Theodore v. Delaware Valley School District

PELLEGRINI, Judge.

Louis and Mary Ellen Theodore (Parents) and them daughters, Jennifer Lynn and Kimberly Ann Theodore (Students), appeal from an order of the Court of Common Pleas of Pike County (trial court) granting the preliminary objections of the Delaware Valley School District (School District) dismissing their complaint seeking to prevent the School District from testing students under its policy of “Drug Testing and Alcohol Testing for Extracurricular Participation, Driving and Parking Permit Privileges” (Policy 227).

The School District has adopted Policy 2271 under which all middle and high school students seeking to participate in its extracurricular programs2 or obtaining permission to drive to school or park at school (driving/parking privileges) must sign or have a parent sign a contract consenting to the student’s testing for alcohol and controlled substances (testing).3 The stated purposes of the testing policy are the prevention of accidents and injuries resulting from the use of alcohol and controlled substances, and discouraging use and providing assistance programs for those students participating in extracurricular programs and students with driving/parking privileges. Because the health care of students is the sole reason for the policy, there are no criminal sanctions, ju*654venile action or school discipline as a result of the testing.4

As to the method of testing, the contract authorizes the School District to collect breath, urine and blood samples from the student for intoxicant testing throughout the course of that year.5 The testing of breath is conducted by a certified Breath Alcohol Technician using a breath-testing instrument approved by the national Highway Safety Administration. The collection of urine and blood samples is conducted by trained medical personnel in the nurse’s office and then sent to a laboratory which follows the procedures required by the Substance Abuse and Mental Health Services Administration to perform a split sample method of testing.6 The student samples cannot be used to test for any medical condition other than the presence of intoxicants,7 with any test result showing a breath alcohol concentration of 0.02 or higher8 or showing the presence of any level of controlled substances9 producing a positive test result.

If a student tests positive, a medical officer10 first notifies the parents and the student of the result after which they can make a decision to opt out of the activity and receive no further intervention from the School District.11 If the decision is *655made not to opt out of the activity, the principal and various school officials12 are notified. Upon notification, the principal is then required to hold a conference with the parents to discuss the results of the testing, and the student is required to participate in a drug/alcohol assessment with a certified evaluator. In addition to participation in the assessment, a student who tests positively for the first time is required to participate in a drug/alcohol assistance program, submit to weekly drug testing for six weeks, receive a suspension from participating in athletics, club events and performances and/or driving/parking privileges for a period of time, and must have a negative retest in order to return to the activity. A student with two offenses is suspended from participation in all extracurricular programs and from driving/parking privileges for one calendar year from the date of the offense and is required to have a negative retest in order to return to the activity. A student with three offenses is barred from all extracurricular competition and from driving/parking privileges for the remainder of his/her years in the School District.

Because of their extracurricular participation in the National Honor Society, Science Olympiad, Scholastic Bowl, tennis, swimming and track, and because they possess driving/parking privileges in the School District13 under Policy 227, Students have been subjected to mandatory urine testing to determine if they have used illegal substances. Because Policy 227 was not a generalized search of all students, but requires the testing of only those students who participate in extracurricular activities or possess driving/parking privileges without any individualized suspicion, Students brought an action before the trial court contending that Policy 227 unconstitutionally deprived them of their right to privacy in violation of the prohibition against unreasonable searches and seizures protected by Article 1, Section 8 of the Pennsylvania Constitution, and they sought injunctive relief to prevent the School District from testing students.

