University of Colorado Ex Rel. University of Colorado v. Derdeyn

Boulder, COLORADO, OF UNIVERSITY Board,

Through The REGENTS OF COLORADO, a

the UNIVERSITY OF Albino,

body corporate; as Pres Judith Colorado, University of

ident of the Marolt,

Boulder; Ath William Director, Department of Intercol

letic Petitioners, Athletics,

legiate DERDEYN, individually and on

David similarly

behalf of all others

situated, Respondents.

No. 92SC86. Colorado,

Supreme Court

En Banc.

Nov.

Rehearing Denied Dec. P.C., Kelley, B.

Cooper Kelley, Thomas & Mann, Denver, Nagel, F. Robert R. John Law, University consents, Colorado of voluntary of School absence of CU’s ran- Boulder, Tharp, Beverly Fulton, dom, suspicionless A. Richard urinalysis-drug-testing Counsel, Denver, University of Office of for student athletes violates the Fourth petitioners. Amendment to the States United Constitu- II, tion and Article of Section the Colora- Union, American Liberties David H. Civil agree, do Constitution.2 We further see id. Denver, Miller, Norton Frickey & Associ- supports that the record the find- Golden, ates, Boulder, respon- Judd for ing of the trial court that failed to CU show dents. testing given that consents to such by CU’s are voluntary purposes athletes for the of Justice delivered Opinion LOHR of provisions. those same constitutional Ac- the Court. cordingly, we affirm judgment of the granted We in certiorari to deter order appeals. court of random, mine suspicionless whether urinal ysis-drug-testing of intercollegiate student Colorado, University athletes of began program a drug-testing CU (CU), Boulder violates the Fourth Amend intercollegiate fall 1984 for of its ment to the United States Constitution1 or athletes. CU has since pro- amended its II, Article of Section Consti Colorado gram ways, in various throughout Following tution. a bench trial conducted program participation existence was August in 1989 in which a class of mandatory in the if an sense that athlete current prospective and chal sign consenting did not a form to random lenged constitutionality drug- of CU’s pursuant urinalysis program, to the testing program, County the Boulder Dis prohibited student was participating from permanently enjoined trict Court CU from intercollegiate athletics CU.3 continuing program. its The court trial found that had voluntary not obtained drug-testing program originally CU’s re- consent from its athletes testing, quired for such proscribed a urine test for certain and it such testing declared drugs4 unconstitution at each intercollegiate athlete’s an- al under the federal both and state consti physical nual and also random Appeals tutions. The Colorado Court of Counseling urine tests thereafter. generally affirmed. Derdeyn following positive Uni mandated a first result. Colorado, (Colo. versity penalty P.2d 1031 The for a positive second included a App.1991). agree seven-day We with the court of suspension from appeals, 1034-35, athletics, see id. at intercollegiate penalty and for Strictly speaking, 1. the issue intercollegiate before us wheth- instances random University drug-testing pro- er the of Colorado’s necessity suspi- student athletes without the cion, gram the Fourth violates Amendment otherwise, reasonable or and in others for United States Constitution as made enforceable testing based on criteria that the trial court against through the states the Due Process incapable indicating drug found to use to Clause of the Fourteenth Amendment. v.Wolf degree. Colorado, 27-28, (1949). 93 L.Ed. 1782 descriptions, always In written CU itself has parties agreed University program characterized as "a Colorado, Boulder, institution, is a state and education, mandatory program drug testing, the actions of the individual defendants counseling/rehabilitation." and constitute state action for all relevant to this case. proscribed drugs specified by 4. as CU in its Recently, City County Denver v. entitled OF form “UNIVERSITY COLORA- Casados, (Colo.1993), rejected 862 P.2d we DO INTERCOLLEGIATE ATHLETICS DRUG challenge Fourth Amendment facial an Exec- (the Form) EDUCATIONPROGRAM" were Mayor City County utive Order of the cocaine, barbiturates, amphetamines, methaqua- establishing of Denver ry for mandato- ludes, codeine, opiates, morphine, (angel PCP city urinalysis-drug-testing blood- and em- dust) analogues, tetrahydrocannabinol ployees suspicion based on reasonable of alco- (THC marijuana). or impairment. hol or use here, contrast, provides at issue in some required successfully minimum one- lete was also to com- positive included a a third monitoring plete substance rehabilitation suspension. specific No abuse year partic- gram collec- a condition for further prescribed for the procedures were samples, ipation two athletics. The students of the urine tion pro- program provided also during phase of the first amended this testified that specimen the be during the “collection the will ob- gram they monitored were [sic], may and According to 1984 served the athlete be asked urination. act of protect integrity test6 in order the describing program, the all to disrobe to Form5 procedure.”8 Physician.” the Test to the “Team results results were sent Physician,” to athletes also were still sent the “Team intercollegiate The student following positive, re- the required give their consent to first first were to program amended leasing test results to stated: my Physician [CU]; Head Trainer at Team will inform the the Athletic [T]he guardian(s) spouse; Head legal or Athletic Trainer. Head Athlet- parent(s) or ic will the Athletic Di- head coach of Trainer advise the member; notify I am the rector. The Athletic will sport in which a team Director Drug Coaeh(es). [CU]; and the the athlete’s Head Addition- Athletic Director Wardenburg ally, required to Program at the the athlete will be ... Counseling telephone in a participate Center. conference call Student Health athlete, parent(s) the his/her between or general specific gave 1984 Form no or positive legal guardian(s) of the test re- confidentiality. assurances sults. thereafter,7 CU amended Sometime general gave specific still no or assur- penalty first program for the time. The confidentiality ances of of test results. positive changed include a first was to for program changed competitive “the CU’s second amended suspension for current season,” suspen- penalty posi- penalty positive for a second the for first from and the season,” competitive permanent sus- sion for “the current changed tive was include suspension period.” for “any activity sponsored “a twelve month pension from Depart- respects program the University Colorado Athletic In all other relevant the Following positive, ath- remained unaltered. ment.” a first the in the supra Some female trainer had be rest- note 4. 5. watching you, room in the actual stall watch- Testing independent, performed 6. ing you you while went the bathroom. laboratory. commercial athlete Another female student testified: into track and the You came office times, original program CU amended its three 7. post peo- and all the trainer would come in amendment became effective and third ples’ on the team. names were August testified An official from CU annually program in or- was reviewed it, while, we after a "the That is what called changes if in the der determine got flippant pee about it However, team”. You kind of exception be with the should made. embarrassing after while because it was so program, the record of the third amended when, jokes exactly, everybody it so made the amended and had to do we unclear on grams that, know, you took effect. it wouldn't about it so Then, you go into the bathroom bad. would during One male student athlete testified at that time with of the trainers because one phase training office room was in track so bottle, you cap hand a screw trainer would got you you of the trainers and went to one adjourn you and the trainer would bottle you gave cup a coke the bathroom and she physi- where trainer to a restroom cally would open you cup peed with door so you filling up observe bottle you your she watch and then take urine could your urine. you sample pour it in bottle and your up she num- screw the bottle writes actually I mean that the trainer would away. it and then takes ber whatever on it or urinate, you you weren’t allowed watch back, your talking about frontal ex- turn posure full body. your testified: A female student athlete program, CU’s third amended which be- from the athlete and sample check[] August color, came effective contained appropriate temperature, specific First, alcohol, changes. numerous added gravity and other properties to determine drugs,” “perfor- “over-the-counter that no substitution tampering or has oc- mance-enhancing such as ana- substances Fifth, curred.” were drugs bolic to the list steroids” give their releasing consent to test re- Second, could students be tested. sults to the term “athlete” was defined to include [CU]; the Head Athletic my Trainer recognized “all in- participants parent(s) legal guardian(s), if I am tercollegiate sports, including but not limit- age 21; under head coach cheerleaders, athletes, ed stu- to student any intercollegiate sport in which I am a managers.” dent and trainers student member; team the Athletic Director of Third, “rapid eye random examination my (if [CU]; supervisor applicable) work (REE)” was random testing substituted for Drug Counseling Program and the at the urinalysis, urinalysis performed and was Wardenburg Student Center. Health “finding suspi- after a of reasonable Finally, although gave general CU still no drugs,” cion that an athlete has used and assurances of confidentiality, specify did physical at the annual examina- athlete’s program its third amended that commu- perform tion. to on adequately Failure an between an physicians nications athlete and REE “prima was considered reason- facie Wardenburg Student Health Center suspicion drug [except able use would be confidential. In October regard steroids],” to and the was student intercollegiate student athletes CU filed required provide specimen to a urine action suit9 in County class Boulder Dis- per- if the student not did challenging trict Court the constitutionality addition, adequately form on the REE. In drug-testing program of the as it then ex- if a “physical student exhibited or behav- seeking declaratory isted injunc- and drug ioral in- indicating characteristics use tive relief.10 Named as defendants were tardiness, cluding, but not limited to: ab- CU, regents CU, board of the Judith senteeism, habits, poor heath emotion- [sic] president CU, Albino as and William al swings, unexplained performance director, department Marolt athletic as changes, aggressive- and/or excessive intercollegiate ness,” athletics. When subse- this was also considered reasonable use, quently amended suspicion drug program, its an issue and the was student to which Fourth, program, arose as version of to take a urine test. if any, challenged could be at trial. samples urine were to be “within collected facilities,” Department argued the the case Athletic that was moot because it provide athletes were “directed to a urine “would futile to discuss the merits be of a specimen private drug-testing policy University in a area” the enclosed has no However, while a monitor The of reinstating.” remained outside. intention order, sample monitor then would receive “the the trial minute court found that CU by stipulation January drug object 9. A program, class was certified on Colorado’s education to program being The class consists the as an of: unconstitutional con- participation; lastly, dition of those present prospective undergraduate Those spective undergraduate student athletes who subject student athletes who are or will to waivers, agreements will execute consents or University intercollegiate the of Colorado ath- University participate in the of Colorado’s department's drug program letic education as drug program, object education but who University a condition of in the being program the as con- unconstitutional program of Colorado athletic participation. dition of present undergradu- limited Those follows: ate athletes student who have never tested plaintiffs’ allegations Based com- positive subject discipline or been or plaint, existing program then was the first result; positive sanction as result of a program, test according which amended students who, present and those student al- directly during observed act of were urina- waivers, having though penalty executed positive consents tion and for a first included agreements participate University competitive suspension for the current season. Similarly, REE, it found defendants have “refused to that and the other “[l]ike policy not agree suspicion that will return reasonable criteria set [other] [as initially challenged in this class incapable indicating which forth are CU] fact, defendants have indicated action. drug degree” (emphasis origi- use to under there circumstances are nal). trial The court also found that while policy.” return to that they would University labels the as a “[t]herefore, court ... trial concluded “Drug Program”, Education lit- there is drug-testing policy legality prior of [CU’s] ongoing tle education.... There is no moot,” “pre- it had and it noted that component program. educational viously plaintiffs amend ruled clearly major Testing is its focus. concerning complaint allegations to add filed trial policy.” plaintiffs Finally, new their court found that there complaint on amended March University is no evidence that the insti- signed day the trial court same response tuted its complaint, In their minute order. amended problem among actual abuse plaintiffs sought from CU’s ran- relief athletes. There is no evidence present, drug-testing programs, past, dom any person injured ever been has Accordingly, issue in the and future. any way drugs by because the use of of ensuing constitutionality the of trial was practicing a student athlete while or every drug-testing pro- version of CU’s playing sport. a gram. explained govern- court that trial the Following a bench trial conducted in Au- by interests asserted CU in favor of mental 1989, gust of the trial court entered its “compliance were with NCAA fact, law, findings of conclusions of written tests, a for the concern students’ trial judgment. and order and court safety, promote health a need and to “[o]btaining found that a monitored urine competition.” Although fair the trial court sample priva- is of a substantial invasion agreed goals the these by It the that embodied cy.” found that valid, interests were commendable function, sense, in as REE does not trial ruled that under court Skinner suspicion” drug use. Be- “reasonable of Association, predict Railway Labor Executives’ ability to cause of its disastrous 1402, 602, 489 109 L.Ed.2d drug use, U.S. S.Ct. 103 it functions more as avenue (1989),11 Treasury 639 Em- inject arbitrary judgments into an oth- National Raab, 656, 489 ployees v. Von erwise random selection of students for Union 1384, (1989),12 testing. L.Ed.2d S.Ct. Skinner, regulated Supreme ipat[ed] industry perva- United in an that is 11. In States Court safety, goal dependent, upheld suspicionless urinalysis-drug- sively ensure in blood- and part, testing employees on health and of substantial fitness of railroad involved certain 627, 609, 634, employees.” S.Ct. at types covered Id. at of accidents. at train Id. Noting regulations ques- 1408, also that the testing 1418. at 1422. Such was mandated S.Ct. require samples be tion that regulations [urine] "do not promulgated the Federal Rail- under observation of authority furnished monitor,” the direct road Administration under the 626, 1418, 1970, at Court id. at Safety Stat. Federal Railroad Act of suspicionless were searches 431(a). Skinner, concluded 489 U.S. at § U.S.C. Amendment be- reasonable under the Fourth 109 S.Ct. at 1407. The Court found that the compelling interests "the Government’s cause testing government’s suspicionless interest concerns,” employees’] privacy outweigh[ed the safety-sensitive employees engaged "railroad tasks,” S.Ct. 1422. id. at at "compel- id. S.Ct. was at 1419, 1422, ling,” id. at 109 S.Ct. at Raab, Supreme employees "subject the United States because tests dis- In Von urinalysis-drug-test- suspicionless charge fraught injury upheld risks of duties with such Court employees momentary lapse Service of atten- United States Customs to others that even promotion positions consequences,” seeking or can disastrous id. at transfer tion hand, directly they would involved the other be 1419. On illegal drugs, re- be employees would that such had diminish- interdiction quired Court found carry purposes to handle classified expectations firearms or ed for the truly they is Id. "partic- that sensitive. Amendment because information the Fourth sufficiently compelling were not failure consent results in a of the denial governmental outweigh an in- benefit.” governmental interests to privacy expecta- on the trusion reasonable bases, On these trial court declared “clearly signifi- tions that students uncon- Therefore, cant.” the trial conclud- court It permanently stitutional. enjoined CU ed, urinalysis-drug-testing CU’s random “requiring any from urine samples from suspicion athletes without individualized vi- purposes student athletes for the guarantee olates the Fourth testing, Amendment’s whether those tests occur persons against shall be unrea- random or as a secure basis result of the ‘reason- stated,” suspicion’ per- able criteria it searches sonable and seizures conducted enjoined manently “requiring CU from stu- government. The trial court also held dent Eye Rapid intrusion, slight, can however “[n]o procedure.” addition, Exam trial deemed ‘reasonable’ for suspicion” court held “reasonable Amendment Fourth where the intrusion appropriate not the standard to warrant not will and cannot reveal the information urinalysis-drug-testing by CU, of athletes therefore, sought,” “rapid eye and that impermissible that such ab- is an exam unconstitutional intrusion under probable 'sent cause under either the ‘reasonableness’ standard of Fourth II, Fourth Amendment or Article Section Similarly, Amendment.” because found of the Colorado Constitution. that the other suspicion reasonable criteria Appeals The Colorado Court of generally upon by incapable relied CU were of indi- affirmed. Derdeyn, P.2d cating drug use any degree, the trial appeals explained The court of did that CU held that court “failure ‘unreason- makes appeal the trial findings court’s relat able’ the Fourth [under Amendment] REE, ing only relating those to [e.g., urinalysis] pursuant search conducted urinalysis. Id. at 1033. It part held in II those criteria.” opinion of that testing pro its CU’s urine fact signed that CU’s athletes forms gram was unconstitutional under the consenting drug testing to random did not II, Fourth Amendment and under Article Rather, the alter trial court’s conclusion. 7, Constitution, Section of the Colorado id. trial court the found that failed to 1035, at and it affirmed the trial court’s given by demonstrate that the consents the permanent injunction prohibiting CU from were voluntary, athletes held and also that testing pursuant original athletes to its “no consent can be where voluntary program any or of its programs, amended 677-79, 1387, 109 S.Ct. at The Court 1396-97. 109 S.Ct. at 1396-97. The Court government’s found interest in the sus- suspicionless concluded that the were searches picionless testing employees of such was "com- under the reasonable Fourth be- Amendment 672, 674, 677, 1394, pelling,” id. at S.Ct. at compelling cause the "Government’s in interests light extraordinary of the safe- "[i]n promotion preventing drug posi- of users to ty security national and that would at- hazards they might endanger integrity tions where of promotion drug positions tend of users citizenry our borders or the Nation's life of the require carrying that of firearms or the outweigh privacy interests of those who seek substances," 674, of 1395, interdiction controlled id. at 679, promotion positions,” to these id. handling truly S.Ct. at or the of sensi- 1398, although S.Ct. at the Court remanded tive, information, classified id. at 109 S.Ct. further factual determinations on the issue hand, at 1396. On the other the Court found employees likely gain access employees expecta- such had diminished information,” "truly sensitive id. at for the of the tions Fourth S.Ct. at private Amendment because most citi- ”[u]nlike government employees general, or zens ployees em- drug reasonably reasons, 13. For involved in interdiction different trial somewhat expect inquiry should effective their into fitness court held that CU’s and also random urine probity,” and id. at testing, testing REE as well as its on urine based employees the same is true who are "[m]uch suspicion” generated by test- "reasonable REE firearms," carry id., required to or who are criteria, II, ing stated or other violated Article already subject background investigations be- 7, of the Colorado Section Constitution. secrets, government of their

