Attorney for Appellants
Kenneth J. Falk
Indiana Civil Liberties Union
Attorneys for Amici Curiae
Anthony S. Benton
Laura L. Bowker
Stuart & Branigin
David R. Day
Johnson, Smith, Pence & Heath LLP
David J. Emmert
Attorneys for Appellee
Julia Blackwell Gelinas
John H. Daerr
Thomas E. Wheeler, II
Locke, Reynolds LLP
INDIANA SUPREME COURT
ROSA J. LINKE, REENA M. LINKE,
(By their next friends and parents),
SCOTT L. LINKE and NOREEN L. LINKE,
Appellants (Plaintiffs below ),
NORTHWESTERN SCHOOL CORP.,
Appellee (Defendant below).
) Supreme Court No.
) Court of Appeals No.
APPEAL FROM THE HOWARD CIRCUIT COURT
The Honorable Lynn Murray, Judge
Cause No. 34C01-9902-CP-131
ON PETITION TO TRANSFER
March 5, 2002
Rosa and Reena Linke, students in the Northwestern School Corporation in Howard County,
contend that the schools random drug testing program violates their rights under the
Indiana Constitution to be free from unreasonable searches and seizures. After weighing
the students privacy interests and the character of the search against the nature
and immediacy of the governmental concern at issue, we conclude that the drug-testing
program here is co
Northwestern School Corporation (NSC) is a public school system covering rural and suburban
areas of Howard County near Kokomo. It operates two elementary schools, one
middle school, and one high school.
In the mid-1990s, drug usage in middle and high schools became a concern
to the a
dministrators at NSC. In the spring of 1995, the Indiana
Prevention and Resource Center released a survey regarding drug, alcohol, and tobacco usage
by students in grades seven through ten at NSC schools. The survey
showed higher than average use of gateway drugs among some students. Specifically,
it found that NSCs eighth graders used amphetamines at a rate higher than
state prevalence rates; ninth graders used drugs, alcohol, and cigarettes at higher than
the state prevalence rates; and tenth graders reported a higher daily use of
alcohol than state prevalence rates.
Drug abuse continued to be a problem at NSC high and middle schools.
During the 1998-99 school year, there were two suspensions and two expulsions
in the high school and five suspensions and five expulsions in the middle
school because of student drug usage. Beginning in 1987, three Northwestern High
School students (including a recent graduate) died in drug related incidents. The
most recent death, in 1996, occurred after a student ove
rdosed on morphine pills
acquired from a fellow student while at school. These contraband pills passed
through a chain of student hands before finding their final resting place.
The 1996 death caused serious concern. In response, a task force consisting
nistrators, teachers, staff, and interested parents was formed to examine NSCs approach
to drugs. In order better to fulfill NSCs zero tolerance policy towards
drug abuse, the task force addressed three primary areas: anti-drug curriculum; incorporation of
special anti-drug programs; and development of a student drug testing policy.
The task force created the Northwestern School Corporation Extra-Curricular Activ
ities and Student Driver
Drug Testing Policy (Policy) effective January 12, 1999. Its purpose is (1)
to provide for the health and safety of students; (2) to undermine the
effects of peer pressure by providing a legitimate reason for students to refuse
to use illegal drugs; and (3) to encourage students who use drugs to
participate in drug treatment programs. The Policy is explicitly not a punitive
enterprise. Under the Policy, testing positive for banned substances does not result
in academic penalty, results of drug test are not documented in any students
academic records, and information regarding the results is not disclosed to criminal or
juvenile authorities absent binding legal compulsion.
The Policy applies to all middle and high school students, grades 7-12, participating
in school athletics, specified extra-curricular and co-curricular
activities, as well as to all
student drivers who wish to park their vehicles on campus. The activities
included by the Policy are athletics, academic teams, student government, musical performances, drama,
Future Farmers of America, National Honor Society, and Students Against Drunk Driving.
Students wishing to engage in one of these activities are required to sign
a form consenting to the testing and must also obtain written consent from
a parent or guardian.
Students participating in co-curricular activities who choose not
to participate in the testing program are given an opportunity to prepare alternative
assignments, for academic credit, in lieu of participating in public performances.
A computer-based system, designed specifically for the purpose of randomly selecting individuals for
drug testing, is used to pick the students. Midwest Testing, a testing
firm that notifies the school principals who will be tested, currently handles this
process. Students are not given advance warning of the testing.
Upon selection, a student is escorted to a trailer that is driven to
the school by Mi
dwest Testing. Only one student is taken to
the trailer at a time. The student is given a specimen bottle
and is allowed to enter the restroom facility in the trailer unattended.
The facility has a commode containing blue dye and all water faucets are
turned off so that water cannot be used to dilute a specimen.
Once inside the restroom facility, the student is separated from the monitor by
a closed door. After producing a specimen, the student leaves the restroom,
hands the specimen to the Midwest Testing employee to be sealed, initials the
sealed bag, and returns to class.
The specimens are sent to Witham Laboratories, an independent laboratory, where they are
tested only for the substances banned by the Policy.
The testing laboratory
does not know the identity of the students tested and NSC follows strict
procedures regarding the chain of custody and access to test results. Negative
test results are mailed to the designated authority. Positive specimens, on the
other hand, are retested. If the re-test is positive, Witham communicates the
specimen number of the positive result to a building administrator who alerts the
students school principal. The principal is then able to determine the identity
of the student by reference to the specimen number. In such instances,
the principal holds a conference with the student and his or her parents
and at that time the student is given the opportunity to submit documentation
that would justify a positive result, e.g., prescription medication. Failure to provide
a satisfactory explanation for a positive test results in further action by the
Athletes testing positive are governed by an athletic code of conduct. Students
rticipating in all other activities are governed by a student activities code of
conduct. Under both codes, a student may be barred from participating in
an activity for up to 365 days. However, the consequences vary based
upon the activity and substance.
A student is entitled to be re-tested, at the schools expense, when the
drug for which the student tested positive would be expected to have disappeared
from the students body. A negative test at this time allows the
student to return to full participation in the activity but a positive re-test
is deemed to constitute reasonable suspicion, such that NSC reserves the right to
re-test the student throughout the remainder of the school year. A positive
re-test also bars the student from returning to the activity until such time
as the student tests negative. Beyond the first re-test, the Policy does
not require the school to pay for additional tests requested by the student.
Rosa and Reena Linke (the Linkes) were both students at Northwestern High School,
a part of NSC, when this lawsuit was filed. At the time
of the suit, Rosa was a junior who participated in track, National Honor
Society, Students Against Drunk Driving, the Prom Committee, and Academic Competition. She
also had a drivers license and wanted to drive to school. Reena
was a freshman participating in choir, track, Academic Competition, Sunshine Society, and Fellowship
of Christian Athletes. Their claim was that the Policy violated the Search
and Seizure Clause, art. I, § 11, and the Privileges and Immunities Clause,
art. I, § 23, of the Indiana Constitution.
The trial court granted summary judgment in favor of NSC. The Court
of Appeals r
eversed, holding that, in regard to school children, the Search and
Seizure Clause, art. I, § 11, of the Indiana Constitution implicitly contains a
general requirement of individualized suspicion, which was not met by the Policy.
See Linke v. Northwestern School Corp., 734 N.E.2d 252, 259 (Ind. App. 2000).
We granted transfer. Linke vs. Northwestern School Corp., No. 34S05-0103-CV-151, 2001
Ind. LEXIS 229 (Mar. 5, 2001).
The Search and Seizure Clause, art. I, § 11, of the Indiana Constitution
(Section 11) provides, [t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable search or seizure, shall not be
violated; and no warrant shall issue, but upon probable cause, supported by oath
or affirmation, and particularly describing the place to be searched, and the person
or thing to be seized. Although Section 11 is almost identical to the
Fourth Amendment of the United States Constitution, this court's analysis of claims arising
under Section 11 is separate and distinct from Fourth Amendment analysis. See Moran
v. State, 644 N.E.2d 536, 538 (Ind. 1994). However, in this regard
federal law and the law of sister states may have persuasive force.
The Linkes correctly contend that urinalysis drug testing constitutes a search under Section
11. In the law of searches and seizures, the term search implies
prying into hidden places for that which is concealed. Moran, 644 N.E.2d
at 540 (citing Lindsey v. State, 246 Ind. 431, 439, 204 N.E.2d 357,
362 (1965)). In finding that urinalysis testing constitutes a search under the
Fourth Amendment, the United States Supreme Court has noted, chemical analysis of urine
can reveal a host of private medical facts. Skinner v. Ry.
