(Cite as: 515 U.S. 646, 115 S.Ct. 2386)
Supreme Court of the United States
VERNONIA SCHOOL
DISTRICT 47J, Petitioner,
v.
Wayne ACTON, et
ux., etc.
No. 94-590.
Argued March 28, 1995.
Decided June 26, 1995.
Student and his
parents brought action against school district, challenging random urinalysis
requirement for participation in interscholastic athletics. The United States
District Court for the District of Oregon, Malcolm F. Marsh, J., upheld policy,
796 F.Supp. 1354, and student appealed. The Court of Appeals, Fernandez, J., 23
F.3d 1514, reversed and remanded, and certiorari review was sought. The Supreme
Court, Justice Scalia, held that public school district's student athlete drug
policy did not violate student's federal or state constitutional right to be
free from unreasonable searches.
Vacated and
remanded.
Justice Ginsburg,
concurred and filed opinion.
Justice O'Connor
dissented and filed opinion in which Justice Stevens and Souter, joined.
West Headnotes
"search"
**2387 Syllabus [FN*]
FN* The syllabus constitutes no part of the opinion of the
Court but has been prepared by the Reporter of Decisions for the convenience of
the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26
S.Ct. 282, 287, 50 L.Ed. 499.
*646
Motivated by the discovery that athletes were leaders in the student drug
culture and concern that drug use increases the risk of sports- related injury,
petitioner school district (District) adopted the Student Athlete Drug Policy
(Policy), which authorizes random urinalysis drug testing of students who
participate in its athletics programs. Respondent Acton was denied
participation in his school's football program when he and his parents (also
respondents) refused to consent to the testing. They then filed this suit,
seeking declaratory and injunctive relief on the grounds that the Policy
violated the Fourth and Fourteenth Amendments and the Oregon Constitution. The
District Court denied the claims, but the Court of Appeals reversed, holding
that the Policy violated both the Federal and State Constitutions.
Held: The Policy is
constitutional under the Fourth and Fourteenth Amendments. Pp. 2390-2397.
(a) State-compelled
collection and testing of urine constitutes a "search" under the
Fourth Amendment. Skinner v. Railway Labor Executives' Assn., 489 U.S. 602,
617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639. Where there was no clear practice,
either approving or disapproving the type of search at issue, at the time the
constitutional provision was enacted, the "reasonableness" of a
search is judged by balancing the intrusion on the individual's Fourth
Amendment interests against the promotion of legitimate governmental interests.
Pp. 2390-2391.
(b) The first
factor to be considered in determining reasonableness is the nature of the
privacy interest on which the search intrudes. Here, the subjects of the Policy
are children who have been committed to the temporary custody of the State as
schoolmaster; in that capacity, the State may exercise a degree of supervision
and control greater than it could exercise over free adults. The requirements
that public school children submit to physical examinations and be vaccinated
indicate that they have a lesser privacy
**2388 expectation with regard to medical examinations and procedures than
the general population. Student athletes have even less of a legitimate privacy
expectation, for an element of communal undress is inherent in athletic
participation, and athletes are *647
subject to preseason physical exams and rules regulating their conduct. Pp.
2391-2393.
(c) The privacy
interests compromised by the process of obtaining urine samples under the
Policy are negligible, since the conditions of collection are nearly identical
to those typically encountered in public restrooms. In addition, the tests look
only for standard drugs, not medical conditions, and the results are released
to a limited group. Pp. 2393-2394.
(d) The nature and
immediacy of the governmental concern at issue, and the efficacy of this means
for meeting it, also favor a finding of reasonableness. The importance of
deterring drug use by all this Nation's schoolchildren cannot be doubted.
Moreover, the Policy is directed more narrowly to drug use by athletes, where
the risk of physical harm to the user and other players is high. The District
Court's conclusion that the District's concerns were immediate is not clearly
erroneous, and it is self-evident that a drug problem largely caused by
athletes, and of particular danger to athletes, is effectively addressed by
ensuring that athletes do not use drugs. The Fourth Amendment does not require
that the "least intrusive" search be conducted, so respondents'
argument that the drug testing could be based on suspicion of drug use, if
true, would not be fatal; and that alternative entails its own substantial
difficulties. Pp. 2394-2396.
23 F.3d 1514 (CA9
1994), vacated and remanded.
SCALIA, J.,
delivered the opinion of the Court, in which REHNQUIST, C.J., and KENNEDY,
THOMAS, GINSBURG, and BREYER, JJ., joined. GINSBURG, J., filed a concurring
opinion, post, p. 2397. O'CONNOR, J., filed a dissenting opinion, in which
STEVENS and SOUTER, JJ., joined, post, p. 2397.
Timothy R. Volpert,
Portland, OR, for petitioner.
Richard H. Seamon,
Washington, DC, for U.S. as amicus curiae, by special leave of the Court.
*648
Thomas M. Christ, Portland, OR, for respondents.
Justice SCALIA
delivered the opinion of the Court.
The Student Athlete
Drug Policy adopted by School District 47J in the town of Vernonia, Oregon,
authorizes random urinalysis drug testing of students who participate in the
District's school athletics programs. We granted certiorari to decide whether
this violates the Fourth and Fourteenth Amendments to the United States
Constitution.
I
A
Petitioner Vernonia
School District 47J (District) operates one high school and three grade schools
in the logging community of Vernonia, Oregon. As elsewhere in small-town
America, school sports play a prominent role in the town's life, and student
athletes are admired in their schools and in the community.
Drugs had not been
a major problem in Vernonia schools. In the mid-to-late 1980's, however,
teachers and administrators observed a sharp increase in drug use. Students
began to speak out about their attraction to the drug culture, and to boast
that there was nothing the school could do about it. Along with more drugs came
more disciplinary problems. *649
Between 1988 and 1989 the number of disciplinary referrals in Vernonia schools
rose to more than twice the number reported in the early 1980's, and several
students were suspended. Students became increasingly rude during class;
outbursts of profane language became common.
Not only were
student athletes included among the drug users but, as the District **2389 Court found, athletes were the
leaders of the drug culture. 796 F.Supp. 1354, 1357 (Ore.1992). This caused the
District's administrators particular concern, since drug use increases the risk
of sports- related injury. Expert testimony at the trial confirmed the
deleterious effects of drugs on motivation, memory, judgment, reaction,
coordination, and performance. The high school football and wrestling coach
witnessed a severe sternum injury suffered by a wrestler, and various omissions
of safety procedures and misexecutions by football players, all attributable in
his belief to the effects of drug use.
Initially, the
District responded to the drug problem by offering special classes, speakers,
and presentations designed to deter drug use. It even brought in a specially
trained dog to detect drugs, but the drug problem persisted. According to the
District Court:
"[T]he administration was at its wits end and ... a
large segment of the student body, particularly those involved in
interscholastic athletics, was in a state of rebellion. Disciplinary actions
had reached 'epidemic proportions.' The coincidence of an almost three-fold
increase in classroom disruptions and disciplinary reports along with the
staff's direct observations of students using drugs or glamorizing drug and
alcohol use led the administration to the inescapable conclusion that the
rebellion was being fueled by alcohol and drug abuse as well as the student's
misperceptions about the drug culture." Ibid.
At that point,
District officials began considering a drug-testing program. They held a parent
"input night" to discuss *650
the proposed Student Athlete Drug Policy (Policy), and the parents in
attendance gave their unanimous approval. The school board approved the Policy
for implementation in the fall of 1989. Its expressed purpose is to prevent
student athletes from using drugs, to protect their health and safety, and to
provide drug users with assistance programs.
B
The Policy applies
to all students participating in interscholastic athletics. Students wishing to
play sports must sign a form consenting to the testing and must obtain the
written consent of their parents. Athletes are tested at the beginning of the
season for their sport. In addition, once each week of the season the names of
the athletes are placed in a "pool" from which a student, with the
supervision of two adults, blindly draws the names of 10% of the athletes for
random testing. Those selected are notified and tested that same day, if
possible.
The student to be
tested completes a specimen control form which bears an assigned number.
Prescription medications that the student is taking must be identified by
providing a copy of the prescription or a doctor's authorization. The student
then enters an empty locker room accompanied by an adult monitor of the same
sex. Each boy selected produces a sample at a urinal, remaining fully clothed
with his back to the monitor, who stands approximately 12 to 15 feet behind the
student. Monitors may (though do not always) watch the student while he
produces the sample, and they listen for normal sounds of urination. Girls
produce samples in an enclosed bathroom stall, so that they can be heard but
not observed. After the sample is produced, it is given to the monitor, who
checks it for temperature and tampering and then transfers it to a vial.
The samples are
sent to an independent laboratory, which routinely tests them for amphetamines,
cocaine, and marijuana. Other drugs, such as LSD, may be screened at the *651 request of the District, but the
identity of a particular student does not determine which drugs will be tested.
The laboratory's procedures are 99.94% accurate. The District follows strict
procedures regarding the chain of custody and access to test results. The
laboratory does not know the identity of the students whose samples it tests.
It is authorized to mail written test reports only to the superintendent and to
provide test results to District personnel by telephone only after the
requesting official recites a code confirming his authority. Only the
superintendent, principals, vice-principals, and athletic directors have access
to test results, and the results are not kept for more than one year.