cause access to id. addition, although ap hold that court of We absence of id. In random, voluntary consents, suspi- CU’s the trial find peals disturb court’s did not urinalysis-drug-testing cionless of student suspicion” “reasonable stated athletes the Fourth violates Amendment to ineffective, the trial wholly or criteria were the United States Constitution Article mandatory urinalysis ruling that court’s II, Section of the Colorado Constitution. criteria is unconstitution upon based such part further See IIA.15 We hold that infra al, opinion of its part it IV held the record court’s supports finding the trial reasonable, objective, suspi individualized that CU failed to show its athletes drug cion could some circum use voluntarily pro consent to its drug-testing mandatory testing stances warrant gram. part IIB. Finally, be infra Ac intercollegiate athletes CU. Id.14 granted cause we certiorari on the issue of appeals cordingly, the court reversed whether, in drug-test the context of CU’s only court as it order of the trial insofar ing program, suspicionless drug-testing is premised prohibited testing prob on all reasonable, constitutionally and not on at 1035-36. able cause. Id. suspicion issue whether reasonable petition We granted CU’s for writ predicate mandatory ever a sufficient following issues: certiorari on CU, urinalysis-drug-testing of athletes drug- University’s of the the context parties because the briefed the suspicionless drug testing program, issue, express former but not the latter we constitutionally reasonable? opinion no issue under on the latter either the federal or the state constitution. give Can valid consent University’s drug-testing program II partic- if is a condition their consent ipation at the athletics Amendment to Fourth the Unit University? protects ed States Constitution individuals perfectly premise urinaly- It able cause is not clear whether the court of as a holding sis-drug-testing by appeals part only CU. IV based balance, Amendment, light especially in On Fourth whether it based authority II, appeals part the court of cited on the Fourth Amendment Article Sec IV, plausible reading we think the more is that tion of the Colorado Constitution. On the appeals reach the hand, the court of whether, did not issue of appeals one court of two cites Constitution, prob- Colorado under the holding, support specifically, cases in of this premise urinaly- able cause as a 1988) P.E.A., (Colo. (search re P.2d 382 of a 754 sis-drug-testing by CU. public high student's car not uncon school T.L.O., stitutional), 325, Jersey and New v. 469 U.S. argument, requested that 15. At oral CU we re- 733, (1985) (search L.Ed.2d 720 105 S.Ct. 83 program the at view that was in effect the time public high purse aof school student’s did not permanent injunc- that the trial court issued its violate Fourth Amendment standard of reason tion, except ignore we should the REE that Furthermore, ableness). P.E.A. cites or never words, component program. In other of that the Colorado it relies refers to Constitution: requested that we limit our review to T.L.O., very heavily on states that "[t]he program, the third absent the REE amended is whether focal issue in this case P.E.A.'s fourth component. to do so for rea- We decline two rights were violated amendment when school ” First, integral compo- sons. REE was an questioned and him.... officials searched program, nent of the and so it is third amended P.E.A., P.2d at 386. Thus it seems that the 754 what, impossible precise exactly, about to be holding part appeals not base its court of did program compo- that be without the REE would IV on the Colorado Constitution. found, CU, Second, the trial court nent. effect, hand, part opinion, II On other of its right any has to return to reserved a acknowledges appeals "in some that court drug-testing procedures that it used in its II, instances, 7,] reason, may protect Section programs. [Article trial earlier For that against that the federal constitution programs preced- invasions all of CU’s court reviewed broad, Derdeyn, prohibit.” similarly 832 would not P.2d at 1035. review is ed absent, trial. Our Furthermore, course, appeals any the court of holds because of the REE. consideration words, part testing program opinion that CU’s urine in this ran- II In other we review dom, suspicionless urinalysis-drug-testing by unconstitutional under tion, Colorado Constitu- testing expect might appeals court has been con- of student athletes as that one opinion pursuant drug-testing pro- part of CU’s IV of its the issue of ducted reach in whether, Constitution, grams prob- trial. Colorado the date of under the 936 by

from unreasonable searches conducted mental interests to determine whether Raab, government, 489 U.S. at random, warrantless, Von suspicionless 1390, 665, gov 109 even when the S.Ct. urinalysis-drug-testing is unrea- ernment acts as the administrator of an sonable under the Fourth Amendment. athletic in a state school or uni Skinner, 619, 489 U.S. at 109 S.Ct. at versity. Tippe ex rel. Kross v. See Schaill (“What 1414 ‘depends is reasonable ... Corp., County canoe Sch. 864 F.2d 1309 all of the surrounding circumstances (7th Cir.1989); Brooks v. East Chambers search or seizure and the nature of the ” Dist., Indep. F.Supp. Sch. 759 Consol. “[t]hus, search or seizure itself.’ and (S.D.Tex.1989); T.L.O., Jersey New v. cf. permissibility particular practice of a ‘is 325, 333-37, 733, 738-40, 469 U.S. 105 S.Ct. judged balancing its intrusion on the (1985) (holding L.Ed.2d individual’s Fourth Amendment interests prohibits Fourth Amendment unreasonable against promotion legitimate govern- public searches and seizures conducted ”) mental (quoting interests.’ United States acting authorities). school officials as civil Hernandez, 531, Montoya de 473 U.S. Furthermore, 3304, 3308, 105 S.Ct. 87 L.Ed.2d 381 [bjecause it is clear the collection (1985), Prouse, and Delaware v. 440 U.S. upon of urine expec- intrudes 1391, 1396, 99 S.Ct. 59 L.Ed.2d society long tations of has (1979)); T.L.O., reasonable, recognized as ... these in- (“Although S.Ct. at 740 underlying must trusions be deemed searches under command Fourth Amendment is al- the Fourth Amendment. ways that searches and seizures be reason- Skinner, 489 U.S. at 109 S.Ct. at 1413 able, depends what is reasonable on the (footnote omitted). It follows that CU’s context within which a place. search takes urinalysis-drug-testing program must meet The determination of the standard of rea- requirement the reasonableness governing any specific sonableness class of Fourth Amendment. requires ‘balancing searches the need to usually supported A search must against search the invasion which the upon probable issued cause. Von warrant ”) (quoting search entails.’ Camara Mu- Raab, 489 U.S. at 1390. nicipal Francisco, Court San However, warrant, probable neither a nor 1727, 1735, 18 L.Ed.2d cause, nor measure of individualized (1967)); International Bhd. Elec. suspicion indispensable is an component of Workers, Local v. United States Nu- every Id.; reasonableness in circumstance. (NRC), clear Regulatory Comm’n Skinner, 489 U.S. at 109 S.Ct. at (9th Cir.1992); F.2d Dimeo v. Rather, 1413-14. (7th Cir.1991)(en Griffin, 943 F.2d where a Fourth Amendment intrusion banc); Employees National Fed’n Fed. needs, special governmental serves be- (D.C.Cir.1989). v. Cheney, 884 F.2d yond the normal need for law enforce- ment, necessary it is to balance the indi- sup- CU advances alternative theories to privacy expectations against vidual’s port drug-testing its claim that program its Government’s interests to determine is reasonable under the Fourth Amend- impractical require whether it is to First, argues drug-test- ment. CU that its warrant or some level of individualized ing program is reasonable under suspicion particular context. Fourth Amendment because of the student Raab, 665-66, at Von 109 S.Ct. at expectations privacy athletes’ diminished 1390-91. compelling governmental and the interests Second, by program. served CU ar-

It clear that drug-testing pro- is CU’s gues drug-testing program if even its gram designed ordinary is not to serve the constitutionally is not otherwise reason- needs law enforcement. We must there- able, fore balance individual student there is no violation be- athletes’ constitutional privacy expectations against govern- voluntarily cause its student athletes con- testing. argu- workplace address ties of the sent We these which to individual Raab, subjected drug testing, is in turn. Von ments U.S. at 109 S.Ct. whether the A individual “for whatever reason subject [is] examinations,” frequent Dimeo, medical argues drug-testing program that its CU consequences 943 F.2d at the Fourth is reasonable under Amendment refusing give sample, Schaill, a urine the student athletes’ because of diminished F.2d at 1319-20. asserts CU in its expectations privacy compelling and the magnitude brief of the intrusion of governmental interests served drug-testing program on its athletes is (1) gram. consider in We therefore turn variety Specifi- minimal for a of reasons. degree drug-testing pro- to which CU’s cally, (a) CU asserts that collection of the gram expecta- intrudes on the reasonable sample urine in a closed stall with aural (2) privacy tions of of student athletes and monitoring minimizes intrusion. CU governmental the magnitude of the inter- expecta- also asserts that student athletes’ program. ests then bal- served We regard tions of privacy urinalysis ance these factors order to determine (b) they are routinely diminished because rea- whether CU’s annual, give samples part urine gen- sonable under the Fourth Amendment. examinations; (c) eral medical because regulation submit to extensive of their on- behavior, including and off-campus mainte- random, nonvoluntary, suspi- Although nance of required per- levels of academic urinalysis-drug-testing gov- cionless formance, selection, monitoring course always intrudes on an ernment individual’s training rules, sessions, mandatory practice interests, privacy Fourth Amendment restrictions, study halls, diet attendance at magnitude vary intrusion can of that from curfews, prohibitions on alcohol Raab, context. context to See Von use; (d) they because must submit (“The U.S. at 109 S.Ct. at 1398 inter- urinalysis-drug-testing NCAA’s random ference with individual that results participating as a condition sample from the collection of a urine (e) the competition; NCAA because conse- subsequent analysis chemical could be sub- quences refusing provide a urine sam- circumstances.”). stantial some Some of severe; (f) ple positive are not and because factors that courts taken into results test are confidential and determining the magnitude account in used for the of criminal en- law particular place such include the intrusions forcement.16 sample and manner in which the urine collected, Skinner, 489 U.S. at 109 We each of these assertions in consider 1418-19; Schaill, matter, preliminary the order As a S.Ct. at F.2d at stated. however, First, participates things. “in an two whether the individual we note assertions, cites industry regulated pervasively support of these vari- safety, goal dependent, testimony contained in the ensure sub- ous exhibits and record, originally present- part, on the health fitness of all of were stantial Skinner, employees,” in full to trial court for its covered ed consider- ation, operational opportunity during reali- had an disagree analy- testing, with this asserts that student have a of urine but we CU also view, expectation privacy regard sis. In our once it has been determined diminished with give drug-testing program they that an individual’s consent program to the because program by voluntary signing is for the their consent to the consent not Amendment, govern- give program. notice the fact that the forms that them full of the Fourth however, found, has from the individual As the trial court such consents ment extracted consent Schaill, recognize voluntary. are not that the individual has a not We that in does demonstrate 1319-20, privacy regard expectation diminished F.2d at the court reasoned that contrary, program. voluntary, it shows that even such a consent is not the fact On if giving privacy signs signif- an individual’s a form intrudes on that a student consent subjective icantly interest. diminishes intrusiveness cannot, significance closing argument aegis, deprive to stress the under the same stu addition, for its case. of this evidence dents of their rights,” constitutional testimony the trial court heard from- sever- holding that a warrantless search of a stu athletes about al student dormitory goods dent’s room for stolen vio athlete, what it is like to a student lated the Fourth Amendment though even tested, like to be without about what it is purpose of the search was not to obtain suspicion, possible drug individualized for Miller, evidence); Collier v. criminal abuse, urinalysis-drug-test- in CU’s random 1357, 1359, 1367, F.Supp. 1367 n. 11 ing program. the basis of all the evi- On (S.D.Tex.1976) (holding unconstitutional a it, dence before the trial court found search, cause, probable random without “[o]btaining sample urine is a monitored University purse a Houston student’s privacy,” substantial invasion of and that bottles, beverages, weapons, alcoholic as random, suspicionless urinalysis-drug- university pavilion she entered a rock of athletes is “intrusion [that] concert, and explaining that defen “[t]he clearly significant.” argue dants do not in their brief that a different Fourth Amendment are unaware of case that standard We schools, magni apply should holds determination of nor would this drug-testing pro tude of the intrusion of a argument Court find such an meritori Lubbers, gram privacy on the Smyth ous.”); interests individuals F.Supp. is a factual issue for the trial court (W.D.Mich.1975) (holding that adult col appellate courts defer. must On lege students have the same interest hand, determination, other such a while not privacy of their rooms as adult has fact, pure question certainly one privacy home); Wayne of his R. La- dependent upon many that is facts that can Fave, Seizure, ¶110.11(a), Search and case, vary from case to and therefore a (2d 1987) (“Courts quite 161-62 ed. especially positioned trial court well properly rely upon declined loco magnitude of an assess intrusion of a parentis theory in assessing searches con drug-testing program on the reasonable id. Í110.- college ducted on campuses.”); privacy expectations of an individual. We 11(c), (“The reported cases deal respectful therefore owe attention to the upon college with searches and univer findings trial court’s and conclusions in this sity. campuses reflect the fact these case, findings and its and conclusions in no generally searches are of a different na way support drug- CU’s assertion that schools,” occurring ture than in high those testing program significantly not in does abundantly and “it is clear that there is no privacy trude on the interests of intercolle basis consistent with established Fourth giate athletes. upon uphold Amendment doctrine which to [college] upon these searches when made

