Lead Opinion
In 1998, thе Delaware Valley School District (the “School District” or “District”) adopted a policy which authorizes random, suspicionless drug and alcohol testing of students who hold school parking permits or participate in voluntary extracurricular activities. Appellees Louis and Mary Ellen Theodore, whose two daughters were subject to the policy, filed a complaint seeking to enjoin the testing policy on grounds that, inter alia, it violated their daughters’ right to privacy under Article I, Section 8 of the Pennsylvania Constitution. The primary question in this appeal is whether, for purposes of the preliminary objections subsequently filed by the School District, the policy must be deemed constitutional as a matter of law. Because we reject the District’s argument that the policy is constitutional as a matter of law, we affirm the decision of the Commonwealth Court which reinstated the complaint and permitted the case to go forward.
On May 14, 1998, the District, which is located in Pike County, adopted Policy 227, made effective July 1, 1998, which required all middle and high school students seeking to participate in extracurricular
As representatives of the school district and leaders in their schools, students involved in extracurricular programs and students who drive to school are expected to exemplify high standards by the public and are held in high esteem by other students. Participants in extracurricular programs and those who drive to school are expected to accept the responsibilities accompanying these opportunities.
Deterring drug use by school students is important. School years are the time when the physical, psychological, and addictive effects of drugs are most severe. The effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, becausethe educational process is disrupted.
With regard to school athletes and student drivers, the risk of immediate physical harm to the drug and alcohol user or those with whom he/she is playing a sport or sharing the highway is particularly high. Apart from psychological effects, which include impairment of judgment, slowing of reaction time, and a lessening of the perception of pain, alcohol and the particular drugs screened by this policy pose substantial physical risks to athletes and drivers. Extracurricular participants, whether athletes or not, are student leaders and, as such, serve as role models for their peers and for young children as well. The use of drugs and alcohol by these role models exacerbates the problem of illegal substances in our schools.
Nothing in this statement of purpose, or in any other pleading of record, suggests that the class of students targeted for random testing were the source of an existing, active drug problem in the District. Moreover, at least at this stage of the proceeding, it appears that certain students non-athlete, non-driving extrаcurricular participants deemed, by that status, to be “student leaders”) were targeted for symbolic reasons, since they were deemed to be “role models.”
The signed contract is effective for one year and authorizes school officials to collect breath, urine and blood samples from the student. The samples cannot be used to test for any medical condition other than the presence of a specific list of intoxicants. Students may not refuse to submit to a test without penalty, for any such refusal (or any alteration of a test sample) is considered the equivalent of a positive test result. Policy 227 defines a positive test result as one that reflects either a blood alcohol content (BAC) level of at least .02 percent or the presence of any level of a controlled substance. The School District bears all costs associated with the testing.
Testing is required in five different circumstances: initial testing, random testing, reasonable suspicion testing, return-to-activity testing, and follow-up testing. Students must submit to testing initially when they register for an extracurricular activity or apply for a parking permit.
Under Policy 227, if a breath, urine, or blood test reveals the presence of alcohol or drugs, and the positive result is confirmed,
If no retest is requested, or if the retest confirms the presence of intoxicants, the positive result is disclosed to school personnel deemed to have a “need to know,” which includes the guidance counselor, the student’s coach and/or advisor, the designated substance abuse professional, and the “Student Assistance Team.”
Jennifer Lynn Theodore and Kimberly Ann Theodore (“the students”) were subject to mandatory urinalysis testing under Policy 227 because Jennifer participated in the National Hon- or Society, Science Olympiad, and Scholastic Bowl, while Kimberly participated in tennis, swimming, and track, and had' a parking permit. Both girls were required to provide urine samples: Kimberly on August 27, 1998, and Jennifer on or about November 4, 1998. Both tests returned negative for any banned substance. In January, 1999, the students’ parents, Louis and Mary Ellen Theodore (appellees), filed suit in the Court of Common Pleas of Pike County, both individually and as their daughters’ natural guardians, seeking to enjoin the School District from continuing to test students. In their amended complaint, appellees contended that their daughters had been forced to submit urine samрles against their wills and asserted that Policy 227 deprives students of their right to be free from unreasonable searches and seizures as guaranteed by Article I, Section 8 of the Pennsylvania Constitution.
