By John T. Holden
The Florida High School Athletic Association (FHSAA) has recently proposed a new drug testing policy applicable to all high school athletes. Under the proposed plans any high school athlete may be tested for performance enhancing drugs on the basis of reasonable suspicion. The caveat which differentiates the FHSAA program from prior high school athletics drug testing programs is that under the proposed plan each student tested would be required to pay for the drug test (estimated to be between $150.00 – $200.00 [1]). Florida operated a pilot program from 2006-2007 that tested high school student athletes for performance enhancing drugs. The program, cut short due to budget constraints, recorded only 1 positive test out of 600 athletes tested. [2]
The U.S. Supreme Court has addressed drug testing in high school athletics in two seminal cases. In Vernonia School District v. Acton [3], the school district had a standing policy that any student in high school or middle school sports was required to submit to a drug test, administered and paid for by the school district. The testing policy was implemented as a result of an increase in school disturbances often associated with drug use. The student athletes in Vernonia were classified as the leaders of the drug culture. All student athletes were to be tested at the beginning of the season and during the season and 10% were randomly drawn to be retested. Acton and his parents refused to consent to the testing on the basis that it was an unlawful infringement of his 4 th amendment rights. The Supreme Court in a 6-3 decision, authored by Justice Scalia, ruled in favor of the School District on the basis that the school district’s interest in ensuring the safety of student-athletes outweighed the students’ privacy interests.
In Board of Education v. Earls, decided seven years after Vernonia, the school district of Tecumseh, Oklahoma, implemented a requirement that all students wishing to participate in extracurricular activities must provide consent and submit to urinalysis testing. Similarly to Vernonia, the taxpayers of Tecumseh were responsible for payment of the testing fees. Unlike Vernonia, the Court strayed from the requirement that there must be an identifiable concern over drug use amongst the population. In a 5-4 decision, the majority opinion written by Justice Thomas, the Court concluded that the policy was reasonable in serving the important interest the school district had in deterring the deleterious effects of drug use amongst adolescents. [4] The Court also held that because there were no criminal or academic penalties as a result of a positive test the intrusion on the 4th Amendment was minimal.
The key difference which has arisen out of the proposed FHSAA rule versus both Vernonia and Earls is that parents or guardians are responsible for paying for each test. It is unclear how this would potentially influence a court. The Supreme Court in Vernonia and Earls upheld the testing policies of the school districts largely on the basis that they were minimally invasive with respect to the students 4th amendment rights, however; in both instances it was the school district that funded the testing. The Supreme Court has not addressed whether a student can be tasked with responsibility for paying for his/her own drug testing, nor has the Court addressed whether the payor of the test contributes to the invasiveness of the search.
The issue of who is required to pay for a test potentially raises a myriad of issues for low income families, who may experience significant hardship in paying for tests, especially if a particular athlete is tested multiple times during a season. Another issue arises if a third party pays for the test as the athlete could potentially risk future collegiate eligibility. There is a significant danger that the proposed rule could limit access to high school athletics for lower income students.
Florida has recently suffered several challenges to other state imposed drug tests. The 11th Circuit Court of Appeals recently upheld a District Court decision, which granted an injunction preventing the State from conditioning payment of temporary assistance on the basis of an applicant passing a urinalysis test. [5] On May 29, 2013, the 11th Circuit cited both Vernonia and Earls in striking down a Florida program the required blanket suspicionless drug testing for State employees, without regard for the employee’s type of employment. [6] The FHSAA proposal would pose a quandary for a court should a challenge ever come, as there will be a new challenge of balancing the interests of safety with requiring students (or more likely parents) to pay to have their children’s 4th Amendment rights limited.
John T. Holden is currently a Ph.D. student at Florida State University. He earned his J.D. from Michigan State University and LL.B. from the University of Ottawa.
[1] Amy Shipley, Proposal for drug testing of high school athletes: make parents pay, S. Fla. Sun Sentinel, Aug. 15, 2013, http://articles.sun-sentinel.com/2013-08-15/news/fl-high-school-sports-drug-reaction-20130818_1_drug-testing-high-school-athletes-human-growth-hormone
[2] Id.
[3] Vernonia School District v. Acton, 515 U.S. 646 (1995).
[4] Bd. of Edu. of Ind. School Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002).
[5] Lebron v. Sec., Fl. Dept. of Children and Families, D.C. Docket No. 6: 11 —cv-01473-MSS-DAB (11th Cir. Feb. 26, 2013).
[6] AFSCME v. Scott, (11th Cir. May 29, 2013).D.C. Docket No. 1:11-cv-21976-UU (11th Cir. May 29, 2013).The Supreme Court held in Von Rabb that drug testing for employees who have safety sensitive positions was reasonable
