William H. Rehnquist: We'll hear argument now in Number 94-590, Vernonia School District. Is that the way you pronounce the name of the--
Timothy R. Volpert: Yes, it is, Mr. Chief Justice.
William H. Rehnquist: --Versus Wayne Acton. Mr. Volpert.
Timothy R. Volpert: Mr. Chief Justice, and may it please the Court: The issue presented is whether a school district faced with a serious drug problem with student athletes at its core may reasonably require athletes to submit to drug testing absent individualized suspicion. The school district has established a serious threat to its ability to educate its students and to the safety of its athletes--
David H. Souter: Has it identified that threat as drug use, as opposed to, sort of a lot of bragging about drug use? It seems to me, my recollection is that the, kind of the hard evidence on the actual usage was on the thin side, whereas there was plenty of evidence that people were going around bragging about drug use, glorifying drug use, giving the impression that it was a smart thing to do, and kids at that age claim to have done a lot of things that they haven't done. Where does the, sort of the hard evidence stop and the evidence of talk begin?
Timothy R. Volpert: --The hard evidence of drug use consists, Justice Souter, of observations on numerous occasions by a teacher of students smoking marijuana across the street, arrests of student athletes for using drugs, confiscation of drug paraphernalia on school grounds, admissions by students to the principal that they have used drugs, admissions by certain student athletes to the coaches that they had used drugs, coaches' observations of marijuana coming from the room of athletes the day after a serious injury--
David H. Souter: Well, there was one example of that, for example. Was there more?
Timothy R. Volpert: --I'm sorry, of what?
David H. Souter: I mean, the... as I recall the briefs, there was one example of a coach going into a... I think it was a wrestler's room, and he smelled... after the kid had been injured, and he smelled pot. I mean, were there other instances of that?
Timothy R. Volpert: There were no other instances that I can recall from the record, Justice Souter, where the smell of marijuana, where the teachers or coaches noticed the smell of marijuana.
David H. Souter: I think that's what's bothering me, because... I'm sure you didn't intend this, but I think you spoke of it in the plural, and yet there was only one instance of it, and that's why I'm troubled by the difficulty of figuring out just what is provably there about use, as opposed to what is generalization, or what is generalization about student bragging.
Timothy R. Volpert: Well, I could only answer that by saying that I believe that we have numerous... I don't believe, we do have numerous observations, admissions, proof of athletes being arrested for the use of drugs, and there is... I believe what you're referring to is, there is one instance, and I did not mean to speak of it in the plural, where a wrestler... where a coach smelled marijuana coming from a wrestler's room. The one thing that it seems to me is missing from this record is a direct observation of a student athlete using drugs and then, for instance--
Sandra Day O'Connor: Well, Mr. Volpert, did the school district try a drug testing scheme based on reasonable suspicion that a particular student might be experimenting with drugs?
Timothy R. Volpert: --If you mean urinalysis drug testing, Justice O'Connor, no, they did not.
Sandra Day O'Connor: Well, the same kind of testing you're doing under... or the school was doing under this random--
Timothy R. Volpert: No, they--
Sandra Day O'Connor: --testing. You didn't ever use reasonable suspicion, and for those that the coaches suspected of using drugs--
Timothy R. Volpert: --We did not--
Sandra Day O'Connor: --Ask them to be tested.
Timothy R. Volpert: --Excuse me. We did not ever combine reasonable suspicion with urinalysis drug testing.
Sandra Day O'Connor: Why not?
Timothy R. Volpert: There's no direct evidence in the record with regard to that. I can only surmise that the district determined, the school district and the school board made a reasonable determination that first of all they would have difficulty making a reasonable accusation based only on suspicion of drug intoxication, and second of all, that they assumed that there would not be the deterrent effect that a random drug testing program would have, because the only way to... if you are basing it on reasonable suspicion, you are largely left to observing behavior, and bizarre behavior, and then reaching a conclusion--
Sandra Day O'Connor: Or relying on what people have been saying. If somebody says they have been experimenting, you don't think that would give rise to reasonable suspicion--
Timothy R. Volpert: --Well, the--
Sandra Day O'Connor: --that it might be true?
Timothy R. Volpert: --The problem is that if someone says on Wednesday that they have used drugs in the past, I am not at all convinced that there would be a reasonable suspicion sufficient to test them at that time, just based on conversations of past drug use.
Anthony M. Kennedy: Do you think that the rule that we announce ought to be a rule that's specific on a school-by-school, case-by-case basis, or would it be plausible for us to say, a) there is a drug problem of dangerous proportions in this middle and high school population throughout the country, and that even those schools that are relatively drug free have a strong interest in keeping themselves that way?
Timothy R. Volpert: Justice Kennedy, I believe that this Court's holdings in Skinner and Von Raab, this Court could reach such a conclusion. However, I think that there is a reasonable basis for drawing the line and requiring individual school districts to establish, or to reasonably conclude that they have individual problems.
Anthony M. Kennedy: Each district, or each school? Suppose there are three high schools, one with a serious drug problem, the other mild... the other mild by today's standard, which means only 10 percent of the students are using them from time to time... and the other substantially less than that. Could you have a district-wide rule?
Timothy R. Volpert: If the school district on the local level determined that there was a serious drug problem in one of the schools, and after deliberation reached a reasonable conclusion that there was an immediate threat to the other schools, I believe you could.
William H. Rehnquist: How about our decision in the City of Renton case dealing with adult bookstores and so forth? There we said that one city council could rely on findings made by other city councils as to the effect of adult bookstores in connection with neighborhood deterioration?
Timothy R. Volpert: Mr. Chief Justice, I believe that certainly a school district could rely on evidence of a drug problem in neighboring school districts. I also believe that based on this Court's decisions, especially in Von Raab, this Court could decide that a school district without any drug problem could rely on national evidence, but I think that there is a reasonable basis for drawing a line and allowing individual school boards to make that determination. That is not to say that it would have to be based on... that it has to be based on evidence in each school in the district. That does not say that it cannot be based on evidence of a drug problem in the county, or in the general area. If there is a reasonable belief of a serious and eminent threat of drug use in the schools, we believe that testing should be allowed.
David H. Souter: Now, by the same reasoning, shouldn't testing then be allowed through the entire school population? And haven't, in fact, you made... if your case is good here, haven't you in fact made a case for random testing of the entire school population in these schools?
