VERNONIA SCHOOL DISTRICT 47J, Petitioner,

v.

Wayne and Judy ACTON, guardians ad litem for James Acton, Respondents.

No. 94‑590.

United States Supreme Court Respondent's Brief.

October Term, 1994.

Feb. 16, 1995.

RESPONDENT'S BRIEF, U.S.S.CT.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

RESPONDENTS' BRIEF

Thomas M. Christ Counsel of Record John A. Wittmayer Volunteer Attorneys ACLU Foundation of Oregon, Inc. 101 S.W. Main, Suite 2000 Portland, Oregon 97204 (503) 221‑1011

Steven R. Shapiro American Civil Liberties Union Foundation 132 West 43 Street New York, New York 10036 (212) 944‑9800

*i TABLE OF CONTENTS

TABLE OF AUTHORITIES ... iii

STATEMENT OF THE CASE ... 1

A. Background ... 1

B. The Drug "Problem" ... 2

C. Drugs In The Sports Program ... 6

D. The Drug‑Testing Program ... 8

E. Effect Of Drug Testing ... 10

F. The Drug Test Applied To James ... 12

G. The Proceedings Below ... 12

SUMMARY OF ARGUMENT ... 16

ARGUMENT ... 17

THE DISTRICT'S DRUG‑TESTING PROGRAM VIOLATES THE FOURTH AMENDMENT ... 17

A. The Fourth Amendment Applies To School Searches ... 17

B. Drug Testing Is A "Search" ... 19

C. Standards For Drug Tests ... 19

D. The District's Drug‑Testing Program Is Unreasonable ... 25

1. The District's Program Is A Substantial Invasion Of Privacy ... 26

*ii 2. The District's Interest In Drug Testing Is Not Compelling ... 39

3. The Students' Interest In Privacy Outweighs The District's Interest In Testing ... 49

CONCLUSION ... 50

*iii TABLE OF AUTHORITIES

Cases

Brooks v. East Chambers Consol. Independent School District, 730 F.Supp. 759 (S.D.Tex. 1989), aff'd without published op., 930 F.2d 915 (5th Cir. 1991) ... 44

Chambers v. Maroney, 399 U.S. 42 (1970) ... 19

Delaware v. Prouse, 440 U.S. 648 (1979) ... 13, 47

Doe v. Renfrow, 451 U.S. 1022 (1981) ... 18

Dunaway v. New York, 442 U.S. 200 (1979) ... 19

Frank v. Maryland, 359 U.S. 360 (1959) ... 20

Goss v. Lopez, 419 U.S. 565 (1975) ... 18

Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) ... 20

Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990) ... 47

National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) ... passim

New Jersey v. T.L.O., 469 U.S. 325 (1969) ... 16, 17, 18, 32, 33

*iv Olmstead v. United States, 277 U.S. 438 (1928) ... 18

Schaill v. Tippecanoe County School Corp., 679 F.Supp. 833 (N.D.Ind. 1988) ... 29, 30

Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) ... passim

Stanford v. Texas, 379 U.S. 476 (1965) ... 20

State ex rel. Juvenile. Dep't v. DuBois, 821 P.2d 1124 (Or.App. 1991) ... 32

State v. Tourtillott, 618 P.2d 423 (Or. 1980), cert. denied, 451 U.S. 972 (1981) ... 13

Sterling v. Cupp, 44 607 P.2d 206 (Or.App. 1980), aff'd as modified, 625 P.2d 123 (Or. 1981) ... 27

Terry v. Ohio, 392 U.S. 1 (1968) ... 19, 27

Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969) ... 17

United States v. Chadwick, 433 U.S. 1 (1977) ... 20

United States v. Martinez‑Fuerte, 428 U.S. 543 (1975) ... 20, 38, 39, 47

*v University of Colorado v. Derdyn, 863 P.2d 929 (Colo. 1993), cert. denied, ‑‑‑ U.S. ‑‑‑‑, (1994) ... 35

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) ... 17, 18

Constitutional Provisions and Statutes

United States Constitution, Amend. IV ... passim

Oregon Constitution,

Article I, s 9 ... 12, 13, 15, 32

Article II, s 2(1)(a) ... 19

20 U.S.C. s 123h(b)(3) ... 28

20 U.S.C. s 3192(d) ... 8

Or. Rev. Stat. s 10.030(2)(c) ... 19

Other Authorities

Eric Blair a.k.a. George Orwell, 1984 (New American Library 1981) ... 30

K. Zeese, DRUG TESTING LEGAL MANUAL (rel. # 2, Nov. 1994) ... 27

*1 STATEMENT OF THE CASE

James Acton is a student in the Vernonia School District ("the District") in northwest Oregon. He doesn't use illicit drugs, and the District has no reason to suspect he does. And yet it will not let James participate in school sports unless he consents to produce urine on demand to be tested for evidence of illicit drug use. The issue is whether this drug‑testing requirement violates James's rights under the state and federal constitutions to be free from unreasonable searches.

A. Background

The District operates four schools, including Washington Grade School, in Vernonia, Oregon, a small, logging community in the Coast Range an hour west of Portland. (R. 18; Pl. Ex. 5 at 6). About 700 students attend these schools, and most of them participate in at least one of the seven interscholastic sports the District offers for grades seven and up: football, basketball, cross country, track, volleyball, wrestling, and golf. (Pl. Ex. 5 at 7; J.A. 20, 37). In the late 1980s, the school board concluded that it had a drug "problem" within the student body generally and the sports program particularly. The board's first reaction was to try to persuade students through lectures and assemblies that drugs can be harmful. (J.A. 25‑26). But, impatient for immediate results, it soon switched from persuasion to coercion. First, it brought in a drug‑sniffing dog‑‑but only for one day‑‑to search student lockers. (R. 25, 34‑35). Then, in the fall of 1989, it adopted a mandatory drug‑testing program for any student who wishes to participate in school sports. The purpose of the program is to protect the "health and safety" of athletes, according to the District's "policy statement," as well as the officials who designed the program and enforce it. (J.A. 7, 27‑28, 61; Pl. Ex. 5 at 16).

*2 B. The Drug "Problem"

It is important to carefully describe Vernonia's drug "problem," because the District persistently overstates it. For example, in its petition for a writ of certiorari, the District told this Court that an "epidemic" of drug use within the student body "invaded" the sports program, "endangering the very center of activity of the school and the community," and leaving the school board with no alternative to drug testing but "mass expulsion" of students. Pet. at 3, 7 and 10‑11. The District tones down the rhetoric in its brief on the merits, but nevertheless tries to paint the same picture. E.g., Pet. Br. at 28 (referring to a "crisis in the classroom and the sports program"). In fact, there is little evidence of Vernonia students using drugs, and no evidence of any athlete in Vernonia ever competing while on drugs, let alone causing or sustaining injury.

The evidence consists almost entirely of complaints by a few teachers and administrators about a perceived decline in student deportment in the mid‑ to late‑1980s. Students generally seemed to be less well‑mannered than anyone remembered. Some of them refused to pay attention in class, said rude, obscene, and disrespectful things, laughed aloud at serious moments, and generally acted like juveniles‑‑at least, it appeared to some teachers that more students were behaving this way than ever before. (J.A. 21‑22, 39‑40, 47‑ 48, 60‑61, 66‑67). School officials were particularly disturbed by a group of students who called themselves "the Big Elks." It is unclear how many students were at the "core" of this group‑‑one teacher said four to six (R. 81), which is less then one percent of the student body; another said ten. (J.A. 60). In any event, the Big Elks went around campus "bugling" and "butting" their heads together in an adolescent attempt to demonstrate their "camaraderie." (J.A. 41). Another group‑‑likewise of uncertain size‑‑called itself the "Drug Cartel" and exhibited equally strange behavior. (*3 J.A. 48). There is no evidence, however, that any "Elk" or "Cartellian" ever actually used drugs or that drugs were the reason why they behaved as they did. (J.A. 52).

The perceived decline in student behavior coincided with an increase in the number of students referred by teachers to administrators for discipline‑‑known locally as "disciplinary referrals." (R. 44, 69). For want of some other explanation for the downturn in student deportment, the teachers concluded that drug use was on the rise within the student body, contrary to national and statewide trends. (J.A. 77). This assumption was supported, at least in the teachers' minds, by unconfirmed, second‑hand reports of off‑campus drug use, almost all of it hearsay or hearsay within hearsay, [FN1] received over the Actons' continuing objections, [FN2] and by reports of students romanticizing drugs in *4 papers and hallway conversations. [FN3] But only one of the teachers who testified at trial reported that she ever actually observed any student taking drugs. [FN4]

FN1. For example, Randy Aultman, a principal, testified: "Four football players talked to the football coach and admitted that they have used drugs, and amphetamines were those drugs, and the coach told me[.][T]he kids never came forward and said, you know, they did...." (J.A. 23). In other words, four students told the football coach that they had used amphetamines. The coach told Mr. Aultman what he had heard, and he repeated it at trial as if it were fact. Later, Mr. Aultman admitted that he had never actually seen or caught a student taking drugs and that he was acting on second‑hand reports. (J.A. 36).

Ron Svenson, a coach and teacher, testified: "When I was an assistant coach the head football coach was called in and I believe it was in the football season of '85 and apprised of the fact that parents called and said that some of their sons‑‑that other kids on the team had done drugs on a road trip...." (J.A. 53). In other words, the football coach told Mr. Svenson that some parents told the football coach that some students told the parents that some other students had taken drugs during a road trip.

FN2. As the District notes, Pet. Br. at 4, n. 3, the trial court granted the Actons a continuing objection, on hearsay grounds, to these second‑ and third‑hand reports of students using drugs. (J.A. 22‑23; R. 107, 109‑10). The court said it would not receive this evidence for the purpose of proving that students actually were using drugs, because that would be hearsay, but would receive it for the limited purpose of explaining why school officials acted as they did. (J.A. 23; R. 116‑17, 143‑44). Accordingly, this evidence cannot support a finding that there was in fact a drug problem in the school district, merely that school officials thought there was. The District's brief repeatedly ignores this limitation on the use of its evidence. E.g., Pet. Br. at 6.

FN3. A teacher who taught composition to 90 or so students each year for 13 years testified that 8 or 9 of them‑‑which works out to less than one percent of all of her students‑‑had written papers that romanticized drugs. (J.A. 46, 48, 51). There is no evidence that any of those students, or others who were overheard in the hallway bragging about drug use, actually took drugs, or that this was anything but juvenile bravado.

FN4. Marsha King testified that she looked out of a window of the high school and observed students at a cafe across the street passing cigarettes back and forth. (J.A. 39; R. 80). She concluded that the cigarettes were "joints," that is, contained marijuana, but did not explain how she could tell, from that distance, that they did not instead contain tobacco. Nor did she explain how many students she saw, when she saw them, or whether any of them were athletes. On another occasion, Ms. King saw a student who was obviously intoxicated, but on alcohol, not drugs. (J.A. 40; R. 81). This was as close as Ms. King or any other witness came to direct observation of any illicit drug use.

The District's assumption that every unruly student is unruly because of drugs is, on its face, dubious and, on the record, unsubstantiated. As noted above, there is evidence that more students were misbehaving than before, but no evidence that any, let alone many or most, of those students were acting up because of drugs. Likewise, there is evidence that disciplinary referrals were up, but no evidence *5 that any of those referrals involved drugs. Students who misbehaved in class were "referred" whether or not drugs were suspected as the reason for their misbehavior. (R. 83). Therefore, the District is not justified in contending, based on referral numbers alone, that the downturn in student deportment was completely, or even partly, drug‑driven. [FN5]

FN5. From the early to late 1980s, disciplinary referrals went from 40 or 50 per year to double that. (J.A. 21). But, of course, one student could have multiple referrals, so the absolute number of referrals is not very helpful in determining the number of misbehaving students.

The Actons do not contend that Vernonia has managed, through geographic isolation, to escape drug infiltration entirely, or that no students in Vernonia were using drugs before the District adopted its drug‑testing program. Nor do they contend that even so much as one student on drugs would not be a "problem" and reason for concern. Their point is simply that it is misleading for the District to assert that drug use in Vernonia schools had reached "epidemic" proportions, or anything like it, and that "administrators and teachers foresaw the need for mass expulsions." Pet. Br. at 29. [FN6] On this record, the most that can be said is that "some" students appeared to be taking drugs, which is exactly what the court of appeals concluded when it reviewed the evidence. In a finding not challenged by the District, the court of appeals said: "[W]e reemphasize that what the evidence shows, and all it shows, is that there was some drug usage in the schools...." 23 F.3d at 1519 (Pet. App. 20a)(emphasis added). This is as far as the court of appeals *6 went in its findings, and as far as the record allowed it to go. [FN7]

FN6. One witness testified that "massive expulsion" or "some tremendous alternative," meaning, apparently, drug testing, were the only two solutions to the school's disciplinary problems. (J.A. 26‑27). But this is clearly hyperbole. There is no evidence that any student was expelled for using drugs or that the school board even considered expelling a student for that reason, let alone masses of them.

FN7. The District argues that the trial court's findings were endorsed by the court of appeals and thus are entitled to "great weight" in this Court. Pet. Br. at 29, n. 23. It is true that this Court will defer to the lower courts when they concur in their findings, but that is not what happened here. The court of appeals did not simply adopt the trial court's findings as its own. To the contrary, it reviewed the record and made its own observations about the extent of the drug problem in Vernonia. See 23 F.3d at 1512 (Pet. App. 2a‑4a). Moreover, although the court rejected the Actons' contention that there was no evidence of actual drug use, merely perceived drug use, id. at 1519 (Pet. App. 18a‑19a), it immediately went on to "reemphasize" that all the record shows is "some drug usage in the schools." Id. (Pet. App. 20a‑21a). The court appeared to studiously avoid words like "epidemic" and "crisis," which punctuate the briefs of the District and the amici supporting it. Indeed, the court noted that even the word "problem" may misdescribe the situation: "Perhaps dubbing [the District's drug experience] a 'problem' is a matter of perception or definition. What appears to be a problem in one place might seem to be a minor annoyance elsewhere." 23 F.3d at 1519 (Pet. App. 20a).

C. Drugs In The Sports Program

If there is little evidence of drug use in the classroom, there is even less of it in the sports program. Indeed, the District conceded, in a pre‑trial interrogatory, that it is unable to confirm so much as one drug‑related injury in the entire history of its sports program. (J.A. 79‑80). This includes, of course, the period of time when, the District now says, drug use was rampant in its schools. [FN8] As discussed *7 above, the District concluded that drug use was commonplace in the classroom because of discipline problems there. There is no evidence, however, of similar problems on the playing field. It follows that, if students were taking drugs, they were not taking them before competing.

FN8. The District suspects that one athlete may have been injured while competing on drugs, but the evidence in support of that suspicion is skimpy at best. The wrestling coach, Ron Svenson, testified that a high school student was injured in an "away" match when he failed to react as quickly as the coach would have liked to a hold his opponent put on him. (J.A. 54‑ 55). A day later Mr. Svenson went to the hotel room the wrestler was sharing with three other students. While there he smelled what he believed to be marijuana and concluded that "somebody in the room was smoking." Id. Of course, that "somebody" was not necessarily the injured wrestler, and even if it were, it does not follow that he had also smoked marijuana before competing the day before or, if he did, that marijuana played any role in his injury. Mr. Svenson was the first to admit that this evidence leads nowhere. "There was no way," he said, "of particularly proving at that point in time whether he was under the influence [during the match]." (J.A. 56).

Mr. Svenson, who also coached football, testified that he watched some football game films and noticed that some of the students did not react to situations the way he taught them. This led him to wonder if they were under the influence of drugs during the games. (J.A. 56). He never found out.

This was as far as the District got in trying to prove that any student ever competed in a District‑sponsored athletic event while under the influence of illegal drugs.

Perhaps the most telling evidence on the extent of drugs in the sports program before the drug test is the evidence that only two students, both in high school, have flunked the test. (Pl. Ex. 5 at 13‑15, 25; J.A. 38; R. 64). There are several possible explanations for this near‑perfect record. One is that, as the District now contends, many athletes were taking drugs before the drug test was enacted, but they all quit immediately and en masse as soon as testing started. This seems unlikely, however, if drugs were as embedded in the school culture, and are as addictive, as the District suggests. Another explanation is that, again, many athletes were taking drugs, but they all chose to give up sports and *8 avoid the test rather than give up drugs. There is no evidence, however, that participation in school sports dropped off when the testing began and, indeed, 110 students were tested in just the first three weeks of the program. (Pl. Ex. 3 at 1; Pl. Ex. 5 at 19). A more plausible explanation for so few failed tests is that, in fact, few athletes were taking drugs before testing started.

The District superintendent admitted that the District does not know what percentage of students who play sports take drugs illegally and that no effort has been made to find out except through the drug test. (Pl. Ex. 5 at 15). Since the test has detected next to no one, the District is hard pressed now to argue that drugs "invaded" the sports program; to the contrary, they appeared to have largely stayed out of it.

D. The Drug‑Testing Program

In response to its concern, justified or not, about drug use in school sports, the school board decided to institute a mandatory drug‑testing program for all student athletes. In its present form, [FN9] the program prohibits students from participating *9 in school sports unless they consent to have their urine tested for traces of certain illicit drugs: cocaine, marijuana, amphetamines and, occasionally, LSD. (J.A. 8; Pl. Ex. 4 at 4‑5; Pl. Ex. 5 at 18). Notably absent from this list is perhaps the most commonly abused drug, at all age levels, namely, alcohol. Pet. Br. at 9. Also excluded are steroids and other substances designed to enhance athletic performance. (J.A. 86).

FN9. The original program was in force from September 1989 to August 1990 (J.A. 7), and applied to any student who participates in any extracurricular activity, athletic or nonathletic, including, for example, band, drama, and student government. (Pl. Ex 5 at 16‑17; J.A. 29‑30). The District claims that it amended the program to apply only to athletes in order "to assure its legality." Pet. Br. 9. in fact, it may have been motivated by funding concerns. As the Solicitor General explains in his brief, the District has received $7,500 per year under a 1986 congressional act that authorized federal grants to local schools for, among other things, "non‑discriminatory random drug testing programs for students voluntarily participating in athletic activities." Br. of United States at 1‑2 and n. 1, quoting 20 U.S.C. s 3192(d)(emphasis added). If the District had stuck with its original program, it would not have been "legal" to receive these funds.

In October, 1994, Congress reauthorized the 1986 act, minus the provision for federal funding of drug tests. Br. of United States at 2, n. 1.

Athletes are tested at the start of each athletic season in which they participate. (Pl. Ex. 5 at 221‑22). They are also subject to random tests, conducted weekly during the season. Id. The testing protocol depends on gender. Boys are taken to the locker room where, one at a time, they urinate into a vial while a male faculty member, either Mr. Aultman, the grade school principal, or Mr. Svenson, a teacher and coach in the high school, waits close behind. (Pl. Ex. 4 at 3). Mr. Aultman testified that sometimes he watches the student produce the urine sample, but often he just listens. (J.A. 31‑32). Mr. Svenson denied watching or listening, but both he and Mr. Aultman admitted that that is why they are there: to observe the students so they don't cheat. (J.A. 32; R. 138‑39). The students, of course, don't know whether or when the monitor is watching them. The procedure for girls is sightly different. They produce their samples, one at a time, in an enclosed stall while a female teacher stands outside listening through a vent in the door for the normal sounds of urination. (J.A. 42; R. 78‑79; Ex. 4 at 4; Ex. 5 at 21‑22).

Any student who refuses to be tested is automatically *10 suspended from the sports program for the remainder of the athletic season. (J.A. 8). A student who flunks the test‑‑that is, a student whose urine sample tests "positive" for the target drugs‑‑is subject to specified and escalating penalties. For a first "offense," the student is given a choice between "[p]articipating in an assistance program and taking weekly drug tests for six weeks" or "be[ing] suspended from participating in athletics for the remainder of the current season and the next season for which he/she is eligible." (J. A. 9). For a second "offense," the first option is removed; the student is suspended for the remainder of the current season and all of the next season. Id. A third "offense" results in suspension through the next two seasons. Id.

In addition to submitting their urine for inspection, students who have been taking prescription drugs "must provide verification (either by a copy of the prescription or by doctor's authorization) prior to being tested." (J.A. 8). [FN10] This information is then shared with the lab that tests the urine to aid in interpreting the test results. (Stip. Test. of R. Velander at 3).

FN10. The form the District uses also requires the students to identify their nonprescription medications and the names of their treating physicians. (Def. Ex. 109 at 1, C).

The District superintendent, principals, vice principals, and athletic directors have direct access to the test results. (J.A. 29). Also, other officials who are involved in the ensuing due process hearing, counseling programs, and weekly repeat drug tests will necessarily find out when a student tests positive.

E. Effect Of Drug Testing

The District asserts that the drug‑testing policy accomplished its goal of discouraging athletes from competing while on drugs. But since there is no evidence that any students *11 were doing that, and since there were as many drug‑related injuries before the policy took effect as after‑‑to wit, none‑‑it is impossible to conclude that the policy accomplished anything except to invade student privacy.

It is true that some teachers noted an improvement in classroom behavior after the policy was adopted, but that wasn't the goal of the policy‑‑at least not the stated goal. And since there is no basis for finding that all of the previously unruly students were unruly because of drugs, there is likewise no basis for concluding that the policy had anything to do with the turnaround in their behavior.

Even if classroom discipline was entirely drug‑driven, and even if the improvement in discipline was due solely to a decline in drug use‑‑big ifs on this record‑‑it still cannot be asserted, without guesswork, that the decline in drug use was due to drug testing, rather than to the District's other, ongoing drug education and counseling prograins, which the superintendent called "effective." (R. 63‑64; Pl. Ex. 5 at 20). The drug‑testing program is "only a small part" of the District's anti‑drug campaign, according to the program's author. (Pl. Ex. 3 at 1). That being so, the District is not justified in now claiming that drug‑testing was solely responsible for whatever improvement there may have been in the drug "problem."

The District's own expert, Dr. Robert DuPont, testified that drug use among high school students has declined steadily, both across the state and across the nation, since the mid‑1980s, which includes the period of time when the District's drug‑testing policy was in force. (J.A. 77). Whatever caused this trend‑‑Dr. DuPont attributes it to decreasing societal tolerance of drugs and widespread publicity over the death of Len Bias from an overdose of cocaine (id.)‑‑may also account for the trend in Vernonia, if in fact there was one there.

*12 As the District notes, one teacher thought that student grades improved post‑testing, Pet. Br. at 12, but the District offered no evidence, such as summaries of transcripts or test results, to support that observation.

