition (Skinner Railway Labor no invasion in the NCAA’s procedure. Assn., fn. pp. L.Ed.2d Executives’ U.S. *48 665-666].) sum, “collecting NCAA is
In and Stanford did not plaintiffs prove misus- and information about stockpiling unnecessary [student athletes] [or] to other or purposes information for one in order serve ing gathered purpose 27.) The (Ballot supra, to Argument, embarrass athletes].” [student (i.e., urinal- testing through drug NCAA’s information-gathering procedure to interests in ysis) enforcing is a method calculated further its reasonably in order to secure fair compe- ban on substances ingestion specified in its and the health safety programs. tition and of athletes participating plain- In the NCAA’s generally upholding drug testing program against blanket or challenge, tiffs’ we intimate no views about the legality whether current testing employees random conducted drug by employers, Employment or for or other kinds of entities. by applicants employment, diverse, athletic are different from settings very intercollegiate complex, are gener- those expectations settings Reasonable competition. condition, training, emphasis bodily physical not diminished on ally and extracurricular inherent in athletics. competition context, Amend- for the Fourth government example, employment ment has against generally unreasonable searches seizures protection more interest interpreted employee job been than require employer drug without performance “drug-free workplace” justify kinds of particular reasonable has been when suspicion. Drug testing upheld or cus- operations, train employment settings—including prison guarding, interests toms risks to inspection—present extraordinary employer public “No from use.19 As one federal court commented: one would employee drug live in want an Orwellian world which the assured government (Amer- America all its citizens.” drug-free urine of by randomly testing (9th Employees, ican Federation Government AFL-CIO v. Roberts Cir. 1993) F.3d
What requirements imposed private California employers constitutional will depend upon application elements and considerations we have discussed the employer’s special interests and the reasonable employee’s expectations prevailing partic- ular We are not employment setting. called to decide such issues upon here.20 Raab, 19Compare Treasury National Employees supra, page Union v. Von U.S. (customs at page L.Ed.2d performance “might endanger [103 workers whose 710-711] integrity or our Nation’s citizenry”; drug testing borders or the life of v. upheld); Skinner Assn.,
Railway Labor Executives’ page pages 489 U.S. at L.Ed.2d at 667] (railroad employees involved in “discharge fraught accidents who duties with such risks injury to others momentary lapse that even a consequences”; of attention can have disastrous drag testing upheld); (9th Railway 1991) Labor Executives’Assn. v. Skinner Cir. 934 F.2d workers; (“safety-sensitive” drug testing 1099-1100 urinalysis upheld); railroad (7th Taylor O’Grady 1989) Cir. F.2d (urinalysis drug testing permissible for prison guards impermissible but prison for other employees with no access to firearms and no opportunity smuggle drugs); (D.C. Cheney National Federation Employees Federal 1989) Cir. 884 F.2d App.D.C. drug testing permissible 610-614 (urinalysis 248] workers, aviation police guards, impermissible workers); counselors but for lab *49 (D.C. Harmon v. Thornburgh 1989) Cir. App.D.C. (urinalysis F.2d 490 [278 382] drug testing permissible Department security for Justice employees top clearance but impermissible general employees). for employment-related 20Three cases involving drug testing have arisen in our Courts of Wilkinson, held, Appeal. In supra, 215 Cal.App.3d the court consistent with the views here, express we right the state constitutional to the of applies to conduct nongovernmental It applied general entities. a balancing uphold test a “reasonableness” to urinalysis drug testing imposed condition applicants employment all for at a publishing condition; Applicants company. given were advance testing notice the was conducted part of a pre-employment physical (Id. 1044-1052.) pp. examination. at In Semore Pool Cal.App.3d 280], Cal.Rptr. upheld against the court a demurrer complaint wrongful discharge for based on employee termination an for refusal to submit to pupillary a eye designed drug reaction test to employee’s measure the Holding influence. right state constitutional was a public policy sufficient to serve as the a basis of suit, wrongful discharge the part court observed that: “The dispute resolution of the depends upon balancing employee’s expectations an against employer’s the needs to regulate (Id. employees 1097.) conduct of its Noting work.” the absence of duties, allegations complaint relating in the employee’s testing to the procedure, or the interest, employer’s required court declined to meager strike balance on the record Finally, before it. in Luck v. Southern Transportation Cal.App.3d Co. Pacific 618], upheld wrongful nonsafety the court a verdict discharge for in favor of a dissenting opinions (4) Response concurring to diversity reflect the colleagues filed our The three separate opinions concurring In her magnitude difficulty. in a of this views case possible inter- with our agreement Kennard expresses Justice dissenting opinion, articulate, we but standard legal Initiative and pretation Privacy judgment direct rather than remand this case for further proceedings would result, in the basic test five of this court concur NCAA. As a justices privacy. of our state constitutional defining scope contrast, on the NCAA the would place In Justices Mosk George both testing pro- its justify drug burden of interest” showing “compelling of the same “com- preferred But their different gram. radically applications Justice George its elusive character. inherently interest” test illustrate pelling drug the NCAA’s low to allow sufficiently finds the threshold imposed of law. even as a matter through unimpeded, testing program pass essence, an interest of he finds the interest” test “compelling require vital less than something one that importance,” “some but hand, Mosk, on the other essential Justice absolutely enterprise. NCAA is high one believes interest” such “compelling step at the outset. tripped up inherent in and confusion continuing uncertainty
We to avoid the prefer multi-faceted interest” test to a application “compelling rigid not, in it could The NCAA this case in the lower courts because lost privacy. justices, court and three Court of superior judges Appeal the views two At reason for its sufficiently program. show a “compelling” in an concluded erroneously least one other court our state has appellate interest test “places case that a drug testing compelling employment than a Fourth Amendment heavier burden on would [the defendant] is judged by which the of a analysis, particular practice permissibility Amendment interests its intrusion on the individual’s Fourth balancing (Luck its interests.” v. Southern against promotion legitimate government Co., will supra, 218 We Transportation Cal.App.3d Pacific *50 (a technician) to a computer of a and after she refused to submit employee railroad installer employee in urinalysis drug part generalized, nonsafety It in interests test. determined sufficiently were efficiency competence drug and and in free work environment (Id. testing. 23-24.) light general our discussion of “compelling” justify drug pp. cases) (which approaches differs the taken in these the elements of invasion of from (which testing sports extracurricular fact-specific and the character of this case involves continuing vitality of these analysis we no of the activity employment), rather than offer privacy, future claims right cases. Like claims invasion of the state constitutional other standards we announce arising subject in the context will be to the elements and employment here, employer, expectations and require which careful consideration of reasonable arising public particular and interests in circumstances. employee, this kind error when we perpetuate continuing “compelling” say in mean There confusion merely “legitimate” “important.” enough or law. We should what we mean mean what we say say. and
Even at the decisionmaking, risk of some in losing degree flexibility constitutional at stake standard that interests carefully weighs pertinent in an ordered fashion is vague to one dominated preferable Because, ambiguous adjective unlike “compelling.” George Justices Mosk, we discern confusion rather than in the language history clarity issue, Initiative this in a Privacy we have restated standard manner consistent with the intent and in voters’ amenable to constitu- application courts, tional adjudication. Our lower as well as the individuals and institu- in our society, tions entitled some from this guidance comprehensible Court, even in areas as abstract as “the to be let alone.”
Justice Mosk’s dissent our assails views on both the law and the facts. The reasons for our interpretations Privacy Initiative and the case law are fully discussed elsewhere in this Our opinion. differences regarding record in this in case are also sections. The dissent explored preceding studiously ignores student athletes’ diminished markedly expectations and the NCAA’s self-evident interests in protecting athletes and athletic from the competition nefarious influence chemical substances. broad, elaborate, Despite the plaintiff-prepared trial findings court, these were not matters of in legitimate factual this dispute case—they arise from uncontradicted evidence presented Drugs at trial. have no in place athletics, intercollegiate where human physical performance at stake and small fractions of time or distance can the difference between spell victory and defeat. As a sponsor athletic the NCAA was well competition, within its legal rights a drug adopting program designed eliminate the actual or potential influence of drugs The dissent’s competitive sports. view that the voters of the State of California somehow used word “privacy” to prevent a private voluntary organization from regulating college in the sports reason, interest of fair competition finds no logic, support social let reality, alone language history of the Privacy Initiative.
Disposition The NCAA’s drug testing program does not violate the state constitutional Therefore, right to privacy. the NCAA is entitled to judgment its favor. As a result of our disposition, we do not decide whether the recognition of a state constitutional these circumstances would violate commerce clause of the federal Constitution.
The judgment of the Court of Appeal affirming the permanent injunction *51 against the NCAA’s drug testing program reversed. This case is remanded
58 NCAA. a final favor entry judgment to direct of with instructions NCAA recover its costs. shall Baxter, J., J., Arabian, Panelli, J., and concurred. J., This casea watershed event
KENNARD, Concurring Dissenting. makes majority opinion of and the in the of the law development privacy, impor Most of jurisprudence. to the evolution major contributions that, tant, will with the of accordance firmly this court establishes today I, 1 section of the Amendment to article Privacy the voters who enacted 1972, constitutional California Constitution state of invasions fundamen governmental as well as nongovernmental applies tal interests. of consti- thorough thoughtful exposition majority provides I majority’s legal basic agree
tutional issue here. principles of the most I on several separately briefly write comment analysis. discussion, and legal explain aspects majority opinion’s of significant consideration, in its disposition careful I cannot why, join majority after discuss, in the As I in view the set forth of this case. shall principles case for I direct Court of to remand this majority would opinion, Appeal trial further consideration court.
I Amendment to the California Con Privacy When the voters enacted 1972, adjudica they stitution set motion new of constitutional phase this have been past years, Appeal tion. 20 court the Courts concept called the broad constitutional apply consider and upon (See, City Employees array e.g., Long to a wide of factual scenarios. Beach 937, 41 City (1986) Long Cal.Rptr. Assn. Beach Cal.3d 943-948 [227 90, examinations]; (1975) Davis 719 P.2d White v. [polygraph 660] [police Cal.3d 773-776 533 P.2d surveillance Cal.Rptr. [120 222] students]; (1990) Co. Transportation Luck v. Southern university Pacific urine]; 15-16 Cal.App.3d Cal.Rptr. [267 618] [collection (1976) 64 829-830 University Porten v. San Francisco Cal.App.3d information].) disclosure academic Cal.Rptr. 839] [unauthorized [134 has addressed the the Courts of Although question, this court not previously concluded Amendment indeed Privacy apply have does Appeal (See, Wilkin nongovernmental e.g., actors as well as entities. against public 194]; v. Times Corp. Cal.App.3d Cal.Rptr. son Mirror 608]; Kinsey v. Macur Porten Cal.App.3d Francisco, 825.) But least University San one Cal.App.3d
59 (Kelso, Right has to Pri- disagreed commentator Constitutional California’s (1992) 327), be vacy 19 L.Rev. and the could not consid- Pepperdine issue not, however, ered until this had until now settled court We have spoken. been to Amendment Privacy the whether the required pass upon question (See grants Superior a of action Court against actors. Schmidt private 370, 389, (1989) Cal.3d 14 48 fn. Cal.Rptr. [open question].) [165 608] Today the all there is a state majority removes doubt as to whether opinion action for lawsuits a of the Amend- requirement alleging Privacy violation ante, sound, ment: there is (Maj. opn., none. This conclusion is and is p. with will consistent revealed the electorate as ballot pamphlet argument accompanying Privacy Amendment when it was to presented the voters their for decision 1972. The argument Privacy favor of the Amendment the official ballot has references numerous pamphlet application of amendment private give To but one parties. example, the argument says, “Each time we for a credit card or a life insurance apply return, license, file a tax policy, interview or job, drivers’ get dossier is and an opened (Ballot informational profile Pamp., sketched.” Stats, Amends, Const, voters, Proposed to Cal. arguments Gen. 7, (Nov. 1972) Elec. 27p. Argument].) Ballot [hereafter Yet, as the majority recognizes, although Privacy Amendment reaches nongovernmental invasions of interests as well ac- government tion, this does not mean that asserted invasions of are to tested be an identical legal standard regardless of whether the defendant is or public private state, The majority actor. properly insists that courts of this assessing alleged invasions of be all privacy, guided above context of the particular case. This necessarily means will legal correct analysis differ depending part on the governmental nongovernmental status of Thus, the defendant. the majority recognizes and law accepts existing that in appropriate circumstances interest compelling standard continues to be applicable governmental invasions of privacy rights, and holds that the compelling interest test must be when the applied interest invaded is ante, 34-35; fundamental to personal autonomy. (Maj. see opn., e.g., pp. 535, 1655, 1660, Skinner v. Oklahoma 316 U.S. L.Ed. [86 1110]; S.Ct. Committee to Reproductive Rights Myers (1981) Defend 252, 779, Cal.3d 1118]; 274-275 625 P.2d Cal.Rptr. 20 A.L.R.4th People v. Belous 71 Cal.2d P.2d 194].) This standard is also (Ballot consistent with the Argument. Ballot Argument, supra, [right abridged “should when only there is need”].) compelling public
But when the actions of a nongovernmental entity person alleged have invaded rights, constitutional majority opinion properly *53 the majority’s Under degree judicial
demands an additional caution. is rights allegedly abridges privacy action that nongovernmental approach, standard; instead, a less interest compelling not tested a necessarily by the will be As scrutiny proper. standard of often rigorous heightened but still for governmen- different majority makes use of standards opinion plain, justified by tal and intrusions on interests nongovernmental privacy range wider generally greater power government, by coercive entities, when our private choice to individuals dealing available freedom in the private sphere traditions of tolerance and associational ante, 38-39; States conduct. Roberts United (Maj. opn., generally see pp. 462, 3244].) Jaycees L.Ed.2d S.Ct. U.S. 609 [82 applies nongovernmental that the Amendment holding Privacy But two actors is the most feature of the significant majority’s opinion. law of additional of the the constitutional aspects majority’s exposition deserve further comment. privacy
First, alleges that a who majority opinion correctly requires plaintiff a invasion must demonstrate reasonable constitutional privacy circumstances, expec- and it characterizes the expectation of tation of as founded on commu- widely accepted based broadly ante, 36-37.) norms. In so nity (Maj. opn., doing, majority properly pp. It focuses on the context in which the interest occurs. invasion however, social applicable that the norms important emphasize, overall, an those of “social created an association or society not norms” 735, (See, (1979) 442 740- industry Maryland Smith v. U.S. practice. e.g., 226-227, 295A, Torts, 2577]; 5fn. L.Ed.2d S.Ct. Rest.2d § c, 63; 1984) 194-195.) (5th ed. pp. com. Prosser & Keaton on Torts p. § association, No establish the entity may param- or other industry, group For society. eters of the reasonable at the expense expectation instance, not, in advance that all an employer may by announcing simply searches, thereby will be defeat employees subject periodic strip will not otherwise reasonable that such searches employees’ expectation norms, occur. of an individual Governing practices social the specific industry, defendant or define whether a has a reasonable plaintiff expectation of privacy.
Second, the once has shown an majority holds that opinion plaintiff interest, defend- legally nongovernmental invasion of a cognizable privacy may justified ant assert as an affirmative defense that its actions are because ante, further they substantively (Maj. opn., interest. countervailing interest, I an must be more than understand majority opinion, interest not itself It that is illegal. necessary that is must be interest proper legitimate organizational organization’s central to purpose case, objective. the interest would be to the “educational comparable this necessity” high assessing court has held is educational appropriate Education, (See, City discrimination under title X. New York e.g., Board 275, 290-291, 363].) Harris U.S. L.Ed.2d 100 S.Ct. cases, In other the interest the “business analogous necessity” (Dothard justification under the Civil Act. v. Rawlinson applied Rights *54 321, 786, 797, 2720]; (1977) 433 U.S. S.Ct. L.Ed.2d U.S.C. [53 addition, 2000e-2(e).) In the method used to advance the countervailing § interest that in results the invasion must tailored privacy be plaintiff’s ante, 44; to serve Treasury that interest. (Maj. opn., Employees see v. Von 656, 685, 710-711, (1989) Raab 489 U.S. L.Ed.2d 678-679 109 S.Ct. [103 1384]; 602, v. Railway Skinner Labor Executives’ Assn. 489 U.S. 639, 665-666, 626-627 1402].) L.Ed.2d [103 109 S.Ct.