Labor Executives Assn, 489 U.S. 602, 617 (1989); see also Vernonia Sch. Dist.
47J v. Acton, 515 U.S. 646, 652 (1995). Similarly, Judge Friedlander has
written that the taking of bodily samples [for evaluation] constitutes a search.
Cutter v. State, 646 N.E.2d 704, 711 (Ind. Ct. App. 1995), transfer denied;
cf. DeVaney v. State, 259 Ind. 483, 487, 288 N.E.2d 732, 735 (1972)
(holding that the taking of a blood sample constituted a Section 11 search).
Given that NSC is a public school corporation and that its drug testing
policy is a Section 11 search, it is necessary to determine whether the
search violates Section 11.B
In Moran and Brown v. State, 653 N.E.2d 77 (Ind. 1995), we held
that the measure of whether a government search violated Section 11 is whether
the process is "reasonable." Id. at 80. Here, the Linkes and
NSC advance differing views as to the appropriate measure of reasonableness. The
Linkes argue that in order to be reasonable under Section 11, a school
drug testing policy must be based on the element of individualized suspicion.
Under this conception, random drug testing of students would violate Section 11 since,
by definition, a random program is not based on individualized suspicion. On
the other hand, NSC argues that the appropriate measure of reasonableness under Section
11 is substantially similar to the one expounded in Vernonia School District 47J
v. Acton, 515 U.S. 646 (1995), where the Supreme Court balanced the intrusion
of the search on the individuals Fourth Amendment interests with its promotion of
legitimate governmental interests. Id. at 653-654 (quoting Skinner, 489 U.S. at 619,
and Delaware v. Prouse, 440 U.S. 648, 654 (1979)). Under this approach,
NSC maintains, the Policy meets the reasonableness requirement of Section 11.
The Linkes point out that we have held that a police officer may
not stop a motorist in Indiana for a possible seat belt violation unless
that officer reasonably suspects that the driver or a passenger in the vehicle
is not wearing a seat belt as required by law. Baldwin v.
Reagan, 715 N.E.2d 332, 337 (Ind. 1999). From this proposition, they argue,
and the Court of Appeals held, that for any search to meet Section
11 muster, it must be based on individualized suspicion. Linke, 734 N.E.2d
We do not think the individualized suspicion requirement of Baldwin v. Reagan is
so readily transferable to this case. Baldwin v. Reagan and Moran
and Brown before it focused on the role of Section 11 in
protecting those areas of life that Hoosiers regard as private from unreasonable police
activity. See Moran, 644 N.E.2d at 540 (emphasis added); Brown, 653 N.E.2d
at 79 (noting that protection from unreasonable searches and seizures plays a uniquely
important role in the context of criminal procedure). Preventing unreasonable law enforcement
activity was a key factor motivating our holding in Baldwin v. Reagan that
individualized suspicion of a seatbelt violation is required in order to stop a
motorist for that purpose. 715 N.E.2d at 337.
A search conducted by a school corporation is substantively different than a search
conducted to enforce the law. This is in no small part due
to the different role played by law enforcers and teachers.
Law enforcement officers function as adversaries of criminal suspects. These officers have
the responsibility to investigate criminal activity, to locate and arrest those who violate
our laws, and to facilitate the charging and bringing of such persons to
trial. Rarely does this type of adversarial relationship exist between school authorities
and pupils. Instead, there is a commonality of interests between teachers and
New Jersey v. T.L.O., 469 U.S. 325, 349-350 (1985).
Under the Policy, test results are not volunteered to law enforcement, nor are
they used for any internal disciplinary function. Absent such consequences, we do
not believe the rationale for individualized suspicion is as strong here as in
the seat belt enforcement context. Cf. Oman v. State, 737 N.E.2d 1131,
1146-47 (Ind. 2000) (holding that under the Fourth Amendment the results of an
employee's administrative drug test can be used in a criminal prosecution, but only
if obtained by valid legal process externally initiated from the employment setting), cert.
denied, 122 S.Ct. 38 (2001).
While Brown emphasized that reasonableness was the touchstone of Section 11 analysis, it
framed the question as whether, in the totality of these circumstances, the police
conduct at issue was reasonable. 653 N.E.2d at 79-80. We believe
that balancing the students interests against the school corporations better comports with this
totality of the circumstances framework than a per se requirement of individualized suspicion.
There is precedent for this approach. In determining that the totality of
the circumstances allows consideration of police officer safety, we stated that [i]n construing
and applying unreasonable under Section 11, we recognize that Indiana citizens have been
concerned not only with personal privacy but also with safety, security, and protection
from crime. Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001); see
also Carter v. State, 692 N.E.2d 464, 466 (Ind. App. 1997) ([A]n individual's
rights protected under Article I, § 11 are not absolute. We
must balance competing rights and look to the reasonableness of the intrusion and
permit brief investigatory stops based upon reasonable suspicion of criminal activity. (citations omitted)).
We adopt the analytical approach of Vernonia School District 47J v. Acton in
these circumstances. Broadly stated, we will weigh the nature of the privacy
interest upon which the search intrudes, the character of the intrusion that is
complained of, and the nature and immediacy of the governmental concern to determine
whether the Policy is reasonable under the totality of these circumstances. 515
U.S. at 658-660.C
In weighing the nature of the privacy interest upon which a search under
the Policy intrudes, the first and chief consideration influencing our analysis
is the Linkes status as middle and high school students.
Our law does not accord students the same privacy interests as adults.
Traditionally at common law, and still today, unemancipated minors lack some of the
most fundamental rights of self-determination. Acton, 515 U.S. at 654. The
United States Supreme Court has taken the view that while public schools are
state actors subject to constitutional oversight, the nature of a schools role is
custodial and tutelary, permitting a degree of supervision and control that could not
be exercised over free adults. Id. at 655; T.L.O., 469 U.S. at
333. Indiana law codifies this view. For example, in passing compulsory
education laws that mandate the availability of public elementary education for its citizenry,
the State has recognized that public schools stand in the relation of parents
and guardians to the students
regarding [all] matters of discipline and conduct
of students. Higginbottom v. Keithley, 103 F. Supp. 2d 1075, 1080 (S.D.
Ind. 1999), quoting Ind. Code § 20-8.1-5.1-3(b) (1988).
The Linkes concede that the privacy interest of juveniles is not the same
as adults but argue that minors are actually accorded greater protection. However,
the authority relied upon by the Linkes does not stand for the notion
that a students privacy interest should be granted greater weight. To the
contrary, it stands for the proposition that, under certain circumstances, the State plays
an active role in dictating the course of childrens lives. See Manners
v. State, 210 Ind. 648, 5 N.E.2d 300 (1936) (upholding statute making it
a felony for a father to fail to provide for a child on
the reasoning that [m]inor children are the subject of the solicitude of the
law because it is assumed that until maturity they are not capable of
protecting themselves.); see also Adams v. State, 244 Ind. 460, 465, 193 N.E.2d
362, 364 (1963) (stating that juvenile courts exercise parental supervision and may properly
restrain a minors liberty in the exercise of discipline, rehabilitation, and training).
Rather than bolster their argument, the Linkes cited authority reinforces the principle that
a minors liberty interest is sometimes less than that of an adult.
In light of the fact that minors in school are subject to supervision
and control that could not be exercised over free adults and in view
of the legislatures codification of the custodial and protective role of Indiana public
schools, we find that students are entitled to less privacy at school than
adults would enjoy in comparable situations. Cf. T.L.O., 469 U.S. at 348
(In any realistic sense, students within the school environment have a lesser expectation
of privacy than members of the population generally.).
A second factor influencing a students privacy interest is consent. A voluntary
decision to submit to random drug testing further decreases the students legitimate expectation
of privacy, increasing the likelihood of a testing policys Section 11 reasonableness.
Of course, a coerced decision is not consensual. For this reason [t]he
consent, and the circumstances in which it was given, bear upon the reasonableness
of the Policy. See Ferguson v. City of Charleston, 532 U.S. 67,
91 (2001) (Kennedy, J., concurring).