The School District filed preliminary objections in the nature of a demurrer,
Appellees filed a response to the preliminary objections. With respect to the Article I, Section 8 question, appellees argued, inter alia, that resolution of the claim on the merits would depend upon whether the District could make a particularized showing of a special need for random, suspicionless testing of the targeted students. Appellees noted that the District had not evеn attempted to justify its program by proving the existence of an actual drug crisis in the District, much less within the targeted class of students. Appellees argued that, at a minimum, the issue of special need could not be resolved absent discovery and, accordingly, the District’s preliminary objections were premature. Appellees argued in the alternative that, under the heightened protections of Article I, Section 8, even a showing of special need should not be viewed as justifying the sort of random, suspicionless searches conducted under Policy 227.
In a reply brief, the District responded to the argument that it was obliged to prove an actual, existing drug problem among the targeted students by arguing that the federal courts had established no such requirement under the Fourth Amendment, but instead would permit school districts to rely upon the generally-recognized, “overall drug problem in schools” to justify random, suspicionless testing of select groups of students. The District also adverted to recent “publicity surrounding the drug problem in Delaware Valley.” In support of that assertion, the District attached and cited to a February 24, 1998 local newspaper article reporting a single arrest of a student at Delaware Valley High School for delivering a $3 packet of heroin to another student at the school. According to the article, the Westfall Township Police Chief had “confirmed ... that the arrest was the first ever involving heroin at the 1,150 student high school,” but that the school “averages three or four drug-related arrests each school year, usually for marijuana.” The article did not address whether either of the students involved in the heroin sale was involved in extracurriсular activities or had parking privileges.
On July 21, 1999, the trial court granted the School District’s preliminary objections and dismissed appellees’ complaint. The trial court concluded that Policy 227 was constitutional as a matter of law. The court recognized that the then-leading federal case on suspicionless drug testing in public schools was Vernonia School District 47J v. Acton,
The Commonwealth Court, sitting en banc, affirmed the dismissal of appellees’ parental rights claims, but vacated and remanded on the claim brought on behalf of the students, reinstating the complaint as to that claim. Theodore v. Delaware Valley School District,
In a concurring opinion, Judge Friedman agreed with the reinstatement of the students’ claim and agreed that In re F.B. provided the controlling analytical framework. Judge Friedman wrote separately because her applicаtion of that authority differed from the plurality’s. Judge Friedman did not view the intrusions authorized by Policy 227 as minimal. In addition, Judge Friedman believed that the policy did not provide sufficient notice of what criteria must be present before a search is performed and the manner in which the search is conducted, and questioned the proposition that students could be deemed to be subjecting themselves to the tests voluntarily, since extracurricular activities play such an integral role in the life of the modern student. The concurrence agreed with the plurality on the key point that the District had failed to demonstrate any special need to search only those pupils involved in extracurricular activities
In a dissenting opinion joined by then-President Judge Doyle and Judge McGinley, Judge Leadbetter opined that, although she agreed “with virtually all of the analysis” of the plurality, the District had articulated a sufficient governmental interest to justify the intrusion, and hence, the trial court’s order should be affirmed as to the students’ claim. The dissent did not address the parental rights’ claim. Id. at 667 (Leadbetter, J., dissenting).
The parties cross-petitioned for allocatur. After granting both petitions, see Theodore v. Delaware Valley School District,
We begin by emphasizing the procedural posture of the case. The matter comes to us as a question of whether the trial court properly sustained preliminary objections in the nature of a demurrer. In reviewing such objections, all material facts properly pleaded in the complaint, as well as all inferences reasonably deducible from those facts, are deemed admitted. E.g., Kohler v. McCrory Stores,
Turning first to the District’s claim concerning reinstatement of the students’ complaint, the demurrer was sustained by the trial court based upon its conclusion that the policy was constitutional as a matter of law. The Commonwealth Court deemed the policy to be constitutionally infirm. The question of the constitutionality of Policy 227, like the question of whether demurrer is appropriate, is one of law; therefore, our review is plenary. Purple Orchid v. Pennsylvania State Police,
The District contends that Policy 227 is virtually identical to the policy at issue in Earls. The District argues that Article I, Section 8 should not be construed as imposing greater limitations upon the authority of public schools to conduct student drug tests beyond those imposed by the Fourth Amendment, as all public schools possess an inherent “special need” to drug test the pupils under their care.
