University of Colorado Through Regents of University of Colorado v. Derdeyn

• Court: Colorado Supreme Court
• Writing for the Court: LOHR
• Citation: University of Colorado Through Regents of University of Colorado v. Derdeyn, 863 P.2d 929 (Colo. 1993)
• Decision Date: 01 November 1993
• Docket Number: 92SC86
• Parties: , 87 Ed. Law Rep. 1052 UNIVERSITY OF COLORADO, Boulder, Through its Board, The REGENTS OF the UNIVERSITY OF COLORADO, a body corporate; Judith Albino, as President of the University of Colorado, Boulder; and William Marolt, as Athletic Director, Department of Intercollegiate Athletics, Petitioners, v. David DERDEYN, individually and on behalf of all others similarly situated, Respondents.

Page 929

863 P.2d 929

62 USLW 2303, 87 Ed. Law Rep. 1052

UNIVERSITY OF COLORADO, Boulder, Through its Board, The REGENTS OF the UNIVERSITY OF COLORADO, a body corporate Judith Albino, as President of the University of Colorado Boulder; and William Marolt, as Athletic Director Department of Intercollegiate Athletics, Petitioners, v. David DERDEYN, individually and on behalf of all others similarly situated, Respondents.

No. 92SC86.

Supreme Court of Colorado En Banc.

Nov. 1, 1993.

Rehearing Denied Dec. 6, 1993.

Cooper & Kelley, P.C., Thomas B. Kelley, John R. Mann, Denver, Robert F. Nagel, University of Colorado School of Law, Boulder, Richard A. Tharp, Beverly Fulton, Office of University Counsel, Denver, for petitioners.

American Civil Liberties Union, David H. Miller, Denver, Norton Frickey & Associates, Judd Golden, Boulder, for respondents.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari in order to determine whether random, suspicionless urinalysis-drug-testing of intercollegiate student athletes by the University of Colorado, Boulder (CU), violates the Fourth Amendment to the United States Constitution ¹ or Article II, Section 7, of the Colorado Constitution. Following a bench trial conducted in August of 1989 in which a class of current and prospective CU athletes challenged the constitutionality of CU's drug-testing program, the Boulder County District Court permanently enjoined CU from continuing its program. The trial court found that CU had not obtained voluntary consent from its athletes for such testing, and it declared such testing unconstitutional under both the federal and state constitutions. The Colorado Court of Appeals generally affirmed. See Derdeyn v. University of Colorado, 832 P.2d 1031 (Colo.App.1991). We agree with the court of appeals, see id. at 1034-35, that in the absence of voluntary consents, CU's random, suspicionless urinalysis-drug-testing of student athletes violates the Fourth Amendment to the United States Constitution and Article II, Section 7, of the Colorado Constitution. ² We further agree, see id. at 1035, that the record supports the finding of the trial court that CU failed to show that consents to such testing given by CU's athletes are voluntary for the purposes of those same constitutional provisions. Accordingly, we affirm the judgment of the court of appeals.

I

CU began a drug-testing program in the fall of 1984 for its intercollegiate student athletes. CU has since amended its program in various ways, but throughout the existence of the program participation was mandatory in the sense that if an athlete did not sign a form consenting to random urinalysis pursuant to the program, the student was prohibited from participating in intercollegiate athletics at CU. ³

CU's drug-testing program originally required a urine test for certain proscribed drugs ⁴ at each intercollegiate athlete's annual physical and also required random urine tests thereafter. Counseling was mandated following a first positive result. The penalty for a second positive included a seven-day suspension from participation in intercollegiate athletics, and the penalty for a third positive included a minimum one-year suspension. No specific monitoring procedures were prescribed for the collection of the urine samples, and two students testified that during this phase of the program they were not monitored during the act of urination. According to CU's 1984 Form ⁵ describing the program, all test ⁶ results were sent to the "Team Physician." The intercollegiate student athletes also were required to give their consent to releasing test results to

the Head Athletic Trainer at [CU]; my parent(s) or legal guardian(s) or spouse; the head coach of any intercollegiate sport in which I am a team member; the Athletic Director of [CU]; and the Drug Counseling Program at the Wardenburg Student Health Center.

The 1984 Form gave no general or specific assurances of confidentiality.