NSC maintains that the Policys requirement that student participants submit to random drug
testing does not compel consent because it only applies to privileged activities.
The Linkes take issue with this characterization. Citing the Supreme Court of
Colorado in Trinidad School District No. 1 v. Lopez, the Linkes argue that
it is necessary to participate in extracurricular activities to be successful in todays
world. (Br. of Appellants at 26, quoting Lopez, 963 P.2d 1095, 1109
(Colo. 1998) ([T]he reality for many students who wish to pursue post-secondary educational
training and/or professional vocations requiring experience garnered only by participating in the extracurricular
activities is that they must engage in such activities.
[I]involvement in a
schools extracurricular offerings is a vital adjunct to the educational experience.)).
The Policy is different from that at issue in Lopez. The Lopez
court noted, two for-credit classes that are part of the regular curriculum of
course offerings are inextricably linked to the extracurricular activity of marching band.
The record reflects that the consequence of enrolling in a class and
failing to participate in the marching band is severe: the student will receive
a failing grade. 963 P.2d at 1105. Thus, the policy under
review in Lopez effectively gave failing grades to students who refused to submit
to a drug test. The Supreme Court of Colorado found this to
be unreasonable, in part because it applied to students taking the normal curriculum.
We are sensitive to the issue raised by the Supreme Court of Colorado.
Students do not forfeit their privacy interest simply by virtue of attendance
at school. Todays public school officials
act in furtherance of publicly
mandated educational and disciplinary policies, T.L.O., 469 U.S. at 336, and statutes on
the books compel school attendance. See Ind. Code § 20-8.1-3-17 (1998).
However, the Policy does not require drug testing for students enrolled in compulsory
regular classes. Rather, students in voluntary activities for which they receive academic
credit (co-curricular activities) are given the option of providing alternative for-credit assignments.
The Policy is different from the one reviewed by the Supreme Court of
Colorado in that NSC students are not deprived of the opportunity to receive
academic credit from co-curricular activities if they choose not to submit to drug
testing. They are only deprived from participating in the extra-curricular portion of
We acknowledge that this does alter the usual voluntariness calculus because, in all
likelihood, at least some adverse consequences may attach to the inability to so
participate. We further acknowledge that, while schools are not the only outlet
for extracurricular activities, participation in school sponsored extracurricular activities may benefit some students
who wish to pursue post-secondary educational or professional training. However, in order
for consent to be voluntary in this context, it does not follow that
there be absolutely no disadvantage to a refusal to give consent. See
Ferguson, 532 U.S. at 91 ([t]he person searched has given consent, as defined
to take into account that the consent was not voluntary in the full
sense of the word.) (Kennedy, J., concurring); Acton, 515 U.S. at 650 (1995)
([s]tudents wishing to play sports must sign a form consenting to the testing
and must obtain the written consent of their parents.). The fact that
refusal to agree to drug testing results in forfeiture of the opportunity to
obtain certain benefits is not so weighty as to constitute forced consent.
See Todd v. Rush County Schools, 133 F.3d 984, 986 (7th Cir.), cert.
denied 525 U.S. 824 (1998).
A third factor influencing the privacy interests of students is whether they have
volunteered for an already regulated activity. See Acton, 515 U.S. at 657
([b]y choosing to go out for the team, [student athletes] voluntarily subject themselves
to a degree of regulation even higher than imposed on students generally.).
There can be little doubt that student athletics are highly regulated. See
Schaill v. Tippecanoe County Sch. Corp., 864 F.2d 1309, 1318 (7th Cir. 1988)
(the Indiana High School Athletic Association has extensive requirements which it imposes upon
schools and individuals participating in interscholastic athletics.). To a lesser extent, non-athletic
extracurricular activities are also regulated in that various activities or clubs impose rules
and requirements to which participants must comply. See Earls v. Tecumseh Pub.
Sch. Dist. No. 92, 242 F.3d 1264, 1276 (10th Cir.) (students participating in
non-athletic extracurricular activities
agree to follow the directives and adhere to the
rules set out by the
director of the activity.), cert. granted, 122
S. Ct. 509 (2001).
See footnote The extent to which a voluntary activity is
already regulated can further influence a students Section 11 privacy interest.C-2
The character of the intrusion that is complained of provides another element contri
to reasonableness in the school context. The Linkes view urinalysis testing as
extremely intrusive, demeaning, and embarrassing. Urinalysis implicates an excretory function traditionally shielded
by great privacy. See Skinner v. Ry. Labor Executives Assn, 489 U.S.
602, 626 (1989); Acton, 515 U.S. at 658. However, the manner in
which the sample is acquired influences the ultimate weight given to the Linkes
embarrassment. See Acton, 515 U.S. at 658; Schail, 864 F.2d at 1318.
In Acton, the Supreme Court found urinalysis testing reasonable when students urinated in
plain view of attendants, in part because it was no more intrusive than
a visit to a standard public restroom. See 515 U.S. at 577.
In contrast, NSC students are escorted to a testing facility in a
manner such that only one student is present at a time. The
student then enters a private room and is allowed to close the door.
Attendants do not watch the student. In this case, the Policy
is much less intrusive than the one examined by the Supreme Court in
Other important factors to consider in evaluating the character of the intrusion are
what the test searches for, the amount of discretion given to the testers,
and to whom results are disclosed. The Policy restricts the test to
a pre-set list of banned substances. No student is compelled to provide
additional private information (such as medications used). Even after a positive test,
the choice of whether to disseminate additional explanatory information is left to the
student. At no point in the process do school officials have discretion
to choose whom to test or for what to test. Various measures
are taken throughout the process to insure both the integrity of the tests
and the privacy of the students, including limiting the persons privy to test
results to the greatest possible extent.
A final factor to consider in evaluating the character of the intrusion is
whether the test is punitive or preventative and rehabilitative. A punitive testing
regime by a school corporation is a more severe intrusion upon a students
Section 11 privacy interest than a non-punitive search conducted in furtherance of a
schools custodial and protective role. See Acton, 515 U.S. at 658 n.
2; Lopez, 963 P.2d at 1116 (Scott, J., dissenting).
Section 11 protects those areas of life that Hoosiers regard as private from
unreasonable police activity. See Moran, 644 N.E.2d at 540 (emphasis added).
We have also noted that protection from unreasonable searches and seizures plays a
uniquely important role in the context of criminal procedure. See Brown, 653
N.E.2d at 79. The emphasis on preventing unreasonable law enforcement activity was
a factor motivating our holding in Baldwin v. Reagan that reasonable suspicion of
a seatbelt violation is required in order to stop a motorist for that
purpose. 715 N.E.2d 332, 337 (Ind. 1999).
However, a preventative or rehabilitative search conducted by a school corporation is substantively
different than a search conducted to enforce the law. A preventative or
rehabilitative search is inherent to a school corporations function. Students generally understand
that the preservation of
a proper educational environment requires close supervision and
thus the intrusion on privacy is less severe. See T.L.O., 469 U.S.
In the present matter, the record shows that test results are not volunteered
to law enforcement, nor are they used for any internal disciplinary function.
Students are merely barred, for varying periods of time, from participating in privileged
activities. As a result, the Policy must be viewed as preventative or
rehabilitative. A policy involving a disciplinary function, such as suspension or expulsion
from school, could be punitive and is not implicated here. The care
exhibited by NSC to protect student privacy and to create a non-punitive test
mitigates against the Linkes privacy concern. A drug testing policy not so
carefully crafted might not. Cf. Ferguson, 532 U.S. at 68 (noting the
critical difference between drug tests conducted without a warrant or individualized suspicion when
law enforcement provides a central and indispensable feature of the policy and when
drug testing is conducted for a purpose distinct from the States general interest
in law enforcement).C-3
We last evaluate NSCs interest in drug testing certain students. NSC proffers
the need to fight and deter drug abuse among its students in general
and its students who act as role models and representatives of the school
in particular. It also asserts a related interest in insuring the health
and safety of its students. The Linkes counter that NSCs only legitimate
interest is in stopping abuses that may occur on campus, something they argue
that the Policy does not properly achieve.
That NSC has the responsibility of supervising its students and enforcing desirable behavior
in carrying out school purposes is not questioned. Ind. Code § 20-8.1-5.1-3;
see also Ind. Const. art. VIII, § 1.