Although the question before this Court involves Pennsylvania’s search and seizure provision, some discussion of the U.S. Supreme Court’s pertinent school search decisions is useful as background and to undеrstand the basis of our distinct approach under Article I, Section 8. To be deemed reasonable under the Fourth Amendment, a search must ordinarily be based upon probable cause to believe that a violation of the law has occurred. See New Jersey v. T.L.O.,
The Fourth Amendment protects public school students from unreasonable searches and seizures by school officials. T.L.O.,
The state action deemed reasonable in T.L.O. was a search of a student’s purse based upon individualized suspicion. Individualized suspicion, of course, has long been a central tenet of Fourth Amendment jurisprudence. See Terry v. Ohio,
In analyzing the Vemonia drug-testing policy, the Court first held that the Fourth Amendment does not contain an “irreducible requirement” of individualized suspicion. Id. at 653,
The Court significantly extended Vernonia’s, holding in Earls by approving a random, suspicionless drug-testing policy which was neither a response to, nor targeted toward, a specific group of problematic students. The policy in Earls was similar to the one at issue here, ie., it required all middle and high school students to consent to random urinalysis drug testing in order to participate in any extracurricular
In reversing the 10th Circuit, the U.S. Supreme Court, in an opinion by Justice Clarence Thomas, observed initially that, because there is a “special need” in the school environment to uncover or prevent drug usage, individualized suspicion is not a prerequisite to a valid search. Rather, the Court deemed it appropriate under the three-factor Vernonia test simply to weigh the intrusion upon the children’s Fourth Amendment rights against the promotion of a legitimate governmental interest. Earls,
Justice Stephen Breyer, who also joined the majority, filed a concurring opinion which emphasized that the drug problem in the nation’s schools is serious, and that governmental supply-side interdiction efforts have not reduced teenage drug use in recent years. Justice Breyer noted his approval of the school district’s attempt to reduce the demand for drugs by targeting peer pressure, which he termed the “single most important factor leading school children to take drugs,” observing that the policy “offers the adolescent a nonthreatening
Justice Ruth Bader Ginsburg, joined by Justices John Paul Stevens, Sandra Day O’Connor, and David H. Souter, dissented. The Dissent noted that the majority’s reasoning was at odds with Vemonia, in which the Court had relied heavily upon the policy’s targeting the very studеnts responsible for promoting the drug culture the district sought to eradicate: “The Vemonia Court concluded that a public school district facing a disruptive and explosive drug abuse problem sparked by members of its athletic teams had ‘special needs’ that justified suspicionless testing of district athletes as a condition of their athletic participation.” Id. at 844,
It is a sad irony that the petitioning School District seeks to justify its edict here by trumpeting the schools’ custodial and tutelary responsibility for children. Vernonia,
We have little doubt that, if this case presented a Fourth Amendment challenge, the intervening decision in Earls would require us to reverse the Commonwealth Court. Although there are references in the Earls litigation to record evidence of drug use at the schools involved, a close reading of Justice Thomas’s opinion suggests that the Court would have upheld the policy regardless. For example, the Court stated that, in other contexts, it had upheld random drug testing programs without any documented history of drug use,
The Article I, Section 8 question, however, is more difficult. “The cases decided under Article I, [Section] 8, have recognized a ‘strong notion of privacy, which is greater than that of the Fourth Amendment.’ ” Commonwealth v. Glass,
The In re F.B. Court concluded that the appropriate state constitutional test in the school environment involves balancing four factors: (1) the students’ privacy interests, (2) the nature of the intrusion created by the search, (3) notice, and (4) “the overall purpose to be achieved by the search and the immediate reasons prompting the decision to conduct the actual search.”
In re F.B. involved a suspicionless search of the entire student body for
As a matter of policy, Pennsylvania citizens should not have the contours of their fundamental rights under our charter rendered uncertain, unknowable, or changeable, while the U.S. Supreme Court struggles to articulate a standard to govern a similar federal question. There is an entirely different jurisprudential and constitutional imperative at work when this Court, which is the final word on the meaning of our own charter in a properly joined case or controversy, is charged with the duty to render a judgment.
