Bally v. Northeastern University

• Decision Date: 09 January 1989
• Citation: 403 Mass. 713,532 N.E.2d 49
• Parties: , 50 Ed. Law Rep. 1167 David F. BALLY v. NORTHEASTERN UNIVERSITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 49

532 N.E.2d 49

403 Mass. 713, 50 Ed. Law Rep. 1167

David F. BALLY v. NORTHEASTERN UNIVERSITY.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 14, 1988.

Decided Jan. 9, 1989.

Jeffrey F. Jones (Michael N. Sheetz, Boston, with him), for defendant.

David C. Casey, Boston (David Hoffman, Acton, with him), for plaintiff.

James M. Shannon, Atty. Gen., and Virginia N. Lee and Barbara B. Dickey, Asst. Attys. Gen., for Atty. Gen., amicus curiae, submitted a brief.

Paul R. Friedman, Washington, D.C., of the District of Columbia, and Wayne S. Henderson, Boston, for New England Legal Foundation, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ. HENNESSEY, Chief Justice.

David F. Bally commenced this action before a single justice of the Supreme Judicial Court challenging Northeastern University's drug testing program for student athletes on its intercollegiate athletic teams. Bally alleged that Northeastern's policy requiring student athletes to consent to drug testing as a condition of participating in intercollegiate sports violated his civil rights under G.L. c. 12, §§ 11H and 11I, and his right to privacy under G.L. c. 214, § 1B, and constituted a breach of contract. The single justice denied Bally's motion for a preliminary injunction and transferred the case to the Superior Court in Suffolk County for further proceedings.

The parties filed a statement of agreed facts and Bally moved for summary judgment, seeking only declaratory relief. The Superior Court judge granted summary judgment for Bally on two counts, declaring that Northeastern's drug testing program violated G.L. c. 12, §§ 11H and 11I (Massachusetts Civil Rights Act), and G.L. c. 214, § 1B (right of privacy statute). The judge granted summary judgment for Northeastern on the third count, declaring that the university had not violated any contractual duties owed to Bally.

Only Northeastern appealed. We allowed Northeastern's application for direct appellate review. We now reverse the judgment.

We summarize the relevant facts from the agreed statement. Bally is a student at Northeastern University, a private, non-profit institution of higher education, in Boston. Until January, 1987, Bally was a member of the indoor and outdoor track teams, as well as the cross-country team. Northeastern places numerous conditions on participation in intercollegiate athletics, ¹ including signing of a National Collegiate Athletic Association (NCAA) ² student athlete statement. The statement includes an NCAA drug testing consent form. In 1986, Northeastern began to require that varsity athletes also sign the university's drug testing consent form authorizing drug testing by urinalysis as a condition of participation in intercollegiate athletics.

In November, 1986, Bally signed the NCAA student athlete statement for the 1986-1987 academic year. He later revoked it by a letter dated March 12, 1987. Bally refused to sign Northeastern's drug testing form, as well as the NCAA's drug testing consent form for the 1987-1988 academic year. Northeastern declared Bally ineligible to participate in the varsity indoor track and cross-country teams. Except for his refusal to sign the NCAA and Northeastern consent forms, Bally has met Northeastern's conditions for eligibility to compete in varsity sports.

Northeastern prohibits the use of those drugs which the NCAA has banned, including certain illicit drugs, some prescribed drugs, and some over-the-counter medications. The parties submitted, as part of their statement of agreed facts, a fifty-five page list of NCAA banned drugs. Northeastern's drug tests do not test for the presence of many of the drugs that the NCAA has banned. Northeastern's program requires that a student athlete consent to drug testing, through urinalysis, during post-season competition as well as during the regular season. The program requires that student athletes be tested once annually for certain drugs: viz., amphetamines, barbiturates, benzodiazepine, cannabinoid, cocaine, methaqualone, opiates, and phencyclidine. The program also mandates random testing throughout the academic year, and requires testing of athletes before any NCAA post-season competition. To date, Northeastern has only tested athletes participating in post- season NCAA competition. The random and post-season testing screen for the previously mentioned drugs, anabolic steroids (a substance which sometimes increases muscle mass and may enhance athletic performance), and testosterone. When presenting drug testing forms to student athletes and asking for their signatures, an athletic director explains that students who refuse to sign the consent form will be ineligible to participate in intercollegiate sports, and may lose any athletic scholarships.

