Midwest Education Law

A recent post on this blog highlighted the vulnerability of certain drug testing policies when reviewed under state law.  California has now provided another example of a policy failing to pass muster under requirements of a state constitution.  Specifically, the California Court of Appeals unanimously upheld a lower court's order prohibiting enforcement of a student drug testing policy.  Click here to review the opinion.  The policy purported to cover any student participating in so-called "competitive representational activities."  Those activities included traditional extracurricular athletics, as well as certain mandated curricular or co-curricular activities.  The court questioned the effectiveness of testing in this context and also questioned the need to target these particular students for testing.  Balancing these concerns against the students' privacy interests, the court found that the students were likely to prevail on their claims against the school district. 

Although this policy can be distinguished from others based on its broad scope, the case provides a good reminder that drug testing is a sensitive area for school officials and courts.  The need for testing, the language of testing policies and the unique provisions of state law are important factors in determining the propriety of a school district's effort to curb drug use among students. 

The problem of drugs in schools is not a new one and the remedy is not obvious.  School leaders, political bodies and private citizens have debated, implemented and litigated proposed solutions for years.  One strategy which continues to see support is drug testing students who engage in extracurricular activities.  At least one district in Missouri recently adopted such a policy.  Finding sufficient protections in place, the U.S. Supreme Court has at least twice rejected challenges that student drug testing programs violate federal law.  The result is not always the same, however, when challenges are lodged under state law.  See, e.g., "Which Washington: Constitutions in Conflict," 19 Marq. Sports L. Rev. 231 (2009) (Jonathan Duncan and Kristina Giddings). 

A common question running through the drug test debate is whether testing programs are effective in curbing use or abuse by students.  A recent study released by the U.S. Department of Education provides current and relatively comprehensive information about the effectiveness of student drug testing policies.  It may serve as a valuable resource to school officials who are exploring options for removing drugs from our public schools.