In re F.B. considered a search of all students entering a public high school for weapons. All students were required to pass through a stationary metal detector with the potential for a follow-up scan of their bodies with a hand-held metal detector. In addition, the students’ book bags, purses and coats were physically inspected, and each student was required to empty his or her pockets for examination. Looking to the students’ privacy interest, we found that “the search of a person always involves a greater degree of intrusion uрon one’s privacy interest than the search of a thing.” Id. (citing Commonwealth v. Martin,
Also instructive in this area is this Court’s earlier plurality decision in Commonwealth v. Cass,
With the teaching of Cass; In re F.B., and Vernonia in mind, we have no doubt that Policy 227 cannot survive an Article I, Section 8 challenge on its face, so as to presently entitle the District to a demurrer. First, since the students’ privacy rights here — rights which were rather summarily dismissed by Earls — have greater meaning under Article I, Section 8, the testing authorized by the District cannot be viewed as a trivial incursion on privacy. While students’ privacy expectations are lessened by virtue of their presence at school, students may reasonably anticipate that the privacy associated with their excretory functions will be diminished at school only modestly via the need to use public restrooms. We also agree with Justice Breyer that many students could reasonably consider production of a urine sample for testing to involve a greater imposition than the ordinary use of a public restroom. See Earls,
We recognize, however, that the intrusion is ameliorated somewhat by the fact that the policy states that all tests will be “conducted according to established protocol,” and that “[u]rine or blood samples shall be collected by trained medical personnel in a manner that balances the values of privacy and confidentiality with the accuracy of the tests.” Other aspects of the policy also help to ensure that there is no arbitrary or oppressive action beyond the fact of the search itself: i.e., students are chosen at random for testing; the procedures are not designed to lead to criminal or disciplinary actions; and the results are provided to a limited set of defined school officials.
Turning to the third factor, although the timing of the tests were deliberately made unknowable to the students, the District provided general notice by providing copies of the policy and requiring signatures of parents and students on a contract prior to the students’ involvement in any extracurricular
We are left then with a final consideration of the reasons the District enacted the policy and the efficacy and reasonableness of the policy in furthering the purpose identified. Any analysis of efficacy obviously must include an inquiry into the reasonableness of selecting only the targeted students for testing.
In forwarding its preliminary objection here, the District did not suggest that there is a specialized need to test for drugs and alcohol because of an existing drug or alcohol problem in the District, much less a problem that is particular to the targeted students. Moreover, the statement of purpose accompanying the policy recites nothing specific to the District, or the targeted students, but instead relies upon the importance of generally deterring drug use among students. The statement of purpose does note that there is some safety-based reason to single out athletes and student drivers, since drug or alcohol impairment when engaged in such activities may.“risk ... immediate physical harm.” As to other extracurricular participants, however, the only explanation given is that those participants, like athletes and drivers, are “student leaders and, as such, serve as role models for their peers.” These students, it appears, have been selected for testing for symbolic purposes — i.e., their privacy rights are deemed forfeit so as to set an example for other students.
The compelling need to combat and deter drug use among students is obvious, and the District’s desire to take action in that regard is certainly understandable, particularly in light of the school’s duty to maintain a safe, appropriate environment for learning. The tragic fact that there is a continuing drug problem among certain youth in America certainly justifies some responsive measures in public schools. See Cass,
This case has been presented procedurally to this Court on preliminary objections. The District at this stage of the matter has offered no reason to believe that a drug problem actually exists in its schools, much less that the means chosen to address any latent drug problem would actually tend to address that problem, rather than simply coerce those students who would have the most to lose if they violated or challenged the policy. This case thus stands in stark contrast to Vemonia. Policy 227 was not adopted by a school district at its “wit’s end” as a last-ditch effort to address a pervasive and disruptive “drug culture” which other, lesser measures had failed to eradicate. To the contrary, the most that the District proffered was “publicity” in the form of a local newspaper article reporting on a single, $3 drug sale that took place at the Delaware Valley High School in the past year — an article that does not address whether the students involved were athletes, drivers, or participants in extracurricular activities. Moreover, the District does not claim that the particular students selected for these random intrusions were likely to be drug users, much less that
Nationwide, students who participate in extracurricular activities are significantly less likely to develop substance abuse problems than are their less-involved peers. See, e.g., N. Zill, C. Nord, & L. Loomis, Adolescent Time Use, Risky Behavior and Outcomes 52 (1995) (tenth graders “who reported spending no time in school-sponsored activities were ... 49 percent more likely to have used drugs” than those who spent 1-4 hours per week in such activities).
