The technology used to detect illicit drug use continues to grow ever more advanced. In July it was reported that British firm Intelligent Fingerprinting was on the verge of introducing a product designed to detect drug activity based on the “sweat” (metabolites) present on a person’s fingerprints. The test is purportedly able to detect whether an individual is actively intoxicated by a drug at the time the fingerprint test is administered,  as opposed to traditional testing methods, which can only reveal the presence of a drug taken at an indeterminate point in time preceding the test (for instance, because THC is fat soluble marijuana ingestion can traditionally be detected weeks or months following occasional use). Yet while the new fingerprint test may represent a breakthrough in drug detection, our preoccupation with technological advancement often obscures a larger question—whether the use of such technology is appropriate at all in certain contexts.

The question of appropriateness looms large for the student body at Linn State Technical College (Linn, MO) where, beginning with the Fall 2011 semester, every entering student (and students returning from a semester or longer absence) is required to submit to a drug screening to detect the presence of up to 11 drugs, including cocaine, amphetamines, and marijuana. The screening policy was challenged by the ACLU in a complaint filed in September and a judge this past Wednesday extended a temporary restraining order in order to assess the legal merits of the policy. Drug testing at colleges and universities is nothing new. See Morale v. Grigel, 422 F. Supp. 988 (D.N.H. 1976) (challenging search of student’s dorm room for marijuana possession); University of Colorado ex rel. Regents of the Univ. of Colo. v. Derdeyn, 863 P.2d 929 (Colo. 1993) (challenging the constitutionality of a state university’s urinalysis drug testing program of student athletes). What is new is a drug screening policy of Linn State’s scope, for all school drug test protocols that have been upheld thus far have been limited to a specific subset of a student body, such as competitive athletes. No court approved school drug policy has involved the testing of an entire student body.

In assessing the legality of the Linn State program, the case of Bd. of Educ. v. Earls, 536 U.S. 822 (2002), the last opportunity the Supreme Court had to address the issue of school drug testing, is instructive. While Earls concerned the screening of high school students, it nonetheless is illustrative of the factors the Supreme Court considers when evaluating student drug testing. The case is also noteworthy in that it concerned the testing of all students engaged in extracurricular activities of any sort (as opposed to just athletes or individual students of whom school officials have reasonable suspicion used drugs).  At issue in Earls was whether the drug testing policy at the Tecumseh, Oklahoma School District complied with the Fourth Amendment, which protects individuals from unreasonable searches and seizures. In upholding the drug screening, the Court balanced student privacy rights against the school’s interest in safety and student discipline.

The Court’s opinion, authored by Justice Thomas, first considered the students’ privacy interests affected by the drug screening and found the intrusion reasonable given that the screening was performed on behalf of the public school system, which acts as “guardian and tutor” of children entrusted to its care. The Court then considered the nature of the intrusion posed by the drug policy, which the Court found to be mitigated by the fact that the results of the drug testing are kept confidential, do not affect a student’s academic assessment, and are not turned over to law enforcement authorities. Additionally, the Court found the level of intrusion minimized since students engaging in extracurricular activities voluntarily submit to rules and policies separate from those imposed on the student body as a whole. These factors caused the Court to deem the nature of the testing “minimally intrusive.” Finally, the Court evaluated the purpose of the school district in enacting its screening policy (preventing, deterring, and detecting drug use) and the fit between the stated purpose and the efficacy of the school district in achieving that purpose. On this point, the Court placed weight on the school district’s findings, which consisted in part of the testimony and observations of teachers, police officers, and students describing the drug use and behavior of fellow students.

Aside from the different populations involved (high school vs. college students), the drug testing at Linn State far exceeds and is clearly distinguishable from that of the Tecumseh school district. While the Court in Earls placed special emphasis on the relationship of entrustment formed between a public school and its students, the drug testing at Linn State is performed on adults who voluntarily attend the school (in contrast to the compulsory nature of lower education). The students at Linn State come and go as they please and do not live on campus. Further, the nature of the privacy interests are different because the testing at Linn State includes all entering students, regardless of whether they voluntarily relinquish privacy by engaging in extracurricular activities. Additionally, there lacks a close nexus between the purpose of the drug testing at Linn State (to promote student safety in the face of the physical dangers posed by programs such as aviation maintenance) and its efficacy since the college requires the testing of students who are earning degrees in such non-dangerous fields as accounting or communications. In this light, while the goal of promoting student safety is commendable, the extremely broad scope of the drug screening policy at Linn State Technical College is troubling to many, students and non-students alike.

– Ian Quin

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9 Responses to College Drug Testing…of Entire Student Body?

  1. Kevin Lumpkin says:

    It’s interesting to consider the notion that since students can always choose not to enroll at Linn State, perhaps that makes the mandatory drug testing less offensive to the Constitution. It’s especially interesting because all of the Fourth Amendment scenarios I can think of involve non-voluntary interactions with the state.

    I’m not sure that voluntariness should factor into it, however. The test for whether a warrantless search is justified under the Fourth Amendment doesn’t leave a lot of room for practical considerations like “well, you could just go to another college.” After all, if you take the argument to its most extreme conclusion, it becomes “well, you could just move to another country and not be subject to interaction with the U.S. government at all.”

