Trinidad School District No. 1 v. Lopez Ex Rel. Lopez

1; NO. DISTRICT TRINIDAD SCHOOL Trinidad School Board of School Terry, 1; Louise President

District No. Board, capacity; in her official

of School member,

Sally Fabec, School Board Morreli, capacity; A. Felix

her official member, in his official

School Board Lochard,

capacity; School Charles member, capacity; in his official

Board member, Bulson,

Rae Board School Sant, capacity;

her official David Van

Superintendent, capacity; in his official Roy Bezona, Principal, in his offi capacity, Petitioners/Cross-Respon

cial

dents, child, LOPEZ, By R. a minor

Carlos friends, parents,

Through his next

guardians, A. Luis Marie S. LOPEZ

Lopez, Respondents/Cross-Petitioners.

No. 97SC124. Colorado,

Supreme Court of

En Banc.

June LLC,

Caplan Hal- and Earnest Alexander Stuller, Boulder, pern, W. Lee Allen Stuart Hawke, Trinidad, for Petitioners/Cross-Re- spondents. Lopez,

The Law A. Luis A. Offices Luis Tannous, Trinidad, Lopez, K. John for Re- spondents/Cross-Petitioners.

Justice MULLARKEY delivered Opinion of the Court. granted

We certiorari to review a testing policy promulgated by the Trinidad No. 1 of Education School District Board (Board) July policy 1996.1 The mandated granted following holding issues: 2. Whether the district court erred in 1. We certiorari on drug testing, policy that the School District's its dis- 1. Whether the district court abused unconstitutionally vague overly Findings specifically, in its of Fact and was not cretion finding No. 1 that Trinidad School District broad. drug problem. had a serious enjoin trial court drug testing requested of all suspicionless urinalysis partid- through grade sixth twelfth that he implementation At pating in activities. classes and march- be reinstated the band year, beginning 1996-1997 big band. (School No. 1 Dis- Trinidad School District restraining entering temporary After or- trict) regular began of all students reinstate der that the District to part extracurricular who wanted take Lopez marching to the band classes and the Lopez, activities. Carlos senior band, day trial court conducted a two the for-credit student who was enrolled two underlying complaint. on participated Lopez’s and an band classes the school’s trial band, 19, 1996, marching refused to consent to the order the trial dated December mandatory drug testing. Consequently, the facts, findings conclu- court entered suspended Lopez superintendent District law, court judgment. sions of and The trial marching from and the the band classes Policy held was unconstitutional- band.2 vague Policy ly and that did not violate parents,

Lopez, by through his filed a either the Fourth Amendment United and 7, permanent injunctive and complaint II, de- States or article section Constitution 6, claratory September relief the Colorado Constitution. (trial County District Las Animas Court Lopez appealed from the court’s order court). among Lopez alleged things other appeals. to the court of Pursuant to C.A.R. right his to be free violated sought parties expedited both then certio- seizures, from unreasonable searches and court, granted. in this rari review which we guaranteed by the Fourth Amendment that, We reverse. hold under the now We Additionally, Constitution.3 United States case, Policy is facts of this unconstitution- Lopez alleged that the violated article II, marching respect al with band.5 section the Colorado Constitution.4 partici- holding pass cannot the for-credit classes without 3. Whether the district court erred course, policy pre-partic- Lopez pating marching that the School District’s in the band. Of ipation drug testing for students enrolled in suspended classes was not from band or specifically and activities extracurricular marching the trial entered a band because court Marching Band did not violate the students’ temporary restraining prohibiting order his sus- rights under Fourth Amendment pension. See note 11. infra United States Constitution. holding 4. court erred in Whether district The to the United States 3. Fourth Amendment policy pre-partic- the School District’s ' provides: Constitution drug testing ipation for students enrolled in specifically and activities right people to be in their secure Marching Band did not violate the students’ effects, houses, against persons, papers, and II, rights Section of the Colo- under Article seizures, shall not unreasonable searches rado Constitution. issue, violated, and Warrants but be shall ruling court 5. the district erred Whether cause, upon probable supported Oath or policy was lawful as that the School District’s affirmation, describing particularly Respondent/Cross-Petitioner applied to Carlos searched, persons things place and the or to be Lopez. R. to be seized. complaint clear whether 2.It is not from II, Constitu- Lopez formally suspended from both the section of the Colorado was Article marching provides: two classes in band and the tion enrolled, suspended simply or which he persons, people secure in their shall be marching complaint merely from band. The effects, papers, from unreasonable homes and Lopez's suspension “the Band.” refers to However, from seizures; and no warrant searches and that he un- the band director testified things any place person or search or seize who refused to consent to derstood that drug testing describing place shall issue without suspended both would be seized, searched, thing person or to be or marching classes. band and the for-credit band cause, be, may probable without as near as nor Even if to the same effect. testified reduced to supported or affirmation oath superintendent suspended Lopez from the writing. suspension only, would have continuing effectively prevented Lopez from his because, violated the we hold that 5. Because classes enrollment for-credit Constitution, we not address opinion, need part a student United States explain VI-A of this notified, a due guardian is parent dent’s I. held, the student is hearing is process “Drug Testing Policy, Student entitled participation extracurricu- suspended from Curricular,” Cheerleaders/Extra Athletes/ subsequent for the current and lar activities testing for all students mandates a student commits seasons. when par- through who want to grades twelve six offense, the student does not have second activity.6 Un- ticipate in an extracurricular pro- enrolling in a assistance option of Policy, principal is re- the school der participate in the extracur- gram in order to successfully quired ensure that a student activity. Finally, if a commits ricular prior partic- an annual test completes offense, parents are the student’s a third chosen first extracur- ipating in the student’s held, notified, process hearing is a due activity year-. In addition to ricular suspended from extracurricu- the student is Policy testing, mandated allows next for the current and two lar activities any participat- to test student school officials seasons. activity ing in based on an extracurricular Policy adopted after two is un- The Board suspicion that the student reasonable years study by former drugs alco- led the District’s of illicit der the influence and/or superintendent. superintendent The hired Policy requires that a student hol. The also Minneapolis, Institute of Minne- parent sign a written form Search and student’s (Institute) to conduct an attitudinal and acknowledging consent to be sota the student’s through survey grades six Any who has been or is behavioral tested. student report- currently prescription twelve the District.7 The Institute taking a medication grades six ed that 44% of all students must the use of that medication disclose through drug an illicit dur- taking the test. twelve had used school officials before months, ranging ing preceding twelve Policy conse- establishes more severe grade in the from 23% the sixth 63% quences for violations. When successive grade. According to the Institute’s eleventh result, positive drug indicates a student’s test drug exceed- report, use Trinidad schools laboratory conducting performs a the test example, ed national statistics. For 63% of the results. If the second test to confirm marijuana reported using Trinidad seniors parent positive, test is the student’s .second lifetimes, compared na- once in their to 35% principal guardian or will be notified and tionally; reported one-time 13% seniors hearing process a due with the will conduct use, compared nationally; cocaine to 6% and parent guardian. and his or her or student eighth grade reported 20% of students fre- drug participate then must The student use, nationally. quent drug compared to 5% program undergo weekly drug assistance and scope period. If the student The trial court found of the tests over a six-week “serious, refuses, suspended drug problem, it will which described as the student immediate,” growing, was confirmed participating in extracurricular activities for and testimony subsequent drug-related expulsions and the current and seasons administrators, teachers, again prior to the next season and coaches must be tested eligible. If the Trinidad The trial court also found the student schools. which offense, drug approximately the stu- that the level of use was student commits a second Policy press opinion application Policy arguments no on the Lopez’s that even if the did Constitution, Policy the United States violate activities. to other student the Colorado Constitution. nevertheless violated survey a wide 7. The Institute's asked students drafted, originally was limited to 6. As variety questions, including questions concern- athletes, which definition includes student ing family (e.g., whether the stu- characteristics grades through partici- six twelve who divorced, parents parents’ dent's educational cheerleading, pates practices, in athletic and/or status, parents of the hours the number the Board athletic contests. when school, work), toward involvement in attitudes subsequently adopted the final version of values, self-esteem, activities, influence, peer al- July expanded the Board it to use, use, sexuality, physical cohol tobacco include students in extracurricular abuse, drug validity sexual use. activities. We address the only marching applied We ex- to the band. also found some generally as it The court body same in the student using drugs and were encour- athletes were other among participants in athletics and aging to do so. others activities.8 began implementing the Poli- District however, time, di- the band At the same year. cy beginning at the 1997 school he did not believe rector testified that independent The District hired an in- drug members had among band Choices, firm, drug New to administer preceding during years three creased tests, analysis of the arrange for chemical Policy. also adoption of the He testified report test samples, and to results years twenty-three as the band that in his participating in All administration. in- director, ever member had been volleyball, activities of the fall there jured to alcohol or use and due football, golf, cheerleading, and the incident in which a band had never been an pre-partic- were to submit to perform able to due member had not been testing. The District also tested ipation view, band use. In his to alcohol junior high participating in the fall and treated the were well-behaved members football, volleyball, activities respect. The band di- other students with total, approxi- cheerleading. 181 out of mirrored Dr. Fa- testimony was rector’s mately school students tested member, that, bec, a testified Board who junior high students and 90 out of 338 school generally, comparison body to the student Thus, approximately one in were tested. band members and others every high school students was tested three activities had better disci- every junior high one in four school and records, and pline problematic,” were “less tested. students was body in aca- of the student were leaders Director the The New Choices described performance. demic samples in band members’ urine collection of called following manner. Students were the explained findings, the the court level taken to grade class and out selecting in- reasons for Board’s gymnasium. Each student the tar- in extracurricular activities the volved by the New to a table staffed proceeded testing group. The trial court stated: get Director, presented the consent Choices testing for groups selected These were form, paper work to the completed related they are role models for other because testing, container in which the and received a students, particularly younger and for stu- provide sample. a A urine student was in extracurricular ac- Participants dents. the monitor then escorted stu- New Choices high profile a tivities have schools nearby inside the to a rest room. Once dent They rep- community. and within room, a bathroom rest the student entered resentatives or ambassadors the school while the New Choices monitor stood stall marching purposes, district. For these uri- stall.9 After the student outside container, members are same the monitor escorted nated athletes, They repre- and cheerleaders. Di- the New Choices the student back to events, fairs, athletic and and sent the school at where the student sealed rector’s table competitions. Band members wear The New Choices state returned the container. temperature of the with the checked the in the school colors Director then uniforms container. sample applied a label name. school’s concerning students in study Choices could observe male portion monitor 8. The of the Institute’s population supports assertion. was on the student The record use based the stall. explained part opinion, general. IV of this As coach testified conclu- school’s football study quantify level of did not sively have it stalls did not doors. among participants in the various extracurricu- appears Choices monitor that the New lar activities. to male student room could listen a men’s rest watching urinating prevented was not from was the stu- Apparently, intent to monitor from behind. the student However, an- dents' urination sound. his brief, Lopez points New out swer ac- sample tamper- positive persons No other had prevent possibility results. To rest room was cut-off ing, the water to the cess to results. dye placed in the toilet bowls. and blue was Lopez, brought the time he addition, empty seventeen-year-old action a senior was pockets prior proceeding to the rest their School, in two High Trinidad was enrolled room. he cred- band classes for which received both the trial court found no student While participated in Trini- grades it and complained procedure, about the one student marching As the High dad band.11 School sample. produce unable to a The band found, Lopez member trial court had been a five, director testified that the student “tried a band since 1993 and was school,” six, times,” “every night seven after gifted played musician who the baritone into be- but could urinate container trombone, Lopez piano, guitar. “he was to do so.” cause embarrassed planned pur- testified at the trial he After New collected Choices students’ major college sue and wanted music samples, agency urine forwarded them composer enter into or education. laboratory laboratory testing. samples drugs, including Lopez