The School District filed preliminary objections contending that the complaint failed to set forth a cause of action because the drug testing of students was not unconstitutional as students were entrusted to the care of the School District so they had a lessened privacy interest in avoiding reasonable health measures undertaken by schools. Granting the preliminary objections and dismissing the complaint, the trial court found the drug testing constitutional because students in public schools had a reduced expectation of privacy when engaging in voluntary activities under the control of the school in its role of guardian of students in the school environment, the intrusion was minimal, students had notice of the policy, and the School District had an important interest in protecting the health care of its students. This appeal followed.14

As they did below, Students contend that Policy 227 unconstitutionally violates their right against unreasonable searches and seizures protected by Article *6561, Section 8 of the Pennsylvania Constitution15 because the testing is conducted without individualized suspicion and limited only to students who participate in extracurricular activities and who have driving/parking privileges. In response, the School District contends that because students traditionally have lowered expectations of privacy in the realm of their health care, the intrusion is minimal, students voluntarily participate in the extracurricular activities with notice of the policy, the government interest in protecting student health care is great, and the testing conducted under Policy 227 is reasonable under Article 1, Section 8 of the Pennsylvania Constitution.

I.

Article 1, Section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const. Art 1, § 8. “Although Article I, Section 8 of the Pennsylvania Constitution is similar in phraseology to that of the Fourth Amendment of the United States Constitution, ... Article I, Section 8 often provides greater protection since the core of its exclusionary rule is grounded in the protection of privacy while the federal exclusionary rule is grounded in deterring police misconduct .” Commonwealth v. Williams, 547 Pa. 577, 591, 692 A.2d 1031, 1038 (1997). Because Article 1, Section 8 serves as a safeguard of privacy interests, a search by the state must not only be based on a compelling interest, but whether the state’s interest justifies a particular intrusion depends, in part, “on whether the state’s intrusion will effect its purpose; for if the intrusion does not effect the state’s purpose, it is a gratuitous intrusion, not a purposeful one,” into the privacy interests of the individual. Stenger v. Lehigh Valley Hospital Center, 530 Pa. 426, 438, 609 A.2d 796 802 (1992). See also In Interest of M.B., 686 A.2d 877 (Pa.Cmwlth.1996).

It has long been recognized that school students do not have an unlimited right to privacy under the’ Pennsylvania Constitution because the need to protect all students, ensure school discipline, protect school property and ensure the health care of students reduces a student’s expectation of privacy while in the school environment. In re F.B., 555 Pa. 661, 726 A.2d 361 (Pa.), cert. denied, 528 U.S. 1060, 120 S.Ct. 613, 145 L.Ed.2d 508 (1999); Commonwealth v. Cass, 551 Pa. 25, 709 A.2d 350, cert. denied, 525 U.S. 833, 119 S.Ct. 89, 142 L.Ed.2d 70 (1998); Stull v. Reber, 215 Pa. 156, 64 A. 419 (1906). However, because students do not leave all of their privacy interests at the school door, Pennsylvania courts have not abandoned the need in the school setting to analyze whether the school’s interests and purposes justify the intrusion based on the specific privacy interest implicated by the search. Cass.

Over the past several years, our Supreme Court has struggled with the privacy interests of students under the Pennsylvania Constitution implicated by a search of students, albeit, unlike here', generalized searches of all students resulting in criminal consequences. In Cass, a case involving the search of school lockers for drugs, our Supreme Court was unable to agree. upon a definitive framework for the analysis of the constitutionality of general searches of the student population for contraband under the Pennsylvania Constitution. While there did not appear to be disagreement that such a search was permissible under the Fourth Amendment to *657the United States Constitution, three justices in the Opinion Announcing Judgment held that Article 1, Section 8 of the Pennsylvania Constitution then afforded students no more protection than that provided under the Fourth Amendment to the United States Constitution. The two justices in the concurrence found the concept of general searches abhorrent to Pennsylvania constitutional law; however, they agreed that such searches would be constitutional under certain conditions within the school environment given the sui generis context of that environment, while the dissent would not permit general searches under any circumstances.

