S.D.N.Y.: Random Covid testing reasonable search under special needs doctrine

Assuming random Covid testing of NYC school children is a Fourth Amendment search, the court applies Vernonia School District 47J and special needs and finds it reasonable. Aviles v. De Blasio, 2021 U.S. Dist. LEXIS 38930 (S.D. N.Y. Mar. 2, 2021):

As to the first factor of the Vernonia School District analysis — “the nature of the privacy interest upon which the search . . . intrudes,” 515 U.S. at 654 — Defendants’ random testing program involves a medical examination or procedure. As discussed above, parents are generally responsible for making medical decisions concerning their child. As in Vernonia School District, however, the nasal swab test has been designed for the student’s “own good and that of their classmates.” Id. at 656. The nasal swab test also takes place “‘within the school environment [where students] have a lesser expectation of privacy than members of the population generally.'” Id. at 657 (citation omitted). And as in Vernonia School District, Defendants’ testing program is premised on parental consent — consent that may be withdrawn at any time. (Id. at 650; see also Varma Decl. (Dkt. No. 19) ¶¶ 49-51)

As to the second factor — “the character of the intrusion that is complained of” — the Court finds that the intrusion is minimal in nature. The testing program involves use of a short nasal swab; the test is performed in a matter of seconds; is not painful; and does not involve “[a body part or] function traditionally shielded by great privacy.” See id. at 685 (citation and quotation marks omitted). As discussed above, parental consent is required for testing; a parent may seek exemption from testing; parents are given two-days’ notice of the test; and no child will be tested against their will. (Varma Decl. (Dkt. No. 19) ¶¶ 49-50, 55-56) As to confidentiality, access to individual test results is tightly restricted, and specimens are destroyed after testing is completed. (Id. ¶¶ 57-61)

The third Vernonia School District factor is “the nature and immediacy of the governmental concern at issue, and the efficacy of [the] means for meeting [that concern].” 515 U.S. at 660. Here, “the nature and immediacy of the governmental concern” could hardly be more compelling. The random testing program is designed to control the spread of the COVID-19 virus in schools and in the larger community. (See Varma Decl. (Dkt. No. 19) ¶¶ 5-21, 44, 46) Moreover, in such circumstances, public officials are not required to demonstrate that the search at issue is the “‘least intrusive'” means available. Vernonia School Dist., 515 U.S. at 663 (citation omitted). Indeed, the Supreme Court stressed in Vernonia School District that it has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” Id. (citation omitted).

As to the efficacy of the random testing program to detect the presence of the COVID-19 virus in the schools, as this Court has found, Defendants’ PCR test is the most reliable tool currently available for this purpose. While the PCR test does not reveal infectiousness, as this Court has explained, no such test can be made widely available at this time.

Having considered all of the Vernonia School District factors, the Court concludes that they demonstrate that Defendants’ random testing program is reasonable. Accordingly, Plaintiffs have not shown a likelihood of success on their Fourth Amendment and privacy claims.