Theodore v. Delaware Valley School Dist.

• Decision Date: 20 November 2003
• Citation: 575 Pa. 321,836 A.2d 76
• Parties: Louis THEODORE, Mary Ellen Theodore and Jennifer Lynn Theodore, Individually and Louis Theodore and Mary Ellen Theodore, as the Natural Guardians of the Infant Kimberly Ann Theodore, Appellees v. The DELAWARE VALLEY SCHOOL DISTRICT, Appellant. Louis Theodore, Mary Ellen Theodore and Jennifer Lynn Theodore, Individually and Louis Theodore and Mary Ellen Theodore, as the Natural Guardians of the Infant Kimberly Ann Theodore, Appellants v. The Delaware Valley School District, Appellee.
• Court: Pennsylvania Supreme Court

836 A.2d 76

575 Pa. 321

Louis THEODORE, Mary Ellen Theodore and Jennifer Lynn Theodore, Individually and Louis Theodore and Mary Ellen Theodore, as the Natural Guardians of the Infant Kimberly Ann Theodore, Appellees v. The DELAWARE VALLEY SCHOOL DISTRICT, Appellant.

Louis Theodore, Mary Ellen Theodore and Jennifer Lynn Theodore, Individually and Louis Theodore and Mary Ellen Theodore, as the Natural Guardians of the Infant Kimberly Ann Theodore, Appellants v. The Delaware Valley School District, Appellee.

Supreme Court of Pennsylvania.

Resubmitted August 12, 2003.

Decided November 20, 2003.

Melinda B. Kaufmann, Stephen S. Russell, New Cumberland, for Delaware Valley School Dist.

Vern Scott Lazaroff, Robert N. Isseks, Pro Hac Vice, Alex Smith, Pro Hac Vice, for Louis Theodore, et al.

Before: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION OF THE COURT

Justice CASTILLE.

In 1998, the Delaware Valley School District (the "School District" or "District") adopted a policy which authorizes random, suspicionless drug and alcohol testing of students who hold school parking permits or participate in voluntary extracurricular activities. Appellees Louis and Mary Ellen Theodore, whose two daughters were subject to the policy, filed a complaint seeking to enjoin the testing policy on grounds that, inter alia, it violated their daughters' right to privacy under Article I, Section 8 of the Pennsylvania Constitution. The primary question in this appeal is whether, for purposes of the preliminary objections subsequently filed by the School District, the policy must be deemed constitutional as a matter of law. Because we reject the District's argument that the policy is constitutional as a matter of law, we affirm the decision of the Commonwealth Court which reinstated the complaint and permitted the case to go forward.

On May 14, 1998, the District, which is located in Pike County, adopted Policy 227, made effective July 1, 1998, which required all middle and high school students seeking to participate in extracurricular activities or requesting permission to drive to school or park at school to sign, or have a parent sign,¹ a "contract" consenting to testing for alcohol and controlled substances.² The policy defines extracurricular activities as all athletics, clubs, and other activities in which students participate on a voluntary basis, and for which academic credit is not awarded. The policy includes the following statement of purpose:

As representatives of the school district and leaders in their schools, students involved in extracurricular programs and students who drive to school are expected to exemplify high standards by the public and are held in high esteem by other students. Participants in extracurricular programs and those who drive to school are expected to accept the responsibilities accompanying these opportunities.

Deterring drug use by school students is important. School years are the time when the physical, psychological, and addictive effects of drugs are most severe. The effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, because the educational process is disrupted.

With regard to school athletes and student drivers, the risk of immediate physical harm to the drug and alcohol user or those with whom he/she is playing a sport or sharing the highway is particularly high. Apart from psychological effects, which include impairment of judgment, slowing of reaction time, and a lessening of the perception of pain, alcohol and the particular drugs screened by this policy pose substantial physical risks to athletes and drivers. Extracurricular participants, whether athletes or not, are student leaders and, as such, serve as role models for their peers and for young children as well. The use of drugs and alcohol by these role models exacerbates the problem of illegal substances in our schools.

Nothing in this statement of purpose, or in any other pleading of record, suggests that the class of students targeted for random testing were the source of an existing, active drug problem in the District. Moreover, at least at this stage of the proceeding, it appears that certain students (i.e., non-athlete, non-driving extracurricular participants deemed, by that status, to be "student leaders") were targeted for symbolic reasons, since they were deemed to be "role models."