**2390
If a sample tests positive, a second test is administered as soon as possible
to confirm the result. If the second test is negative, no further action is
taken. If the second test is positive, the athlete's parents are notified, and
the school principal convenes a meeting with the student and his parents, at
which the student is given the option of (1) participating for six weeks in an
assistance program that includes weekly urinalysis, or (2) suffering suspension
from athletics for the remainder of the current season and the next athletic
season. The student is then retested prior to the start of the next athletic
season for which he or she is eligible. The Policy states that a second offense
results in automatic imposition of option (2); a third offense in suspension
for the remainder of the current season and the next two athletic seasons.
C
In the fall of
1991, respondent James Acton, then a seventh grader, signed up to play football
at one of the District's grade schools. He was denied participation, however,
because he and his parents refused to sign the testing consent forms. The
Actons filed suit, seeking declaratory and injunctive relief from enforcement
of the Policy on the grounds that it violated the Fourth and Fourteenth
Amendments to the United States Constitution and Article I, § 9, of the Oregon *652 Constitution. After a bench
trial, the District Court entered an order denying the claims on the merits and
dismissing the action. 796 F.Supp., at 1355. The United States Court of Appeals
for the Ninth Circuit reversed, holding that the Policy violated both the Fourth
and Fourteenth Amendments and Article I, § 9, of the Oregon Constitution. 23
F.3d 1514 (1994). We granted certiorari. 513 U.S. 1013, 115 S.Ct. 571, 130
L.Ed.2d 488 (1994).
II
[1] The Fourth
Amendment to the United States Constitution provides that the Federal
Government shall not violate "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures ...." We have held that the Fourteenth Amendment extends this
constitutional guaranteeto searches and seizures by state officers, Elkins v.
United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 1441-1442, 4 L.Ed.2d 1669
(1960), including public school officials, New Jersey v. T.L.O., 469 U.S. 325,
336-337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985). In Skinner v. Railway Labor
Executives' Assn., 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639
(1989), we held that state-compelled collection and testing of urine, such as
that required by the Policy, constitutes a "search" subject to the
demands of the Fourth Amendment. See also Treasury Employees v. Von Raab, 489
U.S. 656, 665, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989).
[2] As the text of
the Fourth Amendment indicates, the ultimate measure of the constitutionality
of a governmental search is "reasonableness." At least in a case such
as this, where there was no clear practice, either approving or disapproving
the type of search at issue, at the time the constitutional provision was
enacted, [FN1] whether a particular search meets the reasonableness standard
" 'is judged by balancing *653
its intrusion on the individual's Fourth Amendment interests against its
promotion of legitimate governmental interests.' " Skinner, supra, at 619,
109 S.Ct., at 1414 (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct.
1391, 1396, 59 L.Ed.2d 660 (1979)). Where a search is undertaken by law
enforcement officials to discover evidence of criminal wrongdoing, this Court
has said that reasonableness generally requires the obtaining of a judicial
warrant, Skinner, supra, at 619, 109 S.Ct., at 1414. Warrants cannot be issued,
of course, without the showing of probable cause required by the Warrant
Clause. But a warrant is not required to establish the **2391 reasonableness of all government searches; and when a
warrant is not required (and the Warrant Clause therefore not applicable),
probable cause is not invariably required either. A search unsupported by
probable cause can be constitutional, we have said, "when special needs,
beyond the normal need for law enforcement, make the warrant and probable-cause
requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873, 107
S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987) (internal quotation marks omitted).
FN1. Not until 1852 did Massachusetts, the pioneer in the
"common school" movement, enact a compulsory school-attendance law,
and as late as the 1870's only 14 States had such laws. R. Butts, Public
Education in the United States From Revolution to Reform 102-103 (1978); 1
Children and Youth in America 467-468 (R. Bremner ed. 1970). The drug problem,
and the technology of drug testing, are of course even more recent.
We have found such
"special needs" to exist in the public school context. There, the
warrant requirement "would unduly interfere with the maintenance of the
swift and informal disciplinary procedures [that are] needed," and
"strict adherence to the requirement that searches be based upon probable
cause" would undercut "the substantial need of teachers and
administrators for freedom to maintain order in the schools." T.L.O., 469
U.S., at 340, 341, 105 S.Ct., at 742. The school search we approved in T.L.O.,
while not based on probable cause, was based on individualized suspicion of
wrongdoing. As we explicitly acknowledged, however, " 'the Fourth Amendment
imposes no irreducible requirement of such suspicion,' " id., at 342, n.
8, 105 S.Ct., at 743, n. 8 (quoting United States v. Martinez-Fuerte, 428 U.S.
543, 560-561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976)). We have upheld
suspicionless searches and seizures to conduct drug testing of railroad
personnel involved in train accidents, see Skinner, supra; to conduct random
drug testing of federal customs officers who carry arms or are involved in drug
interdiction, *654 see Von Raab,
supra; and to maintain automobile checkpoints looking for illegal immigrants
and contraband, Martinez-Fuerte, supra, and drunk drivers, Michigan Dept. of
State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990).
III
The first factor to
be considered is the nature of the privacy interest upon which the search here
at issue intrudes. The Fourth Amendment does not protect all subjective
expectations of privacy, but only those that society recognizes as
"legitimate." T.L.O., 469 U.S., at 338, 105 S.Ct., at 741. What
expectations are legitimate varies, of course, with context, id., at 337, 105
S.Ct., at 740, depending, for example, upon whether the individual asserting
the privacy interest is at home, at work, in a car, or in a public park. In
addition, the legitimacy of certain privacy expectations vis-a-vis the State
may depend upon the individual's legal relationship with the State. For
example, in Griffin, supra, we held that, although a "probationer's home,
like anyone else's, is protected by the Fourth Amendmen[t]," the
supervisory relationship between probationer and State justifies "a degree
of impingement upon [a probationer's] privacy that would not be constitutional
if applied to the public at large." 483 U.S., at 873, 875, 107 S.Ct., at
3168, 3169. Central, in our view, to the present case is the fact that the
subjects of the Policy are (1) children, who (2) have been committed to the
temporary custody of the State as schoolmaster.
Traditionally at
common law, and still today, unemancipated minors lack some of the most
fundamental rights of self-determination--including even the right of liberty
in its narrow sense, i.e., the right to come and go at will. They are subject,
even as to their physical freedom, to the control of their parents or guardians.
See 59 Am.Jur.2d, Parent and Child § 10 (1987). When parents place minor
children in private schools for their education, the teachers and
administrators of those schools stand in loco parentis over the children
entrusted to them. In fact, the tutor or schoolmaster *655 is the very prototype of that status. As Blackstone describes
it, a parent "may ... delegate part of his parental authority, during his
life, to the tutor or schoolmaster of his child; who is then in loco parentis,
and has such a portion of the power of the parent committed to his charge, viz.
that of restraint and correction, as may be necessary to answer the purposes
for which he is employed." 1 W. Blackstone, Commentaries on the Laws of
England 441 (1769).
[3] In T.L.O. we
rejected the notion that public schools, like private schools, exercise only
parental power over their students,
**2392 which of course is not subject to constitutional constraints. 469
U.S., at 336, 105 S.Ct., at 740. Such a view of things, we said, "is not
entirely 'consonant with compulsory education laws,' " ibid. (quoting
Ingraham v. Wright, 430 U.S. 651, 662, 97 S.Ct. 1401, 1407, 51 L.Ed.2d 711
(1977)), and is inconsistent with our prior decisions treating school officials
as state actors for purposes of the Due Process and Free Speech Clauses,
T.L.O., supra, at 336, 105 S.Ct., at 740. But while denying that the State's
power over schoolchildren is formally no more than the delegated power of their
parents, T.L.O. did not deny, but indeed emphasized, that the nature of that
power is custodial and tutelary, permitting a degree ofsupervision and control
that could not be exercised over free adults. "[A] proper educational
environment requires close supervision of schoolchildren, as well as the
enforcement of rules against conduct that would be perfectly permissible if
undertaken by an adult." 469 U.S., at 339, 105 S.Ct., at 741. While we do
not, of course, suggest that public schools as a general matter have such a
degree of control over children as to give rise to a constitutional "duty
to protect," see DeShaney v. Winnebago County Dept. of Social Servs., 489
U.S. 189, 200, 109 S.Ct. 998, 1005-1006, 103 L.Ed.2d 249 (1989), we have
acknowledged that for many purposes "school authorities ac[t] in loco parentis,"
Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 684, 106 S.Ct. 3159, 3165,
92 L.Ed.2d 549 (1986), with the power and indeed the duty to "inculcate
the habits and manners of civility," id., at 681, 106 S.Ct., at 3163
(internal quotation marks omitted). Thus, while children assuredly do not
"shed their constitutional *656
rights ... at the schoolhouse gate," Tinker v. Des Moines Independent
Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731
(1969), the nature of those rights is what is appropriate for children in
school. See, e.g., Goss v. Lopez, 419 U.S. 565, 581-582, 95 S.Ct. 729, 740, 42
L.Ed.2d 725 (1975) (due process for a student challenging disciplinary
suspension requires only that the teacher "informally discuss the alleged
misconduct with the student minutes after it has occurred"); Fraser,
supra, 478 U.S., at 683, 106 S.Ct., at 3164 ("[I]t is a highly appropriate
function of public school education to prohibit the use of vulgar and offensive
terms in public discourse"); Hazelwood School Dist. v. Kuhlmeier, 484 U.S.
