Todd v. Rush County Schools, 97-2548

• Decision Date: 19 March 1998
• Docket Number: No. 97-2548,97-2548
• Citation: 139 F.3d 571
• Parties: William P. TODD and Diana J. Todd, on their own behalf and as next friends for their son, William Matthew Todd, Steve Hammons, et al., Plaintiffs-Appellants, v. RUSH COUNTY SCHOOLS and Ed Lyskowinski, in his official capacity as Superintendent of the Rush County Schools, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 571

139 F.3d 571

William P. TODD and Diana J. Todd, on their own behalf and

as next friends for their son, William Matthew

Todd, Steve Hammons, et al., Plaintiffs-Appellants, v. RUSH COUNTY SCHOOLS and Ed Lyskowinski, in his official

capacity as Superintendent of the Rush County

Schools, Defendants-Appellees.

No. 97-2548.

United States Court of Appeals, Seventh Circuit.

Submitted Jan. 29, 1998.

Decided March 19, 1998.

Kenneth J. Falk (submitted), Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiffs-Appellants.

Rodney V. Taylor, David J. Theising, Christopher & Taylor, Indianapolis, IN, John O. Worth, Rushville, IN, for Defendants-Appellees.

Before POSNER, Chief Judge, and CUMMINGS, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD and EVANS, Circuit Judges.

On consideration of the petition for rehearing with suggestion for rehearing en banc filed by plaintiffs-appellants and the answer of defendants-appellees, all of the judges on the original panel voted to deny rehearing and a majority of the judges in active service voted to deny rehearing en banc. Judge Kenneth F. Ripple dissented from the denial of rehearing en banc and filed an opinion which was joined by Judge Ilana Diamond Rovner. Judge Diane P. Wood dissented from the denial of rehearing en banc and filed an opinion which was joined by Judge Joel M. Flaum.

The petition for rehearing is denied.

RIPPLE, Circuit Judge, with whom ILANA DIAMOND ROVNER, Circuit Judge, joins, dissenting from the denial of rehearing en banc.

This case presents an important and recurring issue with respect to the scope of suspicionless drug testing of children enrolled in public schools. Because the panel decision gives a very broad reading to the Supreme Court's holding in Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), and seemingly fails to take fully into account the Supreme Court's holding in Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997), further review is warranted if we are to avoid sanctioning, by implication, the use of a urine sample as the price of admission to the public schools in this circuit.

At issue in this case is a suspicionless drug testing program for all students who wish to participate in any extracurricular activity offered by the school. Students who wish to participate in such activities as foreign language clubs, the Future Farmers of America or the Library Club must agree to submit to drug testing as a precondition of their participation. In Vernonia, the Supreme Court articulated the basic approach to suspicionless drug testing: The reasonableness of the search is to be determined by balancing the intrusion into a person's Fourth Amendment interests against the promotion of legitimate governmental interests. See 515 U.S. at 652-53, 115 S.Ct. at 2390-91. Vernonia involved a relatively straightforward situation, a drug testing program for student athletes. In examining the privacy interests at stake, the Court began its analysis by noting that the subjects of the test were school children who were committed to the temporary custody of the state as schoolmaster and therefore expected to be subjected to certain physical examination and inoculation requirements as a condition of their enrollment in the institution. The Court then proceeded to stress that student athletes have a lesser degree of privacy as part of their participation in athletics. Indeed, the Court detailed the locker room arrangements and the need for adherence to other training rules that impinge even more on their expectation of privacy. Id. at 657, 115 S.Ct. at 2392-93. The Court also noted that the process for obtaining the sample was not very intrusive and that the testing methodology was limited to the identification of controlled substances.

When the Court turned to the nature of the governmental interest, it mentioned the general concern of deterring drug use among youth. It then focused on the particular need to test the athletes. "[I]t must not be lost sight of that this program is directed more narrowly to drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high." Id. at 662, 115 S.Ct. at 2395. The Court then noted the "state of rebellion" that existed in that particular student body, especially among those involved in athletics. Id. at 663, 115 S.Ct. at 2395-96. Moving to the efficacy of the means chosen by school authorities to address the problem, the Court noted the "role model" effect of athletes and indeed recognized the wisdom of testing this select group as opposed to the entire student body. Id.

Vernonia is susceptible to several different interpretations: (1) that "special needs" justifying drug testing always exist in the public school context, and thus school authorities may require drug testing for any reason including controlling access to core classes, see, e.g., id. at 656, 115 S.Ct. at 2392; (2) that it is necessary to show a particularized governmental need to impose drug testing on a particular student population, see, e.g., Vernonia's "state of rebellion"; (3) that drug testing is permitted in special scholastic environments in which the need is well identified and the privacy expectations are diminished, see, e.g., id. at 657, 115 S.Ct. at 2392-93.

Chandler, in striking down a drug testing program for candidates for state office, emphasized that the state had not demonstrated a need for suspicionless searches of the defined group. The targeted group had not been found to have a high degree of drug use, nor did the group, as it was defined by the statute, perform highly sensitive safety-related tasks that required this scrutiny.

This case involves an attempt by a school district to subject to suspicionless testing a much broader group than the student athletes involved in the drug testing program in Vernonia. The interests of the Rush County school district are substantially different from the ones at stake in Vernonia. There is, of course, the residual interest of the district in protecting students from illicit drugs. But, unlike the situation in Vernonia, there is no showing of a particularized need because of a "state of rebellion" in the school, and certainly no showing...