No. 01-332 

In the Supreme Court of the United States 

BOARD OF EDUCATION OF INDEPENDENT SCHOOL 
DISTRICT NO. 92 OF POTTAWATOMIE COUNTY, ET AL., 
PETITIONERS 

v. 

LINDSAY EARLS, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONERS 

THEODORE B. OLSON 
Solicitor General 

Counsel of Record 
ROBERT D. MCCALLUM, JR. 

Assistant Attorney General 
PAUL D. CLEMENT 

Deputy Solicitor General 
GREGORY G. GARRE 

Assistant to the Solicitor 

General 
LEONARD SCHAITMAN 
LOWELL V. STURGILL JR. 

Attorneys 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the Fourth Amendment prevents a public school 
district from requiring students who choose to participate in 
non-athletic interscholastic competitions to agree to random 
urinalysis testing for illegal drug use. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 

8 

Argument: 

The Fourth Amendment does not prohibit the 
school district’s random drug-testing policy ............. 

11 
A. As in Vernonia, the privacy interests of 
students subject to testing are greatly 
diminished by the school setting and 
activities in which they have chosen to 
participate ................................................................. 12 

B. The “intrusion complained of ” in this case 
is, if anything, less significant than in 
Vernonia ................................................................... 15 

C. The court of appeals erred in concluding 
that the government concern in this case 
is of a different constitutional dimension 
than the one in Vernonia ....................................... 

17 

1. The policy’s application to non-athletes 
does not render the government concern 
any less significant ............................................. 
17 

2. The school district was not required to 
allow drug use at Tecumseh to worsen 
before adopting its policy ................................. 
20 

D. Under a proper balancing, the school 
district’s drug-testing policy is reasonable 
and thus constitutional ........................................... 
25 

Conclusion ...................................................................................... 26 

(III) 

IV 

TABLE OF AUTHORITIES 

Cases: Page 

Board of Educ., Island Trees Union Free Sch. 

Dist. No. 26 v. Pico, 457 U.S. 853 (1982) ........................ 
24 

Chandler v. Miller, 520 U.S. 305 (1997) .................. 
10, 12, 22 

Griffin v. Wisconsin, 483 U.S. 868 (1987) ......................... 
11 

National Treasury Employees Union v. Von Raab, 
489 U.S. 656 (1989) ......................................... 

11, 12, 21, 24, 25 

New Jersey v. T.L.O., 469 U.S. 325 (1985) ......................... 
13 

Skinner v. Railway Labor Executives’ Ass’n, 
489 U.S. 602 (1989) ............................................... 
11, 12, 21, 24 

United States v. Edwards, 498 F.2d 496 (2d Cir. 1974) ... 
15 

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 
646 (1995) ........................................................................... 
passim 

Constitution and statutes: 

U.S. Const. Amend. IV ....................................... 

7, 11, 12, 13, 15 

The Safe and Drug-Free Schools and Communities 

Act of 1994, 20 U.S.C. 7101 et seq. ...................................... 

1 

20 U.S.C. 7102(2) ............................................................... 
17 

20 U.S.C. 7116(b)(2)(C) .................................................... 
1 

Miscellaneous: 

Centers for Disease Control, Youth Risk Behavior 

Surveillance—United States, 1999, 49 Morality 
Weekly Report 14 (June 9, 2000) ........................................ 

2 
Office of Nat’l Drug Control Policy, Nat’l Drug 

Control Strategy: 2001 Annual Report (Jan. 2001) ........ 

2-3 

Office of Applies Studies, Substance Abuse & 

Mental Health Servs. Admin., Nat’l Household 
Survey on Drug Abuse Report (Nov. 9, 2001) ................ 

3, 22 
Public Health Service, Nat’l Institutes of Health, 

Monitoring Future: Nat’l Results on Adolescent 
Drug Use (2000) ..................................................................... 2 

In the Supreme Court of the United States 

No. 01-332 

BOARD OF EDUCATION OF INDEPENDENT SCHOOL 
DISTRICT NO. 92 OF POTTAWATOMIE COUNTY, ET AL., 
PETITIONERS 

v. 

LINDSAY EARLS, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONERS 

INTEREST OF THE UNITED STATES 

Drug use among the Nation’s school children poses a 
grave threat not only to the lives of individual students and 
their families, but to the health of the Nation itself. The Safe 
and Drug-Free Schools and Communities Act of 1994, 20 
U.S.C. 7101 et seq., authorizes federal grants to local educa- 
tional agencies for drug and violence prevention programs, 
including programs like the one at issue here, designed “to 
combat illegal alcohol, tobacco and drug use.” 20 U.S.C. 
7116(b)(2)(C).1 The United States, primarily through the 

1 In fiscal years 1996 through 2001, Congress appropriated between 
$340 and $415 million annually for local drug and violence prevention 

(1) 

2 

Department of Justice and Department of Health and 
Human Services, administers numerous other programs that 
seek to deter illegal drug use, particularly among youth. The 
United States participated as an amicus in Vernonia School 
District 47J v. Acton, 515 U.S. 646 (1995), which involved a 
challenge to a school district’s random drug-testing policy for 
student athletes. 

STATEMENT 

1. Illegal drug use remains prevalent among the Nation’s 
school children. In a survey conducted last year, 54% of 12th 
grade students and 45.6% of 10th grade students from 435 
schools across America reported they had used an illegal 
drug during their lifetime. Public Health Service, Nat’l 
Institutes of Health, Monitoring the Future: Nat’l Results 
on Adolescent Drug Use Table 1 (2000). In the same survey, 

24.9% of 12th grade students and 22.5% of 10th grade 
students said that they had used an illicit drug at least once 
in the past month. Id. Table 2; see Centers for Disease 
Control, Youth Risk Behavior Surveillance—United States, 
1999, 49 Morbidity and Mortality Weekly Report 14 (June 9, 
2000) (Youth Risk Behavior) (In 1999, 47.2% of high school 
students nationwide reported that they had used marijuana, 
and 26.7% of such students did so one or more times during 
the prior 30 days); Pet. App. 28a-29a n.2.2 
At the same time, school children not only are more 
vulnerable to drug use than adults, but such abuse is much 
more likely to devastate their lives. Office of Nat’l Drug 

efforts. Under the Act, the school district in this case received annual 
grants for such efforts in the past four years totaling approximately 
$40,000. 

