D.N.J.: School drug testing under individualized suspicion was constitutional

NJ statute permits drug testing of students on individualized suspicion of being under the influence at school. Plaintiffs’ son was clearly suspected of being under the influence because he was ADD and was suddenly acting like he was stoned, which he was. The testing here was constitutional. Parental consent was not constitutionally required, but the parents were notified according to law. Gutin v. Washington Twp. Bd. Of Educ., 467 F. Supp. 2d 414 (D. N.J. December 21, 2006):

It is important to note at the outset that the policy at issue is not one of suspicionless or random testing. Rather, the School District’s policy provides for testing only upon an individualized suspicion that a particular student is under the influence of drugs in school. Contrast Bd. of Ed. v. Earls, 536 U.S. 822 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)(school district policies authorizing random urinalysis drug testing of students). Therefore, the issue presented is whether the Fourth Amendment requires parental consent in every case before testing a student who is reasonably suspected of being under the influence of drugs while in school. The Court concludes that parental consent is not required by the Fourth Amendment.

. . .

The Court fails to see how lack of consent renders drug testing based on reasonable individualized suspicion unconstitutional. In T.L.O., the search of a student’s purse upon suspicion that she was violating her school’s smoking prohibition was held constitutional even though the student did not consent to the search. After a teacher took T.L.O. to the Assistant Vice Principal, the Vice Principal “asked T.L.O. to come into his private office and demanded to see her purse. Opening the purse he found a pack of cigarettes.” T.L.O., 469 U.S. at 328. Similarly here, Adam was taken to the Assistant Principal’s office based on the suspicion that he was under the influence, whereupon Adam’s mother was notified and arrangements were made to have Adam screened for drug use at Kennedy Hospital.

Moreover, the Third Circuit’s analysis in Hedges v. Musco, 204 F.3d 109 (3d Cir. 2000), supports the conclusion that lack of consent is not fatal to a reasonableness finding. In Hedges, parents of a New Jersey public high school student challenged the drug testing of their daughter pursuant to the school district’s drug testing policy. The student was observed by her teacher as having glassy, red eyes with dilated pupils and acting uncharacteristically. Hedges, 204 F.3d at 112-13. Based on these observations, the student was sent to the school nurse upon suspicion of being “high.” Id. After being examined by the nurse, the student was eventually taken to a hospital where a blood test and urinalysis were conducted. Id. at 113.

The police could rely on an anticipatory warrant that had a clear triggering point of word from an informant inside that the package had actually gone into the place to be searched. United States v. Serrano, 2006 U.S. App. LEXIS 31523 (10th Cir. December 20, 2006)* (unpublished).

Defendant had no standing to challenge the search of his mother’s car when he disclaimed control over it and had no key at the time of the search. United States v. Fisher, 213 Fed. Appx. 584 (9th Cir. 2006)* (unpublished).