II Both the trial court and the Court of determined that the Appeal applicable legal standard for this case resolving was on the National place Collegiate Athletic Association the burden of that a interest proving compelling justi fied the drug testing this program; case was tried on that basis. judg ments the trial court and Court of Appeal, although not consistent with ultimate decision of this court were today, based on law existing decisional Davis, (see, 757, 775; e.g., White v. supra, City 13 Cal.3d Santa Barbara 123, 539, Adamson 27 Cal.3d 610 P.2d 219]), A.L.R.4th and were and good reasoned faith efforts address the difficult very issues presented by this case. Simply this matter was put, tried parties and the courts in good faith on a legal that this theory court now holds to be inapplicable.
The result of the majority’s change the governing legal standard here is court, that the parties fact, and the trial as finder of have sitting not been given full opportunity litigate this matter under the new test. The majority holds as a matter of law that have plaintiffs a legally recognized ante, 39-40; accord, interest (maj. opn., pp. Railway Skinner v. Labor Assn., Executives’ 489 U.S. L.Ed.2d 659-660] and testing [“collection of urine intrudes upon expectations has society Plaintiffs, long reasonable”]). however, as recognized have not been given a fair offer opportunity to evidence of their reasonable expecta- tions of of feasible and effective alternatives a lesser having impact Plaintiffs privacy. should given the chance to evidence present this case argue under the legal test announced today. Defendant too should be afforded the opportunity to testing show that its drug program justified by countervailing interests. view, direct the Court of Appeal this court should
Accordingly, my further consistent this the trial court for proceedings remand case to today’s decision. initial J.,
GEORGE, majority’s I concur Concurring Dissenting. I, the California of article section conclusion that the privacy provision to the actions of respect to individuals with protection Constitution affords (herein Athletic Association Collegiate such as National private entity, I also NCAA), concur governmental entity. after well as the actions of a that, interests important ultimate conclusion view majority’s drug testing comparatively athletic program, served NCAA’s entails as applied minor intrusion interests that program upon (where routinely athletes the context of athletics competitive, intercollegiate examina often regular—and repeated—medical submit required here issue is tions), permis random mandatory, program *55 I, section 1. sible and does not violate the of article provisions dissent, however, I as fashions a novel from the insofar it majority opinion the arising claims under general privacy standard for the evaluation of legal I, 1 (Privacy of article section California Constitution. The privacy provision Initiative) more than 20 years ago, was added to the California Constitution have judicial and for the decades California decisions past generally to the familiar pursuant evaluated state constitutional claims privacy to other constitutional well-established constitutional analysis—applicable well as as to rights, religion, such as freedom and free exercise of speech which a the to which a defendant’s court considers extent privacy—under infringe constitutionally protected actions or intrude upon plaintiffs the relative and “balances” or such “weighs” infringement against interest its justifications nature the defendant’s for importance “compelling” other, less means (taking actions into account whether there intrusive I no which the defendant could achieve its see reason abandon objectives). new this it with the analytical replace entirely established framework and to at least on legal structure fashioned structure by majority, appears, face, its to weaken the constitutional protection afforded California it violation of this by making prove more difficult to past, right. fundamental
I with, I agree To with the conclusion that begin majority’s an individ- of the California Constitution was intended to provision protect ual’s infringement constitutional interest hands privacy against as well As the the ballot private, governmental, majority explains, as entities. demonstrate arguments convincingly Initiative accompanying Privacy govern- that the drafters of the believed that the actions of both provision upon ment and entities private may impinge significantly individuals, protec- that the amendment constitutional proposed provide electorate, enacting well against tion as intrusions. private, public, measure, upon relied the ballot statements thus presumably presum- intended to individuals a shield all ably against unjus- afford constitutional tified whether entities. privacy, public invasions perpetrated by private decades, Over the past two decisions have Appeal numerous Court of concluded, basis, on this that the from privacy provision applies intrusions cited, ante, (see both 18), sources cases and I believe types maj. opn., p. those decisions resolved I correctly agree the issue. with the Accordingly, that the NCAA defeat majority cannot constitutional plaintiffs’ claim simply on basis of the NCAA’s being a rather than private public entity.
Although the majority that the holds constitutional privacy provision entities, it applies private goes on to criticize the lower courts this case “assuming] entities were private subject legal same standards as government agencies with to claims of respect (maj. invasion privacy” ante, 20), opn., that the implying constitutional provision imposes different, and less stringent, standard with regard than to private parties governmental On I entities. this with the point, disagree majority. *56 argument ballot of the support Initiative that Privacy demonstrates
the drafters of the believed provision that overreaching by private actions entities frequently will pose as a risk significant to an individual’s privacy as actions aby governmental entity, intended that the constitutional guar- anty protect an individual’s privacy equally against both of threats. types Although some the circumstances private status a defendant may cause its conduct to pose less of a danger to privacy interests than would the conduct of a public entity—for when there are other example, many private entities, service, offering the identical that do condition their service on the same intrusive other requirement—in the threat circumstances to privacy interests posed private public entities will be In the comparable. case, present for example, the impingement upon the privacy interest of the student athletes would be no different if the drug testing program, instead of being NCAA, instituted and administered had been established and run by an adjunct view, of the state In Department of Education. my significant consideration is not whether the actor is private public entity, but rather the nature and extent of the intrusion upon privacy resulting from the challenged conduct and the nature strength justifications of the that supporting conduct.
64
II legal of the standard applicable that the issue suggests The majority “of first question claim is a privacy of a state constitutional evaluation and, ante, 15), for that (maj. perhaps court” impression opn., this reason, law of the common exposition undertakes a majority lengthy the federal tort and discussion of development invasion-of-privacy entirely unprece- of an promulgation decisions as to its privacy prelude under the state consti- framework for the resolution of claims legal dented privacy provision. tutional view, standard governing
In my majority, maintaining legal has is a first impression, state constitutional claims question (1975) 13 Cal.3d court. In White v. Davis prior misread the decisions of this 94, 757, 222], court to the first decision of this 533 P.2d Cal.Rptr. 775 [120 our court a claim under the constitutional privacy provision, address state “makes Privacy held that the ballot Initiative specifically statement into all incursion prohibit that the amendment does not purport clear justified by must be but rather such intervention individual cases, added.) over the 20 (Italics past compelling Subsequent interest.” in refer provision have this years, upon relied interpretation basis for applicable to the interest standard as ring repeatedly compelling under the California various measures evaluating constitutionality of (See, City Long Assn. Long City Employees clause. Beach v. e.g., 90, 937, 660]; 948, 12 P.2d (1986) 41 Cal.3d fn. 719 Cal.Rptr. Beach [227 143, N. 40 163-164 Conservatorship Cal.Rptr. Valerie Cal.3d [219 505, 387, 760]; 34 511 Strizinger (1983) P.2d Cal.3d People [194 431, 738]; (1980) 27 P.2d Barbara v. Adamson City Santa Cal.Rptr. 436, 219]; Loder A.L.R.4th Cal.Rptr. Cal.3d P.2d 553 P.2d Municipal Court Cal.3d of the ballot 624].) language view of rather clear pamphlet, *57 in in alleged the interest applicability evaluating of standard compelling (see, e.g., City Carmel-by-the- rights of other constitutional fringements of 1, 466 225, 259,263-266 2 P.2d 37 Young(1970) Sea v. Cal.3d Cal.Rptr. [85 activities]; Woody in v. People [right engage political A.L.R.3d 1313] 69, 716, of (1964) 394 P.2d 61 Cal.2d 718 Cal.Rptr. [freedom [40 813] in this court’s consti repeated and the reference to this standard religion]), decades, I believe there is no tutional decisions over the two past late date. the interest at this justification standard jettisoning compelling Furthermore, compelling in view the abandonment the my majority’s unwarranted, the to achieve unnecessary interest standard is not but only aside the decision cast majority’s objectives. majority’s apparent interest have arisen from its concern with the compelling standard appears case; majority lower in as the courts’ of that standard the application present notes, im- the lower the interest standard as interpreted courts compelling upon an burden of the posing extraordinarily heavy justification proof agree NCAA the I with the validity drug testing to establish of its program. that the lower courts erred in such a burden majority heavy upon imposing NCAA, but, view, the in in understanding the error lies those courts’ my standard, of the not the of the application compelling viability interest standard itself. ante,
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The of rejects application majority, privacy constitutional evaluating as the for state balancing test standard that, all framework from legal new entirely claims and instead fashions decision of this state no constitutional appearances, precedent any past has (1) three consists of legal other new framework jurisdiction. “elements,” a matter establish as threshold plaintiff distinct which a must ante, that (see 39-40), (2) of defenses” variety a “affirmative maj. opn., pp. ante, (see 40), (3) a maj. opn., p. a defendant may plead prove ante, 40). (see maj. that make rebuttal showing plaintiff may opn., defenses, elements, and rebuttal the substantive content of Although the majority the new “cause action” devised by material into of incorporated taken into account traditionally all relate to that courts have considerations a of conduct violates determining challenged whether or course practice set I that the structure rigid legal state constitutional of believe privacy, issues forth ill-suited to the resolution of constitutional by majority is and, if will reduce the that has been faithfully applied, inevitably protection view, be) (and, in the constitutional my should continue to afforded privacy. that a plaintiff sets forth three “elements” majority initially separate any justification
must establish before a defendant is to demonstrate required interest; “(1) for a a reasonable legally its actions: protected privacy circumstances; defendant in the conduct expectation ante, 39-40.) (See constituting maj. opn., pp. a serious invasion privacy.” Past a always required plaintiff state constitutional decisions have demonstrate, matter, has a that the conduct intruded threshold defendant’s constitutionally a a infringed protected”—indeed protected upon “legally interest, new cause and thus the first “element” of the —privacy majority’s embodied elevating action the considerations unobjectionable. second and “elements” cause action—whether the third of the new under a plaintiff expectation privacy,” the circumstances had “reasonable privacy— and the the defendant’s invasion of the plaintiffs “seriousness” of a into must established before independent requirements always be actions, however, defendant its required provide justification ever is has, view, introduced an undesirable and unfortunate majority my that, if inflexibility faithfully applied, into constitutional analysis go to bar claims that forward. likely permitted should properly factor, With it is regard privacy” unques- “reasonable expectation defendant, true that a advance notice of course tionably giving proposed conduct, generally plain- will decrease of intrusion degree upon would were no notice and it is also true given, tiff’s result such contexts, that, course conduct many given consent to plaintiff’s *59 Thus, eliminate were the NCAA any potential example, concern. for in a to announce advance that athlete who wished to be considered for on a urine place “Drug-Free undergo a All-American” team must consent to test, an athlete who chose to such and consented to the recognition seek announced would have no for subse- drug testing regimen basis presumably quently asserting a violation his her constitutional of privacy. instances, however, In other even a defendant in advance when announces its intent to a engage infringes upon conduct that potentially interest protected by the state constitutional and elicits provision, plain- conduct, tiffs with regard consent to such it will not follow necessarily a constitutional to the challenge conduct should be dismissed out properly hand. For even if a example, advance notice university provides applying (or students that sell) it intends to even disclose to business perhaps entities unaffiliated with the university the confidential information provided forms, by students their application students consent to requires such disclosure aas condition of their having considered applications it university, at all clear that a student who submits an application should be barred from use challenging of the information university’s that, a unrelated purpose to the application ground on the under the process circumstances, the (Cf. student has no reasonable of privacy. expectation Porten University San Francisco Cal.App.3d 839].) even if an Similarly, discloses before employer hiring employee that it intends to engage visual surveillance of the employee restrooms and all requires consent to surveillance a employees to such condition of employment, state constitutional to such privacy challenge that, conduct would not necessarily founder ground view of the consent, explicit warnings had no reasonable employees expectation Thus, of privacy. although issues of advance notice and consent unques- tionably relevant to a consideration of the nature and severity of the conduct, intrusion upon resulting from a defendant’s “reasonable not, view, expectation privacy” factor should my be transformed into distinct “element” that a plaintiff invariably must establish before a defend- can ant required proffer justification for conduct. its action, I Additionally, believe the third element of the new cause of like manner, that, imposes a novel and burden if unjustified upon plaintiff faithfully applied, would defeat legitimate state constitutional I claims. have no quarrel majority’s observation that state constitutional privacy provision does not signify that intrusion into “every action, trivial, the realm of private no matter how slight or rise to a [gives] cause ante, of action for of privacy.” (See invasion maj. opn., Under action, the first however, element of the newly fashioned cause of *60 the defendant’s conduct to demonstrate that already required is plaintiff requirement interest—a constitutionally protected privacy a infringes upon trivial, serious, interest than a privacy that a rather sufficient to demonstrate not is majority, the a by plaintiff is at Under the third element adopted stake. for to to the a justification entitled even a defendant burden put presenting defendant’s that the only its unless the can establish not plaintiff conduct interest, that but a infringes constitutionally protected privacy conduct upon nature, scope, the is serious “sufficiently [its] invasion privacy the social an breach of egregious or to constitute potential impact actual ante, italics (See the privacy right.” maj. opn., norms underlying view, of the for the reach state added.) limiting In no exists my justification that are those only privacy to breaches privacy provision constitutional entity a business by Ifie information unnecessary collection “egregious.” a for or use of information government or the obtained agency, properly collection, the level of necessarily its not rise to unrelated to would purpose but, argument the election pamphlet an breach as “egregious” privacy, demonstrates, such Initiative intended to Privacy clearly prohibit the was Thus, the the intrusion into extent or although severity conduct. the a always key compo- interest constitutionally privacy plaintiffs protected the upon the intrusion analysis—the nent the constitutional more serious interest, important compelling the more constitutionally protected privacy challenged must sustain the the defendant’s interest be to countervailing standard legal the errs in a adopting course of conduct—I believe majority that, face, no an invasion of least on its to afford to protection purports rise the level of an interest that to constitutionally does protected privacy to even the is unable provide breach of when defendant “egregious” privacy, any constitutionally pro- an justification upon plaintiffs for intrusion tected interest.1
In facie increasing plaintiff's establishing prima to burden addition showing privacy right—i.e., violation of the state constitutional to must the defendant requiring proffer, make order warrant plaintiff new standard majority’s legal appears some for its actions—the justification an constitu- infringement upon reduce the burden justify defendant’s interest, to embrace declining tionally protected privacy by explicitly I have added discussing majority, 1In the second and third elements set forth face,” comments applied,” appear “on the elements qualifying faithfully that their “if may bar valid claims. Such impose requirements improperly inflexible that some because, case, the qualification appears applying present these elements in the appropriate requirements that must be majority independent does not treat considerations in fact these conduct, its but any justifications before there is need to consider defendant’s established (See analysis closely parallels balancing approach. rather undertakes an that traditional ante, 40-43, 52-53.) light analytical actually utilized maj. pp. process opn., here, more presented resolve it all the difficult majority to the constitutional issue general legal framework majority’s adoption to understand the for the of a novel reason govern resolution of state constitutional claims. justified such to be requires any infringement well-established principle interest. Rather than the defendant to demonstrate by “compelling” require interest, majority simply existence of a compelling suggests infringement justify interest suffice “competing” “legitimate” *61 ante, 38.) In (See my the upon right privacy. maj. p. constitutional opn., view, an the essentially constitutionally protected such approach ignores the afford Privacy right status that Initiative intended to the clearly Constitution, By right that state the privacy. incorporating Privacy into our Initiative clearly sought individuals with assurance that provide seriously interests would be taken and would be a “com- abridged only for view, In need.2 if the pelling” my right the constitutional status of is to have conduct that intrudes or such a significance, impinges upon be right merely cannot sanctioned because there a “com- minimally exists that peting” “legitimate” interest be sufficient to conduct might justify Rather, a impinging only nonconstitutional the upon right. justify infringe- interest, ment a upon constitutionally the must protected privacy defendant demonstrate that the intrusion warranted an interest of impor- some tance. earlier,
As noted test embodying reluctance a majority’s adopt “compelling interest” terminology to be based a concern that appears upon such a standard would an impose inordinately high burden defendants. upon As numerous cases—including United States Court’s recent Supreme decisions—demonstrate, however, employment-drug-testing the courts have recognized a wide variety interests that are sufficiently to be important characterized (See, properly Treasury “compelling.” e.g., Employees v. 656, Von 685, 709, Raab 489 U.S. L.Ed.2d 109 S.Ct. 1384] sum, we [“In believe Government has demonstrated that compelling its interests safeguarding our borders and the public safety outweigh privacy expectations of who seek to be employees that promoted positions involve the directly interdiction of illegal drugs or that the incumbent require (Italics added.)]; carry firearm.” Railway Skinner v. Labor Executives’ 602, Assn. 489 U.S. L.Ed.2d 109 S.Ct. 1402] [“In that, record, view our conclusion present toxicological contemplated by regulations is not justifi- an undue on the infringement able expectations of of covered the Government’s com- employees, pelling outweigh (Italics added.)].) interests privacy concerns.” These cases provide ample evidence that application compelling interest standard 2The passage relevant regard: election brochure argument stated in this “The important an heritage rights American to the guaranteed essential fundamental First, Third, Fourth, by the Fifth and Ninth U.S. Constitution. This to the Amendments should abridged when only there is compelling public need.” (Ballot Pamp., Proposed Amends, Const, voters, arguments 1972) to Cal. (Nov. Gen. Elec. italics added.) high upon an burden impose unreasonably unrealistically
need not is, once, defendant, sensitive to inquiry but rather calls for inter- and the plaintiff significant interests protected constitutionally ests of the defendant. sum, legal I errs in a new framework to
In believe the majority adopting privacy provision. under the state constitutional brought claims govern view, traditional constitu- such claims should be evaluated under the my demonstrated whether the has initially plaintiff tional approach inquires constitutionally protected privacy intrudes that the defendant’s action upon interest, and, does, of the intrusion is if it further whether the extent inquires the intrusive action. interest served sufficiently justified by compelling *62 Ill that, hereafter, I under a proper
For conclude the reasons discussed test, balancing the NCAA athletic of the traditional constitutional application I in concur in this case is valid. testing Accordingly, at issue drug program erred in enjoining determination that the lower courts the majority’s program. I analysis,
With to the initial of the traditional constitutional respect step significantly the NCAA’s drug testing program with that agree majority in interests two infringes constitutionally protected privacy upon plaintiffs’ in privacy” interest “informational upon it intrudes respects: plaintiffs’ reveal information (the significant of the urine sample examination illnesses, well medications or or as as what concerning athletes’ health in the (2) it ingested), been intrudes drugs upon plaintiffs’ have interest functions, in the urinate by the athletes to excretory requiring privacy Railway Labor Executives’ (Accord, Skinner person. another presence Assn., [mandatory L.Ed.2d 659-660] 489 U.S. 617 [103 for Amendment purposes].) urine constitutes search Fourth sample intrudes significantly the NCAA
By establishing drug testing program that interests, out made a constitutionally protected privacy plaintiffs these upon that, case, under the circum- defendant to demonstrate requiring facie prima stances, interests was of the intrusion degree upon plaintiffs’ privacy to the conclusions Contrary a interest. justified by sufficiently compelling however, courts, in I NCAA satisfied its burden lower conclude that the this case.
