No. 94-590

In the Supreme Court of the United States

OCTOBER TERM, 1994

VERNONIA SCHOOL DISTRICT 47J, PETITIONER

v.

WAYNE ACTON AND JUDY ACTON, ETC.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

DREW S. DAYS, III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

RICHARD H. SEAMON
Assistant to the Solicitor 
General

LEONARD SCHAITMAN
EDWARD HIMMELFARB
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217
      
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QUESTION PRESENTED

Whether petitioner violates the Fourth Amendment by
requiring students who wish to participate in
interscholastic sports to agree to take suspicionless
urine tests for alcohol and illegal drugs.

(I)

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TABLE OF CONTENTS

Page

Interest of the United States . . . .1 
Statement . . . . 3
Summary of argument . . . . 10
Argument:
Petitioner's program for the suspicionless drug testing
of student athletes comports with the Fourth Amend-
ment . . . . 12
I. Petitioner's drug-testing program should be re-
viewed under the balancing approach of Skinner
and Von Raab . . . . 12 
II. Petitioner's drug-testing program is reasonable
under the balancing approach of Skinner and Von
Raab . . . . 15 
A. Petitioner's drug-testing program serves com-
pelling governmental interests that would be
jeopardized if individualized suspicion were
required . . . . 17 
B. Petitioner's drug-testing program poses only a
limited threat to the legitimate privacy interests
of students covered by the program . . . . 23 
C. Petitioner's drug-testing program has safeguards
to prevent random or arbitrary searches by
individuals officials . . . . 24 
Conclusion . . . . 26
      
TABLE OF AUTHORITIES

Cases:

Brown v. Board of Education, 347 U.S. 483 (1954) . . . . 17 
Camara v. Municipal Court, 387 U.S. 523 (1967) . . . . 25
Delaware v. Prouse, 440 U.S. 648 (1979) . . . . 9, 15, 25
Griffin v. Wisconsin, 483 U.S. 868 (1987) . . . . 16
Mapp v. Ohio, 367 U.S. 643 (1961) . . . . 12
          
(III)

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IV

Cases-Continued:

Page

Michigan Dep't of State Police v. Sitz, 496 U.S. 444
(1990) . . . . 25
National Treasury Employees Union v. Von Raab,
489 U.S. 656 (1989) . . . . passim
New Jersey v. T.L.O, 469 U.S. 325 (1985) . . . . 2, 11, 13, 15,
16, 17, 24, 25
New York v. Burger, 482 U.S. 691 (1987) . . . . 16
O'Connor v. Ortega, 480 U.S. 709 (1987) . . . . 
Schall v. Martin, 467 U.S. 253 (1984) . . . . 24
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602
(1989) . . . . passim

Constitutions and statutes:

U.S. Const. Amend. IV . . . . passim
Or. Const. Art. I, 9 . . . . 7, 8          
Drug-Free Schools and Communities Act of 1986,
20 U.S.C. 3171 et seq . . . . 1, 18
20 U.S.C. 3172(3) . . . . 17
20 U.S.C. 3192(d) (Supp. V 1993) . . . . 2
Goals 2000: Educate America Act, Pub. L. No. 103-227,
102(7), 108 Stat. 132-133 (1994) . . . . 2
Improving America's Schools Act of 1994, Pub. L. No.
103-382, 108 Stat. 3518:
101, 108 Stat. 3672 . . . . 17 
101, 108 Stat. 3672-3690 . . . . 2, 18 
101, 108 Stat. 3682-3684 . . . . 2 
42 U.S.C. 1983 . . . . 7 

Miscellaneous:

Bureau of Justice Statistics, U.S. Dep't of Justice,
Teenage Victims: A National Crime Study Report
(May 1991) . . . . 22
1 Core Institute, Southern Illinois Univ., Alcohol and
Drugs on American College Campuses (1989-1991) . . . . 17-18
S. Greenbaum, Drugs, Delinquency, and Other Data
(1994) . . . . 18
H.R. Rep. No. 425, 103d Cong., 2d Sess. (1994) . . . . 18, 21 

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V

Page

Miscellaneous-Continued:

1 National Institute on Drug Abuse, National Survey
Results on Drug Use from the Monitoring the Future
Study, 1975-l993 (1994) . . . . 17, 18
National School Boards Association, Violence in the
Schools: How America's School Boards Are Safe-
guarding Our Children (1993) . . . . 21
2 Office of Juvenile Justice and Delinquency Prevention,
Office of Justice Programs, U.S. Dep't of Justice,
Juvenile Justice (Spring/Summer 1994) . . . . 18
Office of National Drug Control Policy, Executive Office
of the President, National Drug Control Strategy:
Reclaiming Our communities from Drugs and Violence
(Feb. 1994) . . . . 22

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In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-590

VERNONIA SCHOOL DISTRICT 47J, PETITIONER

v.