Sometime thereafter, ⁷ CU amended its program for the first time. The penalty for a first positive was changed to include suspension for "the current competitive season," and the penalty for a second positive was changed to include permanent suspension from "any activity sponsored by the University of Colorado Athletic Department." Following a first positive, the athlete was also required successfully to complete a substance abuse rehabilitation program as a condition for further participation in intercollegiate athletics. The first amended program also provided that the "collection of the specimen will be observed [sic], and the athlete may be asked to disrobe in order to protect the integrity of the testing procedure." ⁸ Test results were still sent to the "Team Physician," but following a first positive, the first amended program stated:

[T]he Team Physician will inform the Head Athletic Trainer. The Head Athletic Trainer will advise the Athletic Director. The Athletic Director will notify the athlete's Head Coach(es). Additionally, the athlete will be required to ... participate in a conference telephone call between the athlete, his/her parent(s) or legal guardian(s) of the positive test results.

CU still gave no general or specific assurances of confidentiality of test results.

CU's second amended program changed the penalty for a first positive from suspension for "the current competitive season," to suspension for "a twelve month period." In all other relevant respects the program remained unaltered.

CU's third amended program, which became effective August 14, 1988, contained numerous changes. First, it added alcohol, "over-the-counter drugs," and "performance-enhancing substances such as anabolic steroids" to the list of drugs for which students could be tested. Second, the term "athlete" was defined to include "all student participants in recognized intercollegiate sports, including but not limited to student athletes, cheerleaders, student trainers and student managers." Third, random "rapid eye examination (REE)" testing was substituted for random urinalysis, and a urinalysis was performed only after a "finding of reasonable suspicion that an athlete has used drugs," and at the athlete's annual physical examination. Failure to perform adequately on an REE was considered "prima facie reasonable suspicion of drug use [except with regard to steroids]," and the student was required to provide a urine specimen for testing purposes if the student did not perform adequately on the REE. In addition, if a student exhibited "physical or behavioral characteristics indicating drug use including, but not limited to: tardiness, absenteeism, poor heath [sic] habits, emotional swings, unexplained performance changes, and/or excessive aggressiveness," this was also considered reasonable suspicion of drug use, and the student was required to take a urine test. Fourth, urine samples were to be collected "within the Athletic Department facilities," and athletes were "directed to provide a urine specimen in a private and enclosed area" while a monitor remained outside. The monitor would then receive "the sample from the athlete and check[ ] the sample for appropriate color, temperature, specific gravity and other properties to determine that no substitution or tampering has occurred." Fifth, the athletes were required to give their consent to releasing test results to

the Head Athletic Trainer at [CU]; my parent(s) or legal guardian(s), if I am under the age of 21; the head coach of any intercollegiate sport in which I am a team member; the Athletic Director of [CU]; my work supervisor (if applicable) and the Drug Counseling Program at the Wardenburg Student Health Center.

Finally, although CU still gave no general assurances of confidentiality, it did specify in its third amended program that communications between an athlete and physicians at Wardenburg Student Health Center would be confidential. In October of 1986, intercollegiate student athletes at CU filed a class action suit ⁹ in Boulder County District Court challenging the constitutionality of the drug-testing program as it then existed and seeking declaratory and injunctive relief. ¹⁰ Named as defendants were CU, the board of regents of CU, Judith Albino as president of CU, and William Marolt as athletic director, department of intercollegiate athletics. When CU subsequently amended its program, an issue arose as to which version of CU's program, if any, could be challenged at trial. CU argued that the case was moot because it "would be futile to discuss the merits of a drug-testing policy the University has no intention of reinstating." However, by minute order, the trial court found that CU and the other defendants have "refused to agree that they will not return to the policy which was initially challenged in this class action. In fact, defendants have indicated that there are circumstances under which they would return to that policy." The trial court concluded "[t]herefore, ... the legality of [CU's] prior drug-testing policy is not moot," and it noted that it had "previously ruled that plaintiffs are to amend the complaint to add allegations concerning the new policy." The plaintiffs filed their amended complaint on March 16, 1989, the same day that the trial court signed the minute order. In their amended complaint, the plaintiffs sought relief from CU's random drug-testing programs, past, present, and future. Accordingly, at issue in the ensuing trial was the constitutionality of every version of CU's drug-testing program.

Following a bench trial conducted in August of 1989, the trial court entered its written findings of fact, conclusions of law, and order and judgment. The trial court found that "[o]btaining a monitored urine sample is a substantial invasion of privacy." It found that the

REE does not function, in any sense, as "reasonable suspicion" of drug use. Because of its disastrous ability to predict drug use, it...