More recently, in In re F.B., a case involving a “point-of entry” search of students for weapons by first a metal detector then a search of personal belongings, our Supreme Court again addressed whether a generalized search of students resulting in criminal consequences violated Article 1, Section 8 of the Pennsylvania Constitution and stated:

[I]n order to understand which factors a court should consider when reviewing the constitutionality of a school search directed at the entire student population under the Pennsylvania Constitution, we must isolate the points upon which the opinion announcing the judgment of the court and the concurring opinion [in Cass ] agreed. Having reviewed the two opinions those factors can be identified as follows: 1) a consideration of the students’ privacy interest, 2) the nature of the intrusion created by the search, 3) notice, and 4) the overall purpose to be achieved by the search and the immediate reasons prompting the decision to conduct the actual search.

555 Pa. at 667, 726 A.2d at 364-65. Because students have a lessened privacy interest while in the school environment, the generalized search of students for weapons did not involve a physical intrusion as it was akin to searches conducted at airports, students had notice of the search, and the purpose of the search to decrease violence in the schools was effectuated by the search, our Supreme Court found the search for weapons constitutional.

Where the nature of the intrusion in this case is for health care and there are only civil consequences from refusing to consent, privacy interests of the student body seem to give way to both ensuring a particular student’s health and ensuring the health of others.16 In Stull, our Supreme Court upheld the state statutory scheme requiring the vaccination of all school children with the smallpox vaccine, where a student who refused to submit to the vaccination was denied entrance to school.17 Recognizing that a vaccination may trespass on the privacy rights of the student as it is the “infliction of a disease” by injection of a substance into the student’s body, the requirement was found constitutional because the state’s police powers enabled schools to take reasonable measures to regulate the health of the students to prevent injury to self or others by containing the spread of a contagious disease.18 215 Pa. at 163, 64 A. at 421. Rely*658ing on Stull, the Commonwealth has promulgated regulations concerning the health care of all students in the general population that have required the injection of other vaccines,19 screenings for medical conditions,20 physical examinations,21 and hearing and vision testing.22

II.

What makes the present case different from In re F.B and the other cases discussed is that Policy 227 is not a generalized policy that intrudes into the privacy of all students to address the health care problem of addiction or use of drugs or alcohol. Rather, Policy 227 requires testing of only a select group of students, i.e., those students who are engaged in extracurricular activities or possess driving/parking privileges.23 Moreover, unlike the most recent pronouncements from our Supreme Court, we are not dealing with a search that can result in criminal charges being brought, but a search resulting in health care intervention by required counseling, and if refused, only the surrender of participation in extracurricular activities or driving/parking privileges. However, unlike pure health care cases, e.g., tuberculosis screening, there are criminal overtones here because a positive test would indieate that the student has committed a crime.

While no Pennsylvania cases have addressed whether searches involving a selective group of students for health care purposes based on the activity in which they engaged are constitutional under Article 1, Section 8 of the Pennsylvania Constitution, the United States Supreme Court has addressed a similar issue in Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). In Vemonia, a student challenged a policy requiring drug testing by urinalysis of only students who participated in the football team as an unconstitutional search and seizure under the Fourth Amendment to the United States Constitution.24 While acknowledging that schools may reasonably regulate the health care of the entire student body because students in general have a lowered privacy interest, the United States Supreme Court found that schools must show a special need for selective testing of students without individualized suspicion. Relying on a number of factors to uphold the random testing of only student athletes because they have a lessened privacy expectation due to their communal dressing and requirement of physical examinations, the major justification for the allowance of random testing *659was that student athletes participated in activities “where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high.” 515 U.S. at 661, 115 S.Ct. 2386. Because the selective search in Ver-nonia tested football players for drug use to prevent the risk of harm to the user or others, the Supreme Court found that the school policy did not violate the federal constitution.

