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2011

Students' Fourth Amendment Rights in Schools:Strip Searches, Drug Tests, and MoreEmily Gold WaldmanElisabeth Haub School of Law at Pace University, ewaldman@law.pace.edu

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Recommended CitationEmily Gold Waldman, Students' Fourth Amendment Rights in Schools: Strip Searches, Drug Tests, and More, 26 Touro L. Rev. 1131(2011), http://digitalcommons.pace.edu/lawfaculty/756/.

STUDENTS' FOURTH AMENDMENT RIGHTS IN SCHOOLS:

STRIP SEARCHES, DRUG TESTS, AND MORE

Emily Gold Waldman*

I. INTRODUCTION

At the end of June 2009, the Supreme Court decided SaffordUnified School District No. 1 v. Redding,' a case involving the stripsearch of a thirteen-year-old girl at an Arizona middle school.2 Thus,the Court has now decided four cases regarding public school stu-dents' Fourth Amendment rights while at school3 and the time is ripeto take stock of this jurisprudence as a whole. The following discus-sion provides such an overview.

As an initial matter, it is useful to divide the Court's fourFourth Amendment cases into two categories: (1) cases involvingsuspicion-based searches of individual students, such as the search inRedding; and (2) cases involving random, suspicionless searches ofstudents, such as those conducted pursuant to random drug-testingpolicies. I will cover each of these two categories, their basic ap-proaches, some of the open issues that remain with respect to each ofthem, and their underlying similarities.

II. THE FOURTH AMENDMENT OF THE UNITED STATESCONSTITUTION

Any discussion of the Supreme Court's framework for stu-

* Associate Professor of Law, Pace University School of Law. J.D., Harvard Law School2002; B.A., Yale University 1999. This Article is based on a presentation given at the Prac-tising Law Institute's Tenth Annual School Law Institute in New York, New York.

129 S. Ct. 2633 (2009).2 Id. at 2637.

See id; Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536U.S. 822 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995); New Jersey v.T.L.O., 469 U.S. 325 (1985).

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STUDENTS' FOURTH AMENDMENT RIGHTS IN SCHOOLS:

STRIP SEARCHES, DRUG TESTS, AND MORE

Emily Gold Waldman *

I. INTRODUCTION

At the end of June 2009, the Supreme Court decided Safford Unified School District No. 1 v. Redding, l a case involving the strip search of a thirteen-year-old girl at an Arizona middle schoo1.2 Thus, the Court has now decided four cases regarding public school stu­dents' Fourth Amendment rights while at school3 and the time is ripe to take stock of this jurisprudence as a whole. The following discus­sion provides such an overview.

As an initial matter, it is useful to divide the Court's four Fourth Amendment cases into two categories: (1) cases involving suspicion-based searches of individual students, such as the search in Redding; and (2) cases involving random, suspicionless searches of students, such as those conducted pursuant to random drug-testing policies. I will cover each of these two categories, their basic ap­proaches, some of the open issues that remain with respect to each of them, and their underlying similarities.

II. THE FOURTH AMENDMENT OF THE UNITED STATES

CONSTITUTION

Any discussion of the Supreme Court's framework for stu-

* Associate Professor of Law, Pace University School of Law. J.D., Harvard Law School 2002; B.A., Yale University 1999. This Article is based on a presentation given at the Prac­tising Law Institute's Tenth Annual School Law Institute in New York, New York.

I 129 S. Ct. 2633 (2009). 2 ld. at 2637. 3 See id.; Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536

U.S. 822 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (\995); New Jersey v. T.L.O., 469 U.S. 325 (\985).

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dents' Fourth Amendment rights must start with the text of the FourthAmendment itself. The Fourth Amendment states:

The right of the people to be secure in their persons,houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated, and noWarrants shall issue, but upon probable cause, sup-ported by Oath or affirmation, and particularly de-scribing the place to be searched, and the persons orthings to be seized.4

Prior to 1985, however, it was unclear whether and how the FourthAmendment applied to students at school. The Supreme Court firstaddressed that question in New Jersey v. T.L. O.,s to which I now turn.

III. SUSPICION-BASED SEARCHES OF STUDENTS

A. New Jersey v. T.L.0

New Jersey v. T.L.O. was a criminal case involving a highschool student ("T.L.O.") who was found smoking cigarettes with afriend in the school bathroom.6 At the time, smoking in school was aviolation of school policy.' As a result, T.L.O. and her friend wereboth sent to the principal's office.8 T.L.O.'s friend admitted to smok-ing, but T.L.O. denied it, prompting the vice principal to demand tosee her purse.9 When the vice principal reached into T.L.O's purse,he found a pack of cigarettes and cigarette rolling papers.o The viceprincipal considered the rolling papers indicative of marijuana use,and then searched the purse more thoroughly, finding that it con-tained marijuana, a pipe, empty plastic bags, numerous one dollarbills, index cards listing "students who owe me money," and two let-ters implicating T.L.O. in marijuana dealing." The school turned allof these items over to the police, and T.L.O. was ultimately charged

4 U.S. CONST. amend. IV.' 469 U.S. 325.6 Id. at 328.7 Id.8 Id.9 Id. at 328.0 T.L.O., 469 U.S. at 328.

" Id.

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dents' Fourth Amendment rights must start with the text of the Fourth Amendment itself. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, sup­ported by Oath or affIrmation, and particularly de­scribing the place to be searched, and the persons or things to be seized.4

Prior to 1985, however, it was unclear whether and how the Fourth Amendment applied to students at school. The Supreme Court first addressed that question in New Jersey v. T.L.O.,s to which I now turn.

III. SUSPICION-BASED SEARCHES OF STUDENTS

A. New Jersey v. T.L. 0

New Jersey v. T.L.O. was a criminal case involving a high school student ("T.L.O.") who was found smoking cigarettes with a friend in the school bathroom.6 At the time, smoking in school was a violation of school policy.7 As a result, T.L.D. and her friend were both sent to the principal's office.s T.L.O.'s friend admitted to smok­ing, but T.L.O. denied it, prompting the vice principal to demand to see her purse.9 When the vice principal reached into T.L.O's purse, he found a pack of cigarettes and cigarette rolling papers.lO The vice principal considered the rolling papers indicative of marijuana use, and then searched the purse more thoroughly, finding that it con­tained marijuana, a pipe, empty plastic bags, numerous one dollar bills, index cards listing "students who owe me money," and two let­ters implicating T.L.O. in marijuana dealing. I I The school turned all of these items over to the police, and T.L.O. was ultimately charged

4 U.S. CONST. amend. IV. 5 469 U.S. 325. 6 Id. at 328. 7 Id. s Id.

9 Id. at 328. 10 T.L.O., 469 U.S. at 328. 11 Id.

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as a juvenile delinquent.12In her defense, T.L.O. argued that the evidence against her-

that is, the contents found in her purse-was the fruit of an illegalsearch, and should therefore be suppressed. (T.L.O. is the only Su-preme Court student speech case where the Fourth Amendment issuewas raised defensively, as opposed to in a Section 1983 lawsuitbrought by a student-plaintiff.) The threshold question, therefore,was whether the Fourth Amendment applied to school officials'searches of public school students while on school grounds.13 NewJersey argued that the Fourth Amendment was inapplicable here, as-serting that students do not have a reasonable expectation of privacywith respect to their personal belongings while they are at school.14Essentially, the state argued that students had no need to bring anypersonal items to school and that by nonetheless choosing to do so,they were implicitly agreeing that the school could search them."