First, that of the intrusion upon privacy with to the extent or regard degree factors, context, I discussed by in believe there are numerous occurred this here at program demonstrate the athletic majority, drug testing in other testing many issue is less intrusive interests than upon privacy drug with, varsity To in a athletes settings. begin by choosing participate sport, their a invariably great regard physical deal of relinquish health, athletes un- condition and since routinely require school teams in good health. dergo medical examinations to ensure that frequent they Thus, in seeking varsity necessarily an athlete participate sport, matters, particularly surrenders a health significant degree matters some her More- bearing sport. relation to his or involvement over, unlike drug imposed an individual subjected testing programs upon all in a or all employees given upon particular work students setting job institution or educational one’s program—where option quitting school would athlete leaving usually very significant hardship—an impose whom the constitute a invasion of testing procedure would serious can varsity avoid intrusion participating sport postseason Although undeniably imposed there is a “cost” competition. upon a student for her interest in in this manner— exercising his or for student athletes will if particularly they who lose needed scholarships choose not to is not as it participate—the coercion would be nearly great decisions, other contexts. we many past have held that a who plaintiff *63 a brings action and personal injury seeks for unusual mental special damages suffering necessarily relinquishes the to maintain the confidentiality past medical or psychiatric (see, records that are a claim relevant to such e.g., Superior Vinson Court 43 Cal.3d 842-844 [239 404]), 740 P.2d and I believe a similar “consent” rationale applicable here.
Second, with to respect the served the significance interests NCAA’s I believe program, organization that the has identified two “com- pelling First, interests” served drug testing light of the program. nature of competitive hazard sports that performance-enhancing drugs pose to the fairness of the I believe that the NCAA has a competition, very interest strong no ensuring that has an unfair competitor advantage Second, over another. in view of the strenuous nature of athletic varsity activity, and the unusual risks to the health and of the student athlete safety (and possibly competing athletes) if he or in such she engages activity while certain taking medications or the NCAA a drugs, also has compelling interest in protecting student well-being of athletes.
Indeed, view, my serves testing program particularly compelling interests the context of highly athletics. Such a competitive intercollegiate course, program may, of be useful in who deterring individuals otherwise would be to utilize tempted drugs to an unfair attempt gain competitive serves the A also drug testing program adversaries.
advantage over their athletes, on their own other who assuring equally important purpose utilizing are not competitors an that their advantage, not seek unfair would reliable, testing mandatory advantage. an Without a attain such drugs assurance, be at athletes—fearing they may many such program provide feel well drugs—might pressured if competitors their use disadvantage effects, harmful long-term drugs, potential despite knowledge use at disadvantage will not they competitive to ensure that be simply athletic The latter rationale for event. time of an important championship drugs the list of including for within justification drug testing explains to have definitely that are known only drugs which are tested not for athletes or rumored also qualities, drugs—suspected but performance-enhancing might consequently which some athletes have such qualities—with experiment. tempted
Thus, significance great upon trial although placed court apparently which it drugs that the prove it viewed as NCAA’s failure to what are student-athletes or that enhancing, was testing performance fact students, NCAA I believe the other illegal drugs more to use than likely implementation justified interests clearly compelling had several medications, drugs detecting presence aimed program are perfor- actually in the of a that such substances showing even absence the rules. Just as violating that a athlete was enhancing mance or particular engines equipment car event racing routinely inspect officials at a with the components their comply all vehicles to ensure that competing gloves search the routinely may as a referee regulations, applicable just foreign objects they boxers to contain no and trunks of assure in the I it believe injure opponent, permissible, substances that might athletics, for a sponsoring highly competitive intercollegiate context of *64 unfairly may all for that competitors drugs to test organization routinely safety health to the particular enhance their risks performance pose athletes. drug testing pro- of the
Finally, monitoring” aspect the “visual although interest, I athlete’s privacy an intrusion an upon does additional gram pose equally that any could conclude the NCAA persuaded properly am that that, (one permitted example, procedure alternative effective full search body after a only to urine but sample private, athlete provide the private a false into bringing sample ensure the athlete was not if more so. not room) privacy, of the athlete’s just be as intrusive would (1990) 408 Mass. Com’r Boston (Accord, O’Connor v. Police monitored utilizing [upholding drug testing program N.E.2d 1149] of the urine integrity sample”].) urination “to ensure the extent Accordingly, drug testing into account the nature and taking and the of the program’s strength intrusion athletes’ upon privacy, I that the by organization’s NCAA’s interests served conclude program, the limited concerns compelling justify upon interests intrusion note, in I other plaintiffs. this that a number courts regard, jurisdictions considered challenges comparable have constitutional athletic drug testing have concluded that the programs similarly important interests served such a athletic out- program furthering competition weigh (See, the intrusion Schaill upon privacy testing. e.g., such imposed by Tippecanoe County (7th 1988) Kross v. F.2d Corp. School Cir. 1318-1322; 1986) 1141-1144 (3d Shoemaker v. Handel Cir. F.2d 405]; (W.D.Wn. A.L.R.Fed. University Washington O’Halloran v. 997, 1002-1007, 1988) 1988) F.Supp. grounds (9th revd. on other Cir. 856 F.2d
IV above, For the reasons I discussed concur insofar majority’s opinion as it concludes that the NCAA here drug testing program at issue does not I, violate the clause of article section California Constitu- tion. I Accordingly, concur conclusion that the majority’s judgment the Court of Appeal must reversed.
MOSK, I dissent. J. I,
Article section 1 of the a right California Constitution declares privacy. Its pronouncement is left “All express. Nothing implication. people” have “inalienable right[]” “pursu[e] “privacy.” obtain[]” further, Before proceeding a sentence we must make one point pellucidly clear.
This a case about the “policy” this court think it best formulate and implement with regard privacy.
Rather, it is a case about California Constitution the role of the within the it judiciary order establishes.
The all majority abrogate but the of right privacy. They consider it plainly “bad What their policy.” of assessment? Is the of “policy” right “good sure, Is it policy”? “bad It not policy”? simply does matter. be the To right of privacy reflects a choice of But it is a choice has policy. already been in made—by their people, capacity as sovereign, California must accept a we as judges It therefore choice that Constitution. is In (See, re e.g., personal predilections. of beliefs or respect, regardless 21, 613, 447 P.2d Cal.Rptr. 117] 634-635 (1968) 69 Cal.2d [73 Anderson 142, Mosk, 188-189 J.); (1979) 25 Cal.3d (conc. People v. Frierson of opn. Mosk, J.).) Regrettably, of (conc. opn. 599 P.2d Cal.Rptr. 587] [158 to the regard conducted themselves this case the have so majority of declaring right privacy. a policy constitutional people’s I I, “All are people declares:
Article of the California Constitution section Among these rights. and have inalienable independent nature free and and protecting liberty, life and defending acquiring, possessing, enjoying (Italics privacy.” and obtaining safety, happiness, and pursuing property, added.) when the California Constitution
The of was added to 7, 1972, approved proposed General Election voters at the November the ballot as that was designated constitutional amendment legislative 11. Proposition to the adhere we must determine and construing privacy, of course, that of that controls is 11. Of the intent Proposition
intent underlying Fresno v. State (County for the who voted measure. people Califor- of of 235].) P.2d (1991) Cal.Rptr. nia 53 Cal.3d must discerned from two sources. The intent of the people 11, wit, single substantive The first is the language Proposition itself, on. we must press the word does not define “privacy.” term Since for and the ballot pamphlet is the arguments presented second relevant extrinsic evidence. 11. Those offer arguments against Proposition 757, 775, fn. 11 (White Davis 13 Cal.3d Indeed, offer, essence, (Id. at p. such evidence. 222].) only they P.2d 775.)1 “The proliferation states: Proposition favor argument our destroy threatening data collecting
government snooping “ballot “premise” that the contrary J. Clark He asserts that the 1To the is Professor Kelso. .” bad . . . legislative 11 “is law important part history Proposition argument is an 327, 433.) Right L.Rev. Privacy Constitutional Pepperdine (Kelso, California’s Moreover, as himself in reason. he adequate support is without point He is incorrect. His admit, “long overwhelming weight authority expressed against compelled it is (Ibid.) “premise” that the “ballot also asserts that the supreme court decisions.” He line simply wrong “is history for” the measure argument only significant legislative is the piece (Ibid.) only be What he seeks to create can again of fact He is incorrect. as matter ...” easy to archives” and “not legislative history,” is “stored in state called “secret which was (id. history” of what 333). “legislative by” “fragments” It come embraces *66 agencies competing compile traditional freedoms. Government seem to be to the most extensive sets of dossiers of American Computerization citizens. Amer- every records makes it create on ‘cradle-to-grave’ to possible profiles ican. present “At there no on the activities restraints effective information
government legal and business. This amendment creates a and enforceable right privacy every for Californian.
“The is a right is to be left alone. It fundamental families, homes, It interest. our our our our compelling protects thoughts, emotions, communion, our our our freedom of personalities, expressions, and our freedom associate we It govern- to choose. people prevents ment and collecting business interests from and stockpiling unnecessary information about us and from one misusing information for gathered pur- in order to pose serve other us. purposes to embarrass “Fundamental to our is the ability personal control circulation of This essential is to social freedom. personal relationships information. The proliferation government and business records over which we have no control limits our control ability personal our lives. Often we do not know that these records even exist and we are unable to determine certainly who has access them.
“Even more is the loss dangerous govern- of control over the accuracy ment and business records on if individuals. is un- Obviously, person record, aware of the he or she cannot review the file and correct inevitable known, Even if mistakes. the existence of this govern- information is few ment agencies or private businesses permit individuals review their files and correct errors.
“The average citizen also does not have what control over information is collected about him. Much is secretly collected. We are required report information, some regardless of our for wishes or our belief that there no is need public for the information. Each time we a credit apply for return, card or a policy, insurance get tax interview a job, life file for license, drivers’ dossier opened profile and an is sketched. information Modern technology capable of monitoring, centralizing computerizing this information which eliminates of individual possibility privacy.
“The is an important heritage American essential First, Third, Fourth, fundamental guaranteed rights by Fifth and Proposition (Ibid.) become legislative 11. history” bearing This “secret has no conceivable the crucial issue of people the intent of the who voted the measure. In Professor Kelso’s view, however, speaks it to the question coverage. I to that question shall turn in due (See course. fn. post.) *67 abridged be This should Ninth Amendments to the U.S. Constitution. may remain as when need. Some information compelling public there is only information when such availability records but designated public only Stats, (Ballot clearly Pamp., Proposed is interest. . . public Amends, Const, voters, 7, 1972), (Nov. with Gen. Elec. arguments to Cal. 26-27, under- added in place italics argument Prop. pp. favor scoring original.) say “To argument Proposition to the favor states: rebuttal the information activities of
there are at no effective restraints on present literally hundreds is untrue. addition simply business government information, law student every laws what use can made of restricting be one of our long rights knows that the have protected privacy courts citizens. cards, driv- policies, we for credit life insurance
“Certainly, when apply licenses, interviews, absolutely it is ers’ file tax returns business give 11 does we Proposition essential that certain information. personal furnish no we no it and longer provides protection not mean that will have furnish if it give cannot so Legislature as to the use of the information that the desires. difficult what is
“What can and will do is to make far more Proposition law, finding out already enough investigating difficult under present government truly whether aid from various receiving programs persons welfare to their income. needy merely using augment and tax 11 can be an invitation to welfare fraud “Proposition only open (Ballot Pamp., Proposed for this be defeated.” evasion and reason should Const, Stats, Amends, voters, (Nov. Gen. Elec. to Cal. arguments 7, 1972), argument Prop. rebuttal to favor which adds against “Proposition states: argument Proposition in the already the word to a of ‘inalienable enumerated rights’ list ‘privacy’ Constitution, should be defeated for several reasons. with, that there are certain
“To Constitution states begin present Thus, lists. our Constitu- rights inalienable which are those’ that it ‘among all nor as a rights practical tion does not list of the inalienable attempt matter, it the law and the always could do so. It has been recognized have, we particularly enjoyment courts that is one of the rights So, in home and the first the amendment personal place, activities. unnecessary. completely that it would agreed by attorneys
“For it has been scholars and many years much from the Constitu- unnecessary wordage to remove advantageous tion, to finance a and at we are deal of present spending great money to do this. Its work working Constitution Revision Commission which is and we should not our Constitution begin lengthen presently incomplete *68 has had a chance to and to amend it until at least the Commission piecemeal finish its work. defeated,
“The be why most reason this amendment should important however, completely lies an area where should not be possibly privacy Califor- guaranteed. government by Most welfare are an programs attempt fortunate; thus, nia’s more citizens to assist who are less fortunate those millions of are the today, persons government programs, beneficiaries based on the need of the which in turn can his only judged by recipient, income, his for himself. revealing general ability assets to provide “If a he on welfare has his to the where person privacy protected point income, need not reveal it be his assets and outside for how could example, determined whether he should be welfare at all? given
“Our government is need and deserve the helping many people really who help. Making privacy inalienable could chaos to all right only bring us, government benefit programs, including thus all of those who depriving need the most. help
“And so because it is interferes with the work unnecessary, presently being done by Constitution Revision Commission and would emasculate need, all government based I programs on a ‘no’ vote on recipient urge Stats, Amends, Const, (Ballot 11.” Proposition Pamp., to Cal.. Proposed voters, with arguments (Nov. 7,1972), Gen. Elec. argument against Prop. 27-28, pp. italics added in place underscoring original.) The rebuttal to the argument against states: “The Proposition right much privacy is more than It is fundamental ‘unnecessary wordage[.’] free society. is not now Privacy guaranteed our State Constitution. This amendment will simple extend various court to insure decisions protection of our basic rights.
