Drug Testing of Students

As officials in colleges and universities seek ways to discourage and eliminate drug use on campus, testing students for drugs has become increasingly common. Beginning in the military, private and public sector employment, and drug rehabilitation programs, drug testing had worked its way into educational institutions by the mid-1980s. Even though drug use is not uncommon on many campuses, the reported litigation involving student drug testing in higher education has all been within the realm of intercollegiate athletics. While the U.S. Supreme Court has not addressed the issue of drug testing student-athletes in higher education, it has resolved two cases on point in high school settings. This entry examines judicial opinions on the constitutionality of drug testing of student-athletes who voluntarily participate in intercollegiate sports. 

Historical Background

Drug testing of student-athletes has routinely been done through urinalysis. Institutional officials have relied on urinalysis, because tests of hair, saliva, and even blood have been demonstrated to be less reliable than urinalysis. Moreover, obtaining blood samples is more invasive than collecting urine samples. As long as urine samples are precisely collected and handled, the reliability of these tests is extremely high. While most of the inaccuracy of urine samples is due to handling, college and university officials who utilize drug testing typically conduct second checks on samples that produce positive outcomes for banned substances in order to help to ensure the accuracy of results. In institutions of higher learning that employ drug testing, student-athletes are generally asked to produce urine samples at least once in the course of a sport season. Other random samples of urine may be taken throughout the remainder of the season. 

In higher education, drug testing started with the National Collegiate Athletic Association (NCAA). In the early 1970s, NCAA officials adopted a policy that restricted drug use by student- athletes. However, after the United States Olympic Committee (USOC) implemented drug testing in the 1980s, the NCAA followed the USOC’s lead and created its own drug-testing policy for student-athletes in member institutions. Pursuant to the NCAA’s policy, student-athletes must agree to urinalysis drug testing as a precondition to qualify for participating in intercollegiate athletic competitions. Student-athletes who test positive for banned substances are banned from participating in athletic events for one calendar year from the time of the positive test. 

At the same time, the NCAA policy requires student-athletes to sign consent forms agreeing to submit to random, suspicionless drug testing prior to participating in intercollegiate athletic competitions. Student-athletes who refuse to sign consent forms can be barred from participating in intercollegiate athletic competitions and practices. While one court interpreted this consent requirement as being unconstitutional, most cases agree that testing is constitutional insofar as student-athletes lack constitutional rights under the Fourteenth Amendment to participate in intercollegiate athletics. Other college athletic associations—the National Association of Intercollegiate Athletics and the National Junior College Athletic Association—do not require drug testing in the intercollegiate sports programs operated by their member institutions. 

Constitutional Issues

Two U.S. Supreme Court cases addressing drug testing of high school students have helped to clarify judicial standards with regard to student privacy when confronted with search and seizure issues in this contentious area. Given the relative lack of litigation involving higher education, the judicial analyses in the Supreme Court cases can be adapted in colleges and universities to help clarify the reasonable expectations of officials who are responsible for administering drug-testing policies. 

Challenges to drug-testing policies typically involve the Fourth Amendment’s protection against unreasonable searches and seizures. Students have also occasionally, but unsuccessfully, raised concerns under the Fourteenth Amendment’s Due Process Clause. The Supreme Court has decided that urinalysis drug testing constitutes a search within the meaning of the Fourth Amendment. Even so, the Court ruled that such searches can be justified based on the need for educational officials to prevent and deter drug use for the physical protection of their students rather than on probable cause. To this end, the Court has twice upheld random suspicionless drug testing of student athletes in high school settings in Vernonia School District v. Acton (1995) and Board of Education of Pottawatomie County v. Earls (2002). 

In Earls, the Supreme Court essentially applied the same test as in Vernonia in reasoning that the policy passed the three-part test that it had devised. First, the Court remarked that because the privacy interests of students in schools are limited to begin with, the policy was constitutional. Second, as to the character of the intrusion, the Court maintained that because the urine samples were collected in a minimally intrusive manner and the test results had limited uses, meaning that officials used them for rehabilitative purposes in helping students to overcome their substance abuse problems, the infringement on their privacy was constitutionally acceptable. Third, as to the nature and immediacy of the school board’s concerns and the policy’s efficacy in meeting them, the Court concluded that the in light of a growing national epidemic involving drug use and the effectiveness of testing, the policy passed constitutional muster; the Court slightly modified the third prong of the test in Earls, making it easier for officials to justify random suspicionless drug-testing policies for student-athletes. 