2 In the 1999 survey, 7.2% of students said that they had used mari- 
juana on school property in the previous month. More than 30% of 
students reported that they had been offered or sold illegal drugs on 
school property in the prior year. Youth Risk Behavior at 18. 

3 

Control Policy, Nat’l Drug Control Strategy: 2001 Annual 
Report 10. Children who abuse drugs risk serious physical 
and psychological harm, as well as death. Ibid. They are less 
likely to achieve success in the classroom, and more apt to 
engage in criminal and other high-risk behavior, including 
driving while impaired and engaging in sexual acts that may 
result in unintended pregnancies or the transmission of 
disease. Id. at 10, 13. Drug use also has contributed to the 
rise in youth violence. Office of Applied Studies, Substance 
Abuse & Mental Health Services Admin., Nat’l Household 
Survey on Drug Abuse Report 2 (Nov. 9, 2001). 

2. a. Tecumseh, Oklahoma, is a rural community about 40 
miles southeast of Oklahoma City. Petitioners (collectively, 
the “school district”) are a public school district in Tecumseh 
and its governing board of education. The school district 
administers Tecumseh High School, which has about 750 
students in grades 9 through 12, as well as a middle school 
and elementary schools. Tecumseh High is a member 
of the Oklahoma Schools Secondary Activities Association 
(OSSAA), which sponsors and regulates competitions among 
public school students from across the State. Most Tecum- 
seh students participate in extracurricular activities gov- 
erned by the OSSAA, including not only sports but also 
cheerleading, band, choir, color guard, Pom Pom, Future 
Homemakers of America (FHA), Future Farmers of Amer- 
ica (FFA), and the academic team. Pet. App. 2a-3a. 

b. Like virtually every community in America, Tecumseh 
has experienced illicit drug use among its school children. 
The record in this case provides direct testimonial and other 
evidence of such abuse. For example, a school board presi- 
dent testified that marijuana use has been reported in the 
classroom at Tecumseh High. J.A. 96. Three teachers testi- 
fied that they heard students talking about marijuana use, 
J.A. 115-116, 120-121; that they suspected that several 
students in their classes were abusing drugs, J.A. 119, 120, 

4 

125; and that they had reported students for drug use, J.A. 
120, 127. Pet. App. 57a-58a & nn. 12-13. 

Students too—including respondents themselves—have 
acknowledged drug use in Tecumseh schools. Lindsay Earls 
stated during a nationally televised program that there is “a 
widespread drug problem” at Tecumseh High. Pet. App. 58a 

n.14. Daniel James testified that he has seen “about twelve” 
students under the influence of illegal drugs, is aware of 
others who have abused such drugs, and knows of students 
who have entered drug rehabilitation programs. J.A. 122- 
124. In addition, school counselors met with students to 
discuss drug use more than 40 times between 1997 and 2000, 
J.A. 52-56, and drug dogs “hit” on students or their vehicles 
several times between 1997 and 1999. C.A. App. 633-636, 
640-642, 644-646, 649-650; see J.A. 58-59. 

Those reports of drug use include incidents involving stu- 
dents who participate in competitive activities governed by 
the OSSAA. For example, a voice teacher testified that she 
has had students tell her about drug use among students in 
the choir, and has observed choir students who appeared to 
be impaired. J.A. 125-126. An FHA supervisor testified that 
students talk freely in class about marijuana use. J.A. 115. 
School counselors have reported several instances of drug 
use among band members, and other incidents of drug use 
among students in vocal. J.A. 52-56. An FFA supervisor 
testified that he has suspected drug use among members of 
FFA, and has overheard students discuss drug use. C.A. 
App. 204-205. In addition, students enrolled in sports, FFA, 
band, and vocal have been caught with or disciplined for 
drugs. J.A. 44; see also J.A. 78, 81, 99, 101, 105. 

c. The community has tried to deter drug use in a num- 
ber of different ways. For example, the school district has 
observed “Red Ribbon Week” each year, during which anti- 
drug rallies are held and students are urged to pledge to 
remain drug-free. The school district participates in a “Grim 

5 

Reaper” program designed to inform students about the 
perils of drug use. The school district has stepped up sur- 
veillance activities, and uses drug dogs to sweep school 
property. Pet. App. 59a n.20. In addition, since at least 1995, 
the school district has considered implementing a student 
drug-testing policy, as an added deterrent. C.A. App. 123. 

In 1998, discussions over whether to enact such a policy 
intensified as “people all over the community” began to 
become more “aware” of a drug problem at Tecumseh High. 
Pet. App. 58a; C.A. App. 123-125; J.A. 85. After a February 
1998 school board meeting at which a parent admitted her 
own child’s drug use, J.A. 86, marijuana was found hidden in 
the school parking lot and in a student’s car, J.A. 101-103, 
140. In August 1998, after receiving more calls for action, 
the school district convened a special community meeting at 
which a proposed drug-testing policy was discussed. J.A. 
137-139. No one who attended that meeting was reported to 
have objected to suspicionless drug-testing of school chil- 
dren. C.A. App. 78. Shortly thereafter, the school district 
adopted the drug-testing policy at issue in this case. 

d. The policy applies to all students who participate in 
interscholastic competitions governed by the OSSAA, in- 
cluding both athletic and non-athletic activities. J.A. 193. 
Before a student is allowed to enroll in such an activity, he 
must return a consent form signed by him, his parent, and 
his coach, agreeing to be bound by the policy. J.A. 203-204. 
The policy authorizes three forms of urinalysis testing for 
illegal drugs. First, all students are tested as part of the 
annual physical examination required for a sport or, for non- 
athletes, before participation in OSSAA competitions. 
Second, random tests are conducted each month based on 
names drawn from the pool of all students covered by the 
policy. Third, any covered student who is suspected of drug 
use may be tested at any time. J.A. 196-197. 

