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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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