Nonetheless, while Vemonia was decided under the federal constitution, which is less protective then our state constitution, the drug testing in Vemonia would have met constitutional muster under Article 1, Section 8 of the Pennsylvania Constitution 25 because there was a compelling interest to justify the intrusion. Because students engaged in the activity involved, i.e., football, risked harm to themselves or others while under the influence of intoxicants, the school district in that case had a special need to test that specific group of students and overcame the student’s lessened privacy interest that would justify selective testing for health care reasons with no criminal consequences.26 More importantly, we believe that the reasoning used by the United States Supreme Court upholding the search in Vemonia comports with our Supreme Court’s recent decision in In re F.B.,27 which used the same factors used to justify a search of a specific group of students in Vemonia— consideration of the student’s privacy interest, the nature of the intrusion created by the search, notice and the overall purpose to be achieved by the search and the immediate reasons for the search — to justify a generalized search with criminal consequences. The standard then appears to be no different if the search is only of a specific group of students or all students or the search has civil or criminal consequences, but only that in examining the special need to search that specific group there must be articulated a specific reason that only that group is being searched.

A.

Using the factors set forth in In re F.B., we must first examine the nature of the privacy interests implicated by the proposed search of students seeking participation in extracurricular activities and driving/parking privileges. As stated previously, students have lowered privacy expectations even under Article 1, Section 8 of the Pennsylvania Constitution because of the custodial nature of their relationship with the school district, and, where health care is involved, the need for students to be sufficiently healthy to learn and to protect other students who are compelled to attend school from health concerns and other hazards. The School District contends that because students who engage in *660extracurricular activities and request parking/driving privileges do so voluntarily, those students’ privacy expectations are so low that school districts can condition a student’s participation in those activities on agreeing to the testing. In effect, it contends that since Vemonia ‘s outcome would have been the same if analyzed under Article 1, Section 8, Vemonia should be read broadly to allow testing of all students engaged in extracurricular activities and who have parking/driving privileges.

There is some support for the expansive reading of Vemonia urged by the School District. In Todd v. Rush County Schools, 133 F.3d 984 (7th Cir.1998), petition for allowance of appeal denied, 525 U.S. 824, 119 S.Ct. 68, 142 L.Ed.2d 53 (1998), a school policy requiring students who participated in all extracurricular activities to consent to urinalysis testing was challenged. In upholding the testing as reasonable under the Fourth Amendment to the United States Constitution, the Seventh Circuit applied Vemonia expansively, and, without much explanation, found no difference between student athletes and students engaged in other extracurricular activities. Similarly, in a judgement vacated as moot, the Eighth Circuit in Miller v. Wilkes, 172 F.3d 574 (8th Cir.1999) found that testing of all students in extracurricular activities was reasonable under the Fourth Amendment of the United States Constitution because those students had a privacy expectation even lower than the lowered privacy rights of students in general.28

While we have doubts concerning those federal circuits’ expansive reading of Ver-nonia, we disagree with the School District that just by exercising a privilege in any activity that is part of the educational process, a student’s privacy interests are lessened and that a school district can, without more, condition participation in that activity on agreeing to testing just because those activities are optional. Even if such a policy would be constitutional under the Fourth Amendment to the United States Constitution, as already stated, Article 1, Section 8 of the Pennsylvania Constitution is more protective of privacy interests than the Fourth Amendment, and a student’s privacy interests are no less than any other student’s just by participating in any extracurricular activity or by seeking driving/parking privileges.

B.

As to the nature of the intrusion, Students contend that Policy 227 is not minimally intrusive because they have a right to be free from bodily intrusion, and the information gained from the testing is widely disbursed. Initially, while we recognize that the search of a person always involves . a greater degree of intrusion upon one’s privacy interest than the search of a thing, Commonwealth v. Martin, 534 Pa. 136, 626 A.2d 556 (1993), the methods used to gain students’ samples under Policy 227 are minimal. The methods utilized to obtain samples of urine and breath are minimal intrusions because the urine sample is obtained by means no more intrusive than the regular use of a public restroom, and the breath sample is obtained by the same means used to obtain breath samples at sobriety checkpoints. As to the blood testing, while using a needle to subtract a blood sample is certainly more intrusive than the other two means of testing, students are often required to submit to injections under the *661reasonable health measures of the school district, including those that are more intrusive because they involve the placing of highly contagious substances into the student’s body (e.g., vaccinations) and not just the taking of something out of the student’s body as required under Policy 227. Moreover, the intrusiveness of the testing is lessened by the actual notice students receive concerning the policy as each student must first consent by signing a contract agreeing to testing before they can voluntarily participate in extracurricular activities or gain driving/parking privileges, and the only consequence for not consenting to signing the contract or testing is that the student will not be allowed to continue to participate in the activity.