Timothy R. Volpert: Justice Souter, under the facts of this case, I believe we have probably made a sufficient case for drug testing of the entire student body of the Vernonia School District.
David H. Souter: Because your argument basically is that the nonathletes tend to follow the lead of the athletes, so that if your hypothesis is right, then sort of--
Timothy R. Volpert: No.
David H. Souter: --throughout the school population you're doing this.
Timothy R. Volpert: No, that would not be our argument. Our... my argument is that that, in fact, occurred. I would not... to the extent... I would not base that on speculation that because athletes are using drugs, that there might be a spillover effect. In this case, there is proof, I believe the district court called beyond any reasonable doubt, that there was a drug problem which was all-pervasive throughout the school system, athletes and nonathletes.
Ruth Bader Ginsburg: Mr. Volpert, isn't there a significant difference between the people who go to school, who are required to go to school by State law, and athletes? The athletes sign a consent form, do they not? Isn't there a difference between athletics, which is a volunteer activity... I thought that you were relying on that distinction, and that's why you were limiting the testing to the athletics program, but now you tell me no, it's just on the basis of pervasive drugs. You could randomly test all students.
Timothy R. Volpert: Justice Ginsburg, in this case we have a serious threat to athletes and a serious threat to preservation of discipline and order in the schools. In our case, we have both. In response to Justice Souter's question, I was simply suggesting that it would be possible to establish a situation that was so bad in the general school population and was such a threat to the preservation of order in the schools that would justify testing of all athletes... excuse me, of all students. That is not--
David H. Souter: But didn't you also say that you had it here, that you had made the case here, or could have made the case here?
Timothy R. Volpert: --I think hypothetically we could have made that case under these facts.
David H. Souter: So that you didn't... on your theory you didn't need, as Justice Ginsburg points out, the feature of the voluntary consent form.
Timothy R. Volpert: Our case is based on both. I am responding to a hypothetical. I do not think that in all circumstances it is necessary for you to have both.
David H. Souter: Serious enough problem, you don't need the consent; less serious problem, you might need it?
Timothy R. Volpert: Extreme problem.
John Paul Stevens: Let me ask a different question. Supposing... if it's that serious, you're also assuming it's so serious you can't... you wouldn't have any individualized suspicion as to particular students who might be using drugs. It would be sort of a contradiction, it seems to me.
Timothy R. Volpert: Well, I don't think so, Justice Stevens, because if you... it's kind of hard to characterize the record in this case, but when you read the record in its entirety, you realize the extent to which drug use became... the extent to which disciplinary problems became pervasive.
Ruth Bader Ginsburg: But Mr. Volpert, we have findings. What did the... the district court made findings, and the Ninth Circuit said, we accept those findings.
Timothy R. Volpert: Correct.
Ruth Bader Ginsburg: Rejected... even though the Ninth Circuit came out the other way. Those facts are the ones that control this case. And what were the facts that the district court found? Did they find... the district court find that everybody in the school was involved, or what exactly is the fact basis for the case?
Timothy R. Volpert: The district court found, Justice Ginsburg, a startling and progressive increase in the use and glamorization of drugs, characterized the studert body being in a state of rebellion, characterized... said a general flagrant attitude that there was nothing the school could do about their conduct or drug use typified a usual day. Teachers testified about a tremendous difference in the type of behavior than they had seen over the course of the last 16 or 17 years.
John Paul Stevens: None of that sounds like it's confined to athletes.
Timothy R. Volpert: Pardon me?
John Paul Stevens: None of that sounds like it's confined to athletes.
Timothy R. Volpert: Justice Stevens, the district court found that the athletes were among the leaders of the group in the classroom who were causing disruptions.
John Paul Stevens: How do they know that if they don't have individualized suspicion? That's what puzzles me.
Timothy R. Volpert: How do they know that--
John Paul Stevens: Yes.
Timothy R. Volpert: --That the athletes were being disruptive?
John Paul Stevens: No, no. They know who the leaders are who are the most frequent users of drugs, but they don't have any individualized suspicion as to particular individuals.
Timothy R. Volpert: Well, the district courts referred to the conclusion that this was... that the conduct was drug-related, if that's what you're asking, as being inescapable, and the Ninth Circuit said that the district... the district officials observed conduct which was so far out of the norm that drug use was a logical conclusion. Now--
John Paul Stevens: Well, that would be individualized suspicion, wouldn't it?
Timothy R. Volpert: --Well, I don't think so necessarily. If you see in the classroom someone misbehaving, and you're a teacher, you at that point have to make an important choice if you're suggesting that you drug test based on individualized suspicion. You have to decide... make very difficult decisions as to whether this behavior is so bizarre that it indicates the use of drugs, and that you're going to make an accusation and drag someone down to the principal's office--
Sandra Day O'Connor: But Mr. Volpert, isn't that pretty much what the Fourth Amendment is designed to require, something based on individualized suspicion, and the school district didn't even try that, did they?
Timothy R. Volpert: --Well--
Sandra Day O'Connor: I mean, the school made no effort to at least launch its program on the basis of some kind of testing based on individualized suspicion, and I think in the school context we've said it doesn't have to be probable cause, but there was no effort made to do that, was there?
Timothy R. Volpert: --There was no... let me draw a distinction, Justice O'Connor. There was no drug testing program based on reasonable suspicion.
Sandra Day O'Connor: Right.
Timothy R. Volpert: The district took many, many steps to try to solve it as a behavioral problem--
Sandra Day O'Connor: Well--
Timothy R. Volpert: --observing behavior and dealing with it.
Sandra Day O'Connor: --let me ask you this. Suppose we were to conclude that at least on this record the school should try individualized suspicion. Now, it's overlaid here by the use of consent forms. Do you take the position that if there is a valid consent form by the student and the student's parents that there would for that student not have to be individualized suspicion?
Timothy R. Volpert: We have never relied on the consent form in this case. James Acton--
Sandra Day O'Connor: But could you?
Timothy R. Volpert: --did not sign a consent. Yes, I believe we could.
Sandra Day O'Connor: Yes, so you might have some combination in effect.
Timothy R. Volpert: The problem, Justice O'Connor, with individualized suspicion is clear in our record in the problem of drugs, it was clear in the record in Skinner, and clear in the record in Von Raab. Because it is so difficult to detect for certain that you have any kind of drug involvement in behavior, especially with adolescents--
Sandra Day O'Connor: A reasonable suspicion doesn't mean for certain, does it?