Second, it cannot be said that uni showing probable less than a full students, versity simply they because are T.L.O., cause.”); students, 469 U.S. at university pro are entitled to less cf. (“In carrying 739-40 out searches persons tection than other under disciplinary pursuant and other functions Grigel, See Morale v. Fourth Amendment. (D.N.H.1976) policies, F.Supp. rep to such school officials act as cannot, State, merely resentatives (stating “college day that a in this of the as age, protect aegis surrogates parents, they under for the students cannot parentis in loco authority parents’ claim immunity from the from the stric laws, Amendment.”). rigors society’s just rules as it tures of the Fourth In- prove abiding by 17. The trial court did not elaborate these are the Universi- findings, except say: ty's against drug rule use. While the Universi- ty request does not information other than the private Elimination of is a matter and [urine] presence proscribed drugs from the subjected students to direct observation laboratory, very urine can reveal a whole host of embarrassed and and feel uncomfortable though personal other information such as use of their has been invaded. They they pills. are resentful that must be birth control deed, representative plain- expectations on the reasonable note we that trial, case, time of was a privacy in this at the of its student athletes minimal. tiff was Army veteran who had thirty-one-year-old Iran,18 Europe and and honorably (a)

served member of CU’s track and had been a who argues collection CU that of the urine cross-country and teams field sample in a stall with closed aural monitor- only find of mar- and 1988. We therefore ing agree minimizes intrusion. We by other holdings courts ginal relevance monitoring is less that aural intrusive than high student athletes have that school monitoring, already as we visual but expectation privacy under diminished noted, trial court found and that CU Amendment, Schaill, 864 F.2d at Fourth cf the other defendants have “quite implausi- (concluding that it is agree they that not return refused to will competing for positions that students ble policy initially which was chal- high-school] interscholastic athletic on [a lenged [i.e., policy in this class action strong expectations would have team according to which students visual- were tests”), urine and privacy respect with ly providing while a urine monitored persuaded analyze cases that we are that fact, sample]. In defendants have indi- rights Fourth of adults Amendment cated are under that there circumstances workplace are much more environment they policy. which return would to that T.L.O., such as instructive than cases P.E.A., review, In re it is On certiorari clear from CU’s (Colo.1988) (search public P.2d 382 that brief that desires we assume that CU car was not unconsti- high school student’s issue, only monitoring is at at the aural tutional), and Dist. Acton v. Vernonia Sch. time, challenge same does not the trial CU (rural m, (D.Or.1992) F.Supp. that, effect, might finding court’s high urinalysis- public random school’s monitoring system. return to a visual drug-testing of interscholastic athletes was addition, practice differences in be- unconstitutional), analyze the not monitoring might tween aural and visual high rights of Fourth Amendment school great.20 always be so students.19 (b) mind, things these we now With two expec- argues that student athletes’ arguments magni- consider CU’s regard urinalysis of its tations of tude of intrusion Actions”) 23(a) ("Class provides and I had to leave the door Burton’s office 18. C.R.C.P. may open gave sample. a urine of a class sue ... them more members “[o]ne exchange place: representative following then parties on behalf of all if took representative parties Q ... the claims ... of the was there outside the room? Who trainer,] typical Terry, of the claims ... of class.” A female I believe. [a you provid- you Q watched while were Were questioned court Acton whether 19. The itself in sample? the same if the it would have reached high result A No. large metropoli- question were a school in process you Q feel about the How did school, specifically and it tan id. at 1365 n. standing you outside were while someone it, distinguished case before on factual sample? providing the Derdeyn, grounds, such as 832 P.2d from a case A It me. bothered have, "college students who involved Why? Q age part, the most reached the of adult- embarrassing. for hood,” one should A it's No Because Acton, F.Supp. at 1363 n. 7. pee. private else It’s a have watch someone thing, people bath- be more shouldn’t example, testimony heard For the trial court came, thought thought, it when I I room. I perform one who failed to from female student was, know, you they minor made it seem so REE, adequately and who was then re- on a you going be like and it like it seemed sample quired provide a urine under you pee you put go it in to the doctor program. monitoring” She "aural testified they open thing the little door little pursuant to that it, way they it they you made know. take seem, that bad like it would be didn’t seem went to house and I the team went— meeting. until back have a bathroom in the behind Dave injured, lucky I have and so the they routinely give been because are diminished annual, general samples part urinaly- of an the trainers was for a urine as time saw examination, they reg- and because medical sis.” contact with ularly undergo physical close regard, it is true that the In this

trainers. (c) recog- Supreme has States Court United argues expec- that student athletes’ are less intrusive nized that urine tests regard urinalysis tations of with to in a “sample is ... collected when the environment, they submit to ex- by personnel unrelat- are diminished because medical employer, and is [employee’s] regulation of their on- and off-cam- ed to tensive procedures encoun- behavior, not unlike similar pus including thus maintenance of re- regular in the context of a tered often quired performance, levels of academic Skinner, 489 U.S. physical examination.” selection, monitoring training of course Similarly, 109 S.Ct. at 1418-19. rules, sessions, mandatory practice diet re- Appeals has the Seventh Circuit Court strictions, halls, study attendance at cur- required by if an individual stated fews, prohibitions and on alcohol and undergo medical exami- job frequent to his thereof, support use. In cites testimo- nations, perceive individual will then that ny and one from its athletic director stu- drug-testing pur- urinalysis for random dent athlete. Dimeo, poses being less intrusive. as CU’s athletic director testified in relevant case, however, In this F.2d at 682. part that the NCAA sets limits on financial testimony samples trial court heard awards, seasons, size, playing squad aid urinalysis-drug-testing random were for years eligibility; the NCAA collected a medical environment requires that CU maintain records of each pro- persons unrelated to the athletic performance; athlete’s academic addition, many people In have an gram.21 training “athletes that eat at tables are examination, physical and the fact annual football and men’s basketball and the other physical athletes an annual that CU’s have eat in the dorms or at their off- put not seem to them into Dimeo’s would residences”; campus that some coaches undergo “fre- category of those who must curfews; impose within their discretion Indeed, quent” medical examinations. required athletes are for testimony up from one show trial court heard stu- practice; athlete that “in that I have never been that athletes are “advised ... on dent See, treating e.g., supra When the were me it was note 20 and note trainers infra addition, getting explained more like I was medical treatment and male student as follows one were, they say, person- some of medical being required sort the difference between help me. In the in- nel who were there drug testing, sample vide a urine for one drug testing, it like stance of the they was more hand, undergoing medical treatment or ex- policeman, like an were a more enforce- amination, on the other: atmosphere type ment situation and the trainers, When I was treated the athletic changed friendly from to adversarial. course, they at times touched vari- various my body, necessary part ous that is same female student testified: [sic] 22. That required At no time was I to dis- treatment. filthy training restroom was in the treatment or to bear robe for this Wardenburg okay one in room. The Now, my genitals. [sic] training always room was the restroom in the being giving sample, you a urine observed you filthy it in of some- had to do front direct, exposed genitals to the trainer you day. body it in one else and had to do looking at it and it's consid- and the trainer is my there friend and I would be Sometimes private part my body my estima- ered a literally prac- drinking gallons of water after tion. trying go to the bathroom.... tice asked, your “How was The student was then trainers, you you and the if stay interaction between did, stay you we had had to there that treating you injury they p.m. give your when were for an year, you had until 6:00 first sample. couldn’t, interacting opposed Tuesdays you to when were and if It was on eye stay you you you exam or for until would have the. you sample?" respond- provide sample. missed that obtaining he If a urine to which could positive. day, be considered then it would ed: classes”; they that sign what should take for to consent forms to such testing. required study in “we have a hall the morn- evening”; it is and and that “fair One student athlete testified that he had say fairly to that the athletes are well event, never been tested at an NCAA but regulated.” A student athlete testified in that other students were.24 Another stu- “Yes,” part you

relevant that “if are an dent was asked how she felt about the athlete, you keep have to NCAA a certain testing program, NCAA and she answered: “Yes,” grade average,” your and “if Again, it things was one of those like I average, grades drop you below that then can’t I just competed believe this. and competition.” eligible are not something I that looked forward to for years years and years they are obviously Although it is not amenable to doing the same thing intrusive that C.U. calculation, precise it is at least doubtful but, know, you had glad I was to be testimony upon by fully relied CU going there and I wasn’t argue with supports that CU’s assertion its student very big NCAA is a [it]. [institu- “extensively regulated athletes are in their and, know, you I wouldn’t know tion] behavior,” off-campus especially on and fight how to that. I wouldn’t be about to regard particulars with to all of the that my take team’s interests down the tubes importantly, CU asserts. More none of the because I didn’t want urinaly- to do the types regulation relied on CU entails sis. privacy an intrusion on interests of the Despite the fact that might students dis- nature or extent involved monitored col- like the NCAA program, samples. lection of urine they seems that must consent to it in order athletes, to be NCAA and submission to (d) one such could reduce the intru- having siveness of argues expec- that student athletes’ submit to another. hand, theOn other the trial court heard privacy regard urinalysis tations of with testimony suggesting part that of what is they are diminished because must submit intrusive about the CU is that it urinalysis-drug-test- NCAA’s random might transformed what otherwise be ing program a condition participating as friendly, trusting, caring relations be- competition. regard, NCAA In this untrusting tween trainers and athletes into athletic director testified that at NCAA and confrontational relations.25 events, championship the NCAA conducts drug testing random well athletes as as (e) top three finishers and cer- starting players, tain argues and evidence expec- that student athletes’ suggests record that privacy regard urinalysis NCAA athletes are with tations However, program, describing 23. Under the third amended "athlete” her relation with a "cheerleaders, positive includes student trainers and stu- trainer after she had tested and was (which day managers.” nothing retesting dent CU cites called in the next record negative), suggests turned out one athlete testified “we these athletes are also exten- sively regulated trainer are campus. friends but it was con- [the I] on and off untrusting frontational. It was felt—I they considering untrustworthy.” were me nothing suggest 24. There is in the record to relationship When asked how her with the train- cheerleaders, manag- student trainers or student thereafter, changed ers she answered: subject drug testing pro- ers are to the NCAA gram. supra note 23. Well, probably from bad to worse. We did other, just not dislike each it made all the it’s so, Specifically, feelings feelings. CU’s athletic director testified It is even more all way Everytime that a "common" and "accurate” to describe confrontational. I come to the room, relationship training prove my between "the trainers their have to innocence I just athletes” is that He also "friend[s].” and it was double that. testified that the trainers take care "the over- that no one ever ex- The athlete also testified plained general wellbeing all of the athlete and I think it was that the first test came to her how only physically mentally.” positive. think also back (f) consequences because are diminished sample are refusing provide a urine argues Finally, CU that student athletes’ appreciate compari that in We not severe. expectations regard uri- losing would be the job, one’s son nalysis positive are diminished test because government employ consequence some and are not results are confidential used cases, ee/drug-testing e.g., Bostic v. purposes for the of criminal law enforce- (N.D.Ga. McClendon, F.Supp. It true that an intrusion ment. is 1986), participate in inter being not able to government outside the context of criminal regarded as less collegiate athletics can be generally is law enforcement less of is, sure, very only a of a It to be burden. intrusion than one for the of law college athletes whose percentage small However, stepping college “careers” are essential enforcement. as a matter of any contracts —or to law, stones to lucrative already take this fact into account we athletes. On the professional contract—as analyze according when we this case to the hand, however, recog must also other we standards of cases like Skinner Von many intercollegiate athletes who nize that Raab, according rather than to the stan- college afford a edu otherwise could not typical dards of cases in the area of crimi- scholarships that en receive athletic cation procedure very nal there are few where degree and college them to obtain a able exceptions require- and well defined earning thereby potential. their increase probable ment of a warrant based on scholarships at of such CU Continuation words, cause. In other were we to attrib- participation in dependent upon continued weight ute less to the students’ program, athletic intercollegiate is not a criminal interests because this requires in turn consent to case, premise and also start with the Furthermore, many intercollegi program. control, would Skinner and Von Raab we pursue professional careers as ate athletes be, effect, giving weight in double in our coaches, college or as admin high school or dealing analysis to the fact that we are not pro or istrators in athletic recreational procedure. in with an issue criminal Con- Thus, example, grams. one student sequently, is not a crimi- the fact by the graduated athlete who from CU nothing nal matter adds to what we must trial testified that she worked time of the point analysis. in Fur- balance at this our at testified as a track coach CU. Another thermore, indicated, already as we have recently employment just that she obtained descriptions not in its written of its does coaching girls’ volleyball and basketball drug-testing programs give significant high having partici school. While a local general assurances that re- specific or test intercollegiate may not pated in athletics evi- sults are confidential.26 There is no requirement jobs, it is a formal for such dence at all that CU has ever made avail- applicants experi commonplace that with available, able, or ever desired to make intercollegiate at the athletic level will ence general public student’s urine test jobs disadvantaged seeking such not be results, people but the list of to whom comparison with those who lack such students must consent to the release of Also, recognize we that for experience. substantial, drug-test information athletes, many participation in in sig- particularly we are uncertain as to the highly tercollegiate activity athletics is an fact that third nificance of the CU’s for its own sake. We therefore valued amended students must consent consequences being believe that the “my work to the release of information participate athlet able to (if significant weight. supervisor applicable).”27 ics must be accorded fidential, perceive "signifi- program, this as a amended CU does state we do not In its third general specific of confiden- cant assurance” between an athlete and that communications tiality of test results. Wardenburg physicians Cen- Student Health physi- ter shall be confidential. Given that the because "the asserts in its brief that also normally cian/patient communications are con- partakes an element of 'commu- locker room (g) government ized the relevant interests as “compelling.” Skinner, E.g., 489 U.S. at Having light reviewed record 628, 109 (government has assertions, each of it is clear that in “compelling” interest in testing railroad places some CU seems to overstate its employees whose fraught “duties [are] case, others, point. while it has a valid with such risks of injury to others that balance, however, agree- On we are in full a momentary lapse even of attention can ment conclusion of the trial court consequences”); disastrous Von random, suspicionless urinalysis- that CU’s Raab, 489 U.S. at 109 S.Ct. at 1893 drug-testing of athletes is an “intrusion (government “compelling has interest in en- clearly significant.” [that] suring that [drug] front-line interdiction personnel the United States Customs [in fit, physically are and have unim- Service] CU asserts several interests in maintain- peachable integrity judgment”); and id. ing drug-testing program. its These inter- 677, 109 (government S.Ct. at 1396 has a preparing ests are drug its athletes for compelling interest in protecting truly sen- events, championship pro- NCAA sitive information from might those who moting integrity of its athletic compromise information); such id. at gram, preventing drug use other stu- (government 109 S.Ct. at 1398 “compel- has models, dents who look to athletes as role ling preventing interests in promotion ensuring competition, fair protecting and drug of positions users to they where safety the health and of ath- might endanger integrity of our Na- letes.28 tion’s borders or citizenry”); the life of the begin We our consideration of these in- Cheney, (government 884 F.2d at 610 has a terests observing suspicionless that “compelling uri- safety in ensuring interest nalysis-drug-testing by government 2,800 has that the approximately civilians who upheld cases, been fly numerous and in airplanes and service its helicopters and cases, many of those courts have character- impaired by drugs”).29 However, not ” undress,’ challenging drug nal Q the athletes you How was it that hadn’t seen the list testing program expectations have diminished- or been able to look at the list? however, privacy. nothing, of We find A Because I was at home. I had a class partaking of a characterization locker room as early Friday and I think it was like or some- sug- of an element of communal undress thing go practice. and I didn’t have to I gests that student athletes would not be offend- supervised, go super- didn’t have to be to a being upon ed the intrusion of called practice they vised so I was home and called perform drug monitored urination for a test. Longmont. me and I had to come in from example, testimony For the trial court heard addition, program CU’sthird amended de- they from two female athletes that were not cheerleaders, fines "athletes" to include trainers, called in from a state of "communal undress” managers, although and student and tests, privacy for their random but from the managers student trainers and student must be their homes: room, accustomed to a locker it is not obvious Well, categories per- to us that I had of these three never liked the and participate happened what sons must Finally, in the communal undress. was—and that was in the fall my year, got fourth the record is silent on I called on Tues- whether locker day night my and it was room are the 7:00 and I was in conditions same for all intercolle- pajamas studying Terry giate sports. and it was Brown who said I had to come down at that instant test, urinalysis to do a a test. 28. CU has not asserted financial interest in maintaining drug-testing program. Di- Cf. meo, (state 943 F.2d at asserted a "substan- morning And had an exam the next and if tial ... financial interest” in random test- point, I didn’t come I would have a starters, professional jockeys, and outri- positive go and so I had to in and I didn’t ders). have a car.... Yes, Longmont examples day A I was home in We one do include in this list of my you opinion called house and said are on district court’s in O’Halloran v. Univer- list, 997, 1002, eye you please give sity Washington, F.Supp. would come and you (W.D.Wash.1988) (finding have to come in and test. that the NCAA and us— Supreme Appeals Court has not held cuit Court of in Local suffice, “compelling” Skinner, interest involving will see Skin- case ner, 1417; 489 U.S. at 109 S.Ct. at drug testing employees, random absent cf Raab, Von 489 U.S. at 109 S.Ct. at suspicion, individualized that “the concern suspi- upheld and some courts have public safety general animates the ac- urinalysis-drug-testing by gov- cionless ceptance drug testing by courts.” Local finding compelling ernment without inter- Skinner, 913 F.2d at (citing Dimeo, E.g., est. 943 F.2d at 685 support proposition Skinner, for this Von (explaining decreasing levels intru- Raab, Third, Fourth, and cases from the require decreasing gov- siveness levels of Eighth, Circuits); and District of Columbia justification, declining ernment to charac- see Valley also v. Passaic Water O’Keefe compelling government’s terize as in- Comm’n, N.J.Super. 602 A.2d protecting professional jockeys, terest (A.D.1992)(reading Skinner and Von starters, injuring and outriders from one holding government may Raab as that “the track, characterizing another at the race require drug testing nevertheless [absent the state’s financial interest as “substan- suspicion] running reasonable without tial,” holding that these two interests proscriptions afoul of the of the Fourth outweigh very “the limited inter- Amendment in those circumstances in starters, professional jockeys, esas]” government’s special compel- which the outriders); and International Bhd. of ling protect public need to safety out- Workers, Skinner, Elec. Local v. 913 1245 weighs interest”). employee’s privacy 1454, 1462, 1463, (9th Cir.1990) F.2d 1464 example, upheld For suspicion- courts (finding government “great” has a urinalysis-drug-testing less Army-em- of in safety gas interest of the natural ployed controllers, pilots, civilian air traffic liquid pipeline industry, and hazardous and mechanics, attendants, aviation po- aircraft holding that this “strong” interest is suffi- lice, guards, and Cheney, 884 F.2d at 610- justify cient to urinalysis testing random of 11, 612-13; employees civilian of a chemi- workers). Hence, pipeline try- rather than weapons plant cal who “have access to ing to characterize CU’s interests as “com- experiments in per- areas ... “substantial,” pelling,” “strong,” or of highly with lethal formed chemical warfare degree importance, some lesser of we think Marsh, agents,” 113, Thomson v. 884 F.2d it simply compare is more instructive (4th Cir.1989) curiam); drivers, (per types them with other commonly assert- primary mechanics and attendants whose ed interests that have been held sufficient duty daily transportation is the of handi- justify or insufficient to similar intrusions. buses, capped children on school Jones v. 1476, Our review of the in Jenkins, (D.C.Cir.1989) cases this area 878 F.2d supports the (per curiam), conclusion of the Ninth Cir- Jones v. McKen- modifying University Washington "compel- the ling have a before Skinner and Von Raab were decided. protecting Third, interest ... in the health of stu- perhaps important, and more the issue dent-athletes, reducing peer pressure temp- and O’Halloran, 997, presented F.Supp. drugs, ensuring competitions tations to use fair validity drug- the constitutional of the NCAA’s public, for student-athletes and the and educat- testing program University Washing- and the deterring drug sports about and abuse in it, 998, opposed ton's id. at competition” concluding that these interests any program University conducted outweigh letes), rev’d, privacy interests of student ath- Washington. regard, In this the district court University O’Halloran v. Wash- University Washington's partic- held that the 1375, (9th Cir.1988) (re- ington, 856 F.2d ipation program in the NCAA did not constitute manding "the action to the district court with action, state and that the NCAA is not a state directions that that court remand the entire case Thus, actor. Id. at 1002. the court’s discussion back to the state court from which was re- "government’s” compelling interests and because moved” "the district court did not have privacy the dicta, interests of athletes is subject jurisdiction third-party matter over the appear and it does not that the NCAA’s complaint improper”), and removal was for sev- First, obvious, upon privacy intrusion of athletes at NCAA eral reasons. and most the dis- championship competitions subject jurisdiction.

