I dissent.
Article I, section 1 of the California Constitution declares a right of privacy. Its pronouncement is express. Nothing is left to implication. “All people” have an “inalienable right[]” to “pursu[e] and obtain[]” “privacy.”
Before proceeding a sentence further, we must make one point pellucidly clear.
This is not a case about the “policy” this court may think it best to formulate and implement with regard to privacy.
Rather, it is a case about the California Constitution and the role of the judiciary within the order it establishes.
The majority all but abrogate the right of privacy. They plainly consider it “bad policy.” What of their “policy” assessment? Is the right of privacy “good policy”? Is it “bad policy”? It simply does not matter. To be sure, the right of privacy reflects a choice of policy. But it is a choice that has already been made—by the people, in their capacity as sovereign, in the California *74Constitution. It is therefore a choice that we as judges must accept and respect, regardless of personal beliefs or predilections. (See, e.g., In re Anderson (1968) 69 Cal.2d 613, 634-635 [73 Cal.Rptr. 21, 447 P.2d 117] (conc. opn. of Mosk, J.); People v. Frierson (1979) 25 Cal.3d 142, 188-189 [158 Cal.Rptr. 281, 599 P.2d 587] (conc. opn. of Mosk, J.).) Regrettably, in this case the majority have not so conducted themselves with regard to the people’s constitutional policy declaring a right of privacy.
I
Article I, section 1 of the California Constitution declares: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Italics added.)
The right of privacy was added to the California Constitution when the voters at the November 7, 1972, General Election approved a proposed legislative constitutional amendment that was designated on the ballot as Proposition 11.
In construing the right of privacy, we must determine and adhere to the intent underlying Proposition 11. Of course, the intent that controls is that of the people who voted for the measure. (County of Fresno v. State of California (1991) 53 Cal.3d 482, 488 [280 Cal.Rptr. 92, 808 P.2d 235].)
The intent of the people must be discerned from two sources.
The first is the language of Proposition 11, to wit, the single substantive term “privacy.” Since the word does not define itself, we must press on.
The second is the arguments presented in the ballot pamphlet for and against Proposition 11. Those arguments offer relevant extrinsic evidence. (White v. Davis (1975) 13 Cal.3d 757, 775, fn. 11 [120 Cal.Rptr. 94, 533 P.2d 222].) Indeed, they offer, in essence, the only such evidence. (Id. at p. 775.)1
The argument in favor of Proposition 11 states: “The proliferation of government snooping and data collecting is threatening to destroy our *75traditional freedoms. Government agencies seem to be competing to compile the most extensive sets of dossiers of American citizens. Computerization of records makes it possible to create ‘cradle-to-grave’ profiles on every American.
“At present there are no effective restraints on the information activities of government and business. This amendment creates a legal and enforceable right of privacy for every Californian.
“The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose. It prevents government and business interests from collecting and stockpiling unnecessary information about us and from misusing information gathered for one purpose in order to serve other purposes or to embarrass us.
“Fundamental to our privacy is the ability to control circulation of personal information. This is essential to social relationships and personal freedom. The proliferation of government and business records over which we have no control limits our ability to control our personal lives. Often we do not know that these records even exist and we are certainly unable to determine who has access to them.
“Even more dangerous is the loss of control over the accuracy of government and business records on individuals. Obviously, if the person is unaware of the record, he or she cannot review the file and correct inevitable mistakes. Even if the existence of this information is known, few government agencies or private businesses permit individuals to review their files and correct errors.
“The average citizen also does not have control over what information is collected about him. Much is secretly collected. We are required to report some information, regardless of our wishes for privacy or our belief that there is no public need for the information. Each time we apply for a credit card or a life insurance policy, file a tax return, interview for a job, or get a drivers’ license, a dossier is opened and an information profile is sketched. Modern technology is capable of monitoring, centralizing and computerizing this information which eliminates any possibility of individual privacy.
“The right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth and *76Ninth Amendments to the U.S. Constitution. This right should be abridged only when there is compelling public need. Some information may remain as designated public records but only when the availability of such information is clearly in the public interest. . . (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, pp. 26-27, italics added in place of underscoring in original.)
The rebuttal to the argument in favor of Proposition 11 states: “To say that there are at present no effective restraints on the information activities of government and business is simply untrue. In addition to literally hundreds of laws restricting what use can be made of information, every law student knows that the courts have long protected privacy as one of the rights of our citizens.
“Certainly, when we apply for credit cards, life insurance policies, drivers’ licenses, file tax returns or give business interviews, it is absolutely essential that we furnish certain personal information. Proposition 11 does not mean that we will no longer have to furnish it and provides no protection as to the use of the information that the Legislature cannot give if it so desires.
“What Proposition 11 can and will do is to make far more difficult what is already difficult enough under present law, investigating and finding out whether persons receiving aid from various government programs are truly needy or merely using welfare to augment their income.
“Proposition 11 can only be an open invitation to welfare fraud and tax evasion and for this reason should be defeated.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), rebuttal to argument in favor of Prop. 11, p. 27.)
The argument against Proposition 11 states: “Proposition 11, which adds the word ‘privacy’ to a list of ‘inalienable rights’ already enumerated in the Constitution, should be defeated for several reasons.
“To begin with, the present Constitution states that there are certain inalienable rights ‘among which are those’ that it lists. Thus, our Constitution does not attempt to list all of the inalienable rights nor as a practical matter, could it do so. It has always been recognized by the law and the courts that privacy is one of the rights we have, particularly in the enjoyment of home and personal activities. So, in the first place, the amendment is completely unnecessary.
“For many years it has been agreed by scholars and attorneys that it would be advantageous to remove much unnecessary wordage from the Constitution, and at present we are spending a great deal of money to finance a *77Constitution Revision Commission which is working to do this. Its work presently is incomplete and we should not begin to lengthen our Constitution and to amend it piecemeal until at least the Commission has had a chance to finish its work.
“The most important reason why this amendment should be defeated, however, lies in an area where possibly privacy should not be completely guaranteed. Most government welfare programs are an attempt by California’s more fortunate citizens to assist those who are less fortunate; thus, today, millions of persons are the beneficiaries of government programs, based on the need of the recipient, which in turn can only be judged by his revealing his income, assets and general ability to provide for himself.
“If a person on welfare has his privacy protected to the point where he need not reveal his assets and outside income, for example, how could it be determined whether he should be given welfare at all?
“Our government is helping many people who really need and deserve the help. Making privacy an inalienable right could only bring chaos to all government benefit programs, thus depriving all of us, including those who need the help most.
“And so because it is unnecessary, interferes with the work presently being done by the Constitution Revision Commission and would emasculate all government programs based on recipient need, I urge a ‘no’ vote on Proposition 11.” (Ballot Pamp., Proposed Stats, and Amends, to Cal.. Const, with arguments to voters, Gen. Elec. (Nov. 7,1972), argument against Prop. 11, pp. 27-28, italics added in place of underscoring in original.)
The rebuttal to the argument against Proposition 11 states: “The right to privacy is much more than ‘unnecessary wordage[.’] It is fundamental in any free society. Privacy is not now guaranteed by our State Constitution. This simple amendment will extend various court decisions on privacy to insure protection of our basic rights.
“The work of the Constitution Revision Commission cannot be destroyed by adding two words [i.e., “and privacy”] to the State Constitution. The Legislature actually followed the Commission’s guidelines in drafting Proposition 11 by keeping the change simple and to the point. Of all the proposed constitutional amendments before you, this is the simplest, the most understandable, and one of the most important.
“The right to privacy will not destroy welfare nor undermine any important government program. It is limited by ‘compelling public necessity’ and *78the public’s need to know. Proposition 11 will not prevent the government from collecting any information it legitimately needs. It will only prevent misuse of this information for unauthorized purposes and preclude the collection of extraneous or frivolous information.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), rebuttal to argument against Prop. 11, p. 28, italics added in place of underscoring in original.)
In view of the foregoing, we are able to say this about the right of privacy.
First, the status of the right of privacy is variously declared to be “fundamental,” “compelling,” and “basic.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27 [“fundamental” and “compelling”]; id., rebuttal to argument against Prop. 11, p. 28 [“fundamental” and “basic”].) The same is implied in the statement that the “right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution.” (Id., argument in favor of Prop. 11, p. 27; cf. Olmstead v. United States (1928) 277 U.S. 438, 478 [72 L.Ed. 944, 956, 48 S.Ct. 564, 66 A.L.R. 376] (dis. opn. of Brandeis, J.) [stating that the right of privacy is “the most comprehensive of rights and the right most valued by civilized men”].)
It follows that the right of privacy “should be abridged only when there is compelling public need.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7,1972), argument in favor of Prop. 11, p. 27.) What is demanded is a “need” on the part of the intruding party that is both “compelling” and “public.” “Compelling” means that the “need” is one in the strict sense, denoting something actually required by the intruding party under all the circumstances and not simply “useful” or “desirable.” (Webster’s Third New Internat. Dict. (3d ed. 1961) p. 1512.) “Public,” for its part, means that the “need” is one that the community at large deems valid and not merely the intruding party. The “need” in question must extend to the means used as well as the interests furthered. Otherwise, any interests, so long as they were “compelling,” would always justify every means, no matter how offensive. This is, in substance and effect, a kind of “balancing” test. Its scales, however, do not start out in equipoise, but rather verge in favor of the right of privacy.
The “compelling public need” standard, it must be noted, is not contradicted or qualified by the statement in the rebuttal to the argument against Proposition 11: “The right to privacy will not destroy welfare nor undermine any important government program. It is limited by ‘compelling public necessity’ and the public’s need to know. Proposition 11 will not prevent the *79government from collecting any information it legitimately needs. It will only prevent misuse of this information for unauthorized purposes and preclude the collection of extraneous or frivolous information.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), rebuttal to argument against Prop. 11, p. 28.) This statement reaffirms the “compelling public need” standard by means of the virtual quotation, “ ‘compelling public necessity,’ ” and the paraphrase, “the public’s need to know.” Neither does it depart from that test by asserting that “Proposition 11 will not prevent the government from collecting any information it legitimately needs." The implication is that the requirement of a “compelling public need” is satisfied by a “legitimate need.” The further implication is that a “legitimate need” is one that is actually required by the intruding party—it is a need—and is deemed valid by the community at large—it is legitimate.
