*1
Argued February July 2003 Decided 2003. *4 argued appellants Salyer Salyer, {Mr. J.C. the cause for Ed- Associates, attorneys; Salyer, ward Barocas and Krovatin & Mr. briefs). Bhalla, Mr. Barocas and Ravinder S. on the {Purcell, argued respondents P. Kevin Kovacs the cause for Ries, Shannon, O’Neill, Mulcahy attorneys). & Counsel, Kaye, M.
Donna Senior Associate submitted a letter Jersey lieu of brief on behalf of amicus curiae New Boards School Jahn, Counsel, {Cynthia attorney). Association J. General Dermody Michael O. submitted brief on behalf of amici Coalition, Silverman, Drug-Free curiae Schools Geraldine Trea- surer, Communities, Jersey Drug-Free New Federation for The Alliance, Voth, Chairman, Livingston Municipal Dr. Eric Institute Drug Policy Foundation, Drug-Free for Global America Rathbone, Chairman, DeForest National Institute of Anti- Citizen Policy, Jr., Drug Beyer, Joyce Nalepka, Carolyn Malcolm K. Burns, Green, Kids, Mary Drug-Free Challenge, Jo America’s Action, Legal Against National Families Foundation Illicit Katz, Foundation, Drugs, Ginger Larry Courage Speak Starr, Nancy Pennsylvania International, Delegate, Drug Watch Stephanie Haynes, Society Drugs, our from Save Kathleen A. Coalition, Berry, Philadelphia Chapter, Momstell Theresa Costel- lo, Drug Program Mother of Divine Grace Awareness Dawn Engel. opinion of the Court was delivered
VERNIERO, J. constitutionality high
We called on evaluate of a are to testing program. program alcohol school’s random and The applies all participate to students who in athletic non-athletie and activities, possess parking permits. extracurricular or who school positive suspended test for Students who or alcohol use are temporarily relinquish parking from those activities or must their permits. They required counseling also are to seek receive and not, however, necessary. They if prosecuted other treatment are exposed liability. criminal otherwise States United Supreme states, upheld programs Court has similar of other concluding they that do not offend the States United Constitution. We hold that before us does not violate the New Jersey Constitution.
Specifically, problem the school’s substance-abuse has been . by survey showing documented results that third of the students grades forty upper illegal drugs percent used and have grades of students the same have within the been intoxicated survey’s prior period. Those twelve-month results are consistent data, including regarding with deaths other information three due district, municipalities heroin overdoses within school testimony person- with consistent counselors other school record, reject suggestion Against nel. we dissent- our ing colleagues Jersey requires that the New Constitution addressing problem wait for before it in officials to worsen sought the manner here. following counterpart, charted federal course our signal history affording
do not from this retreat Court’s protections citizens enhanced under our State’s constitution. The Jersey against safeguard New remains Constitution a critical unreasonable, unfair, overbearing governmental action. The us, however, Instead, program before such conduct. it reflects no existing recognizing with law have a consistent expectation public-school in a context. diminished Equally important, provides our law further that school officials their care. From entrusted to the children responsible are *6 attempt by a rational represents program perspective, a documented by approving parents to address and those officials portion affecting a sizable alcohol use illegal drug and problem of and, there- is reasonable program The population. of the student fore, constitutional. every apparent view that the dissent’s
Finally, do not share satisfy special-needs test automatically will public high school test’s Although some of the fully below. more describe that we privacy, factors, expectation the students’ diminished such as factors, schools, scope of as the other such to all are common use, might vary from school to school. We drug specific or alcohol pass will not that a future open possibility leave chosen method of the school’s muster either because constitutional alternative meth- overly intrusive in view of specimen collection is ods, alcohol use at underlying and or because the justify inadequate to it. simply is particular school I. largely from summary of the essential facts our We derive to the trial court. other information submitted certifications and dispute those facts. parties do not The Central) (Hunterdon Regional High School Hunterdon Central secondary Flemington provides education located in is through 2,500 grades nine enrolled approximately students implemented have sev- school administrators twelve. Since using alcohol and designed to deter students from policies eral experiencing sub- students who are illegal drugs, and to counsel drug-related provides aware- problems. The school stance-abuse through larger student classes and programs individual ness addition, pro- assistance it maintains a student assemblies. (SAP) professionals who counsel employs full-time gram three drug and alcohol abuse. regarding families students and their occasionally of student lockers conducts searches The school county prosecu- sweeps” in concert with the “dog-sniffing so-called suspicion-based tor. program place Under since school also tests suspected individual students who using are searches, drugs illicit dog-sniffing alcohol. The locker sweeps, suspicion-based challenged tests appeal. are not in this Brady Lisa principal. Brady the school’s submitted a certifi- efforts, cation in which despite she indicated that above 1997 administrators continued to appar- have concerns “about the presence illegal ent and alcohol use students.” She “[c]oaehes, explained that reported teachers and administrators anecdotally they their concern about perceived what to be a growing problem.” principal reported also that in 1997 she “personally became aware of two snorting heroin on premises.” school suspicion-based Results from the program ap- peared to reports. corroborate the anecdotal During the 1996-97 year, thirty the school tested illegal drug students for use *7 (or based suspicion, twenty-seven on reasonable ninety percent) of positive. whom tested understanding
To assist it better scope perceived problem, the Regional High Hunterdon Central School of Board (Board) Education Rocky retained the services of the Mountain (RMBSI) Institute, Collins, Behavioral Science Inc. of Fort Colo- rado. The Board commissioned the survey RMBSI to conduct a regarding illegal drug “the nature and extent of by and alcohol use Hunterdon survey Central The students[.]” consisted of a written questionnaire to students approximately administered took thirty-five complete. basis, to anonymous minutes anOn survey questioned history drugs students about their with and alcohol, frequency intensity and the and of current use. According Brady, [s]urvey to “the [s]chool was assured that the scientifically was reliable due to its built in controls to detect exaggerated erroneous or responses consistency and its checks.” survey The reveals year, that as of the 1996-97 school over thirty-three percent of Hunterdon Central’s students between grades marijuana ten twelve had used preceding within the period. percent twelve-month It also indicates that thirteen cocaine; juniors percent of had used had twelve seniors tried stimulants; hallucinogens; percent sophomores had tried twelve twenty-one tried More- percent of freshmen had inhalants. over, body perceives portion of student a substantial alcohol, study illegal drugs readily are As for available. forty percent grades ten indicates that over of students between period prior and twelve had “been drunk” within the twelve-month eighty-five percent of all had survey, to the and over tried alcohol. “continual
Responding to those results and to feedback from staff,” implemented drug and school the Board its first random July The Board testing program alcohol 1997. confined sports. to program participated students who interscholastic having program required parents guardians consent subjected as a their children random condition participating in the school’s athletic activities. Between 1998 1,000 year eligible per over student became athletes number, randomly testing. approxi- for the school tested Of mately year. percent athletes a Less than student five (The positive or alcohol exact those students tested use. Brady number is in the record. indicated that because the not identities, low, publishing might it reveal number so student that the school avoid with confi- circumstance seeks to consistent rules.) dentiality effect,
Shortly initial after that took Board held a Evans, public meeting expert which David an use teen student, parent responded and himself a of a Hunterdon Central questions parents. their At Evans’ raised students and *8 suggestion, Board a task force [the established “evaluate to testing procedure place drug in at Hunterdon Cen- then-current] present tral and recommendations” for needed revisions. [to] appoint- Evans as chair appointed The Board the task force’s and (and Greiner, drug-testing opponent plaintiff a in this ed Joan case), Evans, According as its chair. “was vice to task force comprised representatives, representatives of student from and club, [SAP], administration, parents, the booster teach- ers, coaches, drug testing experts.” and months, period beginning
The task force met for a of several January concluding in 1998 and November It 1998. evaluated school, existing programs including substance-abuse at the athletes, drug program random for aswell information provided by day-to-day drug SAP staff information related and addition, problems among and alcohol it students. reviewed abuse, Jersey drug national and New data on student and received administrators, coaches, nurse, information from the school concerning drug other individuals Hunterdon Central’s situation. Brady, principal, then a vice served as task force member. explained: She [existing testing] [W]e heard from students and coaches who athletic supported
program working. drug among it was because The clear was that use perception significantly being athletes had declined because of the tested. One possibility giving student that it eased student athletes a reason explained pressure by peer drugs. not use of alcohol and We consider the low rate participate positive figure] [the cited to indicate success. previously five-percent public input sending The task force solicited letters parents holding public meeting It October 1998. also data, including reports drug obtained law enforcement arrest overdoses, municipalities from the send Hunter- gathered don Central. The who task force member that data reported: [I]n Raritan, the 1996-1997 school statistics from the year police Township sending drug- one of arrests districts[,] Hunterdon Central’s for reported juveniles. juveniles
related offenses. Of these were 15 arrests, were There for arrested alcohol related offenses and three deaths associated with heroin for overdose. For the 1997-1998 school statistics the Raritan year, police sending arrests, district showed 91 offenses. these 91 arrests related Of juvenile. 33 were report The task force issued final 1998. its November Over objection, expand Joan Greiner’s lone task voted to force members testing program the school’s random and alcohol to include parking permits engaged students who held or who non-athletic extracurricular activities. *9 report and continued to Board reviewed the task force’s
The subject. meetings the The Board also re- public hold to address follow-up survey to RMBSI in 1999 conduct commissioned the year. Although survey the revealed that for the 1999-2000 school declined, drug the concluded that student illegal use had Board alcohol, cocaine, drugs marijuana, and other still was at an use of Brady unacceptable Board’s reaction: level. described the to in commissioned BMBSI do a follow 1999-2000. up survey The School Board drug According 1999-2000] [the was down most use survey, thankfully drug categories. it was to the of random due, We down success part, believe among engage of who in athletics. the substantial number students While slightly generally marijuana among down, was use was however, use of up juniors, and was use of was still at 7% for there still an seniors, cocaine significant among general. drugs use students unacceptably experiences personnel spoke school of their with student Other use, appeared survey drug and which consistent with the alcohol A assistance coordinator stated that results. retired student during thirteen-year her at Hunterdon she had tenure Central steady using drugs “observed increase in number students major frequency drugs.” and amount of increase coordinator, member, Another also served as a task force who' reported during twenty-seven-year her tenure at school she had observed a measurable in student referrals increase “[cjounselors dealing with SAP. The work load of and alcohol problems from increased least 33% [1996-97] [1999-2000] [cjounselor year[s,] requiring a third [s]tudent [assistance position During period, to be filled.” established and that same year.” per the SAP “handled over 300 referrals The coordinator “many are also indicated that referrals athletes and stu- engaged dents in extracurricular activities.” review, According Brady, while the Board undertook its “illegal drug problem among alcohol continued to be a use body general.” suspicion- student school maintained its during period. program, based Under that thirty-one during year, school tested the 1998-99 school (or ninety percent) twenty-eight positive. of whom tested In the students, year, forty-six thirty- 1999-2000 school the school tested (or eight eighty-two percent) positive. Brady of whom tested also recently Spring “[m]ost stated that in the four students *10 ingested illegal drugs who became sick at school[.]” ultimately The accepted Board the task force’s recommenda- Fully implemented September tion December 1999. of as expanded policy the “authorizes the [school’s] Administra- testing to drug engaged tion conduct random of all students park extracurricular all activities and students authorized to on premises.” “[a]ny school activity It defines extracurricular as activity in participates.” non-credit which a student When the promotion Board announced its decision it listed of health and safety objectives. primary as one of its It also stated that the policy sought use, drug thereby countering peer pres- “to deter may encourage indulgence” encourage sure which and “to stu- drugs participate dents who use alcohol and to in rehabilitative programs!.]” program requires
The both the student or parent and his her or guardian to execute a consent form. The form an includes ac- knowledgment eligible testing “throughout that the is for student designated participation” the time of or an athletic non-athletic activity parking extracurricular or while the student holds a permit. By form, signing the the student also indicates: I a understand and my the fully performance participant reputation agree school are conduct as an I my part, my individual. dependent, hereby regulations to the by [Board] abide rules and set forth the accept standards, by and the for the in which I sponsors activity participate. Regional High X authorize the Hunterdon Central School District to conduct a on a test urine and saliva I breath specimen and/or specimen specimen provide on site to for if test alcohol and use name is drawn from the random my pool. Drug Pursuant to the Student Random and Alcohol I also authorize the Policy, concerning designated
release of information the test results such to District personnel. (January 4, 2001), opinion As of the trial court’s students and their parents guardians had executed 866 consent forms. succinctly testing procedure
The trial court summarized the engaged for used either athletic or non-athletic extra- curricular activities: grade a level Vice Principal week the Athletic Director contacts each Specifically, morning testing. drawing from a of ID numbers on the and oversees the box selected to tested to informed that their child has been be are called be Parents right given Director [choose]. if so The Athletic are the attend they they grade level Vice student’s schedule Principal
then contacts the appropriate testing. time, least time for At that is to ascertain the disruptive pulled or she has been Vice and informed he student is contacted by Principal Vice the student for random test. The then Principal accompanies selected is is interviewed the nurse and nearest Health Office where the student in a with The is rest room provided urine required provide sample. sample illegal [for If The is for adulteration. the test the door closed. tested sample not A substances] is if are there. already are called parents they positive, then ... an outside test based on the sample performed by second provided gas chromatography mass [The conducts laboratory. laboratory] spectro- drug. The ... which the exact chemical nature of the results test lists metry designed to second test is that test are returned the school within 24 hours. The against ensure false positives. a student test policy consequences forth should sets infraction, For positive drugs or alcohol. a first *11 the or suspends participating sport from other the student parking similarly suspends his her activity, extracurricular or suspensions until the privilege. Those remain effect student five-day completes preventative program a education submits drug also urinalysis indicating a no alcohol or use. The school counseling requires the to a of five student attend minimum undergo to sessions with a student assistance coordinator and necessary. if further treatment infraction, suspends the from
For a second the school student activity parking his her the non-athletic and revokes or athletic or sixty days, starting the privilege for from date test to requires The school the student indicated second violation. five-day program, a a minimum of ten attend education attend coordinator, counseling a and to sessions with student assistance urinalysis drugs illegal a free of as resubmit alcohol suspension period. conclusion of the The school also reserves any right “periodic, tests on to conduct unannounced” student found to have committed a second infraction. a confiden-
Hunterdon Central treats a student’s test result as Jersey pursuant regulations tial health of the New record Department of regulations provide Education. Those that “[Tin- formation obtained school’s alcohol and other identify which would the student as an or other alcohol may user only be disclosed purposes those and under permitted by those regulations].” conditions [federal N.J.AC. 6A:16-1.5(e)(2). regulations, turn, Federal prohibit the release (such except highly such records under limited circumstances as disclosure). a 2.1, when court their §§ directs 42 C.F.R. 2.2. regulations provide “may Federal also no record be used to initiate or any charges against patient substantiate criminal a or to 2.2(c). investigation 2.1(c), patient.” §§ conduct of a Id. Accordingly, Hunterdon Central does not share individual test results with law enforcement authorities.