trict court Second, O’Halloran, lacked is as severe as a matter F.Supp. university’s was issued intrusion on its own athletes. zie, (D.C.Cir.1987); biologists, or search 833 F.2d 335 bus and animal caretakers operate who commercial truck drivers work at facilities, who chemical and nuclear single that “a “enormous” trucks such mis- 611; Cheney, police 884 F.2d department judgment momentary lapse take in or personnel carry who do not firearms or devastating attention can have conse- participate drug efforts, interdiction travelers,” quences for other Internation- 1558; Guiney, 873 F.2d at pur- heads of v. Department al Bhd. Teamsters chasing departments hospitals who have (9th Cir.1991); Transp., 932 F.2d “vital important responsibility essential hospitals public “scrub techs” in whose proper to the supply materials,” of medical patients bringing oper- duties include Kemp v. County Hospital, Claiborne room, up field, ating setting the sterile F.Supp. (S.D.Miss.1991); instruments, laying proper out the and as- United States Service employees Customs sisting during surgery, Kent v. Claiborne who are to handle classified mate- F.Supp. County Hosp., 763 rial, Raab, Von (S.D.Miss.1991); employees holding at 1396. top security clearances, secret national public significant asserts no safety or Thornburgh, Harmon v. 878 F.2d security national interests.30 This is (D.C.Cir.1989); county 491-92 correctional dispositive, itself showing employees absent regular prisoners access to CU that its weapons, greatly athletes have Taylor O’Grady, 888 F.2d dimin- (7th Cir.1989); expectation ished police or that carry participate significantly intrusive, officers who firearms or is not efforts, Guiney great interdiction majority following of cases Skinner Roache, (1st Cir.1989) 873 F.2d clearly against Von Raab militate curiam). time, (per same At the courts conclusion that is a reason- governmental have found insufficient inter- power able exercise of state under the uphold suspicionless ests to urinalysis- despite Fourth Amendment. This is so the high-school of students who fact in protecting that CU’s interest the participate activities, in extracurricular health safety of its ath- Brooks, 764-66; at F.Supp. 730 United letes, protecting like its interest in all of its Department employees States Justice of students, significant. unquestionably is prosecutors who are criminal cases and persuaded We have not been that CU’s employees grand other who access to greatly expecta- athletes have a diminished Harmon, jury proceedings, 878 F.2d at privacy, persuaded tion of we nor are 496; county employees correctional who program significantly CU’s is not intrusive. opportunity smuggle have no reasonable addition, whether question we some of prisoners narcotics to and no access to fire- by sig- the interests asserted CU are even arms, 1201; at Taylor, 888 F.2d civilian purposes. nificant for Fourth Amendment laboratory the Army’s workers at forensic example, integrity For the although of its Laboratories, Drug Testing Cheney, 884 is, athletic all the other like inter- 613, 615; employees F.2d at civilian the CU, by ests valid and asserted a commend- custody process chain of for biochemical one, very signif- able it does not to be seem testing Army’s Drug at the forensic Test- icant purposes. for Fourth Amendment Laboratories, id.; and water meter 12 n 5 NRC, See Local v. 966 F.2d at 525 n. readers who must enter customers’ homes (In meters, evaluating 9 for random O’Keefe, order to read the 602 addition, drug testing employees of absent individu- ques- A.2d at 764. In courts have said, suspicion, alized “The propriety suspicionless testing tioned the the court NRC secretaries, technicians, wisely pursuing decided from its engineering re- to refrain among possible preventing drug program, by deterring exception 30. The is use its ath- use letes, by among general drug use other look to athletes as role has deterred students who However, any presented population. such evidence models. no evidence Absent record, public safety possible that other CU to its athletes as role concern students look models, any purely speculative. present nor did CU evidence that its 946 duress, ap- promises or the rationale on coercion subtle or

integrity of workforce uniformly has almost This rationale peal. threats calculated to flaw the free and un as insufficient rejected the courts been constrained nature of decision.” Peo drug testing employees.”); justify Carlson, (Colo. ple v. 677 P.2d 318 Similarly, al- O’Grady, 888 F.2d at 1196. 1984) Bustamonte, (citing promotion competition of fair though Helm, People v. S.Ct. 2041 and 633 P.2d and enhances character in athletes builds (Colo.1981)). Whether consent to events, of athletic the entertainment value voluntary “is question search of fact explain why promotion does not from circum- be determined all important competition gov- is itself fair stances_” Bustamonte, 412 interest, just as it does not ex- ernmental 2058-59; 93 S.Ct. at accord United disqualification why preventing the plain (10th Wright, States v. F.2d sporting impor- events is an its athletes Cir.1991) (“Whether a search was volun interest. governmental tant tary question of fact determined to be hold, balancing on a therefore based We totality court from of the district interests of student ath- circumstances.”); Carlson, P.2d at 318 CU, governmental letes and interests (“Voluntariness is a of fact to be drug-testing program is that CU’s unconsti- totality determined from the of circum under the Fourth Amendment. tutional stances;”). government has the bur random, specifically, we hold More proving den of that consent to a search was suspicionless urinalysis-drug-testing by CU Bustamonte, 412 voluntarily given, U.S. at un- of student athletes is unconstitutional 2045; People Savage, testing if that the Fourth Amendment der (Colo.1985); Carlson, P.2d according procedures conducted 310, 318, and we 677 P.2d must defer to any drug-testing pro- utilized findings trial issue of court’s the factual trial, or if grams to date of clearly its findings voluntariness unless substantially a manner simi- is conducted erroneous, 878; procedures Wright, lar to utilized F.2d at Unit drug-testing programs to the date Corral, of CU’s ed 823 F.2d States v. Furthermore, trial. because Colora- (10th Cir.1987), supported provides at least much do Constitution record, Lowe, People P.2d from unreasonable searches and protection Carlson, (Colo.1980); 677 P.2d at 318. see Amendment, as does the Fourth seizures specific The heard direct testi- trial court drug-testing also program is unconsti- mony intercollegiate student from several II, under Article Section of the tutional they athletes and when who described how Constitution. Colorado presented sign,

were with consent forms to B why they signed and them. CU had the stu- opportunity to cross-examine these asserts, however, that even if its CU dents, testimony present direct of its and to program not otherwise con- reasonable, stitutionally there is no consti- own. The student athlete ath- tutional violation because who on behalf was not testified of CU voluntarily testing. consent to We letes or when was told of asked how she about argument. next address that she drug-testing program, the how or when presented sign, a was with consent form A of an warrantless search individu why signed or the form. The Athletic she the generally under Fourth al is reasonable Athletic Director for and CU’s Head if has Amendment the individual voluntari general Trainer about how testified v. ly consented it. Sehneckloth Busta are intercollegiate student when athletes 219, 222, monte, 412 U.S. S.Ct. drug-testing program, notified the about 2041, 2043, (1973). L.Ed.2d 854 A although testified how neither about “a voluntary consent to a search is consent actually presented are freely given, any when the students intelligently without sign.31 with consent forms to that participation fact in intercolle- giate sports “right” is not a but a “bene- evidence, the of this the trial On basis fit” not requirement does alter the court concluded: voluntary. consent be Supreme during produced The evidence this trial Court has acknowledged that giv- failed to establish the consents person by University’s Though the no “right” en student-athletes has to a quite government voluntary. It clear that valuable benefit and even though government are “coerced” for constitutional may deny him partic- there by reasons, the fact that can be no benefit for number of ipation signed in athletics without con- there upon are some reasons which the As in cases sent. “con- government may rely. may not It not cited/32! University sent” obtained is not deny person a benefit to a on a basis voluntary.... infringes pro his constitutionally interest_ tected For if govern argues that this should be under- not deny ment could person a benefit to a finding by court, stood as factual the trial because of his constitu legal as an erroneous [exercise of] conclusion based protected tionally [rights], his exercise improperly on the “unconstitutional condi- of those freedoms Sindermann, would effect be Perry tions” doctrine of penalized inhibited. This would U.S. 33 L.Ed.2d 570 (1972).33 government light produce allow a re language used court, authority sult which it could the trial and the that it not command direct cites, ly. persuaded we are trial Such interference with court constitu rights finding did make a issue tional impermissible. Perry factual on the voluntary consent, and that the trial court, Sinderman[n] ^[593] decision, ground as an alternative for its S.Ct. 33 L.Ed.2d [92 (1972). applied also the doctrine of unconstitutional 570] conditions. quite It is clear that no consent can be

The trial court reasoned as follows: voluntary where the failure to consent duty government

It is the governmental results in a denial of “demonstrate that was in McClendon, consent benefit. Bostic v. voluntarily given F.Supp. (N.D.Ga.1986)(“Consent” fact and not the result coercion, express implied. of duress or city personnel clerk’s office police Voluntariness fact to urinalysis testing voluntary i[s] all determined from the circumstances.” employment where would ter- have been Bustamonte, 412 personnel Schneckloth v. minated if partici- refused to Cleveland, pate); 248-49 City Feliciano v. [93 (1973). (N.D.Ohio 1987) (Police L.Ed.2d F.Supp. 854] McClendon, 1986), 31. CU’s Athletic Director that "at F.Supp. testified and Bostic v. (N.D.Ga.1986). meeting, sign initial team all [drug] NCAA forms and consent to the NCAA testing championship at the events." rec- entirely 33.CU in has not been consistent its however, indicates, drug- ord that the NCAA position on this issue before this court. In its testing program separate drug- from CU’s opening argued resolving brief that after the program, testing and that each uses question, "[t]he unconstitutional conditions separate consent from forms. evidence the University’s the remains whether suggests that student athletes consent forms are gram voluntary, provides knowing, for and in- signed meetings after the initial team and that consent, by telligent be the must tested meetings beginning such are held at the of each brief, totality reply In of the circumstances.” year. academic however, argues should our that we confine attention sue, the unconstitutional is- conditions immediately preceding argument paragraph appears In the the the to base the on Schaill, trial court cited 864 F.2d that ad- Feliciano contentions this was issue Cleveland, (N.D.Ohio City F.Supp. by v. trial that dressed court and the manner of 1987), grant American Federation Government Em- in which issues were framed in our (S.D.Ga. ployees Weinberger, F.Supp. certiorari should limit our review. from voluntarily Appeals quoted Perry Court of did con- academy cadets not testing urinalysis drug Sindermann, for where sent S.Ct. urine producing that cadets believed a matter law that and seemed hold as to retain their samples necessary was give con- high students cannot valid school Gov. jobs); American Federation of testing giving if drug sent to random F.Supp. Weinberger, 651 Employees v. being is a of their such consent condition (Because signed (S.D.Ga.1986) con- participate able to in interscholastic athlet- of Defense mandato- Department sent Schaill, ics. 864 F.2d at 1312-13. testing given only was ry urinalysis Hence, deciding if in the issue of “volun- lost consent jobs would be because signed, consent,” tary not “consent” forms trial court cited Busta- were voluntary); not Schaill obtained was Then it relied on monte and Sindermann. County School Tippecanoe Kross v. (.Bostic Feliciano) in which two cases Cir.1988) (7th Corp., F.2d 1309 matter of under trial courts found as a fact (“Consent” by high student-ath- school that the certain individuals Bustamonte drug testing not effective letes voluntarily urinalysis- did not consent urinaly- participation consent because drug-testing; one (Weinberger) case testing sis was a trial court found as matter of which the athletics). in interscholastic that indi- fact under Bustamonte certain during produced this trial The evidence voluntarily not to uri- viduals did consent giv- that the consents failed to establish addition, nalysis-drug-testing, and University’s student-athletes en testing such a valid consent to not voluntary. quite It is clear that are government employment condition are “coerced” constitutional could have effected a not waiver partic- can no by the fact that there Amend- plaintiffs’ rights under the Fourth signed a con- ipation in athletics without (Schaill) ment; applied one case cited, the “con- sent. As in cases of unconstitutional conditions doctrine University by the is not sent” obtained high stu- to hold that school seemed voluntary.... give random dents cannot valid consent to Feliciano, trial courts In Bostic and drug testing if consent is a condition such “all the circumstances” test applied the inter- being participate able to their Bustamonte, 412 U.S. at articulated per- are athletics. We therefore scholastic 2058-59, and found as court, trial the trial like the suaded that plaintiffs’ respective matter fact Weinberger, court in decided the issue urinalysis-drug-testing was not consent to “voluntary consent” alternative Feliciano, voluntary. F.Supp. grounds. Specifically, the trial court found 593-95;34 Bostic, In F.Supp. at 249. fact as a matter of under Bustamonte Weinberger, trial relied on Bus- court during produced this trial “the evidence as matter of fact that and found tamonte given the consents failed to establish that voluntarily did con- certain individuals University’s student-athletes addition, urinalysis-drug-testing; sent to alternative, the trial voluntary.” applied un- the trial court the doctrine of of unconstitu- court relied on the doctrine held con- conditions and constitutional held that no consent tional conditions and was not valid condi- sent such voluntary the Fourth Amend- can be under government employment and could tion of ment the failure to consent results where plaintiffs’ not have effected waiver government such as in a of a benefit denial Amendment. rights under the Fourth intercollegiate sports in participation Weinberger, F.Supp. 736. university. Schaill, state panel the Seventh Circuit Cleveland, De- unpublished on City in an order F.2d district court 34. Feliciano v. Feliciano, (6th Cir.1993), at 653. F.2d reach cember which did not Fourth issue, on issued its order reports court in this case id. at n. that trial Amendment Feliciano, August F.Supp. vacated We therefore must determine whether in intercollegiate CU’s program athletic in supports finding the record the trial court’s absence of execution signed of a consent. It carry prov- equally failed clear that CU its burden that no athletic scholar- ship will be available ing that the that to a student consents search are at who does consent to testing. pressure in voluntary. issue this case are In this prospective on a connection, student athlete sign it must be remembered that random, consent to suspicionless drug this is a class test- action. Such an action is ing under such circumstances is obvious. premise based on the that “the claims or representative parties defenses of the are suggests The record that consents are typical of the claims or defenses of the signed following team meetings at some 23(a)(3). class.” C.R.C.P. The class mem- time around beginning of the academic consist present prospec- bers of both year. Prospective student athletes recruit- tive student supra athletes. See note 9. ed CU are advised of Therefore, although may initially appear general in a way early in their anomalous that the consent issue could be contacts with CU and specificity prior with decided as to future student athletes or on being sign asked to consents. The rec- basis, other than an individualized the case ord does not reflect whether the prospec- premise was tried on the proce- tive student given athletes are information obtaining dures for consents are standard at a time when meaningful have a components of drug-testing program opportunity apply for admission to an- and are uniform. That say is not to other educational accep- institution or for there are procedures not variations in de- tance into an athletic of such an pendent upon the times the ap- students alternative institution.35 There is nothing proach CU, approached or are but rath- suggest the record to prospective given er that in potential each situation a student athletes are advised that may student athlete is drug pro- advised of the elect to revert to procedures its former gram and solicited essentially to consent in visually monitoring the collection of urine Thus, ways. standard procedures rou- samples. tinely implementation followed in It must be remembered that the consent drug-testing program, applied to student question is the consent to an otherwise typified by those who testified at search, unconstitutional and that to be vol- trial, are what truly are issue deter- untary such a consent “freely giv- must be mining the voluntariness of consent. Con- en, duress, without coercion or subtle analysis, sistent with this opening its promises or threats calculated to flaw the court, brief in this recognizes which CU free and unconstrained nature deci- that “whether University’s program People Carlson, sion.” 677 P.2d at 318 provides voluntary, for knowing, and intel- Bustamonte, (citing ligent resolved, consent” is a to be Helm, People 1071). 633 P.2d supra see note argument CU makes no We conclude supports that the record individualized determinations are re- finding trial court’s that CU failed to bear quired or that consent cannot be deter- its prove burden to that consents obtained mined respect to future students. random, pursuant suspicionless uri- ruling Our review of the trial court’s nalysis-drug-testing program for certi- voluntariness of consent to search must be intercollegiate fied class of student athletes foregoing conducted with the framework in voluntarily given. accordingly We hold mind. of the Fourth Amend- It is clear from the II, record that a student ment and Article Section of the Colo- will denied opportunity participate Constitution, intercollegiate rado stu- scholarship 35. One student athlete one-year eligibili- testified that to transfer results in a loss of accepting ty to another school after an athletic athletics. dissenting: voluntarily to Chief Justice ROVIRA consent do not dent athletes drug-test- the being pursuant searched to case, purposes For of this I will assume ing program.36 nonconsensual, random, suspicionless that