That the right of privacy “should be abridged only when there is compelling public need” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27) does not mean that this standard must be applied to justify any interference with any asserted right of privacy. Apparently, conduct adversely affecting, but not abridging, an established right of privacy may be allowed if reasonable. Of course, conduct bearing on a Active “right of privacy” is not subject to any scrutiny at all.2
*80Second, the source of the right of privacy is “our traditional freedoms” and our “American heritage,” evidently as reflected in the common law, *81federal and state statutes, and federal and state constitutional law generally, including, of course, the guaranties against unreasonable searches and seizures contained in the Fourth Amendment to the United States Constitution and article I, section 13 of the California Constitution. (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, pp. 26, 27.) Strictly speaking, the right of privacy is not granted by the state charter. Rather, it is guaranteed. (See Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), rebuttal to argument against Prop. 11, p. 28 [“Privacy is not now guaranteed by our State Constitution.”].)3
Third, the definition of the right of privacy is simply the “right to be left alone.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27; cf. Olmstead v. United States, supra, 277 U.S. at p. 478 [72 L.Ed. at p. 956] (dis. opn. of Brandeis, J.) [calling the right of privacy the “right to be let alone”]; Warren & Brandeis, The Right to Privacy (1890) 4 Harv. L.Rev. 193, 193 [to similar effect].)4
Fourth, the substance of the right of privacy has three major aspects.
To begin with, there is a protectible interest against an intruding party’s obtaining and/or publishing of private information belonging to the party intruded upon—“informational privacy.” This is the value that is threatened by “government snooping and data collecting”; the “compiling]” of “extensive sets of dossiers of American citizens” by “[government agencies”; the “[computerization of records,” which “makes it possible to create ‘cradle-to-grave’ profiles on every American”; the “collecting and stockpiling [of] unnecessary information about us” by “government and business interests” and the “misusing” of “information gathered for one purpose in order to serve other purposes or to embarrass us”; the “proliferation of government and business records over which we have no control”; the fact that “[ojften we do not know that these records even exist and we are certainly unable to *82determine who has access to them”; the “loss of control over the accuracy of government and business records on individuals”; the fact that the “average citizen . . . does not have control over what information is collected about him”; the “open[ing]” of a “dossier” and the “sketch[ing]” of an “information profile” for each “credit card,” “life insurance policy,” “tax return,” “job” “interview,” and “drivers’ license”; and the fact that “[m]odern technology is capable of monitoring, centralizing and computerizing [personal] information which eliminates any possibility of individual privacy.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, pp. 26-27, underscoring deleted.)
There is also a protectible interest against an intruding party’s interference with private conduct by the party intruded upon—“autonomy privacy.” This is the value that is indicated by reference to “social relationships and personal freedom” and to “our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27.)
Underlying each of these two protectible interests is a third, viz., a protectible interest against an intruding party’s very act of invading the solitude of the party intruded upon—“privacy” properly so called. This is the value basic to the definition of the right of privacy as the “right to be left alone.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27.) It is also the value that is threatened by “snooping,” the “monitoring” of personal conduct, and the “collecting” and “gathering]” of personal information. (Ibid.)
Each of the three protectible interests referred to above is of equal stature the one to the other. None is more “protectible” than another; none is less.5
Fifth, the scope of the right of privacy is broad. The fact is established by the range of the protectible interests it embraces. It is confirmed by the *83evident intent not simply to adopt “various court decisions on privacy,” but actually to “extend” them beyond their four corners. (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), rebuttal to argument against Prop. 11, p. 28.)6
*84Sixth, the nature of the right of privacy is dynamic. Its contours change with the contours of the protectible interests it embraces.7
Seventh, the coverage of the right of privacy is unlimited. That is to say, it reaches both governmental and nongovernmental actors. Intrusion is what matters, not the identity of the intruder. For example, informational privacy is guaranteed against the “collecting and stockpiling [of] unnecessary information about us” by “government and business interests”; the “proliferation of government and business records over which we have no control”; the “loss of control over the accuracy of government and business records on individuals”; and the “opening]” of a “dossier” and the “sketch[ing]” of an “information profile” by government for each “tax return,” “job” “interview,” and “drivers’ license” and the “open[ing]” of a “dossier” and the “sketching]” of an “information profile” by business for each “credit card,” “life insurance policy,” and “job” “interview.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27, italics added.)
The “compelling public need” standard is applicable to both governmental and nongovernmental actors. As stated, intrusion is what matters, not the identity of the intruder. No distinction is drawn between types of actors. None need be. Certainly, the “compelling public need” standard can be satisfied by both. For example, there may be such a need for information about an individual’s income on the part of a taxing body: the need seems one that is actually required by the agency under all the circumstances in order to determine tax liability, and is deemed valid by the community at large because of the importance of raising revenue. There may be a similar need for similar information on the part of a consumer credit-card company: the need seems one that is actually required by the firm under all the circumstances in order to assess financial condition, and is deemed valid by the community at large because of the importance of extending credit where appropriate.8
Eighth, the character of the right of privacy is justiciable. That means that it is “legal and enforceable” in the courts. (Ballot Pamp., Proposed Stats, and *85Amends. to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 26, underscoring omitted.)
Hence, it is clear that a right of action is implicit in the right of privacy.
It is less clear that this right of action imposes any fixed requirements of pleading and proof.
In determining such requirements, one would perhaps do best to cleave close to the analysis set out above.
Recall that the right of privacy may be abridged only when there is compelling public need; conduct adversely affecting, but not abridging, an established right of privacy may be allowed if reasonable; conduct bearing on a Active “right of privacy” is not subject to any scrutiny at all.
Accordingly, the plaintiff must plead that he has a right of privacy and that it was interfered with by the defendant. The defendant may then plead, beyond simple denial, that any conduct on his part adversely affecting the right of privacy was justified by a compelling public need if it rose to the level of abridgment or that it was allowed as reasonable if it did not. The plaintiff must prove his right of privacy and the defendant’s interference *86therewith by shouldering the generally applicable burden of proof by a preponderance of the evidence (Evid. Code, § 115). The defendant must prove under the same burden the justification or allowance of his conduct.9
II
The subject of this proceeding is the “NCAA Drug-Testing Program” as it stood in 1987-1988. Also before the court as background is the program in its initial year of 1986-1987. The NCAA is, of course, the National Collegiate Athletic Association. It is an unincorporated association of over 1,000 colleges, universities, and other educational organizations.10
The objectives of the NCAA drug testing program, in the organization’s own words, are the promotion of “fair and equitable competition at [its] championships and postseason certified events” (i.e., football bowl games) and the “protection of the health and safety of the student-athletes therein competing” who do, or might, ingest drugs. “So that no one participant might have an artificially induced advantage, so that no one participant might be pressured to use chemical substances in order to remain competitive and to safeguard the health and safety of participants, this NCAA drug-testing program has been created.” This statement relates to the program in 1987-1988; it is in accord with a statement relating to the program in 1986-1987: the “goal . . . is to provide clean, equitable competition for student-athletes competing in NCAA championships and NCAA-certified postseason football bowl games.”
To meet the stated objectives, the NCAA drug testing program, according to the organization’s declaration, “involves urine collection on specific occasions . . . .” In individual and team championships, student athletes may be selected at random, by position of finish, or on suspicion. In team *87championships and postseason football bowl games, student athletes may be selected at random, by position, by playing time, or on suspicion. The student athletes thus selected are required to provide urine specimens, and are “monitor[ed] ... by observation” by NCAA representatives—denominated “urine validators”—as they do so. They are also questioned as to the identity of “each medication used recently,” including “over-the-counter as well as prescription drugs.” Women are specifically asked about their use of contraceptive medications. These procedures belong to the program in 1987-1988; they follow similar procedures belonging to the program in 1986-1987. The central mechanism of the program is suspicionless selection for visually monitored urine collection.
The NCAA drug testing program, again according to the organization’s declaration, also “involves . . . laboratory analyses [of the urine collected] for substances on a list of banned drug classes,” entitled simply “NCAA Banned Drug Classes.” These procedures, too, belong to the program in 1987-1988; they follow similar procedures belonging to the program in 1986-1987.
“NCAA Banned Drug Classes” “is comprised of substances generally purported to be performance enhancing and/or potentially harmful to the health and safety of the student-athlete. The drug classes specifically include stimulants (such as amphetamines and cocaine) and anabolic steroids as well as other drugs.” To wit: (1) certain “[p]sychomotor and central nervous system stimulants . . . AND RELATED COMPOUNDS”; (2) certain “[s]ympathomimetic amines . . . AND RELATED COMPOUNDS”; (3) certain “[a]nabolic steroids . . . AND RELATED COMPOUNDS”; (4) certain “[s]ubstances banned for specific sports . . . AND RELATED COMPOUNDS”; (5) certain “[d]iuretics . . . AND RELATED COMPOUNDS”; and (6) certain “[s]treet drugs” and “OTHERS[.]” “NCAA Banned Drug Classes” is found in the program in 1987-1988; it succeeds a “NCAA Banned Drugs List,” which was found in the program in 1986-1987 and was essentially identical. The drugs and other substances in question are almost all of them lawful.
“NCAA Banned Drug Classes” is given detail in the “NCAA Prohibited Drug Reference List.” The latter fills 59 single-spaced, typewritten pages. By its own declaration, it “represents] the majority of the drugs found in the United States . . . .” It contains 55 pages registering the brand and generic names of various substances. On each of these pages (and one other) it states, “CAUTION: THIS IS NOT CONSIDERED A COMPLETE LIST! RELATED SUBSTANCES ARE BANNED!” Again, almost all of the drugs and other substances in question are lawful.
The NCAA drug testing program provides that a “student-athlete who is found to have utilized (in preparation for or participation in an NCAA *88championship or certified postseason football contest) a substance on the list of banned drugs . , . shall not be eligible for further participation in postseason competition,” and “shall remain ineligible for postseason competition for a minimum of 90 days after the test date. If the student-athlete tests positive after being restored to eligibility, he or she shall be charged with the loss of one season of postseason eligibility in all sports and shall remain ineligible for postseason competition at least through the succeeding academic year.” The program allows for an expedited and limited appeal from a declaration that a student athlete is ineligible; the right to appeal belongs to the NCAA member institution and not to the student athlete. These procedures belong to the program in 1987-1988; they follow similar procedures belonging to the program in 1986-1987.
The NCAA drug testing program requires that “[e]ach year, student-athletes will sign a consent form demonstrating their understanding of the . . . program and their willingness to participate. This consent statement is part of a total Student-Athlete Statement required of all student-athletes prior to participation in intercollegiate competition during the year in question. Failure to complete and sign the statement annually shall result in the student-athlete’s ineligibility for participation in all intercollegiate competition.” The quoted statement appears in the program in both 1986-1987 and 1987-1988. The NCAA does not itself exact signed consent forms. Rather, it requires its member institutions to do so as its agents.
At the relevant time, Jennifer Hill and J. Barry McKeever were student athletes at the Leland Stanford Junior University (hereafter Stanford), a member institution of the NCAA.11 In conformity with NCAA mandate, Stanford apparently attempted to exact signed consent forms from Hill and McKeever for the NCAA drug testing program in 1987-1988, but each refused. Stanford had exacted such a form from McKeever in 1986-1987; he was selected for drug testing without suspicion, and submitted under protest.