WAYNE ACTON AND JUDY ACTON, ETC.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether a school
district may, consistently with the Fourth Amendment,
conduct suspicionless drug testing of student athletes.
Although education is primarily the responsibility of
state and local governments, the federal government has
a substantial interest in the question presented here.
The federal government provides large amounts of
money to support state and local drug-education and
drug-prevention programs. Of particular relevance,
Congress has authorized federal grants under the Drug-
Free Schools and Communities Act of 1986 (1986 Act) to
be used for, among other things, "non-discriminatory

(1)

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2

random drug testing programs for students voluntarily
participating in athletic activities." 20 U.S.C. 3192(d)
(Supp. V 1993). 1. In addition, the federal government has a
strong interest in preserving flexibility for school
districts in designing programs and policies that will
enable them to achieve the National Education Goals, one
of which is to minimize student drug use and create an
environment conducive to learning in the schools. Goals
2000: Educate America Act, Pub. L. No. 103-227,  102(7),
108 Stat. 132-133 (1994). The United States participated
as an amicus curiae in New Jersey v. T.L.O., 469 U.S. 325
(1985), which addressed the application of the Fourth
Amendment to searches of school students by school
officials. Moreover, federal officials were parties to
cases in this Court involving Fourth Amendment
challenges to drug-testing programs for employees. See
Skinner v. Railway Labor Executives' Ass'n, 489 U.S.
602 (1989); National Treasury Employees Union v. Von
Raab, 489 U.S. 656 (1989).

___________________(footnotes)
                               
1 The Department of Education, which administers the 1986
Act, advises us that more than $390 million was appropriated
under the Act for state and local education authorities for fiscal
year 1993; the amount appropriated for fiscal year 1994 was more
than $274 million. The Department of Education also advises us
that petitioner has received yearly grants under the 1986 Act of
approximately $7,500. In October, 1994, Congress enacted a
reauthorization of the 1986 Act; the new Act takes effect in July,
1995. Improving America's Schools Act of 1994, Pub. L. No. 103-
382, 101, 108 Stat. 3672-3690. Although the new Act does not
explicitly authorize the use of federal grants for random drug
testing of student athletes, that use continues to be permitted
under the new Act. See 108 Stat. 3682-3684.

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STATEMENT

1. a. Vernonia, Oregon, is a logging town of about 3000
people located northwest of Portland. Petitioner,
Vernonia School District 47J, runs two schools there:
Washington Grade School and Vernonia High School.
Pet. App. 2a, 77a. Until the early 1980s, discipline was
not a major problem at the schools, and illegal drug use
was limited to "'fringe' elements" among the students.
Id. at 79a.
That situation changed between 1985 and 1989. During
that period, the schools confronted a "marked increase
in disciplinary problems, student drug use, and the
glorification of drug culture." Pet. App. 2a. Drug para-
phernalia was confiscated from students. Id. at 81a.
Students smoked marijuana at a coffee shop across the
street from the high school. Students boasted about
their drug use, telling teachers that there was nothing
the school could do about it. Id. at 80a-81a; see also Tr.
21, 26. Students formed organizations, such as the
"Drug Cartel" and the "Big Elks," that glorified drug
use. Pet. App. 4a. There was a threefold increase in
classroom disruptions and disciplinary reports. Id. at
80a-81a, 86a.
The drug and discipline problems centered around the
student athletes. Student athletes made up most of the
membership of the "Big Elks," which distinguished itself
by bizarre behavior that teachers believed could only be
due to drug use. Tr. 129. Several student athletes were
caught drinking alcohol in a bus after a game; others
were caught stealing alcohol from a store after a track
meet. Pet. App. 81a. A student wrestler hurt himself by
failing to execute a basic safety maneuver at a wrestling
meet. His coach attributed the injury to drug use

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because the team had practiced the maneuver repeatedly
and because the student's hotel room reeked of marijuana
when the coach visited it on the morning after the meet.
Id. at 81a-82a. The same coach testified that drug use
was affecting some student football players by causing
them to ignore or forget basic safety routines. Id. at 82a;
see also Tr. 110-113.
School officials talked to parents and students, who
confirmed that the increasing discipline problems were
caused by the increasing student drug use. Further
investigation showed that the leaders among the student
drug users were the student athletes. Pet. App. 83a.
That caused particular concern because school athletics
"play a dominant role in the community and student
athletes are well known and admired." Id. at 77a-78a.
School officials considered and tried several measures
before adopting the drug-testing program at issue here.
They held numerous, ongoing drug-education programs,
which had no discernible effect. Pet. App. 84a-85a. On
one occasion, they brought a drug-sniffing dog into one of
the schools. Id. at 85a. They even considered "mass
expulsion" of the offending students. Id. at 86a-87a.
In 1988, school officials began to consider adopting a
drug-testing program. The program at issue here was
implemented in the fall of 1989, after it had been endorsed
at a meeting of parents and approved by the School Board
and the Superintendent. Pet. App. 4a, 87a-88a.
b. Under petitioner's drug-testing program, a student
who wishes to participate in interscholastic sports
(which are held for grades 7 and above) must sign, and
have his parents or guardians sign, a form consenting to
the drug testing of the student. Each student athlete is
tested for drugs before each sports season. In addition,
10% of the student athletes are tested each week of the

