Oregon New Lawyers Division 2008 High School Essay Contest The Oregon State Bar’s New Lawyers Division is proud to announce our 2008 High School Essay Contest. The contest is open to all Oregon high school students and three winners will be chosen to receive $500, $350, and $250, respectively for first, second, and third place entries. While teachers are encouraged to incorporate this project into their curriculum, many of our most competitive entries are received from students who engage in this project on their own initiative. All entries should be submitted to the Oregon State Bar office at:

P.O. Box 231935 Tigard, OR 97281-1935

The Essay For the contest, students submit a persuasive essay of 750 to 1000 using only the reference materials and fact pattern provided in the Essay Universe. No additional research is needed or required. In writing the essay, you must choose one of two sides:

1. play the role of Veronica’s attorney and persuade the judge that River Bend High School’s drug testing policy is not constitutional and the school cannot continue to perform random drug tests based upon the policy; or

2. play the role of the River Bend High School’s attorney and persuade the

judge that the drug testing policy is constitutional and the school may continue to perform random drug tests.

Limit your discussion to the facts stated below. You must include a discussion of the cases provided, Board of Education v. Earls and Vernonia School District 47J v. Acton. No outside research is required and discussion of outside resources will not be considered. This is a persuasive essay, not a research paper. A bibliography is not necessary. However, if you feel it is appropriate to include a citation to a source (one of the cases included in the Universe or the article that is included), you may briefly do

so in the body of your essay by simply stating the name of the source in italics (e.g. Vernonia School Dist. 47J v. Acton). As you read the reference materials you will notice that each of the two United States Supreme Court cases includes what is called a dissenting opinion. A dissenting opinion is an opinion of one or more judges expressing disagreement with the majority opinion (the decision that a majority of the members of the court make). The majority opinion of the United States Supreme Court creates the binding authority or precedent that other courts in each state must follow. By definition, a dissent is the minority of the court. A dissenting opinion cannot create binding authority or precedent that lower courts must follow because it is not “the holding” or the decision of the court in the case. Therefore, the dissent does not create case law and the judge in your case would not be required to follow the dissenting opinion. However, attorneys sometimes use dissenting opinions to help persuade a judge that the specific facts of the case allow that judge to limit the majority opinion or even make a different decision altogether. Thanks to the Wikipedia community for their contribution to the above explanation of what a dissenting opinion represents. Essay Due Date Your essay submission must ARRIVE at the Oregon State Bar office no later than May 10, 2008. In fairness to all, late essays will not be considered. Remember, limit your discussion to the Essay Universe provided below. Please address your essay to: ONLD-LRE High School Essay Contest Oregon State Bar P.O. Box 231935 Tigard, OR 97281-1935 Announcement of Winning Essays All of the submissions will be evaluated by a panel of lawyers from the Oregon State Bar’s New Lawyers Division and the three contest winners will be announced and formally recognized in May.

Good luck everyone!

Essay Universe

The materials that follow are the Essay Universe and include:

1. FACT PATTERN 2. Board of Education v. Earls, No. 01-332

3. Vernonia School District 47J v. Acton, No. 94-590

4. Facts & Figures : Methamphetamine - Drug Facts, Office of National Drug

Control Policy

FACT PATTERN Central City, Oregon, is experiencing a significant methamphetamine crisis. Lying at the

crossroads of two major highways with rural areas within close range, the city has found itself swamped by meth. Several law enforcement agencies have combined resources to study the problem and determine the most effective ways to combat the rampant drug use in the city. The combined task force discovered that meth use was starting to pervade the local schools and students were getting hooked on the drugs during middle school and high school. The students’ drug use was leading to increased drug-related crime in the schools and communities. As a result, an increasing amount of public funds were diverted for treatment. Central City’s school district already has a mandatory drug testing program in place for high school students who are involved in any school sponsored extracurricular activities, but the program was not curtailing the meth problem. The law enforcement task force noted that the more prevalent meth users were those students who were not participating in any school-sponsored extracurricular activities.

Determined to increase efforts to eliminate the drug problem, the Central City School Board met to discuss possible solutions. After several long meetings the School Board put forth the idea that all students of middle school or high school age (6th grade to 12th grade) would be subject to random drug tests. The School Board determined that the test results would be completely confidential and that any positive test would only result in school disciplinary actions. The disciplinary sanctions that would be imposed would include everything from mandatory counseling to expulsion. None of the test results would be turned over to the police; however parents would be notified if their children failed a drug test. The parents would not be notified of which drug was found in the test—only that the test had been failed. Further, the School Board noted that, based on the task force’s research, certain populations of students were at higher risk and therefore those students would be tested more frequently.

The School Board held a public meeting at which it unveiled this new plan. Because the local press had run the story for a couple of weeks, the meeting room was filled to its maximum capacity with parents of local students. Central City’s law enforcement officials supported the School Board’s plan and publicly declared that they would never ask for the records of the drug tests; they were only interested in eliminating the problem. Many parents also supported the plan, but a strong minority voiced significant opposition. The School Board held a vote and by a 7-4 margin, the plan was approved.

