The right of school officials to test students for illegal drug and alcohol use is a hotly debated topic. Constitutional issues of privacy lie at the center of the debate: whether students can be forced to submit to medical examinations and specimen testing, and whether school officials can inspect students' personal belongings. Although the United States Supreme Court has issued landmark decisions on these issues, the United States Court of Appeals for the Third Circuit was recently asked to test the boundaries of students' constitutional protections.
Consistent with the United States Supreme Court rulings, the Third Circuit upheld the authority of school officials to force a student to submit to blood or urine testing and to search a student and his or her personal property provided that school officials have reasonable suspicion and the search is reasonable at its inception and in scope. In the matter of Hedges v. Musco, (3rd Cir., Feb. 22, 2000), T.H., a student at the Northern Highlands Regional High School ("NHRHS"), was observed by her classroom teacher to be uncharacteristically talkative. She appeared flushed with glassy, red eyes and her pupils were dilated. T.H.'s speech, however, was not slurred and she did not smell of marijuana. T.H. asked permission to get a drink of water but, upon leaving the classroom, she turned in the direction opposite of the water fountain. The teacher testified that this was inconsistent with her normal behavior and he suspected drug or alcohol use.
The substance abuse policy1 adopted by the Board of Education of the NHRHS provides that when a staff member believes a student may be under the influence of drugs or alcohol on school property, he or she must report the matter to the building principal who shall inform the school nurse. The student is escorted to the nurse for an examination of his or her vital signs. The student's parents or guardians are notified and an immediate, more thorough medical examination of the student is arranged in order to determine whether the student has engaged in drug or alcohol use. This examination must be conducted before the student is readmitted to his or her educational program. The examination may be performed by a physician selected by the student's parents or guardians at their expense, or by the school physician at Board expense. In addition, the policy provides that students reasonably suspected of being under the influence of drugs or alcohol may be subjected to a search of lockers and book bags.
According to District policy, T.H.'s classroom teacher contacted the building principal, and T.H. was escorted to the school nurse. The school nurse observed that T.H. had glassy, red eyes, and appeared to be "totally out of it" on drugs. A check of T.H.'s vital signs revealed that she had high blood pressure, but a normal pulse and respiration. The school nurse testified that T.H. did not offer any explanation for her uncharacteristic appearance. When asked by the school nurse for her parents' phone number, T.H. could not recall this information. The phone number was eventually located and T.H.'s father, Mr. Hedges, came to the school.
Although nothing incriminating was found in T.H.'s locker, a search of her book bag revealed an old pill bottle containing two unidentified pills which T.H. identified as diet pills.2 Mr. Hedges, however, informed the school that he knew that T.H. was not on a diet. Mr. Hedges was then told that T.H. had to be tested for drug and alcohol use before returning to school. Mr. Hedges took T.H. for blood and urine testing at Urgent Care, an outside facility used by the school.
The following day, the school nurse contacted the Urgent Care facility for the results of T.H.'s blood and urine tests. The tests were negative, and T.H. was readmitted to school. T.H. later learned that students had overheard the school nurse discussing her test results over the phone, and rumors of her suspected drug and alcohol use were circulating. Although the tests were negative, T.H. testified that she believed that the other students thought she had done something wrong, and that she lost friends and baby-sitting jobs as a result.
The Hedges filed a Civil Rights action against the principal, T.H.'s classroom teacher, the school nurse, and the NHRHS Board of Education, alleging that T.H. was subjected to an intrusive search, including the testing of bodily fluids, without reasonable suspicion in violation of State and Federal constitutional protections against unreasonable search and seizure. The Complaint also alleged that the disclosure of the test results to students violated T.H.'s right to privacy.
Protections Against Unreasonable Search and Seizure
In T.L.O. v. New Jersey, 469 U.S. 325 (1985), the United States Supreme Court held that the Federal Constitution prohibits unreasonable searches and seizures by state officers, and that the Fourteenth Amendment extends this protection against encroachment to public school students. The Supreme Court, however, also decided that the "probable cause" standard applicable to warrantless searches was inappropriate in a school setting. Rather, the legality of a search of a student depends on the "reasonableness" of the search under all the circumstances. Whether a search is "reasonable" depends on: (1) whether the search is justified at inception, and (2) whether the search is reasonably related to the scope of the circumstances which justified the interference in the first place. In other words, there must be reasonable grounds for suspecting that the search will turn up evidence that the student violated the law or the rules of the school, and the measures adopted by the school must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
Applying this test to the matter of T.H., the Third Circuit found that the suspicion of school officials that T.H. was under the influence of drugs was reasonable and the search was justified at its inception. Specifically, the Court stated:
[T.H.] may not have possessed every characteristic that may be exhibited by a person who has consumed alcohol or other drugs, but the symptoms she did manifest created a reasonable suspicion that she had consumed some quantity of alcohol or other drugs. [The classroom teacher] had reasonable grounds for suspecting that a further and more comprehensive evaluation of [T.H.] might produce evidence of such consumption.