The Supreme Court, however, ruled that the Fourth Amend-ment indeed applied to such searches, explaining that "schoolchildrenmay find it necessary to carry with them a variety of legitimate, non-contraband items, and there is no reason to conclude that they havenecessarily waived all rights to privacy in such items merely bybringing them onto school grounds."' 6

The Court's conclusion that the Fourth Amendment applied tostudents while at school was not surprising. By 1985, the SupremeCourt had already decided Tinker v. Des Moines Independent Com-munity School District,7 the 1969 First Amendment case holding that"students . . . [do not] shed their constitutional rights to freedom ofspeech or expression at the schoolhouse gate."' 8 It had also decidedGoss v. Lopez, 9 where it held that Fourteenth Amendment proceduraldue process protections apply to students at school.20 The Court'sT.L. 0. decision thus continued the trend of holding that students pos-sessed constitutional rights while at school.

12 Id. at 328, 329.' Id. at 327-28.14 Id. at 338.

's T.L.O., 469 U.S. at 338.16 Id.

17 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 506 (1969).Is See id. at 506.

'9 419 U.S. 565 (1975).20 See id. at 574.

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as a juvenile delinquent. 12

In her defense, T.L.O. argued that the evidence against her­that is, the contents found in her purse-was the fruit of an illegal search, and should therefore be suppressed. (TL.o. is the only Su­preme Court student speech case where the Fourth Amendment issue was raised defensively, as opposed to in a Section 1983 lawsuit brought by a student-plaintiff.) The threshold question, therefore, was whether the Fourth Amendment applied to school officials' searches of public school students while on school grounds. \3 New Jersey argued that the Fourth Amendment was inapplicable here, as­serting that students do not have a reasonable expectation of privacy with respect to their personal belongings while they are at school. 14

Essentially, the state argued that students had no need to bring any personal items to school and that by nonetheless choosing to do so, they were implicitly agreeing that the school could search them. 15

The Supreme Court, however, ruled that the Fourth Amend­ment indeed applied to such searches, explaining that "schoolchildren may find it necessary to carry with them a variety of legitimate, non­contraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds.,,16

The Court's conclusion that the Fourth Amendment applied to students while at school was not surprising. By 1985, the Supreme Court had already decided Tinker v. Des Moines Independent Com­munity School District,17 the 1969 First Amendment case holding that "students ... [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.,,18 It had also decided Goss v. Lopez,19 where it held that Fourteenth Amendment procedural due process protections apply to students at schoo1.20 The Court's TL 0. decision thus continued the trend of holding that students pos­sessed constitutional rights while at school.

12 Id. at 328, 329. 13 Id. at 327-28. 14 Id. at 338. 15 T.L.O., 469 U.S. at 338. 16 !d.

17 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 506 (1969). 18 See id. at 506. 19 419 U.S. 565 (1975). 20 See id. at 574.

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That said, as in Tinker and Goss, the T.L.O. Court modifiedthe nature of the constitutional protection in light of the specificneeds of the school setting. Specifically, the Court ruled that the usu-al Fourth Amendment requirements of a warrant and probable causewere not necessarily appropriate in the context of school officials'searches of public school students on school grounds.2' Instead, theCourt emphasized the touchstone of the Fourth Amendment: its pro-tection against unreasonable searches and seizures. 22 The Court con-cluded that the constitutionality of a public school's search of a stu-dent should turn on whether the search was reasonable under thetotality of the circumstances.23

The Court further articulated a two-part inquiry for courts touse when analyzing the reasonableness of the search: first, whetherthe search was "justified at its inception"; and second, whether thesearch was "permissible in its scope," in terms of how it was actuallycarried out.24 With respect to measuring whether the search was jus-tified at its inception, the Court explained that the basic test waswhether there were reasonable grounds for suspecting that the searchwould produce evidence demonstrating "that the student ... violated... either the law or the rules of the school." 25 As to T.L.O.'s case,the Court concluded that this first prong had been satisfied, statingthat "[the vice principal] acted []reasonably when he examinedT.L.O.'s purse to see if it contained cigarettes."26 With regard to thesecond part of the inquiry-whether the search was permissible in itsscope-the Court explained that the underlying question was whether"the measures adopted [were] reasonably related to the objectives ofthe search and not excessively intrusive in light of the age and sex ofthe student and the nature of the infraction." 27 As to T.L.O., theCourt concluded that this second prong was met, reasoning that theinitial search-when the vice principal first reached into the purselooking for cigarettes-was directly connected to the infraction of

21 See T.L.O., 469 U.S. at 340 (holding that school officials need not obtain a warrant tosearch a child under their supervision).

22 See id. at 340-41.

23 See id. at 341-42.24 id.25 Id.26 T.L.O., 469 U.S. at 346.27 Id. at 342.

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That said, as in Tinker and Goss, the T.L.o. Court modified the nature of the constitutional protection in light of the specific needs of the school setting. Specifically, the Court ruled that the usu­al Fourth Amendment requirements of a warrant and probable cause were not necessarily appropriate in the context of school officials' searches of public school students on school grounds.21 Instead, the Court emphasized the touchstone of the Fourth Amendment: its pro­tection against unreasonable searches and seizures.22 The Court con­cluded that the constitutionality of a public school's search of a stu­dent should tum on whether the search was reasonable under the totality of the circumstances.23

The Court further articulated a two-part inquiry for courts to use when analyzing the reasonableness of the search: first, whether the search was "justified at its inception"; and second, whether the search was "permissible in its scope," in terms of how it was actually carried OUt.

24 With respect to measuring whether the search was jus­tified at its inception, the Court explained that the basic test was whether there were reasonable grounds for suspecting that the search would produce evidence demonstrating "that the student ... violated ... either the law or the rules of the schooL,,25 As to T.L.O.'s case, the Court concluded that this first prong had been satisfied, stating that "[the vice principal] acted [Jreasonably when he examined T.L.O. 's purse to see if it contained cigarettes.,,26 With regard to the second part of the inquiry-whether the search was permissible in its scope-the Court explained that the underlying question was whether "the measures adopted [were] reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.,,27 As to T.L.O., the Court concluded that this second prong was met, reasoning that the initial search-when the vice principal first reached into the purse looking for cigarettes-was directly connected to the infraction of

21 See T.L.o., 469 U.S. at 340 (holding that school officials need not obtain a warrant to search a child under their supervision).