260, 273, 108 S.Ct. 562, 571, 98 L.Ed.2d 592 (1988) (public school authorities
may censor school-sponsored publications, so long as the censorship is
"reasonably related to legitimate pedagogical concerns"); Ingraham,
supra, 430 U.S., at 682, 97 S.Ct., at 1418 ("Imposing additional
administrative safeguards [upon corporal punishment] ... would ... entail a
significant intrusion into an area of primary educational
responsibility").
[4] Fourth
Amendment rights, no less than First and Fourteenth Amendment rights, are
different in public schools than elsewhere; the "reasonableness"
inquiry cannot disregard the schools' custodial and tutelary responsibility for
children. For their own good and that of their classmates, public school
children are routinely required to submit to various physical examinations, and
to be vaccinated against various diseases. According to the American Academy of
Pediatrics, most public schools "provide vision and hearing screening and
dental and dermatological checks.... Others also mandate scoliosis screening at
appropriate grade levels." Committee on School Health, American Academy of
Pediatrics, School Health: A Guide for Health Professionals 2 (1987). In the
1991-1992 school year, all 50 States required public school students to be
vaccinated against diphtheria, measles, rubella, and polio. U.S. Dept. of
Health & Human Services, Public Health Service, Centers for Disease
Control, State Immunization Requirements 1991-1992, p. 1. Particularly with
regard to medical examinations and procedures, *657 therefore, "students within the school environment have
a lesser expectationof privacy than members of the population generally."
T.L.O., supra, 469 U.S., at 348, 105 S.Ct., at 746 (Powell, J., concurring).
Legitimate privacy
expectations are even less with regard to student athletes. School sports are
not for the bashful. They require "suiting up" before each practice
or event, and showering and changing afterwards. Public school locker rooms,
the usual sites **2393 for these
activities, are not notable for the privacy they afford. The locker rooms in
Vernonia are typical: No individual dressing rooms are provided; shower heads
are lined up along a wall, unseparated by any sort of partition or curtain; not
even all the toilet stalls have doors. As the United States Court of Appeals
for the Seventh Circuit has noted, there is "an element of 'communal
undress' inherent in athletic participation," Schaill by Kross v.
Tippecanoe County School Corp., 864 F.2d 1309, 1318 (1988).
There is an
additional respect in which school athletes have a reduced expectation of
privacy. By choosing to "go out for the team," they voluntarily
subject themselves to a degree of regulation even higher than that imposed on
students generally. In Vernonia's public schools, they must submit to a
preseason physical exam (James testified that his included the giving of a
urine sample, App. 17), they must acquire adequate insurance coverage or sign
an insurance waiver, maintain a minimum grade point average, and comply with
any "rules of conduct, dress, training hours and related matters as may be
established for each sport by the head coach and athletic director with the
principal's approval." Record, Exh. 2, p. 30, ¶ 8. Somewhat like adults
who choose to participate in a "closely regulated industry," students
who voluntarily participate in school athletics have reason to expect
intrusions upon normal rights and privileges, including privacy. See Skinner,
489 U.S., at 627, 109 S.Ct., at 1418-1419; United States v. Biswell, 406 U.S.
311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972).
*658 IV
Having considered
the scope of the legitimate expectation of privacy at issue here, we turn next
to the character of the intrusion that is complained of. We recognized in
Skinner that collecting the samples for urinalysis intrudes upon "an
excretory function traditionally shielded by great privacy." 489 U.S., at
626, 109 S.Ct., at 1418. We noted, however, that the degree of intrusion depends
upon the manner in which production of the urine sample is monitored. Ibid.
Under the District's Policy, male students produce samples at a urinal along a
wall. They remain fully clothed and are only observed from behind, if at all.
Female students produce samples in an enclosed stall, with a female monitor
standing outside listening only for sounds of tampering. These conditions are
nearly identical to those typically encountered in public restrooms, which men,
women, and especially schoolchildren use daily. Under such conditions, the
privacy interests compromised by the process of obtaining the urine sample are
in our view negligible.
The other
privacy-invasive aspect of urinalysis is, of course, the information it
discloses concerning the state of the subject's body, and the materials he has
ingested. In this regard it is significant that the tests at issue here look
only for drugs, and not for whether the student is, for example, epileptic,
pregnant, or diabetic. See id., at 617, 109 S.Ct., at 1413. Moreover, the drugs
for which the samples are screened are standard, and do not vary according to
the identity of the student. And finally, the results of the tests are
disclosed only to a limited class of school personnel who have a need to know;
and they are not turned over to law enforcement authorities or used for any
internal disciplinary function. 796 F.Supp., at 1364; see also 23 F.3d, at
1521. [FN2]
FN2. Despite the fact that, like routine school physicals
and vaccinations--which the dissent apparently finds unobjectionable even
though they "are both blanket searches of a sort," post, at 2405--the search here is undertaken for
prophylactic and distinctly nonpunitive purposes (protecting student athletes
from injury, and deterring drug use in the student population), see 796
F.Supp., at 1363, the dissent would nonetheless lump this search together with
"evidentiary" searches, which generally require probable cause, see
supra, at 2390, because, from the student's perspective, the test may be "regarded"
or "understood" as punishment, post, at 2405. In light of the
District Court's findings regarding the purposes and consequences of the
testing, any such perception is by definition an irrational one, which is
protected nowhere else in the law. In any event, our point is not, as the
dissent apparently believes, post, at 2405, that since student vaccinations and
physical exams are constitutionally reasonable, student drug testing must be so
as well; but rather that, by reason of those prevalent practices, public school
children in general, and student athletes in particular, have a diminished
expectation of privacy. See supra, at 2392.
**2394 *659 Respondents argue, however, that the District's Policy is in fact more
intrusive than this suggests, because it requires the students, if they are to
avoid sanctions for a falsely positive test, to identify in advance
prescription medications they are taking. We agree that this raises some cause
for concern. In Von Raab, we flagged as one of the salutary features of the Customs
Service drug-testing program the fact that employees were not required to
disclose medical information unless they tested positive, and, even then, the
information was supplied to a licensed physician rather than to the Government
employer. See Von Raab, 489 U.S., at 672-673, n. 2, 109 S.Ct., at 1394-1395, n.
2. On the other hand, we have never indicated that requiring advance disclosure
of medications is per se unreasonable. Indeed, in Skinner we held that it was
not "a significant invasion of privacy." 489 U.S., at 626, n. 7, 109
S.Ct., at 1418, n. 7. It can be argued that, in Skinner, the disclosure went
only to the medical personnel taking the sample, and the Government personnel
analyzing it, see id., at 609, 109 S.Ct., at 1408-1409, but see id., at 610,
109 S.Ct., at 1409 (railroad personnel responsible for forwarding the sample,
and presumably accompanying information, to the Government's testing lab); and
that disclosure to teachers and coaches--to persons who personally know the
student--is a greater invasion of privacy. Assuming for the sake of argument *660 that both those propositions are
true, we do not believe they establish a difference that respondents are
entitled to rely on here.
The General
Authorization Form that respondents refused to sign, which refusal was the
basis for James's exclusion from the sports program, said only (in relevant
part): "I ... authorize the Vernonia School District to conduct a test on
a urine specimen which I provide to test for drugs and/or alcohol use. I also
authorize the release of information concerning the results of such a test to
the Vernonia School District and to the parents and/or guardians of the
student." App. 10-11. While the practice of the District seems to have
been to have a school official take medication information from the student at
the time of the test, see id., at 29, 42, that practice is not set forth in, or
required by, the Policy, which says simply: "Student athletes who ... are
or have been taking prescription medication must provide verification (either
by a copy of the prescription or by doctor's authorization) prior to being
tested." Id., at 8. It may well be that, if and when James was selected
for random testing at a time that he was taking medication, the School District
would have permitted him to provide the requested information in a confidential
manner--for example, in a sealed envelope delivered to the testing lab. Nothing
in the Policy contradicts that, and when respondents choose, in effect, to
challenge the Policy on its face, we will not assume the worst. Accordingly, we
reach the same conclusion as in Skinner: that the invasion of privacy was not
significant.
V
[5] Finally, we
turn to consider the nature and immediacy of the governmental concern at issue
here, and the efficacy of this means for meeting it. In both Skinner and Von
Raab, we characterized the government interest motivating the search as
"compelling." Skinner, supra, 489 U.S., at 628, 109 S.Ct., at 1419
(interest in preventing railway accidents); Von Raab, supra, 489 U.S., at 670,
109 S.Ct., at 1393 (interest *661 in
insuring fitness of customs officials to interdict drugs and handle firearms).
Relying on these cases, the District Court held that because the District's
program also called for drug testing in the absence of individualized
suspicion, the District "must demonstrate a 'compelling need' for the
program." 796 F.Supp., at 1363. The Court of Appeals appears to have
agreed with this view. See 23 F.3d, at 1526. It is a mistake, however, to think
that the phrase "compelling state interest," in the Fourth Amendment
context, describes a fixed, minimum quantum of governmental concern, so that
one can dispose of a case by answering in isolation the question: Is there a
compelling state interest here? Rather, the phrase describes an interest that
appears important enough to justify the particular **2395 search at hand, in light of other factors that show the
search to be relatively intrusive upon a genuine expectation of privacy.
Whether that relatively high degree of government concern is necessary in this
case or not, we think it is met.