F. The Drug Test Applied To James

In the fall of 1991, James was 12 years old and a seventh grader in Washington Grade School. He was interested in sports and tried out for the football team. (J.A. 16; R. 6‑7). On the first day of practice, the coach gave him a drug‑testing consent form, which he took home and discussed with his parents. They‑‑James and his parents‑‑decided not to sign. (J.A. 16‑17; R. 7‑8). For that reason alone, the District kicked James off the team and declared him ineligible for school sports until he consents to drug testing. (R. 8‑9, 12‑ 13).

James's father, Wayne, testified that he believes the drug test is an invasion of James's privacy and a violation of his civil rights. (R. 9). He also expressed concern that drug‑testing sends the wrong message to students: a message that, in the government's eyes, everyone is presumed guilty‑‑in James's case, guilty of using illicit drugs‑‑until proven innocent. (R. 9‑10). There is no question, however, that James is innocent. As the court of appeals found, "[n]o evidence suggest[s] that James has ever used drugs or that the District has any reason to suspect that he has." 23 F.3d at 1517 (Pet. App. 9a).

G. The Proceedings Below

James's parents, on his behalf, brought this action to enjoin the District from enforcing its drug‑testing program against him. In their complaint, they alleged that the program violates his rights under the Fourth Amendment and Article 1, section 9, of the Oregon Constitution, both of which prohibit "unreasonable" government searches. (J.A. *13 3‑6). Following a bench trial, the district court found no violation of either constitution and entered judgment for the District. Acton v. Vernonia School Dist. 47J, 796 F.Supp. 1354 (D.Or. 1992)(Pet. App. B). The Actons appealed, and the court of appeals unanimously reversed. Acton v. Vernonia School Dist. 47J, 23 F.3d 1514 (9th Cir. 1994) (Pet. App. A).

At the outset of its opinion the court of appeals announced that it was "constrained, in the first instance, to decide this case on Oregon constitutional grounds," 23 F.3d at 1518 (Pet. App. 16a), "in order to avoid addressing federal constitutional claims unnecessarily." Id. (Pet. App. 12a‑ 13a). This was possible, the court said, because Article I, section 9, and the Fourth Amendment are not "coextensive" and, moreover, the state provision is more protective than the federal provision‑, "We can say with absolute confidence that the Oregon Constitution will not be construed to offer less protection than the Fourth Amendment. [And][i]t is highly likely that it will be found to offer more protection." Id. (Pet. App. 16a).

A leading Oregon case on suspicionless searches is State v. Tourtillott, 618 P.2d 423 (Or. 1980), cert. denied, 451 U.S. 972 (1981), which approved a police roadblock set up on the opening day of deer season to check for unlicensed hunters. In reaching that decision, the Oregon Supreme Court relied primarily on this Court's opinion in Delaware v. Prouse, 440 U.S. 648 (1979). Accordingly, the court of appeals turned to Prouse for guidance in construing Article 1, section 9. From Prouse, the court "distilled" four factors to consider in evaluating a suspicionless search: "(1) the importance of the governmental interests [served by the search]; (2) the degree of physical and psychological intrusion on the citizen's rights; (3) the amount of discretion the procedure vests in individual officials; and (4) the efficiency of the procedure‑‑that is[,] how well it contributes to the *14 reaching of its purported goals and how necessary it is." 23 F.3d at 1521 (Pet. App. 31a).

Taking these factors in reverse order, the court concluded, first, that the "efficiency" factor weighed in favor of the drug‑testing program, but only "slightly." Id. at 1522 (Pet. App. 34a). It next concluded that the "discretion" factor also favored the District's position, because the drug test is "completely random." Id. (Pet. App. 36a). That left two factors‑‑ "intrusiveness" and "importance"‑‑and those factors, the court said, "are dispositive." Id. (Pet. App. 37a).

Compelled urinalysis is a substantial intrusion on privacy, the court explained, for schoolchildren as well as adults. It noted that "[c]hildren are compelled to attend school, but nothing suggests that they lose their right to privacy in their excretory functions when they do so." Id. at 1525 (Pet. App. 52a)(emphasis in original). "Nor can we say," the court continued, "that the privacy interests of athletes are substantially lower than those of students in general." Id. at 1525 (Pet. App. 53a).

Turning, then, to the District's interest in drug testing, the court observed that those interests‑‑preventing unnecessary athletic injuries, reducing the attraction of drugs among other students, and improving discipline‑‑"are not minimal." Id. at 1526 (Pet. App. 56a). But, the court said, those interests

suffer by comparison to the kinds of dangers that have existed when random drug testing has been approved. The extreme dangers in hazards involved in the prior cases are simply not present here. The prospect that an athlete mighthurt himself or a competitor is real enough, but it is not a risk of the same magnitude as an airplane or train wreck, or a gas pipeline or nuclear power plant disaster....

*15 Id. at 1526 (Pet. App. 56a‑57a).

Balancing all of the factors, the court concluded:

[W]hen we mix all of the elements together‑‑the slight weight in favor of efficiency, the privacy interests, the governmental interest, and the discretionary factor‑‑and step back to look at the compound they yield, it becomes apparent that the policy violates the Fourth Amendment. It follows that it also violates Article 1, Section 9[,] of the Oregon Constitution.

Id. at 1526 (Pet. App. 59a‑60a).

The District petitioned this Court to consider whether its drug‑testing program offends the Fourth Amendment, not whether it offends Article 1, section 9, and, indeed, the District has not briefed the latter issue. For reasons set forth below, the Court should hold that the policy does violate the Fourth Amendment. If, however, the Court holds otherwise, that should not end the case. Instead, it should be remanded to the court of appeals to determine, once again, whether the program nevertheless violates the more‑shielding state constitution. As the court of appeals put it, the Fourth Amendment merely establishes "the floor," not "the ceiling," for a lawful search in Oregon. 23 F.3d at 1521 (Pet. App. 33a). [FN11]

FN11. In their brief opposing the petition for a writ of certiorari, the Actons argued that the Court should deny the writ because the decision below Tests on state law. The Actons will not repeat that argument here, but do not thereby concede that it is proper or advisable for the Court to hear this case. They urge the Court to dismiss the writ as improvidently granted.

*16 SUMMARY OF ARGUMENT

The Fourth Amendment applies to searches conducted by school officials, New Jersey v. TL.O., 469 U.S. 325 (1969), and drug testing by urinalysis is a search. Skinner v. Railway Labor Executives' Assn, 489 U.S. 602 (1989).

As a general rule, the government cannot search a person without reason to suspect that he or she is guilty of wrongdoing. There is an exception, however, in limited circumstances, where: (1) the search serves some "special need" beyond the normal need for law enforcement; (2) the government's interest in searching is compelling; and (3) the privacy interests affected by the test are minimal. Skinner, 489 U.S. at 624. Applying this balance‑of‑ interests test, the Court upheld drug‑testing programs for railroad employees who are involved in major train wrecks, Skinner, and customs agents who carry lethal weapons, engage in the direct interdiction of narcotics, or have access to sensitive government information, National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). The Court concluded in Skinner and Von Raab that the employees covered by the tests are engaged in safety‑ or security‑sensitive activities, and often "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." Skinner, 489 U.S. at 628. The government's "compelling" interest in preventing these "disastrous consequences" justified the substantial invasion of privacy that drug testing causes.

The District's drug‑testing program fails the Skinner and Von Raab balancing test. First, drug testing by urinalysis is no less invasive and degrading for minors than it is for adults. Students do not surrender their expectations of privacy in their excretory functions when they attend school or go out for sports, and nothing in their experience in the classroom or on the playing field prepares them for the school's present demand to produce urine for inspection.

*17 Second, the District's test procedures are much more intrusive than the procedures upheld in Skinner and Von Raab. The District requires students to produce the urine sample on demand, in school, and under observation by school officials. In Skinner and Von Raab, by comparison, the urine sample was collected by an independent monitor at an independent site and, at least in Von Raab, with five‑days advance notice. Furthermore, the District requires students to disclose to school officials all of their prescription medications, thus enabling the officials to learn, even without testing, intimate details of the students' private lives.

Third, the goal of the District's drug‑testing program‑‑preventing drug‑ related athletic injuries‑‑is much less compelling than the goals of the programs upheld in Skinner and Von Raab: preventing train wrecks, misuse of deadly weapons, compromise of the nation's borders, and disclosure of state secrets. Junior high school athletics is not "safety‑" or "security‑ sensitive," as those terms are used in Skinner and Von Raab. The typical sports injury in Vernonia is a pulled muscle or torn ligament, and the District has never even had an injury that it can relate to drugs.

ARGUMENT

THE DISTRICT'S DRUG‑TESTING PROGRAM VIOLATES THE FOURTH AMENDMENT

A. The Fourth Amendment Applies To School Searches

Public school students do not "shed their constitutional rights ... at the schoolhouse gate." Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506 (1969); see also New Jersey v. T.L.O., 469 U.S. at 334; West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). The Fourth Amendment, in particular, protects students *18 while in school. In New Jersey v. T.L.O., the Court squarely held that school officials must comply with Fourth Amendment strictures when they search students on school grounds. 469 U.S. at 333‑37.

Indeed, it is important for them to comply scrupulously. "Schools," it has been noted, "are places where we inculcate the values essential to the meaningful exercise of rights and responsibilities by a self‑governing citizenry." Id. at 373 (Stevens, J., concurring in part and dissenting in part). "The values [students] learn there, they take with them in life." Id. at 386. One of our most cherished values, of course, is the right to privacy, which Justice Brandeis memorably described as "the right to be let alone‑‑the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478 (1928)(Brandeis, J., dissenting). If a school is not careful to protect that right on behalf of its students, they will naturally come to view the Fourth Amendment and other constitutional prerogatives as mere platitudes, not to be taken seriously.

The District's observation that "public schools are entrusted with the difficult task of preparing students for citizenship," Pet. Br. at 18, is true, of course, but it hardly supports the District's assertion that school officials are somehow excused from the restraints the Constitution places on all other governmental agents. To the contrary, the Court has repeatedly emphasized that "[t]he authority possessed by the State to prescribe and enforce standards of conduct in its schools, although concededly very broad, must be exercised consistently with constitutional safeguards." Goss v. Lopez, 419 U.S. 565, 574 (1975). See also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. at 637. As Justice Brennan once observed: "Schools cannot expect their students to learn the lessons of good citizenship when the school authorities themselves disregard the fundamental principles underpinning our constitutional freedoms." Doe v. Renfrow, *19 451 U.S. 1022, 1027‑ 28 (1981)(dissenting from denial of certiorari). [FN12]

FN12. It should be noted that the oldest of the District's students are 18 years old, old enough to vote in elections, Or. Const. art. II, s 2(1)(a), and to serve on juries, Or. Rev. Stat. s 10.030(2)(c), two of the most important responsibilities of citizenship.

B. Drug Testing Is A "Search"

In Skinner v. Railway Labor Executives' Ass'n, 489 U.S. at 617, the Court held that a drug test for adults was a "search" under the Fourth Amendment, "[b]ecause it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable." The same can be said of drug tests for minors. Thus, the District's drug‑testing program is a search and must comply with the Fourth Amendment. The District agrees. Pet. Br. at 17, n. 13.

C. Standards For Drug Tests

The first clause of the Fourth Amendment prohibits "unreasonable" searches. In deciding what is reasonable, the Court has turned first to the Amendment's second clause, which states that "no Warrants shall issue but upon probable cause." Accordingly, the Court has repeatedly held that, as a general rule, the government cannot search a person without probable cause to suspect the person has done something wrong. E.g., Dunaway v. New York, 442 U.S. 200, 214 (1979); Chambers v. Maroney, 399 U.S. 42, 51 (1970). Even in cases involving brief, minimally intrusive searches, the Court has almost always insisted upon some individualized suspicion of wrongdoing. E.g., Terry v. Ohio, 392 U.S. 1, 30 (1968).

The history of the Fourth Amendment illustrates the importance of the individualized suspicion requirement. The *20 Amendment was drafted in reaction to the "general warrants" that allowed British officers to search at large through colonial homes and businesses for evidence of crime, anti‑Crown literature, and illegally imported goods. See generally Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978); United States v. Chadwick, 433 U.S. 1, 7‑8 (1977); Stanford v. Texas, 379 U.S. 476, 481‑85 (1965); Frank v. Maryland, 359 U.S. 360, 363‑65 (1959). "The vivid memory by the newly independent Americans of these abuses produced the Fourth Amendment as a safeguard against such arbitrary action by officers of the new union...." Frank, 359 U.S. at 363. Consistent with its historic origins, this Court has held that "some quantum of individualized suspicion is usually a prerequisite to a constitutional search and seizure." United States v. Martinez‑Fuerte, 428 U.S. 543, 560 (1975).

Because individualized suspicion lies at the very core of the Fourth Amendment, the Court has strictly limited the circumstances in which the government may search without it. For example, suspicionless searches are almost never allowed in criminal cases. See Skinner, 489 U.S. at 619 ("Except in certain well‑defined circumstances, a search or seizure in [a criminal case] is not reasonable unless accomplished pursuant to a judicial warrant issued upon probable cause"). And, even where a search serves "special governmental needs, beyond the normal need for law enforcement," it is still necessary to "balance the individual's privacy expectations against the government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context." National Treasury Employees Union v. Von Raab, 489 U.S. at 665‑66, citing Skinner, 489 U.S. at 619‑20.

This is not a toothless test, and the mere invocation of "special needs" does not justify a suspicionless search. To the contrary, in Skinner and Von Raab, both of which involved random drug tests for government employees, the *21 Court carefully reviewed the government's interest in testing and the employees' interest in privacy before concluding that the challenged drug tests were constitutional as applied to some, but not all, of the targeted employees. Therefore, to resolve the Fourth Amendment issue presented in this case, it is useful to examine in detail the Skinner and Von Raab programs and the governmental interests they were designed to serve.

Skinner concerned Federal Railroad Administration regulations that authorized blood, breath, and urine tests of railroad employees who are involved in major train wrecks or who violate specified safety rules. The FRA acted in response to studies that showed a high incidence of drug and alcohol abuse within the railroad industry, creating a serious safety hazard. According to one study, apparently unchallenged, 23 percent of operating personnel were "problem drinkers"; thirteen percent reported to work at least "a little drunk" and five percent "very drunk" during the study year;and one in eight drank at least once while on duty. 489 U.S. at 607, n. 1. Another unchallenged study, conducted without the benefit of regular, post‑accident testing, "identified 34 fatalities, 66 injuries and over $28 million in property damage (in 1983 dollars) that resulted from the errors of alcohol[‑] and drug‑impaired employees in 45 train accidents and train incidents during the period 1975 through 1983." Id. at 608.

Various labor groups sued to enjoin the regulations, arguing that the Fourth Amendment prevented the government from testing employees without individualized suspicion of drug use. The Court concluded, however, that the government's interest in random testing sufficiently outweighed the employee's privacy expectations to justify relaxing the traditional suspicion requirement. The Court described the government's interest in testing‑‑ preventing train wrecks‑‑as, variously, "compelling," id. at 628 and 633, and "surpassing," *22 id. at 634. It also noted that the targeted employees are engaged in "safety‑sensitive tasks," id. at 620, 629, and 633, and "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." Id. at 628. These employees, like those "who have routine access to dangerous nuclear power facilities," are capable of causing "great human loss before any signs of impairment become noticeable to supervisors or others." Id.

The Court went on to say that these proven and persuasive safety concerns outweighed the privacy intrusions from the proposed blood and breath tests which, the Court noted, reveal no facts in which the employee has a substantial privacy interest, except the presence of alcohol or controlled substances. Id. at 626. The urine tests, however, presented a "more difficult question," and "raise[d] concerns not implicated by blood or breath tests." Id. The Court allowed that it "would not characterize these additional privacy concerns as minimal in most contexts." Id. It noted, however, that the FRA regulations endeavor to reduce the intrusiveness of the collection process. For one thing, the regulations do not require a monitor to observe the employee while the urine sample is produced. For another, they allow the sample to be collected in a "medical environment, by personnel unrelated to the railroad employer." Id. at 627‑28. The collection procedures were. therefore, "not unlike similar procedures encountered often in the context of a regular physical examination." Id. at 627. The Court also noted that railroad employees have a diminished expectation of privacy "by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees." Id. at 627. These employees, the Court noted, "have long been a principal focus of regulatory concern." Id. at 628.

*23 Von Raab involved a drug‑testing program for customs agents who: (1) are directly involved in drug interdiction, (2) carry firearms, or (3) handle classified material. 489 U.S. at 660‑61. Citing Skinner, the Court reiterated that drug‑testing is a search and that "a search must be supported, as a general matter, by a warrant issued upon probable cause." Von Raab, 489 U.S. at 664. It also reiterated that, in exceptional cases, where the government's interest in testing outweighs the individual's privacy expectations, the government may proceed without the presumptively necessary warrant and suspicion. Id. at 665‑66.

Applying this balancing test, the Court first concluded that the government has a "compelling" interest in preventing drug use by customs agents involved in drug interdiction. The Court noted that "[t]he Customs Service is our Nation's first line of defense against one of the greatest problems affecting the health and welfare of our population," id. at 668, and that "[t]he physical safety of [Customs] employees may be threatened, and many may be tempted not only by bribes from traffickers with whom they deal, but also by their own access to vast sources of valuable contraband seized and controlled by the Service," id. at 669. Therefore, "the Government has a compelling interest in ensuring that front‑line interdiction personnel are physically fit, and have unimpeachable integrity and judgment." Id.

The Court also found that the government has a compelling interest in preventing drug users from promotion to positions that require the employee to carry firearms. "Customs employees who may use deadly force plainly 'discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.' " Id. at 670, quoting Skinner, 489 U.S. at 628.

Against these "compelling interests in safety and the integrity of our borders," 489 U.S. at 672, the Von Raab *24 Court balanced the employees' expectations of privacy. Those expectations were "diminished," the Court said, because "[u]nlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity[,] and [m]uch the same is true of employees who are required to carry firearms." Id. at 672. Moreover, the Court said, the agency's drug‑testing procedures were carefully designed to minimize the program's intrusiveness. First, the employee is given five‑days advance notice of the time and place for collecting the urine sample, id. at 664, thus reducing to a minimum any 'unsettling show of authority'... that may be associated with unexpected intrusions on privacy." Id. at 672, n. 2. Second, the employee is not directly observed while urinating and, indeed, is allowed to produce the urine sample in the privacy of a bathroom stall. Id. at 661, 672, n. 2. Third, the employee is not required to disclose the use of licit drugs, which may affect the test results, unless and until the specimen tests positive for illicit drugs and, even then, the licit drug information is given to a licensed physician, not to the Customs Service. Id. at 672, n. 2. Finally, the sample is collected by an "independent contractor," id. at 661, not someone in the Service. "Taken together," the Court said, "these procedures significantly minimize the intrusiveness of the Service's drug‑ screening program." Id. at 672, n. 2.

In light of these procedural safeguards and the "extraordinary safety and national security hazards that would attend the promotion of drug users to positions that require carrying firearms or the interdiction of controlled substances," id. at 674, the Customs Service was justified in testing applicants for such positions without the usual requirement of individualized suspicion of wrongdoing.

The Court was unable to determine whether the Service was also justified in testing applicants for positions that handle "*25 classified material" which, under the agency's scheme include, among others, accountants, animal caretakers, attorneys, baggage clerks, co‑op students, mail clerks, and messengers. Id. at 678. The Court said these employees are subject to urine testing if they have access to "truly sensitive information." Id. at 677. It remanded the case to the lower courts to determine whether the designated positions do in fact allow access to such information.

D. The District's Drug‑Testing Program Is Unreasonable

The District contends that its drug‑testing program serves a "special need" beyond the normal need for law enforcement: namely, to reduce the risk of drug‑related athletic injuries. Assuming that is true, [FN13] the District's special need does not necessarily mean that the program is constitutional. Whether it is constitutional depends on whether the District's interest in testing without suspicion outweighs the students' privacy expectations. Skinner; Von Raab. The District agrees that this is the proper test. Pet. Br. at 32. So does the Solicitor General. Br. for the United States at 12‑16 and n. 2. For reasons that follow, the Court should conclude that, in this case, the students' privacy interests outweigh the District's interest in suspicionless drug testing and, therefore, that the testing program is unconstitutional. [FN14]

FN13. Although the District asserts in its brief that test results will not be disclosed to law enforcement authorities, the written description of the policy does not contain the same assurance. (J.A. 7‑9).

FN14. The various amici supporting the District have offered several off‑ record reports of drug problems nationally and in other school districts. Even if this evidence is properly subject to judicial notice, it is not relevant to the question at hand: whether Vernonia's drug‑testing program which, as explained infra, is much more intrusive than other programs, is a reasonable and hence constitutional response to its drug "problem," Although drugs are a national concern, the scope of the problem varies substantially from school district to school district, as the amici's own evidence proves. Accordingly, this Court need not decide whether a drug‑ testing program of the type at issue here would be constitutional in a different school district with a different drug record. The Court should thus decline the amici's invitation to make a one‑size‑fits‑all rule that does not account for differences in drug programs and drug problems.

*26 1. The District's Program Is A Substantial Invasion Of Privacy

The compelled production and testing of urine is an extreme invasion of privacy, no less so for minors than adults, and no less so for athletes than nonathletes. The District's drug‑testing program heightens the intrusion by requiring students to excrete on demand and under observation by school officials, not independent monitors, and by requiring the students to disclose to the officials their prescription medications.

(a)

Drug‑testing by urinalysis intrudes deeply on settled expectations of privacy. The Court made that clear in Skinner:

There are few activities in our society more personal or private than the passing of urine. Most people describe it in euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom. 489 U.S. at 617, quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987). See also Von Raab, 489 U.S. at 680 (Scalia, J., dissenting)("I think it obvious that [urine testing] is a type of search particularly *27 destructive of privacy and offensive to personal dignity").

Oregon takes the same view. In Sterling v. Cupp, 44 607 P.2d 206, 208 (Or.App. 1980), aff'd as modified, 625 P.2d 123 (Or. 1981), Judge Gillette, now a Justice on the Oregon Supreme Court, wrote: "[t]he final bastion of privacy is to be found in the area of human procreation and excretion, and the nudity which may accompany them. If a person is entitled to any shred of privacy, then it is to privacy as to these matters." [FN15]

FN15. Drug testing by urinalysis is so intrusive that at least sixteen states and five cities have enacted laws to regulate it. See K. Zeese, DRUG TESTING LEGAL MANUAL s 1.05[3] (rel. # 2, Nov. 1994). Three states require probable cause before an employer can compel an employee to take the test. Id. at 1‑42. Four states and two cities require, among other things, that the employer have some reason to suspect the employee is using drugs or is drug‑impaired. Id. at 143 to ‑44.