22 See id. at 340-41. 23 See id. at 341-42. 24 Id. 25 Id.

26 T.L.O., 469 U.S. at 346. 27 Id. at 342.

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smoking at school.28 His discovery of rolling papers in her purse thencreated additional suspicion that justified his fuller search of the en-tire purse.29 Thus, the search of the purse was not excessively intru-sive in light of the vice principal's concerns. 30 Because the search ofT.L.O. satisfied both prongs of the test, it was reasonable under thecircumstances and therefore did not violate the Fourth Amendment.

In holding that the Fourth Amendment prohibited "unreason-able" searches of public school students, and in articulating the abovetwo-prong test for measuring reasonableness, T.L.O. obviously had amajor impact. Not surprisingly, however, several key issues re-mained open. One such issue was the constitutionality of randomdrug testing policies, which necessarily involved searches not basedon individualized suspicion. I return to that question a little later.But even with regard to individual, suspicion-based searches, somequestions still remained, particularly in terms of what constituted anexcessively intrusive search under TL.O.'s second prong.31 In Safford v. Redding, to which I now turn, the Supreme Court shed lighton that issue.

B. Safford Unified School District No. 1 v. Redding

Safford v. Redding involved a thirteen-year-old, Savana Red-ding, who attended an Arizona middle school.32 Savana was called tothe assistant principal's office after a classmate was found with vari-ous prescription-strength painkillers and claimed that Savana hadgiven her the pills.3 3 The chronology is complicated, but there hadapparently been a previous problem with students bringing variouscontraband items into school. 34 On the morning that culminated inthe strip search of Savana, another student who had previously usedpainkillers tipped off the administration that students were continuing

28 See id. at 345.

29 See id at 347.30 See id at 346-47.31 See, e.g., Ralph D. Mawdsley & Jacqueline Joy Cumming, Student Informants, School

Strip Searches, and Reasonableness: Sorting Out Problems of Inception and Scope, 230WEST's EDUC. L. REP. 1, 6 (2008).

32 Redding, 129 S. Ct. at 2638.3 Id. at 2640.34 Id.

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smoking at schoo1.28 His discovery of rolling papers in her purse then created additional suspicion that justified his fuller search of the en­tire purse.29 Thus, the search of the purse was not excessively intru­sive in light of the vice principal's concerns.30 Because the search of T.L.D. satisfied both prongs of the test, it was reasonable under the circumstances and therefore did not violate the Fourth Amendment.

In holding that the Fourth Amendment prohibited "unreason­able" searches of public school students, and in articulating the above two-prong test for measuring reasonableness, TL. 0. obviously had a major impact. Not surprisingly, however, several key issues re­mained open. One such issue was the constitutionality of random drug testing policies, which necessarily involved searches not based on individualized suspicion. I return to that question a little later. But even with regard to individual, suspicion-based searches, some questions still remained, particularly in terms of what constituted an excessively intrusive search under TL.o. 's second prong.3l In Saf­ford v. Redding, to which I now turn, the Supreme Court shed light on that issue.

B. Safford Unified School District No.1 v. Redding

Safford v. Redding involved a thirteen-year-old, Savana Red­ding, who attended an Arizona middle schoo1.32 Savana was called to the assistant principal's office after a classmate was found with vari­ous prescription-strength painkillers and claimed that Savana had given her the pills.33 The chronology is complicated, but there had apparently been a previous problem with students bringing various contraband items into schoo1.34 On the morning that culminated in the strip search of Savana, another student who had previously used painkillers tipped off the administration that students were continuing

28 See id. at 345. 29 See id. at 347.

30 See id. at 346-47.

31 See, e.g., Ralph D. Mawdsley & Jacqueline Joy Cumming, Student Informants, School Strip Searches, and Reasonableness: Sorting Out Problems of Inception and Scope, 230 WEST'S Eouc. L. REp. 1, 6 (2008).

32 Redding, 129 S. Ct. at 2638. 33 Id. at 2640. 34 Id.

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to bring pills to school.3 ' This student specifically stated MarissaGlines, one of Savana's friends, had given a pill to him.36 Marissawas ultimately found to possess various contraband items, includingpills and a razor blade, and claimed that Savana had given her thepills. 31

Savana was then pulled out of class and brought in to see thevice principal for questioning. Savana acknowledged that she andMarissa were friends and that she had lent her a day planner.39

School officials were also aware that Savana and Marissa were partof a group at a school dance that had allegedly been rowdy.40 Savanadenied, however, knowing anything about the pills that had been tak-en from Marissa.4' The assistant principal asked to search Savana'sbackpack.42 She agreed, but the search revealed nothing.4 3 The assis-tant principal then sent Savana to the nurse's office.4 The nurse wasa female, and asked Savana to take off all of her clothing except forher bra and underwear.45 Again, nothing was found.46 Savana wasfinally asked to pull out her bra and underwear, partially "exposingher breast[] and pelvic" region.47 No pills were ever found on herbody.48 Savana, through her mother, subsequently filed a § 1983lawsuit, accusing the school of violating her Fourth Amendmentrights as established under T.L. O.49

Savana's case took an interesting procedural path even beforereaching the Supreme Court. A federal district court initially dis-missed her case on summary judgment, and the Ninth Circuit af-firmed that result in a 2-1 split.o The Ninth Circuit then went en

3s Id.36 Id.

37 Redding, 129 S. Ct. at 2640.38 Id. at 2640-4 1.39 Id. at 2641.40 Id.41 Id. at 2638.42 Redding, 129 S. Ct. at 2638.43 id

4 Id.45 Id.46 Id.

47 Redding, 129 S. Ct. at 2638.48 Id.

49 Id.5o Redding v. Safford Unified Sch. Dist., 504 F.3d 828 (2007).

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to bring pills to school. 35 This student specifically stated Marissa Glines, one of Savana's friends, had given a pill to him.36 Marissa was ultimately found to possess various contraband items, including pills and a razor blade, and claimed that Savana had given her the pills.3?