tested illicit After received the form consent cocaine, barbiturates, marijuana, opiates, am- year, the 1997 he beginning phencyclidine.10 phetamines, and The labo- parents his and decided not to consulted with ratory samples did not for alcohol. test sign by not the form. testified that form, signing he he recognized Upon receiving the results the labo- losing scholarship money, expe- “could be ratory, New Choices delivered re- sealed rience he [he] need[ed].”12 port office. District’s administrative willing that he was to take that risk indicated superintendent The District’s then transmit- country “because it’s what this was founded report respective prin- ted the the school’s to on, view, rights” drug our and that in his the kept cipal, it in a secure location. testing “constitutionally program was principal subsequently informed the coach activity sponsor any wrong.” about form, noted, testing again.” the As court 10. The consent which refer- the trial ences, restraining provides originally temporary a will entered order that students be tested for requiring Lopez illegal by District to to the any the reinstate substance considered or controlled marching tempo- band classes and band. The Drug the Food and Administration. order, rary restraining Septem- which dated 6, 1996, prevented ber also the District from order, In its court does 11. the trial not mention suspending Lopez refusing from band for to con- or discuss other music classes were offered 1996, 13, testing. September sent to On High students. evi- to Trinidad School extending entered an trial court order other at dence in record about music classes temporary restraining order further order until director, came from the band school day The two trial occurred on court. general response question a who testified in to 1, On October November taught his other about duties that he classes 19, 1996, the trial court entered its December marching addition band classes: concert fact, law, findings ment, judg- conclusions of band, bands, ensembles, band, jazz solo honor Lopez’s complaint. Be- which dismissed and modern There is no evidence in ensembles. marching by cause band had the time concluded Lopez to the record reflect whether was interest- occurred, appears Lopez the trial it was able taking ed in other courses in lieu of the two these marching having complete to to without enrolled, he there band courses in which nor is clear, however, drug testing. submit It is any which evidence in the record allows for a drug testing moot whether the issue became comparison of these the content of courses. trial, marching Lopez At after band ended. Lopez planned tiy that he out for testified points answer/reply 12. The District out in its year. dates baseball later that school Given the Lopez completed order, brief filed with this court that record trial and the trial court's participation his Lopez subsequently does whether not indicate trial, according to any time of the which the District tried out for baseball or other extracurricu- "barring pursue meant that some unforeseen circum- lar or whether he decided not to activities graduation, prevent his Mr. activities because decision not stance would these of his drug testing. certainly exposed almost would not be to consent to

HOI III. II. constitutionality discussing Before Preliminarily, address two threshold we necessary to clear about Policy, it is First, suspicionless District’s issues. Although Lopez case is not about. what this with- drug testing must constitute “search” vague on challenges the as whole meaning of the Fourth Amendment in argument which we address grounds, ness an protections trigger of that order below, challenge part he does not Second, Lopez is because amendment. to adminis Policy that allows school officials School, High longer a at Trinidad on reason ter a test to a student based or not we should de- must consider whether suspicion that the student is under able case it moot. cline review this because Rather, drugs.13 he chal influence illicit testing un lenges suspicionless allowed Policy. Consequently, it is unneces der the A. People sary to revisit decision T.L.O., Supreme Court ex (Colo.1988), P.E.A., 754 P.2d 382

Interest of beyond dispute plained that it is now Fourth Amendment where we considered the Amendment, applied the states Fourth based on school offi limitations searches Amendment, by virtue of the Fourteenth suspicions that a student cials’ reasonable P.E.A., offi prohibits unreasonable searches state the law or school rule. See violated T.L.O., Jersey v. cers. See U.S. (applying New 754 P.2d at 386-90 T.L.O., proposition well is the Equally 83 733. settled (1985), protects holding that the Fourteenth Amendment L.Ed.2d 720 against rights car encroachment school officials’ search of defendant’s constitutional). officials, including ease was boards of the Fourth education. See id. require case does not a reexami This also prohibition against unreason Amendment’s opinion University prior nation of our ' applies seizures able searches (Colo. Derdeyn, Colorado 863 P.2d by public offi searches undertaken 1993). Derdeyn, chal we considered 336-37,105 cials. See id. S.Ct. 733. lenge University ran Colorado’s dom, urinalysis drug-testing of suspicionless State-compelled collection and intercollegiate attending athletes subject to of urine a “search” constitutes university. analyzing whether the univer Amendment. demands of Fourth See sity’s drug testing policy violated Fourth Acton, Sch. Dist. 515 U.S. 4-7J Amendment to the United States Constitu 646, 652, 2386, 132 L.Ed.2d 115 S.Ct. 564 II, 7, tion section of the Colorado and article (1995) Fourth (explaining that Amend Constitution, college distinguished stu we drug-test to a district’s applies ment high from students. See Der dents involving ing program urine collection and deyn, We case 863 P.2d at 938-39. found the Treasury analysis). See also National Em to school student athletes of law related Raab, 656, 489 ployees Union v. Von U.S. “only marginal instead fol relevance” and (1989) 665, 109 103 L.Ed.2d 685 S.Ct. involving of adults lowed case law searches (explaining that “urine tests are searches Thus, given place. Id. the work at 939. it follows that the Custom Service’s Derdeyn [and] analysis in centered around students, drug-testing program meet the reason must not it testing college of we do find requirement of Derdeyn the Fourth Amend necessary holding ableness revisit our ment”); Railway university’s testing Skinner v. Labor Execu policy was that the 602, 617, tives’Ass’n, 109 unconstitutional. Schools, perintendent Principal, Policy allowing suspi- School 13. The section of the agree testing provides: have Athletic Director reasonable cion-based suspicion to believe that a student athlete [or any Testing. any [or student athlete Random — participating in an extracurricular student an extracurricular ac- drugs activity] under the of illicit drug-testing is influence tivity] subject to random throughout year, provided alcohol. the Su- the school and/or 1102 Wade, 113, 125, (1989) (explaining that Roe v. “[b]e-

