Linke Ex Rel. Linke v. Northwestern School Corp.

(By LINKE, M. Linke Reena J. Rosa parents), Scott next friends and Linke, Appel- L. Linke and Noreen

L. (Plaintiffs below), lants CORP., SCHOOL NORTHWESTERN below). (Defendant Appellee No. 34S05-0103-CV-151. of Indiana. Supreme 5, 2002. March Daerr, Gelinas, H. John Blackwell

Julia II, Locke, Wheeler, Reynolds E. Thomas IN, Ap- LLP, Attorneys for Indianapolis, pellee. TRANSFER PETITION TO

ON SULLIVAN, Justice. Linke, in the

Rosa and Reena in How- Corporation School Northwestern ran- school's County, contend that the ard violates testing program dom Indiana Constitution under the rights and unreasonable searches free from pri- the students' weighing After seizures. character of and the vacy interests immediacy and against the nature search issue, we concern at governmental drug-testing program conclude here is constitutional.

Background (NSC) Corporation School

Northwestern rural covering system is a County of Howard suburban areas and elementary two operates Kokomo. It near school, high schools, and one one middle school. mid-1990s, in middle drug usage

In the a concern to the high schools became spring at NSC. administrators Resource Prevention and the Indiana drug, survey regarding Center released alcohol, usage by students and tobacco at schools. through ten NSC grades seven average than survey higher showed some stu- drugs among gateway use Falk, Civil Liberties it found that NSCs Indiana Specifically, Kenneth J. dents. IN, Attorney Ap- Union, Indianapolis, aat amphetamines used eighth graders pellants. rates; prevalence higher than state rate alcohol, cig- drugs, used graders ninth Bowker, Benton, L. Laura

Anthony S. prevalence the state higher at arettes IN, David Lafayette, Branigin, Stuart & higher rates; graders reported and tenth Johnson, Smith, & Heath Pence Day, R. prevalence than state daily use of alcohol IN, Emmert, Indianapolis, LLP, David J. Amici Attorneys for Curiae. rates.

Drug abuse problem continued to be a tive for banned substances does not result high and middle During schools. penalty, academic results of drug test year, the 1998-99 school there were two in any documented student's aca- suspensions records, expulsions two demic high and information regarding suspensions school and five expul- and five results is not disclosed to criminal or juvenile sions in the middle school because of stu- authorities absent binding legal drug usage. compulsion. dent Beginning in three (in- High Northwestern School students Policy applies to all middle high cluding a graduate) recent in drug died students, 7-12, grades participating death,

related incidents. The most recent athletics, in school specified extra-curricu occurred after a student overdosed lar activities, and co-curricular as well as morphine pills acquired on from a fellow to all student drivers who wish to park student while at school. These contraband campus. vehicles on The activities pills passed through a chain of student by included Policy athletics, are aca hands finding before their final resting teams, demic government, musical place. performances, drama, Future Farmers of America,

The 1996 death National Society, caused serious Honor concern. and Stu Against In dents response, a Drunk Driving. task force consisting of Students wishing engage to in one of these administrators, teachers, staff, activities inter- required are sign to a parents ested form consenting was formed to to examine and must approach NSCs also obtain drugs. to written order better consent from parent a or guardian.2 to fulfill NSCs zero Stu policy tolerance to- dents participating abuse, co-curricular drug wards activi the task force ad- ties who choose participate not to in the dressed primary three areas: anti-drug testing program given are an curriculum; opportunity incorporation special anti- prepare to drug programs; assignments, alternative development for ac of a stu- credit, ademic in lieu of participating in drug testing policy. dent public performances. The task force created the Northwest- A computer-based system, designed spe- ern Corporation School Extra Curricular cifically purpose for the randomly se- Activities and Student Drug Driver Test- lecting individuals for testing, is used ing Policy ("Policy") January effective pick to the students. Testing, Midwest a "(1) purpose 1999. Its provide is to for the testing firm that notifies the princi- students; (2) health and safety of to un- pals tested, who will be currently handles dermine peer pressure the effects of process. this given Students are not ad- providing legitimate a reason for students vance warning testing. of the (8) to illegal drugs; refuse to use encourage students drugs par- who use selection, Upon a student is escorted to ticipate in drug programs." treatment a is trailer driven to the Policy explicitly The is punitive not a en- Testing. Only Midwest one student tak- terprise. Policy, Under the testing posi- en to the trailer a time. The student is 2. Students also be entered into the 1. Co-curricular activities are test- activities, partic- ipation ing membership or request parent in which are at the an exten- of their or guardian permission or with the parent sion of day and outside the normal school guardian signs when a student shows grades which academic credit or provides suspicion use that reasonable earned, such as band and choir. to search a student. of con- code a student activities erned and is allowed bottle specimen a given codes, may be a student Under both duct. facility in the trailer the restroom enter activity for in an participating from commode barred facility has a unattended. However, the conse- days. to 365 up faucets and all water dye containing blue activity and upon the vary based quences cannot be water so that off are turned substance. inside Once specimen. dilute used to separated facility, the student

restroom re-tested, at is entitled to be A student After closed door. by a monitor from the drug for when the expense, the school's leaves the student specimen, producing would be positive the student tested which restroom, specimen to hands from the disappeared to have expected sealed, employee to be Testing Midwest at this test body. negative A student's and returns bag, sealed initials the to full to return the student time allows class. positive activity but participation reasonable constitute deemed to re-test is Lab to Witham are sent specimens that NSC reserves such suspicion, laboratory, oratories, independent an throughout the student to re-test right only for the sub they are tested where A year. positive the school remainder test Policy.3 The by the stances banned re- from the student also bars re-test identity not know laboratory does ing until such time as activity turning to the follows and NSC tested the students of Beyond the negative. tests the student chain of the regarding procedures strict require re-test, Policy does not the first Nega test results. access to custody and re- tests pay for additional school to the designat the mailed to are test results tive by the student. quested the specimens, on Positive authority. ed If re-test is the hand, are retested. Linkes") ("the other Reena Linke Rosa and speci communicates positive, High Witham at Northwestern were both a result to positive number men NSC, School, this lawsuit when part a the stu suit, who alerts was building administrator Rosa At the time of filed. was principal track, principal. Nation- participated school junior dent's a who identity Drunk Society, Against to determine then able Honor Students al num specimen Committee, Aca- and by reference Prom Driving, student instances, holds principal had a driv- She also Competition. In such ber. demic and his or to school. to drive with the and wanted a conference er's license student is participating that time the and at a freshman parents Reena was her Sun- choir, track, Competition, documen to submit Academic opportunity given the result, Fellowship of Christian justify positive Society, a and shine tation that would Policy was that the Failure Their claim medication. Athletes. prescription e.g., Clause, a explanation for satisfactory and Seizure provide the Search violated Immu- I, 11, Privileges and § and the further action art. test results positive I, 23, § the Indiana Clause, art. nities the school. Constitution. governed testing positive Athletes judg- summary granted The trial court Students code of conduct. by an athletic Ap- NSC. The Court in favor of gov- ment activities are in all other participating nicotine, alcohol, phencyclidine, opiates, qualone, testing am- for Policy permits 3. The Policy allows Although the propoxyphene. barbiturates, steroids, phetamines, anabolic drugs," oth- specified no testing of "other LSD, metabolites, benzodiazepines, cocaine drugs are tested for. er methadone, metabolites, metha- marijuana peals reversed, that, holding in regard to "chemical analysis of urine .... can reveal children, the Search and Seizure private host of medical facts." Skinner Clause, I, 11, § art. of the Indiana Consti Ry. v. Lobor Ass'n, Executives' tution implicitly general contains "a 602, 617, re 1402, 109 S.Ct. 103 L.Ed.2d 639 quirement of individualized suspicion," (1989); see also Vernonia Sch. Dist. v. 47J which was not bymet the Policy. Acton, See 646, 652, U.S. 2386, Linke v. Northwestern Corp., School (1995). 132 L.Ed.2d 564 Similarly, Judge 252, N.E.2d 259 (Ind.App.2000). We Friedlander has written that "the taking of granted transfer. Linke vs. bodily Northwestern samples [for evaluation] constitutes School Corp., No. 34S05-0103-CV-151, State, search." Cutter v. 704, 646 N.E.2d (Mar. 2001). 2001 Ind. LEXIS 229 711 (Ind.Ct.App.1995), denied; transfer cf. DeVaney State, Ind. Discussion (1972) N.E.2d (holding that I taking of a blood sample constituted a The Search Clause, Seizure art. search). Section 11 § ("Section of the Indiana Constitution Given 11") NSC is a provides, corpo- right "[the people ration and that be policy secure in is a persons, houses, papers, search, Section 11 it is effects, necessary against deter- unreasonable search or mine whether the search violates seizure, Section shall violated; and no war issue, rant shall upon probable but cause,