Savana was then pulled out of class and brought in to see the vice principal for questioning.38 Savana acknowledged that she and Marissa were friends and that she had lent her a day planner.39

School officials were also aware that Savana and Marissa were part of a group at a school dance that had allegedly been rowdy.40 Savana denied, however, knowing anything about the pills that had been tak­en from Marissa.4! The assistant principal asked to search Savana's backpack.42 She agreed, but the search revealed nothing.43 The assis­tant principal then sent Savana to the nurse's office.44 The nurse was a female, and asked Savana to take off all of her clothing except for her bra and underwear.45 Again, nothing was found.46 Savana was finally asked to pull out her bra and underwear, partially "exposing her breast[] and pelvic" region.4? No pills were ever found on her body.48 Savana, through her mother, subsequently filed a § 1983 lawsuit, accusing the school of violating her Fourth Amendment rights as established under T.L. 0.49

Savana's case took an interesting procedural path even before reaching the Supreme Court. A federal district court initially dis­missed her case on summary judgment, and the Ninth Circuit af­firmed that result in a 2-1 split. 50 The Ninth Circuit then went en

35 Id.

36 Id.

37 Redding, 129 S. Ct. at 2640. 38 Id. at 2640-41. 39 Id. at 2641. 40 Id. 41 Id. at 2638. 42 Redding, 129 S. Ct. at 2638. 43 Id. 44Id.

45 Id.

46 Id.

47 Redding, 129 S. Ct. at 2638. 48 Id.

49 Id.

50 Redding v. Safford Unified Sch. Dis!., 504 F.3d 828 (2007).

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banc, however, and reversed that ruling in a divided opinion, findingthat the search violated T.L.O.5 1 Moreover, the Ninth Circuit foundthat Savana's Fourth Amendment rights were so clearly establishedin this context that the school district officials who carried out thesearch were not even entitled to qualified immunity.52 (When a suiis filed against state officials pursuant to § 1983, in order to recovermonetary damages from those individuals, a plaintiff must piercequalified immunity, meaning that the plaintiff not only needs to showthat the officials violated a constitutional right, but also that the con-stitutional right was clearly established.5 3)

The Supreme Court ultimately ruled the strip search unconsti-tutional. In an opinion authored by Justice Souter, the Court appliedthe T.L.O. two-step framework, and held that although the initialsearch of the backpack and outer clothing was justified at its incep-tion, the further strip search was not permissible in its scope. TheCourt opined that here, the search was overly intrusive consideringthe age and sex of the student (a middle school female), particularlybecause the infraction involved only prescription-strength painkillers,which are available over-the-counter, as opposed to illegal streetdrugs." It focused on the language of the second prong of the T.L.O.test: whether the measures adopted were reasonably related to the ob-jectives of the search and not excessively intrusive. 6 It reasoned thatthere was no "indication of danger to the students from the power ofthe drugs or their quantity, and [no] reason to suppose that Savanawas carrying the pills in her underwear." 57 Justice Souter furtherstated that if a school is going to make the "quantum leap from outerclothes and backpacks to exposure of intimate parts," the school offi-cial needs either a "reasonable suspicion of danger or of resort to un-derwear for hiding evidence of wrongdoing."' 8 Still, the ReddingCourt granted qualified immunity to the school officials, explainingthat the circuit courts had been divided over the way in which T.L. 0.

s' Redding v. Safford Unified Sch. Dist., 531 F.3d 1071 (9th Cir. 2008) (en banc).52 See id. at 1088.s3 See Conn v. Gabbert, 526 U.S. 286, 290 (1999).* See Redding, 129 S. Ct. at 2641-44." Id. at 2642-43.56 See id. at 2642.

" Id. at 2642-43.1 Id. at 2643.

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banc, however, and reversed that ruling in a divided opinion, finding that the search violated TL.O. 51 Moreover, the Ninth Circuit found that Savana's Fourth Amendment rights were so clearly established in this context that the school district officials who carried out the search were not even entitled to qualified immunity. 52 (When a suit is filed against state officials pursuant to § 1983, in order to recover monetary damages from those individuals, a plaintiff must pierce qualified immunity, meaning that the plaintiff not only needs to show that the officials violated a constitutional right, but also that the con­stitutional right was clearly established. 53)

The Supreme Court ultimately ruled the strip search unconsti­tutional. In an opinion authored by Justice Souter, the Court applied the T.L. 0. two-step framework, and held that although the initial search of the backpack and outer clothing was justified at its incep­tion, the further strip search was not permissible in its scope.54 The Court opined that here, the search was overly intrusive considering the age and sex of the student (a middle school female), particularly because the infraction involved only prescription-strength painkillers, which are available over-the-counter, as opposed to illegal street drugs.55 It focused on the language of the second prong of the TL.O. test: whether the measures adopted were reasonably related to the ob­jectives of the search and not excessively intrusive. 56 It reasoned that there was no "indication of danger to the students from the power of the drugs or their quantity, and [no] reason to suppose that Savana was carrying the pills in her underwear.,,57 Justice Souter further stated that if a school is going to make the "quantum leap from outer clothes and backpacks to exposure of intimate parts," the school offi­cial needs either a "reasonable suspicion of danger or of resort to un­derwear for hiding evidence of wrongdoing. ,,58 Still, the Redding Court granted qualified immunity to the school officials, explaining that the circuit courts had been divided over the way in which TL. 0.

51 Redding Y. Safford Unified Seh. Dist., 531 F.3d 1071 (9th Cir. 2008) (en bane). 52 See id. at 1088. 53 See Conn Y. Gabbert, 526 U.S. 286, 290 (1999). 54 See Redding, 129 S. Ct. at 2641-44. 55 Jd. at 2642-43. 56 See id. at 2642. 57 Jd. at 2642-43. 58 Id. at 2643.

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applies to strip searches.59 Given the general lack of clarity here, theCourt reasoned that the school district officials were at least entitledto qualified immunity.60

The Redding decision included additional opinions that stakedout positions on opposite sides of the spectrum.61 Justices Stevensand Ginsburg concurred in part and dissented in part, agreeing thatthe search violated the Fourth Amendment, but disagreeing that theschool district officials should be entitled to qualified immunity.62

By contrast, Justice Thomas dissented from the conclusion that therehad been a Fourth Amendment violation at all.63 He argued that if astudent is suspected of carrying pills, and it is reasonable to look forthem in the student's backpack, it does not become unreasonable tosearch further if the initial search of the backpack reveals no wrong-doing.6" Justice Thomas added that by holding that further suspicionis required in order to strip search students, the Court was, in effect,announcing that the safest place for a student to hide drugs in schoolis in his or her undergarments.65

C. Open Issues with Suspicion-Based Searches

In Redding's aftermath, several questions still remain for low-er courts to sort out in future cases. For instance, the Redding Courtstated that before a strip search occurs, there must be "reasonablesuspicion of danger or of resort to underwear for hiding evidence ofwrongdoing before a search can reasonably make the quantum leapfrom outer clothes and backpacks to exposure of intimate parts."66What, precisely, qualifies as a "reasonable suspicion of danger"?Justice Souter suggested that there was not a high suspicion of dangerin Redding because the case involved a relatively small number of

' Redding, 129 S. Ct. at 2643-44.6 See id. at 2644.61 See id at 2637 (showing that Justices Stevens, Ginsburg, and Thomas concurred in part,

however, all three also dissented in part).62 See id. at 2644-45 (Stevens, J., concurring in part and dissenting in part); see also id. at

2645-46 (Ginsburg, J., concurring in part and dissenting in part).63 Redding, 129 S. Ct. at 2646 (Thomas, J., concurring in part and dissenting in part).64 See id. at 2647-49.6s Id. at 2650.