Northeastern cites as its reasons for instituting its drug testing program a desire: (a) to promote the health and physical safety of student athletes; (b) to promote fair intrateam and intercollegiate competition; and (c) to ensure that Northeastern student athletes, as role models to other students and as representatives of Northeastern to the public, are not perceived as drug users.

The actual testing process requires that a monitor of the same sex as the student athlete observe the athlete's urination when providing a urine specimen. This is the only means of ensuring that the athlete submits his or her own urine to be tested. Drug-free urine is commercially available and, without a monitor, could be substituted for the athlete's. The urine specimens are labeled by a number code. Only the director of Northeastern's Lane Health Center and Student Health Services has access to the identity of the specimen's donor. A specimen which tests positive will be retested, by using another portion of the same sample. Specimens which test negative on either the initial or second test are not tested further.

If both the initial and second tests are positive, another portion of the same urine sample will be tested by a different method. If this test is positive, the student athlete is notified and requested to confer with the director of the University's Lane Health Center and Student Health Services. The director decides whether to begin counselling the student. The student athlete is given follow-up testing. If a follow-up test is negative, the individualized process ends and the student is simply once again subject to further testing. If a follow-up test is positive, the student is suspended from the team; the athletic director, head coach, and student's parents are notified; and the student athlete is required to attend a formal drug counselling program as a condition of further athletic participation. The student athlete is then tested at regular intervals and remains suspended from the team until he or she tests negative. If a student tests positive at any time after rejoining a team, he or she will be dismissed from the team for the entire academic year. Thereafter, any positive test result permanently bans the student from participating in intercollegiate athletics at Northeastern. At any point in the process, the student may appeal to the university's drug testing review and appeals committee.

The Superior Court judge declared that Northeastern's program violated Bally's rights under the Massachusetts Civil Rights Act and the right of privacy statute. ³ We do not agree.

1. G.L. c. 12, §§ 11H and 11I.

To establish a claim under the Massachusetts Civil Rights Act (Act), G.L. c. 12, § 11I, Bally must prove that (1) his exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth (2) has been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by "threats, intimidation or coercion." See G.L. c. 12, § 11H. ⁴

Even if we assume, without deciding, that, as Bally argues, Northeastern has interfered with his "secured" right to be protected against unreasonable searches and seizures and his right to be protected against invasion of his reasonable expectation of privacy under the Fourth Amendment, under art. 14, and under the right of privacy statute, his claim fails for lack of proof of "threats, intimidation or coercion." See G.L. c. 12, § 11H.

We have previously stated that this court's primary function in interpreting the Civil Rights Act is to ascertain the "intent of the Legislature, as evidenced by the language used, and considering the purposes and remedies intended to be advanced." Deas v. Dempsey, 403 Mass. 468, 470, 530 N.E.2d 1239 (1988), quoting Glasser v. Director of the Div. of Employment Sec., 393 Mass. 574, 577, 471 N.E.2d 1338 (1984). The Civil Rights Act was "intended to provide a remedy for victims of racial harassment." O'Connell v. Chasdi, 400 Mass. 686, 694, 511 N.E.2d 349 (1987), citing Batchelder v. Allied Stores Corp., 393 Mass. 819, 821, 473 N.E.2d 1128 (1985) (Batchelder II ). We have also recognized that, by reaching private party actions, the Legislature did not intend to create "a vast constitutional tort," and thus explicitly limited the Civil Rights Act's remedy to situations where the derogation of secured rights occurs by threats, intimidation or coercion. Bell v. Mazza, 394 Mass. 176, 182-183, 474 N.E.2d 1111 (1985). G.L. c. 12, § 11H.

Bally's claim differs from meritorious claims for which this court has granted relief under the Massachusetts Civil Rights Act. Thoses cases have all involved measures directed toward a particular individual or class of persons. For example, in Batchelder II, we held that a uniformed security officer ordering Batchelder to stop soliciting signatures and distributing his political handbills constituted sufficient intimidation or coercion to satisfy the Act. Batchelder II, supra 393 Mass. at 823, 473 N.E.2d 1128. In Bell v. Mazza, the defendant "threatened to do...