Challenging program’s constitutionality on of them- behalf (collec- children, respective selves and their parents three sets of plaintiffs) tively, August complaint filed suit in this 2000. Their seeks to overturn policy, the school’s entire includ- random-based ing components. its athletic and non-athletie Defendants are the Superintendent Board and of Schools. Greiner, chair, formerly
Joan the task vice force’s is one of the plaintiffs. She submitted certification on behalf of herself her contending husband policy the Board’s violated their daughter’s right parental and “interfered] with our rights daughter to raise our as we think best and to teach her the personal responsibility young she needs adult.” The com- plaint asserts a similar contention behalf of other two sets plaintiffs. expressed subjected Greiner also if concern that program, daughter her would have had “to reveal medical *12 if information testing.” [had she selected for random More been] broadly, Greiner stated that “there was of the no evidence exis- problems specifically tence or among alcohol students who activities, participate in sports, park- extracurricular or who have ing permits.” Jr., Brasell,
John the president, Board’s a certifica- submitted defending tion develop- decision. He Board’s described the components, out- program’s athletic and non-athletic ment that, in his lining chronology He also stated noted above. member,” a parents he “have “years a has observed as Board opposing program policy[.]” openly to when tendency react representing approxi- “[i]n a school district He further noted 15,000 students, 4,000 mately 2,500 parents and over households pro- only parents opposition [to their are students and very loudly view, in favor “speak[s] that fact gram].” Brasell’s policy.” of the Board’s president
The Board
also certified:
diligence
that due
was applied
I
this Board has taken the
ensure
believe
steps
obligation
rights
and that our
balances
of students
policy fairly
in the
of our school.
I further
we
officials to
care
protect
have
public
well-thought
taken the
out
approach
implement
policy
believe
have
patient,
combating
leading
killers of
that we
will assist our students in
one
believe
program
our athletes and
our
This
has
be successful with
proven
youth today.
if
our students with
will continue to work to deter
use
include
expanded
engaged
parking
and those
extracurricular activities.
permits
invalidating the entire
agreed
plaintiffs,
The trial court
with
The court determined that the
violated
program.
under
prohibition against unreasonable searches and seizures
Constitution,
I,
paragraph
Jersey
provision
Article
7 of the New
analogous to the Fourth Amendment of the United States Consti
panel
Appellate
dissenting,
tution.
member of the
With one
reported
in a
Division reversed the trial court’s determination
Joye
Bd.
opinion
Judge
Hunterdon Cent.
written
Stern.
v.
Educ.,
(2002).
N.J.Super.
appeal
583
ing graduated
testing
since the trial court’s decision. The school’s
therefore,
them,
program,
longer
no
confronts
that
circumstance
underlying
Nonetheless,
complaint.
renders moot their
elect
challenge
signifi
to resolve their constitutional
given
public
its
cance and the likelihood “that controversies
will
similar
this one
present
Clymer
Bancorp.,
v.
themselves
the future.”
Summit
57, 66,
Hackett,
(2002);
171 N.J.
“[T]he administration was at its wits
... a
end and
the student
body,
those involved
was in a
particularly
athletics,
interscholastic
state
rebellion.
actions had
coinci-
reached
Disciplinary
‘epidemic proportions.’
dence
an almost three-fold increase in classroom
disruptions
disciplinary
along
using drugs
with the
reports
staffs direct observations of students
glamorizing drug
conclu-
and alcohol
led the administration
the inescapable
use
being
drug abuse as well as the
was
fueled
alcohol and
sion that
2-ebellion
*14
drug
the
culture.”
student’s
about
misperceptions
(internal
omitted).]
[Id.
115 S.Ct. at
132 L.Ed.2d
at
citation
649,
at
572
2389,
test,
special-needs balancing
evaluating
policy
under a
the
privacy
the
of the
interest at
the
first considered
nature
Court
“[particularly
regard
with
to
explained
The
that
stake.
Court
examinations
...
within the
procedures,
and
‘students
medical
expectation
privacy
of
than
environment have a lesser
school
”
657,
generally.’
at
115 S.Ct. at
population
of the
Id.
members
T.L.O.,
2392,
Jersey
(quoting New
v.
469
The Court next considered nature the view, by though the policy. In the even dered the Court’s “ ‘excretory traditionally of urine intrudes on an function collection depends by degree ... of intrusion great privacy,’ shielded sample upon production in which urine is manner 658, 2393, at at monitored.” Id. at 115 S.Ct. L.Ed.2d Ass’n, 602, (quoting Ry. v. Labor Executives’ 489 U.S. Skinner (1989)). 626, 109 1402, 1418, 103 639, 666 The Court S.Ct. L.Ed.2d samples urine under conditions noted the school collected public “nearly typically identical those rest encountered circumstances, concluded Ibid. Under those the Court rooms!.]” privacy by process” compromised that “the were interests “negligible.” Ibid. analysis scope also included the Court’s significant it
urinalysis regard, itself. In that found Court drug sought only that the reveal use and not “whether the tests is, pregnant, or at example, epileptic, diabetic!.]” student for Id. 658, 2393, Moreover, at at 578. the Court 115 S.Ct. L.Ed.2d emphasized only that the school disclosed the test results to a basis, personnel limited number on a need-to-know it did not forward the law results to enforcement authorities prosecution. criminal Ibid. immediacy
The Court then examined “the nature
issue[,]”
governmental
660,
2394, 132
concern at
id. at
Considering
expectation
those three
“the
of
decreased
privacy,
search,
the relative
of
unobtrusiveness
the
and the severi-
ty
by
search,”
of the need met
the
the
that the
Court held
school
policy
district’s
was “reasonable and hence constitutional.”
at
Id.
664-65,
2396,
Lastly,
The holding Court extended Vemonia’s Board of Independent Education School District No. 92 Pottawatomie of of Earls, County 822, 2559, v. 536 122 153 U.S. S.Ct. L.Ed.2d 735 (2002). drug policy The at in that applied competi- issue case “to Team, tive extracurricular activities” such as the “Academic Fu- America, America, band, ture of Farmers Future Homemakers choir, 826, pom-pom, cheerleading, athletics.” at 122 and Id. S.Ct.
586 2562-63, required at all policy 153 L.Ed.2d 742. The
at
drug
beginning an
to an initial
test before
extracurricu-
to submit
testing during
period of
activity,
drug
submit to random
lar
upon
“agree
at
time
reason-
participation, and to
to be tested
2563,
826,
at
suspicion.”
at
are limited
school environment where the State is
health,
maintaining discipline,
safety.” Id.
responsible for
at
rejected
It
notion
S.Ct.
587
Vernonia,
it
As
did
the Court
Earls concluded that the
834,
process
“minimally
collecting
of
urine was
Id.
intrusive!.]”
at
2567,
122 S.Ct. at
at
L.Ed.2d
747. The Court observed that
kept
the students’ test results were
confidential and were not
833, 122
forwarded to law enforcement authorities.
Id. at
at
S.Ct.
2566,
positive
153 L.Ed. 2d at
It further
746.
noted that
test
imposition
discipline
results did not “lead to
of
have
consequences,” except
privilege
academic
to “limit
of
the student’s
833, 122
participating in extracurricular activities.” Id. at
at
S.Ct.
2566-67,
Concerning
government’s
of
and nature
interests,
drug epidemic,”
“the
Court considered
nationwide
834,
2567,
id. at
at
S.Ct.
153 L.Ed.2d at
as well as “the
prevent
to
drug
need
and deter the substantial harm of childhood
at
at
use!.]” Id.
The Court also testing testing is less intrusive than random that schools accordingly. their policies should limit stated: Court finding of [T]he Fourth Amendment does not require individualized suspicion, attempting on and we decline to such a schools requirement prevent impose testing use Moreover, detect students. whether based question regime Such a individualized fact would be less intrusive. would suspicion place an additional with the burden on school teachers who are tasked public already job maintaining difficult order and A individualized discipline. might target groups. The fear of lawsuits suspicion members unfairly unpopular resulting targeted program, chill from such searches enforcement may combating rendering it ineffective in use. (internal omitted).] [Id. at 2568-69,153 S.Ct. L.Ed.2d citations Finally, explained “[w]hile the Court Vemonia there might have been a closer fit between the of athletes and *17 588 by the “role finding drug problem the was ‘fueled
the ... that use,’ finding was not athletes’ such model” effect of 837-38, 122 Id. at S.Ct. at holding.” to the essential omitted). (citation that “Vemonia did It at 749 stated L.Ed.2d likely group most to require not the to test the of students school constitutionality of the drugs, the use but rather considered responsibili- program public in the school’s custodial context 749. Id. S.Ct. at at L.Ed.2d at ties.” Court, therefore, drug testing policy “a that the was reason- found important furthering interest able the School District’s means among preventing deterring drug use its schoolchildren.” Ibid. Breyer emphasized thoughtful concurring opinion,
In a Justice view, that, the in his favored the Court’s policy considerations holding: size, in our the Nation’s schools is serious terms First, problem drugs being our of that use both for children used, consequences
kinds of
of us.
the rest
government’s
side interdiction
has
Second,
emphasis
apparently
upon supply
teenage
not
in recent
reduced
use
years.
with this prob-
school
must find effective
deal
Third, public
systems
ways
lem____
recognizes
The law
with the
in loco
responsibilities
itself
these
phrase
legal
younger
that draws its
force
from
needs of
parentis
phrase
primarily
—a
reflects,
... and which
not that a child or adolescent lacks an interest
or
interest,
but
a child’s
adolescent’s school-related
when
privacy
privacy,
dimensions!]]
adult,
to the
interests of an
has different
privacy
compared
changing
discourage
drugs
... seeks to
Fourth,
demand
single
leading
factor
environment in order
combat the
most important
school’s
drugs,
It
adolescent a
children
take
offers the
namely,
pressure.
peer
non-threatening
drug-use
to decline
friend’s
that he
invitations, namely,
reason
his
join
engage
debate,
band,
one
baseball,
intends
play
participate
interesting,
activities.
useful,
half dozen
and important
(Breyer,
concurring)
[Id.