That the nature of
the concern is important--indeed, perhaps compelling--can hardly be doubted.
Deterring drug use by our Nation's schoolchildren is at least as important as
enhancing efficient enforcement of the Nation's laws against the importation of
drugs, which was the governmental concern in Von Raab, supra, 489 U.S., at 668,
109 S.Ct., at 1392, or deterring drug use by engineers and trainmen, which was
the governmental concern in Skinner, supra, at 628, 109 S.Ct., at 1419. School
years are the time when the physical, psychological, and addictive effects of
drugs are most severe. "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."
Hawley, The Bumpy Road to Drug-Free Schools, 72 Phi Delta Kappan 310, 314
(1990). See also Estroff, Schwartz, & Hoffmann, Adolescent Cocaine Abuse:
Addictive Potential, Behavioral and Psychiatric Effects, 28 Clinical Pediatrics
550 *662 Dec. 1989); Kandel, Davies,
Karus, & Yamaguchi, The Consequences in Young Adulthood of Adolescent Drug
Involvement, 43 Arch. Gen. Psychiatry 746 (Aug. 1986). And of course the
effects of a drug-infested school are visited not just upon the users, but upon
the entire student body and faculty, as the educational process is disrupted.
In the present case, moreover, the necessity for the State to act is magnified
by the fact that this evil is being visited not just upon individuals at large,
but upon children for whom it has undertaken a special responsibility of care
and direction. Finally, it must not be lost sight of that this program is
directed more narrowly to drug use by school athletes, where the risk of
immediate physical harm to the drug user or those with whom he is playing his
sport is particularly high. Apart from psychological effects, which include
impairment of judgment, slow reaction time, and a lessening of the perception
of pain, the particular drugs screened by the District's Policy have been
demonstrated to pose substantial physical risks to athletes. Amphetamines
produce an "artificially induced heart rate increase, [p]eripheral
vasoconstriction, [b]lood pressure increase, and [m]asking of the normal
fatigue response," making them a "very dangerous drug when used
during exercise of any type." Hawkins, Drugs and Other Ingesta: Effects on
Athletic Performance, in H. Appenzeller, Managing Sports and Risk Management
Strategies 90, 90-91 (1993). Marijuana causes "[i]rregular blood pressure
responses during changes in body position," "[r]eduction in the
oxygen-carrying capacity of the blood," and "[i]nhibition of the
normal sweating responses resulting in increased body temperature." Id.,
at 94. Cocaine produces "[v]asoconstriction[,] [e]levated blood
pressure," and "[p]ossible coronary artery spasms and myocardial
infarction." Ibid.
As for the immediacy
of the District's concerns: We are not inclined to question--indeed, we could
not possibly find clearly erroneous--the District Court's conclusion that
"a large segment of the student body, particularly those involved *663 in interscholastic athletics, was
in a state of rebellion," that "[d]isciplinary actions had reached
'epidemic proportions,' " and that "the rebellion was being fueled by
alcohol and drug abuse as well as by the student's misperceptions about the
drug culture." 796 F.Supp., at 1357. That is an immediate crisis of
greater proportions than existed in Skinner, where we upheld the Government's
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. See Skinner, 489 U.S., at 607, 109
S.Ct., at 1407-1408. And of much greater proportions than existed in Von Raab,
where there was no documented history of drug use by any customs officials. See
Von Raab, 489 U.S., at 673, 109 S.Ct., at 1395; id., at 683, 109 S.Ct., at 1400
(SCALIA, J., dissenting).
As to the efficacy
of this means for addressing the problem: It seems to us self-evident that a
drug problem largely fueled by **2396
the "role model" effect of athletes' drug use, and of particular
danger to athletes, is effectively addressed by making sure that athletes do
not use drugs. Respondents argue that a "less intrusive means to the same
end" was available, namely, "drug testing on suspicion of drug use."
Brief for Respondents 45- 46. We have repeatedly refused to declare that only
the "least intrusive" search practicable can be reasonable under the
Fourth Amendment. Skinner, supra, at 629, n. 9, 109 S.Ct., at 1420, n. 9
(collecting cases). Respondents' alternative entails substantial
difficulties--if it is indeed practicable at all. It may be impracticable, for
one thing, simply because the parents who are willing to accept random drug
testing for athletes are not willing to accept accusatory drug testing for all
students, which transforms the process into a badge of shame. Respondents'
proposal brings the risk that teachers will impose testing arbitrarily upon
troublesome but not drug-likely students. It generates the expense of defending
lawsuits that charge such arbitrary imposition, or that simply demand greater
process before accusatory drug *664
testing is imposed. And not least of all, it adds to the ever- expanding
diversionary duties of schoolteachers the new function of spotting and bringing
to account drug abuse, a task for which they are ill prepared, and which is not
readily compatible with their vocation. Cf. Skinner, supra, at 628, 109 S.Ct.,
at 1419 (quoting 50 Fed.Reg. 31526 (1985)) (a drug impaired individual
"will seldom display any outward 'signs detectable by the lay person or,
in many cases, even the physician.' "); Goss, 419 U.S., at 594, 95 S.Ct.,
at 746 (Powell, J., dissenting) ("There is an ongoing relationship, one in
which the teacher must occupy many roles--educator, adviser, friend, and, at
times, parent-substitute. It is rarely adversary in nature ...") (footnote
omitted). In many respects, we think, testing based on "suspicion" of
drug use would not be better, but worse. [FN3]
FN3. There is no basis for the dissent's insinuation that
in upholding the District's Policy we are equating the Fourth Amendment status
of schoolchildren and prisoners, who, the dissent asserts, may have what it calls the "categorical
protection" of a "strong preference for an individualized suspicion requirement,"
post, at 2404. The case on which it relies for that proposition, Bell v.
Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), displays no
stronger a preference for individualized suspicion than we do today. It
reiterates the proposition on which we rely, that " 'elaborate
less-restrictive-alternative arguments could raise insuperable barriers to the
exercise of virtually all search- and-seizure powers.' " Id., at 559, n.
40, 99 S.Ct., at 1884-1885, n. 40 (quoting United States v. Martinez-Fuerte,
428 U.S. 543, 556-557, n. 12, 96 S.Ct. 3074, 3082-3083, n. 12, 49 L.Ed.2d 1116
(1976)). Even Wolfish 's arguendo "assum[ption] that the existence of less
intrusive alternatives is relevant to the determination of the reasonableness
of the particular search method at issue," 441 U.S., at 559, n. 40, 99
S.Ct. at 1884-1885, n. 40, does not support the dissent, for the opinion
ultimately rejected the hypothesized alternative (as we do) on the ground that
it would impair other policies important to the institution. See id., at 560,
n. 40, 96 S.Ct., at 3084, n. 40 (monitoring of visits instead of conducting
body searches would destroy "the confidentiality and intimacy that these
visits are intended to afford").
VI
Taking into account
all the factors we have considered above--the decreased expectation of privacy,
the relative unobtrusiveness of the search, and the severity of the need met *665 by the search--we conclude
Vernonia's Policy is reasonable and hence constitutional.
We caution against
the assumption that suspicionless drug testing will readily pass constitutional
muster in other contexts. The most significant element in this case is the
first we discussed: that the Policy was undertaken in furtherance of the
government's responsibilities, under a public school system, as guardian and
tutor of children entrusted to its care. [FN4] Just as when the government
conducts a search in its capacity as employer (a warrantless search of an
absent employee's **2397 desk to
obtain an urgently needed file, for example), the relevant question is whether
that intrusion upon privacy is one that a reasonable employer might engage in,
see O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987); so
also when the government acts as guardian and tutor the relevant question is
whether the search is one that a reasonable guardian and tutor might undertake.
Given the findings of need made by the District Court, we conclude that in the
present case it is.
FN4. The dissent devotes a few meager paragraphs of its 21
pages to this central aspect of the testing program, see post, at 2404-2405, in
the course of which it shows none of the interest in the original meaning of the Fourth Amendment displayed
elsewhere in the opinion, see post, at 2398- 2400. Of course at the time of the
framing, as well as at the time of the adoption of the Fourteenth Amendment,
children had substantially fewer "rights" than legislatures and
courts confer upon them today. See 1 D. Kramer, Legal Rights of Children § 1.02,
p. 9 (2d ed. 1994); Wald, Children's Rights: A Framework for Analysis, 12
U.C.D.L.Rev. 255, 256 (1979).
We may note that
the primary guardians of Vernonia's schoolchildren appear to agree. The record
shows no objection to this districtwide program by any parents other than the
couple before us here--even though, as we have described, a public meeting was
held to obtain parents' views. We find insufficient basis to contradict the
judgment of Vernonia's parents, its school board, and the District Court, as to
what was reasonably in the interest of these children under the circumstances.
*666 * * *
The Ninth Circuit
held that Vernonia's Policy not only violated the Fourth Amendment, but also,
by reason of that violation, contravened Article I, § 9, of the Oregon Constitution.
Our conclusion that the former holding was in error means that the latter
holding rested on a flawed premise. We therefore vacate the judgment, and
remand the case to the Court of Appeals for further proceedings consistent with
this opinion.
It is so ordered.
Justice GINSBURG,
concurring.
