Linke Ex Rel. Linke v. Northwestern School Corp.

Attorney for Appellants

Kenneth J. Falk
Indiana Civil Liberties Union
Indianapolis, IN

Attorneys for Amici Curiae

Anthony S. Benton
Laura L. Bowker
Stuart & Branigin
Lafayette, IN

David R. Day
Johnson, Smith, Pence & Heath LLP
Indianapolis, IN

David J. Emmert
Indianapolis, IN
Attorneys for Appellee

Julia Blackwell Gelinas
John H. Daerr
Thomas E. Wheeler, II
Locke, Reynolds LLP
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

ROSA J. LINKE, REENA M. LINKE,
(By their next friends and parents),
SCOTT L. LINKE and NOREEN L. LINKE,
Appellants (Plaintiffs below),

v.

NORTHWESTERN SCHOOL CORP.,
Appellee (Defendant below).

)
) Supreme Court No.
) 34S05-0103-CV-151
)
) Court of Appeals No.
) 34A05-9910-CV-467
)
)
)

APPEAL FROM THE HOWARD CIRCUIT COURT
The Honorable Lynn Murray, Judge
Cause No. 34C01-9902-CP-131

ON PETITION TO TRANSFER

March 5, 2002
SULLIVAN, Justice.

Rosa and Reena Linke, students in the Northwestern School Corporation
in Howard County, contend that the school’s random drug testing program
violates their rights under the Indiana Constitution to be free from
unreasonable searches and seizures. After weighing the students’ privacy
interests and the character of the search against the nature and immediacy
of the governmental concern at issue, we conclude that the drug-testing
program here is constitutional.

Background

Northwestern School Corporation (NSC) is a public school system
covering rural and suburban areas of Howard County near Kokomo. It
operates two elementary schools, one middle school, and one high school.

In the mid-1990s, drug usage in middle and high schools became a
concern to the administrators at NSC. In the spring of 1995, the Indiana
Prevention and Resource Center released a survey regarding drug, alcohol,
and tobacco usage by students in grades seven through ten at NSC schools.
The survey showed higher than average use of gateway drugs among some
students. Specifically, it found that NSC’s eighth graders used
amphetamines at a rate higher than state prevalence rates; ninth graders
used drugs, alcohol, and cigarettes at higher than the state prevalence
rates; and tenth graders reported a higher daily use of alcohol than state
prevalence rates.

Drug abuse continued to be a problem at NSC high and middle schools.
During the 1998-99 school year, there were two suspensions and two
expulsions in the high school and five suspensions and five expulsions in
the middle school because of student drug usage. Beginning in 1987, three
Northwestern High School students (including a recent graduate) died in
drug related incidents. The most recent death, in 1996, occurred after a
student overdosed on morphine pills acquired from a fellow student while at
school. These contraband pills passed through a chain of student hands
before finding their final resting place.

The 1996 death caused serious concern. In response, a task force
consisting of administrators, teachers, staff, and interested parents was
formed to examine NSC’s approach to drugs. In order better to fulfill
NSC’s zero tolerance policy towards drug abuse, the task force addressed
three primary areas: anti-drug curriculum; incorporation of special anti-
drug programs; and development of a student drug testing policy.

The task force created the Northwestern School Corporation Extra-
Curricular Activities and Student Driver Drug Testing Policy (“Policy”)
effective January 12, 1999. Its purpose is “(1) to provide for the health
and safety of students; (2) to undermine the effects of peer pressure by
providing a legitimate reason for students to refuse to use illegal drugs;
and (3) to encourage students who use drugs to participate in drug
treatment programs.” The Policy is explicitly not a punitive enterprise.
Under the Policy, testing positive for banned substances does not result in
academic penalty, results of drug test are not documented in any student’s
academic records, and information regarding the results is not disclosed to
criminal or juvenile authorities absent binding legal compulsion.

The Policy applies to all middle and high school students, grades 7-
12, participating in school athletics, specified extra-curricular and co-
curricular[1] activities, as well as to all student drivers who wish to
park their vehicles on campus. The activities included by the Policy are
athletics, academic teams, student government, musical performances, drama,
Future Farmers of America, National Honor Society, and Students Against
Drunk Driving. Students wishing to engage in one of these activities are
required to sign a form consenting to the testing and must also obtain
written consent from a parent or guardian.[2] Students participating in co-
curricular activities who choose not to participate in the testing program
are given an opportunity to prepare alternative assignments, for academic
credit, in lieu of participating in public performances.

A computer-based system, designed specifically for the purpose of
randomly selecting individuals for drug testing, is used to pick the
students. Midwest Testing, a testing firm that notifies the school
principals who will be tested, currently handles this process. Students
are not given advance warning of the testing.

Upon selection, a student is escorted to a trailer that is driven to
the school by Midwest Testing. Only one student is taken to the trailer
at a time. The student is given a specimen bottle and is allowed to enter
the restroom facility in the trailer unattended. The facility has a
commode containing blue dye and all water faucets are turned off so that
water cannot be used to dilute a specimen. Once inside the restroom
facility, the student is separated from the monitor by a closed door.
After producing a specimen, the student leaves the restroom, hands the
specimen to the Midwest Testing employee to be sealed, initials the sealed
bag, and returns to class.

The specimens are sent to Witham Laboratories, an independent
laboratory, where they are tested only for the substances banned by the
Policy.[3] The testing laboratory does not know the identity of the
students tested and NSC follows strict procedures regarding the chain of
custody and access to test results. Negative test results are mailed to
the designated authority. Positive specimens, on the other hand, are
retested. If the re-test is positive, Witham communicates the specimen
number of the positive result to a building administrator who alerts the
student’s school principal. The principal is then able to determine the
identity of the student by reference to the specimen number. In such
instances, the principal holds a conference with the student and his or her
parents and at that time the student is given the opportunity to submit
documentation that would justify a positive result, e.g., prescription
medication. Failure to provide a satisfactory explanation for a positive
test results in further action by the school.

Athletes testing positive are governed by an athletic code of conduct.
Students participating in all other activities are governed by a student
activities code of conduct. Under both codes, a student may be barred from
participating in an activity for up to 365 days. However, the consequences
vary based upon the activity and substance.

A student is entitled to be re-tested, at the school’s expense, when
the drug for which the student tested positive would be expected to have
disappeared from the student’s body. A negative test at this time allows
the student to return to full participation in the activity but a positive
re-test is deemed to constitute reasonable suspicion, such that NSC
reserves the right to re-test the student throughout the remainder of the
school year. A positive re-test also bars the student from returning to
the activity until such time as the student tests negative. Beyond the
first re-test, the Policy does not require the school to pay for additional
tests requested by the student.

Rosa and Reena Linke (“the Linkes”) were both students at
Northwestern High School, a part of NSC, when this lawsuit was filed. At
the time of the suit, Rosa was a junior who participated in track, National
Honor Society, Students Against Drunk Driving, the Prom Committee, and
Academic Competition. She also had a driver’s license and wanted to drive
to school. Reena was a freshman participating in choir, track, Academic
Competition, Sunshine Society, and Fellowship of Christian Athletes. Their
claim was that the Policy violated the Search and Seizure Clause, art. I, §
11, and the Privileges and Immunities Clause, art. I, § 23, of the Indiana
Constitution.

The trial court granted summary judgment in favor of NSC. The Court
of Appeals reversed, holding that, in regard to school children, the Search
and Seizure Clause, art. I, § 11, of the Indiana Constitution implicitly
contains “a general requirement of individualized suspicion,” which was not
met by the Policy. See Linke v. Northwestern School Corp., 734 N.E.2d 252,
259 (Ind. App. 2000). We granted transfer. Linke vs. Northwestern School
Corp., No. 34S05-0103-CV-151, 2001 Ind. LEXIS 229 (Mar. 5, 2001).

Discussion

I

The Search and Seizure Clause, art. I, § 11, of the Indiana
Constitution (“Section 11”) provides, “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
search or seizure, shall not be violated; and no warrant shall issue, but
upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be seized.”
Although Section 11 is almost identical to the Fourth Amendment of the
United States Constitution, this court's analysis of claims arising under
Section 11 is separate and distinct from Fourth Amendment analysis. See
Moran v. State, 644 N.E.2d 536, 538 (Ind. 1994). However, in this regard
federal law and the law of sister states may have persuasive force. Id.