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season based on a lottery system. Any student athlete
who refuses to be tested may be suspended from the
athletic program. Pet. App. 4a-5a, 88a-89a; Tr. 47.
The testing procedure during the season is essentially
the same for male and female students at both the grade
school and the high school. A student goes into a locker
room, where he or she is given a cup and a vial by a
teacher or coach of the student's gender. Male students
go to a urinal and urinate into the cup, fully clothed and
with their backs to the adult monitor; female students go
into an enclosed toilet stall to produce their samples.
The monitors are close enough to hear the student
urinate. The student hands the cup to the monitor, who
pours its contents into the vial. The student puts a lid on
the vial; the monitor seals the vial with security tape;
and they both sign and date the tape. A specimen control
number is written on the tape; the vial is put into a
plastic bag; and the bag is sealed. The student then
completes a control form affirming that the sample is his
or hers. Pet. App. 5a-6a, 89a-91a; Tr. 38, 73-75.
The urine samples go to Metrolab, a private laboratory
in Portland. Metrolab tests them for alcohol, ampheta-
mines, cocaine, and marijuana, with an accuracy rate of
99.94%. If a sample tests positive, Metrolab tests it
again. Metrolab reports positive results to the school by
telephone and in writing. Pet. App. 7a, 92a.
The school takes action only if a sample tests positive
twice. In that event, the school meets with the student
and his or her parents or guardians. At the meeting, the
student is given a choice: If the student wishes to stay
in the athletic program, he or she must agree to receive
drug counseling and be tested every week for six weeks;
otherwise, the student is suspended from the athletic
program for the rest of that season and the following one.

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The student has this choice both the first time and the
second time that the student has a confirmed positive
drug test. The third time a student tests positive for
drugs, however, he or she is suspended from the athletic
program for the rest of the season and the next two
seasons. Pet. App. 7a-8a, 93a; Tr. 50-53.
Petitioner's written policy states that the drug-
testing program "is not punitive." PX 1, at 2. Test
results are available only to certain school officials;
otherwise, they "remain confidential." Pet. App, 121a.
Test results "may only be used to suspend the student
from participation in the athletic program-test results
are not disclosed to criminal authorities and may not be
used as the basis for school disciplinary proceedings
such as suspension or expulsions." Id. at 121a-122a.
At the end of the first school year in which the drug-
testing program was implemented (1989-1990), the
number of disciplinary referrals decreased to 50% of
those for the previous year. Tr. 22, 43; see also Pet. App.
34a-36a. School officials attributed the decrease pri-
marily to the drug-testing program. Tr. 44-45, 137; see
also Pet. App. 34a.
c. In the fall of 1991, James Acton, a seventh-grader in
the Washington Grade School, signed up for the football
team. He also took the physical examination that peti-
tioner requires (independently of the drug-testing pro-
gram challenged here) of all students who wish to
participate in interscholastic sports. As part of that
exam, he provided a urine sample. Pet. App. 94a & n.2;
Tr. 13-14. At the first football practice, he was given the
consent form that had to be signed under petitioner's
drug-testing program. James and his parents refused to
sign it. Because of their refusal, James could not try
out for the football team.  Id. at 9a, 94a-95a; Tr. 7-9, 12-13.

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7

2. James' parents, respondents here, brought this
action against petitioner in the United States District
Court for the District of Oregon, relying on 42 U.S.C.
1983. They claimed that petitioner's drug-testing pro-
gram violates the Fourth Amendment of the United
States Constitution and Article I, Section 9, of the
Oregon Constitution. They sought declaratory and
injunctive relief barring the program. Pet, App. 76a.
After a bench trial, the district court entered judgment
for petitioner, holding that the program comports with
the Fourth Amendment and the cognate provision of
Oregon's Constitution. Id. at 76a-142a.
To decide the Fourth Amendment issue, the district
court "engage[d] in a balancing test." Pet. App. 113a-
114a. Under that test, the court required petitioner to
"demonstrate a 'compelling need' for the program" that
outweighed the student's legitimate expectation of
privacy. Id. at 114a. The court held that petitioner made
that showing, based on the following determinations:

(1) drug use was threatening the physical safety of
student athletes, id. at 115a-116a;

(2) student athletes are role models for other
students, including with regard to the use (or non-
use) of drugs, id. at 116a-117a;

(3) the drug-testing program is aimed at the one
activity-participation in interscholastic sports-
that causes it to have the greatest deterrent effect,
id. at 117a;

(4) student athletes have diminished expectations of
privacy, compared to other students, because they
are required to have physical examinations, and they

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have little privacy in the locker room, id. at 117a-
118a;

(5) the drug-testing program was adopted, not as
a "fishing expedition" or a "moral crusade," but
instead "for the limited purposes of addressing
student safety in athletic programs and, ultimately,
maintaining discipline in the classrooms," id. at
118a-119a;

(6) "the school district considered and actually tried
several alternative methods of dealing with the
increase in drug and alcohol related disciplinary
problems" before turning to drug testing, id. at 119a-
120a;

(7) petitioner took "significant steps" to limit the
intrusiveness of the testing, in that students are not
watched when they give urine samples, the samples
are tested only for alcohol and certain illegal drugs,
and the test results are highly accurate, confidential,
and used only to determine eligibility for inter-
scholastic sports, id. at 121a-122a; and

(8) the drug-testing program "limits the degree of
discretion that may be exercised by coaches and
school administrators," since it provides for testing
of all student athletes at the beginning of each season
and on a lottery basis during the season, id. at 122a.

