Tuesday, April 8, 2014

Student Drug Testing: Individualized Suspicion Versus Random Concern

In A.V. ex rel. Valichka v. Pennsgorve/ Carneys Point Regional School Dist., 2014 WL 1272119 (D. N.J. 2014), a high school baseball student took an advil for back pain during practice.  Another student then reported that A.V. was taking steroids to a school official.  The official told A.V. he could not return to school until he took a drug test.  A.V.'s parents then took him to his doctor, who screened him for drugs and determined he had not taken steroids.  The school then permitted him to return, but suspended him for taking the advil.

A.V. sued the school for a violation of his Fourth Amendment rights.  The school defended on the notion that it did not need reasonable suspicion to drug test A.V.  given that Veronia v. Acton recognized schools' authority to randomly drug test all students.  The district court rejected this argument, pointing out that the testing of A.V. was based on individualized suspicion and, thus, Veronia is inapposite.  The court was nice in not pointing out that Veronia was explicit in distinguishing the individualized suspicion case from random drug testing.  The Supreme Court in Veronia indicated that a school might very well prefer random testing because when it acts on individualized suspicion it runs more of a risk of subjecting itself to suit (and losing), as appears to be the case in A.V.

Although not raised by the complaint, this case could have also implicated my continuing concern about the limit of school authority to punish students.  The advil that A.V. took was given to him by his father specifically for back pain at baseball practice.  Of course, baseball practice is a school activity and presumably was on school grounds (or school liscenced grounds), which means the school does have general authority here.  For that reason,  I would not contest the schools authority to regulate this activity, but I do question whether, under these circumstances, it should be permitted to exclude a student from school.


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