supported by oath affirmation, par ticularly describing place B to be searched, person and the or thing to be In Moran State, and Brown v. seized." Although Section 11 is almost (Ind.1995), N.E.2d 77 we held that the identical to the Fourth Amendment of the measure of whether a government search United Constitution, States this court's violated Section 11 is whether process analysis of claims arising under Section 11 is "reasonable." Here, Id. at 80. separate and distinct from Fourth Linkes and NSC advance differing views Amendment analysis. State, See Moran v. as to the appropriate measure of reason 644 536, (Ind.1994). N.E.2d 538 However, ableness. The argue Linkes that in order in this regard federal law and the law of to be reasonable 11, under Section a sister states persuasive have force. drug testing policy must be based on the Id. element of individualized suspicion. Un der this conception, random drug testing

A of students would violate since, Section 11 The Linkes by definition, a random program is not correctly contend urinalysis drug testing constitutes a based on suspicion. individualized On the search under Section 11. "In hand, the law of other argues NSC that the appropri seizures, searches and the term 'search ate measure of reasonableness under Sec implies prying into places hidden for that tion 11 is substantially similar to the one Moran, which is concealed." expounded in Vernonia School District 644 N.E.2d at 540 (citing State, Lindsey v. 246 Acton, Ind. 646, v. 515 2386, U.S. 115 S.Ct. 47J 431, 439, 357, (1965)). 204 N.E.2d 362 (1995), 132 L.Ed.2d 564 where the Su finding urinalysis testing constitutes a preme Court balanced the intrusion of the search under Amendment, search on the individual's Fourth Amend Fourth United States Supreme noted, Court has ment interests with promotion legiti

978% inves- responsibility have officers Id. at 653- interests. governmental mate and activity, to locate Skinner, criminal tigate 489 (quoting 2386 654, 115 S.Ct. laws, and violate our 1402, who and Delaware arrest those 619, 109 U.S. 1391, bringing charging and 99 S.Ct. Prouse, facilitate 440 U.S. v. this Rarely does to trial. persons (1979)). ap such this Under 59 L.Ed.2d relationship exist be- maintains, Policy meets adversarial type of proach, In- pupils. of Section requirement authorities tween school reasonableness inter- commonality of stead, there is pupils. teachers ests between have held that we point out Linkes stop a motor may not officer police "that a T.L.O., 349- Jersey v. New seat belt viola possible for (1985). ist in Indiana 83 L.Ed.2d 105 S.Ct. reasonably suspects officer unless that tion Policy, test results Under in the vehi passenger or a the driver enforcement, nor are to law volunteered required as wearing a seat belt cle is not disciplinary any internal they used 715 N.E.2d Reagan, v. by law." Baldwin we consequences, such Absent function. (Ind.1999). proposi From this 332, 337 for individual the rationale believe do not Appeals the Court tion, they argue, inas strong here suspicion is as ized Section to meet held, any search that for Oman context. enforcement seat belt Cf. on "individual muster, must be based (Ind. 1131, 1146-47 State, 737 N.E.2d v. Linke, at 259. 734 N.E.2d suspicion." ized 2000) the Fourth that under (holding suspi- the individualized not think doWe employee's anof the results Amendment Reagan is Baldwin v. requirement clon in a used drug test can be administrative Bald to this case. readily transferable so only if obtained prosecution, but criminal Brown Moran and Reagan-and win externally initiated legal process by valid of Section the role it-focused on before denied, setting), cert. employment from the that Hoo of life those areas protecting - 38, 151 -, U.S. unreasonable "from regard private siers (2001). L.Ed.2d Moran, 644 N.E.2d activity." See police reason- emphasized that Brown While Brown, added); (emphasis at 540 touchstone of Section was the ableness from protection (noting that at 79 N.E.2d question as "wheth- framed the analysis, it plays a seizures searches unreasonable circumstances," er, these totality of in the of in the context important role uniquely reasonable. at issue was conduct police the Preventing unrea procedure). criminal that We believe at 79-80. 653 N.E.2d activity was a law sonable enforcement against interests the students' balancing in Bald holding motivating our key factor comports better corporation's the school suspi that individualized Reagan v. win the cireumstances totality of this with required is of a seatbelt violation cion of requirement per se framework than purpose. that motorist for stop order suspicion. individualized at 337. 715 N.E.2d corpora- approach. by a school for this precedent A search conducted There is totality than a of the substantively different the determining that tion is po- This the law. to enforce consideration conducted allows search circumstances role to the different part due is in no small con- "[in that safety, we stated lice officer under teachers. and 'unreasonable' struing applying law enforcers and played citi- 11, that Indiana recognize we as ad- Section function officers Law enforcement only with concerned have been These zens suspects. criminal versaries

979 personal privacy but also safety, 333, with secu 105 S.Ct. 733. Indiana law codifies rity, protection and from crime." Mitchell this example, view. For in passing com State, v. 745 (Ind.2001); N.E.2d pulsory education laws that mandate the State, see also Carter v. availability N.E.2d of public elementary education ("[A]n 466 (Ind.App.1997) citizenry, individual's the State "has recognized rights protected § under Article 11 are schools stand 'in the relation of parents not absolute. We must guardians balance competing to the students' rights and . 'look to regarding [all] reasonableness of matters discipline permit intrusion and and conduct brief investigato students." Higginbottom ry stops upon Keithley, based suspicion F.Supp.2d 1075, reasonable (S.D.Ind.1999), quoting (citations § omitted)). Ind.Code 20- criminal activity'" 8.1-5.1-8(b) (1988). adopt analytical