The United States Supreme Court has stated, "articulating precisely what 'reasonable suspicion' mean[s] is not possible," and courts have struggled to provide local boards of education with guidance. Ornelas v. United States, 517 U.S. 690, 695 (1996). In New Jersey, however, courts have overwhelmingly upheld student searches as reasonable. See State v. Moore, 254 N.J. Super. 295 (App. Div. 1992) (references to a student having "a bag," together with prior incident involving student's possession of a burned marijuana cigarette, justified search of student's knapsack); State v. Biancamano, 284 N.J. Super. 654 (App. Div. 1995) (search upheld where confidential informant told school officials that fellow student was dealing drugs on school premises); Desilets v. Clearview Reg'l Board of Education, 264 N.J. Super. 370 (App. Div. 1993) (policy requiring the search of all student hand luggage carried on field trips upheld as reasonably related to school district's duty to provide discipline, supervision and control). The Third Circuit decision in T.H. continues this trend.3
Moreover, the T.H. Court found that the scope of the search was reasonable and not excessively intrusive. The examination by the school nurse was limited to an observation and check of T.H.'s vital signs. T.H.'s appearance and inability to recall her parents' phone number, together with the discovery of unidentified pills in T.H.'s bag, then provided school officials with additional justification for requiring a blood test and urinalysis. See T.L.O., 469 U.S. at 347 (escalating searches are justified if the discovery of new evidence warrants them).
Considering the nature of the infraction, the objective of the search, and in light of T.H.'s age and sex, the Court upheld the blood test and urinalysis as reasonable and not excessively intrusive. With respect to the urinalysis, the degree of intrusion depends on the manner of specimen collection. SeeM Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). If the conditions of the testing are similar to those found in public restrooms, the United States Supreme Court has found that the privacy interests compromised by the process of obtaining the urine sample are negligible. Id. In the matter of T.H., a nurse from the Urgent Care facility explained the procedures that were followed for collecting T.H.'s urine:
The patient would be sent to the lavatory, where the water has previously been turned off ... The patient takes the large container and goes into the restroom and fills it up ... They bring it back into the room ... I check the temperature on it, then they pour it into the containers ... the patient goes into the bathroom with the cup by themselves. We don't go in with him - with them.
Based on the standards set forth in Vernonia, the Third Circuit found that the urinalysis performed on T.H. was not excessively intrusive.
The Third Circuit also upheld the blood tests performed on T.H., relying on United States Supreme Court precedent. E.g. Schmerber v. California, 384 U.S. 757 (1966); Skinner v. Railway Labor Executives Assn., 489 U.S. 602 (1989). Again, the Court considered the nature of the infraction, the testing conditions, and T.H.'s age and sex in reaching this decision.4
In sum, the Third Circuit granted summary judgment to NHRHS school officials and dismissed the Complaint in its entirety. The Court found that the searches conducted by the school in this instance were reasonable under all the circumstances.
Privacy Rights
The Hedges family also alleged that T.H.'s right to privacy was violated when the result of the specimen tests were inadvertently disclosed by the school nurse. The Court disagreed, noting that the constitutional right to privacy protects two types of privacy interests: (1) the individual interest in avoiding disclosure of personal matters, and (2) the interest in independence in making certain important decisions. See Whalen v. Roe, 429 U.S. 589 (1977). However, finding no nexus between T.H.'s alleged injury and the inadvertent disclosure of the test results by the school nurse, the Court declined to reach the determination of whether T.H. was entitled to constitutional privacy protection in this instance. The Court found that the inadvertent disclosure of the test results was not the proximate cause of T.H.'s alleged loss of friends or employment (especially in light of the fact that the results were negative), and any alleged damage stemmed from the general fact that T.H. had been suspected of drug and alcohol use. To the extent the disclosure of the test results had any effect, the Court held that it would be to mitigate T.H.'s damages. The Court, therefore, granted the District summary judgment on this issue, dismissing T.H.'s privacy claim.
Conclusion
The T.H. decision represents a significant victory for school boards in their ongoing effort to prevent and curb student use of drugs and alcohol. In strongly affirming the authority of school officials to conduct student searches, the Third Circuit gives greater protection to intervention efforts. As long as their actions are reasonable at inception and in scope, school officials can conduct student searches without running afoul of the Constitution.
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1 School districts are obligated to adopt policies and procedures that are both preventative and designed to handle instances of substance abuse. See N.J.S.A. 18A:40A-1 et seq.; N.J.A.C. 6:29-6.3. Although the Hedges attempted to argue that the policy adopted by the NHRHS was overly vague and, as such, unconstitutional, this claim was readily dismissed.
2 In possessing these pills (which turned out to be diet pills and vitamins), T.H. violated a separate NHRHS policy prohibiting the possession of unregistered medication on school grounds.
3 However, where schools have attempted to justify searches on less than reasonable suspicion, the searches have been held to violate students' constitutional rights. E.g. Willis v. Anderson Community Sch. Corporation, 158 F.3d 415 (7th Cir. 1998) cert. denied, 119 S.Ct. 1254 (1999) (policy requiring drug and alcohol testing of all students suspended for fighting held unconstitutional).
4 It should be noted that blood testing is permitted even where less intrusive means of ascertaining whether a student has consumed alcohol are available, e.g.: saliva strips, breathalizers. The United States Supreme Court did not hold that the search must be the least intrusive way of achieving its objectives; it held only that the search must not be excessively intrusive. See T.L.O. 469 U.S. at 342.