As intrusive as drug‑testing is for adults, it is just as intrusive, if not more so, for middle school students. Our culture instills early in children a keen sense of privacy in excretory functions. By first grade, they expect, and are expected, to urinate in seclusion, using segregated bathrooms, the same as adults. Adolescents are often extremely self‑conscious about their developing bodies and its functions, especially when they reach puberty.

The Court has said that "[e]ven a limited search of the outer clothing ... constitutes a severe, though brief intrusion upon cherished personal security, and it surely must be an annoying, frightening, and perhaps humiliating experience." Terry v. Ohio, 392 U.S. at 24‑25. Drug testing by urinalysis must be all that and more, for both adults and minors.

*28 (b)

The privacy intrusion does not end when the urine sample is collected. Indeed, the most significant privacy interest affected by urinalysis may be the information contained in the urine. As noted in Skinner, "chemical analysis of urine, like that of blood, can reveal a host of private medical facts about [a person], including whether she is an epileptic, pregnant, or diabetic." 489 U.S. at 617. Over time, technological advances in urinalysis are sure to make the test even more revealing and, hence, even more intrusive.

The District, however, does not limit itself to the information to be gleaned from the urine sample. It also requires students to disclose any prescription medications they may be taking. (J.A. 8). By this simple expedient, the District learns, even without urinalysis, information that is generally held in strict confidence and that is completely unrelated to the one secret the District says it is trying to discover: whether the student is taking illicit drugs. For example, if a student reports that he is taking AZT, the school thus will have learned that he is infected with the AIDS virus. Similarly, if the student discloses that she is taking birth control pills, school officials will then know that she is sexually active and probably heterosexual. This is information which the school has no right to know [FN16] and, moreover, is information that serves no purpose in preventing drug‑related athletic injuries. The drug‑screening program for Customs agents, upheld in Von Raab, likewise requires the disclosure of licit drug use, but only after the urine sample tests positive for illicit drugs and, even then, the information *29 is disclosed only to a licensed physician, not to the Customs Service. Von Raab, 489 U.S. at 672, n. 2. [FN17]

FN16. It is unlawful to require a student to submit to a psychiatric or physiological examination for the purpose of determining, among other things, the student's "sex behavior and attitudes." 20 U.S.C. s 123h(b)(3).

FN17. The drug‑testing program for railroad workers, upheld in Skinner, requires employees to disclose, at the time they produce blood and urine samples, "whether they have taken any medications during the preceding 30 days." 489 U.S. at 626, n. 7. It is not clear from the opinion whether they are required to disclose which medications they have taken. In any event, this information is disclosed to the medical personal retained to conduct the test, who then forward it to the FRA's laboratories. The information is apparently not shared with the worker's employer.

(c)

The District's test procedures are much more intrusive than the procedures upheld in Skinner and Von Raab. In the first place, the District's program requires students to produce urine on demand and under observation. Each week the school draws the names of the students to be tested. Those students are taken from class that same day, escorted to the locker room, handed a specimen bottle, and instructed to fill it while the monitor waits. A student who cannot urinate immediately is allowed to return to class, but must come back later in the day to try again under the same stressful conditions as before. (J.A. 32). [FN18] By comparison, the Custom Service's drug test, at issue in Von Raab, provide for five days advance notice of the time and place for collecting the urine sample. This provision was important, the Court said, in reducing the intrusiveness of the Service's program. 489 U.S. at 672, n. 2.

FN18. In Schaill v. Tippecanoe County School Corp., 679 F.Supp. 833 (N.D. Ind. 1988), aff'd, 864 F.2d 1309 (7th Cir. 1988), which involved a drug‑testing program for high school athletes and cheerleaders, there was evidence that some students suffer such stress while standing at the urinal that they are unable to void their bladder for up to two or three hours. 679 F.Supp. at 843.

Male students in Vernonia suffer the added indignity of *30 being observed while they urinate. The test monitor accompanies the student to the urinal and stands a short distance behind, watching and listening at least some of the time. To be observed while urinating is, of course, an extreme invasion of privacy, which is why the Court found it significant, in both Skinner and Von Raab, that the drug‑testing protocol did not require the employee to be observed while producing the urine sample. Skinner, 489 U.S. at 626; Von Raab, 489 U.S. at 672 n. 2. Indeed, the Von Raab test allowed the employee to produce the sample in the privacy of a bathroom stall. [FN19] In our society, it is degrading to be observed while urinating, even from behind. [FN20]

FN19. In Schaill v. Tippecanoe County School Corp, which upheld a drug‑ testing program for high school athletes, the court placed great importance on the fact that the program allowed only aural, not visual, monitoring of the urine sample being produced. 864 F.2d at 1318.

FN20. In George Orwell's famous novel, 1984, he describes a "negative utopia" in which the citizenry have lost all privacy. The government‑‑"Big Brother"‑‑watches everyone through "telescreens" mounted on the walls. The screens are everywhere, including the water closet: "There was no place where you could be more certain that the telescreens were watched continuously." Eric Blair a.k.a. George Orwell, 1984 89 (New American Library 1981).

It is even more degrading when the observer is someone in a position of authority to the person forced to urinate, which is the case in Vernonia. The monitors there are teachers, administrators, and coaches. By comparison, the Custom Service authorizes an "independent contractor" to collect the urine sample. Von Raab, 489 U.S. at 661. The FRA requires the sample to be collected in an "independent medical facility," Skinner, 489 U.S. at 609, by personnel "unrelated to the railroad employer." Id. at 626‑27. Even the Institute for a Drug‑Free Workplace, one of the Nation's foremost proponents of drug testing and an amicus curiae in support of the District, agrees that the collection of urine *31 samples should be "conducted by independent trained professionals at an independent site" in order to limit the intrusion on privacy. Br. of Inst. for a Drug‑Free Workplace at 12.

(d)

The District's drug‑testing program is all the more intrusive because it regulates conduct that the District has no right to regulate and, moreover, has expressed no interest in regulating‑‑namely, off‑campus, after‑hours drug use that does not result in drug‑impairment during class or a District‑sponsored athletic event. Drug use is regrettable, of course, no matter where or when it occurs, but this conduct does not threaten school discipline or athletic safety, the District's stated concerns, and thus does not justify its program of round‑the‑clock surveillance. The District has little or no interest in student conduct outside of school, where parents and other authorities are in charge, if it does not affect student conduct inside. Compare Von Raab, 489 U.S. at 674 (because of its "almost unique mission," the Customs Service has a "compelling interest in ensuring that [agents covered by its drug test] do not use drugs even off duty").

(e)

The District argues that its drug‑testing program is not a substantial invasion of privacy because: (1) students have a substantially diminished expectation of privacy in their urine; (2) athletes in particular have far fewer privacy interests; (3) the program is nonpunitive and confidential; (4) the collection procedures are minimally intrusive; and (5) participation in school sports is voluntary. None of these arguments, addressed in turn below, withstands scrutiny.

(1) The District argues that minors surrender their privacy expectations when they pass through the schoolhouse gate, because the "process of educating young people is inherently invasive." Pet.Br. at 39. "A teacher," the District *32 says, "simply cannot do his or her job without constantly and pervasively intruding into privacy interests [of students]." Id. at 40. Therefore, the District argues, students must have a substantially diminished expectation of privacy. This Court rejected a similar contention in T.L.O. In that case, the State of New Jersey argued that, "because of the pervasive supervision to which children in the schools are necessarily subject, a child has virtually no legitimate expectation of privacy in articles of personal property 'unnecessarily' carried into school." 469 U.S. at 338. This argument, the Court said, was based in part on the "seriously flawed" premise that student privacy is fundamentally incompatible with maintaining a sound educational environment. Id. The Court also said: "Although we may take notice of the difficulty of maintaining discipline in the public schools today, the situation is not so dire that students in the schools may claim no legitimate expectations of privacy." Id. The Court went on to hold that, because students have legitimate expectations of privacy, school officials cannot search students without some suspicion of wrongdoing. Id. at 341‑42.

To be sure, students in school have less expectation of privacy than adults in other settings. That, of course, was part of the reason that T.L.O. authorized school officials to search students with less suspicion than probable cause. [FN21] But even if a student's privacy expectations are not on par with an adult's, they are still substantial. "A search of a child's person ... no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective *33 expectations of privacy." Id. at 338 (emphasis added). Thus, the District greatly overstates its case when it suggests that school‑age minors have substantially diminished expectations of privacy.

FN21. Oregon has not followed T.L.O. in construing the state constitution. In State ex rel. Juvenile Dep't v. DuBois, 821 P.2d 1124, 1126‑27 (Or. App. 1991), the court held that Article I, section 9, unlike the Fourth Amendment, does not permit school officials to search an individual student without a warrant or probable cause, unless "exigent circumstances" or some other historical exception applies.

It also overgeneralizes. Students may have a diminished expectation of privacy in some things, but not others. For example, the District has put its students on notice that their lockers belong to the school and thus are subject to routine inspections. (Pl. Ex. 2 at 21). [FN22] But nothing in the students' school experience gives them reason to expect that their urine is open to inspection as well. To the contrary, they have a real and legitimate expectation that this most private of human activities is off limits to others even while they are in school. They are not routinely observed while urinating there, and school officials do not ordinarily have access to their urine for analysis.

FN22. The handbook also provides that a "[s]earch of the student's person or possessions will be limited to the situation where there is reason to believe that a student is hiding evidence of an illegal act or a school violation." (Pl. Ex. 2 at 14). This provision, if nothing else, gives students an expectation of freedom from suspicionless searches while on school grounds.

Even if students' privacy expectations are diminished inside the schoolhouse, they remain intact outside. The District does not contend otherwise. Nevertheless, its drug‑testing program intrudes on students' activities off‑ campus and after school hours. As noted above, the test does not discriminate between drug‑impairment in class or during school sports and drug‑impairment at other times or places, including the student's home. Drug use anytime anywhere will produce a positive test result and trigger the prescribed penalties. Thus, the drug test reaches beyond the time (the schoolday) and the place (the schoolhouse and yard) where *34 the District now argues that students have a diminished expectation of privacy. [FN23]

FN23. The time it takes for drugs to become undetectable in urine varies with the individual, but can last as long as 22 days. Von Raab, 489 U.S. at 676. Since the District begins testing at the start of each school quarter, it is possible for a student to test positive based on drug use during vacation.

(2) The District argues that athletes in particular have a reduced expectation of privacy in either their urine or the act of urinating, because, the District says, school sports are so highly regulated. In fact, the District's athletic regulations are trifling. To play sports students must have a physical examination, keep up their grades, and obtain health insurance or sign an insurance waiver. (R. 61‑62; Pl. Ex. 5 at 63). [FN24] That's it. These minimally intrusive rules do not compare to the pervasive federal and state regulations governing railroad employees, which led the Skinner Court to conclude that they lose some expectation of privacy in their urine when they report to work. 489 U.S. at 627‑28. As the court of appeals correctly noted below, the District's rules "are not the sort of extensive government regulation that has been found to diminish the expectation of privacy of workers in high risk industries or high security areas of the government." 23 F.3d at 1525 (Pet. App. 53a‑54a)(citations omitted). "High school athletes," the court continued, "do not go through extensive background checks in order to join their teams." Id. The District is unable to point to anything in its athletic rules that would prepare students for the District's demand to excrete under supervision so the *35 fluid can be examined for the secrets within.

FN24. Athletes are also required to observe training rules set by the coach, which the District suggests are rigorous and intrusive. But there is no evidence that the coaches have in fact set any training rules, let alone rigorous or intrusive ones. Even while alluding to these unspecified rules, the District does not suggest that any of them concern athletes' excretory functions.

Continuing its athletes‑have‑fewer‑rights argument, the District states that the mandatory, pre‑season physical examination "includes urinalysis." Pet. Br. at 41. The word "includes" should not mislead the Court, as it did the Solicitor General, see Br. of United States at 24, to assume that urinalysis is a required part of the examination. It is not. James testified that he gave a urine sample during his exam (J.A. 17), but no one testified that he had to or that anyone else did. The district superintendent testified that athletes must have a physical exam, but he did not know what the exam entailed. (R. 62‑63). In any event, James produced his urine sample unobserved in the privacy of a bathroom stall and gave it to his physician, with whom he has a confidential relationship. (J.A. 17‑18). Whatever tests were conducted on the specimen‑‑ and nothing in this record identifies them‑‑the results could not be disclosed, to school officials or anyone else, without the consent of James or his parents. Far from proving that James has no expectation of privacy in his urine, the circumstances of his pre‑season examination prove that he does. The District notes that drug testing for steroids and other performance‑enhancing drugs has become more common in collegiate, Olympic, and professional athletics, where the Fourth Amendment generally does not apply. But cf. University of Colorado v. Derdyn, 863 P.2d 929 (Colo. 1993), cert. denied, ‑‑‑ U.S. ‑‑‑‑, (1994) (upholding a Fourth Amendment challenge to a drug‑ testing program for university athletes). This proves nothing except that, if James ever succeeds to that high level of athletic competition, he may expect, then, to give up some privacy; it does not prove that he has given it up now.

(3) The District argues that its drug‑testing program is "minimally intrusive" because it is "non‑punitive" and "confidential." In fact it is neither. Students who flunk the test are forced to quit sports or to submit to drug counseling and *36 weekly urinalysis. Those who flunk a second or third time are not even given that Hobson's choice‑‑instead, they are automatically kicked out of the sports program for two or more seasons. Most students would consider that punishment. Indeed, suspension is the prescribed punishment for students who demonstrate poor sportsmanship, misuse the school's athletic equipment, or otherwise breach the its rules for athletes. (Pl. Ex. 5 at 63). What is punishment in the one context is also punishment in the other. [FN25]

FN25. The fact that the District calls each positive test an "offense" and that the length of the suspension increases with the number of offensives, (J.A. 9), further undermines the District's contention that the drug‑ testing program is nonpunitive.

As the District itself concedes, "community life [in Vernonia] centers around the schools, with interscholastic athletics playing a dominant role." Pet. Br. at 3. Therefore, to be denied the right to participate in school sports is, in effect, to be excluded in part from the community. That cannot be viewed as anything but punishment. What is more, it is public punishment. It is true that the District does not publish the test results. But in a small town such as Vernonia, where community life revolves around the schools and school sports, everyone will know when a student tests positive, because it will be obvious that the student, once on the team, no longer is. The "secret" will inevitably get out, starting with the student's teammates and spreading from there.

The fact that the District does not report test results to the police for law enforcement purposes‑‑if it is a fact, see note 13, supra‑‑does not support its contention that the privacy expectations of athletes should be discounted in the weighing of individual and governmental interests. To do so would overinflate the government's side of the balance, *37 as the Colorado Supreme Court explained while striking down a random drug‑testing program for university athletes:

It is true that an intrusion by the government outside the context of criminal law enforcement is generally less of an intrusion than one for the purposes of law enforcement. However, as a matter of law, we already take this fact into account when we analyze this case according to the standards of Skinner and Von Raab, rather than according to the standards of the typical cases in the area of criminal procedure.... In other words, were we to attribute less weight to the students' privacy interests because this is not a criminal case, and also start with the premise that Skinner and Von Raab control, we would be, in effect, giving double weight in our analysis to the fact that we are not dealing with an issue in criminal procedure

University of Colorado v. Derdyn, 863 P.2d at 942.

(4) The District contends that its drug‑testing program is minimally intrusive because the conditions under which athletes are tested are essentially the same as using a public restroom or locker room. Pet. Br. at 42. But, of course, there are substantial differences. A person urinating in a public restroom is not forced to do so, is not subject to visual and aural monitoring and, most importantly, does not surrender the urine for analysis by government officials. In public facilities, individuals blend into the crowd; they are not singled out for observation. Indeed, it is considered taboo even to appear to be observing others in a public restroom. People avert their eyes from one another; they attend to their own needs and then leave. For most schoolchildren, there is a world of difference between using a public facility *38 and being ordered to fill a specimen bottle while a teacher watches and listens. [FN26]

FN26. Adults, too, use public restrooms, but the District does not contend that adults have thereby lost all expectation of privacy in their urine or the process of excreting it.

(5) Finally, the District contends that its drug‑testing program is minimally intrusive because it applies only to students who "voluntarily" engage in school sports and thus can be avoided by students who object to it. Pet. Br. at 42‑43. To be sure, the program is less intrusive than it would be if it applied to all students and thus was unavoidable. But even as applied to athletes only, the intrusion is still extreme, considering what students must give up to escape testing: participation in school sports. That is a very high price to pay for asserting a constitutional right. As the District superintendent testified, playing school sports is an "important part of the school experience." (Pl. Ex. 5 at 7; see also J.A. 20). The court below made the same observation: "Participation in athletics is obviously highly desirable and encouraged, as this record shows. The fact is that parents wish to have their children obtain the physical and mental benefits of organized sports. That, too, is part of the educational process; part of what tax dollars pay for." 23 F.3d at 1525 (Pet. App. 55a).

The District cites United States v. Martinez‑Fuerte, 428 U.S. 543, for the proposition that a search is unintrusive as a matter of law if it can be evaded, somehow, anyhow. But that is not, in fact, the holding of that case. Martinez‑Fuerte allowed immigration officials to briefly detain motorists at fixed checkpoints near the border to inquire whether they were in this country legally. The Court described this as minimally intrusive compared to a full‑ scale search of the person. Id. at 558. It also noted that motorists who object to even that much intrusion can learn in advance where the *39 checkpoints are and take other roads to avoid them. Id. at 559. This was not, of course, the decisive factor in the Court's ruling. Nevertheless, the District makes much of the fact that its students, like the motorists in Martinez‑Fuerte, can avoid the drug test by not going out for school sports. What the District overlooks, of course, is that students in Vernonia, unlike the motorists in Martinez‑Fuerte, cannot avoid the test and still get where they were going. There are no "other roads" for students who want to participate in organized athletics. The District's sports program is, so to speak, the only game in town, a point the District concedes at page 3 of its brief. "Because of its size and location, the town has few recreational opportunities or organized entertainment programs for elementary and high school students."

In sum, the fact that the District's drug test can be avoided‑‑because it applies only to students who play sports and playing sports is "voluntary"‑‑ does not significantly diminish the privacy intrusion. [FN27]

FN27. Just as students do not have to play school sports, people who work for the Customs Service do not have to work there; they can seek employment elsewhere and, therefore, their employment is "voluntary," too, under the District's analysis. Even so, Customs agents do not surrender their privacy interests when they hire on. If they did, Von Raab would have been a much easier case to decide.

2. The District's Interest In Drug Testing Is Not Compelling

The privacy interests affected by the District's drug‑testing program are significant, as explained in the preceding section. By comparison, the District's interest in maintaining the program is slight.

*40 (a)

The District says that its interest in drug testing, to be balanced against the students' interest in privacy, is preserving the safety of its athletes. But that, of course, is incorrect. It is not athletic safety that should be weighed in the balance, for the District is free to pursue that goal by traditional methods, including education and counseling, and perhaps even drug testing on suspicion of drug use. Rather, the interest to be entered on the District's side of the balance is the "cost" of pursuing that goal without suspicionless drug testing.

The surest way to measure this cost is to compare the number of drug‑related athletic injuries before the drug‑testing program and the number of such injuries after, since the test was in effect for several years before the trial of this case. A substantial drop‑off after the test might indicate that it is an efficient means to its stated end and thus would be costly to discontinue. The record, however, does not indicate a drop‑off. Although there is no evidence of a drug‑related athletic injury after testing began, neither is there evidence of any such injuries before it began. The District suspects that one wrestler was injured while on drugs, but that suspicion was never confirmed, as noted earlier. Measured against its goal of reducing injuries from drugs, the District's drug‑testing program has little apparent value, and so the District's interest in continuing the program is slight.

(b)

Even if the drug‑testing program were an efficient means to its stated end‑‑ safer sports‑‑the end itself "suffer[s] by comparison" to the ends of the drug‑ testing programs upheld in Skinner and Von Raab, as the court below correctly noted. 23 F.3d at 1526 (Pet. App. 56a). The goal of the Skinner program, which this Court found barely sufficient to justify urine testing, as opposed to less intrusive *41 blood and breath testing, 489 U.S. at 625‑27, was to prevent train wrecks and their attendant loss of life and property damage. In Von Raab, the goals were preserving the integrity of the Nation's borders and preventing the misuse of deadly weapons. Accordingly, the Court could say in Skinner and Von Raab that the employees covered by the drug tests there hold "safety‑" or "security‑sensitive" positions and "discharge duties fraught with such risks of injuries to others that even a momentary lapse of attention can have disastrous consequences." Skinner, 489 U.S. at 628; quoted with approval in Von Raab, 489 U.S. at 670. These precedents make clear that our precious Fourth Amendment freedoms do not give way except to the most compelling safety and security concerns.

That point is bolstered by Von Raab's conclusion that drug testing may be unconstitutional for Custom Service employees who are not engaged in front‑line drug interdiction and do not carry firearms. No doubt some of the employees in this group‑‑which includes messengers‑‑operate motor vehicles, either on‑ or off‑duty, which is unquestionably a more dangerous activity than middle‑ and high‑school athletics. Even so, these employees could not be compelled to submit to a urine test under the Service's screening program without some proof that they were likely to gain access to "sensitive information" and thus pose a threat to national security. Id. at 677‑78.

The District's concern for the safety of student athletes, albeit well‑ intentioned, simply does not rise to the level of the safety concerns that were found sufficiently compelling in Skinner and Von Raab to justify so serious an invasion of privacy as the compelled production and testing of urine. There certainly is no risk of harm on the order of a train wreck or gun battle if a student athlete competes while drug‑impaired. Indeed, the District's experience shows that there is little risk of any injury, let alone a serious one; as *42 noted earlier, the District cannot prove a single drug‑related athletic injury in the history of its sports program. Even if there were some drug‑related injuries that escaped detection, they could not have been very serious. The District's athletic director testified that the typical injury in the girl's sports program (which includes volleyball, cross country, basketball, track, and golf) was a "muscle‑type" injury, such as a "pulled muscle" from "improper warmup" or a "torn ligament or cartilage." (J.A. 43‑ 44). The boy's sports program includes the same sports (excepting volleyball) plus football and wrestling. The District offered no evidence that the typical injury for boys is more serious than the typical injury for girls, so the Court should assume that it is not more serious. No injury should ever be taken lightly, of course, but the government's interest in preventing pulled muscles and torn ligaments is not equal to its interest in preventing loss of life or breaches of national security.