“The work of the Constitution destroyed Revision Commission cannot be [i.e., by adding two words “and to the State Constitution. privacy”] Legislature actually followed the Commission’s guidelines drafting Prop- osition by keeping change and to the Of all the simple point. proposed constitutional amendments before you, this is the the most under- simplest, standable, and one of the important. most
“The right to will welfare nor undermine destroy any impor- tant government It is limited program. ‘compelling public necessity’ the government 11 will not prevent Proposition need to know. public’s only prevent It will it needs. legitimately information collecting any
from and preclude unauthorized purposes misuse of this information (Ballot Pamp., Proposed or frivolous information.” collection of extraneous Stats, Amends, Const, voters, (Nov. Elec. Gen. arguments to Cal. added place italics 1972), argument against Prop. rebuttal to underscoring original.) privacy. this about say In view the we able foregoing, “funda First, declared to be variously status *69 Stats, and mental,” (Ballot Pamp., Proposed and “basic.” “compelling,” Amends, Const, 7, voters, 1972), (Nov. Gen. Elec. with to arguments to Cal. id., 11, “compelling”]; and in Prop. p. favor of argument [“fundamental” 11, “basic”].) and against Prop. p. rebuttal to argument [“fundamental” is an “right privacy in the that the The is statement implied same rights guaran to the fundamental American and essential heritage important First, Third, Fourth, to the U.S. Ninth Amendments Fifth and teed the by 11, 27; Olmstead v. in cf. (Id., p. favor of argument Prop. Constitution.” 564, 956, 944, 438, S.Ct. L.Ed. (1928) 277 U.S. United States Brandeis, is that the (dis. J.) [stating right A.L.R. opn. 376] civilized valued right by and the most rights “the most comprehensive men”].) when there only “should be abridged It follows that the right Amends, Stats, and (Ballot Pamp., Proposed need.” public
compelling Const, voters, 7,1972), (Nov. argument Gen. Elec. Cal. with arguments the “need” 27.) part demanded is a What is Prop. p. favor of means “Compelling” and “public.” that is both intruding party “compelling” sense, actually denoting something “need” is one the strict and not simply under all the circumstances by intruding party required (3d 1961) Dict. ed. (Webster’s Third New Internat. or “desirable.” “useful” “Public,” “need” is one that its means that the p. part, intruding merely party. deems valid and not large community the interests used as well as “need” in must extend to the means question interests, Otherwise, were long they “compelling,” so furthered. is, means, This matter how offensive. no always justify every would scales, however, effect, do not kind test. Its “balancing” and substance right privacy. rather favor of verge start out but equipoise, noted, standard, contra- is not need” it must be The “compelling public against the argument the rebuttal to dicted or the statement qualified by welfare nor undermine will destroy 11: “The not Proposition public limited by ‘compelling It is government program. any important not prevent will need to know. Proposition necessity’ public’s It will it needs. legitimately information collecting any from government purposes for unauthorized misuse of this information only prevent (Ballot information.” extraneous or frivolous the collection of preclude Stats, Amends, Const, voters, arguments to Cal. with Pamp., Proposed 28.) This (Nov. 1972), against Prop. p. Gen. Elec. rebuttal to argument means of the by need” standard statement reaffirms the “compelling public ” “ “the and the necessity,’ paraphrase, virtual quotation, ‘compelling public asserting by need it from that test depart to know.” Neither does public’s infor- collecting any 11 will from government “Proposition prevent of a legitimately needs." mation it is that the implication requirement need.” The further need” is satisfied public “legitimate “compelling actually required by is that a need” is one that is implication “legitimate community is a need—and is deemed valid intruding party—it legitimate. large—it
That the “should when there is abridged only compel- Stats, Amends, Const, (Ballot ling need” to Cal. public Pamp., Proposed voters, 7, 1972), (Nov. in favor of arguments argument Gen. Elec. 27) justify does not mean that this standard must be Prop. applied *70 interference with conduct any any right Apparently, asserted of privacy. be affecting, may but not an established of adversely abridging, right privacy course, if allowed Of Active of “right reasonable. conduct on a bearing is privacy” subject not at all.2 any scrutiny Davis, are, 2Generally right privacy example, in accord on the status of the of for White v.
supra, 13 Cal.3d at
. .
page
(“[t]hough
purport
761
the amendment does not
to invalidate all.
gathering,
justification
information
require
government
compelling
it does
that the
establish a
conduct”);
(“the
for such
page
purport
prohibit
id. at
775
amendment does not
all incursion
privacy
any
justified by compelling
into individual
but rather . . .
such
be
a
intervention must
652,
interest”); Valley
(1975)
Superior
Bank Nevada v.
Court
15 Cal.3d
656-658 [125
of
553,
(the
(1976)
Cal.Rptr.
balancing);
Municipal
542 P.2d
need for
v.
Court
17
Loder
977]
859,
464,
Cal.Rptr.
recognizing
requirement
Cal.3d
864
of
(expressly
553 P.2d
the
[132
624]
“
”
“
”
‘compelling
right
a
interest’
justify
privacy
an
‘intervention’
as to the
of
697,
impliedly recognizing
balancing);
(1979)
the need
702
People
v. Privitera
23 Cal.3d
431,
919,
Cal.Rptr.
(when
“right
P.2d
privacy”
591
5 A.L.R.4th
a
of
claimed
[153
178]
“asserted,” i.e.,
against
governmental
a
only
actor is not established but
when it “is not
],”
encompassed by
right
the
of privacy embodied in . . . the state
it is not
Constitution[
subject
“compelling
(italics
(to
to the
state
original));
pages
interest test"
id. at
709-710
123,
effect);
(1980)
City
similar
Santa Barbara v.
Cal.Rptr.
Adamson
27 Cal.3d
131 [164
of
539,
436,
(“
610 P.2d
12
purport
prohibit
A.L.R.4th
‘the amendment does not
all
219]
incursion into
privacy
any
justified by
individual
but rather . . .
such intervention must be
a
”
Adamson,
compelling [public]
(brackets
added));
ellipsis
interest’
and bracketed material in
page
id. at
133 (implying
actually required
that the means used are not
when “less restrictive”
available);
Reproductive
Myers (1981)
means are
Committee to
v.
Cal.3d
Rights
29
Defend
252,
866,
779,
(the
275
Cal.Rptr.
(plur. opn.)
right
625 P.2d
20
of
A.L.R.4th
[172
1118]
privacy
“clearly among
rights”);
is
the most intimate and fundamental of all constitutional
12,
720,
(1982)
curiam)
Doyle
(per
v. State Bar
32
Cal.Rptr.
Cal.3d
Second, is freedoms” source “our traditional right privacy law, “American as reflected the common heritage,” evidently and our (1983) needed); acknowledging balancing People Stritzinger v. privacy” expressly that is 431, 505, (“[i]t that 668 is . well established . . . Cal.Rptr. 34 Cal.3d 511 P.2d . . [194 738] absolute, right governmental but privacy may yield is not [to intrusion] interests”); (1985) Cal.3d Conservatorship Valerie N. 40 compelling furtherance of state 143, 387, (a right on Cal.Rptr. governmental 164 707 P.2d “restriction” [219 760] interest”); City Employees Assn. justified compelling Long be Beach “must state 90, 937, City (1986) Cal.Rptr. 12 P.2d Long 660] v. Beach 41 Cal.3d & fn. 719 [227 948 privacy” (governmental constitutionally protected intrusion zone of individual “upon interest”) (dictum); Superior v. Court justified by governmental “must Vinson compelling 833, 292, (1987) (the balancing); Cal.Rptr. P.2d need for 43 Cal.3d 842 740 404] [239 750, 370, (1989) P.2d Superior Cal.Rptr. Schmidt Court 48 Cal.3d 932] v. 389-390 769 [256 right affecting, abridging, established (implying adversely that conduct but not an 704, (1993) reasonable); Cal.4th 712 may Superior if Schnabel Court 5 [21 be allowed v. 200, San (the balancing); University Cal.Rptr.2d 854 P.2d need for Porten 1117] 825, (an intruding nongovernmental (1976) Cal.App.3d Cal.Rptr. Francisco 64 832 [134 839] intrusion); v. Brown party justify Cutter “compelling public must show interest” 836, “compel bridge (1986) (recognizing both the Cal.App.3d Cal.Rptr. 183 843 [228 545] Corp. ling balancing); v. Times Mirror requirement interest” and the need for Wilkinson (same); (“even if (1989) page id. at 1047 Cal.App.3d Cal.Rptr. 194] [264 not long right as that is challenged impact privacy, conduct has some affected, compelling required”; interest is not substantially justification by burdened or “[i]nstead, reasonable”); challenged Semore operative question is whether the conduct (1990) the other Cal.Rptr. (“privacy, v. Pool like Cal.App.3d 280] [266 Constitution, fundamental”); . . . Luck v. Southern rights inalienable listed first in our (holding Cal.Rptr. Transportation Cal.App.3d 618] Co. Pacific interest,” by a and that justified compelling . . . must be “incursion into individual Murphy “compelling “existing precedent”); interest test” constitutes Miller affecting, (to adversely effect conduct Cal.App.3d 343-346 740] reasonable). abridging, but be allowed if established *71 252, Rights Myers, supra, plurality to v. Cal.3d the Reproductive Committee 29 Defend test, Bagley Washington 11 of v. opinion pre-Proposition articulates a derived from the case 401, 499, 409], (1966) Cal.Rptr. Cal.2d 421 P.2d Township Hospital Dist. 65 505-507 [55 (1) imposed to the under “the state demonstrate ‘that the conditions relate which must (2) of privilege’; utility that ‘the purposes legislation the which confers the benefit or of any resulting impairment of constitu- imposing manifestly outweigh[s] the conditions . . . (3) achieving the rights’; tional and are no ‘less offensive alternatives’ available there (Committee p.at Reproductive Rights Myers, supra, Cal.3d objective.” state’s to 29 Defend this test for the (plur. opinion purport 258 The does not to substitute opn.).) plurality Rather, judicial it simply need” uses as a “framework for “compelling public standard. it potential analysis government programs . exclude benefit of restrictions . . which from (Id. p. at rights.” (plur. 265 recipients solely on the basis of their exercise of constitutional 398, accord, 199, Cal.3d opn.); Superior Robbins Court 695].) P.2d Gunther, “aggressive that Warren Court’s The of Professor Gerald the familiar observation theory ‘strict’ and fatal in fact” equal protection” “scrutiny ‘new’ that was involved Court, Evolving on a (Gunther, Doctrine Supreme 1971 Term—Foreword: In Search of 1, 8), is a Newer Protection 86 Harv.L.Rev. Changing Equal Court: A Model for Moreover, it was right privacy. on of circulated import without here. It does not bear 7, 1972, published only General Election. form after the November statutes, federal and state and federal and state constitutional law generally, course, and sei- including, of unreasonable searches guaranties against zures in the Fourth Amendment to the United States Constitution contained I, (Ballot and Pamp., article section 13 of the California Constitution. Stats, Amends, Const, voters, Gen. and Cal. with Proposed arguments 7, 11, 26, (Nov. 1972), Strictly Elec. argument Prop. pp. favor of Rather, granted not charter. it is speaking, right of is state Amends, Const, Stats, guaranteed. (See and Ballot to Cal. Pamp., Proposed voters, 7, (Nov. with 1972), argument Elec. rebuttal to arguments Gen. against now State Prop. [“Privacy guaranteed by not our p. Constitution.”].)3 Third, the left right “right to simply definition Stats, Const, Amends, (Ballot
alone.” Pamp., to Cal. Proposed voters, (Nov. arguments 1972), Gen. Elec. favor of argument Prop. 27; States, cf. p. Olmstead v. United L.Ed. p. 277 U.S. 478 [72 Brandeis, (dis. J.) opn. [calling “right 956] of privacy alone”]; Brandeis, be let Right Privacy (1890) Warren & Harv. effect].)4 L.Rev. similar [to
Fourth, the
substance of the
major
has three
aspects.
with,
begin
To
there is a
protectible
against
party’s
interest
intruding
and/or
obtaining
publishing
private
belonging
information
to the party
intruded upon—“informational
This is the
privacy.”
value
is threatened
by “government snooping and data
“exten-
collecting”;
“compiling]” of
sive
sets
dossiers American
by “[government
citizens”
agencies”;
records,” which
“[computerization of
“makes it
to create ‘cradle-
possible
American”;
to-grave’ profiles
every
on
“collecting
stockpiling [of]
unnecessary information about
us”
interests”
“government
business
and the
“misusing”
“information gathered for one
purpose
order to
us”;
serve other
purposes
to embarrass
“proliferation
government
control”;
“[ojften
business
over
records
which we have no
the fact that
we do
know
that these
even
records
and we
exist
unable to
certainly
3Generally
are,
accord
the source of the right
for example, People v.
*72
874,
(the
Porras
Cal.App.3d
“adoption
99
879 [160
627]
of the amendment
was
to strengthen
intended
the
of
right
privacy”); Cutter
Brownbridge, supra,
v.
183
at
Cal.App.3d
page
(implying
right
842
that the
privacy
protected
of
embraces the “interests
by
them).
the common law”
also
beyond”
but
“reaches
are,
4Generally the
accord on
definition of the
of
right
privacy
example,
for
White v.
Davis, supra,
page
(“
”);
13 Cal.3d at
right
right
774
‘The
to
privacy
of
is the
be left alone.’
Adamson,
City
Santa Barbara
supra,
page
(same);
Superior
v.