A

The Linkes correctly contend that urinalysis drug testing constitutes
a search under Section 11. “In the law of searches and seizures, the term
‘search’ implies prying into hidden places for that which is concealed.”
Moran, 644 N.E.2d at 540 (citing Lindsey v. State, 246 Ind. 431, 439, 204
N.E.2d 357, 362 (1965)). In finding that urinalysis testing constitutes a
search under the Fourth Amendment, the United States Supreme Court has
noted, “chemical analysis of urine … can reveal a host of private medical
facts.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989);
see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).
Similarly, Judge Friedlander has written that “the taking of bodily samples
[for evaluation] constitutes a search.” Cutter v. State, 646 N.E.2d 704,
711 (Ind. Ct. App. 1995), transfer denied; cf. DeVaney v. State, 259 Ind.
483, 487, 288 N.E.2d 732, 735 (1972) (holding that the taking of a blood
sample constituted a Section 11 search).

Given that NSC is a public school corporation and that its drug
testing policy is a Section 11 search, it is necessary to determine whether
the search violates Section 11.

B

In Moran and Brown v. State, 653 N.E.2d 77 (Ind. 1995), we held that
the measure of whether a government search violated Section 11 is whether
the process is "reasonable." Id. at 80. Here, the Linkes and NSC advance
differing views as to the appropriate measure of reasonableness. The
Linkes argue that in order to be reasonable under Section 11, a school drug
testing policy must be based on the element of individualized suspicion.
Under this conception, random drug testing of students would violate
Section 11 since, by definition, a random program is not based on
individualized suspicion. On the other hand, NSC argues that the
appropriate measure of reasonableness under Section 11 is substantially
similar to the one expounded in Vernonia School District 47J v. Acton, 515
U.S. 646 (1995), where the Supreme Court balanced the intrusion of the
search on the individual’s Fourth Amendment interests with its promotion of
legitimate governmental interests. Id. at 653-654 (quoting Skinner, 489
U.S. at 619, and Delaware v. Prouse, 440 U.S. 648, 654 (1979)). Under this
approach, NSC maintains, the Policy meets the reasonableness requirement of
Section 11.

The Linkes point out that we have held “that a police officer may not
stop a motorist in Indiana for a possible seat belt violation unless that
officer reasonably suspects that the driver or a passenger in the vehicle
is not wearing a seat belt as required by law.” Baldwin v. Reagan, 715
N.E.2d 332, 337 (Ind. 1999). From this proposition, they argue, and the
Court of Appeals held, that for any search to meet Section 11 muster, it
must be based on “individualized suspicion.” Linke, 734 N.E.2d at 259.

We do not think the individualized suspicion requirement of Baldwin v.
Reagan is so readily transferable to this case. Baldwin v. Reagan – and
Moran and Brown before it – focused on the role of Section 11 in protecting
those areas of life that Hoosiers regard as private “from unreasonable
police activity.” See Moran, 644 N.E.2d at 540 (emphasis added); Brown,
653 N.E.2d at 79 (noting that protection from unreasonable searches and
seizures plays a uniquely important role in the context of criminal
procedure). Preventing unreasonable law enforcement activity was a key
factor motivating our holding in Baldwin v. Reagan that individualized
suspicion of a seatbelt violation is required in order to stop a motorist
for that purpose. 715 N.E.2d at 337.

A search conducted by a school corporation is substantively different
than a search conducted to enforce the law. This is in no small part due
to the different role played by law enforcers and teachers.

Law enforcement officers function as adversaries of criminal suspects.
These officers have the responsibility to investigate criminal
activity, to locate and arrest those who violate our laws, and to
facilitate the charging and bringing of such persons to trial. Rarely
does this type of adversarial relationship exist between school
authorities and pupils. Instead, there is a commonality of interests
between teachers and their pupils.

New Jersey v. T.L.O., 469 U.S. 325, 349-350 (1985).

Under the Policy, test results are not volunteered to law enforcement,
nor are they used for any internal disciplinary function. Absent such
consequences, we do not believe the rationale for individualized suspicion
is as strong here as in the seat belt enforcement context. Cf. Oman v.
State, 737 N.E.2d 1131, 1146-47 (Ind. 2000) (holding that under the Fourth
Amendment the results of an employee's administrative drug test can be used
in a criminal prosecution, but only if obtained by valid legal process
externally initiated from the employment setting), cert. denied, 122 S.Ct.
38 (2001).

While Brown emphasized that reasonableness was the touchstone of
Section 11 analysis, it framed the question as “whether, in the totality of
these circumstances,” the police conduct at issue was reasonable. 653
N.E.2d at 79-80. We believe that balancing the students’ interests against
the school corporation’s better comports with this totality of the
circumstances framework than a per se requirement of individualized
suspicion.

There is precedent for this approach. In determining that the
totality of the circumstances allows consideration of police officer
safety, we stated that “[i]n construing and applying ‘unreasonable’ under
Section 11, we recognize that Indiana citizens have been concerned not only
with personal privacy but also with safety, security, and protection from
crime.” Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001); see also
Carter v. State, 692 N.E.2d 464, 466 (Ind. App. 1997) (“[A]n individual's
rights protected under Article I, § 11 are not absolute. We must balance
competing rights and ‘look to the reasonableness of the intrusion and
permit brief investigatory stops based upon reasonable suspicion of
criminal activity.’” (citations omitted)).

We adopt the analytical approach of Vernonia School District 47J v.
Acton in these circumstances. Broadly stated, we will weigh the nature of
the privacy interest upon which the search intrudes, the character of the
intrusion that is complained of, and the nature and immediacy of the
governmental concern to determine whether the Policy is reasonable under
the totality of these circumstances. 515 U.S. at 658-660.

C

C-1

In weighing the nature of the privacy interest upon which a search
under the Policy intrudes, the first – and chief – consideration
influencing our analysis is the Linkes’ status as middle and high school
students.

Our law does not accord students the same privacy interests as
adults. “Traditionally at common law, and still today, unemancipated
minors lack some of the most fundamental rights of self-determination.”
Acton, 515 U.S. at 654. The United States Supreme Court has taken the view
that while public schools are state actors subject to constitutional
oversight, the nature of a school’s role “is custodial and tutelary,
permitting a degree of supervision and control that could not be exercised
over free adults.” Id. at 655; T.L.O., 469 U.S. at 333. Indiana law
codifies this view. For example, in passing compulsory education laws that
mandate the availability of public elementary education for its citizenry,
the State “has recognized that public schools stand ‘in the relation of
parents and guardians to the students’ … regarding [all] matters of
discipline and conduct of students.” Higginbottom v. Keithley, 103 F.
Supp. 2d 1075, 1080 (S.D. Ind. 1999), quoting Ind. Code § 20-8.1-5.1-3(b)
(1988).

The Linkes concede that the privacy interest of juveniles is not the
same as adults’ but argue that minors are actually accorded greater
protection. However, the authority relied upon by the Linkes does not
stand for the notion that a student’s privacy interest should be granted
greater weight. To the contrary, it stands for the proposition that, under
certain circumstances, the State plays an active role in dictating the
course of children’s lives. See Manners v. State, 210 Ind. 648, 5 N.E.2d
300 (1936) (upholding statute making it a felony for a father to fail to
provide for a child on the reasoning that “[m]inor children are the subject
of the solicitude of the law because it is assumed that until maturity they
are not capable of protecting themselves.”); see also Adams v. State, 244
Ind. 460, 465, 193 N.E.2d 362, 364 (1963) (stating that juvenile courts
exercise parental supervision and may properly restrain a minor’s liberty
in the exercise of discipline, rehabilitation, and training). Rather than
bolster their argument, the Linkes’ cited authority reinforces the
principle that a minor’s liberty interest is sometimes less than that of an
adult.

In light of the fact that minors in school are subject to supervision
and control that could not be exercised over free adults and in view of the
legislature’s codification of the custodial and protective role of Indiana
public schools, we find that students are entitled to less privacy at
school than adults would enjoy in comparable situations. Cf. T.L.O., 469
U.S. at 348 (“In any realistic sense, students within the school
environment have a lesser expectation of privacy than members of the
population generally.”).

A second factor influencing a student’s privacy interest is consent.
A voluntary decision to submit to random drug testing further decreases the
student’s legitimate expectation of privacy, increasing the likelihood of a
testing policy’s Section 11 reasonableness. Of course, a coerced decision
is not consensual. For this reason “[t]he consent, and the circumstances
in which it was given, bear upon the reasonableness” of the Policy. See
Ferguson v. City of Charleston, 532 U.S. 67, 91 (2001) (Kennedy, J.,
concurring).