The Court
constantly observes that the School District's drug-testing policy applies only
to students who voluntarily participate in interscholastic athletics. Ante, at
2389, 2392-2393 (reduced privacy expectation and closer school regulation of
student athletes), 2395 (drug use by athletes risks immediate physical harm to
users and those with whom they play). Correspondingly, the most severe sanction
allowed under the District's policy is suspension from extracurricular athletic
programs. Ante, at 2389. I comprehend the Court's opinion as reserving the
question whether the District, on no more than the showing made here,
constitutionally could impose routine drug testing not only on those seeking to
engage with others in team sports, but on all students required to attend
school. Cf. United States v. Edwards, 498 F.2d 496, 500 (CA2 1974) (Friendly,
J.) (in contrast to search without notice and opportunity to avoid examination,
airport search of passengers and luggage is avoidable "by choosing not to
travel by air") (internal quotation marks omitted).
Justice O'CONNOR,
with whom Justice STEVENS and Justice SOUTER join, dissenting.
The population of
our Nation's public schools, grades 7 through 12, numbers around 18 million.
See U.S. Dept. of *667 Education,
National Center for Education Statistics, Digest of Education Statistics 58
(1994) (Table 43). By the reasoning of today's decision, the millions of these
students who participate in interscholastic sports, an overwhelming majority of
whom have given school officials no reason whatsoever to suspect they use drugs
at school, are open to an intrusive bodily search.
In justifying this
result, the Court dispenses with a requirement of individualized suspicion on
considered policy grounds. First, it explains that precisely because every
student athlete is being tested, there is no concern that school officials
might act arbitrarily in choosing whom to test. Second, a broad-based search
regime, the Court reasons, dilutes the accusatory nature of the search. In
making these policy arguments, of course, the Court sidesteps powerful,
countervailing privacy concerns. Blanket searches, because they can involve
"thousands or millions" of searches, "pos[e] a greater threat to
liberty" than do suspicion-based ones, which "affec[t] one person at
a time," Illinois v. Krull, 480 U.S. 340, 365, 107 S.Ct. 1160, 1175, 94
L.Ed.2d 364 (1987) (O'CONNOR, J., dissenting). Searches based on individualized
suspicion also afford potential targets considerable control over whether they
will, in fact, be searched because a person can avoid such a search by not
acting in an objectively suspicious way. And given that the surest way to avoid
acting suspiciously is to avoid the underlying**2398 wrongdoing, the costs of such a regime, one would think, are
minimal.
But whether a
blanket search is "better," ante, at 2396, than a regime based on
individualized suspicion is not a debate in which we should engage. In my view,
it is not open to judges or government officials to decide on policy grounds
which is better and which is worse. For most of our constitutional history,
mass, suspicionless searches have been generally considered per se unreasonable
within the meaning of the Fourth Amendment. And we have allowed exceptions *668 in recent years only where it has
been clear that a suspicion-based regime would be ineffectual. Because that is
not the case here, I dissent.
I
A
In Carroll v.
United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the Court
explained that "[t]he Fourth Amendment does not denounce all searches or
seizures, but only such as are unreasonable." Id., at 147, 45 S.Ct., at
283. Applying this standard, the Court first held that a search of a car was not
unreasonable merely because it was warrantless; because obtaining a warrant is
impractical for an easily movable object such as a car, the Court explained, a
warrant is not required. The Court also held, however, that a warrantless car
search was unreasonable unless supported by some level of individualized
suspicion, namely, probable cause. Significantly, the Court did not base its
conclusion on the express probable cause requirement contained in the Warrant
Clause, which, as just noted, the Court found inapplicable. Rather, the Court
rested its views on "what was deemed an unreasonable search and seizure
when [the Fourth Amendment] was adopted" and "[what] will conserve
public interests as well as the interests and rights of individual citizens."
Id., at 149, 45 S.Ct., at 283-284. With respect to the "rights of
individual citizens," the Court eventually offered the simple yet powerful
intuition that "those lawfully within the country, entitled to use the
public highways, have a right to free passage without interruption or search
unless there is known to a competent official authorized to search, probable
cause for believing that their vehicles are carrying contraband or illegal
merchandise." Id., at 154, 45 S.Ct., at 285.
More important for
the purposes of this case, the Court clearly indicated that evenhanded
treatment was no substitute for the individualized suspicion requirement:
"It would be intolerable and unreasonable if a
prohibition agent were authorized to stop every automobile on *669 the chance of finding liquor and
thus subject all persons lawfully using the highways to the inconvenience and
indignity of such a search." Id., at 153-154, 45 S.Ct., at 285.
The Carroll Court's
view that blanket searches are "intolerable and unreasonable" is well
grounded in history. As recently confirmed in one of the most exhaustive
analyses of the original meaning of the Fourth Amendment ever undertaken, see
W. Cuddihy, The Fourth Amendment: Origins and Original Meaning (1990) (Ph.D.
Dissertation at Claremont Graduate School) (hereinafter Cuddihy), what the
Framers of the Fourth Amendment most strongly opposed, with limited exceptions
wholly inapplicable here, were general searches--that is, searches by general
warrant, by writ of assistance, by broad statute, or by any other similar
authority. See id., at 1402, 1499, 1555; see also Clancy, The Role of
Individualized Suspicion in Assessing the Reasonableness of Searches and
Seizures, 25 Mem.St.U.L.Rev. 483, 528 (1994); Maclin, When the Cure for the
Fourth Amendment Is Worse Than the Disease, 68 S.Cal.L.Rev. 1, 9-12 (1994); L.
Levy, Original Intent and the Framers' Constitution 221- 246 (1988). Although,
ironically, such warrants, writs, and statutes typically required
individualized suspicion, see, e.g., Cuddihy 1140 ("Typical of the
American warrants of 1761-76 was Starke's 'tobacco' warrant, which commanded
its bearer to 'enter any suspected Houses' ") (emphasis added), such
requirements were subjective and largely unenforceable. Accordingly, these
various forms of authority led in practice to "virtually
unrestrained," and hence "general," searches. J. Landynski,
Search and Seizure and the Supreme Court 20 (1966). To be **2399 sure, the Fourth Amendment, in the Warrant Clause,
prohibits by name only searches by general warrants. But that was only because
the abuses of the general warrant were particularly vivid in the minds of the
Framers' generation, Cuddihy 1554-1560, and not because the Framers viewed
other kinds of general searches as any less unreasonable. "Prohibition of
the general warrant was part of a *670
larger scheme to extinguish general searches categorically." Id., at 1499.
More important,
there is no indication in the historical materials that the Framers' opposition
to general searches stemmed solely from the fact that they allowed officials to
single out individuals for arbitrary reasons, and thus that officials could
render them reasonable simply by making sure to extend their search to every
house in a given area or to every person in a given group. See Delaware v.
Prouse, 440 U.S. 648, 664, 99 S.Ct. 1391, 1401- 1402, 59 L.Ed.2d 660 (1979)
(REHNQUIST, J., dissenting) (referring to this as the " 'misery loves
company' " theory of the Fourth Amendment). On the contrary, although
general searches were typically arbitrary, they were not invariably so. Some
general searches, for example, were of the arguably evenhanded
"door-to-door" kind. Cuddihy 1091; see also id., at 377, 1502, 1557.
Indeed, Cuddihy's descriptions of a few blanket searches suggest they may have
been considered more worrisome than the typical general search. See id., at 575
("One type of warrant [between 1700 and 1760] went beyond a general
search, in which the searcher entered and inspected suspicious places, by
requiring him to search entire categories of places whether he suspected them
or not"); id., at 478 ("During the exigencies of Queen Anne's War,
two colonies even authorized searches in 1706 that extended to entire
geographic areas, not just to suspicious houses in a district, as conventional
general warrants allowed").
Perhaps most
telling of all, as reflected in the text of the Warrant Clause, the particular
way the Framers chose to curb the abuses of general warrants-- and by
implication, all general searches--was not to impose a novel
"evenhandedness" requirement; it was to retain the individualized
suspicion requirement contained in the typical general warrant, but to make
that requirement meaningful and enforceable, for instance, by raising the
required level of individualized suspicion to objective probable cause. See
U.S. Const., Amdt. 4. So, for example, when the same Congress that *671 proposed the Fourth Amendment
authorized duty collectors to search for concealed goods subject to import
duties, specific warrants were required for searches on land; but even for
searches at sea, where warrants were impractical and thus not required,
Congress nonetheless limited officials to searching only those ships and
vessels "in which [a collector] shall have reason to suspect any goods, wares
or merchandise subject to duty shall be concealed." The Collection Act of
July 31, 1789, § 24, 1 Stat. 43 (emphasis added); see also Cuddihy 1490-1491
("The Collection Act of 1789 was [the] most significant [of all early
search statutes], for it identified the techniques of search and seizure that
the framers of the amendment believed reasonable while they were framing
it"). Not surprisingly, the Carroll Court relied on this statute and other
subsequent ones like it in arriving at its views. See Carroll, 267 U.S., at
150-151, 154, 45 S.Ct., at 284, 285; cf. Clancy, supra, at 489 ("While the
plain language of the Amendment does not mandate individualized suspicion as a
necessary component of all searches and seizures, the historical record
demonstrates that the framers believed that individualized suspicion was an
inherent quality of reasonable searches and seizures").