The District argues, correctly, that just because there have not been any serious, drug‑related injuries does not mean that there could not be any. The issue, however, is not whether such an injury could happen, but the likelihood that it will without drug testing. Nearly everything is possible, but not everything is probable, and some things are very improbable, if experience is any guide. The District's sports program has no history of drug‑related injuries, even before its drug test. On this record, therefore, the probability of future injuries if testing stops must be slight, if calculable at all. Fourth Amendment rights should not be lost to mere speculation about potential harm. [FN28]

FN28. The Skinner Court demanded more than speculation. As noted above, the drug‑testing program at issue there was supported by unchallenged studies showing both a high incidence of drug use among railroad workers‑‑ one of eight drank on the job and eighteen percent reported for work either "very drunk" or at least "a little drunk," 489 U.S. at 607 n. 1 ‑‑as well as a clear connection to railroad safety‑‑drug‑impaired workers caused at least 34 fatalities and $28 million in property damage in just eight years. Id. at 608.

*43 Recognizing the holes in the record, the District notes that illicit drugs can be harmful to minors aside from their potential for causing sports injuries. Drugs, the District says, can interfere with memory, sensation, and perception, and can "lead people to take risks, to be careless and impulsive and to disregard instructions," Pet. Br. at 30 and 31, n. 2, depending, of course, on the type of drug and when and how it is used. But this, of course, is true for both young and old drug users and for both athletes and nonathletes. If that potential, generalized harm were sufficient to justify random drug testing, then everyone would be subject to urine testing regardless of age or occupation, and Skinner and Von Raab would just be so much spilt ink. Von Raab makes clear, however, that not everyone is subject to testing: customs agents, for example, are immune if they are not directly involved in drug interdiction, do not carry firearms, and do not have access to sensitive information. That holding cannot be reconciled with the District's argument that the physiological and psychological effects of illicit drugs are sufficient alone to permit drug testing for any potential user.

(c)

The District's interest in its drug testing program is diminished substantially by its failure to prove a high incidence of drug use within its sports program. Some groups targeted for drug testing are engaged in such ultra‑hazardous activities that even a single, drug‑impaired individual can cause catastrophe‑‑airline pilots, railroad engineers, and nuclear reactor operators come quickly to mind. Accordingly, the government may be justified in testing these groups *44 even without evidence that many, if any, group members actually use drugs. The Court made this precise point in Von Raab in response to the contention that the Custom Service drug test was unjustified without proof of frequent drug use by customs agents: "The mere circumstance that all but a few of the employees tested are entirely innocent of wrongdoing does not impugn the program's validity," given the "substantial" harm the program seeks to guard against. 489 U.S. at 674‑75. But for groups engaged in less hazardous activities, where the potential harm from a drug‑impaired individual is relatively minor‑‑pulled muscles and torn ligaments, not plane crashes, train wrecks, or reactor meltdowns‑‑the lack of evidence of frequent drug use within the group substantially reduces the government's interest in subjecting all group members to the indignity of drug testing.

(d)

The District's interest in dragnet drug testing, slight to begin with, is diminished further by the limited utility of its testing program. The test does not cure drug use, nor does it prevent athletes from competing while on drugs. The only way to prevent that is to test each student in advance of each athletic event, as the District's own expert agreed. (Def. Ex. 106 at 81). See also Brooks v. East Chambers Consol. Indep. School Dist., 730 F.Supp. 759, 765 (S.D.Tex. 1989), aff'd without published op., 930 F.2d 915 (5th Cir. 1991). Drug testing is simply a means of detecting those who use drugs. As such, it offers some deterrence to drug use, including use in athletic competition. But there are already several substantial deterrents. First and foremost is the usual fear of getting caught, which is possible, of course, without random drug testing. Another existing deterrent is that students who volunteer to play sports want to play well and thus will avoid using drugs in competition for fear of impairing their performance. They might take drugs outside of competition but, in that event, there is no risk of *45 a drug‑ related athletic injury which, again, is the District's announced concern. Finally, there is concern for personal safety. As the District itself observes, playing sports on drugs can increase the risk of injury. That fact is surely not lost on most athletes and, therefore, most will avoid drugs in competition for fear of getting hurt. "It is, of course, the fear of the accident, not the fear of a postaccident revelation, that deters." Skinner, 489 U.S. at 651 (Marshall, J., dissenting). All things considered, the District's drug‑testing program provides little added deterrence to the use of illicit drugs in school sports.

What little deterrence it does add is compromised substantially by the limitations of the District's drug test. It covers only a few drugs‑‑ marijuana, amphetamines, cocaine, and occasionally LSD‑‑conspicuously omitting alcohol, the one drug that everyone agrees is most readily available to and most often abused by both minors and adults, as well as steroids, the drug that is most commonly used by athletes seeking to enhance their performance. Thus, if there are athletes who want to compete under the influence of drugs‑‑and the District has not proved there are any‑‑the drug test will not deter them; they will simply switch to alcohol or drugs not covered by the test. [FN29]

FN29. Yet another limitation of the test is that it merely indicates whether a student has taken one of the targeted drugs at some time in the recent past. It does not indicate how much the student took or when, or whether it was enough to cause any impairment, let alone substantial impairment, at any given point in time. The test is not like a blood alcohol test, which determines not only whether a person has alcohol in his blood, but also how much alcohol is there‑‑whether, in particular, there is enough to put the person over the "legal limit," at which point substantial impairment can be presumed or proven.

(e)

Even if the District's drug‑testing program were an efficient means to a compelling end, the availability of a less *46 intrusive means to the same end‑‑namely, drug testing on suspicion of drug use‑‑substantially diminishes the District's interest in the program. The District argues that suspicion‑ based testing, which it has not tried (J.A. 35), is unworkable because, it says, school officials cannot formulate, through observation alone, a reasonable suspicion that a student is drug‑impaired. But the whole premise of its drug‑testing program is that they can do that. As explained earlier, the District adopted the program after it concluded that it had a drug problem. The basis for that conclusion was an apparent rise in the number of unruly students. These students, or most of them, the District says, were unruly because of drugs. Obviously, then, the District can tell without testing who is on drugs, or at least it thinks it can: It is the unruly students. Either the District is wrong‑‑not all unruly students are on drugs‑‑in which case the foundation for its drug‑testing program collapses: there is no drug problem. Or it's right‑‑all unruly students areon drugs‑‑in which case the foundation still collapses because, in that case, the District would not need to test anyone to determine who is on drugs, it would only need to observe who is misbehaving. At most, the District would have an interest in testing the students who misbehave and thus give reason to be suspected of using drugs. But it would have no rational interest in testing the students, like James, who are well‑behaved.

The District can't have it both ways. It can't argue, on the one hand, that "[t]eachers and coaches cannot reliably detect drug intoxication by observation," Pet. Br. at 37, and then argue on the other hand that, based on observation alone, school officials know, or at least reasonably suspect, that a large part of the student body uses illicit drugs and, moreover, that particular students use them‑‑namely, the Big Elks, the Drug Cartellians, and "leading student athletes." Pet. Br. at 6. The court of appeals was unimpressed *47 with the District's we‑can't‑tell‑without‑testing argument, noting that "the testimony showed" that "teachers and administrators could detect behavior and physical problems that rather clearly appeared to be drug related." 23 F.3d at 1522 (Pet. App. 35a)(emphasis added).

In Delaware v. Prouse, 440 U.S. 625, the Court held that the police could not stop motorists without suspicion of wrongdoing to check for unlicensed drivers and unsafe vehicles. The Court noted that these "roving spot checks" serve an important end‑‑enforcing the motor vehicle code‑‑but concluded nevertheless that they are not "a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests such stops entail," "[g]iven the alternative mechanisms available." Id. at 659. The "foremost" of the alternatives, the Court said, "is acting upon observed violations." Id. Likewise, the "foremost" method for enforcing student conduct codes is acting on observed violations. The availability of that alternative enforcement mechanism diminishes the District's interest in random, suspicionless drug testing. [FN30]

FN30. In Michigan Dept of State Police v. Sitz, 496 U.S. 444 (1990), which upheld sobriety roadblocks, the Court explained that Delaware v. Prouse was not intended to approve "searching examination of the 'effectiveness' " of particular searches and seizures. Sitz, 496 U.S. at 454. Nevertheless, the Court went on to examine the results of the roadblock and concluded that it was at least as effective as the border checkpoint approved in United States v. Martinez‑Fuerte, 428 U.S. 543. Sitz, 496 U.S. at 455. Furthermore, in its summation, the Sitz Court said that "the extent to which [sobriety roadblocks] can reasonably be said to advance [the State's interest in preventing drunk driving]" was part of the basis for its decision to approve such roadblocks. Id. Read together, Prouse and Sitz hold that the effectiveness of a search in achieving its stated goal is not dispositive, but is at least a factor to consider, in determining whether the search is reasonable under the Fourth Amendment. The District agrees. See Pet. Br. at 15‑16 (citing "effectiveness" as one factor to balance in evaluating a search).

*48 (f)

The District's brief refers occasionally to a second potential justification for its drug‑testing program: maintaining order in the classroom. But that goal, on this record, is as defective constitutionally as the stated goal of athletic safety. The government has no less interest in maintaining order and productivity in its workplace than in its schools, especially for important agencies like the Customs Service. And yet that interest alone proved insufficient to subject all Customs employees to drug testing. Von Raab, 489 U.S. at 677‑78. [FN31]

FN31. The District claims that athletes are "role models" and "leaders" for the rest of the student body. Pet. Br. at 30. But this is another overstatement. Two‑thirds of its high school students and three‑fourths of its junior high students are athletes. Id. at 3. Not everyone can be a role model. And there can't be more students leading than being led.

In any event, if the District's hidden agenda is to reduce disruptions in the classroom, it is difficult to see the logic of its drug‑testing program. Teachers don't need drug tests to find out which students are being disruptive. If disruptive behavior is not obvious, then it's not disruptive behavior. Therefore, to deter disruptions, school officials can and should punish the perpetrators. It makes little sense, however, to respond to students who disrupt class with a drug test for only those students who go out for sports. Not all disruptive students play sports, so the test won't deter them from further misbehavior. And not all athletes who misbehave in class take drugs, so the test won't deter them either. Finally, not all athletes who take drugs misbehave in class, so subjecting them to the test won't reduce classroom disruptions. In short, the District's drug‑testing program is not rationally related to its after‑the‑fact statement of purpose. As the court of appeals observed, "If the goal was to reduce drug use in the student body in general [as opposed *49 to avoiding athletic injuries], testing athletes seems to be a considerably more roundabout way of reaching that goal." 23 F.3d at 1522 (Pet. App. 35a).

3. The Students' Interest In Privacy Outweighs The District's Interest In Testing

The District's drug‑testing program is a extreme invasion of privacy. It compels students to engage in one of the most private human activities‑‑the excretion of urine‑‑on demand and under the watchful eyes of an adult authority figure, and then to surrender the urine to the government for chemical analysis. It also forces students to disclose their prescription medications, thus enabling school officials to discover, even without testing, the students' most private health secrets.

Balanced against these substantial privacy intrusions is the District's interest in reducing the risk of drug‑related athletic injuries. On this record, that risk is slight, given that the District experienced no drug‑ related injuries in its sports program before the drug test began. Furthermore, the typical athletic injury‑‑often a pulled muscle, sometimes a torn ligament‑‑is a relatively minor harm, compared to the "disastrous consequences" that the drug test in Skinner was designed to prevent, 489 U.S. at 1419, or the "extraordinary safety and national security hazards" that the Von Raab test was intended to avert. 489 U.S. at 674. This combination of slight risk and minor harm produces a less‑than‑compelling argument for the District's drug‑testing program, which is weakened further by the limitations of the test and the availability of less intrusive alternatives to the same goal. Accordingly, the Court should hold that the District's program violates the Fourth Amendment. To hold otherwise would mean that the Amendment has become frail protection indeed against government invasions of privacy.

*50 CONCLUSION

The judgment below should be affirmed.

JOINT APPENDIX

*ia TABLE OF CONTENTS

Relevant Docket Entries in Wayne and Judy Acton, guardians ad litem for James Acton vs. Vernonia School District 47J, United States District Court for the District of Oregon, Case No. 91‑1154‑MA and all appellate proceedings therein ... 1

Complaint filed by Wayne and Judy Acton, guardians ad Litem for James Acton (November 4, 1991) ... 3

Defendant's Answer (November 22, 1991) ... 12

Order of the United States District Court for the District of Oregon, denying Plaintiffs' claims for injunctive and declaratory relief (May 7, 1992) ... 14

Judgment of the United States District Court for the District of Oregon, dismissing action (May 7, 1992) ... 15

Partial transcript of Direct‑, Cross‑ and Redirect‑Examination of James Acton ... 16

Partial transcript of Direct‑ and Cross‑Examination of Ralph Aultman, Principal of Washington Grade School and Former Assistant Superintendent of Vernonia School District and Former Principal of Vernonia High School ... 19

Partial transcript of Cross‑Examination of Ellis Mason, Superintendent of Vernonia School District ... 38

Partial transcript of Direct‑ and Cross‑Examination of Marcia King, Vernonia School District Teacher and Athletic Director ... 39

Partial transcript of Direct‑ and Cross‑Examination of Kathleen Sevig, Vernonia High School Teacher ... 45

Partial transcript of Direct‑ and Cross‑Examination of Ronald Svenson, Vernonia High School Teacher, Wrestling Coach and Former Vernonia High School Football Coach ... 53

Partial Transcript of Defendant's Trial Exhibit 106‑‑Perpetuation Deposition of Robert L. DuPont, M.D., Expert Witness for Defendant ... 67

*iia Excerpts of Plaintiffs' Trial Exhibit 4‑‑Defendant's Response to Plaintiffs' Interrogatories to Defendant ... 79

Partial Transcript of Plaintiffs' Trial Exhibit 5‑‑Deposition of Ellis Mason, Superintendent of Vernonia School District ... 81

The following may be found in the Petition for Writ of Certiorari where indicated and are omitted from the Joint Appendix pursuant to Supreme Court Rule 26.1:

Opinion of the United States Court of Appeals for the Ninth Circuit issued May 5, 1994 ... Pet. App. A at 1a

Opinion of the United States District for the District of Oregon issued May 7, 1992 ... Pet. App. B at 76a

Order of the United States District Court of Appeals for the Ninth Circuit denying Defendant's Petition for Rehearing and Rejecting Suggestion for Rehearing En Banc filed July 8, 1994 ... Pet. App. C at 143a

*1a CHRONOLOGICAL LISTING OF RELEVANT DOCKET ENTRIES

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

  Date                                 Description

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

     A. United States District Court for the District of Oregon (Case No.

                                  91‑1154‑MA)

11/04/91  Complaint for Declaratory and Injunctive Relief and Plaintiffs'

            Motion for Appointment of Guardians Ad Litem filed.

11/18/91  United States District Court for the District of Oregon grants

            Plaintiffs' Motion for Appointment of Guardians Ad Litem.

11/22/91  Defendant's Answer filed.

01/03/92  Plaintiffs file Motion for Judgment on the Pleadings.

03/02/92  United States District Court for the District of Oregon denies

            Plaintiffs' Motion for Judgment on the Pleadings.

04/28/92  Pretrial conference held and United States District Court for the

            District of Oregon issues Order receiving Plaintiffs' Trial

            Exhibits 1 through 5 and Defendant's Trial Exhibits 101, 103, 105

            through 107 and 109, and rejecting Defendant's Trial Exhibits 102

            and 108.

04/29/92  Trial commences in the United States District Court for the District

of Oregon before the Honorable Judge Malcom F. Marsh.

05/07/92  United States District Court for the District of Oregon issues

            Opinion, enters Order denying Plaintiffs' claims for declaratory

            and injunctive relief, and enters Judgment dismissing action.

06/02/92  Plaintiffs file Notice of Appeal to the United States Court of

            Appeals for the Ninth Circuit.

  B. United States Court of Appeals for the Ninth Circuit (Case No. 92‑35520)

09/22/92  Plaintiffs file opening Brief.

10/19/92  Defendant files Brief in Opposition.

11/04/92  Plaintiffs file Reply to Brief in Opposition.

11/03/93  Argued and Submitted to the United States Court of Appeals for the

            Ninth Circuit, before the Honorable Judges Stehen R. Reinhardt,

            Melvin Brunetti and Ferdinand F. Fernandez.

05/05/94  United States Court of Appeals for the Ninth Circuit issues Opinion

            and enters Judgment reversing and remanding Opinion and Order of

            United States District Court for the District of Oregon.

05/19/94  Defendant files Petition for Rehearing with Suggestion for Rehearing

            En Banc.

07/08/94  United States Court of Appeals for the Ninth Circuit files Order

            denying Defendant's Petition for Rehearing and Rejecting Suggestion

for Rehearing En Banc.

          C. The Supreme Court of the United States (Case No. 94‑590)

09/30/94  Defendant files Petition for Writ of Certiorari.

10/31/94  Plaintiffs file Brief in Opposition to Writ of Certiorari.

11/18/94  Defendant files Reply to Brief in Opposition to Writ of Certiorari.

11/28/94  The Supreme Court of the United States grants Certiorari.

*3a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

Civil No. 91‑1154MA

WAYNE and JUDY ACTON, guardians ad litem for JAMES ACTON, Plaintiffs,

vs.

VERNONIA SCHOOL DISTRICT 47J, Defendant.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

(Deprivation of Civil Rights)

Plaintiffs allege:

PARTIES

1.

Defendant Vernonia School District 47J (the district) is a public school district, located in this judicial district, organized under Oregon law and acting under color of that state's law at all times mentioned below.

2.

James Acton (James) is a minor and a citizen of Oregon.

3.

Plaintiffs are citizens of Oregon and James's guardians ad litem.

*4a JURISDICTION

4.

This case arises under 42 U.S.C. 1983 and 1988. This court has jurisdiction under 28 U.S.C. 1331 and 1343.

ALLEGATIONS COMMON TO ALL CLAIMS

5.

James is enrolled in a school operated by the district.

6.

The district has adopted a "Student Athlete Drug Policy," which prohibits a student from participating in any district‑sponsored athletic program unless the student, through the student's "parent and/or guardian," consents to be tested for illegal drug use at the outset of the program, and also consents to random, suspicionless drug testing during the course of the program. (A copy of the policy is appended to this complaint as Exhibit A.)

7.

James wants to participate in district‑sponsored athletic programs.

8.

James does not take drugs and the district has no reason to suspect that he does.

9.

James declines to consent to drug testing on the ground it violates his constitutional rights. Relying on the policy described above, the district refuses to let James participate in district‑sponsored athletic programs.

*5a FIRST CLAIM

10.

The district's refusal to let James participate in district‑sponsored athletic programs violates the Fourth and Fourteenth Amendments to the United States Constitution.

SECOND CLAIM

11.

The district's refusal to let James participate in district‑sponsored athletic programs violates Article I, Section 9, of the Oregon Constitution.

THIRD CLAIM

12.

The district's refusal to let James participate in district‑sponsored athletic programs is unlawful because the district lacks statutory authority to adopt or enforce its drug testing policy.

FOURTH CLAIM

13.

Plaintiffs are entitled to recover reasonable attorney fees under 42 U.S.C. 1988 if they prevail on their first claim.

DEMAND FOR JUDGMENT

14.

Plaintiffs demand that the court:

(a) Declare that the district's drug‑testing policy is unlawful;

(b) Enjoin the district from enforcing the policy against James and from interfering with his participation in district‑sponsored athletic programs;

*6a (c) Award costs to plaintiffs;

(d) Award attorney fees to plaintiffs; and

(e) Award any additional relief the court deems proper.

Respectfully submitted,

/s/ Thomas M. Christ

THOMAS M. CHRIST

OSB No. 83406

ACLU Foundation of Oregon, Inc.

Attorney for Plaintiffs

*7a EXHIBIT A

Code: JFCI

Adopted: 9/14/89

Revised: 8/9/90

Orig. Code:

STUDENT ATHLETE DRUG POLICY

DEFINITIONS:

Drug:

Any substance considered illegal or controlled by the Food and Drug Administration.

Student Athlete:

Any student participating in athletic practices and/or contests under the control and jurisdiction of the Vernonia School District.

Sport Season:

Fall, Winter, and Spring seasons begin on the first day of practice allowed by the Oregon School activity Association and end the day prior to the beginning date of practice of the next season.

POLICY STATEMENT:

In order to provide for the health and safety of the individual athlete and other athletes, as well as providing a legitimate reason for students to say "no" to drug use and providing an opportunity for those taking drugs to receive help in locating programs which can provide assistance, the District is conducting a mandatory drug testing program for student athletes. The program is not punitive. It is designed to create a safe, drug free, environment for student athletes and assist them in getting help when needed.

*8a PROCEDURES:

Consent:

The parent and/or guardian and the student athlete is required to sign a written consent for drug testing prior to participating in the athletic program. Any time an athlete refuses to be tested, he/she will be suspended from the team for the remainder of the season.

Medication:

Student athletes who have been or 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. Student's who refuse to provide verification and test positive will be subject to the actions specified below for "positive tests."

Student Selection:

All student athletes may be tested at the beginning of each season. Random testing will be conducted during the sports season. Students selected for random testing will be selected by having their names drawn from a "pool" of student athletes.

"Positive" Test:

If the student's test indicates positive results, a second test may be administered as soon as possible to confirm the results. Parents will be notified after the second positive test. If the second test is negative, no further action will be taken. If the second test is positive, the following action will be taken:

*9a First Offense

1. Notify parent or guardian.

2. A due process hearing will be conducted by the principal with the parent/guardian and the student.

3. Student will be given the option of:

a. Participating in assistance programs and taking a weekly drug test for six weeks or,

b. Be suspended from participating in athletics for the remainder of the current season and the next athletic season. The student will be retested before beginning the next season for which he/she is eligible.

Second Offense

1. Notify parent or guardian. 2. A due process hearing will be conducted by the principal with the parent/guardian and the student.

3. The student is suspended from participating in athletics for the remainder of the current season and the next athletic season for which he/she is eligible.

Third Offense

1. Notify parent or guardian.

2. A due process hearing will be conducted by the principal with the parent/guardian and the student.

3. The student is suspendedfrom participating in athletics for the remainder of the current season and the next two athletic seasons for which he/she is eligible.

VOLUNTEER DRUG TESTING

POLICY STATEMENT:

In order to provide for the health and safety of the individual student and other students, as well as providing a legitimate reason for students to say "no" to drug use *10a and providing an opportunity for those taking drugs to receive help in locating programs which can provide assistance, the District is conducting a voluntary drug testing program for students. The program is not punitive. It is designed to create a safe, drug free, environment for students and assist them in getting help when needed.

PROCEDURES:

Consent:

The parent and/or guardian and the student is required to sign a written consent for drug testing prior to being tested.