Timothy R. Volpert: --No, it does not, but when you are asking a teacher to actually make an accusation of drug use, and that accusation is based on a number of circumstances, it is far less intrusive in a circumstance like this to allow the random drug testing rather than just fingering individual athletes, taking them to the principal's office, and make them submit to the test. You would also--
Anthony M. Kennedy: It's not only less intrusive, I take it the suggestion of individualized suspicion would alter fundamentally the relation between the student and the teacher.
Timothy R. Volpert: --I think it would, Justice Kennedy. Certainly under this record I think virtually everyone acting up in the classroom would have been taken down to the principal's office and basically accused of drug use. In this situation, contrary to the position--
Sandra Day O'Connor: Not accused, just asked to be tested, isn't that the proposal?
Timothy R. Volpert: --Except that in the situation of individualized suspicion, you are telling an individual student, I believe that you are using drugs, and I think the Court must focus on the burden that that places on teachers to actually make that type of accusation. They are not experts in the field.
Sandra Day O'Connor: Well, if it's combined, however... if all the school wants to do is test student athletes, and if all but a handful have signed valid consent forms, I assume as to those with valid consent forms that the existing program could be used. That leaves you with a handful of people who decline to sign a consent form, I suppose.
Timothy R. Volpert: That would. Another problem with reasonable suspicion, of course, is in the case of drug use, most of the time you're going to miss it. That may be the primary problem. The expert testimony is that 90 percent of the time, you're not going to detect drug use.
Sandra Day O'Connor: How long was this random testing in effect in the school?
Timothy R. Volpert: It began in the fall of 1989, and the decision from the Ninth Circuit was rendered last spring.
Sandra Day O'Connor: And during that interval of time, how many tests turned up positive?
Timothy R. Volpert: I believe the testimony was, an estimate from the superintendent, two or three.
Antonin Scalia: It must have been a very effective program, then--
Timothy R. Volpert: Well, it was a very effective-- [Laughter]
Antonin Scalia: --Shows how effective it was, I suppose.
Timothy R. Volpert: I believe it does, Justice Scalia. It--
Ruth Bader Ginsburg: One side says it shows no problem, the other side it shows how effective it is-- [Laughter] --but I'm wondering, Mr. Volpert, why you didn't test for the most frequently used controlled substance... well, it's not a controlled substance-- --Steroids. --alcohol. Steroids. It's alcohol, I think. Don't kids drink beer and wine?
Timothy R. Volpert: --I will focus on the question about alcohol. There's no direct evidence in the record as to why alcohol was not tested. I would assume, if I may infer from the record, that the district believed that they were better equipped to detect the use of alcohol because of alcohol being on one's breath, and perhaps the effect on gait, which is fundamentally different from the use of drugs.
Antonin Scalia: Well, maybe it was because they did not think that the drinking of alcohol, which kids have been doing for a long time, produced the kind of classroom disruption that harder drugs do.
Timothy R. Volpert: There is a comment, Justice Scalia, from Principal Aultman to that effect, that alcohol has been around for a long time. I think he was probably referring to that.
John Paul Stevens: That makes alcohol use by high school students okay, that it's been around a long time?
Timothy R. Volpert: No, I think--
John Paul Stevens: I don't understand that one.
Timothy R. Volpert: --No, I'm not... no one's saying it's okay, Justice Stevens, but I think the school board made a determination that these drugs were what were causing the problem, and it's one of the types of decisions the Court--
John Paul Stevens: Do these tests pick up steroids, which I suppose athletes might be more inclined to take?
Timothy R. Volpert: --It did not test for steroids.
John Paul Stevens: The one athlete related drug that might be involved.
Timothy R. Volpert: There's no evidence in the record as to why that is, although I understand that steroid testing is very expensive, and the district may have made the determination based on the cost.
David H. Souter: May I ask you a question which you may have answered, I just seem to be unclear on it. If there were not at least generalized suspicion that there was a drug problem in schools, do you take the position that the consent form would be sufficient to authorize the random athletic... systematically random athletic testing that you were doing here?
Timothy R. Volpert: Justice Souter, we have never argued or briefed that issue.
David H. Souter: So your position is... here is that both, i.e., the behavioral evidence and the consent forms, are sufficient, and that's as far as your argument goes?
Timothy R. Volpert: No. Our argument here is that the behavior, which disrupted the classroom severely, and the threat to student athletes were sufficient to jeopardize compelling governmental interests of the school.
David H. Souter: Oh, even without the consent from?
Timothy R. Volpert: Even without the consent form, yes. We believe that this policy is constitutional notwithstanding the consent form.
Sandra Day O'Connor: But I thought you answered my question about the consent form to the effect that that alone would provide the basis for random testing, if you didn't have more. That's what you said. Do you want to retract that now?
Timothy R. Volpert: I didn't understand that to be your question, Justice O'Connor.
Sandra Day O'Connor: So what is your answer?
Timothy R. Volpert: Could I ask you to restate the question?
Sandra Day O'Connor: Suppose all you had was a consent form, validly obtained, knowingly, willingly given by the student and the student's parents, is that enough for that student to be randomly tested for drugs, using the test in this case?
Timothy R. Volpert: We have never taken the position that it was, because consent was not given in this case.
Sandra Day O'Connor: Well, what is your position today?
Timothy R. Volpert: I'm sorry, I do not have a position on that. That's never been briefed, and I don't have a position on that.
Speaker: Thank you, Mr. Volpert. Mr. Seamon, we'll hear from you.
Richard H. Seamon: Thank you, Mr. Chief Justice, and may it please the Court: I'd like to begin by addressing a question that arose earlier. The question was, if there was so much evidence of drug use in Vernonia, why wasn't there enough individualized suspicion to make individualized suspicion-based testing effective? That question is plainly relevant under the balancing approach this Court applied in Skinner and Von Raab, because even though the Court declined to impose a least intrusive means requirement in its analysis, it is plain that alternatives to suspicionless testing are relevant to decide whether suspicionless testing is actually necessary to further the governmental interest that is being asserted, and I think that the limitations of individualized suspicion testing are illustrated well on the facts of this case. Some of the evidence concerned drug use by individual students, and would have permitted individualized suspicion-based testing of those students... for example, the students from whom drug paraphernalia was confiscated, the students who were seen smoking marijuana in the coffee shop across the street from the school, the students who were arrested for using intoxicants at a party during the school day. But this was not the only relevant evidence in the record that there was a drug problem in Vernonia. The school district witnessed a two to threefold increase in disciplinary problems over the course of a couple of years. At the same time, it witnessed the rise of an apparent drug culture. Students boasting about their use of drugs, whether true or false, was certainly relevant to the officials' assessment of whether a drug problem existed, and finally, the organization of groups with names like The Drug Cartel. Now, maybe the fact that a student belongs to a group called The Drug Cartel does not provide individualized reasonable suspicion for testing that individual. That would be a debatable point. But the fact that such a group springs into existence at the same time that there is a two to threefold increase in disciplinary problems, and teachers for the first time begin hearing students boasting about drug use and writing about it in essays that they hand in to be graded clearly is relevant in assessing the existence of a drug problem.