NSC maintains that the Policy’s requirement that student participants
submit to random drug testing does not compel consent because it only
applies to privileged activities. The Linkes take issue with this
characterization. Citing the Supreme Court of Colorado in Trinidad School
District No. 1 v. Lopez, the Linkes argue that it is necessary to
participate in extracurricular activities to be successful in today’s
world. (Br. of Appellants at 26, quoting Lopez, 963 P.2d 1095, 1109 (Colo.
1998) (“[T]he reality for many students who wish to pursue post-secondary
educational training and/or professional vocations requiring experience
garnered only by participating in the extracurricular activities is that
they must engage in such activities. … [I]involvement in a school’s
extracurricular offerings is a vital adjunct to the educational
experience.”)).

The Policy is different from that at issue in Lopez. The Lopez court
noted, “two for-credit classes that are part of the regular curriculum of
course offerings are inextricably linked to the ‘extracurricular’ activity
of marching band. … The record reflects that the consequence of enrolling
in a class and failing to participate in the marching band is severe: the
student will receive a failing grade.” 963 P.2d at 1105. Thus, the policy
under review in Lopez effectively gave failing grades to students who
refused to submit to a drug test. The Supreme Court of Colorado found this
to be unreasonable, in part because it applied to students taking the
normal curriculum.

We are sensitive to the issue raised by the Supreme Court of Colorado.
Students do not forfeit their privacy interest simply by virtue of
attendance at school. “Today’s public school officials … act in
furtherance of publicly mandated educational and disciplinary policies,”
T.L.O., 469 U.S. at 336, and statutes on the books compel school
attendance. See Ind. Code § 20-8.1-3-17 (1998). However, the Policy does
not require drug testing for students enrolled in compulsory regular
classes. Rather, students in voluntary activities for which they receive
academic credit (co-curricular activities) are given the option of
providing alternative for-credit assignments. The Policy is different from
the one reviewed by the Supreme Court of Colorado in that NSC students are
not deprived of the opportunity to receive academic credit from co-
curricular activities if they choose not to submit to drug testing. They
are only deprived from participating in the extra-curricular portion of the
activities.

We acknowledge that this does alter the usual voluntariness calculus
because, in all likelihood, at least some adverse consequences may attach
to the inability to so participate. We further acknowledge that, while
schools are not the only outlet for extracurricular activities,
participation in school sponsored extracurricular activities may benefit
some students who wish to pursue post-secondary educational or professional
training. However, in order for consent to be voluntary in this context,
it does not follow that there be absolutely no disadvantage to a refusal to
give consent. See Ferguson, 532 U.S. at 91 (“[t]he person searched has
given consent, as defined to take into account that the consent was not
voluntary in the full sense of the word.”) (Kennedy, J., concurring);
Acton, 515 U.S. at 650 (1995) (“[s]tudents wishing to play sports must sign
a form consenting to the testing and must obtain the written consent of
their parents.”). The fact that refusal to agree to drug testing results
in forfeiture of the opportunity to obtain certain benefits is not so
weighty as to constitute forced consent. See Todd v. Rush County Schools,
133 F.3d 984, 986 (7th Cir.), cert. denied 525 U.S. 824 (1998).

A third factor influencing the privacy interests of students is
whether they have volunteered for an already regulated activity. See
Acton, 515 U.S. at 657 (“[b]y choosing to ‘go out for the team,’ [student
athletes] voluntarily subject themselves to a degree of regulation even
higher than imposed on students generally.”). There can be little doubt
that student athletics are highly regulated. See Schaill v. Tippecanoe
County Sch. Corp., 864 F.2d 1309, 1318 (7th Cir. 1988) (“the Indiana High
School Athletic Association has extensive requirements which it imposes
upon schools and individuals participating in interscholastic athletics.”).
To a lesser extent, non-athletic extracurricular activities are also
regulated in that various activities or clubs impose rules and requirements
to which participants must comply. See Earls v. Tecumseh Pub. Sch. Dist.
No. 92, 242 F.3d 1264, 1276 (10th Cir.) (“students participating in non-
athletic extracurricular activities … agree to follow the directives and
adhere to the rules set out by the … director of the activity.”), cert.
granted, 122 S. Ct. 509 (2001).[4] The extent to which a voluntary
activity is already regulated can further influence a student’s Section 11
privacy interest.

C-2

The character of the intrusion that is complained of provides another
element contributing to reasonableness in the school context. The Linkes
view urinalysis testing “as extremely intrusive, demeaning, and
embarrassing.” Urinalysis implicates an “excretory function traditionally
shielded by great privacy.” See Skinner v. Ry. Labor Executives’ Ass’n,
489 U.S. 602, 626 (1989); Acton, 515 U.S. at 658. However, the manner in
which the sample is acquired influences the ultimate weight given to the
Linkes’ embarrassment. See Acton, 515 U.S. at 658; Schail, 864 F.2d at
1318.

In Acton, the Supreme Court found urinalysis testing reasonable when
students urinated in plain view of attendants, in part because it was no
more intrusive than a visit to a standard public restroom. See 515 U.S. at
577. In contrast, NSC students are escorted to a testing facility in a
manner such that only one student is present at a time. The student then
enters a private room and is allowed to close the door. Attendants do not
watch the student. In this case, the Policy is much less intrusive than
the one examined by the Supreme Court in Acton.

Other important factors to consider in evaluating the character of
the intrusion are what the test searches for, the amount of discretion
given to the testers, and to whom results are disclosed. The Policy
restricts the test to a pre-set list of banned substances. No student is
compelled to provide additional private information (such as medications
used). Even after a positive test, the choice of whether to disseminate
additional explanatory information is left to the student. At no point in
the process do school officials have discretion to choose whom to test or
for what to test. Various measures are taken throughout the process to
insure both the integrity of the tests and the privacy of the students,
including limiting the persons privy to test results to the greatest
possible extent.

A final factor to consider in evaluating the character of the
intrusion is whether the test is punitive or preventative and
rehabilitative. A punitive testing regime by a school corporation is a
more severe intrusion upon a student’s Section 11 privacy interest than a
non-punitive search conducted in furtherance of a school’s custodial and
protective role. See Acton, 515 U.S. at 658 n. 2; Lopez, 963 P.2d at 1116
(Scott, J., dissenting).

Section 11 protects those areas of life that Hoosiers regard as
private “from unreasonable police activity.” See Moran, 644 N.E.2d at 540
(emphasis added). We have also noted that protection from unreasonable
searches and seizures plays a uniquely important role in the context of
criminal procedure. See Brown, 653 N.E.2d at 79. The emphasis on
preventing unreasonable law enforcement activity was a factor motivating
our holding in Baldwin v. Reagan that reasonable suspicion of a seatbelt
violation is required in order to stop a motorist for that purpose. 715
N.E.2d 332, 337 (Ind. 1999).

However, a preventative or rehabilitative search conducted by a school
corporation is substantively different than a search conducted to enforce
the law. A preventative or rehabilitative search is inherent to a school
corporation’s function. Students generally understand that the
“preservation of … a proper educational environment requires close
supervision” and thus the intrusion on privacy is less severe. See T.L.O.,
469 U.S. at 339.

In the present matter, the record shows that test results are not
volunteered to law enforcement, nor are they used for any internal
disciplinary function. Students are merely barred, for varying periods of
time, from participating in privileged activities. As a result, the Policy
must be viewed as preventative or rehabilitative. A policy involving a
disciplinary function, such as suspension or expulsion from school, could
be punitive and is not implicated here. The care exhibited by NSC to
protect student privacy and to create a non-punitive test mitigates against
the Linkes’ privacy concern. A drug testing policy not so carefully
crafted might not. Cf. Ferguson, 532 U.S. at 68 (noting the “critical
difference” between drug tests conducted without a warrant or
individualized suspicion when law enforcement provides a central and
indispensable feature of the policy and when drug testing is conducted for
a purpose distinct from the State’s general interest in law enforcement).

C-3

We last evaluate NSC’s interest in drug testing certain students.
NSC proffers the need to fight and deter drug abuse among its students in
general and its students who act as role models and representatives of the
school in particular. It also asserts a related interest in insuring the
health and safety of its students. The Linkes counter that NSC’s only
legitimate interest is in stopping abuses that may occur on campus,
something they argue that the Policy does not properly achieve.

That NSC has the responsibility of supervising its students and
enforcing desirable behavior in carrying out school purposes is not
questioned. Ind. Code § 20-8.1-5.1-3;[5] see also Ind. Const. art. VIII, §
1.[6] In the mid-1990s, drug usage in NSC’s middle and high schools caused
administrators to worry that they were not properly fulfilling this
function. Most notably, a 1995 study of drug usage in NSC schools showed
higher than average use of gateway drugs in the middle and high schools. A
year later, an NSC student acquired morphine pills from a fellow student at
school and subsequently died from an overdose. In response, NSC
commissioned the task force of school officials and parents that created
the Policy.

