Acton v. Vernonia School Dist. 47J, 92-35520

• Decision Date: 05 May 1994
• Docket Number: No. 92-35520,92-35520
• Citation: 23 F.3d 1514
• Parties: , 91 Ed. Law Rep. 495 Wayne ACTON and Judy Acton, guardians ad litem for James Acton, Plaintiffs-Appellants, v. VERNONIA SCHOOL DISTRICT 47J, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1514

23 F.3d 1514

62 USLW 2714, 91 Ed. Law Rep. 495

Wayne ACTON and Judy Acton, guardians ad litem for James

Acton, Plaintiffs-Appellants, v. VERNONIA SCHOOL DISTRICT 47J, Defendant-Appellee.

No. 92-35520.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 3, 1993.

Decided May 5, 1994.

Thomas M. Christ, ACLU Found. of Oregon, Inc., Portland, OR, for plaintiffs-appellants.

Timothy R. Volpert, Chris L. Mullman, Tremaine, A. Gregory Powell, Davis Wright Tremaine, Portland, OR, for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: REINHARDT, BRUNETTI, and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Wayne and Judy Acton, guardians ad litem for James Acton, appeal the district court's judgment at trial that the Vernonia School District's mandatory random drug testing policy for participants in interscholastic athletics ("the Policy") does not violate James's right to be free from unreasonable searches, under either Article I, Section 9 of the Oregon Constitution or the Fourth Amendment. We reverse.

BACKGROUND

The District runs two schools, Washington Grade School and Vernonia High School. Several teachers in the District testified that prior to 1985 drugs and alcohol were used by only a small group of students and that there were very few discipline problems in the schools. Between 1985 and 1989, however, teachers and administrators began to perceive a marked increase in disciplinary problems, student drug use, and the glorification of drug culture. Athletic coaches noticed an increase in the number and severity of injuries, which they attributed to greater drug use. They testified to a number of incidents where students had, or were suspected to have, used drugs. They personally saw some of the problems, but were told of others. Some of the involved students were athletes and others were not. Among other things, one teacher had often seen students smoking marijuana during the school day at a coffee shop across the street from the high school. An English teacher received several essays describing and glorying in scenes of student drug and alcohol use. At one wrestling meet a boy was seriously injured when he failed to perform a basic well-drilled safety maneuver. The student's hotel room smelled of marijuana when the coach later went to check on his condition. Parents reported that they had heard of drug use on a football trip, and students confronted by the principal admitted that they had used marijuana. Students even formed rowdy groups. One group called itself the "Big Elk." It was composed largely of athletes. Another group called itself the "Drug Cartel."

By 1989, Mr. Aultman, the principal of the grade school, and his faculty felt that they had to do something to combat the growing drug problem. They had attempted drug education programs and even a drug-sniffing dog, but they noticed no decrease in disciplinary problems or in drug use. They decided to institute the Policy.

The Policy was unanimously adopted by the Vernonia School Board in the fall of 1989. By its terms, all students who want to participate in interscholastic athletics are required to sign a form authorizing the District to perform a drug test on a urine sample provided by the student. All interscholastic student-athletes are tested at the beginning of each athletic season in which they compete. During the season, student athletes are tested at random on a weekly basis.

Boys and girls are tested in different areas of the school. Girls go to the office of Ms. King, the director of girls' athletics, and boys Samples are sent to Metrolab, a private company that specializes in drug testing by urinalysis. Security procedures protect the chain of possession and the identity of the student. The tests screen for creatinine, amphetamines, cocaine, marijuana and LSD. They are approximately 99.94% accurate. Test results are reported by telephone to authorized District personnel. Positive tests are mailed to the District's superintendent.

go to the boys' locker room. Each student fills out part of a specimen control form, which assigns a number to the specimen. The faculty monitor then gives the student a testing packet, which contains a cup and a vial. Boys go to the urinals in the boys' locker room bathroom and produce a specimen in the cup. A male faculty member, either Mr. Aultman or Mr. Svenson, a coach, is seated on a bench some 12 to 15 feet away while the boy urinates. The student remains fully clothed with his back to the monitor. At no time does the monitor have a view of the student's genitals. Aultman and Svenson testified that they do not always watch the student while he produces the specimen, but they generally listen for the normal sounds of urination. After the student produces the specimen, he returns the cup to the monitor who checks it for temperature and obvious signs of tampering. The monitor pours the specimen into the vial. The procedure for girls differs only slightly.

