242 F.3d 1264 (10th Cir. 2001), 00-6128, Earls v. Board of Education of Tecumseh

Docket Nº:00-6128
Citation:242 F.3d 1264
Party Name:LINDSAY EARLS and LACEY EARLS, minors, by their next friends and parents, John David Earls and Lori Earls; DANIEL JAMES, a minor,by his friend and mother, Leta Hagar, Plaintiffs - Appellants, v. BOARD OF EDUCATION OF TECUMSEH PUBLIC SCHOOL DISTRICT, Independent School District No. 92 of Pottawatomie County; TECUMSEH PUBLIC SCHOOL DISTRICT, Independ
Case Date:March 21, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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242 F.3d 1264 (10th Cir. 2001)

LINDSAY EARLS and LACEY EARLS, minors, by their next friends and parents, John David Earls and Lori Earls; DANIEL JAMES, a minor,by his friend and mother, Leta Hagar, Plaintiffs - Appellants,

v.

BOARD OF EDUCATION OF TECUMSEH PUBLIC SCHOOL DISTRICT, Independent School District No. 92 of Pottawatomie County; TECUMSEH PUBLIC SCHOOL DISTRICT, Independent School District No. 92 of Pottawatomie County, Defendants - Appellees.

OKLAHOMA STATE SCHOOL BOARDS ASSOCIATION; NATIONAL SCHOOL BOARDS ASSOCIATION; WASHINGTON LEGAL FOUNDATION; U.S. SENATORS JUDD GREGG and DON NICKLES; GOVERNOR FRANK KEATING;

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REP. FRED S. MORGAN (Oklahoma); OKLAHOMA SECONDARY SCHOOLS ACTIVITIES ASSOCIATION; ALLIED EDUCATIONAL FOUNDATION; GAYLA D. DUKE; RHONDA ELLARD; DEBRA FLETCHER; BOBBETTE HAMILTON; JIMMY and SHEILA JORDAN; MICHAEL and KIM RAWLS; STEWART and ROSHEL STABEL; KENNETH A. STANLEY; KRIS STEELE; CLYDE L. and GAIL A. TOPPING; MIKE and VALERIE TUCKER; STEVE and LYNNE YOUNG; THE AMERICAN PUBLIC HEALTH ASSOCIATION; THE NATIONAL ASSOCIATION OF SOCIAL WORKERS; THE NATIONAL ASSOCIATION OF SOCIAL WORKERS OKLAHOMA CHAPTER; THE CENTER FOR LAW AND EDUCATION; THE NATIONAL CENTER FOR YOUTH LAW; THE JUVENILE LAW CENTER; THE LOYOLA CHILDLAW CENTER; ADVOCATES FOR CHILDREN OF NEW YORK; LAWYERS FOR CHILDREN; COVENANT HOUSE NEW JERSEY; PROFESSOR MARTIN GUGGENHEIM & PROFESSOR RANDY HERTZ; AMERICAN ACADEMY OF PEDIATRICS, Amici Curiae.

No. 00-6128

United States Court of Appeals, Tenth Circuit

March 21, 2001

        APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. (D.C. NO. CV-99-1213-R)

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        Graham A. Boyd, American Civil Liberties Union Foundation, New Haven, Connecticut, for Plaintiffs-Appellants.

        Linda Maria Meoli (William P. Bleakley and Stephanie J. Mather with her on the brief), The Center for Education Law, Inc., Oklahoma City, Oklahoma, for Defendants-Appellees.

        Craig R. Levine, New York, New York, filed an amici curiae brief for The American Public Health Association, The National Association of Social Workers, The National Association of Social Workers - Oklahoma Chapter, The Center for Law and Education, The National Center for Youth Law, The Juvenile Law Center, The Loyola ChildLaw Center, Advocates for Children of New York, Lawyers for Children, Covenant House New Jersey, Professor Martin Guggenheim & Professor Randy Hertz, and American Academy of Pediatrics.

        Tyson L. Williams and Julie L. Vogt, Oklahoma State School Boards Association, Oklahoma City, Oklahoma; Julie K. Underwood and Edwin C. Darden, National School Boards Association, Alexandria, Virginia, filed an amici curiae brief for The Oklahoma State School Boards Association and The National School Boards Association.

        Daniel J. Popeo and R. Shawn Gunnarson, Washington Legal Foundation, Washington, D.C., filed an amici curiae brief for Washington Legal Foundation; U.S. Senators Judd Gregg and Don Nickles; Governor Frank Keating; Rep. Fred S. Morgan (Oklahoma); Oklahoma Secondary Schools Activities Association; Allied Educational Foundation; Gayla D. Duke; Rhonda Ellard; Debra Fletcher; Bobbette Hamilton; Jimmy and Sheila Jordan; Michael and Kim Rawls; Stewart and Roshel Stabel; Kenneth A. Stanley; Kris Steele; Clyde L. and Gail A. Topping; Mike and Valerie Tucker; and Steve and Lynne Young.

        Before BRORBY, ANDERSON, and EBEL, Circuit Judges.

        STEPHEN H. ANDERSON, Circuit Judge.