The district court engaged in a similar analysis to
conclude that the drug-testing program satisfies Article
I, Section 9, of the Oregon Constitution. Pet. App. 138a-
142a.
3. The United States Court of Appeals for the Ninth
Circuit reversed, holding that petitioner's drug-testing

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9

program "is invalid under the Fourth Amendment," and,
consequently, that "Oregon would find it invalid under
Article I, Section 9, of its Constitution." Pet. App. 65a.
(The latter holding followed from the first, the court of
appeals determined, because Oregon courts would con-
strue the state constitutional provision to provide at
least as much protection as does the Fourth Amendment
in this case. Id. at 18a; see also id. at 66a (Reinhardt, J.,
concurring). )
Before addressing respondents' constitutional chal-
lenges, the court of appeals rejected their challenge to
the district court's findings of fact (Pet. App. 19a-20a):

[The record] demonstrates that both the ad-
ministrators and the faculty beheld instances of drug
use and glorification. They also perceived actions of
athletes and others that were so far out of the norm
that use of drugs was a logical inference. Besides
that, they were told of incidents by others who were
concerned and who had no reason to lie.

The court of appeals analyzed the constitutionality of
the program in light of four factors that it derived from
Delaware v. Prouse, 440 U.S. 648 (1979) (Pet. App. 31a):

(1) the importance of the governmental interests;
(2) the degree of physical and psychological intrusion
on the citizen's rights; (3) the amount of discretion
the procedure vests in individual officials; and (4) the
efficiency of the procedure.

The court determined that the third and fourth factors
"weigh in favor of the [program's] constitutionality." Id.
at 34a. As to the third factor, the court observed that the
program "vests no discretion in any District officials."
Id. at 37a. As to the fourth factor, the court observed
that "[e]very teacher who testified had noticed an im-

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provement in discipline, a reduction in disciplinary refer-
rals, and a decrease in drug use and the glorification of
drug culture since the [program] was implemented." Id.
at 34a,
The court of appeals nonetheless determined that the
first and second factors were "dispositive" of the drug-
testing program's unconstitutionality. Pet. App. 37a. In
the court's estimation, the school's goals of protecting
student athletes and deterring drug use by all students
are "worthy" but do not concern "the type of potential
disaster that has caused [this] Court or [the Ninth
Circuit] to find a governmental interest compelling
enough to permit suspicionless testing." Id. at 56a, 58a.
The court also found that the privacy interests of
students covered by petitioner's program are not "much
less robust than the interests of people in general." Id.
at 53a.

SUMMARY OF ARGUMENT

I. Petitioner's drug-testing program should be
reviewed under the same balancing approach that this
Court used in Skinner v. Railway Labor Executives'
Ass'n, 489 U.S. 602 (1989), and National Treasury
Employees Union v. Von Raab, 489 U.S. 656 (1989), to
review Fourth Amendment challenges to suspicionless
drug-testing programs. In Skinner and Von Raab, the
Court upheld suspicionless drug-testing programs by
balancing the individual's legitimate privacy interests
against the government's interests. The Court found
that the particular programs at issue there passed the
balancing test because they (1) served "compelling"
governmental interests that would be jeopardized if
individualized suspicion were required; (2) posed only a
limited threat to the legitimate expectations of privacy

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of those covered by the programs; and (3) provided
safeguards to limit the discretion of the officers admin-
istering the programs.
II. When reviewed under the balancing approach of
Skinner and Von Raab, petitioner's drug-testing
program satisfies the Fourth Amendment.
First, petitioner's program serves compelling govern-
mental interests: the protection of student athletes from
physical injury and the deterrence of drug use by
students generally. The State's interest in "the educa-
tion and training of young people" is "compelling." New
Jersey v. T.L.O., 469 U.S. 325, 350 (1985) (Powell, J.,
concurring). Petitioner showed that it could not
effectively educate its students in the wake of the drug
and discipline problems that developed in the mid-1980s
without a drug-prevention program that included, as a
reasonable component thereof, a program of drug-testing
for athletes. Petitioner also showed that its interests
could not have been served by drug testing based only
upon individualized suspicion.
Second, petitioner's program poses only a limited
threat to the legitimate privacy interests of the students
covered by it. "[Students within the school environment
have a lesser expectation of privacy than members of the
population generally." T.L.O., 469 U.S. at 348 (Powell, J.,
concurring). Moreover, petitioner showed that the
student athletes covered by its program have lesser le-
gitimate expectations of privacy with regard to physical
examinations than do students in general.
Finally, petitioner's program leaves little room for
discretion by "officials in the field." It provides for all
student athletes to be tested at the start of each season
and for student athletes to be tested on a lottery basis
during the season. That procedure minimizes the risk of

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random or arbitrary violations of the Fourth Amendment
by individual government officials.
         
ARGUMENT

PETITIONER'S PROGRAM FOR THE SUSPICION-
LESS DRUG TESTING OF STUDENT ATHLETES
COMPORTS WITH THE FOURTH AMENDMENT

Petitioner's drug-testing program plainly implicates
the Fourth Amendment (as made applicable to the States
by the Fourteenth Amendment, see Mapp v. Ohio, 367
U.S. 643 (1961)). That is because petitioner's program
entails "the collection and testing of urine," which
"must be deemed searches under the Fourth Amend-
ment." Skinner v. Railway Labor Executives' Ass `n,
489 U.S. 602, 617 (1989); see National Treasury Em-
ployees Union v. Von Raab, 489 U.S. 656, 665 (1989). In
Skinner and Von Raab, this Court upheld, against
Fourth Amendment challenges, programs for the suspi-
cionless drug testing of certain groups of employees. We
show in Part I below that the approach of Skinner and
Von Raab should be used to review respondents' Fourth
Amendment challenge to petitioner's program. We show
in Part II below that, under that approach, petitioner's
program comports with the Fourth Amendment.

