Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. L87-0090--Allen Sharp, Judge.
Bauer, Chief Judge, and Cudahy and Manion, Circuit Judges.
In this action brought under 42 U.S.C. section 1983, plaintiffs-appellants Darcy Schaill and Shelley Johnson challenge a random urinalysis program instituted by the defendant-appellee Tippecanoe County School Corporation ("TSC"). Appellants allege that the TSC urinalysis program violates their rights under the fourth amendment and the due process clause of the fourteenth amendment. After conducting a trial on the merits of appellants' claims, the district court ruled that the TSC program was constitutional. We affirm.
The essential facts of this case are undisputed, and can be stated quite briefly. TSC operates Harrison and McCutcheon High Schools in Indiana. In the spring of 1986, based on information concerning possible drug use by athletes on the McCutcheon High School baseball team, the team's coach ordered sixteen team members to provide urine samples. Of the sixteen students tested, five students' tests produced positive results for the presence of marijuana. Based on these results, other reports of drug use among participants in the TSC athletic program, and their concern over the high incidence of drug abuse among high school students nationwide, the board of trustees of TSC decided to institute a random urine testing program for interscholastic athletes and cheerleaders in the TSC school system.
Under the program, all students desiring to participate in interscholastic athletics and their parent or guardian are required to sign a consent form agreeing to submit to urinalysis if chosen on a random basis. Each student selected for an athletic team is assigned a number. The athletic director and head coach of each athletic team are authorized to institute random urine tests during the athletic season. In order to select individuals to be tested, the number assigned to each athlete is placed in a box, and a single number is drawn.
The student selected for testing is accompanied by a school official of the same sex to a bathroom, where the student is provided with an empty specimen bottle. The student is then allowed to enter a lavatory stall and close the door in order to produce a sample. The student is not under direct visual observation while producing the sample; however, the water in the toilet is tinted to prevent the student from substituting water for the sample, the monitor stands outside the stall to listen for normal sounds of urination and the monitor checks the temperature of the sample by hand in order to assure its genuineness.
The chain of custody of the sample is designed to insure the accuracy and anonymity of the testing procedure. The sample is sent to a private testing laboratory, where it is initially tested for the presence of controlled substances or performance-enhancing drugs using the enzyme multiplied immunoassay technique ("EMIT"). Any sample which tests positive is then retested using the more accurate, and more expensive, gas chromatography/mass spectrometry ("GC/MS") method.
If a sample tests positive under both the EMIT and GC/MS analyses, the student and his or her parent or guardian are informed of the results. They then have the opportunity to have the remaining portion of the sample tested at a laboratory of their choice. The student and his or her parent or guardian may also present the athletic director with any evidence which suggests an innocent explanation for the positive result, such as the fact that the athlete legally takes prescription or over-the-counter medication.
Barring a satisfactory explanation, the student is then suspended from participation in a portion of the varsity competitions held during the athletic season. A first positive urinalysis test results in a suspension from 30% of the athletic contests, a second positive results in a 50% suspension, a third positive causes a suspension for a full calendar year and a fourth positive results in the student's being barred from all interscholastic athletic competitions during the remainder of the student's high school career. No other penalties are imposed, and a student may decrease the specified punishment by participating in an approved drug counselling program.
In the spring of 1987, appellants Darcy Schaill and Shelley Johnson were 15-year-old sophomores at Harrison High School. Shelley had been a member of the varsity swim team as a freshman. Both appellants attended an organizational meeting for students desiring to participate in interscholastic athletics in the fall of 1987, at which time they were first informed of the proposed implementation of the TSC urinalysis program. Both appellants were offended by the thought of having to undergo urinalysis as a condition of participation in interscholastic athletics, and both decided that they would forego the opportunity to compete in interscholastic athletics if required to sign a form consenting to random urine testing.
TSC adopted the current version of its drug testing program on August 28, 1987. Appellants had filed their complaint, which initially challenged a prior version of the program, on August 25, 1987. The district court conducted a trial on the merits of appellants' fourth amendment and due process claims on December 7 and 8, 1987. On February 1, 1988, the district court entered its memorandum opinion and order denying appellants' claims for declaratory and injunctive relief. Schaill v. Tippecanoe Cty. School Corp., 679 F. Supp. 833 (N.D. Ind. 1988). This appeal followed.
As a threshold matter, we must consider whether TSC's random urine testing program involves a "search" as that term is employed in the fourth amendment. The Supreme Court has held that "[a] 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984); see also Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) (Harlan, J., concurring).
There can be little doubt that a person engaging in the act of urination possesses a reasonable expectation of privacy as to that act, and as to the urine which is excreted. In our society, it is expected that urination be performed in private, that urine be disposed of in private and that the act, if mentioned at all, be described in euphemistic terms. See Lovvorn v. City of Chattanooga, 846 F.2d 1539, 1543 (6th Cir. 1988) ("There are few other times where individuals insist as strongly and universally that they be let alone to act in private."); National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175-76 (5th Cir. 1987) ("There are few activities in our society more personal or private than the passing of urine."), cert. granted, 485 U.S. 903, 108 S. Ct. 1072, 99 L. Ed. 2d 232 (1988); Capua v. City of Plainfield, 643 F. Supp. 1507, 1513 (D.N.J. 1986) ("Urine . . . is normally discharged and disposed of under circumstances that merit protection from arbitrary interference.").
The fact that urine is voluntarily discharged from the body and treated as a waste product does not eliminate the expectation of privacy which an individual possesses in his or her urine. While urine is excreted from the body, it is not "knowingly expose[d] to the public," Katz, 389 U.S. at 351; instead, the highly private manner by which an individual disposes of his or her urine demonstrates that it is not intended to be inspected or examined by anyone. Compare California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 1629, 100 L. Ed. 2d 30 (1988) (individual has no reasonable expectation of privacy in garbage bags left on public street for collection, since garbage was deposited at curbside "for the express purpose of having strangers take it" for ultimate disposal).*fn1
It is not clear whether, or to what extent, the TSC random urinalysis program's status as a search is affected by the fact that tests will be performed only with respect to students who have previously given their consent. Cf. Lovvorn v. City of Chattanooga, 846 F.2d 1539, 1553-54 (6th Cir. 1988) (Guy, J., dissenting) (citing Wyman v. James, 400 U.S. 309, 317-18, 27 L. Ed. 2d 408, 91 S. Ct. 381 (1971)). The consent provided in the forms supplied to students is certainly not dispositive of the "search" issue since execution of a consent form is a prerequisite to participation in interscholastic athletics. In fact the Supreme Court has recognized that
even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest. . . . For if the government could deny a benefit to a person because of his [exercise of] constitutionally protected [rights], his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly." Speiser v. Randall, 357 U.S. 513, 526, 2 L. Ed. 2d 1460, 78 S. Ct. 1332 [(1958)]. Such interference with constitutional rights is impermissible.
Perry v. Sindermann, 408 U.S. 593, 597, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972).*fn2 It is certainly relevant to the ultimate question of constitutionality, however, that the activity to which random testing is attached is participation in an extracurricular activity. Random testing is not, as we discuss later, a condition of a weightier benefit such as employment or school attendance. Nonetheless, since participation in interscholastic athletics is expressly conditioned on a student's waiver of his or her fourth amendment rights, the "voluntariness" of a student's submission to urinalysis testing does not alone dispose of ...