Deterring drug abuse by children in school is an important and
legitimate concern for our schools. Drug abuse severely harms youths and
impacts on a school’s educational mission. “‘Maturing nervous systems are
more critically impaired by intoxicants than mature ones are; childhood
losses in learning are lifelong and profound’; ‘children grow chemically
dependent more quickly than adults and their record of recovery is
depressingly poor.’” Acton, 515 U.S. at 661. What is more, “the effects
of a drug-infested school are visited not just upon the users, but upon the
entire student body and faculty.” Id. at 662. NSC’s interest in deterring
drug use is further enhanced by the fact that three of its students have
died of drug related causes since 1987, that it had scientific data
illustrating a burgeoning drug problem on its middle and high school
campuses, and that drug use continues to be an identifiable problem at the
middle and high schools. See Skinner, 489 U.S. at 607 (upholding a
Government drug-testing program based on findings of drug use by railroad
employees nationwide without proof that a problem existed on the particular
railroads whose employees were subject to the test).

NSC’s interest in testing the included students is further heightened
by the fact that the relevant extracurricular activities all have off
campus components. NSC needs a broader range of tools to insure compliance
with its rules when activities occur off campus. This is due, in large
part, to the fact that greater ranges of activities occur during
extracurricular activities than during normal school hours. See Webb v.
McCullough, 828 F.2d 1151, 1157 (6th Cir. 1987) (affirming grant of summary
judgment upholding a public school principal’s search of the private hotel
room of a high school student during a voluntary, off campus, school
sponsored field trip). There are many more ways for a student to be
injured, to endanger fellow students, to transgress school rules, or to
violate the law while participating in an extracurricular off campus event
(such as a band competition in another city or a non-curricular field trip)
than during the relative order of school hours. See Id. Indeed, parents
may be reluctant to allow their children to participate in voluntary school
activities if schools are not permitted to take the reasonable steps taken
here by NSC to prevent drug use. See Id.

If drug abuse increases the physical danger of participation in a
school-sponsored activity, a school corporation’s interest in deterring
drug abuse becomes stronger. This is undoubtedly the case with school
athletics. See Acton, 515 U.S. at 662 (“[a]part from psychological effects
… the particular drugs screened by the District’s Policy have been
demonstrated to pose substantial physical risks to athletes.”). Likewise,
we note that driving while intoxicated presents significant physical risks
to drivers, their passengers, and pedestrians. See Todd v. Rush County
Schools, 983 F. Supp. 799, 806 (S.D. Ind.), aff’d 133 F.3d 984 (7th Cir.
1997), cert. denied, 525 U.S. 824 (1998).

While the risk of physical injury seems remote in the other
activities covered by the Policy, NSC argues that its interest in promoting
the health and safety of these students is equivalent to that of student
athletes and student drivers. It is true that “successful extracurricular
activities require healthy students,” see Todd v. Rush County Schools, 133
F.3d 984, 986 (7th Cir. 1997), but the absence of increased physical danger
means that NSC’s general interest in health and safety is not increased in
these situations. After all, healthy students are important to most of
what a school does and the need does not grow simply because a student
chooses to participate in an activity. NSC further maintains, however,
that its interest in deterring student drug abuse is increased by the facts
that student athletes and student participants in extracurricular
activities are role models for other students and are representatives of
their schools in the community. The Linkes respond that there is “nothing
in the record to demonstrate that band members are viewed as role models or
student leaders.”

The record does not address whether their peers view students
participating in the tested activities as role models. NSC’s interest in
testing may well be heightened were such a fact shown. See Acton, 515 U.S.
at 662-663. Nonetheless, it is evident that NSC holds the participants out
as role models by submitting the participants to additional rules above and
beyond “normal,” and by sending participants to community functions as
school representatives. The fact that NSC has identified a drug problem at
its middle and high schools gives it an interest in experimenting with
methods to deter drug use. This aspect of the Policy supports NSC’s
interdiction efforts by giving students who represent the school in an
organized activity a valid response to peers who may pressure them into
using drugs.

Chandler v. Miller, 520 U.S. 305 (1995), in which the Supreme Court
invalidated a program of suspicionless drug testing of Georgia political
candidates, does not suggest a different conclusion. In Chandler, the
Supreme Court determined that suspicionless drug testing of candidates was
solely symbolic because (1) the tests were not based on evidence of a drug
problem among the State’s elected officials, (2) those officials typically
do not perform high risk, safety sensitive tasks, and (3) the tests
immediately aided no interdiction effort. Id. at 321-322. The
circumstances creating context for the Policy under our review are
different. In addition to the fact that it is public school students who
are tested here, the Policy has been prompted by concrete evidence of drug
abuse by NSC junior and high school students (some of whom engage in safety
sensitive tasks) and all testing is merely a component of a broader
interdiction effort created by local officials in conjunction with
interested parents. Chandler acknowledged the “critical” importance of
context, stating that school drug tests are different because “a local
government bears large ‘responsibilities, under a public school system, as
guardian and tutor of children entrusted to its care.’” Id. at 316. It
also emphasized that “[a] demonstrated problem of drug abuse, while not in
all cases necessary to the validity of a testing regime, would shore up an
assertion of special need for a suspicionless general search program.” Id.
at 319 (citation omitted).

D

In light of the totality of the circumstances, the Policy does not
violate Section 11. Our constitution does not forbid schools from taking
reasonable measures to deter drug abuse on their campuses but they must do
so with due regard for the rights of students.

We reiterate that our evaluation of this matter is particularly
influenced by the facts that students’ privacy interests are less than
those of adults and that both students and their parents or guardians must
give consent. We have also been influenced in general by schools’
custodial and protective interest in their students and in particular by
the fact that the Policy was created with parent involvement as an element
of a comprehensive interdiction program. Furthermore, the higher than
average rate of drug use at NSC middle and high schools, the recent drug
related deaths, and the continued presence of illegal drugs on campus
strengthens NSC’s legitimate interest in this matter. We do note that the
strength of NSC’s interest in deterring drug abuse is not uniform for all
students. In this regard, the Policy is most defensible in regard to
athletes and student drivers. The school’s interest in protecting these
students is increased by the risk of physical danger and, in the case of
student athletes, by the fact that they represent the school as role
models. While the rationale for testing students involved in co-curricular
activities is not so strong, for the reasons already stated, it does not
violate Section 11 in this case.

II

The Linkes also argue that the Policy violates the Privileges and
Immunities Clause, art. I, § 23, of the Indiana Constitution (“Section
23”). Section 23 provides:

The General Assembly shall not grant to any citizen, or class of
citizens, privileges or immunities, which, upon the same terms, cannot
equally belong to all citizens.

In the watershed case of Collins v. Day, 644 N.E.2d 72 (Ind.1994), we
held that the analytical framework required to resolve Section 23 claims
examines whether "the disparate treatment ... [is] reasonably related to
inherent characteristics which distinguish the unequally treated classes."
Id. at 80. Collins requires that the challenger bear the burden "to
negative every reasonable basis for the classification." Id. at 81. This
is because of the substantial deference due the enactment. Id. at 80. In
addition, "the preferential treatment must be uniformly applicable and
equally available to all persons similarly situated." Id.

The Linkes’ contend that Section 23 is violated because a class of
students who participate in certain extracurricular activities[7] are
subjected to random drug testing while students who participate in other
extracurricular activities[8] are not.

We find that the Linkes have not carried their burden to "negative
every reasonable basis" for random drug testing imposed upon the class of
which they are a member. Under Collins, we determine whether there are
inherent distinctions between the activities subject to the Policy and
those not. Largely for the reasons set forth in Part I-C-3 supra, we find
the "reasonable relationship" test met.

The Policy focuses on those activities in which the participating
students represent the school outside of the normal school day hours,
receive special privileges as a result of their participation, or place the
participating student in a leadership or role model position. The school
activities not covered are strictly in-school activities that take place
during school hours. Consequently, the students who engage in the school
activities not covered by the Policy do not represent the school by
publicly performing or working within the community. While the Linkes
argue that the newspaper and yearbook are extracurricular activities
requiring students to "engage in activities outside of the school day,"
Brief of Appellant 30, these activities are purely curricular. (R. at 76.)
These classes are taken for a grade and do not require any activity
outside the normal school day. (Id.)

