Constitutionality of Testing High School Male Athletes for Steroids Under Vernonia School District v. Acton and Board of Education v. Earls

I. INTRODUCTION Congress is concerned with steroid use not only by professional baseball players,1 but also by the nation's youth.2 The legislature has good reason to be concerned. A 2003 study by the National Institute on Drug Abuse showed that illicit use of drugs increasingly plagues schools across the United States.3 Steroids are among those drugs that high school students are using at an increasing rate.4 Equally disturbing is the evidence that fewer and fewer high school students view steroids as harmful.5 These trends are especially alarming given that numerous studies have alerted the public to the adverse physical side effects of steroids,6 as well as behavioral problems that coincide with steroid use.7 While most schools do not currently test for steroids, a minority of schools do test student athletes for steroid use.8 Additionally, some state legislatures are discussing laws that would require schools to test student athletes for steroids.9 This paper uses a theoretical high school policy that randomly10 tests male athletes for steroids to critically examine the "special needs" balancing test that the Supreme Court developed in Vernonia School District v. Acton11 and Board of Education v. Earls.12 Courts have long recognized that drug testing implicates the Fourth Amendment's prohibition on unreasonable searches.13 In the public school context, the Supreme Court developed a threepronged balancing test in Acton to decide whether the school's drug testing policy was a reasonable search.14 The Acton test's prongs are (1) the nature of the privacy interest involved,15 (2) the character of the intrusion,16 and (3) the nature of the governmental concern and the efficacy of the search in meeting that concern.17 In Earls, the Court expanded this test and found that the nationwide drug epidemic created an important governmental concern that satisfied the third prong.18 In both Acton and Earls, the Supreme Court found that the schools' random drug testing policies satisfied all three prongs.19 The Court thus did not actually have to perform any balancing. The Acton balancing test after Earls has two fundamental problems that this Comment addresses. First, these cases do not provide any guidance as to how a court should actually balance the prongs when a drug testing policy does not meet all three prongs. Second, the test can unnecessarily infringe on student privacy interests. If a school can use the nationwide drug problem to satisfy the test's third prong, then the school can test students even if an actual problem does not exist at their school. A hypothetical high school policy that randomly tested male athletes for steroids easily demonstrates these two problems. Schools obviously have an important concern in preventing steroid use among their students. Applying the Acton balancing test to a policy that randomly tested male athletes for steroids would create confusion, though, because the policy likely would not meet the second part of the third prong because steroid testing is significantly more expensive than other forms of drug testing and steroid testing simply cannot detect many forms of steroids. Since the Court did not provide any guidance on how to balance these prongs in Acton or Earls, a steroid-testing policy would create confusion in the lower courts with respect to how to actually balance the Acton test's three prongs. Additionally, a steroid-testing policy could unnecessarily infringe on students' privacy rights. If the school can use the national steroid problem to satisfy the first part of the test's third prong, then student privacy interests are marginalized even though the school has not shown an actual steroid problem at its campus. This Comment proposes two slight modifications to the Acton balancing test that can rectify these problems. First, to prevent confusion that would ensue when all of the prongs are not met, courts should transform the three-pronged balancing test into a simple four-pronged test that requires all four prongs be satisfied before finding that steroid testing is constitutional. …