We approach of Ver The Linkes concede nonia the privacy School District v. Acton in these 47J juveniles interest of is not the stated, circumstances. same as Broadly we will adults' but argue that weigh actually the nature minors are privacy interest greater accorded protection. upon However, intrudes, which the search the char the authority relied upon by acter of the intrusion that Linkes complained of, does not stand for the and the notion that nature and a stu immediacy of gov privacy dent's interest ernmental should granted concern to determine whether greater weight. To Policy contrary, reasonable stands under the totality that, for the proposition of these under certain cir cireumstances. 515 U.S. at 658- cumstances, plays the State an S.Ct. 2386. active role in dictating the course of children's lives. State, See Manners v. 210 Ind. C (1936) N.E.2d 300 (upholding statute mak C-1 ing it a felony for a father to provide fail to In weighing the nature of privacy for a child on the reasoning that "[mlinor upon interest which a search under the children subject are the of the solicitude of Policy intrudes, the first-and chief-con- the law because it is assumed that until sideration influencing our analysis is the maturity they are not capable of protecting Linkes' status as middle high themselves."); State, see also Adams v. students. 460, 465, 244 Ind. 193 N.E.2d (1963) (stating juvenile courts exercise Our law does not accord students parental supervision properly re privacy same interests as adults. strain a liberty minor's in the exercise of "Traditionally law, at common and still discipline, rehabilitation, training). today, unemancipated minors lack some of Rather than bolster argument, the most fundamental rights of self-deter Linkes' cited authority reinforces prin the Acton, mination." 654, 515 U.S. at ciple that a liberty minor's interest is S.Ct. 2386. The United Supreme States sometimes less than that of an adult. Court has taken the view that while schools are light subject state actors of the fact that minors in to constitu tional oversight, the nature of a school's school subject are supervision to and con role "is custodial and tutelary, permitting a trol that could not be exercised over free degree supervision of and control that adults and in legislature's view of the codi could not be exercised over free adults." fication of the protective custodial and role 655, Id. at 2386; T.L.O., 115 S.Ct. 469 U.S. public schools, of Indiana we find that ac to the 'extracurricular' tricably linked at privacy to less are entitled students .... The record marching band. compara tivity in of enjoy would than adults enrolling of consequence the that reflects T.L.O., at 469 U.S. ble situations. Cf. in the participate to sense, failing ("In stu a class and any realistic in 105 S.Ct. will severe: the marching have is environment band the dents within at 1105. 963 P.2d failing grade." mem privacy of receive expectation a lesser Lopez in review Thus, under generally."). policy population bers of grades to students failing effectively gave influencing stu factor A second The drug test. to to submit who refused A vol consent. interest is privacy dent's to found this Court of Colorado Supreme drug random to to submit untary decision applied unreasonable, it part in because student's le decreases testing further curriculum. taking the normal to students increasing privacy, of expectation gitimate policy's Section of a likelihood raised to the issue are sensitive We course, a coerced Of 11 reasonableness. Stu of Colorado. Supreme Court by the For this rea not consensual. decision interest privacy forfeit their do not dents consent, cireumstances and the son "[the at school. of attendance by virtue simply upon the rea bear given, it was in which in .... act officials public school "Today's Ferguson Policy. See sonableness" edu publicly mandated furtherance 67, 91, Charleston, 532 U.S. City T.L.O., disciplinary policies," cational (Kenne (2001) 149 L.Ed.2d and statutes at J., concurring). dy, compel school attendance. the books on Policy's require- maintains NSC (1998). How § 20-8.1-3-17 See Ind.Code to submit participants that student ment require ever, Policy does not compel con- does not drug testing random compulsory in enrolled testing for students privileged applies only sent because Rather, in vol students regular classes. this take issue with Linkes The activities. they receive for which untary activities Supreme Citing the characterization. activities) (co-curricular credit academic Dis- School in Trinidad of Colorado Court alterna providing option given are argue that Linkes Lopez, the No. 1 v. trict Policy is The assignments. for-credit tive in extracurric- participate necessary it is by the the one reviewed from different today's successful to be ular activities of Colorado Supreme (Br. quoting Appellants world. opportuni deprived of the (Colo.1998) 1095, 1109 963 P.2d Lopes, co-curri eredit from academic ty to receive wish ("[The many students who reality for not to submit they if choose cular activities educational pursue post-secondary only deprived testing. They are re- vocations training professional and/or extra-curricular participating from par- only by garnered quiring experience the activities. portion of activities extracurricular in the ticipating activities. engage such they must is that this acknowledge We extracur- in a school's .... calculus voluntariness alter the usual does adjunct to the a vital offerings is ricular likelihood, some ad because, at least in all experience.")). educational ina may attach consequences verse ac further We participate. so bility to that at issue from Policy different that, are not schools noted, knowledge while "two Lopes court Lopes. activities, for extracurricular only outlet regu part that are classes for-credit sponsored extracur in school participation offerings are inex of course lar curriculum

981 ricular activities benefit some stu ricular activities are regulated also in that pursue dents who wish to post-secondary various activities or impose clubs rules and professional educational training. requirements to which participants must However, in order for consent to be vol comply. See Earls v. Tecumseh Pub. Sch. untary context, Dist,. in this it does not follow 92, (10th No. 242 1264, F.3d 1276 absolutely there be no disadvantage Cir.) ("students participating in non-athlet to a give refusal to consent. See Ferquson, ic extracurricular agree activities .... 91, ("[the 32 U.S. at 121 S.Ct. 1281 5 follow the directives and adhere to the person given consent, searched has as de rules set out by the .... director of the fined to take into account that the consent - activity."), granted, cert. —, U.S. 122 was voluntary in the fall sense of the 509, (2001).4 S.Ct. 151 L.Ed.2d 418 word.") J., (Kennedy, concurring); Ac extent to which a voluntary activity is al ton, 650, (1995) 515 U.S. at 115 S.Ct. 2386 ready regulated can further influence a ("[sltudents wishing play sports must student's Section 11 privacy interest. sign a form consenting testing must obtain the written consent of their C-2 parents."). The fact that agree refusal to The character of the intrusion to drug testing results in forfeiture complained that is provides another ele opportunity to obtain certain benefits is ment contributing to reasonableness in the not so weighty as to constitute forced con school context. The Linkes urinalysis view sent. See Todd v. County Schools, Rush extremely intrusive, "as demean 984, (7th Cir.), F.3d cert. denied ing, and embarrassing." Urinalysis impli 824, 68, U.S. 119 S.Ct. 142 L.Ed.2d 53 cates an "excretory function traditionally (1998) . shielded by great privacy." See Skinner v. A third factor influencing pri Ry. Ass'n, Labor Executives' 602, vacy interests of students is whether they 626, 1402, 109 S.Ct. 103 L.Ed.2d 639 have volunteered for an already regulated (1989); Acton, 515 U.S. at Acton, activity,. See 515 U.S. at However, the manner in which the S.Ct. ("[bly choosing to 'go out for sample is acquired influences the ultimate team,' [student voluntarily athletes] weight given to the Linkes' embarrass subject themselves to a degree regula Acton, ment. See 515 U.S. at tion higher even imposed on students 2386; Schaill, 864 F.2d at 1318. generally."). There can be little doubt Acton, Supreme student uri highly athletics are found regulated. nalysis testing See Tippecanoe Schaill v. reasonable when County Sch. (7th

Corp., Cir.1988) plain 864 F.2d urinated attendants, view of ("the High part Indiana School because it no Athletic was more Associ intrusive than ation has requirements extensive a visit to a public which standard restroom. See imposes upon schools and individuals par 515 U.S. at 115 S.Ct. 2338. In con ticipating athletics."). interscholastic trast, NSC students are escorted to a test extent, To lesser non-athletic extracur ing facility in a manner only such that one 4, We note that the Earls court found that a much less evidence of abuse than has drug testing policy random violated the here; (3) presented been students were Fourth policy Amendment. The it reviewed tests, required pay creating for thus a fee differs from the one before princi- us in three requirement school extracurricular (1) pal respects: it did not take the same care activities. protecting (2) privacy; there was