We agree with NSC that testing those students who are at an increased
risk of physical harm or are role models and leaders by virtue of their
participation in certain extracurricular activities is "reasonably related
to achieving the school's purpose in providing for the health and safety of
students, and undermining the effects of peer pressure by providing a
legitimate reason for students to refuse to use illegal drugs and by
encouraging students who use drugs to participate in drug treatment
programs." (Trial Court's Conclusions of Law, R. at 509). We find no
violation of Section 23.

Conclusion

Having previously granted transfer, we now affirm the judgment of the
trial court.

SHEPARD, C.J., and DICKSON, J., concur.
BOEHM, J., dissents with separate opinion in which RUCKER, J., concurs.
ATTORNEY FOR APPELLANTS

Kenneth J. Falk
Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE

Anthony S. Benton
Laura L. Bowker
Lafayette, Indiana

David R. Day
Indianapolis, Indiana

David J. Emmert
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE

Julia Blackwell Gelinas
John H. Daerr
Thomas E. Wheeler, II
Indianapolis, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

ROSA J. LINKE, REENA M. LINKE, )
(By their next friends and parents), )
SCOTT L. LINKE and NOREEN )
L. LINKE, )
)
Appellants (Plaintiffs Below), ) Indiana Supreme Court
) Cause No. 34S05-0103-CV-151
v. )
) Indiana Court of Appeals
NORTHWESTERN SCHOOL CORP., ) Cause No. 34A05-9910-CV-467
)
Appellee (Defendant Below). )
__________________________________________________________________

APPEAL FROM THE HOWARD CIRCUIT COURT
The Honorable Lynn Murray, Judge
Cause No. 34C01-9902-CP-131

__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________

March 5, 2002

BOEHM, Justice, dissenting.
I respectfully dissent. The majority adopts the methodology of
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995), and concludes that
NSC’s drug testing fits within a very narrow exception to the general
probable cause requirement, the so-called “special needs” exception.
However, assuming it is proper to analyze Indiana constitutional claims in
the Vernonia framework, I do not agree that NSC has carried its burden of
proving that its program meets the standard of reasonableness the “special
needs” doctrine requires. Rather, this program amounts to imposition of a
general random testing program with no sound footing in concern for the
educational mission of the school corporation, as opposed to general law
enforcement. Nor is there a justification for selecting these students
from the general school population.
For many of the same reasons, I conclude that NSC’s program violates
the requirement of Article I, Section 23 of the Indiana Constitution that a
classification must be reasonably related to the characteristics—in this
case, participation in certain school activities—that define the class.

I. What it Means to Have “Special Needs”

Three cases, in particular, are important to understanding why NSC’s
random drug testing program violates Article I, Section 11 of the Indiana
Constitution.
A. New Jersey v. T.L.O.
The “special needs” doctrine, in the context of searches by school
officials, has its roots in New Jersey v. T.L.O., 469 U.S. 325 (1985),
where the United States Supreme Court held that the Fourth Amendment’s
usual probable cause standard should not apply in a school setting. In
T.L.O., a teacher discovered two students smoking in a school lavatory in
violation of school rules. The teacher took the pair to the assistant
principal’s office, where T.L.O., in response to the assistant principal’s
questioning, denied having ever smoked. Searching T.L.O.’s purse, the
assistant principal found a pack of cigarettes along with various drug
paraphernalia. T.L.O. was later adjudged a delinquent.
T.L.O. claimed that the search violated the Fourth Amendment. The
Court agreed that the Fourth Amendment applied to searches conducted by
school officials, but nevertheless concluded that school officials may
conduct searches in the absence of the requirements imposed by the Fourth
Amendment on other governmental searches. Id. at 340. The Court offered
this explanation why a level of suspicion lower than that of probable cause
is required for searches conducted by school officials, at least in the
context of searches for evidence of school rule violations:
[T]he legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search.
Determining the reasonableness of any search involves a twofold
inquiry: first, one must consider “whether the . . . action was
justified at its inception,” Terry v. Ohio, 392 U.S., at 20; second,
one must determine whether the search as actually conducted “was
reasonably related in scope to the circumstances which justified the
interference in the first place,” ibid. Under ordinary circumstances,
a search of a student by a teacher or other school official will be
“justified at its inception” when there are reasonable grounds for
suspecting that the search will turn up evidence that the student has
violated or is violating either the law or the rules of the school.
Such a search will be permissible in its scope when the measures
adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of the age and sex of the student and
the nature of the infraction.

Id. at 341-42. However, the Court also emphasized that there were limits
to the authority of school officials to conduct a search under this lowered
constitutional bar. Specifically, “the reasonableness standard should
ensure that the interests of students will be invaded no more than is
necessary to achieve the legitimate end of preserving order in the
schools.” Id. at 343.
Justice Blackmun’s concurring opinion introduced the phrase “special
needs” into the public discourse on school searches. He expressed concern
that a balancing test might become the rule rather than the exception. To
curb this potential, he wrote, “Only in those exceptional circumstances in
which special needs, beyond the normal need for law enforcement, make the
warrant and probable-cause requirement impracticable, is a court entitled
to substitute its balancing of interests for that of the Framers.” Id. at
351 (Blackmun, J., concurring). Searches in a school setting based on a
lower standard are appropriate, he concluded, because of the need for
immediate action on the part of teachers attempting to maintain order in
the classroom.
B. Vernonia School District 47J v. Acton
The next principal case is Vernonia Sch. Dist. 47J v. Acton, 515 U.S.
646 (1995), on which the majority relies to justify its conclusion that
NSC’s drug testing program is reasonable. In Vernonia, the United States
Supreme Court upheld a random drug testing program instituted by an Oregon
school district. The plan called for testing of athletes only. In
upholding this plan, the Court specifically endorsed Justice Blackmun’s
concurrence in T.L.O. and found that, on the facts presented, the Vernonia
school district established a “special need” justifying the imposition of
drug testing on a specific group of students. The Court relied heavily on
the facts found by the district court that the Vernonia school district was
faced with an “immediate crisis” and had been able to target the
instigators as coming from the student-athlete population. Id. at 663.[9]
The Court relied on T.L.O. for the proposition that, in the public school
context, a search unsupported by probable cause can be constitutional when
the district demonstrates “special needs,” i.e. where strict adherence to
the probable cause requirement would undercut “‘the substantial need of
teachers and administrators for freedom to maintain order in the schools.’”
Id. at 653 (quoting T.L.O., 469 U.S. at 341). The Court cited three
factors supporting the reasonableness of the Vernonia program—the decreased
expectation of privacy of the student athletes, the relative
unobtrusiveness of the search, and the severity of the need met by the
search.
None of these three is present in force to support NSC’s plan. NSC’s
program applies to athletes, student drivers, and participants in a wide
range of extra-curricular and co-curricular activities from Future Farmers
of America to the school band. NSC’s evidence of substance abuse in its
schools is a survey conducted by the Indiana Prevention Resource Center in
1995 and given to students in grades seven through ten. Notably absent
from the results is any data suggesting that students who claimed to have
used a given substance also participated in one of the activities covered
by NSC’s testing program. The testing intrudes on students who in no way
qualify for the lessened expectation of privacy some cases, like Vernonia,
have attributed to athletes.
C. Chandler v. Miller
In Chandler v. Miller, 520 U.S. 305 (1997), the United States Supreme
Court explained in further detail when it is appropriate to apply the
“special needs” doctrine. The Court in Chandler found unconstitutional
Georgia’s policy of requiring certain candidates for public office to
submit to drug testing. Justice Ginsburg, writing for an eight-member
majority, explained that to successfully make the case that a “special
need” exists, a government actor must demonstrate a “concrete danger
demanding departure from the Fourth Amendment’s main rule.” Id. at 319.
Georgia argued that its testing policy passed constitutional muster
based on the Court’s earlier decisions upholding suspicionless testing of
student athletes, Vernonia, 515 U.S. 646, certain United States Treasury
employees, Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989),
and certain railroad employees, Skinner v. Ry. Labor Executives’ Ass’n, 489
U.S. 602 (1989). The Court explained that the employees subject to testing
in Von Raab were “directly involved [in] drug interdiction,”[10] Skinner
offered “evidence of drug and alcohol abuse by railway employees engaged in
safety-sensitive tasks,” and Vernonia responded to an “immediate crisis
prompted by a sharp rise in students’ use of unlawful drugs.” Georgia’s
plan to screen candidates for public office failed to address a “concrete
danger,” the Court explained, because: (1) the record did not suggest that
the hazards argued by the state were “real and not simply hypothetical for
Georgia’s polity”; (2) the requirement was not well designed to identify
drug users; (3) it was feasible, within the environment of public office,
to note erratic conduct that would lead to a suspicion of drug use; and (4)
the risk to public safety was neither substantial nor real. 520 U.S. at
319-23.
Although this case and Vernonia both address school programs, for
several reasons NSC’s plan is closer to Georgia’s plan for wanna-be
officeholders than the Vernonia plan for its students. First, the survey
and other evidence relied upon by NSC may establish a drug problem, but not
among the categories of students tested. Second, the testing, though
intended to prevent school-wide drug use, identifies only drug users among
the population of students who submit to the program. Third, it is
feasible, as NSC’s own policy makes clear, for NSC officials to determine
when a reasonable suspicion of drug use exists. Fourth, NSC has not shown
any evidence, of the type presented in Vernonia, of drug use as a source of
significant problems in conducting the school’s educational program.

