dissenting.
I respectfully dissent. The majority adopts the methodology of Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (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 charac-teristies-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 NSCs 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, 105 S.Ct. 733, 83 L.Ed.2d 720 (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, 105 S.Ct. 733. 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:
[Tlhe 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. [1], at 20 [88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ]; 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 cireumstances, 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 *988the 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, 105 S.Ct. 788. 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, 105 S.Ct. 733.
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 cireum-stances 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, 105 S.Ct. 733 (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, 115 S.Ct. 2386, 132 L.Ed.2d 564 (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 Black-mun's concurrence in 7.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, 115 S.Ct. 2386.1 The Court relied on T.L.0O. 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, 115 S.Ct. 2386 (quoting T.L.O., 469 *989U.S. at 341, 105 S.Ct. 733). 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, 117 S.Ct. 1295, 137 L.Ed.2d 513 (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, 117 S.Ct. 1295.
Georgia argued that its testing policy passed constitutional muster based on the Court's earlier decisions upholding suspi-clonless testing of student athletes, Vernonia, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564, certain United States Treasury employees, Nat'l Treasury Employees Umion v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), and certain railroad employees, Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The Court explained that the employees subject to testing in Von Raub were "directly involved [in] drug interdiction,"2 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 sereen 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; (8) 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, 117 S.Ct. 1295.
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 Verno-nia plan for its students. First, the survey and other evidence relied upon by NSC may establish a drug problem, but not *990among 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 cireumstances, the searches conducted by NSC are reasonable. Brown v. State, 658 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, 115 S.Ct. 2386 ("[TJhe 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 suspi-cionless 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 [97 S.Ct. 1401, 51 L.Ed.2d 711] (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 man*991dated educational and disciplinary poli-cles.... 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, 105 S.Ct. 733. 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.3
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 caleulus, 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 eredit 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-athletie ex-tracurriculars 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 cireumstances, the seope of the *992testing 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.4 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, "[Ilf 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, 117 S.Ct. 1295. 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 Equalty 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, 105 S.Ct. 733 ("[Thhis 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 cireum-*993stances 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 Punitive Purposes versus
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, 117 S.Ct. 1295. 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, -- U.S. --, 122 S.Ct. 509, 151 L.Ed.2d 418 (Nov. 8, 2001), invalidated a drug testing program for that reason. The majority distinguishes Harls based on differences between its policy and NSCs. 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 NSCs program proves too much. If it is a legitimate objective, it gives reason for NSC to test every student. Willis v. Anderson Umty. Sch. Corp., 158 F.3d 415, 422 (7th Cir.1998), cert. denied, 526 U.S. 1019, 119 S.Ct. 1254, 143 L.Ed.2d 351 (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 ("[The case has yet to be made that a urine sample can be the 'tuition' at a public sehool.").
As T.L.O. reminded us: 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 NSCs 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. *994In 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. NSCs Governmental Concern and Efficacy of its Program
1. NSC Presents No "Conerete 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, 115 S.Ct. 2386. 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, 117 S.Ct. 1295. To invoke the "special needs" doctrine, the proponent of such a testing program must demonstrate a "concrete danger." Id. at 319, 117 S.Ct. 1295. 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, 115 S.Ct. 2386. 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 cireumstances involved the classroom disruption cited in Vernonia, and NSCs 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 sehool'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.5 The court assessed the nature of the government's interest, in part, by examining whether a *995correlation 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, 115 S.Ct. 2386 (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 "[uJnder 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 Ver-nonia 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 "[sltudents 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. Gerschof-fer, 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. 763 N.E.2d 960 (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 cireum-stances. 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."
*996In Willis, 158 F.3d at 421, the Seventh Cireuit 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, 117 S.Ct. 1295). Whether a suspicion-based system is feasible is just one factor in our totality of the cireumstances analysis, but I believe-as Willis ilustrates-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 28 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]l 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 ... encouragle]l 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. There*997fore, 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 28 of the Indiana Constitution. NSC has not presented significant evidence of a concrete danger requiring the implementation of its policy, as it eur-rently 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.. 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.
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"[A] large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion, ... [dlisciplinary 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, 115 S.Ct. 2386.
. 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, 117 S.Ct. 1295.
. By contrast, the legislature has specifically spelled out the procedure for locker searches. Ind.Code § 20-8.1-5.1-25 (1998).
. 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.
. 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, 119 S.Ct. 68, 142 L.Ed.2d 53 (1998), upholding a similar policy. For the reasons expressed throughout this opinion, I disagree with the reasoning in Todd.