Veronica Smith, an 11th grade student at River Bend High School, is a member of one of the targeted groups for increased drug testing. She is an honor roll student and has plans to go to college. Veronica participates in several community organizations including the local Boys & Girls Club and a City-sponsored soccer league. She is not, however, involved with any of River Bend High School’s extracurricular activities. The school repeatedly submitted Veronica to random drug tests, and she is becoming frustrated at missing her classes and being targeted as a drug user. Veronica is concerned that because of missed classes and the stigma that attaches of being a targeted student, she will lose valuable teacher recommendations for college applications. Veronica’s parents filed a lawsuit requesting the federal district court to enjoin River Bend High School from continuing the random drug tests.

SUPREME COURT OF THE UNITED STATES BOARD OF EDUCATION OF INDEPENDENT SCHOOL DISTRICT NO. 92

OF POTTAWATOMIE COUNTY, et al., Petitioners, v.

LINDSAY EARLS et al. No. 01-332

Argued March 19, 2002. Decided June 27, 2002.

JUSTICE THOMAS delivered the opinion of the Court. The Student Activities Drug Testing Policy implemented by the Board of Education of Independent School District No. 92 of Pottawatomie County (School District) requires all students who participate in competitive extracurricular activities to submit to drug testing. Because this Policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, we hold that it is constitutional.

I The city of Tecumseh, Oklahoma, is a rural community located approximately 40 miles southeast of Oklahoma City. The School District administers all Tecumseh public schools. In the fall of 1998, the School District adopted the Student Activities Drug Testing Policy (Policy), which requires all middle and high school students to consent to drug testing in order to participate in any extracurricular activity. In practice, the Policy has been applied only to competitive extracurricular activities sanctioned by the Oklahoma Secondary Schools Activities Association, such as the Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, pom-pom, cheerleading, and athletics. Under the Policy, students are required to take a drug test before participating in an extracurricular activity, must submit to random drug testing while participating in that activity, and must agree to be tested at any time upon reasonable suspicion. The urinalysis tests are designed to detect only the use of illegal drugs, including amphetamines, marijuana, cocaine, opiates, and barbituates, not medical conditions or the presence of authorized prescription medications. At the time of their suit, both respondents attended Tecumseh High School. Respondent Lindsay Earls was a member of the show choir, the marching band, the Academic Team, and the National Honor Society. Respondent Daniel James sought to participate in the Academic Team. Together with their parents, Earls and James … alleged that the Policy violates the Fourth Amendment. Applying the principles articulated in Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), in which we upheld the suspicionless drug testing of school athletes, the United States District Court for the Western District of Oklahoma rejected respondents' claim that the Policy was unconstitutional and granted summary judgment to the School District. The United States Court of Appeals for the Tenth Circuit reversed, holding that the Policy

violated the Fourth Amendment. The Court of Appeals agreed with the District Court that the Policy must be evaluated in the “unique environment of the school setting,” but reached a different conclusion as to the Policy's constitutionality. 242 F.3d 1264, 1270 (2001). We granted certiorari and now reverse.

II The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Searches by public school officials, such as the collection of urine samples, implicate Fourth Amendment interests. See Vernonia, supra, at 652, 115 S.Ct. 2386; cf. New Jersey v. T.L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). We must therefore review the School District's Policy for “reasonableness,” which is the touchstone of the constitutionality of a governmental search. Significantly, this Court has previously held that “special needs” inhere in the public school context. See Vernonia, supra, at 653, 115 S.Ct. 2386; T.L.O., supra, at 339-340, 105 S.Ct. 733. While schoolchildren do not shed their constitutional rights when they enter the schoolhouse, see Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), “Fourth Amendment rights ... are different in public schools than elsewhere; the ‘reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children.” Vernonia, 515 U.S., at 656, 115 S.Ct. 2386. In particular, a finding of individualized suspicion may not be necessary when a school conducts drug testing. In Vernonia, this Court held that the suspicionless drug testing of athletes was constitutional. The Court, however, did not simply authorize all school drug testing, but rather conducted a fact-specific balancing of the intrusion on the children's Fourth Amendment rights against the promotion of legitimate governmental interests. See id., at 652-653, 115 S.Ct. 2386. Applying the principles of Vernonia to the somewhat different facts of this case, we conclude that Tecumseh's Policy is also constitutional.

A We first consider the nature of the privacy interest allegedly compromised by the drug testing. See id., at 654, 115 S.Ct. 2386. As in Vernonia, the context of the public school environment serves as the backdrop for the analysis of the privacy interest at stake and the reasonableness of the drug testing policy in general. See ibid. (“Central ... is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster”); see also id., at 665, 115 S.Ct. 2386 (“The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care”); ibid. (“[W]hen the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake”). A student's privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety. Schoolchildren are routinely required

to submit to physical examinations and vaccinations against disease. See id., at 656, 115 S.Ct. 2386. Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults. See T.L.O., 469 U.S., at 350, 105 S.Ct. 733 (Powell, J., concurring) (“Without first establishing discipline and maintaining order, teachers cannot begin to educate their students. And apart from education, the school has the obligation to protect pupils from mistreatment by other children, and also to protect teachers themselves from violence by the few students whose conduct in recent years has prompted national concern”). Respondents argue that because children participating in nonathletic extracurricular activities are not subject to regular physicals and communal undress, they have a stronger expectation of privacy than the athletes tested in Vernonia. See Brief for Respondents 18-20. This distinction, however, was not essential to our decision in Vernonia, which depended primarily upon the school's custodial responsibility and authority. In any event, students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes. Some of these clubs and activities require occasional off-campus travel and communal undress. All of them have their own rules and requirements for participating students that do not apply to the student body as a whole. 115 F.Supp.2d, at 1289-1290. For example, each of the competitive extracurricular activities governed by the Policy must abide by the rules of the Oklahoma Secondary Schools Activities Association, and a faculty sponsor monitors the students for compliance with the various rules dictated by the clubs and activities. See id., at 1290. This regulation of extracurricular activities further diminishes the expectation of privacy among schoolchildren. Cf. Vernonia, supra, at 657, 115 S.Ct. 2386 (“Somewhat like adults who choose to participate in a closely regulated industry, students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy” (internal quotation marks omitted)). We therefore conclude that the students affected by this Policy have a limited expectation of privacy.

