Hageman Ex Rel. C v. Goshen County School District No. 1

[T1] In an effort to address a perceived drug and alcohol problem among its students, Goshen County School District No. 1 adopted a policy requiring all students who participate in extracurricular activities to consent to random testing for alcohol and drugs. Appellants initiated litigation, claiming that the Policy is unconstitutional. The district court granted summary judgment in favor of the School District. Appellants challenge that decision in this appeal. We affirm.

ISSUES

[T2] These issues were raised by the Appellants and adopted by the Appellees:

1. Whether the district court erred in refusing to declare that the District's "Mandatory Drug Testing for Students Involved in Extracurricular Activities" violates [the prohibition against unreasonable searches and seizures of] Article 1, § 4 of the Wyoming Constitution.

2. Whether the district court erred in refusing to declare that the District's Drug Testing Policy violates Article 1, §§ 2 and 3 of the Wyoming Constitution, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

3. Whether the district court erred in refusing to declare that the District's Drug Testing Policy violates Article 1, § 6 of the Wyoming Constitution, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

4. Whether the district court erred in refusing to enjoin the District from implementing the Drug Testing Policy.

5. Whether the district court erred in granting the District's Motion for Summary Judgment.

FACTS

[T3] For the past several years, Goshen County School District No. 1 has participated in surveys of its students, known as the "Wyoming Youth Risk Surveys." According to the affidavit of the School District's Superintendent, the surveys revealed "a serious prevalence of alcohol and drug use among Goshen County School District No. 1 students. Goshen County has ranged at or near the top for alcohol and drug use for several of those surveys." The School District participated in another statewide survey in 2008, the "Wyoming Prevention Needs Assessment State Profile Report." This survey indicated that:

[In 2008 26% of our sixth graders had used alcohol at some point, 10% had used cigarettes; and 6% inhalants, with 4% of the sixth graders having used inhalants within the past 30 days; 8% of our sixth graders reported binge drinking; 38% of Goshen County eighth graders were perceived to be at risk [of] harm [from] drug *491 use; 41% of tenth grade students were perceived to be at risk [of] harm [from] drug use; 47% had friends who use drugs; ... 44% were deemed to have favorable attitudes toward, drug use; 52% of twelfth grade students were at risk [of] harm [from] drug use; 40% expressed an intent to use; 48% had friends who used drugs; ... 50% were classified as at risk for early initiation of drug use.

Concern over the pervasiveness of drug and aleohol use among its students prompted the School District to hold a public forum on February 2, 2009, to discuss the possibility of requiring students to take random drug and alcohol tests. Following that forum, on April 14, 2009, the School District's Board of Trustees adopted a new policy requiring all students in grades 7 through 12 who participate in extracurricular activities to consent to random testing for drugs and alcohol. According to the School District's Superintendent:

The policy recognizes that many of the students participating in extracurricular activities are viewed as role models to other students and that it is important that they avoid drug and alcohol use in their position as role models. It is also the position of the Board that to achieve the goal of reducing risks of alcohol and drug abuse and to maximize the skills and talents participating in extracurricular activities, it is important that participants refrain from drug and aleohol use. It is the belief of our school district that this policy will assist in that endeavor.

Testing is done chiefly through urinalysis, although testing may also be done with saliva or breath samples.

[T4] Appellants, referred to collectively as the Coalition, are a group of students and their parents or guardians 1 who filed a declaratory judgment action in district court seeking to have the School District's Policy declared unconstitutional. After briefing and argument, the district court concluded that the drug testing program did not violate either the Wyoming Constitution or the United States Constitution. It granted summary judgment in favor of the School District, and the Coalition appealed.

STANDARD OF REVIEW

[¥5] We review a district court's decision granting summary judgment using this standard of review:

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c); Metz Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9, 39 P.3d 1051, 1055 (Wyo.2002). "A genuine issue of material fact exists when a disputed fact, if it were proven, would establish or refute an essential element of a cause of action or a defense that the parties have asserted." Id. Because summary judgment involves a purely legal determination, we undertake de novo review of a trial court's summary judgment decision. Glenn v. Union Pacific R.R. Co., 2008 WY 16, ¶ 6, 176 P.3d 640, 642 (Wyo.2008).

Jacobs Ranch Coal Co. v. Thunder Basin Coal Co., LLC, 2008 WY 101, ¶ 8, 191 P.3d 125, 128-29 (Wyo.2008). In the case before us now, the Coalition and the School District agree that there are no genuine issues of material fact. They disagree, however, about whether the district court correctly applied the provisions of the Wyoming and United States Constitutions to the undisputed facts. "Issues arising under the constitution are questions of law which we review de novo." Bush v. State, 2008 WY 108, ¶ 48, 193 P.3d *492 203, 214 (Wyo.2008);, Wilkening v. State, 2007 WY 187, ¶ 6, 172 P.3d 385, 386 (Wyo.2007).