6 

During tests, students are accompanied into a restroom by 
an adult monitor of the same sex and asked to provide a 
urine sample from behind a “closed stall.” J.A. 198. Moni- 
tors examine the specimen for temperature and tampering, 
and give students a form on which the student may list any 
medications being taken. School district employees “shall 
not” view that list. J.A. 199. The specimen and medication 
list are sent to an independent laboratory, which tests for 
amphetamines, cannaboid metabolites, cocaine, opiates, bar- 
bituates, and benzodiazepines. An initial “positive” may be 
reported only if it is confirmed by a second test using the gas 
chromatography/mass spectrometry technique. Ibid. 

Positive test results are disclosed only to the parent, 
student, principal, and coach, and not to law enforcement. A 
first offense results in drug counseling and another drug test 
in two weeks, but the student may continue to participate in 
OSSAA-governed activities. Students who test positive a 
second time are suspended from OSSAA activities for two 
weeks, and must agree to drug counseling and random drug 
tests for the rest of the year. A third strike, or any refusal 
to submit to a drug test, bars the student from OSSAA 
activities for the remainder of the school year. J.A. 201-202. 
Students may appeal test results to the superintendent and 
continue to participate in OSSAA activities. J.A. 200. No 
suspensions from school or academic sanctions may be 
imposed for violating the policy. J.A. 193.3 

3. In 1999, respondents, Tecumseh High students who 
desire to participate in non-athletic interscholastic competi- 
tions governed by the school district’s policy, brought this 

3 The policy has been implemented in three years. During the 2000- 
2001 school year, for example, 642 initial tests were given. Eleven stu- 
dents tested positive, four of whom were involved in non-athletic activi- 
ties. During that same year, 205 random tests were conducted and six 
students tested positive, one of whom was involved in a non-athletic 
activity. C.A. Pet. Reh’g 5 n.3. 

7 

Section 1983 action seeking declaratory and injunctive relief 
from enforcement of the policy on the ground that it violates 
the Fourth Amendment.4 On cross-motions for summary 
judgment, the district court granted summary judgment for 
the school district. Pet. App. 50a-81a. Following the same 
“special needs” analysis applied in Vernonia School District 
47J v. Acton, supra, the court held that the school district 
has shown a “legitimate cause for concern” (Pet. App. 61a) to 
justify its policy, and that the school district’s need 
outweighs the diminished expectations of privacy that 
students have in the public school setting, particularly given 
the “minimal” intrusion involved in testing. Id. at 78a. 

4. The court of appeals reversed. Pet. App. 1a-45a. The 
court agreed that this case is governed by the “analysis in 
Vernonia,” but it held that a different result was required 
than in Vernonia. Id. at 9a. The court of appeals recognized 
“that, like athletes, participants in other extracurricular 
activities have a somewhat lesser privacy expectation than 
other students.” Id. at 21a. In addition, the court recognized 
that the character of the intrusion in this case is “virtually 
identical” to that in Vernonia, because of the similarities in 
the testing process under both policies. Id. at 22a. However, 
the court held that, unlike Vernonia, the nature and immedi- 
acy of the government concern at issue here “tips the 
balancing analysis decidedly in favor of [respondents].” Ibid. 
In particular, the court faulted the evidence of the underly- 
ing drug problem in this case. Id. at 14a-18a. 

Judge Ebel dissented. Pet. App. 28a-45a. He would have 
upheld the school district’s policy under Vernonia. In his 
view, “Vernonia does not require that a school district allow 
illegal drugs to gain a stronghold among its schoolchildren 
before it may take steps to eliminate them through random 

4 Respondents do not challenge the policy as applied to students 
involved in interscholastic athletics. 

8 

drug testing.” Id. at 38a. As he explained, “[i]llegal drugs 

* * * are nearly impossible to eliminate once they have 
garnered a foothold in our communities, schools, and homes.” 
Id. at 38a-39a. Further, Judge Ebel reasoned that the evi- 
dence of drug use in this case was comparable to that in 
Vernonia. Id. at 38a. Judge Ebel also concluded that “the 
majority place[d] too little weight on the fact that the testing 
here is limited to extracurricular activities, where the stu- 
dents have voluntarily submitted themselves to additional 
supervision and regulation.” Id. at 39a-40a. 

SUMMARY OF ARGUMENT 

In response to increasing community concern over illicit 
drug use in Tecumseh schools, petitioners adopted a random 
drug-testing policy for all students who wish to participate in 
extracurricular interscholastic competitions, including non- 
athletic activities. That policy is reasonable, and thus satis- 
fies the Fourth Amendment, under the same considerations 
that this Court looked to in upholding the random drug- 
testing policy for student athletes in Vernonia School Dis- 
trict 47J v. Acton, 515 U.S. 646 (1995). 

A. The privacy interests in this case are identical to those 
in Vernonia. As Vernonia reaffirmed, privacy interests are 
greatly diminished in the public school context. In that 
regard, the “most significant” (515 U.S. at 665) consideration 
identified in Vernonia—that the policy was adopted by a 
school district fulfilling its guardianship responsibilities to its 
students—is just as forceful here. In addition, as was true 
with respect to the student athletes in Vernonia, the 
already-diminished expectations of the general study body at 
Tecumseh High are further diminished with respect to 
students who participate in an interscholastic competition 
covered by the school district’s policy. Students who par- 
ticipate in such activities, athletic or not, are subject to 
added academic and conduct requirements. 

9 

B. The character of the intrusion complained of in this 
case is, if anything, less significant than in Vernonia. The 
manner of testing, the information that is obtained, and the 
uses to which such information is put are the same here as in 
Vernonia, except in two respects. The policy here requires 
that all students be permitted to provide specimens from 
behind a “closed stall,” whereas the policy in Vernonia only 
required that female students be permitted to do so. In 
addition, unlike Vernonia, the policy here expressly requires 
that information concerning prescription medications remain 
confidential. In Vernonia, this Court characterized the 
degree of intrusion involved in testing as “negligible” and 
“not significant.” 515 U.S. at 558, 660. It is even less 
significant here. 