On the complaint of Hill and McKeever against the NCAA and following the intervention of Stanford on the former’s side, the superior court conducted a lengthy bench trial, made extensive findings of fact and conclusions of law, and rendered judgment issuing a permanent injunction prohibiting *89the NCAA from applying its drug testing program against Stanford student athletes and/or Stanford itself, or taking any adverse action against Stanford student athletes and/or Stanford itself with regard thereto, on the ground that the program violated Stanford student athletes’ right of privacy under article I, section 1 of the California Constitution and was not immunized by the commerce clause of article I, section 8 of the United States Constitution.
In a detailed opinion, the Court of Appeal affirmed, being of the view that the superior court’s findings and conclusions were supported by the evidence and in accordance with the law.12
Having considered the record in its entirety, I am compelled to agree.
The superior court’s findings of fact and conclusions of law survive scrutiny under the appropriate standards of review.
“Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test. Questions of law relate to the selection of a rule; their resolution is reviewed independently. Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently.” (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [264 Cal.Rptr. 139, 782 P.2d 278].)
Crucial in this proceeding is the superior court’s “establishment of historical or physical facts.” Each of its findings was supported by either conflicting or unconflicting evidence of substance. If by unconflicting, it must be obviously sustained. But even if by conflicting, the same is true. (See, e.g., People v. McPeters (1992) 2 Cal.4th 1148, 1176 [Cal.Rptr.2d 834, 832 P.2d 146] (per Lucas, C. J.) [implying that a trial court’s finding based on conflicting evidence “is binding upon an appellate court” (internal quotation marks omitted)].)
The question here is whether the NCAA drug testing program violates the right of privacy of Stanford student athletes. The answer, as will appear, is affirmative.
*90To begin with, there exists a right of privacy on the part of Stanford student athletes that is implicated in the NCAA drug testing program. It is established beyond peradventure and not at all Active. The superior court’s determination to this effect is sound.
First, there is informational privacy, the protectible interest against an intruding party’s obtaining and/or publishing of private information belonging to the party intruded upon. Manifestly, such information is contained in an individual’s urine. It is also revealed in the identification of medications that the individual has recently used, including especially those of a contraceptive nature. The superior court found that “[t]his is confidential medical information which may reveal sensitive medical conditions . . . .” Implicit therein is a determination that is in line with the observation in Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678 [156 Cal.Rptr. 55]: “A person’s medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected.” It bears emphasis that almost all of the banned drugs and other substances are lawful.
In Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602 [103 L.Ed.2d 639, 109 S.Ct. 1402] (hereafter sometimes Railway Labor Executives'), a Fourth Amendment case, the majority declared: “It is not disputed . . . that chemical analysis of urine . . . can reveal a host of private medical facts about an [individual], including whether he or she is epileptic, pregnant, or diabetic. . . . [I]t is clear that the . . . testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable . . . .” (Id. at p. 617 [103 L.Ed.2d at pp. 659-660]; accord, Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at pp. 15-17 [holding to the same effect under the right of privacy of Cal. Const., art. I, § 1].)
In his dissent in Railway Labor Executives, Justice Marshall expanded on the point. “[T]he chemical analysis . . . perforated] upon . . . urine samples implicates strong privacy interests .... Technological advances have made it possible to uncover, through analysis of chemical compounds in [this] fluid[], not only drug or alcohol use, but also medical disorders such as epilepsy, diabetes, and clinical depression. [Citations.] . . . ‘[S]uch tests may provide [intruding parties] with a periscope through which they can peer into an individual’s behavior in [his or] her private life, even in [his or] her own home.’ ” (Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. at p. 647 [103 L.Ed.2d at pp. 679-680] (dis. opn. of Marshall, J.).)
Second, there is autonomy privacy, the protectible interest against an intruding party’s interference with private conduct by the party intruded *91upon. Such conduct includes an individual’s medical treatment of himself with lawful drugs and other substances, both on his own and under the direction of his physician. The Legislature itself has expressly found that an “adult person has the fundamental right to control the decisions relating to the rendering of his or her own medical care . . . .” (Health & Saf. Code, § 7185.5, subd. (a); accord, id,., former § 7186, Stats. 1976, ch. 1439, § 1, p. 6478.) Hence, words that Judge Cardozo wrote 80 years ago while a member of the New York Court of Appeals are vital in California today: “Every human being of adult years and sound body has a right to determine what shall be done with his own body ....’’ (Schloendorff v. New York Hospital (1914) 211 N.Y. 125, 129 [105 N.E. 92], overruled on other grounds, Bing v. Thunig (1957) 2 N.Y.2d 656, 667 [163 N.Y.S.2d. 3, 143 N.E.2d. 3]; accord, Thor v. Superior Court (1993) 5 Cal.4th 725, 731 [21 Cal.Rptr.2d 357, 855 P.2d 375].)
Third, there is privacy properly so called, the protectible interest against an intruding party’s very act of invading the solitude of the party intruded upon. The mere presence of a stranger when an individual urinates is deeply invasive of the latter’s solitude. (Cf. Caruso v. Ward (1988) 72 N.Y.2d 432, 438-439 [534 N.Y.S.2d. 142, 530 N.E.2d. 850] [concluding under provisions including the Fourth Amendment that “[u]rine testing ‘in the presence of a government official or agent[]’ ... ‘is at least as intrusive as a strip search’ and involves a great ‘intrusion on individual privacy and dignity’ ”].) The stranger’s visual monitoring of the individual’s act of urination is more irruptive still. (Cf. Capua v. City of Plainfield (D.N.J. 1986) 643 F.Supp. 1507,1514 [concluding under the Fourth Amendment that a “urine test done under close surveillance of a government representative, regardless of how professionally or courteously conducted, is likely to be a very embarrassing and humiliating experience”].)
In Railway Labor Executives, the majority declared: It cannot “be disputed that the process of collecting ... [a urine] sample . . . implicates privacy interests. . . . ‘There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.’ [Citation.] . . . [I]t is clear that the collection ... of urine intrudes upon expectations of privacy that society has long recognized as reasonable . . . .” (Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. at p. 617 [103 L.Ed.2d at p. 676]; accord, Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at pp. 15-17 [holding to the same effect under the right of privacy of Cal. Const., art. I, §1].)
*92In his dissent in Railway Labor Executives, Justice Marshall expanded on this point as well. He asked rhetorically: “Who among us is not prepared to consider reasonable a person’s expectation of privacy with respect to . . . the collection of his urine . . . ?” (Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. at p. 642 [103 L.Ed.2d at p. 676] (dis. opn. of Marshall, J.).) He went on: “Compelling a person to produce a urine sample on demand . . . intrudes deeply on privacy and bodily integrity. Urination is among the most private of activities. It is generally forbidden in public, eschewed as a matter of conversation, and performed in places designed to preserve this tradition of personal seclusion. . . . That the privacy interests offended by compulsory and supervised urine collection are profound is the overwhelming judgment of the lower courts and commentators. . . . ‘[I]n our culture the excretory functions are shielded by more or less absolute privacy, so much so that situations in which this privacy is violated are experienced as extremely distressing, as detracting from one’s dignity and self esteem.’ ” (Id. at pp. 645-646 [103 L.Ed.2d at pp. 678-679] (dis. opn. of Marshall, J.); cf. People v. Melton (1988) 44 Cal.3d 713, 739, fn. 7 [244 Cal.Rptr. 867, 750 P.2d 741] [“[w]hile the taking of a urine sample does not involve physical invasion of the body’s interior, it does invoke privacy and dignitary interests protected by the due process and search and seizure clauses” of the United States and California Constitutions].)
It cannot be said that the right of privacy of Stanford student athletes is somehow qualified or reduced as a result of their status as athletes.
It appears that, as a general matter, athletes like the student athletes here are subject to relatively strict regulation and close supervision in their lives and activities, with regard to medical concerns and others. It also appears that, as a general matter, they function in a relatively communal environment, both on the field of play and in the locker room.
Such observations, however, bear little weight on the point under consideration.
Informational privacy remains undiminished. The fact that student athletes are regulated and supervised and function in a communal environment does not open them to urinalysis and questioning covering much of the pharmacopoeia. Remember the “NCAA Prohibited Drug Reference List”: it fills 59 single-spaced, typewritten pages; “represent[s] the majority of the drugs found in the United States”; contains 55 pages registering the brand and generic names of various substances; and states on each one of the 55 (and on one more), “CAUTION: THIS IS NOT CONSIDERED A COMPLETE LIST! RELATED SUBSTANCES ARE BANNED!” Remember too that almost all of the drugs and other substances in question are lawful.
*93Autonomy privacy also remains undiminished. The fact that student athletes are regulated and supervised and function in a communal environment does not withdraw their authority to control their own medical treatment with lawful drugs and other substances.
Privacy properly so called remains undiminished as well. The fact that student athletes are regulated and supervised and function in a communal environment does not prepare them to be watched by a stranger as they urinate.
Next, there is an abridgment of the right of privacy of Stanford student athletes that is effected by the NCAA drug testing program. The interference with the right arising from the program is significant. The superior court’s determination to this effect is sound.
First, as to informational privacy there is a substantial adverse effect. Through its drug testing program, the NCAA obtains private information belonging to Stanford student athletes. As stated, such information is contained in an individual’s urine and in his or her identification of recently used medications, including especially those of a contraceptive nature. The NCAA requires both. As to the urine, the superior court found that the “NCAA drug testing can detect very low levels of metabolites of drugs in urine, down to a few parts per billion .... The type of urinalysis performed by the NCAA reveals many personal details about a person, including medical conditions, birth control methods and whether the person ingested certain substances weeks, months or even a year prior to the drug test.” As to the identification: “Athletes are required to indicate to an NCAA official all medications taken for a couple of weeks prior to giving a urine sample. This is confidential medical information which may reveal sensitive medical conditions of the athlete. Women athletes are specifically asked whether they use a birth control medication.”
Second, as to autonomy privacy there is also a substantial adverse effect. The superior court’s finding is this: “The NCAA drug testing program . . . interferes with the athletes’ right to treat themselves . . . and interferes with their doctor’s ability to treat them.” This result follows ineluctably from the fact that the banned drugs and other substances “represent the majority of the drugs found in the United States” and that almost all of them are lawful.
Third, as to privacy properly so called there is a substantial adverse effect, perhaps the most substantial adverse effect of all. The superior court found: “The NCAA drug testing program . . . invades privacy by requiring that an NCAA monitor watch the partially disrobed athlete during the act of urination. . . . Urinating under the watchful eye of an NCAA monitor is degrading to both men and women.”
*94Some of the evidence that the superior court cited in support deserves mention.
McKeever testified that an “NCAA official” whom he did not know “went into the bathroom with” him; he “led” him “to the urinal there” and “wouldn’t let” him “go in the stall”; he “stood back approximately five to, five to seven feet” and “watch[ed]” him “the whole time” “as” he was “urinating.”