DISCUSSION

Search and Seizure

[16] The Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution prohibit unreasonable searches and seizures. See Pena v. State, 2004 WY 115, ¶ 29, 98 P.3d 857, 870 (Wyo.2004). The parties agree, as do we, that the drug tests mandated by the Policy are searches for purposes of constitutional analysis. See ALJ v. State, 836 P.2d 307, 311 (Wyo.1992) ("[TJhe testing of urine is a search."); Doles v. State, 994 P.2d 315, 318 (Wyo.1999) ("Obtaining a blood or saliva sample is a search and seizure implicating Fourth Amendment privacy rights."). Generally, the Coalition contends that the searches at issue here are unreasonable, and therefore unconstitutional.

[17] The Coalition concedes that the Policy does not violate the Fourth Amendment to the United States Constitution. It contends, however, that Article 1, § 4 of the Wyoming Constitution provides greater protections, under the facts of this case, than those afforded by the Fourth Amendment. In support of this contention, the Coalition relies heavily on Vasquez v. State, 990 P.2d 476 (Wyo.1999) and O'Boyle v. State, 2005 WY 83, 117 P.3d 401 (Wyo.2005). In Vasques, we considered the United States Supreme Court's decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which established a rule "that when a police officer has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Vasquez, 990 P.2d at 480. Applying Belton, we concluded that the search of Mr. Vasquer's vehicle satisfied the Fourth Amendment to the United States Constitution. That did not end our analysis, however, because we also recognized that Article 1, § 4 of the Wyoming Constitution provided a separate and independent source of state constitutional rights. Id. at 486. We rejected the bright-line rule of Belton, and instead held that the Wyoming Constitution "requires a search be reasonable under all of the circumstances." Id. at 489. "Is this result a narrower application than Bel-ton?" we asked. "We think so." Id. 2

[18] In O'Boyle we observed that, "[in the specific context presented in Vasquez, Le. a vehicle search incident to an arrest, we said Wyoming's search and seizure provision provided greater protection than the federal provision" because the Wyoming Constitution "requires that searches and seizures be reasonable under all the cireumstances." Id., T1 30-31, 117 P.8d at 410. We then extended the same "reasonable under all the cireum-stances" analysis to a traffic stop and detention, and concluded that Mr. O'Boyle's lengthy detention and "extensive questioning" were unreasonable under the cireum-stances, and therefore contrary to Article 1, § 4 of the Wyoming Constitution. Id., T 32, 117 P.8d at 410-11.

[T9] Both Vasquee and O'Boyle dealt with searches by police in the criminal law context. We have never before considered what limitations the Wyoming Constitution may place, in the context of an administrative search, on a school's testing of students for alcohol and drugs. This "is a matter of first impression in Wyoming, so we therefore look to other jurisdictions for guidance." Hofstad v. Christie, 2010 WY 134, ¶ 10, 240 P.3d 816, 819 (Wyo.2010); Taylor v. Schukei Family Trust, 996 P.2d 13, 18 (Wyo.2000); Edwards v. Fogarty, 962 P.2d 879, 882 (Wyo.1998).

[110] In Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), the United States Supreme Court rejected a Fourth Amendment *493 challenge to a school district policy requiring drug testing for high school athletes. The Court declared that "the ultimate measure of the constitutionality of a governmental search is 'reasonableness'" Id. at 652, 115 S.Ct. at 2390. To determine the reasonableness of these random, suspicionless searches, the Court applied a balancing test, weighing three factors: the nature of the privacy interest at issue, id. at 654, 115 S.Ct. at 2891; the character of the intrusion, id. at 658, 115 S.Ct. at 2898; and the nature of the governmental concern and the efficacy of the policy in addressing that concern. Id. at 660, 115 S.Ct. at 2894. The Court concluded that public school students have a lower expectation of privacy than citizens in general, and that the expectation of privacy is even lower for student athletes. It found the search relatively unobtrusive. It determined that the school had a legitimate interest in deterring drug use, and noted that the school had presented evidence of a serious drug problem in the school, particularly among the student athletes. The drug testing program was considered an efficacious way to address the problem because it was aimed directly at the student athletes who were a major part of the problem.

