Trinidad School Dist. No. 1 v. Lopez By and Through Lopez
| Decision Date | 29 June 1998 |
| Docket Number | No. 97SC124,No. 1,1,97SC124 |
| Citation | 963 P.2d 1095 |
| Parties | 129 Ed. Law Rep. 812, 98 CJ C.A.R. 3450 TRINIDAD SCHOOL DISTRICT NO. 1; the School Board of Trinidad School District; Louise Terry, President of School Board, in her official capacity; Sally Fabec, School Board member, in her official capacity; Felix A. Morreli, School Board member, in his official capacity; Charles Lochard, School Board member, in his official capacity; Rae Bulson, School Board member, in her official capacity; David Van Sant, Superintendent, in his official capacity; and Roy Bezona, Principal, in his official capacity, Petitioners/Cross-Respondents, v. Carlos R. LOPEZ, a minor child, By and Through his next friends, parents, and guardians, Luis A. LOPEZ and Marie S. Lopez, Respondents/Cross-Petitioners. |
| Court | Colorado Supreme Court |
Caplan and Earnest LLC, Alexander Halpern, W. Stuart Stuller, Boulder, Lee Allen Hawke, Trinidad, for Petitioners/Cross-Respondents.
The Law Offices of Luis A. Lopez, Luis A. Lopez, K. John Tannous, Trinidad, for Respondents/Cross-Petitioners.
We granted certiorari to review a drug testing policy promulgated by the Trinidad School District No. 1 Board of Education (Board) in July 1996. 1 The policy mandated suspicionless urinalysis drug testing of all sixth through twelfth grade students participating in extracurricular activities. At the beginning of the 1996-1997 school year, the Trinidad School District No. 1 (School District) began regular testing of all students who wanted to take part in extracurricular activities. Carlos Lopez, a senior high school student who was enrolled in two for-credit band classes and participated in the school's marching band, refused to consent to the mandatory drug testing. Consequently, the District superintendent suspended Lopez from the band classes and the marching band. 2
Lopez, by and through his parents, filed a complaint for permanent injunctive and declaratory relief on September 6, 1996 in the Las Animas County District Court (trial court). Lopez alleged among other things that the Policy violated his right to be free from unreasonable searches and seizures, as guaranteed by the Fourth Amendment to the United States Constitution. 3 Additionally, Lopez alleged that the Policy violated article II, section 7, of the Colorado Constitution. 4 Lopez requested that the trial court enjoin the implementation of the Policy and that he be reinstated to the band classes and marching band.
After entering a temporary restraining order that required the District to reinstate Lopez to the band classes and the marching band, the trial court conducted a two day trial on Lopez's underlying complaint. In an order dated December 19, 1996, the trial court entered its findings of facts, conclusions of law, and judgment. The trial court held that the Policy was not unconstitutionally vague and that the Policy did not violate either the Fourth Amendment to the United States Constitution or article II, section 7, of the Colorado Constitution.
Lopez appealed from the trial court's order to the court of appeals. Pursuant to C.A.R. 50, both parties then sought expedited certiorari review in this court, which we granted. We now reverse. We hold that, under the facts of this case, the Policy is unconstitutional with respect to the marching band. 5
The Policy, entitled "Drug Testing Student Athletes/ Cheerleaders/Extra Curricular," mandates drug testing for all students in grades six through twelve who want to participate in an extracurricular activity. 6 Under the Policy, the school principal is required to ensure that a student successfully completes an annual drug test prior to participating in the student's chosen first extracurricular activity of the year. In addition to the mandated testing, the Policy allows school officials to test any student participating in an extracurricular activity based on a reasonable suspicion that the student is under the influence of illicit drugs and/or alcohol. The Policy also requires that a student and the student's parent sign a written form acknowledging the student's consent to be tested. Any student who has been or is currently taking a prescription medication must disclose the use of that medication to school officials before taking the test.