John Paul Stevens: Mr. Seamon, do you think the evidence would have supported a random program not limited to athletes, but for the entire student body?
Richard H. Seamon: I don't think that it would have supported a program for the entire student body. I think it's... the fact that the program in this case was limited to student athletes was relevant, and supports the reasonableness of the program in several ways. Perhaps first and foremost is the fact that interscholastic sports is a voluntary activity. The student can avoid testing simply by deciding not to engage--
Anthony M. Kennedy: It's a little bit like saying going to graduation is a voluntary activity, as far as I'm concerned. A lot of students consider that a very important part of their education. I'm not sure why you should draw your answer, and draw the line you're proposing exactly that way. If there's a school-wide problem, what's wrong with school-wide testing? It certainly seems... in one sense, the required courses are more important than the voluntary courses.
Richard H. Seamon: --The required courses are of course more important, in our view, than extracurricular activities. One of... and the reason that we find it significant that this testing was limited to students who participated in an extracurricular activity is that it gave the student the ability to avoid testing at the same time he or she was not denied access to the required curriculum that he or she needed to get a diploma.
Antonin Scalia: So I guess a school where it has a problem with drug use where it isn't the athletes who seem to be leading the thing, they're just sort of out of luck. You're a lucky school if it's the athletes who are the potheads, but if you're in another school there's really nothing you can do about it.
Richard H. Seamon: We would not draw a line--
Antonin Scalia: Very strange.
Richard H. Seamon: --to limit drug testing to student athletes. We think that testing of athletes is particularly defensible because... for some of the reasons--
Antonin Scalia: That wasn't the question you were asked. The question you were asked is not whether this one is particularly defensible, but where the other one is defensible, and you said no.
Richard H. Seamon: --I'm sorry if I misstated our position. It is not our position that drug testing of all students would be invalid in all circumstances. If a school district had a severe enough drug problem that it reasonably concluded that that was the only way in which the drug problem could be effectively addressed, then such a program may well be permissible, but it would depend to a large extent on the consequences of testing positive.
William H. Rehnquist: Didn't the district here have some fear of injury to the athletes as a result of drug use?
Richard H. Seamon: Yes, that's right. It had a reasonable fear of that, and that's why testing of athletes was particularly defensible, because their engaging in that activity and playing sports posed a risk of physical injury both to themselves--
Sandra Day O'Connor: Well, Mr. Seamon, you started, I thought, to tell us why the school district couldn't rely on individualized reasonable suspicion, but I never heard you answer that question that you posed. Why couldn't it?
Richard H. Seamon: --Well, I... let me complete the answer to that question. I began by making the point that much of the evidence that the school officials could reasonably credit as pointing to the existence of a drug problem was not necessarily focused on individual students, and wouldn't necessarily--
Sandra Day O'Connor: But some was. They could have tried their program that way.
Richard H. Seamon: --And some was.
Sandra Day O'Connor: Could the school district have relied on the consent forms for... as to those students who had validly executed them?
Richard H. Seamon: Yes, to the extent that valid consent was given under this Court's cases.
Sandra Day O'Connor: That doesn't trouble like your predecessor.
Richard H. Seamon: No. Valid consent is a basis for a search, and that's always been true.
Antonin Scalia: Even though it was coerced? I mean, even though they said you can't play on the varsity team unless you give the consent?
Richard H. Seamon: This is--
Antonin Scalia: I mean, it seems to me the consent form is bound in with the whole program. I agree, if you just ask voluntarily, whoever's willing to undergo testing, no penalty if you don't... is that the kind of consent form you're talking about, or is the consent form in this case? The consent form in this case was... well, would have been coerced.
Richard H. Seamon: --Well, this is the difficult question. This is, I suppose, why petitioner isn't relying on the consent forms. In many... there is at least a plausible argument to the extent that you're denying a student a benefit the consent is coerced, and--
David H. Souter: Well, do you rely on the forms because athletics are in effect an incidental, voluntary activity?
Richard H. Seamon: --We don't rely on the forms. We really rely on the voluntary nature, the extracurricular nature of the activity that triggered the testing.
David H. Souter: All right. Let me give you a different example. Maybe it won't make a difference, but let me give it to you. What if the kids at the National Honor Society dance had been found smoking pot, and the school adopted a policy that no one could be inducted into the National Honor Society without signing one of these consent forms, would that consent would be sufficiently uncoerced to be valid, and would that then justify testing of those who had consented?
Richard H. Seamon: I'm not sure of the answer to that. I suspect that, you know--
David H. Souter: Isn't the reason that you're concerned about it that you know perfectly well that if these kids want to get into a good college and they're not in the Honor Society or the record says, couldn't join the Honor Society because they wouldn't consent to drug testing, that they're going to be at a tremendous disadvantage in college application? Isn't that the problem?
Richard H. Seamon: --That's right, and--
David H. Souter: Why isn't there a like problem for the student athletes? Their athletic activities are taken into consideration when they apply to colleges.
Richard H. Seamon: --That's right, and that's why we rely on the extracurricular, voluntary nature of the activity than the concept of consenting to it or not, because questions of consent can become very difficult, depending on the value of the benefit that you're conditioning the consent on. I want to--
Ruth Bader Ginsburg: Mr. Seamon, you answer that you have some reservations about testing everyone based on what this Court did in Von Raab. There was a whole category of employees. The case was remanded, was it not?
Richard H. Seamon: --Yes, that's right.
Ruth Bader Ginsburg: Do you know what was the follow-up on remand with respect to all those other people, the accountants, the animal caretakers?