103 L.Ed.2d (1973). Second, may we and test- L.Ed.2d 147 clear that the collection cause it is involving great upon expectations of a moot case issues ing urine intrudes decide society long recognized recurring importance or constitutional has reasonable, Appeals Chiropractic the .Federal Courts See Board violations. agree, unanimously, Exam’rs, and we have concluded 935 P.2d at 971. deemed must be these intrusions view, apply in exceptions In our both Amendment”). searches under Fourth First, reject argu- the District’s case. case, mandatory Policy requires In this “capable repetition yet evad- ment urine. The of students’ collection exception apply ing not because review” does by pub- implemented enacted younger students in the District would have urinal- Consequently, the lic school officials. fully time to the constitu- litigate sufficient ysis drug testing pursuant undertaken tionality graduating prior of the Policy is a search for Fourth Amendment accept the District. we to from Were purposes. argument, ap- preclude we would proaching the end their education B. Policy. challenging District from Conse- quently, would be forced to those students argues opening in its The District rely hope younger student and on the that a is moot. brief that the case now before us parents or her initiate a District, his would case Lopez re According to the because require school, against the District. will not We cently graduated he is be situated) (and similarly Lopez yond Policy. of the no other the reach Since depend other challenging the students to assert viola- is before this court constitutionality Policy, simply because it the District- tion Constitution litigate longer possible Lopez there is contro asserts that no live case Additionally, appellate gradu- versy through process prior in this case. the District “capable argues apply ating that we should not from the District. exception but repetition evading review” Second, potential we consider the invasion younger doctrine stu the mootness because rights of students’ constitutional to be mat- fully litigate have sufficient time to dents will great public fact importance. ter of Policy. challenge to the a constitutional longer purview no falls within Ordinarily, judicial pow a court invokes does diminish this conclusion. controversy an exists er when actual Although Lopez longer has submit to parties. adverse In re Tomlin between urinalysis, the mandated all other students (Colo.1993). son, P.2d An issue currently wishing participate extracur- granted moot when the relief becomes activities in do ricular the District must so. upon practical not have a effect court would appropriate it is for us to review Lo- existing controversy. v. an See Brown Colo challenges pez’s Policy, constitutional Corrections, Dep’t P.2d

rado 915 of notwithstanding longer the that he is no fact (Colo.1996). moot, a an When issue in a student the District. normally addressing it. court refrains from id. IV. however, doctrine, The mootness does judicial argues always close the review. first the trial court not door exceptions finding in that the have stated there are two abused its discretion Dis- We “serious, growing, Chi trict had a and to the mootness doctrine. See Board immediate of Stjernholm, drug problem.” Lopez specifically 935 P.2d chal- ropractic Exam’rs (Colo.1997). First, may lenges report resolve the and the trial Institute’s report the on it is an otherwise moot case when court’s reliance when made what repeti finding regarding drug capable involved is one that is of its the District’s issue id.; yet evading problem. see also tion review. See findings analysis. on our findings ous and both bear the trial court’s

We review First, court the trial found: concerning drug the level of abuse clearly a standard. under erroneous drug District approximately The level of use is provides Colorado Rule of Civil Procedure body generally among same part: in relevant ex- participants in athletics other particular. tracurricular activities upon with- In all tried the facts actions (at high participation level of activities advisory jury, an jury or with out popula- of least one-third the total school specially and shall find the facts court tion) drug high logical- of use level its of separately state conclusions law ly support such conclusion. Findings not of fact shall be thereon.... clearly unless erroneous.... finding set aside and is has basis the record This nothing speculation. portion than more States, Ornelas v. United C.R.C.P. concerning report drug use the Institute’s 690, 699, 116 drug in the District was based on overall use (1996), simi- Supreme L.Ed.2d 911 Court by particular drug not quantify and did use larly explained that while determinations of groupings, drug among as those such suspicion probable cause un- reasonable partici- those athletics axtá/or be der the Fourth Amendment should re- activities. pating other extracurricular appeal, reviewing on de novo court viewed Additionally, presented an- while the District findings of fact for should review historical testimony teachers and coaches ecdotal from Thus, the trial error. while we review clear concerning drug use in impressions their constitutionality court’s conclusions about the District, did have the trial court novo, including analysis de evidence, other than before it testimonial concerning Policy, the reasonableness testimony school football findings regarding trial we review the court’s coach, com- which allowed the court to trial drug district under the level abuse per- pare groups across extracurricular clearly standard. erroneous abusing drugs generally or cent of students here, we Applying that standard do using particular percent of students agree Lopez that the trial court with types accept drugs.14 we do not finding that the District had a seri erred drug findings level trial court’s drug agree with the trial problem. ous We generally use in the District was same report provided court the Institute’s the level of use across extracurricular use in the District. credible evidence study focused a discrete activities. Without Accordingly, we do not find that the trial entire student particular on a subset report court’s reliance the Institute’s be body, no conclusion can drawn about clearly erroneous. drug use in that subset. rate rate of lower, may higher, or the same the rate Having concluded that trial body for the student as whole. findings concerning the District’s court’s fact, Second, findings in'its problem general clearly were not drug use following: court stated the erroneous, review of the record indicates junior high spe school and two All students that the trial court’s order contains attend clearly errone- school are findings cific of fact that were general speculate popu- it be the as [the] record that there same 14. A review of the indicates following added); (3) questions junior high re- (emphasis four lation” among sponses inquiring abuse stu- about principal an- that he "couldn't testified participating extracur- dents in athletics and/or percentage question the of swer” the whether compared general to activities as the ricular drugs general population using in the students (1) high population: the football coach pro- the as students in the athletic was same "[fjootball, percentage, I that far testified (4) gram; and the Board President testified that probably say close to the same as the would analysis" when asked to she "can’t make that (2) body;” that the band director testified student among compare student athletes or members, "did that he as for participating in extracurricular activi- students my disposal that indi- have clear-cut facts general population. to students in the ties me," any usage, that he "would cates but V. connection physical education classes. dress, classes, un- the students with these Policy is Lopez argues the un that dress, shower in communal facilities on constitutionally vague.15 The essence his daily a basis. vagueness Policy argument is that the refers only concerning evidence in the record caption in to “extra curricular” high in school came physical education Policy, Policy while the remainder of Lopez physical education teacher and from only refers to athletes and cheerleaders.16 physical education teacher tes himself. Policy deficient He is also asserts high in the school are tified that students drugs because it does not address which year physical required to take one rather, detect, designed to leaves test is but school and are not education while up that decision District's business explained Lopez that required shower. manager representative. and a New Choices physical enrolled school students requires give “laws process Due that required are not to undress com education person ordinary intelligence a reasonable they are not pletely and prohibited, opportunity to know what is so students, junior high for As shower. Village may accordingly.” act he stated, junior high principal “[S]ome stu Flipside, v. Estates Es- Hoffman Hoffman and some stu dents have take showers 489, tates, Inc., 498, 1186, problem that so have have a with we dents (1982) (quoting Grayned 71 L.Ed.2d 362 v. Sometimes, meet with a counselor. we them 108-09, City Rockford, 408 arrangements them to make come (1972)). L.Ed.2d 222 or later after the kids until earlier to dress view, vague term “extracurricular” is not they showering are comfortable with and it clear that students added.) Thus, (Emphasis on them.” based extracurricular activities are included within record, conclude a review of we Moreover, Policy. the consent form type of findings trial court’s on the undress which which students took home and was showering in the ing and that occurs District Policy explicitly states referenced clearly during physical education are errone participating in extracurricular ac- students 52; reject ous and we them. See C.R.C.P. tivities must submit to and that County