6 Id. at 2643 (majority opinion).

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applies to strip searches.59 Given the general lack of clarity here, the Court reasoned that the school district officials were at least entitled to qualified immunity.6o

The Redding decision included additional opinions that staked out positions on opposite sides of the spectrum.61 Justices Stevens and Ginsburg concurred in part and dissented in part, agreeing that the search violated the Fourth Amendment, but disagreeing that the school district officials should be entitled to qualified immunity.62 By contrast, Justice Thomas dissented from the conclusion that there had been a Fourth Amendment violation at all.63 He argued that if a student is suspected of carrying pills, and it is reasonable to look for them in the student's backpack, it does not become unreasonable to search further if the initial search of the backpack reveals no wrong­doing.64 Justice Thomas added that by holding that further suspicion is required in order to strip search students, the Court was, in effect, announcing that the safest place for a student to hide drugs in school is in his or her undergarments.65

C. Open Issues with Suspicion-Based Searches

In Redding's aftermath, several questions still remain for low­er courts to sort out in future cases. For instance, the Redding Court stated that before a strip search occurs, there must be "reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. ,,66 What, precisely, qualifies as a "reasonable suspicion of danger"? Justice Souter suggested that there was not a high suspicion of danger in Redding because the case involved a relatively small number of

59 Redding, 129 S. Ct. at 2643-44. 60 See id. at 2644. 61 See id. at 2637 (showing that Justices Stevens, Ginsburg, and Thomas concurred in part,

however, all three also dissented in part). . 62 See id. at 2644-45 (Stevens, J., concurring in part and dissenting in part); see also id. at

2645-46 (Ginsburg, J., concurring in part and dissenting in part). 63 Redding, 129 S. Ct. at 2646 (Thomas, J., concurring in part and dissenting in part). 64 See id. at 2647-49. . 65 Id. at 2650.

66 Jd. at 2643 (majority opinion).

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low dosage prescription painkillers. It is not clear whether a largerquantity of the same strength of drugs, or a similarly small quantityof higher-dosage drugs, would have qualified as sufficiently danger-ous.

Similarly, with respect to the Redding Court's discussion ofthe "reasonable suspicion" standard, an unresolved question is the ex-tent to which tips from other students can create reasonable suspi-cion. In Redding, the case largely hinged on the tip of one student,Marissa. Courts are likely to face future cases in which there aremultiple tips, and will have to consider whether that changes the out-come. Also lurking in the background is the question of whether, inconsidering the reliability of a student's tip-or the suspected stu-dent's denial-factors like a student's academic record, past discipli-nary history, and other characteristics should be considered. It is in-teresting to note, for instance, that Justice Stevens' separate opinionin Redding specifically described Savana as an "honors student."6 8

Another open issue with respect to suspicion-based search-es-addressed neither by TL. 0. nor Redding-is the extent to whichthe basic analysis changes if the search is carried out by school re-source officers (such as police department employees who are postedin the school) rather than school administrators themselves. So far,courts have generally held that the key question here is whether theschool resource officer is conducting the search at the direction ofschool officials, in which case TL.O. should apply, or is instead real-ly acting as a police officer at the behest of the police department, inwhich case the traditional Fourth Amendment protections should ap-ply. 69

67 Id. at 2642 (noting that the pills were common painkillers "equivalent to two Advil, orone Aleve").

68 Redding, 129 S. Ct. at 2644 (Stevens, J., concurring in part and dissenting in part).69 See, e.g., Wilson v. Cahokia Sch. Dist. No. 187, 470 F. Supp. 2d 897, 910 (S.D. Ill.

2007); Shade v. City of Farmington, Minn., 309 F.3d 1054, 1061 (8th Cir. 2002) (similarlyconcluding that the TL.O. reasonableness standard "govem[ed] the lawfulness of the searchconducted by [the o]fficer" because the search was initiated by a school official). But cfPatman v. State, 537 S.E.2d 118, 119, 120 (Ga. Ct. App. 2000) (holding that where policeofficer who was working a "special detail" at a high school searched a student after beingtold by the school secretary that the student smelled of marijuana, the Fourth Amendmentapplied because "[u]nlike a school official, a police officer must have probable cause tosearch a suspect").

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low dosage prescription painkillers.67 It is not clear whether a larger quantity of the same strength of drugs, or a similarly small quantity of higher-dosage drugs, would have qualified as sufficiently danger­ous.

Similarly, with respect to the Redding Court's discussion of the "reasonable suspicion" standard, an unresolved question is the ex­tent to which tips from other students can create reasonable suspi­cion. In Redding, the case largely hinged on the tip of one student, Marissa. Courts are likely to face future cases in which there are multiple tips, and will have to consider whether that changes the out­come. Also lurking in the background is the question of whether, in considering the reliability of a student's tip-or the suspected stu­dent's denial-factors like a student's academic record, past discipli­nary history, and other characteristics should be considered. It is in­teresting to note, for instance, that Justice Stevens' separate opinion in Redding specifically described Savana as an "honors student. ,,68

Another open issue with respect to suspicion-based search­es-addressed neither by T.L. 0. nor Redding-is the extent to which the basic analysis changes if the search is carried out by school re­source officers (such as police department employees who are posted in the school) rather than school administrators themselves. So far, courts have generally held that the key question here is whether the school resource officer is conducting the search at the direction of school officials, in which case T.L.0. should apply, or is instead real­ly acting as a police officer at the behest of the police department, in which case the traditional Fourth Amendment protections should ap­ply.69

67 Id. at 2642 (noting that the pills were common painkillers "equivalent to two Advil, or one Aleve").

68 Redding, 129 S. Ct. at 2644 (Stevens, J., concurring in part and dissenting in part). 69 See, e.g., Wilson v. Cahokia Sch. Dist. No. 187, 470 F. Supp. 2d 897, 910 (S.D. Ill.

2007); Shade v. City of Farmington, Minn., 309 F.3d 1054, 1061 (8th Cir. 2002) (similarly concluding that the T.L. O. reasonableness standard "govem[ ed] the lawfulness of the search conducted by [the o]fficer" because the search was initiated by a school official). But cf Patman v. State, 537 S.E.2d 118, 119, 120 (Ga. Ct. App. 2000) (holding that where police officer who was working a "special detail" at a high school searched a student after being told by the school secretary that the student smelled of marijuana, the Fourth Amendment applied because "[u]nlike a school official, a police officer must have probable cause to search a suspect").

