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ADAM J. MOULE' a minor by and through his parents James A. Moule' and Kathleen A. Moule' husband and wife Plaintiff
vs.
PARADISE VALLEY UNIFIED SCHOOL DISTRICT NO. 69 a political subdivision of the State of Arizona; THE PARADISE VALLEY UNIFIED SCHOOL DISTRICT NO. 69 GOVERNING BOARD Defendants.
 
Case:
No. CIV 93-2190 PHX PGR
 
Location:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
 
Date:
September 9 1994 Decided
 
Attorneys:
For Plaintiff: Daniel D. Maynard-Michael Dean Curran Phoenix AZ.
For Defendants: Gary L. Lassen - Robert D. Haws Phoenix AZ.
 
Court:
Rosenblatt
 
Author:
The Hon. Justice Rosenblatt
 

A. Procedural Background

At the time of the filing of the Complaint in this action Adam J. Moule' ("Adam") attended Horizon High School *fn1 a high school within the Paradise Valley School District (the "School District") in Arizona. Since Adam is a minor the action was brought by Plaintiff through his parents James A. Moule' and Kathleen A. Moule'

Adam is challenging the School District's random drug testing program. He seeks a declaration that the program and the procedures implemented thereunder violate his rights under the United States Constitution and the Constitution of the State of Arizona and asks Court to enjoin further implementation administration or execution of the program.

Court set Plaintiff's motion for preliminary injunction for hearing in February 1994. At the parties' request they were allowed to conduct a trial on the merits and thereafter submit post-hearing memoranda and proposed findings and conclusions. Subsequent to the trial the Ninth Circuit Court of Appeals issued an opinion directly bearing upon the issues before this Court. The Ninth Circuit having denied rehearing on the case before it this Court is free to address those issues.

B. Factual Background

In the 1980s officials of the School District and members of the District's governing board ("Governing Board") became concerned about perceived drug use among students in schools within the School District. *fn2 In response they implemented a "self-esteem" program to help students to "say no to drugs." (Deposition and Trial Testimony of Vicki L. Canen.) Although the program did not include drug testing . . . . it appeared quite effective by the end of the 1980s. (Trial Testimony of Vicki Canen.)

School officials nevertheless became further concerned about drug usage within the School District. This concern was aroused by various athletic coaches' perception of increased steroid use among students. *fn3 In the fall of 1989 the School District began gathering data and input from parents student athletes coaches and community members addressing the need for and implementation of a program for random drug testing of student athletes. (Joint Stipulated Statement of Facts filed February 25 1994 pp. 2-3.) The District and its Governing Board engaged in a lengthy analysis.

School District officials and Governing Board members were not aware of any injuries received by athletes as a result of drug or alcohol use and were not aware of any evidence that athletes were more likely than other students to use such substances. (Testimony of John A. Stollar Jr.; Testimony of Vicki Canen.) Nevertheless in 1990 the Governing Board voted unanimously to adopt a program for the random testing of student athletes. (Id.)

In 1991 the School District began its random drug testing program. Under that program students desiring to participate in interscholastic sports within the School District must meet academic eligibility age residency and health requirements set by the Arizona Interscholastic Association and the School District; attend an orientation with their parents; sign a consent form; and submit to random testing involving the obtaining and testing of urine samples. (Stipulated Facts p.4.) Interscholastic sports are extracurricular programs at the School District; participation is voluntary and student athletes do not receive academic credit for participating. Students refusing to submit to random drug testing are not allowed to participate in interscholastic sports. Other students within the School District are not subjected to random testing. (Id.)

Student athletes are chosen for individual testing at random. If chosen the athlete is escorted from class by a security guard and conducted to a bathroom within an office. He or she provides a urine sample in private without direct observation. Various steps are taken to ensure the sample's integrity to protect the chain of possession and to protect the identity of the athlete before and after the sample is turned over to a laboratory for drug testing by urinalysis. (Stip. Facts pp.4-5.) The tests screen for the presence or absence of alcohol amphetamines barbiturates benzodiazepines cocaine methadone methaqualone opiates phencyclidine propoxyphene cannabinoids and anabolic steroids. (Stip. Facts p. 6.) Drug screenings using confirmatory tests are approximately 99.9% reliable. (Id. at p.5.)

