Drug Testing

It is important to note that drug testing of either students or adult volunteers involves weighing constitutionally-protected privacy rights against compelling state interests.

A. Students. The most important court decision governing a school district’s ability to conduct drug testing of students is the United States Supreme Court’s 1995 Vernonia School District 47J v. Acton (515 U.S. 646, 115 S.Ct 2386, 132 L.Ed.2d 564). This decision upheld an Oregon school district’s policy of requiring students wishing to play sports to sign a form consenting to drug testing and to obtain the written consent of their parents. Some of the significant factors in the Court’s decision were:

  • The expressed purpose of the policy was to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs.
  • The policy had been motivated by the discovery that athletes were leaders in the student drug culture and concern that drug use increases the risk of sports-related injury. The district had also demonstrated the reasonableness of its determinations on these points in the trial court.
  • The district had undertaken other, unsuccessful measures to achieve its goals.
  • The district had involved the community in the decision to adopt the policy. In fact, the parents in attendance at a special parent “input night” gave their unanimous approval.
  • Students athletes have a reduced expectation of privacy.

For California school districts, a 1979 opinion of the State’s Attorney General (62 Ops.Cal.Atty.Gen. 344) is also important. Consistent with the later-decided Vernonia case, the opinion concluded that:

“A school district may lawfully require as a condition to student participation in non-credit after-school athletic programs, that a student, and if the student is a minor, that the student’s parents or guardian, give written consent for the student to submit to unannounced urine tests for the presence of drugs, if the district has reasonable determined (1) that drug abuse by student athletes is occurring and does constitute a serious hazard to their safety while they are participating in athletic programs; (2) that the method of testing employed is designed to detect the types of drugs which constitute the hazard; and (3) that no effective, but less onerous method of preventing the drug abuse is available.”

The opinion, however, declined to answer “Could such a program could be extended to other after-school activities for which credit is offered and in which the risk of physical injury is minimal, i.e., band?” It did so because “Without more specific facts regarding the nature of the other activities, the kind of drug testing applied to them and the reasons therefore, we cannot determine the validity of such programs.” Significantly, the opinion also pointed out that the California Supreme Court has declared education to be a “fundamental interest” (Serrano v. Priest (1971) 5 Cal.3d 584). As reflected in the opinion, this means that there is a higher standard for California school districts seeking to require drug testing of their students than for districts in other states with respect to curricular or co-curricular activities. Considering the combined effect of both the federal and state law summarized above, we advise that:

  • Drug testing of students voluntarily participating in extracurricular (i.e., non-credit) athletic activities (including cheerleading) is permissible if the district satisfies all three of the requirements identified in that part of the Attorney General quoted above. As reflected in both Vernonia and the Attorney General opinion, it would not appear to be too difficult at this point in time to establish to a court’s satisfaction the safety hazard posed by drugs to students while participating in athletic programs. However, the district must also demonstrate that drug abuse by student athletes is actually occurring.
  • Drug testing of students participating other extracurricular activities is also permissible if the district meets the same requirements which apply to athletic activities. However, although both Vernonia and the Attorney General Opinion acknowledged the safety hazards posed by drug use in athletic activities, the safety hazards posed by drug use in non-athletic activities has not yet been so recognized either by the courts or the Attorney General.
  • Drug testing of students participating curricular or co-curricular activities is perhaps permissible if the district meets the same requirements which apply to athletic activities. Neither Vernonia nor the Attorney General Opinion addressed this issue. However, we must note that the athlete’s reduced expectation of privacy was central to the Court’s decision in Vernonia and that the fact that after-school athletics is not a “fundamental interest” was central in the Attorney General’s Opinion.
  • A district should only adopt a drug testing program only after seeking community (especially parental) support of that testing program.

B. Adult Volunteers. Based on Loder v City of Glendale (1997)14 Cal.4th 846, 59 Cal.Rptr.2d 696, and the U.S. Supreme Court cases it relies on, this office advises that drug testing of adult volunteers is permissible only if they perform safety-sensitive functions. If, as indicated in your question, the program were limited to testing of volunteers transporting students in school vehicles, this would meet that requirement. However, as reflected in the discussion of student drug testing above, consideration must be given to both the necessity of drug testing and its efficacy. In this regard, the district should also consider whether there are other, less-intrusive ways of ensuring that a volunteer who drives a district vehicle on an occasional is fit to do so on those particular occasions.

C. Conclusion. Considering the consequences of violating constitutionally-protected rights, before adopting a drug testing program for any group of students–even those participating in after-school athletic activities–or adult volunteers, the program and the reasons for adopting it should be reviewed by this office. That review would be concerned with ensuring that there is a demonstrably reasonable basis for adopting the program and that the program itself is designed to be as minimally intrusive as possible. Any program adopted must also ensure that the confidentiality of information produced by the program is maintained.