NYCLU Advises School District That Its Plan To Subject Students To Random Drug Testing Is Prohibited Under New York Constitution

In early December, the Southampton Union Free Schools District announced that it is considering adopting a policy that will authorize random, suspicionless drug testing of District students who participate in voluntary extracurricular activities.

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 NYCLU letter acknowledged that the desire to protect adolescents from the dangers of alcohol, tobacco and other drugs is a sound and reasonable one. The letter argues, however, that any policy that permits suspicionless drug testing of students who participate in voluntary extracurricular activities is impermissible under Article I, section 12 of the New York State Constitution.

This section 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).

Donna Lieberman, Executive Director of the NYCLU, said “The Southampton District, no doubt, is aware that the United States Supreme Court has recently upheld against a Fourth Amendment challenge to 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. 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 New York Court of Appeals has already invalidated random drug testing of students without individualized and reasonable suspicion under our State Constitution.”

And, Jared Feuer, Director of the NYCLU’s Suffolk Chapter, noted “Drug testing extracurricular participants is a particularly “perverse” practice in that it targets the group of students least likely to be at risk from illicit drugs.”