982 prevent on emphasis at 79. N.E.2d The student a time. at present is student activity is allowed law enforcement unreasonable private ing room a then enters do Attendants in holding motivating the door. our to close a factor was case, Policy the In this the student. suspi watch that reasonable Reagan Baldwin the one exam than intrusive much less is in required is a violation cion of seatbelt in Acton. Supreme Court by the ined purpose. for that a motorist stop order (Ind.1999). to consider factors important 337 Other 715 N.E.2d intrusion of the evaluating the character However, or rehabilita preventative a for, amount the the test searches are what corpora by a school search conducted tive testers, and to to the given of discretion than a substantively different is tion Policy are disclosed. whom results A the law. to enforce conducted search list of banned pre-set a the test to restricts in search is rehabilitative preventative or compelled to is student No substances. function. corporation's to a school herent information private provide additional understand generally used). Students after a (such Even as medications dis- educational test, proper choice of whether .... a "preservation positive informa- explanatory supervision" additional requires seminate close environment point noAt the student. is left to tion less privacy is intrusion on thus the have discre- officials do school process T.L.O., at 469 U.S. See severe. or for what to to test whom tion to choose S.Ct. taken are measures test. Various matter, shows the record present both to insure process throughout lawto are not volunteered that test results of the privacy and the integrity of the tests any enforcement, for they are used nor limiting persons students, including function. Students disciplinary internal possi- greatest test results privy to barred, varying periods merely extent. ble activ time, privileged participating from in evalu factor to consider A final result, Policy must be As a ities. intrusion is character ating the rehabilitative. or preventative viewed as preventa punitive the test whether function, disciplinary involving a policy A punitive A tive and rehabilitative. from expulsion suspension or such as a more corporation regime by a school impli school, and is not punitive could be Section a student's upon severe intrusion by NSC The care exhibited cated here. non-punitive privacy interest create a and to privacy protect furtherance of conducted search against mitigates test non-punitive role. See protective custodial school's drug testing A 2386; privacy concern. Linkes' Acton, n. U.S. at 658 might not. carefully crafted not so policy (Scott, J., dissent P.2d at 1116 Lopez, 963 68, 121 Ferguson, ing). Cf. be the "critical difference" (noting those areas protects Section a war without drug tests conducted tween "from private regard life that Hoosiers law when suspicion rant or individualized Moran, activity." See police unreasonable indis provides a central enforcement added). We (emphasis N.E.2d at 540 and when policy feature of pensable from un protection have also noted purpose for a conducted drug testing is plays and seizures searches reasonable interest general the State's distinct from context of role in the important uniquely enforcement). Brown, law See procedure. criminal C-8 Deterring drug by abuse children in school important is an legitimate and con We last evaluate in drug NSC's interest cern for our Drug schools. severely abuse testing certain proffers students. NSC youths harms impacts and on a school's the need to fight drug and deter abuse " educational mission. 'Maturing nervous among general students in and its stu- systems are more critically impaired by dents who act as role repre- models and intoxicants are; than mature ones child sentatives of particular. the school in It hood losses in learning lifelong and also asserts a related interest in insuring profound; grow 'children chemically de safety the health and of its students. The pendent quickly more than adults and Linkes counter that only legitimate NSCs recovery record of is depressingly interest is in stopping abuses that poor'" campus, Acton, 515 oceur on at something they argue U.S. 115 S.Ct. more, 2386. What "the effects of Policy does not properly achieve. drug-infested school are just visited not That NSC has the responsibility of su upon users, upon but the entire stu pervising its students enforcing and desir dent body faculty." and Id. at able behavior in carrying pur out school S.Ct. 2386. NSC's interest in deterring poses questioned. is not § Ind.Code 20- drug use is further enhanced the fact 8.1-5.1-8;5 VIII, see also Ind. Const. art. that three of its students have died of drug § mid-1990s, 1.6 In the drug usage in related causes since that it had scien NSC's middle high and schools caused ad tific illustrating data burgeoning drug ministrators worry they to were not problem on its high middle and school properly fulfilling this function. Most no campuses, and that use continues to tably, a 1995 study usage NSC be an problem identifiable at the middle schools higher showed than average use of high Skinner, and schools. See gateway drugs in the high middle and (upholding a Govern later, year schools. A an NSC student ment drug-testing program based on find acquired morphine pills from a fellow stu ings of drug use employees dent at school railroad subsequently and died from an proof overdose. nationwide without response, problem that a NSC commis sioned the task force particular of school officials existed on and railroads whose parents that created Policy. test). employees subject were § 5. provides: Ind.Code 20-8.1-5.1-3 settings disruptive and refrain from behavior "(a) supervision Student and interferes the desirable with the education environ- behavior of carrying students in out school ment." purposes responsibility is the of a school cor- poration VIII, and the corpora- students of a § school Ind. provides: Const. art tion. "'Knowledge learning, general and diffused (b) relating In all discipline matters to throughout community, being essential to students, and conduct of corporation preservation government of a free personnel stand in parents the relation of and duty should be Assembly of the General guardians to the corpo- students of the school means, moral, encourage, by all suitable intel- Therefore, corporation ration. person- scientific, agricultural lectual improve- and right, subject nel have the chapter, to this ment; law, provide, by general for a any disciplinary take necessary pro- action Schools, system mote student conduct that conforms with an uniform of Common wherein orderly charge, equally open tuition shall without system. effective educational all," (c) responsible Students must follow di- rections personnel of school in all educational injury seems physical the risk of included While interest NSCs covered fact other activities by the in the heightened remote further activities that its interest argues extracurricular Policy, relevant that the NSC components. campus these safety off of all have health promoting insure tools to range of a needs broader that of student equivalent to is students activities rules when compliance with It is true student drivers. athletes and due, large in This is campus. occur off activities extracurricular that "successful ranges of greater that fact part, students," #. see Todd healthy require ac during extracurricular activities occur 984, Schools, 986 133 F.3d County Rush hours. normal school during tivities than in (7th Cir.1998), of absence but 1151, F.2d McCullough, 828 Webb v. See that NSC's danger means physical creased Cir.1987) (6th (affirming grant 1157 not safety is in health and interest general a upholding judgment summary all, After in these situations. increased private ho search principal's school most of important to healthy students during a high a school room of tel need does does and the a school what sponsored campus, school voluntary, off to chooses a student simply because grow ways for many more There are trip). field further activity. an in participate fellow injured, endanger to a student to be in de maintains, however, interest that its rules, or to students, transgress school to by is increased drug abuse terring student in an participating the law while violate and student athletes the facts that student (such campus event off extracurricular activities in extracurricular participants a non- city another or in competition band and are other students models for are role during the rela trip) than field curricular in the com of their schools representatives Indeed, Id. hours. See of school tive order that there respond Linkes munity. The to allow their may reluctant parents to demonstrate "nothing in the record voluntary in participate to children as role models are viewed permitted to members are not band if schools activities by here steps taken student leaders." take the reasonable drug use. See Id. prevent NSC to whether not address record does physical increases If abuse participating peers view their school-spon in a danger participation NSC's role models. activities as the tested inter corporation's activity, a school sored heightened may well be interest deterring drug abuse becomes est Acton, 515 See a fact shown. were such undoubtedly the case This is stronger. 662-663, 2386. Nonethe- at U.S. Acton, 515 U.S. athletics. See with par- holds the less, that NSC it is evident psy from ("[alpart 2386 115 S.Ct. submitting models out as role ticipants particular drugs .... chological effects rules above to additional participants Policy have been by the District's screened "normal," sending par- beyond physical pose substantial demonstrated community functions as school ticipants athletes."). Likewise, we note risks to has fact that NSC representatives. sig presents intoxicated driving while at its middle drug problem identified drivers, pas their physical risks nificant experi- it an interest gives high schools v. Todd pedestrians. See sengers, and drug use. to deter menting methods with Schools, F.Supp. County 983 Rush supports NSC's Policy aspect of (7th This (S.D.Ind.1997), 133 F.3d aff'd who by giving students efforts interdiction denied, Cir.), S.Ct. 525 U.S. cert. activi- organized in an the school (1998). represent 68, 142 L.Ed.2d 53 peers ty response a valid who Section 11. Our constitution does not for- pressure using drugs. them into bid taking schools from reasonable mea- sures to deter on campus- abuse Miller, Chandler they regard es but must do so with due (1995), L.Ed.2d rights of students. Supreme which the invalidated suspicionless drug testing reiterate that our We evaluation of this candidates, Georgia political sug does not particularly matter influenced Chandler, gest a conclusion. In different facts that privacy students' interests are Supreme suspi- Court determined less than those of adults and that both testing drug cionless of candidates was parents guardians students and their or (1) solely symbolic because the tests were give must consent. We also been have problem not on of a drug based evidence general in by influenced schools' custodial (2) officials, among the State's elected protective and interest in their students typically perform those officials do not particular by and in the fact that the Poli- (8) risk, tasks, high safety sensitive and cy parent was created with involvement as immediately the tests aided no interdiction an element comprehensive of a interdiction 321-322, effort. Id. at 1295. Furthermore, program. higher the creating The cireumstances context for the average drug rate of use at NSC middle Policy our In under review are different. schools, high and drug the recent related public addition to the fact that it is school deaths, presence and the continued of ille- here, Policy students who are tested the gal drugs campus strengthens on NSC's prompted by has been concrete evidence of legitimate interest in this matter. We do drug by junior high abuse school note that the strength of NSC's interest in (some safety students in engage of whom deterring drug is abuse for all uniform tasks) testing merely and all is sensitive regard, Policy students. In this component of a broader interdiction effort regard most defensible athletes and conjunction created local officials in student drivers. The school's interest parents. with interested ac Chandler protecting these students increased knowledged importance the "critical" of physical and, of danger risk the case context, stating that school tests are athletes, by they of student the fact that government different because "a local represent the school as role models. large 'responsibilities, bears under a testing While the rationale for system, guardian school tutor involved co-curricular activities is not so children entrusted to its care'" Id. at stated, strong, already for the reasons 316, 117 emphasized S.Ct. 1295. It also 11 in does not violate Section this case. "(a) problem demonstrated abuse, necessary while not all cases II validity regime, aof would argue The Linkes also up special shore an assertion of need for Policy Imrauni Privileges violates the suspicionless general program." search Clause, § ties art. of the Indiana (citation Id. at 117 S.Ct. 1295 omit ("Section 23"). ted). Constitution Section 23 provides:

D Assembly grant The General shall not citizen, citizens, In light totality any privi- of the cir or class cumstances, immunities, which, Policy leges upon does not violate or leadership role mod- terms, belong pating all student in a equally cannot

same position. The school activities not cov- el citizens. activities that strictly ered are in-school Day, case of Collins In the watershed during school hours. Conse- place take (Ind.1994), we held that the 644 N.E.2d engage in the quently, the students who required to resolve framework analytical Policy school activities not covered "the examines whether Section 23 claims represent by publicly the school do not reasonably ... re- [is] treatment disparate working within the commu- performing or characteristics which dis- lated to inherent nity. argue the Linkes While unequally treated classes." tinguish the newspaper yearbook are extracurricu- that the chal- requires at Collins Id. 80. requiring "engage students to lar activities every negative "to lenger bear the burden day," in activities outside of classification." for the reasonable basis Appellant these activities are Brief substan- at This is because Id. 81. (R. 76.) These purely curricular. enactment. Id. at tial due the deference grade taken for a and do not classes are addition, preferential "the treat- any activity outside the normal require uniformly applicable and ment must be (Id.) day. similarly persons to all equally available testing those agree with NSC that We Id. situated." are at an increased risk of students who contend that Section 28 is The Linkes' and physical harm or are role models a class of students who violated because participation in leaders virtue of their activities participate in certain extracurricular activities is "rea certain extracurricular subjected to random test 7 sonably achieving to the school's related in participate students who other ing while and purpose providing for the health activities are not. extracurricular students, safety undermining of a peer pressure by providing effects find that the Linkes have not carried We to refuse to legitimate reason for students every "negative their burden to reasonable illegal drugs by encouraging use stu drug testing imposed basis" for random drugs participate dents who use they a upon class of which are mem- (Trial programs." treatment Court's Con Collins, we determine wheth- ber. Under 509). Law, clusions of R. at We find no between er there are inherent distinctions violation of Section 23. subject Policy to the the activities Conclusion reasons set Largely those not. for the supra, we find the forth in Part I-C-8 transfer, we Having previously granted relationship" met. "reasonable test judgment affirm of the trial court. now Policy focuses on those activities in DICKSON, SHEPARD, C.J., J., participating represent which the concur. day outside of the normal school the school hours, BOEHM, J., special privileges separate as a result with receive dissents RUCKER, J., concurs. participation, place partici- opinion which Athletes, Club, gy Fellowship of Christian teams, drama, For- activities are academic 7. Those Club, America, eign Language Helpers, Sunshine Peer National Honor Future Farmers government, Society, and Students Yearbook, Club, Society, Newspaper, Science Against Driving. Drunk Memorabilia, Issues, Sports Teen and Chess Club. subject Policy include 8. Activities not A, Club, Q New Student & Ecolo- the Euchre BOEHM, Justice, dissenting. smoking discovered two students in a lavatory in violation of school rules. majority I respectfully dissent. pair The teacher took the to the assistant adopts methodology of Vernonia Sch. office, principal's T.L.O., where in re Acton, Dist. 115 S.Ct. 47J sponse principal's to the assistant ques (1995), 132 L.Ed.2d 564 and con tioning, having denied ever smoked. drug testing cludes NSC's fits within Searching purse, T.L.O.'s the assistant very exception general a narrow principal pack cigarettes found a along probable requirement, cause the so-called drug paraphernalia. with various T.L.O. However, "special exception. needs" as adjudged delinquent. was later suming proper analyze it is Indiana constitutional claims in the Vernonia T.L.O. claimed that the search violated framework, agree I do not NSC has the Fourth Amendment. The Court proving pro carried its burden of that its agreed ap- the Fourth Amendment gram meets the standard of reasonable plied to searches conducted school offi- "special requires. ness the needs" doctrine cials, but nevertheless concluded that Rather, imposi this amounts to school officials conduct searches general tion testing program random the absence of the requirements imposed with no sound footing concern for the by the Fourth gov- Amendment on other corpora educational mission of the school ernmental searches. Id. at tion, opposed general law enforce explanation The Court offered this justification ment. Nor is there for se why suspicion a level of lower than that of lecting from general these students probable required cause is for searches population. officials, by conducted school at least in the reasons, many

For of the same I con- context of searches for evidence of school clude that NSC's violates the re- rule violations: I, quirement of Article Section 23 of the legality of a [Tlhe search of a student Indiana that a Constitution classification depend simply should on the reasonable- reasonably

must be related to the charac- ness, circumstances, under all the of the case, participation teristies-in this in cer- Determining search. the reasonable- tain school activities-that define the class. any ness of search involves a twofold I. What Means to Have first, inquiry: one must consider "Special Needs" justified ... "whether the action was at Ohio, inception," Terry v. cases, its 392 U.S. particular, important Three [1], 1868, at 20 S.Ct. 20 L.Ed.2d 889 understanding why [88 NSCs random (1968) ]; testing program violates Article second, Section one must determine actually whether the search as conduct- of the Indiana Constitution. reasonably scope ed related in "was Jersey A. New v. T.L.O. justified the circumstances which the in- place," terference in the first ibid. doctrine, Un- "special needs" in the con cireumstances, ordinary der search of officials, by text of searches has its T.L.O., a student a teacher or other school Jersey roots New v. 469 U.S. 733, "justified (1985), inception" official will be at its 105 S.Ct. 83 L.Ed.2d 720 Supreme grounds where the States when there are reasonable for United Court suspecting up that the search turn held the Fourth Amendment's usual will probable apply cause standard should not evidence that the student has violated or T.L.O., setting. violating in a school In a teacher either the law or the rules of per- a search will v. Ac the school. Such School District B. Vernonia 47J the measures scope in its when missible ton to the reasonably related adopted are principal next case is Vernonia Sch. exces- objectives the search and not Acton, 115 S.Ct. Dist. 47J light age of the sively intrusive in (1995), L.Ed.2d 564 on which the and the nature of the sex majority justify its conclusion relies

infraction. drug testing program is reasonable. NSC's However, 341-42, the 105 S.Ct. 788. Id. at Vernonia, Supreme the States In United there were emphasized also Court drug testing pro upheld a random Court authority of school officials limits gram Oregon an school dis instituted con under this lowered conduct a search plan called for of ath trict. The Specifically, "the reason stitutional bar. plan, that the this only. upholding should ensure ableness standard letes invaded no of students will be interests Black- specifically endorsed Justice Court necessary to achieve le more than is concurrence in 7.L.O. and found mun's order in the preserving gitimate end that, presented, on the facts Vernonia 343, 105 schools." Id. at S.Ct. "special need" school district established concurring opinion Justice Blackmun's drug testing on justifying imposition "special needs" into phrase introduced group of students. The Court specific on school searches. public discourse heavily on the facts found relied balancing that a test expressed He concern court that the school dis district Vernonia the rule rather than the might become "immediate crisis" trict was faced with an potential, this he exception. To curb target been able to had instigators wrote, exceptional cireum- "Only in those coming popula from student-athlete needs, beyond the special in which stances 2386.1 The tion. Id. enforcement, make normal need for law proposition relied on T.L.0O.for the require probable-cause warrant that, context, a search in the entitled to impracticable, ment is a court by probable cause can be con unsupported balancing of interests substitute stitutional when the district demonstrates Framers." Id. at that of the needs," strict adherence "special i.e. where (Blackmun, J., concurring). Searches 733 requirement would probable cause on a lower stan setting in a based "'the substantial need of teach undercut concluded, be appropriate, he dard are for freedom to ers and administrators action on cause of the need for immediate in Id. at maintain order the schools"" main attempting to part of teachers T.L.O., 653, (quoting 469 115 S.Ct. 2386 tain in the classroom. order Supreme cited dis- Specifically, 1. Court findings body, large segment that: trict court of the student "[A] particularly in interscholas- of dis- those involved and 1989 the number Between 1988 athletics, rebellion, rose ciplinary in Vernonia schools referrals tic was in a state of ... reported in to more than twice the number 'epidem- [dlisciplinary actions had reached 1980's, were early and several students proportions,' ic and ... the rebellion was increasingly suspended. Students became by drug being fueled alcohol and abuse as class; during profane lan- rude outbursts by misperceptions well as the students' guage were common. drug culture." about the only athletes included Not were student 662-63, 649, U.S. at 115 S.Ct. 2386. 515 but, drugs among users ... athletes drug were the leaders of the culture.