On this question of need and efficacy, the program also stands in sharp contrast to In re F.B. A point of entry search of all students unquestionably is an effective means of furthering a compelling interest — eradicating weapons from schools. Although we do not for a moment downplay the seriousness of student use of drugs and аlcohol, in this post-Columbine High School era otherwise-undetected alcohol and drug use by some students does not present the same sort of immediate and serious danger that is presented when students introduce weapons into schools. But, even if it did, the over- and under-inclusive means chosen by the District are not likely to accomplish the objective. In light of the nature of the intrusion authorized by Policy 227 and the heightened right to privacy recognized under the Pennsylvania Constitution, we hold that such a search policy will pass constitutional scrutiny only if the District makes some actual showing of the specific need for the policy and an explanation of its basis for believing that the policy would address that need. In forwarding its preliminary objection here, the School District made no such showing, electing instead to argue that the general need to deter drug use, in and of itself, justifies random testing of only those students who participate in extracurricular activities.
Were the suspicionless drug and alcohol testing in this case confined to student-athletes and students with driving/parking privileges, the question obviously would be closer. Policy 227, however, captures students involved in all extracurricular activities. Students in the band, chess club, drama club, or academic clubs simply do not pose the same sort of danger to themselves or others:
Schools regulate student athletes discretely because competitive school sports by their nature require communal undress and, more important, expose students to physical risks that schools have a duty to mitigate. For the very reason that schools cannot offer a program of competitive athletics without intimately affecting the privacy of students,Vernonia reasonably analogized school athletes to “adults who choose to participate in a closely regulated industry.” 515 U.S. at 657 ,115 S.Ct. 2386 , [2393,]132 L.Ed.2d 564 (internal quotation marks omitted). Industries fall within the closely regulated category when the nature of their activities requires substantial government oversight. See, e.g., United States v. Biswell,406 U.S. 311 , 315-16,92 S.Ct. 1593 , [1596,]32 L.Ed.2d 87 (1972). Interscholastic athletes similarly require close safety and health regulation; a school’s choir, band and academic team do not.
Earls,
Although “special needs” inhere in the public school context ..., those needs are not so expansive or malleable as to render reasonable any program of student drug testing a school district elects to install. The particular testing program upheld today is not reasonable, it is capricious, even perverse: Petitioner’s policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects.
Id. at 843,
In short, Policy 227 cannot be deemed constitutional on its face because it authorizes a direct invasion of student privacy, with no suspicion at all that the students targeted are involved with alcohol or drugs, or even that they are more likely to be involved than the students who are exempted from the policy. The policy stands in stark contrast to the policy approved in Vernonia, where a drug culture led by the targeted student-athletes, who already had a lesser expectation of privacy, was proven to exist in the school.
Further support for the conclusion that Policy 227 cаnnot be deemed reasonable on its face may be found by considering the particularized showing that was made by a school district whose random drug testing program was recently challenged in the New Jersey Supreme Court. In Joye v. Hunterdon Central Regional High School Board of Education, 176 N. J. 568,
In addition to the fact that the school district in Joye was responding to an actual, documented problem within a particular school, the court emphasized the incremental and inclusive approach the district had taken to address that problem. The program was adopted as a result of a “meticulous two-year process” which included appointing a community task force, which was comprised of student representatives, parents, the booster club, school counselors, school administration, teachers, coaches, and drug testing experts. The task force evaluated the existing substance-abuse programs at the school (including an existing suspicion-based drug-testing program as well as program which randomly tested student athletes for drugs); collected information on reported day-to-day drug and alcohol problems among students in the school; and solicited public input by writing to parents and holding a public meeting. It was this task force which initially recommended expanding the existing random drug-testing policy from student-athletes to include students holding parking permits and students engaged in other extracurricular activities. Even then, the school district did not simply adopt such a policy but, instead, it held further public hearings and attempted to gauge then-existing drug use among the high school’s students by conducting a follow-up survey and consulting again with other school personnel about the persistence of the problem. The school district determined that drug use had declined, in part, due to the very success of the random drug testing of student athletes (thus suggesting the efficacy of that program), but that it was still unacceptably high. It was only then that the school district adopted and implemented the recommendation of the task force. Id, at 627-30. In later defending the policy, the president of the School Board noted that, although in his experience parents tended to react openly when they disagreed with a school policy, only three students and their parents (in a district representing approximately 2,500 students) had opposed this program. Id. at 632.