Medication:

Students who are or have been taking prescription medication must provide vertification (either by a copy of the prescription or by doctor's authorization) prior to being tested. Student's who refuse to provide vertification and test positive will be subject to the actions specified below for "positive tests."

"Positive" Test:

If the student's test indicates positive results, the parents will be notified and no other action will be taken.

GENERAL AUTHORIZATION FORM

I understand fully that my performance as a participant and the reputation of my school are dependent, in part, on my conduct as an individual. I hereby agree to accept and abide by the standards, rules, and regulations set forth by Vernonia School District Board and the sponsors for the activity in which I participate.

I also authorize the Vernonia School District to conduct a test on a urine specimen which I provide to test *11a 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.

This shall be deemed a consent pursuant to the Family Education Right to Privacy Act for the release of the above information to the parties named above.

_________________________

Student Signature

_________________________

Parent or Guardian Signature

_________________________

Address

_________________________

Date

_________________________

END OF POLICY

*12a UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

No. 91‑1154MA

(Title Omitted in Printing)

ANSWER

Defendant, for answer to plaintiffs' Complaint, states as follows:

1. Defendant admits paragraphs 1, 2, 3, 4, and 5 of plaintiffs' Complaint.

2. Answering paragraph 6, defendant admits that it has adopted a student athlete drug policy, which policy is attached as Exhibit A to plaintiff's Complaint. Defendant denies each and every remaining allegation of paragraph 6 of plaintiffs' Complaint.

3. Answering paragraphs 7, 8, and 9 of plaintiffs' Complaint, defendant states that it is without sufficient knowledge to form a response to plaintiffs' allegations concerning the desires, activities and motivations of James Acton and for that reason denies the allegations of paragraphs 7, 8, and 9 of plaintiffs' Complaint. Defendant admits in further response to paragraph 9 that it declines to permit James Acton to participate in the district sponsored athletic programs without his having complied with the policy.

4. Defendant denies each and every remaining allegation of plaintiffs' Complaint except as specifically admitted above.

*13a FIRST AFFIRMATIVE DEFENSE

5. Defendant's student athlete drug policy is rationally related to legitimate district interests including, inter alia, the health, safety, well‑being and education of the students under its care.

SECOND AFFIRMATIVE ACTION

6. Defendant's actions were in good faith and based upon a reasonable belief of the lawfulness of the conduct alleged.

Wherefore, having fully answered plaintiffs' Complaint, defendant prays for judgment in its favor dismissing plaintiffs' claims, and prays for its costs and disbursements herein together with its reasonable attorneys' fees pursuant to 42 USC s 1988.

RESPECTFULLY SUBMITTED this 21st day of November, 1991.

LANE POWELL SPEARS LUBERSKY

By /s/ Paula A. Barran

PAULA A. BARRAN

OSB # 80397

DAVID G. HOSENPUD

OSB # 83241

Attorneys for Defendant

(Affidavit of Mailing Omitted in Printing)

*14a [Filed May 7, 1992]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title Omitted in Printing)

ORDER

MARSH, Judge.

In accordance with my opinion issued on this date, plaintiffs' claims for injunctive and declaratory relief are denied.

IT IS SO ORDERED.

DATED this 7 day of May, 1992.

/s/ Malcolm F. Marsh

MALCOLM F. MARSH

United States District Judge

*15a [Filed May 7, 1992]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title Omitted in Printing)

JUDGMENT

MARSH, Judge.

Based on the record, this action is dismissed.

DATED this 7 day of May, 1992.

/s/ Malcolm F. Marsh

MALCOLM F. MARSH

United States District Judge

*16a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title Omitted in Printing)

PARTIAL TRANSCRIPT OF DIRECT‑, CROSS AND REDIRECT‑EXAMINATION OF JAMES ACTON

* * * *

[12] DIRECT EXAMINATION

* * * *

BY MR. CHRIST:

Q. James, how old are you?

A. 12.

Q. And what is your birth date?

A. June 15th.

Q. Do you go to school?

A. Yes.

Q. Where do you go to school?

A. Washington Grade School

Q. Do you like sports, James?

A. Yes.

Q. Which sports do you like?

A. Basketball and track and I don't know about football. I was going to go out for it.

Q. Did you go out for football last fall?

A. Yes.

Q. Did you go to any practices?

A. Practice, but after that, no.

Q. What happened after that?

A. I took home that sheet that we had to sign and we decided not to sign it over the weekend.

*17a Q. Who's "we"?

[13] A. Me, my dad and my mom.

Q. You didn't want to sign it either, did you?

A. No.

Q. Why didn't you want to take the drug test?

A. Because I feel that they have no reason to think I was taking drugs.

Q. Do you still want to play sports if they'll let you play without taking the test?

A. Yes.

MR. CHRIST: That's all I have, Your Honor.

THE COURT: Cross.

MR. POWELL: I have a couple of quick questions, Your Honor.

CROSS‑EXAMINATION

BY MR. POWELL:

Q. James, before you went out for football did you have a physical exam?

A. Yes.

Q. And as part of that physical did you give a urine sample?

[14] A. Yes.

MR. POWELL: We have nothing further, Your Honor.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MR. CHRIST:

Q. James, where was that exam?

A. At the Vernonia Health Clinic.

Q. And tell the judge how you gave the urine sample.

*18a A. They had to close the door in there and peed in a cup and they handed it through a wall.

Q. Was anyone in the room with you?

A. No.

Q. No one was watching?

A. No.

Q. Was anyone standing outside listening?

A. No.

MR. CHRIST: Nothing further, Your Honor.

THE COURT: All right. Thank you. You may step down, James.

* * * *

*19a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

Case No. 91‑1154‑MA

THE HONORABLE MALCOM F. MARSH

(Title Omitted in Printing)

PARTIAL TRANSCRIPT OF DIRECT‑ AND CROSS‑EXAMINATION OF RALPH AULTMAN, Principal

of Washington Grade School and Former Assistant Superintendent of Vernonia

School District and Former Principal of Vernonia High School

* * * *

[18] DIRECT EXAMINATION

* * * *

Q. Mr. Aultman, can you generally describe the Vernonia community?

A. Yes. Beings I was raised there and came back about 13 years later, Vernonia is a community about 1700 people in the city limits, about 1300 other people on the outside of the city limits. Primary industry is logging. We do have some people that work out in the valley and in the technological field Wah Chang, Nike, Tektronix. Low social economic factor in Vernonia, we have about 25, 30 percent of our kids who are on privalegde lunches.

The community is very solid from the standpoint that when the mill shut down in '59 they thought the city would fold, but it did not. It stayed together. So Vernonia is a typical small town, a lot of pride in its existence and it's like a lot of other small communities that aren't.

Q. Mr. Aultman, what role does interscholastic athletics play in the Vernonia community?

*20a A. It plays a very, very big part. You know, you look around and you see about four or [19] five kids here from Vernonia and all of them are interested in sports and they all play sports because in Vernonia there's not much else to do. We don't have any fast food franchises, there are no teen centers, the entire factor of the community centers around the school, and therefore, the outlet for our young people is athletics.

It's a big thing. Everyone wants to play sports. It's an opportunity for competition and it‑‑give you an example. In '83 we had a budget crunch. They were cutting teachers, we lost our forestry program. They were also going to cut athletics. Well, the people tried to keep the program, the academic programs there too, but many people went out and chopped wood and sold wood to finance the athletic program because it's all their kids had. A booster club was formed to try to get money to kept the athletic programs going because they realized it's a very important part of our community.

Q. And what role did the athletes themselves play in the community?

A. Well, if you're an athlete you're looked up to in our Vernonia system. Everyone wants to play if they can. And we deem it very important to [20] try and get as many people involved as possible. And it's just important, you know, to wear that lettermen's jacket in a small community. I still have mine from 1962.

Q. And can you estimate the level of participation in interscholastic athletics?

A. In high school we'll run 60 percent to * * * 65 percent of our students. At the elementary level you're running with the whole program I'd say pretty close to 75 percent of your students, so you're getting large numbers of kids.

Q. Mr. Aultman, in your 12 years in the school district have you had the opportunity to observe the patterns of drug and alcohol abuse in the district?

*21a A. Yes, I have. Alcohol has been around high schools for a long, long time. Between 1980 and about 1986, '87 there was the typical‑‑I was raised in Vernonia High School, a typical small high school with some minor problems, disciplinary referrals would amount to about 40 to 50 a year, no real strong discipline problems. We would have visitors come to our school and compliment how well our kids were doing and how well behaved they were in sitting in the classrooms and studying. And it [21] almost was like a few kids moved in the community and it seemed like in a period of the year I was gone and the next two years, the '87, '88 and '88 to '89 school year there was a real upswing in drug use by our students in the Vernonia High School.

I can equate this to seeing and having teachers come to me and having students being talked‑‑talking in their classroom about drug use, about abuse, about parties. Kids were blatantly oftentimes talking about that they used drugs and there was nothing school officials could do. And what was really concerning us was a lot of these, it was the first. Back at the beginning when I was there in '84 and '85 they had a fringe group that used drugs. Very, very small. And they weren't really looked up to very much. They were kind of looked down upon. But in '86 and '87, '88, '89 were that shift that I saw many of our students, including our athletes, were starting to get involved in drug usage and it was mushrooming.

I had a coach come to me in 1988 and said, "I'm concerned about our football players because I'm hearing reports even from some of them that there's a possibility of amphetamines being used before they play football." That's shocking. [22] And that coupled with the amount of suspensions, in 1988‑89 there were between 100 to 110 referrals that we had that year. There were kids acting out, they were shouting in the halls, they were banging heads together, they were writing essays in classes and coming to us that really scared our staff because we had prided ourselves on really helping our *22a kids. We're concerned and we care about them. We were scared. We were really concerned about these kids.

I had parents call me concerned about the drug use. I had‑‑the school board was concerned. The community was concerned that when we approached the city council for two weeks they brought in a policeman from Portland that they hired for two weeks to try to patrol our areas across from the school to try and keep kids from using drugs. That lasted about two weeks, then he had to go. But we were facing some epidemic proportions of drug usage.

I feel and I think the evidence was there, that the community was saying it, there were students that were telling us, the staff was telling us and as the principal where we pride ourselves on a school that didn't have this. I was [23] very scared.

Q. Mr. Aultman, what were those areas where the police officers patrolled?

A. Well, across the street there was a place called Mario's Coke Shack, right across from the high school. Also there was a mini‑mart over there, then down the road there's a bridge that the kids could go under. And this person the city council hired patrolled those areas to try to stop kids from using drugs.

Q. Mr. Aultman, what were the drugs in your opinion that were being used prevalently during that period?

MR. CHRIST: Objection, Judge. I don't think he's competent to testify‑‑

THE COURT: If he knows. I want it from his own personal observations.

THE WITNESS: Go ahead.

MR. MULLMAN: Your Honor‑‑

THE COURT: If you're going from your own knowledge, then I'll allow you to testify, if you have knowledge yourself of what drugs were being used.

THE WITNESS: Yeah, I do.

THE COURT: All right. Go ahead.

[24] THE WITNESS: The students were in my office and they have told me and‑‑ marijuana because they had *23a pipes and I confiscated them from students and they admitted it. Alcohol, and there was a report of the‑‑that I have from the coach and the students on the amphetamines.

THE COURT: All right. These will be‑‑I understand. These are hearsay reports. I want you to go into this a little more on how he gets these reports and why he gets them.

Q. (BY MR. POWELL) Mr. Aultman, can you describe how the reports of amphetamine use came to your attention?

A. Four football players talked to the football coach and admitted that they have used drugs, and amphetamines were those drugs, and the coach told me the kids never come forward and said, you know, they did. And marijuana, I did have that down to where I have the pipe and kids admitted it.

MR. CHRIST: Your Honor, I would move‑‑

THE COURT: I realize that you're having continuing objection to this. I'm watching it very closely. Whether or not I consider this is an issue I'll confront.

What I have to look at is the perception [25] of what is going on. Now, I'm not going to rely on hearsay. What I want the questioning to address is whether or not there is a system set up within the school whereby reporting is to be made to the principal and that these reports came through that system. That's what I want to.

MR. CHRIST: I just want to preserve‑‑

THE COURT: You have it preserved.

MR. CHRIST: Thank you, Your Honor.

THE COURT: Yes.

Q. (BY MR. POWELL) Mr. Aultman, in the Vernonia School District was there a system for reporting drug incidents or suspected behaviors?

A. Yes, there was. Because I was going to try and address this issue‑‑well, I will try. Yes, we have‑‑we train our staff in impact training to look for these behaviors that oftentimes were indicative of drug and alcohol use so we could work through the training sessions that *24a our staff had had to try and help students identify, deal with parents on drug and alcohol problems and the staff would write out these various incidences, they would write out what happened and they would tell me about it.

So there was a system set up to‑‑to‑‑ [26] to report any type of observable behavior. And we trained all of our entire staff during those years to be on the alert and look for this and how we could stop it because we didn't sit still and idly watch this go on. We tried many things.

Q. Mr. Aultman, did you make any other attempts to determine or figure out how prevalent the drug use was in the district?

A. Other than some surveys done by some staff members, which they related back to me their results, and just from some of the kids, especially in the '88‑89 school year admitting that there was nothing we could do to stop them. That's‑‑

Q. And were they admitting drug use?

A. Yes. Openly.

Q. And in your opinion as part of this increase in illegal drug use, were the interscholastic athletes also a part of that increase?

A. Well, that was the thing that really concerned us. Like I said, 60 percent of the kids participate in sports and when we started the‑‑when the drug usage really started and began, during the years of '87 to '89 it escalated to where we had a large number of athletes who were [27] using and openly admitting to many types to people, including the coach and a couple to myself that they used drugs, but they basically said there's nothing you can do about it. We did try and do things but that's not a question.

Q. So at this point was the district concerned about the use among athletes?

A. Oh, yes. Yes. Definitely. Because when that student had told the coach about using amphetamines, I immediately thought in my head what if this kid gets hurt and they take him to the hospital and it is true *25a that he's on amphetamines and we've been told and warned, are we liable? I was‑‑that really concerned me when I heard of the amphetamine. Because like I said, we've had a lot of training.

I've gone through this drug thing, you know, about marijuana, amphetamines, the entire works, and so we were very concerned about the safety and health and welfare of our students, yes. And the athletes, like I said, 60 percent participate. That's a large number. And we saw more and more of those students actively promoting and actively demonstrating to us that they were out of control.

[28] Q. What efforts did the district make to provide education or motivation to the students to stop the drug problem?

A. We believe in education, number one. We not only taught units on drug and alcohol in our classrooms, we brought in guest speakers over a two‑year period. I spent over‑‑between four to $5,000 in bringing in speakers to talk to our young people about the effects of drugs, Dutch Savage Associates, Theresa Lush, we brought in Javonne Wilson, or Javonne White, a comedian who did a video called "Waking Up To Drugs." Cost us over eight or $900, to bring this man up from L.A. to try and help us.

Brought in drug dogs to try to sniff lockers. We‑‑we set up with our staff and brought experts out to work with every staff member on how to identify and how to deal with the drug‑related problem. How we could help our young people, because that was the bottom line. We just saw some kids being very much at risk. And everything we tried did not seem to work.

It continued. We would have kids get suspended. Like I say, referrals were very, very high. There was two or three expulsions. We'd try [29] everything in our power from punitive discipline to having our staff work with kids, to bringing in drug dogs and authorities and speakers and like I said, we spent a lot of money trying every resource at our command to stop the problem.

*26a Q. Can you recall any specific reactions to some of those speakers or some of those programs?

A. Theresa Lush, a psychologist came in and talked about her son who was addicted, how she tried to get him cleaned up but then he went back. And all of our student body‑‑we worked the system around so every kid could hear every speaker whenever we had it. During one year we spent a whole month on drug awareness to our kids. And we spent the last big week by bringing in as many‑‑ there was things going on all during the month. And we brought in all these speakers. One of them, like I said, was Theresa Lush. Her son Bill couldn't get off drugs. So she told how she had to let him go. There wasn't hardly a dry eye in our students. It affected them.

Dutch Savage talked about how he had used and abused drugs and how his mind was scrambled. And he had an assembly in front of all the students and went to all the individual class rooms. [30] Javonne White, like I said, talked to the entire group and then split out.

We had a Seahawk player, I can't remember his name right now, one of the well‑ known guys, but we had a Seahawk player come in and speak.

We ran the gauntlet of trying to educate. And after Dutch Savage got through I heard kids saying, "Well, Dutch Savage, he was addicted. Look now, he's out selling the program. He came out of it and we can too." That was the mentality that we got from some of our kids after our speakers.

And the major thing was it wasn't going to happen to them. They could not see that.

Q. How did you decide to explore drug testing by urinalysis?

A. Well, in '89, the spring, our school, because of the behavior of our students, the referrals, the suspensions, the parent conferences, all the things that were happening, the staff got together and we were trying to help our young people. It was going to boil down to some tremendous alternative or massive expulsion. We were going to *27a have to expel a large number of students. And our staff did not like that idea.

If you expel students basically they're [31] out on the streets and nothing happens. They're back in six months after the semester, and you really don't solve anything. That's when in the spring it came to our attention through The Oregonian, a supplement in the Sunday edition called Parade, there was an article entitled "The Town Sends A Note To Drugs." It's about a three‑page article, about a town, a community in Texas called Hawkins who had instituted a mandatory drug testing program for extra curricular activities.

I had previously been approached in 1988 by a president of the Booster Club advocating drug testing. This is even before the Hawkins story broke. Because there were some things happening in the federal courts that were relevant to things about drug testing. This Booster Club person wanted to know if we could do it. I said no, I would not do it until I knew there was no other alternative and I had the community support. I was not going to step out.

* * * *

[36] Q. Okay. Mr. Aultman, in designing the policy what was your purpose?

A. That's where the rationale came in. The purpose is threefold. One, safety. That scared me as a principal when I heard of a possibility of students playing with amphetamines because that's where Len Bias, all the things we'd read about this really, really concerned us.

We wanted a policy that was not punitive. We're not‑‑we did not want to go out and get kids. These are not bad kids that we're talking about that were on drugs and that were abusing. These are good kids that were out of control with what was being taken. Our concern is with them too. So we did not want a policy, a policy that was punitive and was kick them out, get them out of here and be done with it, because we would not have had to do this program if we just wanted to expel kids.

*28a So we wanted a prevention program and [37] intervention program built into our drug testing system where there was buy‑back, where we could get help if needed. We really wanted to do it from a non‑punitive stance.

* * * *

[41] Q. Are the boys clothed during this procedure?

A. Yes, they're totally clothed.

Q. What can you see of the student during this process.

A. Nothing.

Q. Are the student's genitals exposed at any point during this procedure?

A. Never, ever. And the shower rooms here, I go through here all the time and the kids are in the shower. But here on our drug testing, no.

Q. Mr. Aultman, is that shower area a communal shower?

A. Yes, it's open right here. Communal. Anybody walking through this door or coming through this door here can see undress.

Q. And this locker room is where‑‑is that where grade school boys dress down for athletics?

A. Yes.

Q. And, Mr. Aultman, is the toilet enclosed by a stall?

A. The stall is right‑‑there's a wall comes out here, but this is open. I should not have that in there because it's an open area.

[42] Q. So there's no door on the stall surrounding the toilet?

A. No. No.

MR. POWELL: I'd like to have this diagram marked as Defendant's Exhibit 110.

[Defendant's Exhibit 110 is a diagram of the grade school boy's locker room]

THE COURT: It will be marked as 110.

MR. POWELL: Your Honor, I'd like to offer that into evidence.

*29a MR. CHRIST: No Objection, Your Honor.

THE COURT: It will be received.

(Defendant's Exhibit 110 received.)

Q. (BY MR. POWELL) Mr. Aultman, who has access to the results of the drug test?

A. Superintendent, principal and vice principal of the high school. And the athletic director of the high school and grade school.

Q. Mr. Aultman, can you describe briefly where are the girls samples collected?

A. In the girls' locker room. At the elementary school Mrs. Peterson, our athletic director, does the paperwork right there while the student is going to the restroom and in there the doors are closed. Students do go into a closed door. Because on the girls in our school there are doors at the elementary level. At the boys just on [43] the one there is not.

Q. So the girls give a sample within an enclosed stall?

A. Yes.

* * * *

[45] CROSS‑EXAMINATION

BY MR. CHRIST:

Q. Mr. Aultman, are you aware that there's been a nationwide and statewide decline in drug use by high school students in the last few years?

A. I think that's on an average and yes, I'm aware of that.

Q. Okay. So you have no reason to conclude that the drug policy rather than just the general trend is responsible for the decline in apparent drug use, isn't that correct?

A. I have a different opinion on that. I was there. I saw the differences and I believe there was a difference.

Q. Your policy as originally enacted wasn't limited to sports, was it?

*30a A. In our beginning when we looked at Hawkins and talked of Hawkins, the model was much like theirs, which was other areas, but then we [46] decided that that was not going to be the right way to go.

Q. My question was the policy was originally enacted beyond sports?

A. Correct.

Q. To all extracurricular?

A. Correct.

Q. What are some of your extracurricular activities other than?

A. We have band, we have drama. Those are two. Leadership class officers, class officers.

Q. Did you have any injuries in the course of those activities?

MR. POWELL: I'd like to make an objection, Your Honor. What's at issue is the present policy to test interscholastic athletes.

THE COURT: Overruled. Go ahead.

Q. (BY MR. CHRIST) At some point in time you changed the policy to limit it to just sports; is that correct?

A. Right.

Q. Okay. Why?

A. Because after the research we're talking about advanced previously we determined that it was not legal if we carried any farther with those [47] areas because of what we had seen, so we knew that in the federal courts in Indiana it had been upheld for the athletics.

Q. So the justification for the current policy is the concern for its legality? Is that correct?

A. Well, only from the standpoint that we had to have that we felt to get by with our drug problem we had in our school, sir.

Q. How are students selected for testing?

A. The very first of the season they're all tested. Okay, like in the fall sports season, all the students are tested. Thereafter, they are randomly picked. Ten percent of the total number that are out for sports are drawn *31a at random, and we decided to have the students buy in by having them be the ones that would be tested. They can't see who they're picking as they pick it out but we‑‑

Q. How often do you drawn names?

A. Every week.

Q. Do you draw during the school day?

A. Yes.

Q. How many students then do you select?

A. Example, if you have 30 people out we would usually do about three.

[48] Q. Do you do the testing at the same time?

A. As soon thereafter as possible that day, yes.

Q. So you would draw a student from the classroom to go test them?

A. Sometimes in the classroom it can be, if that's when they can go. It takes about five minutes, but we do it also sometimes at noon, after school, before school, breaks, yes, sir.