Arapahoe Equalization Po Bd. the substances tested are those considered (Colo.1997) doll, (“Ordinarily, 935 P.2d by illegal Drug or controlled the Food findings court’s will defer the district we actually drugs screened Administration. clearly of fact unless erroneous by the parameters the test fell within indicat- record.”). supported Policy. Accordingly, ed we do not Thus, opinion, purposes this agree was uncon- drug problem shows serious evidence stitutionally vague. general body. other than information about the football anecdotal VI. team, is no information about there relevant among drug usage participate A. Also, activities. there is argu- expectations directly addressing Lopez’s of diminished Before no evidence body Policy gives an privacy among large ments that the rise to uncon- the student search, analyze we participation physical stitutional first actual based education scope Policy. High Trinidad School classes. Apparent- supra Whether or not the is unconstitutional- curricular activities. note 6. 15. separate ly vague inquiry ly, Policy heading our discus- amended while the part opinion curricular,” VI of where consider sion include "extra the text of Policy's scope, actual which reached unchanged. the text of Poli- remained regular in the District's curriculum. enrolled athletes, cy only which defi- refers nition includes cheerleaders. meeting, July ex- At its Board Policy panded the all students in extra- to include

H05 classes, Policy, who are enrolled brass/per- a Under the students two offers elective band provide urine sam- regular Both of in a class must class and woodwinds class. cussion more accu- ple drug testing. and are With this are for-credit classes for these classes mind, enrolling understanding Policy in in graded. A either or of the student rate partici- is to' the can both of these classes whether or not now consider marching scrutiny. and a student’s pate in the withstand constitutional per- grade depends part in on the student’s marching Conversely, in formance the band. B. band, marching participate the order Vemonia, Supreme Court estab In the of the a student must enroll one both analyzing con the framework for the lished words, two for- band classes.17 In other public drug stitutionality of a school district’s part regular credit classes are testing program similar to the one we consid offerings are inextrica- curriculum of course 654-64, er 515 U.S. at here. See bly activity linked “extracurricular” drug testing program 115 The at S.Ct. 2386. viewed,

marching Properly there are band. urinaly in Vemonia authorized random issue First, aspects to connection. two participated drug testing sis students class, for to take a for-credit which the order programs in that school district’s athletics perma- will credit and a receive both (the policy).18 See id. 115 partici- grade, nent letter the student must S.Ct. 2886. pate marching band. record re- considering constitutionality of the enrolling consequence flects that the policy, Supreme first failing to in the march- Vernonia Court re participate class and problem abuse in the ing will receive a viewed severe: Second, among the student ath failing grade. participate in order to Vernonia schools and 648-50, 115 band, marching See id. at S.Ct. 2386. The the student must also letes. only Supreme explained a cur- that “[n]ot the for-credit class. while Court take among that it were athletes included users sory reading of the indicates but, found, District only partici- who are as the Court athletes reaches those students activities, Id. voluntary culture.” pating in extracurricular leaders 115 Vernonia School scope of is not so limited. the real states, activity. ipate Although High "Trinidad 17. The trial court order scant, two elective band post-Vemonia School offers students law commenta case credit, brass/percussion and a for class classes filled the law about Vemonia have tors’ views may enroll in class. A student woodwinds Rosenberg, Compare Irene Merker Pub reviews. marching enrolled band class unless the in both of the band classes.” Acton, Drug Testing:. Impact lic School While (1996) (criticizing Am.Crim. L.Rev. 349 Vemonia classes, the record reflects that enrolled in both minimizing plaintiff’s interests and deem for class take both classes. not all band plaintiff's parents’ ing as nonexis interests marching Specifically, band director testified impact arguing for considerations tent students who take the that brass/percussion there are some autonomy, bodily integrity, sense of on students' but the woodwinds class fairness, governmental and the limits of sense Nevertheless, any student and vice-versa. class Buffaloe, Note, power), "Special Jennifer Y. brass/percussion class enrolled in the and/or Exception An Needs" and Fourth Amendment: participate the extra- class must woodwinds Rule, 32 Poised to Swallow the Warrant Preference activity band. Conse- curricular quently, (crit (1997) Harv. C.R.-C.L.L.Rev. 551-556 only is enrolled in whether the student balancing inadequately icizing for Vemonia’s test classes does not one or both of the for-credit rights guaranteed by protecting the Fourth analysis. affect Athletes, Amendment), Drug Testing —Student Vemonia, that since 18. Our research indicates (1995) opin (criticizing 109 Harv. L.Rev. approximately opinions have cited the case. govern for a lack of doctrinal coherence and ion opinions, one case considered Of those Howard, Jr., responsibility), with Roscoe C. ment system’s constitutionality sus- of a Right 47J v. Acton: The Vernonia School District testing program. picionless drug Todd v. Athletes, Drug Testing Response Student (7th Schools, County 133 F.3d 984-87 Rush (1997) (arguing Pol’y J.L. & Pub. Verno Kan. denied, Cir.1998), reh'g en 139 F.3d 571 banc proper result under the Fourth nia reached (7th Cir.1998), upheld an the Seventh Circuit Amendment). random, suspicionless Indiana school district’s seeking partic- drug testing policy 1106 Dist., 503, Indep. Community 393 Sch. particularly- were

District’s administrators (1969)) 506, 733, 731 sports-related of 89 21 L.Ed.2d the risk S.Ct. concerned about (omission Vernonia), injuries drug use. See id. The the Fourth Amend- due to Su- preme rights noted the trial court’s find- also ment are different schools Court 656, ings segment of the student large id. at 115 that from elsewhere. See S.Ct. athletics, outset, body, Supreme those involved in particularly At 2386. Court rebellion, power of which coincided emphasized was in a state that State’s over with staffs observations of the school tutelary is custodial and children glamorization use. See id. and Noting that are nature. See id. students routinely physical required to have examina- Next, Supreme Court reviewed the vaccinations, tions and the Court next ex- purpose scope policy. Vernonia and plained that within school envi- students 650-51, 115 S.Ct. The ex- See id. at 2886. privacy expectation ronment a lesser have pressed purposes of the Vernonia School population generally. than members adopting policy the Vernonia Board 656-67, at The See id. 115 S.Ct. 2386. Court prevent using drugs, student athletes specifically then turned student ath- protect safety, health and their expectations, privacy explaining letes’ provide drug programs. users assistance expectation athletes have an even lesser policy, wishing Under the Vernonia First, privacy for two reasons. Court play beginning tested at the sports were highlighted privacy “[ljegitimate expec- addition, sport. for their ten season regard are tations even less with percent athletes of the student were random- 657, athletes.” at 115 S.Ct. 2386. Id. On ly weekly testing. selected for “[sjchool point, this the Court observed concluding test After sports for the bashful” as “re- ing in Vernonia fell within at issue its quire practice ‘suiting up’ before each “special jurisprud needs” Fourth Amendment event, changing showering after- ence,19 Supreme applied Court a three Second, explained wards.” Id. the Court 653-64, 115 at factor test. See id. S.Ct. 2386. “[b]y team,’ choosing ‘go out for the First, the Court considered “the nature of they voluntarily subject themselves to a de- privacy upon which interest the search regulation gree higher than im- even 654, 115 at here at intrudes.” Id. issue S.Ct. posed generally.” Id. Accord- Second, 2386. the Court looked at “the char ingly, voluntarily participate “students complained acter that is intrusion of.” expect in school athletics have reason to in- Third, Id. at 115 S.Ct. 2386. the Court upon rights privileges, trusions normal immediacy nature and assessed “the including privacy.” Id. here, governmental concern at issue and the efficacy meeting discussing expecta of the means it.” Id. at the students’ privacy, 2386. We tions of 115 S.Ct. discuss below each the trial court case they apply these factors as in this case. concluded that the interests at stake for students affected were the Privacy 1. Nature of the Interest same those in Vernonia. The trial court explained: that, explained Court assuredly while “children do their not ‘shed School District exercises substantial authority ... rights constitutional at the over student conduct further- schoolhouse gate,’” 655-56, recognized 515 U.S. 115 ance of its custodial and tute- (quoting lary S.Ct. Tinker v. role. 2386 Des Moines in the school Conduct environ- Framers."); applied balancing Supreme “special Court has of interests for that of the See, analysis prior e.g., Wisconsin, 868, 873-74, needs” T.L.O., in several cases. 483 U.S. Griffin (Black (1987) S.Ct. 733 (explaining L.Ed.2d 709 J., mun, concurring) ("Only exceptional in those analysis special the Fourth cases); Skinner, Amendment needs needs, special beyond circumstances in which 619-20, 489 U.S. at enforcement, the normal need for law make the Raab, 665-66, (same); Von 489 U.S. at probable-cause requirement warrant and im (same). S.Ct. 1384 practicable, is a court entitled substitute undergo type All of communal highly regulated. students are not same ment is Supreme subject comprehensive showering that undressing to a Code Con- in Vernonia. Additionally, Some stu- governing duct their behavior. Court described subject arrange junior high special are also more dent athletes school makes members. stringent regulations as team com ments for those students who are not expecta- All have a reduced students also showering physical after education fortable privacy, just not personal tion of classes. in participate All students “com- athletes. Second, testing program the Trinidad required physical in munal undress” voluntarily choosing not limited students education classes. activity. athletic As dis participate an record, analyzing