Asked, “How did it feel ... to have a stranger watching you while you are urinating?,” McKeever answered: “It is kind of hard to explain because it’s really difficult. I mean, obviously, you know, I—everyday I take a shower with the guys and everything, but the hardest part about it is because it is not voluntary; it is something that you know you are sitting there and a guy is watching you, and you say—they are saying you need a hundred milliliters for the sample. And you know, you are sitting there. You are knowing that you have to give a hundred milliliters. Knowing you have to do it right then .... It is really difficult to say, do it now and give me a hundred milliliters.” He went on: “It is very embarrassing because he is standing behind you and . . . you know . . . that he is watching you. . . . [I]t is just kind of hard being there with a beaker in your hand and watching someone, you know, make you give the [sample]. It is very uncomfortable. It is very embarrassing.”
To the further question, “[W]hat is the difference between urinating in a public restroom with people and urinals beside you and urinating during the NCAA drug testing program with the monitor watching you?,” McKeever provided this response: “I think the main difference is it is voluntary. When you go into a public bathroom you have to go to the bathroom. That is why you are going to go to a bathroom. When you are sitting there with a beaker in your hand and saying we want you to give the sample . . . and having a person sit there watching you and . . . you know . . . that the only reason he is there [is] to watch you[;] when you are in a public bathroom, the guy next to you is not there to watch you. That is just more—makes it that much more degrading and humiliating.”
Testimony similar to McKeever’s was given by Ruth M. Berkey, Assistant Executive Director of the NCAA. “[A]s part of [her] training,” she “had to urinate in front of a monitor” and “found that embarrassing . . . .” She stated that there had been some “discussion” within the organization “about how embarrassing it would be for a woman athlete, particularly, someone having her period to give a urine sample[.]” That discussion was apparently without effect. Asked, “If a woman athlete has her period, is she still required to give a urine sample?,” she answered, “Yes, she is.”
*95The superior court’s finding as to the substantial adverse effect of the NCAA drug testing program on “privacy” properly so called should cause no surprise. Indeed, any other would have been remarkable. Apparently, only one court has found to the contrary in a reported decision. In O’Halloran v. University of Washington (W.D.Wn. 1988) 679 F.Supp. 997, a federal district court denied a student athlete’s application for a preliminary injunction, based on the Fourth Amendment, to prohibit the University of Washington from enforcing the NCAA drug testing program. With virtually no analysis, it trivialized the student athlete’s “complaint” by asserting unsupportedly that “[mjonitored urination . . . is a relatively small intrusion . . . .” (Id. at p. 1005.) The decision, however, did not long survive. About six months after it was filed, it was reversed. (O’Halloran v. University of Washington (9th Cir. 1988) 856 F.2d 1375.)13
It goes without saying that the abridgment of the right of privacy of Stanford student athletes by the NCAA drug testing program is not nullified as a result of their status as athletes. As noted above, the fact that student athletes are regulated and supervised and function in a communal environment does not open them to urinalysis and questioning covering much of the pharmacopoeia; does not withdraw their authority to control their own medical treatment with lawful drugs and other substances; and does not prepare them to be watched by a stranger as they urinate. That same fact does not remove or even reduce the substantial adverse effect of the program.
Finally, there is no compelling public need that justifies the abridgment of the right of privacy of Stanford student athletes that is effected by the NCAA drug testing program. The superior court’s determination to this effect is sound.
Recall that what is demanded to satisfy the standard is a “need” on the part of the intruding party that is both “compelling” and “public.” It must extend to the means used as well as the interests furthered. It is “compelling” if it is actually required by the intruding party under all the circumstances. It is “public” if it is deemed valid by the community at large.
There are accordingly two questions that raise themselves in the analysis. Is there a “compelling” need by the NCAA for its drug testing program? If so, is there a “public” need? Since, as will appear, the first question must be answered in the negative, the second question need not be resolved.
*96There must be some doubt that the interests furthered by the NCAA drug testing program are “compelling.”
The stated objectives of the program, as quoted above, are two in number. One is to promote “fair and equitable competition.” The other is to protect the “health and safety of the student-athletes” who do, or might, ingest drugs.
In the abstract, the interests underlying the goal of “fair and equitable competition” may be asserted to be “compelling.” For competition is the very “product” that the NCAA markets. (NCAA v. Board of Regents of Univ. of Okla. (1984) 468 U.S. 85, 101-102 [82 L.Ed.2d 70, 84, 104 S.Ct. 2948].)
So too the interests underlying the goal of the “health and safety of the student-athletes” who do, or might, ingest drugs. It is they who actually turn out the “product” in question.
The question, however, proves to be debatable.
On closer examination, the promotion of “fair and equitable competition” does not seem “compelling.” (Cf. University of Colorado v. Derdeyn (Colo. 1993) 863 P.2d 929, 945-946 [holding that “although the integrity of’ a state university’s “athletic program is . . . a valid and commendable [interest], it does not seem to be very significant for Fourth Amendment purposes”].) If it were, there would be a “compelling” interest for every actor in making or doing whatever it happens to make or do.
Neither does the “health and safety of the student-athletes” who do, or might, ingest drugs seem “compelling.” Otherwise, reasoned the superior court, “all students and all people could be drug tested for their own good, even if they were not suspected of drug use.” It matters not that the student athletes are student athletes. Their status as such cannot weigh in the balance. (Cf. University of Colorado v. Derdeyn, supra, 863 P.2d 929, 938-939 [concluding, with authorities cited, that “it cannot be said that university students, simply because they are university students, are entitled to less protection th^n other persons under the Fourth Amendment”].)
In accord is the discussion in the very recent decision in University of Colorado v. Derdeyn, supra, 863 P.2d 929 (hereafter sometimes Derdeyn).
In Derdeyn, the Colorado Supreme Court struck down a drug testing program of the University of Colorado (hereafter CU) covering its own student athletes—a program similar to the NCAA’s, but if anything less *97intrusive (because of the absence of a strict requirement of visual monitoring during urine collection). The court held, inter alia, that CU’s program violated the Fourth Amendment’s right against unreasonable searches and seizures—a right similar to the right of privacy, but if anything more tolerant (see fn. 6, ante).
The Derdeyn court’s analysis of the interests furthered by CU’s drug testing program is as follows.
“We begin our consideration of these interests by observing that suspicionless urinalysis-drug-testing by the government has been upheld in numerous cases, and in many of those cases, courts have characterized the relevant government interests as ‘compelling.’ E.g., Skinner [v. Railway Labor Executives’ Assn.] 489 U.S. [602,] 628 [(1989)] [103 L.Ed.2d 639, 667, 109 S.Ct. 1402] (government has ‘compelling’ interest in testing railroad employees whose ‘duties [are] fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences’); [Treasury Employees v.] Von Raab, 489 U.S. [656,] 670 [(1989)] [103 L.Ed.2d 685, 705, 109 S.Ct. 1384] (government has ‘compelling interest in ensuring that front-line [drug] interdiction personnel [in the United States Customs Service] are physically fit, and have unimpeachable integrity and judgment’); id. at 677 [130 L.Ed.2d at page 702] (government has a compelling interest in protecting truly sensitive information from those who might compromise such information); id. at 679 [103 L.Ed.2d at pages 710-711] (government has ‘compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation’s borders or the life of the citizenry’); [National Federation of Federal Employees v.] Cheney, 884 F.2d [603,] 610 [280 App.D.C. 164] [(D.C. Cir. 1989)] (government has a ‘compelling safety interest in ensuring that the approximately 2,800 civilians who fly and service its airplanes and helicopters are not impaired by drugs’). However, the Supreme Court has not held that only a ‘compelling’ interest will suffice, see Skinner, 489 U.S. at 624 [103 L.Ed.2d at pages 664-665]; cf. Von Raab, 489 U.S. at 666 [103 L.Ed.2d at pages 702-703], and some courts have upheld suspicionless urinalysis-drug-testing by the government without finding a compelling interest. E.g., Dimeo [v. Griffin] 943 F.2d [679,] 681, 683, 685 [(7th Cir. 1991) (en banc)] (explaining that decreasing levels of intrusiveness require decreasing levels of government justification, declining to characterize as compelling the government’s interest in protecting professional jockeys, starters, and outriders from injuring one another at the race track, characterizing the state’s financial interest as ‘substantial,’ and holding that these two interests outweigh ‘the very limited privacy interests]’ of professional jockeys, starters, and outriders); International Bhd. of Elec. Workers, Local *981245 v. Skinner, 913 F.2d 1454, 1462, 1463, 1464 (9th Cir. 1990) (finding that the government has a ‘great’ interest in the safety of the natural gas and hazardous liquid pipeline industry, and holding that this ‘strong’ interest is sufficient to justify random urinalysis testing of pipeline workers). Hence, rather than trying to characterize CU’s interests as ‘compelling,’ ‘strong,’ ‘substantial,’ or of some lesser degree of importance, we think it is more instructive simply to compare them with other types of commonly asserted interests that have been held sufficient or insufficient to justify similar intrusions.