Richard H. Seamon: Yes. The district court on remand upheld the testing program with respect to the categories of employees who had access to sensitive classified information, and it noted that some of the categories that this Court expressed concern about, including animal caretakers, were not subject to the testing--
Anthony M. Kennedy: Do you take the position that the relation between schools and their students is the same as between the Government and its employees?
Richard H. Seamon: --No, we do not. It is a different one, and it is important, especially, I believe, in assessing the impact of individualized suspicion-based testing in this context. One of the problems, to finish my answer to Justice O'Connor, with individualized suspicion-based testing is that in a sense you get both false positives and false negatives. I mean, there may be one student who uses drugs, but simply sits quietly in the back of the classroom and gets straight D's, and that student goes unnoticed.
William H. Rehnquist: Thank you, Mr. Seamon. Mr. Christ, we'll hear from you. Am I pronouncing your name correctly?
Thomas M. Christ: Mr. Chief Justice, no, you're not. It's Mr. Christ.
William H. Rehnquist: Christ, Mr. Christ.
Thomas M. Christ: Thank you, and may it please the Court: My opponents have just offered you two justifications for this highly intrusive search. One is maintaining order in the classroom, and the other is promoting athletic safety, and I'd like to address each in turn. First, order in the classroom. If that's the goal, then it seems to me that this test is completely unnecessary. You don't need urine testing to detect, punish, and by punishing deter disorderly behavior. Disorderly behavior is obvious. Disruptive students give themselves away. Urine testing isn't going to aid in detecting. Now, it may help in explaining why disorderly students are that way, but you don't need to know that in order to detect this problem and deter it through appropriate punishment.
Ruth Bader Ginsburg: If you have an unruly student, the teacher reports a student as unruly, on your individual testing, or individual suspicion basis, could every unruly student be then subject to urinalysis because the teacher says, I've got a discipline problem here, maybe it's drugs, let's test her?
Thomas M. Christ: It depends on the misbehavior, but I think if there is sufficiently disruptive behavior to justify their conclusion now that these misbehaving students were all on drugs, that would perhaps, under T.L.O., present individualized suspicion to test that student.
Ruth Bader Ginsburg: Mr. Christ, I'd like you to be as concrete as possible about this, because I was troubled by your, well, you can... the answer is individual testing. Isn't that fraught with the risk that the teacher is going to pick out the kid he doesn't like, and those are the people that will be subject to the discipline, as opposed to the random selection? There's something even about that.
Thomas M. Christ: Well, the problem with the random selection is that you are subjecting every student, including those who are not disorderly, not misbehaving, to this intrusive degrading experience, and that's the problem, on the one side, to be balanced against this risk that maybe the school district would pick out certain students. It would not apply the individualized suspicion standard appropriately, and I have no reason--
Antonin Scalia: Well, I mean, suspicion, unless you mean by suspicion probable cause, I mean, a high degree of proof, you're always going to get people who are utterly innocent, and I frankly would find it much more shameful to be picked out and sent to have a drug test because I'm suspected of using drugs than I would to be part of a general school population who just repeatedly do this. Indeed, wouldn't there be a right to individualized hearings before one is, in effect, accused of having used drugs? Could you do that without giving some individual hearing to the student? And all of a sudden we're into a big deal of a due process case.
Thomas M. Christ: --No, I don't think... there wasn't in T.L.O. a requirement of a hearing before the school officials looked into the student's purse. They had reasonable suspicion to suspect that the student was violating school rules, and so they conducted a search.
Antonin Scalia: And you don't think it was a lawsuit if they didn't have reasonable suspicion? I mean, I can just imagine a parent whose child has been sent down to have drug testing because the child was "suspected" of having used drugs, and the parent saying, my child never used drugs, not... never suspected at all. It's a lawsuit, isn't it?
Thomas M. Christ: Well, I think the intrusion here is less if you pick out the few students who are disbehaving and disorderly, and subject them to testing as opposed to take every student, including those who are well-behaved and simply want to play school sports--
Antonin Scalia: I see, you're not suspected of using drugs. Just bad kids can be drug-tested, misbehaving students. There's no suspicion of drugs involved at all. You're just... you're a bad actor.
Thomas M. Christ: --Well, my first point is, if you want to deter disorderly conduct, you just see it and you punish it appropriately. You don't need to go beyond that and say, are drugs the cause, in order to have any deterrent effect.
Antonin Scalia: You think it's better to be selected as one of the few in the school to be drug-tested on the basis of a suspicion, than to be part of the general... what is the intrusion that is involved?
Thomas M. Christ: Well, if you are disrupting class, then you have justified, perhaps, school officials in taking you out and subjecting you to a test. That is less intrusive than to take everybody who is well-behaved and subjecting all of them to the test.
Anthony M. Kennedy: Do you think--
Sandra Day O'Connor: --The random test, though, didn't subject everyone. I thought it was administered to a few on a random basis. It wasn't everyone in the school, and it wasn't every student athlete, was it?
Thomas M. Christ: No, it is every student athlete, every athlete who tries out for sports.
Sandra Day O'Connor: Well, the initial test.
Thomas M. Christ: Initial test--
Sandra Day O'Connor: Yes, but I'm talking about the random testing.
Thomas M. Christ: --Thereafter they're testing 10 percent of each student each week, so that during the course of the season you're eventually probably going to get to everybody.
Anthony M. Kennedy: Do you think the district could reasonably conclude that the dangers of an individualized suspicion requirement go beyond the danger that the teacher might single out the unpopular student, but that it changes the whole relation between the teacher and the student? One of the big complaints of teachers is that they're being turned into policemen. You want this Court to turn them into policemen, I take it.
Thomas M. Christ: I don't want to turn them into policemen, Your Honor, but there is... the relationship is, at times, adversarial. As you pointed out in T.L.O., they're there to educate but first they also have to maintain order and discipline, and students... teachers are disciplinarians in the first instance.
Anthony M. Kennedy: But you want us to structure the law on drug testing for individualized suspicion, which it seems to me is a very significant step forward in assigning the responsibilities of this sort of very, very difficult and highly intrusive judgment to the teacher, whereas a random testing program eliminates that need altogether, and it seems to me the school district at least could make the plausible argument that this is a reasonable alternative for it to adopt.
Thomas M. Christ: Your Honor, I don't want to misstate my position here. I am not contending for urine testing on individualized suspicion. I'm not conceding that that would be constitutional. I am submitting to you that that would be less intrusive than the present program of random testing.