See footnote In the mid-1990s, drug
usage in NSCs middle and high schools caused administrators to worry that they
were not properly fulfilling this function. Most notably, a 1995 study of
drug usage in NSC schools showed higher than average use of gateway drugs
in the middle and high schools. A year later, an NSC student
rphine pills from a fellow student at school and subsequently died from
an overdose. In response, NSC commissioned the task force of school officials
and parents that created the Policy.
Deterring drug abuse by children in school is an important and legitimate concern
for our schools. Drug abuse severely harms youths and impacts on a
schools educational mission. Maturing nervous systems are more critically impaired by intoxicants
than mature ones are; childhood losses in learning are lifelong and profound; children
grow chemically dependent more quickly than adults and their record of recovery is
depressingly poor. Acton, 515 U.S. at 661. What is more, the
effects of a drug-infested school are visited not just upon the users, but
upon the entire student body and faculty. Id. at 662. NSCs
interest in deterring drug use is further enhanced by the fact that three
of its students have died of drug related causes since 1987, that it
had scientific data illustrating a burgeoning drug problem on its middle and high
school campuses, and that drug use continues to be an identifiable problem at
the middle and high schools. See Skinner, 489 U.S. at 607 (upholding
a Government drug-testing program based on findings of drug use by railroad employees
nationwide without proof that a problem existed on the particular railroads whose employees
were subject to the test).
NSCs interest in testing the included students is further heightened by the fact
that the relevant extracurricular activities all have off campus components. NSC needs
a broader range of tools to insure compliance with its rules when activities
occur off campus. This is due, in large part, to the fact
that greater ranges of activities occur during extracurricular activities than during normal school
hours. See Webb v. McCullough, 828 F.2d 1151, 1157 (6th Cir. 1987)
(affirming grant of summary judgment upholding a public school principals search of the
private hotel room of a high school student during a voluntary, off campus,
school sponsored field trip). There are many more ways for a student
to be injured, to endanger fellow students, to transgress school rules, or to
violate the law while participating in an extracurricular off campus event (such as
a band competition in another city or a non-curricular field trip) than during
the relative order of school hours. See Id. Indeed, parents may
be reluctant to allow their children to participate in voluntary school activities if
schools are not permitted to take the reasonable steps taken here by NSC
to prevent drug use. See Id.
If drug abuse increases the physical danger of participation in a school-sponsored activity,
a school corporations interest in deterring drug abuse becomes stronger. This is
undoubtedly the case with school athletics. See Acton, 515 U.S. at 662
([a]part from psychological effects
the particular drugs screened by the Districts Policy
have been demonstrated to pose substantial physical risks to athletes.). Likewise, we
note that driving while intoxicated presents significant physical risks to drivers, their passengers,
and pedestrians. See Todd v. Rush County Schools, 983 F. Supp. 799,
806 (S.D. Ind.), affd 133 F.3d 984 (7th Cir. 1997), cert. denied, 525
U.S. 824 (1998).
While the risk of physical injury seems remote in the other activities covered
by the Policy, NSC argues that its interest in promoting the health and
safety of these students is equivalent to that of student athletes and student
drivers. It is true that successful extracurricular activities require healthy students, see
Todd v. Rush County Schools, 133 F.3d 984, 986 (7th Cir. 1997), but
the absence of increased physical danger means that NSCs general interest in health
and safety is not increased in these situations. After all, healthy students
are important to most of what a school does and the need does
not grow simply because a student chooses to participate in an activity.
NSC further maintains, however, that its interest in deterring student drug abuse is
increased by the facts that student athletes and student participants in extracurricular activities
are role models for other students and are representatives of their schools in
the community. The Linkes respond that there is nothing in the record
to demonstrate that band members are viewed as role models or student leaders.
The record does not address whether their peers view students participating in the
tested activities as role models. NSCs interest in testing may well be
heightened were such a fact shown. See Acton, 515 U.S. at 662-663.
Nonetheless, it is evident that NSC holds the participants out as role
models by submitting the participants to additional rules above and beyond normal, and
by sending participants to community functions as school representatives. The fact that
NSC has identified a drug problem at its middle and high schools gives
it an interest in experimenting with methods to deter drug use. This
aspect of the Policy supports NSCs interdiction efforts by giving students who represent
the school in an organized activity a valid response to peers who may
pressure them into using drugs.
Chandler v. Miller, 520 U.S. 305 (1995), in which the Supreme Court invalidated
a program of suspicionless drug testing of Georgia political candidates, does not suggest
a different conclusion. In Chandler, the Supreme Court determined that suspicionless drug
testing of candidates was solely symbolic because (1) the tests were not based
on evidence of a drug problem among the States elected officials, (2) those
officials typically do not perform high risk, safety sensitive tasks, and (3) the
tests immediately aided no interdiction effort. Id. at 321-322. The circumstances
creating context for the Policy under our review are different. In addition
to the fact that it is public school students who are tested here,
the Policy has been prompted by concrete evidence of drug abuse by NSC
junior and high school students (some of whom engage in safety sensitive tasks)
and all testing is merely a component of a broader interdiction effort created
by local officials in conjunction with interested parents. Chandler acknowledged the critical
importance of context, stating that school drug tests are different because a local
government bears large responsibilities, under a public school system, as guardian and tutor
of children entrusted to its care. Id. at 316. It also
emphasized that [a] demonstrated problem of drug abuse, while not in all cases
necessary to the validity of a testing regime, would shore up an assertion
of special need for a suspicionless general search program. Id. at 319
In light of the totality of the circumstances, the Policy does not violate
Section 11. Our constitution does not forbid schools from taking reasonable measures
to deter drug abuse on their campuses but they must do so with
due regard for the rights of students.
We reiterate that our evaluation of this matter is particularly influenced by the
facts that students privacy interests are less than those of adults and that
both students and their parents or guardians must give consent. We have
also been influenced in general by schools custodial and protective interest in their
students and in particular by the fact that the Policy was created with
parent involvement as an element of a comprehensive interdiction program. Furthermore, the
higher than average rate of drug use at NSC middle and high schools,
the recent drug related deaths, and the continued presence of illegal drugs on
campus strengthens NSCs legitimate interest in this matter. We do note that
the strength of NSCs interest in deterring drug abuse is not uniform for
all students. In this regard, the Policy is most defensible in regard
to athletes and student drivers. The schools interest in protecting these students
is increased by the risk of physical danger and, in the case of
student athletes, by the fact that they represent the school as role models.
While the rationale for testing students involved in co-curricular activities is not
so strong, for the reasons already stated, it does not violate Section 11
in this case.II
The Linkes also argue that the Policy violates the Privileges and Immunities Clause,
art. I, § 23, of the Indiana Constitution (Section 23). Section 23
The General Assembly shall not grant to any citizen, or class of citizens,
privileges or immunities, which, upon the same terms, cannot equally belong to all
In the watershed case of Collins v. Day, 644 N.E.2d 72 (Ind.1994), we
held that the analytical framework required to resolve Section 23 claims examines whether
"the disparate treatment ... [is] reasonably related to inherent characteristics which distinguish the
unequally treated classes." Id. at 80. Collins requires that the challenger
bear the burden "to negative every reasonable basis for the classification." Id.
at 81. This is because of the substantial deference due the
enactment. Id. at 80. In addition, "the preferential treatment must
be uniformly applicable and equally available to all persons similarly situated." Id.
The Linkes contend that Section 23 is violated because a class of students
who participate in certain extracurricular activities
See footnote are subjected to random drug testing while
udents who participate in other extracurricular activities
See footnote are not.
We find that the Linkes have not carried their burden to "negative every
reasonable basis" for random drug testing imposed upon the class of which they
are a member. Under
Collins, we determine whether there are inherent distinctions
between the activities subject to the Policy and those not. Largely for
the reasons set forth in Part I-C-3 supra, we find the "reasonable relationship"
The Policy focuses on those activities in which the participating students represent the
school outside of the normal school day hours, receive special privileges as a
result of their participation, or place the participating student in a leadership or
role model position. The school activities not covered are strictly in-school activities
that take place during school hours. Consequently, the students who engage in
the school activities not covered by the Policy do not represent the school
by publicly performing or working within the community. While the Linkes argue
that the newspaper and yearbook are extracurricular activities requiring students to "engage in
activities outside of the school day," Brief of Appellant 30, these activities are
purely curricular. (R. at 76.) These classes are taken for a
grade and do not require any activity outside the normal school day.