If a test is positive the student athlete and the athlete's parents are informed. An athlete who believes the result is a false positive may have the sample retested or may provide a sufficient explanation for the result. (Stip. Facts p. 5.) A "true positive" will result in temporary athletic ineligibility which may be reduced by attending Counseling. No further disciplinary action is taken. (Id. at 5-6.) From inception of the random drug testing program to December 1 1993 no more than three student athletes have tested positive; those students tested positive for cannabinoids. Although one student voluntarily sought help for steroid use the tests have not resulted in any positives for steroids. (Stip. Facts pp. 7.)

Adam Moule' has been tested twice and has received negative results both times. He is an exemplary student; in addition to being an avid participant in sports activities he participates in band and several clubs is a member of the National Honor Society and has a class ranking of 19 out of 631. (Testimony of Adam Moule'; Testimony of John Stollar.)

Adam Moule' and James Moule' concede that they attended the drug testing orientation and signed consent forms on at least two occasions. (Testimony of James Moule'.) Moreover Adam Moule' voluntarily participated on the Horizon High School cross country team in August through November of 1991 1992 and 1993 and participated on the Horizon track team in January through May of 1992 and 1993. (Stip. Facts pp. 1-2.) James Moule' testified however that he did not sign the forms voluntarily; sports are very important to his son and he felt it was not proper to deprive Adam of his right to participate. (Testimony of James Moule'.) Mr. Moule' voiced his objections by speaking with school officials indicating on the consent form that he was being forced to sign and did so under protest and by seeking Counsel to challenge the constitutionality of the School District policy. (Id.)

DISCUSSION

Adam Moule' submits that the School District's random drug testing program and the procedures used to administer the program constitute an unreasonable search and an illegal invasion of his privacy in violation of his constitutional rights under the Fourth Amendment to the United States Constitution and Article 2 Section 8 of the Arizona Constitution.

A. Jurisdiction

Defendants Paradise Valley School District No. 69 and the Paradise Valley School District No. 69 Governing Board are organized and existing under Arizona law and are governmental entities. (Stip. Facts p.2.) This Court has jurisdiction over Plaintiff's Fourth Amendment claim. 28 U.S.C. SEC. 1331; 42 U.S.C. SEC. 1983; Acton v. Vernonia School Dist. 47J 23 F.3d 1514 1517 (9th Cir. 1994) reh'g. denied (July 8 1994). It has supplemental jurisdiction over the Arizona constitutional cause of action. 28 U.S.C. SEC. 1367(a); Acton 23 F.3d at 1517.

B. Evidentiary and Constitutional Analysis

Plaintiff alleges that Defendants violated both federal and state constitutional provisions. This action bears unmistakable similarities to a recent Ninth Circuit case Acton v. Vernonia School Dist. 47J 23 F.3d 1514 (9th Cir. 1994) reh'g. denied (1994). In that case an Oregon high school student athlete's parents challenged on the student's behalf the constitutionality of a school district's imposition of random drug testing of student athletes. Court will largely employ the analytic process set forth in Acton.

In lawsuits asserting violations of federal and state constitutions a federal court must determine whether the state and federal constitutional provisions are "coextensive." If they are Court may address the federal constitutional claims as resolution of those claims necessarily will decide the state constitutional claims. Acton 23 F.3d at 1518 (citation omitted). If the state and federal Provisions are not coextensive however and the state constitution affords more protection than the federal constitution Court decides validity under the state constitution "in order to avoid addressing federal constitutional claims unnecessarily." Id. at 1518 (citation omitted).

The Arizona Constitution in Article 2 Section 8 provides:

No person shall be disturbed in his private affairs or his home invaded without authority of law.