True, not all
searches around the time the Fourth Amendment was adopted required
individualized suspicion--although most did. A search incident to arrest was an
obvious example of one that did not, see Cuddihy 1518, but even those searches
shared the essential characteristics that distinguish suspicion- based searches
from abusive general searches: they only "affec[t] one person at a
time," Krull, 480 U.S., at 365, 107 S.Ct., at 1175 (O'CONNOR, J.,
dissenting), and they are generally avoidable by refraining from wrongdoing.
See supra, at 2397-2398. Protection of privacy, not evenhandedness, was then
and is now the touchstone of the Fourth Amendment.
**2400
The view that mass, suspicionless searches, however evenhanded, are generally
unreasonable remains inviolate in the criminal law enforcement context, see
Ybarra v. Illinois, 444 *672 U.S.
85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (invalidating evenhanded,
nonaccusatory patdown for weapons of all patrons in a tavern in which there was
probable cause to think drug dealing was going on), at least where the search
is more than minimally intrusive, see Michigan Dept. of State Police v. Sitz, 496
U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (upholding the brief and
easily avoidable detention, for purposes of observing signs of intoxication, of
all motorists approaching a roadblock). It is worth noting in this regard that
state- compelled, state-monitored collection and testing of urine, while
perhaps not the most intrusive of searches, see, e.g., Bell v. Wolfish, 441
U.S. 520, 558-560, 99 S.Ct. 1861, 1884-1885, 60 L.Ed.2d 447 (1979) (visual body
cavity searches), is still "particularly destructive of privacy and
offensive to personal dignity." Treasury Employees v. Von Raab, 489 U.S.
656, 680, 109 S.Ct. 1384, 1398, 103 L.Ed.2d 685 (1989) (SCALIA, J.,
dissenting); see also ante, at 2393; Skinner v. Railway Labor Executives'
Assn., 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989). We have
not hesitated to treat monitored bowel movements as highly intrusive (even in
the special border search context), compare United States v. Martinez-Fuerte,
428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (brief interrogative stops
of all motorists crossing certain border checkpoint reasonable without
individualized suspicion), with United States v. Montoya de Hernandez, 473 U.S.
531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (monitored bowel movement of border
crossers reasonable only upon reasonable suspicion of alimentary canal
smuggling), and it is not easy to draw a distinction. See Fried, Privacy, 77
Yale L.J. 475, 487 (1968) ("[I]n our culture the excretory functions are
shielded by more or less absolute privacy"). And certainly monitored
urination combined with urine testing is more intrusive than some personal
searches we have said trigger Fourth Amendment protections in the past. See,
e.g., Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 2003-2004, 36 L.Ed.2d
900 (1973) (Stewart, J.) (characterizing the scraping of dirt from under a
person's fingernails as a " 'severe, though brief, intrusion upon
cherished personal security' ") (citation omitted). Finally, the
collection and testing of urine is, of course, a search of a person, one of
only four categories of suspect *673
searches the Constitution mentions by name. See U.S. Const., Amdt. 4 (listing
"persons, houses, papers, and effects"); cf. Cuddihy 835, 1518, 1552,
n. 394 (indicating long history of outrage at personal searchesbefore 1789).
Thus, it remains
the law that the police cannot, say, subject to drug testing every person
entering or leaving a certain drug-ridden neighborhood in order to find
evidence of crime. 3 W. LaFave, Search and Seizure § 9.5(b), pp. 551-553 (2d
ed. 1987) (hereinafter LaFave). And this is true even though it is hard to
think of a more compelling government interest than the need to fight the
scourge of drugs on our streets and in our neighborhoods. Nor could it be
otherwise, for if being evenhanded were enough to justify evaluating a search
regime under an open-ended balancing test, the Warrant Clause, which
presupposes that there is some category of searches for which individualized
suspicion is nonnegotiable, see 2 LaFave § 4.1, at 118, would be a dead letter.
Outside the
criminal context, however, in response to the exigencies of modern life, our
cases have upheld several evenhanded blanket searches, including some that are
more than minimally intrusive, after balancing the invasion of privacy against
the government's strong need. Most of these cases, of course, are
distinguishable insofar as they involved searches either not of a personally
intrusive nature, such as searches of closely regulated businesses, see, e.g.,
New York v. Burger, 482 U.S. 691, 699-703, 107 S.Ct. 2636, 2642-2644, 96
L.Ed.2d 601 (1987); cf. Cuddihy 1501 ("Even the states with the strongest
constitutional restrictions on general searches had long exposed commercial
establishments to warrantless inspection"), or arising in unique contexts
such as prisons, see, e.g., Wolfish, supra, 441 U.S., at 558-560, 99 S.Ct., at
1884-1885 (visual body cavity searches of prisoners following contact visits);
cf. Cuddihy **2401 1516-1519,
1552-1553 (indicating that searches incident to arrest and prisoner searches
were the only common personal searches at time of founding). This certainly
explains why Justice SCALIA, in his dissent in our recent Von Raab decision,
found it significant that "[u]ntil
*674 today this Court had upheld a bodily search separate from arrest and
without individualized suspicion of wrong doing only with respect to prison
inmates, relying upon the uniquely dangerous nature of that environment."
Von Raab, supra, 489 U.S., at 680, 109 S.Ct., at 1398 (citation omitted).
In any event, in
many of the cases that can be distinguished on the grounds suggested above and,
more important, in all of the cases that cannot, see, e.g., Skinner, supra
(blanket drug testing scheme); Von Raab, supra (same); cf. Camara v. Municipal
Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18
L.Ed.2d 930 (1967) (area-wide searches of private residences), we upheld the
suspicionless search only after first recognizing the Fourth Amendment's
longstanding preference for a suspicion- based search regime, and then pointing
to sound reasons why such a regime would likely be ineffectual under the
unusual circumstances presented. In Skinner, for example, we stated outright
that " 'some quantum of individualized suspicion' " is "usually
required" under the Fourth Amendment, Skinner, supra, at 624, 109 S.Ct.,
at 1417, quoting Martinez-Fuerte, supra, at 560, 96 S.Ct., at 3084, and we
built the requirement into the test we announced: "In limited circumstances,
where the privacy interests implicated by the search are minimal, and where an
important governmental interest furthered by the intrusion would be placed in
jeopardy by a requirement of individualized suspicion, a search may be
reasonable despite the absence of such suspicion," 489 U.S., at 624, 109
S.Ct. at 1417 (emphasis added). The obvious negative implication of this
reasoning is that, if such an individualized suspicion requirement would not
place the government's objectives in jeopardy, the requirement should not be
forsaken. See also Von Raab, supra, at 665-666, 109 S.Ct., at 1390-1391.
Accordingly, we
upheld the suspicionless regime at issue in Skinner on the firm understanding
that a requirement of individualized suspicion for testing train operators for
drug or alcohol impairment following serious train accidents would be
unworkable because "the scene of a serious rail *675 accident is chaotic." Skinner, 489 U.S., at 631, 109
S.Ct., at 1420-1421. (Of course, it could be plausibly argued that the fact
that testing occurred only after train operators were involved in serious train
accidents amounted to an individualized suspicion requirement in all but name,
in light of the record evidence of a strong link between serious train
accidents and drug and alcohol use.) We have performed a similar inquiry in the
other cases as well. See Von Raab, 489 U.S., at 674, 109 S.Ct., at 1395
(suspicion requirement for searches of customs officials for drug impairment
impractical because "not feasible to subject [such] employees and their
work product to the kind of day-to-day scrutiny that is the norm in more
traditional office environments"); Camara, supra, 387 U.S., at 537, 87
S.Ct., at 1735 (suspicion requirement for searches of homes for safety code
violations impractical because conditions such as "faulty wiring" not
observable from outside of house); see also Wolfish, 441 U.S., at 559-560, n.
40, 99 S.Ct., at 1884-1885, n. 40 (suspicion requirement for searches of
prisoners for smuggling following contact visits impractical because
observation necessary to gain suspicion would cause "obvious disruption of
the confidentiality and intimacy that these visits are intended to
afford"); Martinez-Fuerte, 428 U.S., at 557, 96 S.Ct., at 3082-3083 ("A
requirement that stops on major routes inland always be based on reasonable
suspicion would be impractical because the flow of traffic tends to be too
heavy to allow the particularized study of a given car that would enable it to
be identified as a possible carrier of illegal aliens"); United States v.
Edwards, 498 F.2d 496, 500 (CA2 1974) (Friendly, J.) (suspicion-based searches
of airport passengers' carry-on luggage impractical because of the great number
of plane travelers and "conceded inapplicability" **2402 of the profile method of detecting hijackers).
Moreover, an
individualized suspicion requirement was often impractical in these cases
because they involved situations in which even one undetected instance of
wrongdoing could have injurious consequences for a great number of people. See,
e.g., Camara, supra, at 535, 87 S.Ct., at 1734 (even one safety code *676 violation can cause "fires
and epidemics [that] ravage large urban areas"); Skinner, supra, 489 U.S.,
at 628, 109 S.Ct., at 1419 (even one drug- or alcohol-impaired train operator
can lead to the "disastrous consequences" of a train wreck, such as
"great human loss"); Von Raab, supra, at 670, 674, 677, 109 S.Ct., at
1393, 1395, 1397 (even one customs official caught up in drugs can, by virtue
of impairment, susceptibility to bribes, or indifference, result in the
noninterdiction of a "sizable drug shipmen[t]," which eventually
injures the lives of thousands, or to a breach of "national
security"); Edwards, supra, at 500 (even one hijacked airplane can destroy
" 'hundreds of human lives and millions of dollars of property' ")
(citation omitted).
