Schaill By Kross v. Tippecanoe Cty. School Corp.

• Citation: 679 F. Supp. 833
• Decision Date: 01 February 1988
• Docket Number: Civ. No. L 87-90.
• Parties: Darcy L. SCHAILL, by next friend, William and Mary KROSS; and Shelley M. Johnson, by next friend, Donald C. Johnson, Plaintiffs, v. TIPPECANOE COUNTY SCHOOL CORPORATION, Kenneth J. Koger, Superintendent of Tippecanoe County School Corporation, Gerald P. Risk as President of School Board Trustees, Paul A. Slavens, Joseph Albregts, Richard Harlow, Sr., James Mosley, Robert Berninger, Leslie Bryan, as Board of School Trustees of Tippecanoe School Corporation, Defendants.
• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana

679 F. Supp. 833

Darcy L. SCHAILL, by next friend, William and Mary KROSS; and Shelley M. Johnson, by next friend, Donald C. Johnson, Plaintiffs, v. TIPPECANOE COUNTY SCHOOL CORPORATION, Kenneth J. Koger, Superintendent of Tippecanoe County School Corporation, Gerald P. Risk as President of School Board Trustees, Paul A. Slavens, Joseph Albregts, Richard Harlow, Sr., James Mosley, Robert Berninger, Leslie Bryan, as Board of School Trustees of Tippecanoe School Corporation, Defendants.

Civ. No. L 87-90.

United States District Court, N.D. Indiana, Hammond Division.

February 1, 1988.

COPYRIGHT MATERIAL OMITTED

Louis Pearlman, Jr., Edward J. Nemeth, Lafayette, Ind., Richard A. Waples, Judith A. Stewart, Indianapolis, Ind., for plaintiffs.

James V. McGlone, Laura L. Bowke, Lafayette, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

On August 25, 1987, the plaintiffs filed a Complaint for Declaratory and Injunctive Relief, alleging a cause of action under Title 42 U.S.C. § 1983, with jurisdiction founded upon 28 U.S.C. §§ 1331 and 1343(a)(3) and (4).

On September 3, 1987, the court heard arguments of counsel and testimony of witnesses, received exhibits and directed that the parties file supplemental briefs. The defendants submitted a revised version of the drug testing program for high school athletes which is the subject of this suit. At the close of the hearing, the plaintiffs indicated a need to present additional evidence. Considering the ensuing statements of the parties by counsel and the nature of this case, the court set additional hearing dates and, pursuant to Rule 65(a)(2), ordered consolidation of the hearing on preliminary injunction with a full trial on the merits.

On December 7, and 8, 1987, the parties presented additional evidence. All issues have been fully briefed. Having held a complete trial on the merits, the findings of fact and conclusions of law in this opinion are intended to fulfill the requirements of Rule 52(a) of the Federal Rules of Civil Procedure.

I. FACTS

The plaintiffs, Darcy Schaill and Shelley Johnson are sophomores, as of the fall of 1987, at Harrison High School, one of two high school attendance centers of Tippecanoe County School Corporation (TSC). Each of the young women has stated a desire to participate in interscholastic sports, but both object to the school's intention to implement a random urinalysis drug testing program for athletes. There is no suggestion in this case that either plaintiff has ever used illicit drugs. Miss Johnson does take prescription medications for asthma and allergies.

TSC, the defendant school corporation, operates under the laws of Indiana, both Harrison and McCutcheon High Schools. McCutcheon serves about eleven hundred students, out of which about three hundred fifty are said to participate in interscholastic sports. The student population at Harrison is about twelve hundred fifty, including about four hundred student athletes.

Defendant Kenneth J. Koger is the Superintendent of TSC, and the additional named defendants make up the Board of Trustees, with Defendant Gerald P. Risk acting as president at all times relevant to this case. The defendants do not deny having acted under color of law in relationship to this action, and are sued in their official capacities.

In the spring of 1986, sixteen members of the McCutcheon baseball team provided urine samples to be analyzed for the presence of drugs. One student's analysis resulted in a definite positive reading. As a consequence, the student was suspended for one-half of the baseball season, but returned to finish the season, having tested negative on subsequent analyses. Four other athletes' tests showed traces of marijuana. These student athletes admitted to having smoked the drug within the preceding month. The following fall, having been warned there would be random tests resulting in possible suspensions, sixty-six McCutcheon athletes from all interscholastic fall teams were tested. All showed negative results, with none refusing to provide samples.

