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When a divided New Jersey appellate court on Aug. 12 approved random drug and alcohol testing of public school students involved in extracurricular activities, it was clearly just an early skirmish in what is certain to be a protracted legal battle of constitutional dimension. Attorneys on both sides say an appeal is guaranteed and that oral arguments may be expedited because of the school board’s desire to implement the testing program as quickly as possible. The case, Joye v. Hunterdon Regional High School Board of Education, A-3017-00T2, raises a pristine question for the justices: whether New Jersey’s constitutional protections, which are often more broadly construed than their federal counterparts, will override public policy in favor of drug abuse prevention. Following a U.S. Supreme Court precedent announced this spring, the Appellate Division ruled 2-1 that school officials need no suspicion to undertake the drug tests because the tests are conditions students voluntarily accept when they decide to participate in the activities. Thus, there is a lessened expectation of privacy and the searches do not need to pass constitutional muster. But this is only the first incarnation of student drug testing the state courts have ruled on. While the Hunterdon district’s program is narrowly drawn, covering only extracurricular activities and on-campus parking, there’s no telling how extensively other districts might apply the ruling. And other districts are watching the case with interest. “I would imagine that there are a lot of other districts out there that will adopt similar programs if Hunterdon’s is upheld,” says the board’s attorney, Kevin Kovacs, a partner at Bedminster, N.J.’s Purcell, Ries, Shannon, Mulcahy & O’Neill. The Hunterdon regional board adopted the policy in 2000. Students who participated in extracurricular activities or parked on campus could be selected to take a drug or alcohol test. They would be taken to a local health office where, in private, they would urinate into a cup. The samples would be tested to see whether they were altered. Any student who tested positive would then undergo counseling. Plaintiffs’ attorney John Salyer says the program would apply to about 80 percent of the school’s approximately 2,500 students. Students who participated in no extracurricular activities and who did not park on campus would not be subject to testing, since school attendance is mandatory and not elective. The parents of three students — Shawn Joye, Melissa Greiner and Anna Zdepski — nevertheless challenged the requirement as a violation of the right to privacy under the federal and state constitutions. In January 2001, Somerset County Assignment Judge Robert Guterl ruled in their favor, declaring that the program violated Article I, par. 7 of the New Jersey Constitution’s ban on unreasonable searches. In the Aug. 12 reversal, Appellate Division Judges Edwin Stern and Donald Collester Jr. relied heavily on a June U.S. Supreme Court ruling that upheld a similar program at an Oklahoma public school. In Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 122 S. Ct. 2559 (2002), the justices said such random, suspicionless tests did not violate the U.S. Constitution’s Fourth Amendment ban on unreasonable searches. Stern quoted Justice Clarence Thomas, author of the majority opinion, who wrote that the policy “is a reasonable means of furthering the School District’s important interest in preventing and deterring drug use among its schoolchildren,” and added that there was a reduced expectation of privacy among students in a school setting. “A reading of the majority and dissenting opinions in Earls leaves no room for debate about the breadth or scope of the United States Supreme Court’s opinion or the validity of the Hunterdon Central drug testing program under the Federal Constitution,” wrote Stern. ” … [T]he real issue before us, as we see it, is whether there is a basis for reaching a different result under our State Constitution.” Despite the state supreme court’s history of offering greater protections under the state constitution than the U.S. Constitution, Stern and Donald Collester Jr. found the Hunterdon Central program did not violate Article I, par. 7. “[W]e are not dealing with a criminal matter or a traditional search and seizure issue resulting in suppression of evidence obtained for use in a criminal trial,” wrote Stern. “The fact of the matter is that there was no epidemic of controlled dangerous substances of the type about which our society is now concerned at the time that the Fourth Amendment or the forerunner of our Article I, par. 7 was adopted. … [W]e see nothing in the history or background of the State Constitution to warrant a different interpretation on this question, at least when it comes to the legitimate expectation of privacy among school children.” Stern also noted that New Jersey’s courts have tended to follow the lead of the U.S. Supreme Court on the issue of drug and alcohol testing. He cited N.J. Transit PBA Local 304 v. N.J. Transit Corp., 151 N.J. 531 (1997), which adopted the federal “special needs” standard for testing. “Thus, in the absence of any support in the history, language or intent of our Constitutional drafters, we find no basis for concluding that the State Constitution warrants a different approach than that taken by the United States Supreme Court with respect to the question of drug testing in the public schools under the Fourth Amendment,” he said. Stern and Collester, however, did not say that Hunterdon Center officials could immediately implement their program. Rather, they remanded the case to the trial level to determine whether the district has the authority to conduct testing programs in the absence of legislative authority or statewide standards. “We merely hold that the Hunterdon Central school board’s decision is not unconstitutional … ” Stern wrote. The sole dissenter, Judge Naomi Eichen, described Guterl’s ruling as “well-reasoned, thoughtful, and comprehensive.” She added that “the targeted students had an undiminished privacy expectation in their excretory functions and that in the absence of any showing of a particularized special need for the testing, Hunterdon’s random drug testing program is unreasonable and therefore violates Article I, Paragraph 7 of the New Jersey Constitution.” The majority, said Eichen, incorrectly believed that it was bound by Earls and that there is nothing in the state constitution that would allow it to interpret the constitutionality of the random testing program differently from the U.S. Supreme Court. “Despite the lessened expectation of privacy afforded school children under the United States Constitution, New Jersey has a long tradition requiring some quantum of individualized suspicion as a prerequisite to a constitutional search and seizure,” said Eichen. Eichen also quoted U.S. Supreme Court Justice Ruth Bader Ginsberg’s dissent in Earls. Ginsberg said, ” … the desire to augment communication of this [anti-drug] message [should] not trump the right of persons — even of children within the schoolhouse gate — to be ‘secure in their persons … against unreasonable searches and seizures.’ “ Salyer, counsel to the New Jersey chapter of the American Civil Liberties Union, says he is a bit more optimistic about his chances before the state supreme court. The school, says Salyer, showed there was no particular reason to single out those who participate in extracurricular activities in its efforts to target drug and alcohol use. “There was no correlation between the two,” he says.

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