Theodore v. Delaware Valley School District

Justice SAYLOR,

concurring.

I agree with the majority that the trial court should not have sustained the School District’s preliminary objections in the nature of a demurrer on the present record, and that the case must therefore be remanded for further proceedings. I write separately, however, because I am less certain than the majority that the School District’s decision, as memorialized in Policy 227, to target for random drug testing only student drivers and extracurricular participants (the “covered students”) constitutes a facially unreasonable approach.

The majority goes to some length to discredit the School District’s decision to test only the covered students. See, e.g., Majority Opinion, at 92 (“Even if bootstrapping from a general perception of a youth drug problem in America warrants an assumption that some general drug problem exists in every *356school district, the under-inclusive and over-inclusive means chosen by the District here are not an efficacious manner of addressing that generic concern.”). See generally id. at 95 (suggesting that the School District’s only motive for testing the covered students was symbolic, and that it will therefore be unable to prove that its policy is efficacious). Initially, I note that, inasmuch as the case is being remanded for the development of proof regarding questions of the nature and extent of the drug abuse problems faced by the School District, and the effectiveness of its chosen mechanism for addressing such issues, any pronouncements at present by this Court concerning the overall reasonableness or effectiveness of Policy 227 seem premature.

Secondly, it bears clarification that there does not appear to be any genuine dispute that there may be some particularized need for testing among a definable sub-class of the covered students, such as athletes and drivers. Thus, the aspect of the program to which the majority appears to object most strongly concerns the decision to test all extracurricular participants, rather than athletes and drivers only.1 While the majority views such an approach as constituting a cynical means of coercion, see, e.g., id. at 91, 95-96, the policy may be supported by other good-faith reasoning.2 To understand why, it is first helpful to consider the context in which the evaluation of the challenged policy must take place.

In the school search setting, the Article I, Section 8 inquiry mirrors in significant respects the Fourth-Amendment test developed by the United States Supreme Court: both formulations reflect a balancing scheme in which the value that *357society places on protecting students from invasions of privacy competes -with the value that society places on the school’s ability to protect student health and maintain an appropriate learning environment. Compare New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985) (noting that the determination of Fourth Amendment reasonableness “requires balancing the need to search against the invasion which the search entails”) (internal quotation marks omitted), with In re F.B., 555 Pa. 661, 667, 726 A.2d 361, 365 (1999) (delineating a multi-pronged test in which students’ privacy interests are weighed against the government’s “overall purpose” and “immediate reasons” for conducting the search). See generally Commonwealth v. Blouse, 531 Pa. 167, 169, 611 A.2d 1177, 1178 (1992) (recognizing that, in reviewing a suspicionless search under Article I, Section 8, the intrusion upon the individual is balanced against the government’s promotion of legitimate interests). Thus, before assessing the School District’s decision to search the covered students in particular, it is relevant to review the severity of the district’s need to ameliorate or deter drug and alcohol abuse among the students under its care. In this regard, I note that, although the students’ privacy interests are given greater weight under Article I, Section 8 of the Pennsylvania Constitution than under its federal counterpart, see F.B., 555 Pa. at 668, 726 A.2d at 365; Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), it does not follow that the governmental interests at stake are in any way diminished.

In analyzing the strength of the governmental interest served by the challenged drug search policy, this Court’s recent opinion in F.B. provides some guidance. As the majority indicates, F.B. involved a weapons search of all students entering a public high school. In upholding the search, this Court stated that the government’s need to keep weapons out of school is “obvious” and that schools are “not required to wait for a tragedy to occur within their walls to demonstrate that the need is immediate.” Id. at 673, 726 A.2d at 367. Here, the need to deter drug use among students appears equally obvious, and, as in F.B., those reasons comport with *358the school’s duty to keep its students safe and to maintain an appropriate environment for learning. In this regard, the United States Supreme Court has indicated as follows:

That the nature of the concern is important can hardly be doubted. Deterring drug use by our Nation’s schoolchildren is at least as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs, which was the governmental concern in [National Treasury Employees Union v.] Von Raab [, 489 U.S. 656, 668, 109 S.Ct. 1384, 1392, 103 L.Ed.2d 685 (1989)], or deterring drug use by engineers and trainmen, which was the governmental concern in Skinner[ v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 628, 109 S.Ct. 1402, 1419, 103 L.Ed.2d 639 (1989)]. School years are the time when the physical, psychological, and addictive effects of drugs are most severe. “Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound”; “children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor.” ... And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted.