At this point the idea of developing a testing program at Harrison began to take shape. Although initially there was discussion about implementing a program throughout the corporation, upon referral to a committee and months of consideration, the board approved a policy of testing exclusively for athletes on August 12, 1987. A draft of the program was attached to the plaintiff's complaint, but, as previously mentioned, the defendants presented a current, more narrowly drawn version in open court on September 3, 1987. This version essentially reduced the discretion of coaches in the selection process, and spelled out more fully the procedures and ramifications of testing.

The program was scheduled to begin October 1, 1987, but early attempts toward implementation resulted in this suit. Consequently, implementation was halted pending a court decision. Assuming an outcome in its favor, TSC intends during the 1987-88 academic year, to require that students involved in interscholastic sports submit the following form:

I have received and have read and understand a copy of the "TSC DRUG EDUCATION AND TESTING PROGRAM." I desire that ______ _____ participate in this program and in the interscholastic athletic program of ______ School and hereby voluntarily agree to be subject to its terms. I accept the method of obtaining urine samples, testing and analyses of such specimens, and all other aspects of the program. I agree to cooperate in furnishing urine specimens that may be required from time to time.

I further agree and consent to the disclosure of the sampling, testing and results as provided for in this program. This consent is given pursuant to all State and Federal Privacy Statutes and is a waiver of rights to non-disclosure of such test records and results only to the extent of the disclosures authorized in the program.

The student and his or her custodial parent or guardian must sign and date the form, submitting it as a condition precedent to practice or participation in any given athletic season. The program requires that all student athletes attend one educational session or more and receive copies and an explanation of the program.

By way of overview, TSC's program and policy statement begins with a reflection on the seriousness of drug and alcohol problems in the schools, stating as a general principle, and as a matter within the experience of the drafters, that "some student athletes have used alcohol and have experimented with `street drugs' such as Marijuana and Cocaine, or may do so during their middle or high school years." The policy statement expresses that the drafters "have information indicating drug usage by members of interscholastic teams of TSC." It is further observed that "the NCAA encourages its members to undertake their own programs to test for the possible use of `street drugs' and `performance enhancing drugs.'"

The revised version of the TSC program clarifies that its purposes are educational, diagnostic and preventative, as opposed to punitive or disciplinary. The program is intended to involve all participants in interscholastic sports teams, both male and female, as well as members of cheerleading teams, all of whom are collectively denominated "student athletes."

As part of the rationale, the program adds that student athletes are especially respected by the student body, and accordingly are expected to be "good examples of conduct, sportsmanship and training, which includes avoiding drug and alcohol usage." Moreover, the program proposes that a participant who uses drugs can be a danger to self or others. The purposes of the program are stated as follows:

... to prevent drug and alcohol usage, to educate student athletes as to the serious physical, mental and emotional harm caused by drug and alcohol abuse, to alert student athletes with possible drug problems to the potential harms, to prevent injury, illness and harm as a result of drug and alcohol abuse, and to maintain at TSC high schools an athletic environment free of alcohol and drug abuse.

The athletic director, or the head coach of each team within that coach's season, are authorized to initiate a selection of student athletes for testing. The program sets no limit as to the number of individuals to be selected nor the number of times that selections will be made. Each student athlete is assigned a number, with one cross-reference list, which is kept by the athletic director. When a selection is made, the numbers of all team members are to be placed in a box and drawn randomly. Once selected, the student athlete must "provide a sample of his or her urine in a verifiable manner, but the collection of the sample shall not be physically observed." The sample bottle is to be labelled with the date and the student athlete's number, whereupon he or she and the athletic director will initial the cross-reference list to verify its accuracy. At this point the sample will be given to a "competent laboratory" which may test for "alcohol, `street drugs' ... and `performance enhancing drugs' (such as steroids)." Only the head coach, the athletic director and the staff member obtaining the sample, will know of a selection. Only the student athlete, his or her custodial parent or parents or guardian, the athletic director, and the head coach will be informed of the results. The student athlete is advised to inform the athletic director if he or she takes medication that might contribute to a positive test result. A test result is considered positive only if, after using at least two types of analyses, it indicates that drug-residue substances are present in the system. Upon such a finding, the student athlete, parent or guardian will be given an opportunity to provide additional testing or other means of explaining the positive result. If no satisfactory explanation is made, counseling or other assistance might be...