DRUG TESTING, INDIVIDUALIZED SUSPICION, AND THE FOURTH AMENDMENT: The Supreme Court's Upcoming Choice Between Two Competing Approaches

The basic structure of the Supreme Court's Fourth Amendment jurisprudence will be put to the test when the Court hears oral arguments later this month in Board of Education v. Earls. The case involves a local school board rule on high school drug testing. The rule requires each student participating in any extracurricular activity-band, choir, or even the Future Farmers of America-to submit a urine sample to be tested.

We think the school board policy is unreasonable, and thus unconstitutional under the Fourth Amendment. We also think the case provides the Court an excellent opportunity to begin to develop a more coherent approach to the Fourth Amendment than it has in the past.

Two Fourth Amendment Cases, Using Two Competing Methods

Drug testing is hardly a new issue for the Supreme Court.

Seven years ago, in Vernonia School District 47J v. Acton, the Justices upheld a policy under which a school randomly tested high school athletes for drug use. The Court found that the policy was "reasonable" within the meaning of the Fourth Amendment. In particular, the Court held that in a variety of ways--communal showers and locker rooms, close physical contact with fellow athletes, and the general need to undergo physical exams and medical testing--student athletes had already surrendered much of their privacy. The Court also noted that student athletes are often role models in high school, and are especially at risk of physical injury if playing while on drugs.

Two years later, in Chandler v. Miller, the Supreme Court invoked the Fourth Amendment to strike down a Georgia law that required a drug test for each candidate seeking access to the statewide ballot. In invalidating the ballot law, the Court stressed that Georgia had no individualized reason to suspect each candidate of illegal drug use.

The Vernonia Court employed a broad "reasonableness" framework in analyzing the high school drug test. Yet the Chandler Court instead narrowly emphasized the absence of "individualized suspicion" as the generally decisive factor. This Term's case, Earls, affords the Court a chance to resolve the tension between these two competing approaches by synthesizing the best of both.

Building on Vernonia, the Court should articulate a general framework of Fourth Amendment reasonableness. Building on Chandler, the Court should ensure that this framework has real bite-that government intrusions receive careful judicial review, not casual judicial rubberstamping.

Chandler is simply one in a long line of Supreme Court cases that state or imply that, ordinarily, government searches and seizures must be justified by some particularized suspicion - some individualized reason to believe the specific person to be searched or seized has done something wrong. However, there is also a line of cases in which the Court has implicitly or explicitly departed from its general requirement of individualized suspicion.

The Justices have never clearly explained why these departures are appropriate, or indeed, where the requirement of individualized suspicion comes from in the first place. The words "individualized suspicion" nowhere appear in the Fourth Amendment itself. Moreover, the words "probable cause" are mentioned in the Amendment only in connection with warrants, not warrantless searches like drug tests:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Back to basics: The text and history of the Fourth Amendment do not invariably, or even presumptively, require warrants to be issued for every search and seizure. (Searches at the national border, for example, have never required warrants.) Nor does the Amendment always require probable cause or "reasonable suspicion" (a term the Court coined to describe a watered-down version of probable cause) or even any individualized reason for searching or seizing.

Instead, the Amendment requires that searches and seizures not be "unreasonable." Recognizing the power of this language, the Court has, in a number of recent decisions such as Vernonia, begun to focus on overall reasonableness as the "central requirement" of the Amendment.

Detractors attack this approach as too free form and too underprotective. They fear that without the elaborate categorical constructs of probable cause, individualized suspicion, particularized warrants and the like, the Fourth Amendment's structure and protections will collapse. After all, they say, when courts focus only on reasonableness, the government seems to win - as happened, for example, in Vernonia itself.

We disagree. An overall reasonableness inquiry need not be weak or unstructured. Instead, its structure should come from the same sources at work in much other constitutional interpretation-from history, from themes and values that run through the entire Constitution, from judge-made tests and formulations, and from the common sense of the American people.

Fashioning a General Reasonableness Framework

At the Founding, civil trespass suits were the typical remedy to redress unlawful searches and seizures. When a government official got too grabby, the person searched or seized sued the official, and the court (often with the aid of a jury) decided whether the official had acted reasonably. If not, he paid (with the government often indemnifying him). Thus, tort law principles and civil juries that apply them can provide some guidance in thinking about Fourth Amendment reasonableness.

These constitutional values involve not just privacy, but also democratic legitimacy, freedom of expression and political participation, personal respect and dignity, just compensation, property protection, due process, equality and the like. These profound and recurring themes-which find expression in the original Constitution of 1787, the Bill of Rights, the Reconstruction Amendments after the Civil War, and the Twentieth Century improvements to the document-should inform each Fourth Amendment case.

So too should notions of proportionality and nexus-the fit between the government's ends and its chosen means. Courts have developed and applied tests that explore this fit between means and ends in a wide range of constitutional settings.

Finally, the common sense of the American people - acting collectively through election results, jury verdicts, community advisory boards, longstanding traditions, and general legal patterns - will bear on the reasonableness of any government search or seizure. After all, the right that the Fourth Amendment speaks of is a right of the people to be secure.