On the basis of this record, the Joye Majority held that the program was both reasonable and constitutional because it “represent[ed] a rational attempt by those officials and by approving parents to address a documented problem of illegal drug and alcohol use affecting a sizable portion of the student population.” Id. at 627. The court also specifically left open the prospect that a similar program at another school might not pass constitutional muster if, among other things, “the underlying drug and alcohol use at the particular school is simply inadequate to justify it.” Id. at 627. See also id. at 653 (to have similar programs deemed constitutional, other New Jersey schools “will have to base their intended programs on a meticulously established record, similar to the record here”).
Joye differs from this case, of course, in that it was decided on a developed factual record while this case is currently in the preliminary objections phase. It may be that, upon the trial of the matter, the District can produce evidence of an existing drug problem as well as the success and/or failure of other means adopted to eradicate the problem, along the lines of that which ultimately convinced a majority of the New Jersey Supremе Court. But, for purposes of its preliminary objections, the District has forwarded only its argument that the general need to deter drug
Although we recognize that this case is still in the preliminary objections phase, we would be remiss not to offer some view on the assumption, as reflected in the statement of purpose for the District’s policy, that it is constitutionally reasonable to target and make an example of some students, not because they have an existing drug or alcohol problem or because they are more likely than others to have or develop one, but because by driving or engaging in any extracurricular activity, they have assumed the mantle of “student leaders” and “role models.” The theory apparently is that, even in the absence of any suspicion of drug or alcohol abuse, it is appropriate to single these students out and say, in effect: “Choose one: your Pennsylvania constitutional right to privacy or the chess club (or the homemakers’ club, or cheerleading, or the Science Olympiad, or the band, or the Spanish club, etc.).” This choice is to be foisted upon the unwilling student — who really may simply enjoy chess, or cooking, or cheerleading, or science, or playing the tuba, or speaking Spanish, or associating with other children and young adults who share similar interests. Or, the student may have an eye on extracurricular activities that prospective colleges look for in reviewing student applications. See Earls,
Given the daily news reports from around the country, there is no doubt that this School District is sincere in its struggle to make decisions about how best to nurture notions of leadership and responsible citizenship and in discharging the awesome task of molding and shaping our youth to meet the modem challenges of our society. But, part of citizenship is also a respect for this Nation’s fundamental freedoms, freedoms which many young Americans, not much older than these students, have so often been called upon to defend overseas at very real risk to life and limb. These recent graduates are fighting, in part, for a right of privacy and self-determination that our adversaries despise. As Justice Louis D. Brandéis observed:
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the gоvernment will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.
Olmstead v. United States,
On the current state of this record, the suspicionless search policy at issue has not been supported by sufficient proof that there is an actual drug problem in the Delaware Valley School District; by individualized proof that the targeted students are at all likely to be part of whatever drug problem may (or may not) exist; or by reasonable proof that the policy actually addresses whatever drug problem may exist. Because the policy is not so supported, we hold that the Commonwealth Court correctly reinstated the complaint filed on behalf of the affected students.
Turning to the cross-appeal, appellees alleged in their complaint that, by establishing a program of mandatory counseling based upon a positive test result, Policy 227 violates their right as parents to make decisions involving their children’s health care, education, and upbringing. Appellees also claim that their privacy interests in the results of a positive drug test are compromised because the results are disclosed to school officials. The District disputes both arguments. As these students both tested negative, any controversy respecting the parental rights complaint is abstract, hypothetical and remote and, as such, is not ripe for decision. See Empire Sanitary Landfill, Inc. v. Commonwealth, Dep’t of Envtl. Resources,
For the foregoing reasons, the decision of the Commonwealth Court is affirmed.
Notes
. A parent signs the contract unless the student is married or over 18 years of age.
. Policy 227 was implemented pursuant to Section 510 of Article V of the Pennsylvania School Code of 1949, Act of March 10, 1949, P.L. 30 (as amended, 24 P.S. § 5-510), which authorizes school boards to adopt reasonable rules and regulations concerning the management of school affairs and the "conduct and deportment of all pupils” while under the school’s supervision. The District’s statutory authority to adopt such a policy has not been challenged.
. It appears from the policy that a student may hold a parking permit only if he or she has permission to drive to school, and vice versa. Accordingly, this opinion shall not refer to school driving privileges as separate from parking privileges.
. The policy does not specify the composition of the Student Assistance Team.
. This provision states that "[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant." Pa Const art. I, § 8.