“Our review of the cases in this area supports the conclusion of the Ninth Circuit Court of Appeals in Local 1245 v. Skinner, a case involving a program for random drug testing of employees, absent individualized suspicion, that ‘the concern for public safety animates the general acceptance of drug testing by courts.’ Local 1245 v. Skinner, 913 F.2d at 1462 (citing as support for this proposition Skinner, Von Raab, and cases from the Third, Fourth, Eighth, and District of Columbia Circuits); see also O’Keefe v. Passaic Valley Water Comm’n, 253 N.J.Super. 569, 602 A.2d 760, 763 (A.D. 1992) (reading Skinner and Von Raab as holding that ‘the government may nevertheless require drug testing [absent reasonable suspicion] without running afoul of the proscriptions of the Fourth Amendment in those circumstances in which the government’s special and compelling need to protect the public safety outweighs the employee’s privacy interest’). For example, courts have upheld suspicionless urinalysis-drug-testing of Army-employed civilian air traffic controllers, pilots, aviation mechanics, aircraft attendants, police, and guards, Cheney, 884 F.2d at 610-11, 612-13; civilian employees of a chemical weapons plant who ‘have access to areas ... in which experiments are performed with highly lethal chemical warfare agents,’ Thomson v. Marsh, 884 F.2d 113, 114 (4th Cir. 1989) (per curiam); drivers, mechanics and attendants whose primary duty is the daily transportation of handicapped children on school buses, Jones v. Jenkins, 878 F.2d 1476, 1477 [279 App.D.C. 19] (D.C. Cir. 1989) (per curiam), modifying Jones v. McKenzie, 833 F.2d 335 [266 App.D.C. 85] (D.C. Cir. 1987); bus or commercial truck drivers who operate ‘enormous’ trucks such that ‘a single mistake in judgment or momentary lapse in attention can have devastating consequences for other travelers,’ International Bhd. of Teamsters v. Department of Transp., 932 F.2d 1292, 1304 (9th Cir. 1991); ‘scrub techs’ in public hospitals whose duties include bringing patients to the operating room, setting up the sterile field, laying out the proper instruments, and assisting during surgery, Kent v. Claiborne County Hosp., 763 F.Supp. 1362, 1364, 1367 (S.D. Miss. 1991); employees holding top secret national security clearances, Harmon v. Thornburgh, 878 F.2d 484, 491-92 [278 App.D.C. 382] (D.C. Cir. 1989); county correctional employees with regular *99access to prisoners or weapons, Taylor v. O’Grady, 888 F.2d 1189, 1199, 1901 (7th Cir. 1989); and police officers who carry firearms or participate in drug interdiction efforts, Guiney v. Roache, 873 F.2d 1557, 1558 (1st Cir. 1989) (per curiam). At the same time, courts have found insufficient governmental interests to uphold suspicionless urinalysis-drug-testing of high-school students who participate in extracurricular activities, Brooks [v. East Chambers Consol. Ind. School Dist.] 730 F.Supp. [759,] 764-66 [(S.D. Tex. 1989)]; United States Department of Justice employees who are prosecutors in criminal cases and other employees who have access to grand jury proceedings, Harmon, 878 F.2d at 496; county correctional employees who have no reasonable opportunity to smuggle narcotics to prisoners and no access to firearms, Taylor, 888 F.2d at 1201; civilian laboratory workers at the Army’s forensic Drug Testing Laboratories, Cheney, 884 F.2d at 613, 615; civilian employees in the chain of custody process for biochemical testing at the Army’s forensic Drug Testing Laboratories, id.; and water meter readers who must enter customers’ homes in order to read the meters, O’Keefe, 602 A.2d at 764. In addition, courts have questioned the propriety of suspicionless testing of secretaries, engineering technicians, research biologists, and animal caretakers who work at chemical and nuclear facilities, Cheney, 884 F.2d at 611; police department personnel who do not carry firearms or participate in drug interdiction efforts, Guiney, 873 F.2d at 1558; heads of purchasing departments in hospitals who have ‘vital and important responsibility essential to the proper supply of medical materials,’ Kemp, 763 F.Supp. at 1367; and United States Customs Service employees who are required to handle classified material, Von Raab, 489 U.S. at 677 [103 L.Ed.2d at p. 703],
“. . . [Thus,] the great majority of cases following Skinner and Von Raab clearly militate[s] against the conclusion that CU’s program is a reasonable exercise of state power under the Fourth Amendment. This is so despite the fact that CU’s interest in protecting the health and safety of its intercollegiate athletes ... is unquestionably significant.” (University of Colorado v. Derdeyn, supra, 863 P.2d at pp. 943-945, fn. omitted.)14
Let us now go back to the case at bar and the NCAA drug testing program.
It must be emphasized that whether or not interests are “compelling” is determined not in the abstract but under all the circumstances.
*100When, as here, the interests go to avoiding or minimizing a certain harm, the issue must be resolved with an eye thereto. Accordingly, it may be stated as a rule of thumb that if the harm is very grave, the interests may be considered “compelling,” and if it is insubstantial, they may not.
The interests underlying the NCAA drug testing program go to avoiding or minimizing the harm threatened by the use of drugs by student athletes, both for their own good and for the good of competition.
The superior court expressly found that the “amount of drug abuse by student-athletes in the United States is insignificant to virtually non-existent.” “The minimal evidence of drug use is almost entirely limited to anabolic steroid use by certain football players . . . That means, of course, that there was no significant drug abuse to be deterred by any drug testing program to be established by the NCAA. The superior court impliedly found that the NCAA was, or should have been, aware of the foregoing when it established its drug testing program: The NCAA “voted to adopt the program. The reports upon which the NCAA relied were introduced here. They do not support the action taken.” Because there was no significant drug abuse to be deterred before any NCAA drug testing program was established, the absence of such abuse cannot be attributed to the NCAA drug testing program that was later established. Ante hoc, ergo non propter hoc.
The superior court found: “[Tjhere is no evidence that drug use in athletic competition is endangering the health and safety of student-athletes.” Further, “[t]here was no evidence that any student-athlete has ever injured anyone else as a result of drug use.”
The superior court also found: “The evidence does not establish that any of the drugs on the banned list wiil actually enhance the performance of an athlete in the NCAA sports.” “At best, the possible performance enhancement of steroids is a scientific controversy which will not be resolved in the foreseeable future. . . . [I]t is clear that steroids do not enhance aerobic performance.” “The evidence is that, with the possible exception of steroid use in football, drugs are not perceived by college athletes and coaches to enhance college athletic performance .... Even for steroid use, the ‘perception’ is that it might only help certain types of positions in football.”
In view of these findings, the interests underlying the NCAA drug testing program in avoiding or minimizing the harm threatened by the use of drugs by student athletes cannot be held to be “compelling.” (Cf. National Treasury Employees Union v. Watkins (D.D.C. 1989) 722 F.Supp. 766, 770 *101[concluding under the Fourth Amendment that a government employer’s “interest in randomly testing [certain] employees” for drug use “is sharply undercut by the complete absence of any history of drug-related” incidents].)
Even if the interests furthered by the NCAA drug testing program could be considered “compelling,” the same cannot be said of the means used.
As stated, the central mechanism of the NCAA drug testing program is suspicionless, visually monitored urine collection.
Is visually monitored urine collection actually required? The superior court found that it was not. It could not have been clearer on the point: “Direct monitoring of an athlete urinating is not necessary to ensure a valid sample.” And again: “It is not necessary to scrutinize the athletes while urinating.” The finding was squarely based on the testimony of Ronald Heitzinger, one of the NCAA’s expert witnesses. Heitzinger stated that he had heard of a collection device “which is basically a beaker or some kind of receptacle into which the urine sample is placed which contains a thermometer so that you can detect whether or not someone is using their own urine as opposed to trying to cheat [with] someone else’s urine[.]” Indeed, he admitted that he himself had “developed] a method for checking [a] urine sample that did not require actually monitoring the person giving urine ...”
Is suspicionless urine collection actually required? The superior court found that it was not.
Note the superior court’s findings, quoted above, that the “amount of drug abuse by student-athletes in the United States is insignificant to virtually non-existent”; that the “minimal evidence of drug use is almost entirely limited to anabolic steroid use by certain football players”; and that the only “possible exception” to the general perception among “college athletes and coaches” that drugs do “not. . . enhance college athletic performance” is the case of “steroid use in football.”
The reasoning underlying the superior court’s finding against suspicion-less urine collection is this: “A drug testing program for anabolic steroids based on reasonable suspicion would accurately detect many of those using steroids . . . .” “There are factors which can give rise to a clinical suspicion of use of anabolic steroids, including large increases in weight in a short period of time, aggressive behavior, pimples, body odor, changing hair patterns and others.” These “factors” would surely be noticed. As was generally observed, student athletes are subject to relatively strict regulation and close supervision in their lives and activities, and function in a relatively communal environment.
*102One additional comment. It seems plain that the means used to further any given interests cannot be deemed to be “compelling” if they are ineffective. (See City of Santa Barbara v. Adamson, supra, 27 Cal.3d at p. 132 [implying that the means used must “truly and substantially help effect” the interests in question]; cf. Delaware v. Prouse (1979) 440 U.S. 648, 659 [59 L.Ed.2d 660, 671, 99 S.Ct. 1391] [implying that under the Fourth Amendment the “mechanism” must be “productive” in order “to justify the intrusion”].) The superior court found the means here to be such. Its very words are these: “The NCAA’s drug testing program is not effective in reaching its stated goals of clean and equitable postseason competition and protecting the health and safety of student-athletes.”
To summarize: The record in this proceeding “will be searched in vain for real evidence of a real problem [among student athletes] that will be solved by” the NCAA drug testing program. (Treasury Employees v. Von Raab (1989) 489 U.S. 656, 681 [103 L.Ed.2d 685, 712, 109 S.Ct. 1384] (dis. opn. of Scalia, J.).)15
*103The only question remaining pertains not to the right of privacy under the California Constitution but to the commerce clause of the United States Constitution. With careful analysis, the superior court determined that the NCAA drug testing program was not immunized by the federal constitutional provision. After independent review, the Court of Appeal agreed. Having brought the same scrutiny to bear, I come to the same conclusion.
Ill
In conducting an analysis that is completely novel, the majority adopt what must be termed a balanced approach: they do equal violence to both the law and the facts.
As to the law. The majority appear to take a position to the following effect: “The ‘compelling public need’ standard does not exist. If it does exist, it does not apply to nongovernmental actors. If it does apply to such actors, it operates as to them only with regard to autonomy privacy.” As will appear, this is not mere “revisionism,” but creation ex nihilo.
Is it true that the “compelling public need” standard does not exist? No.
The ballot arguments on Proposition 11 establish the “compelling public need” standard. The argument in favor of the measure declares: “The right of privacy . . . should be abridged only when there is compelling public need.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments *104to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27.) The rebuttal to the argument against the measure acknowledges that the right of privacy is “limited,” but “limited [only] by ‘compelling public necessity’ . . . .” (id., rebuttal to argument against Prop. 11, p. 28.)
The case law is in accord. (See fn. 2, ante; see especially Long Beach City Employees Assn. v. City of Long Beach, supra, 41 Cal.3d at p. 948 & fn. 12 (dictum); Conservatorship of Valerie N., supra, 40 Cal.3d at p. 164; People v. Stritzinger, supra, 34 Cal.3d at p. 511; Doyle v. State Bar, supra, 32 Cal.3d at pp. 19-20 (per curiam); City of Santa Barbara v. Adamson, supra, 27 Cal.3d at pp. 131-134; Loder v. Municipal Court, supra, 17 Cal.3d at p. 864; White v. Davis, supra, 13 Cal.3d at pp. 761, 775; Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 20; Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at p. 1046; Cutter v. Brownbridge, supra, 183 Cal.App.3d at p. 843; Porten v. University of San Francisco, supra, 64 Cal.App.3d at p. 832.)
In a word, far from nonexistent, the “compelling,public need” standard is actually “existing precedent.” (Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 20.)
It is altogether remarkable that the majority attempt to deny the existence of the “compelling public need” standard. They are defeated by their own words.
Concerning the coverage of the right of privacy as revealed in the ballot arguments on Proposition 11, the majority conclude: “Reading this language, a reasonable voter would most likely have concluded he or she was casting a ballot to safeguard his or her personal privacy against private as well as government entities. After the case was so presented, the voters were persuaded. To remove by judicial construction a significant part of what the voters desired would amount to an electoral ‘bait and switch.’ ” (Maj. opn., ante, at p. 20, fn. omitted.)