B
The instant case
stands in marked contrast. One searches today's majority opinion in vain for
recognition that history and precedent establish that individualized suspicion
is "usually required" under the Fourth Amendment (regardless of
whether a warrant and probable cause are also required) and that, in the area
of intrusive personal searches, the only recognized exception is for situations
in which a suspicion-based scheme would be likely ineffectual. See supra, at
2401-2402. Far from acknowledging anything special about individualized
suspicion, the Court treats a suspicion-based regime as if it were just any
run-of-the-mill, less intrusive alternative--that is, an alternative that
officials may bypass if the lesser intrusion, in their reasonable estimation,
is outweighed by policy concerns unrelated to practicability.
As an initial
matter, I have serious doubts whether the Court is right that the District reasonably
found that the lesser intrusion of a suspicion-based testing program outweighed
its genuine concerns for the adversarial nature of such a program, and for its
abuses. See ante, at 2395-2396. For one thing, there are significant safeguards
against abuses. The fear that a suspicion-based regime will lead to the testing
of "troublesome but not drug- likely" students, *677 ante, at 2396, for example, ignores that the required level
of suspicion in the school context is objectively reasonable suspicion. In this
respect, the facts of our decision in New Jersey v. T.L.O., 469 U.S. 325, 105
S.Ct. 733, 83 L.Ed.2d 720 (1985), should be reassuring. There, we found
reasonable suspicion to search a ninth-grade girl's purse for cigarettes after
a teacher caught the girl smoking in the bathroom with a companion who admitted
it. See id., at 328, 345-346, 105 S.Ct., at 735-736, 744-745. Moreover, any
distress arising from what turns out to be a false accusation can be minimized
by keeping the entire process confidential.
For another thing,
the District's concern for the adversarial nature of a suspicion-based regime
(which appears to extend even to those who are rightly accused) seems to ignore
the fact that such a regime would not exist in a vacuum. Schools already have
adversarial, disciplinary schemes that require teachers and administrators in
many areas besides drug use to investigate student wrongdoing (often by means
of accusatory searches); to make determinations about whether the wrongdoing
occurred; and to impose punishment. To such a scheme, suspicion-based drug
testing would be only a minor addition. The District's own elaborate
disciplinary scheme is reflected in its handbook, which, among other things,
lists the following disciplinary "problem areas" carrying serious
sanctions: "DEFIANCE OF AUTHORITY," "DISORDERLY OR DISRUPTIVE
CONDUCT INCLUDING FOUL LANGUAGE," "AUTOMOBILE USE OR MISUSE,"
"FORGERY OR LYING," "GAMBLING," "THEFT,"
"TOBACCO," "MISCHIEF," "VANDALISM,"
"RECKLESSLY ENDANGERING," "MENACING OR HARASSMENT,"
"ASSAULT," "FIGHTING," "WEAPONS,"
"EXTORTION," "EXPLOSIVE DEVICES," and "ARSON."
Record, Exh. 2, p. 11; see also id., at 20-21 (listing rules regulating dress
and grooming, public displays of affection,
**2403 and the wearing of hats inside); cf. id., at 8
("RESPONSIBILITIES OF SCHOOLS" include "To develop and
distribute to parents and students reasonable rules *678 and regulations governing student behavior and
attendance" and "To provide fair and reasonable standards of conduct
and to enforce those standards through appropriate disciplinary action").
The high number of disciplinary referrals in the record in this case
illustrates the District's robust scheme in action.
In addition to
overstating its concerns with a suspicion-based program, the District seems to
have understated the extent to which such a program is less intrusive of
students' privacy. By invading the privacy of a few students rather than many
(nationwide, of thousands rather than millions), and by giving potential search
targets substantial control over whether they will, in fact, be searched, a
suspicion-based scheme is significantly less intrusive.
In any event,
whether the Court is right that the District reasonably weighed the lesser
intrusion of a suspicion-based scheme against its policy concerns is beside the
point. As stated, a suspicion-based search regime is not just any less
intrusive alternative; the individualized suspicion requirement has a legal
pedigree as old as the Fourth Amendment itself, and it may not be easily cast
aside in the name of policy concerns. It may only be forsaken, our cases in the
personal search context have established, if a suspicion-based regime would
likely be ineffectual.
But having
misconstrued the fundamental role of the individualized suspicion requirement
in Fourth Amendment analysis, the Court never seriously engages the
practicality of such a requirement in the instant case. And that failure is
crucial because nowhere is it less clear that an individualized suspicion
requirement would be ineffectual than in the school context. In most schools,
the entire pool of potential search targets--students--is under constant
supervision by teachers and administrators and coaches, be it in classrooms,
hallways, or locker rooms. See T.L.O., 469 U.S., at 339, 105 S.Ct., at 741
("[A] proper educational environment requires close supervision of
schoolchildren").
*679 The
record here indicates that the Vernonia schools are no exception. The great
irony of this case is that most (though not all) of the evidence the District
introduced to justify its suspicionless drug testing program consisted of
first- or second-hand stories of particular, identifiable students acting in
ways that plainly gave rise to reasonable suspicion of in-school drug use--and
thus that would have justified a drug-related search under our T.L.O. decision.
See id., at 340-342, 105 S.Ct., at 742-743 (warrant and probable cause not
required for school searches; reasonable suspicion sufficient). Small groups of
students, for example, were observed by a teacher "passing joints back and
forth" across the street at a restaurant before school and during school
hours. Tr. 67 (Apr. 29, 1992). Another group was caught skipping school and
using drugs at one of the students' houses. See id., at 93-94. Several students
actually admitted their drug use to school officials (some of them being caught
with marijuana pipes). See id., at 24. One student presented himself to his
teacher as "clearly obviously inebriated" and had to be sent home.
Id., at 68. Still another was observed dancing and singing at the top of his
voice in the back of the classroom; when the teacher asked what was going on,
he replied, "Well, I'm just high on life." Id., at 89-90. To take a
final example, on a certain road trip, the school wrestling coach smelled
marijuana smoke in a motel room occupied by four wrestlers, see id., at
110-112, an observation that (after some questioning) would probably have given
him reasonable suspicion to test one or all of them. Cf. 4 LaFave § 10.11(b),
at 169 ("[I]n most instances the evidence of wrongdoing prompting teachers
or principals to conduct searches is sufficiently detailed and specific to meet
the traditional probable cause test").
In light of all
this evidence of drug use by particular students, there is a substantial basis
for concluding that a vigorous regime of suspicion-based testing (for which the
District appears already to have rules in place, see Record, Exh. 2, at 14, 17)
would have gone a long way toward solving Vernonia's *680 school drug problem while preserving the **2404 Fourth Amendment rights of James Acton and others like him.
And were there any doubt about such a conclusion, it is removed by indications
in the record that suspicion-based testing could have been supplemented by an
equally vigorous campaign to have Vernonia's parents encourage their children
to submit to the District's voluntary drug testing program. See id., at 32
(describing the voluntary program); ante, at 2396 (noting widespread parental
support for drug testing). In these circumstances, the Fourth Amendment
dictates that a mass, suspicionless search regime is categorically
unreasonable.
I recognize that a
suspicion-based scheme, even where reasonably effective in controlling
in-school drug use, may not be as effective as a mass, suspicionless testing
regime. In one sense, that is obviously true--just as it is obviously true that
suspicion-based law enforcement is not as effective as mass, suspicionless
enforcement might be. "But there is nothing new in the realization"
that Fourth Amendment protections come with a price. Arizona v. Hicks, 480 U.S.
321, 329, 107 S.Ct. 1149, 1155, 94 L.Ed.2d 347 (1987). Indeed, the price we pay
is higher in the criminal context, given that police do not closely observe the
entire class of potential search targets (all citizens in the area) and must
ordinarily adhere to the rigid requirements of a warrant and probable cause.
The principal
counterargument to all this, central to the Court's opinion, is that the Fourth
Amendment is more lenient with respect to school searches. That is no doubt
correct, for, as the Court explains, ante, at 2391-2392, schools have
traditionally had special guardian-like responsibilities for children that
necessitate a degree of constitutional leeway. This principle explains the
considerable Fourth Amendment leeway we gave school officials in T.L.O. In that
case, we held that children at school do not enjoy two of the Fourth
Amendment's traditional categorical protections against unreasonable searches
and seizures: the warrant requirement
*681 and the probable cause requirement. See T.L.O., 469 U.S., at 337-343,
105 S.Ct., at 740-744. And this was true even though the same children enjoy
such protections "in a nonschool setting." Id., at 348, 105 S.Ct., at
746 (Powell, J., concurring).
The instant case,
however, asks whether the Fourth Amendment is even more lenient than that,
i.e., whether it is so lenient that students may be deprived of the Fourth
Amendment's only remaining, and most basic, categorical protection: its strong
preference for an individualized suspicion requirement, with its accompanying
antipathy toward personally intrusive, blanket searches of mostly innocent
people. It is not at all clear that people in prison lack this categorical
protection, see Wolfish, 441 U.S., at 558-560, 99 S.Ct., at 1884-1885
(upholding certain suspicionless searches of prison inmates); but cf. supra, at
2401 (indicating why suspicion requirement was impractical in Wolfish ), and we
have said "[W]e are not yet ready to hold that the schools and the prisons
need be equated for purposes of the Fourth Amendment." T.L.O., supra, at
338-339, 105 S.Ct., at 741. Thus, if we are to mean what we often
proclaim--that students do not "shed their constitutional rights ... at
the schoolhouse gate," Tinker v. Des Moines Independent Community School
Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969)--the answer
must plainly be no. [FN1]
FN1. The Court says I pay short shrift to the original
meaning of the Fourth Amendment
as it relates to searches of public school children. See ante, at 2396, n. 4.