B Next, we consider the character of the intrusion imposed by the Policy. See Vernonia, supra, at 658, 115 S.Ct. 2386. Urination is “an excretory function traditionally shielded by great privacy.” Skinner, 489 U.S., at 626, 109 S.Ct. 1402. But the “degree of intrusion” on one's privacy caused by collecting a urine sample “depends upon the manner in which production of the urine sample is monitored.” Vernonia, supra, at 658, 115 S.Ct. 2386. The Policy clearly requires that the test results be kept in confidential files separate from a student's other educational records and released to school personnel only on a “need to know” basis. Respondents nonetheless contend that the intrusion on students' privacy is significant because the Policy fails to protect effectively against the disclosure of confidential information and, specifically, that the school “has been careless in protecting that information: for example, the Choir teacher looked at students' prescription drug lists and left them where other students could see them.” Brief for Respondents 24. But the choir teacher is someone with a “need to know,” because during off-campus trips she needs to know what medications are taken by her students. Even before the Policy was enacted the choir teacher had access to this information.

See App. 132. In any event, there is no allegation that any other student did see such information. This one example of alleged carelessness hardly increases the character of the intrusion. Moreover, the test results are not turned over to any law enforcement authority. Nor do the test results here lead to the imposition of discipline or have any academic consequences. Cf. Vernonia, supra, at 658, and n. 2, 115 S.Ct. 2386.Rather, the only consequence of a failed drug test is to limit the student's privilege of participating in extracurricular activities. Indeed, a student may test positive for drugs twice and still be allowed to participate in extracurricular activities. After the first positive test, the school contacts the student's parent or guardian for a meeting. The student may continue to participate in the activity if within five days of the meeting the student shows proof of receiving drug counseling and submits to a second drug test in two weeks. For the second positive test, the student is suspended from participation in all extracurricular activities for 14 days, must complete four hours of substance abuse counseling, and must submit to monthly drug tests. Only after a third positive test will the student be suspended from participating in any extracurricular activity for the remainder of the school year, or 88 school days, whichever is longer. See App. 201-202. Given the minimally intrusive nature of the sample collection and the limited uses to which the test results are put, we conclude that the invasion of students' privacy is not significant.

C Finally, this Court must consider the nature and immediacy of the government's concerns and the efficacy of the Policy in meeting them. See Vernonia, 515 U.S., at 660, 115 S.Ct. 2386. This Court has already articulated in detail the importance of the governmental concern in preventing drug use by schoolchildren. See id., at 661-662, 115 S.Ct. 2386. The drug abuse problem among our Nation's youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse. As in Vernonia, “the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction.” Id., at 662, 115 S.Ct. 2386. The health and safety risks identified in Vernonia apply with equal force to Tecumseh's children. Indeed, the nationwide drug epidemic makes the war against drugs a pressing concern in every school. Additionally, the School District in this case has presented specific evidence of drug use at Tecumseh schools. Teachers testified that they had seen students who appeared to be under the influence of drugs and that they had heard students speaking openly about using drugs. See, e.g., App. 72 (deposition of Dean Rogers); id., at 115 (deposition of Sheila Evans). A drug dog found marijuana cigarettes near the school parking lot. Police officers once found drugs or drug paraphernalia in a car driven by a Future Farmers of America member. And the school board president reported that people in the community were calling the board to discuss the “drug situation.” See 115 F.Supp.2d, at 1285-1286. We decline to second-guess the finding of the District Court that “[v]iewing the evidence as a whole, it cannot be reasonably disputed that the [School District] was faced with a ‘drug problem’ when it adopted the Policy.” Id., at 1287. Respondents consider the proffered evidence insufficient and argue that there is no “real and