We agree with NSC that testing those students who are at an increased
risk of physical harm or are role models and leaders by virtue of
their participation in certain extracurricular activities is "reasonably related to achieving the school's
purpose in providing for the health and safety of students, and undermining the
effects of peer pressure by providing a legitimate reason for students to refuse
to use illegal drugs and by encouraging students who use drugs to participate
in drug treatment programs." (Trial Court's Conclusions of Law, R. at
509). We find no violation of Section 23.Conclusion
Having previously granted transfer, we now affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, J., concur.
BOEHM, J., dissents with separate opinion in which RUCKER, J., concurs.
ATTORNEY FOR APPELLANTS
Kenneth J. Falk
ATTORNEYS FOR AMICI CURIAE
Anthony S. Benton
Laura L. Bowker
David R. Day
David J. Emmert
ATTORNEYS FOR APPELLEE
Julia Blackwell Gelinas
John H. Daerr
Thomas E. Wheeler, II
SUPREME COURT OF INDIANA
ROSA J. LINKE, REENA M. LINKE, )
(By their next friends and parents), )
SCOTT L. LINKE and NOREEN )
L. LINKE, )
Appellants (Plaintiffs Below), ) Indiana Supreme Court
) Cause No. 34S05-0103-CV-151
) Indiana Court of Appeals
NORTHWESTERN SCHOOL CORP., ) Cause No. 34A05-9910-CV-467
Appellee (Defendant Below). )
APPEAL FROM THE HOWARD CIRCUIT COURT
The Honorable Lynn Murray, Judge
Cause No. 34C01-9902-CP-131
ON PETITION TO TRANSFER
March 5, 2002
BOEHM, Justice, dissenting.
I respectfully dissent. The majority adopts the methodology of Vernonia Sch. Dist.
47J v. Acton, 515 U.S. 646 (1995), and concludes that NSCs drug testing
fits within a very narrow exception to the general probable cause requirement, the
so-called special needs exception. However, assuming it is proper to analyze Indiana
constitutional claims in the Vernonia framework, I do not agree that NSC has
carried its burden of proving that its program meets the standard of reasonableness
the special needs doctrine requires. Rather, this program amounts to imposition of
a general random testing program with no sound footing in concern for the
educational mission of the school corporation, as opposed to general law enforcement.
Nor is there a justification for selecting these students from the general school
For many of the same reasons, I conclude that NSCs program violates the
requirement of Article I, Section 23 of the Indiana Constitution that a classification
must be reasonably related to the characteristicsin this case, participation in certain school
activitiesthat define the class.
I. What it Means to Have Special Needs
Three cases, in particular, are important to understanding why NSCs random drug testing
program violates Article I, Section 11 of the Indiana Constitution.
A. New Jersey v. T.L.O.
The special needs doctrine, in the context of searches by school officials, has
its roots in New Jersey v. T.L.O., 469 U.S. 325 (1985), where the
United States Supreme Court held that the Fourth Amendments usual probable cause standard
should not apply in a school setting. In T.L.O., a teacher discovered
two students smoking in a school lavatory in violation of school rules.
The teacher took the pair to the assistant principals office, where T.L.O., in
response to the assistant principals questioning, denied having ever smoked. Searching T.L.O.s
purse, the assistant principal found a pack of cigarettes along with various drug
paraphernalia. T.L.O. was later adjudged a delinquent.
T.L.O. claimed that the search violated the Fourth Amendment. The Court agreed
that the Fourth Amendment applied to searches conducted by school officials, but nevertheless
concluded that school officials may conduct searches in the absence of the requirements
imposed by the Fourth Amendment on other governmental searches. Id. at 340.
The Court offered this explanation why a level of suspicion lower than
that of probable cause is required for searches conducted by school officials, at
least in the context of searches for evidence of school rule violations:
[T]he legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search. Determining the reasonableness of
any search involves a twofold inquiry: first, one must consider whether the .
. . action was justified at its inception, Terry v. Ohio, 392 U.S.,
at 20; second, one must determine whether the search as actually conducted was
reasonably related in scope to the circumstances which justified the interference in the
first place, ibid. Under ordinary circumstances, a search of a student by
a teacher or other school official will be justified at its inception when
there are reasonable grounds for suspecting that the search will turn up evidence
that the student has violated or is violating either the law or the
rules of the school. Such a search will be permissible in its
scope when the measures adopted are 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.
Id. at 341-42. However, the Court also emphasized that there were limits
to the authority of school officials to conduct a search under this lowered
constitutional bar. Specifically, the reasonableness standard should ensure that the interests of
students will be invaded no more than is necessary to achieve the legitimate
end of preserving order in the schools. Id. at 343.
Justice Blackmuns concurring opinion introduced the phrase special needs into the public discourse
on school searches. He expressed concern that a balancing test might become
the rule rather than the exception. To curb this potential, he wrote,
Only in those exceptional circumstances in which special needs, beyond the normal need
for law enforcement, make the warrant and probable-cause requirement impra
cticable, is a court
entitled to substitute its balancing of interests for that of the Framers.
Id. at 351 (Blackmun, J., concurring). Searches in a school setting based
on a lower standard are appropriate, he concluded, because of the need for
immediate action on the part of teachers attempting to maintain order in the
Vernonia School District 47J v. Acton
The next principal case is Vernonia Sch. Dist. 47J v. Acton, 515 U.S.
646 (1995), on which the majority relies to justify its conclusion that NSCs
drug testing program is reasonable. In Vernonia, the United States Supreme Court
upheld a random drug testing program instituted by an Oregon school district.
The plan called for testing of athletes only. In upholding this plan,
the Court specifically endorsed Justice Blackmuns concurrence in T.L.O. and found that, on
the facts presented, the Vernonia school district established a special need justifying the
imposition of drug testing on a specific group of students. The Court
relied heavily on the facts found by the district court that the Vernonia
school district was faced with an immediate crisis and had been able to
target the instigators as coming from the student-athlete population. Id. at 663.
The Court relied on T.L.O. for the proposition that, in the public
school context, a search unsupported by probable cause can be constitutional when the
district demonstrates special needs, i.e. where strict adherence to the probable cause requirement
would undercut the substantial need of teachers and administrators for freedom to maintain
order in the schools. Id. at 653 (quoting T.L.O., 469 U.S. at
341). The Court cited three factors supporting the reasonableness of the Vernonia
programthe decreased expectation of privacy of the student athletes, the relative unobtrusiveness of
the search, and the severity of the need met by the search.
None of these three is present in force to support NSCs plan.
NSCs program applies to athletes, student drivers, and participants in a wide range
of extra-curricular and co-curricular activities from Future Farmers of America to the school
band. NSCs evidence of substance abuse in its schools is a survey
conducted by the Indiana Prevention Resource Center in 1995 and given to students
in grades seven through ten. Notably absent from the results is any
data suggesting that students who claimed to have used a given substance also
participated in one of the activities covered by NSCs testing program. The
testing intrudes on students who in no way qualify for the lessened expectation
of privacy some cases, like
Vernonia, have attributed to athletes.
Chandler v. Miller
In Chandler v. Miller, 520 U.S. 305 (1997), the United States Supreme Court
explained in further detail when it is appropriate to apply the special needs
doctrine. The Court in Chandler found unconstitutional Georgias policy of requiring certain
candidates for public office to submit to drug testing. Justice Ginsburg, writing
for an eight-member majority, explained that to successfully make the case that a
special need exists, a government actor must demonstrate a concrete danger demanding departure
from the Fourth Amendments main rule. Id. at 319.
Georgia argued that its testing policy passed constitutional muster based on the Courts
earlier decisions upholding suspicionless testing of student athletes,
Vernonia, 515 U.S. 646, certain
United States Treasury employees, Natl Treasury Employees Union v. Von Raab, 489 U.S.
656 (1989), and certain railroad employees, Skinner v. Ry. Labor Executives Assn, 489
U.S. 602 (1989). The Court explained that the employees subject to testing
in Von Raab were directly involved [in] drug interdiction,
Skinner offered evidence of
drug and alcohol abuse by railway employees engaged in safety-sensitive tasks, and Vernonia
responded to an immediate crisis prompted by a sharp rise in students use
of unlawful drugs. Georgias plan to screen candidates for public office failed
to address a concrete danger, the Court explained, because: (1) the record did
not suggest that the hazards argued by the state were real and not
simply hypothetical for Georgias polity; (2) the requirement was not well designed to
identify drug users; (3) it was feasible, within the environment of public office,
to note erratic conduct that would lead to a suspicion of drug use;
and (4) the risk to public safety was neither substantial nor real.