    • Mike Walker says:

      Kevin, I think voluntariness should factor into the analysis. The question is, which way does it cut?

      In Earls, the Court was persuaded by the fact that the students voluntarily exposed themselves to over-night field trips and “communal undress,” presumably reducing their expectations of privacy. Here, by contrast, students are voluntarily exposing themselves to college life, but that doesn’t automatically carry a reduced expectation of privacy.

  2. David Rutenberg says:

    Ian, this is a fantastic post with a great depth of analysis. Something I wonder in regards to this policy and its relation to Earls is the voluntary nature of attendance at Linn. While I agree that the role of a public high school is different from that of a public college, it seems that the compulsory nature of high school cuts against universal drug testing. The voluntary nature of attendance at Linn seems to suggest that students sign off on the drug testing since there are potentially other schools to attend. The question then is whether the state also offers similar programs at other schools that do not require drug test. Regardless, the public expenditure of these funds for purposes of “safety” may be better spent elsewhere.

  3. Ian Quin says:

    Thanks Megan, you make some great points.

  4. Ian Quin says:

    Kevin, my sentiments exactly. While the promotion of student safety is a noble goal, Linn State’s drug testing protocol sweeps too broadly. Key to the Court’s analysis in Earls was that the school district’s drug testing policy only affected a specific subset of the overall student population (those participating in extracurricular activities). The Court explained, “All of them [extracurricular activities] have their own rules and requirements for participating students that do not apply to the student body as a whole.”

    Further, it would be easy for the administration at Linn State to differentiate among the student body based on the administration’s safety concerns. The college can define which courses warrant drug testing and then identify the covered students based on enrollment. Professors can also make an announcement at the beginning of the semester explaining that enrollment in a safety intensive course requires submitting to a drug screen.

    Finally, if the stated goal is to promote student health and safety why is the testing only performed on entering or returning students? An enterprising student could easily circumvent the policy by passing the initial screen and then resume drug consumption. One would think that an effective policy would seek to curb more than initial drug use.

    • Nick says:

      Interesting new technology which could have a broad affect on law enforcement throughout the country as well. Being able to perform a quick scan to see if someone is CURRENTLY under the influence is huge, as many drugs (like marijuana) are difficult to detect if the user is currently under its effects. As the article mentions, it can stay detectable for weeks or months after use.

      To Ian’s Response:

      “why is the testing only performed on entering or returning students? ”

      I think this goes to the idea of fair notice. Current students of the university did not begin their attendance with this drug testing policy in place. However, all new (entering or returning after more than a semester off) students are entering the university with full knowledge that this is the new University Policy. If they disagree with being drug tested then they have the option to attend another college, while currently enrolled students cannot so easily switch.

  5. Michael Dearington says:

    Ian – This post reminds me a lot of a different, yet relevant issue: Prompted by concerns over state spending, many states have recently considered or enacted laws that would require drug testing before an individual receives certain state benefits like welfare, food stamps, public housing, or unemployment assistance. (See for NYT article.) This seems relevant to the Linn State debate because Linn State is a public school, but, as you mentioned, is not compulsory like lower education. Similarly, welfare programs are entitlements that are of course not compulsory, but are state-backed, like a public school undergraduate education (such as that provided by Linn State). (The public assistance testing situation is especially troubling to civil liberty unions because it targets the poor.) Like in the Linn State situation, there will need to be a showing of a special state need that outweighs the intrusion, and a court would surely scrutinize the record and the special state need at stake. For instance, in Florida last Monday, a federal district court judge enjoined a Florida law requiring that those receiving public assistance be drug tested, deeming it an unconstitutional intrusion that needs to cease until the court makes a determination about whether there is a “special need” for the drug testing. Very informative and thought-provoking post!

  6. Megan says:

    This is a great post Ian. I agree with your conclusions on why the Linn State situation is distinguishable from the Court’s conclusions in Earl. Like Kevin said above, the key difference to me is the distinction between high school students who are minors in the (temporary) care of the state unlike adults attending a university. In addition, the Linn State policy definitely seems to lack a close nexus between the government interest and the means (the drug testing of all students).

  7. Kevin Lumpkin says:

    Great analysis Ian. I think the court stretched just about as far as it could in the Earls case to find a justification for the drug testing. The fact that Linn State’s policy covers all students is really pushing the Fourth Amendment too far. A lot of Fourth Amendment opinions I’ve read go out of their way to distinguish the opinion’s holding from the 1984-esque scenario where everyone is subject to a baseless search. It would be hard to include such a caveat in an opinion about Linn State, because their policy is pretty close to the 1984-esque scenario!

    I also think it’s worth making a bigger point out of the difference between high school and college students. One of the key premises of a lot of Bill of Rights cases with respect to high school students is that the school is in a unique position because the students are mostly minors, and the school is in a big position of responsibility for the care of the students. You can’t say the same thing about a college – college students don’t get the low-fat brand of the Bill of Rights, they get full flavor. That alone could be a distinction that flips the decision.