The signed contract is effective for one year and authorizes school officials to collect breath, urine and blood samples from the student. The samples cannot be used to test for any medical condition other than the presence of a specific list of intoxicants. Students may not refuse to submit to a test without penalty, for any such refusal (or any alteration of a test sample) is considered the equivalent of a positive test result. Policy 227 defines a positive test result as one that reflects either a blood alcohol content (BAC) level of at least .02 percent or the presence of any level of a controlled substance. The School District bears all costs associated with the testing.

Testing is required in five different circumstances: initial testing, random testing, reasonable suspicion testing, return-to-activity testing, and follow-up testing. Students must submit to testing initially when they register for an extracurricular activity or apply for a parking permit.³ The School District randomly tests five percent of the targeted students on a monthly basis. Random testing is unannounced and occurs throughout the school year. The selection of students for random testing is accomplished "by a scientifically valid method," and each student has an equal chance of being selected with each random sampling. When the sponsor of an extracurricular activity or another authorized adult has reasonable individualized suspicion that an extracurricular student or student with parking privileges has used alcohol or an enumerated controlled substance, the District conducts reasonable suspicion-based testing. Before a student who tests positive for any banned substance may resume extracurricular activity or parking privileges, he or she must undergo return-to-activity testing. Follow-up testing, which proceeds unannounced, is implicated when a covered student needs assistance in resolving problems associated with drug or alcohol use as determined by a substance abuse professional.

Under Policy 227, if a breath, urine, or blood test reveals the presence of alcohol or drugs, and the positive result is confirmed, a medical review officer conducts an investigation—which may include an interview with the student and a review of the student's medical history or "other biomedical factors"—to determine whether there is an alternative explanation for the result. The student and the student's parents are provided an opportunity to address a positive result. If no alternative explanation exists, the positive result is reported to the school's athletic director and principal. Within three days of that report, the student or parents may request a retest of the sample.

If no retest is requested, or if the retest confirms the presence of intoxicants, the positive result is disclosed to school personnel deemed to have a "need to know," which includes the guidance counselor, the student's coach and/or advisor, the designated substance abuse professional, and the "Student Assistance Team."⁴ These school representatives are required to protect the confidentiality of the test results. Additionally, the policy contemplates that the principal (or designee) will hold a parent conference to discuss the test result, and the student must participate in a drug/alcohol assessment with a certified evaluator. A student who tests positive for the first time must also participate in a drug assistance program, must submit to weekly testing for six weeks, and is suspended from athletics, club events, and performances and/or parking privileges for a period of time. The suspension extends to one calendar year upon a second positive test, and to all remaining school years upon a third. The fact of a positive test is not disclosed to law enforcement or juvenile authorities (unless under legal compulsion such as a subpoena), nor does it constitute grounds for suspension or expulsion from school or otherwise affect the student's academic standing.

Jennifer Lynn Theodore and Kimberly Ann Theodore ("the students") were subject to mandatory urinalysis testing under Policy 227 because Jennifer participated in the National Honor Society, Science Olympiad, and Scholastic Bowl, while Kimberly participated in tennis, swimming, and track, and had a parking permit. Both girls were required to provide urine samples: Kimberly on August 27, 1998, and Jennifer on or about November 4, 1998. Both tests returned negative for any banned substance. In January, 1999, the students' parents, Louis and Mary Ellen Theodore (appellees), filed suit in the Court of Common Pleas of Pike County, both individually and as their daughters' natural guardians, seeking to enjoin the School District from continuing to test students. In their amended complaint, appellees contended that their daughters had been forced to submit urine samples against their wills and asserted that Policy 227 deprives students of their right to be free from unreasonable searches and seizures as guaranteed by Article I, Section 8 of the Pennsylvania Constitution.⁵ Appellees also alleged that the policy violated their parental rights because test results are disclosed to others and the mandatory counseling contemplated by the policy, upon a test returning positive, invades their fundamental right to make decisions involving their children's health care.

The School District filed preliminary objections in the nature of a demurrer, claiming (1) that appellees lacked standing in their individual capacities; and (2) that the complaint did not state a case...