The Policy establishes more severe consequences for successive violations. When a student's drug test indicates a positive result, the laboratory conducting the test performs a second test to confirm the results. If the second test is positive, the student's parent or guardian will be notified and the principal will conduct a due process hearing with the student and his or her parent or guardian. The student then must participate in a drug assistance program and undergo weekly drug tests over a six-week period. If the student refuses, the student will be suspended from participating in extracurricular activities for the current and subsequent seasons and must be tested again prior to the next season for which the student is eligible. If the student commits a second offense, the student's parent or guardian is notified, a due process hearing is held, and the student is suspended from participation in extracurricular activities for the current and subsequent seasons. Thus, when a student commits a second offense, the student does not have the option of enrolling in a drug assistance program in order to participate in the extracurricular activity. Finally, if a student commits a third offense, the student's parents are notified, a due process hearing is held, and the student is suspended from extracurricular activities for the current and next two seasons.
The Board adopted the Policy after two years of study led by the District's former superintendent. The superintendent hired The Search Institute of Minneapolis, Minnesota (Institute) to conduct an attitudinal and behavioral survey in grades six through twelve in the District. 7 The Institute reported that 44% of all students in grades six through twelve had used an illicit drug during the preceding twelve months, ranging from 23% in the sixth grade to 63% in the eleventh grade. According to the Institute's report, drug use in Trinidad schools exceeded national statistics. For example, 63% of Trinidad seniors reported using marijuana once in their lifetimes, compared to 35% nationally; 13% of seniors reported one-time cocaine use, compared to 6% nationally; and 20% of eighth grade students reported frequent drug use, compared to 5% nationally.
The trial court found that the scope of the drug problem, which it described as "serious, growing, and immediate," was confirmed by drug-related expulsions and testimony of the administrators, teachers, and coaches in the Trinidad schools. The trial court also found that the level of drug use was approximately the same in the student body generally as it was among participants in athletics and other extracurricular activities. 8
At the same time, however, the band director testified that he did not believe that drug use among band members had increased during the three years preceding the adoption of the Policy. He also testified that in his twenty-three years as the band director, no band member had ever been injured due to alcohol or drug use and there had never been an incident in which a band member had not been able to perform due to alcohol or drug use. In his view, band members were well-behaved and treated the other students with respect. The band director's testimony was mirrored by Dr. Fabec, a Board member, who testified that, in comparison to the student body generally, band members and others participating in extracurricular activities had better discipline records, were "less problematic," and were leaders of the student body in academic performance.
In its findings, the trial court explained the Board's reasons for selecting students involved in extracurricular activities as the target testing group. The trial court stated:
These groups were selected for testing because they are role models for other students, and particularly for younger students. Participants in extracurricular activities have a high profile in the schools and within the community. They are representatives or ambassadors of the school district. For these purposes, marching band members are the same as student athletes, and cheerleaders. They represent the school at athletic events, fairs, and state competitions. Band members wear uniforms in the school colors with the school's name.
The trial court also found that some student athletes were using drugs and were encouraging others to do so.
The District began implementing the Policy at the beginning of the 1997 school year. The District hired an independent testing firm, New Choices, to administer the drug tests, to arrange for chemical analysis of the samples, and to report the test results to the administration. All students participating in the fall high school activities of volleyball, football, golf, cheerleading, and the marching band were required to submit to pre-participation drug testing. The District also tested students participating in the fall junior high school activities of volleyball, football, and cheerleading. In total, 181 out of approximately 500 high school students were tested and 90 out of 333 junior high school students were tested. Thus, approximately one in every three high school students was tested and one in every four junior high school students was tested.
The New Choices Director described the collection of band members' urine samples in the following manner. Students were called out of band class by grade level and taken to the high school gymnasium. Each student proceeded to a table staffed by the New Choices Director, presented the consent form, completed paper work related to the testing, and received a container in which the student was to provide a urine sample. A...
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