J.,
related of urine as Some find the no procedure more intrusive than a routine medical examination, but others are seriously listening embarrassed the to need urine with someone “outside provide sample trying stall[.]” the closed restroom When to resolve this kind of close question involving the constitutional I believe it interpretation values, the important airing school board an for the of these differences at provided opportunity public meetings designed give to the entire “the to able to community be opportunity developing The board used this participate” policy. democratic, giving weight to uncover and to resolve participatory process differences, objection fact that in this instance, little, revealed if to the process, any, testing program. proposed testing program subjecting testing. avoids the entire school to Second, And objector. it an for a conscientious He can refuse preserves option while paying (nonparticipation) that is but serious, less severe than price expulsion from the school. reading requiring Third, a of the as contrary Constitution, “individualized in this context, could well lead schools suspicion” public push using subjective boundaries “individualized to its outer criteria limits, suspicion" target groups,” members of or may “unfairly leave those whose unpopular slightly stigmatized others!.] behavior is abnormal in the minds of (Breyer, [Id. at 122 S.Ct. at L.Ed.2d at 841-42, 2570-71, 153 751-52 concur- J., (internal omitted).] ring) citations III. A. With Vemonia and Earls background, turn to New Jersey I, paragraph Jersey law. Article 7 of the New Constitu- tion states: right to be secure in their houses, effects, people persons, papers, against unreasonable searches and shall not be and no warrant seizures, violated; shall issue oath or cause, affirmation, and except upon probable supported by describing things to be searched
particularly
and the
be
place
papers
seized.
provision
analogue
nearly
That
and its Fourth Amendment
contain
language
identical
designed
“prohibit
searches
unreasonable
PBA Local
by government agents.”
N.J. Transit
and seizures
531,
(1997).
Corp.,
v. N.J. Transit
151 N.J.
Our
*19
government’s conduct and the
of the
the overall reasonableness
expectation
privacy
of
legitimate
a
degree to which a citizen “has
Stott,
343, 354,
171 N.J.
794 A.2d
place.”
State v.
the invaded
omitted).
(2002) (internal
citation
We
quotation marks and
120
subjective
privacy
legiti
expectation of
is
“[a]
have observed that
society
prepared
recognize
to
as reason
if it
that
is
mate
is one
Ibid,
omitted)
(internal quotation
and citation
marks
ablet.]”
(alterations
that
original).
respect,
In that
this Court has found
automobile,
privacy in
and
expectation of
one’s
is a lesser
“[t]here
Johnson,
office,
v.
168 N.J.
in one’s
than
one’s home.” State
omitted).
(internal
(2001)
608, 625,
citations
775A.2d 1273
possess a dimin
that schoolchildren
Our law also reflects
and, correspondingly,
that school
expectation
ished
of
order, safety
authority
and disci
“to maintain
officials must have
T.L.O.,
342,
331,
463
re
94 N.J.
pline
a
State in
[within school].”
T.L.O.,
(1983),
grounds,
supra, 469 U.S.
934
rev’d on other
A.2d
325, 105
Traditionally, “the schoolmas
591 enforcing permitted degree eials were latitude in behavior governmental enjoy.” within the schools that other bodies did not Ibid. principles,
Consistent with those
this Court
that
has observed
parent’s
“[i]n a limited sense the teacher stands
his
place
pupil
relationship
charge,
under
care and
and has such a
his
portion
powers
parent
pupil
necessary
of the
over the
isas
66, 74,
carry
employment.”
Lindberg,
out his
Titus v.
N.J.
(internal
(1967)
omitted).
quotation
school and is
school rules
In turn
authorities
disciplines.
the school
obligated
well-being.
are
take
for his
reasonable
safety
precautions
Hankinson,
[Jackson v.
and Bd.
Educ.
New
T.L.O., supra, N.J. A.2d the evolution illustrates sought rights of case law in which courts have balance *20 against duty the to maintain a safe and of officials case, orderly high school environment. In that a assistant school principal purse, a search conducted warrantless of a student’s finding rolling papers suspected drug paraphernalia. that were he 336, Id. at A.2d into 934. “He therefore looked further purse smoking pipe and a metal of the kind used for found marijuana, empty plastic bags plastic bag containing one a and tobaeco-like substance.” Ibid. principal mother
The
contacted
student’s
and the
assistant
337,
eventually
police.
charged
934. The
Id. at
A.2d
State
marijuana
delinquency
possession
the student “with
based
336,
the intent to distribute.” Id. at
We reversed.
we articulated
reduced
evaluating
constitutional standard
searches
officials.
that school
are
We stated
officials
authorized
conduct such
searches,
a
probable
administrative
without warrant and without
cause, provided
they
grounds
that
have “reasonable
to believe that
possesses
illegal activity
activity
a student
evidence
that
discipline
346,
at
would interfere with school
Id.
order[.]”
Concluding
principal
A.2d 934.
that the assistant
had not satisfied
test,
reversed
lower courts’
denial
student’s
347,
suppression
Id.
motion.
at
We decided T.L.O.
on Fourth Amendment
Id.
Supreme
In a passage appears anticipated drug- now have later, Supreme that would cases come decade Court also observed: *21 Against the child’s interest must be set the substantial of interest maintaining in the teachers and administrators classroom and on discipline grounds. Maintaining has order the classroom never been but in easy, ugly recent school disorder has often taken forms: years, use and particularly major
violent crime
the schools have become
social
Even in
problems.
schools
that have been
the most severe
of
spared
disciplinary problems,
preservation
order
a
and
educational environment
close
of
proper
school-
requires
supervision
against
as well
children,
as the enforcement
rules
conduct
that would be
if
an
undertaken
adult.
perfectly permissible
(internal
omitted).]
[Id. at 339,
T.L.O., therefore, principles. established two critical First, right free of be unreasonable searches and seizures Second, public extends to students within school. the nature of environment, order, emphasis safety, schoolhouse with its discipline, requires application a relaxed of traditional search- law, statutory Jersey and-seizure rules. Like our New decisional similarly law the notion reflects that school officials must be empowered safety supervise and ensure the of students within See, e.g., (prohibiting reasonable limits. N.J.S.A. 18A:6-1 use of corporal punishment authorizing but apply school officials to rea disturbances, quell force weapons, sonable obtain control of themselves, protect protect persons property); other (requiring pupils authority N.J.S.A. 18A:37-1 to the to “submit teachers”).
B.
police filing
The fruits of the
in the
search
T.L.O. resulted
delinquency charges against the
Notwithstanding
student.
interests,
implicated
liberty
the case
the student’s
we nonetheless
probable
requirements
relaxed
the warrant
cause
because of
unique public-school
context.
likewise
We
have condoned
searches,
other
forms
administrative
free
traditional constitu
requirements, especially
tional
when unconnected with law en
example,
recently
forcement.
For
observed
we would
expect
psychiatric hospital
doctors or nurses at
State-run
rou
tinely
hospital, including
patient’s
to search
areas of the
all
Stott,
private
supra,
room.
171 N.J. at
A.2d 120. Such
in a
necessary
patients
are not
are
“to ensure
searches
*22
themselves or others.” Ibid.
position to harm either
requirements
probable cause
Similarly,
dispensed with the
we
drug testing of
suspicion
permitting
random
and individual
Transit,
564-65,
supra,
at
police officers N.J.
N.J.
transit
case,
Corporation, a
Jersey
New
Transit
The tests involved the collection of
confidentiality
evaluating
protocols.
with certain
objections,
pertinent
we reviewed the
federal deci-
the officers’
may
suspicionless
permissi-
that “a
search
be
sions that have held
needs,
special
beyond the normal need
ble when the search serves
(internal
548,
quota-
law enforcement.” Id. at
In the course of its review the Court
testing
or alcohol
is a
government-compelled
“that
Id. at
meaning of that term.
search” within the constitutional
agency’s
IV.
tenets,
agree with
Applying the above
we
defendants
“justiffy]
presented
special
a
need to
that Hunterdon Central has
suspi
...
privacy intrusions at issue absent
individualized
Transit,
supra,
cion.” N.J.
151 N.J.
at
A.2d 1243
omitted) (alteration
(internal
origi
quotation
and citation
in
marks
nal).
security
obviously
perform
do not
a
The school’s students
Transit. Like the
function,
as did the transit officers N.J.
in
officers, however,
does
testing policy for those
the one
this case
and,
liability
expose
eligible
testing to criminal
not
those
for
therefore,
impor
More
serves no direct law-enforcement need.
duty
discipline
to maintain order and
tantly, school officials have
schools,
obligated
take
public
in the
and “are
reasonable
Jackson,
safety
well-being.”
precautions for
and
[the students’]
law,
supra,
Firmly
51 N.J.
Plaintiffs that we T.L.O. rely nings Fourth Amendment and not on them here to to the disagree. support application special-needs test. We Al I, though opinion analysis specific no Article our T.L.O. contains paragraph opinion’s that omission does not indicate that the Indeed, applies solely by citing policy rationale to federal claims. Jersey outlining authority respon numerous New statutes officials, 342-43, supra, see T.L.O. 94 N.J. at sibilities of school strongly suggests concepts princi A that the .2d T.L.O. opinion analyzed ples apply equally in that to searches described words, public-school under our State constitution. other grounded analysis nearly context that has our T.L.O. two special-needs argues applying decades now in favor of test present dispute.
Moreover, special-needs application we foreshadowed test There, Vemonia, setting in within a school N.J. Transit. cited describing that case as follows: *24 Vemonia turned In on the context” where and teachers part, “public-school administrators have a “substantial need ... for freedom to maintain and order,” “
where
‘have a lesser
of
than members of the
students
expectation
privacy
”
generally!.]’
Vemonia
to a record of alcohol and
abuse
population
pointed
significance
deterring drug
among
at the
and
of
use
school
stressed
among
weighed
generally,
children
and
athletes
These interests
specifically.
against
the students’ diminished
heavily
expectation
privacy
tipped
drug testing
such that the Court
the school
balance
found
district’s random
policy
reasonable.
(internal
omitted).]
Transit,
N.J. at
[N.J.
A. already touched on the first factor summariz We have students, special relationship officials and ing the between school say repeat Suffice it to and we need not discussion. expectations generally privacy diminished born have order, discipline in safety, government’s duty to maintain athletes, their particular, shed much of the schools. Student they deciding sport. That join a team personal privacy when in front teammates and often shower dress and undress must Vernonia, supra, knowledge. See open facilities is common L.Ed.2d at 577 (observing that U.S. 115 S.Ct. in athletic of communal undress inherent “there is an element omitted). (internal quotation marks and citation participation”) extent, in non- students involved Although to the same not subject regula- similarly themselves additional athletie activities compromised. in which their tion or situations off-campus require and activities occasional “Some of these clubs have own rules undress. All of them their travel and communal *25 598 requirements participating apply that
and do not Earls, 832, supra, body U.S. the student as a whole.” 536 at 122 S.Ct. at Similarly, at a 153 L.Ed.2d 745. student who operates grounds requires parking a motor on vehicle a permit, requirement applicable not to students who do not seek parking privileges. organizational amici fully explain:
The more coverage Student-athletes must have or preseason acquire insurance physical, sign grade an insurance with waiver, conduct, and rules comply dress, point training average, hours other rules as established and be for each may sport. engaged in extracurricular must Students activities often also obtain insurance or sign insurance waivers for extracurricular that activity extends the school’s outings, beyond school-context, the normal such as field liability events, trips, and conferences, from school. away They may have to subscribe competitions training as additional such when the have requirements, activities required attire, general regulations. hours of rules, or and practice rehearsal, other Some extracurricular activities will not have the same of lack of such elements privacy undressing the communal and locker room as but athletics, extracurricular many have elements of activities shared to other student when exposure participants performing organization’s putting such activities as the of an specified uniforms, general change or the need to into different clothes for a event. required particular Given those and the relationships realities traditional between students, school officials and we are that satisfied the students affected Hunterdon random Central’s alcohol expectation have a privacy. reduced
B.
We next
evaluate
relative obtrusiveness of the search.
“
premise
We affirm the basic
‘excretory
a citizen’s
function
”
Transit,
traditionally
by great
supra,
N.J.
privacy.’
[is] shielded
Skinner,
559-60,
N.J.
151
at
supra,
(quoting
701 A.2d
655).
U.S. at
S.Ct. at
L.Ed.2d
When we
Transit,
upheld
N.J.
process
addressed
urine-collection
agency’s
on the fact
procedures
relied
in that case
“require[d]
sample
the urine
to be
in a
collected
manner that
the modesty
privacy
employees.”
ensure[d]
[the affected]
Id.
