Letter: Southampton School District Plan To Subject Students to Random Drug Testing is Unconstitutional

December 23, 2003 Linda J. Bruno, Ph.D. Superintendent of Schools Southampton Union Free Schools District Re Mandatory Drug Testing of Students Dear Dr. Bruno: We understand that the Southampton Union Free Schools District is considering adopting a policy that will authorize random, suspicionless drug testing of those students who participate in voluntary extracurricular activities. In this regard, Dr. Josephine DeVincenzi, Assistant Superintendent, has noted that the District’s decision to consider adopting such a policy is prompted not by any “specific incident” in the District but rather motivated only by “a growing concern about drug use.” It is, reportedly, believed by District administrators that such random drug testing will prevent substance abuse and promote wellness among Southampton’s students. The desire to protect adolescents from the dangers of alcohol, tobacco and other drugs is a sound and reasonable one, but a policy that permits suspicionless drug testing of students who participate in voluntary extracurricular activities presupposes a radical reformulation of New York State law: under the District’s theory, a school should be allowed to conduct suspicionless, general, searches simply because deterrence alone justifies putting aside the protections of the New York State Constitution. Article I, Section 12 of the New York State Constitution is designed to protect the “personal privacy and dignity”of New York students against “unwarranted intrusions by the State” and affords New York students a greater degree of protection than does the Fourth Amendment of the federal Constitution. See Patchogue-Medford Congress of Teachers v. Board of Education of the Patchogue-Medford Union Free School District, 70 N.Y.2d 57, 70 (1987), citing People v. Scott D., 34 N.Y.2d 483 (1974). In these important cases, the New York Court of Appeals invalidated random drug testing and random drug searches without individualized and reasonable suspicion under Article I, section 12 of the State Constitution. The Southampton District, no doubt, is aware that the United States Supreme Court has recently upheld against a Fourth Amendment challenge an Oklahoma school district’s policy requiring all middle and high school students who would participate in extracurricular activities to consent to random, suspicionless drug testing. See Board of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002). Yet the fact that the U.S. Supreme Court has relaxed its scrutiny in this area in Earls should not be taken as a signal to the District that the New York Court of Appeals would reconsider the test formulated in Patchogue-Medford and Scott D. The New York Court of Appeals has routinely interpreted Article I, Section 12 independently of its Federal counterpart when necessary to assure that “our State’s citizens are adequately protected from unreasonable governmental intrusions.” People v. Keta, 79 N.Y.2d 474, 496-7 (1992). In particular, the Court of Appeals has noted that “an independent construction of our own State Constitution is particularly appropriate where a sharp or sudden change in direction by the Unites States Supreme Court dramatically narrows fundamental constitutional rights that our citizens have long assumed to be part of their birthright.” Id., citing People v. Griminger, 71 N.Y.2d 635 (1988). The Earls decision is the broadest drug testing the Supreme Court has yet permitted for young people who are not under any suspicion of wrongdoing. It applies to students who join competitive after-school activities or teams, a category that includes many if not most middle-school and high-school students. The Earls decision is precisely the “sudden change in direction [that] dramatically narrows [the] fundamental constitutional rights” of students referenced by the Court of Appeals in Keta and Griminger. In New York State, the Patchogue-Medford and Scott D. decisions provide the governing standard. Random drug testing without individualized and reasonable suspicion is impermissible. As an agency charged with the responsibility to educate our children, we know that the School District will want to comply with the law. For we teach our children about respect for the law by the example we set. We are available to discuss the issues raised in this letter further with you. Very truly yours, Donna Lieberman Executive Director Jared Feuer Director, Suffolk County Chapter Beth Haroules Staff Attorney