Date: 08-16-2002

Case Style: Michael Joye, et al. v. Hunterdon Central Regional High School Board of Education, et al.

Case Number: a3017-00

Judge: Stern

Court: New Jersey Superior Court, Appellate Division

Plaintiff's Attorney: J. C. Salyer argued the cause for respondents Krovatin & Associates and American Civil Liberties Union of New Jersey Foundation, attorneys; Ravinder S. Bhalla, Edward Barocas and Mr. Salyer, on the brief).

Defendant's Attorney: Kevin Kovacs argued the cause for appellants Purcell, Ries, Shannon, Mulcahy & O'Neill, attorneys; Mr. Kovacs and Rita Barone, on the brief).

Description: Defendants, Hunterdon Central Regional High School ("Hunterdon Central") and its Acting Superintendent of Schools, Judith Gray, appeal from a judgment entered on January 29, 2001, declaring the policy concerning drug and alcohol testing of students at Hunterdon Central in violation of the New Jersey Constitution and enjoining defendants from implementing what the parties both call "random" substance testing at Hunterdon Central.

The challenged policy expanded a prior testing program and was established for the 2000-2001 school year, to cover "students engaged in extracurricular activities and students with permits to park on campus." Because the proofs did not show drug use above the national norm or that the "targeted" group exceeded use by other students, the trial judge issued a preliminary injunction, and, according to defendants, "the parties agreed to the entry of a final order permanently enjoining the policy so as to permit an appeal expeditiously." The trial court held that "[t]he random drug testing [program] is an invasion of the student's right to privacy and constitutes an unreasonable search and seizure under the New Jersey Constitution." The judge noted that "[o]n numerous occasions New Jersey's courts have held that the State Constitution affords greater protections from unreasonable searches and seizures than does the Fourth Amendment of the United States Constitution," and concluded that "[i]n light of the heightened privacy rights under the New Jersey Constitution and the lack of a substantial special need requiring random suspicionless testing, the Hunterdon Central Policy cannot continue [and that] [a]bsent evidence of a special need, suspicionless drug and alcohol testing violates student[s'] rights to privacy."

Plaintiffs contend that the judge's legal analysis was correct, that "special needs" were not demonstrated and that defendants' testing policy constitutes an invasion of privacy and unreasonable search and seizure under the State Constitution. The defendants argue:

[T]he Trial Court incorrectly determined that the New Jersey Constitution affords greater protection in this area than the United States Constitution. Second, the Trial Court inappropriately clothed extracurricular activities with near constitutional protections. Third, the Trial Court also failed to recognize the diminished constitutional rights of public school students. Finally, the Trial Court's holding that random drug testing cannot proceed unless a school's drug problem exceeds the national norm and the targeted group of students uses drugs more than the general population of students is bad law, bad policy and impractical.

In this case, students, with parental consent, voluntarily agree to undergo random testing as a condition precedent to participation in extracurricular activities. Accordingly, any claimed constitutional infringement has been freely waived. In the alternative, under the appropriate "special needs" balancing test the notable goal of deterring drug use certainly outweighs the minimal intrusion of a confidential urine analysis.

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Although all the students originally named in the complaint have graduated, the case involves a significant question of public importance involving a program the defendants still seek to implement, and we have elected to decide the issue addressed by the trial judge. See, e.g., IMO Application for Commitment of Geraghty, 68 N.J. 209, 212 (1975); Advance Electric Co., Inc. v. Montgomery Twp. Bd. of Ed., 351 N.J. Super. 160, 166 (App. Div. 2002). Cf. Chandler v. Miller, 520 U.S. 305, 311 n.2, 117 S. Ct. 1295, 1300 n.2, 137 L. Ed.2d 513, 522 n.2 (1997).

There is no dispute before us that the drug testing program involved in this case would not violate the federal constitution. Plaintiffs so conceded in a letter addressed to us following the decision in June of the United States Supreme Court in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, __ U.S. __, 122 S. Ct. 2559, __ L. Ed.2d __ (2002), which held that random suspicionless drug testing of high school students who participate in extracurricular activities does not violate the Fourth Amendment to the Federal Constitution. Plaintiffs write that [b]ecause the standard used by the [United States Supreme] Court in Earls is so inapposite to the standard required by the New Jersey Constitution's recognition of heightened privacy rights, the decision of the majority in Earls should not affect the outcome of this case. If anything, the decision in Earls highlights the need for New Jersey courts to act independently when enforcing the rights of New Jersey citizens under the State Constitution.

In Earls, Justice Thomas, writing for the majority, held that Techumseh, Oklahoma's student drug testing "[p]olicy is a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren" and noted that there was a reduced expectation of privacy among students in a school setting. Earls, supra, __ U.S. at __, 122 S. Ct. at 2569, __ L. Ed.2d at __. The Court went on to note that [s]ignificantly, this Court has previously held that "special needs" inhere in the public school context. See Vernonia, supra, at 653, 115 S. Ct. 2386; T.L.O., supra, at 339-340, 105 S. Ct. 733. While schoolchildren do not shed their constitutional rights when they enter the schoolhouse, see Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed.2d 731 (*1969), "Fourth Amendment rights ... are different in public schools than elsewhere; the 'reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children." Vernonia, supra, at 656, 115 S. Ct. 2386. In particular, a finding of individualized suspicion may not be necessary when a school conducts drug testing. [Earls, supra, __ U.S. at __, 122 S. Ct. at 2564-65, __ L. Ed.2d at __.]