The the test results as school public as applicable regulations, and federal did the with State Moreover, policy provides agency in N.J. Transit. the school’s positive with personnel any initial result that medical shall review currently is the student family to ascertain whether the student’s drug. so, reported as legally If the test using prescribed roughly reporting the school. That negative without further Transit in which equates protection with the afforded N.J. compel employees provide not “to information agency did about other conditions.” Id. medication or medical prescription 1243. 701A.2d
Moreover, policy’s within the broader we view the intrusiveness law, Jersey existing regulations. Under New context current they school. undergo medical enter must examinations 6A:16-2.2(d)(l). they must to an Additionally, submit N.J.A.C. during early (pre-school through examination once childhood third six), grade), during once pre-adolescence (grades through four twelve). during (grades through once adolescence seven Ibid. Those must result in examinations include or documentation of “[mjedical immunization, history including allergies, past serious illnesses, injuries operations, medications and current health problems[,]” screenings “including height, weight, and health hear- (e). ing, pressure, blood and vision[.]” Id. at Although family physician perform a student’s can those ser- vices, physicians inspectors serve as of last resort and are (b). authorized themselves examine students. Id. provides: relevant statute conducting such examinations the medical pupils require inspector may pupils clothing or loosen, remove their waist in a open, above the manner facilitate guardians but in examination, such shall inspection case be parents *27 writing in notified of such in such examination and notice the of proposed presence guardians the or one of shall be it parents and shall be stated in the requested, guardian notice that the absence a or of there shall be a nurse or parent present and in of a teacher the examination female the nurse or teacher shall pupil present guardian objects the sex, be of female and that if the or to such examina- parent guardian the then or tion, parent file with medical may inspector report physician the condition for which such
family upon examination was deemed advisable the medical inspector.
[N.J.S. 18A:40-5.] A. regulations apply every student, The equally just above not 6A:16-2.2(e) student Compare athletes. (regulating N.J.A.C. all students) (h) (mandating and particular more requirements for athletes). student policy
We find that the school’s test limits the intrusion protects students’ and personal dignity interests their possible the extent under the Although poli- circumstances. cy’s sufficiently pro- intrusiveness is circumscribed under current cedures, drug we observe that testing advances the science of possible have techniques made other collection even intrusive less than urine technique collection. One such is testing. oral-swab According to the United States Office of Drug National Control Policy, drugs, drug fluids, can be detected in oral [t]races metabolites, alcohol fluids generic from the mouth. Oral term for and other material collected saliva are inner the most common They to collect —a swab of the cheek is way. are easy is less than with urine substitute, to adulterate or collection invasive harder drug testing. drugs not in oral fluids as do remain hair Because metabolites determining long current do in this method shows more urine, promise as they and impairment.
use Drug Know What You Need To [United Policy, States of National Control Office www.whitehousedrugpoli- Drug Testing Schools, 10 available About 2003).] (last cy.gov/pdi/drug_testing.pdf visited Apr. being acknowledge “[subsequent to this suit Defendants sample filed, testing and a urine has advanced science Rather, necessary school dis- longer for accurate results. is no may fluid with a swab.” Defendants opt now for oral tricts Hunterdon now uses an oral-swab further Central indicate We construe defendants’ suspicion-based program. for its test the school will convert acknowledgment as an indication that provided that program, tests random-based oral-swab for its unduly using will not dimmish is satisfied that such tests Board degree invasiveness to some program’s effectiveness. Because factor, eventu- analysis premised is on that dynamic our here ality.
C. analysis special-needs remaining factor under the government’s strength of the assert requires that evaluate the as a That the United States conducting need in the search. ed magni problem significant and alcohol whole confronts Earls, reasonable public beyond schools is debate. tude its at 746-47 122 S.Ct. at L.Ed.2d supra, 536 U.S. at *28 Vernonia, drug epidemic”); (referring problem as “nationwide 2395, (stating that 661,115 L.Ed.2d at 579 at at 515 U.S. S.Ct. com important indeed, perhaps deterring drug use “is student — by survey sponsored a recent According to national pelling”). auspices Drug (through Institute on Abuse National Services), teen Human of Health and Department States United a wide years but still affects drug use has recent decreased body Although of students. past-year marijuana among use of graders nationally tenth slightly decreased from 2001 to it thirty at percent, nearly remains with a third of students in that grade reporting using Release, drug. Press National Institute Abuse, Drug 2002 Monitoring the Survey Future Shows De- crease Marijuana, Tobacco, in use Drugs, Cigarettes, Club (Dee. 2002). 2at Jersey,
In New data by released in then-Attorney General Farmer, Jr., John “virtually J. change shows no in young people’s alcohol, marijuana, use of hallucinogens, cocaine, amphetamines and heroin” Release, between 1995 and 1998. Press Jersey New Department of Safety, Law and Public State Survey Releases Among Students, (Dec. Substance Abuse High School at 1 1999). “[ajbout The data show that every four in five students (78.5%)report lives[,]” the use of at alcohol some time in their [report marijuana] “36.9% using past year[,]” and that “[t]he widely most drugs, used illicit marijuana, other than are hallucino- gens amphetamines.” Jersey Department New of Law and Safety, Drug Public Among Alcohol Use Jersey High New School Students particular 17-18. significance, Of survey nearly reveals that sixty percent responding parental indicated that disapproval prevent would using them from drugs in the first instance. Id. at 89.
The national survey and statewide results cited above are updated versions of similar surveys previously by released same entities. The Board relied in part results, on those earlier which are us, included the record before in implementing its program. noted, random-based As the Board also relied on surveys by conducted the RMBSI that specifically were directed at Hunterdon Central. The results of surveys, those summarized above, length indicate that drug and alcohol use among students at Hunterdon generally Central is consistent with national and figures. statewide survey data, addition to the record contains certified state-
ments personnel numerous school describing experi- first-hand *29 using drugs with or alcohol at Hunterdon Central. enees students Brady, “personally indicated that she be- principal, the school’s premises” snorting heroin school of two students came aware coaches, teachers, similarly that and other administrators growing they perceive to be a reported “their concern about what the counselor that coun- problem.” student stated One assistance thirty-three percent in a seling workload had increased at least three-year “many that of the referrals are athletes and period and Lastly, the engaged in extracurricular activities.” record in were three deaths due to heroin overdoses indicates that there district, recently as municipalities the and that within illegal drugs ingested were to have four students known premises. while on school certifications, undisputed by largely described the facts survey indicating that a with results third together
plaintiffs, marijuana, grades in the continue to use upper of thé students Although problem. scope of school’s demonstrate the equate Hunterdon Central does not with “state situation at Vemonia, clearly the record reveals rebellion” that existed affecting portion illegal drug and alcohol sizable use whole, Viewing the record as a we are population. student significant drug the Board faced with a satisfied that was testing program to problem expanded it the random alcohol when present its form. reasonably pro- that tailored conclude the Board its
We also then-existing problem. scope gram to meet the and nature require does not Board this context Reasonableness proof verifying efficacy of random possess irrefutable among reducing substance abuse students. and alcohol Rather, its enough the Board believed it is objec- Board’s attaining effect in would have some measurable deterring- objectives only drug and include not tives. Those use, for such use encouraging positive those who test alcohol but goal is self- programs. That second participate rehabilitative positive required are executing in who test the sense that students counseling returning to receive as a suspended condition to the *30 activity. perceived policy’s compo- The with successes athletic nent, when combined with other information considered Board, provided a sufficient expanding basis for it to conclude that program yield would favorable results. other information
Such before the Board included a 1996 state- survey showing fifty percent wide responding that over of stu- deter, parental disapproval dents stated that would them from (as noted, illegal drug figure nearly use sixty percent rose to survey). figures in the 1999 Those corroborate the Board’s belief drug that its would deter or alcohol use because students negative consequences would want to avoid the associated with conduct, having parents such as their disapprove know and of losing ability it or participate in desired extracurricular activities. three, that, are although conclusive,
We
aware of
studies
not
suggest
drug testing programs
that random
drug
curb student
Lindquist
City
Jersey
use. See
v.
City
Dep’t,
Fire
175 N.J.
of
244, 273-77,
(2003)
A second
testing.
Joseph R.
had conducted random
whose schools
Drug Test
Legality Random
McKinney,
Effectiveness
Policies,
www.studentdrugtesting.org/Effec
ing
at 3 available
2003)
(last
(McKinney Study). Al
Apr.
visited
tiveness.htm
McKinney Study
expressly,
though it
not so indicate
does
the.
Researchers asked
to schools located
Indiana.
appears limited
during
activity
compare drug and alcohol
principals
“to
drug testing policies were
effect
year when
1999-2000 school
year
were not allowed to
when schools
with the 2000-01
testing policies.” Ibid. The
with their random
continue
appellate court
intermediate
for the hiatus is
reason
an.
unconstitutional,
ruling
policies were
had ruled that such
Indiana
*31
v. North
highest court. Linke
ultimately reversed
that state’s
(Ind.2002).
Corp.,
After ney Study concluded that strong drug testing in tool for schools use [r]andom policies appear provide legal drug usage among ----While teens battle to reduce alcohol and drug testing does show that random schools, this study debate will continue over drugs reducing testing drug to use are effective temptation policies alcohol. 4.] at supra, Study,
[McKinney Oregon study a third looked two connected with Researchers year, with mandato- one high during the 1999-2000 schools a control sports participation, and testing a condition of ry drug Elliot, David Lynn Goldberg, Diane drug testing. school without Kuehl, Moe, & MacKinnon, Kerry Liva Nohre S. P. Esther Lockwood, Sub- Drug Testing Athletes to Prevent M. Chondra the SAT- Study Pilot Results Background stance Abuse: Notification) (Student Using Testing Random Athlete URN 2003). (Jan. Health, at 16-17 Study, of Adolescent Journal drug illicit had a rate of drug-tested student athletes school that Id. at 24. the control school. one-fourth that of use that was about warning study, After there were limitations to their policy drug testing authors concluded that of random “[a] surveil- appears significantly lance among have reduced recent use adolescent athletes.” Ibid. result, recently published study suggests contrary
A fourth namely, drug testing may provide panacea “that not schools reducing hoped.” Ryoko student use that some ... had Lloyd Yamaguchi, O’Malley, D. Patrick Johnston & M. Relation- ship Drug Drug-Testing Between Student Illicit Use and School Policies, 2003) Health, (Apr. (Michigan Journal School at 164 76,000 Study). study, nationwide, surveyed In that which (of kind) “drug testing researchers found that was not a significant predictor marijuana past of student use drug testing suspicion.” months. Neither was for cause or Id. at 163. Study
Both the Michigan Study sup- SATURN and the were ported by grants from the Drug National Institute on Abuse. prior suggesting And like the studies more favorable results from perspective, Michigan Study school’s has limitations. Michigan [The does not Study] differentiate between schools that do intensive, regular screening random and those that test As a it only occasionally. result, vigilant job does not rule out the that the most schools do a better possibility curbing drug use. Drug The National Institute Abuse said it would take several more such studies before any about can be certainty efficacy established. More being research is it but said, the results are explored, probably years away. [Gregg Sign Testing Drug Winter, Finds No That Use, Deters Students’ Study A14] N.Y. Times, 17, 2003, May Thus, complete research this area is not and to date has *32 yielded whole, mixed relatively results. As a the research is new. Presumably, testing program gains school’s effectiveness as a only gradually, implementation deterrent as signals consistent consequence students a new to illicit use. The three studies suggest that random curbs student and alcohol use, study suggests effect, and the one simply no such are competing weighed factors to be when evaluating the reasonable- challenged program. ness of the We also consider the data Central, specifically related to Hunterdon in addition to the certifi- balance, cations of school officials described above. On we con- I, clude that paragraph reasonableness under Article 7 does not require the Board to study wait for a definitive regarding drug- testing efficacy addressing problem before already that it knows affects a sizable number of students.
D. emphasize part analysis We that no of our is intended as an policy grounds. endorsement of the Board’s decision on Whether program appropriate the Board’s reflects a expenditure wise or resources is for the Board and its local constituents to determine. Our sole task is to special- evaluate the Board’s action within the needs framework as articulated our federal counterpart and as Court N.J. Transit. applied by this Having considered the expectation affected privacy, students’ diminished the sufficient limitations testing, obtrusiveness of the the substantial governmental maintaining interest in a school environment free alcohol, drugs and we find that Hunterdon Central’s I, passes paragraph Jersey muster under Article 7 of the New Constitution.
V.