After and the cussed, take a for-credit instru students who however, abundantly it clear that becomes by the mental music class offered will school concerning points the latter two student ath view, subjected drug-testing. emphasized Supreme Court letes which the of voluntariness to which the Verno type in Vernonia do not apply members nia Court referred does not apply to stu agree not marching band. therefore do We dents who want to enroll in a for-credit class with the trial court that this case indistin part that is of the school’s curriculum. guishable from terms of the Policy. privacy acknowledge failed to interests affected trial court these that Vernonia dic concluding distinctions First, hardly argue that one can upholding Policy. recog tates While we bashful.” Ver “not marching band is system nize that school students nonia, Al 115 S.Ct. 2886. 515 U.S. expectations privacy have lesser than uniforms, though they members wear general population, view the adults we undergo type public undressing do not qualitatively and the absence of voluntariness required of and communal showers type undressing this case as different that athletes.20 While the trial court stated significant. undress,” undergo “communal all students (ex (Ginsburg, J., concurring) 115 S.Ct. 2386 qualitatively different the record indicates plaining Supreme that the reserves the Court type undressing communal un question whether a school district could on dressing Supreme Court described testing impose mandatory all on students and Vernonia. previously explained, As Lo noting constantly “[t]he Court observes high taking pez school students testified drug-testing policy that the District’s required are to un School physical education voluntarily par Lopez applies only to students who completely. and the dress athletics”); see also ticipate in interseholastie physical education teacher both testified that LaFave, do Search and Seizure Wayne physical R. students enrolled education ed.1996) (3d 10.11(b), Additionally, (explaining § not have at 821 shower. that the Vernonia Court only required “deemed'important” to take one school students legitimate expec athletes’ lower year physical education class the student physical privacy education tations of and the voluntariness of testified that he took in high participation). school. all athletic We thus conclude for three semesters higher tested here had the District are not students every physical privacy expectations than the students in enroll education And, enroll, Vemonia.21 year. do do those who that members of tations of than students in Vernonia The band director testified marching Policy required “are instructed to wear either solely based on the fact that the uni- shorts or cut-offs and T-shirt so the band receiving credit be tested. academic simply slip quickly form and off can explained, As we have the students affected here easily.” The band director also testified that type subject to also were not of communal together band members do shower undressing explained the Vemonia Court performance. after a case, which we occurred in distinction important. highly view relevant emphasize

21. We that we do not hold that the higher expec students affected had drugs. Although we have presence of the Intrusion 2. Character difficulty understanding equation court, similar to the Vernonia The trial every day of the rest here urinalysis mandated test opinion, likened the room, analysis set we will assume every day ing use of the rest in this case to the dictates that we treat forth Vemonia room. The trial court stated: negligible.22 intrusion here as Moreover, taking during the the conditions sample indistinguishable of the urine ordinary the school rest from the use of 3. Concern and Governmental that, concludes

rooms. Court Efficacy of Means Vernonia, al personal privacy the interest order, explained the trial court urine legedly gathering affected in in com- nature of school district’s interest “negligble.” samples from students is bating drug problem in the District. The (Citation omitted.) explained: court question the trial court’s conclusion We beyond argument It is that the School ordinary rest use of the school’s maintaining a safe District’s interest drug' indistinguishable from the rooms was environment, activi- free of criminal Ordinarily, place here. a that took ty, from the protecting and in its students has some choice about when to use student dangers illegal drug use is substantial urinate. The fact the rest room and when to extremely significant, compelling. even that one student was not able to urinate after clearly a The evidence demonstrates that attempts because he was too embar- several drug-use problem serious exists Ordinarily, point. a rassed underscores this Schools, that it has resulted in a Trinidad monitor, not have an official a student does major disciplinary increase in dramatic person purpose prevent sole is to a whose methods, ordinary problems, and that such altering urine student from the student’s education, drug have been ineffectual. (and as- listening perhaps watching sample, behind) urinating. student Ordi- (Citation omitted.) narily, a does not have to urinate into student agree that the nature of the Board’s We present his or her urine a container important— concern District’s “is representative sample to a school district for Vernonia, perhaps compelling.” indeed 515 assessment, temperature labeling, prepa- 2386. Our main dis analysis. Ordinarily, ration for a student agreement analysis, it, with the trial court’s body requires simply urinates because-the however, emphasis not in its on the lies insists that the not because school district drug problem, provide sample in District’s but how the trial student a urine on demand efficacy district to search it for court treated the of the Board’s cho- order for the school Vernonia, drugs. policy the Court also discussed the in While contained privacy requirement, trusion of students’ as it related to similar the Vernonia Court did not required information that the test disclosed and con consider the disclosure to alter its con significant. was not regarding cluded that this intrusion clusion the invasion of the 658-60, 659-60, S.Ct. 2386. interests. See id. at 115 S.Ct. 2386. The explained The Court that the test looked for Court stated: drugs, drugs for which the test screened practice While the of District seems to have drugs, only a limited were standard and that been to have school official take medication personnel class of school received the test re information from student at the time of the 658, 115 S.Ct. 2386. These sults. See id. at test, in, practice is not set forth or re- considerations are identical in this case under [Wjhen quired by, choose, Policy.... respondents Policy and we therefore arrive at the same effect, challenge [Vernonia conclusion. face, policy] on its we will not assume the worst. We also note under (citation omitted). Id. at prescription must disclose medicines stu here, challenge makes a taking Because similar the District tests the stu dent is before we do medication not consider dis- dent. If the student decides not to disclose such closure, despite the fact that such disclosure and the test reveals information mandated prescription drugs, "raises some cause for concern.” Id. at use of the student is sanc positive just illicit S.Ct. 2386. tioned as if he or she tested for years preced- ing the three addressing problem. band members sen means ing described this case. The band director trial court stated: qual- band members as “better problem The decision to address school,” ity meaning “well-be- kids forth drug testing procedure set haved,” fellow and that treated their Plain- 5541.1 was also reasonable. noted, respect. students with As a school tiff issue with the Board’s selection takes supported in extracurricular activities board member who participants explained that drug testing similarly because the evidence does band members and groups that students these establish in extracurricular ac- than greater discipline per- had a incidence of tivities had better records and body as a whole. The rele- academically than formed better did students argument slight. view, vance of this is general in In our sim- population. ply being by partic- a model role virtue disagree court’s We with conclusion. ipation activity in insuf- an extracurricular is considering efficacy a support ficient conclusion Policy, give proper court failed to the trial drug testing program school’s mandated 1) weight important to three facts: that the Miller, See Chandler v. reasonable. Policy swept its reach students who within 1295, 1304, 117 S.Ct. 137 L.Ed.2d 513 for-credit, were in instrumental mu enrolled (1997) (“Indeed, good if a a need of ‘set marching participated sic classes and genre example’ were sufficient overwhelm band, 2) included student objection, a Fourth Amendment then the groups that were not demonstrated to have explain why care this Court took to drug problem in the Dis contributed Skinner, Raab, needs in Von and Vernonia 3) trict,. that there was demonstrated many ‘special’ ranked as wasted words physical risk harm of immediate to members unnecessary, entirely perhaps even mislead- marching band. elaborations.”). ing, policy, in- Unlike participating large all in all number students cluded extra- who activities, as in this ease raises an additional con- curricular well students who tested inquiry. There want to enroll in a for-credit class. is cern the reasonableness We under suggest acknowledge participate no evidence in the record that students strictly marching like ath- activities that are in- band members are “school letes, dependent physical risk of of a school’s offered curriculum where the immediate (unlike band) drug marching do so a techni- harm to the user or those whom with high.” cally reality playing sport particularly he is his volunteer basis. many pursue post- students who wish Indeed, training profes- secondary dur- educational the band director testified that and/or gar- ing twenty-three years requiring experience his as the band di- sional vocations rector, only by drug-related participating never a in extracurricular there had been nered injury engage in such to a activities is that must marching quintessen- Nor activities. himself is the band. is there evidence to Additionally, suggest drug problem existing example. tial a involvement offerings a “largely the ‘role school’s extracurricular vital District was fueled mod- adjunct experience. fell to the educational el’ effect” of the students who within the Schs., County Policy’s Id. Todd Rush 139 F.3d purview.23 Cir.1998) (7th J., dissenting contrary, marching (Ripple, 2386. To the 571-73 (“Exclusion rehearing) prob- he never from denial of director stated that had had interfering marching high from all extracurricular lem use with school student great deprives that performances activities student of band members’ and there had high among deal what the modern American been no use march- increase suggesting that there were who testified that he believed 23. The evidence encouraged played promoting athletes who others a role in some covered students part opinion. drugs. See IV of this drugs came school's football coach “serious, drug prob- growing, and immediate to offer in terms of academic and school has study subjected two-year lem.” A revealed that “infor- Being personal development.”). Drug programs,” mational Abuse Resis- part parcel to that type of search as (DARE), Program tance give pause Education experience should us before we effectively health class lectures “were accept the notion that abuse wholesale survey addressing problem.” A revealed population requires general grade all eleventh that 63% of testing. such grades through of all students in six 44% drug, an illicit twelve had used cocaine VII. average among use was twice the national analysis of all of these fac Based on our seniors, “frequent drug and that use”1 tors, is not rea we conclude that among eighth grade students other exceeded under the sonable and thus cannot stand schools 400%. First, na United Constitution. States suspi- response, adopted the Board ture of the invaded was dif interest (Policy) drug-testing policy including cionless ferent from that of the student athletes de students in the the Vernonia Court. The absence scribed (Band). The Board reasoned that it could voluntariness and this case of both true impose Policy upon members of the type undressing that oc of communal Band, voluntary activity par- a that included the student athletes Verno among curred for-credit, ticipation in elective music two Second, nia is significant. the District while only open to Band classes members. Howev- problem, established that it has a abuse er, taking the Board reasoned without into problem the means chosen to deal with that significance account the constitutional Policy’s scope were too broad. The actual majority places upon the award of academic vastly beyond policy upheld extended impact upon credit and its a student’s reason- Vernonia. Policy swept within its reach expectation privacy. able participating in an Because, view, my the school Board activity play who were demonstrated government’s acted “in furtherance of the drugs in promoting role and for whom there responsibilities, system, under a physical injury. was no demonstrated risk of guardian and tutor of children entrusted effectively also included students to its care” and “the is search one that enrolled a for-credit class offered undertake,” guardian might reasonable and tutor accepting District. Even the trial court’s Acton, v. nonia Sch. Dist. reasoning that the invasion of the students’ 47J Ver 646, 665, 132 L.Ed.2d privacy negligible, U.S. interests was we find 564(1995), respectfully I dissent. these other distinctions between this case and Vemonia to be dispositive. Accordingly, I, too, identify am at a loss to the role having together considered the three factors plays in our academic credit Fourth Amend Court, by the announced we hold jurisprudence. my reading ment on Based is unconstitutional. We join holding I cannot therefore reverse the trial court’s order and recognizes expectations enhanced remand the case to the trial court for further based on the award of academic credit alone. proceedings opinion. consistent with this especially I find this true because the elective participation academic credit is awarded for SCOTT, J., dissents, VOLLACK, J., C. voluntary activity in a and similar academic joins in the dissent. instruction is for those who do not available participate in band. KOURLIS, J., participate. does not The Fourth Amendment the United dissenting: Justice SCOTT protects right of “[t]he States Constitution people persons, in their The Trinidad School District No. Board to be secure (Board) houses, papers against confronted with a and effects unreason- Education year. Frequent drug use was defined as use of six or more times in the last