ARIZ. CONST. Art. 2 SEC. 8.

The Fourth Amendment to the United States Constitution and Article 2 SEC. 8 of the Arizona Constitution prohibit unreasonable search and seizure by government authorities. State v. Ault 150 Ariz. 459 724 P.2d 545 549 (Ariz. 1986). In fact Arizona's privacy provision is broader than the Fourth Amendment. Id. *fn4 This Court must first attempt to decide the validity of the School District's drug testing program under Arizona's Constitution. That is not an easy task as Arizona courts have never decided a random drug testing case. Where state law is silent Court may refer to federal Fourth Amendment law for assistance. See Acton 23 F.3d at 1518 1520.

Drug testing conducted through the collection and testing of urine samples by state officials constitutes a search. Acton at 1520 citing Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 617 109 S. Ct. 1402 1412 103 L. Ed. 2d 639 (1989). See also Intern. Broth. of Teamsters v. Dept. of Transp. 932 F.2d 1292 1299 (9th Cir. 1991).

The Acton court characterized the random drug testing of minor students pursuant to a school policy as an "administrative" search rather than a "criminal" search. See Acton 23 F.3d at 1521. Under Arizona law warrantless administrative searches are sometimes permitted if there Is a regulatory scheme specifically authorizing such searches an important governmental interest is involved and the search is reasonable. See Mendez v. Arizona State Bd. Of Pharm. 129 Ariz. 89 91 628 P.2d 972 974 (App. 1981); State of Ariz. v. Hone 177 Ariz. 213 866 P.2d 881 882-884 (App. 1993).

It appears that the School District policy was properly enacted and authorizes school officials to conduct the random searches. See Acton 23 F.3d at 1520 1521. Court must therefore determine whether be random and suspicionless searches at issue are "reasonable." Id.

Arizona courts have employed a Fourth Amendment analysis in administrative search cases. See Hone 866 P.2d at 885-886. The Fourth Amendment requires the balancing of the governmental interest against the privacy interests involved. Id.; Acton 23 F.3d at 1523 citing Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 619 109 S. Ct. 1402 1414 103 L. Ed. 2d 639 (1989); Portillo v. United States District Court of Arizona 15 F.3d 819 823 (9th Cir. 1994).

There is no question that "the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable. . . ." Skinner 489 U.S. at 624. In rare instances courts have found these expectations diminished. See Skinner 489 U.S. at 627-28 (railroad employees' expectations diminished by long-term regulatory activity and necessity for safety); National Treasury Employees Union v. Von Raab 489 U.S. 656 103 L. Ed. 2d 685 109 S. Ct. 1384 (1989) (because of their use of firearms and handling of classified material certain customs officers should expect inquiry into fitness and probity); Intern. Broth. of Teamsters v. Dept. of Transp. 932 F.2d 1292 (9th Cir. 1991) (truckdrivers' privacy expectations diminished due to comprehensive and long-term safety and other regulation). These "rare instances" have been limited to "cases fraught with danger where the interests of the person to be tested were attenuated." Acton 23 F.3d at 1524-25.

This is not a case "fraught with danger" involving persons with attenuated interests in privacy. The Ninth Circuit has found that students and student athletes are not subject to the sort of extensive government regulation that would attenuate their privacy interests and their lives or the lives of others generally do not depend upon their ability to perform their roles as athletes. Their rights to privacy in their excretory functions are undiminished. Id. at 1525. See also Brooks v. East Chambers Consol. Ind. School Dist. 730 F. Supp. 759 766 (S.D. Tex. 1989) aff'd without pub. op. 930 F.2d 915 (5th Cir. 1991) (student athletes do not have diminished expectation of privacy); Portillo 15 F.3d at 824 (even a parolee has an expectation of privacy).

Defendants have not presented any evidence that Adam's privacy interests are attenuated not rejected in Acton. It appears that he is entitled to the same protection afforded to the student athletes of the Vernonia School District the district involved in the Acton case.