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 661-62, 115 S.Ct. 2386, 2395, 132 L.Ed.2d 564 (1995) (citation omitted). Seven years later, the Court continued:

This Court has already articulated in detail the importance of the governmental concern in preventing drug use by schoolchildren. The drug abuse problem among our nation’s youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse. As in Vernonia, “the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction.” [Vernonia, 515 U.S.] at 662, 115 S.Ct. [at 2395]. The health and safety risks identified in Vernonia apply with equal force to Tecumseh’s children. Indeed, the nationwide drug *359epidemic makes the war against drugs a pressing concern in every school.

Board of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 834, 122 S.Ct. 2559, 2567, 153 L.Ed.2d 735 (2002). Thus, the governmental interest in reducing or preventing drug use among the School District’s pupils is important, if not compelling, in that it is ultimately not only to maintain an environment in which learning can take place and to take reasonable precautions designed to promote the students’ safety and well-being while in school, but to protect children from suffering the life-long effects of drug addiction. A significant question, then, is whether selecting only the covered students for testing can be an efficacious means of serving that objective.

The Commonwealth Court plurality indicated (and this Court’s majority appears to agree) that the School District acted unreasonably in selecting the covered students for testing because there was no showing that those students are in greater need of monitoring than other students; it suggested that Policy 227 was analogous to a decision to vaccinate only the covered students for Polio without demonstrating that they were more likely than other students to contract that disease. See Theodore v. Delaware Valley Sch. Dist., 761 A.2d 652, 661 (Pa.Cmwlth.2000). Likewise, the Earls dissenters suggested (and, again, the majority agrees) that, because of the lack of any particularized need relative to extracurricular participants, the school district had in reality undertaken to send a merely symbolic anti-drug message unsupported by special needs.

I cannot conclude, however, that the School District’s decision to test only the covered students absent any risk- or conduct-related basis (besides guarding athletes and drivers against special risks associated with their activities) necessarily lacks any logical or reasoned basis. Rather, I believe that several factors beyond symbolic considerations could support the district’s approach. For example, in upholding a similar drug testing policy, the Indiana Supreme Court recently noted that

*360greater ranges of activities occur during extracurricular activities than during normal school hours.... There are many more ways for a student to be injured, to endanger fellow students, to transgress school rules, or to violate the law while participating in an extracurricular off campus event (such as a band competition in another city or a noncurrieular field trip) than during the relative order of school hours.... If drug abuse increases the physical danger of participation in a school-sponsored activity, a school corporation’s interest in deterring drug abuse becomes stronger.

Linke v. Northwestern Sch. Corp., 763 N.E.2d 972, 984 (Ind. 2002). Accordingly, the Indiana policy was deemed to fall with the scope of the school district’s latitude in “experimenting with methods to deter drug use.” Id. at 984. Additionally, the New Jersey Supreme Court has found that the enhanced school district liability and reduced privacy expectations associated with virtually all extracurricular activities rendered reasonable the school district’s decision to monitor extracurricular participants only:

Student-athletes must have a preseason physical, acquire insurance coverage or sign an insurance waiver, and comply with rules of conduct, dress, grade point average, training hours and other rules as may be established for each sport. Students engaged in extracurricular activities often must also obtain insurance or sign insurance waivers for any extracurricular activity that extends the school’s liability beyond the normal school-context, such as field trips, outings, events, conferences, and competitions away from school. They may have to subscribe to additional requirements, such as when the activities have required attire, training rules, or hours of practice and rehearsal, or other general regulations. Some extracurricular activities will not have the same elements of lack of privacy such as the communal undressing and locker room as athletics, but many extracurricular activities have elements of shared exposure to other student participants when performing specified activities such as the putting on of an organiza*361tion’s uniforms, or the general need to change into different required clothes for a particular event.