C. The court of appeals erred in concluding that the 
government concern at issue in this case was insufficient to 
justify the limited intrusion into students’ diminished pri- 
vacy interests. As this Court recognized in Vernonia, the 
government has a compelling interest in deterring, not just 
detecting, drug use among school children. The perils of 
student drug use are numerous and well-documented. The 
court of appeals was wrong to suggest that the school 
district’s interest is materially different here on the ground 
that student athletes face a higher risk of injury from drug 
use than students covered by the policy in this case, many of 
whom face comparable risks. Quite apart from its interest in 
minimizing the risk of injury from drug use, the school dis- 
trict also has a strong interest in ensuring that those stu- 
dents who represent Tecumseh High and their community at 
interscholastic competitive events do so drug-free. 

The court of appeals also erred in concluding that the gov- 
ernment’s concern was not sufficiently “immediate.” First, 
this Court’s drug-testing cases make clear that, although a 
“demonstrated problem of drug abuse” may “bolster[]” the 

10 

government’s interest, such evidence is “not in all cases 
necessary to the validity of a testing regime.” Chandler v. 
Miller, 520 U.S. 305, 319 (1997). In that regard, the record in 
Vernonia by no means establishes a constitutional floor for 
justifying a student drug-testing policy. Second, the record 
of the drug problem at Tecumseh, including among students 
covered by the policy, is much closer to the actual evidence 
of drug use in Vernonia than the court of appeals acknowl- 
edged. Third, the court failed to give appropriate deference 
to the first-hand judgments of local school administrators as 
to the severity of the drug problem and need for action. 
Fourth, the court failed to appreciate that deterring drug use 
so that it does not take root and spread is every bit as 
important, if not more so, as detecting drug use at a school 
that already has a drug epidemic. 

D. Balancing those considerations, the Court should 
conclude that the drug-testing policy in this case is rea- 
sonable and thus constitutional. Adopting a different ap- 
proach would create a standardless inquiry under which the 
constitutionality of each school’s drug-testing policy would 
turn on finely-drawn distinctions over the state of the record 
of drug use at that particular school, or among a particular 
class of students, or whether a destructive problem is 
already out of control. There is no reason to invite such fact- 
intensive litigation in every case, or to demand a school- 
specific inquiry into what is clearly a pervasive national 
problem. The Court should leave school administrators with 
flexibility to adopt common-sense, drug-deterrence mea- 
sures like the policy at issue in this case. 

11 

ARGUMENT 

THE FOURTH AMENDMENT DOES NOT PROHIBIT 
THE SCHOOL DISTRICT’S RANDOM DRUG- 
TESTING POLICY 

The Fourth Amendment guarantees “[t]he right of the 
people to be secure in their persons * * * against 
unreasonable searches and seizures.” The “state-compelled 
collection and testing of urine” is a “search” within the 
Fourth Amendment. Vernonia Sch. Dist. 47J v. Acton, 515 
U.S. 646, 652 (1995). The general rule is that to be rea- 
sonable, and thus constitutional, a search must be based on 
individualized suspicion of wrongdoing. This Court has 
recognized an exception to that rule, however, for searches 
based on “special needs, beyond the normal need for law 
enforcement, mak[ing] the warrant and probable-cause 
requirement impracticable.” Id. at 653 (quoting Griffin v. 
Wisconsin, 483 U.S. 868, 873 (1987)); see National Union 
Treasury Employees v. Von Raab, 489 U.S. 656, 666 (1989); 
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 
619 (1989). 

In Vernonia, this Court reaffirmed that “such ‘special 
needs’ * * * exist in the public school context,” and may 
justify suspicionless drug testing of students. 515 U.S. at 
653. That case involved a Fourth Amendment challenge to 
an Oregon school district’s policy, which authorized random 
urinalysis tests of student athletes. In deciding whether 
that policy was constitutional, the Court considered (1) the 
nature of the privacy interests at issue; (2) the character of 
the intrusion involved; and (3) the nature and immediacy of 
the government concern at issue, and the efficacy of the 
chosen means for meeting it. Balancing those factors, the 
Court held that the policy was “reasonable and hence 
constitutional.” Id. at 665. As explained below, a proper 
balancing of the same considerations leads to the identical 

12 

conclusion with respect to the substantially similar policy at 
issue in this case.5 

A. As In Vernonia, The Privacy Interests Of Students 

Subject To Testing Are Greatly Diminished By The 
School Setting And Activities In Which They Have 
Chosen To Participate 

1. In Vernonia, this Court emphasized that “[t]he most 
significant element” in upholding the challenged drug- 
testing policy was the nature of the privacy interests at 
issue. 515 U.S. at 665. In particular, the Court stressed 
“that the Policy was undertaken in furtherance of the gov- 
ernment’s responsibilities, under a public school system, as 
guardian and tutor of children entrusted to its care.” Ibid.; 
see Chandler, 520 U.S. at 316 (the public school context was 
“critical” in Vernonia, because of the State’s guardianship 
responsibilities to students). The same goes for the student 
drug-testing policy in this case and, just as in Vernonia, that 
fact weighs heavily in favor of finding that the school 
district’s policy is constitutional. 

Under the Fourth Amendment, an examination of the 
legitimacy of the privacy interests at stake must begin with 
the setting in which the challenged intrusion arises. “What 
expectations are legitimate varies * * * with context, 
depending, for example, upon whether the individual 
asserting the privacy interest is at home, at work, in a car, or 

5 The Court has conducted the same balancing analysis in considering 
suspicionless drug-testing policies adopted by federal employers, see Von 
Raab, supra (upholding United States Customs Service’s policy of 
urinalysis drug testing for employees transferred to drug-interdiction or 
firearm-carrying positions); Skinner, supra (upholding Federal Railroad 
Administration’s policy of urinalysis drug and alcohol testing for rail 
employees involved in train accidents or who violate safety rules), and by 
the States, see Chandler v. Miller, 520 U.S. 305, 316 (1997) (holding 
unconstitutional state law requiring candidates for state public office to 
certify that they have passed a urinalysis drug test). 

