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2004 Opinions

June 11, 2004
Jason K. Fudge
(850) 245-0442
205-0442
04-05
Jason K. Fudge
Date:
Prepared By:
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Suncom:
Opinion No.:
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Memorandum Opinion

To:

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Subject:
Charles D. Bailey, Esquire
Counsel for Sarasota Military Academy
Daniel Woodring
General Counsel
Constitutionality of Drug Testing Policy at Sarasota Military Academy

Question Presented: Can the Sarasota Military Academy (SMA), a public charter school, require random suspicionless drug testing of all cadets?

Answer: It appears the Sarasota Military Academy can institute a random suspicionless drug testing policy for cadets that would satisfy the three part test enunciated in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S.Ct. 2559 (2002)l.

Background

The constitutionality of conducting random suspicionless drug testing is governed by the Fourth Amendment. It protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S.Ct. 2559, 2564 (2002).

The Fourteenth Amendment applies the strictures of the Fourth Amendment to searches and seizures conducted by public school officials. Id. It has been determined that “the collection and testing of urine” is a search within the meaning of the Fourth Amendment. Vernonia School Dist. 47J v. Acton, 115 S.Ct. 2386, 2390. The warrant and probable cause requirements can be dispensed with where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement. National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384 (1989). The public school environment provides the requisite special needs. See Vernonia, 115 S.Ct. at 2391. “[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” New Jersey v. T.L.O., 105 S.Ct. 733, 735 (1985).

Reasonableness Test

The Earls court noted that Vernonia “did not simply authorize all school drug testing, but rather conducted a fact-specific balancing of the intrusion on the children’s Fourth Amendment rights against the promotion of legitimate government interests.” Earls, 122 S.Ct. at 2565. The three part test examines the nature of the privacy interest, the character of the intrusion imposed by the policy, and the nature and immediacy of the government concern and the efficacy of the policy in meeting them. Id.

Previously the Department had issued opinion No. 01-23, in which the Department advised that it would be unconstitutional for a charter school to require parents to sign an authorization allowing the school to perform random drug testing on students. Since that opinion the Supreme Court has held that a policy requiring all students who participate in competitive extracurricular activities to submit to drug testing was constitutional. See Earls, 122 S.Ct. at 2569. Consequently, a fact-specific analysis of the random suspicionless drug testing program proposed by SMA is appropriate.

Nature of the Privacy Interest

“A student’s privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety.” Earls, 122 S.Ct. at 2565. In Earls, the court noted that the distinction noted in Vernonia School Dist. 47J v. Acton, 115 S.Ct. 2386 (1995), that students were subject to regular physicals and communal undress, was not essential to the decision in Vernonia “which depended primarily upon the school’s custodial responsibility and authority.” Earls, 122 S.Ct. at 2565. However, the court noted that “students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes.” Earls, 122 S.Ct. at 2565-2566. The court reiterated that “[s]omewhat like adults who choose to participate in a closely regulated industry, students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and priviledges, including privacy”. Earls, 122 S.Ct. at 2566, quoting, Vernonia, 115 S.Ct. 2386.

Like the students who participate in extracurricular activities, the students at Sarasota Military Academy affected by this policy have a limited expectation of privacy.1 First, students choose to attend SMA and expose themselves to a more rigorous curriculum both mentally and physically. Second, the students at SMA are required to “dress out” in a designated physical training uniform for JROTC class. In addition, there are a variety of daily elective classes (cadets are required to enroll in at least one elective class each school year) that require cadets to “dress out” in their issued physical training uniform. See Vernonia, 115 S.Ct. at 2393 (finding that “[b]y choosing to ‘go out for the team,’ they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.”).2

Character of the Intrusion

The second part of the test is the character of the intrusion imposed by the policy. The court held that “[g]iven the minimally intrusive nature of the sample collection and the limited uses to which the test results are put, we conclude that the invasion of students’ privacy is not significant.”3 One factor relied upon by the court was that the test results did not lead to the imposition of discipline or have any academic consequences. Earls, 122 S.Ct. at 2566-2567. At SMA the result of a failed drug test would lead to an intervention program. Only if the cadet fails the intervention program or refuses to participate in the intervention program, would SMA require the cadet to return to his/her district school. Upon return to the district school, the student would have the same academic opportunities available to students at SMA. Upon return to the district school, which does not have a drug testing policy, the student would be able to resume JROTC and other extra-curricular activities. The only loss to the student would be the unique extra-curricular activities offered by SMA. In essence, these students are similarly situated with other students that lose extra-curricular privileges. See Earls, 122 S.Ct. at 2567 (“[T]he only consequence of a failed drug test is to limit the student’s privilege of participating in extracurricular activities.”).

Nature and Immediacy of the Government Concern

The program established by SMA, which is designed to prevent and deter drug use, can satisfy the third part of the test. Earls, 122 S.Ct. at 2568 (stating that “[t]he need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Indeed, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use.”). Likewise, it would make little sense to require SMA to experience a drug problem among its cadets before it could institute a drug policy designed to protect the health and welfare of those cadets.

Conclusion: The Sarasota Military Academy can institute a drug testing policy for cadets that would satisfy the three part test enunciated in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S.Ct. 2559 (2002).4


1SMA should inform parents and students, prior to enrollment in SMA, of the drug testing policy.

2In Earls, the court stated that a finding that the drug problem was “fueled by the ‘role model’ effect of athletes’ drug use,” was not essential. While it is not essential it should be noted that at the Academy every student is a role model. Every student is required to participate in JROTC which fosters self confidence, self discipline, leadership, motivation, self control, personal responsibility, integrity, loyalty, dedication, and self esteem.

3When instituting the drug testing policy, SMA should follow the example enunciated in Earls, regarding collection of samples and confidentiality of the test results.

4The drug testing policy would also comply with the Florida Constitution. See art. I, § 12, (“this [right of the people to be secure . . . against unreasonable searches and seizures] shall be construed in conformity with the 4th Amendment to the United States Constitution as interpreted by the United States Supreme Court.”); see also State v. Jimeno, 588 So.2d 233 (Fla. 1991)(holding that “our right of privacy provision, article I, section 23, does not modify the applicability of article I, section 12, particularly since section 23 was adopted prior to the present section 12.”)

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