. State-compelled toxicological (blood, breath or urine) testing is a search for purposes of the Fourth Amendment, Skinner,
. The Court listed as examples: the Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, cheerleading, and athletics. Earls,
. Justice O’Connor, joined by Justice Souter, also filed a brief, separate dissenting opinion, noting that she had dissented in Vernonia and continued (o believe that that case was wrongly decided. Id. at 842,
Concurrence Opinion
concurring.
I agree with the majority that the trial court should not have sustained the School District’s preliminary objections in the nature of a demurrer on the present record, and that the case must therefore be remanded for further proceedings. I write separately, however, because I am less certain than the mаjority that the School District’s decision, as memorialized in Policy 227, to target for random drug testing only student drivers and extracurricular participants (the “covered students”) constitutes a facially unreasonable approach.
The majority goes to some length to discredit the School District’s decision to test only the covered students. See, e.g., Majority Opinion, at 92 (“Even if bootstrapping from a general perception of a youth drug problem in America warrants
Secondly, it bears clarification that there does not appear to be any genuine dispute that there may be some particularized need for testing among a definable sub-class of the covered students, such as athletes and drivers. Thus, the aspect of the program to which the majority appears to object most strongly concerns the decision to test all extracurricular рarticipants, rather than athletes and drivers only.
In the school search setting, the Article I, Section 8 inquiry mirrors in significant respects the Fourth-Amendment test developed by the United States Supreme Court: both formulations reflect a balancing scheme in which the value that society places on protecting students from invasions of privacy competes -with the value that society places on the school’s ability to protect student health and maintain an appropriate learning environment. Compare New Jersey v. T.L.O.,
In analyzing the strength of the governmental interest served by the challenged drug search policy, this Court’s recent opinion in F.B. provides some guidance. As the majority indicates, F.B. involved a weapons search of all students entering a public high school. In upholding the search, this Court stated that the government’s need to keep weapons out of school is “obvious” and that schools are “not required to wait for a tragedy to occur within their walls to demonstrate that the need is immediate.” Id. at 673,
That the nature of the concern is important can hardly be doubted. Deterring drug use by our Nation’s schoolchildren is at least as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs, which was the governmental concern in [National Treasury Employees Union v.] Von Raab [,489 U.S. 656 , 668,109 S.Ct. 1384 , 1392,103 L.Ed.2d 685 (1989)], or deterring drug use by engineers and trainmen, which was the governmental concern in Skinner[ v. Railway Labor Executives’ Ass’n,489 U.S. 602 , 628,109 S.Ct. 1402 , 1419,103 L.Ed.2d 639 (1989)]. School years are the time when the physical, psychological, and addictive effects of drugs are most severe. “Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound”; “children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor.” ... And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted.
Vernonia Sch. Dist. 47J v. Acton,
This Court has already articulated in detail the importance of the governmental concern in preventing drug use by schoolchildren. The drug abuse problem among our nation’s youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse. As in Vernonia, “the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction.” [Vernonia, 515 U.S.] at 662, 115 S.Ct. [at 2395]. The health and safety risks identified in Vernonia apply with equal force to Tecumseh’s children. Indeed, the nationwide drug epidemic makes the war against drugs a pressing concern in every school.
Board of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls,
The Commonwealth Court plurality indicated (and this Court’s majority appears to agree) that the School District acted unreasonably in selecting the covered students for testing because there was no showing that those students аre in greater need of monitoring than other students; it suggested that Policy 227 was analogous to a decision to vaccinate only the covered students for Polio without demonstrating that they were more likely than other students to contract that disease. See Theodore v. Delaware Valley Sch. Dist.,
I cannot conclude, however, that the School District’s decision to test only the covered students absent any risk- or conduct-related basis (besides guarding athletes and drivers against special risks associated with their activities) necessarily lacks any logical or reasoned basis. Rather, I believe that several factors beyond symbolic considerations could support the district’s approach. For example, in upholding a similar drug testing policy, the Indiana Supreme Court recently noted that
greater ranges of activities occur during extracurricular activities than during normal school hours.... There are many more ways for a student to be injured, to endanger fellow students, to transgress school rules, or to violate the law while participating in an extracurricular off campus event (such as a band competition in another city or a noncurrieular field trip) than during the relative order of school hours.... If drug abuse increases the physical danger of participation in a school-sponsored activity, a school corporation’s interest in deterring drug abuse becomes stronger.
