Weber v. Oakridge School Dist. 76

• Citation: 184 Or.App. 415,56 P.3d 504
• Parties: John WEBER and Shannon Weber, Guardians ad litem for Ginelle Weber, a minor, Appellants-Cross-Respondents, v. OAKRIDGE SCHOOL DISTRICT 76, Respondent-Cross-Appellant.
• Decision Date: 23 October 2002
• Court: Court of Appeals of Oregon

56 P.3d 504

184 Or.App. 415

John WEBER and Shannon Weber, Guardians ad litem for Ginelle Weber, a minor, Appellants-Cross-Respondents, v. OAKRIDGE SCHOOL DISTRICT 76, Respondent-Cross-Appellant.

16-00-21584; A114141

Court of Appeals of Oregon.

Argued and Submitted March 18, 2002.

Decided October 23, 2002.

Thomas M. Christ argued the cause and filed the reply brief and answering brief on cross-appeal for appellants-cross-respondents. With him on the opening brief was Todd S. Baran, Portland.

Timothy R. Volpert, Portland, argued the cause for respondent-cross-appellant. With him on the briefs were Katrina M. Lonborg and Davis Wright Tremaine LLP.

Before LANDAU, Presiding Judge, and BREWER and SCHUMAN, Judges.

LANDAU, P.J.

Oakridge School District 76 (the district) adopted a drug-testing policy requiring all students who wish to participate in extracurricular school athletics to consent to random urinalysis testing throughout the school year and to disclose any use of prescription medications. Ginelle Weber, a student at Oakridge High School, tried out for and made the school's volleyball team. But she and her parents refused to consent to the random urinalysis and disclosure requirements. The school excluded her from the team. Her parents, John and Shannon Weber (plaintiffs), initiated this action for declaratory judgment and damages, arguing that the district's policy violates Ginelle's right to be free from unreasonable searches and seizures guaranteed by Article I, section 9, of the Oregon Constitution.

The trial court concluded that the district's policy violates Ginelle's rights under Article I, section 9, only to the extent that it required her to disclose her use of any prescription medication before having tested positive for alcohol or drug use; the court upheld the constitutionality of the policy in all other respects. The district then revised its policy, eliminating the compelled disclosure of prescription medication use. The court upheld the constitutionality of the policy as revised. It also dismissed the claim for damages. Plaintiffs appeal, arguing that the trial court erred in concluding that the requirement that student athletes submit to random urinalysis does not violate Ginelle's state constitutional rights and in dismissing their claim for damages. The district cross-appeals, arguing that the trial court erred in concluding that the portion of the policy requiring disclosure of prescription medication use is unconstitutional.

On the appeal, we conclude that plaintiffs have failed to demonstrate the unconstitutionality of the district's policy, as revised. On the cross-appeal, we conclude that the trial court was correct in holding that the required disclosure of all prescription medication use is unconstitutional. Because we conclude that the trial court did not err in upholding the constitutionality of the district's policy as revised, we need not address plaintiffs' arguments concerning the dismissal of their claim for damages. We therefore affirm on the appeal and on the cross-appeal.

I. FACTUAL BACKGROUND

The relevant facts are not in dispute. In June 2000, the district's elected school board adopted a drug-testing policy for student athletes as part of the district's participation in a national program funded by the National Institutes of Health. That policy provides that, "[a]s part of the district's substance abuse prevention efforts," high school students who participate in extracurricular athletic programs are subject to random urinalysis testing to

"1. Provide for the student athletes' health and safety by preventing the use of alcohol and drugs;

"2. Undermine the effects of peer pressure; and

"3. Encourage participation in treatment programs for student athletes with substance abuse problems."

The policy provides that no student who tests positive for illegal drugs will be penalized academically. It further provides that test results will not be documented in any student's school records or disclosed to criminal or juvenile authorities in the absence of an unsolicited subpoena. The policy also requires students to disclose whether they have been or are taking prescription medications and to provide verification of the prescription on request.

The policy spells out in detail the testing protocol:

"Testing will be conducted by a laboratory selected by the Oregon Health Sciences University. Chain of custody procedures, as recommended by the laboratory, will be followed.