Anthony M. Kennedy: Well, it's rather hard for us to write an opinion to say that there's a less intrusive alternative but that that's unconstitutional, too.
Thomas M. Christ: I think you should find that any urine testing is unconstitutional on the justifications that are given to you, but if they cannot prevent random testing of everyone, including my client, who is well-behaved and simply wants to play sports, then I'm suggesting that short of that you should have testing for those who are not well-behaved, and who are disorderly, and who are disrupting classes. Then they should be the ones... if the school district needs to find out why these students are misbehaving, and I don't think they need to know that in order to punish the behavior and thus deter it, but if they do need to know that, then they should subject the disorderly students to urine testing, not every--
William H. Rehnquist: But surely the drug problem goes deeper than just... if it exists, and the courts below found it did, goes deeper than just misbehavior in class, doesn't it? I mean, it has other deleterious consequences.
Thomas M. Christ: --Sure. Drugs are harmful to the users. There are other deleterious consequences to drug use, but the justification that the school district has put forth throughout these proceedings is that we have students who are disorderly, and we need to find an effective means of deterring that behavior.
Sandra Day O'Connor: Well, what if the justification offered was that there's an increased risk of physical harm, health risks to athletes who are using drugs, and as part of our policy in the school to weed out those with heart problems, or those with other special risks in athletic programs, we're going to require this kind of testing for health purposes. Now, would that be sufficient to justify this?
Thomas M. Christ: No, we don't believe that's sufficient.
Sandra Day O'Connor: Well, why not? It would be just like testing for a hernia, or a heart problem, or asthma, or whatever else might be the case.
Thomas M. Christ: Well, I don't know that the school district can compel anyone to submit to an examination for those purposes, but under the safety standard that you set in Skinner and Von Raab--
Sandra Day O'Connor: Surely you would not take the position that a school can't protect itself from risk of injury to its student athletes by requiring physical exams for all those problems.
Thomas M. Christ: --I'm not contending that the school district does not--
Sandra Day O'Connor: Is that your position, that the school district can't do that for a student athlete?
Thomas M. Christ: --That's not my position. I don't need to take that here. I am contending that the risk of injury from a student using drugs in sports, in athletics, is not sufficiently compelling to justify so intrusive an invasion of privacy as urine testing.
William H. Rehnquist: You agree, don't you... and surely it's done all over the country for every high school sport... you've got to take a physical exam before you can participate?
Thomas M. Christ: True, and my client took a physical exam here, too, which was required here, but the circumstances of that examination indicate the privacy that attaches to the passing of urine. He took the examination in the privacy of his doctor's office.
William H. Rehnquist: Well, how much privacy is there in a boy's locker room with a bunch of urinals lined up against the wall, guys walking naked from the shower to the lockers?
Thomas M. Christ: The point... it's substantially different. There's a substantial difference between using a public facility and being singled out and compelled to produce urine while somebody monitors and observes the production of the sample, and then surrender the sample to the Government so it can be chemically analyzed for whatever secrets are contained therein.
Sandra Day O'Connor: Well, would it make any difference to you if the test... if the student had an option of going to a private clinic, or private physician to have the test done?
Thomas M. Christ: It would make--
Sandra Day O'Connor: Would that save it, in your view?
Thomas M. Christ: --No, it would not save it, but it would make it less intrusive, and that was one of the procedural safeguards that you identified in Skinner and Von Raab as necessary to reduce the intrusiveness of urine testing to a constitutional permissible level. Independent monitors, independent test sites, no direct observation of the sample being produced, advance notice--
Sandra Day O'Connor: But you say if all those things were done, it wouldn't make any difference. You say that's better, but that's not enough.
Thomas M. Christ: --Correct.
Sandra Day O'Connor: Well, what is enough?
Thomas M. Christ: I don't think anything is enough to justify urine testing of students for the purposes that have been advanced by my opponents.
David H. Souter: Do you have a fallback position? I mean, is it all or nothing here? [Laughter]
Thomas M. Christ: Well, that's the position I'm taking is, if they cannot--
David H. Souter: I know that's the position you have taken, but I mean it seriously. Do you have a fallback position?
Thomas M. Christ: --My fallback position is, if they are justified in urine testing, in implementing a program, they are not justified in implementing this program because it lacks the procedural safeguards you identified in Skinner and Von Raab.
Ruth Bader Ginsburg: Then what is the program? Can you be concrete about the program that you think would be appropriate? First, could the school have the physical exam on the school's premises? You distinguished the physical exam because you said it's in the privacy of the student's own physician's office, but suppose the school... this is a wealthy district, and said, we're going to do it all in school. Would that be all right? Physical exam includes everything including urinalysis.
Thomas M. Christ: You identified... let me respond this way. You've identified these procedures in Skinner and Von Raab. I do not read those opinions to say that each and every one of those is essential, and I do not read that opinion to say you give greater weight to one or the other. At the same time, I don't read those opinions to say that a program completely lacking in all of them would pass muster, which is what we have here, so I can't say that if they have no direct observation but they still require disclosure of medications, and they don't use independent monitors, that that would pass muster.
Antonin Scalia: Well, you have some factors here that didn't exist there, and that is the... this is an athletic program. It's not that you have to leave school entirely, it's just that you don't play athletics. You didn't have in Von Raab the factor that these are minors in a tutelary context. Surely that's a factor that cuts in favor of being able to do it.
Thomas M. Christ: Those are two factors that do reduce the intrusiveness, but as... let me speak to both of them, first the fact that this is voluntary. You don't have to play athletics. That's true, but you have to appreciate how important athletics is to the school experience, especially in this school district. The testimony on that is quite clear.
Antonin Scalia: You painted a very depressing picture of this town, as I recall. You said there's virtually nothing else to do except go to the intramural athletic games.
Thomas M. Christ: Actually, that was my opponent who painted that picture, but--
Antonin Scalia: Oh, I see. [Laughter] I know somebody did. I certainly didn't want to visit the place.
Thomas M. Christ: --That was the testimony they presented, and I'm just illustrating the ramifications of that. To say that this is simply athletics and you don't have to play sports doesn't quite answer the question. That... it still... it may be voluntary, but it's an important part of the school experience, and to compel a student to give that up in order to protect themselves from this search just simply isn't justified. Now, as to your second point that we're talking here about students and not adults, there should not be a different standard for students than adults. A different standard might be justified if the Government... if you accept the proposition that the Government is substantially less interested in preventing drug-related injuries to students than adults, or if you accept the proposition that students have substantially less privacy interest, that urine testing is for them not so severe an invasion of privacy as it is for adults.
