Public schools generally can’t search students or their belongings unless they have a “reasonable suspicion” that the students have broken the law or school rules, and that the search will turn up evidence of that wrongdoing. Otherwise, the school runs the risk of violating the students’ rights under the Fourth Amendment to the U.S. Constitution.
Clearly, a drug test is a kind of search. And several courts have found that suspicion about an individual student’s possible drug use must be reasonable before school officials require that child to take a drug test. For instance, in a case where a charter school required any students to take a drug test or be expelled if there were rumors that they used illegal drugs, a federal judge found that the policy was unconstitutional. Cummerlander v. Patriot Preparatory Academy Inc., 86 F.Supp.3d 808 (S.D. Ohio 2015).
The reasonable-suspicion rule doesn’t always apply to drug testing in schools, however. The U.S. Supreme Court has established some important exceptions to the requirement, based on schools’ need to keep students safe.
The Supreme Court held in two separate cases that schools had not violated students’ Fourth Amendment rights by requiring drug tests for any student participating in athletics or any extracurricular activities. In the earlier case involving school sports, school officials had learned that athletes were leaders in the drug culture on campus, and they were concerned that drug use would increase the risk of sports-related injuries. That wasn’t true in the case involving all extracurricular activities, but the Court still found that the policy was a reasonable method for the school district to further its interest in preventing drug use among middle and high school students. Besides, the justices pointed out that students who failed or refused to take the test only risked losing the privilege of participating in extracurricular activities. (Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) and Board of Education v. Earls, 536 U.S. 822 (2002).)
Not for Everyone
School probably won’t get a pass on policies requiring all students to take drug tests, unless they have good reason to believe that the children’s safety is at risk. A federal appellate court found that a school violated students’ Fourth Amendment rights by conducting random searches of the entire student body and their belongings. As the court emphasized, these students hadn’t voluntarily traded their privacy for the privilege of participating in extracurricular activities—unlike the situation in Vernonia and Earls. They also faced a risk of criminal prosecution, because the school turned over any drugs it found to law enforcement. (Doe v. Little Rock School Dist., 380 F.3d 349 (8th Cir. 2004).)
Where Rights Are More Robust
If you live in a state that provides stronger privacy protections than the Fourth Amendment, you may be able to argue that a school’s drug testing program violates the state constitution, even if it only targets certain groups of students. Some state courts have struck down random drug testing of students who wanted to get parking permits, play school sports, or participate in other extracurricular activities. (See, for example, Theodore v. Delaware Valley School Dist., 836 A.2d 76 (Sup. Ct. Penn. 2003) and York v. Wahkiakum School Dist. No. 200, 178 P.3d 995 (Sup. Ct. Wash. 2008).
Calling in the Dogs
It may not be the same as peeing in a cup, but some schools bring in trained dogs to sniff out drugs on campus. Courts have generally allowed these practices when the dogs are sniffing backpacks, lockers, or the general environment on campus. (See, for example, In re D.H., 306 S.W.3d 955 (Tex. Ct. App. 2010).) But the random use of dogs to sniff students’ bodies may violate the Fourth Amendment. (B.C. v. Plumas Unified School Dist., 192 F.3d 1260 (9th Cir. 1999).)
Talking to a Lawyer
If your child is facing criminal charges based on a drug test at school, a criminal defense attorney should be able to advise you about possible defenses, the law in your state, and whether you might get the evidence excluded. And if you’re thinking of challenging a school’s policy on drug testing in order to get it changed or abolished, consider consulting a lawyer experienced in civil rights or law.