January 26, 2006

posted by Dan Filler

Great post, but it's Vernonia, not Veronia.

I gave Vernonia a pass for much the same reason one can give Skinner a pass; the specific facts were admittedly compelling: Vernonia was not just "extracurricular activities," but sports. Sports and drugs don't mix, just like trains and drugs don't mix.

My favorite "case for perspective" was Chandler v. Miller, which held that drug testing of candidates for political office did not serve any compelling state interest.

So the common sense approach is to ask, for each fact pattern: is it more like Vernonia/Skinner (i.e., a real danger of physical harm), or more like Chandler (i.e., grandstanding in the name of the War on Drugs)?

Dan,

Your concerns are misguided. You write that:

"Schools are in the business of teaching, signaling, and modeling social rules and values. These testing regimes convey an important civics lesson, and tell students something about the role of privacy in American law and culture. I worry that, as a result, more and more children graduate from high school with no sense that the Constitution explicitly and implicitly protects individuals from searches by the government. Based on personal experience, they may concluded that there is no right to privacy."

The fact of the matter is that many forms of employment require drug testing. There is nothing inconsistent with teaching kids that certain optional activities require certain concessions. No student is forced to participate in sports, just as no adult is forced to accept a particular employment position.

If anything, random drug testing of high school student-athletes is more reflective of U.S. culture. Consider the policies in MLB and the NFL.

Dan,

You're not against suspicionless searches at airports and or customs/border checkpoints are you? DUI checkpoints?

No response, Dan?

Joe, I think that public schools are different than private employers - if only because government-run schools are constrained by the Fourth Amendment. And I think that these schools should be in the business of inculcating constitutional values - from free speech to fourth amendment privacy.

MJ, I don't like suspicionless searches at either airports or the border, but I've come to live with them. The border is an easier case because the government clearly has the right to control entry. I'd like to think that airports are fairly unique. It's easier to avoid airports than it is to avoid school (and the attendant pressure to participate in school activities.) Also, in my view, the costs of not having searches are higher at airports - especially to third parties. I know that some might disagree with me on this point.

DUI checkpoints are deeply problematic. I absolutely disagree with the idea that the decision to drive constitutes a waiver of privacy, just as I believe that the choice to get a gun license should not waive privacy. (Can you imagine if the government was entitled to enter every licensed gun owner's home to make sure the weapon was stored safely?) When a person is driving dangerously, she should be stopped. When a person who stumbles out of a bar starts a car, she should be stopped. But to me, suspicionless stops of drivers are as offensive as suspicionless stops of pedestrians. They may deter misconduct, but they are not in accord with my idea of the Fourth Amendment.

"And I think that these schools should be in the business of inculcating constitutional values - from free speech to fourth amendment privacy."

This statement illustrates your (and many law professors') arrogance. The schools are checking minors for illegal drug use under limited conditions, which the Court (6-3) has said is ok. Nevertheless, you imply that the schools, by conducting such testing, are not "inculcating constitutional values - from free speech to fourth amendment privacy."




Remember, "[t]he Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as "'legitimate.'" Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 654 (1995) (citing New Jersey v. T. L. O., 469 U.S. 325, 338 (1985)). Perhaps your expectations of privacy are radically different than the expecations of most citizens.

"Can you imagine if the government was entitled to enter every licensed gun owner's home to make sure the weapon was stored safely?"

Admittedly this is off topic from the original issue of random drug tests at school, but there is a huge chasm of difference (constitutional and otherwise) between possessing something lawful in your home and driving your car on public roads.

This is where I part company with most of the people who express concerns (more and more often, and more an more shrilly, these days) about loss of privacy, because I find very little legitimacy in their claims of intrusion, and almost no acknowledgment of the legitimate government interest served. Every minor intrusion is equated with home invasion-body-cavity-searches.

Border searches protect National Security and prevent all sorts of illicit products from entering our borders. Airport searches are absolutely vital for public safety, and DUI checkpoints are a minimal intrusion for public safety while conducting a privileged activity - driving. These are all public activities, not intrusions into the privacy of one's home. There are far too many people who seem to think that public safety, the most profound government interest of them all, doesn’t "accord with [their] idea of the Fourth Amendment."

"The Constitution is not a suicide pact." Abraham Lincoln

Dan,
I want to clarify: you're saying that you teach your students that there is a general right to privacy in the Constitution?

Simon, my main focus is on Fourth Amendment privacy (I'm a crim law guy). I don't teach general con law, though my view of the constitution is that it protects individual privacy well beyond the express text of the Fourth Amendment. As best as I can tell, the new Chief shares this view, though I suspect he and I might disagree about the dimensions of constitutional privacy protection.

MJ, you and I have different views of the social pact that is the Constitution.

Joe, no matter what its legality, I do not think that random drug testing policies promote privacy as a value. The Court approves them despite their message about privacy, not because of it.

Dan,
My recollection of our new Fearless Leader's testimony was that he was very carefull to say that the Bill of Rights protects specific privacy rights and declined to say that he bought into the general right. Nobody denies the former proposition: the question is, what does this mean for the latter.

It seems to me that there is a very simple difference of opinion at the heart of the dispute over the “right to privacy”: those who believe there is look at the Bill of Rights and say “well, the Constitution guarantees certain, specific privacy rights, which means that there is a general right to privacy,” while those who believe there isn’t look at the same text and say, “if there is a general right to privacy, there wouldn’t need to be specifically enumerated rights of privacy, ipso facto, there is no general right to privacy.” Personally, I think the latter argument has the best of it.

I don't have a problem with teaching students that there is a popular theory that the Constitution creates a general right to privacy, but I do object to indoctrinating students in a theory that divides scholars, one that, after Justice Alito's confirmation, will be shared by only the slimmest of majorities on the Supreme Court, one that fell practically out of the blue, fully-formed, into the jurisprudential mainstream a scant four decades ago, and only then over a dissent from one of the most respected Jurists in the Court's history.

There's no getting away from the need to teach students about the general theory, but what worried me in your previous post was what I read (maybe wrongly) to suggest that a theory is being taught as if it were writ in as many words. No wonder things like this spring up.

I may stand corrected regarding Roberts' testimony, insofar as I might be confusing it with Alito's, who said:

Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there’s an invasion of a right to privacy, a legitimate expectation of privacy.

The right to privacy is protected under the Constitution in various ways. It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected. It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise. It protects privacy in matters of conscience. It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.

And in addition, the court has -- it was a series of decisions going back 80 years -- has recognized that personal privacy is a component of the liberty protected by the due process clause. The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well. And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.

I am just wondering what other sorts of illicit/illegal activity (eg drug use among youth participants in school related extra cirriculars) you would place beyond the reasonableness language of the 4th amendment for the sake of the preservation of a Griswoldian right of privacy. Were your argument re: the right of privacy one based upon a textual command of the constitution (it clearly isn't) then your argument would likely be more persuasive.
Justice Scalia properly posits in cases like Vernonia that where there exists a compelling state interest (drug use among student athletes) and the constitution places only a constraint of reasonableness upon the search from the outset, the court is essentially to be guided by notions of federalism where no other textual command beckons its analysis.
thanks for the posts everyone..