Judicial Notebook

The Fourth Amendment to the U.S. Constitution 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."

Searches of individuals in their persons (for example, drug tests) are normally justified when they are consensual or are conducted with a search warrant. However, the U.S Supreme Court has interpreted the Searches and Seizures clause of the Fourth Amendment to include a number of exceptions that permit warrantless searches.

One such exception, the "special needs" doctrine, Chandler v. Miller, 520 U.S. 305 (1997), permits government agents to conduct "suspicionless searches" even under limited circumstances when an official has no articulated suspicion of a violation of law. The Fourth Amendment allows searches when the state has a special needs interest, unrelated to law enforcement, that outweighs the individual's privacy interest, as in Ferguson v. City of Charleston, 121 S.Ct. 1281 (2001). The special needs doctrine comes into play anytime a government agency (e.g., a public school, state place of employment, or state operated hospital) justifies random drug searches of students, employees or patients as a means to achieve a social good.

In Ferguson, the U.S. Supreme Court examined a hospital policy that required pregnant women to undergo urinalyses when certain symptom criteria were present. Although the purpose of the Medical University of South Carolina's use of urinalysis was to direct the women into drug treatment programs, the urinalysis tests were conducted with the awareness, and indeed, cooperation of the police. Positive tests culminated with an arrest unless the women agreed to undergo drug rehabilitation treatment. The Court held that this procedure was in violation of the Fourth Amendment because the state interest (i.e., providing treatment for drug-abusing pregnant women) was inseparable from the law enforcement function. The fact that the police used the information to arrest and prosecute women violated the special needs doctrine.

Ferguson is not the only case that raises the issue of the validity of a special need that is independent of law enforcement. In Vernonia School District v. Acton, 515 U.S. 646, the Supreme Court ruled in favor of required urinalyses for student athletes. The Court ruled that the state's need to detect and deter student athletes from acting as leaders in a growing drug culture outweighed the privacy interests of the students.

The importance of establishing (or failing to establish) a state interest independent of law enforcement to justify random urinalysis testing is driven home in a recent case in the Tenth Circuit, Earls v. Board of Education, 242 F.3d 1264 (10th Cir, 2001). The court of appeals held that required drug testing of all students who participate in any extracurricular activities in Tecumseh High School was a violation of the Fourth Amendment for want of a special need that was sufficient to balance the students' privacy interests. The 10th Circuit distinguished this case from Vernonia because the extensive drug culture and illegal substance abuse epidemic observed in the Vernonia schools was absent at Tecumseh High School. In fact, data showed only two of the 486 students who participated in extracurricular activities at Tecumseh High School tested positive for drugs in the 1998-99 school year. Further, a needs assessment survey conducted at Tecumseh High School to apply for state funds for the Safe and Drug-Free Schools and Communities program of Oklahoma state concluded that alcohol and tobacco use on the weekends was the number one problem at the school. The study went on to say that the use of dangerous and illegal drugs was not a major problem at that time.

If Earls withstands further appeal, it provides precedent for empirical investigation of whether current drug usage is a sufficient special need to allow random drug tests in state schools, workplaces and hospitals. Social and industrial/organizational psychologists may contribute to Fourth Amendment jurisprudence with empirical studies that help to measure the extent to which a special need exists independent of law enforcement.

Psychologists will not only need to be familiar with current need assessment methodologies, they will also need to make sure that their research designs speak directly to the issues of Fourth Amendment search and seizure cases.

"Judicial notebook" is written by the Courtwatch Committee of APA's Div. 9 (Society for the Psychological Study of Social Issues). This column seeks to encourage involvement by psychologists in judicial decision-making.