13 

in a public park.” Vernonia, 515 U.S. at 654 (citation 
omitted). The school setting of this case necessarily affects 
the legitimate expectations of privacy. See New Jersey v. 
T.L.O., 469 U.S. 325, 339 (1985); id. at 348 (Powell, J., joined 
by O’Connor, J., concurring) (“In any realistic sense, 
students within the school environment have a lesser expect- 
ation of privacy than members of the population generally.”). 

As the Court observed in Vernonia: “Central, in our view, 
to the present case is the fact that the subjects of the [chal- 
lenged drug-testing policy] are (1) children, who (2) have 
been committed to the temporary custody of the State as 
schoolmaster.” 515 U.S. at 654. “[A] public school system” 
acts “as guardian and tutor of children entrusted to its care.” 
Id. at 665. As a common-sense matter, it must do so. As this 
Court has recognized, a “proper educational environment 
requires close supervision of schoolchildren, as well as the 
enforcement of rules against conduct that would be perfectly 
permissible if undertaken by an adult.” Id. at 655 (quoting 
T.L.O., 469 U.S. at 339); see id. at 680 (O’Connor, J., dis- 
senting) (“schools have traditionally had special guardianlike 
responsibilities for children”). Public schools do not stand in 
the same shoes as the parents of the children who fill their 
classrooms. Id. at 655. But when children enter the school- 
house gates, they submit themselves to the temporary 
custody and control of their teachers and other school admin- 
istrators, and must abide by their rules. 

In short, the public school context greatly diminishes the 
legitimate expectations of privacy of students from intru- 
sions implicating the Fourth Amendment. And from that 
standpoint, the students covered by the drug-testing policy 
here have the same diminished expectations as the students 
covered by the policy in Vernonia. 

2. In Vernonia, the Court observed that the already- 
diminished privacy expectations of school children “are even 
less with regard to student athletes.” 515 U.S. at 657 

14 

(emphasis added). For example, students who participate in 
high school athletics typically use communal facilities such as 
locker rooms, and may be required to change and shower in 
each other’s presence. Ibid. In addition, “[b]y choosing to 
‘go out for the team,’ [students] voluntarily subject them- 
selves to a degree of regulation even higher than that im- 
posed on students generally.” Ibid. Here too, the students 
covered by the school district’s policy, who participate in 
non-athletic interscholastic competitions, occupy a compara- 
ble position to the student athletes in Vernonia. 

As both courts recognized below, “like athletes, partici- 
pants in other extracurricular activities have a somewhat 
lesser privacy expectation than other students.” Pet. App. 
21a; see id. at 65a-66a (district court). For example, students 
who sign-up for competitive activities covered by the school 
district’s policy must comply with rules and regulations not 
applicable to other students. The OSSAA subjects them to 
added academic requirements concerning such matters as 
class attendance and credits and, in particular, obligates 
them to act in a manner that does not discredit their schools. 
C.A. App. 80-81, 104-105. Various extracurricular squads 
also subject members to their own sets of rules. Pet. App. 
66a. Further, as is true with respect to team sports, the 
activities of non-athletic extracurricular groups are 
monitored by faculty sponsors, imposing an added degree of 
supervision not experienced by other students. Ibid. 

In addition, Tecumseh High students who participate in 
non-athletic interscholastic activities take overnight trips for 
competitions or related events. J.A. 44-45. The accommo- 
dations during such overnight trips often require students of 
the same sex to undress and share restroom and bathing 
facilities. See J.A. 109-113. To be sure, non-athletic activi- 
ties typically do not entail the degree of “communal undress” 
(Vernonia, 515 U.S. at 657) to which students must submit as 
part of some team sports, but they nonetheless often require 

15 

students to compromise their privacy interests in a com- 
parable fashion and to a degree that students who do not 
participate in such activities may avoid. 

Moreover, just like the student athletes in Vernonia, 
Tecumseh students who participate in non-athletic activities 
covered by the policy voluntarily assume those added 
requirements and intrusions when they sign-up or try-out 
for the activity. And, of course, they may avoid those 
requirements—including drug testing—by choosing not to 
participate. See Vernonia, 515 U.S. at 666 (Ginsburg, J., 
concurring) (citing United States v. Edwards, 498 F.2d 496, 
500 (2d Cir. 1974) (Friendly, J.)). As the school district’s 
policy underscores, “[p]articipation in school-sponsored 
extra-curricular activities at the Tecumseh Public School 
District is a privilege.” J.A. 193. Students who choose to 
avail themselves of that privilege “have reason to expect 
intrusions upon normal rights and privileges, including 
privacy.” Vernonia, 515 U.S. at 657. That expectation alone 
seriously undercuts their Fourth Amendment claim de- 
manding to be excused from the school district’s random 
drug-testing policy. 

B. The “Intrusion Complained Of ” In This Case Is, If 

Anything, Less Significant Than In Vernonia 

The next consideration is “the character of the intrusion 
that is complained of.” Vernonia, 515 U.S. at 658. “[T]he 
degree of intrusion [caused by urinalysis testing] depends 
upon the manner in which production of the urine sample is 
monitored.” Ibid. In Vernonia, the Court observed that the 
intrusion was “negligible,” where urine samples were 
collected under conditions “nearly identical to those typically 
encountered in public restrooms.” Ibid. Boys provided 
specimens at a urinal along a wall while clothed, and were 
observed by a male monitor only from behind; girls provided 
specimens from a closed stall with a female monitor standing 

16 

outside. Ibid. Under the policy in this case, all specimens— 
from both boys and girls—“must be collected in a restroom 
or other private facility behind a closed stall,” while a 
monitor of the same sex is standing outside. J.A. 198. 
Therefore, the policy here actually involves a lesser degree 
of intrusion than the one in Vernonia. 

In Vernonia, the Court also weighed the degree of 
intrusion in terms of the information disclosed by the tests, 
and found that it was “not significant.” 515 U.S. at 660. In 
reaching that conclusion, the Court emphasized that the 
tests “look[ed] only for drugs, and not for whether the 
student is, for example, epileptic, pregnant, or diabetic”; that 
“the drugs for which the samples are screened are standard, 
and do not vary according to the identity of the student”; 
that “the results of the tests are disclosed only to a limited 
class of school personnel who have a need to know”; and that 
the results “are not turned over to law enforcement authori- 
ties or used for any internal disciplinary function.” Id. at 
658. As the court of appeals recognized, the drug-testing 
policy in this case is “virtually identical” to the policy in 
Vernonia in terms of “the information obtained, and the use 
to which that information is put.” Pet. App. 22a. 

