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A school district cannot selectively enforce drug testing of students who are involved in extracurricular activities or seek driving and parking privileges, a split en banc Pennsylvania Commonwealth Court has ruled in a case of first impression. “In the present case, the school district promulgated its sweeping policy to conduct selective searches without articulating a single reason why the specific group it chose required testing over that of the general school population,” Judge Dan Pellegrini wrote for the majority in Theodore v. The Delaware Valley School District. Wrote Pellegrini: “Absent a showing of special need or justification, [the school's policy] invades a student’s privacy rights against unreasonable searches and seizures under Article I, Section 8 of the Pennsylvania Constitution.” The decision vacated part of a Pike County Court of Common Pleas judge’s decision. The appeals court affirmed the part of the lower court’s decision dismissing claims based on rights and privacy interests of the student’s parents. Judge Rochelle Friedman filed a separate concurring opinion. Judge Bonnie Brigance Leadbetter led the dissent, joined by President Judge Joseph T. Doyle and Judge Bernard L. McGinley. Louis and Mary Ellen Theodore and their daughters Jennifer Lynn and Kimberly Ann appealed the decision from the lower court that granted preliminary objections from the Delaware Valley School District and subsequently dismissed the lawsuit. New York attorney Robert N. Isseks represents the Theodores and said that, although he doesn’t have first-hand knowledge, he believes that drug-testing policies similar to Delaware Valley’s have become “more popular.” He said the decision is significant because “it makes it clear that school districts may not conduct these drug testing programs without articulating a special need or justification for the program.” York, Pa., lawyer Stephen S. Russell, who represents the school district, wasn’t able to comment on the decision. TESTING The policy involved is the school district’s Policy 227, “Drug Testing and Alcohol Testing for Extracurricular Participation, Driving and Parking Permit Privileges.” Under the policy, any student who wishes to participate in an extracurricular activity or get permission to drive to school or park there has to consent to alcohol and drug testing. The school district says the purpose of the policy is the “health care of students.” The consent contract allows the students to be tested through breath, urine or blood tests. There are five types of testing provided for under the policy: initial testing to participate in an activity, random testing, reasonable suspicion testing, return-to-activity testing, and follow-up testing. If a student tests positive, the student and his or her parents are notified. A student can then opt out of the activity and nothing will happen to him or her. However, if the student decides not to opt out, the principal and several school officials are notified. The student then has to undergo a drug/alcohol assessment with a certified evaluator. If a student tests positive for the first time, he or she has to also participate in a drug/alcohol assistance program and undergo weekly drug testing for six weeks. The student can’t participate in the activity until a negative result is achieved. A student who twice tests positive gives up all privileges for a calendar year, and someone who tests positive three times is forbidden to participate in extracurricular activities or receive driving privileges for the remainder of the time in the school district. A student can be suspended or expelled from activities, but not from school, for positive test results. Positive results also cannot have negative academic effects on a student, be recorded in any academic records, or be forwarded to criminal authorities without a valid subpoena. The Theodore girls were involved in extracurricular activities including National Honor Society, Scholastic Bowl, tennis, swimming and track. Both students also requested driving privileges. The students and their parents filed the lawsuit asserting that the testing policy was selective rather than a generalized search of the entire student body. The students alleged that the testing was a violation of privacy and was unconstitutional under the state constitution. The trial court, however, sided with the school district, ruling that the students have a “reduced expectation of privacy when engaging in voluntary activities” under school control and that the school district was acting in its role as guardian. The students appealed and made the same arguments to the Commonwealth Court. CONSTITUTIONALITY Article I, Section 8 of the state constitution provides that people should be free from unlawful search and seizure of their “persons, houses, papers and possessions.” The state law affords greater protection than the Fourth Amendment to the U.S. Constitution. The court noted that case law provides that students do not have “unlimited” rights to privacy. The court relied heavily on the U.S. Supreme Court’s decision in Vernonia School District 47J v. Acton. The school district in Vernonia authorized random drug testing of students participating in athletic activities. After a trial on the constitutionality of the policy, the U.S. Supreme Court said the students’ privacy interests were outweighed by the school’s concern with keeping drugs out of the school. Student athletes have an even lesser expectation of privacy, the court found, considering that they voluntarily share shower and locker rooms at the school. Next, the court said there was minimal intrusion by the school’s method of urine testing and its disclosure of test results to a strictly limited group of people. Since drug use was a significantly increasing problem at the school, the court said, the testing policy was not unreasonable. The Theodore court also made note of the Pennsylvania Supreme Court’s decision in In re F.B., where the high court said a “point-of-entry” search for weapons at a school was constitutional. The court said Vernonia would have passed constitutional muster under a Pennsylvania state constitutional analysis and that F.B. was in accordance with the Vernonia decision. Pellegrini then said in light of those rulings, “the standard then appears to be no different if the search is only of a specific group of students or all students or the search has civil or criminal consequences, but only that in examining the special need to search that specific group there must be articulated a specific reason that only that group is being searched.” The court said it had some doubts concerning several federal circuits’ “expansive readings” of Vernonia. Pellegrini also said the court disagreed with the school district’s reasoning that because a student’s participation in an extracurricular activity is voluntary, the school district can institute the testing policy “just because those activities are optional.” Pellegrini said, however, that the court believed the methods of testing are “minimally intrusive.” But the court ultimately ruled that the school district could not selectively test those students who seek voluntary activities and privileges. The majority said that despite its ruling in Theodore, it recognized that there are certain extracurricular activities where selective testing would not violate the constitution, such as in Vernonia. “To carry out the health care analogy, it would be as if the school district was offering a polio vaccine only to those students engaged in extracurricular activities and having driving/parking privileges, without expressing a need as to why those students are more likely to contract polio or more likely to cause the spread of the disease than any other selective group of students,” Pellegrini said. The court thus reinstated the claims made by the students and remanded the matter for further consideration. But the majority affirmed part of the lower court’s opinion dismissing the parents’ claims that their right to privacy is violated by the district’s policy of disclosing test results to others and that the policy’s mandatory-counseling provision for students who test positive infringes on their right to make fundamental decisions about their children’s health care. The court found that under the policy, “whether the information is disclosed or whether there is counseling is always at the parents’ option.” DIFFERING OPINIONS In her concurring opinion, Friedman set forth a lengthy analysis of why she differed from the majority’s reasoning. “At this point in the proceedings, I can conclude only that: (1) the students’ privacy interest in their person might not be minimal; (2) the collection of a urine sample under Policy 227 might not be minimally intrusive; (3) the school district’s notice to students is insufficient under In re F.B.; (4) the school district has shown no special need to search only students participating in extracurricular activities and students with driving privileges …” Friedman said she, too, would reverse and remand on the students’ rights issue. As for the parents, she said she did not believe their claim to be “ripe” for discussion. In her brief dissenting opinion, Leadbetter said she agreed with “virtually all of” the majority’s reasoning. However, she said she thought the majority engaged in an equal protection analysis sua sponte. “Because the district tests only certain students, the majority requires that the district identify an independent governmental interest justifying their selection of the students to be tested,” Leadbetter wrote. “This requirement has nothing to do with the privacy issue before the court.”

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