I. Petitioner's Drug-Testing Program Should Be
Reviewed Under The Balancing Approach of
Skinner And Von Raab

"Except in certain well-defined circumstances,"
Skinner, 489 U.S. at 619, the Fourth Amendment re-
quires a search to "be supported * * * by a warrant
issued upon probable cause," Von Raab, 489 U.S. at 665.
In Skinner and Von Raab, this Court held that "where a
Fourth Amendment intrusion serves special govern-
mental needs, beyond the normal need for law enforce-

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ment, it is necessary to balance the individual's privacy
expectations against the Government's interests to
determine whether it is impractical to require a warrant
or some level of individualized suspicion in the particular
context." Von Raab, 489 U.S. at 665-666; see Skinner,
489 U.S. at 624. The Court in Skinner and Von Raab
further held that the programs before it were reasonable
under a balancing test to the extent that they (1) served
compelling governmental interests that would be
jeopardized if individualized suspicion were required; (2)
posed only a limited threat to the legitimate expectations
of privacy of those covered by the programs; and (3) had
safeguards to prevent random or arbitrary violations of
the Fourth Amendment by government officials.
Petitioner's program is reasonable on the same grounds.
The Court in Skinner and Von Raab proceeded in two
stages. First, the Court held that the programs before it
did not automatically violate the Fourth Amendment
merely because they provided for searches without
warrants or probable cause. See Skinner, 489 U.S. at
618-624; Von Raab, 489 U.S. at 665-668. The Court based
that holding on the existence of "special needs, beyond
the normal need for law enforcement," that "ma[d]e the
warrant and probable-cause requirement impracticable."
Skinner, 489 U.S. at 619 (quoting New Jersey v. T. L. O.,
469 U.S. 325, 351 (1985) (Blackmun, J., concurring in the
judgment); Von Raab, 489 U.S. at 665-666.
The Court in Skinner and Von Raab then turned to
the question whether the programs before it satisfied
the reasonableness requirement of the Fourth Amend-
ment. To decide that question, the Court balanced the
governmental interests served by the programs against
the legitimate privacy interests of those covered by the
programs. In holding that the governmental interests

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outweighed the individual interests, the Court made
three determinations.
First, the Court in Skinner and Von Raab determined
that the drug-testing programs before it served
"compelling" governmental interests that would be
jeopardized if searches had to be conducted based only on
individualized suspicion. Thus, in Skinner, the Court
determined that "the Government interest in testing
without a showing of individualized suspicion is com-
pelling" with respect to railroad employees involved in
train accidents and certain violations of train-operating
rules. 489 U.S. at 628; see also id. at 609-611, 633. The
Court reasoned that those employees "can cause great
human loss before any signs of impairment become
noticeable." Id. at 628. In Von Raab, the Court deter-
mined that a program for the drug testing of U.S.
Customs Service employees who are directly involved in
drug interdiction or who carry firearms serves the
government's "compelling interests in safeguarding our
borders and the public safety." 489 U.S. at 677; see also
id. at 660-661.
Second, the Court in Skinner and Von Raab deter-
mined that the programs did not unduly interfere with
the legitimate privacy expectations of those covered by
the programs. The Court recognized that urine tests,
which were required by both programs at issue, could
raise significant privacy concerns in most contexts.
Skinner, 489 U.S. at 626; Von Raab, 489 U.S. at 671. But
the Court held that those concerns were minimized in
each case by two factors that have particular relevance
to the present case: (1) the program was designed "to
reduce the intrusiveness of the collection process,"
Skinner, 489 U.S. at 626; see Von Raab, 489 U.S. at 672
n.2; and (2) the covered employees had diminished expec-

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tations of privacy compared to the population in general,
see Skinner, 489 U.S.  at 627; Von Raab, 489 U.S. at 672.
Finally, the Court in Skinner and Von Raab deter-
mined that the standards for testing prescribed by the
programs before it minimized the risk of arbitrary
enforcement by individual government officials. Thus, in
Skinner, the Court found it significant that the drug-
testing program for railroad employees posed no risk of
"random or arbitrary" enforcement by government
agents because of "the standardized nature of the tests
and the minimal discretion vested in those charged with
administering the program." 489 U.S. at 622. Similarly,
in Von Raab, the Court determined that, because of the
criteria for testing specified in the program admini-
stered by the U.S. Customs Service, a covered employee
"is simply not subject to the discretion of the official in
the field." 489 U.S. at 667 (internal quotation marks
omitted). See also New Jersey v. T.L.O., 469 U.S. 325,
342 n.8 (1985) ("Exceptions to the requirement of indivi-
dualized suspicion are generally appropriate only where
the privacy interests implicated by a search are minimal
and where 'other safeguards' are available 'to assure that
the individual's reasonable expectation of privacy is not
"subject to the discretion of the official in the field."'"
(quoting Delaware v. Prouse, 440 U.S. 648, 654-655
(1979)).

II. Petitioner's Drug-Testing Program Is Rea-
sonable Under The Balancing Approach of
Skinner And Von Raab

We discussed above the standard that this Court
applied in upholding suspicionless drug-testing pro-
grams for employees under a balancing of interests in
Skinner and Von Raab. See pp. 12-15, supra. A suspi-
cionless drug-testing program for students should not be

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subject to a more stringent standard. 2. And because
petitioner's program satisfies the standard applied in
Skinner and Von Raab, this case does not provide an
occasion for addressing petitioner's contention that a
less stringent standard applies to suspicionless drug-
testing programs for students. See Pet. 35-37; see also
Pet. 38.

