Drug Testing: Background Information

Mandatory drug testing in public schools is a relatively new legal issue as an outgrowth of the 1980's "war on drugs." Prior to this time nearly all drug testing was done by law enforcement officers, and then only with probable cause. Schools began their own mandatory suspicionless drug testing programs, frequently focusing on student athletes. A series of legal victories followed upholding the rights of schools to drug test students.

The Supreme Court supported suspicionless student drug testing in 1995's Vernonia v. Acton. The court found that students' Fourth Amendment rights were outweighed by the government's interest in maintaining drug-free schools. Following this decision suspicionless drug testing programs in schools have flourished in many states. A smaller number of states have banned suspicionless drug testing in schools out of concerns that such programs would conflict with state constitutional privacy protections.

A trend in lower court rulings would indicate that stronger student privacy protections may be available in the future. Decisions are more narrowly constraining the context and manner in which schools can drug test their students.

Using Drug-Sniffing Dogs and Canine Units

As with drug testing, courts have acknowledge the Fourth Amendment privacy concerns that are raised when drug-sniffing dogs are used. However, courts also found that the school's interest in maintaining a drug-free learning environment was a compelling reason to permit the use of canine units. Until recently, the use of drug-sniffing dogs was relatively uncontroversial. Courts viewed the evidence uncovered by canine units as legitimately acquired under the "plain view" (or "plain sniff") doctrine which allows the admission of any evidence that is left out in the open.

The smells, they reasoned, were out in the open for the dog's discovery. However, 2013's Florida v. Jardines decision may signal a change in attitude. The U.S. Supreme Court decided that the use of a drug-sniffing dog on a homeowner's porch with the intent to investigate the contents of the home was a "search" covered by the Fourth Amendment and required a warrant. This decision has not impacted the legality of canine searches in schools since the warrant requirement does not apply when the dog and handler are invited onto school grounds.

Still, attitudes regarding searches continue to change and additional privacy protections may be available on the state and local levels. Consult a local attorney for the most recent and accurate view of privacy protections in your area.