C.

As to whether the School District has established a sufficient governmental interest achieved by the means applied in Policy 227, the stated purposes for the intrusion is to protect the health of students by the prevention of accidents and injuries resulting from the use of alcohol and controlled substances, discouraging its use and providing assistance programs. While the purposes articulated set forth a governmental interest supporting a generalized drug and alcohol testing program, no reason is given for a special need to test only those students who engage in optional activities or request driving/parking privileges more than the general student population. To carry out the health care analogy, it would be as if the School District was offering a polio vaccine only to those students engaged in extracurricular activities and having driving/parking privileges, without expressing a need as to why those students are more likely to contract polio or more likely to cause the spread of the disease than any other selective group of students.

We recognize that there may be certain extracurricular activities in which selective testing would not violate any privacy or constitutional rights under Article 1, Section 8 of the Pennsylvania Constitution because of the special need of the school to prevent the immediate harm to the user or other students, such as the athletes at issue in Vemonia, or if the evidence supports it, a model airplane flying club or those having driving/parking privileges at school due to the nature of the activity. However, in the present case, the School District promulgated its sweeping policy to conduct selective searches without articulating a single reason why the specific group it chose required testing over that of the general school population. Absent a showing of special need or justification, Policy 227 invades a student’s privacy rights against unreasonable searches and seizures under Article 1, Section 8 of the Pennsylvania Constitution.29

III.

Parents also contend that Policy 227 violates their rights as parents because they and their children’s right to privacy is violated given that the test results are disclosed to others, and because mandatory counseling infringes on their right to make fundamental decisions about their children’s medical care. Initially, it should be pointed out that privacy interests are lessened once a party tests positive for an illegal substance, because at that point, a student is in no different of a position from a privacy perspective than if he/she had been caught ingesting an illegal substance. In this case, it is unnecessary to examine the nature or scope of any constitutional right that a parent may have to have his child’s records disclosed to non-medical personnel or a parent’s right to medical counseling because whether the information is disclosed or whether there is counseling is always at the parent’s option.

*662Under the policy, if a student tests positive, initially, the information is known only by the medical review officer, the student and parent. It is not conveyed to others unless the student seeks to continue participation in the activity, and then it is disbursed only to the principal, athletic director, student assessment team, substance abuse professional, guidance counselor, coach and/or advisor. None of the information received can be forwarded to criminal or juvenile authorities unless required under legal compulsion. Because the test results are only disseminated if the student wants to continue with the activity or maintain driving/parking privileges, and even after that is only disseminated to those who need to know, no cognizable privacy right has been violated simply by dissemination of the materials at the request of the student. Similarly, if parents do not want the child counseled, they then can remove the child from the activity or have the child relinquish his/her driving/parking privileges.

Accordingly, we affirm the trial court’s order insofar as it dismisses Parents’ claims based on parental rights and privacy interests, but vacate that portion of the trial court’s order dismissing Students’ cause of action and remand for proceedings consistent with this opinion.

ORDER

AND NOW, this 6th day of November, 2000, the order of the Court of Common Pleas of Pike County, dated July 21, 1999, No. 1-1999, is affirmed insofar as it dismisses the individual claims of Louis and Mary Ellen Theodore but vacated insofar as it dismisses the claims of Jennifer Lynn Theodore and Louis and Mary Ellen Theodore acting as natural guardians for Kimberly Ann Theodore. Accordingly, the complaint of Jennifer Lynn Theodore and Louis and Mary Ellen Theodore, acting as natural guardians for Kimberly Ann Theodore, is reinstated and this matter is remanded to the Court of Common Pleas of Pike County.