immediate interest” to justify a policy of drug testing nonathletes. Brief for Respondents 32. We have recognized, however, that “[a] demonstrated problem of drug abuse ... [is] not in all cases necessary to the validity of a testing regime,” but that some showing does “shore up an assertion of special need for a suspicionless general search program.” Chandler v. Miller, 520 U.S. 305, 319, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). The School District has provided sufficient evidence to shore up the need for its drug testing program. Furthermore, this Court has not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing. For instance, in Von Raab the Court upheld the drug testing of customs officials on a purely preventive basis, without any documented history of drug use by such officials. See 489 U.S., at 673, 109 S.Ct. 1384. In response to the lack of evidence relating to drug use, the Court noted generally that “drug abuse is one of the most serious problems confronting our society today,” and that programs to prevent and detect drug use among customs officials could not be deemed unreasonable. Id., at 674, 109 S.Ct. 1384; cf. Skinner, 489 U.S., at 607, and n. 1, 109 S.Ct. 1402 (noting nationwide studies that identified on-the-job alcohol and drug use by railroad employees). Likewise, the need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Indeed, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use. We reject respondents' argument that drug testing must presumptively be based upon an individualized reasonable suspicion of wrongdoing because such a testing regime would be less intrusive. See id., at 12-16. In this context, the Fourth Amendment does not require a finding of individualized suspicion, see supra, at 2564, and we decline to impose such a requirement on schools attempting to prevent and detect drug use by students. Moreover, we question whether testing based on individualized suspicion in fact would be less intrusive. Such a regime would place an additional burden on public school teachers who are already tasked with the difficult job of maintaining order and discipline. A program of individualized suspicion might unfairly target members of unpopular groups. The fear of lawsuits resulting from such targeted searches may chill enforcement of the program, rendering it ineffective in combating drug use. See Vernonia, 515 U.S., at 663-664, 115 S.Ct. 2386 (offering similar reasons for why “testing based on ‘suspicion’ of drug use would not be better, but worse”). In any case, this Court has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means, because “[t]he logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers.” Martinez-Fuerte, 428 U.S., at 556-557, n. 12, 96 S.Ct. 3074; see also Skinner, supra, at 624, 109 S.Ct. 1402 (“[A] showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable”). Finally, we find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the School District's legitimate concerns in preventing, deterring, and detecting drug use. While in Vernonia there might have been a closer fit between the testing of athletes and the trial court's finding that the drug problem was “fueled by the ‘role model’ effect of athletes' drug use,” such a finding was not essential to the holding. 515 U.S., at 663, 115 S.Ct. 2386; cf. id., at 684-685, 115 S.Ct. 2386 (O'CONNOR, J., dissenting) (questioning the

extent of the drug problem, especially as applied to athletes). Vernonia did not require the school to test the group of students most likely to use drugs, but rather considered the constitutionality of the program in the context of the public school's custodial responsibilities. Evaluating the Policy in this context, we conclude that the drug testing of Tecumseh students who participate in extracurricular activities effectively serves the School District's interest in protecting the safety and health of its students.

III Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh's Policy is a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren. Accordingly, we reverse the judgment of the Court of Appeals. It is so ordered. Justice GINSBURG, with whom Justice STEVENS, JUSTICE O'CONNOR, and Justice SOUTER join, dissenting. Seven years ago, in Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), this Court determined that a school district's policy of randomly testing the urine of its student athletes for illicit drugs did not violate the Fourth Amendment. In so ruling, the Court emphasized that drug use “increase[d] the risk of sports-related injury” and that Vernonia's athletes were the “leaders” of an aggressive local “drug culture” that had reached “ ‘epidemic proportions.’ ” Id., at 649, 115 S.Ct. 2386. Today, the Court relies upon Vernonia to permit a school district with a drug problem its superintendent repeatedly described as “not ... major,” see App. 180, 186, 191, to test the urine of an academic team member solely by reason of her participation in a nonathletic, competitive extracurricular activity-participation associated with neither special dangers from, nor particular predilections for, drug use. “[T]he legality of a search of a student,” this Court has instructed, “should depend simply on the reasonableness, under all the circumstances, of the search.” New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). Although “‘special needs' inhere in the public school context,” see ante, at 2564 (quoting Vernonia, 515 U.S., at 653, 115 S.Ct. 2386), those needs are not so expansive or malleable as to render reasonable any program of student drug testing a school district elects to install. The particular testing program upheld today is not reasonable; it is capricious, even perverse: Petitioners' policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects. I therefore dissent.

I

A This case presents circumstances dispositively different from those of Vernonia. True, as the Court stresses, Tecumseh students participating in competitive extracurricular activities other

than athletics share two relevant characteristics with the athletes of Vernonia. First, both groups attend public schools. “[O]ur decision in Vernonia,” the Court states, “depended primarily upon the school's custodial responsibility and authority.” Ante, at 2565; see also ante, at 2570 (BREYER, J., concurring) (school districts act in loco parentis). Concern for student health and safety is basic to the school's caretaking, and it is undeniable that “drug use carries a variety of health risks for children, including death from overdose.” Ante, at 2568 (majority opinion). Those risks, however, are present for all schoolchildren. Vernonia cannot be read to endorse invasive and suspicionless drug testing of all students upon any evidence of drug use, solely because drugs jeopardize the life and health of those who use them. Many children, like many adults, engage in dangerous activities on their own time; that the children are enrolled in school scarcely allows government to monitor all such activities. If a student has a reasonable subjective expectation of privacy in the personal items she brings to school, see T.L.O., 469 U.S., at 338-339, 105 S.Ct. 733, surely she has a similar expectation regarding the chemical composition of her urine. Had the Vernonia Court agreed that public school attendance, in and of itself, permitted the State to test each student's blood or urine for drugs, the opinion in Vernonia could have saved many words. See, e.g., 515 U.S., at 662, 115 S.Ct. 2386 (“[I]t must not be lost sight of that [the Vernonia School District] program is directed ... to drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high.”). The second commonality to which the Court points is the voluntary character of both interscholastic athletics and other competitive extracurricular activities. “By choosing to ‘go out for the team,’ [school athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.” Id., at 657, 115 S.Ct. 2386. Comparably, the Court today observes, “students who participate in competitive extracurricular activities voluntarily subject themselves to” additional rules not applicable to other students. Ante, at 2565-2566. Voluntary participation in athletics has a distinctly different dimension: Schools regulate student athletes discretely because competitive school sports by their nature require communal undress and, more important, expose students to physical risks that schools have a duty to mitigate. For the very reason that schools cannot offer a program of competitive athletics without intimately affecting the privacy of students, Vernonia reasonably analogized school athletes to “adults who choose to participate in a closely regulated industry.” 515 U.S., at 657, 115 S.Ct. 2386 (internal quotation marks omitted). Industries fall within the closely regulated category when the nature of their activities requires substantial government oversight. See, e.g., United States v. Biswell, 406 U.S. 311, 315-316, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). Interscholastic athletics similarly require close safety and health regulation; a school's choir, band, and academic team do not. In short, Vernonia applied, it did not repudiate, the principle that “the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” T.L.O., 469 U.S., at 341, 105 S.Ct. 733 (emphasis added). Enrollment in a public school, and election to participate in school activities beyond the bare minimum that the curriculum requires, are indeed factors relevant to reasonableness, but they do not on their own justify intrusive, suspicionless searches. Vernonia, accordingly, did not rest upon these factors; instead, the Court