Indeed, in this respect as well, the degree of intrusion in 
this case is less significant than in Vernonia. In Vernonia, 
the only concern that the Court noted was that the policy 
could be construed to require students “to identify in 
advance [of any positive result] prescription medications 
they are taking.” 515 U.S. at 659. The Court observed, 
however, that such concern would be ameliorated if students 
were permitted to provide such information “in a confiden- 
tial manner—for example, in a sealed envelope delivered to 
the testing lab.” Id. at 660. Unlike the policy in Vernonia, 
the policy here explicitly calls for such confidential treat- 
ment. See J.A. 199 (“The medication list shall be submitted 

17 

to the lab in a sealed and confidential envelope and shall not 
be viewed by district employees.”). 

C. The Court Of Appeals Erred In Concluding That The 

Government Concern In This Case Is Of A Different 
Constitutional Dimension Than The One In Vernonia 

The remaining consideration is “the nature and immediacy 
of the governmental concern at issue here, and the efficacy of 
[the challenged] means for meeting it.” Vernonia, 515 U.S. 
at 660. Even though the “governmental concern” at issue 
and “means for meeting it” are essentially the same here as 
in Vernonia, the court of appeals concluded that “[t]his 
factor tips the balancing analysis decidedly in favor of 
[respondents].” Pet. App. 22a. In reaching that conclusion, 
the court emphasized that the policy here applies to non- 
athletic activities, and that the record of drug use here does 
not rise to the level of that in Vernonia. Neither of those 
distinctions is of constitutional dimension. 

1. The Policy’s Application To Non-Athletes Does Not 
Render The Government Concern Any Less Significant. 
Here, as in Vernonia, “[t]hat the nature of the concern is 
important—indeed, perhaps compelling—can hardly be 
doubted.” 515 U.S. at 661. “Deterring drug use by our 
Nation’s schoolchildren is at least as important as enhancing 
efficient enforcement of the Nation’s laws against the 
importation of drugs, which was the governmental concern 
in Von Raab, or deterring drug use by engineers and 
trainmen, which was the governmental concern in Skinner.” 
Ibid. (citations omitted); see 20 U.S.C. 7102(2) (“The wide- 
spread illegal use of alcohol and other drugs among the 
Nation’s secondary [and elementary] school students * * * 
constitutes a grave threat to such students’ physical and 
mental well-being, and significantly impedes the learning 
process.”). The compelling nature of the government 

18 

interest in deterring drug use in schools is alone sufficient to 
justify a drug-testing policy like the one at issue here. 

Although it did not question the government’s interest “in 
deterring drug use among students,” the court of appeals 
suggested that that concern was less forceful here than in 
Vernonia on the ground that the risk of injury posed by drug 
use to student athletes is greater than to students engaged 
in the non-athletic activities covered by the policy in this 
case. Pet. App. 22a. To be sure, the linebacker faces a 
greater risk of serious injury if he takes the field under the 
influence of drugs than the drummer in the halftime band. 
But at the same time, the risk of injury to a student who is 
under the influence of drugs while playing golf, cross 
country, or volleyball (sports covered by the policy in 
Vernonia) is scarcely any greater than the risk of injury to a 
student who is drug-impaired while building a 15-foot-high 
human pyramid (as cheerleaders do), handling a 1500-pound 
steer (as FFA members do), or working with cutlery or 
sharp instruments (as FHA members do). See J.A. 21, 51, 
75-76, 79-81. Moreover, students who participate in extra- 
curricular activities, athletic or not, risk harm from drug use 
not just when they are competing, but at any time during the 
trips or overnight stays that they often take in connection 
with events. 

See pp. 14-15, supra.6 

6 The court of appeals acknowledged that some of the extracurricular 
activities in this case “involve a safety issue comparable to that of athlet- 
ics,” but argued that the school district’s policy nonetheless was over- 
inclusive in that it also covered extracurricular activities (e.g., academic 
team) that did not pose such a safety risk and was underinclusive in that it 
did not apply to regular school activities (e.g., shop class) that might pose 
such a risk. Pet. App. 23a. But that also was true of the policy in 
Vernonia, which applied not only to wrestlers but to golfers, and which 
did not extend to shop class. In seeking to deter drug use among their 
students, school administrators need not act with the sort of precision 
demanded by a “narrow tailoring” analysis. Rather, the touchstone under 

19 

Apart from the risk of injury to students who compete in 
OSSAA-governed events under the influence of drugs, the 
school district has another weighty interest in ensuring that 
students who participate in such events do so drug-free: 
when students step onto the auditorium stage for an aca- 
demic “Quiz Bowl,” the fairground for an FFA event, or the 
basketball court for Pom Pom, they do so on behalf of 
Tecumseh High. As the policy itself states, “[s]tudents who 
participate in [covered] activities are respected by the 
student body and are representing the school district and the 
community.” J.A. 193. Whatever the risk of injury from 
competing under the influence of drugs, the school district 
has a strong interest in seeing that those who represent 
Tecumseh High are not an “embarrassment” to the school 
and community, not to mention themselves. J.A. 78. 

In a similar vein, in Vernonia, this Court recognized that 
the “ ‘role model’ effect” of student athletes bolstered the 
government’s interest in testing student athletes. 515 U.S. 
at 663. So too here. Cheerleaders, for example, are just as 
likely to be role models as football players. And, as the 
record reflects, students who engage in non-athletic inter- 
scholastic competitions at Tecumseh High are held in “high 
esteem” by their fellow students. C.A. App. 995. Indeed, 
the success of a non-athletic team—such as Tecumseh’s 
academic team, which was state champion in 1997 and 1998, 
ibid.—may actually call more attention to the members of 
that team than to members of sports teams with less success. 
The school district has an heightened interest in ensuring 
that those students do not use drugs. 

the Fourth Amendment is reasonableness. And, as discussed, the school 
district here, like the one in Vernonia, had ample reason—including safety 
concerns—for targeting students who choose to participate in extra- 
curricular competitions for random drug testing. 