520 U.S. at 319-23.
Although this case and
Vernonia both address school programs, for several reasons NSCs
plan is closer to Georgias plan for wanna-be officeholders than the Vernonia plan
for its students. First, the survey and other evidence relied upon by
NSC may establish a drug problem, but not among the categories of students
tested. Second, the testing, though intended to prevent school-wide drug use, identifies
only drug users among the population of students who submit to the program.
Third, it is feasible, as NSCs own policy makes clear, for NSC
officials to determine when a reasonable suspicion of drug use exists. Fourth,
NSC has not shown any evidence, of the type presented in Vernonia, of
drug use as a source of significant problems in conducting the schools educational
II. Applying the Special Needs Analysis to NSCs Program
I agree with the majority that the relevant inquiry under Article I, Section
11 of the Indiana Constitution is whether, given the totality of the circumstances,
the searches conducted by NSC are reasonable. Brown v. State, 653 N.E.2d
77, 79-80 (Ind. 1995). In this respect, the Indiana Constitution is very
similar, if not identical, to the formulation adopted for the Fourth Amendment in
Vernonia: reasonableness under all the circumstances. 515 U.S. at 652 ([T]he ultimate
measure of the constitutionality of a governmental search is reasonableness.). The majority
concludes that the appropriate circumstances to examine are the same as those balanced
by the Court in Vernonia: the nature of the privacy interest; the character
of the intrusion; and the nature and immediacy of the governmental concern.
So far, so good. But, in applying the reasoning of Vernonia in
light of Chandler, I arrive at a different conclusion from the majoritys.
Overcoming the Linkes Privacy Interests
The majority finds the Linkes privacy interests of minimal weight based on three
propositions: (1) students privacy interests are less than those of adults; (2) students
consent to the searches; and (3) the tested students are held out by
NSC as role models. I think the first is true only to
a limited extent, and the other two are not true at all.
Extent of Control Over Students
The majority contends that the Linkes privacy interests deserve lesser protection than Article
I, Section 11 would normally demand because schools are allowed a degree of
supervision and control that could not be exercised over free adults. I
agree that Indiana law generally supports that view. However, a schools degree
of supervision is not without its limits. The majority relies on the
notion that schools stand in the relation of parents and guardians to its
students in matters of conduct and discipline. This may justify the imposition
of drug testing when matters of conduct and discipline are at issue.
But it does not carry equal weight when suspicionless searches are conducted as
a matter of routine. Indeed, in T.L.O., the United States Supreme Court
cautioned against such a laissez-faire view of the role of school officials who
If school authorities are state actors for purposes of the constitutional guarantees of
freedom of expression and due process, it is difficult to understand why they
should be deemed to be exercising parental rather than public authority when conducting
searches of their students. More generally, the Court has recognized that the
concept of parental delegation as a source of school authority is not entirely
consonant with compulsory education laws. Ingraham v. Wright, 430 U.S. 651, 662
(1977). Todays public school officials do not merely exercise authority voluntarily conferred
on them by individual parents; rather, they act in furtherance of publicly mandated
educational and disciplinary policies. . . . In carrying out searches and
other disciplinary functions pursuant to such policies, school officials act as representatives of
the State, not merely as surrogates for the parents . . . .
469 U.S. at 336. It is also noteworthy that, although the education
of Indianas students is one of the most highly regulated enterprises of our
state government, nowhere in the specifically enumerated powers and duties of this states
school corporations has the legislature given explicit authority for random drug testing of
2. Consent to Searches and Already Regulated Activities
Among the categories of students affected by the NSC program are those enrolled
in some for-credit courses whose activities take place off school premises. The
majority concludes that, because alternative for-credit assignments are available to take the place
of the portion of the course that triggers the testing requirement, the decision
whether to submit to testing is voluntary. But the effects of refusing
to submit to drug testing in those courses may be quite harsh.
Consider, for example, a member of the choir who hopes to enter a
performing arts program in college. He or she is permitted, as the
majority points out, to participate in alternative for-credit assignments, but is denied the
opportunity to perform in public with the rest of the chorus. When
the time comes to apply to the performing arts program, if that student
refuses to participate in the voluntary program, he or she may be able
to document a high grade in choir, but has a gaping void in
The majority identifies one set of for-credit coursework as compulsory regular classes, and
describes participation in everything else voluntary. But the aspiring vocalists appearance in
public concerts is no more a voluntary activity than the f
uture math majors
electing calculus, when algebra will satisfy the high school diploma requirements. Cf.
Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1109 (Colo. 1998)
(extra-curricular activities are a vital adjunct to the educational experience). That the
student receives academic credit from the alternative program does not change the fact
that the student is essentially given a different course from the one provided
his or her peers, because of a voluntary decision not to take a
I agree that participation in certain extra-curricular activities may open the door to
some fashion of drug testing. Athletics have traditionally been the primary target
of such programs.
See, e.g., Vernonia (student-athletes subject to testing because they
were the leaders of the drug culture and instigators of severe discipline problems).
There may well be some basis for drug testing as a safety
measure in activities accompanied by significant physical stress. I find far less
tenable the notion that participation in non-athletic extracurriculars also opens the door to
such an intrusive practice. There is nothing peculiar about National Honor Society,
for instance, that suggests that its members must subject themselves, by virtue of
their participation . . . to regulations that further reduce their expectation of
privacy. Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1063 (7th Cir.
2000). As more fully developed in Part II.C, I believe that in
order to be reasonable under all the circumstances, the scope of the testing
program must bear some relation to the identified issue the program is meant
to address. The NSC plan fails that test.
The Role Model Theory
The majority concedes that the record does not address whether their peers view
students participating in the tested activities as role models, but finds persuasive the
fact that NSC holds the affected students out as such. This writer
is further removed from high school than his colleagues. But even a
casual reviewer of pop culture must view with extreme skepticism the undocumented claim
that participants in this broad list of activities are all, or even predominantly,
viewed by their peers as role models.
See footnote In any event, whether the
affected party is or is not held out as a role model is
not adequate to justify NSCs program on a special needs basis. As
the U.S. Supreme Court put it, [I]f a need of the set a
good example genre were suff
icient to overwhelm a Fourth Amendment objection, then the
care this Court took to explain why the needs in Skinner, Von Raab,
and Vernonia ranked as special wasted many words in entirely unnecessary, perhaps even
misleading, elaborations. Chandler, 520 U.S. at 322. Rather than supporting the need
for testing, the fact that NSC advances its role model theory underscores the
paucity of evidence that testing of the affected students has any relation to
NSCs drug problem.
B. Character of the Intrusion
1. Article I, Section 11 Applies Equally to All Government Agencies
I disagree with the majority to the extent it suggests that a search
is less intrusive if conducted by school officials, rather than police. I
am aware of no authority suggesting that Article I, Section 11 applies more
stringently to police activity than that of other government agencies. Nor does
the text of Article I, Section 11 support such a result. The
majority emphasizes the words police and law enforcement in the cited portions of
Baldwin v. Reagan, 715 N.E.2d 332 (Ind. 1999), Brown, 653 N.E.2d 77 (Ind.
1995), and Moran v. State, 644 N.E.2d 536 (Ind. 1994) to suggest that
Article I, Section 11 carries greater weight in those situations than when school
officials conduct is at issue. Those cases referred to police activity because
the seizures in those cases were conducted by police officers. There is
nothing in those cases to suggest a different result if the seizure were
conducted by a different arm of government. Indeed, other cases frequently refer
to the constraint on searches by government in general, not just by the
police. See Moran, 644 N.E.2d at 540 (The protection afforded [by Article
I, Section 11] is against official and not private acts.); Hutchinson v. State,
477 N.E.2d 850, 853 (Ind. 1985) (The constitutional prohibitions against unreasonable searches and
seizures provide protection from such acts by the government.); Torres v. State, 442
N.E.2d 1021, 1023 (Ind. 1982) (same); cf. New Jersey v. T.L.O., 469 U.S.
at 335 ([T]his Court has never limited the [Fourth] Amendments prohibition on unreasonable
searches and seizures to operations conducted by the police.).
