Academic journal article Journal of Law and Education

Constitutional Issues When Testing Students for Drug Use, A Special Exception, and Telltale Metaphors

Academic journal article Journal of Law and Education

Constitutional Issues When Testing Students for Drug Use, A Special Exception, and Telltale Metaphors

Article excerpt


The legal topic of testing students for drugs is a live topic and a hot one in the United States today because it connects with the political scene in our country and the tense social scene that has arisen recently, especially since September 11, 2001. This article will focus on the constitutional issues in four fundamental drug cases and the language used by the justices in these cases' decisions. After exploring these points the article will look at the future of drug testing of students as President George W. Bush moves through his second term as President.


The Supreme Court has addressed the legal issues related to student involvement with illegal drugs in three separate decisions in the last two decades: New Jersey v. T.L.O.,1 Vernonia School District v. Acton,2 and Board of Education of Independent School District v. Earls.3 In a fourth case, Joye v. Hunterdon Central Regional High School,4 decided after Earls, the New Jersey Supreme Court examined a school's student drugtesting policy in light of recent federal law and its State's constitution.

T.L.O. deals with drug dealing, not the testing of students for drug use as do the other three cases. The case deals with the search, based on individual suspicion, of T.L.O.'s purse after the student denied that she was smoking a cigarette in the school lavatory. Nevertheless, T.L.O. serves as the foundation of Vernonia, Earls, and Joye by establishing the precedent for applying the Fourth Amendment to searches of students by school officials.

The general issue of T.L.O., Vernonia, Earls, and Joye is the same: Was the search and seizure of public school students, as performed by school officials (or required by school policy to be performed) in violation of the students' rights, which prohibit unreasonable searches and seizures? This issue makes us recognize that a value conflict may arise between an individual's interest in his or her personal privacy (or security, to use the Fourth Amendment's language,) and the government's interest in maintaining the law and order necessary for the conduct of a public school within a democratic society. This conflict between values leads people to disagree on whether the search and seizure under consideration was reasonable or not.

Within the general issue are components, specific issues that demand attention in order to arrive at a conclusion that what was done constitutes a search and seizure and, if it does, whether it was in violation of the Fourth Amendment or a state's constitution. It is these specific issues that we must now address because they are the very substance of a constitutional claim by a plaintiff.

The 1985 examination by the T.L.O. Court begins with three key issues in mind: Does the Fourth Amendment's prohibition on unreasonable searches and seizures in public schools apply to State, as well as federal, officials?; Are principals of public schools considered to be state officials for purposes of the Fourth Amendment or are they not subject to the restrictions of the Fourth Amendment because principals act with the authority of parents (in loco parentis) not the State?; and What is the nature of the school setting (context) in which a search and seizure of a particular student might take place?

Although the answers to the first two questions, which are questions of law, may seem obvious today, they were not so when first raised about 50 years ago. After all, it was not until 1943 that the First Amendment rights of children in public school became protected against state action.5 Then it was not until the 1960s that a combination of cases dealing with searches and seizures by state officials led to the conclusion that such searches are deemed to be unreasonable under the Constitution by the Due Process Clause of the Fourteenth Amendment.6 Thus, Justice White, writing for the court in T.L. …

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