989 319, 733). Id. at 341, 117 S.Ct. 105 S.Ct. The Court ment's main rule." U.S. supporting the cited three factors reason program-the

ableness of the de Vernonia Georgia argued testing policy expectation privacy creased of the stu passed constitutional muster based on the athletes, dent the relative unobtrusiveness Court's earlier decisions upholding suspi- search, severity and the of the need athletes, testing clonless of student Verno bymet the search. nia, 646, 2386, 515 U.S. 564, L.Ed.2d certain United States Trea present None of these three is in force sury employees, Treasury Employ Nat'l support plan. NSC's NSC's Raab, 656, ees Umion Von U.S. athletes, drivers, applies to (1989), S.Ct. 103 L.Ed.2d 685 participants in a range wide of extra-curri- employees, certain railroad Ry. Skinner v. cular and co-curricular activities from Fu- Ass'n, Labor Executives' 489 U.S. ture Farmers of America to the school (1989). S.Ct. 103 L.Ed.2d 639 band. NSC's evidence of substance abuse explained employees Court that the sub survey its schools is a conducted ject testing "directly Von Raub were Indiana Prevention Resource Center interdiction," [in] Skinner involved given grades 1995 and to students in seven offered "evidence of drug and alcohol through Notably ten. absent from the by railway employees abuse engaged in any suggesting results is data that stu- tasks," safety-sensitive and Vernonia re given dents who claimed to have used a sponded to an prompted crisis "immediate participated substance also in one of the by sharp rise students' use of unlawful testing activities covered pro- NSC's drugs." Georgia's plan to sereen candi gram. intrudes on students public dates for office failed to address a way qualify who in no for the lessened danger," "concrete explained, the Court cases, expectation privacy some like (1) because: the record suggest did not Vernonia, have attributed to athletes. argued the hazards the state were simply hypothetical "real and not for Geor C. Chandler v. Miller (2) gia's polity"; requirement was not (8) users; designed identify drug well Miller, In Chandler v. feasible, was within the environment of (1997), L.Ed.2d 513 office, to note erratic conduct that Supreme United explained States use; suspicion would lead to a appropriate further detail when it is (4) public safety the risk to was neither apply "special needs" doctrine. The 319-23, substantial nor real. 520 U.S. at Court in Chandler found unconstitutional 117 S.Ct. 1295. Georgia's policy of requiring certain candi public dates for office to drug submit to Although this case and Vernonia both testing. Ginsburg, Justice writing for an programs, address school for several rea- eight-member majority, explained that to plan Georgia's plan sons NSC's is closer to successfully "special make the case that a for wanna-be officeholders than the Verno- exists, government need" First, actor must plan survey nia for its students. upon by and other relied danger evidence NSC demonstrate a "concrete demand ing departure from the Fourth Amend a drug problem, establish but not rejected argument 2. The Court Chandler, that Von context." 520 U.S. at greater weight, Raab carried and admon- S.Ct. 1295. ished, unique "Von read Raab must be in its searches; and to the tested. students "consent" categories of students among the Second, (3) testing, though intended are held out the tested students use, I think the first is NSC as "role models." drug identifies prevent school-wide extent, only a limited and the other population of true only drug among the users not true at all. program. two are who submit students feasible, Third, policy own it is as NSC's Students clear, to deter- 1. Extent Control Over for NSC officials

makes of suspicion of mine when reasonable Linkes' majority contends that the Fourth, has not shown use exists. NSC protection privacy interests deserve lesser evidence, type presented any of the I, normally 11 would than Article Section Vernonia, signif- of of use as source a de- because schools are allowed demand conducting the school's problems icant that could "supervision of and control gree program. educational I exercised over free adults." not be "Special Applying the Needs" II. supports agree generally that Indiana law Program Analysis to NSC's However, "degree a school's that view. limits. The supervision" is not without its majority that rele agree I with the majority on the that schools relies notion inquiry under Article Section vant parents guard- stand in the relation of whether, given the Indiana Constitution is in matters of conduct ians to cireumstances, totality of the discipline. may justify impo- This are reason searches conducted drug testing when matters of sition of State, 658 N.E.2d 79- able. Brown at issue. But it discipline conduct and (Ind.1995). respect, In this the Indiana weight suspi- when carry equal does not similar, very if not identi Constitution is a mat- searches are conducted as cionless cal, adopted for the to the formulation T.L.O., Indeed, in the Unit- ter of routine. in Vernonia: reason Fourth Amendment Supreme cautioned ed States all the circumstances. 515 ableness under of the role against such a laissez-faire view ("[TJhe ultimate U.S. S.Ct. officials who conduct searches: of school gov constitutionality of the of a measure "). ernmental search is 'reasonableness.' If school authorities are state actors appropri majority concludes guar purposes of the constitutional to examine are the ate "circumstances" expression and due antees of freedom by the Court same as those balanced why to understand process, is difficult privacy the nature of the inter Vernonia: exercising they should be deemed to be intrusion; est; the character of the authority parental rather immediacy govern the nature and conducting when searches of their stu far, But, good. mental concern. So so generally, dents. the Court has More applying reasoning of Vernonia concept parental recognized that "the Chandler, I at a different light of arrive author delegation" as a source majority's. conclusion from the com ity entirely is not "consonant with Ingraham v. pulsory education laws." Privacy In- Overcoming A. the Linkes' Wright, 430 [97 U.S. terests (1977). Today's 51 L.Ed.2d 711] merely public officials do not ex majority privacy Linkes' school The finds the authority voluntarily conferred on weight minimal on three ercise interests of based rather, (1) parents; individual privacy inter- them propositions: students' they publicly act in man (2) furtherance adults; ests are less those poli- disciplinary majority educational and identifies one set of for- dated "compulsory regular credit coursework as carrying cles.... out searches classes," participation in describes ev pursuant to disciplinary other functions erything "voluntary." aspir else But the rep act as policies, such school officials ing appearance vocalist's in concerts State, merely resentatives of the as "voluntary" is no activity more than the surrogates parents.... for the caleulus, major's electing future math 733. It is also algebra satisfy high when will that, noteworthy although the education of diploma requirements. Trinidad Sch. Cf. high Indiana's students is one of the most 1 Lopez, Dist. No. 963 P.2d ly regulated enterprises gov of our state (Colo.1998) (extra-curricular activities are ernment, specifically in nowhere enu adjunct experi a "vital to the educational powers merated and duties of this state's ence"). That the student receives aca corporations legislature giv has the demic eredit from the program alternative explicit authority drug en for random test change does not the fact that the student ing of students.3 essentially given a different course from provided peers, the one his or her because "Already 2. "Consent" to Searches and "voluntary" of a decision not to take a Regulated Activities" test. Among categories of students affect- agree I that participation in certain ex program ed are those enrolled may tra-curricular open activities the door in some for-credit courses whose activities drug testing. to some fashion of Athletics place premises. take off school ma- traditionally primary have been the target that, jority concludes because alternative See, programs. e.g., of such Vernonia assignments for-credit are available to (student-athletes subject testing to be place portion take the of the of the course they cause were the "leaders" of the triggers testing requirement, instigators discipline culture and of severe decision whether to submit to is problems). may There well be some basis "voluntary." refusing But the effects of to drug testing safety for in measure drug testing submit to in those courses accompanied by significant activities physi Consider, may quite harsh. for exam- cal I far stress. find less tenable the ple, hopes a member of the choir who participation notion that non-athletie ex- performing enter a arts col- opens tracurriculars also the door to such lege. permitted, He or she is as the ma- practice. nothing an intrusive There is out, jority points participate in "alterna- peculiar Society, Honor about National assignments," tive for-credit but is denied instance, suggests that its members opportunity perform public with themselves, "subject must virtue of the rest of the chorus. When the time ... participation regulations apply performing comes to arts expectation priva further reduce their program, if that partici- student refuses to cy." Joy v. Penn-Harris-Madison Sch. pate in "voluntary" program, he or she (7th Cir.2000). Corp., F.3d high grade be able to document a II.C, fully developed As in Part I more choir, gaping perfor- but has void that in order to un believe be reasonable cireumstances, experience. seope mance der all the contrast, By legislature specifically (1998). has § Ind.Code 20-8.1-5.1-25 spelled procedure out the for locker searches. 992 officials, by school rather sive if conducted must some relation

