Illegal drug use by a large portion of students is an unfortunate feature of most American high schools. (1) Parents and school boards across the nation are debating the merits of fighting and reducing3drug use through drug testing. (2) In Board of Education v. Earls, the Supreme Court upheld a high school policy that required all students who participated in any extracurricular activity to submit to drug testing. This ruling extended the Court's decision in Vernonia School District 47J v. Acton, (4) in which the Court upheld a high school policy requiring student athletes to submit to suspicionless drug tests. The Earls Court's reasoning centered on the broad mandate of schools' "custodial and tutelary responsibility for children" (5) and thus arguably opened the way for drug testing of all students. (6) However, Justice Breyer's concurrence, which provided the crucial fifth vote for the majority, is a harmful obstacle to school boards wishing to implement student drug testing if proper public forums for discussion are not provided, or if substantial public opposition to the proposed drug testing arises from those public debates.
In the fall of 1998, the School District of Tecumsech, Oklahoma, in an effort to fight the use of illegal drugs by students, adopted the Student Activities Drug Testing Policy ("Drug Testing Policy"), which requires all students who participate in any extracurricular activity, including the Academic Team and the Future Farmers of America, to submit to drug testing. (7) The Drug Testing Policy requires students to take drug tests (through urine samples) before starting ah extracurricular activity, submit to random testing during participation in that activity and submit to tests at any time upon reasonable suspicion. (8) Respondent Earls, a student at Tecumseh High School, participated in several extracurricular activities that the Drug Testing Policy covered, including the marching band and the National Honor Society. (9) Earls brought a 42 U.S.C. [section] 1983 suit that challenged the District's Drug Testing Policy as violating the Fourth Amendment's protection against unreasonable searches. (10)
The District Court, applying Vernonia, rejected the respondent's claim that the Drug Testing Policy violated the Fourth Amendment and granted summary judgment for the school district. (11) The court found that there were "special needs" in the public school context, including maintaining discipline and order (12) and addressing the drug problem facing the school, (13) which exempted the school from showing probable cause. The court found that such unique needs also lowered the privacy interests of students (14) and justified the school district's implementation of the Drug Testing Policy as a reasonable action under the Fourth Amendment. (15)
The Court of Appeals reversed and held that the Drug Testing Policy violated the Fourth Amendment. (16) While the Court of Appeals agreed that the issue had to be considered in the context of the unique environment of a public school, (17) the court held that the School District failed to identify a drug abuse problem reaching "epidemic" proportions, as was the case in Vernonia. (18) Without such a burden of proof, the Court of Appeals warned that schools would be able to test all students "simply as a condition of attending school." (19)
The Supreme Court reversed. Justice Thomas, writing for the five-justice majority of Chief Justice Rehnquist and Justices Kennedy, Scalia, and Breyer, held that the Drug Testing Policy did not violate the Fourth Amendment. The Court said meeting the probable cause standard, necessary for criminal searches, which is unnecessary in the public school context, because such a requirement would "unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed" in schools. (20) Considering the safety and administrative concerns of the school, the Majority acknowledged that a search without probable cause that includes drug testing of students may be reasonable when there are "special needs. …