Jurisdiction relinquished.

■ Concurring opinion by Judge FRIEDMAN. Dissenting opinion by Judge LEADBETTER, joined by President Judge DOYLE and Judge McGINLEY.

. Adopted by the School District on May 14, 1998, Policy 227 was implemented under Section 510 of the Pennsylvania Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 5-510.

. "Extracurricular Participation” within the meaning of the policy includes all interscholastic athletics, clubs and other activities in which students participate on a voluntary basis and for which credit is not awarded toward meeting graduation requirements.

.The contract is signed by the parent of a minor student or by the student if he/she is over 18 years old or is married.

. While a positive test does not result in disciplinary action, other school district or school-based policies relating to the use, possession or distribution of controlled substances on school premises, on school buses or at school-sponsored events may still apply. Also, .the student cannot be penalized academically for testing positive as the results cannot be documented in academic records, and a positive result is not disclosed to criminal or juvenile authorities absent legal compulsion. If legal compulsion is sought, such as a valid and binding subpoena, the student and the student’s custodial parent or legal guardian will be notified at least 72 hours before a response is made by the School District.

. There are five types of tests that can occur: (1) an initial test occurs when the student signs up for the activity or applies for driving/parking privileges; (2) random-sampling testing occurs on a monthly basis for five percent of the participating students; (3) reasonable-suspicion testing occurs when school authorities have a reasonable suspicion concerning the student’s use of alcohol or controlled substances; (4) return-to-activity testing occurs after a violation of the policy; and (5) follow-up testing occurs unannounced as determined by a substance abuse professional.

. Under the split sample method, there is an initial screening test using an immunoassay test. All specimens identified as positive in the initial screening testing are then subject to a confirmation test using gas chromatography/mass spectrometry technique.

. Students are required to notify the sponsor of the extracurricular activity or the school principal in the case of driving/parking privileges if they are taking any therapeutic drugs, and they must supply a written certification from the physician prescribing the drug that the substance will not adversely affect the student's ability to safely and effectively participate in the activity.

. The same blood alcohol level of 0.02% establishes a violation of the Vehicle Code for a minor driving under the influence. 75 Pa. C.S. § 1547.

. A determination of which controlled substances will be tested is made by the school nurse in consultation with the school principals before a selection of students for testing is taken. Policy 227 offers the following example of an appropriate set of drugs for testing: marijuana, cocaine (to include crack), opiates (to include heroin and codeine), amphetamines (to include speed) and phencycli-dine (to include PCP and angel-dust).

. Before anyone is notified, a medical review officer must conduct an investigation to determine that there is no possible alternative medical explanation for the positive result, which may include a medical interview with the student or review of the student’s medical history. After the investigation, if there is no alternative explanation for the positive results, the student or the student’s parents are notified of the positive test result. After the student or parent has been given an opportunity to explain the positive result, if the medical review officer believes there is no adequate explanation for the positive test and the student still wants to participate in the activity, the result is reported to the athletic director who forwards the report to the school principal.

. If the medical review officer cannot locate a parent, the principal will be notified.

. The results are provided to the athletic director, student assessment team, substance abuse professional, guidance counselor, coach and/or advisor.

. Specifically, Jennifer Lynn Theodore was tested because of her participation in the National Honor Society, Science Olympiad and Scholastic Bowl, and Kimberly Ann Theodore was tested because of her participation in tennis, swimming and track. Also, they were both tested because they possessed driving privileges, but only Kimberly possessed parking privileges.

.Our scope of review of the granting of preliminary objections in the nature of a demurrer is to determine whether on the facts alleged, the law states with certainty that no recovery is possible. Kocher v. Bickley, 722 A.2d 756 (Pa.Cmwlth.1999). In ruling on the preliminary objections, the Court must consider the evidence in the light most favorable on the non-moving party. Id. If the grant of preliminary objections will result in the dismissal of the case, the objection should be sustained only if it is clear and free from doubt. Id.