82 them”; accuracy of over the of who has to the “loss control determine access individuals”; the “average the fact that and business records government collected about over what information is citizen . . . does not have control him”; an “informa and of “sketch[ing]” of a the “open[ing]” the “dossier” card,” return,” “life “tax policy,” for each “credit insurance profile” tion “interview,” license”; tech and the fact that and “drivers’ “job” “[m]odern monitoring, computerizing [personal] of and nology capable centralizing (Ballot privacy.” which eliminates of individual any possibility information Stats, Amends, Const, voters, to to with arguments and Cal. Pamp., Proposed 11, 26-27, (Nov. 1972), pp. favor of argument Prop. Gen. Elec. deleted.) underscoring interference intruding party’s also interest an against
There is a protectible This by privacy.” with conduct the intruded private party upon—“autonomy and to relationships the value that is indicated reference “social by families, homes, our our thoughts, freedom” and to “our our personal communion, emotions, freedom of our our our expressions, personalities, (Ballot Pamp., choose.” and our freedom to associate with we people Stats, Amends, Const, voters, Gen. with arguments and Cal. Proposed 7, 1972), (Nov. Prop. p. Elec. favor of argument third, viz., a interests is a each of these two Underlying protectible invading of intruding very interest an act against party’s protectible is the so called. This of the intruded party upon—“privacy” properly solitude be left “right of as the right value basic to the definition of privacy Amends, Const, Stats, to Cal. (Ballot alone.” Pamp., Proposed voters, 7, 1972), in favor of (Nov. Prop. Elec. argument Gen. arguments “moni- 27.) It is also the value that is threatened by “snooping,” conduct, of “collecting” “gathering]” per- and the toring” of personal (Ibid.) sonal information. of stature equal
Each
the three
interests referred to above is
protectible
of
another; none is less.5
None is more
than
the one to the other.
“protectible”
Fifth,
is established
scope
is broad.
fact
it
It is
interests
embraces.
confirmed
range
protectible
are,
White v.
5Generally
example,
in accord on the substance of the
Davis,
(the “general
...
to an
supra,
page
concept
83 but adopt evident intent to “various court decisions on simply privacy,” (Ballot “extend” them their actually beyond Pamp., Proposed to four corners. Stats, Amends, Const, voters, (Nov. Elec. and to Cal. Gen. arguments 7, 11, 1972), 28.)6 against rebuttal to argument Prop. p. “right of a to choose or not to bear a and thus to control her social role woman whether child Long personal destiny” right protected by” right privacy); and is a of Beach “fundamental Beach, (informational City Employees City Long page Assn. v. Cal.3d at supra, 41 948 of
privacy thoughts, of mental condi privacy properly so called: “coercive collection upon constitutionally tions and of indi “inherently protected emotions" zone intrude[s] (dictum); (infor privacy”) Brownbridge, Cal.App.3d page vidual Cutter v. at 842 supra, 183 “ I, 1, privacy: mational the ‘zones created section to the details privacy’ by of article extend 1463, history”); of one’s Cal.App.3d medical Miller National Co. 187 Broadcasting v. “ 668, (stating ‘right privacy that the has 1489-1493 A.L.R.4th 69 1027] ”; personal been held to a of protect range suggesting diverse that both informa freedoms’ privacy privacy tional so called a properly implicated by are the intrusion television news a paramedics camera into residence in to film the of the life of a order efforts to save victim); heart attack page Wilkinson v. Mirror 215 at 1046 Corp., supra, Cal.App.3d Times (the “general concept privacy encompassing range personal can viewed as of broad Co., belief’); action and Luck v. at Transportation supra, Cal.App.3d Southern 218 Pacific pages (rejecting right 15-17 privacy only privacy, claim that the protects informational “ with the observation that right privacy protect range ‘the held to has been a diverse ”; personal suggesting privacy properly that both so ]’ informational freedoms! called implicated in the urine); collection and Chico Hlth. Fem. Women’s Cr. v. (E.D.Cal. 1190, Butte 1983) (“there Glenn Med. S. 557 F.Supp. indication simply 1202 no that privacy rights others”). certain greater protection were intended to be afforded than are, 6Generally in accord on scope right of the Porten v. example, Francisco, University (the supra, San Cal.App.3d page right 64 at of the 829 “elevation be free from invasions of privacy to was apparently constitutional stature intended to be an Co., expansion privacy right”); v. Transportation supra, Luck Southern 218 Pacific S., Cal.App.3d (same); 17 page Fem. supra, Chico Women’sHlth. Cr. v. Butte Glenn Med. Kelso, F.Supp. (same). 557 at page 1203 also Privacy, See Constitutional Right California’s Pepperdine L.Rev. at 376 page (observing “[a]lthough privacy clearly that was identified common legal law], as an interest worthy protection of some generally courts [at give did not privileged (stating place weight”); page undue id. at that the 1, legislative history” (see ante) “secret “suggests] fn. the privacy clause was intended to do simply more codify existing doctrines”). than constitutional and common law “right Since the of privacy the United general appears States to be [under Constitution] right narrower than” the of privacy under the (City California Constitution Santa Barbara Adamson, 3; accord, v. supra, 27 Cal.3d at fn. p. Reproductive Committee to Defend Rights Myers, supra, opn.)), Cal.3d at pp. (plur. 280-281 the Fourth Amendment in general appears to be narrower That still. is because the “federal constitutional (See privacy” is broader than the Transportation Fourth Amendment. Luck Southern Pacific Co., supra, Cal.App.3d prohibit constitutional does not all [“The provides incursion into individual privacy, justified by but any such intervention must be a compelling interest. test places intruding party] This burden on heavier [Citations.] [the than would a Fourth privacy analysis, permissibility particular Amendment of a which practice is judged balancing its intrusion the individual’s Fourth Amendment interests against promotion legitimate interests.”].) its governmental In People v. Crowson 389], Cal.3d Cal. Rptr opinion 660 P.2d states: search the lead “/»the context, I, the article 1 ‘privacy’ section clause never been establish a seizure has held to protection broader than that provided the Fourth of the United States Amendment
84 Sixth, change of is Its contours right dynamic. the nature of the privacy 7 the the interests it embraces. protectible with contours of
Seventh, to say, unlimited. That is coverage right the of is privacy is what actors. Intrusion governmental nongovernmental it reaches both and matters, the of intruder. For informational identity example, the infor- “collecting unnecessary the and guaranteed against stockpiling is [of] interests”; the us” and business by “government “proliferation mation about control”; the which we have no of and business records over government and business records on accuracy government “loss of control over the of individuals”; of of and the an “sketch[ing]” and the a “dossier” “opening]” return,” “inter- “job” for each “tax profile” by government “information view,” and of a “dossier” the and “drivers’ license” and the “open[ing]” card,” each “credit of “information business for “sketching]” profile” by (Ballot Proposed “job” Pamp., “life insurance and “interview.” policy,” Stats, Amends, Const, voters, (Nov. Elec. Cal. Gen. arguments and with 11, 27, 7, added.) 1972), in favor italics argument Prop. p. of governmental is to both need” standard “compelling public applicable stated, matters, not the As is what actors. intrusion nongovernmental of actors. types the distinction is drawn between identity of intruder. No can be be. the need” standard Certainly, None need “compelling public information there be such need for may satisfied both. For example, the need seems taxing an individual’s income on the of a body: about part the all circumstances under the actually required by agency one is at community and is deemed valid the liability, order determine tax a similar revenue. There be large importance raising because company: for of a credit-card need similar information on consumer part firm all the need under actually required by seems one is condition, is deemed valid by to assess financial circumstances order credit where extending at because of the community large importance appropriate.8 means that the character of the That Eighth, right justiciable. Stats, (Ballot Proposed
it is and enforceable” “legal Pamp., courts. I, added.) (Italics it Because Constitution or article section 13 of California Constitution.” (See Wilkinson v. qualified by phrase, the unitalicized clause is unremarkable. italicized Corp., supra, Cal.App.3d Times Mirror fn. (per Cal.Rptr. Cal.3d P.2d People 1012] 7See Prather Lucas, legislative J.) (speaking specifically popular applicability C. initiatives but enactments, give language construing well: . . . we must proposals as “In constitutional liberal, changed meet practical of the enactment ‘a common-sense construction which will ”). growing people.’ conditions and the needs of the are, Porten v. coverage example, on the 8Generally accord Francisco, (the University Cal.App.3d pages San 829-830 Cal.App.3d actors); governmental nongovernmental Kinsey v. Macur reaches not, may, may (following foregoing authority in what 272 [165 608] *75 Const, voters, 7, 1972), (Nov. Elec. arguments Amends. to Cal. with Gen. 26, omitted.) argument underscoring favor of Prop. p.
Hence, it is clear that a of action is the of right implicit right privacy. It is less clear that this of action fixed of right imposes any requirements pleading proof.
In determining such one would do best to cleave requirements, perhaps the close out analysis set above.
Recall that the be abridged when there is privacy may only need; conduct compelling public affecting, but not adversely abridging, reasonable; established right may be allowed if privacy bearing conduct aon Active “right is not at all. privacy” subject any scrutiny
Accordingly, must that he has a plaintiff plead right of privacy that it was interfered with defendant. The defendant then plead, denial, beyond simple that any affecting conduct on his part adversely right of was privacy justified by a need if it rose to the compelling public level of abridgment or that it was if did allowed as reasonable it not. The plaintiff must his prove right of and the privacy defendant’s interference dictum); Cutter v. Brownbridge, supra, (the right Cal.App.3d page 183 at 842 governmental nongovernmental actors); reaches Corp., supra, Wilkinsonv. Times Mirror Cal.App.3d (same); Co., 215 pages at Transportation 1040-1044 Luck v. Southern Pacific supra, (“we Cal.App.3d pages (same); at page 17-19 id. at see no depart reason to existing precedent from applying compelling interest test” intruding party even when the nongovernmental actor); S., is a Chico Fem. supra, Women’sHlth. Cr. v. Butte Glenn Med. at F.Supp. pages (the right 1202-1203 governmental nongovern reaches actors). similar, Pool, mental qualified, To if effect is supra, Cal.App.3d Semore v. (“the pages agree courts 1093-1094 and commentators provision that constitutional action”; provides protection nongovernmental at least some against “we have no doubt that at least types nongovernmental some right granted by conduct can interfere with the provision”). constitutional Court, assumed, decide, v. Superior Schmidt supra, 48 Cal.3d we but did not that (id. nongovernmental reaches governmental 389), as well actors noting circumstances, “we that no occasion in case to any, ha[d] consider under what if th[at] purely private . action . . would constitute violation of the state constitutional (id. 14). provision” at p. fn. legislative Professor Kelso reads the “secret history” Proposition of what was to become (see ante) fn. to demonstrate the right that of privacy governmental reaches actors and actors, nongovernmental cooperating governmental actors nongovernmental but not actors (Kelso, in and of themselves. Privacy, Right Constitutional California’s stated, Pepperdine 416-433.) L.Rev. at pp. As legislative history” this “secret has no conceiv- bearing able on the crucial issue of people the intent who voted for In any the measure. event, it best, cannot reasonably read as it is Professor Kelso. At it shows governmental actors are provision. included within the suggest nongov- It does not even ernmental actors are excluded. proof by burden of
therewith by shouldering generally applicable Code, (Evid. 115). The defendant must the evidence preponderance § his conduct.9 or allowance of under the same prove justification burden II as it Program” subject Drug-Testing of this is the “NCAA proceeding background program
stood 1987-1988. Also before the court as *76 is, course, Colle- The NCAA of the National year its initial of 1986-1987. 1,000 It is of over Athletic Association. an association giate unincorporated universities, organizations.10 and other educational colleges, in the drug testing program, organization’s of the NCAA objectives words, at equitable the of “fair and competition [its] own are promotion (i.e., games) and certified events” football bowl postseason championships therein of the health and of the student-athletes “protection safety and the do, “So that no one might, ingest drugs. participant who competing” no have so that one artificially advantage, participant induced might in chemical to remain competi- be to use substances order might pressured this and to the of NCAA safeguard safety tive health participants, relates to the pro- has been created.” This statement drug-testing program 1987-1988; in relating program in with statement to the gram it is accord a clean, in for . “goal competition 1986-1987: the . . is to provide equitable in NCAA and NCAA-certified championships student-athletes competing postseason games.” football bowl according meet NCAA objectives, drug testing program,
To the stated the declaration, specific urine collection on organization’s “involves In athletes occasions . . .” and team student championships, . individual random, finish, at team may suspicion. be selected of position are, 9Generally example, accord of the of for White right on the character Davis, (in allegations “staging] a supra, page complaint 13 Cal.3d at the face of prima right privacy,” governmental facie of the state defendants violation constitutional designate the complaint as well as to allegations are “free contest conduct”); Long governmental upon they rely which intrusive compelling interests their Beach, City at City Employees Long supra, page Beach 41 Cal.3d footnote Assn. , (to inquire . . . we would improperly “decide . . whether was violated . [a] [intruding governmental compelling governmental had party] whether the demonstrated Francisco, interest”) (dictum); page University Cal.App.3d Porten v. San (in allegations prima of the state complaint “stat[ing] the face of facie violation “may any privacy,” nongovernmental constitutional defendant contest justifying” well its allegations complaint compelling public as as show some interest intrusion). testing drug program 10All the evidence admitted below related to NCAA 1987-1988 moved the subsequent changes. None It is true that the NCAA 1986-1987. concerned however, request. Appeal Appeal, Court of to receive such evidence. The Court of denied student athletes postseason football bowl championships games, random, time, suspicion. selected or on by position, playing are urine student athletes thus selected required specimens, provide are ... NCAA by observation” by representatives—denomi “monitor[ed] nated “urine are to the they validators”—as do so. also as They questioned identity “each medication used including “over-the-counter recently,” well as their Women asked about use of prescription drugs.” specifically medications. These in 1987- contraceptive procedures program belong 1988; they follow similar in 1986- procedures belonging program The central 1987. mechanism of the selection for program suspicionless monitored urine visually collection.
The NCAA drug program, again according organization’s to the declaration, also . . “involves . the urine laboratory analyses [of collected] classes,” for substances on a list of banned entitled “NCAA simply too, Banned Classes.” Drug procedures, These to the belong program 1987-1988; follow similar they procedures belonging program *77 1986-1987.
“NCAA Banned Drug Classes” “is comprised of substances generally to purported be performance enhancing and/or harmful to the potentially health and safety of the student-athlete. The drug classes include specifically (such stimulants as amphetamines cocaine) and anabolic steroids as well as other (1) To drugs.” wit: certain and central nervous “[p]sychomotor COMPOUNDS”; system stimulants . . (2) . AND RELATED certain COMPOUNDS”; “[s]ympathomimetic amines .. . AND RELATED COMPOUNDS”; . . . AND RELATED certain steroids “[a]nabolic certain banned for . specific “[s]ubstances . . AND RELATED sports COMPOUNDS”; (5) certain . .. AND RELATED COM- “[d]iuretics POUNDS”; and (6) certain drugs” and “NCAA “[s]treet “OTHERS[.]” Banned Drug 1987-1988; Classes” in is found the in program it succeeds a List,” “NCAA Banned Drugs which was found in the in 1986-1987 program and was essentially identical. The drugs and in other substances question almost all of them lawful.