performed what today's majority aptly describes as a “fact-specific balancing,” ante, at 2565. Balancing of that order, applied to the facts now before the Court, should yield a result other than the one the Court announces today.

B To summarize, this case resembles Vernonia only in that the School Districts in both cases conditioned engagement in activities outside the obligatory curriculum on random subjection to urinalysis. The defining characteristics of the two programs, however, are entirely dissimilar. The Vernonia district sought to test a subpopulation of students distinguished by their reduced expectation of privacy, their special susceptibility to drug-related injury, and their heavy involvement with drug use. The Tecumseh district seeks to test a much larger population associated with none of these factors. It does so, moreover, without carefully safeguarding student confidentiality and without regard to the program's untoward effects. A program so sweeping is not sheltered by Vernonia; its unreasonable reach renders it impermissible under the Fourth Amendment.

II Tecumseh's policy was not shown to advance the “‘special needs' [existing] in the public school context [to maintain] ... swift and informal disciplinary procedures ... [and] order in the schools,” Vernonia, 515 U.S., at 653, 115 S.Ct. 2386 (internal quotation marks omitted). See supra, at 2573-2574, 2575-2577. What is left is the School District's undoubted purpose to heighten awareness of its abhorrence of, and strong stand against, drug abuse. But the desire to augment communication of this message does not trump the right of persons-even of children within the schoolhouse gate-to be “secure in their persons ... against unreasonable searches and seizures.” U.S. Const., Amdt. 4. It is a sad irony that the petitioning School District seeks to justify its edict here by trumpeting “the schools' custodial and tutelary responsibility for children.” Vernonia, 515 U.S., at 656, 115 S.Ct. 2386. In regulating an athletic program or endeavoring to combat an exploding drug epidemic, a school's custodial obligations may permit searches that would otherwise unacceptably abridge students' rights. When custodial duties are not ascendant, however, schools' tutelary obligations to their students require them to “teach by example” by avoiding symbolic measures that diminish constitutional protections. “That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).

* * * For the reasons stated, I would affirm the judgment of the Tenth Circuit declaring the testing policy at issue unconstitutional.

VERNONIA SCHOOL DISTRICT 47J, PETITIONER

v.

WAYNE ACTON, ET UX., ETC.

No. 94-590

SUPREME COURT OF THE UNITED STATES

March 28, 1995, Argued June 26, 1995, Decided

JUSTICE SCALIA delivered the opinion of the Court.

The Student Athlete Drug Policy adopted by School District 47J in the town of Vernonia, Oregon, authorizes random urinalysis drug testing of students who participate in the District's school athletics programs. We granted certiorari to decide whether this violates the Fourth and Fourteenth Amendments to the United States Constitution.

I

A

Petitioner Vernonia School District 47J (District) operates one high school and three grade schools in the logging community of Vernonia, Oregon. As elsewhere in small-town America, school sports play a prominent role in the town's life, and student athletes are admired in their schools and in the community.

Drugs had not been a major problem in Vernonia schools. In the mid-to-late 1980's, however, teachers and administrators observed a sharp increase in drug use. Students began to speak out about their attraction to the drug culture, and to boast that there was nothing the school could do about it. Along with more drugs came more disciplinary problems. Between 1988 and 1989 the number of disciplinary referrals in Vernonia schools rose to more than twice the number reported in the early 1980's, and several students were suspended. Students became increasingly rude during class; outbursts of profane language became common.

Not only were student athletes included among the drug users but, as the District Court found, athletes were the leaders of the drug culture. 796 F. Supp. 1354, 1357 (Ore. 1992). This caused the District's administrators particular concern, since drug use increases the risk of sports-related injury. Expert testimony at the trial confirmed the deleterious effects of drugs on motivation, memory, judgment, reaction, coordination, and performance.

Initially, the District responded to the drug problem by offering special classes, speakers, and presentations designed to deter drug use. It even brought in a specially trained dog to detect drugs, but the drug problem persisted.

At that point, District officials began considering a drug-testing program. They held a parent "input night" to discuss the proposed Student Athlete Drug Policy (Policy), and the parents in attendance gave their unanimous approval. The school board approved the Policy for implementation in the fall of 1989. Its expressed purpose is to prevent student athletes from

using drugs, to protect their health and safety, and to provide drug users with assistance programs.