II. Applying the “Special Needs” Analysis to NSC’s Program

I agree with the majority that the relevant inquiry under Article I,
Section 11 of the Indiana Constitution is whether, given the totality of
the circumstances, the searches conducted by NSC are reasonable. Brown v.
State, 653 N.E.2d 77, 79-80 (Ind. 1995). In this respect, the Indiana
Constitution is very similar, if not identical, to the formulation adopted
for the Fourth Amendment in Vernonia: reasonableness under all the
circumstances. 515 U.S. at 652 (“[T]he ultimate measure of the
constitutionality of a governmental search is ‘reasonableness.’”). The
majority concludes that the appropriate “circumstances” to examine are the
same as those balanced by the Court in Vernonia: the nature of the privacy
interest; the character of the intrusion; and the nature and immediacy of
the governmental concern. So far, so good. But, in applying the reasoning
of Vernonia in light of Chandler, I arrive at a different conclusion from
the majority’s.
A. Overcoming the Linkes’ Privacy Interests
The majority finds the Linkes’ privacy interests of minimal weight
based on three propositions: (1) students’ privacy interests are less than
those of adults; (2) students “consent” to the searches; and (3) the tested
students are held out by NSC as “role models.” I think the first is true
only to a limited extent, and the other two are not true at all.
1. Extent of Control Over Students
The majority contends that the Linkes’ privacy interests deserve
lesser protection than Article I, Section 11 would normally demand because
schools are allowed a degree of “supervision and control that could not be
exercised over free adults.” I agree that Indiana law generally supports
that view. However, a school’s “degree of supervision” is not without its
limits. The majority relies on the notion that schools stand in the
relation of parents and guardians to its students in matters of conduct and
discipline. This may justify the imposition of drug testing when matters
of conduct and discipline are at issue. But it does not carry equal weight
when suspicionless searches are conducted as a matter of routine. Indeed,
in T.L.O., the United States Supreme Court cautioned against such a laissez-
faire view of the role of school officials who conduct searches:
If school authorities are state actors for purposes of the
constitutional guarantees of freedom of expression and due process, it
is difficult to understand why they should be deemed to be exercising
parental rather than public authority when conducting searches of
their students. More generally, the Court has recognized that “the
concept of parental delegation” as a source of school authority is not
entirely “consonant with compulsory education laws.” Ingraham v.
Wright, 430 U.S. 651, 662 (1977). Today’s public school officials do
not merely exercise authority voluntarily conferred on them by
individual parents; rather, they act in furtherance of publicly
mandated educational and disciplinary policies. . . . In carrying out
searches and other disciplinary functions pursuant to such policies,
school officials act as representatives of the State, not merely as
surrogates for the parents . . . .