A.
conclusion,
Urging
contrary
plaintiffs argue that we should
I, paragraph
greater
construe Article
providing
protection
Hunterdon Central’s students
than that available under
I,
nothing
history
Fourth Amendment.' We find
in the
of Article
law,
paragraph
preexisting
prevailing
State
atti
public
that result. See State v.
tudes of the
that would warrant
Hunt,
(1982)
338, 359-68,
(Handler, J.,
91 N.J.
from federal To the as the above discussion demonstrates, regarding public-school law within the our searches law, generally encapsulating has mirrored federal similar context concepts if not identical and concerns. interpreted
On more than one occasion this Court has
affording
greater protections
State’s constitution as
its citizens
See,
Cooke,
by
counterpart.
e.g.,
than
its federal
those afforded
670,
(declining
apply
supra,
Our accord with Desilets v. Clearview Education, N.J.Super. (App.Div. Board A.2d of 1993). case, junior high sponsored voluntary school a that trip, using provided by parent field A buses school board. of participating sign permission slip, each student had to which luggage Although stated that students’ hand would be searched. a search of one student’s items no or other revealed contraband items, inappropriate brought his mother an nevertheless action against alleging search board violated Fourth counterpart. Jersey Amendment and its New Id. at 627 A.2d 667. Appellate the trial Division affirmed court’s dismissal of the suit,
parent’s relying many underlying on same concepts our holding here. The court observed: The need for close in the schoolhouse is intensified field supervision trips
where abound to elude the watchful of Administra- eyes opportunities chaperones. tors and have a students from teachers the misbehavior other duty protect students. justified We are the search at its was persuaded inception unique burdens on school in the field context that the search personnel and placed trip luggage limited to was related to the duty hand school’s reasonably provide and control. discipline, supervision [Id. 667.] A.2d 380,382, rejected that, The court parent’s also contention conduct- search, I, ing suspicionless officials Article had violated panel unanimously paragraph 7. The concluded: greater Constitution provides the New Jersey We are not persuaded than federal We counterpart. of this case its under the circumstances protection the search analyzed the New Court Jersey Supreme that in T.L.O. opinion note its Constitution, to the United States the Fourth Amendment and seizure issue under stringent organic suggest law more imposed not that New Jersey’s and did standards. 667.] 627 A.2d [Id. B. court, separate plaintiffs also refer to trial As did the I, provides: persons “All paragraph provision, Article which natural and independent, and have certain by nature free and are enjoying and among de rights, which are those unalienable possessing, protecting and fending liberty, acquiring, life and obtaining safety happiness.” property, pursuing construing that of this Court Plaintiffs cite numerous decisions they they significant because evi contending that “are provision, protecting personal heightened concern for this State’s *35 dence privacy variety of contexts.” a wide I, 1 the basis question paragraph Article forms
There is no
that
personal family-planning
implicating highly
of several decisions
See, e.g.,
issues,
reproductive
choice.
such as sterilization
(2000)
Farmer,
609,
A.2d 620
v.
165 N.J.
762
Planned Parenthood
I,
invalidating
conditioning
1 in
statute
(citing
paragraph
Article
notification); Right to Choose
right
parental
on
minor’s
abortion
(1982)
I,
287,
(invoking Article
Byrne,
611
search,
governmental
interest in connection with
includ
See,
ing compelled
bodily
e.g.,
v.
collection
one’s
fluids.
State
Ravotto,
(2001)
227,
(analyzing exclusively
301
169 N.J.
777 A.2d
I,
analogue
paragraph
under Article
7
its Fourth Amendment
content);
taking
forced
of blood to test
N.J.
State’s
alcohol
Transit,
supra,
(evaluating
151 N.J.
C. argue participating Plaintiffs do that in extracurricular not right. itself to a activities rises constitutional See Todd v. Rush (7th Cir.) Schs., County (observing F. 3d 133 986 that “extra activities, (internal athletics, curricular are a privilege”) quota like omitted), denied, tion marks and citation cert. 525 U.S. (1998). Rather, they S.Ct. contend such L.Ed.2d that sufficiently important activities “are to an individual’s educational conditioning availability government’s success their relinquishment right suspicionless free to be from searches ¶I, scrutiny warrants careful under Article 7.” course, recognize, We the intrinsic value extracurricular So, too, activities. have we identified use as one must overcome “receive a obstacles some students worth- Burke, 287, 372, v. while education.” Abbott N.J. 575A.2d (Abbott (1990) II). policy given We have the careful Board’s scrutiny urged by plaintiffs. doing, so we cannot conclude importance outweighs of extracurricular activities the Board’s *36 the engage articulated need in reasonable efforts to enhance by reducing for all students educational environment substance high Breyer in abuse within its school. also echo Justice We observing challenged program “preserves option that an for a the objector. paying price conscientious He can while a refuse serious, (nonparticipation) expulsion that is but less severe than Earls, 841,122 supra, 536 U.S. at S.Ct. at from the school.” J., (Breyer, concurring). at 752 L.Ed.2d
D. legitimately ques- Plaintiffs raise other concerns. Joan Greiner policy tions whether the would force students disclose school’s Beyond already personal what law re- medical histories. State records, confidentiality of quires in terms of student health program appears treating to address Greiner’s concern indicating negative any using test result that a student it, lawfully prescribed drug. laboratory As we understand drug reported indicating prescription simply result use is not the school. also challengers contend that record contains no direct among
proof illegal and alcohol use exists student activities, engaged in athletes and those other extracurricular sure, testing policy applies. survey whom To be the RMBSI distinguish engage in results do not those who extracur- between Board, however, ricular activities those who do not. The 2,000 expanded applies policy indicates that its to about of the students, 2,500 eighty percent of entire school’s or about body. large percentage, student view of that the Board acted survey reasonably considering general results as relevant among eligible group. indicators of and alcohol use test Moreover, a retired the certification of student assistance coordi- during nator indicates that her tenure the dealt with over SAP year, “many three referrals hundred referrals engaged are athletes and students extracurricular activities.” Urging approaches us to eschew the taken Vemonia Earls, plaintiffs emphasize Supreme that the Court decided objections dissenting justices. strong those cases over Unquestionably, minds and can and do reasonable courts differ respect, again agree Breyer these In that issues. with Justice type challenge presents question involving this “close Earls, interpretation supra, values[.]” constitutional 536 U.S. J., (Breyer, L.Ed.2d at S.Ct. concur- *37 ring). agree suggestion community with We also his that wide approval a testing program school’s and alcohol is relevant deciding questions. such See ibid. not, however, do suggest majority a
We
that
citizens in
community
one
can bend the
will.
constitution to their collective
Rather,
merely
prior
we
follow
case law that
instructs us to
society’s viewpoint
evaluating
expecta
consider
an
when
whether
of privacy
tion
entitled
protection
given
is
to enhanced
Stott,
supra,
circumstance.
See
N.J. at
Similarly, by our is informed the fact that the Board two-year resulting employed process expanded meticulous regard, program. adopted policy the Board the current issues, only appointed it after task force to review the relevant firm, by public hearings commissioned two studies an outside held community’s views, to elicit the the other and considered informa- steps fortify tion contained in the record. Those our deliberate attempt conclusion that the before us reflects a reasoned by approving parents the Board and to address a documented drug-and-alcohol problem at the school.
VI. A. arguments The dissent echoes the same or similar raised plaintiffs already respect Although that we have addressed. reflect, arguments we are not
the concern for those disagree persuaded by with the dissent’s them. We likewise law interpretation application of the relevant case *38 throughout opinion. contrary analysis to our set forth this Our Earls example, length the decision. colleagues, for criticize at We and Earls reiterate that federal decisions such as Vemonia not do constitution, analysis only our but serve control the under State’s accept Even if were the guides. as we to dissent’s criticism Earls, stronger in program arguments before us carries favor the than the reviewed in that case for two constitutionality reasons. Earls,
First, unlike the record the record in this ease contains firm, by an and other two sets of data collected outside informa- defining drug the the and specifically scope tion school’s alcohol > problems. suggests survey The dissent that the results were pharmaceutical company a funded compromised because them. nothing that support suggestion. in the record to is There is Nor anything there that the but an indication RMBSI conducted study record here unbiased on the Board’s behalf. The also relating data three includes to deaths attributed to overdoses occurring within municipalities the school district.
Second, stated, previously specimen-collection process the greater personal privacy Central’s students affords Hunterdon Earls. Vemonia and processes anticipated the than the With swab-tests, process arrival of that will even less become intrusive prior than the tests at the federal The critical issue cases. Vemonia, that, in citing Earls point have not is we been Jersey’s specific Instead, concerns. we insensitive New replicated Supreme approach taken the have United States only existing Jersey Court because of our conclusion that New present record it. case law and warrant issue, barely On a related dissent mentions critical ele- decisions, is, prior suspicionless testing inquiry ment an procedure of the collection embar- into the invasiveness (or thereof) stigma might or lack attach to it. rassment challenged program, faculty no Under monitor stands outside urinal, open singled potential student is out as a stall no merely randomly user because he or she is tested. That in marked contrast are tested stands students who under stigma immediately suspicion-based program in a certain which attaches.
Perhaps important, exposed most no student is to criminal liability because, heart, program designed promote its health ability of Hunterdon Central’s and their Therefore, applied learn. we have not a “traditional” search-and- analysis simple not a seizure for the reason this is traditional many holding case. Our thus is unrelated to the criminal-law Jersey greater decisions which have afforded New citizens protections than those found under the federal constitution when the relevant circumstances have that result. warranted Earls, approvingly it has harsh words for cites
While dissent *39 Vernonia, though holding potentially to even Vemonia’s reaches student athletes scale to the “mass” scale our on similar that colleagues negatively imagine so We describe this case. that arguments concerning govern same the scope the wide of the implemented ment’s voiced first action were when State sobriety stops possible suspicionless to check for intoxi motorists nearly stops subject six to cation. That million drivers are those (There approximately not does make them unconstitutional. are Jersey million in this 5.7 licensed motorists State. New Motor Commission, MVC, www.state.nj.us/ Vehicle About available at mvc/aboutjnvc.html (last 2003). theory, In are visited all June subject suspicionless checkpoint stops to within boundaries Hester, prior N.J.Super. case v. law. State 584 A.2d (App.Div.1990).)
Although analogy imperfect, concept is is similar. The theoretically large that high fact number of school students subject might drug testing be to does render not such tests require constitutionally infirm. What that fact is that we does stake, carefully have done in balance the interests which we this special-needs by applying all of the elements of the case virtue of holding to be again state that our is not significant, test. More we wishing green light to an automatic for schools construed as Instead, schools replicate program. Hunterdon Central’s those meticulously programs on have their will to base intended record, to here. that established similar the record Whether to easy an for other school boards becomes or difficult task now, only pass judgment accomplish to be seen. For remains program us. before upholding Cen- The dissent further contends that Hunterdon program long pro- So tral’s somehow reflects bad civics. as its reasonable, gram it constitu- we leave to the Board its local convey program might “lesson” to ents determine what might will instill in an students. It well be this case students law, appreciation namely, permitted rule of of the that officials are whim, they but testing policy only to maintain a not on some after justified have it the lesson under constitutional standards. Or might consequences illegal drug be are and alcohol that there use, ability both terms of a student’s health and his or her event, participate only our is to in selected activities. task program’s constitutionality, evaluate not to our substitute system respect public value that of the of the Board broader policy underlying program. its suggests expansion
The dissent also that the especially non-athletic extracurricular activities is infirm on ground engage impli- who' not such activities do safety personal degree cate their own to the same as student True, nature present athletes. some activities their more envision, however, obvious than others. concerns We can *40 many giving activities to the non-athletic involve students access areas, e.g., publications school’s more isolated a room for newspaper, literary magazine, yearbook; student or school loft; every theatre or choir or a such band alcove. Because activity poses challenge superviso- to some extent a to Board’s ry authority, cannot that the Board unrea- we conclude has acted sonably subjecting participants scrutiny pur to elevated Desilets, poses testing. supra, N.J.Super. of random Cf. (justifying suspicionless trips A .2d searches on field part supervision in “[t]he because need for close the schoolhouse is trips opportunities intensified on where to elude the [such] abound eyes chaperones”). watchful
Similarly, wishing park grounds on school ask school supervisory authority beyond officials extend their the class- lot, response, room. In adequate the school must maintain an traffic, regulate safeguard students from collision and other risks attached to vehicle use. That asked-for extension of motor supervision, touching safety, as it does on issues student makes parking activity triggering special- akin an extracurricular analysis. perspective, needs From that the Board’s undifferenti- ated treatment of athletic and non-athletic extracurricular activi- I, ties does not breach the bounds of reasonableness under Article paragraph testing 7 insofar as random con- alcohol is cerned. discussed,
Lastly, of the four studies that we have the dissent Michigan Study. concentrates on the reiterate belief that We our approach rely selectively study, is not but better one evaluating instead to view the literature as whole. When decision, Michigan Study overall reasonableness the Board’s merely along one factor to be considered with the studies before contrary yielding question it results. The narrow remains not proof concerning drug-testing efficacy, whether there is definitive requirement but whether the reasonableness under our State’s approving parents imple- constitution bars the Board and from menting such tests in view of Hunterdon Central’s documented stated, problems. already and alcohol For the reasons that it conclude does not.