B

The Policy applies to all students participating in interscholastic athletics. Students wishing to play sports must sign a form consenting to the testing and must obtain the written consent of their parents. Athletes are tested at the beginning of the season for their sport. In addition, once each week of the season the names of the athletes are placed in a "pool" from which a student, with the supervision of two adults, blindly draws the names of 10% of the athletes for random testing. Those selected are notified and tested that same day, if possible.

The samples are sent to an independent laboratory, which routinely tests them for amphetamines, cocaine, and marijuana. Other drugs, such as LSD, may be screened at the request of the District, but the identity of a particular student does not determine which drugs will be tested. The laboratory does not know the identity of the students whose samples it tests. It is authorized to mail written test reports only to the superintendent and to provide test results to District personnel by telephone only after the requesting official recites a code confirming his authority. Only the superintendent, principals, vice-principals, and athletic directors have access to test results, and the results are not kept for more than one year.

If a sample tests positive, a second test is administered as soon as possible to confirm the result. If the second test is negative, no further action is taken. If the second test is positive, the athlete's parents are notified, and the school principal convenes a meeting with the student and his parents, at which the student is given the option of (1) participating for six weeks in an assistance program that includes weekly urinalysis, or (2) suffering suspension from athletics for the remainder of the current season and the next athletic season. The student is then retested prior to the start of the next athletic season for which he or she is eligible. The Policy states that a second offense results in automatic imposition of option (2); a third offense in suspension for the remainder of the current season and the next two athletic seasons.

C

In the fall of 1991, respondent James Acton, then a seventh grader, signed up to play football at one of the District's grade schools. He was denied participation, however, because he and his parents refused to sign the testing consent forms. The Actons filed suit, seeking declaratory and injunctive relief from enforcement of the Policy on the grounds that it violated the Fourth and Fourteenth Amendments to the United States Constitution and Article I, § 9, of the Oregon Constitution. After a bench trial, the District Court entered an order denying the claims on the merits and dismissing the action. 796 F. Supp. at 1355. The United States Court of Appeals for the Ninth Circuit reversed, holding that the Policy violated both the Fourth and Fourteenth Amendments and Article I, § 9, of the Oregon Constitution. 23 F.3d 1514 (1994). We granted certiorari. 513 U.S. 1013 (1994).

II

The Fourth Amendment to the United States Constitution provides that the Federal Government shall not violate "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." We have held that the Fourteenth Amendment extends this constitutional guarantee to searches and seizures by state officers, Elkins v. United States, 364 U.S. 206, 213, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960),

including public school officials, New Jersey v. T. L. O., 469 U.S. 325, 336-337, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985). In Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 617, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989), we held that state-compelled collection and testing of urine, such as that required by the Policy, constitutes a "search" subject to the demands of the Fourth Amendment. See also Treasury Employees v. Von Raab, 489 U.S. 656, 665, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989).

As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is "reasonableness." At least in a case such as this, where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, n1 whether a particular search meets the reasonableness standard "'is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'" Skinner, supra, at 619 (quoting Delaware v. Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979)). Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant, Skinner, supra, at 619. Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987) (internal quotation marks omitted).

We have found such "special needs" to exist in the public school context. There, the warrant requirement "would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed," and "strict adherence to the requirement that searches be based on probable cause" would undercut "the substantial need of teachers and administrators for freedom to maintain order in the schools." T. L. O., 469 U.S. at 340, 341. The school search we approved in T. L. O., while not based on probable cause, was based on individualized suspicion of wrongdoing. As we explicitly acknowledged, however, "'the Fourth Amendment imposes no irreducible requirement of such suspicion,'" id., at 342, n. 8 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560-561, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976)). We have upheld suspicionless searches and seizures to conduct drug testing of railroad personnel involved in train accidents, see Skinner, supra; to conduct random drug testing of federal customs officers who carry arms or are involved in drug interdiction, see Von Raab, supra; and to maintain automobile checkpoints looking for illegal immigrants and contraband, Martinez-Fuerte, supra, and drunk drivers, Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990).

III

The first factor to be considered is the nature of the privacy interest upon which the search here at issue intrudes. The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as "legitimate." T. L. O. 469 U.S. at 338. What expectations are legitimate varies, of course, with context, id., at 337, depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a

public park. In addition, the legitimacy of certain privacy expectations vis-a-vis the State may depend upon the individual's legal relationship with the State. For example, in Griffin, supra, we held that, although a "probationer's home, like anyone else's, is protected by the Fourth Amendment," the supervisory relationship between probationer and State justifies "a degree of impingement upon [a probationer's] privacy that would not be constitutional if applied to the public at large." 483 U.S. at 873, 875. Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.

Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination--including even the right of liberty in its narrow sense, i. e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. See 59 Am. Jur. 2d, Parent and Child § 10 (1987). When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them.

Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the "reasonableness" inquiry cannot disregard the schools' custodial and tutelary responsibility for children. For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases.

Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require "suiting up" before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford. The locker rooms in Vernonia are typical: No individual dressing rooms are provided; shower heads are lined up along a wall, unseparated by any sort of partition or curtain; not even all the toilet stalls have doors. As the United States Court of Appeals for the Seventh Circuit has noted, there is "an element of 'communal undress' inherent in athletic participation," Schaill by Kross v. Tippecanoe County School Corp., 864 F.2d 1309, 1318 (1988).