Joye v. Hunterdon Cent. Reg’l High Sch. Bd. of Educ., 176 N.J. 568, 826 A.2d 624, 642-43 (2003); see also id. at 645-48 (surveying empirical studies tending, on balance, to show that random drug testing programs in schools which target extracurricular participants have a salutary effect in reducing even the temptation to use drugs, as the students become aware that there are negative consequences associated with drug use, “such as having their parents know and disapprove of it or losing the ability to participate in desired extracurricular activities”).

Other considerations, as well, may support the School District’s decision to test only the covered students. For example, because school attendance is compulsory, see 24 P.S. § 13-1327, limiting testing to students involved in strictly voluntary activities may serve to avoid a possible Fourth Amendment violation. See Tannahill v. Lockney Indep. Sch. Dist., 133 F.Supp.2d 919, 929 (N.D.Tex.2001) (invalidating, under the Fourth Amendment, a random drug testing policy applicable to all students, and noting that “compulsory attendance at school is much different than voluntary participation in extracurricular activities”); see also Vernonia, 515 U.S. at 657, 115 S.Ct. at 2393 (indicating that student athletes’ Fourth Amendment privacy interests are affected by having volunteered for an already regulated activity); Earls, 536 U.S. at 831-32, 122 S.Ct. at 2565-66 (same as regards students involved in non-athletic extracurricular activities); Linke, 763 N.E.2d at 981 (same). See generally Earls, 536 U.S. at 841, 122 S.Ct. at 2571 (Breyer, J., concurring) (stating that, by not subjecting the entire school to testing, the policy “preserves an option for a conscientious objector[:][h]e can refuse testing while paying a price (nonparticipation) that is serious, but less severe than expulsion from the school”). Indeed, in the only reported state court decision striking down a drug testing policy similar to the one here at issue, the fact that the policy targeted some students who participated in activities for which academic credit was awarded was a factor in the court’s *362disposition. See Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1110 (Colo.1998).

Finally, although Appellees have not raised any equal protection claim, the gravamen of their objection to Policy 227 rests with the assertion that, absent proof that the covered students are in special need of monitoring, the classification drawn by the School District is not a reasonable one. In this regard, principles concerning legislatively-drawn classifications as analyzed against equal protection guarantees are applicable. Centrally, it has been recognized that such classifications need not be a “perfect fit” relative to the problem they are intended to address. See Justiana v. Niagara County Dep’t of Health, 45 F.Supp.2d 236, 242 (W.D.N.Y. 1999). Rather, “a legislature can address a perceived problem incrementally if in its judgment that is the best way to address the problem.” Id. As the Supreme Court has noted:

“The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies.... Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one field and apply a remedy there, neglecting the others. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.”

Federal Communications Comm’n. v. Beach Communications, Inc., 508 U.S. 307, 316, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211 (1993) (quoting Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955)); see also Brazil-Breashears v. Bilandic, 53 F.3d 789, 793 (7th Cir.1995) (indicating that the government need not comprehensively attack an identified vice, but that it “must be allowed leeway to approach a perceived problem incrementally”)-3 While there is, admittedly, a difference between an *363imperfect fit and no fit at all, for the reasons expressed above there is presently some correlation between the problem of student drug abuse and the classification drawn by the School District. In all events, it should be recognized that successfully eliminating drug use among the students covered by Policy 227 would ensure that at least a substantial portion of the student population is drug-free. Cf. Theodore, 761 A.2d at 667 (Leadbetter, J., dissenting) (opining that “[t]he district’s interest in protecting the health and safety of the school community is in no way diminished by the fact that it has attempted to limit the intrusiveness of its program by testing only those students who voluntarily participate in elective activities”); Weber v. Oakridge Sch. Dist. 76, 184 Or.App. 415, 56 P.3d 504, 518 (2002) (“Merely because a means selected to accomplish an end is underinclusive ... does not mean that it is unreasonable.”).