urinalysis-drug-testing of student athletes is unreasonable under the Fourth Amend- Ill ment, Supreme spite ap- in the Court’s of reasons, suspicionless testing affirm the foregoing proval drug we of in oth- For the Railway Skinner v. La- er appeals.37 of contexts. judgment of the court Schaill, finding (suggesting F.2d at uphold we the court’s See abo 1312-13 trial Because consent, high not the voluntary that school students could under prove it is CU failed to that unnecessary give valid consent to ran- Fourth Amendment dom a inappropriate us to consid- for drug giving testing if the of such consent is legally a court er whether the trial reached being participate of to in condition their able the of unconstitu- correct result under doctrine testing athletics and if the other- interscholastic Nelson, See Jean 472 U.S. tional conditions. v. search). illegal would constitute an wise 846, 854, 105 S.Ct. 86 L.Ed.2d 664 principal the We further note that case relied (1985) (”‘[i]f deeply is one doctrine more there interpretation upon by CU for its of the doctrine process in the of constitu- than other rooted conditions, specifically, Wy of unconstitutional ought adjudication, it is that we not tional James, 309, 381, 400 U.S. 91 S.Ct. man constitutionality pass questions ... unless on of (1971) (recipient L.Ed.2d 408 of Aid Families ”) adjudication (quoting is unavoidable.’ such Spector Dependent public ben Children assistance 101, McLaughlin, Motor Co. a efits could not refuse home visit a social 154, 152, (1944)); 105, S.Ct. 89 L.Ed. 101 risking the worker without termination of bene 910, (Colo.1985) Lybarger, P.2d People v. fits), interpretation support does that for ("Axiomatic authority judicial to the exercise of First, Wyman held that the several reasons. principle that a court should not decide the visit in unintrusive home so necessity unless for constitutional issue ... the was not even a search under the Fourth Amend ment, inescapable.’’). We such decision is clear 385, 317, at S.Ct. ran id. at whereas whether, express opinion in no therefore theory, dom, urinalysis-drug-testing monitored is obvi university possible for it is ever students Second, ously governmental a search. the inter voluntarily under to consent the Fourth Amend- Wyman compelling at stake in were the ests 7, II, ment, drug- to a or under Article Section parens patriae governmental protect interest program testing program is a if consent to that children, well-being young, dependent of the ability participate condition of their inter- 385, n. at id. at collegiate athletics. The trial court unnecessari- governmental n. and the substantial interest ly this issue. addressed making appropriate tax dollars are in ly sure that note, however, result We do reached through spent and not wasted either welfare support analyses otherwise, 318-19, the trial court finds at fraud or id. of who have endeavored to reconcile implicated writers No interests are 386-87. similar Third, Wyman and difficult cases found this area numerous this case. held even if Baker, search, Lynn of law. See A. The Prices home visit were a Thus, it was reasonable. of Wyman Theory Rights: Positive Unconstitu- while reached in dicta issue of Toward a of Conditions, government may condition a bene Cornell L.Rev. 1197— whether tional reasonable, (1990) consenting (analysis fit on to a search that of 23 Su- United States govern is a different issue than whether applying preme opinions of Court doctrine may a search that is conditions); ment condition benefit on Sally Lynn Me- unconstitutional consent, Note, unreasonable without beneficiaries’ loch, College Analysis An Public Athlete implicated it is the issue that is in this and case, latter Testing Programs Through Drug the Unconstitu- supra part IIB. see Doctrine and the Fourth tional Condition permanently enjoined CU The trial court 826-35, Amendment, 60 S.Cal.L.Rev. 849-50 requiring samples urine from student "from (1987) (analysis Supreme 7of United States drug testing....” athletes opinions applying the doctrine uncon- Court it was unneces- In view our conclusion that sary conditions). These writers conclude stitutional directly, conditions to address the unconstitutional Meloch, supra, see indirect- issue, possibility recognize we Baker, ly, supra, that whether see might CU be able to devise future university such as has unconstitutional- state voluntary involving truly drug test- consents ly the benefit conditioned event, apply ing. In such is free intercollegiate depend on a bal- athletics would injunction. modification or dissolution germane ancing of the same factors that are determining program is whether CU’s reason- express opinion doing, we no on the In so the Fourth Amendment without the holding able under voluntary appeals’ correctness of the court objective, students, specifically, reasonable, suspicion of its consent individualized magnitude governmental drug interests in- war- use in some circumstances could degree mandatory volved and the rant supra at 935. the athletes. CU. See burdens the interests of Ass’n, Amendment, II, Executives’ 489 U.S. 109 Fourth or bor under Article (1989) 103 L.Ed.2d 639 and Na- section to a program if con- Treasury Employees program Union v. Von sent to that is a tional condition of their Raab, ability to participate intercollegiate 109 S.Ct. ath- (1989). separately L.Ed.2d 685 I write be- letics.” n. Id. at 950 majority cause the has misconstrued the question of the voluntariness of con- ruling concerning basis for the trial court’s purposes sent for of the Fourth Amend- question way the of voluntariness such a ment question is a of fact which is to be that, accepted, undeserving if would be by totality determined the of the circum- Maj. op. court’s this deference. 946-949. Bustamonte, stances. Schneckloth v. Additionally, properly I believe that when 218, 248-49, 2041, 2058-59, construed, ruling the trial court’s should be (1973); Carlson, L.Ed.2d People reversed on the basis of the unconstitution- (Colo.1984). Thus, P.2d in review- application al conditions of which doctrine— ing the trial finding court’s evi- “[t]he plainly the nature of the necessitated produced during dence this trial failed to originally brought class which this suit. establish that given by consents Accordingly, respectfully I dissent. University’s student-athletes are volun-

tary,” we defer to the trial court unless its finding clearly sup- erroneous or not ported by the record. maj. op. at 946 court, rendering ruling, The trial (and therein). authority cited stated that not, The trial court obvious rea- produced during evidence this trial [t]he sons, presented by pro- evidence failed to giv- establish consents spective concerning student athletes en University’s student-athletes drug voluntariness of consent to random voluntary. quite It is clear that yet given.1 which has not been No are “coerced” for constitutional considering student athletes who are at- by the fact that there can partic- be no (“CU”) tending University of Colorado ipation signed athletics without a con- and considering “consenting” also to CU’s cited, sent. As the cases the “con- drug-testing program testified; no individ- University sent” obtained is not ual may who become a student athlete tes- voluntary.... regarding tified the voluntariness of con- majority ruling finds that may given sent which if that individual grounds,” based on “alternative intercollegiate and con- becomes an athlete of cali- finding cludes that the trial court’s factual and then ber attends CU and is then in- concerning drug-testing program. voluntariness is formed about CU’s short, sufficient the trial presented itself to sustain court’s evidence to ruling. Maj. op. Accordingly, concerning at 948-950. trial court the voluntariness of majority opine “whether, pertained, logic requires, declines to in consent as to theory, possible university given” by it is ever “consents actual CU student ath- was, voluntarily students to consent under the letes. No evidence nor could it con- result; plaintiff present positive 1. The class consists of both sanction as a result of a test athletes, who, prospective present student athletes. Pursuant and those al- plaintiff waivers, C.R.C.P. class was certified though having as executed consents or follows: agreements participate University in the drug program, object Colorado’s education present prospective undergraduate Those program being as an unconstitutional con- subject student athletes who are or will be lastly, participation; dition of those University intercollegiate of Colorado ath- spective undergraduate who student athletes department’s drug program letic education as waivers, agreements will execute consents or University in the a condition of participate University of Colorado’s of Colorado athletic program, object present undergradu- education who limited as follows: Those being an unconstitutional con- ate student athletes who have never tested positive subject discipline participation. or have been dition of college be, opportunity to attend on an athletic regarding whether presented ceivably testing yet may accept scholarship has not be to the conditions to consent —which a given voluntarily as given attaches to such attendance. been —was matter of fact. Consequently, disagree majori- the with conclusory partic- if ty’s statement that Moreover, procedures “the fact that the receipt and of an athlet- ipation in athletics compo- standard obtaining consents are for a scholarship ic are conditioned on stu- drug-testing program the and nents drug testing, to dent’s consent then “[t]he uniform,” op. way at in no alters maj. prospective a student athlete pressure on pre- that no evidence was the conclusion random, suspicionless sign to a consent to of con- regarding the voluntariness sented drug testing Maj. op. ... is obvious.” given, yet have to be because sents which the fact governmental conduct is not sole totality applying the to considered be Thus, regarded the fac if the trial court forth in Busta- test circumstances set question of a tual voluntariness as suffi mante, 93 S.Ct. 2041. to ruling cient that consent CU’s basis contrary, totality of the cir- i.e., To per drug-testing program is se invalid — case, test, as applied cumstances present prospective as to involuntary requires of coercion clearly that the level sup not ruling student athletes —that is brought to on individual stu- which is bear Furthermore, ported by the evidence. be must be taken into account. dent athletes require an infer ruling cause such would determining, as a fac- impossibility which, upon “facts” necessi ence based matter, question of voluntariness tual exist, do not could not that ty, simply due, in respect to this entire class is erroneous. See Peterson finding clearly degree of part, to the fact that the relative Comm’n, v. Ground Water 195 Colo. vary among individuals de- coercion will (1978) (inferences 579 P.2d 634-35 pending on For exam- their circumstances. from evidence will not to be drawn be imposed on ple, pressure a schol- while clearly unless erroneous as to disturbed so obvious, may student be arship-dependent Thus, record). support find no if the who cannot be said of same conclude, as a factual mat trial court did dependent on financial assistance not ter, the plaintiff no members of class college is neverthe- order to attend but who drug- voluntarily have/can consent to CU’s drug-test- required to consent to CU’s less finding is one that is program, pressure that program. Similarly, the by this not entitled to deference court.2 re- brought heavily on a may be bear essentially who has the cruited individual college “pick crop” in terms of which II attend, clearly be less

institution would only not my judgment, the trial court aid-dependent student whose than to, Moreover, of, considering question of not drug-testing program. informed nor "consented” the factual been given by can student athletes whether consent agree majority Bustamonte, While I with the bears voluntary be under Schneckloth proving the burden of the voluntariness of L.Ed.2d search, maj. op. majori- consensual ty's presumption (1973), paid the trial when no deference is question that the factual position finding leaves this court court’s made as to voluntariness is one which could be attempting question resolve factual on a burden on CU which this entire class creates is, by necessity, inade- of a record that the basis logically cannot met under circum- course, so, quate do The reasons this is so. adds addi- to me. This fact stances conceivable tional why the trial court’s rul- are the same reasons support my that the trial conclusion majority, ing, is errone- as characterized not, properly, not rest its court did could evidentiary support: No evi- ous lacks respecting voluntariness on “alternate decision record which dence is contained vides, grounds” rely had on the unconstitutional provide, for the or could the factual basis render deci- doctrine in order to conditions voluntary persons supra finding applicable that consent to this entire class. sion II, pp. yet 4-5. § are not student athletes CU and who not, not,3 rely the factual clear underpinning could but did theoretical to the doc- trine, see, Baker, e.g., Lynn of voluntariness as its basis to A. The Prices given by any the consent Rights: conclude Toward a Theory Positive plaintiff Conditions, member of the class is involun- Unconstitutional 75 Cornell Rather, (1990) tary. Kreimer, the trial court must have L.Rev. 1185 F. Seth relied on unconstitutional conditions Allocational Sanctions: The Problem of support doctrine as for its conclusion be- Negative Rights State, in a Positive 132 legal logically (1984), finding cause could U.Pa.L.Rev. 1293 there seems to be applicable present agreement both future substantial respect with to the be. Consequently, general athletes.4 resolu- contours of the doctrine. clearly requires tion of this case us to form, In its canonical this doctrine holds question granted decide the which we cer- that even if a state has absolute discre- tiorari to review: Whether student athletes grant tion to deny privilege a or bene- give University’s can valid consent to the fit, grant privilege cannot subject drug-testing program if their consent is a “coerce,” improperly conditions participation condition of “pressure,” or “induce” the waiver of University? athletics at the Thus, rights. constitutional in the con- rights, text of individual doctrine