. Government drug testing outside of the criminal context constitutes a search for purposes of the Fourth Amendment. Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

. Similarly, in In Interest of M.B., this Court held that to protect an incompetent adult from financial exploitation, a county agency’s access to medical and financial records to investigate into whether the adult was in need of protective services did not unconstitutionally intrude on that person's privacy rights under Article 1, Section 8 of the Pennsylvania Constitution.

. Stull concerned a prior enactment of the Pennsylvania compulsory vaccination law. The currently enacted compulsory vaccination law is found at Public School Code, 24 P.S. § 13-1303.

.Similarly, the United States Supreme Court upheld as reasonable a statute excluding children from school who could not produce a certificate of vaccination, Zucht v. King, 260 U.S. 174, 43 S.Ct. 24, 67 L.Ed. 194 (1922), and upheld as a Massachusetts regulation authorizing city boards of health to require the compulsory vaccination of all city inhabitants as a reasonable regulation concerning the health and welfare. Jacobson v. *658Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905).

. Under 28 Pa.Code § 23.83, the following immunizations are required as a condition of attendance at school: Diphtheria, Tetanus, Poliomyelitis, Measles (rubeola), German Measles (rubella), Mumps and Hepatitis B.

. Under 28 Pa.Code § 23.10, schools must screen for Scoliosis and Tuberculosis.

. Under 28 Pa.Code § 23.11, children who appear to the school teacher, nurse, physician, dentist or dental hygienist to deviate from normal growth and development patterns are reported to the parents or guardians for examination by a physician.

. Under 28 Pa.Code § 23.1, school districts must provide the following health services for students: medical examinations, dental examinations, vision screening tests, hearing screening tests, threshold screening tests, height and weight measurements, maintenance of medical and dental records and special examinations.

. This opinion does not address whether generalized drug testing as part of a health care effort to prevent and control drug usage would be constitutional. For a discussion of this issue, see Joanna Raby, Reclaiming Our Public Schools: A Proposal for School Wide Drug Testing, 21 Cardozo L. Review 999 (1999).

. The Fourth Amendment to the United States Constitution provides that the federal government shall not violate “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. IV.

. When interpreting provisions of the Pennsylvania Constitution, the state courts must consider the text of Pennsylvania constitutional provision, history of provision, including Pennsylvania case law, related case law from other states, and policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991).

. This reasoning is akin to cases in which selective searches of individuals by alcohol/drug testing was found reasonable by virtue of the decreased privacy interest of individuals in positions implicating the safety of themselves and others. See Skinner (federal railroad administration safety regulations authorizing alcohol/drug testing of employees reasonable because of decreased privacy interest in positions where great injury to self and others could result from use). Also, this reasoning further follows our state cases under Article 1, Section 8 of our Pennsylvania Constitution, wherein our Supreme Court concluded that searches conducted without individualized suspicion were justified by the potential for immediate physical harm arising from intoxication during the activities. See Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987) (roadblocks to check for sobriety of drivers constitutional where justified, in part, by the potential of harm to the user and other drivers).

.Vemonia was cited with approval in In re F.B. and numerous times by Opinion in Support of Affirmance in Cass.

. However, in Trinidad School District No. 1 v. Lopez, 963 P.2d 1095 (Colo.1998), a student member of the high school marching band brought an action alleging that a school district policy of urinalysis testing of all students participating in extracurricular activities violated the Fourth Amendment to the United States Constitution. Recognizing that members of the school marching band had increased privacy interests over those in athletics because their participation did not involve communal undress and physical contact, and because the policy covered those participants required to take the band course for credit, the Supreme Court of Colorado found the testing policy unconstitutional.

. Because we find Policy 227 is unconstitutional, we do not reach the issue of whether the policy infringed on any parental rights.