___________________(footnotes)

2 In New Jersey v. T.L.O., supra, the Court held that "school
officials need not obtain a warrant before searching a student who
is under their authority," and that such searches do not need to
"be based on probable cause to believe that the subject of the search
has violated or is violating the law." 469 U.S. at 340, 341. This
Court has subsequently made clear that those holdings were based
on the existence of "special needs" of the same sort as were found
to exist in Skinner and Von Raab. See T.L.O., 469 U.S. at 351
(Blackmun, J., concurring in the judgment) ("Only in those
exceptional circumstances in which special needs, beyond the
normal need for law enforcement, make the warrant and probable-
cause requirement impracticable, is a court entitled to substitute
its balancing of interests for that of the Framers."); see also
Skinner, 489 U.S. at 619 (quoting concurring opinion of Blackmun,
J., in T.L.O.); Von Raab, 489 U.S. at 665-666 (paraphrasing same);
Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting same); New
York v. Burger, 482 U.S. 691, 702 (1987) (quoting same); O'Connor
v. Ortega, 480 U.S. 709, 720 (1987) (plurality opinion) (quoting
same). Under T.L.O., because petitioner's drug-testing program
serves "special needs, " it is not per se invalid on the grounds that
it permits searches without warrants or probable cause. By the
same token, the existence of such "special needs" does not mean
that petitioner's program necessarily comports with the Fourth
Amendment. It must still be determined whether the program
satisfies the Fourth Amendment's reasonableness requirement.
That determination should be made under the balancing approach
of Skinner and Von Raab.

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A. Petitioner's drug-testing program serves
compelling governmental interests that
would be jeopardized if individualized
suspicion were required

1. "Education 'is perhaps the most important
function' of government." T.L.O., 469 U.S. at 353
(Blackmun, J., concurring in the judgment) (quoting
Brown v. Board of Education, 347 U.S. 483,493 (1954)).
Consequently, "[a] State has a compelling interest in
assuring that the schools" effectively perform that
function. T. L. ()., 469 U.S. at 350 (Powell, J., concurring).
Petitioner showed that it could not effectively educate
its students unless it undertook suspicionless drug
testing as part of a broader drug-prevention program.
Petitioner also showed that the interests served by that
program would be jeopardized if individualized suspicion
were required. Under those circumstances, petitioner
demonstrated that its program was supported by com-
pelling governmental interests.
A school cannot effectively educate its students when
a significant number of them uses alcohol or illegal
drugs on a regular basis, for three reasons. First, the
use of drugs and alcohol "significantly impede[s] the
learning process" of the individual user. 20 U.S.C.
3172(3); Improving America's Schools Act of 1994, Pub.
L. No. 103-382, 101, 108 Stat. 3672 ("Findings"; Section
4002(2)). 3. Second, student drug users may cause violence

___________________(footnotes)

3 See also 1 National Institute on Drug Abuse, National Survey
Results on Drug Use from the Monitoring the Future Study, 1975-
1993', at 64-65 (1994) [hereinafter National Survey Results]
(discussing differences in rates of drug use between college-bound
and non-college-bound students); 1 Core Institute, Southern Illinois
Univ., Alcohol and Drugs on American College Campuses 24, Table

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and lesser disruptions that keep other students from
learning. See 108 Stat. 3672-3690 (amending Drug-Free
Schools and Communities Act of 1986, 20 U.S.C. 3171 et
seq., to authorize federal funding for violence, as well as
drug, prevention programs). 4. Third, as more students
begin to use drugs, more are tempted to begin using
them, because of peer pressure. 5.
Petitioner proved that each of these factors was
operative here. Petitioner showed that in the mid-1980s
its schools faced a dramatic erosion of student discipline.
As the district court found (Pet. App. 80a-81a):

Outbursts of profane language during class, rude and
obscene statements directed at other students, and a
general flagrant attitude that there was nothing the
school could do about their conduct or their use of
drugs or alcohol typified a usual day.

___________________(footnotes)

2-11 (1989-1991) (showing inverse relationship between number of
drinks of alcohol per week and college students' grade point
average).
4 The House Committee Report on the 1994 legislation
explained (H. R. Rep. No. 425, 103d Cong., 2d Sess. 29 (1994)):

Drugs and violence are related in many ways. Some drugs
affect the user in ways that make violence more likely. Some
drug users commit violent acts to get money to buy drugs.
Violence is common in drug trafficking as a result of
disagreements about transactions and because traffickers use
violence as a way to gain competitive advantage.

See also S. Greenbaum, Drugs, Delinquency, and Other Data in 2
Office of Juvenile Justice and Delinquency Prevention, Office of
Justice Programs, U.S. Dep't of Justice, Juvenile Justice 3-4
(Spring/Summer 1994).
5 See 1 National Survey Results 228 ("It is generally
acknowledged that much of youthful drug use is initiated through
a peer social-learning process.").

