WA high court says random school drug testing unconstitutional

Other states allow it. The U.S. Constitution allows it. But the Washington Supreme Court said today that random drug testing of student athletes is not allowed under the state constitution.

The decision involved athletes who sued the Wahkiakum School District in 1999 after the district began requiring students to undergo urine tests if they wanted to participate in sports. If the tests indicated drug or alcohol use, the student was suspended from sports but wasn't reported to police.

At the time, officials in the Southwest Washington school district felt there was a real problem with student drug use, including use among athletes. Public surveys named youth substance abuse as the No. 1 problem there. That's not enough to allow drug testing of a student when there's no reason to suspect he or she is using drugs, the court ruled unanimously.

"The justices concluded, as we had contended, that it violates the state Constitution to require a student to give their urine without any reason to believe they've done anything wrong," said Doug Honig, a spokesman for the ACLU of Washington, which represented the students and their parents.

The ruling does not bar searches of particular student if there is a suspicion that he or she is using drugs.

A message left with the district's lawyer this morning was not returned.

The district, along with the state Attorney General's Office, argued that Washington law should follow the federal law.

While the U.S. Supreme Court has noted that the Fourth Amendment to the U.S. Constitution generally prohibits random or suspicionless searches, including drug tests, it also permits such searches if circumstances present "special needs."

In a case out of Vernonia, Ore., the court ruled that testing student athletes for drugs, even without a particular suspicion, was permitted under the U.S. Constitution because of a school's interest in students' well-being. In addition, they ruled that random testing caused fewer problems than testing based on suspicion, which would single students out. In another case, the court ruled that students who participated in other extracurricular activities could also be randomly tested.

But the Washington Constitution is different from the federal one.

Article I Section 7 reads "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." That "authority of law" was lacking in the Wahkiakum searches, the state Supreme Court ruled. (It's also why drunk-driving roadblocks are not permitted in this state.)

In addition, the four-justice plurality concluded the Washington Constitution prohibits a "special needs" exception that is allows under federal law.

"A student athlete has a genuine and fundamental privacy interest in controlling his or her own bodily functions," the court ruled, "even if done in an enclosed stall, this is a significant intrusion on a student's fundamental right of privacy."

To rule otherwise, the court concluded, would open the door to random drug tests for other extracurricular activities, and even for the entire student body. While a number of other school districts have considered random drug testing over the years, only a handful have such programs in place. The ACLU's Honig said that's because such policies often draw opposition from parents and because drug testing can be expensive.

The Burlington-Edison School District in Skagit County has conducted drug and alcohol testing for more than 10 years. Students who participate in sports or extracurricular activities are tested once a year, and random checks are done on a monthly basis.

Beth VanderVeen, principal at Burlington-Edison High, said the policy has been effective. She sees it as a way to help more students say no to drugs and alcohol.

"Our intent is to try to get kids help, to try to help them make good choices," VanderVeen said.

Arlene Hulten, spokeswoman for the Lake Stevens district, said suspensions and expulsions related to drugs and alcohol have gone down since the high school began random tests of students involved in extracurricular activities. From 2005-06 to 2006-07, for example, she said the decrease was 20 percent. The district received a four-year, $587,000 grant from the U.S. Department of Education that covers the costs of testing.

The district has tested about 500 students over the past two years, Hulten said, and about 10 have tested positive for drugs or alcohol.

If the testing can't continue, then "we'll have to put our heads together and take a look at what we can do to help kids make good decisions," Hulten said. "

Seattle Times staff reporters Linda Shaw and Tom Wyrwich contributed to this report.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com