A vides that on at least some occasions receipt of a benefit to which someone has While the doctrine of unconstitutional no constitutional entitlement does not conditions has been criticized as “riven justify making person abandon some inconsistencies,” with Kathleen M. Sulli- right guaranteed under the Constitution. van, Conditions, Unconstitutional 102 1415, (1989), Harv.L.Rev. 1416 com- Epstein, Richard A. Foreword: Unconsti- invariably point apparent Conditions, Power, mentators tutional State tensions, ambiguities, Consent, and absence of a Supreme the Limits majority authority by police personnel urinalysis 3. The states that the cited clerk’s office and rendering supports voluntary the trial court in employment decision was not where the “obvious” conclusion that the trial court personnel would been terminated if re- grounds deciding relied on alternative participate”; academy fused to “Police cadets issue, voluntary maj. op. consent voluntarily urinalysis did not consent for i.e., voluntariness as a factual matter and volun- drug testing produc- where cadets believed that legal question tariness as a under the unconsti- ing samples necessary urine was to retain their tutional conditions doctrine. While I am will- jobs”; signed Department "Because consent to majority correctly to concede that the char- mandatory urinalysis drug testing of Defense authority by acterizes the cited the trial court as given only jobs was because would be lost if relying types analysis, on both of voluntariness signed, consent form were not 'consent' ob- probative I think it far more to examine the voluntary”; tained was not and "‘Consent’ propositions which the trial court cited that high drug testing school student-athletes to not authority support Doing clearly of. so indi- participation effective as consent because in uri- relying cates that the trial court was almost nalysis testing required participation exclusively on the unconstitutional conditions athletics.” interscholastic (as rendering doctrine in its decision support The trial court cited these cases as class). plaintiff the nature of the finding a of involuntariness based the fact on given that "consent” had been the re- because court, citing The trial after v. Schneckloth ceipt governmental of a benefit was conditioned Bustamonte, 218, 2041, 412 U.S. 93 36 giving precisely on such consent. This is what (1973), Sindermann, Perry L.Ed.2d cited 854 v. unconstitutional conditions doctrine con- U.S. 408 92 S.Ct. 33 L.Ed.2d 570 cerns itself with. (unconditional (1972) analysis), conditions McClendon, (N.D.Ga. F.Supp. Bostic v. logic preclude 1986); Cleveland, not The force of alone does City Feliciano v. (N.D.Ohio 1987); possibility by ruling that the trial court erred F.Supp. 578 American Federa question that the factual of voluntariness is suf- Employees Weinberger, tion Gov't (S.D.Ga.1986); applicable F.Supp. ficient to render a decision to this and Schaill Kross ruling, plain reading Tippecanoe County Corp., class. A however, of the trial court’s School 864 F.2d (7th Cir.1988). p. supra a The trial court cited each belies such conclusion. See support, respectively, (quoting ruling) supra of those later four cases in trial court’s note " following propositions: by city ‘Consent’ at 953. no Term, fact that there can be Harv.L.Rev. 6-7 Court signed course, athletics without a consent.” question, whether (1988). The presents of those occasions case one spite language to the con- of some governmental benefit receipt of a Sindermann, see, Perry v. e.g., trary, on an individual’s may not be conditioned 2694, 2697, 92 S.Ct. right guaranteed by agreement to waive (1972) (“It government] L.Ed.2d 570 [the hold that it does I would the Constitution. may deny person not benefit not. constitutionally pro- infringes his basis that ”); Regan v. Taxation tected interests.... authority which direct- no I am aware of Representation, analyzes the ly confronts and (1983) 76 L.Ed.2d 129 the constitu- a court should determine how (“The government may deny a benefit government tionality conditioning a ben- person he constitu- to a because exercises a Fourth Amendment efit on waiver has right”), tional the Court not established strictly is Though question not rights. this as the unconstitutional conditions doctrine my opinion, impression, of first one government’s on per prohibition se issue which have considered this courts ability receipt of a to condition benefit way as render done so in such a have See rights. of constitutional on waiver persua- “analysis” useless as their all but States, 624, 628, 66 Zap v. United 328 U.S. authority. precedential sive 1279, (1946) (hold- 1277, L.Ed. S.Ct. 90 1477 example, simply courts have For some Amendment Fourth and Fifth that “a search otherwise unrea asserted as rights may waived a condition be constitutionally does not become sonable receiving government contract: “when it is attached as a condi palatable because petitioner, to obtain the order Govern- City Lovvorn v. employment.” tion of business, specifically agreed per- ment’s 1539, (6th Chattanooga, 846 F.2d 1548 Cir. record, inspection mit of his accounts and 1988). concluding Tautologically that con voluntarily he such claim to waived an “otherwise unreasonable sent had....”); might which he otherwise have search,” i.e., in the one that is conducted Aznavorian, 170, 177, v. 439 U.S. Califano consent, always amounts to an absence (1978) 58 435 99 S.Ct. L.Ed.2d is, course, condition unconstitutional (“incidental of denial of social secu- effect” simply way avoiding the unconstitu rity right on to travel does benefits question term “oth tional conditions —the v. Connick unconstitutional); render used here erwise unreasonable” 138, 1684, Myers, 461 U.S. S.Ct. nothing saying more than amounts (1983) (upholding discharge of L.Ed.2d 708 from unconstitutional conditions “aside employee expressing grievance); labor search an un question, unreasonable is States, 507, Snepp v. United reasonable search.” per 763, (1980) 62 L.Ed.2d 704 S.Ct. affd apparently assumed Other courts against curiam (upholding sanctions CIA the unconstitutional conditions doc agreement agent breaching an to sub- per proscribing se rule trine stands as a writings mit all about his service for conditioning governmental benefits on review); United States Civ- prepublication rights. See the waiver of constitutional Let- il Serv. v. National Ass’n Comm’n Employees v. American Fed’n Gov’t 2880, Carriers, ter 413 U.S. 93 S.Ct. Weinberger, (S.D.Ga. F.Supp. (1973) (upholding the Hatch 37 L.Ed.2d 796 to future unrea 1986) (“Advance consent political campaigning Act’s fed- ban on sonable Pub. searches is not reasonable condi United Workers employees); eral fact, Mitchell, ap In employment.”). L.Ed. tion 330 U.S. See presumption (1947) (same). that the trial L. also pears be the Robert Hale, Conditions and adopted rendering its Unconstitutional judgment court Rights, Constitutional conditions issue: “It is 35 Colum.L.Rev. the unconstitutional (“Despite lan- [i.e., (1935) the broad quite clear that consents] of unconstitu- purposes by guage in which the doctrine ‘coerced’ for constitutional down, it tional conditions has been laid tutional condition doctrine reflects a bal- power ancing penalty against that the exertion justifica- not the law of a tion”). There is no always purpose unconstitutional when its reason to assume that such inapplicable a consideration is foregoing to induce the of constitutional context of a Fourth Amendment waiver. rights. Supreme has sustained Court James, Wyman 318- many power such exertions of even after 381, 386-89, 27 L.Ed.2d 408 announcing the broad doctrine that would (1971) dicta, (considering, govern- them.”). invalidate in requiring mental interest consent approaches exemplified contrast receive, home visitations in order to or con- Lovvorn, (6th Cir.1988), 846 F.2d 1589 receiving, tinue Aid to Families with De- Weinberger, F.Supp. the Su- pendent benefits). Thus, Children one fac- preme consistently applied Court has a bal- tor which must be considered in reviewing ancing test to determine what conditions on the trial court’s unconstitutional conditions receipt governmental of a benefit are ruling governmental is the asserted inter- permissible and what conditions are not. imposing ests in the condition. decisions, by these Guided as well as The next is what factors are to underlying purposes of the unconstitutional weighed against governmental inter doctrine, I conditions would hold that the Supreme stressed, est. par Court has analysis unconstitutional conditions ticularly in rights, the area of individual context of a Fourth Amendment waiver problematic aspect of unconstitu governmental should balance the asserted tional conditions is the coercive element conditioning against interest in the benefit they impose rights See, on the holder. e.g., being the individual’s interest in not re- Speiser Randall, 513, 518-19, v. 357 U.S. quested to waive Fourth Amendment 1332, 1338, (1958) 78 S.Ct. 2 L.Ed.2d 1460 . rights in order to receive that benefit. (“the exemption engag denial of a tax ing speech necessarily in certain will have B coercing the effect of the claimants to re upholding In the conditioning govern- proscribed frain speech”); from the Hobbie benefits, regularly mental the Court has Comm’n, Unemployment Appeals v. 480 governmental considered the asserted in- 136, 144, 1046, 1050, U.S. 107 S.Ct. imposing terest in those conditions. The (1987) (invalidating L.Ed.2d 190 denial of governmental interest is then balanced unemployment Seventh-Day benefits to against recipient the interest of the in or- Adventists who declined to work on Satur imposition der to whether assess of the day concluding brought that the state had constitutionally permissible. condition is employ “unlawful coercion to bear on the See, e.g., Fashing, Clements U.S. work). worship ee’s choice” between 957, 971-73, 2836, 2847-49, 102 S.Ct. Kansas, 1, 21, Coppage v. Cf. (1982) (state’s pre- L.Ed.2d interest 240, 246, (1915)(“To 59 L.Ed. ask venting vacating officeholders from office advance, agree, a man to to refrain from prior to the end of term is sufficient to retaining the union affiliation with while outweigh interference with first amend- employment position certain is not to ask rights) ment Myers, Connick v. part give up any him to of his constitution 103 S.Ct. 75 L.Ed.2d 708 U.S. al freedom. He is free to decline the em (1983)(upholding employee discharge of an terms.”); ployment on those Adler balancing employee’s after first amend- 485, 492, of Educ., 342 Board against ment interests (1952) state’s interest (public 96 L.Ed. 517 school promoting efficiency). Sally also See teachers barred from subversive activities Meloch, Note, Lynn Analysis An Public working subject to re retain the choice College Drug Testing Programs maintaining Athlete or of “their beliefs strictions elsewhere”). Through go[ing] the Unconstitutional Conditions and associations and Amendment, Epstein, A. Foreword: Doctrine the Fourth also Richard Conditions, (1987)(“the Pow- unconsti- S.Cal.L.Rev. Unconstitutional State significance Consent, greater constitutional The Su- er, Limits and the governmental essential forms of 102 Harv.L.Rev. than less Term preme Court Id. Because the Arizona conditions doc- entitlements.” (1988)(unconstitutional receipt of granted “cannot a benefit government statute trine holds sustenance,” “necessary in such a subject to conditions to basic grant privilege [a] right way penalize ‘in- as to to interstate ‘pressure,’ or improperly ‘coerce/ travel, invalidated. rights.”); the law was constitutional the waiver of duce’ Sullivan, Unconstitutional Kathleen M. ex- Though the rationale has been 1415, 1428-42 Conditions, Harv.L.Rev. stated, opinion, signifi- pressly my therein, con- (1989)(and authority cited must be taken into cance of benefit is an insuffi- “coercion” itself cluding that simple account for the reason support the unconstitu- rationale to cient benefit, greater the benefi- greater the doctrine). Thus, a court tional conditions it; lack of freedom to refuse ciary’s relative whether, the extent to must determine and, accordingly, accept the conditions at- which, as to operates so the condition short, greater receipt. In tached to its beneficiary waiving into his coerce the greater the coercion the benefit rights. by conditioning that bene- brought to bear right. of a constitutional fit on the waiver im- conditions are determining what regularly consid- has permissible, Court Thus, unconstitutional conditions doc- governmental of the importance ered trine, of a Fourth Amend- in the context condition. subject benefit which waiver, balancing requires a ment rejecting Indiana’s defense example, in For participating significance of the benefit granted un- regulation which of a welfare against athletics the as- those whose employment benefits imposing governmental interest serted “good [arising] cause was for termination his the condition that one waive Fourth work,” against a free in connection with analysis rights. Applying Amendment challenge, the Court Thomas v. exercise case, I conclude that the to the facts of this 707, Board, 450 U.S. S.Ct. Review impose does not an uncon- waiver 1425, (1981),concluded that 67 L.Ed.2d 624 athletes condition on student stitutional receipt of an conditions the state “[w]here participate in CU’s who attend CU and proscribed important upon conduct benefit program. athletic faith, such religious or where denies by a of conduct mandated a benefit because C infringement upon religious belief.... program condi- While CU’s Id. at free exercise is ... substantial.” receipt governmental of a benefit tions the 717-18, 101 at 1431-32. S.Ct. right, the on the waiver of a constitutional intercollegiate participate in opportunity to Similarly, Hospital v. Mari Memorial 250, 1076, undoubtedly a benefit of far 94 S.Ct. athletics copa County, 415 U.S. compared gov- to other (1974), import when invalidated less L.Ed.2d 306 Court benefits, conditioning of imposed a dura- ernmental an Arizona statute which by the Court. which have been sanctioned residency requirement as a condition tional 707, See, Thomas, 450 U.S. 101 S.Ct. nonemergen- e.g., indigent’s eligibility for to an benefits); Snepp v. (unemployment medical care. After cy hospitalization or 763, 507, States, 100 S.Ct. 444 U.S. Shapiro Thompson, 394 United characterizing (1980) 1322, (employment with 618, 62 L.Ed.2d 704 L.Ed.2d 600 89 S.Ct. U.S. CIA); Serv. Comm’n (1969), the “denial United States Civil as a case which forbade ” Carriers, 413 Letter Ass’n of life’ on the v. National ‘necessities basic 2880, L.Ed.2d 796 rights, U.S. 93 S.Ct. of constitutional Memorial exercise Zap v. (1973) (government employment); 94 S.Ct. at Hospital, 415 U.S. States, “governmental 328 U.S. explained that United the Court (1946) (government con- necessary 90 L.Ed. 1477 to basic privileges or benefits James, tracts). Wyman also viewed as be- See have often been sustenance drug-testing program. S.Ct. 27 L.Ed.2d 408 These include CU’s (1971) (concluding, hypothetically, prepare that re- desire to its drug athletes for test- ing events, ceipt championship promot- benefits could be condi- welfare NCAA ing the integrity program, tioned on waiver of Fourth Amendment of its athletic Moreover, rights). drug preventing because use other students who models,6 necessary look to intercollegiate athletics is not athletes role ensuring sustenance, deserving competition, protecting it is of no fair basic the health greater protection safety intercollegiate than less constitutional athletes. In my governmental opinion, essential forms of benefits. most of these interests are Hospital, significant. 94 valid and See Memorial S.Ct. at 1082. Thus, opinion I requiring am of

Consequently, given I would hold that student drug- consent to CU’s here, governmental benefit at im- testing program partic- issue as a condition of posing recipient ipation the condition that athletic program does not rights impose waive his Fourth Amendment is rela- an unconstitutional condition on the tively insignificant. governmental While this determina- receipt of that benefit. tion obviously quantified, cannot be it is I Accordingly, would hold the CU Supreme precedent clear that under Court drug-testing programs at here issue far less coercion is involved here than in Therefore, valid. I constitutionally respect- benefits, indeed, greater cases where much fully dissent. life,” “the basic necessities of were consti- tutionally conditioned on the of con- waiver I am say authorized to that Justice rights. stitutional Wyman, U.S. at joins in ERICKSON this dissent. (stating, at 386-90 in dic- ta, conditioning dissenting: Justice welfare benefits on ERICKSON rights waiver of Fourth Amendment granted Certiorari was review permissible). constitutionally drug-testing program employed to test in- suppose participat- tercollegiate benefit of student athletes at Univer- athletics, Colorado, sity (CU). agreed with all its Boulder We accoutrements, specific questions: indeed of some value to answer two However, athletes.5 value to University’s drug- the context of the potential recipients outweigh does not testing program, suspicionless whether governmental in imposing interest the con- constitutionally testing is reason- enjoyment. dition on its able? give CU has asserted several interests which Whether student athletes can valid it by imposition seeks to further consent University’s drug-testing assume, however, ship.” Virginia, University 5. I the do not benefit to Barile v. 2 Ohio 608, (1981). many primarily, App.3d student athletes is or in N.E.2d cases 441 615 significantly, opportu- even one of educational my opinion, the In beneficiaries of this "busi- nity growth; although readily and I acknowl- given primary ness” whose interest are concern edge opportunity participate that "the to in in- and not the athletes attention are student who tercollegiate athletics is of substantial economic coaches, college, legions attend the train- Univ., many value to students.” State ers, California and the like as well as the universities Ass’n, Hayward College v. National Athletic 47 gain financially by stand to themselves who enlisting (1975). Cal.App.3d Cal.Rptr. university’s in the athletic athletes college sports, While not true for all the fact gram. university’s Given the rather obvious rai- many, display their that "to the chance to athlet- d’etre, is, put prioritizing mildly, son such to prowess college ic stadiums arenas misguided. country throughout the worth more in eco- offered, get college Although the a nomic terms than chance to model the role rationale education," id., propagated hardly rather I most naive has unfor- can believe that even the college seriously tunate climate in which cannot be freshman student would look to athletes "[i]t light college maintained ness, football is not a busi- as role models in of the well-documented nationally recognized intercollegiate relationship college or that abuses of between programs. is not a relation- athletic student-athlete business requirement condition of Fourth program if consent is a reasonableness their athletics Amendment intercollegiate United States Constitu- II, tion and article section 7 of University? the Colorado Constitution because collection the same is- questions two address These testing of urine is a “search.” v. Skinner testing ath- drug of student sue—whether Ass’n, Railway Executives’ Labor prob- CU, without either letes at conducted 1402, 1413, 103 L.Ed.2d is ne- suspicion, cause or reasonable able (1989); Williams, People v. 192 Colo. con- “reasonable” and therefore vertheless (1976); P.2d 405-07 stitutionally permissible. LaFave, Wayne R. generally see Search voluntarily consents If a student athlete 10.3, (1993 Supp.).1 at 189 and Seizure § entering drug-testing program before granted The first on which we the an- program, athletic suspicionless certiorari concerns whether a warrantless swer Such obvious. drug testing of student athletes in the con- voluntary is con- search based on consent drug-testing program text of CU’s is an stitutionally rea- permissible even absent view, my In it is unreasonable search. probable suspicion or cause. See sonable constitutionally reasonable and therefore consent, part If there is valid II. no infra permissible. however, the answer is more difficult requires balancing asserted inter- CU's A ex- against a student athlete’s

ests pectations determine whether the war- issuing permanent In injunction, reasonable, rantless and therefore search any drug-testing trial court concluded constitutionally permissible. See infra program of athletes student administered ques- I. I answer two part Because probable must on premised be cause granted tions on which we certiorari satisfy requirement the reasonableness affirmative, I dissent. the Fourth Amendment.2 The court of disagreed appeals trial court