469 U.S. at 336. It is also noteworthy that, although the education of
Indiana’s students is one of the most highly regulated enterprises of our
state government, nowhere in the specifically enumerated powers and duties
of this state’s school corporations has the legislature given explicit
authority for random drug testing of students.[11]
2. “Consent” to Searches and “Already Regulated Activities”
Among the categories of students affected by the NSC program are those
enrolled in some for-credit courses whose activities take place off school
premises. The majority concludes that, because alternative for-credit
assignments are available to take the place of the portion of the course
that triggers the testing requirement, the decision whether to submit to
testing is “voluntary.” But the effects of refusing to submit to drug
testing in those courses may be quite harsh. Consider, for example, a
member of the choir who hopes to enter a performing arts program in
college. He or she is permitted, as the majority points out, to
participate in “alternative for-credit assignments,” but is denied the
opportunity to perform in public with the rest of the chorus. When the
time comes to apply to the performing arts program, if that student refuses
to participate in the “voluntary” program, he or she may be able to
document a high grade in choir, but has a gaping void in performance
experience.
The majority identifies one set of for-credit coursework as
“compulsory regular classes,” and describes participation in everything
else “voluntary.” But the aspiring vocalist’s appearance in public
concerts is no more a “voluntary” activity than the future math major’s
electing calculus, when algebra will satisfy the high school diploma
requirements. Cf. Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1109
(Colo. 1998) (extra-curricular activities are a “vital adjunct to the
educational experience”). That the student receives academic credit from
the alternative program does not change the fact that the student is
essentially given a different course from the one provided his or her
peers, because of a “voluntary” decision not to take a drug test.
I agree that participation in certain extra-curricular activities may
open the door to some fashion of drug testing. Athletics have
traditionally been the primary target of such programs. See, e.g.,
Vernonia (student-athletes subject to testing because they were the
“leaders” of the drug culture and instigators of severe discipline
problems). There may well be some basis for drug testing as a safety
measure in activities accompanied by significant physical stress. I find
far less tenable the notion that participation in non-athletic
extracurriculars also opens the door to such an intrusive practice. There
is nothing peculiar about National Honor Society, for instance, that
suggests that its members must “subject themselves, by virtue of their
participation . . . to regulations that further reduce their expectation of
privacy.” Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1063 (7th
Cir. 2000). As more fully developed in Part II.C, I believe that in order
to be reasonable under all the circumstances, the scope of the testing
program must bear some relation to the identified issue the program is
meant to address. The NSC plan fails that test.
3. The “Role Model” Theory
The majority concedes that the record “does not address whether their
peers view students participating in the tested activities as role models,”
but finds persuasive the fact that NSC holds the affected students out as
such. This writer is further removed from high school than his colleagues.
But even a casual reviewer of pop culture must view with extreme
skepticism the undocumented claim that participants in this broad list of
activities are all, or even predominantly, viewed by their peers as role
models.[12] In any event, whether the affected party is or is not held out
as a “role model” is not adequate to justify NSC’s program on a “special
needs” basis. As the U.S. Supreme Court put it, “[I]f a need of the ‘set a
good example’ genre were sufficient to overwhelm a Fourth Amendment
objection, then the care this Court took to explain why the needs in
Skinner, Von Raab, and Vernonia ranked as ‘special’ wasted many words in
entirely unnecessary, perhaps even misleading, elaborations.” Chandler,
520 U.S. at 322. Rather than supporting the need for testing, the fact that
NSC advances its “role model” theory underscores the paucity of evidence
that testing of the affected students has any relation to NSC’s drug
problem.
B. Character of the Intrusion
1. Article I, Section 11 Applies Equally to All Government Agencies
I disagree with the majority to the extent it suggests that a search
is less intrusive if conducted by school officials, rather than police. I
am aware of no authority suggesting that Article I, Section 11 applies more
stringently to police activity than that of other government agencies. Nor
does the text of Article I, Section 11 support such a result. The majority
emphasizes the words “police” and “law enforcement” in the cited portions
of Baldwin v. Reagan, 715 N.E.2d 332 (Ind. 1999), Brown, 653 N.E.2d 77
(Ind. 1995), and Moran v. State, 644 N.E.2d 536 (Ind. 1994) to suggest that
Article I, Section 11 carries greater weight in those situations than when
school officials’ conduct is at issue. Those cases referred to police
activity because the seizures in those cases were conducted by police
officers. There is nothing in those cases to suggest a different result if
the seizure were conducted by a different arm of government. Indeed, other
cases frequently refer to the constraint on searches by government in
general, not just by the police. See Moran, 644 N.E.2d at 540 (“The
protection afforded [by Article I, Section 11] is against official and not
private acts.”); Hutchinson v. State, 477 N.E.2d 850, 853 (Ind. 1985) (“The
constitutional prohibitions against unreasonable searches and seizures
provide protection from such acts by the government.”); Torres v. State,
442 N.E.2d 1021, 1023 (Ind. 1982) (same); cf. New Jersey v. T.L.O., 469
U.S. at 335 (“[T]his Court has never limited the [Fourth] Amendment’s
prohibition on unreasonable searches and seizures to operations conducted
by the police.”).
I agree with the majority that, in some cases, suspicionless searches
conducted by schools have been upheld under circumstances that would
preclude a search by law enforcement. But it is not the identity of the
searching government agents that makes this so. It is the nature of the
intrusion and the reasons justifying it. That a school, rather than the
police, is charged with the unreasonable conduct is not an automatic
invitation to apply the mandate of Article I, Section 11 with less force.
2. Preventative/Rehabilitative versus Punitive Purposes
I do not place much stock in the fact that the results of NSC’s drug
tests are not routinely volunteered to law enforcement authorities.
Regardless of the stated purpose of the testing, I do not agree with the
majority that “[a] preventative or rehabilitative search is inherent to a
school corporation’s function.” Indeed, I find no support for such a
notion. A school corporation’s inherent function is to educate, not to
monitor an arbitrarily defined category of students for the use of drugs,
alcohol or nicotine, or compliance with other laws. The testing conducted
in Vernonia was necessary to that school’s inherent educational function
because the education of the students was severely affected by the
“immediate crisis prompted by the sharp rise in students’ use of unlawful
drugs.” Chandler, 520 U.S. at 319. This crisis included severe disruption
of classroom activities.
In any case, NSC’s program is not the method of preserving a proper
educational environment envisioned by T.L.O., on which the majority relies.
T.L.O. dealt with smoking in the school and the ability of teachers and
principals to respond swiftly to address conduct in the educational
environment without adhering to the formal requirements of the Fourth
Amendment. These situations certainly may require immediate action. But
that is not the case presented by NSC. Nor does NSC argue that its
students have run amok, as was the case in Vernonia. Finally, there is no
claim that the testing of these groups of students, distinct from the
population as a whole, has any relation to NSC’s perceived drug problem.
The Tenth Circuit, in Earls v. Tecumseh Pub. Sch. Dist. No. 92, 242 F.3d
1264 (10th Cir. 2001), cert. granted, 122 S. Ct. 509 (Nov. 8, 2001),
invalidated a drug testing program for that reason. The majority
distinguishes Earls based on differences between its policy and NSC’s. But
Earls turned not on the nature of the school district’s policy, but on the
classification of students subjected to the searches. The Tenth Circuit
saw “little efficacy in a drug testing policy which tests students among
whom there is no measurable drug problem.” 242 F.3d at 1277. Finally, the
“preventative” nature of NSC’s program proves too much. If it is a
legitimate objective, it gives reason for NSC to test every student.
Willis v. Anderson Cmty. Sch. Corp., 158 F.3d 415, 422 (7th Cir. 1998),
cert. denied, 526 U.S. 1019 (1999) (“If [deterrence] were the only relevant
consideration, Vernonia might as well have sanctioned blanket testing of
all children in public schools. And this it did not do.”). Of course,
such testing is not permissible. Cf. Joy, 212 F.3d at 1067 (“[T]he case
has yet to be made that a urine sample can be the ‘tuition’ at a public
school.”).
As T.L.O. reminded us: “[T]he reasonableness standard should ensure
that the interests of students will be invaded no more than is necessary to
achieve the legitimate end of preserving order in the schools.” The rights
of NSC’s students—or at least the ones NSC has chosen to test—should be
subject to no more of an intrusion than necessary to achieve NSC’s interest
in preserving order in its schools. In my view, the issue is not, as the
majority’s reasoning suggests, whether NSC’s policy is comparable to those
imposed at other schools and documented in other cases. Rather it is
whether NSC’s program, and its suspicionless testing of broad categories of
students, is justified at all. It is incumbent upon NSC to prove this, and
its failure to do so leaves its program well short of complying with
Article I, Section 11.
C. NSC’s Governmental Concern and Efficacy of its Program
1. NSC Presents No “Concrete Danger” as to the Students it Tests
The final factor in the “special needs” balance is the nature and
immediacy of NSC’s concern and the efficacy of its testing program in
addressing it. Vernonia, 515 U.S. at 660. The majority’s treatment of
Vernonia suggests that the phrase “special need” means nothing more than
that a school may identify a “drug problem” and thereafter impose random
drug testing on any student engaged in an extra- or co-curricular activity.
I do not read Vernonia that broadly. NSC carries the burden of proving
why its searches fall within the “special needs” doctrine, as applied in
Vernonia, and later clarified in Chandler. In my view, it fails to
establish the “concrete danger” to which its program responds, or—assuming
the presence of a concrete danger—that the program in its present form is
tailored to address it.
In Chandler, the United States Supreme Court explained that “the
proffered special need for drug testing must be substantial—important
enough to override the individual’s acknowledged privacy interest,
sufficiently vital to suppress the Fourth Amendment’s normal requirement of
individualized suspicion.” 520 U.S. at 318. To invoke the “special needs”
doctrine, the proponent of such a testing program must demonstrate a
“concrete danger.” Id. at 319. In Vernonia, the “concrete danger” with
regard to the school’s student athletes was evident and described as a
“state of rebellion.” 515 U.S. at 662-63. A variety of problems in the
school environment were cited. NSC argues that the survey results and the
deaths of two students in a ten-year period justify the program it has put
into place. But neither of these circumstances involved the classroom
disruption cited in Vernonia, and NSC’s superintendent could not point to
any increase in discipline problems attributable to substance abuse. It
may not take an “epidemic” before a school justifiably institutes a drug
testing program. But it must take more than the evidence presented by NSC.
If not, Article I, Section 11 may fairly be said to provide little, if
any, protection to Indiana’s students.
The concerns cited by NSC are of course significant. But even if they
rose to the level sufficient to support some testing program, NSC’s program
is not justified by its evidence. In Joy, the Seventh Circuit addressed an
Indiana school’s testing policy similar to NSC’s. Although the particulars
of the policy are unimportant to the present case, the Seventh Circuit’s
analysis is instructive.[13] The court assessed the nature of the
government’s interest, in part, by examining whether a correlation existed
between the defined test population and the abuse. NSC’s evidence of
substance abuse in its schools is a survey given to students in grades
seven through ten. However the results do not suggest a correlation
between the percentage of students claiming to have used a given substance
and those students who participate in an activity covered by NSC’s testing
program. The survey cited by NSC may indeed “demonstrate a . . .
‘correlation’ between student drug use and a need to test.” What it does
not do is demonstrate a correlation between drug use among the general
student population and a need to test the students who are subject to the
program. Cf. id. at 685 (O’Connor, J., dissenting) (criticizing the school
district’s decision to test student athletes as “a choice that appears to
have been driven more by a belief in what would pass constitutional muster
. . . than by a belief in what was required to meet the District’s
principal disciplinary concern.”). NSC cites Joy and Vernonia in support
of its claim that “[u]nder a reasonableness standard the federal courts
have found that findings like this do in fact provide a basis for testing.”
The majority appears to accept this argument. I think this misses the
point of Joy and Vernonia.
Here, as in Joy, NSC “has not proven, or even attempted to prove, that
a correlation exists between drug use and those who engage in
extracurricular activities or drug use and those who drive to school.” 212
F.3d at 1064. Thus, NSC’s program amounts to “dividing the students into
broad categories and drug testing on a category-by-category basis, which
allows for drug testing for all but the most uninvolved and isolated
students.” Id. (citing Willis, 158 F.3d at 423). Willis appropriately
described such a program as “one insidious means toward blanket testing.”
158 F.3d at 423.
2. Suspicion-Based Testing is Feasible
One driving force in the United States Supreme Court’s opinion in
Vernonia was the Court’s conclusion that a program based on individualized
suspicion would entail “substantial difficulties—if it [were] indeed
practicable at all” in order to handle the “immediate crisis” present in
the Vernonia school district. As explained in Part II.C.1, NSC does not
proffer evidence of a “concrete danger” of an immediate nature as to the
students it tests. Further, as the majority points out, NSC’s program not
only entails random testing of the selected groups of students, but also
provides that “[s]tudents may also be entered into the testing program at
the request of their parent . . . when a student shows signs of drug use
that provides reasonable suspicion to search a student.” (emphasis added).
By its own terms, NSC’s policy purports to have the ability to determine
when a “reasonable suspicion” is present for a given student.
I recognize and agree that suspicion-based searches can lead to abuses
if the grounds for suspicion are not sufficiently articulable. As noted in
State v. Gerschoffer, a scheme of random searches may be less subject to
abuse in the form of profiling or arbitrary enforcement than one that
requires reasonable suspicion. __ N.E.2d __ (Ind. 2002) (citing Akhil Reed
Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 809
(1994)). Nevertheless, the broader the net cast, and the weaker the case
for any program at all, the less persuasive this consideration becomes.
Thus airport searches of everyone or of randomly selected passengers may be
very reasonable under current circumstances. But NSC’s program subjects
nearly eighty percent of its middle and high school students to random
tests, based on this very tenuous claim of a “concrete danger.”
In Willis, 158 F.3d at 421, the Seventh Circuit Court of Appeals
stated, “Under the Vernonia formulation, courts consider the feasibility of
a suspicion-based search when assessing the efficacy of the government’s
policy.” The testing program in Willis required students who were
suspended for three or more days to submit to urinalysis upon their return.
Willis was suspended for fighting, but refused to undergo testing upon his
return. The Anderson policy, like NSC’s policy, was implemented “to help
identify and intervene with those students who are using drugs as soon as
possible and to involve the parents immediately.” Id. at 417. The Seventh
Circuit, holding the program violated the Fourth Amendment, found it
significant that “the Corporation has not demonstrated that a suspicion-
based system would be unsuitable, in fact would not be highly suitable.”
Id. at 424-25. The court noted:
As a practical matter, it may be that when a suspicion-based search is
workable, the needs of the government will never be strong enough to
outweigh the privacy interests of the individual. Or, stated slightly
differently, perhaps if a suspicion-based search is feasible, the
government will have failed to show a special need that is “important
enough to override the individual’s acknowledged privacy interest,
sufficiently vital to suppress the Fourth Amendment’s normal
requirement of individualized suspicion.”

