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2001 Opinions

Date:   November 28, 2001
Prepared By:   James A. Robinson
Phone:   (850) 488-7707
Suncom:   278-7707
Opinion No.:   01-23
Staff Contact:    
MEMORANDUM OPINION
TO: Mr. Arthur S. Hardy, Esquire
FROM: James A. Robinson, General Counsel
SUBJECT: Random Drug Testing in Charter Schools
RE: Your e-mail and telephone call on November 16, 2001

QUESTION PRESENTED: Whether a charter school may require parents to sign an authorization allowing the school to perform random drug testing on students.

CONCLUSION: No. Such practice would be unconstitutional.

DISCUSSION: A charter school is fully recognized as a public school. See Section 228.056(1), F.S. Charter schools are required to meet all applicable state and local health, safety, and civil rights requirements. See Section 228.056(9)(e), F. S. Charter schools are required to admit students as provided in Section 228.056(6), F.S. It appears to us that charter schools would be governed by the same laws as public schools with respect to random drug testing of students.

The United States Supreme Court has developed the "special needs" exception allowing drug testing in the absence of reasonable suspension of drug use when the government identifies a special need that makes adherence to the normal warrant and probable cause requirements of the fourth amendment improper. In the school context, the existence of a "drug culture" led by student athletes was held to justify a random testing program of that component of the student population. See Vernonia School District v. Acton, 515 U.S. 646 (1995). Special needs cases require the courts to balance the competing interests of the school in controlling student drug use against student privacy interests. Concern for safety and school supervision does not justify random testing. See Earls et al. v. the Board of Education of Tecumseh Public School District, 242 F. 3rd 1264 (10th Cir. 2001).

The issue arises as to whether these legal obstacles would be avoided by virtue of unanimous parental consent. Here, the problem would arise in a case of a future eligible student whose parents refused to sign the consent. The parents would have a right to object to any search which did not comport with the principles articulated by the above-cited cases.

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