On advice of counsel, Pennsylvania school district holds off on random drug testing policy

According to the Express-Times, the Saucon Valley School Board (SVSB) has tabled further discussion of implementing a random drug testing policy for students, while the board awaits the outcome of a suit against another school district over its random drug testing policy.   SVSB’s attorney, Mark Fitzgerald, advised that the board wait on its decision regarding drug testing until there is a decision on the Delaware Valley School District’s mandatory drug and alcohol testing policy.

Meanwhile Fitzgerald is conducting research on drug testing laws governing random drug testing of students, employees and prospective new hires. The Delaware Valley policy for students participating in extracurricular activities was declared unconstitutional by the Pennsylvania Supreme Court in 2003 unless the district could show that the group of students being tested had a high rate of drug use.

The American Civil Liberties Union of Pennsylvania filed a suit last year alleging Delaware Valley had ignored that ruling and continued to enforce the testing policy without compiling data to support or refute the policy. A judge in July 2011 issued a preliminary injunction prohibiting the district from enforcing the policy.

The ACLU of Pennsylvania recently won a challenge of a nearly identical testing policy in the Panther Valley School District, said Mary Catherine Roper, ACLU senior staff attorney. The ACLU also has sued the Loyalsock Township School District and plans to file suit against a Lancaster County district soon, she said.

SVSB member Edward Inghrim wants to pursue random drug testing for students involved in extracurricular activities while board member Lanita Lum has suggested making all students subject to random testing. Fitzgerald cautions that privacy protections afforded in the Pennsylvania Constitution make it hard to enact such policies.

While prospective new hires have the least privacy rights, they are afforded certain protections under current case law and the district would have to show a need for testing, Fitzgerald said. A case out of the federal Ninth Circuit Court of Appeals found a district couldn’t force a woman applying to be a library aide to take a drug test. That’s because she wouldn’t be interacting with students, he said.

Board Vice President Susan Baxter questioned how so many private companies can require drug testing but a district cannot. Fitzgerald said public employees have heightened protections. The U.S. Supreme Court has ruled that random drug testing of students is acceptable if a district can show that drug use in the district is much higher than in a normal district, Fitzgerald said.

Inghrim said he’s heard public criticism about his stance on drug testing and he began citing stats he said he pulled from the U.S. government. Pennsylvania is one of 15 states where more people die from drug overdoses than car crashes, he said. However, board member Bryan Eichfeld found all of Fitzgerald’s legal warnings concerning because he doesn’t want to waste taxpayer money in court battles, he said.

Source: The Express-Times, 3/15/12, By Sara K. Satullo

[Editor's Note: Although Board of Education v. Earls, 536 U.S. 822 (2002), established the authority of schools to impose random drug testing on students participating in extracurricular activities (beyond just athletics) under the U.S. Constitution, some state constitutions impose a higher standard than that required by the federal constitution's Fourth Amendment. As noted in the article above, the Pennsylvania Supreme Court in Theodore v. Delaware Valley Sch. Dist., 836 A.2d 75 (Pa. 2003), held that the school district must show a specific need for a random drug testing policy in order for it to pass muster under the state constitution.  Citing its own precedent, the court stated at the outset of its opinion:  " 'The cases decided under Article I, [Section] 8, have recognized a ‘strong notion of privacy, which is greater than that of the Fourth Amendment.’ ”

In July 2011, Legal Clips summarized a decision of the Pennsylvania Court of Common Pleas for Pike County issuing a preliminary injunction barring Delaware Valley School District (DVSD) from enforcing its random drug testing policy for students participating in extracurricular activities, including athletics, and students driving vehicles to and from school, based on the holding in Theodore.]

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