Antonin Scalia: Haven't we allowed schools to impose mild corporal punishment?
Thomas M. Christ: I don't know.
Antonin Scalia: Yes, I think we have, and why is that? Because the school has at least some portion of the authority that the parent has when the child goes to school. It seems to me you just cannot assume that children in that kind of a context have all of the rights that an emancipated adult has in a context such as Von Raab.
Thomas M. Christ: I am not contending the student's rights of privacy are coextensive with an adult's, and I think you've held otherwise in T.L.O., but I'm saying when you come to something so private and personal as the passing of urine, that their rights certainly extend that far.
John Paul Stevens: Let me ask you a question on that one, if I might. What if the school had a physical examination requirement for every student at the beginning of the school year that included this particular urine test, would that be constitutional?
Thomas M. Christ: No.
John Paul Stevens: It would not?
Thomas M. Christ: It would not, we don't believe, if they required just as a condition of going to school that they take a urine test.
John Paul Stevens: How about a physical exam with everything except this particular test, just to be sure they're healthy, and for the good of the kids, to find out if there was any problem the school ought to be aware of? Can they take blood? Blood is okay, but urine's bad?
Thomas M. Christ: Well, you said in Skinner that blood tests, compelled removal of blood as opposed to a urine test, is substantially less intrusive, but I don't think that they would be justified in compelling a student to produce blood, simply--
Anthony M. Kennedy: Does that rest on your assumption that there's no Nation-wide drug problem in the schools?
Thomas M. Christ: --I'm not assuming that there's no Nation-wide drug problem in the--
Anthony M. Kennedy: Suppose that we assume that there is. Does that change your answer?
Thomas M. Christ: --No. I think you need to judge each drug-testing program byu the problem it's intended to solve, district by district, school by school.
Anthony M. Kennedy: Thirty percent users in a rural high school, would that be sufficient to sustain a test where at the beginning of the year everybody takes a physical exam and there's a testing for drugs?
Thomas M. Christ: No, because my first contention is that you don't need the drug test in order to solve the problem of disorders... disorderly behavior in the schools, so whatever--
Anthony M. Kennedy: I'm talking about solving the problem of drugs in the schools.
Thomas M. Christ: --We still don't think that it would be justified, Your Honor.
Stephen G. Breyer: Are you saying actually you can't have a medical test? You couldn't... I mean, a school district couldn't say we want to know how the students, whether they're nourished properly, whether they're... whether they have disease, how they're going... and so what we want to do, we'll give you the nurse or the doctor, but you couldn't require constitutionally a medical test, physical exams? Can't they require physical exams for athletes?
Thomas M. Christ: They do require a physical exam.
Stephen G. Breyer: I mean, so... couldn't... are you saying they couldn't require physical exams for students to come to school? They want to know how the health of a student is.
Thomas M. Christ: I'm not saying that. I don't think that I need to contend that here.
Stephen G. Breyer: All right. Well then, the problem, of course, for people is, if they can require the physical exams for the health, and I guess you could require medical... metal detectors to keep guns out of schools, a lot of things you can require, what's different about this?
Thomas M. Christ: Because this is so highly intrusive.
Stephen G. Breyer: Medical exams all involve urinalyses.
Thomas M. Christ: That's--
Stephen G. Breyer: I've probably had hundreds of them in my life, and so have you, and you know, what's the special thing here?
Thomas M. Christ: --The medical exam you're talking about is being conducted in private by the student's doctor. It is not being conducted--
Stephen G. Breyer: Well, people urinate, you know, in men's rooms all over the country. It's not necessarily... and I don't mean to be... trivialize it, but it isn't really a tremendously private thing, is it?
Thomas M. Christ: --I think it is private when it is being compelled by the Government, and the Government is there watching and observing and collecting specimens.
Stephen G. Breyer: All right. What I'm trying to get you to do is to pinpoint precisely what it is that's the intrusion of the privacy interest. That's what I'm trying--
Thomas M. Christ: It's not--
Stephen G. Breyer: --That's what I'm aiming at.
Thomas M. Christ: --It's not the mere act. We all urinate. That's... has to be conceded. [Laughter] In fact, I might do so here, if--
Stephen G. Breyer: A serious point, which is difficult. I think it's a very difficult thing to do, because I, like you, and a lot of other people, have some kind of instinct that there is something private going on here, but to try to pinpoint it precisely is difficult, and it's because it is difficult that I'm asking you the question, to help on this, to the extent you can, to try to pinpoint just what it is about this test that is private, and therefore offends you and many others.
Thomas M. Christ: I appreciate the help, and what I think is the point here is that this is being compelled by the Government, they're watching you do it, they're taking your urine, and they're analyzing it to see what secrets therein, and at the same time they are compelling a student to come forward and disclose all their private medications, and that is highly intrusive and personal to most people.
Stephen G. Breyer: That's what I wondered, too. Is there... is that in this case? That is, is there in this case any indication that people who had medications that they didn't want disclosed have to proceed with the normal test, or is there... could they have their own doctor do it and give the result, or... in other words, how much is that in this case, that problem?
Thomas M. Christ: The disclosure of private medications, both prescription and nonprescription, is compelled by the policy statement itself, and is also compelled by the... Exhibit 109 is the urine sample specimen form. You have to fill that out at the time you--
Ruth Bader Ginsburg: But Mr. Christ, you made a grand-scale attack on this. This is a child whose parents did not wish the form to be signed. The child didn't want it to be signed. You never got to any refined question of, well, I'll sign it but I won't disclose what drugs I'm taking, what prescription drugs I'm taking, so that's... whether that feature of the program is infirm is not part of this case, is it?
Thomas M. Christ: --It's part of the case. All of the testing protocol is part of the case. We think that it is intrusive for all those reasons as well as the fact that it doesn't serve a compelling governmental interest.
Ruth Bader Ginsburg: Your case is not one to modify this program. Your case is one that, I'm not required to submit to it, period--
Thomas M. Christ: Correct, but--
Ruth Bader Ginsburg: --not that it can be tailored in some way that it would be satisfactory.
Thomas M. Christ: --But as Justice Souter indicated, that... my fallback position is that if you say drug testing is okay, then I at least want to stop this drug test because it is being performed in an especially intrusive fashion.