Q. You take the students to the locker room?

A. Yes.

Q. One‑by‑one?

A. Yes. On the random.

Q. On the Random?

A. Yes.

Q. And you're present while the student gives the urine test for the boys?

A. Yes, I'm in the room.

Q. Are you watching them while they urinate?

A. It varies. Most of the time if I find something to work on, because the proximity, the way the urinals are, there's no‑‑there's no water to be tampered with, so I may or may not. It's not a necessary thing that I have to do. I don't train myself to watch the kids.

[49] Q. You're close enough to watch?

A. Yes.

Q. Okay. And you're listening as well?

A. From where I am on the bench I really couldn't hear. I don't recollect ever trying to hear them do they.

*32a Q. You're close enough to hear?

A. Yes.

Q. Have you caught anyone cheating?

A. I have not caught anyone cheating, no.

Q. But you're there to prevent cheating, correct?

A. True.

Q. To that extent you're listening and watching the students doing it?

A. I can see what the students are doing, yes?

Q. What if the students can't urinate at that precise moment?

A. We let them go back to class and come to us when they can.

Q. I think you referred to the policy as non‑punitive. What exactly do you mean by that?

A. When we first got Hawkins's program on the first offense that there was a positive test, [50] they suspended a kid for the remainder of that athletic season and did not allow them to participate.

We built into our policy that on the second‑‑after their first test was positive we tested nearly for a second time immediately. If it was a double positive to bring the parents in, notify them we have a double positive and then there's two alternatives for the student. We tell the sudent, "Look, there's twice positive. You know, we're going to offer you these services which we have people with programs to help, intervention," and if they agree to that and if they'll be tested weekly to show they're trying to quit the drug, we will let them continue to participate.

No other program that I know of and have read about allows the students that opportunity to stay involved and that's what I mean by non‑punitive. We're not threatening we're going to exclude you totally from the program or suspend you or any of that type of thing. And nothing happens to the students if they are positive, as far as academics and being excluded from school.

Q. For a first offense‑‑and that's the [51] word you used, correct, the first time you flunk the test?

A. Yes.

*33a Q. You give them a choice, they can either get kicked off the team or they can be forced to go to counseling or undertaking further testing. That's the choice, isn't it?

A. Yes.

Q. And they can't say "I don't want to be here?"

A. If they say they don't want to do it, then they're excluded.

Q. Okay. And you don't consider that punishment?

A. I believe extracurricular activity is not required, so no, I don't consider it‑‑

Q. Don't you think that students who are kicked off the team or are made to go to counseling and made to take urine testing would consider themselves punished?

A. I can't answer that.

Q. Okay. For a second offense, you don't get any option, do you?

A. You still have the option that you can still do that, and within a couple seasons you [52] can‑‑within the‑‑depends when the season occurs, okay? It's the third offense that the student is totally off for the year. The second offense is very similar to the first offense, I believe. Because we're trying to give them some time.

THE WITNESS: Could I have some more water, please?

MR. CHRIST: While you're up could the witness be handed Defendant's Exhibit 104, please.

THE CLERK: (Handing)

[Defendant's Exhibit 104 is the Vernonia School District's Student Athlete Drug

Policy]

Q. (BY MR. CHRIST) Would you look at the top of the second page of that exhibit‑‑

A. Uh‑huh.

Q. ‑‑Where it says "Second Offense." Does that refresh your recollection about whether a student is automatically kicked off a team for a second time?

A. I need a clarification. You're saying that on the second offense of this policy that the student is excluded from all athletics for the year. Is that what you're saying, sir?

*34a Q. Listen to my question. For a second offense a student is suspended for participating in athletics for the remainder of the current season in [53] the next athletic season?

A. True.

Q. There's no option to say, "I'll continue in a program and go to counseling," is there? You don't get the choices you get for the first offense, do you?

A. Yes, you do. It's just not spelled out there.

Q. It's not spelled out in the policy?

A. Right. Exactly. We have a policy here the student's suspended from participating in athletics for the remainder of the current season and the next season for which year he or she is eligible.

Q. So are you suggesting the policy is inaccurate?

A. No, it's not inaccurate. The policy just does not refer back to the participation in the assistance program of the weekly drug test, but is understood that it is only on the third offense that there's a total removal for the entire year.

Q. Okay. Is that punishment?

A. Again, that's‑‑that's an opinion. To me there's been an opportunity. It would depend on the person.

[54] Q. You mentioned use of drug dogs.

A. Uh‑huh.

Q. And what did you do with the dogs?

A. This is an attempt many schools are trying to‑‑at that time Vernonia is not the only school that is going through this, the throes of drug problems. There are other school districts, Scappoose and others in Columbia County, and there was a use of a drug dog unit in Columbia County which is accessible to the school.

There were several parents, like I said, who were concerned about the problem of drugs in school. That was one of the things they advised us to do to, use a drug dog to see if there were drugs in school.

Q. They went around with dogs‑‑

A. Yes, and sniffed lockers.

Q. Did you find any drugs that way?

A. Yes. But unfortunately we messed it up.

*35a Q. How'd you mess it up?

A. The dogs stopped at a locker. We got the student out of class to open the locker for us and we searched through it. This was right before lunch. Fourth period. In the locker was a transistor radio. I picked the radio up, not [55] thinking to go through that device. I could not find any drugs. So we shut it back up and told the kid we apologized to him, that it was something wrong with the dog.

I had some‑‑two students immediately come up to me when the bell rang for lunch. They said, "Mr. Aultman, check the locker, it's in where the batteries are normally kept. That's where the marijuana is stashed." I immediately went to the locker and the transistor radio was gone.

Q. Any other drugs found through use of dogs?

A. No.

Q. How many times did the dog come to the school?

A. One.

Q. Why didn't you continue that program?

A. We felt it wasn't effective. It wasn't effective.

Q. After trying it one day?

A. Yes.

Q. Have you tried voluntary drug testing?

A. No, we haven't because in the school that we have, Churchhill and other schools we studied at this time found to be very ineffective in our [56] opinion.

Q. But you didn't try it?

A. No.

Q. Did you try drug testing only those students that you suspected of taking drugs?

A. You run a real fine line of reasonable suspicion, probable cause, and we‑‑ we really felt that by trying to design a policy that combined all of our kids and, like I said, no, we did not.

Q. You have a general search and seizure policy at the school. Don't you?

A. Yes.

Q. And that's expressed in the student handbook, isn't it?

A. Yes.

*36a Q. Okay. And that permits you to test only on the basis‑‑or to search a student's person only on the basis of reasonable suspicion; is that correct?

A. That's correct.

Q. So your mandatory drug testing policy is inconsistent with that policy, isn't it?

A. That has not been decided in Oregon yet. That's what we're here for today.

Q. I don't want to know about the legality [57] of the policy, I just want to know that it's inconsistent with your general search and seizure policy, isn't it?

A. In my opinion, no.

Q. Well, you have no reason to suspect James of taking drugs, do you?

A. No. No, I do not.

Q. Nevertheless you insist that he take tests if he want to play sports?

A. Yes.

Q. Have you ever seen any students taking drugs? Ever caught anyone in the act?

A. No.

Q. So your knowledge about any drug use is based on hearsay reports from others, isn't it?

A. And what I know about kids, yes, it is, and my own knowledge. I perceive the training of drug characteristics. I draw conclusions based on my knowledge and training.

Q. I think you mentioned four wrestlers who went to the coast and said‑‑ admitted they'd taken drugs?

A. Yes.

Q. Were they wrestlers or football players?

A. They did both.

[58] Q. And then they passed it on to you, that information?

A. Yes, the coach did.

Q. And that's the basis for your conclusion that you've got a drug problem?

A. No. The behavior‑‑no, I‑‑I can't agree with that.

*37a Q. I think you said that athletes are generally looked up to in the community?

A. Yes, they are.

Q. All of them?

A. To my knowledge.

Q. 70 percent of students participate?

A. 60 percent.

Q. At the grade school level?

A. Oh, at the grade school. 70 percent, yes.

MR. CHRIST: That's all I have Your Honor.

THE COURT: Redirect.

MR. POWELL: Nothing Your Honor.

(Recess)

* * * *

*38a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title Omitted in Printing)

PARTIAL TRANSCRIPT OF CROSS‑EXAMINATION OF ELLIS MASON, Superintendent of

Vernonia School District

* * * *

[64] Q. Since you implemented the drug testing policy how many students have flunked the test?

MR. POWELL: Objection. Outside the scope.

THE COURT: Overruled. I'm going to allow the question. Go ahead.

Q. (BY MR. CHRIST) How many students have flunked?

A. Two or three, I believe.

Q. And that's in what, three years, policy's been in force?

A. That's correct.

MR. CHRIST: Nothing else. Thank you.

THE COURT: Redirect.

MR. POWELL: (Shakes head)

THE COURT: Thank you. You may step down.

* * * *

*39a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title Omitted in Printing)

PARTIAL TRANSCRIPT OF DIRECT‑AND CROSS EXAMINATION OF MARCIA KING, Vernonia

School District Teacher and Athletic Director

* * * *

[66] DIRECT EXAMINATION

* * * *

Q. You indicated you grew up in Vernonia?

A. Yes, I did.

Q. And your current position with the district?

A. I'm a teacher and athletic director and leadership of student council advisor.

Q. And over your 18 years in the district did you have the opportunity to observe the frequency of injury to extracurricular athletes?

A. Yes, I have. Both as a coach and as athletic director.

Q. Did you notice any trends in the late 1980's, let's say 1985, 1989 as far as injuries in the district?

A. Yes. There‑‑the frequency and also the severity of type of injury seemed to be one of esculating.

Q. And over your 18 years in the district did you have the opportunity to observe any increase in students' use of illegal drugs or alcohol?

A. Yes. Some of that was hearsay. By [67] listening to students' conversations and also my observation of students, small groups of students across the street at the high school at a small restaurant, La Mario Coke Shop which is directly across the street from the school office, observation of them passing joints back and forth among *40a themselves during the noon hour and sometimes before school.

Q. Did you have the opportunity to observe over those 18 years whether there was any noticeable trend in the use of illegal drugs?

A. Again, observation and‑‑of students' behaviors, training and stuff, again this is my opinion and in the school, within the classroom, within the halls, during sporting events and the blatancy on which students would talk about their drug use and in the classroom, in the hall, there was a hostility, a power struggle among students and teachers.

In the classroom it was very difficult to teach because we dealt with this anger and this hostility. This is indicative of drug use. Also other things too can play a role, but primarily the drug use appeared to be the forerunner because of the students' conversations.

[68] Q. Are you familiar with the term " The Big Elk"?

A. Yes.

Q. Can you tell the Court about where that term came from and what it denotes?

A. I'm not really sure where it came from, but it was a group of students, athletes and actually that's about all I know about it.

Q. Were they‑‑from your observation were they involved in use of illegal drugs?

A. Yes.

Q. This again is in the time frame of the late 1980's?

A. Yes.

Q. Did you ever personally observe students under the influence?

A. Yes, I did. I had a student arrive in my classroom after a lunch break and I had to escort him to the office. He was clearly obviously inebriated and was sent home from school.

Q. Back to the Big Elk. Were there some unusual behaviors of those individual students who were student athletes who were identified as members of the Big Elk?

*41a A. There was a thing with each other in the [69] hallway and there were the loud bugling, the loud conversations, down the hall. It was more or less a signaling to each other and a camaraderie.

Q. Was that different than it had been, say, in the early 1980's, had you seen that type of behavior before?

A. No, I hadn't.

Q. What's a disciplinary referral?

A. A disciplinary referral is a form which the teacher fills out which states the behavior of a student or unacceptable behavior of a student in a classroom and a hall, even on the school premises, and describes that behavior. And then it is then also referred to students who sign a rebuttal or a comment in regard to the discipline and then it's sent on to the office.

Q. Is this a standard practice within the district?

A. Yes, it is.

Q. Did you notice any change from the early 1980's to late 1980's and the number of disciplinary referrals?

A. I can speak for myself, yes. In my own classroom I used to pride myself on the fact that I could handle my own discipline, and in 1985 a group [70] of students entered my classroom and I had a number of these students that were in the‑‑this little group, this Big Elk group, and it came to a point where I had to send referrals to the office and my referrals alone increased in number on a weekly, sometimes on a daily basis for a period of time until some of those students were released from class.

Q. Now, since adoption of the drug policy have you noticed any change in the number of disciplinary referrals from your classroom only?

A. Yes. Terribly.Again back down to my own problems of having to refer to the office.

Q. Is there in fact a decrease?

A. Decrease? Considerably, yes. In fact, almost zero.

Q. From your observation was drug and alcohol use prevalent among students participating in interscholastic athletics in the late 1980's?

*42a A. Again, observation and the hearsay of students who were talking about the use of amphetamines, even diet pills if they could get them from their mothers' cabinets, conversations within my classroom.

Q. And you dealt primarily with the female [71] athletes?

A. Yes.

Q. And were the female athletes also talking about drug use as well as the male athletes?

A. Yes, they were.

* * * *

[75] Q. All right. Would you tell us how a student comes in to be tested?

A. I bring them into my office area here, set them down at a chair next to me at the desk, go through the process of paperwork. They do‑‑they then enter into this restroom area, which is right beside my shoulder. There is a toilet area and a shower area here.

Q. That restroom has a door on it?

A. Yes, it does. A closed door. It does have a grate‑‑an air type grate there to that.

Q. So the female student enters into the restroom and produces the urine sample?

A. Right, and brings it back out to me and I finish up the process and then they leave.

Q. Is the female student clothed?

A. Yes, they are.

Q. Do you directly observe the urination?

A. No, I don't.

Q. You're outside the door so you could hear the natural sound of urination?

A. Yes.

MR. MULLMAN: Thank you. Would you mark that Exhibit 111.

[Defendant's Exhibit 111 is a diagram of the high school girl's locker room]

[76] THE CLERK: 111?

MR. MULLMAN: Your Honor, we would offer 111.

*43a MR. CHRIST: No objection, Your Honor.

THE COURT: Received.

(Defendant's Exhibit 111 received.)

Q. (BY MR. MULLMAN) The locker room has communal shower?

A. Yes.

Q. That is a communal dress area as well?

A. Yes, it is.

Q. Is this the area that's normally used by female students interscholastic athletes in dressing down for their activities?

A. Yes, it is.

Q. Since the adoption of the drug policy have you noted any trends in the frequency of injuries to interscholastic female athletes?

A. I have not divided it between female or male athletes, but as athletic director there has been a decrease in the number of accidents that come through my office, yes.

Q. And those accident reports normally come to your office; is that correct?

A. In formal conditions, yes. Sometimes [77] bypass to the main office, but I am aware of accidents.

MR. MULLMAN: Your witness.

CROSS‑EXAMINATION

BY MR. CHRIST:

Q. What girls sports are offered by the district?

A. In the fall we have volleyball and cross country. I'm speaking for the high school level. And in the winter sports we have girls' basketball and in the spring sports we have track or golf.

Q. Have you had any injuries in the golf program?

A. Not recently, no. But in the past years we have during the late eighties.

Q. What kind of injuries?

A. Hit with a golf ball. And also one person was accidentally struck with a club.

*44a Q. What kind of injuries do you have in the track program?

A. Muscle‑type injuries, pulled muscles, improper warm‑up. But you also have the potential for javelin or discus‑type injuries.

[78] Q. I don't want to know about the potential, I want to know what injuries‑‑

A. What we normally‑‑primarily muscular injuries.

Q. And this is the same type of injuries in the cross country program, I take it?

A. Yes.

Q. And in basketball?

A. Muscular, but we also have knee injuries, we have shoulder injuries.

Q. Okay. You just finished the basketball season, did you?

A. Yes, we did.

Q. Did you have any injuries during that season?

A. Yes, we did.

Q. What kind?

A. Knee, ankle.

Q. What knee injuries?

A Types of torn ligaments or cartilage where they need surgery.

Q. During the testing did I understand you to say there's a grate on the door to the restroom?

A. Yes, there is.

* * * *

[80] Q. Have you ever seen students take drugs and then play sports?

A. No. Not immediately play the sport, no.

Q. Have you ever seen a student take drugs?

A. Yes, I have.

Q. How many times?

A. There were numerous times with observation from the school office to the restaurant across the street of the smoking of marijuana.

* * * *

*45a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title Omitted in Printing)

PARTIAL TRANSCRIPT OF DIRECT‑AND CROSS‑EXAMINATION OF KATHLEEN SEVIG, Vernonia

High School Teacher

* * * *

[85] DIRECT EXAMINATION

* * * *

Q. How are you currently employed?

[86] A. I'm a language arts teacher at Vernonia High School.

Q. How long have you been so employed?

A. 13 years.

Q. And what are your current classes that you teach?

A. I teach English, World Literature, survey of lit and comp, which are required courses for all students. I teach Speech and I'm a drama director.

Q. Are you involved in any way with scholastic athletes at Vernonia?

A. Only in the sense that I teach student athletes.

Q. You have a child that's involved?

A. My son is a junior in high school in Vernonia and he is involved in student athletics.

Q. But you are not a coach or anything like that?

A. I am not a coach.

Q. Over the years at the district did you observe any trends in students using alcohol and illegal drugs?

A. Yes.

Q. And over that 13 years would you tell the court what you did, in fact, observe?

*46a [87] A. When I first came to Vernonia in I believe 1979, the first year that I taught I followed a teacher who had been there for 30 years and I had a few discipline problems just because students were testing me. But after that for the next ten years I prided myself on and I've always provided myself, I've taught for 23 years, on my ability to handle the discipline in my classroom.

One of the goals of my teaching is to establish a positive climate of trust between myself and my students, and I have been able to do that. However, in the late eighties I would say beginning the years '85 thorugh '89 I noticed a tremendous difference in the kind of behavior problems I was having to deal with. Completely different than I had dealt with the previous years.

Q. What kind of behavior problems were those?

A. I could characterize them as students who were much more hostile, who wanted to dominate the classroom, whose behavior was very erratic and I think the other word I would use is very, very gross and inappropriate. Much different than I had in the previous 16 years. Something that I noticed considerably and was unable to deal with myself as [88] I have been able to deal in the past.

Q. And in that period '85 on did you notice there was a significant increase in drug talk?

A. If I could, I could give a specific example. I am trained in writing using the Oregon writing project model and that model is based on using personal experience as a beginning point for writing. And my students using that model, often I've had students write about things which are‑‑well, they all write about things that are incredibly dear and important to them, and I've had to deal with things like sexual abuse and drug abuse in the home.

During those three years I began getting essays from students with the theme of‑‑I remember one essay in particular, the name of it was "Party Till We Puke," and it was written by a student who wrote an essay about the goings on of he and his friends, their drug use, their *47a parties and he glorified it in the essay. And that was only one example that I particularly remember, but I got several essays on that theme and‑‑

Q. "That theme" being drug use?

A. Drug use. Drug use, yes. Talking about drug use. And these were essays that they handed [89] in to me that they knew I was going to read and that I was going to grade.

Q. And did you notice any behavioral changes in that late eighties period?

A. I noticed tremendous behavioral changes.

Q. What kind of things did you see?

A. As I said before, I noticed behaviors that were extremely erratic and gross. I had a fifth period class and‑‑

Q. Fifth period after lunch?

A. Yes. Directly after lunch. And students would come back from that class and it was extremely difficult for me to control that class in those particular years.

I remember one instance I think there were 23 or 24 students in the room and a student sat at the back singing "Jesus Loves Me" at the top of his voice.

Q. That was rather unusual?

A. I've never experienced anything like that.

Q. Did you go talk to the student?

A. I talked to the student. It was kind of wild, his behavior, kind of dancing around in the back of the room, and I said‑‑tried to talk to [90] him and he said, "well, I'm just high on life," and tried to calm him down. There was no way. So I wrote a disciplinary referral and‑‑to the office and he was taken from my class, but I don't remember if he was suspended for two days. I can't remember. But I did get him back in class after that.

Q. Did you notice any other types of odd behavior of students in class, for instance, writing inappropriate language?

A. Yes. There was a lot of talk, as I said, about the "Party Till You Puke" thing, the drugs. They didn't mean to overhear it, but it just went on and I did hear it.

*48a There was more use of profanity. I remember one specific incident, and this was in a fifth period class also, where a student came into the classroom, a class of boys and girls, and marched into the classroom and sat down at his desk and looked over at a girl next to him and at the top of his lungs basically in front of all my students shouted, "suck my dick." And this kind of behavior has never happened to me before in my teaching. And these kinds of comments‑‑

Q. And did you talk to that particular [91] student about the comment?

A. Absolutely. I told him to pick up his books and I called the office and there was a disciplinary referral. I believe he was suspended from my class for three days. But he also came back to my class.

Q. Have you ever heard a term "drug cartel" referred to in the school?

A. Yes.

Q. Can you tell the court what that referred to?

A. There's a group of students who bragged about their drug use in their essays and I had all these students in my class. They were student athletes, who talked about how cruel it was to use drugs and alcohol, who in a sense intimidated other students. They would walk down the hall and I would stand right outside my classroom and they would shout and bang their heads into the lockers as hard as they could, they would butt heads with each other. They would be real loud.

Sometimes in the classroom I would have‑‑trying to calm them down. There was such a hostile atmosphere toward me that I just had a really difficult time. It bothered me terribly [92] because I thought what a difference for 15 years I was in control of my classroom, I did not have these kinds of problems. Why is this happening? Why can't I deal with it? And I had to resort increasingly to having them removed from my classroom because I couldn't deal with them in the classroom.

*49a Q. Did you personally participate in any educational efforts to remove drug education prior to the time the district adopted the drug policy?

A. Yes. I'm a drama teacher and during‑‑I think it was‑‑I'm unclear of the years here. I think it was either '87‑88 or '88‑89. I'm sorry, I can't remember the exact date.

Q. That's all right.

A. But it was during the time that we had the drug prevention month. And I had a drama class and there was a play called "The Attic" that Hillsboro High School had put on and it portrayed the lives of 11 or 12 teenage addicts and what happened to them. And the drama class discussed it and said they would really like to put on this performance as part of the drug education awareness.

And so we practiced it and we performed [93] it five or six times for the high school in small groups and we also performed it at the 7th and 8th grade level.

Q. And why did you select that particular day?

A. It was a joint decision by me and my students. They had heard of the play. I had one student who was student director and we discussed it and they felt that they wanted to have some kind of involvement on their level of bringing the consequences of the drug use to their peers.

There were other speakers coming in from the outside and they wanted to participate on a personal level in letting their friends and their peers know what drug use could do.