“NCAA Banned Classes” in Drug given detail the “NCAA Prohibited Drug Reference The List.” latter fills 59 single-spaced, typewritten pages. declaration, itsBy own it “represents] in majority drugs found United States .. . .” It contains 55 pages brand and registering generic names of various substances. On (and other) each of these one it pages states, “CAUTION: IS NOT THIS CONSIDERED A COMPLETE LIST! RELATED SUBSTANCES ARE BANNED!” Again, almost all the drugs and other in substances are lawful. question
The NCAA drug testing program provides that a “student-athlete who is found to have utilized (in preparation in for or an NCAA participation list contest) a substance football postseason or certified championship , further be for eligible participation . shall not drugs banned . compe- for ineligible postseason and “shall remain
postseason competition,” student-athlete tests the test date. If the days tition for a minimum 90 after with the charged he she after to shall being eligibility, restored positive remain in all and shall eligibility sports loss of one season postseason aca- succeeding at least competition through for ineligible postseason limited from appeal demic allows for year.” program expedited ineligible; appeal belongs a student athlete is declaration that These the student athlete. proce- the NCAA member institution and 1987-1988; similar they procedures follow belong program dures belonging program 1986-1987. student- year,
The NCAA drug testing program requires “[e]ach understanding their demonstrating will form sign athletes consent This consent statement willingness . . and their to participate. . program prior of all student-athletes part required of a total Student-Athlete Statement in question. intercollegiate competition during year to participation result in the annually the statement shall complete sign Failure in all ineligibility intercollegiate competi- student-athlete’s participation both 1986-1987 tion.” statement quoted appears program Rather, it The NCAA does not itself exact consent forms. signed 1987-1988. so its agents. its member institutions to do requires *78 time, Hill and McKeever were student Barry At the relevant Jennifer J. Stanford), a (hereafter at the Leland Junior University athletes Stanford mandate, with NCAA institution of the NCAA.11 conformity member Hill forms from and Stanford to exact consent apparently attempted signed 1987-1988, each McKeever but program NCAA 1986-1987; he had exacted such a form from McKeever refused. Stanford protest. was and submitted under drug testing suspicion, selected for without following On the of Hill and McKeever the NCAA and against complaint side, court con- superior intervention of Stanford on the former’s trial, extensive of fact and conclusions findings ducted bench made lengthy law, issuing injunction prohibiting and rendered judgment permanent inaugural College Sports Magazine, 110 passing issue of 11It noted “[f]or (SID’s) they sports college programs information directors were asked what three athletic competitive and magazine most. account athletes’ admired asked the SID’s take into teams, facilities, success, major sports, and and non-revenue academic men’s teams women’s 1993) (Nov. (Stanford #1 College Athletics and aspects program.” all other of well-rounded Sports Magazine, first-place points. votes 164 total p.at Stanford finished first with 26 and behind, only only first-place votes and institution that came in second was far with seven (Ibid.) points. total seventy the NCAA from its Stanford student drug testing against applying program itself, against athletes and/or Stanford or action Stanford taking adverse thereto, student athletes and/or Stanford on the regard ground itself the I, violated student under article program Stanford athletes’
section of the California and not immunized Constitution was I, commerce clause of article Constitution. section of the United States affirmed, In a detailed the Court of the view that opinion, Appeal being court’s and were the evidence superior findings supported by conclusions accordance with the law.12 considered the I Having agree. record its am entirety, compelled The superior findings court’s of fact and of law survive conclusions under the scrutiny standards of appropriate review.
“Questions of fact concern the establishment of historical or physical facts; their Ques- resolution is reviewed under the substantial-evidence test. rule; tions of law relate to the selection their resolution is reviewed independently. Mixed of law and fact questions concern the application the rule facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application experience with affairs, human question factual its determination is predominantly If, contrast, reviewed under the substantial-evidence test. the inquiry consideration, context, a critical requires in a factual of legal principles values, their underlying question and its determi- predominantly legal nation is reviewed (Crocker independently.” City National Bank County San Francisco 49 Cal.3d P.2d 278].)
Crucial this is the proceeding court’s superior “establishment of histor- ical physical facts.” Each of its was either findings conflict- supported by ing evidence If unconflicting by unconflicting, substance. it must be obviously sustained. But even if (See, the same by conflicting, is true. e.g., People McPeters Cal.4th 1176 [Cal.Rptr.2d 832 P.2d *79 Lucas, (per J.) 146] C. that a trial [implying court’s based on finding evidence “is conflicting an binding upon (internal court” appellate quotation omitted)].) marks
The question here is whether the NCAA drug testing violates the program of right answer, of privacy Stanford student athletes. The as will is appear, affirmative. 12It should noted that conducting in its Court analysis, Appeal of applied
“compelling public need” of Bagley Washington Township through standard test v. Dist., Hospital ante.) supra, (See Cal.2d 65 505-507. fn. The latter not apposite. But its use is not fatal. with, of Stanford part on the privacy To there exists begin It is testing program. in NCAA that implicated student athletes superior all court’s and not at Active. beyond peradventure established to this effect is determination sound.
First, an interest against privacy, protectible there is informational belong- information private and/or obtaining publishing intruding party’s in is contained intruded such information ing upon. Manifestly, the party of medications in the identification an individual’s urine. It is also revealed used, those of a contra- recently including especially that the individual has medical court that is confidential ceptive nature. found superior “[t]his .” medical conditions . . . Implicit information which reveal sensitive may Board therein that is line with observation is a determination Quality v. 93 Cal.App.3d Medical Assurance Gherardini area of “A medical is an profile person’s [156 55]: intimate, many nature than more infinitely personal quality more emphasis areas It bears recognized and already judicially protected.” are lawful. drugs almost all of banned other substances In U.S. 602 Railway Labor Executives’ Assn. [103 Skinner (hereafter Railway Labor Execu- L.Ed.2d 109 S.Ct. sometimes 1402] case, tives'), “It is disputed Amendment declared: not majority a Fourth medical urine can reveal host of private . . . that chemical . . . analysis [individual], he epileptic, facts whether she is including preg- about or nant, urine intrudes diabetic. . is clear that the . . . . . [I]t has as reasonable upon long recognized expectations society accord, (Id. 659-660]; Luck . . . L.Ed.2d v. Southern p. .” at pp. Co., 15-17 supra, [holding Transportation Cal.App.3d pp. Pacific the I, Const., 1].) effect under of Cal. art. § same Executives, expanded dissent Labor Justice Marshall Railway his . . urine sam- analysis chemical . . . . point. perforated] upon “[T]he have interests .... advances ples strong Technological implicates uncover, made it chemical possible through analysis compounds use, fluid[], but also medical disorders such only drug alcohol [this] diabetes, and clinical . . . tests epilepsy, depression. [Citations.] ‘[S]uch which can [intruding through they with a provide parties] periscope life, her even in into an individual’s behavior peer private or] or] [his [his ” Assn., (Skinner her Railway own home.’ Labor Executives’ Marshall, (dis. J.).) U.S. at L.Ed.2d at pp. opn. 679-680] *80 Second, there is interest autonomy privacy, protectible against party interference with conduct intruded intruding party’s private
91 of himself Such conduct includes medical treatment upon. an individual’s substances, under the with lawful on his own and drugs other both of his that an Legislature expressly direction itself has found physician. relating “adult has the the decisions person right fundamental control Code, (Health or her own care . . & Saf. rendering his medical . .” 1, 7185.5, accord, 7186, 1439, id,., 1976, (a); p. former ch. subd. Stats. § § § Hence, a member words that Cardozo wrote 80 while Judge years ago the New York today: “Every Court of are vital California Appeals human adult and sound has to determine what being years body (Schloendorff be done with his Hospital shall own ....’’ v. New York body 125, (1914) 92], 211 Bing N.Y. 129 N.E. overruled other v. grounds, [105 656, accord, 3, 3]; (1957) Thunig N.Y.2d N.Y.S.2d. N.E.2d. [163 Thor Superior Court 5 Cal.4th Cal.Rptr.2d [21 375].) P.2d
Third, called, there is so privacy properly interest protectible against an intruding party’s very invading act of the solitude of the party intruded The mere upon. presence stranger when an individual urinates is deeply invasive of the (Cf. latter’s solitude. Caruso v. Ward 72 N.Y.2d 438-439 N.Y.S.2d. 530 N.E.2d. under [concluding provisions 850] including Fourth Amendment ‘in of a presence “[u]rine or government official at agent[]’ ... ‘is least as intrusive as a search’ strip and involves a great ”].) ‘intrusion dignity’ on individual stranger’s visual monitoring of the individual’s act of urination is more (Cf. irruptive Capua City still. (D.N.J. 1986) 643 F.Supp. of Plainfield 1507,1514 [concluding under the Fourth Amendment that a “urine test done under close surveillance of a government representative, regardless of how conducted, professionally courteously be a likely very embarrassing and humiliating experience”].) Executives,
In Railway Labor declared: It majority cannot “be disputed that the process collecting ... . . sample . implicates privacy [a urine] interests. . .. ‘There are few activities in our more society personal than private the passing of urine. Most describe it if people by euphemisms talk they about it at It all. is a function traditionally performed without observation; indeed, public its performance public prohibited generally by law as well as social custom.’ . . . is clear that the [Citation.] [I]t collection ... of urine upon intrudes expectations society has long recognized (Skinner reasonable . . .” v. Railway . Labor Exec- Assn., supra, utives’ 676]; accord, at U.S. p. L.Ed.2d Luck Co., v. Southern Transportation supra, 218 15-17 Cal.App.3d pp. Pacific [holding Const., I, same effect under of privacy of Cal. art. §1].) *81 Executives, Marshall on expanded in Justice Railway
In his dissent Labor us not among prepared He “Who rhetorically: as well. asked point this with . . . expectation respect reasonable a person’s privacy consider Railway Executives’ (Skinner his urine . . . ?” Labor collection of Assn., (dis. opn. U.S. L.Ed.2d at p. at 676] [103 Marshall, J.).) a urine sample went “Compelling person produce He on: and Urination bodily integrity. on demand . . intrudes on deeply privacy . in public, It is forbidden generally the most of activities. among private conversation, designed performed places as a matter of and eschewed interests this seclusion. . . . That preserve privacy tradition personal are is the and urine collection supervised profound offended compulsory .. . overwhelming of the lower courts and commentators. judgment ‘[I]n more or less absolute our culture the functions are shielded excretory is violated are so much so situations which this privacy, from and extremely dignity as one’s distressing, detracting experienced ” (dis. (Id. self esteem.’ 645-646 L.Ed.2d at pp. pp. opn. 678-679] Marshall, J.); fn. 7 People v. Melton Cal.3d cf. does not sample P.2d of a urine taking 741] [“[w]hile interior, and invasion of the it does invoke physical body’s involve and seizure interests the due and search dignitary protected by process Constitutions].) of the United and clauses” States California student athletes is It cannot be said Stanford as a of their status as athletes. qualified somehow reduced result that, matter, here as a athletes like the student athletes general It appears and their lives relatively regulation supervision are strict close subject activities, It also and to medical concerns and others. regard appears that, matter, as a communal environ- general they relatively function ment, both on the field of and in the locker room. play observations, however, little on
Such bear under weight point consideration. fact
Informational remains undiminished. The that student athletes does regulated function communal environment supervised them to much of the open urinalysis questioning covering pharma- it Remember the “NCAA Prohibited Reference List”: fills 59 copoeia. Drug single-spaced, typewritten pages; “represent[s] majority drugs States”; in the brand and found United contains 55 pages registering substances; (and each the 55 generic names of various and states on one of more), A “CAUTION: THIS NOT CONSIDERED COMPLETE one IS LIST! RELATED ARE BANNED!” Remember too that SUBSTANCES all of the are lawful. drugs almost other substances question *82 The fact that student Autonomy also remains undiminished. ath- in a environment regulated letes and function communal supervised not withdraw their their own medical treatment authority does to control with lawful and other drugs substances. remains well. The
Privacy properly so called undiminished as fact student athletes are and function a communal regulated supervised environment does not them prepare by stranger they to be watched urinate.
Next, is there of the abridgment of Stanford student athletes that is effected the NCAA The interference drug testing program. the right from the is arising The court’s program significant. superior determination this effect is sound.
First, as to informational there is substantial adverse effect. Through its drug testing program, NCAA obtains information private stated, belonging Stanford student athletes. As such information con- in an tained individual’s urine and in his her identification of recently medications, used those including especially of a nature. The contraceptive urine, NCAA requires both. As to the court found that the superior “NCAA drug testing can detect low levels very of metabolites of drugs urine, down ato few per billion .... parts type urinalysis per- formed the NCAA reveals many details personal person, about a includ- conditions, ing medical birth control methods and whether the in- person weeks, certain gested substances months even year prior test.” As to the identification: “Athletes are to indicate to an NCAA required official all medications taken for a of weeks couple prior to a urine giving sample. This is confidential medical information which may reveal sensitive medical conditions of the athlete. Women athletes are asked specifically whether use a they birth control medication.”
Second, as to autonomy there is also a substantial adverse effect. The superior court’s “The finding this: NCAA drug testing . . program . interferes with the athletes’ right to treat themselves . . . and interferes with their doctor’s ability to treat them.” This result ineluctably follows from the fact that the banned drugs other substances “represent majority drugs found in the United States” and that almost all of them are lawful.
Third, as to effect, called privacy properly so there is a substantial adverse perhaps most substantial adverse effect of all. court found: superior “The NCAA drug testing . . program . invades privacy by that an requiring NCAA monitor watch the partially disrobed athlete during the act of urina- tion. . . . under the Urinating watchful of an NCAA eye monitor is degrad- ing to both men and women.” deserves support that the court cited superior of the evidence
Some mention. did know “went whom he that an “NCAA official”
McKeever testified him; “led” him urinal there” he “to the into bathroom with” *83 to, stall”; five he approximately let” him in the “stood back “go “wouldn’t time” “as” he was him “the whole five seven feet” and to “watch[ed]” “urinating.”
Asked, while stranger watching you you it have a “How did feel ... to kind of to because explain “It is hard are McKeever answered: urinating?,” mean, know, I a I take obviously, I—everyday it’s difficult. really you it is because but the hardest about everything, part with the and guys shower a are there and you sitting it that know something you it is not is voluntary; need a hundred you are you saying guy watching you, say—they is know, are sitting And are there. You you milliliters for the sample. you do a have to Knowing you have hundred milliliters. knowing give to you me a give It it now and really say, it then is difficult to do .... he is is because very embarrassing He went “It hundred milliliters.” on: . you. he is . . watching and . . . know . . . that standing you you behind watching hand and hard with a being your kind of there beaker just is [I]t someone, know, very It is uncomfortable. you [sample]. make you give embarrassing.” It is very in a between urinating difference question,
To the further “[W]hat urinating during you and urinals beside public people restroom McKeever watching you?,” NCAA with the monitor drug testing program it is When voluntary. this “I think main difference is provided response: That why have to the bathroom. you you go into a bathroom to go public a are there with beaker sitting are to a bathroom. When you go you going a having . . . and sample hand and we want your saying you give only . know . . . that the reason you sit there . . person watching you bathroom, guy in a he watch when you[;] you public is there [is] much it that just there to watch That is more—makes you you. next to is not humiliating.” more degrading was Ruth M. Assistant given by Berkey, similar to McKeever’s
Testimony she “had to training,” Executive Director the NCAA. part [her] “[A]s . . . .” She embarrassing a “found that urinate front of monitor” and “about organization some “discussion” within the stated that there had been athlete, someone it a woman embarrassing particularly, how would That was apparently her a urine discussion having period give sample[.]” Asked, is she still “If a athlete has her period, without effect. woman answered, “Yes, she she is.” give sample?,” a urine required superior finding court’s as to substantial adverse effect of the NCAA so drug testing called should program “privacy” properly Indeed, cause no other surprise. would have been remarkable. Appar one ently, only court has found to the in a contrary decision. reported 1988) University O’Halloran Washington (W.D.Wn. 679 F.Supp. federal district court denied student athlete’s for preliminary application Amendment, injunction, based on the Fourth University prohibit Washington from the NCAA enforcing drug testing program. virtually With no it trivialized the analysis, student “complaint” by athlete’s asserting “[mjonitored unsupportedly urination . . is relatively . small intrusion decision, however, .” (Id. . . . long did not survive. About filed, six months (O’Halloran after it was it was reversed. University Washington (9th 1988) 1375.)13 Cir. 856 F.2d *84 goes It without the saying abridgment that the right of of of Stanford student athletes the NCAA by drug testing program is not nullified above, as a result of their status as athletes. As noted athletes are regulated and supervised and function in a communal environ- the fact that student ment does not them open urinalysis and much of the questioning covering pharmacopoeia; does not withdraw their authority to their control own substances; medical treatment with lawful drugs and other and does not them prepare to be watched aby stranger they as urinate. That same fact does not remove or even reduce the substantial adverse effect of the pro- gram. there is no
Finally, need compelling public that the of justifies abridgment the of of Stanford student athletes that is effected the NCAA by drug testing program. The court’s superior determination to this effect is sound.