As an initial matter, the historical materials on what the Framers thought of
official searches of children, let alone of public school children (the concept
of which did not exist at the time, see ante, at 2390, n. 1), are extremely
scarce. Perhaps because of this, the Court does not itself offer an account of
the original meaning, but rather resorts to the general proposition that
children had fewer recognized rights at the time of the framing than they do
today. But that proposition seems uniquely unhelpful in the present case, for
although children may have had fewer rights against the private schoolmaster at
the time of the framing than they have against public school officials today,
parents plainly had greater rights then than now. At the time of the framing,
for example, the fact that a child's parents refused to authorize a private
schoolmaster's search of the child would probably have rendered any such search
unlawful; after all, at common law, the source of the schoolmaster's authority
over a child was a delegation of the parent's authority. See ante, at
2391-2392. Today, of course, the fact that a child's parents refuse to
authorize a public school search of the child--as James Acton's parents refused
here--is of little constitutional moment. Cf. Ingraham v. Wright, 430 U.S. 651,
662, n. 22, 97 S.Ct. 1401, 1408,
n. 22, 51 L.Ed.2d 711 (1977) ("[P]arental approval of corporal punishment
is not constitutionally required").
**2405 *682 For the contrary position, the Court relies on cases such as T.L.O.,
Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), and
Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). See ante, at
2391-2392. But I find the Court's reliance on these cases ironic. If anything,
they affirm that schools have substantial constitutional leeway in carrying out
their traditional mission of responding to particularized wrongdoing. See
T.L.O., supra (leeway in investigating particularized wrongdoing); Ingraham,
supra (leeway in punishing particularized wrongdoing); Goss, supra (leeway in
choosing procedures by which particularized wrongdoing is punished).
By contrast,
intrusive, blanket searches of schoolchildren, most of whom are innocent, for
evidence of serious wrongdoing are not part of any traditional school function
of which I am aware. Indeed, many schools, like many parents, prefer to trust
their children unless given reason to do otherwise. As James Acton's father
said on the witness stand, "[suspicionless testing] sends a message to
children that are trying to be responsible citizens ... that they have to prove
that they're innocent ..., and I think that kind of sets a bad tone for citizenship."
Tr. 9 (Apr. 29, 1992).
I find unpersuasive
the Court's reliance, ante, at 2392, on the widespread practice of physical
examinations and vaccinations, which are both blanket searches of a sort. Of
course, for these practices to have any Fourth Amendment significance, the
Court has to assume that these physical exams and vaccinations are typically
"required" to a similar extent that urine testing and collection is
required in the instant case, i.e., that they are required regardless of
parental *683 objection and that
some meaningful sanction attaches to the failure to submit. In any event,
without forming any particular view of such searches, it is worth noting that a
suspicion requirement for vaccinations is not merely impractical; it is
nonsensical, for vaccinations are not searches for anything in particular and
so there is nothing about which to be suspicious. Nor is this saying anything
new; it is the same theory on which, in part, we have repeatedly upheld certain
inventory searches. See, e.g., South Dakota v. Opperman, 428 U.S. 364, 370, n.
5, 96 S.Ct. 3092, 3097, n. 5, 49 L.Ed.2d 1000 (1976) ("The probable-cause
approach is unhelpful when analysis centers upon the reasonableness of routine
administrative caretaking functions"). As for physical examinations, the
practicability of a suspicion requirement is highly doubtful because the
conditions for which these physical exams ordinarily search, such as latent
heart conditions, do not manifest themselves in observable behavior the way
school drug use does. See supra, at 2403.
It might also be
noted that physical exams (and of course vaccinations) are not searches for
conditions that reflect wrongdoing on the part of the student, and so are
wholly nonaccusatory and have no consequences that can be regarded as punitive.
These facts may explain the absence of Fourth Amendment challenges to such
searches. By contrast, although I agree with the Court that the accusatory
nature of the District's testing program is diluted by making it a blanket one,
any testing program that searches for conditions plainly reflecting serious
wrongdoing can never be made wholly nonaccusatory from the student's
perspective, the motives for the program notwithstanding; and for the same
reason, the substantial consequences that can flow from a positive test, such
as suspension from sports, are invariably--and quite reasonably--understood as
punishment. The best proof that the District's testing program is to some
extent accusatory can be found in James Acton's own explanation on the witness
stand as to why he did not want to submit to drug testing: "Because I feel
that they have no *684 reason to
think I was taking drugs." Tr. 13 (Apr. 29, 1992). It is hard to think of
a manner of explanation that resonates more intensely in our Fourth Amendment
tradition than this.
**2406 II
I do not believe
that suspicionless drug testing is justified on these facts. But even if I
agreed that some such testing were reasonable here, I see two other Fourth
Amendment flaws in the District's program. [FN2] First, and most serious, there
is virtually no evidence in the record of a drug problem at the Washington
Grade School, which includes the seventh and eighth grades, and which Acton
attended when this litigation began. This is not surprising, given that, of the
four witnesses who testified to drug-related incidents, three were teachers
and/or coaches at the high school, see Tr. 65; id., at 86; id., at 99, and the
fourth, though the principal of the grade school at the time of the litigation,
had been employed as principal of the high school during the years leading up
to (and beyond) the implementation of the drug testing policy. See id., at 17.
The only evidence of a grade school drug problem that my review of the record
uncovered is a "guarantee" by the late-arriving grade school
principal that "our problems we've had in '88 and '89 didn't start at the
high school level. They started in the elementary school.'' Id., at 43. But I
would hope that a single assertion of this sort would not serve as an adequate
basis on which to uphold mass, suspicionless drug testing of two entire grades
of student athletes--in Vernonia and, by the Court's reasoning, in other school
districts as well. Perhaps there is a drug problem at the grade school, but one
would not know it from this *685
record. At the least, then, I would insist that the parties and the District
Court address this issue on remand.
FN2. Because I agree with the Court that we may assume the
District's program allows students to confine the advanced disclosure of highly
personal prescription medications to the testing lab, see ante, at 2394, I also
agree that Skinner controls this aspect of the case, and so do not count the
disclosure requirement among the program's flaws.
Second, even as to
the high school, I find unreasonable the school's choice of student athletes as
the class to subject to suspicionless testing--a choice that appears to have
been driven more by a belief in what would pass constitutional muster, see id.,
at 45-47 (indicating that the original program was targeted at students
involved in any extracurricular activity), than by a belief in what was
required to meet the District's principal disciplinary concern. Reading the
full record in this case, as well as the District Court's authoritative summary
of it, 796 F.Supp. 1354, 1356-1357 (Ore.1992), it seems quite obvious that the
true driving force behind the District's adoption of its drug testing program
was the need to combat the rise in drug-related disorder and disruption in its
classrooms and around campus. I mean no criticism of the strength of that
interest. On the contrary, where the record demonstrates the existence of such
a problem, that interest seems self-evidently compelling. "Without first
establishing discipline and maintaining order, teachers cannot begin to educate
their students." T.L.O., 469 U.S., at 350, 105 S.Ct., at 747 (Powell, J.,
concurring). And the record in this case surely demonstrates there was a
drug-related discipline problem in Vernonia of " 'epidemic proportions.'
" 796 F.Supp., at 1357. The evidence of a drug-related sports injury
problem at Vernonia, by contrast, was considerably weaker.
On this record,
then, it seems to me that the far more reasonable choice would have been to
focus on the class of students found to have violated published school rules
against severe disruption in class and around campus, see Record, Exh. 2, at 9,
11--disruption that had a strong nexus to drug use, as the District established
at trial. Such a choice would share two of the virtues of a suspicion-based
regime: testing dramatically fewer students, tens as against hundreds, and
giving students control, through their behavior, *686 over the likelihood that they would be tested. Moreover,
there would be a reduced concern for the accusatory nature of the search,
because the Court's feared "badge of shame," ante, at 2396, would
already exist, due to the antecedent accusation and finding of severe
disruption. In a lesser known aspect of Skinner, we upheld an analogous testing
scheme with little hesitation. See Skinner, 489 U.S., at 611, 109 S.Ct., at
1410 (describing " 'Authorization to Test for Cause' " scheme,
according to which train operators would be tested "in the event of
certain specific rule violations, including noncompliance **2407 with a signal and excessive speeding").
III
It cannot be too often
stated that the greatest threats to our constitutional freedoms come in times
of crisis. But we must also stay mindful that not all government responses
to such times are hysterical overreactions; some crises are quite real, and
when they are, they serve precisely as the compelling state interest that
we have said may justify a measured intrusion on constitutional rights. The
only way for judges to mediate these conflicting impulses is to do what they
should do anyway: stay close to the record in each case that appears before
them, and make their judgments based on that alone. Having reviewed the record
here, I cannot avoid the conclusion that the District's suspicionless policy
of testing all student athletes sweeps too broadly, and too imprecisely, to
be reasonable under the Fourth Amendment.