Q. And from your personal observation were these efforts effective in curbing the drug abuse in the school?

A. The discipline problems that I was having in my classroom didn't change after that month. There was no change. I remember we had a series of four days and there was something that hit the students every day, and the Friday after those‑‑that was over, five, I don't know the exact number, four or five student athletes skipped school and [94] went to a parent's house and used drugs *50a and alcohol and they were‑‑the police raided that. That was during school. So that happened immediately after this whole months of education.

Q. Is it fair to say it didn't appear effective in your opinion?

A. I didn't see that it was effective.

Q. Let's turn to the current school year, 1991‑'92. Have you noticed any difference in the disciplinary referrals from your class to the principal?

A. I've had no disciplinary referrals at all.

Q. After the adoption of the policy did you notice any difference in disciplinary referrals between that and the current year?

A. Yes, I did. Last year I think I had two disciplinary referrals and the first year that the drug testing was in effect, I can't remember exactly, but I would say no. Maybe one to three, something like that.

Q. Has the excessive drug talk stopped in your class?

A. I've not heard any drug talk in my class this year. Maybe a bit at the beginning of last [95] year. Nothing this year.

Q. How about the classrooms, any difference between when the policy was adopted in this behavior?

A. I don't detect the hostility. I'm able to establish a rapport with my students, have the kind of class atmosphere where they respect each other and me, and I'm able to teach them the kind of environment that I was able to teach in, as I said, those first 15 or so years before this late eighties and I thought everything‑‑I could not understand what was happening. I‑‑I didn't‑‑I didn't change my teaching style. It was so severe in the year of '88‑89 that I was seriously considering not remaining in teaching because I felt that I could not reach my students.

I could add that my teaching had been successful. I was a master teacher. I received merit pay several times *51a from the district. But I felt that I could not continue because I could not reach a great many of my students.

MR. MULLMAN: Nothing further.

* * * *

[97] CROSS‑EXAMINATION

* * * *

Q. So again you could be seeing the benefit now of all the work you did back then?

A. I can't‑‑I suppose that's possible.

Q. Really you have no reason‑‑I mean, you can't say for certain what is the cause of the current situation?

A. My observation was that the behavior problems that I had were severe during those two years and after they did not change after the education, they changed drastically after drug testing was implemented.

Q. You talked about some essays that the students wrote that talked about drug use apparently.

A. Yes.

Q. Do you have any‑‑you don't know for sure whether any of those essays are true, do you?

THE COURT: Any of those what?

MR. CHRIST: If those essays were true.

THE COURT: Oh, oh, okay.

THE WITNESS: Only in that the students told me they were true.

Q. (BY MR. CHRIST) These students, was there only one?

[98] A. No.

Q. How many students are you talking about?

A. Probably I would guess‑‑this is an estimated guess: Eight or nine.

Q. Hoy many students have you taught since 1989? Just an estimate.

A. Probably have about 90 students per year.

Q. The drug cartel, how many students were involved in that as far as you could tell?

A. I would identify the leaders of that group, the role models, probably seven to ten.

*52a Q. Did you ever actually ever see any of them taking drugs or just talking about it?

A. I never observed them taking drugs.

MR. CHRIST: That's it, Your Honor.

MR. MULLMAN: Nothing further, Your Honor.

THE COURT: You may step down.

* * * *

*53a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title Omitted in Printing)

PARTIAL TRANSCRIPT OF DIRECT‑AND CROSS‑EXAMINATION OF RONALD SVENSON, Vernonia

High School Teacher, Wrestling Coach and Former Vernonia High School Football

Coach

* * * *

[104] DIRECT EXAMINATION

* * * *

Q. Now over your 11 years with the district as a coach and as a teacher, have you had the opportunity to observe any patterns of students use of illegal drugs and alcohol?

A. Yes.

Q. Would you tell us what you've observed?

A. When I came to Vernonia in 1981 I was really impressed with the spirit, the lack of drug use, having moved from an area that was‑‑drug use was rampant in Southern Oregon. The‑‑over that began to erode. Beginning in about '85 you would hear isolated rumors about kids on the teams doing drugs.

It‑‑when I was an assistant coach the head coach was called in and I believe it was in the football season of '85 and apprised of the fact that parents called and said that some of their sons had‑‑that other kids on the team had done drugs on a road trip. That was the first time that [105] we had really been confronted.

After that we began to see‑‑maybe opened our eyes and so we began to look, and we began to see behaviors that as we became better trained and read materials, you *54a know, appeared to us to be not a normal behavior to the head coach and I at that time.

Q. This is the football coach?

A. Yes.

Q. How did these things come to your attention?

A. As I said, the first instance was kids on the team had told their parents that some kids were doing drugs on a road trip at a restaurant when we were eating. After that we‑‑you know, we heard things that kids would come and tell us that this is what they heard, you hear kids talking. In particular, after seasons were over when kids felt you no longer had the‑‑the authority to remove them from the team, "oh, yeah, man, we were so blasted, you know," that was ' 86, '87.

We had a couple instances, basketball team where kids were drinking on a bus coming back from a trip. They were disciplined. That was in what, I believe ' 86. We had another instance in [106] track where students were‑‑stole some beer at a Mini‑Mart or something on a road trip. Were removed from the track team because of it. That‑‑I believe that was in the spring of '87.

We‑‑it began to grow. Began to see more‑‑more athletes across the street from the school in the little restaurant being involved in this thing, in this group. And then you'd hear them talk about it. You know, we had team dinners at our house and you couldn't believe the same kids, you know, would come to your house and then be polite and then you'd see them four days later in school and their behavior would be radically different.

So it was kind of like an escalating thing. It just continued to seem to grow and you could almost weekly see more kids getting into this pool, so to speak.

* * * *

[110] Q. (By MR. MULLMAN) In 1989 did your wrestling team have an opportunity to travel to Madras, Oregon?

A. Yes, we did.

Q. What was the purpose of that trip?

*55a A. To participate in a district 1A wrestling tournament that qualifies wreslers to go to the state tournament.

Q. Did any of your wrestlers get injured in that trip?

A. Yes.

Q. Tell us a little bit about the injury.

A. Well, we had a boy wrestling in the district finals who had qualified the year before to go to state. Only the top two kids in each weight class qualified to go to to the state tournament. He was a very good wrestler, a tough athlete. Had been extremely competitive. He shot [111] a take‑down in the first 15 seconds of the district finals. Went‑‑instead of a normal reaction, went to his hands and knees and stayed on his hands and knees. His opponent cross‑faced him, went to what we call a two‑on‑one arm bind, the kid didn't react, he didn't do anything. He just stayed in that position. The kid hammered across him and pulled his elbow up in this (demonstrating) manner. It's a move that we've practiced probably close to a thousand times over the years that that boy participated.

He was severely injured. Had to go‑‑he didn't get to go to the state tournament because of that. He had to go to the doctor. He had several kinds of injuries in the sternum area with collar bones connected to the sternum, several months before he could function normally with his arms.

Q. And was there any reason to suspect that students who were participating were under the influence of some type of drug?

A. That night I took him‑‑when we took him back to the motel, iced him up, okay, the next morning I got up, went down to his room to see how he was doing. It was 11 o'clock when we got back from the motel. When I walked into the room the [112] smell of marijuana enclosed you and I‑‑there were no doubt somebody in the room was smoking marijuana. And I went to get my assistant coach to verify the existence.

There was‑‑and I‑‑by the time we got back, the room had been sprayed with what had to be a mixture of every *56a aftershave lotion and hair spray and deodorant that those kids could find. There were four kids to a room.

As I looked back on the injury later that afternoon on the way home, it's a long bus ride, I thought the kid didn't react like he had reacted a hundred times in the past. There was no way of particularly proving at that point in time whether he was under the influence. Certainly a strong suspicion.

Q. And have you ever observed any football game films where you got that same kind of strong suspicion that something was wrong?

A. Yes. You practice certain situations over and over in football to prevent injuries, to the kids to react to make‑‑you know, win ball games, to protect themselves. That's my first rule when I coach football was to teach the kids to protect themselves. And during this period of time [113] there would be situations where I was looking at the film and the kid would get an ankle rolled on, you know, opposing player would come up to block him and get to his ankles and the kid would get a sprained ankle.

And I'd watch it and I'd think why didn't he react? I mean, it's just like, you know, you watch, you say to yourself we've drilled on that particular thing a hundred times a week and the kid wouldn't react. And not always were they injured, but it was a situation where they just didn't react in the manner that they would normally react, just as athletes‑‑as people walking down the street would react.

Q. Did the wrestler ultimately tell you that he had been under the influence?

MR. CHRIST: Your Honor, hearsay.

THE COURT: Sustained.

Q. (BY MR. MULLMAN) In response to your observations of these films and your perception of the wrestling, did you decide to do anything about what you perceived as a problem in Vernonia?

A. Not just as a result of that. They were the‑‑let's say the culmination, the point at which I said we're *57a losing these kids, we had to do [114] something, we have to try something different than we've been trying.

Could I go back to an experience that I had earlier in coaching?

Q. Sure.

A. Okay. In November of 1977 I was teaching at‑‑coaching at Glendale High School, and on the girls' volleyball team had a girl that was extremely popular in school, and was rather heavyset. We had our awards banquet on a Tuesday night. She got the award as the most inspirational volleyball player.

She went to a party, a going‑away party for a girl that was moving the next day. Drank about one and a half beers and died of a heart attack in the middle of the party. The evidence about her death is that she had been using speed, diet pills that she had‑‑that she had gotten from an aunt, unbeknownst even to the aunt she was taking them. The alcohol and the amphetamine reacted, she died, you know, 30 kids standing around.

The second hardest thing I ever had to do in teaching was to sit in first period the next day when most of those kids were there in the class. I [115] have no training to deal with that situation as far as how you handle grief. But it alarmed me and, you know, I just read on my own then about the reactions of different drugs ever since the girl died. And when‑‑when these things began to occur and the statements by kids, especially about the use of speed, and I started a series of discussions with Mr. Aultman and I said, well, what‑‑you know, what can we do to drive home the fact that these drugs are dangerous. You know, it's not the kids that are the enemy, it's the drug.

Q. About when did these conversations with Mr. Aultman begin?

A. Probably occasionally‑‑by that I mean once every three or four months in 1987. More often than that in the spring of '88. By the‑‑by February of '89 once every two weeks or so. And he was extremely reluctant *58a to talk about drug testing. We saw the article from Haw kins, Texas, and so we discussed that also.

* * * *

[118] Q. (BY MR. MULLMAN) I don't care what other people told you. I'm asking you what did you decide to do in particular?

A. I decided to do what I could to institute a mandatory drug testing policy at Vernonia‑‑at the Vernonia school district.

Q. What did you do?

A. I talked to Mr. Aultman. As he stated, we had had a discussion at the faculty meeting over the issue. I said I will be more than happy to do the legwork to find out if there are any cases that have been upheld so that we can do this. He gave me information to spend a hundred dollars or so on phone calls to track down information.

I called Time Magazine in New York City to get the phone‑‑the names from Hawkins Texas because The Oregonian hadn't kept a copy. Time Magazine, as I understand at that time it was an insert. I called the superintendent of Hawkins School District, talked with Mike on the phone, felt uncomfortable at some points. I felt that education had failed, everything I'd done in my life that I believed in didn't work‑‑

Q. Did you get a copy of the Hawkins policy?

A. Yes. I talked to him‑‑I asked him at the time, I said did you‑‑has this gone to court, because it seemed rather broad. They tested everyone‑‑

Q The entire student body?

A. Everybody that was in any form of extracurricular activity, including leadership and so on. My concern wasn't that somebody in leadership was going to get hurt or, you know, have these health problems, my concern was kids on the football and wrestling teams weren't reacting and, you know, they were getting hurt.

I‑‑I asked him if there were any cases that had been taken to court because theirs had not been. He said *59a yes, there was a case in Indiana that had just been settled in late 1988, Tippecanoe County in Indiana. And I said‑‑asked him if he could provide me with materials. He said he would [120] try to do that. He then sent me a copy of their program from Hawkins.

Q. Did you also get materials from the Tippecanoe‑‑

A. Yes, a few months later.

Q. And using those materials, what did you do?

A. I worked in conjunction with Mr. Krost (PH), who was our athletic director at that time, and Mr. Aultman. Through the community we came up with the policy that we now have.

Once we received the Tippecanoe information, the court in Indiana had made it abundantly apparent that there was no constitutional basis to be testing kids from leadership or from the band, that it wouldn't fly, you know, our goal was to protect our athletes. That's‑‑that's where our major concern was. Therefore, the case in Indiana seemed to fit better than the program at Hawkins, so we made some changes in what we had proposed.

* * * *

[128] Q. (BY MR. MULLMAN) Mr. Svenson, we had just completed, I think, at the break discussing the diagram of the locker room. What I would like you to do now, is turn to the Big Elk. There was some testimony about that.

Did you during the 1988 school year have occasion to have members of the Big Elk in your particular classroom?

A. Yes.

Q. And there's been some testimony that there were eight or nine, perhaps as many as ten [129] members of that. Is that your recollection?

A. The Big Elk was‑‑it wasn't like a club of dues and stuff, it was‑‑nobody demonstrated a call, you know, the mating call.

*60a Q. I don't believe you need to do that.

A. There were probably ten or so kids that were the core of what became a group of approximately 30 to 35 kids that were‑‑would walk down the hall and greet each other with this obnoxious greeting.

Q. And these individuals, were some of those individuals in the Big Elk students athletes?

A. I can only think of one that wasn't.

Q. And what type of behavior did you observe of these students?

A. In my classroom?

Q. Yes.

A. I had these students in sixth period U.S. History class. These are‑‑they're sitting in the classroom now and would be talking about let's say the Holocaust, as an example, because I remember this incident specifically. And these two kids started (demonstrating) laughing. Just burst out laughing.

I thought maybe‑‑I thought maybe had [130] done something, so I stopped and said, "what's so funny?" "Nothing." So I go on and that pattern was‑‑that pattern was repeated two or three times that day. I took the kids out. You know, I tried in all my teaching career of 23 years to not have to send kids to the office. So, you know, I took them out on the porch behind my classroom and just talked to them and said, "this is not appropriate. You can't just burst out laughing at a‑‑you know, these kinds of issues."

Then we come back in the class. Other kids in the group would then‑‑as we're trying to discuss this or whatever would start just almost yelling at these kids, you know, about different‑‑different things.

This giggling between these two kids went on‑‑off and on for two or three months. It was‑‑the‑‑then, you know, there were a couple of other kids that would come into class four days out of five with no problem, and then all of a sudden it would be just a‑‑you know, like I came in one day, I walked in my classroom and a kid was *61a laying underneath three desks. You know, and I said, "what are you doing?" "I was just taking a nap, man."

* * * *

[131] Q. Did you notice that your disciplinary referrals increased in the '87‑ 88 period?

A. Mine did, yes.

Q. In your own classdoom?

A. Yes.

Q. You testified earlier that one of the reasons that you wanted to adopt drug testing policies regarding safety‑‑

MR. MULLMAN: And I apologize, Your Honor, I'm not sure I covered this. I want to make sure I did.

Q. (BY MR. MULLMAN) What concerns with [132] safety did you have for those athletes?

A. First and foremost I think anybody that coached at that period of time had to be influenced by the death of Len Bias, the basketball student at the University of Maryland and Don Rogers a football player with the Cleveland Browns who suffered a heart attacks from overdoses of cocaine.

I was concerned that kids would be using amphetamines and they'd get hurt and not‑‑you know, not be able to recognize it and play beyond what they could‑‑you know, normally you can play football in some amount of pain, but amphetamines may mask like a knee injury on the field and the kid may not feel the full effect of it and continue to play and injure it worse.

I had an almost fanatical fear of a kid being hurt, being taken to the hospital, refusing to admit that he was using a certain‑‑I'll say speed, and being injected with pain killers or whatever and having a reaction to it. Those kinds of concerns. I was concerned because you just‑‑I don't know, I guess because I want the kids to use the athletic program to‑‑as a way to get through being a teenager and have in Vernonia especially have something to do, but get through it safely.

*62a [133] I don't‑‑you know, I don't want any kids to emerge from our program not being able to function and those kinds of concerns.

Q. Were you concerned about the safety of teammates and opponents?

A. In a sense that‑‑that the‑‑if a student was using drugs and playing in particular‑‑in particular football and wrestling, you could‑‑there is a chance that kids could go outside the rules of the game and create injury situations to opponents or come flying into a pile in football for example with his head down and hit a teammate in the back. Those kinds of things. I have to say that that concern was there, but it wasn't the primary concern. My primary concern was for each individual's kid's own protection.

Q. From your experience is there a difference in the pressures between, say, interscholastic athletics and say for instance the P.E. class?

A. Yeah. There's no real comparison between P.E. classes and interscholastic athletics in terms of, you know, for example pressures on the kids to perform. If a boy comes into a P.E. class, for example, in my weight training class and says he's [134] not feeling‑‑you know, feeling well, he has a strained muscle in his back or something, he doesn't participate and usually they will tell you that.

Kids want to play in games and oftentimes they won't tell a coach when they're hurt. And there's that pressure. The workouts themselves are‑‑are much, much more strenuous. First of all, in a high school P.E. class the actual activity length of time by‑‑you know, by dressing down and having to shower and so on, the maximum time is 33 to 35 minutes of exercise, and that includes‑‑that would include a period of time to stretch and warm up.

In wrestling, for example, when kids use‑‑use the idea that they determine the physical difficulty of the practice by the number of pounds they lose, they sweat off during *63a a practice, they have a two‑pound practice or three‑ pound practice, or once in a while a four‑ or five‑pound practice, depending on the kid. And there's just‑‑there's no pressure, for example, in teaching a class. There's no pressure. Nobody says you know, "did you win?"

You know, you don't go home on Friday [135] afternoon after classes and say, "did you win?" And the kids aren't asked when they come out of P.E. class, "did you win today?" You know. I mean, there's that kind of competitive situation.

Q. Prior to imposing this drug policy did you try other educational programs to reduce drugs in the school system?

A. Yes.

Q. What did you do?

A. Well, I teach modern problems class which is a class that's dsigned to deal with whatever problems the kids find important. So we dealt with the problem of drugs. You know, we discussed the health aspect, the social aspect, what pressures were put on kids to do drugs, was their peer pressure. You know, those kinds of things.

I've done the reports, the kids have researched the drug, effects of the drugs, we looked at movies. We participated‑‑my student leadership class participated in the month long program we talked about. The‑‑this‑‑we were sort of the climax of the four‑day thing in the spring right before spring vacation of '88. My student council, we shut off the lights in the gym.

The student council kids came in one at a [136] time with a flashlight under their face, you know, with their faces in white and read off the statistic about, you know, I'm number‑‑we talked about the number of people killed by drunk drivers in the last 20 years and kids would say, "I'm number 5,102, I was driving to the prom," so on, so forth, you know. Had the lights out and just the flashlights.

The student council kids totally forgot about the assembly. However, the next day five of our best sophomore *64a athletes skipped school and went to one of their kids' houses and were arrested for drinking and using marijuana.

Q. Now, this month‑long program culminating in the four‑day event‑‑there's some confusion about the date. Are you fairly certain about when that was?

A. It was when the group that had been‑‑you know, Big Elk group, it's when they were sophomores. They graduated in 1990. So they were juniors in '88‑89, so they would have been sophomores in '87‑88, yes.

* * * *

[139] CROSS‑EXAMINATION

* * * *

Q. Are you close enough to hear the sound of urination?

A. Our locker room sometimes because of echoes from the gym and so on, so forth, sometimes you would be very difficult to hear it. If there was no P.E. class or any other activity in the gym or anywhere, I could hear them probably if I was to listen close.

Q. Have you caught anyone attempting to cheat?

A. Have I personally?

Q. Yeah.

A. No.

Q. You would agree, wouldn't you, that the risk of injury is inherent in all sports, isn't it?

A. Yes.

Q. And the degree of risk depends on sports?

A. Yes.

Q. It's greater risk for contact sports than for non‑contact sports?

A. Yes.

Q. Now, you have four non‑contact sports in the district, don't you; golf, volleyball, track [140] and cross country?

A. I believe that's correct.

*65a Q. So really what you're concerned about is wrestling and football?

A. No. What I'm concerned about is the safety of every single kid that participates in athletics.

Q. But the risk is greatest in those two sports, isn't it?

A. Yes.

Q. You mentioned two athletes who died, you believe, from cocaine overdose. Who were those?

A. Those‑‑to say that I believe they died from cocaine overdose makes it sound like that was my opinion. The autopsy reports on both Len Bias and Don Rogers were published in every newspaper in the country saying yes, they died from heart failure caused by an overdose of cocaine.

Q. Len Bias was a basketball player?

A. From the University of Maryland, yes.

Q. Don Rogers, what was his‑‑

A. He was a defensive back for the Cleveland Browns.

Q. Neither one of them died on the playing field, did they?

[141] A. No, they did not.

Q. You talked a little about the educational program. That was tried before the drug testing program?

A. Yes.

Q. You didn't see immediate results apparently?

A. No.

Q. Do you expect immediate results when you teach students something?

A. In areas where their health, immediate health is at risk, you could anticipate that after a period of weeks that there would be some indication, yes.

Q. Well, takes time to change behavior, doesn't it?

A. That depends on the behavior, I believe.

Q. Well, things seem better now than before, correct?

A. For who?

Q. For you as a teacher and coach?

A. In what manner do you mean?

*66a Q. Student behavior, deportment.

A. Yes.

Q. And that could be the result of the seeds [142] that you sowed back in the education program?

A. Those kids that are in my classes now were not in those education programs.

Q. Maybe their older brothers and sisters were?

A. Some of them were, yes.

Q. Education is a long‑term process, isn't it?

A. Yes.

Q. I guess I sense that you feel like you failed the educational mission when you adopted the drug testing policy, is that fair?

A. I don't feel that I failed. I felt that myself and my colleagues did everything educationally that we could find to do to change the behavior of the students. I believe and I believe today that the drugs mask the intellect of the person. And I don't think that you can educate people as long as they're under the influence of drugs. I don't think that you can keep them safe. I don't think that you can keep them healthy.

* * * *

*67a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title Omitted in Printing)

PARTIAL TRANSCRIPT OF DEFENDANT'S TRIAL EXHIBIT 106‑‑Perpetuation Deposition of

Robert L. DuPont, M.D., Expert Witness for Defendant

* * * *

[37] Q. In your opinion, would you expect that teachers and coaches and administration staff in a high school or a middle school could effectively observe students and determine which ones were under type‑two impairment for marijuana use?

