York v. Wahkiakum School Dist. No. 200

• Decision Date: 13 March 2008
• Docket Number: No. 78946-1.,78946-1.
• Citation: 178 P.3d 995,163 Wn.2d 297
• Court: Washington Supreme Court
• Parties: Hans YORK and Katherine York, parents of Aaron E. York and Abraham P. York; and Sharon A. Schneider and Paul A. Schneider, parents of Tristan S. Schneider, Appellants, v. WAHKIAKUM SCHOOL DISTRICT NO. 200; W. Robert Garrett, in his official capacity as superintendent of Wahkiakum School District No. 200; Frank Webb, Kari Kandoll, David Smith, Lee Tischer, Cathy Turgeon, in their official capacities as members of the Board of Directors of Wahkiakum School District No. 200; Wahkiakum County Department of Health; Anne Ozment, in her official capacity as director of the Wahkiakum County Department of Health; Wahkiakum County Board of Health; Ron Ozment, Dick Marsyla, and Esther Gregg, in their official capacities as members of the Wahkiakum County Board of Health, Respondents.

178 P.3d 995

163 Wn.2d 297

Hans YORK and Katherine York, parents of Aaron E. York and Abraham P. York; and Sharon A. Schneider and Paul A. Schneider, parents of Tristan S. Schneider, Appellants, v. WAHKIAKUM SCHOOL DISTRICT NO. 200; W. Robert Garrett, in his official capacity as superintendent of Wahkiakum School District No. 200; Frank Webb, Kari Kandoll, David Smith, Lee Tischer, Cathy Turgeon, in their official capacities as members of the Board of Directors of Wahkiakum School District

No. 200; Wahkiakum County Department of Health; Anne Ozment, in her official capacity as director of the Wahkiakum County Department of Health; Wahkiakum County Board of Health; Ron Ozment, Dick Marsyla, and Esther Gregg, in their official capacities as members of the Wahkiakum County Board of Health, Respondents.

No. 78946-1.

Supreme Court of Washington, En Banc.

Argued May 8, 2007.

Decided March 13, 2008.

Aaron Caplan, American Civil Liberties Union of Washington Foundation, for plaintiffs/Appellants.

Eric B. Martin, Reed Smith LLP, Richmond, Natasha Shekdar Black, Davis Wright Tremaine, Seattle, for Appellants.

Frederick Alan Johnson, Cathlamet, for Respondents.

Karin Lisa Nyrop, Atty. Gen. Div./U. of Wash., Shannon Elizabeth Inglis, Attorney General's Office/Criminal Justice, Seattle, Carol A. Murphy, Attorney General's Office, Olympia, for Amicus Curiae (Attorney General).

David Zuckerman, Seattle, Daniel N. Abrahamson, Theshia Naidoo, Tamar Todd, Drug Policy Alliance, Berkeley, CA, for Amicus Curiae (Washington Education Assoc. and Drug Policy Alliance).

SANDERS, J.

¶ 1 The question before us is whether random and suspicionless drug testing of student athletes violates article I, section 7 of the Washington State Constitution.¹

¶ 2 The Wahkiakum School District (school district) randomly drug tests all student athletes under the authority of Wahkiakum School Board Policy No. 3515 (policy 3515). Aaron and Abraham York and Tristan Schneider played sports for Wahkiakum High School, agreed to the policy, and were tested. Their parents (York and Schneider parents) sued the school district alleging its drug testing policy violated article I, section 7 of the Washington State Constitution. The school district claims random drug testing, without any individualized suspicion, is constitutional. The superior court agreed. We accepted direct review.

¶ 3 The school district asks us to adopt a "special needs" exception to the warrant requirement to allow random and suspicionless drug testing. But we do not recognize such an exception and hold warrantless random and suspicionless drug testing of student athletes violates the Washington State Constitution.

FACTS

¶ 4 Wahkiakum requires its student athletes to refrain from using or possessing alcohol or illegal drugs. Beginning in 1994, the school district implemented myriad ways to combat drug and alcohol use among the student population. Nevertheless, drug and alcohol problems persisted. Acting independently of the school district, the Wahkiakum Community Network (community network) began surveying district students. From these surveys, the community network ranked teen substance abuse as the number one problem in Wahkiakum County. As reiterated by the trial court, the community network's surveys showed that in 1998, 40 percent of sophomores reported previously using illegal drugs and 19 percent of sophomores reported illegal drug use within the previous 30 days, while 42 percent of seniors reported previously using illegal drugs and 12.5 percent reported illegal drug use within the previous 30 days. Clerk's Papers (CP) at 484-85 (Undisputed Facts 10(c), (d)). In 2000, 50 percent of student athletes self-identified as drug and/or alcohol users. Id. (Undisputed Fact 10(e)).