Democracy and Equality: Higher Scrutiny When Nonvoters Are Targeted

Now apply all this to the dispute between Lindsay Earls and the school board of Pottawatomie County, Oklahoma. For starters, note that the school board policy at issue was not embodied in any Act of Congress or state statute. And while school board policies are entitled to respect, they cannot be granted the same kind of deference constitutional law generally affords a statutory enactment that has been considered by various legislative committees, with input from the Chief Executive of a state or the federal government.

The democratic legitimacy of the school board policy is further weakened by the fact that the policy applies only to a group whose members lack voting rights. Although in the 1970's the Twenty-Sixth Amendment lowered the voting age to 18, the vast majority of high schoolers still cannot vote. Where a law singles out for inferior treatment a distinct class that cannot defend itself in the political arena, constitutional principles of equality, fairness and democracy call for rigorous judicial review.

Skepticism is also warranted because the local policy is so unusual. Very few other high school boards across America have authorized such sweeping drug testing. Thus, this kind of policy cannot yet be said to have been broadly embraced by the American people-a key fact in construing an amendment that explicitly speaks in the name of the people, and that uses a concept, "reasonableness," that is socially defined and changes over time.

Indeed, the school board not only could not cite a general consensus among high schools in favor of broad drug testing, it also failed to identify a single junior colleges or university that has made drug testing a prerequisite to participation in all extracurricular activities. Yet there is little reason to believe that high schoolers use drugs more often or more dangerously than college students.

What is the likely explanation for the absence of similarly sweeping drug tests in college? It is the simple political fact that college-aged students can vote against such draconian policies, and the large majority of high schoolers cannot. But of course this explanation argues against the overall reasonableness of Pottawatomie's policy: government is targeting nonvoters without good reason for singling them out.

Consider next how the policy actually operates. Sometimes, a search can be upheld because its burden is so slight and is imposed generally. For example, metal detectors at airports are widely seen as reasonable, even though there is no individualized suspicion to justify their use.

Conversely, sometimes the burden may be so severe that government cannot reasonably impose it even if there is lots of individualized suspicion. For example, in Winston v. Lee, the Court prevented the surgical retrieval of a bullet from a person's chest, even though there was probable cause to believe the bullet was there, and was marginally relevant to a court proceeding. The Court reasoned that because the proposed intrusion-a compelled operation under general anesthesia-was so substantial, and the need for the bullet on the facts of the case was rather slight, the seizure and search of the person that the operation would effect would not be reasonable despite the presence of individualized suspicion.

The burden imposed by Pottawatomie County-the forced production of urine under the supervision of a teacher-is highly intrusive, unlike the slight intrusion of being forced to walk through a metal detector, or showing a driver's license at a checkpoint. The Fourth Amendment singles out for special protection intrusions into the human body-intrusions upon "persons." It's hard to imagine something more personal than having a government official monitoring your urination. General tort law confirms this intuition, and highlights the need for special sensitivity to issues of personal dignity.

Nor should Pottawatomie County's intrusion be trivialized on the theory that students are free to avoid this surveillance by opting out of extracurricular activities. These activities are an important part of modern high school life, both because they are intrinsically fulfilling, and because they are increasingly important to competitive colleges choosing between applicants. (Lindsay Earls is now in her freshman year at Dartmouth, and credits her high school activities with improving her odds of admission.)

Rationality and Proportionality

Given the serious intrusion, judges must insist on a serious government interest that is significantly furthered before blessing the policy as reasonable. The school district's asserted interests of deterring illegal drug use are substantial. But there is no tight fit between that goal and the means chosen here.

Crucially, there is no reason to believe that students who want to be in the choir or the chess club are more likely to use drugs than all other students. (Indeed, one might think students who choose to forgo participating in any extracurricular activities at all might be more disaffected with school, and more likely to use drugs in their greater leisure time - though some of these students might instead need to work afterschool jobs or take care of siblings.)

That lack of fit between ends (deterrence of drug use) and means (testing only those engaged in extracurricular activities) decisively distinguishes the Earls case from the student athlete drug testing upheld in the Vernonia case. The Vernonia Court explicitly relied on the facts that athletes were the leaders of the local high school drug culture, that athletic participation itself created special health risks for those on drugs, and that the incremental intrusion of a drug test was small given the other privacy intrusions inherent in sports themselves. Athletes also face special temptations to take drugs such as steroids to boost their athletic performance. None of these factors applies to the school stamp club.

Indeed, if Pottawatomie County's program were upheld, it is hard to see why a program requiring all high school students to submit to drug testing before entering the classroom would not likewise pass muster. In Earls, unlike Vernonia, the extracurricular activities have nothing to do with drugs. Rather, they are just a hook for the government to use to search kids.

The Earls policy is unreasonable - but, importantly, it is not unreasonable because the searches are done without warrants, or without probable cause or individualized suspicion. Rather, it is unreasonable when measured against more general constitutional themes of democracy and equality, personal privacy and dignity, and overall rationality.

In the course of straightening out the school district in Pottawatomie County, the Supreme Court should also use the Earls case to straighten out its own rather tangled Fourth Amendment jurisprudence. Building on the words of the Constitution and on the best of its case law, the Court should fashion a general reasonableness framework that explicitly takes account of the Constitution's central themes and the common sense of the American people.