Recall that what is demanded to satisfy standard a “need” is on the part of the intruding party that is both “compelling” “public.” It must extend to the means used as well as the furthered. interests It is “compelling” if it is actually required by the intruding under party all the circumstances. It is if it “public” is deemed valid by community large.
There are accordingly two that questions raise themselves the analysis. Is there a “compelling” need by NCAA for its If drug testing program? so, Since, is there a “public” need? as will the first appear, question must be answered in the negative, the second question need be resolved. 13Compare O’Connor v. Police Com’r Boston 408 Mass. N.E.2d. of (drug testing police 1146] cadets: do not lightly take collecting “[W]e intrusiveness of true, too, a urine sample .... We accept as that the intrusiveness is increased cadets’ being (a monitored in the act urinating practice helps to integrity ensure the of the sample).’’) urine the NCAA interests furthered must be some doubt that the
There “compelling.” program above, in number. are two quoted The objectives program, stated is to protect other equitable competition.” “fair and One to promote do, might, ingest who the student-athletes” safety the “health drugs. abstract, and equitable of “fair goal underlying the interests is the competition For “compelling.” be asserted to be
competition” may Univ. Regents Board (NCAA markets. NCAA very “product” 70, 84, 2948].) 104 S.Ct. 101-102 L.Ed.2d (1984) 468 U.S. of Okla. “health safety goal the interests underlying So too do, turn they actually who might, ingest drugs. It student-athletes” who the “product” question. out however, debatable. proves question, examination, “fair equitable competition” promotion
On closer (Colo. (Cf. Derdeyn University Colorado “compelling.” does not seem *85 a state integrity of’ 1993) [holding “although P.2d 945-946 that [interest], it “athletic is . . . valid commendable program university’s If it for Amendment very purposes”].) to be Fourth significant does seem were, in making actor or every interest “compelling” there would be whatever it to make do. doing happens do, of the student-athletes” who safety
Neither does the “health Otherwise, the superior seem reasoned might, ingest drugs “compelling.” court, good, could tested for their own drug “all students and all people that the student if It matters not drug even were not of use.” they suspected in the cannot weigh athletes. Their status as such athletes are student supra, 863 P.2d (Cf. University Derdeyn, balance. Colorado v. of cited, “it be said that that cannot [concluding, with authorities 938-939 students, students, are entitled they university because are university simply Amendment”].) less other under Fourth persons protection th^n University decision In in the recent very accord the discussion of Derdeyn). (hereafter 863 P.2d sometimes Derdeyn, supra, Colorado v. a drug testing struck down Derdeyn, the Colorado Court Supreme own (hereafter CU) its covering Colorado University program NCAA’s, if less anything but athletes—a similar program student (because monitoring of a strict of visual requirement intrusive absence alia, held, that CU’s during collection). urine The court inter program searches and right against Amendment’s unreasonable violated Fourth if more tolerant seizures—a similar to the but privacy, anything (see ante). fn. CU’s Derdeyn court’s interests furthered analysis
testing is as follows. program begin
“We
by observing
our consideration of these interests
suspi-
cionless
has
nu-
urinalysis-drug-testing by
government
upheld
been
cases,
cases,
merous
and in
have characterized
many of those
courts
Railway
relevant
government
E.g.,
interests
Skinner
‘compelling.’
[v.
[602,]
[(1989)]
Executives’
Labor
489 U.S.
L.Ed.2d
Assn.]
[103
667, 109 S.Ct.
interest in
(government
has
rail-
‘compelling’
1402]
road
whose
with such
employees
fraught
injury
‘duties
risks
[are]
others that even a
can have
momentary lapse
attention
disastrous conse-
Raab,
quences’);
[656,]
[(1989)]
[Treasury Employees Von
489 U.S.
v.]
685, 705,
L.Ed.2d
[103
109 S.Ct.
inter-
(government has ‘compelling
1384]
est
ensuring
front-line [drug] interdiction
the United
personnel [in
fit,
States Customs
and have
physically
integrity
unimpeachable
Service]
and judgment’); id. at
(government
L.Ed.2d at
page
has
[130
702]
interest in
compelling
truly sensitive
protecting
information from those who
might compromise
information);
such
id. at 679
pages
L.Ed.2d at
(government
has ‘compelling
710-711]
interests
preventing
promotion
of drug users to positions where they might
endanger
integrity
our
Nation’s borders or the life of the citizenry’);
Federation
[National
Employees
[603,]
Federal
Cheney,
v.]
884 F.2d
App.D.C.
164]
[(D.C.
1989)]
Cir.
(government has a
‘compelling safety
ensuring
interest
*86
2,800
that the approximately
civilians who
and service its
and
fly
airplanes
However,
helicopters are not impaired by drugs’).
Court has not
Supreme
suffice,
Skinner,
held that
only
‘compelling’
will
interest
see
1245 and gas in the of the natural safety that has a interest government ‘great’ this interest holding ‘strong’ and liquid industry, hazardous pipeline Hence, workers). of urinalysis testing random justify pipeline sufficient to ‘compelling,’ ‘strong,’ as rather than to characterize CU’s interests trying ‘substantial,’ we think it more degree importance, or some of lesser commonly them other asserted types instructive with simply compare similar justify interests that have been held sufficient insufficient intrusions. the Ninth in the conclusion of supports
“Our review of the cases
this area
Skinner, a
involving
in Local 1245 v.
case
Appeals
Circuit Court of
suspi
absent individualized
drug testing
for random
program
employees,
cion,
general acceptance
that ‘the
for
animates the
public safety
concern
Skinner,
1245
F.2d
1462
(citing
courts.’ Local
v.
913
drug testing by
Raab,
Third,
Skinner,
cases from the
Von
this
support
proposition
Fourth,
Circuits); see also
Eighth, and District of Columbia
O’Keefe
Comm’n,
760,
(A.D.
Valley
602 A.2d
N.J.Super.
Passaic
Water
‘the
1992) (reading
Skinner and Von Raab as
holding
government
without run
suspicion]
nevertheless
reasonable
require
testing [absent
circum
afoul of the
of the Fourth Amendment
those
ning
proscriptions
need to
government’s
protect
stances which the
special
compelling
interest’).
For
outweighs
example,
public safety
employee’s
upheld suspicionless
Army-employed
courts have
urinalysis-drug-testing
attendants,
mechanics,
controllers,
aircraft
civilian air traffic
aviation
pilots,
610-11, 612-13;
guards,
employees
884 F.2d at
civilian
police,
Cheney,
...
which
a chemical
who ‘have access to areas
weapons plant
agents,’
lethal chemical warfare
experiments
performed
highly
drivers,
Marsh,
curiam);
(4th
1989)
Thomson v.
Cir.
(per
F.2d
duty
transportation
mechanics
attendants whose
is the
primary
daily
buses,
Jenkins,
children
school
Jones v.
878 F.2d
handicapped
(D.C.
1989)
curiam),
Cir.
modifying
Jones
App.D.C.
(per
19]
McKenzie,
1987);
(D.C.
99
1189, 1199,
Taylor O’Grady,
access to
v.
F.2d
weapons,
prisoners
(7th
1989);
Cir.
officers who
firearms or
police
carry
participate
efforts,
Roache,
(1st
Guiney
interdiction
F.2d
Cir.
time,
1989)
curiam). At
insufficient
(per
gov-
the same
courts have found
ernmental interests to
of high-
uphold suspicionless urinalysis-drug-testing
activities,
school students who
Brooks
East
participate
extracurricular
[v.
[759,]
[(S.D.
Chambers Consol. Ind. School
764-66
Tex.
F.Supp.
Dist.]
1989)]; United
are
States
of Justice
who
Department
employees
prosecutors
in criminal cases and
grand jury
other
who have access to
employees
Harmon,
496;
F.2d at
proceedings,
correctional
who
county
employees
have no reasonable
opportunity
smuggle narcotics
no
prisoners
firearms,
1201;
Taylor,
access to
at
civilian
888 F.2d
workers at
laboratory
Laboratories,
the Army’s forensic Drug Testing
Cheney,
“. . . the great majority of cases following Skinner and Von Raab clearly against conclusion that militate[s] CU’s is a reasonable program exercise of state under power the Fourth Amendment. This is so despite fact that CU’s interest in protecting safety health and of its intercolle- athletes giate ... is unquestionably significant.” (University Colorado v. 943-945, Derdeyn, supra, 863 P.2d at omitted.)14 pp. fn.
Let us now back go to the case bar and the NCAA drug testing program. It must emphasized that whether or not interests “compelling” determined the abstract but under all the circumstances. Derdeyn 14The only marginal court found “of (University relevance” Colorado Derdeyn, supra, 939) 863 P.2d at Tippecanoe decision in County Schaill Kross v. (7th Corp. 1988) School upheld Cir. 864 F.2d against which a Fourth Amendment claim drug testing unreasonableness a program covering student athletes and cheerleaders. Its minors,
reason was drug testing that the program against in Schaill was directed who are assertedly entitled to protection a lower level under the Fourth Amendment. Another apparent. put, reason is Simply analysis in Schaill seems How else explain dubious. sustaining a drug testing program reaching beyond student athletes to cheerleaders? *88 harm, here, When, minimizing certain go avoiding as the interests or it be stated may an thereto. eye Accordingly, the be resolved with issue must be if harm the interests very grave, rule of thumb that the is insubstantial, not. they may if it is “compelling,” considered go avoiding drug testing program The the NCAA underlying interests athletes, drugs use student by or the harm threatened the minimizing by good their own and for the good competition. both for abuse drug by found that the “amount of superior expressly The court non-exis- the United States insignificant virtually student-athletes is limited to entirely “The evidence of use is almost drug tent.” minimal means, . . That players steroid use certain football . by anabolic course, any drug no abuse to be deterred significant drug by that there was im- The court superior to be established the NCAA. testing program was, been, found that NCAA should have aware the the pliedly The NCAA “voted to when it its foregoing drug program: established NCAA relied were intro- The which the program. reports upon adopt there was no duced not the action taken.” Because They here. do support to be deterred before NCAA significant drug any drug testing program abuse established, NCAA was the absence of such abuse cannot be attributed to hoc, ergo propter that was later established. Ante non drug testing program hoc. “[Tjhere in athletic drug court found: is no evidence that use superior health and of student-athletes.” Fur- safety is
competition endangering ther, has injured was evidence that student-athlete ever any no “[t]here else as a result of use.” anyone does establish that superior court also found: “The evidence not banned list wiil enhance the drugs actually performance best, NCAA “At enhance- possible performance
athlete sports.” will ment of steroids a scientific which not be resolved controversy do foreseeable future. . . is clear that steroids not enhance aerobic . [I]t that, “The evidence is of steroid performance.” possible exception football, use in athletes and by college coaches drugs perceived use, the enhance athletic .... Even for steroid college performance ‘per- it only certain football.” ception’ might help types positions NCAA findings, drug testing view of these the interests underlying harm use minimizing threatened program avoiding (Cf. student athletes cannot be held to be National drugs by “compelling.” (D.D.C. 1989) 722 Treasury Employees Union v. Watkins F.Supp. *89 a government under the Fourth Amendment that
[concluding employer’s in use sharply “interest for “is randomly employees” drug [certain] incidents].) undercut absence of by complete any drug-related” history Even if the interests furthered the NCAA could drug testing program be considered the same cannot said of the means used. be “compelling,” stated,
As the central is drug testing program mechanism of NCAA suspicionless, visually monitored urine collection.
Is visually monitored urine required? superior collection The court actually that it was found not. It could not have been clearer on the “Direct point: of an athlete not monitoring urinating is to ensure a valid necessary sample.” And again: “It is not necessary urinating.” to scrutinize the while athletes was based finding on the of Ronald one squarely testimony Heitzinger, of the NCAA’s had expert Heitzinger witnesses. stated that he heard of collection device “which is kind beaker or some basically receptacle which urine into which a thermometer that placed contains so sample can you detect whether someone is their own urine as using opposed Indeed, trying to cheat he someone else’s he that admitted [with] urine[.]” himself had did “developed] method urine checking sample [a] not require actually urine monitoring ...” person giving suspicionless
Is urine collection court actually required? superior found that it was not. above,
Note the superior court’s that the findings, drug “amount of quoted abuse by student-athletes insignificant virtually United States is non-existent”; that the “minimal evidence entirely use is almost limited to anabolic use steroid certain only football players”; “possible exception” general to the perception among athletes “college coaches” that do “not. . drugs . enhance athletic college performance” the case of “steroid use football.”