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The district court also found that the dramatic increase
in discipline problems stemmed from an equally dramatic
increase in drug and alcohol use by students (ibid.):

All of the teachers who testified at trial expressed
how appalled and helpless they felt as students
increasingly expressed their attraction to, and vocal
defense of, the use of drugs. Students boasted about
drug use and regaled one another with stories of the
latest "high" or "party." * * * Organizations
formed within the student drug culture taking such
names as the "Big Elks" or the "Drug Cartel."
* * * Drug paraphernalia was confiscated on schools
grounds, and open use of drugs was observed at a
local cafe across the street from the high school.

The district court further found that, from petitioner's
investigation, it "became clear that the leaders of this
[drug] activity were also the leading student athletes."
Id. at 83a. The drug activity was, the district court
found, endangering not only the physical safety of
student athletes who used drugs but also the welfare of
their peers, for whom student athletes served as role
models, including with respect to drug use. Id. at 83a-
84a, 116a-117a.
Respondents' challenge to the district court's
findings, which they renew here (Br. in Opp. 4-16), was
rejected by the court of appeals (Pet. App. 18a-2 la); in
any event, it "evinces an unduly narrow view of the
context in which [petitioner's] testing program was
implemented." Von Raab, 489 U.S. at 674. Respondents
primarily dispute that there was an "epidemic" of drug
use in Vernonia's schools. Br. in Opp. 4-7. "Epidemic"
or not, there is no question that drug use in Vernonia's
schools was substantial; in addition, petitioner's program

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was designed to deter students from taking drugs in the
first place as much as it was designed to detect those
who were already taking drugs. Cf. Von Raab, 489 U.S.
at 674 ("The Service's program is designed to prevent
the promotion of drug users to sensitive positions as
much as it is designed to detect those employees who use
drugs."). In light of that purpose and the fact that
petitioner's program covers only student athletes, it was
sufficient for petitioner to show that a significant
portion of the student body was using drugs or alcohol on
a regular basis, to the severe detriment of student
discipline on a school-wide basis; that student drug use
was most acute among the student athletes, whose drug
use exposed them to increased risk of physical injury;
and that the student athletes served as role models for
other students, such that the use of drugs or alcohol by a
significant portion of the student athletes reasonably
could be expected to encourage drug use by other
students.
Moreover, the adoption of the drug-testing program
was not a precipitous response to the drug problem.
School officials first investigated the problem by talking
to parents, teachers, and coaches. They then conducted
ongoing drug-education programs. On one occasion they
brought a drug-sniffing dog into the school, and they
considered mass expulsion. It was only after substantial
drug use continued that they considered drug testing.
Then, too, they proceeded cautiously and methodically,
by investigating drug-testing programs in other schools
and obtaining legal advice. Pet. App. 85a-88a. The
program that was instituted was a measured response to
a demonstrated problem, not a "fishing expedition" or a
"moral crusade." Id. at 118a.

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The Ninth Circuit deemed the goals underlying
petitioner's program to be "worthy," but not "com-
pelling." Pet. App. 56a-58a. The court considered the
goals less than compelling because it did not believe that
the drug problem in Vernonia schools posed a "terrible
threat to safety" such as "some shooting, some explo-
sion, some crash of train, truck, or aircraft, or some
breach of top secret national security." Id. at 58a. That
belief, in turn, appeared to be based on the notion that a
student who uses drugs hurts only him- or herself.
As discussed above, the record refutes the notion that
the harm of substantial drug use in schools is limited to
the individual users. Moreover, petitioner's experience
in that regard is consistent with the national data. Cf.
Von Raab, 489 U.S. at 674 (in assessing governmental
interest, Court notes that "drug abuse is one of the most
serious problems confronting our society today"). In
addition to the immediate destructive effects of drug use
on the educational process, the Department of Education
advises us that there were about 50 homicides in the
nation's schools last year. In addition, "[a]bout 3 million
thefts and violent crimes occur on or near a school
campus each year, nearly 16,000 incidents per school
day." H.R. Rep. No. 425, 103d Cong., 2d Sess. 29 (1994).
Experts believe that many, if not most, of those incidents
are drug-related. 6.

___________________(footnotes)

6 In 1994, the National School Boards Association reported that,
according to its recent survey of 729 school districts and numerous
school leaders, 45% of the incidents of violence in the schools
during the 1992-1993 school year were drug-related. See Violence
in the Schools: How America's School Boards Are Safeguarding
Our Children 6 (1993). The Bureau of Justice Statistics within the
Department of Justice reports that, according to the National
Crime Survey, 37% of all violent crimes committed against young

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2. Petitioner showed that its drug-prevention
program would be jeopardized by requiring individualized
suspicion for drug testing, for the same reasons that
obtained in Skinner.
Here, as in Skinner, the evidence showed that it is not
always possible to detect the signs of alcohol and drug
use. See Pet. App. 120a (crediting testimony that "visual
observations (even by professionals) are simply not
reliable indicators of whether [a] student may have
consumed alcohol or drugs"); cf. Skinner, 489 U.S. at
628-629. Thus, like the program at issue in Skinner,
petitioner's program has a greater deterrent effect than
would a program based on individualized suspicion,
because it increases the likelihood of detection. Cf. id. at
630. Moreover, petitioner's program, like the program at
issue in Skinner, "suppl[ies] an effective means of deter-
ring" individuals covered by the program "from using
controlled substances or alcohol in the first place." 469
U.S. at 629. The need to deter a person's "first use" of
drugs is especially compelling in the case of students.
Both the record in this case and studies confirm that a
person is particularly vulnerable to the "first use" of
drugs and alcohol in his or her middle and high school
years. Tr. 43; Office of National Drug Control Policy,
Executive Office of the President, National Drug
Control Strategy: Reclaiming Our Communities from
Drugs and Violence 32 (Feb. 1994).