A. No. In fact they'd even have some trouble with type‑one because they see such a wide swing of behavior. Adolescents are characteristic for giving a lot of behavior, including mood swings and unpredictability, and all kinds of things. So it becomes even difficult to identify type‑one impairment among adolescents because they're so all over the place. But type two, they'd have no possibility of doing that. So I think the fact is that even if they were specially trained they would miss 90 percent, more than 90 percent of the impairment caused by drugs and alcohol.

Q. In the drug‑abuse treatment field, what is the standard for determining impairment among patients?

A. The only standard is the drug test. I know of no other way that anybody who‑‑counselors or‑‑who counsels or treats drug addicts could do it [38] without a drug test. They would never, in my experience, use observation as the basis. And these are people that are known to be drug addicts. You think about how different that is from a school situation where you don't know the person is a drug addict. You see them in a sea of *68a faces. And here's a counselor who knows this person is a drug addict and still can't tell whether the person is using or not. And that's why they do the drug test.

* * * *

[45] Q. What affect does school leaders' or student leaders' drug use have upon this progression on other students?

A. Well, within‑‑I think this is true for all human populations, but it's particularly true in the middle school and high school area‑‑and that is that the definition of what's desirable, the [46] definition of how you're a winner, is made on the basis of the status of the individual in the peer group. And the people who are at the top of that status hierarchy are the ones whose behavior is going to be emulated by the other students. So that the leaders play a very powerful role in terms of shaping the behavior of large numbers of students in the classes. And what they do about drugs makes an enormous difference about what other kids are going to do who are watching them and making up their minds about what they want to do.

Q. Doctor, are you generally familiar with kinds of interscholastic athletic events that middle school and high school students participate in?

A. Yes, I am.

Q. Have you observed middle school and high school interscholastic athletic events?

A. Yes, I have.

Q. Are you generally familar with the risks and physical stresses associated with interscholastic athletics for middle school and high school students?

A. Yes, I am.

Q. Doctor, do you have an opinion of whether students who participate on interscholastic athletic teams in the middle school and high school level who [47] use drugs are at a greater risk of injury to themselves or to others than those students who do not use drugs?

A. Yes, I have an opinion.

*69a Q. What is that opinion?

A. That they are a substantially greater risk.

Q. What is the basis of your opinion?

A. There has been an enormous amount of research on accidents and injuries in large numbers of contexts, including studies of people's behavior when they have been given drugs, to watch how they behave. All of the elements that go into having an accident occur have been studied in laboratory settings to demonstrate that the drug experience is highly correlated‑‑with drug intoxication impairment‑‑is highly correlated with accidents of all kinds. So the accidents associated with athletics are not different in terms of the mental capabilities required to avoid the accidents or the impairments that promote the accidents than any other sort of accident.

And I just would call your attention to one particular study that I think is very compelling in the state of Maryland. The shock trauma unit‑‑that's, of course, where my office is in Maryland‑‑[48] studied 123 consecutive people who were brought there after accidents, injuries and accidents of all kinds, vehicular accidents and any other kind of accident, accidents in the home and biking and everything, every kind of accident in the state, and it was surprising to many people that 35 percent of the people had blood levels of marijuana. Now, unlike a urine level, a blood level means that they'd used very recently before the accident, and that was higher than the percentage who had used alcohol. The alcohol percentage was 33 percent. So that was pretty powerful evidence.

Other studies have shown very high correlation with cocaine in accidents. I don't know of any studies specifically of athletes generally as a group, or of high school athletes, but all the elements that go into the risk of an injury and an accident in an athletic context are present in every other kind of human activity that has been clearly shown that drug use is a major risk factor in those situations. That's the reason that safety is one of the two *70a principle indicators for drug tests is because of the connection between drugs and accidents.

Q. And how is it that drug use increases these [49] risks?

A. It leads people to take risks. It leads people to be careless. It leads people not to follow instructions to reduce the risks. So that people are impulsive, careless; they're operating outside of the guidelines that they have learned and, therefore, increase their probability that they're going to have an injury.

Q. How would a middle school student who's under marijuana impairment be at a greater risk of injury while participating in football, for example?

A. The person would not be‑‑if they were trained, for example, to tackle above the waist to try to reduce injury, they might go for an easy tackle and go after the other person's knees. They might use a blocking technique that they were specifically trained was a risk to the other person and use it anyhow. They might be involved in using a technique in terms of their own behavior that would put them at risk of a head injury or spinal cord injury or some other kind of injury.

Q. So the risks associated with drug use to high school and middle‑school athletes is not only to themselves, but to those other students who are on the athletic field or the practice in the gymnasium [50] with them; is that correct?

A. That's correct. And I think it's very important to understand‑‑this is a general statement about drug problems, including accidents‑‑that one of the concerns is that somehow the drug user is, himself, the only victim of his drug use. One of the myths about drug problems, including accidents, is that the drug user is only risking his own health or safety, and this is clearly not the case. The consequences of the impairment of drug use are shared by everyone who shares the environment in which the drug‑impaired person is, and that very much includes the athletic field where the body is being pushed to the limits. *71a That's what competitive athletics is all about. And where there is clearly a substantial risk, athletes have injuries. It's a ubiquitous aspect of athletic competition is injuries. And a lot of energy is devoted to training athletes how to avoid injury to themselves and other people in the‑‑on the playing field. And drug use is‑‑undermines that. Drug use takes away the protections that exist, not only for the individual himself, but for the other people with whom he shares that practice field.

Q. Are you generally familiar with the types of [51] athletic injuries that are common in middle schools and high school interscholastic sports?

A. Yes, I am. And I think it's important to know that those are the major‑‑by far the biggest amount of injuries‑‑largest amount of injuries related to sports, because so many more people are involved in the middle school and high school athletics.

If you're talking about sport safety, where the action is is not at the professional or the college level but it's at the middle school and the high school. The intensity is very high. The training is much less than it is at the college and professional level, and the numbers of people involved, including the injuries, are so much greater. So I think if one is concerned about reducing injuries in sports generally, and I think everybody in sports medicine is, the action is in the middle school and high school population.

Q. How would drug use affect a student athlete's perception of an injury he or she may have sustained out on the volleyball court, for instance?

A. The person is very likely to play even with the injury and be oblivious of it, if the person is impaired with drug‑‑by drug use.

[52] Q. Are there other effects, for instance, of cocaine or amphetamines that an athlete who is engaged in some activity at a high level should be concerned about?

A. Other‑‑say that again.

*72a Q. Are there other‑‑what are other possible effects of cocaine use on an athlete‑‑

A. Oh.

Q. ‑‑who's engaging in a strenuous activity?

A. Remember I was talking about the Len Bias example. He wasn't on the athletic field when he died, but that would be an example of the sort of thing. Cocaine, in particular, because of its effect on the heart, has an unpredictable effect, and it does raise a substantial risk for cardiac arrest for‑‑and a fatal arrhythmia. So that cocaine in particular is a risk, not just in terms of playing through pain or not attending to the training that the person has, but also in terms of the heart danger because the athletics itself often raises‑‑I mean, does always raise the heart rate in competitive athletics to high levels. And you add to that the unpredictable effect of cocaine and you have a very dangerous combination.

Q. If a student has used cocaine while [53] participating in an athletic event, for instance, a handful of times, does that necessarily mean that that student will always‑‑will not encounter any negative effect?

A. No. It could be very unpredictable. It can be the tenth time or the hundredth time that the person has a problem. It doesn't happen right away. In fact, in general, if drug problems happened earlier and more predictably, we wouldn't have the drug use that we do in this society. The way it happens is a delay with respect to any individual, uncertain expression of the negative consequence, and that permits the denial to go on, and that's one of the major factors that perpetuates the drug addiction.

Q. Are these risks associated with drug use for interscholastic student athletes greater than for those students participating in a P.E. class?

A. Well, the level of intensity is enormously different in the typical interscholastic competition from the P.E. class. I think they're in the same family, but the relative risks are very different in terms of the‑‑in terms of *73a the intensity, the speed, the effort. The duration of the effort is much greater in interscholastic than it is in a P.E. [54] class.

* * * *

[55] Q. In your opinion if a student athlete tests positive for the presence of cocaine, marijuana or amphetamines, is that student under substantial risk of injury to him or herself or to others?

A. Yes, I believe that student is.

MR. POWELL: Sure. Why don't we take a break for about five minutes.

(Recess.)

MR. POWELL: Back on the record.

Q. By MR. POWELL: Doctor, is it the impairment [56] effects that make students who are testing positive for drugs at a greater risk than other students?

A. Yes.

Q. And can you just briefly summarize what those impairment effects are?

A. The main effects have to do with the fact that the student is distracted by what's going on in his or her brain from the drug use. So it has to do with not attending well to whatever else it is that's going on. So it's kind of a distraction problem. But also there are specific problems that happen; for example, the dulling of pain, the difficulty of judging time and distance properly, memory impairments where the person has trouble recalling directions and has trouble recalling and using training. It has to do with risk‑taking where a person is prepared to put himself or herself at added risk. So there's a very broad range of impairments that are related to drug use that directly lead to increased risk of accidents in all settings, including student athletics.

Q. Doctor, in your opinion, are there substitutes for drug testing by urinalysis to detect drug impairment among high school student athletes?

A. Well, there has been a very large effort [57] made to find suitable impairment tests. And the basic reasoning *74a for this is to find some kind of a screening test that would be the equivalent of the roadside sobriety test to establish probable cause or a reasonable basis for a drug test. So there's been a lot of effort made to look for those sorts of tests. It's a major funding area of the National Institute on Drug Abuse. The simple summary of the report of that work is that, with some interesting exceptions, it has not proven to be of any value. In fact, it actually creates problems when these sorts of tests are introduced, because the tests are not well correlated with drug use or drug‑caused impairment; they both under identify drug problems and over identify other problems. So that they end up missing large numbers of people who have drug‑caused impairment, and they include people who have no impairment whatsoever in them. They're also extremely subject to subversion. The simple thing that is done with these tests is for the drug users to learn ways to get very low baselines on the tests, and then when they're retested, they don't‑‑even when they're very impaired they still past the test.

So we could talk in some detail‑‑I don't know how much detail you want to get. But the bottom [58] line is that in no setting is there an impairment test of any kind. People talk about the rapid‑eye movement test, for example, computer‑ assisted testing, as well as simpler kind of tests like hand/eye coordination and other kinds of things, and none of these have proved useful in any setting whatsoever as an alternative to the drug test. So in every setting where there's a concern about safety, the drug test is the test that is used.

One other things I should say about some of the tests, the one from the Los Angeles Police Department, which is probably the best of the performance tests, takes 45 minutes for each person. You think about what that means. That means that it takes a trained individual 45 minutes to assess impairment of a single person. Well, that obviously makes it totally unsuitable for any kind of screening purpose. And its application, outside of a *75a very narrow one in law enforcement, even if it worked, would be‑‑it would be irrelevant.

* * * *

[71]

EXAMINATION

BY MR. CHRIST:

Q. Doctor, have you been to Vernonia?

A. No, I have not.

Q. So you have no firsthand knowledge of the extent of the alleged drug problem there, do you?

A. I do not.

Q. Likewise, you have no firsthand knowledge of the affects of the school's drug testing policy on students there, do you?

A. I do not.

Q. You've never met my client, have you?

A. I have not.

Q. So you have no idea how this policy is affecting my client?

A. I do not. That's correct.

Q. Wouldn't you agree that some risk of injury is inherent in all sports?

A. Oh, yes, sir.

Q. I think you testified that the risk of injury to the athlete or his opponent increases if the athlete is under the influence of illicit drugs; is that correct?

A. Yes, sir.

Q. Wouldn't you agree that the degree of risk [72] depends upon the sport?

A. That's one of the factors.

Q. And the risk would be greater for, say, a contact sport such as football than a non‑contact sport such as volleyball, cross‑country or track?

A. Correct.

Q. Wouldn't you agree that the risk of injury to your opponent is negligible in a non‑contact sport?

A. In general, I think that that's true, yes. Volleyball you're only on your side of the net.

*76a Q. And the risk of injury would be diminished to the athlete himself in a non‑contact sport, too?

A. That's right.

Q. Do you know what sports the Vernonia School District offers?

A. I think a fairly broad range, but I don't know exactly which sports.

Q. Well, you say "a broad range." Tell me what sports you think they offer.

A. Basketball, baseball, football, volleyball, track, would be what I would assume, and maybe some others. I don't think they have hockey, for example.

Q. But you don't know for sure what sports they offer?

[73] A. No.

Q. I take it you're a proponent of random drug testing?

A. That's correct.

Q. In fact you advocate random drug testing for everyone, don't you?

A. Well, as much as I can sell it.

Q. Okay. For every segment of the population?

A. Yes, sir.

Q. You've written articles in favor of universal random drug testing?

A. That's correct.

Q. And you believe in that proposition, I take it?

A. I do.

Q. Have you written any papers on the particular subject of illegal drugs in grade school or high school athletics?

A. No, I have not.

Q. You haven't conducted any research on that particular subject, have you?

A. No, I have not.

Q. Are you aware of any one who has?

A. No, I'm not.

*77a Q. I think you testified, if I heard correctly, [74] that the incidents of illicit drug use by grade school and high school students has declined in recent years?

A. Yes, sir.

Q. From a high in the mid‑1970s; is that correct?

A. Yes.

Q. That's the national trend?

A. Yes, sir.

Q. And the Oregon trend corresponds?

A. Yes, that's correct.

Q. And you attributed the decline to greater student awareness of the ill effects of drugs?

A. Two factors. That is one, and the other is the decreased tolerance for drug use.

Q. And greater student awareness comes about through education and counseling, doesn't it?

A. Well, a lot of things. I think Len Bias‑‑for example. The biggest increase we ever had in perception of risk was between '86 and '87 for the drug cocaine.

Q. Now, you mentioned Len Bias. He was a basketball player, wasn't he?

A. Yes, sir.

Q. At the University of Maryland?

[75] A. Yep.

Q. He didn't die on the basketball floor, did he?

A. No, he didn't. He died in a dormitory though.

Q. And the cause of his death, do you know?

A. Yes. Cocaine use. It stopped his heart.

Q. Was that due to one large dose or‑‑

A. He'd been using it all through an evening. I don't know how many doses. It wasn't just one though. He died at about 5:00 a.m., to my recollection.

Q. I think you spoke about a perceived progression of drug use among school children.

A. Yes, sir, a stepping‑stone hypothesis is what it's called.

*78a Q. That's what we used to refer to as leading to harder drugs?

A. Yes.

Q. That progression is not inexorable, is it?

A. No, that's right. A lot of people don't go to the next step, but each of those steps, and it depends on which step it is, what the percentage is, but many people do not go to the next step.

* * * *

*79a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title Omitted in Printing)

EXCERPTS OF PLAINTIFFS' TRIAL EXHIBIT 4‑‑DEFENDANT'S RESPONSE TO PLAINTIFFS'

INTERROGATORIES TO DEFENDANT

Defendant Veronia School District hereby responds to Plaintiffs' Interrogatories to Defendant as follows:

INTERROGATORY NO. 1: Has any student been injured while under the influence of drugs in participating in a district‑sponsored athletic event? (For each injury, please identify the student who was injured, the date of injury, the sport in which the injury occurred, and the name of the coach who was supervising the sport at the time of the injury?) [sic.]

RESPONSE:

The District has reason to believe that a student was injured while under the influence of drugs while participating in a District‑sponsored athletic event, although this was not confirmed through tests. This incident occurred in February 1989 in a wrestling match under Coach Ron Svensen. The student name will not be released as it would result in a violation of the Family Education and Privacy Rights Act (20 U.S.C. s 1232g and ORS 336.195.

INTERROGATORY NO. 2: Has any student caused an injury to another student while the first was under the influence of drugs in participating in a district‑ sponsored athletic event? (For each injury, please identify the *80a student who was injured, the date of injury, the sport in which the injury occurred, the name of the coach who was supervising the sport at the time of the injury?) [sic.]

RESPONSE: The District has not been able to confirm through tests or through any other means that any student has caused an injury to another student while the first was under the influence of drugs while participating in a District‑ sponsored athletic event.

INTERROGATORY NO. 3: Does defendant suspect James Acton of taking drugs? (If so, please specify in detail why it suspects him of taking drugs.)

RESPONSE: No.

* * * *

*81a IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

(Title Omitted in Printing)

PARTIAL TRANSCRIPT OF PLAINTIFFS' TRIAL EXHIBIT 5‑‑Deposition of Ellis Mason,

Superintendent of Vernonia School District

* * * *

[7] Q. Do you know what percentage of your students participate in a sports program?

A. No.

Q. Do you have any way of finding out?

A. Sure.

Q. How would you do that?

A. I would ask the building principals to give me a list.

Q. Are you required by state law to offer sports?

A. No.

Q. Do you think participation in sports is an important part of the school experience?

A. Yes.

Q. Does your curriculum included physical education?

A. Yes.

Q. At what grade levels?

A. I believe it starts at kindergarten, K through 8 is required, and we have two required units at the high school.

Q. Then is it an elective beyond those two units?

A. Yeah.

Q. What I mean by that, if a students wants more P.E. they could?

A. If it was available. I am not sure spacewise how much of it is available.

*82a [8] Q. In the P.E. classes do students play some of the sports you previously mentioned?

A. Yes.

Q. Do you require drug testing as a condition of participating in P.E.?

A. No.

Q. Do some of your students drive cars to school?

A. Yes.

Q. Do you have district regulations regarding driving cars to school?

A. I don't believe so.

Q. Do the students who drive cars include both athletes and non‑athletes?

A. Yes.

Q. Do some of your students take illegal drugs?

A. I don't know that.

Q. Have you tried to find out?

A. Have I tried to find out? I don't understand.

Q. Have you done anything to try, other than mandatory drug testing, to ascertain whether any of your students are taking drugs illegally?

A. Yes, we have.

Q. What have you done?

A. I believe it was in the fall of 1990 we had a police officer, state police officer, come into the district [9] and train some of the administrators in drug detection, and I believe it was using what they term the Rapid Eye Movement Test.

* * * *

[12] Q. Were the surveys anonymous?

A. Yes, I believe so. To‑‑

MR. POWELL: There is not a question pending. Do you need to clarify your answer?

A. Yes. I think another aspect of what you may or may not be asking is a fact that we have a drug and alcohol program which we do for all the kids. We are required by law to do that. In terms of teaching kids *83a about the use of drugs and those type of things if that is‑‑I don't know if that is what you are leading at, but we have that program in place.

Q. I will get to that in a moment. What I want to know now is what steps you have undertaken to ascertain that you have a problem. You have described these surveys. Other than the surveys, what have you done?

A. The staff have gone to the building administrators, the building principals, with concerns about things the kids were telling them, observations they have had. Those were not things that, quote, we have done per se, but they have occurred.

Q. Since the fall of 1989 have you determined that any particular student has taken illegal drugs?

A. Yes.

Q. More than one student?

A. I am not sure we have. I believe two confirmed [13] positive‑‑no‑‑yeah, maybe two confirmed positive.

Q. Were those students disciplined?

A. No.

Q. What did you do with those students?

A. According to our policy, the student was given an option of continuing to participate in the sports program, undergoing a weekly urinalysis and getting some type of drug or alcohol counseling, drug counseling. The student chose to do that in one case.

In another case a student came up positive on the first test and refused to take the second test and quit the program voluntarily.

MR. POWELL: I am going to make a quite belated objection, but I took this last series of questions to mean talking about determining drug use through the drug testing program as opposed to other instances where a student may have been caught with drugs or what have you. So to that extent I thought the question was vague, and that is the way I perceived Mr. Mason's answers through that last series. I don't know if you want to clarify that.

*84a Q. I see the confusion. Let's go back over that. Other than through the mandatory drug testing policy, have [14] you determined that any particular students have used drugs illegally?

A. There have been students who have admitted that they have used drugs. And I am not aware that we have ever determined it outside of our drug program.

Q. Through the drug testing program you have determined that two particular students have used drugs?

A. I believe that is correct, yes.

Q. Do you know what percentage of students who play sports take drugs illegally?

A. No.

Q. Have you made any effort to determine that other than through the drug testing program?

A. No.

Q. Do you have any reason to believe that a greater percentage of athletes, student athletes, take drugs than students generally?

A. I think student athletes have reasons to take drugs which other students don't. Whether it is more than or less, I don't know.

Q. What would be those reasons?

A. Well, you get pumped up for a game, play with pain or eliminate pain so they could play.

Q. Do some of your students smoke tobacco?

A. Yes.

* * * *

[21] Q. Do you know if any students avoid random testing entirely for a year?

A. I don't know that. It is mathematically possible.

Q. So there is no guarantee that any particular student will be tested at least once during the year?

A. Yes, they are all tested at least once.

Q. At the first test at the start of the year?

A. Correct.

*85a Q. Now, you said the start of the year. Do you mean the start of the sport season or the start of the academic year?

A. As an example, if a student plays football, which occurs in the fall, they get tested at the first of the academic year, or first of the season. If that same student plays basketball, they are not retested at the beginning of the season. If a new student comes out who has not participated in the fall and comes out for a winter program, they are tested.

Q. The testing is by urinalysis, correct?

A. That is correct.

Q. How is the urine specimen obtained?

A. The students urinate either into a cup or a vial of some sort.

* * * *

[24] Q. Do you know how many tests you do in a year?

A. No.

Q. I believe you said there have only been two positive results since you began.

A. Only two that I believe we have confirmed positive. That is to the best of my recollection.

Q. Do you know what grades those students were in?

A. I believe they were high school students.

MR. CHRIST: Why don't we take a break for a minute and I will see if I have anything else for you.

[Break].

[Student Athlete Drug Policy, EXB. 1, marked]

[Logger Handbook 1991‑1992, EXB. 2, marked]

[Memo dated 10‑4‑89, EXB. 3, marked]

[Student Survey on Fall Sports, EXB. 4, marked].

Q. Mr. Mason, you have listed some of the drugs that you test for, not including marijuana. Do you test for marijuana, in fact?

A. Yes, we do.

*86a Q. Do you test for steroids?

A. No.

Q. Do you test for any performance enhancing drugs, such as steroids?

[25] A. Not that I am aware‑‑I don't know in terms of the physical manifestations of the drugs we test for whether they would be considered performance enhancing.

Q. Drugs specifically designed to enhance athletic performance as opposed to a drug that a particular student might perceive as enhancing his or her performance.

A. The only drug that I am aware of that would be classified as that would be steroids, and we don't test for steroids.

Q. I would like you to identify some exhibits, if you would, please. I am handing you Exhb. No. 1. Do you recognize that?

A. Yes.

Q. Can you tell me what that is, please.

A. This is a Student Athlete Drug Policy.

Q. Is that the current policy of your drug testing policy?

A. Yes, I believe so. Yes.