By parity of reasoning, the majority should have arrived at a similar conclusion concerning the “compelling public need” standard as revealed in the ballot arguments on Proposition 11. “Reading this language, a reasonable voter would most likely have concluded he or she was casting a ballot to safeguard his or her personal privacy from abridgment except for compelling public need. After the case was so presented, the voters were persuaded. To remove by judicial construction a significant part of what the voters desired would amount to an electoral ‘bait and switch.’ ”
Next, is it true that the “compelling public need” standard does not apply to nongovernmental actors? Again, no.
*105The ballot arguments on Proposition 11 suggest a single standard for use against all abridgments of the right of privacy, that of “compelling public need.” That is shown above. Further, they make plain that such abridgments may be effected by nongovernmental actors as well as governmental actors. Although they speak much of “government,” “tax return[s]," and “drivers’ license[s],” they also speak much of “business,” “credit card[s],” and “life insurance polic[ies].” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27.)
Here too, the case law is in accord. (See fn. 2, ante, see especially Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 20; Porten v. University of San Francisco, supra, 64 Cal.App.3d at p. 832.)
The majority fabricate three reasons to support a standard for nongovernmental actors lower than that of “compelling public need.” None is substantial.
“First, the pervasive presence of coercive government power in basic areas of human life typically poses greater dangers to the freedoms of the citizenry than actions by private persons.” (Maj. opn., ante, at p. 38, italics in original.)
The people who voted for Proposition 11 did not share that view. To judge from the ballot arguments on the measure, they deemed nongovernmental actors to be no less threatening than governmental actors. To quote, informational privacy is guaranteed against the “collecting and stockpiling [of] unnecessary information about us” by “government and business interests”; the “proliferation of government and business records over which we have no control”; the “loss of control over the accuracy of government and business records on individuals”; and the “opening]” of a “dossier” and the “sketching]” of an “information profile” by government for each “tax return,” “job” “interview,” and “drivers’ license” and the “open[ing]” of a “dossier” and the “sketching]” of an “information profile” by business for each “credit card,” “life insurance policy,” and “job” “interview.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27, italics added.)
But even if the people who voted for Proposition 11 considered governmental actors to be more threatening than nongovernmental actors, such a fact would not matter for purposes here. The “compelling public need” standard is applied against actual abridgments of the right of privacy, not against the power to abridge. Let us assume for argument’s sake that *106nongovernmental actors possess less of that power. Is that a reason to scrutinize their conduct more tolerantly when they successfully wield whatever power they have to effect an actual abridgment? The question answers itself.
“Second, ‘an individual generally has greater choice and alternatives in dealing with private actors than when dealing with the government.’ ” (Maj. opn., ante, at p. 38, italics in original.)
That may be. But so what? The fact that an individual may have more freedom with regard to nongovernmental actors may mean that he can more readily consent to conduct on their part that would otherwise have amounted to an abridgment of his right of privacy. But it does not mean that the individual should be forced to bear an actual abridgment of his right of privacy with more tolerance simply because it was effected by a nongovernmental actor.
“Third, private conduct, particularly the activities of voluntary associations of persons, carries its own mantle of constitutional protection in the form of freedom of association.” (Maj. opn., ante, at p. 39, italics in original.)
What this means is hard to say. It seems to suggest that each and every nongovernmental actor has a “right of privacy” to deny any individual his right of privacy in any circumstance. That cannot be. As a general matter, the recognition of such a “right of privacy” in nongovernmental actors would bestow on them a “right” to conduct themselves with impunity. More particularly, it would grant the NCAA a “right” to watch Stanford student athletes while they urinate. To so transmogrify the right of privacy into a “right of voyeurism” is absurd. (See maj. opn,, ante, at pp. 35-36 [stating that the “ballot arguments” “do not purport to create any unbridled right of personal freedom of action”].)
Finally, is it true that the “compelling public need” standard operates as to nongovernmental actors only with regard to autonomy privacy? Yet again, no.
As stated, the ballot arguments on Proposition 11 suggest a single standard for use against all abridgments of the right of privacy, that of “compelling public need,” and make plain that such abridgments may be effected by nongovernmental actors as well as governmental actors. That is shown above. Further, they demonstrate that such abridgments may involve not only autonomy privacy but also informational privacy and privacy properly *107so called. For privacy properly so called, they refer simply to the “right to be left alone.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27.) For informational privacy, they speak again and again of “data,” “dossiers,” “records," “profiles,” “information,” etc. (Id., pp. 26-27.) Indeed, it was informational privacy that was the “moving force behind” the measure. (White v. Davis, supra, 13 Cal.3d at p. 774.)
Here too, the case law is in accord. (See fn. 5, ante; see especially Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at pp. 15-20.)
It is plain that the majority’s refusal to follow the law is driven by a fear that the “compelling public need" standard is always applicable whenever any right of privacy is asserted and that it is always fatal whenever it is applied. Of course, even if the test were such, it would still have to be employed. But it is not. As explained above, the “compelling public need" standard is triggered only when an established right of privacy is abridged. Apparently, a test of reasonableness may be used when such a right is adversely affected short of abridgment. (Schmidt v. Superior Court, supra, 48 Cal.3d at pp. 389-390; Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at pp. 1046-1048; Miller v. Murphy, supra, 143 Cal.App.3d at pp. 343-346.) And obviously, no scrutiny at all is called for when the “right of privacy” is merely Active. (See People v. Privitera, supra, 23 Cal.3d at pp. 709-710; but see id. at p. 702 [stating that the “appropriate standard of review . . . is the rational basis test”].) Last, and perhaps most important, it must be noted that even within its proper sphere, the “compelling public need” standard is not always fatal. (See Loder v. Municipal Court, supra, 17 Cal.3d at pp. 864-877.)
The majority’s refusal to follow the law does not simply result in the rejection of the “compelling public need” standard, which was intended to make the right of privacy a “legal and enforceable right” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 26, underscoring omitted) and, unsurprisingly, constituted “existing precedent” until this very day (Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 20). But even worse, it leads to the stitching together of a kind of “rational basis” test. Such a test is contrary to authority, being appropriate for an interest that is merely legitimate as opposed to a “right” that is truly “fundamental,” like the right of privacy. (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27.) Moreover, since it is almost infinitely *108tolerant of any intrusion no matter how great, it all but renders the right of privacy nugatory.16
Let us turn from the law to the facts. As the majority eye the goal they have selected, viz., the validation of the NCAA drug testing program, they recognize that the superior court’s findings form an insuperable obstacle in their course. Only one thing to do: remove the findings by any and every means.
To begin with, say the majority, the superior court’s findings fall of their own weight because they are based on an erroneous view of the law.
That is wrong.
We may assume for argument’s sake that the superior court’s view of the law was in fact erroneous. Of course, in fairness to the superior court we should hasten to add that its error was in adhering to the law as it then stood instead of foreseeing the novelties the majority have today put in its place.
Be that as it may, it is difficult to discern how any error on the part of the superior court could have affected its crucial findings. These concern the establishment of historical or physical facts which underlie such questions as whether there exists a right of privacy on the part of Stanford student athletes that is implicated in the NCAA drug testing program and, if so, whether the right is abridged by the program. On these issues, Hill and McKeever and Stanford bore the burden of proof at trial.
Next, say the majority, even if the superior court’s findings do not fall of their own weight as based on an erroneous view of the law, they lack the support of substantial evidence.
That is wrong as well.
To avoid extending our discussion beyond need, let us select a single example.
The superior court found: “Direct monitoring of an athlete urinating is not necessary to ensure a valid sample.” “It is not necessary to scrutinize the *109athletes while urinating.” The NCAA had apparently borne the burden of proof on this question. No error there. Even the majority concede that “[t]he NCAA was . . . required to justify its use of direct monitoring of urination.” (Maj. opn., ante, at p. 50.)
How then can the majority assert that this finding was not supported by substantial evidence? Ronald Heitzinger, one of the NCAA’s expert witnesses, testified that he had heard of a collection device “which is basically a beaker or some kind of receptacle into which the urine sample is placed which contains a thermometer so that you can detect whether or not someone is using their own urine as opposed to trying to cheat [with] someone else’s urine[.]” Heitzinger further testified that he himself had “developed] a method for checking [a] urine sample that did not require actually monitoring the person giving urine . . . Any claim that evidence of “hearing” is insufficient must fall in the face of evidence of “doing.” If Heitzinger’s testimony had been open to question, it would surely have been challenged by the NCAA. For at trial the NCAA bore a burden of proof to the contrary.
But even if the superior court’s findings lacked the support of substantial evidence—which they do not—the majority are not justified in reversing the judgment of the Court of Appeal with directions to remand to the superior court with directions to render judgment in favor of the NCAA.
The majority state: “Although we could remand this case for reconsideration in light of the applicable rules of law, there is no reason to do so. Uncontradicted evidence in the record demonstrates as a matter of law the constitutional validity of the NCAA’s program.” (Maj. opn., ante, at p. 47.)
According to the majority, the “evidence in the record” was developed under burdens of proof that they now hold erroneous, burdens of proof that they now conclude call for too much from the NCAA and too little from Hill and McKeever and Stanford.
In such a situation, how can the “evidence in the record” be relied on to the detriment of Hill and McKeever and Stanford? Without any fault on their part, they satisfied the demands placed on them by the superior court. Why do the majority not give them an opportunity to meet the much greater requirements they now impose on them for the first time? It must be that they recognize this controlling fact: under what they today make the “applicable rules of law,” privacy claims are practically doomed to fail. Nevertheless, fairness insists on an opportunity. It should not be denied.
*110IV
Today, the majority take away from Stanford student athletes—and all other Californians—the right of privacy guaranteed by the California Constitution. At the same time, they grant to the NCAA—and any other intruding party—a “right of publicity” based on nothing more than their own views of “good” and “bad” “policy.”
The NCAA is now free to use in California the weapons it had chosen for its “war on drugs.” “What better way to show that” it “is serious about its ‘war on drugs’ than to subject” student athletes “to this invasion of their privacy and affront to their dignity? To be sure, there is only a slight chance that it will prevent some serious . . . harm resulting from” student athlete “drug use, but it will show to the world that” it “is ‘clean,’ and—most important of all—will demonstrate” its “determination ... to eliminate this scourge of our society! I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for [a] worthy . . . cause . . . , cannot” justify an abridgment of the right of privacy. (Treasury Employees v. Von Raab, supra, 489 U.S. at pp. 686-687 [103 L.Ed.2d at pp. 715-716] (dis. opn. of Scalia, J.).)
Accordingly, I dissent.