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IV. RANDOM SEARCHES OF STUDENTS

Having considered suspicion-based searches of individualstudents, I now move to the second category of cases: cases involvingrandom, suspicionless searches of students. Here, too, there are twoSupreme Court cases on point.

A. Vernonia School District 47J v. Acton

The first case regarding random suspicionless searches of stu-dents was Vernonia School District 47J v. Acton, decided in 1995.70As noted previously, T.L.O. left open the question of whether indi-vidualized suspicion would always be necessary to satisfy the FourthAmendment.7' Vernonia squarely presented the Court with that is-sue.

Vernonia involved an Oregon school district that, after expe-riencing a major nse in drug use among its students, decided to adopta random drug testing policy for student-athletes. 7 2 There were sev-eral reasons why the district focused on student-athletes. First, therewas a prevailing concern that some of the athletes were "leaders ofthe drug culture."7 3 Second, and relatedly, student-athletes were con-sidered role models in the school, and the district hoped that combat-ing athletes' use of drugs would influence the rest of the school.74

Third, school officials were concerned about the particularly high riskof injury that drug use posed to student-athletes.

After many meetings, and with widespread support from bothparents and the community at large, the district unveiled a randomdrug-testing policy. 76 All student-athletes were tested at the begin-ning of each season.77 Additionally, the names of all student-athleteswent into a lottery pool and ten percent of the names were randomlydrawn each week for drug testing. If a student was chosen, he or

70 See Vernonia, 515 U.S. 646.7n See T.L.O., 469 U.S. at 342 n.8.72 Vernonia, 515 U.S. at 650.7 Id. at 649.74 See id. at 663.7 Id. at 649.76 See id. at 649-50 (noting that the school "held a parent 'input night' ").n Vernonia, 515 U.S. at 650.78 id

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IV. RANDOM SEARCHES OF STUDENTS

Having considered suspicion-based searches of individual students, I now move to the second category of cases: cases involving random, suspicionless searches of students. Here, too, there are two Supreme Court cases on point.

A. Vernonia School District 47J v. Acton

The first case regarding random suspicionless searches of stu­dents was Vernonia School District 47J v. Acton, decided in 1995.70

As noted previously, T.L.D. left open the question of whether indi­vidualized suspicion would always be necessary to satisfy the Fourth Amendment.7! Vernonia squarely presented the Court with that is-sue.

Vernonia involved an Oregon school district that, after expe­riencing a major rise in drug use among its students, decided to adopt a random drug testing policy for student-athletes.72 There were sev­eral reasons why the district focused on student-athletes. First, there was a prevailing concern that some of the athletes were "leaders of the drug culture.'m Second, and relatedly, student-athletes were con­sidered role models in the school, and the district hoped that combat­ing athletes' use of drugs would influence the rest of the school. 74 Third, school officials were concerned about the particularly high risk of injury that drug use posed to student-athletes.75

After many meetings, and with widespread support from both parents and the community at large, the district unveiled a random drug-testing policy.76 All student-athletes were tested at the begin­ning of each season.77 Additionally, the names of all student-athletes went into a lottery pool and ten percent of the names were randomly drawn each week for drug testing.78 If a student was chosen, he or

70 See Vernonia, 515 U.S. 646. 71 See T.L.o., 469 U.S. at 342 n.8. 72 Vernonia, 515 U.S. at 650. 73 /d. at 649. 74 See id. at 663. 75 Id. at 649. 76 See id. at 649-50 (noting that the school "held a parent 'input night' "). 77 Vernonia, 515 U.S. at 650. 78 Id.

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she was asked to go with a monitor to provide a urine sample thatwas immediately sent off to an independent lab. 79 There were vari-ous protections in place in terns of how the monitor oversaw theurine collection.8 ' The monitor was supposed to stand behind theurinal if the student was a boy and outside the stall if the student wasa girl.81 In order to avoid false positives, students were asked to pro-vide a list of any medications they were taking.82 If there was a posi-tive test, "a second test [was performed] . . . to confirm the re-sult[s]." 8 3 If the second test was positive as well, the student-athletehad to choose between participating in a drug assistance program forsix weeks, or being suspended from sports in the current and follow-ing seasons.84 Significantly, the school's policy was that the resultswould not be shared with law enforcement, but would be kept withinthe school.

The constitutionality of this policy was challenged by a stu-dent who wanted to participate in athletics but did not want to partic-ipate in the above-described regime.86 The case ultimately reachedthe Supreme Court, which held-in an opinion authored by JusticeScalia-that the policy did not violate the Fourth Amendment. TheCourt relied on the "special needs" doctrine, under which certainsearches (such as automobile checkpoints looking for drunk drivers)can pass Fourth Amendment muster even though they are not basedupon individualized suspicion, on grounds that they are being con-ducted for purposes of a "special need" other than law enforcement.The majority concluded that the "special needs" doctrine was appli-cable here, and articulated a balancing test for courts to use whenevaluating the constitutionality of suspicionless searches in publicschools. Under this test, courts must weigh the nature of the privacyinterest and the character of the intrusion against the nature of the

79 id.80 See id. (noting that monitors were approximately within fifteen feet of the students

watching or "listen[ing] for normal sounds of urination").81 id.

82 Vernonia, 515 U.S. at 650.' Id. at 651.84 Id.

85 See id. (noting that the superintendent, principals, vice-principals, and the athletic direc-tors were the only people that had access to the test results).

86 Id.87 See Vernonia, 515 U.S. at 653.

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she was asked to go with a monitor to provide a urine sample that was immediately sent off to an independent lab.79 There were vari­ous protections in place in terms of how the monitor oversaw the urine collection.80 The monitor was supposed to stand behind the urinal if the student was a boy and outside the stall if the student was a girl.8l In order to avoid false positives, students were asked to pro­vide a list of any medications they were taking.82 Ifthere was a posi­tive test, "a second test [was performed] . . . to confirm the re­sult[S]."83 If the second test was positive as well, the student-athlete had to choose between participating in a drug assistance program for six weeks, or being suspended from sports in the current and follow­ing seasons.84 Significantly, the school's policy was that the results would not be shared with law enforcement, but would be kept within the school. 85

The constitutionality of this policy was challenged by a stu­dent who wanted to participate in athletics but did not want to partic­ipate in the above-described regime.86 The case ultimately reached the Supreme Court, which held-in an opinion authored by Justice Scalia-that the policy did not violate the Fourth Amendment. The Court relied on the "special needs" doctrine, under which certain searches (such as automobile checkpoints looking for drunk drivers) can pass Fourth Amendment muster even though they are not based upon individualized suspicion, on grounds that they are being con­ducted for purposes of a "special need" other than law enforcement. 87

The majority concluded that the "special needs" doctrine was appli­cable here, and articulated a balancing test for courts to use when evaluating the constitutionality of suspicionless searches in public schools. Under this test, courts must weigh the nature of the privacy interest and the character of the intrusion against the nature of the

79 Id.

80 See id. (noting that monitors were approximately within fifteen feet of the students watching or "listen[ing] for normal sounds of urination").

