By Megan Shannon, October 16, 2012
The New York Times recently highlighted an increase in the number of middle schools requiring students to pass a drug test to participate in school sports and other extracurricular activities.  Pennsylvania schools are at the center of this issue, with tension coming from the Commonwealth’s constitutional provision that “no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause” protecting all citizens from unreasonable searches.
Pennsylvania’s Supreme Court has interpreted the Commonwealth’s Art. I, § 8 protections as a “strong notion of privacy, which is greater than that of the Fourth Amendment.” However, the court tempers that strong privacy right when the privacy of children in a school setting is at issue. Constitutionally protected or not, middle school children are too young to be subject to mandatory, suspicionless drug testing. It’s not just a violation of students’ rights – it’s bad policy. School administrators try to justify their drug testing policies with the rationale that it will deter younger students from starting to use performance-enhancing drugs or abusing illegal substances like marijuana. However, the link between participation in athletics and decreased risk of substance abuse is well established. Further, there have been no documented cases of middle school students using performance-enhancing drugs. Middle school drug testing is at best ineffective; at worst, it encourages students to forego extracurricular activities to avoid trouble over their drug use.
In 2003, in Theodore v. Delaware Valley School District, the Pennsylvania Supreme Court held that “the suspicionless search policy at issue has not been supported by sufficient proof that there is an actual drug problem,” therefore the students’ complaint could not be dismissed. The Delaware Valley School District had implemented a policy requiring all middle and high school students participating in extracurricular activities or driving to school to have a parent sign off consenting to drug and alcohol testing. The school’s policy explained that “[w]ith regard to school athletes and student drivers, the risk of immediate physical harm to the drug and alcohol user or those with whom he/she is playing a sport or sharing the highway is particularly high.” The Delaware School Valley would need “individualized proof that the targeted students are at all likely to be part of whatever drug problem may (or may not) exist” or “reasonable proof that the policy actually addresses whatever problem may exist.”
In July 2011, the Pike County court enjoined the Delaware Valley School District from implementing the aforementioned drug-testing policy. The Delaware Valley School District had admittedly not followed the ruling from Theodore v. DVSD requiring it to stop enforcing the drug testing policy, but is now in compliance with the court’s decision.
Applying Theodore v. DVSD to middle school drug testing policies, Pennsylvania courts should strike down drug testing policies that aren’t justified by reasonable suspicion that the students being tested are actually using illegal substances. As courts strike down the policies, schools should focus their efforts on more effective drug prevention programs that target at-risk students, not wasting resources to target the students least likely to abuse illegal substances.
The final score?
- Catches the thirteen-year-olds on steroids
- Also catches the kids smoking marijuana
- Possible deterrent effect
- Thirteen-year-olds aren’t known to use performance enhancing drugs
- Testing kids who do extracurricular activities misses the at-risk student population: students not engaged in school
- Possible deterrent effect: kids may skip activities to avoid drug testing
- Violates constitutionally protected rights in the same place students are learning about those rights
 Mary Pilon, Middle Schools Add a Team Rule: Get a Drug Test, N.Y. Times, Sep. 22, 2012, http://www.nytimes.com/2012/09/23/sports/even-some-middle-schools-now-test-for-drugs.html
 Pa. Const. art I, § 8.
 Commonwealth v. Glass, 754 A.2d 65, 661-62 (Pa. 2000).
 In Re F.B. 726 A.2d 361, 365 (Pa. 1999). The Court balances “1) a consideration of the students’ privacy interest, 2) the nature of the intrusion created by the search, 3) notice, and 4) the overall purpose to be achieved by the search and the immediate reasons prompting the decision to conduct the actual search.” Id. at 365.
 Shannon Doyne, Should Middle School Students Be Drug Tested?, N.Y. Times Learning Network Blog (Sept. 24, 2012, 5:10 AM), http://learning.blogs.nytimes.com/2012/09/24/should-middle-school-students-be-drug-tested/.
 See Tamela McNulty Eitle & David J. Eitle, Race, Cultural Capital, and the Educational Effects of Participation in Sports, 75 Sociology of Educ. 123 (2002).
 Pilon, supra note 1.
 Peeing to Participate, The Economist Democracy in Am. Blog (Sep. 25, 2012), http://www.economist.com/blogs/democracyinamerica/2012/09/drug-testing.
 836 A.2d 321 (Pa. 2003).
 Id. at 354.
 Id. at 325.
 Id. at 326.
 Id. at 354.
 Judge Stops Enforcement of School District’s Suspicionless Drug Testing, ACLU of PA (July 26, 2011), http://staging.aclupa.org/news/2011/07/26/judge-stops-enforcement-of-school-districts-suspicionless-drug-testing-policy.