UU ” cannot reversed unless findings Const. court’s able searches and seizures.... erroneous,” maj. my regard, op. Con “clearly In like the Colorado amend IV. people shall be se “The provides: view, is testimony stitution the record sufficient effects, houses persons, cure their findings. The ma- court’s support Colo. unreasonable searches-” through the and testimo- jority combs record 2, § I find voluntariness art. 7. While Const. witnesses, portions extracting ny of selected here, agree I do not with the important to be testimony support its own conclusions to draw majority’s reading that finds license majority, appellate sitting an fact. upon based privacy interests distinctions court, grant appropriate deference fails activity question part whether the credibility and inferences determinations or not ac academic curriculum —whether findings. reach its by the trial court to drawn required opposed to a tivity is an elective as clearly findings the trial court’s are Unless course. not, erroneous, they precedent are case, then, I in this upon Based the record findings should that a trial court’s dictates adopted hold that would appeal. Arapahoe not be disturbed District consistent Trinidad School Podoll, Equalization Bd. County I am not and federal constitutions. our state (Colo.1997) (“Ordinarily, we will P.2d constitutionally significant persuaded findings of fact to the district court’s defer voluntary partic- distinction exists between clearly erroneous and unless activity ipation is not but in an record.”); maj. op. supported see also mu- attending an for-credit includes elective omitted). (citation at 1104 in an “absence of sic class so as to result voluntariness,” maj. I op. at 1107. Nor do participate in For choose to students who type “qualitatively different believe that the Band, offers two elective combined with the undress” [communal] taught by credit which are music classes for constitutionally regulations Band rules and director, Duane Zanotelli. Zanotel- the band id., way least in a that “significant,” or at six music classes. Students li teaches contrary to dictates a result Vemonia. in at least of two required to enroll one record, Moreover, I upon my reading of the of the Band and classes to become members rejecting factual can find basis in the Band participate students who disagree findings the trial court and with may in either the two classes. enroll findings majority’s of its own substitution Thus, every Band is also a member of the Instead, I trial court. would for those of the one of six music classes at least credibility to the trial leave determinations I taught by Zanotelli. While do not read Therefore, majority, upon judge. unlike the otherwise, opinion the rec- majority to state finding support in the record for trial not wish that students who do ord indicates legal reasoning findings, I court’s believe can take one or participate in the Band to on review to those facts must be limited by taught music classes more of four other judge. the trial considered Zanotelli. ruling of

Accordingly, I would affirm the up- County Las Animas District Court were avail- Although music classes other validity. holding Policy’s him, Lopez registered for the able to Carlos pre- to classes and refused to consent I. drug testing required by the participation A. Policy, Policy. Consistent with the Board’s Lopez suspended from high majority’s recitation of the stan- While However, Lopez pre- is, no time correct, Band.2 at was that of review is that dard aspects significance to the curricular attach some does not reflect whether 2. The record raise, Band, Lopez and I do not does not drop of the the two classes would have been address, pre- appropriate loss consequence think it refusal to consent as a his refusal to submit drug testing. academic credits due his it is clear participation drug testing participate I in the Band. in order to classes were other for-credit music that four agree majority court's the trial majority with the Lopez. While the seems available to court, however, find- enrolling any of the other The trial made no such vented from ing. taught by Zanotelli music classes that were graduation facilitate his and that would majority’s assessment of the differ- complete his school and legitimate privacy expectations ences training.

music similarly of athletes and members is grounded, part, on factual infer- least found that at the time the The trial court ences not the trial court and not drawn adopted, the Trinidad schools majority compelled the record. The “serious, growing, were confronted with a mandatory states that students enrolled drug problem.” and immediate Based physical required to education classes are not finding, appli- the trial court ruled that together, findings the trial court’s shower so Lopez, cation of the Board’s maj. clearly issue are erroneous. on this voluntarily registered for the Band for-cred- may op. at 1104. communal showers While it elective for-credit classes and the other formally required, supports not be the record classes, not constitute an unrea- music would that, finding practical the trial court’s sonable search. matter, in physical education classes together daily undress and shower “on found, The trial court based on testi Moreover, sup- basis.” the record does not Zanotelli, mony of the football coach and majority’s port assumption that students the level of use was about the same involved in extracurricular athletics are re- members, athletes, among partici Band quired finishing to shower after them activi- pants other extracurricular activities as in any ties more than band members are re- body Lopez present the student as a whole. quired to do so. suggesting ed no evidence among Band members differed from the rest B. body. light findings of the student majority great attempt takes care to survey indicating use was holding today to limit its “to the pervasive among students and the anecdotal Nonetheless, Maj. op. band.” witnesses, accounts of the school district’s majority upon dependent upon relies facts contrary and in the absence of evidence of respect the reach of the entire kind, the trial court was entitled to draw engaged athletes and students extracurric- entirely reasonable inference that band ular activities. approximately likely members are to use example, majority’s “hold[ing], For if the drugs as other students. See Associates of under the facts of this ease” is that “the Properties, San Lazaro v. San Lazaro Park policy respect is unconstitutional with to the 111, (Colo.1993); People 864 P.2d 115 band,” why then it is unclear 1294, of M.S.H., Interest 656 P.2d 1297 par- reach as to “[a]ll (Colo.1983); Hart, Dominion Ins. Co. Ltd. v. 178 ticipating in high the fall school activities of (1972). 451, 454, 1138, Colo. 498 P.2d 1140 football, volleyball, golf, cheerleading,” [and] Likewise, findings the trial court’s on the approximate- or the fact a total of “181 out of drug testing sup- of the intrusiveness were ly 500 school students were tested and ported by permissible inferences from the junior high 90 out of 333 school students record, majority by drawing and the errs tested,” 1099, maj. op. at is material. A Specifically, the ma- own set inferences. is, lower number —that 73—or the number jority testimony (or recites the band director’s to per- than involved Band less fifteen cent) the effect that one student was unable to germane to far seems be more produce sample a urine because “he majority’s analysis. was The fact that “one in Maj. every op. embarrassed to do so.” at 1100. three school students” and “one injunction protected Lopez altogether "scholarship from conse- classes or lost music quences failure of his tested. money” "experience.” Maj. op. at 1100. majority’s finding support record does not that taking precluded was therefore