I suspicion stated that has been reasonable approved Amendment The Fourth United a basis validate warrantless II, and article section searches certain circumstances. Der States Constitution Colorado, P.2d deyn University Colorado Constitution establish right (Colo.App.1992). free from unreasonable The court of Peple appeals portion v. McKin reversed searches and seizures. therefore (Colo.1993); strey, prohibiting 852 P.2d see the trial court’s order all Hillman, People premised P.2d on also student (Colo.1992). agree majority probable with the cause. Id. at While the 1035-36. majority expresses opinion for inter the con drug-testing program that CU’s no satisfy appeals, maj. op. collegiate athletes must clusion of the court of case, determining applying whether intrusion is a 7. In this is no there basis II, the Colora- search under article section 7 of different standard to test reasonableness of Constitution, occasionally di- do this court has II, the search under article section 7 than verged Supreme Court. from the United States applied standard to a search under the Fourth Oates, (Colo.1985). E.g., People v. 698 P.2d 811 483, Rister, People v. Amendment. See 803 P.2d occasions, determined On these this court has (Colo. 1990) (concluding Amend 490 that Fourth II, provides protec- 7 that article section more balancing test used to determine whether ment similarly Fourth tion than does the worded applied checkpoint stops were reasonable also to the United States Constitution Amendment II, Coins, 7); article see section also Exotic legitimate expectation on based an individual's 930, Beacom, (Colo.), appeal Inc. v. P.2d 699 943 case, however, privacy. CU does not of dispute In this 892, 214, dismissed, U.S. 106 S.Ct. 88 474 drug-testing appeal on (1985). L.Ed.2d 214 purposes. is a search for constitutional Accordingly, my rea- discussion of the while drug testing trial 2. The court concluded at in this case is sonableness of the search issue suspicion decisions, no more log- on based reasonable limited to Amendment Fourth II, drug testing. suspicionless applies equal ic force to article section sustainable than party claims that 950 n. neither interests to determine imprac- whether it is respect. appeals require erred this tical to court warrant or some level of suspicion individualized in the particular certiorari, however, granted We to con- context.” Id. at 109 S.Ct. at 1390- question by the broader addressed sider 91; Skinner, at U.S. S.Ct. court, the trial but left unanswered 1417; see also Ortega, O’Connor v. appeals drug-testing court of —whether 709, 719, 1492, 1498, U.S. 107 S.Ct. context, premised this on nei- T.L.O., New Jersey v. (1987); L.Ed.2d 714 probable suspi- ther cause nor reasonable 325, 337, 733, 740, 469 U.S. 105 S.Ct. cion, constitutionally is nevertheless rea- (1985). L.Ed.2d 720 majority sonable. The concludes that sus- picionless balancing of student athletes The test is used to determine disagree. at CU is unreasonable.3 whether a search supported by must be cause, probable suspicion, reasonable B neither, possibly in order to be reasonable. question suspicionless balancing precludes of whether Where the test insis- program is constitutionally showing probable cause, tence on a permissible probable Supreme absent cause or rea- “usually required Court has some suspicion fact, question quantum sonable is not a suspicion of individualized before is a subject concluding of law that is that a search is reasonable.” Skinner, International appeal. de novo review 489 U.S. at at 1417. S.Ct. Department Bhd. Teamsters v. showing suspicion individualized Transp., (9th Cir.1991). floor, however, 932 F.2d not a constitutional below Applying principles settled of constitutional which a presumed search must be unconsti- us, adjudication to the case before Id. I con- tutional. drug- clude that within the context of CU’s fact, Supreme Court on occa- two athletes, testing program suspi- for student balancing sions has employed test drug testing cionless satisfies the reason- uphold drug testing reasonable, despite as requirement ableness the Fourth any suspicion. the absence of individualized

Amendment. Raab, See Von 489 U.S. at 109 S.Ct. at Skinner, matter, 1397; genera] As a a search must be 109 S.Ct. supported by 1417; Michigan Dep’t see also upon proba- a warrant issued State Sitz, Police v. satisfy 444, 455, cause to ble Fourth Amendment 496 U.S. 2481, 2487, National requirement. (1990) reasonableness (uphold- 110 L.Ed.2d 412 Treasury Employees Raab, Union Von sobriety checkpoint conducted without 1384, 1390, suspicion individualized based on the (1989). well-settled, test). balancing L.Ed.2d 685 It is how- In these “limited circum- ever, stances, probable that “neither impli- a warrant nor where interests cause, nor, indeed, minimal, measure of individu- cated the search are and where suspicion, indispensable compo- alized is an important governmental interest fur- every nent of reasonableness circum- thered placed the intrusion would be stance.” Id. Accordingly, jeopardy by requirement where a Fourth of individualized special gov- suspicion, may Amendment intrusion serves a search be reasonable de- needs, case, spite suspicion.” ernmental “it of such absence priva- Skinner, necessary to balance the individual’s 489 U.S. at 109 S.Ct. at cy expectations against the Government’s 1417.4 Specifically, majority compelling. Taylor O’Grady, holds that “for the F.2d purposes II, Cir.1989); of the Fourth Amendment and Article (7th n. see also Dimeo v. 1195 8 7, Constitution, Section of the Colorado CU’s 679, (7th Cir.1991) (en Griffin, F.2d 683 943 intercollegiate student athletes do not voluntari- Instead, banc). privacy where an individual’s ly being pursuant consent to searched to the weaker, government interests are need drug-test program.” Maj. op. at 949-950. harms, showing countervailing amake lower by Supreme

4. Under the limitations set forth Court, governmental need interest not be

960 Preventing drug by use other students in this ease whether CU’s

The look athletes as role program directed at who to student models particular drug-testing important interest. also constitutes an As athletes falls within intercollegiate student noted in a warrantless Schaill: where the circumstances reasonable, despite upheld search can be high visibility Because of their lead- suspicion. any individualized absence roles, ership it is not unreasonable to necessary question, this To answer single cheerleaders out athletes and balancing of the interests as- engage in a respect special drug with attention athletes’ by student serted CU usage. may judicial take This court no- privacy. expectations of society tice of fact that at

large drug usage by highly athletes is great publicized and is a matter of con- 1 by widely this Drug usage cern. ad- Governmental Interests Asserted likely mired to affect the group is behav- ior of and school authorities are others analysis of asserted majority’s The conducting within their discretion by support its sus- interests offered at specifically directed athletes. picionless drug-testing for student Schaill, As the 864 F.2d at 1320-21. ma- is limited observation concedes, prevent jority the desire to public safety in- significant no CU asserts by significant public use other students is terests, maj. op. questioning at and the n. safety Maj. op. at 945 30. asserted interest. some of interests whether significant for Fourth are even governmental The asserted interests disagree I with purposes. Id. Amendment compelling need not to the level of a rise imple- and conclude that analysis 4. Nor supra interest. note must the suspicionless drug-testing of its mentation asserted interests related to issues of be impor- Student athletes serves program for security public safety national or interests, including public tant and valid such, As valid. conclude inter- protecting safety the health and of intercol- just commend- ests asserted CU are preventing athletes and legiate student able, valid, significant, impor- are students look to drug use other who interests, Against tant. these valid it is athletes as role models. necessary weigh the interference with privacy expectations student athletes Drug usage involves considerable risks requiring results from student athletes to safety of student ath the health Raab, undergo a test. 489 urine Von U.S. letes, or not student athlete whether at at 1393. during practice competition. impaired dangers particularly evident with These steroids, pose respect to anabolic Privacy Expectations of safety the health risk to serious safety privacy individual Protecting the health and interference with athletes. unquestionably consti from the collection of urine for of student athletes results subsequent depending important analysis interest. v. varies tutes an See Schaill Raab, 489 County Corp., 864 F.2d the circumstances. Von U.S. Tippecanoe Sch. Dimeo, Cir.1988); 1393; (7th 943 F.2d at v. S.Ct. at O’Halloran recognized has Washington, F.Supp. Supreme Court University (W.D.Wash.), types that certain of individuals have di- 1006-07 rev’d on even (9th F.2d minished expectations Cir. grounds, other respect personal 1988); Dimeo v. F.2d searches. Von Griffin, also such see Cir.1991) (en Raab, (7th banc). 109 S.Ct. U.S. 682-83 nom., Barr, (D.C.Cir.), may Willner be suffi- cert. denied sub and a valid or substantial interest — justify suspicion- -, the conclusion cient to 116 L.Ed.2d 760 Dimeo, reasonable. F.2d at less search is 681; (1991); Taylor, F.2d at 1195 n. 8. Thornburgh, 928 F.2d Willner

961 case, regulation I conclude that the student In this extensive of behavior that subject drug- voluntarily student athletes athletes who are CU’s submit to fur privacy ther reduces their similarly expectations. diminished testing program regulated Student athletes are by the Na respect with privacy expectations Collegiate tional Athletic Association by a occasioned urine test. The intrusions (NCAA), Conference, CU, Big my following factors all militate favor of programs. their individual athletic Among (1) subject student athletes are conclusion: others, regulations include maintenance regular physical and routine examina- perfor levels of academic tions; (2) voluntarily student athletes sub- mance, selection, monitoring of course regulation person- mit of their to extensive rules, schedules, training practice weight behavior; (3) a communal locker al restrictions, curfews, prohibi and diet atmosphere commonplace in inter- room Significantly, tions on use. student collegiate athletics. examine each consid- already subject athletes at CU are separately. eration drug-testing program NCAA which man physical Because the condition of a stu- suspicionless dates urine of student primary athlete is a focus of intercol- dent view, my athletes. expectation athletics, legiate athletes are rou- privacy of respect student athletes with tinely physically examined to fit- determine by the intrusions occasioned a urine test Dimeo, compete. F.2d at greatly ness to See are diminished based on their vol (recognizing untary participation highly regulated that athletes must submit examinations); Schaill, area of athletics. frequent Skin medical Cf. ner, 489 U.S. at 109 S.Ct. at 1418 (stating physical at ex- 864 F.2d that (stating “expectations privacy integral athletic aminations employees by covered are diminished rea grams). private Unlike most citizens or industry son of their in an students, reasonably other student athletes regulated pervasively to ensure expect inquiry routine into their fitness. safety, goal dependent, in substantial Raab, Von S.Ct. Cf. part, on the health and fitness of covered part 1433. As of their annual medical ex- employees”); International Bhd. Team aminations, provide student athletes urine sters, (concluding 932 F.2d at 1300 that the samples under circumstances similar to privacy expectations of commercial truck drug-testing program. those used drivers are diminished because volun Throughout year, student athletes also tarily highly regulated enter a choose to undergo physical close contact with both Handel, profession); Shoemaker personnel trainers and medical (3d Cir.) (recognizing F.2d examined, being diagnosed, course of privacy expectations jockeys are dimin injuries potential injuries. treated for regulated ished because of the nature of O’Halloran, F.Supp. at 1005 See denied, sport), cert. (recognizing that in the context of athletic (1986). L.Ed.2d 580 examinations, viewing touching is to- among strangers lerated relative privacy expectations of student ath- contexts). firmly rejected would be in other respect to the intrusions occa- letes with continuing physical Based on this examina- urine test are also diminished sioned physical tion and close contact with train- atmosphere of because of the communal personnel, medical student athletes ers and commonplace in inter- locker rooms that is expectations privacy have diminished nature, By very collegiate athletics. respect to the intrusions occasioned setting consists of communal locker room Dimeo, a urine test. 943 F.2d at 682 undress, showering, and urination. See (stating 1318; O’Halloran, that is Schaill, affront to 864 F.2d sample context, giving caused of a urine In this it is diffi- F.Supp. at 1005. do slight people subject who are to fre- that student athletes cult to conclude examinations). privacy expectations quent not have reduced 962 athletes, group, as a have diminished sample for dent a urine submit