As for the government's interest the School District has worthy goals similar to those of the Vernonia School District. The Paradise Valley School Board is attempting to prevent unnecessary athletic injuries to reduce the attraction of drugs to discourage the use of potentially-dangerous steroids and to assist students who are reluctant to use drugs but feel pressured to use them. *fn5 The gravity of the dangers the Board seeks to dispel however is not of the magnitude required to permit suspicionless testing. Acton 23 F.3d at 1526.

C. Consent

Defendants argue that even if their drug testing program does not withstand constitutional scrutiny there is no constitutional violation because Adam and his father by signing the consent forms given to them voluntarily consented to the testing. The Defendants have the burden of proving that consent to the search was voluntary. Schneckloth v. Bustamonte 412 U.S. 218 222 36 L. Ed. 2d 854 93 S. Ct. 2041 (1973). Voluntariness is a question of fact. Id. at 248-49.

Participation in extracurricular school-sponsored athletics within the School District is at this time conditioned upon submission to the District's drug testing program. James Moule' testified that he signed the consent forms because athletic participation is very important to Adam and he did not wish to deny Adam the opportunity to participate. Both James and Adam Moule' testified that they did not voluntarily sign the consent forms. The forms themselves demonstrate that the Moules objected to random suspicionless drug testing from the outset and agreed to submit to testing in order to allow Adam to participate. *fn6

Viewing the totality of the circumstances of this case Court must conclude that the consents obtained from the Moules under the School District's "no testing no playing" requirement were not truly voluntary. See Acton at 1526-27. Adam and his father were "coerced" for constitutional purposes by the fact that Adam was barred from participation without a signed consent. University of Colorado v. Derdeyn 863 P.2d 929 959-950 (Colo. 1993) reh'g denied 114 S. Ct. 2719 (1994). Defendants have failed to meet their burden of demonstrating otherwise.

CONCLUSION

The Ninth Circuit Court of Appeals has determined that a school district's policy of random drug testing of high school athletes violates the Fourth Amendment of the United States Constitution. Acton 23 F.3d at 1526. This Court is unable to find any significant factual differences distinguishing Adam Moule's circumstances from those presented in the Acton case and will follow Ninth Circuit precedent. Because the policy violates the United States Constitution it follows that it violates Article 2 SEC. 8 of the Arizona Constitution. Moreover Adam and his parents did not voluntarily consent to random suspicionless drug testing.

In accordance with the foregoing

IT IS HEREBY ORDERED granting the Plaintiff's Request for Preliminary Injunction (Doc. 2-2) and granting his request for the entry of a permanent injunction in this matter.

 
Notes:

*fn1 It is Court's understanding that Adam was a junior at the time of the filing of the Complaint and will be returning as a senior for years 1994-1995.

*fn2 While Defendants' witnesses testified that there was an increase in drug use it appears they primarily relied upon survey results for their conclusions. They presented no evidence of specific instances of drug use prior to 1988-89.

*fn3 Coaches Doug Shaffer and Eric Kibler testified that they detected tell-tale signs of steroid use by several students. The coaches reported their concerns to Principal John A. Stollar Jr. (Deposition and Trial Testimony of Doug Shaffer and Eric Kibler.) There is significant evidence that "basically that's the way the ball started." (Depo. of Shaffer pp. 6-7.) The students suspected of steroid use were not tested at that time. As to the use of any other drugs Defendants relied on various surveys which were likely unreliable. (See Testimony of Bruce Henderson.) Defendants presented no significant evidence concerning the use of other drugs.

*fn4 The Fourth Amendment to the United States 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 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.

*fn5 Although the School District coaches testified as to their suspicions that their students were using steroids Defendants did not present any direct evidence of usage. The District did not conduct tests of the students under suspicion.

*fn6 In Derdeyn 863 P.2d at 949 the Colorado Supreme Court pointed out that the college students objecting to random testing may not have had a meaningful opportunity to apply for admission to another educational institution after learning about the college's drug testing program. As a high school student Adam likely had even less choice.