1113 Policy in drug-testing this ing whether junior high students was every four Amendment, we tested,” 1099, the Fourth maj. case violates op. at is irrelevant. inquiry, “context-specific ex must conduct majority’s understanding that I share the closely competing private and amining deter- of the trial court’s factual our review parties.” by the public interests advanced determining whether minations limited Miller, 305, 311, 117 v. 520 U.S. Chandler maj. clearly findings See are erroneous. (1997). 1295, 137L.Ed.2d 513 S.Ct. Podoll, 1104; at 18. at 935 P.2d op. see also however, record, my reading of the Acton, Based on v. In Vernonia School District 47J majority give sufficient deference fails to 646, 115 2386, 132 L.Ed.2d 564 515 U.S. S.Ct. findings fact under this to the trial court’s Supreme (1995), the States Court United by facts found standard review. inquiry in the context conducted such an subtly court used alter the the trial drug testing, upholding ran public school admittedly legal close legal outcome urinalysis requirement par dom case. questions ticipating extracurricular athletics. adopted in drug testing program re

II. 649-51, drug use. Id. at sponse to increased 115 2386. S.Ct. Amendment to the United Fourth guarantees right States Constitution a three-part used The Court Vernonia conduct from unreasonable searches be free drug testing analysis to whether determine government. Univ. Colo. v. See ed permissible without indi in a (Colo.1993). I Derdeyn, 863 P.2d (1) priva legitimate suspicion: vidualized majority’s conclusion that the agree (2) involved; cy expectations of the students samples of urine collection and testing; the extent of the need for detecting illegal drugs is a purpose of (3) extent of the intrusion on the nature and meaning of the Fourth search within the light privacy interests the students’ 1101; maj. op. Skinner Amendment. testing procedures involved. See id. Ass’n, Railway Labor Executives 489 U.S. v. 654-63, 115 S.Ct. 602, 617, 1402, 103 L.Ed.2d 639 an apply task is the standards Our (1989); Williams, v. People Colo. drug testing nounced (1976). 257-59, Accord 557 P.2d 405-07 adopted by Trinidad District policy School drug testing policy must ingly, any school Lopez as applied R-l and a member Amendment, pass muster under the Fourth Marching Band. In High Trinidad School not “shed their constitu because students do so, doing compare the I believe we must gate.” rights ... tional at the schoolhouse court, sup findings of the unless Indep. Comm. Tinker v. Des Moines Sch. record, ported evidence before Dist., 503, 506, majority court. The also notes the Vernonia (1969). policy must be L.Ed.2d 731 also Derdeyn, University Colorado privacy guarantees with the consistent (Colo.1993), in which struck P.2d 929 II, § 7 constitution. See Art. of state program random for down a of P.2d Derdeyn, 863 at 946. athletes, law, college good remains and However, rights of stu- the constitutional inquiry into the constitu facts illuminate the public schools must be balanced in the dents challenged here. tionality program unique of the education- against the demands T.L.O., Jersey v. environment. See New al III. 733, 83 L.Ed.2d 105 S.Ct. (1985) despite (upholding search absence A. cause). public probable Searches of may not be “state-operated schools schools, solely intend- While like other searches not totalitarianism,” Tinker, 393 U.S. of purposes, are enclaves law enforcement ed serve expectation priva- of at necessarily under unreasonable is cy enjoyed by students these schools of despite the absence Fourth Amendment general Therefore, unquestionably lower than in deeid- suspicion. individualized population public sys- significant outside the education The most element this case is Indeed, public [pjolicy ... tem. schools are enti- was undertaken expected government’s responsi- tled —and even exercise a de- furtherance of the —to gree bilities, supervision public system, of and control over their under a school constitutionally guardian students that unac- tutor would of children entrusted to [Wjhen ceptable government if exerted over adults outside the its care.... acts T.L.O., 339-40, guardian at ques- schools. See U.S. and tutor the relevant S.Ct. 733. These limitations on the constitu- tion is whether the search is one that a rights public guardian might tional of school students are un- reasonable and tutor permitted public because a school must have dertake. power impose swift and informal disci- Vernonia, 665, 115 at pline consistent custodial duties and with its Applying principles, these I conclude that carry out its educational mission. See id. degree privacy enjoyed by members of Vemonia, the student athletes covered marching public high band at a school is drug testing program the random significantly enjoyed by lower than that enjoy expectation found to an even lower Moreover, general public. expectation privacy than other students. This diminish- privacy for is lower Band members than for expectation privacy ed was due to several voluntarily other students who choose not to (1)

factors: in athletics participate. (2) heavily regulated; are often communal majority eligibility par- notes that undress in locker is a rooms more-or-less ticipate in the Band is conditioned on enroll- participation inherent feature credit, ment two band classes offered for (3) athletics; the use of illicit making the curricular and extracurricular where, drugs injuries increases the risk of components “inextricably the Band physical performance required. is The same Maj. op. linked.” at 1105. (1) This fact does apply equal factors force here: not, however, marching transform the marching subject members of the band are voluntary mandatory activity from a (2) into regulations; to Band rules and purposes privacy interests stake undress, engage members in communal al- participate. for students who In- (3) choose limited; beit playing performing deed, majority authority cites for the engaged formations while in band proposition privacy interests competitions gives injuries rise to the risk of activity stake in an elective turn on whether physical performance required. where partic- or not academic credit is offered Supreme finding Court’s ipation. expectation athletes have lower entirely, fact, pri High was not based or even Trinidad School offers sever- marily, unique on factors to athletics. For al for-credit music classes. the two example, par only the Vernonia Court noted that partic- elective classes available to those ticipation sports voluntary, ipating Band were not the elective so expose students were not music classes offered the school. There- possibility fore, student, drug testing. including themselves to the Lopez, could de- importantly, though, Most was the relation cide not to be tested and still receive for- ship schools to their taught students. The credit elective music classes Zano- stand, time, parentis” schools if not “in importantly loco with telli. At the same and students, respect here, signed to minor then at least in a up the students who for march- position significant degree responsibil of a ing they subject band knew that were ity view, therefore, drug testing. my for the welfare of the children entrusted Band participation voluntary.3 to their remained care: ensembles, band, majority jazz 3. The overlooks the fact that students solo and modem and hon- therefore, options department Any suggestion, Lopez’s have in the music curricular or band. collegiate jeopardy other than the Band. The band director testified career is in or that he is day, including that he teaches six music classes a unable to education continue his music at Trini-