Id. at 421 (quoting Chandler, 520 U.S. at 318). Whether a suspicion-based
system is feasible is just one factor in our totality of the circumstances
analysis, but I believe—as Willis illustrates—it is a significant one in
the balance of whether the system is reasonable. Given the fact that NSC’s
own policy contemplates suspicion-based testing for some students, what is
practicable for some is practicable for all.

III. Article I, Section 23 Concerns

Article I, Section 23 of the Indiana Constitution states: “The
General Assembly shall not grant to any citizen, or class of citizens,
privileges or immunities which, upon the same terms, shall not equally
belong to all citizens.” I agree with the majority’s recitation of the
standard in Collins v. Day, 644 N.E.2d 72 (Ind. 1994). However, for many
of the reasons stated in Part II, I believe NSC’s testing program runs
afoul of Article I, Section 23.
Section 23 requires that governmental classifications be based on
inherent characteristics of the classified group and that the
classifications be reasonably related to the characteristics that define
the group. Collins, 644 N.E.2d at 79. Like many legislative
classifications, this is one that defines a group that has individuals
entering and leaving all the time as students join and drop out of various
activities. As the majority points out, defining the group by membership
in these activities meets the Collins requirement of “inherent
characteristics which distinguish” NSC students who are tested from NSC
students who are not tested. However, the stated purpose of NSC’s testing
is to “provid[e] for the health and safety of students, and undermin[e] the
effects of peer pressure by providing a legitimate reason for students to
refuse to use illegal drugs and . . . encourag[e] students who use drugs to
participate in drug treatment programs.” Nothing in that stated purpose
signifies that NSC is more concerned about the health and safety of the
students who participate in the regulated activities than those who do not.
Nor is there anything about the covered categories of students to suggest
that those students are more susceptible to the effects of peer pressure
than their non-tested colleagues. Therefore, I cannot agree that the
disparate treatment of requiring testing of some students rather than
others is in any way “reasonably related” to the distinction NSC makes
between them.
Conclusion

In conclusion, I would find NSC’s testing program, in its current
form, invalid under both Article I, Section 11 and Article I, Section 23 of
the Indiana Constitution. NSC has not presented significant evidence of a
concrete danger requiring the implementation of its policy, as it currently
stands. At the very least, NSC has not presented any evidence of a severe
drug or discipline problem among the tested categories of students. NSC’s
distinction between the tested and untested students has no rational basis,
and its testing program (a) fails to overcome the Linkes’ privacy interest,
under the Vernonia analysis, for substantial lack of efficacy, and (b)
fails the Collins equal rights and privileges analysis because the
distinction is not “reasonably related” to the policy’s stated purpose.
The majority contends that, having “identified a drug problem . . .
gives [NSC] an interest in experimenting with methods to deter drug use.”
I agree that, if a drug problem is present at NSC, it certainly has the
right to experiment and determine the most effective method of combating
the problem. However, that experimentation must have a constitutionally
valid form.

RUCKER, J., concurs.

-----------------------
[1] Co-curricular activities are activities, participation or
membership in which are an extension of and outside the normal school day
and for which academic credit or grades are earned, such as band and choir.
[2] Students may also be entered into the testing program at the
request of their parent or guardian or with the permission of the parent or
guardian when a student shows signs of drug use that provides reasonable
suspicion to search a student.
[3] The Policy permits testing for alcohol, amphetamines, anabolic
steroids, barbiturates, benzodiazepines, cocaine metabolites, LSD,
marijuana metabolites, methadone, methaqualone, nicotine, opiates,
phencyclidine, and propoxyphene. Although the Policy allows for testing of
“other specified drugs,” no other drugs are tested for.
[4] We note that the Earls court found that a random drug testing
policy violated the Fourth Amendment. The policy it reviewed differs from
the one before us in three principal respects: (1) it did not take the same
care in protecting student privacy; (2) there was much less evidence of
drug abuse than has been presented here; and (3) students were required to
pay for tests, thus creating a fee requirement for public school
extracurricular activities.

[5] Ind. Code § 20-8.1-5.1-3 provides:
“(a) Student supervision and the desirable behavior of students in
carrying out school purposes is the responsibility of a school corporation
and the students of a school corporation.
(b) In all matters relating to the discipline and conduct of students,
school corporation personnel stand in the relation of parents and guardians
to the students of the school corporation. Therefore, school corporation
personnel have the right, subject to this chapter, to take any disciplinary
action necessary to promote student conduct that conforms with an orderly
and effective educational system.
(c) Students must follow responsible directions of school personnel in
all educational settings and refrain from disruptive behavior that
interferes with the education environment.”
[6] Ind. Const. art VIII, § 1, provides:
“Knowledge and learning, general diffused throughout a community,
being essential to the preservation of a free government; it should be the
duty of the General Assembly to encourage, by all suitable means, moral,
intellectual scientific, and agricultural improvement; and provide, by law,
for a general and uniform system of Common Schools, wherein tuition shall
without charge, and equally open to all.”
[7] Those activities are academic teams, drama, Future Farmers of
America, National Honor Society, student government, and Students Against
Drunk Driving.
[8] Activities not subject to the Policy include the Euchre Club, New
Student Q&A, Ecology Club, Fellowship of Christian Athletes, Foreign
Language Club, Peer Helpers, Sunshine Society, Newspaper, Yearbook, Science
Club, Teen Issues, Sports Memorabilia, and Chess Club.

[9] Specifically, the Supreme Court cited district court findings
that:

Between 1988 and 1989 the number of disciplinary referrals in
Vernonia schools rose to more than twice the number reported in the
early 1980’s, and several students were suspended. Students became
increasingly rude during class; outbursts of profane language were
common.
Not only were student athletes included among the drugs
users but, . . . athletes were the leaders of the drug culture.
. . . .
“[A] large segment of the student body, particularly those
involved in interscholastic athletics, was in a state of rebellion, .
. . [d]isciplinary actions had reached ‘epidemic proportions,’ and . .
. the rebellion was being fueled by alcohol and drug abuse as well as
by the students’ misperceptions about the drug culture.”

515 U.S. at 649, 662-63.
[10] The Court rejected the argument that Von Raab carried greater
weight, and admonished, “Von Raab must be read in its unique context.”
Chandler, 520 U.S. at 321.
[11] By contrast, the legislature has specifically spelled out the
procedure for locker searches. Ind. Code § 20-8.1-5.1-25 (1998).
[12] I cite the recent motion picture “American Pie II,” which I
confess to having viewed by reason of friendship with the parents of its
director, whom I have known from childhood. I believe most of us could
provide more persuasive authority from our own experiences in high school.
[13] The court in Joy upheld the policy at issue as to its testing of
students participating in extra-curricular activities, but the only
apparent reason for that conclusion was the panel’s compulsion, under stare
decisis, to follow the Seventh Circuit’s earlier holding in Todd v. Rush
County Sch., 133 F.3d 984 (7th Cir. 1998), cert. denied, 525 U.S. 824
(1998), upholding a similar policy. For the reasons expressed throughout
this opinion, I disagree with the reasoning in Todd.