Somewhat like adults who choose to participate in a "closely regulated industry," students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy. See Skinner, 489 U.S. at 627; United States v. Biswell, 406 U.S. 311, 316, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972).

IV

Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of.

[One] privacy-invasive aspect of urinalysis is, of course, the information it discloses concerning the state of the subject's body, and the materials he has ingested. In this regard it is significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic. See id., at 617. Moreover, the drugs for which the samples are screened are standard, and do not vary according to the identity of the student. And finally, the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function. 796 F. Supp. at 1364; see also 23 F.3d at 1521.

V

Finally, we turn to consider the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it. [T]he phrase "compelling state interest," in the Fourth Amendment context, describes a fixed, minimum quantum of governmental concern, so that one can dispose of a case by answering in isolation the question: Is there a compelling state interest here? [T]he phrase describes an interest that appears important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy. Whether that relatively high degree of government concern is necessary in this case or not, we think it is met.

That the nature of the concern is important--indeed, perhaps compelling--can hardly be doubted. Deterring drug use by our Nation's schoolchildren is at least as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs, which was the governmental concern in Von Raab, supra, at 668, or deterring drug use by engineers and trainmen, which was the governmental concern in Skinner, supra, at 628. School years are the time when the physical, psychological, and addictive effects of drugs are most severe. And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted. Finally, it must not be lost sight of that this program is directed more narrowly to drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high.

VI

Taking into account all the factors we have considered above--the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search--we conclude Vernonia's Policy is reasonable and hence constitutional.

We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care. n4 Just as when the government conducts a search in its capacity as employer (a warrantless search of an absent employee's desk to obtain an urgently needed file, for example), the relevant question is whether that intrusion upon privacy is one that a reasonable employer might engage in, see O'Connor v. Ortega, 480 U.S. 709, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987); so also when the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake. Given the findings of need made by the District Court, we conclude that in the present case it is.

Justice O'Connor, with whom Justice Stevens and Justice Souter join, dissenting.

The population of our Nation's public schools, grades 7 through 12, numbers around 18 million. By the reasoning of today's decision, millions of these students who participate in interscholastic sports, an overwhelming majority of whom have given school officials no reason whatsoever to suspect they use drugs at school, are open to an intrusive bodily search.

In justifying this result, the Court dispenses with a requirement of individualized suspicion on considered policy grounds. First, it explains that precisely because every student athlete is being tested, there is no concern that school officials might act arbitrarily in choosing who to test. Second, a broad-based search regime, the Court reasons, dilutes the accusatory nature of the search. In making these policy arguments, of course, the Court sidesteps powerful, countervailing privacy concerns. Blanket searches, because they can involve "thousands or millions" of searches, "pos[e] a greater threat to liberty" than do suspicion-based ones, which "affec[t] one person at a time," Illinois v. Krull.

For most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment. And we have allowed exceptions in recent years only where it has been clear that a suspicion-based regime would be ineffectual. That is not the case here.

The view that mass, suspicionless searches, however evenhanded, are generally unreasonable remains undisturbed in the criminal law enforcement context, see Ybarra v. Illinois, (invalidating evenhanded, nonaccusatory patdown for weapons of all patrons in a tavern in which there was probable cause to think drug dealing was going on). It is worth noting in this regard that state-compelled, state-monitored collection and testing of urine, while perhaps not the most intrusive of searches, see, e. g., Bell v. Wolfish, (visual body cavity searches), is still "particularly destructive of privacy and offensive to personal dignity." We have not hesitated to treat monitored bowel movements as highly intrusive (even in the special border search context), compare United States v. Martinez-Fuerte, (brief interrogative stops of all motorists crossing certain border checkpoint reasonable without individualized suspicion), with United States v. Montoya de Hernandez, (monitored bowel movement of border crossers reasonable only upon reasonable suspicion of alimentary canal smuggling), and it is not easy to draw a distinction. "[I]n our culture the excretory functions are shielded by more or less absolute privacy". And certainly monitored urination combined with urine testing is more intrusive than some personal searches we have said trigger Fourth Amendment protections in the past.

History and precedent establish that individualized suspicion is "usually required" under the Fourth Amendment (regardless of whether a warrant and probable cause are also required) and that, in the area of intrusive personal searches, the only recognized exception is for situations in which a suspicion-based scheme would be likely ineffectual. Schools already have adversarial, disciplinary schemes that require teachers and administrators in many areas besides drug use to investigate student wrongdoing (often by means of accusatory searches); to make determinations about whether the wrongdoing occurred; and to impose punishment. To such a scheme, suspicion-based drug testing would be only a minor addition.

But having misconstrued the fundamental role of the individualized suspicion requirement in Fourth Amendment analysis, the Court never seriously engages the practicality of such a requirement in the instant case. And that failure is crucial because nowhere is it less clear that an individualized suspicion requirement would be ineffectual than in the school context. In most schools, the entire pool of potential search targets-students-is under constant supervision by teachers and administrators and coaches, be it in classrooms, hallways, or locker rooms.