20 

At the same time, student athletes are no more entitled to 
protection from drugs, nor less entitled to legitimate 
concerns of privacy, than students who participate in non- 
athletic activities covered by the policy. Drawing a dis- 
tinction between such students demeans both the volleyball 
player and the cheerleader by suggesting that one has a 
greater claim to privacy or is more deserving of protection 
from dangerous drugs than the other. There is, in short, no 
basis for adopting a constitutional dividing line based on 
whether a student chooses to participate in an interscholas- 
tic activity that is athletic, or one that is non-athletic. 

2. The School District Was Not Required To Allow Drug 
Use At Tecumseh To Worsen Before Adopting Its Policy. 
Although the court of appeals recognized that “there was 
clearly some drug use at the Tecumseh schools,” Pet. App. 
19a, it doubted the “immediacy” of the school district’s 
concern in addressing that problem because “the evidence of 
drug use among those subject to [its policy] is far from the 
‘epidemic’ and ‘immediate crisis’ faced by the Vernonia 
schools.” Id. at 14a; see id. at 24a. The court further held 
that “any district seeking to impose a random suspicionless 
drug testing policy as a condition to participation in a school 
activity must demonstrate that there is some identifiable 
drug abuse problem among a sufficient number of those sub- 
ject to the testing, such that testing that group will actually 
redress its drug problem.” Id. at 25a. That analysis is 
flawed on several different levels and, if embraced by the 
Court, would seriously undercut local efforts to address the 
pervasive national problem posed by drugs. 

a. First, as this Court’s drug-testing cases confirm, the 
record in Vernonia by no means establishes the constitu- 
tional floor for justifying a random drug-testing program. 
Indeed, as the Court explained in Vernonia, the record in 
that case suggested an “immediate crisis of greater propor- 
tions than existed in Skinner, where [the Court] upheld the 

21 

Government’s drug-testing program based on findings of 
drug use by railroad employees nationwide, without proof 
that a problem existed on the particular railroads whose em- 
ployees were subject to the test. And of much greater 
proportions than existed in Von Raab, where there was no 
documented history of drug use by any customs officials.” 
515 U.S. at 663 (citations omitted and emphasis added); 
see Skinner, 489 U.S. at 607; Van Raab, 489 U.S. at 673. 
Thus, far from raising the bar, Vernonia reaffirms that the 
government may establish a sufficiently important—and 
immediate—interest in adopting a random drug-testing 
program short of demonstrating that a societal drug problem 
has infiltrated a particular group of individuals. 

Von Raab underscores the point. In that case, this Court 
specifically rejected the notion that, to justify its drug- 
testing program, the Customs Service was required to show 
drug use among the specific employees to be tested. 
Instead, the Court recognized that the government has a 
compelling interest in preventing drug use among the indivi- 
duals to be tested; that there was no doubt that drug use was 
“one of the most serious problems confronting our society 
today”; and that there was “little reason to believe that 
American workplaces are immune from this pervasive social 
problem.” 489 U.S. at 674. In those circumstances, the 
Court stated, “[i]t is sufficient that the Government have a 
compelling interest in preventing an otherwise pervasive 
societal problem from spreading to the particular context.” 
Id. at 675 n.3. Without more, the government’s undeniably 
compelling interest in deterring drug use among school 
children similarly justifies the school district’s effort in this 
case to prevent drugs from spreading (further) to the 
students subject to its policy. 

Chandler v. Miller is not to the contrary. There, the 
Court—pointing to Vernonia—observed that “[a] demon- 
strated problem of drug abuse” may “bolster[]” the gov- 

22 

ernment’s arguments that a drug testing program is “war- 
ranted and appropriate,” but—citing to Von Raab—also 
recognized that such evidence is “not in all cases necessary 
to the validity of a testing regime.” 520 U.S. at 319 
(emphasis added). In Chandler, this Court invalidated a 
Georgia law requiring candidates for state office to certify 
that they had tested negative for illegal drugs. Quite unlike 
this case or Vernonia, however, in Chandler there not only 
was “no evidence” of any drug problem among individuals 
subject to testing, but the State affirmatively disavowed 
that such a problem existed. Id. at 319, 321. Rather, the 
State defended the program largely based on its “symbolic” 
need, and not its “ ‘special [need]’, as that term draws mean- 
ing from [the Court’s] case law.” Id. at 322. 

This case illustrates the problem with the court of appeals’ 
approach. As discussed (at 2), illegal drug use remains 
pervasive among America’s school children. Even if drug use 
were not yet a crisis in Oklahoma, the government would 
certainly have a compelling interest in preventing that crisis 
from occurring. But Oklahoma is not immune from the 
problem. It has one of the ten highest rates in the country of 
reported marijuana use among students ages 12 through 17. 
See Office of Applied Studies, Substance Abuse & Mental 
Health Services Admin., 1999 Nat’l Household Survey on 
Drug Abuse Report App. A, Figure A.5. The record in this 
case further establishes that illicit drugs have reached 
Tecumseh school children, including those covered by the 
challenged policy. See pp. 3-4, supra. Against that back- 
drop, the school district was not required under this Court’s 
precedents to wait until drug use became an epidemic before 
acting to save its children. 

b. Second, the evidence of drug use at Tecumseh High in 
fact paints a much more disturbing picture than the one 
portrayed by the court of appeals, including with respect to 
students covered by the policy. The court of appeals 

23 

characterized the record of “actual drug use” in this case as 
“minimal,” Pet. App. 14a, and respondents similarly claim an 
“almost complete absence of any drug problem at all in 
Tecumseh,” Br. in Opp. 15. That view cannot be reconciled 
with the record evidence, discussed above, that the school 
district adopted its policy in response to increasing calls for 
action by parents and concerned community members, and 
following reports by teachers, students, and parents of 
suspected or actual drug use among Tecumseh students 
(including those covered by the policy), and the discovery of 
drugs on school property. See pp. 3-4, supra.7 