81 Id.

82 Vernonia, 515 U.S. at 650. 83 /d. at 651. 84 Id.

85 See id. (noting that the superintendent, principals, vice-principals, and the athletic direc­tors were the only people that had access to the test results).

86 /d.

87 See Vernonia, 515 U.S. at 653.

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governmental concern at issue and the efficacy of the particularmeans for meeting that concern.8 8

In applying this test to the random drug-testing policy at issuein Vernonia, the Court began by finding that the nature of the privacyinterest was minimal, acknowledging that urination is generally "anexcretory function traditionally shielded by great privacy" but addingthat student-athletes are already subject to various reductions of theirprivacy. The Court also found the character of the intrusion weak,given the privacy-shielding way in which students were monitoredwhile urinating, in conjunction with the fact that the results were notpassed onto law enforcement.89 On the flip side, the Court concludedthat the government's interest in deterring drug use among the na-tion's school children was compelling and that the random drug-testing policy at issue was likely to be an efficacious way to respondto it. The Court thus upheld the constitutionality of the policy.

The Vernonia Court's emphasis on the diminished privacyexpectations of student-athletes naturally raised the question ofwhether the outcome would have differed had the policy been di-rected toward a broader group of students. Less than a decade later,the Supreme Court returned to that very question.

B. Board of Education of Independent School DistrictNo. 92 v. Earls

In 2002, the Supreme Court decided Board of Education ofIndependent School District No. 92 v. Earls,90 a case involving anOklahoma school district that adopted a very similar drug-testing pol-icy to the one at issue in Vernonia. Here, however, the policy appliednot only to student athletes but rather to all students participating incompetitive extracurricular activities.91 (In fact, according to its writ-ten terms, the policy applied to students participating in all extracur-ricular activities. In practice, however, it was only applied to stu-dents participating in competitive extracurricular activities, whichincluded sports as well as other activities like the Academic Team

88 Id at 652-53.89 See id. at 658.9 Earls, 536 U.S. 822.9' See id. at 825.

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governmental concern at issue and the efficacy of the particular means for meeting that concern.88

In applying this test to the random drug-testing policy at issue in Vernonia, the Court began by finding that the nature of the privacy interest was minimal, acknowledging that urination is generally "an excretory function traditionally shielded by great privacy" but adding that student-athletes are already subject to various reductions of their privacy. The Court also found the character of the intrusion weak, given the privacy-shielding way in which students were monitored while urinating, in conjunction with the fact that the results were not passed onto law enforcement. 89 On the flip side, the Court concluded that the government's interest in deterring drug use among the na­tion's school children was compelling and that the random drug­testing policy at issue was likely to be an efficacious way to respond to it. The Court thus upheld the constitutionality of the policy.

The Vernonia Court's emphasis on the diminished privacy expectations of student-athletes naturally raised the question of whether the outcome would have differed had the policy been di­rected toward a broader group of students. Less than a decade later, the Supreme Court returned to that very question.

B. Board of Education of Independent School District No. 92 v. Earls

In 2002, the Supreme Court decided Board of Education of Independent School District No. 92 v. Earis,90 a case involving an Oklahoma school district that adopted a very similar drug-testing pol­icy to the one at issue in Vernonia. Here, however, the policy applied not only to student athletes but rather to all students participating in competitive extracurricular activities.91 (In fact, according to its writ­ten terms, the policy applied to students participating in all extracur­ricular activities. In practice, however, it was only applied to stu­dents participating in competitive extracurricular activities, which included sports as well as other activities like the Academic Team

88 Id. at 652-53. 89 See id. at 658. 90 Earls, 536 U.S. 822. 91 See id. at 825.

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and the Future Farmers of America. 92) Interestingly, unlike inVernonia-where the drug-testing regime at issue was adopted in re-sponse to a serious drug problem that already existed in the schooldistrict-the Earls policy was adopted largely from a preventativestandpoint, in order to respond to more limited instances of druguse.93

A student who participated in various competitive extracur-ricular activities, including the Academic Team, challenged the poli-cy on Fourth Amendment grounds. She argued that the intrusion up-on privacy here was greater than that in Vernonia, because the policywas not limited to student-athletes. 94 She further attempted to distin-guish Vernonia on grounds that here, there was no proven drug prob-lem in the school.95

The Supreme Court, however, upheld the constitutionality ofthe policy. 96 Its opinion, authored by Justice Thomas, stated thatVernonia's discussion of student-athletes' reduced privacy expecta-tions was "not essential to our decision." 97 Likewise, the Courtdeemed it irrelevant that the district was not already combating a se-rious drug problem, stating that "we cannot articulate a threshold lev-el of drug use that would suffice to justify a drug testing program forschoolchildren."98

C. Open Issues with Random Searches

Now that the Supreme Court has upheld the constitutionalityof random drug-testing regimes for all students participating in extra-curricular activities, an obvious open issue is whether a district canadopt a random drug-testing policy that applies to all of its students.Neither the Vernonia nor Earls majority opinions addressed thatquestion. In his Earls concurrence, Justice Breyer-who providedthe fifth vote for upholding the policy-touched on this issue, observ-ing that "the testing program avoids subjecting the entire school totesting. And it preserves an option for the conscientious objector. He

92 Id. at 826.9 Id. at 834-35.* Id. at 831.* See Earls, 536 U.S. at 834-35.'6 Id. at 838." Id. at 831.98 Id. at 836.

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and the Future Farmers of America.92) Interestingly, unlike in

Vernonia-where the drug-testing regime at issue was adopted in re­sponse to a serious drug problem that already existed in the school district-the Earls policy was adopted largely from a preventative standpoint, in order to respond to more limited instances of drug use.93

A student who participated in various competitive extracur­ricular activities, including the Academic Team, challenged the poli­cy on Fourth Amendment grounds. She argued that the intrusion up­on privacy here was greater than that in Vernonia, because the policy was not limited to student-athletes.94 She further attempted to distin­guish Vernonia on grounds that here, there was no proven drug prob­lem in the school.95

The Supreme Court, however, upheld the constitutionality of the policy.96 Its opinion, authored by Justice Thomas, stated that Vernonia's discussion of student-athletes' reduced privacy expecta­tions was "not essential to our decision. ,,97 Likewise, the Court deemed it irrelevant that the district was not already combating a se­rious drug problem, stating that "we cannot articulate a threshold lev­el of drug use that would suffice to justify a drug testing program for schoolchildren. ,,98

C. Open Issues with Random Searches

Now that the Supreme Court has upheld the constitutionality of random drug-testing regimes for all students participating in extra­curricular activities, an obvious open issue is whether a district can adopt a random drug-testing policy that applies to all of its students. Neither the Vernonia nor Earls majority opinions addressed that question. In his Earls concurrence, Justice Breyer-who provided the fifth vote for upholding the policy-touched on this issue, observ­ing that "the testing program avoids subjecting the entire school to testing. And it preserves an option for the conscientious objector. He

92 Id. at 826. 93 Id. at 834-35. 94 Id. at 831. 95 See Earls, 536 U.S. at 834-35. 96 Id. at 838. 97 Id. at 831. 98 Id. at 836.

