Earls v. Board of Educ., Tecumseh Public School, No. Civ-99-1213-R.

• Decision Date: 09 March 2000
• Docket Number: No. Civ-99-1213-R.
• Citation: Earls v. Board of Educ., Tecumseh Public School, 115 F.Supp.2d 1281 (W.D. Okla. 2000)
• Parties: Lindsay EARLS, a minor, by her next friends and parents, John David EARLS and Lori Earls; and Daniel James, by his next friend and mother, Leta Hagar, Plaintiffs, v. BOARD OF EDUCATION OF TECUMSEH PUBLIC SCHOOL DISTRICT, Independent School District No. 92 of Pottawatomie County, Oklahoma; and Tecumseh Public School District, Independent School District No. 92 of Pottawatomie County, Oklahoma; Defendants.
• Court: U.S. District Court — Western District of Oklahoma

115 F.Supp.2d 1281

Lindsay EARLS, a minor, by her next friends and parents, John David EARLS and Lori Earls; and Daniel James, by his next friend and mother, Leta Hagar, Plaintiffs, v.BOARD OF EDUCATION OF TECUMSEH PUBLIC SCHOOL DISTRICT, Independent School District No. 92 of Pottawatomie County, Oklahoma; and Tecumseh Public School District, Independent School District No. 92 of Pottawatomie County, Oklahoma; Defendants.

No. Civ-99-1213-R.

United States District Court, W.D. Oklahoma.

March 9, 2000.

Micheal C. Salem, Salem Law Office, Norman, OK, Graham A. Boyd, New Haven, CT, for plaintiffs.

William P. Bleakley, Stephanie J. Mather, Linda M. Meoli, The Center for Education Law, Oklahoma City, OK, for defendants.

Margaret McMorrow-Love, Oklahoma City, OK, for Amicus.

ORDER

DAVID L. RUSSELL, Chief Judge.

Before the Court are the parties' cross-motions for summary judgment.Both sides seek summary judgment on the Plaintiffs' claims for declaratory and injunctive relief.

I.Summary of the Evidence.

The Plaintiffs, Lindsay Earls and Daniel James, are students at Tecumseh High School.The Defendants, Board of Education of Tecumseh Public School District and Tecumseh Public Schools, operate the school and establish and implement its policies.For many years, Tecumseh High School has offered a range of student activities, including choir, marching band, color guard, Future Farmers of America and Future Homemakers of America, which were generally open to all students who wished to participate.The school has also offered various team sports and other activities to a limited number of students on a competitive basis.The vast majority of students participate in one or more school-sponsored activities.PlaintiffLindsay Earls is a member of the show choir, the marching band and the academic team.PlaintiffDaniel James"seeks to participate" in the academic team in the 1999/2000 school year, and is enrolled in the academic team class.¹

On September 14, 1998, the school district adopted the Student Activities Drug Testing Policy ("the Policy"), which requires all students who participate in extracurricular activities to submit to suspicionless drug testing.(SeePlaintiff's Exhibit "O").By its terms, the Policy requires that "any student that represents Tecumseh Schools in any extracurricular activity such as FFA [Future Farmers of America], FHA [Future Homemakers of America], Academic Team, Band, Vocal, Pom Pon, Cheerleader and Athletics," will be barred from participating in such activities unless the student submits a written consent to drug testing.²Students are required to undergo drug testing before participating, randomly during the year while participating, and at any time while participating in competitive activities upon reasonable suspicion.The test used by the District detects only amphetamines, cannabinoid metabolites (marijuana), cocaine, opiates, barbiturates and benzodiazepines.³A yearly fee of four dollars is charged for each student participating in the drug testing program.⁴It is conceded that the Policy has been applied, since its inception, only to those extracurricular activities of a competitive nature.⁵The student Plaintiffs and their parents challenge those provisions of the Policy which require suspicionless drug testing of students participating in nonathletic activities.⁶

II.Reasonableness of the Policy.

The state-compelled collection and testing of urine constitutes a "search" governed by Fourth Amendment principles of reasonableness.Vernonia School District 47J v. Acton,515 U.S. 646 at 652 - 653, 115 S.Ct. 2386 at 2390, 132 L.Ed.2d 564(1995).Under the challenged Policy, the random acquisition and analysis of a urine sample is not supported by a warrant, probable cause, or individualized suspicion.As the Supreme Court has held, however, neither a warrant, nor probable cause, nor any measure of individualized suspicion is an indispensable component of reasonableness in every circumstance.Vernonia, supra;National Treasury Employees Union v. Von Raab,489 U.S. 656, 665 - 668, 109 S.Ct. 1384, 103 L.Ed.2d 685(1989).Officials are permitted to dispense with the warrant and probable cause requirements where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement.Id.