I agree with the majority that, in some cases, suspicionless searches conducted by
schools have been upheld under circumstances that would preclude a search by law
enforcement. But it is not the identity of the searching government agents
that makes this so. It is the nature of the intrusion and
the reasons justifying it. That a school, rather than the police, is
charged with the unreasonable conduct is not an automatic invitation to apply the
mandate of Article I, Section 11 with less force.
2. Preventative/Rehabilitative versus Punitive Purposes
I do not place much stock in the fact that the results of
NSCs drug tests are not routinely volunteered to law enforcement authorities. Regardless
of the stated purpose of the testing, I do not agree with the
majority that [a] preventative or rehabilitative search is inherent to a school corporations
function. Indeed, I find no support for such a notion. A
school corporations inherent function is to educate, not to monitor an arbitrarily defined
category of students for the use of drugs, alcohol or nicotine, or compliance
with other laws. The testing conducted in Vernonia was necessary to that
schools inherent educational function because the education of the students was severely affected
by the immediate crisis prompted by the sharp rise in students use of
unlawful drugs. Chandler, 520 U.S. at 319. This crisis included severe
disruption of classroom activities.
In any case, NSCs program is not the method of preserving a proper
educational environment envisioned by T.L.O., on which the majority relies. T.L.O. dealt
with smoking in the school and the ability of teachers and principals to
respond swiftly to address conduct in the educational environment without adhering to the
formal requirements of the Fourth Amendment. These situations certainly may require immediate
action. But that is not the case presented by NSC. Nor
does NSC argue that its students have run amok, as was the case
in Vernonia. Finally, there is no claim that the testing of these
groups of students, distinct from the population as a whole, has any relation
to NSCs perceived drug problem. The Tenth Circuit, in Earls v. Tecumseh
Pub. Sch. Dist. No. 92, 242 F.3d 1264 (10th Cir. 2001), cert. granted,
122 S. Ct. 509 (Nov. 8, 2001), invalidated a drug testing program for
that reason. The majority distinguishes Earls based on differences between its policy
and NSCs. But Earls turned not on the nature of the school
districts policy, but on the classification of students subjected to the searches.
The Tenth Circuit saw little efficacy in a drug testing policy which tests
students among whom there is no measurable drug problem. 242 F.3d at
1277. Finally, the preventative nature of NSCs program proves too much.
If it is a legitimate objective, it gives reason for NSC to test
every student. Willis v. Anderson Cmty. Sch. Corp., 158 F.3d 415, 422
(7th Cir. 1998), cert. denied, 526 U.S. 1019 (1999) (If [deterrence] were the
only relevant consideration, Vernonia might as well have sanctioned blanket testing of all
children in public schools. And this it did not do.). Of
course, such testing is not permissible. Cf. Joy, 212 F.3d at 1067
([T]he case has yet to be made that a urine sample can be
the tuition at a public school.).
As T.L.O. reminded us: [T]he reasonableness standard should ensure that the interests of
students will be invaded no more than is necessary to achieve the legit
end of preserving order in the schools. The rights of NSCs studentsor
at least the ones NSC has chosen to testshould be subject to no
more of an intrusion than necessary to achieve NSCs interest in preserving order
in its schools. In my view, the issue is not, as the
majoritys reasoning suggests, whether NSCs policy is comparable to those imposed at other
schools and documented in other cases. Rather it is whether NSCs program,
and its suspicionless testing of broad categories of students, is justified at all.
It is incumbent upon NSC to prove this, and its failure to
do so leaves its program well short of complying with Article I, Section
NSCs Governmental Concern and Efficacy of its Program
1. NSC Presents No Concrete Danger as to the Students it Tests
The final factor in the special needs balance is the nature and immediacy
of NSCs concern and the efficacy of its testing program in addressing it.
Vernonia, 515 U.S. at 660. The majoritys treatment of Vernonia suggests
that the phrase special need means nothing more than that a school may
identify a drug problem and thereafter impose random drug testing on any student
engaged in an extra- or co-curricular activity. I do not read Vernonia
that broadly. NSC carries the burden of proving why its searches fall
within the special needs doctrine, as applied in Vernonia, and later clarified in
Chandler. In my view, it fails to establish the concrete danger to
which its program responds, orassuming the presence of a concrete dangerthat the program
in its present form is tailored to address it.
Chandler, the United States Supreme Court explained that the proffered special need
for drug testing must be substantialimportant enough to override the individuals acknowledged privacy
interest, sufficiently vital to suppress the Fourth Amendments normal requirement of individualized suspicion.
520 U.S. at 318. To invoke the special needs doctrine, the
proponent of such a testing program must demonstrate a concrete danger. Id.
at 319. In Vernonia, the concrete danger with regard to the schools
student athletes was evident and described as a state of rebellion. 515
U.S. at 662-63. A variety of problems in the school environment were
cited. NSC argues that the survey results and the deaths of two
students in a ten-year period justify the program it has put into place.
But neither of these circumstances involved the classroom disruption cited in Vernonia,
and NSCs superintendent could not point to any increase in discipline problems attributable
to substance abuse. It may not take an epidemic before a school
justifiably institutes a drug testing program. But it must take more than
the evidence presented by NSC. If not, Article I, Section 11 may
fairly be said to provide little, if any, protection to Indianas students.
The concerns cited by NSC are of course significant. But even if
they rose to the level sufficient to support some testing program, NSCs program
is not justified by its evidence. In Joy, the Seventh Circuit addressed
an Indiana schools testing policy similar to NSCs. Although the particulars of
the policy are unimportant to the present case, the Seventh Circuits analysis is
The court assessed the nature of the governments interest, in part,
by examining whether a correlation existed between the defined test population and the
abuse. NSCs evidence of substance abuse in its schools is a survey
given to students in grades seven through ten. However the results do
not suggest a correlation between the percentage of students claiming to have used
a given substance and those students who participate in an activity covered by
NSCs testing program. The survey cited by NSC may indeed demonstrate a
. . . correlation between student drug use and a need to test.
What it does not do is demonstrate a correlation between drug use
among the general student population and a need to test the students who
are subject to the program. Cf. id. at 685 (OConnor, J., dissenting)
(criticizing the school districts decision to test student athletes as a choice that
appears to have been driven more by a belief in what would pass
constitutional muster . . . than by a belief in what was required
to meet the Districts principal disciplinary concern.). NSC cites Joy and Vernonia
in support of its claim that [u]nder a reasonableness standard the federal courts
have found that findings like this do in fact provide a basis for
testing. The majority appears to accept this argument. I think this
misses the point of Joy and Vernonia.
Here, as in
Joy, NSC has not proven, or even attempted to prove,
that a correlation exists between drug use and those who engage in extracurricular
activities or drug use and those who drive to school. 212 F.3d
at 1064. Thus, NSCs program amounts to dividing the students into broad
categories and drug testing on a category-by-category basis, which allows for drug testing
for all but the most uninvolved and isolated students. Id. (citing Willis,
158 F.3d at 423). Willis appropriately described such a program as one
insidious means toward blanket testing. 158 F.3d at 423.
2. Suspicion-Based Testing is Feasible
One driving force in the United States Supreme Courts opinion in Vernonia was
the Courts conclusion that a program based on individualized suspicion would entail substantial
difficultiesif it [were] indeed practicable at all in order to handle the immediate
crisis present in the Vernonia school district. As explained in Part II.C.1,
NSC does not proffer evidence of a concrete danger of an immediate nature
as to the students it tests. Further, as the majority points out,
NSCs program not only entails random testing of the selected groups of students,
but also provides that [s]tudents may also be entered into the testing program
at the request of their parent . . . when a student shows
signs of drug use that provides reasonable suspicion to search a student. (emphasis
added). By its own terms, NSCs policy purports to have the ability
to determine when a reasonable suspicion is present for a given student.
I recognize and agree that suspicion-based searches can lead to abuses if the
grounds for suspicion are not sufficiently articulable. As noted in State v.
Gerschoffer, a scheme of random searches may be less subject to abuse in
the form of profiling or arbitrary enforcement than one that requires reasonable suspicion.