being required to unique their expectations based on privacy testing purposes. the interests CU Based on circumstances. it clear all make These considerations asserted, designed drug-testing has intercollegiate athletics that athletes to minimize for student from almost distinguishable quite privacy interests impact on their Schaill, at 864 F.2d activity. See other intrusiveness of the collection reducing the circumstances distinctive 1318. The drug testing contem- process. Because expectations athletes’ student diminish in this limited context does not con- plated beyond the however, do not extend privacy, infringement on the stu- an undue stitute group of identifiable limited privacy, I expectations of dent athletes’ including groups, athletes to other student interests out- that CU’s asserted conclude other as a whole. No collegiate students privacy concerns. weigh physical exami- routine subject to group regulation of nations, extensive submits govern- of the asserted The examination behavior, a communal encounters their privacy expecta- mental interests and atmosphere on a routine basis. room locker only step the initial under the test tions is factors, it of these a combination Based on pur- Supreme Court. delineated that student ath- to conclude implausible balancing these factors is to deter- pose of expectations privacy strong letes have require impractical it is mine whether submitting samples urine respect government to obtain warrant Schaill, at 864 F.2d testing purposes. suspi- some level individualized establish O’Halloran, 1319; F.Supp. at 1005. 679 permitted it is to conduct cion before Raab, 665-66,109 at 489 U.S. search. Von addition, designed drug- its has In 1390-91; Skinner, 489 U.S. at 619- at sig- S.Ct. student athletes testing program for 1414-15; Schaill, 20, F.2d at 864 pri- 109 S.Ct. impact on their nificantly minimize attempted to re- at 1313. has vacy interests. CU collection intrusiveness of the duce the case, the athletes do not In this view, ways.5 my cess a number probable a warrant or contend that either prescribed by CU for the procedures privacy the balance of cause is samples urine analysis of the collection does it governmental interests. Nor grave potential for arbi- carry do not such an assertion could with- appear that trary oppressive interference with Raab, at scrutiny. 489 U.S. stand See Von interests privacy individual’s 1391-92; Skinner, at 489 109 S.Ct. designed pre- Amendment was Fourth 1417; 624, 109 Colorado U.S. at S.Ct. cf Raab, 2, at 672 n. 109 489 U.S. vent. Von 738, Bertine, 107 S.Ct. 479 U.S. n. 2. at 1394 (1987)(stating 741, 739 93 L.Ed.2d peculiarly “is lim- probable-cause standard investigations”); Da- ited to criminal South Balancing Test Outcome 5, 364, 370 n. Opperman, kota impor- 3097 n. 49 L.Ed.2d has asserted 96 S.Ct. It is clear that CU Rather, (same). (1976) the student athletes justify interests to tant minimum, must, prem- at a that CU athletes and that stu- assert program for student Prouse, 99 S.Ct. drug-testing program, Delaware v. the intru- 5. Under CU’s Schaill, (1979); L.Ed.2d 660 privacy because there is no sion on is reduced drug-testing program is also urination. Von F.2d at 1320. direct observation of the act of Raab, designed athletes’ ex- assure that the student S.Ct. at U.S. at 672-73 n. 1394- Willner, 1189; Schaill, subject 2; the dis- pectations are not n. 928 F.2d charge program. provided by officials in the con- cretion of the Schaill, F.2d at The notice Finally, the urine F.2d at 1321. significantly the sub- also diminishes sent forms specified may testing by samples examined jective re- of the urine intrusiveness samples drugs, to test for other and the use of ducing "unsettled show of to a minimum The combination authority" may is not authorized. be associated with unex- Raab, procedures the intrusiveness privacy. reduces pected Von these intrusions on 2; expectations privacy. athletes’ n. the student U.S. at 672-73 n. 1394-95 suspicionless drug Because drug-testing program for student of in- ise its I suspicion. tercollegiate dis- student athletes in athletes on reasonable this con- reasonable, agree. drug testing pro- text is gram constitutionally permissible. Even view, suspicionless drug testing of my however, agree, I drug- were to that a in this limited context is student athletes testing program based on no individualized under the Fourth Amendment. reasonable context, suspicion was unreasonable in this important achieve the interests asserted To such a search nevertheless could consti- CU, necessary accurately detect it is to tutionally permissible based on the valid among the student athletes. As drug use consent of the student athletes.6 It however, suggested, it is the trial court necessary ques- therefore to examine the nearly impossible to ever establish reason- tion of the student athletes’ consent suspicion drug among use student able case. O’Halloran, F.Supp. at athletes. Cf. important 1006. The interests asserted placed jeopardy, therefore would be II goals and CU’s efforts to achieve these hampered, if it significantly were reading Based on its of the trial court point specific giving facts rise to a to to order, majority affirms what it charac- suspicion testing a stu- reasonable before “finding terizes as the trial court’s of fact” Raab, athlete. 489 U.S. at dent See Von that the individual student athletes within 1392; Skinner, 489 U.S. 109 S.Ct. voluntarily the certified class did not con- 1417, 1420, 624, 631, 633, 109 S.Ct. at drug-testing program sent CU’s for stu- 1421; Dimeo, 685; 943 F.2d at see also Maj. op. athletes. dent 947.7 As a re- Schaill, 1322; 864 F.2d at United cf. sult, majority reach does not the second Martinez-Fuerte, 428 U.S. States granted issue on which we certiorari. See 96 S.Ct. 49 L.Ed.2d 1116 op. maj. at 935. (1976) (noting requiring particularized disagree majority’s I Because with suspicion stops major before routine order, characterization the trial court highways near the U.S.-Mexico border the trial facts, and instead would find that court impractical). These com- would be concluded as a matter of law that no stu- with the diminished interests bined validly could consent to dent athlete implicated by drug testing of intercolle- compelled I athletes, drug testing program, am giate lead me to conclude student address the second on which we suspicionless drug testing of stu- I conclude that granted athletes in this limited context is a certiorari. would dent validly a student ath- may reasonable search. condition constitutionally per department’s drug program letic education as 6. A warrantless search is if an University missible under the Fourth Amendment individual student athlete has sented to conducted based on suspicion, participation a condition in the voluntarily con intercollegiate athletic of Colorado it, regardless of whether the search is undergradu- present as follows: Those limited cause, probable reasonable never ate student athletes who have tested suspicion or'no at all. See Schneck subject discipline positive or have been Bustamonte, loth v. result; positive test sanction as result of a (1973); generally Wayne see R. 36 L.Ed.2d 854 LaFave, athletes, who, present al- and those (1987 & 1993 § Search 8.1 Seizure waivers, though having executed consents or Supp.). majority’s conclusion that the con University agreements participate voluntary sent at issue in this case was not as object drug program, Colorado’s education negate elementary factual matter does not program being an unconstitutional con- as proposition that a warrantless search based on voluntary consent would be lastly, participation; and those dition constitutionally per undergraduate spective student athletes who suspicion. even absent reasonable missible waivers, agreements consents or will execute pursuant to C.R.C.P. 23 7. The class certified University participate in of Colorado’s consists of: object program, but who education undergraduate present prospective Those being unconstitutional con- subject to student athletes who are or will be participation. dition of University intercollegiate ath- of Colorado findings regarding validity athlet- of fact lete’s given by any consent knowing individual on a student athlete’s and vol- member ics Instead, the class. the trial court relied on program. untary to a consent the unconstitutional conditions doctrine to conclude as a matter of law that no student A validly athlete could consent drug- to a agree majority that as an testing program. court, appellate “we must defer to the trial finding sole factual made the trial findings on factual court’s issue the. regard court with to the consent issue re- clearly findings voluntariness unless its athletes, lated to all student and nowhere supported by erroneous or not the record.” in the trial court’s order is there a factual (citations omitted). Maj. op. at 946 This any determination that individual class deference, however, rule of is limited to give voluntary member failed to consent or findings factual contained in a trial court’s any way was in influenced duress or legal not to the order and trial court’s findings relating coercion.8 The factual conclusions, which we review de novo. majority consent that the actually defers to view, my majority In the answer- avoids appear trial within the court’s order as ing question granted the on which we cer- surpris- “conclusions of law.”9 This is not by erroneously characterizing tiorari the ing, injunctive because the broad relief legal ques- trial court’s conclusions on the granted by appropriate the trial court is findings Maj. tion of consent as of fact. only if the voluntary trial court decided the op. plain reading at 947. It is clear from a consent issue based on the unconstitutional of the trial court's order that it made no conditions doctrine.10 finding regarding enjoined conducting any drug-testing pro- In its factual the con- from issue, gram. sent the trial court stated: phases In all of the the student ath- injunction Such a broad-based would be war- sign letes have been a "consent" ranted if the student athletes’ unconstitutional participate form in order to case, conditions claim was valid. In such a the sign athletics. If student does not the form conditioning right represent of the CU on the may participate the student not in intercolle- signing preclude any consent form would giate University. athletics voluntarily consenting student athlete from reaching In the determination that the trial hand, drug-testing program. On the other findings clearly court’s factual are not errone- injunction inappropriate such a broad would be ous, majority acknowledge fails to represen- if the trial court believed that the class language it cites from the trial court's order is tatives, class, and therefore the did not volun- contained in the section labeled conclusions tarily drug- consent as a matter of fact to the entirely legal law and relate to the court’s trial case, testing program. drug-test- In such a may constitutionally that CU determination not enjoined program would have been as to the participation condition an athlete’s in athletics class, but not as to all student athletes. signing on the of a consent form. The trial Moreover, implausible it is to contend that the court concluded that: injunction trial court could have entered the as during produced The evidence this trial failed group "prospective undergraduate to the stu- given by to establish that the consents relying dent athletes" without on the unconstitu- University's voluntary. student-athletes are It It tional conditions doctrine. would have been they quite clear are "coerced" consti- for impossible for the trial court to conclude as a purposes by tutional that there can be fact group voluntarily matter of fact that this did not signed no in athletics without drug-testing program consent to the insofar as cited, consent. As in the cases the "consent” representative group appeared no before University obtained is not volun- stated, Simply the trial court. there are no tary. ... findings majority defer factual to on prospective of whether student ath- permanently enjoined 10. The trial court unspecified letes consented to an future random requiring any samples urine from student from drug-testing program. drug testing. athletes for the words, majority uphold opinion drug- The effect of the is to other the order struck down all legal they the trial determination that testing programs court’s relate to all student who, Thus, though they group just of individuals even and not class members. even yet they present have not considered whether wish to if CU could demonstrate that of its voluntarily participate in athletics or whether or future student athletes consented attend CU drug-testing program, CU would still be wish to consent to a random cannot suggest giving all be conditioned on their con- foregoing considerations as a matter concluded, sent to drug-testing program. a random the trial court law, disagree. given by consents voluntary and did were not student-athletes The unconstitutional conditions doctrine constitutional re- exempt CU from the not relied on reaching the trial court States and Colo- quirements of the United Perry v. Sin legal conclusion derives from Accordingly, I dis- rado Constitutions. dermann, unnecessary def- majority’s agree with (1972). Perry L.Ed.2d 570 stated: legal to the trial court’s conclusions erence though person “right” Even has no to a condi- and would reach the unconstitutional governmental and even valuable benefit squarely presented by tions issue both though government may deny him and the issue on which trial court’s order reasons, the benefit number of granted certiorari.11 we upon there are some reasons which the

government may rely. may It not B deny person a benefit to a on a basis that infringes constitutionally protect- his on An unreasonable search is nevertheless especially ed his interest interests — it is con- constitutionally permissible when speech. of freedom voluntary consent. ducted based on Id. 597, Bustamonte, 92 S.Ct. at 2697. The determina- 218, Schneckloth U.S. tion of whether the unconstitutional condi- 2041, (1973). L.Ed.2d 854 The 93 S.Ct. precludes from ever tions doctrine consent is not wheth- presented appeal on being balancing voluntary involves a of the student athletes volun- er certain individual governmental interests involved and the tarily consented to the will if consent benefit that be lost is not athletes, all gram of student but whether given. voluntarily cannot student athletes law, consent, as a matter of if their consent Supreme repeatedly The Court has held participation in inter- governmental signif is a condition of their far more that benefits intercollegiate The collegiate athletics. student icant than contend, concluded, waiving court that conditioned on and the trial athletics can be See, e.g., right. athletics exercise of a constitutional representing CU incapable voluntarily example, permanent program, of it is unclear to me how are consent- Only ing drug-testing program. injunctive granted relief could be in this case to random individuals, prospec- group the assistance of the unconstitutional con- with an entire of such as athletes, group have de- ditions doctrine could the trial court if no member of that tive student athletes, including the as clared that all student appeared the trial court or testified about before yet group prospective regarding undetermined experiences the vol- their individual athletes, giving incapable were consent as a of consent that would be obtained untariness matter of law. át some time in the future. See from them supra note on the issue of whether 11. We denied certiorari dictate that CU fairness should Fundamental decertify case as a class action. we should enjoined permanently from con- should not be Specifically, was: that issue drug-testing program ducting a random future, precluded athletes be nor should student appeals sustaining err in Did the court of program, long participating so as in such from grounds apply judgment class action that the student-athletes it can be established of the class. to a few members participate. voluntarily If we are consent to view, my our denial of certiorari on the In application going purposefully of the avoid justified at that decertification of class issue was in this conditions doctrine unconstitutional granted time because we certiorari to resolve case, question whether address the we should of consent issue on the basis the voluntariness representatives appeared and testified who conditions doctrine. of the unconstitutional typical all members the trial court are before majority, by refusing to decide the unconsti- The 23(a)(3) (stat- certified class. See C.R.C.P. of the issue, calls into doubt the tutional conditions may of a class that one or more members underpinnings original legal class certifi- parties of all representative on behalf sue as support contains no cation because the record representa- "only defenses of the if the claims or majority’s court’s deference to the trial for the parties typical the claims or defenses representative tive or "factual determinations” class”). typical the class. For of all of the members of 507, relief, States, claratory injunctive alleging Snepp v. United 444 U.S. (1980) (employ conditioning 62 L.Ed.2d 704 her on the S.Ct. AFDC benefits re- Agency Intelligence the Central ment with quirement she consent to visitation employee’s (CIA) on an can be conditioned right her Fourth violated Amendment be cen review and pre-publication consent free from unreasonable searches. concerning the any publication sorship of rejecting Mrs. Fourth Amend- James’s Comm’n States Civil Serv. CIA); United claim, Supreme ment Court stated: Carriers, Letter National Ass'n L.Ed.2d 796 S.Ct. U.S. forced the visitation itself is not or can con (1973) (government employment beneficiary’s compelled, and denial [ ] polit prohibition partisan ditioned on the permission is act. not a criminal If Wyman v. activity by employees); ical withheld, consent to the visitation no James, place. takes aid then visitation nev- (1971) (receipt of welfare 27 L.Ed.2d 408 ceases, begins merely er as the case recipient’s can be conditioned on benefits There may entry be. no of the home home); Selec inspection of consent to cf. no and there is search. Pub. Interest Sys. v. Minnesota tive Serv. 841, 104 Group, Research S.Ct. Id. at 385-86. (1984) (post-graduate 82 L.Ed.2d Supreme Court also added that “what Mrs. on draft aid can be conditioned financial appears to the agency want from James Fifth violating without registration provides her infant son and her privilege against Amendment self-incrimin right necessities for life re- ation).12 upon ceive those necessities her own infor- Wyman James is instructive on terms, mational to utilize Fourth conditioning participation issue of whether imposing a wedge Amendment as those in intercollegiate athlet- of student and to avoid of questions terms kind.” drug-testing a random ics on consent 321-22, Id. at at 387-88. S.Ct. condition. program is unconstitutional presented Wy- The factual situations involved a Amendment The case Fourth present analogous. man and the case are Depen- challenge to an Aid Families with Wyman The home visitation in (AFDC) requirement that de- dent Children designed drug testing in not this case are recipi- any program benefits to nied AFDC subsequent gather evidence in a for use a caseworker ent who refused consent to compli- prosecution, ensure criminal Wyman, of their “visitation” home. requirements respec- ance with the 311-12, Govern- at 91 S.Ct. at 382-83. However, programs.13 the benefit in- tive James, representatives ment informed Mrs. case, in intercol- volved benefits, she recipient of AFDC athletics, certainly less of rec- legiate her if refused to would lose benefits she at ognized interest than the benefit stake Id. to the visitation. consent Wyman, provided the loss brought She suit for de- of State “nec- at 383-84. S.Ct. Supreme and the NCAA.... Short of Court ties] overruling 12. Commentators view this line issue, ques precedent as on no Court determinative of itself the consent other raised"). conditioning participation in tion of whether intercollegiate amendment need be fourth issues signing athletics of a con on the drug-testing programs is constitu sent form for tionally permissible. E.g., Wyman stated: 13. & Alex M. Johnson investigation, home visit is a criminal Ritter, The not Legality Testing Student- James F. investigation, equate does not with a criminal Drugs Unique Con and the Issue Athletes sent, proceed- criminal and ... is not aid of (1987). commenta 66 Or.L.Rev. These discourage ing. If the visitation serves presently no constitu tors conclude there is fraud, byproduct misrepresentation such conditioning participation in this tional bar to upon impress that visit does not visit (stating id. at that "the manner. See 921-22 consent, investigative as- itself a dominant criminal approved under cir Court 'coerced has closely drug-test pect. analogous cumstances adopted Wyman, U.S. at 389. ing procedures Universi [various 14 Moreover, privacy- life.” essities for certainly lower than in this case is

interest The MAY DEPARTMENT STORES COM part PANY, I.B.2. supra corporation, in Wyman. See a New York d/b/a F, Petitioner, May D & drug testing is The consent to random for all student athletes at per se invalid rep- simply it is a condition of because of Colorado ex rel. Duane STATE intercollegiate ath- resenting the school WOODARD, Attorney of the General athletes remain free to letics. Student Colorado, Respondent. State drug-testing consent to the withhold their challenge the individually or to programs No. 92SC749. Alter- of their own consent. voluntariness Colorado, Supreme Court may decide to natively, student athletes En Banc. athletics at participate colleges or universities with Nov. 1993. their individual- programs more suitable to privacy. “The choice expectations ized Rehearing Denied Dec. [theirs], nothing of constitu- entirely Wyman, magnitude tional is involved.”

400 U.S. at

Ill questions

I would answer both affirmatively. granted we certiorari us, I conclude

In the limited context before intercol- suspicionless drug

legiate student athletes is reasonable Amendment of the

search under the Fourth II, and article States Constitution

United

section 7 of the Colorado Constitution. may validly

would also conclude that CU participation in

condition student athletes’ knowing on a

intercollegiate athletics

voluntary drug-testing pro- consent to Accordingly, I would reverse the

gram. appeals.

judgment of the court of joins in this Justice ROVIRA

Chief

dissent. that, legitimate expectation of con- is no repeatedly unlike cer- cause there Courts have held Bailey Truby, participation. 8, employment expectations tinued like continued tain (1984) S.E.2d 314-15 attending college, participation in W.Va. athletics therein. constitutionally protected cases collected interest be- is not a

Case Details

Case Name: University of Colorado Ex Rel. University of Colorado v. Derdeyn

Court Name: Supreme Court of Colorado

Date Published: Nov 1, 1993

Citation: 863 P.2d 929

Docket Number: 92SC86

Court Abbreviation: Colo.