[111] Seven years later, the Court decided Board of Education of Independent School Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002), again applying the basic standard of "reasonableness." This drug testing policy was not targeted at a specific group of problematical students with doeu-mented drug problems. Rather, like the Policy before us now, it subjected all students involved in extracurricular activities to random, suspicionless testing for drugs. The Court stated that all participants in extracurricular activities had a diminished expectation of privacy, and that the intrusion on that privacy was not significant. The Court concluded that the school's interest in deterring drug use prevailed over the insignificant intrusion on privacy, and thus rejected the constitutional challenge to the drug testing policy.

[112] In addition to Vernonia and Earls, we have reviewed decisions from several state courts. The majority of such cases have applied some version of the reasonableness test, and concluded that random, suspi-cionless drug testing of students involved in extracurricular activities did not violate the provisions of their respective state constitutions. In Joye v. Hunterdon Central Regional High School Board of Education, 176 N.J. 568, 618-19, 826 A.2d 624, 655 (2003), the New Jersey Supreme Court gave detailed consideration to both federal and New Jersey precedent, and concluded that "there is room in our State's constitution for school officials to attempt to rid Hunterdon Central of illegal drugs and alcohol in the manner sought here." In Linke v. Northwestern School Corp., 763 N.E.2d 972, 985 (Ind.2002), the Indiana Supreme Court ruled that its state constitution "does not forbid schools from taking reasonable measures to deter drug abuse on their campuses but they must do so with due regard for the rights of students." It held that a drug testing policy similar to the one before us now did not violate the rights of the students. See also Marble Falls Independent School Dist. v. Shell, 2003 WL 1738417, 2003 Tex.App. LEXIS 2845 (2003); Weber v. Oakridge School Dist. 76, 184 Or.App. 415, 56 P.3d 504 (2002) (drug testing for student athletes); State v. Jones, 666 N.W.2d 142 (Iowa 2003) (random, suspicionless searches of student lockers).

[113] The Coalition cites York v. Wahkiakum School Dist. No. 200, 163 Wash.2d 297, 316, 178 P.3d 995, 1006 (2008), in which the Washington Supreme Court concluded that random, suspicionless testing of student athletes violated their rights under Article I, § 7 of the Washington Constitution. Article I, § 7 of the Washington Constitution provides that "[nlo person shall be disturbed in his private affairs, or his home invaded, without authority of law." Id. at 299 n. 1, 178 P.3d at 997: n. 1. The Washington Supreme Court acknowledged that this language differs markedly from the Fourth Amendment to the United States Constitution, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and par *494 ticularly describing the place to be searched, and the persons or things to be seized.

The court noted that, under the Fourth Amendment to the United States Constitution, "the ultimate measure of the constitutionality of a governmental search is 'reasonableness,'" id. at 305-06, 178 P.38d at 1001, citing Vernonia, 515 U.S. at 652, 115 S.Ct. at 28390. In contrast, analysis under the Washington Constitution "hinges on whether a search has 'authority of law' -in other words, a warrant." - York, 168 Wash.2d at 806, 178 P.3d at 1001. The Washington Supreme Court declined to follow the United States Supreme Court's analysis as reflected in Earls, and instead decided that, under "our article I, section 7 jurisprudence," the Court could not "countenance random searches of public school student athletes." Id. at 816, 178 P.8d at 1006.

[T14] Article 1, § 4 of the Wyoming Constitution is much more similar to the language of the Fourth Amendment to the United States Constitution. Our state constitution reads as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.

Given the significant difference between the text of Article I, § 7 of the Washington Constitution and the language of Article 1, § 4 of the Wyoming Constitution, York provides little guidance in resolving the issue before us.

[115] The Coalition also claims that "the Pennsylvania Supreme Court struck down a drug testing policy as violative of the Pennsylvania Constitution," citing Theodore v. Delaware Valley School Dist., 575 Pa. 321, 836 A2d 76 (2003). This claim is inaccurate. The Pennsylvania Court did not say that a policy of random, suspicionless drug testing of students violated the Pennsylvania Constitution. Rather, it ruled that "such a search policy will pass constitutional serutiny only if the [School] District makes some actual showing of the specific need for the policy and an explanation of its basis for believing that the policy would address that need." Id. at 848, 886 A.2d at 92. The trial court had dismissed the case on "preliminary objections in the nature of a demurrer," based solely on the pleadings and before either party had presented any evidence. Id. at 329, 886 A.2d at 80. Accordingly, the school district had "offered no reason to believe that a drug problem actually exists in its schools, much less that the means chosen to address any latent drug problem would actually tend to address that problem." Id. at 347, 886 A.2d at 91. The case was returned to the trial court to allow the parties the opportunity to present their evidence, and the Pennsylvania Court observed:

It may be that, upon the trial of the matter, the [School] District can produce evidence of an existing drug problem as well as the success and/or failure of other means adopted to eradicate the problem, along the lines of that which ultimately convinced a majority of the New Jersey Supreme Court [in Joye, 176 N.J. 568, 826 A.2d 624].