___________________(footnotes)

teenagers occur at school, and about one-third of all victims of
violent crime perceived the offender to have been under the
influence of drugs or alcohol, or both, at the time of the offense.
See Teenage Victims: A National Crime Survey Report 5, 8 (May
1991).

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23

B. Petitioner's drug-testing program poses
only a limited threat to the legitimate
privacy interests of students covered by
the program

The legitimate privacy expectations implicated by
petitioner's program are no greater than those
implicated by the programs upheld in Skinner and Von
Raab.
Like the programs before this Court in Skinner and
Von Raab, petitioner's program has features that
"significantly minimize the program's intrusion on
privacy interests." Von Raab, 489 U.S. at 672 n.2.
Testing under petitioner's program is predictable:
Students know that, if they decide to participate in
interscholastic sports, they will be tested at the
beginning of the season and may be tested during the
season. Cf. ibid.; Skinner, 489 U.S. at 609. Moreover,
here, as in Skinner and Von Raab, "[t]here is no direct
observation of the act of urination," Von Raab, 489 U.S.
at 673 n.2; see Skinner, 489 U.S. at 626. And here, as the
Court found in Von Raab, "urine samples may be exa-
mined only for specified drugs," and the results of the
testing are highly accurate. 489 U.S. at 673 n.2. Indeed,
the only significant difference between petitioner's
program and those in Skinner and Von Raab is that
under petitioner's program test results may not be used
for criminal prosecution under any circumstances. Pet.
App. 121a-122a; cf. Skinner, 489 U.S. at 621 n.5; Von
Raab, 489 U.S. at 666. That difference, of course, makes
petitioner's program less intrusive than those upheld in
Skinner and Von Raab.
The Ninth Circuit erred in holding that the legitimate
privacy interests of student athletes are not "much less

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24

robust" than those of the general adult population. Pet.
App. 53a. The Court in T.L.O. upheld the search of a
student by school officials based on a standard lower than
probable cause. T.L.O. thus establishes that, for Fourth
Amendment purposes, "students within the school
environment have a lesser expectation of privacy than
members of the population generally." 469 U.S. at 348
(Powell, J., concurring); cf. Schall v. Martin, 467 U.S.
253,265 (1984).
Moreover, the student athletes covered by petitioner's
program have lesser expectations of privacy, with
respect to urine tests, than members of the student
population generally. Student athletes in Vernonia were
required to take urine tests as part of physical
examinations that were required independently of the
drug-testing program, Pet. App. 94a & n.2; Tr. 13-14. In
addition, the locker rooms in which student athletes
changed clothes for sports afforded little privacy.
Petitioner's program used these same locker rooms for
collection of the required urine samples. Tr. 39-43, 75-76,
121-123,126.

C. Petitioner's drug-testing program has safe-
guards to prevent random or arbitrary
searches by individual officials

The parties and the courts below say that petitioner's
program allows "random" drug testing. See, e.g., Pet. i;
Pet. App. 1a. The program is not "random," however, in
the pejorative sense that this Court has sometimes used
that word in Fourth Amendment analysis. On the
contrary, the "randomness" of petitioner's program
results from its having procedures for drug testing that
leave little room for arbitrary searches by individual
government officials. The procedures thus prevent the

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singling out of any particular student or group of
students for drug testing, and they therefore buttress
the reasonableness of the program.
The warrant and probable-cause requirements of the
Fourth Amendment function as safeguards against "the
random or arbitrary acts of government agents."
Skinner, 489 U.S. at 622; see, e.g., T.L.O., 469 U.S. at 335;
Prouse, 440 U.S. at 653-655; Carnara v. Municipal
Court, 387 U.S. 523, 528 (1967). When neither a warrant
nor individualized suspicion is required for a search or
seizure, "other safeguards" are required "to assure that
the individual's reasonable expectation of privacy is not
`subject to the discretion of the official in the field.'"
Prouse, 440 U.S. at 655 (quoting Camara, 387 U.S. at
532); T.L.O., 469 U.S. at 342 n.8. In the absence of
safeguards against abuses of discretion, a program
allowing warrantless, suspicionless searches or seizures
violates the Fourth Amendment. Compare Prouse, 440
U.S. at 655, 661 with Michigan Dep't of State Police v.
Sitz, 496 U.S. 444,454-455 (1990).
Petitioner's program has safeguards against "random
or arbitrary" searches by school officials. Every student
athlete must be tested at the beginning of every season
and is subject to testing during the season on a lottery
basis. See p. 4, supra. As a result, the program leaves
virtually no discretion to the "official in the field." See
Pet. App. 37a; of. Skinner, 489 U.S. at 622; Von Raab, 489
U.S. at 667.

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CONCLUSION

The judgment of the court of appeals should be
reversed.
Respectfully submitted.

DREW S. DAYS, III
Solicitor General

FRANK W. HUNGER
Assistant Attorney General

PAUL BENDER
Deputy Solicitor General

RICHARD H. SEAMON
Assistant to the Solicitor
General

LEONARD SCHAITMAN
EDWARD HIMMELFARB
Attorneys

JANUARY 1995

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