B. closing In upholding We offer these observations. Vemonia, accepted supra, Supreme
student athletes in Court *41 drug problem the school district’s view that the district’s had been fueled, part, by effect at least the so-called “role-model” 663,115 2396,132 drug use. 515 S.Ct. at L.Ed.2d athletes’ U.S. Court, According to that circumstance at 581. contributed to case, efficacy. policy’s express In Ibid. this defendants view, equally reject similar which find reasonable. We engaged in notion that students extracurricular activities are not degree nostalgic role models to the same as student athletes. image quarterback by the one of the star most imitated his peers supplemented by images. Today, has been other lead play, newspa- actress in the school the editor-in-chief of the school per, settings joined and similar leaders in non-athletic have stu- athletes, female, serving dent both male as student role models. perspective,
From that the Board’s decision to include both groups eligible testing pool within appears of students rational Board, According it the Court. to the considered Vemonia counsel, adopted policy. when it its initial As noted its explains why expanded policy also the Board has not its to the population law, entire student federal as reflected in —because Earls, any Vemonia expansion. has not allowed such event, subjecting ability all students to would eliminate the objector opt of a eligible pool. conscientious out of the As already suggested, option program’s contributes to' the rea- sonableness; removal, therefore, jeopardize pro- its would gram’s constitutionality. emphasize opening
We that this is not “a decision broad vistas Miller, suspicionless searches[.]” Chandler v. 520 U.S. 321, 117 1295, 1304,137 (1997). S.Ct. L.Ed.2d The central compelling holding, namely, unique public-school factor our context, terms, primary By also serves as its inhibitor. its own today’s beyond decision should not extend the schoolhouse walls. repeat also We future will be on the assessed precise record on which it is based within the framework of the special-needs test, test. Under that we conclude that there is attempt officials to room in our State’s constitution for school illegal drugs and alcohol in the manner rid Hunterdon Central of sought here.
VII. testing program per- drug random and alcohol The Board’s I, Jersey paragraph missible under Article 7 of the New Constitu- judgment Appellate Division is Accordingly, tion. of the affirmed.
LaVECCHIA, J., dissenting. majority today permissible A of holds that it is under our Court subject public school students to mass our State Constitution to drug testing. respectfully I suspicionless dissent. permitted wage drugs war should not be
The desire to sensitivity protections. require- coarsen our to constitutional and, minimum, at a based on ment that searches be reasonable particularized suspicion is a constitutional mandate that some applies juveniles protections as adults. The of our State as well my should not be shut out of our schoolhouses. Constitution view, special-needs majority’s application doctrine seriously here support drug-testing the school at issue jurisprudential analysis governing searches erodes the traditional regimen drug of random Simply put, and seizures. a routine wish to avail themselves of the educational of students who through extracurricular school and social enhancements offered showing ought permitted certainly not on the activities not be — way ties use to the made this school district that no testing. devoid of group targeted suspicionless The record is testing. any special permit need to this random throughout holding will reverberate State’s The Court’s education, shearing an system public and result Jersey public school students quarter estimated of a million New suspicionless drug testing. For those right to be free of students, protection against government-initi- state constitutional suspicionless bodily of their fluids is now condi-
ated searches giving up opportunity participate tioned on their extra- wrong system curricular activities. That is the lesson for our young public school education to teach the citizens entrusted to its recognized, care. As Brandéis Government is the “[o]ur Justice ill, potent, omnipresent good teacher. For or for it teaches States, people by example.” v. whole its Olmstead United (1928). 438, 485, 564, 575, U.S. 48 S.Ct. 72 L.Ed. conclude, I would as did the Naomi Eichen in Honorable her below, thoughtful compelling expansive that the ran dissent drug-testing program Regional dom Hunterdon Central (Hunterdon Central) High Board of Education School violates I, paragraph Jersey Joye Article 7 of the New Constitution. v. Sch., 600, 615, Reg’l High N.J.Super. Hunterdon Cent. A (App.Div.2002). .2d706
I. challenge This case involves a to a of the Hunterdon Regional requiring Central Board of Education that results in approximately eighty percent population of the student at this regional high testing. Specifical- school to submit to random ly, program requires through graders all ninth twelfth who clubs, participate sports, wish to in extracurricular and other activities, apply as those parking well as students who for school routine, privileges, drug testing.1 to submit to random That protocol drug testing proposed was an enhancement to the existing suspicion-based Indeed, testing program. school district’s 1 report by Jersey Department The most recent the New of Education indicates 332,426 approximately grades through that there are students nine twelve in 2001-2002, Jersey's public Jersey New schools. New Vital Education Statistics http://www.state.nj.us/njded/data/vitaled/0102/. Assuming available at statewide that, application majority's holding, assuming of the and as in Hunterdon County, eighty percent participate of students statewide in extracurricular activi- ties, 265,940 majority's may holding approximately Jersey affect New stu- dents. from and alcohol use to deter students the district’s efforts engage searches of School administrators are multifaceted. conjunction “dog-sniffing sweeps” and conduct student lockers Furthermore, drug and alcohol edu- county prosecutor. with part and a student assis- required is of the curriculum cation a their counseling for families. program provides tance adopted policy that authorized July In the school board justifica- drug testing of student athletes. As random routine body survey of the student policy for the board cited tion year, although commissioned during that it the 1996-1997 school survey any connection between the record does not disclose targeted testing. population results and the student athlete survey by is that the was funded the record does reveal What (Roche), Jersey pharmaceutical New Systems Diagnostic Roche kits, was administered company produces drug-testing (RMBSI). Institute, Inc. Rocky Mountain Behavioral Science self-administered, paper-and- surveyed using a Students were thirty-five min- questionnaire required approximately pencil survey selected students complete. utes to Coordinators body, but it unclear “represent” the Hunterdon Central student students, ap- Ultimately, was or how selection made. enrolled at Hunter- proximately twenty-four percent of students Central, surveyed. sample population The consisted of don were freshman, sophomores, juniors, and 109 seniors. history, questionnaire inquired current general, about intensity Data drug and alcohol use. also was frequency, and drug availability at the perceptions of school. collected on student accuracy to ensure questionnaire contained controls responses. Approximately for- exaggerated detect inconsistent survey. aAs ty consistency performed checks were on each *44 result, as of tested were classified percent one the students responses from responders” and their were excluded “inconsistent compilations. data survey according categorized were to anonymous The results drugs, alcohol various had ever had tried or whether students previous months, used such substances twelve and had used thirty days. them in the low, last categorized Students were medium, high drug and survey users based on their responses. drug Low users included students drug, who had tried a were alcohol, light drug users of or negligible. High whose use was poly-substance, stimulant, users heavy marijuana, included heavy (Presumably, and alcohol users. “light” terms such as “heavy” itself.) quantified substance use were questionnaire on the indicated, survey
The 1996-1997 among results things, other freshman, sophomores, 37% of juniors, 45% of 46% of 54% of seniors had used alcohol in the last month. Those who marijuana used freshman, that month included 7% of 15% of sophomores, juniors, 15% of of Percentages 19% seniors. of students who ingested had during other substances the last month, to, including, cocaine, barbiturates, but not limited stimu- lants, inhalants, hallucinogens, ranged from 0 to 8%. A follow- up survey during conducted year the 1999-2000 school revealed percentages lower categories. these Those latter results indi- freshman, cated that 21% of sophomores, juniors, 38% of 47% and 52% of seniors consumed previous alcohol month. Marijuana previous use month was recorded at 2% freshman, sophomores, juniors, 10% of 13% of and 13% of seniors. Use of ranged other substances from 0 to 6%.2 policy requiring new random tests for student athletes accepted was not universally in the Hunterdon Central community. Parents and spoke against out it. A rift developed between the board of education and the school’s athletic booster club. The responded board to the appointing concerns 2 The results of during conducted survey the 1999-2000 follow-up signaled an overall trend categories year toward less substance use. In most less use high category was assessed. multi-drug Even in the risk users, (1.4% 0.6%); substance use rates went down: down freshman —57% sopho- (2.8% 0%); juniors (5.1% 4.4%); down mores —100% down sen- —14% (6.6% 3.2%). down iors —52% *45 evaluating the dis- charged with Testing Task Force” “Drag drag testing. programs of current trict’s 1998, recommend report in November Force issued The Task drag for random singled out athletes not be ing that student program of ran Instead, suggested that the report testing. who apply to all students expanded be dom addition, the Task activities. participate in extracurricular privileges to stu grant parking of that the Force recommended drug testing. The random submitting to be conditioned on dents pattern plainly its intention report stated Task Force’s developing program on drag-testing reach of recommended challenges to Amendment concerning Fourth case law federal report that the Board programs. The stated drag-testing random it group of students when randomly a broader to test had wished athletes, but testing student initial its established Acton, District v. School that the facts Vernonia believed 47J (1995), constrained L.Ed.2d 564 515 U.S. 115 S.Ct. Force, a more According to the Task at that time. broader action Todd v. Appeals, Circuit Court decision from Seventh recent Schools, (1998), expan supported an County 133 F.3d Rush testing. Notably, the Task random program of sion of the school’s surveys of Hunterdon taken report suggest not Force did alcohol drag or any particularized students indicated Central activities, participating in extracurricular among students problem parked vehicles to school among who drove motor advanced in these been grounds. Nor has that assertion on the proceedings. expansion of its 18, 2000, approved January the Board
On groups drag testing to include the student random program Plaintiffs, parents three report. in the Task Force identified attending Hunterdon Central children of their student behalf action, challenge to brought the instant filing time of the The late Honor- expanded program. constitutionality of that I, Article program violated held that the Robert E. Guterl able paragraph Jersey 7 of the New perma- Constitution and issued a injunction prohibiting implementation. nent its Division, Appellate opinion, a divided reversed the hold *46 ing drug-testing program that the was unconstitutional and re manded proceedings. Joye, for further supra, Super, 353 N.J. at 615, appeal 803 A .2d right 706. This is before us as of based Judge Judge agreed Eiehen’s dissent. Eiehen with the trial court targeted “that all of the students had an undiminished expectation excretory in their functions and that in the absence of any showing particularized special of a testing” need for the the program drug testing I, of random was para violative of Article graph Jersey 615, 7 of the New Constitution. Id. at A 803 .2d706.
II. question There is no but that a urine test drug to detect by alcohol use subject I, students constitutes a “search” to Article paragraph protections. 7 parties agree. On that the Nor are the procedures school specimen district’s for collection contested plaintiffs. appeal This single involves a issue: whether it is subject (to reasonable to targeted public these pupils wit, school participate students who in extracurricular activities or who seek parking permits) to the school district’s of random and routine testing.
A.
Any discussion of student searches must start
Jersey
with New
T.L.O.,
325,
v.
733,
(1985).
469 U.S.
105 S.Ct.
L.Ed.2d
In
T.L.O., “special
permitted
needs”
dispensing with the normal
probable-cause
warrant and
requirements and allowed substitution
of a reasonableness test because school officials demonstrated a
justified and immediate need to act to enforce school rules to
orderly
maintain an
school environment without the constraint of
requirements.
those two
caught smoking
T.L.O. was
in a school
lavatory
brought
and was
before the
principal
assistant vice
for
328,
questioning.
735,
Id. at
searches Supreme recognized “[i]n limited in which the Court cases 626
circumstances,
by
implicated
where the
interests
minimal,
important governmental
search are
and where an
inter
placed
jeopardy by
est
furthered
intrusion would be
a
suspicion,
requirement
may
of individualized
search
be reason
suspicion.”
Ry.
able despite the absence of such
v.
Skinner
Labor
Ass’n,
602, 624,
1402, 1417,
489
Executives’
U.S.
109 S.Ct.
103
(1989).
639,
Accordingly,
L.Ed.2d
664
in certain circumstances the
imprimatur
its
placed
drug testing
Court has
use of random
633,
1421-22,
categories
of
individuals.
at
Id.
L.Ed. 2d at 526. Vernonia, supra, at 515 U.S. S.Ct. Supreme L.Ed. 2d upheld United States Court first use of testing setting. random The school policy requiring district’s the random of student implemented athletes was sharp after district officials noticed *48 drug among increase in use general students in and student 648, 115 2388, 132 in particular. athletes Id. at S.Ct. at L.Ed.2d at 571. high The school wrestling football and coach attributed at injury, safety least one severe procedures as well as omissions of among athletes, 649,115 to the effects of use. Id. at S.Ct. at
627
2389,
increase in
use
student
The Court observed that children generally enjoy supervisory therefore a lesser conditions and general expectation privacy popula members of the than adult tion, expectations regard to and that were “even less with 2392-93, 132 657, 115 at L.Ed.2d at student athletes.” Id. at S.Ct. showering involved in school (noting changing communal with sports participation). respect intrusion associated utilized, being sample the Court found the method of collection only compromised “negligible” degree to a privacy interests to be “nearly identical” to those one would because the conditions were public in a restroom. Id. S.Ct. encounter bodily Although testing of L.Ed.2d it was clear that the at 577. *49 purposes fluids constituted a “search” for Amend Fourth ment, interests, in terms of the upon search’s intrusion the significant drugs; Court that only viewed the test detected no subject’s body by other the information about was revealed the testing the test were results disclosed few individuals. Id. 658, 115 2393, 132 at S.Ct. at L.Ed.2d at 577-78. governmental-interest
Regarding question, the the Court stated curbing by drug important children use is and found the Vernonia, rampant epidemic-like drugs particularly by of use athletes, sports created a because team crisis members faced and, special community, they health risks within the school “were 649, 663, the leaders of the culture.” Id. at S.Ct. at 2388-89, 2395-96, 571, concluded, 132 L.Ed.2d at The 580. Court balance, policy testing of random of the student athletes an curbing drug problem was effective means of in the Vernonia school “largely by district was fueled” the “role use, model” of particular effect athletes’ and that was “of danger 2395-96,132 to athletes.” Id. at at S.Ct. L.Ed.2d Thus, at majority 581. six-member upheld Court policy drug testing upon school district’s school athletes 1) balancing majority the interests because the determined that students, particular athletes, and in student had a decreased 2) expectation privacy, unobtrusive, relatively the search was 3) need for the random of the circumscribed class of student athletes was demonstrated to be immediate and severe. 664-65, 115 Id. at S.Ct. 132 L.Ed.2dat 581-82. by (joined written dissent Justice O’Connor Justices Souter) majority suspi-
Stevens and
chastised the
for “treatpng] a
regime
just any run-of-the-mill,
cion-based
as if it were
less
is,
intrusive
an
may
alternative —that
alternative that officials
intrusion,
bypass
estimation,
if
lesser
in their reasonable
outweighed by policy concerns
to practicability.”
unrelated
Id. at
(O’Connor, J.,
S.Ct.