It is possible that, on remand, the School District will be able to demonstrate the existence of a significant drug problem among its pupils, but will nonetheless be unable to show that the covered students abuse drugs at a greater rate than the remainder of the student population. In this event, and for the reasons expressed above, such failure should not necessarily be fatal to the constitutionality of Policy 227. Rather, the determination of whether Policy 227 is likely to be efficacious in serving the School District’s interest in reducing or preventing drug abuse generally among its students is a matter for the trial court, sitting as fact finder, to determine in the first instance in consideration of all of the circumstances. In this regard, I note that, contrary to the majority’s apparent skepticism regarding the efficacy of selecting extracurricular participants for random drug testing, other courts have recognized that such an approach can be helpful in ameliorating drug abuse among students. See supra (citing Joye, 826 A.2d at 645-48). More broadly, it is worth stating that the determi*364nation of constitutional reasonableness does not hinge upon efficacy alone. As the New Jersey Supreme Court has recognized:

Reasonableness in this context does not require that the Board possess irrefutable proof verifying the efficacy of random drug and alcohol testing in reducing substance abuse among students. Rather, it is enough that the Board believed that its program would have some measurable effect in attaining the Board’s objectives. Those objectives include not only deterring drug and alcohol use, but encouraging those who test positive for such use to participate in rehabilitative programs.

Joye, 826 A.2d at 646.

Finally, and consistently with the above, I note that, in setting forth the holding of this case, the majority is careful not to impose an absolute requirement that the School District make any particular showing of a special need as to the covered students only. See, e.g., Majority Opinion, at 92 (holding that the search policy at issue will be deemed constitutional if the School District shows a need for it and explains its basis for believing that it will be effective); id. at 94 (noting that at trial the School District may prevail if it produces evidence of a drug problem and other evidence along the lines of that which was of record in Joye). Indeed, the majority draws heavily upon the New Jersey Supreme Court’s reasoning in Joye, see id. at 93-95, a case in which there was a developed factual record concerning the extent of the drug problem within the school district, but little or no proof that the targeted student drivers and extracurricular participants were any more at risk of drug abuse than the rest of the student community.4 Accordingly, I am able to concur in the result reached by the majority, namely, remanding the case for further factual development without specifically requiring that the School District proffer evidence of a heightened risk *365among the covered students as compared to the student population as a whole.

Justice NIGRO and Justice EAKIN join this concurring opinion.

. I take this opportunity, as well, to distance myself from the majority's branding as "student slackers” those individuals who elect not to become involved in extracurricular activities. See id. at 92. There are any number of legitimate life issues that could make it more difficult for some students to spend time in these voluntary activities than others, and I fail to see the value or propriety of this Court’s attaching a pejorative label to such persons.

. Indeed, that this same policy has been adopted by many school districts throughout the country — and has largely survived judicial review, see infra — at a minimum militates in favor of exercising caution before deeming the School District's approach facially unreasonable.

. See also Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (indicating that a classification does not violate equal protection simply because it “is not made with mathemati*363cal nicety or because in practice it results in some inequality” (internal quotation marks omitted)); Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 57 L.Ed. 730 (1913) (stating that "[t]he problems of government are practical ones and may justily ... rough accommodation”).

. The salient finding of Joye was of "illegal drug and alcohol use affecting a sizable portion of the student population,” Joye, 826 A.2d at 646, and not that there was some demonstrated relationship between extracurricular activities and a heightened risk of drug activity.