1H5 degree maturity and emotional I no of intellectual privacy purposes, see reason For voluntary protections extracurricu- decisions without distinguish between make ac- activity powers appropriate an in the disciplinary lar elective eo-curricular situations, is participation tivity.4 parentis relationship In both found in quasi-in loco required i.e., optional, students are not secondary public schools. gradu-

play in the band in order presented in the evidence Vemo- Unlike play they are. ate more than nia, record in this case does not show team. If the Trinidad schools on the football students that athletes other gave to members of physical education credit in activities are or were the team, of privacy football the invasion drug-using in “ringleaders” clique of a resulting mandatory drug testing would public the admitted evi- schools. different, validity testing no and the be “serious, growing, and immediate dence of a applied not program as to athletes would drug problem,” was more than sufficient for any principled change. simply I cannot see court, Board, trial to mention the not drawing the line between co-curri- basis drug problem in the Trini- conclude that the entirely on hand and ex- cular activities one serious, quite dad schools both abso- activities on the other.5 tracurricular by comparison lute terms and to other fully reasoning Derdeyn is consis- country.6 schools around the analysis foregoing priva- tent with the cy students involved interests school B. Almost all col- extracurricular activities. explained Derdeyn, As we the interest students, lege unlike most school stu- by suspicionless drug testing need served not dents, such, college are adults. As “compelling” in the sense be which subject their to intrusions on are types is used of constitutional term other simply by of their as students. virtue status scrutiny addition, cases in under the order to survive Derdeyn, 863 P.2d at 938. See Derdeyn, or federal constitutions. See state post-secondary schools serve an almost ex- Instead, inqui- at 944. relevant clusively to custodi- P.2d opposed educational —as function, ry strength is served interests educate students al— commonly necessary compared types with “other presumed to are have reached they enjoy High contrary protection academic is the record and turns whether dad School activity findings credit is offered for which not consistent court's participation. a condition of The ma- fact. analysis jority authority and offers no cites contrary. here, support assumption of its purposes 4. activi- For our "extracurricular are activities for which no academic ties” school cheerleading granted, or drama credit is such as Vernonia, Supreme Court it "can 6.In stated activities," such performances. "Co-curricular hardly doubted” that the nature of a school Band, two for-credit classes which include regarding concern illicit use com board's participate, are which Band members pelling: place partly activities that take least Deterring drug hours, use our Nation’s schoolchil- graded, and are result outside enhancing important dren is at least as class. award one academic credit for each enforcement of the Nation’s laws efficient against drugs importation or deter- ... compulsory attendance statutes The first ring drug by engineers and trainmen.... 1850s, adopted states did not in the and some years physical, when 1900s, School are the time adopt early after laws until the well such psychological, drugs and addictive effects of adoption of the Fourth Amendment. "Maturing systems nervous are most severe. Note, Analysis Murphy, Constitutional Mark A critically impaired intoxicants are more Laws Compulsory School Attendance in the are; losses in than mature ones childhood Unlawfully They With Southeast: Do Interfere learning lifelong profound”; Education?, "children Georgia Public Alternatives to (1992). grow chemically dependent adults, quickly more than I do While State Univ. L.Rev. depress- recovery is and their record of question that schools Amendment, ingly poor." protected by see the Fourth are Tinker, (students (quot 515 U.S. at 115 2386 do S.Ct. at 89 S.Ct. 733 393 U.S. Bumpy Drug-Free ing Hawley, rights Road "shed their constitutional ... at not Schools, (1990)). Kappan gate”), 72 Phi Delta I do not think level schoolhouse than to purposes of law enforcement rather have been held suffi- interests that asserted justify intru- the educational “special similar meet the needs” of cient or insufficient Vernonia, the intrusion into The extent of sions.” Id. See environment. Wisconsin, un- 2386; the school children tested Griffin commensurate with Policy der 5541.1 seems 868, 873, 107 3164, L.Ed.2d 709 problem health associated gravity of the (1987). drug by minors which was illicit use and its way is carried out officials. facing Trinidad’s school nonpunitive or non-law en- rehabilitative observed, participants in As the trial court my purposes reinforce view that forcement testing were selected for privacy rights of the the intrusion into for other they were role models

because in rela- affected students is unreasonable students, They especially younger students. Policy. tion to the interests served public perfor- represented their school they competitions, and wore mances and 5541.1, the results Under uniforms with their school’s name at confidential, positive kept test be are to these events. Policy specifically provides that the re- trial, testimony presented at on the Based sults are not to be used for law enforcement the Board’s selec- the trial court found that punitive purposes or as the basis for mea- testing was reason- tion of these students Derdeyn, sures school administrators. light of their influence on other stu- able contrast, university administrators de- reasonably concluded that dents. The Board provide any meaningful clined to assurance positive example would set a drug kept be the results of tests would by showing all students that role models Derdeyn, confidential. See 863 P.2d drug-free. were addition, University of Colorado subject agree declined to that it would not C. monitoring athletes to visual while previously, As noted the nexus between engaged process providing urine group group thought tested and the to be samples. monitoring See id. at 939. Visual encouraging drugs tight the use of is not as incorporated was into an earlier version of in this case as where the record testing program, and the record included drug problem particu showed that the testimony from students who found as- larly among acute athletes and that athletes pect testing offensive. id. at 940 See against were at the center of a rebellion contrast, By n. 22. students tested anti-drug I school’s efforts. do not read this case were asked to enter a restroom and Vernonia, however, requiring evidence produce sample a urine while member group precisely tested is the same as testing company nearby staff stood but group use which is heaviest visually production did not observe the that the students tested are the leaders of a sample. anti-drug poli concerted effort undermine cies. In view of the evidence before the Board court that tended to establish Instead, recognizes Vernonia that when drug problem the existence of a serious drug problem confronted with serious system, light the Trinidad school and in may system, the school educational officials surrounding the circumstances the adminis steps take reasonable to detect and deter Policy, I tration of the would hold that the among the students entrusted to Policy at Board’s issue this case was rea problem their care. match between the Derdeyn, sonable under even subjected identified and though applied it was to all members of the perfect, need be because the Band, rather than to those students system equipped is not and should not sports. generally expected exacting to meet the standards Todd (7th Schs., applicable County conducted for v. Rush when search is F.3d 984 1H7 activities Cir.1998) engaged in “extracurricular drug of dents (upholding random tests activities).7 basis.” Id. ... on a ... volunteer today, By majority’s decision this court the IV. considered re- bars the Board’s studied and “serious, sponse growing, an admitted and Regardless of how a difficult case. This is emergency jeopardized that the immediate” dispute, our sensibilities are one this resolves graders safety most and almost eleventh subjected the between the Board’s tension attending half sixth of all and protect our children intention to view, my In through grade. twelfth that is recognition privacy oí interest students ' required by not a our constitution and result being from unreasonable have in free public policy response of the Board does searches, attending public even while school. expectations violate reasonable conflict, us, for each Resolution its privacy of the school children under care Nonetheless, I easy not an task. believe the tutelage. and majority opin privacy right announced yield “special needs” ion to the that must context,” “exist in the ac V. Supreme

knowledged States United Vernonia, 653, sum, program I would hold that the at U.S. Court. See drug testing suspicionless pre-participation must while we “consid S.Ct. 2386. voluntarily of students involved privacy the nature of (cid:127) (cid:127) (cid:127) interest ]er! does not band embodied 5541.1

upon at issue in which search here or federal constitutions. trudes,” I offend our state id. at believe (A) a school district is faced with evidence The Where that two other factors control: drug problem among its serious stu- protect “does not all Fourth Amendment dents, charged authority privacy, officials subjective expectations of but ” responsibility society over and the for the recognizes ‘legitimate,’ its schools those that safety of its students are entitled to conduct expectations privacy; and or as reasonable (B) “[cjentral such in the form of tests as ... searches present that case is (1) severity may light of the be reasonable. subjects of the the fact that (2) usage acknowledged illicit children, have been committed clearly scope limited intrusion temporary custody of the State as schoolmas activities, added). voluntary I do not see an unrea- (emphasis ter.” Id. invasion interests of sonable agrees “the majority nature While “responsibili- children under Board’s important— Board’s ... concern ‘is guardian and of children ties ... as tutor maj. op. perhaps, compelling,’” at indeed Therefore, I respect- to its entrusted care.” (quoting fully majority opinion from the dissent 2386), part ways. thereafter judgment. majority’s concern that reaches for-credit, those are enrolled instru “who YOLLACK, say I am authorized ment music and that “there was no classes” C.J., joins in this dissent. physical demonstrated risk of immediate view, harm,” maj. op. my should emergency

give way to the circumstances (1)

confronting the Board: the harm that all graders and 44% of stu

63% of eleventh daily engaging illicit

dents encounter (2) use; majority’s recogni own only those

tion reached stu may recognize balancing I these of interests circumstances Under not, Vemonia, therefore, validity drug testing program change. decide of a I would whether circumstances, may indefinitely. depends surrounding policy employed the current on the

Case Details

Case Name: Trinidad School District No. 1 v. Lopez Ex Rel. Lopez

Court Name: Supreme Court of Colorado

Date Published: Jun 29, 1998

Citation: 963 P.2d 1095

Docket Number: 97SC124

Court Abbreviation: Colo.