Attorneys for Amici Curiae

Anthony S. Benton
Laura L. Bowker
Stuart & Branigin
Lafayette, IN

David R. Day
Johnson, Smith, Pence & Heath LLP
Indianapolis, IN

David J. Emmert
Indianapolis, IN
Attorneys for Appellee

Julia Blackwell Gelinas
John H. Daerr
Thomas E. Wheeler, II
Locke, Reynolds LLP
Indianapolis, IN

(By their next friends and parents),
SCOTT L. LINKE and NOREEN L. LINKE,
 Appellants (Plaintiffs below         ),

                                 v.
                                  

NORTHWESTERN SCHOOL CORP.,
Appellee (Defendant below).

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)    Supreme Court No.
)    34S05-0103-CV-151
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)    Court of Appeals No.
)    34A05-9910-CV-467
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    Rosa and Reena Linke, students in the Northwestern School Corporation in Howard County, contend that the school’s 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 nstitutional.

    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 NSC’s 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 of admi nistrators, teachers, staff, and interested parents was formed to examine NSC’s approach to drugs. In order better to fulfill NSC’s 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 student’s 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 See footnote 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. See footnote 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. See footnote 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 student’s 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 school.

Athletes testing positive are governed by an athletic code of conduct. Students pa 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 school’s expense, when the drug for which the student tested positive would be expected to have disappeared from the student’s 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 driver’s 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).

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.

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 at 259.

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 their pupils.

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 corporation’s 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.

    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 school’s 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 student’s 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 children’s 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 minor’s liberty in the exercise of discipline, rehabilitation, and training). Rather than bolster their argument, the Linkes’ cited authority reinforces the principle that a minor’s 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 legislature’s 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 student’s privacy interest is consent. A voluntary decision to submit to random drug testing further decreases the student’s legitimate expectation of privacy, increasing the likelihood of a testing policy’s 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 Policy’s 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 today’s 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 school’s 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. “Today’s 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 the activities.

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 student’s Section 11 privacy interest.

    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 Acton.

    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 student’s Section 11 privacy interest than a non-punitive search conducted in furtherance of a school’s 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 corporation’s 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. at 339.

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 State’s general interest in law enforcement).

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 footnote see also Ind. Const. art. VIII, § 1. See footnote In the mid-1990s, drug usage in NSC’s 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 acquired mo 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 school’s 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. NSC’s 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).

    NSC’s 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 principal’s 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 corporation’s 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 District’s 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.), aff’d 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 NSC’s 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. NSC’s 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 NSC’s 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 State’s 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 (citation omitted).

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 NSC’s legitimate interest in this matter. We do note that the strength of NSC’s 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 school’s 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.

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 citizens.

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 st 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" test met.

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. (Id.)

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.

SHEPARD, C.J., and DICKSON, J., concur.
BOEHM, J., dissents with separate opinion in which RUCKER, J., concurs.

Kenneth J. Falk
Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE

Anthony S. Benton
Laura L. Bowker
Lafayette, Indiana

David R. Day
Indianapolis, Indiana

David J. Emmert
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE

Julia Blackwell Gelinas
John H. Daerr
Thomas E. Wheeler, II    
Indianapolis, Indiana

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 believe—as Willis illustrates—it is a significant one in the balance of whether the system is reasonable. Given the fact that NSC’s own policy contemplates suspicion-based testing for some students, what is practicable for some is practicable for all.

515 U.S. at 649, 662-63.