To the contrary is Professor J. Clark Kelso. He asserts that the “premise” that the “ballot argument is an important part of the legislative history of Proposition 11 “is bad law . . . .” (Kelso, California’s Constitutional Right to Privacy (1992) 19 Pepperdine L.Rev. 327, 433.) He is incorrect. His point is without adequate support in reason. Moreover, as he himself is compelled to admit, it is against the overwhelming weight of authority as expressed in a “long line of supreme court decisions.” (Ibid.) He also asserts that the “premise” that the “ballot argument is the only piece of significant legislative history for” the measure “is simply wrong as a matter of fact ...” (Ibid.) He is again incorrect. What he seeks to create can only be called a “secret legislative history,” which is “stored in the state archives” and “not easy to come by” (id. at p. 333). It embraces “fragments” of the “legislative history” of what was to *75become Proposition 11. (Ibid.) This “secret legislative history” has no conceivable bearing on the crucial issue of the intent of the people who voted for the measure. In Professor Kelso’s view, however, it speaks to the question of coverage. I shall turn to that question in due course. (See fn. 8, post.)
Generally in accord on the status of the right of privacy are, for example, White v. Davis, supra, 13 Cal.3d at page 761 (“[t]hough the amendment does not purport to invalidate all. . . information gathering, it does require that the government establish a compelling justification for such conduct”); id. at page 775 (“the amendment does not purport to prohibit all incursion into individual privacy but rather . . . any such intervention must be justified by a compelling interest”); Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656-658 [125 Cal.Rptr. 553, 542 P.2d 977] (the need for balancing); Loder v. Municipal Court (1976) 17 Cal.3d 859, 864 [132 Cal.Rptr. 464, 553 P.2d 624] (expressly recognizing the requirement of a “ ‘compelling interest’ ” to justify an “ ‘intervention’ ” as to the right of privacy and impliedly recognizing the need for balancing); People v. Privitera (1979) 23 Cal.3d 697, 702 [153 Cal.Rptr. 431, 591 P.2d 919, 5 A.L.R.4th 178] (when a “right of privacy” claimed against a governmental actor is not established but only “asserted,” i.e., when it “is not encompassed by the right of privacy embodied in . . . the state Constitution[ ],” it is not subject to the “compelling state interest test" (italics in original)); id. at pages 709-710 (to similar effect); City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 131 [164 Cal.Rptr. 539, 610 P.2d 436, 12 A.L.R.4th 219] (“ ‘the amendment does not purport to prohibit all incursion into individual privacy but rather . . . any such intervention must be justified by a compelling [public] interest’ ” (brackets and bracketed material in Adamson, ellipsis added)); id. at page 133 (implying that the means used are not actually required when “less restrictive” means are available); Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 275 [172 Cal.Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118] (plur. opn.) (the right of privacy is “clearly among the most intimate and fundamental of all constitutional rights”); Doyle v. State Bar (1982) 32 Cal.3d 12, 19-20 [184 Cal.Rptr. 720, 648 P.2d 942] (per curiam) (impliedly acknowledging that a “ ‘compelling interest’ [is] required to justify invasion of *80privacy” and expressly acknowledging that balancing is needed); People v. Stritzinger (1983) 34 Cal.3d 505, 511 [194 Cal.Rptr. 431, 668 P.2d 738] (“[i]t is . . . well established . . . that the right of privacy is not absolute, but may yield [to governmental intrusion] in the furtherance of compelling state interests”); Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 164 [219 Cal.Rptr. 387, 707 P.2d 760] (a governmental “restriction” on the right of privacy “must be justified by a compelling state interest”); Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 948 & fn. 12 [227 Cal.Rptr. 90, 719 P.2d 660] (governmental intrusion “upon the constitutionally protected zone of individual privacy” “must be justified by a compelling governmental interest”) (dictum); Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 [239 Cal.Rptr. 292, 740 P.2d 404] (the need for balancing); Schmidt v. Superior Court (1989) 48 Cal.3d 370, 389-390 [256 Cal.Rptr. 750, 769 P.2d 932] (implying that conduct adversely affecting, but not abridging, an established right of privacy may be allowed if reasonable); Schnabel v. Superior Court (1993) 5 Cal.4th 704, 712 [21 Cal.Rptr.2d 200, 854 P.2d 1117] (the need for balancing); Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 832 [134 Cal.Rptr. 839] (an intruding nongovernmental party must show a “compelling public interest” to justify the intrusion); Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 843 [228 Cal.Rptr. 545] (recognizing both the “compelling interest” requirement and the need for balancing); Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1046 [264 Cal.Rptr. 194] (same); id. at page 1047 (“even if challenged conduct has some impact on the right of privacy, as long as that right is not substantially burdened or affected, justification by a compelling interest is not required”; “[i]nstead, the operative question is whether the challenged conduct is reasonable”); Semore v. Pool (1990) 217 Cal.App.3d 1087, 1096 [266 Cal.Rptr. 280] (“privacy, like the other inalienable rights listed first in our Constitution, is . . . fundamental”); Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 20 [267 Cal.Rptr. 618] (holding that any “incursion into individual privacy . . . must be justified by a compelling interest,” and that the “compelling interest test” constitutes “existing precedent”); Miller v. Murphy (1983) 143 Cal.App.3d 337, 343-346 [191 Cal.Rptr. 740] (to the effect that conduct adversely affecting, but not abridging, an established privacy right may be allowed if reasonable).
In Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, the plurality opinion articulates a test, derived from the pre-Proposition 11 case of Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 505-507 [55 Cal.Rptr. 401, 421 P.2d 409], under which “the state must demonstrate (1) ‘that the imposed conditions relate to the purposes of the legislation which confers the benefit or privilege’; (2) that ‘the utility of imposing the conditions . . . manifestly outweigh[s] any resulting impairment of constitutional rights’; and (3) that there are no ‘less offensive alternatives’ available for achieving the state’s objective.” (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at p. 258 (plur. opn.).) The plurality opinion does not purport to substitute this test for the “compelling public need” standard. Rather, it simply uses it as a “framework for judicial analysis of restrictions . . . which exclude from government benefit programs potential recipients solely on the basis of their exercise of constitutional rights.” (Id. at p. 265 (plur. opn.); accord, Robbins v. Superior Court (1985) 38 Cal.3d 199, 213 [211 Cal.Rptr. 398, 695 P.2d 695].)
The familiar observation of Professor Gerald Gunther, that the Warren Court’s “aggressive ‘new’ equal protection” involved “scrutiny that was ‘strict’ in theory and fatal in fact” (Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection (1972) 86 Harv.L.Rev. 1, 8), is without import here. It does not bear on the right of privacy. Moreover, it was circulated in published form only after the November 7, 1972, General Election.
Generally in accord on the source of the right of privacy are, for example, People v. Porras (1979) 99 Cal.App.3d 874, 879 [160 Cal.Rptr. 627] (the “adoption of the amendment was intended to strengthen the right of privacy”); Cutter v. Brownbridge, supra, 183 Cal.App.3d at page 842 (implying that the right of privacy embraces the “interests protected by the common law” but also “reaches beyond” them).
Generally in accord on the definition of the right of privacy are, for example, White v. Davis, supra, 13 Cal.3d at page 774 (“ ‘The right of privacy is the right to be left alone.’ ”); City of Santa Barbara v. Adamson, supra, 27 Cal.3d at page 130 (same); Robbins v. Superior Court, supra, 38 Cal.3d at page 212 (same); Long Beach City Employees Assn. v. City of Long Beach, supra, 41 Cal.3d at page 943 (same); People v. Porras, supra, 99 Cal.App.3d at page 879 (same); Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at page 1040 (same).
Generally in accord on the substance of the right of privacy are, for example, White v. Davis, supra, 13 Cal.3d at page 774 (the “general concept of privacy relates ... to an enormously broad and diverse field of personal action and belief’; the “moving force behind the new constitutional provision was” informational privacy); City of Santa Barbara v. Adamson, supra, 27 Cal.3d at page 129 (same as to former point); id. at page 130 (autonomy privacy: the “right of privacy” in “one’s family” and also in “one’s home”); Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at pages 275, 284 (plur. opn.) (autonomy privacy: a woman’s “right to decide for herself whether to parent a child,” and “whether to bear a child or to have an abortion”); Robbins v. Superior Court, supra, 38 Cal.3d at page 213 (the “right to privacy has been held to protect a diverse range of personal freedoms”); Conservatorship of Valerie N., supra, 40 Cal.3d at p. 163 (autonomy privacy: the *83“right of a woman to choose whether or not to bear a child and thus to control her social role and personal destiny” is a “fundamental right protected by” the right of privacy); Long Beach City Employees Assn. v. City of Long Beach, supra, 41 Cal.3d at page 948 (informational privacy and privacy properly so called: the “coercive collection of mental thoughts, conditions and emotions" “inherently intrude[s] upon the constitutionally protected zone of individual privacy”) (dictum); Cutter v. Brownbridge, supra, 183 Cal.App.3d at page 842 (informational privacy: the “ ‘zones of privacy’ created by article I, section 1, extend to the details of one’s medical history”); Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1489-1493 [232 Cal.Rptr. 668, 69 A.L.R.4th 1027] (stating that the “ ‘right to privacy has been held to protect a diverse range of personal freedoms’ ”; suggesting that both informational privacy and privacy properly so called are implicated in the intrusion by a television news camera into a residence in order to film the efforts of paramedics to save the life of a heart attack victim); Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at page 1046 (the “general concept of privacy can be viewed as encompassing a broad range of personal action and belief’); Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at pages 15-17 (rejecting a claim that the right of privacy protects only informational privacy, with the observation that “ ‘the right to privacy has been held to protect a diverse range of personal freedoms! ]’ ”; suggesting that both informational privacy and privacy properly so called are implicated in the collection and testing of urine); Chico Fem. Women’s Hlth. Cr. v. Butte Glenn Med. S. (E.D.Cal. 1983) 557 F.Supp. 1190, 1202 (“there is simply no indication that certain privacy rights were intended to be afforded greater protection than others”).
Generally in accord on the scope of the right of privacy are, for example, Porten v. University of San Francisco, supra, 64 Cal.App.3d at page 829 (the “elevation of the right to be free from invasions of privacy to constitutional stature was apparently intended to be an expansion of the privacy right”); Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at page 17 (same); Chico Fem. Women’s Hlth. Cr. v. Butte Glenn Med. S., supra, 557 F.Supp. at page 1203 (same). See also Kelso, California’s Constitutional Right to Privacy, supra, 19 Pepperdine L.Rev. at page 376 (observing that “[a]lthough privacy was clearly identified as an interest worthy of some legal protection [at common law], courts generally did not give privacy a privileged place or undue weight”); id. at page 423 (stating that the “secret legislative history” (see fn. 1, ante) “suggests] that the privacy clause was intended to do more than simply codify existing constitutional and common law doctrines”).