__ N.E.2d __ (Ind. 2002) (citing Akhil Reed Amar, Fourth Amendment First
Principles, 107 Harv. L. Rev. 757, 809 (1994)). Nevertheless, the broader the
net cast, and the weaker the case for any program at all, the
less persuasive this consideration becomes. Thus airport searches of everyone or of
randomly selected passengers may be very reasonable under current circumstances. But NSCs
program subjects nearly eighty percent of its middle and high school students to
random tests, based on this very tenuous claim of a concrete danger.
In Willis, 158 F.3d at 421, the Seventh Circuit Court of Appeals stated,
Under the Vernonia formulation, courts consider the feasibility of a suspicion-based search when
assessing the efficacy of the governments policy. The testing program in Willis
required students who were suspended for three or more days to submit to
urinalysis upon their return. Willis was suspended for fighting, but refused to
undergo testing upon his return. The Anderson policy, like NSCs policy, was implemented
to help identify and intervene with those students who are using drugs as
soon as possible and to involve the parents immediately. Id. at 417.
The Seventh Circuit, holding the program violated the Fourth Amendment, found it
significant that the Corporation has not demonstrated that a suspicion-based system would be
unsuitable, in fact would not be highly suitable. Id. at 424-25.
The court noted:
As a practical matter, it may be that when a suspicion-based search is
workable, the needs of the government will never be strong enough to outweigh
the privacy interests of the individual. Or, stated slightly differently, perhaps if
a suspicion-based search is feasible, the government will have failed to show a
special need that is important enough to override the individuals acknowledged privacy interest,
sufficiently vital to suppress the Fourth Amendments normal requirement of individualized suspicion.
Id. at 421 (quoting Chandler, 520 U.S. at 318). Whether a suspicion-based
system is feasible is just one factor in our totality of the circumstances
analysis, but I believeas Willis illustratesit is a significant one in the balance
of whether the system is reasonable. Given the fact that NSCs own
policy contemplates suspicion-based testing for some students, what is practicable for some is
practicable for all.
III. Article I, Section 23 Concerns
Article I, Section 23 of the Indiana Constitution states: The General Assembly shall
not grant to any citizen, or class of citizens, privileges or immunities which,
upon the same terms, shall not equally belong to all citizens. I
agree with the majoritys recitation of the standard in Collins v. Day, 644
N.E.2d 72 (Ind. 1994). However, for many of the reasons stated in
Part II, I believe NSCs testing program runs afoul of Article I, Section
Section 23 requires that governmental classifications be based on inherent characteristics of the
classified group and that the classifications be reasonably related to the characteristics that
define the group.
Collins, 644 N.E.2d at 79. Like many legislative
classifications, this is one that defines a group that has individuals entering and
leaving all the time as students join and drop out of various activities.
As the majority points out, defining the group by membership in these
activities meets the Collins requirement of inherent characteristics which distinguish NSC students who
are tested from NSC students who are not tested. However, the stated
purpose of NSCs testing is to provid[e] for the health and safety of
students, and undermin[e] the effects of peer pressure by providing a legitimate reason
for students to refuse to use illegal drugs and . . . encourag[e]
students who use drugs to participate in drug treatment programs. Nothing in
that stated purpose signifies that NSC is more concerned about the health and
safety of the students who participate in the regulated activities than those who
do not. Nor is there anything about the covered categories of students
to suggest that those students are more susceptible to the effects of peer
pressure than their non-tested colleagues. Therefore, I cannot agree that the disparate
treatment of requiring testing of some students rather than others is in any
way reasonably related to the distinction NSC makes between them.
In conclusion, I would find NSCs testing program, in its current form, invalid
under both Article I, Section 11 and Article I, Section 23 of the
Indiana Constitution. NSC has not presented significant evidence of a concrete danger
requiring the implementation of its policy, as it currently stands. At the
very least, NSC has not presented any evidence of a severe drug or
discipline problem among the tested categories of students. NSCs distinction between the
tested and untested students has no rational basis, and its testing program (a)
fails to overcome the Linkes privacy interest, under the Vernonia analysis, for substantial
lack of efficacy, and (b) fails the Collins equal rights and privileges analysis
because the distinction is not reasonably related to the policys stated purpose.
The majority contends that, having identified a drug problem . . . gives
[NSC] an interest in experimenting with methods to deter drug use. I
agree that, if a drug problem is present at NSC, it certainly has
the right to experiment and determine the most effective method of combating the
problem. However, that experimentation must have a constitutionally valid form.
RUCKER, J., concurs.
Co-curricular activities are activities, participation or membership in which are an extension
of and outside the normal school day and for which academic credit or
grades are earned, such as band and choir.
Footnote: Students may also be entered into the testing program at the request
of their parent or guar
dian or with the permission of the parent or
guardian when a student shows signs of drug use that provides reasonable suspicion
to search a student.
The Policy permits testing for alcohol, amphetamines, anabolic steroids, barbiturates, benz
metabolites, LSD, marijuana metabolites, methadone, methaqualone, nicotine, opiates, phencyclidine, and propoxyphene. Although
the Policy allows for testing of other specified drugs, no other drugs are
We note that the
Earls court found that a random drug testing
policy violated the Fourth Amendment. The policy it reviewed differs from the
one before us in three principal respects: (1) it did not take the
same care in protecting student privacy; (2) there was much less evidence of
drug abuse than has been presented here; and (3) students were required to
pay for tests, thus creating a fee requirement for public school extracurricular activities.
Ind. Code § 20-8.1-5.1-3 provides:
(a) Student supervision and the desirable behavior of students in carrying out school
rposes is the responsibility of a school corporation and the students of a
(b) In all matters relating to the discipline and conduct of students, school
corporation personnel stand in the relation of parents and guardians to the students
of the school corporation. Therefore, school corporation personnel have the right, subject
to this chapter, to take any disciplinary action necessary to promote student conduct
that conforms with an orderly and effective educational system.
(c) Students must follow responsible directions of school personnel in all educational settings
and refrain from disruptive behavior that interferes with the education environment.
Ind. Const. art VIII, § 1, provides:
Knowledge and learning, general diffused throughout a community, being essential to the preservation
of a free government; it should be the duty of the General Assembly
to encourage, by all suitable means, moral, intellectual scientific, and agricultural improvement; and
provide, by law, for a general and uniform system of Common Schools, wherein
tuition shall without charge, and equally open to all.
Footnote: Those activities are academic teams, drama, Future Farmers of America, National Honor
Society, student government, and Students Against Drunk Driving.
Footnote: Activities not subject to the Policy include the Euchre Club, New Student
Q&A, Ecology Club, Fellowship of Christian Athletes, Foreign Language Club, Peer Helpers, Sunshine
Society, Newspaper, Yearbook, Science Club, Teen Issues, Sports Memorabilia, and Chess Club.
Footnote: Specifically, the Supreme Court cited district court findings that:
Between 1988 and 1989 the number of disciplinary referrals in Vernonia schools rose
to more than twice the number reported in the early 1980s, and several
students were suspended. Students became increa
singly rude during class; outbursts of profane
language were common.
Not only were student athletes included among the drugs users but, . .
. athletes were the leaders of the drug culture.
. . . .
[A] large segment of the student body, particularly those involved in interscholastic athletics,
was in a state of rebellion, . . . [d]isciplinary actions had reached
epidemic proportions, and . . . the rebellion was being fueled by alcohol
and drug abuse as well as by the students misperceptions about the drug
515 U.S. at 649, 662-63.
The Court rejected the argument that
Von Raab carried greater weight, and
admonished, Von Raab must be read in its unique context. Chandler, 520
U.S. at 321.
By contrast, the legislature has specifically spelled out the procedure for locker
searches. Ind. Code § 20-8.1-5.1-25 (1998).
Footnote: I cite the recent motion picture American Pie II, which I confess
to having viewed by reason of friendship with the parents of its director,
whom I have known from childhood. I believe most of us could
provide more persuasive authority from our own experiences in high school.
Footnote: The court in
Joy upheld the policy at issue as to its
testing of students participating in extra-curricular activities, but the only apparent reason for
that conclusion was the panels compulsion, under stare decisis, to follow the Seventh
Circuits earlier holding in Todd v. Rush County Sch., 133 F.3d 984 (7th
Cir. 1998), cert. denied, 525 U.S. 824 (1998), upholding a similar policy.
For the reasons expressed throughout this opinion, I disagree with the reasoning in