Id. at 852, 886 A.2d at 94.

[T16]) Although the Pennsylvania Supreme Court was critical of certain aspects of the United States Supreme Court's decision in Earls, it agreed that the basic test of the constitutionality of a search under the Pennsylvania Constitution is the "reasonableness" of that search. Theodore, 575 Pa. at 342, 836 A.2d at 88. This statement reflects a broad theme running through all such cases. The United States Supreme Court declared in Vernonia that, "als the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is 'reasonableness.'" 515 U.S. at 652, 115 S.Ct. at 2890. In Hoarls, it characterized reasonableness as "the touchstone of the constitutionality of a governmental search." 536 U.S. at 828, 122 S.Ct. at 2564. The New Jersey Supreme Court in Joye stated that "the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." 176 N.J. at 592, 826 A.2d at 689, quoting New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. *495 733, 742, 83 L.Ed.2d 720 (1985). And in Linke, the Indiana Supreme Court explained that "the measure of whether a government search violated Section 11 [of the Indiana Constitution] is whether the process is 'reasonable." " 7683 N.E.2d at 977.

[117] This unifying theme is consistent with our decisions in Vasquee and O'Boyle, where we stated that Article 1,.§ 4 of the Wyoming Constitution requires that searches be "reasonable under all of the circumstances." Vasquez, 990 P.2d at 489; O'Boyle, 1 32, 117 P.3d at 410. Based on this precedent, and having considered guidance from other jurisdictions, we will apply this same "reasonable under all of the cireum-stances" standard to determine whether searches undertaken pursuant to the School District's Policy violate Article 1, § 4 of the Wyoming Constitution.

[118] Another common feature of the cases upholding the constitutionality of such searches is the list of factors considered to determine reasonableness. - In Vernoniq, these factors were stated as: (1) "the nature of the privacy interest upon which the search here at issue intrudes," 515 U.S. at 654, 115 S.Ct. at 2891; (2) "the character of the intrusion that is complained of," Id. at 658, 115 S.Ct. at 2898; and (8) "the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it." Id. at 660, 115 S.Ct. at 28394. The same three factors, in only slightly different words, were also considered in Haris, 586 U.S. at 880-84, 122 S.Ct. at 2565-67; in Joye, 176 N.J. at 584-85, 826 A.2d at 688-34; in Linke, 768 N.E.2d at 979; and in Theodore, 575 Pa. at 341-42, 836 A.2d at 88.

[119] This list of factors is also consistent with Wyoming precedent. We have explained that the reasonableness of a search

is not capable of precise definition or any mechanical application. Each case requires a weighing of the need for the particular search in the public interest against the invasion of the personal rights that the search calls for. Courts must probe the scope of the particular intrusion, the manner in which it is carried on, the justification for its initiation, and the place in which it is conducted.

Jessee v. State, 640 P.2d 56, 61 (Wyo.1982), overruled on other grounds by Jones v. State, 902 P.2d 686, 692 (Wyo.1995). Again, based on our precedent and guidance from other jurisdictions, we will determine the reasonableness of searches under the School District's Policy by weighing three factors: (1) the nature of the personal privacy rights that the Coalition claims are infringed by the Policy; (2) the scope and manner of the alleged intrusion on the students' rights; and (8) the nature of the public interest and the efficacy of the means chosen to further that interest.

[$20] The Coalition asserts that a "child, merely on account of his minority, is not beyond the protection of the Constitution," citing as authority ALJ, 886 P.2d at 815 (Urbigkit, C.J., concurring in part and dissenting in part). We agree, and indeed, have previously acknowledged that students do not "shed their constitutional rights" at the schoolhouse gate. Board of Trustees v. Spiegel, 549 P2d 1161, 1175 (Wyo.1976), quoting Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). In ALJ, however, we also recognized that what is "reasonable under all of the cireum-stances" is different in different circumstances. |

[121] In ALJ, a minor -was adjudicated delinquent and placed on probation. ALJ, 836 P.2d at 309. In his appeal, the minor claimed that the probation condition requiring him to submit to random urine testing for alcohol violated his right to be free from unreasonable searches and seizures under both the Fourth Amendment to the United States Constitution and Article 1, $ 4 of the Wyoming Constitution. He pointed out that, in Pena v. State, 792 P.2d 1352 (Wyo.1990), we held that "a parole officer, before he makes a search, must still have a 'reasonable suspicion' that the parolee committed a parole violation." ALJ, 886 P.2d at 311. Claiming the same constitutional rights, the minor in ALJ contended that he could not be forced to submit to random urinalysis absent *496 reasonable suspicion that he had used alcohol.