A.Existence of a Special Need.

The Supreme Court has historically found "special needs" to exist in the public school context, where 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 upon probable cause" would undercut "the substantial need of teachers and administrators for freedom to maintain order in the schools."Vernonia,515 U.S. at 653, 115 S.Ct. at 2391, citingNew Jersey v. T.L.O.,469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720(1985).⁷In Vernonia,the Supreme Court found that a public school district had sufficiently demonstrated a special need justifying a similar drug testing policy.⁸

The Plaintiffs argue that the Defendants have not made a similar showing of a "special need" beyond the need for normal law enforcement.⁹As the Plaintiffs point out, in approving the drug testing policy at issue in Vernonia,the Supreme Court stressed both the severity and the immediacy of the drug problem in the school district.The Court agreed with the district court's conclusion that "a large segment of the student body" was "in a state of rebellion," that disciplinary actions "had reached epidemic proportions," and that these problems were being "fueled by alcohol and drug abuse as well as by the students' misperceptions about the drug culture."515 U.S. at 662-663, 115 S.Ct. at 2395.¹⁰

Although the Vernonia Court emphasized the severity of the drug problem in that school, this Court does not view the majority's holding in Vernonia to be limited to those circumstances where the drug problem is of such magnitude.The Supreme Court has found special governmental needs to justify suspicionless drug testing in other contexts, without first finding a pervasive drug problem among the group to be tested.See, e.g., Skinner v. Railway Labor Executives' Ass'n,489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639(1989)(Upholding regulation requiring suspicionless drug testing of railroad employees involved in train crashes);Von Raab,489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685(Sustaining a Customs Service program requiring drug tests as a condition of promotion or transfer to positions directly involving drug interdiction or requiring the employee to carry a firearm).¹¹In these cases, the Court's findings of special need were not based upon any evidence of pervasive drug abuse among the groups to be tested; instead, the Court's findings were based on the fact that drug abuse by members of the targeted group presents special concerns.As the Supreme Court explained in Vernonia, illegal drug use by adolescent schoolchildren also presents special concerns.

The Plaintiffs' interpretation would mean that random drug testing of students by public school districts is not reasonable where illegal drug abuse by minor children is known to exist within a particular school unless the problem is shown to have reached epidemic proportions.This interpretation is plainly at odds with the Supreme Court's recognition of the heavy responsibility imposed upon school officials for the education, guidance and well-being of the minor children placed in their care, and the Court's recognition of the devastating effects of drug abuse by school children.

Admittedly the evidence in this case does not show an epidemic of illegal drug abuse in the Tecumseh School District.There is some evidence of student drug abuse dating back to the 1970's, which has continued to exist in more recent years.The school board president and three teachers testified on deposition that they had heard students speaking openly about using drugs in recent years.¹²Two teachers also testified that they had seen students who appeared to be under the influence of drugs.¹³Even the two student Plaintiffs have acknowledged that there is some drug abuse by Tecumseh High School students.¹⁴In recent years a drug dog has found marijuana cigarettes near the boundary of the school parking lot, and has alerted on a vehicle which contained "small particles and seeds of marijuana."¹⁵Police officers once found drugs or drug paraphernalia in a car driven by an FFA member.¹⁶

According to the School Board President, over the last two years, "people all over the community" were becoming more "aware" of the drug problem in the Tecumseh school.¹⁷In February 1998, a parent contacted the School Board President to discuss her concerns about drug use in the school.Later, this parent appeared at an open meeting of the School Board and openly discussed how drug use was affecting her son and his friends.¹⁸In the fall of 1998, "people were calling the [school] board members" to talk "about the drug situation."¹⁹Each of these situations arose after the District had taken numerous other measures to discourage drug abuse by its students.²⁰

In determining whether the Defendants have demonstrated a "special need" sufficient to justify suspicionless drug testing, the Court does not focus solely upon the evidence of actual use or possession of illegal drugs by students.Consistent with the Supreme Court's analysis in Vernonia, the Court considers not only this evidence, but such other factors as the cultural or social atmosphere in which students spoke openly of illegal drug use, even in the presence of teachers; phone calls to school board members from parents; and the public plea of a concerned mother who implored the school board to "do something" about the problem of drug use among the high school's students.²¹

The Plaintiffs cite several cases for the proposition that drug testing...