In the aftermath of Earls, lower courts continue to uphold policies that call for drug testing of student- athletes in K–12 settings. Even though both of these cases predated the key litigation in higher education, they should be informative to officials who are involved in drug testing of student-athletes in colleges and universities. 

Drug-Testing Litigation in Higher Education

The two highest-profile notable cases, both of which reached state high courts, to examine drug testing of student-athletes in higher education are University of Colorado v. Derdeyn (1993) and Hill v. NCAA (1994). While both cases involve drug testing of student athletes pursuant to NCAA policies, they reach significantly different outcomes. 

In Derdeyn, student-athletes contested the requirement that they sign forms consenting to drug testing, claiming that there was no evidence that anyone had ever used drugs while practicing for or participating in intercollegiate sports on campus. The student-athletes argued that absent evidence of drug use or abuse, the consent requirement was an unreasonable search that violated their rights to privacy. On further review of an injunction that prevented university officials from enforcing the policy, the Supreme Court of Colorado affirmed in favor of the student-athletes. The court ruled that in the absence of voluntary consent by the student-athletes, the university’s random suspicionless drug-testing policy was unconstitutional under both the federal and state constitutions. At the heart of its analysis, the court was of the opinion that the privacy rights of the student-athletes outweighed the state’s interest, because the underlying policy was not supported by an important governmental interest. 

Conversely, a year later in Hill, the Supreme Court of California rejected a challenge to the NCAA’s drug-testing requirements that was filed by students and institutional officials at Stanford University primarily on the ground that it violated their state constitutional rights to privacy. As an initial matter, the court conceded that although the NCAA is a private, nonstate actor, a principle that the Supreme Court enunciated in NCAA v. Tarkanian (1988), this was an insufficient basis on which to resolve the case. In rejecting the NCAA’s attempt to have the case dismissed because it was not a state actor subject to the Fourth Amendment, the Court found it necessary to address the merits of the claim. 

In language presaging Vernonia and Earls, the Hill court indicated that because student-athletes must submit to physical examinations before being declared fit to compete, testing did not infringe on their already diminished expectations of privacy. The Court added that because the student-athletes had advance notice that they were to be tested or disqualified from participation if they refused to submit to doing so, their consent was not rendered involuntary. As part of this rationale, the Court pointed out that because students simply did not have a right to participate in interscholastic sports insofar as such activity is a privilege, their claim was without merit. The Court explained that because drug testing was designed to protect the integrity of both intercollegiate sports programs and the safety of their participants, the NCAA’s policy was constitutional. 

Other courts have reached outcomes that agree with Hill rather than Derdeyn. For example, in an earlier case, the highest court in Massachusetts relied on a commonwealth civil rights statute in rejecting a challenge to drug testing of studentathletes (Bally v. Northeastern University, 1989). Subsequently, an appellate court in Louisiana reviewed two issues in Brennan v. Board of Trustees for University of Louisiana Systems (1997). First, the court rejected the student’s Fourteenth Amendment claim in observing that he did not have a Fourteenth Amendment property or liberty interest in participating in interscholastic sports. Second, the court declared that in view of a student-athlete’s diminished expectation of privacy, coupled with the significant interests of his university and the NCAA, the drug-testing policy was constitutional. 

Conclusion

As noted, there is some disagreement among the courts as to whether drug testing of studentathletes is constitutionally permissible in higher education. However, insofar as the Supreme Court has upheld random suspicionless drug testing under the Fourth Amendment in the context of K–12 schooling, policies promulgated by the NCAA, other similar athletic associations, colleges, and universities should be able to survive constitutional challenges to the extent that they adopt rationales similar to those in Hill, Vernonia, and Earls. 

Nanette Schmitt

See also Extracurricular Activities, Law, and Policy; Fourth Amendment Rights of Students; National Collegiate Athletic Association v. Tarkanian; Privacy Rights of Students

Further Readings

  • Giglio, E. (1991). Drug testing: Constitutional and policy implications. Criminal Justice Policy Review, 5(1), 1–16. 

Legal Citations

  • Bally v. Northeastern University, 532 N.E.2d 49 (Mass. 1989). 
  • Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002). 
  • Brennan v. Board of Trustees for University of Louisiana Systems, 691 So. 2d 324 (La. Ct. App. 1997). 
  • Hill v. NCAA, 865 P.2d 633 (Cal. 1994). 
  • NCAA v. Tarkanian, 488 U.S. 179 (1988). 
  • University of Colorado v. Derdeyn, 863 P.2d 929 (Colo. 1993). 
  • Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995).