B. in predicted holding from the Vemonia not have One could expansion special-needs Supreme of United States Court’s The new “exception” protections. Fourth liberali to Amendment setting in a school ty “special would be found with which needs” Independent in Education School manifested itself Board of of Earls, 822, County 536 District 92 Pottawatomie v. U.S. No. of (2002). opinion, In a five-to-four S.Ct. L.Ed.2d in drug testing of all involved upheld random students the Court any activities without demonstration school extracurricular among drug problem pervasive of a severe school district specific concern about students be tested and without to safety by particularized drug use. Ibid. The school caused risk school-spon in simply participation policy district’s conditioned a student’s consent submit extracurricular activities on sored drug testing generalized on a desire deter drug random based 2562, 153 826, 122 L.Ed.2d at by young people. Id. at S.Ct. at use 741-42. earlier
Despite
majority’s assertion that the Court’s
the Earls
simply
all school
holding
not
authorize
in Vernonia “did
fact-specific balancing of
testing,
but rather conducted
against
rights
child’s
Amendment
intrusion on the
Fourth
830,122
interests,”
government
id. at
S.Ct.
legitimate
promotion of
notably
the remainder of
at
absent from
at
L.Ed.2d
any justification
in
employing,
the Court’s discussion was
instance, a
of
balancing
category
first
interests for this
of student
population.
majority
explain why
did
suspicion-based
not
(those
testing
targeted
in
involved
extracurricular
activities)
need,
inadequate
government’s
was
to meet
substantial
thereby warranting
special-needs
balancing,
resort
as was the
T.L.O., supra,
case
the student
with
athletes
Vernonia. See
351, 105
(Blackmun, J.,
at
469 U.S.
S.Ct.
Also, application its analysis a “fact-sensitive” to the Earls, dispute the majority stated that the reduced expectation privacy among the student athletes “essen was not generally tial” to its determination in Vemonia that students have Earls, expectation privacy. overall supra, reduced 536 U.S. 831, 122 2565, 153 S.Ct. at L.Ed.2d at 745. The reduced student privacy expectations ascertained Vemonia were described as depending “primarily upon responsi instead the school’s custodial *51 bility Nonetheless, authority.” majority and Ibid. the added that who in participate “voluntarily students extracurricular activities subject many themselves to of the same intrusions on their as do athletes.” Ibid. given respect privacy markedly
The diminished
to students’
with
heightened
contrasts
the Court’s
deference to the assertion of
government
addressing
“immediacy”
need.
the
govern
concerns,
accepted
ment’s
the Court
the
general
school district’s
drug epidemic
ized assertion that
nationwide
“the
the war
makes
834, 122
against drugs a pressing
every
concern in
school.” Id. at
2567,
S.Ct.
any
at
631
”
836,
‘drug problem.’
at
drug
necessary to
Id.
of
use
show a
turn
2575,
the
Although
at
In her Justices Justice Stevens, Souter, objected majority’s charac revisionist be to endorse “Vemonia cannot read terization Vemonia: drug testing upon of all suspicionless invasive use, life and solely drugs jeopardize the because evidence 2572, 844, 122 them.” at S.Ct. at health of those who use Id. J., Rather, dissent (Ginsburg, dissenting). L.Ed.2d at 754 particularized problem use of student athletes’ viewed noting that the judgment,” to the Vemonia Vemonia “essential special [involved confirmed that risks “ha[s] [the] Court since necessary to decision drug use] [the] were student athletes’ 2576, 851, at 758 at L.Ed.2d Id. at S.Ct. Vemonia.” 317, Chandler, J., at (citing supra, 520 U.S. (Ginsburg, dissenting) Charleston, 525; Ferguson v. 137 L.Ed.2d 117 S.Ct. (2001) 67, 87, 149 L.Ed.2d 121 S.Ct. U.S. members, J., dissenting (Kennedy, concurring)). According only in that the School Earls resembles Vemonia ] case “[the out engagement activities Districts both cases conditioned subjection urinalysis” obligatory curriculum on random side *52 concluded, contrary majority’s effort to Earls within to the fit Vemonia, by sweeping so is not sheltered that “a Vemonia; impermissible it under its reach renders unreasonable 2577, 853-54, 122 153 Id. S.Ct. at the Fourth Amendment.” J., (Ginsburg, dissenting). L.Ed.2d at 759-60
c. majority’s analysis readily permits Earls now a “reason- Vemonia, balancing ableness” or test. Unlike the record devel- oped allegation was a Earls devoid of “crisis” or “epidemic” drug occurring among use either the students targeted testing, them, by suspicion-based for or rendering fueled testing inadequate problem to stem an identified caused majority to be tested. The Earls was content to base “government its generalized conclusion of need” on a reference to epidemic, evidence of a “nationwide” drug relying on that justify drug testing random of a student subset that had no Plainly, demonstrated connection to use. the Court was forego satisfied requirement of a demonstrated need to target particular group testing. students for random
Moreover,
safety
extent that
concerns had been vital to
special
determination that a
permitting
depar
need existed
ture from
protections
traditional Fourth Amendment
allowing
suspicionless drug
mass
testing, the Court abandoned that as well.
Raab,
Compare
656,
supra,
1384,
Von
489 U.S.
109 S.Ct.
685,
Skinner,
602, 109
1402,103
L.Ed.2d
supra,
489 U.S.
S.Ct.
639,
Chandler,
L.Ed.2d
supra,
with
U.S.
117 S.Ct.
Despite protestations, recognize those scholars that Earls is a See, change from e.g., Supreme Vernonia. Expands Court Ran Drug Testing: dom Does the Fourth Amendment Still Protect Students?, (2002) Rep. 170 Ed. Law (noting that evolution in jurisprudence gives demonstrates “a shift” that weight clear “less to the student’s greater weight interests and much to the safety concerns”); school’s Comment, health and Suspi Random Drug Testing: cionless Are Longer Students No Fourth Afforded Protections?, Amendment 19 N.Y.L. Sch. J. Hum. Rts.
633 requirement from the warrant deviation (stating that “the Court’s devoid with a malleable solution school districts provided ... has requirement that a substantial suspicion and a individualized tests”); subjecting students to present drug problem be before Note, Beyond the Academic Curriculum: “Testing” Students Court, Amendment, Schools, Supreme and the Fourth Public (2002) 551, with (stating that “armed 590 11 J. Pub.L. Widener autonomy push the Earls, certainly have the districts rights experiment further with envelope and constitutional students”). public school
III.
special-needs test
we
and Earls
embraced
Between Vemonia
Jersey Transit
v. New
Jersey
PBA Local
in New
Transit
304
(1997).
applied a
531,
There we
A.2d 1243
Corp.,
701
151 N.J.
drug testing of
random
to a
special-needs standard
558,
(NJT)
at
police officers. 151 N.J.
Jersey Transit
New
Constitution,
that,
Jersey
under the New
A. 2d 1243. Mindful
limited” than
are “more
requirement
exceptions to the warrant
constitution,
concluded that
we nonetheless
federal
under the
Id.
analytical framework.”
provided a “useful
special-needs test
inquiry
special-
556-57,
fact-specific
A.2d 1243. The
context,
first,
prac
“the
to assess
compels a court
needs test
requirement.”
Id. at
probable-cause
ticality of the warrant
omitted).3
(citation
then “enables
The test
701 A.2d
in each
complex factors relevant
to take into account
court
special-needs
of human
companion
applying
test in the context
In a
case
(HIV)
charged
with sexual
immunodeficiency
convicted or
for those
virus
assault,
showing
probable cause or
similarly required
that
a threshold
we
J.T.,
J.G.,
impractical.
ex rel.
N.S. and
suspicion
State
would be
individualized
565, 578,
(1997).
requirement
that
satisfied
We found
In applying
analysis
that
to the
drug-testing policy,
NJT
we
first
police
observed that the nature of
patrol
the
officers’
duties
impractical
rendered
detection
drug
of
use
observation.
Id. at
558, 701
requirement
A.2d 1243. A
of
suspicion
individualized
of
drug
compromise
use would
legitimate
NJT’s
safety
concerns
drug
impaired
great
officers could “cause
human loss before
any signs
impairment
of
become
supervisors
noticeable to
559,
Skinner,
others.” Id. at
701A.2d
(citing
1243
supra, 489 U.S.
628,
1419,
667).
at
109 S.Ct. at
at
L.Ed.2d
Convinced that
suspicion
individualized
use
imperfect approach
was an
to
problem,
the
we turned then
balancing
to the
of relevant factors.
We found the
NJT
to
narrowly
be tailored
in that it
applied only
employees
to
performed
who
affecting
functions
public safety.
Although
Ibid.
recognized
we
urine
an intrusion
privacy during
both
testing,
collection and
even if
“collected
a manner that
modesty
ensures the
privacy”
employees, we determined that transit officers
have
diminished
expectation
due to their “law enforcement status.” Id.
560-61,
at
Moreover,
IV. A. *55 away affording this has not from citizens of Our Court shied Jersey than greater protection under the New Constitution State by interpretation federal of United States Consti divined The, Rusello, Supreme Jersey New Court: tution. See Gerald Directions?, 655, (2002); Legal 16 J. Comment. 656 New St. John’s Garibaldi, Rehnquist Constitutional Marie Court State Law, (1998); 67, Mary & L.J. 74 Cornelia Porter Alan 34 Tulsa G. Tarr, Supreme and the Ohio The New Judicial Federalism Court: 143,157 (1984); Failure, 45 Ohio St. L.J. William J. Anatomy aof Brennan, Jr., the Protection Individual State Constitutions and of (1977). 489, 499 Rights, 90 Harv. L.Rev. explained,
As
have
we
interpreting
look
the United
[i]n
Constitution,
the New
we
for direction
Jersey
sources wisdom
Court, whose
can
valuable
provide
States Supreme
opinions
navigate
us____but although
guides
we
be a
may
that Court
polestar
passage of
for the safe
New
we bear ultimate
Constitution,
responsibility
Jersey
star
risk the
not be so
on that
that we
welfare
our
Our
must
fixed
eyes
ship.
passengers
doctrine.
our
shoals
constitutional
Hempele,
(1990) (citation omitted).]
196, 576 A.2d
v.
120 N.J.
[State
182,
In determining
part
whether to
company from
Supreme
interpretations
Court on
requirements
federal constitutional
interpret
when
cognate provisions
Constitution,
we
of our own
employed
Williams,
have
approach.
a “criteria”
v.
State
93 N.J.
(1983).
57,
B.
Consistent with
principles,
those
willing
we have been
to afford
greater
some
protection under the State Constitution in the areas
of search and seizure and individual privacy.. Hempele, supra, 120
793;
N.J. at
Right
576 A.2d
see also
Byrne,
Choose v.
287, 300,
(1982)
N.J.
450 A.2d
(observing
that “the United
Supreme
States
long proclaimed
Court itself has
that state Consti
may provide
tutions
expansive
more
protection of individual liber
Constitution”) (citations
ties than
omitted).
the United States
Accordingly, on numerous occasions we have declined to follow the
approach
Supreme
Court on search and seizure standards.
See,
Cooke,
e.g.,
657, 670,
State v.
(2000)
163 N.J.
637
195,
Jersey have
(holding that citizens of New
V.
I,
analysis
paragraph 7
starting point
The
in the
under Article
searches,
suspicionless
that involved in random
that
such as
justified
testing,
prohibited
by
special
need.
are
must be
Only
may
proceed
special
when that
need is established
one
against
severity
balance the nature of the intrusion on
government
By adhering
of the demonstrated
need.
to that
requirement
prevent
special-needs exception
from swallow
T.L.O.,
supra.
rule,
ing
Blackmun cautioned in
as Justice
Transit,
supra.
in N.J.
