WA high court says random school drug testing unconstitutional

A fractured state Supreme Court has ruled that random drug testing of student athletes is unconstitutional, finding that each has "a genuine and fundamental privacy interest in controlling his or her own bodily functions."

The court ruled unanimously Thursday in favor of parents and students in the lower Columbia River town of Cathlamet who opposed the tiny Wahkiakum School District's policy of random urine tests of middle school and high school student athletes, but some justices said random tests could be justified under different circumstances.

At least one other school district immediately suspended random drug tests in response to the ruling.

The high court wrote, "We can conceive of no way to draw a principled line permitting drug testing only student athletes."

"If we were to allow random drug testing here, what prevents school districts from either later drug testing students participating in any extracurricular activities, as federal courts now allow, or testing the entire student population?" Justice Richard Sanders wrote for the court's plurality. Joining him were Chief Justice Gerry Alexander and Justices Susan Owens and Tom Chambers.

Two families with high school students sued the district. Wahkiakum County Superior Court Judge Douglas Goelz ruled in 2006 that testing students was reasonable after less-intrusive methods failed to address the drug threat. The case was appealed directly to the state Supreme Court.

The American Civil Liberties Union of Washington represented the parents. ACLU spokesman Doug Honig said the case was precedent-setting for the state, and "as a result of this ruling we don't expect to see other districts pursuing suspicionless testing programs."

However, the nine-member court was split on whether the plurality ruling was too sweeping. There were three separate concurrences, and at least one justice said random suspicionless drug testing would be OK under "carefully defined circumstances."

Fred Johnson, a lawyer for the school district, said that while the court offered a clear ruling on the school district's policy, the wider impact was less clear.

"We didn't seem to receive a clear test that will guide policy makers in the future as to what is the standard," he said. "If the Supreme Court justices can't really decide on the test, it's extremely difficult for attorneys and clients to determine what is the test to have a valid program or policy."

Random testing was suspended Thursday in the Lake Stevens School district east of Everett pending a review by the district's lawyer.

"On first blush, it looks like this ruling would impact our programs and we'd have to stop our random drug testing programs for grades nine to 12," district spokeswoman Arlene Hulten told The Herald of Everett.

She said that since the program was instituted on Oct. 9, 2006, following a few high-profile incidents involving students and drugs, 500 students had submitted urine samples and 10 had tested positive.

"They make different choices when they are in social settings because they don't want to risk not playing on the team or disappointing their coaches," Hulten said. "It's been extremely powerful and extremely helpful in helping kids make good decisions."

The sticking point between the ruling by Sanders and a concurrence written by Justice Barbara Madsen was over a "special needs exception" as in federal law, which would allow random searches in some circumstances.

Sanders' ruling said there is no need to create that type of exception in Washington law.

"Simply passing muster under the federal constitution does not ensure the survival of the school district's policy under our state constitution," Sanders wrote.

"In the context of randomly drug testing student athletes, we see no reason to invent such a broad exception to the warrant requirement as such an alleged exception cannot be found in the common law," he wrote.

Madsen, joined by Justices Charles Johnson, Mary Fairhurst and Justice Pro Tem Bobbe Bridge said a narrowly drawn special needs exception would be consistent with Washington law.

In the end, however, she agreed with the result reached by Sanders' ruling because "there is no special need that justifies suspicionless drug testing of Wahkiakum School District's student athletes."

"In particular, the school district has failed to show that a suspicion-based regime of drug testing is inadequate to achieve its legitimate objectives," Madsen wrote.

Madsen also said that even if the district could demonstrate a suspicion-based testing program wouldn't work, "the balance of interests at stake weighs against allowing suspicionless drug testing, taking into account the student's privacy interest, the nature of the intrusion, and its limited efficacy as compared with a search regime based on individualized suspicion."

Madsen wrote that if there is not an observable drug problem in the school, "the school's interest in detecting drug use does not justify nonconsensual drug testing."

She wrote that if drug use is a problem, then schools have the individualized suspicion necessary to require a drug test.

"Thus, it is difficult to see how a suspicionless drug testing program is necessary," she wrote.

Justice Jim Johnson wrote in a separate concurrence that a student's right to privacy is "not absolute and thus not all drug testing programs are invalid."

"Under carefully defined circumstances, a random suspicionless drug testing program for high school student athletes, in my opinion, might also be implemented that will meet applicable constitutional requirements," he wrote, noting that the Legislature might want to consider such a program.

The district started random testing of student athletes' urine in October 1999. Positive tests can get a student suspended from a team.

Chambers, who signed Sanders' ruling, also wrote a separate concurrence in which he noted that "a majority of my colleagues has found a greater privacy interest in a person's urine than they recently found in a person's saliva and the DNA ... it contains."

He was referring to previous cases, including a ruling last year in which the court found that privacy laws weren't violated by police who obtained a murder suspect's DNA by tricking him into licking an envelope.

"I find the juxtaposition of these two opinions paradoxical," he wrote.

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The state case is Hans York et al v. Wahkiakum School District, No. 78946-1.

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Supreme Court: http://www.courts.wa.gov