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can refuse testing while paying a price (nonparticipation) that is seri-ous, but less severe than expulsion from the school."99 This suggeststhat Justice Breyer might have ruled differently had the policy ap-plied to all students. In any event, the Supreme Court's compositionhas changed since 2002, and it is unclear how the four new justicesappointed since that time (Justices Roberts, Alito, Sotomayor, andKagan) might rule on the issue.

Another question is whether the outcome would have beendifferent had the test results been turned over to law enforcement, ra-ther than being kept within the respective schools. The SupremeCourt did not explicitly address this question in either Vernonia orEarls, but it did emphasize in both cases-when characterizing theprivacy intrusion in these policies as minimal-that the results werenot sent to law enforcement authorities.'o As such, a random drug-testing policy that did share the results with law enforcement mighthave a tougher time overcoming a Fourth Amendment challenge.

A fairly recent Eighth Circuit case, Doe ex rel. Doe v. LittleRock School District,' touched upon both of the above issues.There, the court had to assess the constitutionality of a policy that au-thorized random searches of all students' belongings, and any evi-dence of wrongdoing was turned over to law enforcement for prose-cution.102 The Eighth Circuit struck down this policy, emphasizingthat the evidence was turned over to law enforcement, unlike inVernonia and Earls.'03 In addition, the court pointed out that the pol-icy reached all students, rather than being limited to a class of stu-dents who voluntarily chose to participate in certain activities, as inVernonia and Earls.104

A final open question is the extent to which the Vernonia andEarls outcomes hinged on the fact that the drug-testing policies wereadopted in response to community concern about actual or potentialdrug use in the schools. In both decisions, the Supreme Court notedthis background history. 0 5 Future courts may instead be confronted

9 Id. at 841 (Breyer, J., concurring).10 See Vernonia, 515 U.S. at 658; Earls, 536 U.S. at 833.'01 380 F.3d 349, 354-55 (8th Cir. 2004).102 Id. at 354.

'0 Id. at 355-57.' See id at 353-54.105 See Vernonia, 515 U.S. at 650; Earls, 536 U.S. at 835.

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can refuse testing while paying a price (nonparticipation) that is seri­ous, but less severe than expulsion from the school.,,99 This suggests that Justice Breyer might have ruled differently had the policy ap­plied to all students. In any event, the Supreme Court's composition has changed since 2002, and it is unclear how the four new justices appointed since that time (Justices Roberts, Alito, Sotomayor, and Kagan) might rule on the issue.

Another question is whether the outcome would have been . different had the test results been turned over to law enforcement, ra­ther than being kept within the respective schools. The Supreme Court did not explicitly address this question in either Vernonia or Earls, but it did emphasize in both cases-when characterizing the privacy intrusion in these policies as minimal-that the results were not sent to law enforcement authorities.lOo As such, a random drug­testing policy that did share the results with law enforcement might have a tougher time overcoming a Fourth Amendment challenge.

A fairly recent Eighth Circuit case, Doe ex reI. Doe v. Little Rock School District,101 touched upon both of the above issues. There, the court had to assess the constitutionality of a policy that au­thorized random searches of all students' belongings, and any evi­dence of wrongdoing was turned over to law enforcement for prose­cution. l02 The Eighth Circuit struck down this policy, emphasizing that the evidence was turned over to law enforcement, unlike in Vernonia and Earls. 103 In addition, the court pointed out that the pol­icy reached all students, rather than being limited to a class of stu­dents who voluntarily chose to participate in certain activities, as in Vernonia and Earls .104

A final open question is the extent to which the Vernonia and Earls outcomes hinged on the fact that the drug-testing policies were adopted in response to community concern about actual or potential drug use in the schools. In both decisions, the Supreme Court noted this background history.105 Future courts may instead be confronted

99 Id. at 841 (Breyer, J., concurring). 100 See Vernonia, 515 U.S. at 658; Earls, 536 U.S. at 833. 101 380 F.3d 349, 354-55 (8th Cir. 2004). 102 Id. at 354. 103 Id. at 355-57. 104 See id. at 353-54. 105 See Vernonia, 515 U.S. at 650; Earls, 536 U.S. at 835.

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with a scenario in which a school district adopts such a policy overthe objections of the majority of the community, and will have toconsider whether that should affect the result.

V. CONCLUSION

As this discussion has shown, the four Supreme Court casesinvolving students' Fourth Amendment rights divide into two doctri-nal categories: suspicion-based searches and random searches. It isimportant to note, however, that these two lines of cases share acommon underlying approach: recognition that the Fourth Amend-ment is generally applicable here, coupled with a willingness to mod-ify the nature of that protection in light of school needs. This ap-proach is similar to the way in which the Supreme Court hasconceptualized students' First Amendment rights at school, as well astheir Fourteenth Amendment procedural due process rights. In all ofthese areas, the fundamental question to consider is whether the Su-preme Court has attained the right balance. In other words, has theSupreme Court protected the core of the constitutional right at issue,while still giving schools the flexibility that they need to maintain asafe, effective learning environment?

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with a scenario in which a school district adopts such a policy over the objections of the majority of the community, and will have to consider whether that should affect the result.

v. CONCLUSION

As this discussion has shown, the four Supreme Court cases involving students' Fourth Amendment rights divide into two doctri­nal categories: suspicion-based searches and random searches. It is important to note, however, that these two lines of cases share a common underlying approach: recognition that the Fourth Amend­ment is generally applicable here, coupled with a willingness to mod­ify the nature of that protection in light of school needs. This ap­proach is similar to the way in which the Supreme Court has conceptualized students' First Amendment rights at school, as well as their Fourteenth Amendment procedural due process rights. In all of these areas, the fundamental question to consider is whether the Su­preme Court has attained the right balance. In other words, has the Supreme Court protected the core of the constitutional right at issue, while still giving schools the flexibility that they need to maintain a safe, effective learning environment?

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