I recognize that a suspicion-based scheme, even where reasonably effective in controlling in-school drug use, may not be as effective as a mass, suspicionless testing regime. In one sense, that is obviously true -- just as it is obviously true that suspicion-based law enforcement is not as effective as mass, suspicionless enforcement might be. "But there is nothing new in the realization" that Fourth Amendment protections come with a price. Arizona v. Hicks. Indeed, the price we pay is higher in the criminal context, given that police do not closely observe the entire class of potential search targets (all citizens in the area) and must ordinarily adhere to the rigid requirements of a warrant and probable cause.

Intrusive, blanket searches of school children, most of whom are innocent, for evidence of serious wrongdoing are not part of any traditional school function of which I am aware. Indeed, many schools, like many parents, prefer to trust their children unless given reason to do otherwise. “[Suspicionless testing] sends a message to children that are trying to be responsible citizens . . . that they have to prove that they're innocent . . . , and I think that kind of sets a bad tone for citizenship."

Any testing program that searches for conditions plainly reflecting serious wrongdoing can never be made wholly nonaccusatory from the student's perspective. The substantial consequences that can flow from a positive test, such as suspension from sports, are invariably-and quite reasonably-understood as punishment. The best proof that the District's testing program is to some extent accusatory can be found in James Acton's own explanation on the witness stand as to why he did not want to submit to drug testing: "Because I feel that they have no reason to think I was taking drugs." It is hard to think of a manner of explanation that resonates more intensely in our Fourth Amendment tradition than this.

Extent of Use

According to the 2006 National Survey on Drug Use and Health (NSDUH), an estimated 5.77% of the U.S. population aged 12 or older used methamphetamine at least once in their lifetimes for nonmedical purposes. Further data indicate that past year methamphetamine use was higher in the West (1.6%) than in the Northeast (0.3%), Midwest (0.5%) or South (0.7%) in 2006. The rates of past year use in 2006 were similar to those in 2002 in each respective region.3

In 2006 there were an estimated 731,000 current users of methamphetamine, aged 12 or older, representing 0.3% of the population. Among persons aged 12 or older, there were 259,000 recent, new users of methamphetamine taken for nonmedical purposes during 2006. These estimates do not differ significantly from estimates for 2002, 2003, 2004, and 2005.4

Results of the 2007 Monitoring the Future survey indicate that 1.8% of eighth graders, 2.8% of tenth graders, and 3.0% of twelfth graders reported lifetime use of methamphetamine. In 2006, these percentages were 2.7%, 3.2%, and 4.4%, respectively.5

Percent of Students Reporting Methamphetamine Use, 2006–20076

The Youth Risk Behavior Surveillance (YRBS) study by the Centers for Disease Control and Prevention (CDC) surveys high school students on several risk factors including drug and alcohol use. Results of the 2005 survey indicate that 6.2% of high school students reported using methamphetamine at some point in their lifetimes. This is down from 7.6% in 2003 and 9.8% in 2001.7

Percent of Students Reporting Lifetime Meth Use, 2001–2005

Approximately 2.9% of college students and 7.3% of young adults (ages 19-28) surveyed in 2006 reported lifetime use of methamphetamine.8

Percent of College Students/Young Adults Using Methamphetamine, 2005–2006

8th Grade 10th Grade 12th Grade 2006 2007 2006 2007 2006 2007

Past month 0.6% 0.6% 0.7% 0.4% 0.9% 0.6% Past year 1.8 1.1 1.8 1.6 2.5 1.7 Lifetime 2.7 1.8 3.2 2.8 4.4 3.0

2001 2003 2005

9th grade 8.1% 6.7% 5.7% 10th grade 9.7 7.5 5.9 11th grade 9.2 8.0 6.7 12th grade 12.8 8.0 6.4 Total 9.8 7.6 6.2

College Students Young Adults 2005 2006 2005 2006

Past month 0.1% 0.2% 0.7% 0.5% Past year 1.7 1.2 2.4 1.9 Lifetime 4.1 2.9 8.3 7.3

Page 1 of 2Facts&Figures: Methamphetamine - Drug Facts, ONDCP

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According to data from the Bureau of Justice Statistics, approximately 23.5% of State prisoners and 17.9% of Federal prisoners surveyed in 2004 indicated that they used methamphetamine at some point in their lives.9

Percent of Prisoners Reporting Methamphetamine Use, 1997 and 2004

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Health Effects

Long-term methamphetamine abuse can cause addiction, anxiety, insomnia, mood disturbances, and violent behavior. Additionally, psychotic symptoms such as paranoia, hallucinations, and delusions (such as the sensation of bugs crawling under the user's skin) can occur. The psychotic symptoms can last for months or years after methamphetamine use has ceased.10

Of an estimated 108 million emergency department (ED) visits in the U.S. during 2005, the Drug Abuse Warning Network (DAWN) estimates that 1,449,154 ED visits were associated with drug misuse or abuse. DAWN data indicate that methamphetamine was involved in 108,905 of the drug-related ED visits.11

State Prisoners Federal Prisoners 1997 2004 1997 2004

At time of offense 3.5% 6.1% 3.7% 7.2% In month before offense 6.9 10.8 6.5 10.1 Regularly* 11.2 14.9 9.6 12.8 Ever in lifetime 19.4 23.5 15.1 17.9 * Used drugs at least once a week for at least a month.

Page 2 of 2Facts&Figures: Methamphetamine - Drug Facts, ONDCP

2/6/2008http://www.whitehousedrugpolicy.gov/drugfact/methamphetamine/index.html