[122] We agreed that urinalysis is a search for constitutional purposes, and that constitutional rights apply to juveniles. We said, however, that constitutional protections against unreasonable searches and seizures may apply differently to minors than to adults. Id. We recognized that, pursuant to Wyoming's Juvenile Justice Act, Wyo. Stat. § 14-6-229, a judge imposing probation on a minor

must do what is best suited for the public safety, the preservation of families, and the physical, mental, and moral welfare of the child.... To fulfill this mandate and to address the rehabilitative needs of juveniles, the court must have flexibility when it is formulating the probation conditions.

ALJ, 886 P.2d at 811. Based on this need for flexibility, we determined that it was "within the court's discretion to allow a probation officer to search a juvenile without reasonably suspecting that a probation violation exists." Id. Thus, we held that a minor probationer could be subject to random, sus-picionless testing for alcohol, even though an adult probationer could not be searched without reasonable suspicion.

[T28]) The analysis in ALJ applies to the case before us now. We recognize that public school students in Wyoming are protected from unreasonable searches and seizures by Article 1, $ 4 of the Wyoming Constitution, but we also acknowledge that what is reasonable under all of the circumstances must be determined in light of factors such as the age of the students and the school environment. Wyoming school districts have a "compelling interest" in providing for the safety and welfare of their students. RM v. Washakie County School Dist. No. 1, 2004 WY 162, ¶ 16, 102 P.3d 868, 873 (Wyo.2004). Indeed, we have expressed "little doubt that the safety and welfare of students in the state are of utmost importance." Id. In order to maintain safety and welfare, schools are afforded the flexibility to impose rules on students that might be inappropriate for adults. As the United States Supreme Court observed, a school's role "is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults." Vernomia, 515 U.S. at 655, 115 S.Ct. at 2392. Because of the degree of supervision and control a school commonly exercises over its students, "students generally have diminished privacy expectations born of the government's duty to maintain safety, order, and discipline in the schools." Joye, 176 N.J. at 597, 826 A.2d at 642.

[124] The School District further points out that students participating in extracurricular activities are subject to rules and requirements not applicable to students in general. As set forth in the School District's Student Activity Code of Conduct: "Students who volunteer to participate in the Goshen County School District No. 1 extracurricular activities programs do so with the understanding that they must observe some regulations that are more restrictive than those relating to the general student community." These regulations vary according to the particular activity, but include requirements for medical releases and physical exams, academic standards, attendance rules, and compliance with specific rules pertaining to tobaceo, alcohol, controlled substances, and offensive conduct. Because students who participate in extracurricular activities are already regulated more strictly, their reasonable expectations of privacy are even more limited than those of the general student population. See Linke, 768 N.E.2d at 981; Earls 586 U.S. at 882, 122 S.Ct. at 2566. Accordingly, we conclude that the legitimate expectations of privacy are reduced for those students subject to drug testing under the School District's Policy.

[125] The School District's Policy specifies that students participating in extracurricular activities must consent to testing, chiefly through urinalysis, for drugs and alcohol. The Coalition correctly contends that urination is a bodily function traditionally shielded by privacy. See Horls, 586 U.S. at 832, 122 S.Ct. at 2566. However, the degree to which the School District's Policy intrudes on the students' privacy depends largely upon the details of how the urine samples are collected. Id.

*497 [126] Under the School District's Policy, students to be tested are randomly selected by an independent testing company. Selected students are sent individually into a restroom to produce a sample. Each student enters the restroom alone, and remains unobserved while producing a sample. Direct observation of the students is not necessary, as tampering with the samples is prevented by measures such as rendering water faucets inoperable and placing dye in the water in the toilets. When a student exits the restroom, the sample is handed to a testing company employee, who splits the sample in two and marks them while the student observes. The student then returns to class.

[127] The School District's Policy is less intrusive than the one upheld by the United States Supreme Court in Vernonia, where male students were required to

produce samples at a urinal along a wall. They remain fully clothed and are only observed from behind, if at all. Female students produce samples in an enclosed stall, with a female monitor standing outside listening only for sounds of tampering. These conditions are nearly identical to those typically encountered in public restrooms, which men, women, and especially school children use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.

Vernonia, 515 U.S. at 658, 115 S.Ct. at 2898. In contrast, under the School District's Policy, each student is alone in the restroom while producing