The reasoning underlying superior finding court’s against suspicion- urine less collection “A is this: drug testing for anabolic program steroids based on reasonable would detect suspicion accurately using those many steroids . . . .” “There are factors which can rise to a clinical give suspicion steroids, of use of anabolic including large weight increases a short time, behavior, odor, period aggressive hair pimples, body changing patterns others.” These “factors” would surely noticed. As was observed, generally student athletes are subject regulation strict relatively activities, and close their lives and supervision relatively function communal environment. that the means used further
One additional comment. It seems plain *90 if are ineffective. they deemed to “compelling” interests cannot be be given Adamson, (See City 132 Santa Barbara v. [implying 27 Cal.3d at p. of the interests effect” substantially help that the means used must “truly 648, (1979) L.Ed.2d cf. Delaware Prouse v. U.S. 659 [59 440 question]; 660, 671, Amendment the under the Fourth 99 S.Ct. that [implying 1391] intrusion”].) The the justify “mechanism” must be order “to “productive” these: here such. Its words are very court found the means to be superior its stated not effective in testing reaching “The NCAA’s is drug program the and protecting of clean and goals equitable postseason competition student-athletes.” safety health and of be in vain for The record in this “will searched proceeding
To summarize: will be solved of a real student that problem [among real evidence athletes] Employees Von Raab (Treasury the NCAA by” drug testing program. 656, 685, 712, (dis. (1989) opn. U.S. 681 L.Ed.2d 109 S.Ct. 489 [103 1384] ia, J.).)15 of Scal course, intruding party. may to conduct of the In party upon, 15Tbe intruded consent the case, may right his or the latter such a the former be said to have “waived” Amendment, only is if it the consent valid said to have effected no intrusion. Under Fourth 218, “was, fact, (1973) (Schneckloth U.S. freely v. Bustamonte 412 voluntarily given.” 854, 859-860, omitted.) 2041], It was quotation marks so 222 L.Ed.2d 93 S.Ct. internal [36 coercion, (Id. only implied . . .” given “product express was the of duress or or . if it not 862-863].) fact to be question of consent “is a
p. pp. L.Ed.2d at issue [36 (Ibid.) intruding The burden rests on the totality determined from the of the circumstances.” 859-860]) (id. prove pp. by preponderance to consent L.Ed.2d at party [36 177-178, (United L.Ed.2d v. Matlock 415 U.S. fn. evidence 253-254, States 988]; & fn. 4 People S.Ct. James Cal.3d 1135]). govern should here. Principles party upon 561 P.2d no less favorable to the intruded the Fourth Amendment. privacy provides protection That is because the no less than 6, ante.) (See fn. case, to the NCAA purported this Hill nor McKeever even to consent In neither Indeed, each to testing program in refused do so. 1987-1988. “ same, drug testing in circum- proceeded: ‘Consent* to these superior All court stances a fiction.” NCAA, superior reasoned: Responding argument urged by law” court to “contract regulate[s] intercollegiate . . athletic monopoly is a albeit a lawful one. It . NCAA “[The] not intercollegiate athletics is free competition. any participate student who has desire A testing was regulatory body. policy show that the compete under another The facts here unilaterally athletes have little no means formulated the NCAA that student equal . . There is no negotiating changes program. the elimination . bargaining the equal free and bargaining between the athletes and NCAA. Without underpinnings theoretical of contract law vitiated.” expressed by the superior reasoning similar to that Implicit in the court’s seems view is, sure, college whose percentage athletes Derdeyn only very court: “It to be small contract contracts—or college stepping ‘careers’ are essential stones lucrative hand, however, recognize many On the other we must also professional —as athletes. athletic intercollegiate college education receive athletes who otherwise could not afford a to the under the only question remaining pertains States Constitution but the commerce clause of United California that the Constitution. With careful court determined analysis, superior constitu- NCAA was not immunized the federal drug testing program review, agreed. tional After of Appeal Court provision. independent bear, scrutiny the same I come to the same conclusion. Having brought
Ill novel, conducting analysis majority adopt completely *91 what must be termed a violence both the approach: they balanced do to equal law and the facts. The
As to law. a appear following to take majority position “The effect: need’ If it does ‘compelling standard does exist. public exist, it does not If to such actors. it does apply nongovernmental apply actors, it to them with operates only autonomy as As will regard privacy.” “revisionism,” but creation ex nihilo. this is not mere appear, Is it true that the “compelling public need” standard does not exist? No. The ballot arguments on 11 Proposition public establish “compelling need” standard. argument in favor right of the measure declares: “The of . . privacy . should be only when is need.” abridged there compelling public Stats, Amends, Const, (Ballot Pamp., Proposed arguments to Cal. with scholarships enable them to a college thereby earning obtain increase degree their potential. scholarships Continuation of such dependent upon participation ... is continued the intercollegiate program, athletic requires drug-testing which in to the turn consent Furthermore, program. many intercollegiate pursue professional high athletes as careers coaches, college school or or as administrators . . programs. in athletic recreational . having While participated intercollegiate requirement athletics not be a formal jobs, such it is commonplace experience that applicants intercollegiate with at the athletic level disadvantaged seeking will not be jobs comparison such with those lack such who experience.” (University Derdeyn, 942.) Colorado supra, p. v. 863 P.2d at of Amendment, Under the Fourth finding a on consent is reviewed for evidence substantial James, (e.g., People 107), v. supra, p. Cal.3d at apparently question 19 as the resolution of a of fact. Under same provision, constitutional a of possibility determination on valid may arguably subject consent independent review as the resolution of a predominantly legal question appears mixed law fact. It applicable these standards are to the privacy well. the superior Whether court’s drug testing statement—“ in these ‘Consent’ circumstances is a embody finding fiction”—is construed to on consent determination on the possibility valid consent finding would not matter. Such a would be supported evidence; substantial such independent determination would review. Luck (Compare survive Co., v. Transportation supra, pp. Southern Cal.App.3d at 24-25 the facts [on Pacific therein, no valid v. Corp., supra, pp. Wilkinson TimesMirror at Cal.App.3d consent] therein, consent].) 1046-1052 facts [on valid voters, 7, 1972), 27.) (Nov. argument Prop. p. Elec. favor Gen. that the the measure against acknowledges rebuttal to the argument “limited,” necessity’ [only] by ‘compelling public but “limited 28.) (id., . argument against Prop. p. . . .” rebuttal to 2, ante; (See Long City fn. Beach especially The case law is accord. see Beach, fn. 12 at 948 & City Long supra, v. Cal.3d Employees p. Assn. 164; N., People (dictum); supra, at v. Conservatorship Valerie 40 Cal.3d p. Bar, 511; 32 Cal.3d Doyle supra, supra, Cal.3d at State Stritzinger, p. Adamson, curiam); City supra, Barbara v. (per at 19-20 Santa pp. 864; 131-134; Court, 17 Cal.3d at Municipal supra, p. Cal.3d at Loder v. pp. 775; Davis, supra, 13 at Luck Southern White v. Cal.3d pp. Pacific Co., 20; v. Times supra, 218 at Wilkinson Transportation Cal.App.3d p. 1046; Brownbridge, Corp., Cutter v. supra, Cal.App.3d p. Mirror Francisco, 843; University Porten v. San supra, 183 Cal.App.3d at p. 64 Cal.App.3d word, nonexistent, need” from standard far “compelling,public Co., (Luck Transportation v. Southern actually “existing precedent.” Pacific *92 20.) supra, 218 at Cal.App.3d p. the existence deny It altogether majority attempt is remarkable that the their own are defeated “compelling public They of the need” standard. words. in the revealed ballot as
Concerning coverage 11, language, conclude: this “Reading on arguments Proposition majority casting have he or she was likely a reasonable voter would most concluded well private as as privacy against a ballot to his or her safeguard personal were After was the voters presented, entities. the case so government of what the significant by judicial part To remove construction persuaded. ” (Maj. opn., an electoral ‘bait and switch.’ voters desired would amount to ante, omitted.) at fn. p. arrived at a similar should have
By reasoning, majority parity revealed in need” standard as “compelling public conclusion concerning a reasonable language, 11. this arguments Proposition “Reading ballot on he was ballot to casting have concluded or she likely voter would most for safeguard abridgment except compelling his her from personal privacy were To persuaded. need. After the case so the voters public presented, was desired of what the voters by judicial significant part remove construction ” would to an electoral ‘bait and switch.’ amount Next, need” does not apply it standard “compelling public is true that Again, actors? no. nongovernmental The arguments ballot on standard for use Proposition suggest single against abridgments public all of the privacy, “compelling Further, need.” is shown that such they plain abridgments That above. make well be effected actors. nongovernmental governmental actors as return[s]," “tax and “drivers’ Although they speak “government,” much of “business,” license[s],” card[s],” and “life they also much of “credit speak Stats, Amends, (Ballot insurance Cal. polic[ies].” Pamp., Proposed voters, (Nov. 1972), Const. arguments argument Gen. Elec. 27.) favor of Prop. p. too, 2, ante,
Here (See case law inis accord. fn. see Luck v. especially Co., 20; Southern Transportation supra, 218 at Porten Cal.App.3d p. Pacific Francisco, v. University San supra, 64 Cal.App.3d p. fabricate three majority reasons to a standard for nongovern- support mental actors lower than need.” None substan- “compelling public tial.
“First, the pervasive government of coercive basic presence power areas of human life poses dangers to the typically greater freedoms ante, than citizenry actions by private persons.” italics (Maj. opn., original.) who voted people not share Proposition judge did that view. To measure,
from the ballot arguments they deemed nongovernmental actors to no less than threatening actors. governmental quote, To infor- mational guaranteed against the “collecting stockpiling [of] *93 interests”; unnecessary information about us” and by “government business the “proliferation of government and which we have business records over control”; no the “loss of control over accuracy of and government individuals”; business records on and the of a and the “opening]” “dossier” “sketching]” of an “information each profile” government for “tax by return,” “interview,” “job” and “drivers’ license” and the aof “open[ing]” “dossier” of an “sketching]” profile” “information business for card,” each “credit “life (Ballot insurance policy,” “job” “interview.” Stats, Amends, Const, voters, Pamp., Proposed to with Cal. to arguments 7, (Nov. Gen. 1972), Elec. argument in of Prop. favor italics p. added.)
But even if the people who voted for govern- considered Proposition actors, mental to actors be more threatening nongovernmental than such a fact would not matter for here. The need” purposes “compelling public standard applied against abridgments actual of not right privacy, against power to abridge. Let us assume for sake that argument’s a reason of that Is that possess actors less
nongovernmental power. wield what- successfully when tolerantly they scrutinize their conduct more answers abridgment? question have effect an actual they ever power itself. “Second, has choice and alternatives individual generally greater ‘an ” (Maj. with the dealing government.’ with actors than when
dealing private ante, in original.) italics opn., p. at have more fact an individual may so what? The may
That be. But can more that he actors mean regard nongovernmental freedom have amounted their that would otherwise consent to conduct on readily part it does not mean that an his of But right privacy. of abridgment his abridgment right forced to actual individual should be bear nongovern- it was effected simply with more tolerance because mental actor.
“Third, conduct, voluntary associa- the activities of private particularly in the protection mantle of constitutional tions of carries its own persons, ante, italics (Maj. opn., form of freedom of association.” original.) every It that each suggest
What this means is hard to seems say. his individual any nongovernmental privacy” deny actor has a “right matter, general be. As a circumstance. That cannot any actors would “right nongovernmental of such recognition privacy” More with impunity. bestow on them a to conduct themselves “right” to watch Stanford student “right” it would the NCAA a particularly, grant into a while To they transmogrify athletes urinate. so ante, [stating (See 35-36 pp. is absurd. “right voyeurism” maj. opn,, unbridled right “do to create arguments” purport the “ballot action”].) freedom personal toas need” standard operates it true that the
Finally, “compelling public *94 Yet autonomy again, regard privacy? with to nongovernmental only actors no. stated, stan- single a suggest arguments Proposition
As ballot “compel- that of right dard for use all against abridgments privacy, need,” effected may make that such be ling plain abridgments and public That is shown well actors. nongovernmental governmental actors as Further, involve not abridgments may above. demonstrate that such they privacy properly and but also informational only autonomy privacy privacy called, refer be they simply “right so called. For so to the privacy properly Const, Stats, Amends, (Ballot left alone.” and with to Cal. Pamp., Proposed voters, 7, (Nov. arguments 1972), Gen. in favor of Prop. Elec. argument 11, “data,” 27.) For informational and p. speak again privacy, they again Indeed, “dossiers,” “records," “information,” 26-27.) (Id., “profiles,” etc. pp. was it informational force the mea- “moving that was the behind” Davis, (White 774.) v. supra, sure. 13 Cal.3d at p. too, 5, ante;
Here (See case fn. v. law is accord. see Luck especially Co., Transportation 15-20.) Southern supra, 218 at Cal.App.3d pp. Pacific It is that the plain refusal to follow the law is driven a fear majority’s that the need" is whenever “compelling public standard always applicable any right of is asserted and that it is fatal whenever is it always course, such, Of applied. even if test were it would have still above, employed. But it is As not. need" explained “compelling public standard is triggered only when is right abridged. established Apparently, test of reasonableness be used when is such Court, affected adversely (Schmidt short of abridgment. Superior supra, v. 389-390; Cal.3d at pp. supra, Wilkinson v. Times Mirror Corp., 1046-1048; at Cal.App.3d pp. Murphy, Miller v. at supra, 143 Cal.App.3d 343-346.) And pp. obviously, no at all is scrutiny called for when “right Privitera, is privacy” (See Active. merely People supra, 23 Cal.3d at pp. 709-710; but see id. p. [stating that the standard “appropriate Last, review . is the test”].) . . rational basis most it perhaps important, must be noted that even within its proper sphere, the “compelling public Court, need” (See standard is not fatal. always Municipal Loder v. 864-877.) Cal.3d at pp.
The majority’s refusal to follow law does result in simply standard, rejection of need” “compelling public which intended to was make the right of “legal (Ballot right” enforceable Pamp., Stats, Amends, Const, voters, Proposed to Cal. Gen. arguments 7, (Nov. Elec. 1972), argument favor of Prop. p. underscoring and, omitted) unsurprisingly, constituted “existing very until this precedent” (Luck day Co., Transportation Southern supra, 218 Cal.App.3d Pacific 20). worse, p. But even it leads to of a stitching together kind of “rational basis” test. Such test contrary being to authority, for an appropriate interest legitimate as merely to a opposed “right” truly that is Stats, “fundamental,” like (Ballot of privacy. Pamp., Proposed Amends, Const, voters, Cal. with arguments (Nov. 1972), Gen. Elec. Moreover, argument favor of Prop. it is infinitely since almost *95 of renders the right it all but great, intrusion no matter how any tolerant privacy nugatory.16 the goal they majority eye the law the facts. As the
Let us turn from selected, viz., they drug testing program, of the NCAA have the validation obstacle form an findings insuperable that the court’s recognize superior every findings by any remove the thing their one to do: Only course. means. with, fall of their findings court’s superior
To the the begin say majority, view the law. an erroneous weight they own because based on is wrong. That view of the that the court’s superior
We assume for sake may argument’s course, we the court Of fairness to superior law was fact erroneous. as it then stood to the law adhering to add that its error was should hasten in its today put place. the novelties the have foreseeing majority instead the the part it it to discern how error on Be that as is difficult may, These concern findings. affected its crucial court could have superior such questions of historical or facts which underlie establishment physical student Stanford right part whether there exists a so, and, if testing program athletes that is the NCAA implicated issues, Hill and On these abridged whether is right program. trial. McKeever and bore the burden of at proof Stanford Next, not fall of findings even if the court’s do say majority, superior law, lack they their own as based on an erroneous view of weight evidence. substantial support
That is wrong as well. need, a single let select us extending beyond
To avoid our discussion example. not urinating athlete “Direct of an monitoring court found: superior scrutinize the “It necessary to ensure a valid
necessary sample.” at the time of among privacy rights” “sources of may passing 16It be noted in ante, privacy p. 16) do not (maj. opn., majority include Proposition v. Belous People such as implied we California Constitution in decisions had found 194], right embraces the P.2d That Cal.2d 963-964 (Id. I fear bear children.” to choose whether to “fundamental woman [a] the clock in willingness part to turn back majority’s on their that the omission intimate regard. this *96 while NCAA the athletes had borne burden urinating.” apparently the concede this No there. Even that proof question. majority “[t]he error was . direct urination.” monitoring NCAA . . its use justify required ante, 50.) (Maj. opn., p. then by
How can the this not majority finding supported assert that was witnesses, expert substantial evidence? Ronald the NCAA’s Heitzinger, one testified that he heard “which is beaker basically had of a collection device kind which some into which the urine is receptacle placed sample contains thermometer so that can detect whether or not someone is you their own urine as to cheat someone else’s using opposed trying [with] further he had Heitzinger testified that himself “developed] urine[.]” for method urine monitor- checking sample that did not require actually [a] the ing person urine giving “hearing” . . . claim that evidence of Any insufficient must fall the If “doing.” Heitzinger’s face evidence of had testimony been open challenged it would have been question, surely NCAA. at trial NCAA For bore burden to the contrary. of proof if But even the superior court’s findings lacked of substantial support evidence—which do they not—the are not majority justified reversing judgment Court of with directions to remand to the Appeal superior court with judgment directions to render the NCAA. favor of state: we majority could “Although remand this case for reconsider- law, light ation in of the applicable rules of there no do reason to so. Uncontradicted evidence the record demonstrates as a matter of law ante, constitutional validity the NCAA’s program.” (Maj. opn., According majority, “evidence was developed record” erroneous, under burdens of that proof now hold they burdens of proof they now conclude call much for too from NCAA Hill and too little from and McKeever and Stanford. situation,
In such a how can the “evidence the record” be relied on to the detriment of Hill and McKeever and Stanford? their Without fault on part, they satisfied the demands placed on them the superior Why court. do the majority give them an to meet much opportunity greater now requirements they on them impose first time? It must be they recognize this fact: under controlling they today what make the “appli- law,” cable rules of claims are doomed to fail. Neverthe- practically less, fairness insists on an It not be denied. opportunity. should
IV all athletes—and from Stanford student Today, majority away take Con- the California guaranteed by other Californians—the time, intrud- the NCAA—and other they grant At the same stitution. than their own on more ing “right nothing based party—a publicity” views of and “bad” “good” “policy.” for it had chosen
The NCAA is now free to use California weapons its “war it “is serious about drugs.” way its “What better to show that” their ‘war on than student athletes “to this invasion of subject” drugs’ sure, chance only affront to their there is dignity? slight To be student athlete it some . harm from” prevent resulting that will serious . . ‘clean,’ use, will that” and—most but it show to world it “is “drug to eliminate this ... of all—will demonstrate” its “determination important unaccept- I think it that this scourge society! justification of our obvious able; be the means that the of individual liberties cannot impairment . cause worthy . . making a even point; symbolism, symbolism [a] , (Treasury . . . justify abridgment privacy. cannot” Raab, Employees pp. v. Von 686-687 L.Ed.2d pp. U.S. Scalia, (dis. J.).) opn. 715-716] I dissent.
Accordingly,