"Samples will be collected by the OHSU representative and sent to their laboratory the same day the student is selected for testing, or if the student is absent on that day, the student will be tested on the next follow-up testing day. The selected student will be in direct contact with the collector until a specimen is produced. All students selected for testing will be given the option of using a modesty drape, however, all collections will be under direct observation of a physician collector. A student may use their [sic] own physician upon student/parent request (costs to be covered by parent if personal physician is used as the collector). If a student is unable to produce a sample on the collection day, the student will be tested on the next follow-up day. The next follow-up day will not be known to the student. Students who refuse to provide a sample will be considered to have tested positive * * *.

"The testing laboratory will test for alcohol and other classes of illegal drugs. Samples will not be screened for the presence of any substance other than alcohol or the illegal drugs or masking agents.

"Samples will be split at the time of the testing. The duplicate samples will be sealed and maintained by the laboratory in the event a second test is requested.

"The testing laboratory will report results only to the superintendent or the superintendent's designee and the Oregon Health Sciences University (OHSU). The latter results to OHSU are by confidential code number, not the identifying name of the specimen provider."

The specific substances for which tests will be taken are narcotics, cocaine, phencyclidine, amphetamines and methamphetamines, alcohol, marijuana, and anabolic steroids. Common medications, such as antidepressants, Ritalin, and birth control pills, do not generate positive test results.

The testing protocol is based on the United States Olympic Committee's random drug testing program and conforms to guidelines established by the National Institute on Drug Abuse. It is extremely accurate.

Consenting student-athletes are assigned identification numbers, which are maintained in a computer data base. A research statistician then selects students for testing by means of a program that randomly generates a list of identification numbers, which are then assigned testing dates. The researcher does not have access to the names that match the identification numbers.

If the test results are positive, the student or his or her parent may request that the second sample be tested. If the second sample tests negative, the student and parent are notified and no further action is taken. But if the second sample tests positive, then discipline may follow.

If a sample tests positive for alcohol or any of the targeted drugs, the student and parent or parents must be notified, and a meeting with the principal must occur. At the meeting, the student will be given the option of participating in drug or alcohol assistance program evaluation, further drug testing, and participation in a drug or alcohol assistance program, if recommended. The student also is subject to a two-week suspension from athletics. In the case of a second positive result, the student and the parent or parents again are notified and a second meeting is scheduled with the principal. The student will be suspended from athletics for the remainder of the season and the next season for which the student is eligible. To participate in school athletics after that requires participation in drug or alcohol assistance evaluation, further testing, and participation in a drug or alcohol assistance program.

Students who wish to participate in extracurricular athletics are required to sign a written drug testing consent form, which authorizes the district to conduct random drug testing and authorizes the release of the test results to the district, OHSU, and the parent or parents.

Ginelle, a student at Oakridge High School, wishes to participate in school athletics, specifically, the high school volleyball team. She tried out for and made the team. She declined to sign a written drug testing consent form, however. In consequence, she was declared ineligible for the team.

Plaintiffs then brought this action on Ginelle's behalf for declaratory and monetary relief, arguing that the district's policy violates Ginelle's right to be free of unreasonable government searches, as provided in Article I, section 9, of the Oregon Constitution. Plaintiffs moved for summary judgment on their claim for declaratory relief, supported by a copy of the district's policy and affidavits from Ginelle and her mother, each attesting to her good standing in school and her refusal ever to take illegal drugs. Plaintiffs' theory of the case was straightforward: Under Article I, section 9, a warrantless search is unreasonable unless it fits within a recognized exception to the warrant requirement. Because there is no exception that applies to this case, the policy is unconstitutional.

The district opposed the motion for summary judgment.¹ It argued that (1) its policy does not require students to submit to a "search" within the meaning of Article I, section 9; and (2) if it does, any search required under the policy is an "administrative search" that, under Article I, section 9, is not subject to the warrant requirement as long as the policy was adopted by politically accountable officials, eliminates the exercise of discretion, and is reasonable in relation...