Concern about use of opioids and other illegal drugs by students has prompted some school boards to create policies for suspicionless drug testing of students. The resulting programs look for the presence of drugs in students' urine or blood without any individualized reason to believe that the students involved have been using drugs. This article will answer common legal questions about such policies.

Is it constitutional for a school to have a suspicionless drug testing program?

The Fourth Amendment of the U.S. Constitution protects all Americans, including students, from unreasonable search and seizures by the government. However, the U.S. Supreme Court has found that some suspicionless drug testing programs in schools pass Constitutional muster.

In Vernonia School District 47J v. Acton (1995), the Supreme Court upheld the constitutionality of a drug testing program in which an Oregon school district required high school student-athletes to submit to urinanalysis during the pre-season, as well as random testing during the season. Further, in Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls (2002), the court held that it was permissible for an Oklahoma school district to test middle and high school students who participate in extracurricular activities, which included Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, cheerleading and athletics. There does not appear to be any limitation on the types of voluntary extracurricular activities that can be subjected to such drug testing.

On the other hand, at least one federal Court of Appeals has found that a suspicionless drug testing policy that universally applied to all students who attended school was unconstitutional in its scope. Accordingly, in order to meet the relevant constitutional standards, any suspicionless drug testing policy should only be applied to those students who elect to participate in athletics or other extracurricular activities.

Are there special rules for New York State?

Yes. Education Law section 912-a states that drug testing of students may only occur "upon the written request or consent of a parent of, or person in parental relation to, a child." If a student is 18 years of age or older, he or she can independently grant consent.

Additionally, the commissioner of education has held that if a parent refuses to give consent for such testing, a student may not be precluded from participating in any extracurricular activities.

So while New York allows suspicionless drug testing of students, it is limited to voluntary participation.

How does one properly design a student drug testing program in New York?

Pursuant to the state Education Law and established common law, there are a number of restrictions involving both the types of drug testing that can be used and what consequences can be imposed for positive test results.

Specifically, it has been held that such drug testing may only be designed to detect the use of illegal drugs (e.g., amphetamines, marijuana, cocaine, opiates, barbiturates, etc.), but not medical conditions or authorized prescription medications.

If a student tests positive for an illegal drug, such test results may not be used for law enforcement or student disciplinary purposes (e.g., student suspension). Rather, the only discipline-related consequence of a positive test result is that the student’s privilege of participating in extracurricular activities can be revoked or restricted.

Schools must notify a student's parents of a positive test result and provide information about available programs and facilities to combat drug usage. Schools are also required to report any positive results for individuals to their local social services department, which can decide whether to offer protective social services or take other action under the state Social Services Law.

Additionally, state law specifically authorizes the use of such test results for statistical, epidemiological, or research purposes. Moreover, it requires school districts to maintain such test results in a separate location from other educational records. The purpose is to keep such test results confidential as mandated by law, and districts are required routinely to destroy such records upon the student's graduation or permanent departure from school.

Before your school board enacts any student drug testing policies, you should consult with your school district’s attorney, as the municipality in which the school district is located may have different or additional laws, ordinances, etc., governing such testing.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Eric Levine of Guercio & Guercio, LLP.