If a student's test returns positive, a second test is administered as soon as possible to confirm the results. The District notifies the student's parents after the second positive test. If the second test is negative, no disciplinary action is taken. A student who returns two positive tests is given two options. The student may either participate in a drug counseling program for six weeks and submit to weekly drug tests or accept a suspension from the athletic program for the remainder of the current season and the entire following athletic season.

For the second offense, the Policy states that a student is suspended from participating in athletics for the remainder of the current season and the next athletic season, with no other option. The third offense draws a suspension for the remainder of the current season and the next two athletic seasons with no opportunity to reduce the penalty. Any student who refuses to submit to a drug test at any time is suspended from the team for the remainder of the athletic season.

James was a seventh grader at Washington Grade School during the 1991-92 academic year. In the fall, he tried out for the football team. At the first practice team members were given drug testing consent forms to sign and to have their parents sign. James brought the form home, but he and his parents decided that they did not want to sign the form. Because James refused to consent to drug testing, he was suspended from interscholastic athletics for the season. No evidence suggested that James has ever used drugs or that the District has any reason to suspect that he has.

James's parents brought this action claiming that the Policy violated James's right to be free from unreasonable government searches under both the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Oregon Constitution. After a trial, the district court rejected both claims. Acton v. Vernonia Sch. Dist., 796 F.Supp. 1354 (D.Or.1992) (Acton I ). This appeal ensued.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction over the Fourth Amendment claim under 28 U.S.C. Sec. 1331. It had supplemental jurisdiction over the Oregon constitutional cause of action. 28 U.S.C. Sec. 1367(a). We have jurisdiction under 28 U.S.C. Sec. 1291.

We review the district court's findings of fact for clear error. Fed.R.Civ.P. 52(a). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Questions of federal law are reviewed de novo, Bordallo v. Reyes, 763 F.2d 1098, 1102 (9th Cir.1985), as are questions of state law,

In re McLinn, 739 F.2d 1395, 1403 (9th Cir.1984) (en banc).

DISCUSSION

The Actons assert that the District failed to prove that there actually was a drug problem. They say that there was no foundation upon which to build a drug policy. They go on to argue that even if there were a drug problem, it did not justify a random testing program. We disagree with their first contention, but agree with the second one.

Before turning to a discussion of the substantive issues, we must address the somewhat arcane question of whether we should decide this case on the basis of the Oregon Constitution or on the basis of the United States Constitution. We have held that when the state and federal constitutional provisions are "coextensive," we can decide the federal constitutional claims because that will also decide the state constitutional claims. See Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 705 n. 4 (9th Cir.1992). However, if they are not coextensive and the state constitution actually gives more protection than the federal constitution, we decide validity under the state constitution in order to avoid addressing federal constitutional claims unnecessarily. See, e.g., Ellis v. City of La Mesa, 990 F.2d 1518, 1524 (9th Cir.1993); Hewitt v. Joyner, 940 F.2d 1561, 1565 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992). Oregon presents us with a variation on these themes.

The language of Article I, Section 9 of the Oregon Constitution regarding searches and seizures is almost exactly the same as the language of the Fourth Amendment. To the extent the provisions read differently, the Oregon courts have said that the language differences are of no consequence. See State v. Flores, 280 Or. 273, 279-81, 570 P.2d 965, 968-69 (1977). Nonetheless, Oregon insists that its constitutional provision can give more protection than the federal constitution and that it sometimes does so. See State v. Caraher, 293 Or. 741, 748-50, 653 P.2d 942, 946-47 (1982); see also State v. Florance, 270 Or. 169, 182-83, 527 P.2d 1202, 1208-09 (1974), overruled on other grounds by Carahe...