Linke v. Northwestern Sch. Corp.,
Student-athletes must have a preseason physical, acquire insurance coverage or sign an insurance waiver, and comply with rules of conduct, dress, grade point average, training hours and other rules as may be established for each sport. Students engaged in extracurricular activities often must also obtain insurance or sign insurance waivers for any extracurricular activity that extends the school’s liability beyond the normal school-context, such as field trips, outings, events, conferences, and competitions away from school. They may have to subscribe to additional requirements, such as when the activities have requiredattire, training rules, or hours of practice and rehearsal, or other general regulations. Some extracurricular activities will not have the same elements of lack of privacy such as the communal undressing and locker room as athletics, but many extracurricular activities have elements of shared exposure to other student participants when performing specified activities such as the putting on of an organization’s uniforms, or the general need to change into different required clothes for a particular event.
Joye v. Hunterdon Cent. Reg’l High Sch. Bd. of Educ.,
Other considerations, as well, may support the School District’s decision to test only the covered students. For example, because school attendance is compulsory, see 24 P.S. § 13-1327, limiting testing to students involved in strictly voluntary activities may serve to avoid a possible Fourth Amendment violation. See Tannahill v. Lockney Indep. Sch. Dist.,
Finally, although Appellees have not raised any equal protection claim, the gravamen of their objection to Policy 227 rests with the assertion that, absent proof that the covered students are in special need of monitoring, the classification drawn by the School District is not a reasonable one. In this regard, principles concerning legislatively-drawn classifications as analyzed against equal protection guarantees are applicable. Centrally, it has been recognized that such classifications need not be a “perfect fit” relative to the problem they are intended to address. See Justiana v. Niagara County Dep’t of Health,
“The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions andproportions, requiring different remedies.... Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one field and apply a remedy there, neglecting the others. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.”
Federal Communications Comm’n. v. Beach Communications, Inc.,
It is possible that, on remand, the School District will be able to demonstrate the existence of a significant drug problem among its pupils, but will nonetheless be unable to show that the covered students abuse drugs at a greater rate than the remainder of the student population. In this event, and for the reasons expressed above, such failure should not necessarily be fatal to the constitutionality of Policy 227. Rather, the determination of whether Policy 227 is likely to be efficacious in serving the School District’s interest in reducing or preventing drug abuse generally among its students is a matter for the trial court, sitting as fact finder, to determine in the first instance in consideration of all of the circumstances. In this regard, I note that, contrary to the majority’s apparent skepticism regarding the efficacy of selecting extracurricular participants for random drug testing, other courts have recognized that such an approach can be helpful in ameliorating drug abuse among students. See supra (citing Joye,
Reasonableness in this context does not require that the Board possess irrefutable proof verifying the efficacy of random drug and alcohol testing in reducing substance abuse among students.Rather, it is enough that the Board believed that its program would have some measurable effect in attaining the Board’s objectives. Those objectives include not only deterring drug and alcohol use, but encouraging those who test positive for such use to participate in rehabilitative programs.
Joye,
Finally, and consistently with the above, I note that, in setting forth the holding of this case, the majority is careful not to impose an absolute requirement that the School District make any particular showing of a special need as to the covered students only. See, e.g., Majority Opinion, at 92 (holding that the search policy at issue will be deemed constitutional if the School District shows a need for it and explains its basis for believing that it will be effective); id. at 94 (noting that at trial the School District may prevail if it produces evidence of a drug problem and other evidence along the lines of that which was of record in Joye). Indeed, the majority draws heavily upon the New Jersey Supreme Court’s reasoning in Joye, see id. at 93-95, a case in which there was a developed factual record concerning the extent of the drug problem within the school district, but little or no proof that the targeted student drivers and extracurricular participants were any more at risk of drug abuse than the rest of the student community.
. I take this opportunity, as well, to distance myself from the majority's branding as "student slackers” those individuals who elect not to become involved in extracurricular activities. See id. at 92. There are any number of legitimate life issues that could make it more difficult for some students to spend time in these voluntary activities than others, and I fail to see the value or propriety of this Court’s attaching a pejorative label to such persons.
. Indeed, that this same policy has been adopted by many school districts throughout the country — and has largely survived judicial review, see infra — at a minimum militates in favor of exercising caution before deeming the School District's approach facially unreasonable.
. See also Dandridge v. Williams,
. The salient finding of Joye was of "illegal drug and alcohol use affecting a sizable portion of the student population,” Joye,