The Court thus rejected a claim that a constitutionally recognized "privacy interest" was violated by the random testing of students involved in extracurricular activities. The Court then rejected a claim that the manner in which the test was conducted by the Techumseh School District violated constitutional values. Earls, supra, __ U.S. at __, 122 S. Ct. at 2566-67, __ L. Ed.2d at __. The Court found significant that the faculty monitor "waits outside the closed restroom stall for the student to produce a sample" and that the sample was given "behind a closed stall" before being sealed and sent for testing. Earls, supra, __ U.S. at __, 122 S. Ct. at 2566, __ L. Ed.2d at __. Moreover, the results are kept confidential and "are not turned over to any law enforcement authority," nor result in academic discipline, except for placing restrictions on participation in the extracurricular activity upon testing positive a second time. Earls, supra, __ U.S. at __, 122 S. Ct. at 2566-67, __ L. Ed.2d at __. Finally, the Court addressed the record on which the program was based and the "nature and immediacy of the government's concerns and the efficacy of the Policy in meeting them." Earls, supra, __ U.S. at __, 122 S. Ct. at 2567, __ L. Ed.2d at __. The Court concluded:

[T]his Court has not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing. For instance, in Von Raab the Court upheld the drug testing of customs officials on a purely preventive basis, without any documented history of drug use by such officials. See 489 U.S., at 673, 109 S. Ct. 1384. In response to the lack of evidence relating to drug use, the Court noted generally that "drug abuse is one of the most serious problems confronting our society today," and that programs to prevent and detect drug use among customs officials could not be deemed unreasonable. Id. at 674, 109 S. Ct. 1384; cf. Skinner, 489 U.S. at 607, and n.1, 109 S. Ct. 1402 (noting nationwide studies that identified on-the-job alcohol and drug use by railroad employees). Likewise, the need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Indeed, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use.

Given the nationwide epidemic of drug use, and the evidence of increased drug use in Tecumseh schools, it was entirely reasonable for the School District to enact this particular drug testing policy. We reject the Court of Appeals' novel test that "any district seeking to impose a random suspicionless drug testing policy as a condition to participation in a school activity must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem." 242 F.3d, at 1278. Among other problems, it would be difficult to administer such a test. As we cannot articulate a threshold level of drug use that would suffice to justify a drug testing program for schoolchildren, we refuse to fashion what would in effect be a constitutional quantum of drug use necessary to show a "drug problem." [Earls, supra, __ U.S. __, __, 122 S. Ct. at 2568, __ L. Ed.2d at __.]

Justice Thomas added:

We also reject respondents' argument that drug testing must presumptively be based upon an individualized reasonable suspicion of wrongdoing because such a testing regime would be less intrusive. See id. at 12-16. In this context, the Fourth Amendment does not require a finding of individualized suspicion, see supra, at 2565, and we decline to impose such a requirement on schools attempting to prevent and detect drug use by students. Moreover, we question whether testing based on individualized suspicion in fact would be less intrusive. Such a regime would place an additional burden on public school teachers who are already tasked with the difficult job of maintaining order and discipline. A program of individualized suspicion might unfairly target members of unpopular groups. The fear of lawsuits resulting from such targeted searches may chill enforcement of the program, rendering it ineffective in combating drug use. See Vernonia, 515 U.S., at 663-664, 115 S. Ct. 2386 (offering similar reasons for why "testing based on 'suspicion' of drug use would not be better, but worse"). In any case, this Court has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means, because "[t]he logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and- seizure powers." Martinez-Fuerte, 428 U.S. at 556-557, n. 12, 96 S. Ct. 3074; see also Skinner, supra, at 624, 109 S. Ct. 1402 ("[A] showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable").

Finally, we find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the School District's legitimate concerns in preventing, deterring, and detecting drug use. While in Vernonia there might have been a closer fit between the testing of athletes and the trial court's finding that the drug problem was "fueled by the 'role model' effect of athletes' drug use," such a finding is not essential to the holding. 515 U.S., at 663, 115 S. Ct. 2386; cf. id., at 684-685, 115 S. Ct. 2386 (O'CONNOR, J., dissenting) (questioning the extent of the drug problem, especially as applied to athletes). Vernonia did not require the school to test the group of students most likely to use drugs, but rather considered the constitutionality of the program in the context of the public school's custodial responsibilities. Evaluating the Policy in this context, we conclude that the drug testing of Tecumseh students who participate in extracurricular activities effectively serves the School District's interest in protecting the safety and health of its students. [Id., __ U.S. at __, 122 S. Ct. at 2568-2569, __ L. Ed.2d at __.]

The program before us involves the same type of program as that involved in Earls, both with respect to the students tested and the procedure used. In addition, student drivers possessing parking permits are included in the testing, but no one argues that under the Earls test they cannot be included, particularly given the dangers inherent in driving a vehicle especially by a teenager under the influence of a dangerous substance.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Because the preliminary injunction was converted into a permanent injunction without further proceedings, and the briefs on the appeal to us develop only the constitutional issues, we do not pass upon the power of a local Board of Education to develop its own program without either legislative authority or the establishment of statewide standards. Rather, we remand to permit plaintiffs to proceed on any ground not reached by the trial judge. The trial court should also consider inviting the Attorney General to participate in deciding whether a local Board of Education has the authority to implement drug testing in the absence of legislation permitting same or statewide standards promulgated by the Legislature or the Department of Education. We merely hold that the Hunterdon Central school board's drug testing program is not unconstitutional, and remand for further proceedings consistent with this opinion.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None