        Plaintiffs Lindsay Earls and Daniel James are students at Tecumseh High School.1 By their next friends and parents, John David and Lori Earls and Leta Hagar, they brought this 42 U.S.C. § 1983 action against the Board of Education of the Tecumseh Public School District and the Tecumseh Public School District (collectively the "District"), challenging the constitutionality of the random suspicionless urinalysis drug testing policy which the District implemented for all students participating in competitive extracurricular activities. The district court granted summary judgment in favor of the District, concluding that the policy does not violate the Fourth Amendment's prohibition against unreasonable searches. Plaintiffs appeal that decision.

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        We have received three amicus briefs: one from The American Public Health Association, The National Association of Social Workers, The National Association of Social WorkersOklahoma Chapter, The Center for Law and Education, The National Center for Youth Law, The Juvenile Law Center, The Loyola ChildLaw Center, Advocates for Children of New York, Lawyers for Children, Covenant House New Jersey, Professor Martin Guggenheim, Professor Randy Hertz, and the American Academy of Pediatrics, in support of plaintiffs; one from The Oklahoma State School Boards Association and The National School Boards Association, in support of the District; and one from the Washington Legal Foundation, United States Senators Judd Gregg and Don Nickles, Governor Frank Keating, Representative Fred S. Morgan, the Oklahoma Secondary Schools Activities Association, the Allied Educational Foundation, Gayla D. Duke, Rhonda Ellard, Debra Fletcher, Bobbette Hamilton, Jimmy and Sheila Jordan, Michael and Kim Rawls, Stewart and Roshel Stabel, Kenneth A. Stanley, Kris Steele, Clyde L. and Gail A. Topping, Mike and Valerie Tucker, and Steve and Lynne Young, in favor of the District.

        Because we conclude that the policy violates the Fourth Amendment, we reverse and remand this case.

        BACKGROUND

        Tecumseh High School has for many years offered a variety of extracurricular activities for students interested in participating therein. Such activities have included the choir, band, color guard, Future Farmers of America ("FFA"), Future Homemakers of America ("FHA"), and the academic team. Additionally, it has also sponsored athletic teams, cheerleaders and Pom Pon.2 "The vast majority of students participate in one or more school-sponsored activities." Earls v. Bd. of Educ., 115 F.Supp.2d 1281, 1282 (W.D. Okla. 2000).

        On September 14, 1998, the District adopted the Student Activities Drug Testing Policy (the "Policy") requiring drug testing of all students who participate "in any extra-curricular activity such as FFA, FHA, Academic Team, Band, Vocal, Pom Pon, Cheerleader and Athletics." Tecumseh Public Schools Student Activities Drug-testing Policy at 2, Appellants' App. Vol. I at 107. Each student seeking to participate in such activities must sign a written consent agreeing to submit to drug testing prior to participating in the activity, randomly during the year while participating, and at any time while participating upon reasonable suspicion. The test detects amphetamines, cannabinoid metabolites (marijuana), cocaine, opiates, barbiturates and benzodiazepines. It does not detect alcohol or nicotine. Students subject to the Policy must pay a yearly fee of four dollars. Although the Policy does not expressly so state, it is undisputed that the Policy has in fact only been applied to those extracurricular activities involving some aspect of competition and which are sanctioned by the Oklahoma Secondary Schools Activity Association ("OSSAA").

        The district court described the actual drug testing process as follows, which the parties do not dispute:

        [T]he students to be tested are called out of class in groups of two or three. The students are directed to a restroom, where a faculty member serves as a monitor. The monitor waits outside the closed restroom stall for the student to produce the sample. The monitor pours the contents of the vial into two bottles. Together, the faculty monitor and the student seal the bottles. The student is given a form to sign, which is placed, along with the filled bottles, into a mailing pouch in the presence of the student. Random drug testing was conducted in this manner on approximately eight occasions during the 1998/1999 school

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year. Approximately twenty students were tested each time.

        Earls, 115 F.Supp.2d at 1290-91. At the time of the testing, the monitor also gives each student a form on which he or she may list any medications legally prescribed for the student. According to the Policy, "[t]he medication list shall be submitted to the lab in a sealed and confidential envelope and shall not be viewed by district employees." Policy at 5, Appellants' App. Vol. I at 110.

        The results of the drug tests are placed in confidential files separate from the students' other educational files. They "shall be disclosed only to those school personnel who have a need to know, and will not be turned over to any law enforcement authorities." Id. Students who refuse to submit to the drug testing under the Policy are prohibited from participating in any extracurricular activities. There are no academic sanctions imposed.

        Plaintiff Lindsay Earls is a member of the show choir, the marching band and the academic team. Plaintiff Daniel James apparently seeks to participate in the academic team and was enrolled during the 1999-2000 school year in the academic team class. They and their parents challenge the application of the Policy to them as a condition to their participation in those activities. Plaintiffs do not challenge the policy as it applies to athletes.

        DISCUSSION

        We review de novo the district court's grant of summary judgment. Phelan v. Laramie County Cmty. Coll. Bd. of Trs., 235 F.3d 1243, 1246 (10th Cir. 2000). Accordingly, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled...

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