At the same time that it underestimated the drug problem 
at Tecumseh High, the court of appeals arguably exagger- 
ated the record of drug use in Vernonia. See Pet. App. 32a 
(Ebel, J., dissenting) (The actual “evidence in Vernonia of 
drug use by student athletes, or even by other students 
attending either the school in question or other schools in the 
respondent school district, was quite limited.”); see id. at 
32a-34a, 41a. In other words, even accepting the court of 
appeals’ characterization of the record in this case, the 
evidence of drug use in this case is not materially different 
from that in Vernonia. Moreover, in evaluating that evi- 
dence, it is important to recognize that, as this Court 
reiterated in Vernonia, a person impaired by drug use “will 
seldom display any outward ‘signs detectable by the lay 
person or, in many cases, even the physician.’ ” 
515 U.S. at 

7 Respondents have pointed to certain statements in applications filed 
by the school district for funding under the Safe and Drug-Free Schools 
and Communities Act. See J.A. 163-192. For example, those forms state 
that illegal “drugs * * * are present [at Tecumseh]” but, compared to 
alcohol and tobacco, “have not identified themselves as major problems at 
this time.” J.A. 191; see J.A. 180, 186. As the district court explained, 
those statements must be read in context and, more to the point, comprise 
only a part of the evidentiary record developed in this litigation. See Pet. 
App. 60a n.23. 

24 

664 (quoting Skinner, 489 U.S. at 628 (citation omitted)); see 
also Von Raab, 489 U.S. at 674. Indeed, drug users go to 
considerable lengths to conceal their activities. In all likeli- 
hood, therefore, the prevalence of drug use at Tecumseh 
High is actually greater than what the record discloses. 

c. Third, the court of appeals failed to accord appropriate 
deference to the judgments of local school officials as to the 
severity of the problem and need for action. The local board 
of education—in which parents of school children typically 
are represented—occupies a far better vantage point to 
gauge the threat posed by illegal drugs to their own schools 
and children than federal appellate judges. See Vernonia, 
515 U.S. at 665; Board of Educ., Island Trees Union Free 
Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 863 (1982) (plurality 
opinion) (“The Court has long recognized that local school 
boards have broad discretion in the management of school 
affairs.”). The school district in this case adopted its drug- 
testing policy only after it had tried other anti-drug mea- 
sures and had held community meetings to receive input on 
its proposed policy. The court of appeals erred in substitut- 
ing its judgment for that of the school district as to the 
immediacy of the drug threat faced by Tecumseh students. 

d. Fourth, as Judge Ebel explained, the court of appeals 
failed to take into account the unique dangers posed by 
illegal drugs and, in particular, the added difficulties in 
addressing a drug problem after drugs have become deeply 
entrenched in a community or its schools. See Pet. App. 38a- 
39a (“Illegal drugs exact a tremendous toll on their victims, 
and are nearly impossible to eliminate once they have gar- 
nered a foothold in our communities, schools, and homes.”). 
In that regard, given the pervasive nature of the drug 
problem in schools nationwide and the incalculable damage 
inflicted on students and communities by illegal drugs, school 
administrators should have the same leeway to adopt the 
type of drug-testing policy at issue in this case to maintain a 

25 

drug-free school as they do to adopt such a policy in an 
overdue effort to recreate one. Preventing drugs from 
“spreading” to a school is just as important as saving a drug- 
infested school, and much easier to do. Indeed, in Vernonia, 
this Court discussed the need to deter drug use, not just 
detect it. Schools across the Nation have a uniform interest 
in employing drug testing to deter drug use without regard 
to how much drug use is, in fact, detected. In short, schools 
have an interest in preventing irreparable damage before it 
occurs. 

D. Under A Proper Balancing, The School District’s Drug- 
Testing Policy Is Reasonable And Thus Constitutional 

Balancing the foregoing factors leads to the same result 
here as in Vernonia: the school district’s policy “is rea- 
sonable and hence constitutional.” 515 U.S. at 665. Indeed, 
as discussed, the “most significant element” (ibid.) in 
Vernonia—the government’s guardianship responsibilities 
to children in the public school context—is present in equal 
measure here, and the “the intrusion complained of ” here is, 
if anything, less significant than in Vernonia. The only 
consideration that could alter the mix is the nature and 
immediacy of the government concern at issue. Whatever 
the differences between the record of drug use in this case 
and in Vernonia, the school district was more than justified 
in deciding that it was time to adopt an added deterrent in 
the form of random drug testing of covered students. 

A contrary conclusion would plunge the administrators of 
the Nation’s public schools into a Fourth Amendment regime 
in which virtually any random drug-testing policy could be 
subjected to costly, fact-intensive litigation in which the 
constitutionality of one policy versus another would turn on 
finely drawn distinctions between, for example, how many 
marijuana cigarettes were discovered at one school as 
opposed to another; how many members of the football team 

26 

had been caught for or suspected of drug use as opposed to 
members of the cheerleading squad; or whether it was more 
dangerous for a student to wrestle another student under 
the influence of drugs or to handle a steer. Neither students 
nor schools would benefit from such a microscopic approach 
to the “special needs” analysis of Vernonia. 

There is no need to require such case-specific, and ulti- 
mately standardless, inquiries into efforts to address a 
national problem like drug use in our schools. The govern- 
ment has a compelling interest in preventing the spread of 
this “pervasive societal problem” (Von Raab, 489 U.S. at 675 

n.3), and schools across the country have an equally compel- 
ling interest in ensuring that they do not become engulfed by 
that problem. Efforts to draw fine distinctions about the 
incidence of drug use in one school versus another will only 
frustrate implementation of needed solutions. The Court 
should leave schools flexibility to adopt reasonable mea- 
sures, like the policy in this case, to prevent illicit drugs from 
gaining a stronger hold on their communities, and protect 
school children from the life-altering perils of drug use. 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

THEODORE B. OLSON 
Solicitor General 
ROBERT D. MCCALLUM, JR. 

Assistant Attorney General 
PAUL D. CLEMENT 

Deputy Solicitor General 
GREGORY G. GARRE 

Assistant to the Solicitor 

General 
LEONARD SCHAITMAN 
LOWELL V. STURGILL JR. 

Attorneys 
DECEMBER 2001