William H. Rehnquist: Mr. Christ, supposing that instead of feeling that drugs were the problem in the high school, the board had felt that it was alcohol that was a problem, and that they had the same reason to attribute it to athletes as the board here did to... drugs to athletes, and so... but they don't set up a urine testing program, they set up a breathalyzer program under exactly the same circumstances here. Is that... I mean, what I'm trying to find out is, is it the fact that it's the urine factor that makes this invalid, or is it the factor that the Government administers a test to some individual? Is a breathalyzer test okay?
Thomas M. Christ: No, we think not, but the problem here is twofold. One, the purposes for which they're testing are not compelling enough: maintaining order in the classroom and preventing... and preserving athletic safety, but in addition to that--
William H. Rehnquist: Well, isn't there something broader, the idea that drug use has a lot more... brings with it a lot more problems than that, just to try to ferret out drug use?
Thomas M. Christ: --Well, Your Honor, drugs do have a problem, and no one is denying that, and they're a problem for the young and the old, and if simply the problem of drugs on the user is sufficient to justify the Government in compelling urine tests, then we should all be subjected to urine tests.
William H. Rehnquist: Well, but school performance on tests, not necessarily disruptive performance, but it just affects a student in many, many ways, doesn't it?
Thomas M. Christ: That's true, it does affect them in many ways, and it's a tragedy if someone takes drugs, young or old, but it has not been... that has not been offered as justification by the school district for this drug test, and if you accept that as justification for drug testing students, then I think that you have arrived very nearly at universal drug testing, because you could not confine your ruling to the school setting. Drugs present all those problems to adults--
William H. Rehnquist: Yes, but--
Thomas M. Christ: --as to students.
William H. Rehnquist: --surely the school... the school has an interest in seeing students learn and perform in a way that the Government has no interest in seeing citizens in general. I mean, they are not... the Government is not the tutor of its citizens generally.
Antonin Scalia: Students are kids. You have no doubt that the parents can do this if they want to, don't you?
Thomas M. Christ: The parents may have that right.
Antonin Scalia: Well, of course.
Thomas M. Christ: But the schools don't.
Antonin Scalia: You're dealing with people who are subject to others' tutelage, and the question here is to what extent some of that authority and responsibility can be exercised by the school districts even when the parent, particularly the parent in this case, doesn't want it to be exercised. There may be parents who don't like corporal punishment in schools, for example, but we've indicated that we... it existed at common law, and we won't use the Eighth Amendment to say you can't have it, so you either accept it, or you don't go to public school, and the question here is whether this is another instance like that. But you're dealing with children. You're not dealing with adults who have a totally different set of rights. The question is to what extent the school has some of the authority of the parents in this regard.
Thomas M. Christ: I don't think they have sufficient authority to justify this intrusion on privacy, and some of what we have been referring to are children, are 18 years of age.
David H. Souter: May I go back to the--
Thomas M. Christ: They're--
David H. Souter: --I'm sorry.
Thomas M. Christ: --I'd just point out, they're old enough to vote and serve on juries.
William H. Rehnquist: Well, your client's in seventh grade?
Thomas M. Christ: My client was in seventh grade at the time of this drug test. He is a sophomore now. He will be 18--
Ruth Bader Ginsburg: And it's not a class action, so that's the case that's before us.
Thomas M. Christ: --It's not, but he's seeking an injunction against having to submit to this test for the balance of his high school career--
David H. Souter: May I take you back to the question--
Thomas M. Christ: --which will take him to age 17.
David H. Souter: --I seem bent on interrupting you. I'm sorry. May I go back to the question of intrusiveness again? You answered the Chief Justice that a breathalyzer test, if alcohol had been the drug of concern here, that a breathalyzer test would also have been unconstitutional, other things being equal.
Thomas M. Christ: Well, as I understood, a random breathalyzer test.
David H. Souter: That's right.
Thomas M. Christ: Yes.
David H. Souter: Other things being equal, administered the same way, just do it by breath.
Thomas M. Christ: Correct.
David H. Souter: And you said that would be unconstitutional.
Thomas M. Christ: Yes.
David H. Souter: I take it, then, that the intrusive feature, or features, which are of concern to you in the urine test in fact are not the quasi-exposure of having to produce the sample with someone standing behind you, because that doesn't occur in the breath test, so I take it the reasons that you find the intrusiveness to be unreasonable is that you are disclosing the contents of something... chemicals in your urine, chemicals in your breath... and you are being forced as a protective measure in appropriate cases to disclose any drugs you may be taking that might affect the test. Those are the two points of intrusiveness that are crucial for you, is that correct?
Thomas M. Christ: Correct, and I would add that you're doing all of that without ever having given suspicion to suspect that you've done anything wrong.
David H. Souter: Right. I realize the question of justification is there, too, but the features of intrusiveness which are crucial to you are the disclosures of knowledge which in effect can be gained either from your admission of, or your disclosure of other drug use and the testing of the chemicals. Those are the two features.
Thomas M. Christ: Correct.
David H. Souter: Yes.
Sandra Day O'Connor: Now, presumably the disclosure of what other prescription drugs you might be taking could be easily cured. These samples go to a testing lab, and the student could fill out a form saying what they are, put it in a sealed envelope, and have it transmitted to the testing, the independent testing, without ever disclosing to the school district at all what private prescription medication is in use.
Thomas M. Christ: It must be possible, because it was in Skinner and Von Raab, although I do not know why the school district here did not, after Skinner and Von Raab, adopt the same procedures. Maybe there was something--
Sandra Day O'Connor: Well, if it did, then that would go a long way towards solving your objection, I gather.
Thomas M. Christ: --Not--
Sandra Day O'Connor: And make this a more reasonable program.
Thomas M. Christ: --It would not go far enough.
Anthony M. Kennedy: On this record, were the results disclosed to the school officials?
Thomas M. Christ: Pardon me?
Anthony M. Kennedy: On this record, in this case--
Thomas M. Christ: Yes. The school--
Anthony M. Kennedy: --And there's no particular guarantees of confidentiality?
Thomas M. Christ: --The disclosure is made to the school officials who are conducting the test. They aid the student in filling out the form--
Anthony M. Kennedy: I see.
Thomas M. Christ: --at the time, and so when you disclose your medication, you are disclosing to the school officials.
William H. Rehnquist: Thank you, Mr. Christ.
Thomas M. Christ: Thank you very much.
William H. Rehnquist: The case is submitted.