Shedding Rights, Shredding Rights: A Critical Examination of Students' Privacy Rights and the Special Needs Doctrine after Earls
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On June 27, 2002, the United States Supreme Court held that all students participating in extracurricular activities in public schools may be subjected to random, suspicionless drug testing. The holding, in itself, is not terribly remarkable, as the decision in Board of Education of I.S.D. 92 of Pottawatomie County, Oklahoma v. Earls follows a developing pattern among public schools in this country. Further, the Earls case simply broadens the right of the state to randomly drug test students, without individualized suspicion, that this same court announced a mere seven years earlier in Vernonia v. Acton. What is remarkable about Earls, and what may be disconcerting to those clinging to the notion that students' rights entitle them to Fourth Amendment protection at school, is that Earls undoubtedly will be the necessary link between testing those engaging in "voluntary" activities, as the athletes in Vernonia and the Academic Team member in Earls, to the true target of such expansive suspicionless testing policies: all public school students. Earls represents a problematic break with past application of the Fourth Amendment in school cases. Earls goes beyond the holding in Acton by broadening the application of the special needs doctrine to all students. The justifications underlying Acton--safety in athletic competition and a demonstrated drug problem among students athletes--were not present in Earls. Rather, Earls breaks with precedent by allowing the liberalization of the "special needs" doctrine in school cases and finding that drug use among American teens and elementary students serves as an appropriate "special need" to support suspicionless drug testing.'" In this manner, Earls is not true to Acton and ignores crucial policy justifications for dispensing with the Fourth Amendment warrant and probable cause requirements that the Acton majority underscored. Likewise, Earls breaks with precedent in the special needs area by allowing the global problem of drug use generally to provide ample basis for the suspicionless drug testing of an identifiable group: elementary and secondary public school students. Accordingly, Earls represents two problematic departures from stare decisis. In addition, the Earls case, written in seemingly limitless breadth, provides the requisite step between testing those involved in athletics and other extracurricular activities and those in the general student population that we fear, due to self-disclosed surveys or medical data, must be using illicit drugs. For this reason, Earls single-handedly sounds the death knell of the assurance that students do not shed their Constitutional rights at the school house gate. Post- Earls, students absolutely shed their constitutional right to be free from suspicionless searches regardless of whether the student's school has any demonstrated drug problem and regardless of whether there is any demonstrated safety or special need attendant to the search. Thus, while the special needs doctrine has consistently been limited to prevent full-scale devaluation of the Fourth Amendment's warrant and probable cause requirements, Earls suggests that students and youth fall outside this general limitation. Neither Acton's limited holding and requirement that a compelling drug or safety problem be actually present at the school nor the special needs doctrine requirement for some specific demonstration of a special safety need as to a particular group will delimit application of the Fourth Amendment at public schools after Earls. With the resurrection and strengthening of the in loco parentis concept, the Supreme Court has given license to schools to continue invading the personal privacy of public school children to ensure that these wards are not using or abusing illicit drugs--either on campus or in the privacy of their homes. This article will trace the devolution of students' rights to privacy, pursuant to the Fourth Amendment, beginning with T.L.O. v. New Jersey. Next, the article will consider the elastic application of the court-created "special needs" doctrine, particularly as applied in drug testing cases and in school settings. In this section, the author will note the traditional requirements for application of the "special needs" doctrine and distinguish the Supreme Court's approach to "special needs" cases when the subjects are children. Finally, the article will consider the recent application of the special needs doctrine in the school setting by comparing the Vernonia and Earls opinions and project their future application. While at one time the Supreme Court assured society that "[t]he prisoner and schoolchild stand in wholly different circumstances," that pronouncement is subject to challenge in both letter and spirit. Post-Vernonia, post-Columbine, and now, post-Earls, schools have become a place where safety concerns reign paramount to challenges against "zero tolerance" policies and Fourth Amendment protections. Schools are increasingly becoming places where police and state presence are both seen and felt. And while safety concerns for students and teachers remain valid, we cannot, we must not, lose sight of the pronouncement in Brown v. Board of Education, that "[today, education [remains] perhaps the most important function of state and local governments. The lessons we teach our children--particularly those relating to the protection of their rights in times of fear and crisis--will eventually have broad consequences on our society. After all, we are today educating the leaders of tomorrow.