¶ 5 As a result, the school district decided to implement random drug testing where all students may be tested initially and then subjected to random drug testing during the remainder of the season. The school district formed the Drug and Alcohol Advisory Committee (now the "Safe and Drug Free Schools Advisory Committee") to help deal with the student substance abuse problems. CP at 485 (Undisputed Fact 15). The committee evaluated the effectiveness of its previous programs, such as D.A.R.E. (Drug Abuse Resistance Education) and support groups, and contemplated adopting policy 3515, which would require random drug testing of student athletes.² The trial court found:

Based upon the evidence of substantial alcohol and drug use among students and pursuant to the School District's statutory authority and responsibility to maintain order and discipline in its schools, to protect the health and safety of its students, and to control, supervise and regulate interschool athletics, the Board of Directors adopted the policy.

CP at 486 (Undisputed Fact 16).

¶ 6 As part of the policy, all student athletes must agree to be randomly drug tested as a condition of playing extracurricular sports. The drug testing is done by urinalysis, with the student in an enclosed bathroom stall and a health department employee outside. The sample is then mailed to Comprehensive Toxicology Services in Tacoma, Washington.³ If the results indicate illegal drug use, then the student is suspended from extracurricular athletic activities; the length of suspension depends on the number of infractions and whether the student tested positive for illegal drugs or alcohol. Also, the school district provides students with drug and alcohol counseling resources. The results are not sent to local law enforcement or included in the student's academic record. And the student is not suspended from school, only extracurricular sports.

¶ 7 During the 1999-2000 school year, Aaron York and Abraham York played sports and were tested under the policy. And Tristan Schneider was tested under the policy during the 2000-2001 year. The York and Schneider parents brought suit arguing the school district's policy violated the Washington State Constitution.⁴ Their motion for a preliminary injunction was denied by superior court Judge Penoyar, and the Court of Appeals dismissed the petition as moot. See York v. Wahkiakum Sch. Dist. No. 200, 110 Wash.App. 383, 40 P.3d 1198 (2002). The trial court then held that while the school district's policy "approached the tolerance limit" of our constitution, the policy was nevertheless constitutional and narrowly tailored to reach a compelling government end. CP at 497.

¶ 8 The York and Schneider parents sought and obtained direct review in our court of a summary judgment order and ask us to determine whether the school district's policy 3515 is constitutional.

STANDARD OF REVIEW

¶ 9 We review summary judgment de novo. W. Telepage, Inc. v. City of Tacoma, 140 Wash.2d 599, 607, 998 P.2d 884 (2000). We construe the facts and the inferences from the facts in a light most favorable to the nonmoving party. Reid v. Pierce County, 136 Wash.2d 195, 201, 961 P.2d 333 (1998). Finally, we review questions of constitutional construction de novo. State v. Norman, 145 Wash.2d 578, 579, 40 P.3d 1161 (2002).

ANALYSIS

¶ 10 We are aware there are strong arguments, policies, and opinions marshaled on both sides of this debate, but we are concerned only with the policy's constitutionality. And while we are loath to disturb the decisions of a local school board, we will not hesitate to intervene when constitutional protections are implicated. Millikan v. Bd. of Dirs., 93 Wash.2d 522, 527, 611 P.2d 414 (1980). No matter the drawbacks or merits of the school district's random drug testing, we cannot let the policy stand if it offends our constitution. Students "do not `shed their constitutional rights' at the schoolhouse door." Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (quoting Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)).

¶ 11 The question before us is narrow: Whether Wahkiakum School District's blanket policy requiring student athletes to submit to random drug testing is constitutional. The United States Supreme Court has held such activity does not violate the Fourth Amendment to the federal constitution. Vernonia Sch. Dist., 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564. But we have never decided whether a suspicionless, random drug search of student athletes violates article I, section 7 of our state constitution. Therefore, we must decide whether our state constitution follows the federal standard or provides more protection to students in the state of Washington.

I. May Wahkiakum School District Perform Suspicionless, Random Drug Tests of Student Athletes?

a. Federal cases concerning public school searches

¶ 12 The school district argues we should follow federal cases and allow suspicionless, random drug testing of its student athletes. Two federal cases are apposite to our consideration. These cases, while helpful, do not control how we interpret our state constitution. City of Seattle v. Mighty Movers, 152 Wash.2d 343, 356, 96 P.3d 979 (2004). There are stark differences in the language of the two constitutional protections; unlike the Fourth Amendment, article I, section 7 is not based on a reasonableness standard.

¶ 13 The United States Supreme Court has held public school searches presented a "special need," which allowed a departure from the warrant and probable cause requirements. New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985).⁵ The T.L.O. Court held school teachers and administrators could search students without a warrant if: (1) there existed "reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school," and (2) the search is "not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Id. at 341-42, 105 S.Ct. 733.

¶ 14 Next, in Acton, a public school district implemented a...