KSBA Legal Services Advisory: District Student Drug Testing Policies
KSBA has received some inquires on whether school districts may legally adopt a policy on student drug testing and, if they may, what are the constitutional and legal parameters of such a policy. The attached fact sheet briefly reviews the major U.S. Supreme Court rulings on student drug testing and some of the major issues that a district must consider when considering a drug testing program. The decision to adopt a student drug testing program is entirely in the discretion of the local board of education. There is no state or federal law that requires a district to adopt a student drug testing program. That decision should be made solely based on district needs and community views. While there currently is an interest in such programs and much discussion, student drug testing is not a universal magic pill and it may be more applicable in some communities than others.
Student Drug Testing Fact Sheet
  1. The United States Supreme Court has upheld as constitutional random, suspicionless urinalysis testing of students involved in extracurricular activities, including athletics. Vernonia School District 47J v. Action, 515 U.S. 646 (1995) and Board of Ed. Of Independent School Dist. v. Earls, 536 U.S. 822 (2002).
  2. The testing program in both Vernonia and Earls had no application to academics, law enforcement, or school discipline. Test results applied only to extracurricular participation. In other words, as long as a student does not violate another school rule and all that occurs is the student tests positive on the random test, then the student does not face school discipline, does not have his or her grades or academic standing affected, and law enforcement is not notified of the test result. The only consequence of violation of the testing policy is a limitation or prohibition on participation in extra-curricular activities.
  3. The Supreme Court has expressly reserved the question of whether student testing programs may constitutionally be extended beyond the limitations permitted in Vernonia and Earls. If a district chose to test students beyond the programs now permitted by the court as described in one above, the burden will be upon the district to prove the extension is constitutional. A persuasive case would have to be put before the court. Whether a district went beyond those clear limitations is a decision the district must make; but, we cannot recommend that action without serious research and consultation with legal counsel, as litigation may result from the decision to extend testing beyond what the courts have approved to this point.
  4. Other issues to consider
    • Testing procedures and practices must provide for reliability, privacy during testing, and confidentiality of results.
    • A district will need to decide what will be tested for, what test and lab will be utilized. How accurate is the test and the lab?
    • All testing procedures have a cost. What will the testing program cost the district? The cost may increase based on the number of substances tested for or which substances are tested for.
    • Who will have access to the testing record? Who really needs to know, and how will the records be securely stored? The approved testing programs have limited access to test results to very few, typically the superintendents and principal. The general teaching staff does not have access to results.
    • How will the security of samples and chain of custody be accomplished? What is the process for obtaining samples? How will samples be taken and what provision for both privacy and security will apply at that time? How will samples be secured from tampering?
    • What method will be provided to allow for medical review of test results, especially claims that legitimate medications or physical conditions affected the outcome? What process will be in place for a student to challenge a test result or disposition following a positive test?
    • A process to insure that students are randomly chosen for testing must be selected. Random means student names or numbers randomly drawn and identified for testing.
  5. There is no clear Supreme Court decision like Vernonia and Earls on whether a district may require student testing based on reasonable suspicion. In Vernonia the Supreme Court did not view reasonable suspicion testing favorably.
  6. Possession of drugs is in and of itself sufficient to take disciplinary action. In other words, if a student is found in possession of prohibited drugs, no test is required to discipline the student.
  7. Are any of your employees trained by qualified trainers to recognize signs of drug usage? If employees are adequately trained to recognize signs of student drug usage in the general student population, these students can be identified for counseling and follow-up as appropriate.
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