Since the “right of privacy [under the United States Constitution] in general appears to be narrower than” the right of privacy under the California Constitution (City of Santa Barbara v. Adamson, supra, 27 Cal.3d at p. 130, fn. 3; accord, Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at pp. 263, 280-281 (plur. opn.)), the Fourth Amendment in general appears to be narrower still. That is because the “federal constitutional right of privacy” is broader than the Fourth Amendment. (See Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 20 [“The constitutional right to privacy does not prohibit all incursion into individual privacy, but provides that any such intervention must be justified by a compelling interest. [Citations.] This test places a heavier burden on [the intruding party] than would a Fourth Amendment privacy analysis, in which the permissibility of a particular practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”].) In People v. Crowson (1983) 33 Cal.3d 623, 629 [190 Cal. Rptr 165, 660 P.2d 389], the lead opinion states: “/»the search and seizure context, the article I, section 1 ‘privacy’ clause has never been held to establish a broader protection than that provided by the Fourth Amendment of the United States *84Constitution or article I, section 13 of the California Constitution.” (Italics added.) Because it is qualified by the italicized phrase, the unitalicized clause is unremarkable. (See Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at p. 1043, fn. 4.)
See People v. Prather (1990) 50 Cal.3d 428, 437 [267 Cal.Rptr. 605, 787 P.2d 1012] (per Lucas, C. J.) (speaking specifically of popular initiatives but with applicability to legislative proposals as well: “In construing constitutional . . . enactments, we must give the language of the enactment ‘a liberal, practical common-sense construction which will meet changed conditions and the growing needs of the people.’ ”).
Generally in accord on the coverage of the right of privacy are, for example, Porten v. University of San Francisco, supra, 64 Cal.App.3d at pages 829-830 (the right of privacy reaches governmental and nongovernmental actors); Kinsey v. Macur (1980) 107 Cal.App.3d 265, 272 [165 Cal.Rptr. 608] (following the foregoing authority in what may, or may not, be *85dictum); Cutter v. Brownbridge, supra, 183 Cal.App.3d at page 842 (the right of privacy reaches governmental and nongovernmental actors); Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at pages 1040-1044 (same); Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at pages 17-19 (same); id. at page 20 (“we see no reason to depart from existing precedent applying the compelling interest test” even when the intruding party is a nongovernmental actor); Chico Fem. Women’s Hlth. Cr. v. Butte Glenn Med. S., supra, 557 F.Supp. at pages 1202-1203 (the right of privacy reaches governmental and nongovernmental actors). To similar, if qualified, effect is Semore v. Pool, supra, 217 Cal.App.3d at pages 1093-1094 (“the courts and commentators agree that the constitutional provision provides at least some protection against nongovernmental action”; “we have no doubt that at least some types of nongovernmental conduct can interfere with the right granted by the constitutional provision”).
In Schmidt v. Superior Court, supra, 48 Cal.3d 370, we assumed, but did not decide, that the right of privacy reaches nongovernmental as well as governmental actors (id. at p. 389), noting that “we ha[d] no occasion in th[at] case to consider under what circumstances, if any, purely private action . . . would constitute a violation of the state constitutional privacy provision” (id. at p. 389, fn. 14).
Professor Kelso reads the “secret legislative history” of what was to become Proposition 11 (see fn. 1, ante) to demonstrate that the right of privacy reaches governmental actors and nongovernmental actors cooperating with governmental actors, but not nongovernmental actors in and of themselves. (Kelso, California’s Constitutional Right to Privacy, supra, 19 Pepperdine L.Rev. at pp. 416-433.) As stated, this “secret legislative history” has no conceivable bearing on the crucial issue of the intent of the people who voted for the measure. In any event, it cannot reasonably be read as it is by Professor Kelso. At best, it shows that governmental actors are included within the provision. It does not even suggest that nongovernmental actors are excluded.
Generally in accord on the character of the right of privacy are, for example, White v. Davis, supra, 13 Cal.3d at page 776 (in the face of allegations in a complaint “staging] a prima facie violation of the state constitutional right of privacy,” the governmental defendants are “free to contest any of the allegations of the complaint as well as to designate the compelling governmental interests upon which they rely for their intrusive conduct”); Long Beach City Employees Assn. v. City of Long Beach, supra, 41 Cal.3d at page 948, footnote 12 (to “decide . . . whether [a] right of privacy was improperly violated . . . , we would inquire whether the [intruding governmental party] had demonstrated a compelling governmental interest”) (dictum); Porten v. University of San Francisco, supra, 64 Cal.App.3d at page 832 (in the face of allegations in a complaint “stat[ing] a prima facie violation of the state constitutional right of privacy,” the nongovernmental defendant “may contest any of the allegations of the complaint as well as show some compelling public interest justifying” its intrusion).
All the evidence admitted below related to the NCAA drug testing program in 1987-1988 and 1986-1987. None concerned subsequent changes. It is true that the NCAA moved the Court of Appeal to receive such evidence. The Court of Appeal, however, denied the request.
It may be noted in passing that “[f]or the inaugural issue of College Sports Magazine, 110 sports information directors (SID’s) were asked what three college athletic programs they admired most. The magazine asked the SID’s to take into account athletes’ competitive and academic success, facilities, men’s teams and women’s teams, major and non-revenue sports, and all other aspects of a well-rounded program.” (Stanford Athletics #1 (Nov. 1993) College Sports Magazine, at p. 6.) Stanford finished first with 26 first-place votes and 164 total points. The institution that came in second was far behind, with only seven first-place votes and only seventy total points. (Ibid.)
It should be noted that in conducting its analysis, the Court of Appeal applied the “compelling public need” standard through the test of Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499, 505-507. (See fn. 2, ante.) The latter is not apposite. But its use is not fatal.
Compare O’Connor v. Police Com’r of Boston (1990) 408 Mass. 324, 328 [557 N.E.2d. 1146] (drug testing of police cadets: “[W]e do not take lightly the intrusiveness of collecting a urine sample .... We accept as true, too, that the intrusiveness is increased by cadets’ being monitored in the act of urinating (a practice that helps to ensure the integrity of the urine sample).’’)
The Derdeyn court found “of only marginal relevance” (University of Colorado v. Derdeyn, supra, 863 P.2d at p. 939) the decision in Schaill by Kross v. Tippecanoe County School Corp. (7th Cir. 1988) 864 F.2d 1309, which upheld against a Fourth Amendment claim of unreasonableness a drug testing program covering student athletes and cheerleaders. Its reason was that the drug testing program in Schaill was directed against minors, who are assertedly entitled to a lower level of protection under the Fourth Amendment. Another reason is apparent. Simply put, the analysis in Schaill seems dubious. How else to explain the sustaining of a drug testing program reaching beyond student athletes to cheerleaders?
Tbe party intruded upon, of course, may consent to the conduct of the intruding party. In such a case, the former may be said to have “waived” his right of privacy or the latter may be said to have effected no intrusion. Under the Fourth Amendment, consent is valid only if it “was, in fact, freely and voluntarily given.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222 [36 L.Ed.2d 854, 859-860, 93 S.Ct. 2041], internal quotation marks omitted.) It was so given only if it was not the “product of duress or coercion, express or implied . . . .” (Id. at p. 227 [36 L.Ed.2d at pp. 862-863].) The issue of consent “is a question of fact to be determined from the totality of the circumstances.” (Ibid.) The burden rests on the intruding party to prove consent (id. at p. 222 [36 L.Ed.2d at pp. 859-860]) by a preponderance of the evidence (United States v. Matlock (1974) 415 U.S. 164, 177-178, fn. 14 [39 L.Ed.2d 242, 253-254, 94 S.Ct. 988]; People v. James (1977) 19 Cal.3d 99, 106 & fn. 4 [137 Cal.Rptr. 447, 561 P.2d 1135]). Principles no less favorable to the party intruded upon should govern here. That is because the right of privacy provides no less protection than the Fourth Amendment. (See fn. 6, ante.)
In this case, neither Hill nor McKeever even purported to consent to the NCAA drug testing program in 1987-1988. Indeed, each refused to do so.
All the same, the superior court proceeded: “ ‘Consent* to drug testing in these circumstances is a fiction.”
Responding to a “contract law” argument urged by the NCAA, the superior court reasoned: “[The] NCAA is a monopoly albeit a lawful one. It . . . regulate[s] intercollegiate athletic competition. A student who has any desire to participate in intercollegiate athletics is not free to compete under another regulatory body. The facts here show that the testing policy was unilaterally formulated by the NCAA and that student athletes have little or no means of negotiating changes or the elimination of the testing program. . . . There is no equal bargaining between the athletes and the NCAA. Without free and equal bargaining the theoretical underpinnings of contract law are vitiated.”
Implicit in the superior court’s reasoning seems a view similar to that expressed by the Derdeyn court: “It is, to be sure, only a very small percentage of college athletes whose college ‘careers’ are essential as stepping stones to lucrative contracts—or to any contract —as professional athletes. On the other hand, however, we must also recognize that many intercollegiate athletes who otherwise could not afford a college education receive athletic *103scholarships that enable them to obtain a college degree and thereby increase their earning potential. Continuation of such scholarships ... is dependent upon continued participation in the intercollegiate athletic program, which in turn requires consent to the drug-testing program. Furthermore, many intercollegiate athletes pursue professional careers as high school or college coaches, or as administrators in athletic or recreational programs. . . . While having participated in intercollegiate athletics may not be a formal requirement for such jobs, it is commonplace that applicants with experience at the intercollegiate athletic level will not be disadvantaged in seeking such jobs in comparison with those who lack such experience.” (University of Colorado v. Derdeyn, supra, 863 P.2d at p. 942.)
Under the Fourth Amendment, a finding on consent is reviewed for substantial evidence (e.g., People v. James, supra, 19 Cal.3d at p. 107), apparently as the resolution of a question of fact. Under the same constitutional provision, a determination on the possibility of valid consent may arguably be subject to independent review as the resolution of a predominantly legal mixed question of law and fact. It appears that these standards are applicable to the right of privacy as well.
Whether the superior court’s statement—“ ‘Consent’ to drug testing in these circumstances is a fiction”—is construed to embody a finding on consent or a determination on the possibility of valid consent would not matter. Such a finding would be supported by substantial evidence; such a determination would survive independent review. (Compare Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at pp. 24-25 [on the facts therein, no valid consent] with Wilkinson v. Times Mirror Corp., supra, 215 Cal.App.3d at pp. 1046-1052 [on the facts therein, valid consent].)
It may be noted in passing that among the “sources of privacy rights” at the time of Proposition 11 (maj. opn., ante, at p. 16) the majority do not include the right of privacy that we had found implied in the California Constitution in decisions such as People v. Belous (1969) 71 Cal.2d 954, 963-964 [80 Cal.Rptr. 354, 458 P.2d 194], That right embraces the “fundamental right of [a] woman to choose whether to bear children.” (Id. at p. 963.) I fear that the majority’s omission may intimate a willingness on their part to turn back the clock in this regard.