testing program bear authority to the identified issue I am aware of no police. than plan NSC fails to address. The meant I, ap 11 suggesting that Article Section that test. activity stringently police plies more government agencies. than that of other Theory Model" 3. The "Role I, Article Section 11 does the text of Nor that the record majority concedes majority a result. The em support such peers whether their "does not address "police" and "law en phasizes the words in the tested participating view students portions in of Bald forcement" the cited models," persua finds activities as role but (Ind.1999), Reagan, win v. 715 N.E.2d holds the affected sive the fact Brown, (Ind.1995), 653 N.E.2d fur This writer is students out as such. (Ind.1994) State, Moran v. 644 N.E.2d than high school his ther removed from I, 11 carries suggest that Article Section a casual reviewer colleagues. But even than greater weight those situations skep with extreme pop culture must view is at issue. when school officials' conduct partic claim that ticism the undocumented police activity be Those cases referred to all, list of activities are ipants in this broad in those cases were cause the seizures by viewed predominantly, or even by police officers. There is conducted event, any peers as role models.4 nothing suggest in those cases to a differ party the affected is or is not held whether by ent result if the seizure were conducted adequate is not out as a "role model" "special Indeed, justify program on government. NSC's a different arm of Supreme As the U.S. needs" basis. frequently refer to the con other cases it, a good a need of the 'set put "[Ilf by government gen on searches straint sufficient to over example' genre were eral, Moran, just police. by See objection, a Fourth Amendment whelm ("The protection at 540 afford 644 N.E.2d explain took to the care this Court then I, [by against Article 11] ed Section Raab, Skinner, why Von the needs acts."); private Hutchinson official and not 'special' many wasted ranked as Vernonia (Ind.1985) State, 477 N.E.2d entirely unnecessary, perhaps words ("'The prohibitions against constitutional Chandler, misleading, even elaborations." pro searches and seizures unreasonable 117 S.Ct. 1295. Rather protection by gov vide from such acts testing, supporting the need State, ernment."); 442 N.E.2d Torres v. its "role model" fact NSC advances (Ind.1982) (same); New cf. theory paucity underscores the evidence T.L.O., Jersey v. 469 U.S. at affected students has ("[Thhis limited the Court has never any drug problem. relation NSC's prohibition on un [Fourth] Amendment's opera searches and seizures to reasonable the Intrusion B. Character of police."). tions conducted Applies Equal- 1. Article Section Agencies ty to All Government that, majority agree I with the some cases, suspicionless conducted searches majority to the ex- disagree I with the cireum- upheld intru- have been under suggests that a search is less schools tent provide picture "American hood. I believe most of us could I cite the recent motion II," having authority which I confess to viewed persuasive Pie more from our own ex- friendship parents with the of its reason of high periences in school. director, whom I have known from child- preclude presented stances that would a search the case by NSC. Nor does argue law But it not identity enforcement. is the students have run amok, as was the case in searching government agents Vernonia. Final ly, there is no claim that testing the makes this so. It is the nature of the students, groups these distinct from the intrusion and the justifying reasons it. population whole, any as a has relation to school, police, That a rather than the is perceived NSC's drug problem. The charged the with unreasonable conduct is Circuit, Tenth in Earls v. Tecumseh Pub. apply not an automatic invitation to 92, (10th Sch. Dist. No. 242 F.3d 1264 mandate of Article Section 11 with less -- Cir.2001), granted, --, cert. U.S. force. (Nov. 8, 2001), L.Ed.2d 418 invalidated a testing program for that Preventative/Rehabilitative versus reason. majority distinguishes Harls Purposes Punitive based on differences policy between its I place do not much stock in fact But NSCs. Earls turned not on the that the results of NSC's tests are nature of the school policy, district's but on routinely not volunteered to law enforce- subjected the classification of students to Regardless ment authorities. of the stated the searches. The Tenth Circuit "lit saw purpose of I testing, agree do not with efficacy tle in a drug testing policy which majority preventative that "[a] or reha- tests among whom there is no bilitative search is inherent to a school drug problem." measurable 242 F.3d at Indeed, corporation's function." I find no 1277. Finally, "preventative" nature support for such a corpo- notion. A school program proves of NSCs too much. If it educate, ration's inherent function is to legitimate objective, gives reason for arbitrarily monitor an category defined every NSC to test student. Willis v. of students for the use of drugs, alcohol or Umty. Anderson Corp., Sch. 158 F.3d nicotine, compliance with other laws. (7th Cir.1998), denied, cert. testing conducted in Vernonia was 143 L.Ed.2d 351 necessary school's inherent edu- (1999) ("If only [deterrence] were the rele cational function because the education of consideration, vant might Vernonia as well the students severely was affected have sanctioned all testing blanket chil "immediate prompted by sharp crisis public dren in schools. And this it did not rise students' use of drugs." unlawful do."). course, Of such permissible. is not Chandler, 520 U.S. at 117 S.Ct. 1295. ("[The Joy, Cf F.3d . disruption This crisis included severe yet case has to be made that a urine classroom activities. sample can be the 'tuition' at a sehool."). case, In any NSC's is not the preserving proper

method of educational As T.L.O. reminded us: reason- T.L.O., environment envisioned on ableness standard should ensure that the relies, majority which the T.L.O. dealt interests of students will be invaded no smoking with in the school ability and the necessary more than is to achieve the le- principals respond of teachers and swift- gitimate end of preserving order ly to address conduct in the educational rights schools." The students- NSCs adhering environment without for- or at least the ones NSC has chosen to mal requirements of the Fourth subject Amend- test-should to no more of an ment. These certainly may situations re- necessary intrusion than to achieve NSC's quire immediate action. But that in preserving is not interest order in its schools. in to override the not, tial-important enough majori- view, my the issue interest, acknowledged privacy dividual's NSC's suggests, whether

ty's reasoning Fourth sufficiently suppress vital at imposed those comparable to policy is of indi requirement normal Amendment's in other and documented other schools at suspicion." 520 U.S. vidualized pro- NSC's it is whether cases. Rather needs" "special invoke the 1295. To S.Ct. testing of broad suspicionless its gram, and doctrine, testing of such a proponent students, justified at all. categories of a "concrete program must demonstrate this, prove upon NSC to It incumbent In at 117 S.Ct. 1295. danger." Id. program leaves its to do so and its failure Vernonia, danger" with re the "concrete I, Article complying with short of well athletes was to the school's student gard 11. Section rebel as a "state of evident and described 662-63, 2386. at 115 S.Ct. lion." 515 U.S. Concern NSCs Governmental C. in the school envi variety problems A Efficacy Program itsof argues that the cited. NSC ronment were Dan- Presents No "Conerete 1. NSC the deaths of two stu survey results and Tests as to the Students it ger" justify pro ten-year period in a dents "special factor in the needs" The final place. But neither gram put it has into immediacy of nature and balance is the the class cireumstances involved these efficacy of its test- concern and NSC's Vernonia, in disruption cited room Vernonia, it. addressing in ing program point to superintendent could not NSCs 2386. The ma- 515 U.S. discipline problems in attrib any increase suggests of Vernonia jority's treatment may It not to substance abuse. utable noth- phrase "special need" means that the justifi a school "epidemic" take an before identify ing more than that drug testing program. ably institutes impose ran- "drug problem" and thereafter than the evidence But it must take more any engaged drug testing dom on not, If Article Sec presented NSC. activity. I do in an or co-curricular extra- little, may fairly provide be said to tion broadly. NSC not read Vernonia students. any, protection to Indiana's if proving why its burden of carries the are of cited The concerns "special needs" fall within searches they if But even rose significant. course Vernonia, doctrine, and later applied support some test the level sufficient to view, my In it fails clarified in Chandler. justi program, program is ing NSC's danger" which to establish the "concrete Joy, In the Seventh fied its evidence. or-assuming responds, program test an Indiana sehool's Circuit addressed danger-that a concrete presence of Although ing policy similar NSC's. form is tailored to present in its policy unimportant particulars of the address it. case, present the Seventh Circuit's Chandler, The court as Supreme analysis States is instructive.5 the United in government's the nature of the proffered special that "the sessed explained terest, examining whether a part, by must substan drug testing need Sch., (7th Joy upheld policy at issue County The court in Cir. 133 F.3d 984 Rush denied, 1998), participating cert. students as to its (1998), activities, upholding a similar only appar 142 L.Ed.2d 53 but the extra-curricular throughout expressed policy. For the reasons panel's for that conclusion was ent reason reasoning in disagree with the opinion, this I decisis, to follow the compulsion, under stare holding Todd. in Todd Seventh Circuit's earlier correlation existed the defined 2. Suspicion-Based between Testing is Feasible population test and the abuse. NSC's evi driving One force in the United States dence of substance abuse its schools is a Supreme opinion Court's in Vernonia was survey given grades to students seven the Court's conclusion that a program through ten. However the results do not based on suspicion individualized would en- suggest a percent correlation between the tail "substantial difficulties-if in- [were] age of claiming to have used a practicable deed at all" in order to handle given substance and those students who the present "immediate crisis" in the Ver- participate in an activity by covered NSC's nonia school explained district. As in Part testing program. survey The cited II.C.1, proffer NSC does not evidence of a may indeed "demonstrate a ... 'cor danger" "concrete of an immediate nature relation' drug between student use and a Further, as to the it tests. as the need to test." What does not do is out, majority points program NSC's not demonstrate a correlation drug between only testing entails random of the selected among general use population student students, groups of provides but also need to test the students who are may "[sltudents also be entered into the subject program. id. at Cf. testing program request at the of their (O'Connor, J., (criti S.Ct. 2386 dissenting) parent ... when a student signs shows cizing the school district's decision to test drug provides use that suspi- reasonable "a appears athletes as choice that cion to search a student." (emphasis add- to have been driven more a belief in ed). terms, By its own policy pur- NSC's pass what would constitutional muster ... ports to: ability have the to determine a belief in required what was to when a suspicion" "reasonable present meet the District's principal disciplinary given for a student. concern."). Joy NSC cites and Vernonia I recognize agree suspicion- in support of its claim that "[uJnder based can searches lead to if abuses reasonableness standard the federal courts grounds suspicion for sufficiently are not findings have found that like this do in fact articulable. As noted in State v. Gerschof- provide a testing." basis for The majority fer, a scheme random searches be appears accept to argument. this I think subject less profil- abuse the form of this point Joy misses the and Vernonia. ing arbitrary enforcement than one that requires