151 N.J. premise
That served as our
(stating
only “in
The record unlike here is respects. every special each It of those fails on level. No showing justify right employ balaneing- has been made to I, typical paragraph protections of-interests test lieu of Article targeted suspicionless testing. for the classification of students majority’s apparent proof satisfaction with the level of on that analysis point effectively step eliminates the first threshold get should not even population for the of students affected. We did, analysis, if balancing-of-interests step in the but we as well. record fails test
A. First, justification singling nowhere in this record is there for testing. required drug for There is no doubt out these students drug any testing, mass without that we would not countenance cause, found to loiter on street demonstration of of individuals drug-infested neighborhoods. in Public school corners known students, way, promotion any drug unconnected with use or its bodily enjoy protection from random searches. should no less Here, inter- ephemeral. interests are not those Students’ justification targeting being any without for the ests are cast aside of this subset of students. surveys drug problem not demonstrate a
The
conducted do
among
extracurricular-program-involved students to be tested.
survey
majority recognizes that “the
results do
Even the
RMBSI
distinguish
engage
who
in extracurricular activ-
not
between those
And,
612,
not.” Ante
One cannot but
generalized
Any
point
based on a
protestation
tailored.
about
drug testing
a means of
of the need to use random
assertion
comprehensive
deterrence
further belied
the current most
by grant
from the
drug testing performed
study of the effect of
Drug
the Robert
Johnson
Abuse and
Wood
National Institute
Health,
Foundation,
recently published
the Journal
School
demonstrates,
study
No.
159-64. That
April
Vol.
drug testing,
lack of
assumption
proponents of
contrary to the
testing regimens implemented
deterrent effect from
kind,
largest
county.
study,
of its
throughout
districts
75,000
encompassed
Its conclusions are not undermined
students.
event,
by any competent proof
record.
invocation of
this
use,
salutary purpose,
albeit a
does not
a desire to deter
compliance with attendant Arti
government
insulate
officials from
Johnson,
I, paragraph
protections.
State v.
168 N.J.
cle
Cf.
(2001)(holding
preventing
that mere reference to
Here,
finding special
engage
need to
in a
there is no basis for
balancing
concerning
right
of students in extracur-
of interests
*59
presumptively
ricular activities to be free of the
unreasonable
drug testing.
majority
search entailed
random
avoids this
analysis by
analogy
an
here
failing
attempting
in the Earls
to find
analogy
poor
a
one. Adminis-
to administrative searches. The
is
regulated
pervasively
trative searches of
industries have been
permitted
suspicion
without individualized
because of the intensive
government
permitted
involvement that
is a condition of the
See,
Martin,
295, 313-14,
activity.
e.g., In re
90
447 A.2d
N.J.
(1982) (finding
employees
expecta-
1290
that casino
have limited
agency regulation
industry);
pervasive
tion of
based on
Turcotte,
285, 290,
N.J.Super.
(App.Div.
State v.
ry
pursuant
inspection
regulato-
[the]
warrantless
must be
to further
Second, the
inspections
“necessary
scheme.” ...
ry
program,
[And
“the statute’s
in terms of
finally,
and
inspection
certainty
regularity
[must]
of its
substitute
application
provid[e]
constitutionally adequate
for a warrant.”
(alterations
original)
[N.J. Transit,
B. balancing Even if a as well. fails on a second level The record its not carried school district has performed, were to be testing this broad-based perform government burden. need is, noted, no record. There compelling not on this program is school, among of this subset problem in this overwhelming supported drug testing random is the students. Nor wide-reaching encouraging this routine legislative policy by any See, (authorizing suspicion- e.g., 18A:40A-12 testing. N.J.S.A. schools). Moreover, the in programs based intervention Health indicates study reported in the Journal of School recent proven not their drug-testing programs have that school-based anticipated effect. deterrent particular this subset interest
Against the weak the individuals. weigh privacy interests of one must students bodily have never expectations in their fluids privacy Students’ collection of the The manner of the violated like this before. been issue, testing of may but the collection and bodily fluids not be that must still intrusions on be excretory fluids are targeted group justified require the members order given. testing. No reason has been submit to Indeed, perverse, group that has been selected is picking the 852-53, Earls, supra, say counterproductive.4 536 U.S. one could J., (Ginsburg, dissenting) L.Ed.2d at 759 S.Ct. at showing participate in extracurric (citing study that students who problems). likely develop substance abuse ular activities are less Earls, subject legitimate to the program, like the one This beneficent, may entirely 4 Although it is the intent of the school board be actually opposite drug-testing program possible will achieve the that the See, e.g., Sheet Social Science Research on ACLU Fact #2: desired effect. Involvement, http://ar- Drug available Adolescent Use and School chive.acIu.orgdibrary/earIsfact2.html (cataloging that have various authorities drug testing high might suspicionless, random found that use). actually prevalence increase
643 away driving it very criticism that risks from school activities the pupils may susceptible who be most to a culture.
Realistically, picked group school district this for no other reason than be able to there to claim that is an element of consent to the search. The school district contends that volun- tarily choosing the testing partici- submit to as a condition of to pate view, In my balancing in extracurricular activities. does government’s not in tilt favor based on its view of the unrealistic participate “consent” a involved when student’s entitlement to extracurricular activities is at stake. much, stating suggest, I parties appear do not nor do the assert,
to right participate that students have an absolute to See, Odle, e.g., school extracurricular v. activities. Albach 531 (10th Cir.1976) 983, (stating F.2d “[participation 984-85 that constitutionally interscholastic athletics is civil protected not a Ass’n, 1155, right”); High v. La. F.2d Mitchell Sch. Athletic 430 (5th Cir.1970) (observing participating 1158 privilege “[t]he that of athletics deemed interscholastic must be to fall ... outside the Rather, protection process”). plaintiffs argument of due rest their Sindermann, 593, 597, Perry respect this v. 408 92 U.S. S.Ct. 2694, 2697, 570, (1972), 33 L.Ed.2d 577 where the Court wrote: “right” government though [E]ven a no a has valuable benefit and even person
though government of reasons, him the benefit for number there may deny government are some reasons which the not It not may may upon rely. deny infringes benefit to a on basis that his interests person constitutionally protected government [exercise ... if could a benefit to a his because deny person [rights], of] exercise of would in constitutionally his those freedoms effect protected government be allow and inhibited. This result penalized “produce would [it] which not command Such with constitutional could interference directly.” rights is impermissible. omitted).] (citation
[
Comm’rs,
County
County,
See also Bd.
Wabaunsee
Kan. v.
Umbehr,
668, 674,
2342, 2347, 135
843,
518 U.S.
116 S.Ct.
L.Ed.2d
(1996) (stating
that “our modern ‘unconstitutional conditions’
government ‘may
deny
doctrine
that
a benefit
holds
not
to a
person
infringes
constitutionally protected ...
on a basis that
his
benefit”)
speech’
freedom of
even if
no entitlement
he has
(citation
404,
omitted);
Verner,
v.
83 S.Ct.
Sherbert
U.S.
(1963)
“it
(commenting
10 L.Ed.2d
is too
day
religion
expres
late in the
to doubt
the liberties
may
infringed
placing
of or
sion
be
denial
conditions
Choose,
upon
Right
supra,
privilege”);
a benefit
N.J. at
*62
287,
(holding
prohibiting
A .2d
state Medicaid
450
925
use of
only
pay for
be
an
funds to
abortion services “can
understood
as
government
attempt to
carrots what
is forbidden to
achieve with
sticks”) (citation omitted).
with
achieve
argue
government
making
Plaintiffs
is forbidden from
(in
case,
receipt
privilege
participation
of a
benefit
this
in
activities) contingent
infringement
on the
extracurricular
(freedom
constitutionally
right
protected
from unreasonable
seizures). Defendants,
turn,
high
in
that the
searches
counter
right
their
to be free
school students waive
from unreasonable
by “voluntarily” participating
searches and seizures
in activities
“privilege.”
clearly
no
that are
more than
Plaintiffs
have the
argument:
require
better of the
The school district
“volun
cannot
tary”
right
waiver of
be
free from searches
more than
county
County,
commissioners of
Kansas could
Wabaunsee
municipal
“voluntarily”
require
waive their
contractors to
First
right
government
Amendment
criticize
local
order to
Umbehr,
government
receive
contracts.
518
supra,
See
U.S. at
674,
2347,
116
S.Ct.
Furthermore, today’s society, it is not at all clear that participation high altogether school extracurricular activities is voluntary least for those students who wish to attend four- —at year colleges Ginsburg explained and universities. As Justice Earls, her dissent in extracurricular activities are “essential in reality applying college.... for students Students Volunteer’ pursuits way they for extracurricular might the same volunteer subject They for honors classes: require- themselves to additional ments, they advantage but do so in order to take full Earls, 845-46, education offered them.” U.S. at S.Ct. at (citation omitted) J., (Ginsburg, L.Ed.2d at 754 dissent- ing).
It
far
high
provide
also is
from clear that
schools that
extracur-
acting altruistically by providing
activities are
ricular
the students
voluntary
argument,
“benefit.” The
recognized by
better
Earls,
dissenting
others,
members in
seems to be that such
component
activities have become an essential
of education in
.public high
American
Twenty years ago,
schools.
President Rea-
gan recognized
“significant place
opportunities
extracurricular
*63
students,”
growth
high
have in the
of [the
school
Nation’s]
and the
fact
opportunities “help
that those
students to learn to set and
goals,
organize
effectively,
achieve
to
their time
and to enhance
enjoy
social skills that are needed to
and succeed
life.”
44,749
Fed.Reg.
27,1983).
Proc.
(Sept.
Pres.
No.
majority
high
With a
of
school
participating
students
some
form
activity, high
of extracurricular
school students who wish to
protect
right
their
to
free
be
from unreasonable searches should
not be forced to
peers by forego-
ostracize themselves from their
ing participation
any
school-sponsored activity. See American
Pediatrics,
Academy
Testing
Drugs
of
Abuse in Children
for
of
Adolescents,
available at http://www.aap.org/policy/01495.html
(observing
programs may
truly
voluntary
“such
not be
negative consequences
there are often
for those who choose not to
part”).
take
participation
Plaintiffs here concede that
student
conditioned,
example,
extracurricular activities can be
for
on a
conduct,
code of
or
adherence to
school
requirement, or
G.P.A.
responsibili-
on a school district’s
any
of factors that bear
number
Howev-
orderly
environment.
ty
educational
provide
safe
authority
a safe and
right
to maintain
er,
the assertion
participate
that students who
orderly
does not mean
environment
goal to be
drug testing in order for that
to random
must submit
achieved,
showing
particularized
use connected
of
absent
(or, as
activities
in the extracurricular
to the students involved
park
property).
here,
bring cars and
them on school
who
students
is,
explained,
Ginsburg
That
as Justice
endeavoring
exploding
regulating
to combat an
an athletic
[i]n
obligations
that would otherwise
searches
may permit
a school’s custodial
epidemic,
abridge
rights.
are not ascendant,
When custodial duties
students’
unacceptably
obligations to
them to “teach by
their
however,
require
schools’ tutelary
avoiding
constitutional
measures that diminish
protections.
symbolic
example”
educating
young
for
is reason
[schools]
scrupulous
“That
are
citizenship
strangle the
of
if we are not to
individual,
of Constitutional freedoms
protection
our
to discount
at its source and teach youth
important principles
free mind
government as mere platitudes.”
(alteration in
153 L.Ed.2dat 760
S.Ct
[Earls,
854, 122
536 U.S.
supra,
(Ginsburg,
dissenting) (citing
Virginia
original)
Ed. v. Barnette,
West
Bd.
J.,
(1943)).]
L.Ed.
1178, 1185, 87
63 S.Ct.
624, 637,
319 U.S.
VI.
majority’s determi
particularly mystifying to me is the
isWhat
against unreasonable searches to
provide
protection
less
nation
children,
suspicionless
when it has not hesitat
category
under our
Constitution
provide
protections
enhanced
State
ed to
majority’s
prosecutions.
determina
suspects
criminal
searches
personal protection from unreasonable
tion affords lesser
mental
public
than to committed
to innocent
school students
drugs
their rooms in a
suspected
harboring
within
patients
Stott,
institution,
State v.
171 N.J.
We against Jerseyans greater protection New affords Constitution afforded under than that which is searches unreasonable lightly interpret our do not We States Constitution. United counterpart, differently federal from its language constitutional surpassing on which our Constitution’s this is an occasion but convincing practical There no recognized. protection should be need,” deprive this “special necessary justification, no wish to involve persons children who targeted category of —school right to be free activities —of their in extracurricular themselves random, drug testing. routine from
VII. Chancery judgment of the and reinstate the I would reverse Division. join opinion. and ALBIN this LONG
Justices Justice PORITZ Justices For affirmance —Chief COLEMAN, ZAZZALI —4. VERNIERO LONG, and ALBIN —3. LaVECCHIA
For reversal —Justices