Here, suspicion. reasonable in Joy, proven, 763 N.E.2d NSC "has not attempted (Ind.2002) or even prove, that a Amar, correla (citing Akhil Reed tion exists between use and those Fourth Principles, Amendment First who engage extracurricular activities or Harv. L.Rev. (1994)). Neverthe- less, use and those cast, who drive to school." the broader the net and the Thus, 212 F.3d at 1064. program NSC's any program all, weaker the case for at "dividing amounts to persuasive students into the less this consideration be- categories broad drug testing on a airport comes. everyone Thus searches of basis, category-by-category which randomly allows or of passengers may selected for drug testing for all very but the most unin reasonable under current cireum- program subjects stances. But NSC's volved and isolated (citing students." Id. Willis, 423). 158 F.3d at appropri nearly Willis eighty percent of its middle and ately described such a high tests, as "one school students to random insidious means toward testing." blanket very based on this claim of a tenuous 158 F.3d at 423. danger." "concrete practicable for some is practicable what Willis, the Seventh 158 F.3d all. stated, for "Under Appeals

Cireuit formulation, consider courts the Vernonia I, 23 Concerns III. Article Section suspicion-based search feasibility of I, of the Indiana Con Section 28 Article govern- efficacy of the assessing the when Assembly states: "The General stitution program in policy." ment's citizen, or class grant any shall not sus- who were required students Willis which, citizens, or immunities privileges days to submit or more for three pended terms, equally shall upon the same was return. urinalysis upon their Willis agree I with belong to all citizens." to un- but refused fighting, for suspended the standard majority's recitation of testing upon his return. dergo (Ind.1994). Day, N.E.2d 72 Collins policy, was policy, like NSC's Anderson However, stated many of the reasons help identify and inter- "to implemented II, testing pro I NSC's in Part believe using students who are those vene with afoul of Article Section gram runs possible and to involve soon as drugs as governmental that requires Section 417. immediately." Id. at parents on inherent charac based classifications be Circuit, program holding the The Seventh and that group the classified teristics of Amendment, found it the Fourth violated reasonably related classifications be has not Corporation "the significant group. that define the the characteristics sys- suspicion-based that a demonstrated Collins, many at 79. Like 644 N.E.2d unsuitable, not in fact would be tem would classifications, this is one legislative Id. at 424-25. highly suitable." that has individuals enter group defines a noted: court as students leaving all the time ing and matter, be that practical aAs As activities. join drop and out of various search is worka- suspicion-based a when out, defining group majority points ble, government will the needs meets membership in these activities outweigh the strong enough to never be of "inherent char requirement the Collins Or, individual. interests of the privacy stu distinguish" which acteristics if a differently, perhaps slightly stated from NSC students who are tested dents feasible, suspicion-based search However, the stated not tested. who are have failed to show government will "provid[e]l is to purpose of NSC's enough "important that is special need students, safety of for the health acknowl- the individual's to override pressure peer the effects undermin[e] interest, sufficiently vital edged privacy for stu legitimate reason by providing the Fourth Amendment's suppress ... illegal drugs and to refuse to use dents of individualized requirement normal drugs to students who use encouragle]l ~ suspicion." programs." treatment participate Chandler, 520 (quoting purpose signifies U.S. Nothing Id. at in that stated about the 1295). more concerned that NSC is suspicion- Whether just par one factor who system safety is feasible is of the students based health analy- regulated activities totality ticipate of the cireumstances in our anything is there sis, ilustrates-it who do not. Nor I believe-as Willis those but categories wheth- covered one in the balance of about the significant is a more sus that those students are suggest Given the system is reasonable. er the peer pressure the effects of contemplates ceptible to policy own fact that NSC's There- students, non-tested than their testing for some suspicion-based colleagues. fore, I agree cannot disparate requiring

treatment of testing of stu- some In Cheryl the Matter of dents rather than others is in any way A. DANBERRY. "reasonably to the distinction related". No. 67S00-0006-DI-380. NSC makes between them. Supreme Court of Indiana.

Conclusion March 2002. conclusion, I would find NSC's test- As Amended March ing program, form, in its current invalid I, under both Article Section and Arti- AMENDED ORDER APPROVING cle Section 28 of the Indiana Constitu- STATEMENT OF CIRCUM- tion. presented NSC has not significant STANCES AND CONDITIONAL evidence of a danger concrete requiring AGREEMENT FOR DISCIPLINE implementation policy, of its as it eur- Pursuant to Ind.Admission and Disci- rently least, very stands. At the NSC has pline Rule Section the Indiana Su- presented any evidence of a severe preme Court Disciplinary Commission and discipline problem among the test- respondent have approv- submitted for categories ed of students. NSC's distinc- al a Statement Circumstances and Con- tion between the tested and untested stu- ditional Agreement Discipline stipulat- basis, dents has no rational and its testing ing a proposed discipline agreed facts (a) fails to overcome the Linkes' as summarized below. interest, privacy under the Vernonia anal- Facts: While representing couple in a ysis, for substantial lack efficacy, personal case, injury (b) respondent de- fails equal the Collins rights privi- layed seeking medical records and in leges analysis because the distinction is notifying her clients about an error in the not "reasonably related" to policy's police report. settled, After the case purpose. stated respondent delayed in forwarding the The majority that, contends having clients' share. respond She also failed to "identified a drug problem gives timely to the request Commission's an [NSC] interest in experimenting with information. methods to that, deter use." I agree respondent Violations: violated if drug problem present NSC, 1.3, Ind.Professional Conduct Rule which certainly has right experiment requires attorneys to act adequate with determine the most effective method of diligence promptness; Prof.Cond.R. combating problem. However, 1.4(a), which requires attorneys to commu- experimentation must have a constitution- nicate adequately clients; with their Prof. ally valid form. 1.15(b), Cond.R. requires lawyers which deliver client promptly; funds and Prof. RUCKER, J., concurs. 8.1(b), Cond.R. requires lawyers which

respond to the Commission's reasonable requests for information.

Discipline: 80-day suspension with auto- matic reinstatement. Court, having considered the sub- parties,

mission of the now APPROVES

Case Details

Case Name: Linke Ex Rel. Linke v. Northwestern School Corp.

Court Name: Indiana Supreme Court

Date Published: Mar 5, 2002

Citation: 763 N.E.2d 972

Docket Number: 34S05-0103-CV-151

Court Abbreviation: Ind.