Attorney General: Philip E. Austin, President, University of Connecticut, 1998-021 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

November 9, 1998

Philip E. Austin, President
University of Connecticut
352 Mansfield Road, U-48
Storrs, CT 06269-2048

Dear Dr. Austin:

You have asked our office to provide an opinion on the legality of random drug testing of student-athletes at the University of Connecticut. The Division of Athletics at the University has revised its drug testing policy; this opinion addresses that revision. You are advised that the program as revised, accompanied by appropriate safeguards, is constitutionally permissible.

In order to provide a context to your question, it is necessary to review the "probable cause" or "reasonable suspicion" based drug-testing program currently in use. Under that program, possible drug users are identified through "probable cause," or individualized, reasonable suspicion. A physician, coach or trainer, upon the observation of certain symptoms, may have a basis for believing that a student-athlete is using street drugs or performance-enhancing drugs. If the test, which consists of chemical analysis of a urine sample, is positive for street drugs, there is an appeal procedure, which involves retesting a second specimen. If the result stands, or if there is no appeal, the student-athlete must report to student health services for evaluation and treatment. There is a follow up test within a two- to eight-week period, as well as the possibility of two additional tests during the academic year.

There are progressive sanctions for subsequent positive tests. A second positive will result in a thirty- to sixty-day suspension from practice and competition; a third positive will result in ineligibility for the remainder of the academic year; and, the fourth positive will result in permanent ineligibility, as well as the loss of the grant-in-aid. (There are a series of appeals built into the program, as well as retesting those who test positive.)

The sanctions for performance enhancing drugs lack the graduated feature of those for street drugs. A first positive test means suspension for the remainder of the academic year; a subsequent positive test at any point during a student-athlete's career means permanent ineligibility and a loss of the grant-in-aid. The philosophy of the program is educational, not punitive. Positive test results are not communicated to law enforcement or student disciplinary authorities. The results of a first positive test are not provided to parents.

The major deficiencies in the probable cause program, we are informed, are its ineffectiveness in identifying substance abuse at its earliest stages and the resultant failure to deter drug use. The new program is designed to target these shortcomings by making the testing random. Student-athletes who do not consent to the random testing will not be allowed to participate in inter-collegiate athletics. Probable cause testing would remain a part of the program, which, except as noted above, would otherwise be unchanged with respect to testing protocols and progressive sanctions.

There is no question that the collection and testing of urine samples, compelled by a public university, is a search for Fourth Amendment purposes. There is no authority binding in Connecticut on the question of whether random drug testing of a discrete population at a public university (student-athletes) violates the Fourth Amendment, U.S. Constitution. The issue is informed by four Supreme Court cases, one of which addressed this issue in the high school context.

In New Jersey v. T.L.O., 469 U.S. 325 (1985), the Supreme Court held that the Fourth Amendment's Warrant Clause was not applicable in the context of a search of school lockers for the presence of drugs. The search in T.L.O. was not based upon probable cause; rather, it was based on an articulable, reasonable suspicion of wrongdoing. In Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989), the Court upheld suspicionless testing of train operators for drug or alcohol impairment following serious train accidents. In Treasury Employees v. Von Raab, 489 U.S. 656 (1989), random, suspicionless drug testing of federal customs officers who carry arms or are involved in drug interdiction was found to be constitutional. Finally, in Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), the Supreme Court considered random, suspicionless drug testing in the context of participation in high school athletics.

The impetus behind the random drug testing program in Vernonia was an increase in drug use and drug related discipline. Student-athletes were a significant part of the problem, and there was expert testimony to the effect that drugs have a negative impact on all aspects of performance and are particularly dangerous in contact sports. The program was not geared towards discipline. The first positive test called for a second test to confirm the result. A student was then offered a choice between an educational program with weekly urinalysis, or being suspended for the remainder of the current season and the next one. There were progressive sanctions that impacted only upon athletic eligibility.

Relying in part on the notion of a school system's role as "guardian and tutor of children entrusted to its care," the Court upheld the Vernonia program (132 L.Ed. at 582). Indeed, the Court was of the opinion that a program utilizing "suspicion" as a touchstone would be impractical; in its view, "accusatory drug testing for all students . . . transforms the process into a badge of shame." Id. at 581. The Court did not view the character of the intrusion (males remained fully clothed and were observed from behind; females produced samples in an enclosed stall, with a female monitor standing outside) as being anything more than "negligible." Id. at 578.

The only public university case that squarely addresses the issue was decided two years prior to Vernonia. In University of Colorado v. Derdeyn, 863 P.2d 929 (1993), the Colorado Supreme Court invalidated, on state and federal constitutional grounds, the University of Colorado's random, suspicionless urinalysis/drug testing program. The progressive sanctions in the Colorado program, based on successive positive results, had some similarities to the University of Connecticut's program; further, there was no transmission of information about positive results to disciplinary or law enforcement authorities. In addition to coaches, athletic medical personnel and student health services employees, positive results were also provided to parents. The court held that the intrusion on the Fourth Amendment rights of the student-athletes outweighed the University's justifications, i.e. avoiding injuries, promoting fair competition and athletes as role models. Finally, and of most critical importance, the court held that waiver forms, the mechanism for student consent to the program, were an "unconstitutional condition," resulting in the denial of a governmental benefit. The court noted that no student who failed to sign a consent would receive an athletic scholarship.

There were two dissenting opinions. One, by the court's chief justice, took the position that the majority was correct on all issues except one, the "unconstitutional conditions" analysis. In his opinion, the majority had made it impossible for a voluntary consent to take place whenever a constitutional right is implicated. In his judgment, warrantless searches have always been authorized if a voluntary consent is obtained. See, Schneckloth v. Bustamonte, 412 U.S. 218 (1973). In the opinion of a second dissenting judge, the balancing of interests (Colorado's interest in protecting the health and safety of student-athletes versus the privacy expectations of the students) tipped in favor of the University. He cited a pre-Vernonia Seventh Circuit case, which upheld random drug testing at the high school level, Schaill v. Tippecanoe County School Corp., 864 F.2d 1309, 1320-1321 (7th Cir. 1988) ("Drug usage by this widely admired group [student-athletes] is likely to affect the behavior of others and school authorities are within their discretion in conducting a program specifically directed at athletes."). He reasoned as follows:

it is nearly impossible to ever establish reasonable suspicion of drug use among student-athletes . . . The important interests asserted by CU therefore would be placed in jeopardy, and CU's efforts to achieve those goals significantly hampered, if it were required to point to specific facts giving rise to a reasonable suspicion before testing a student athlete . . . These facts, combined with the diminished privacy interests implicated by the drug testing of intercollegiate student athletes, lead me to conclude that suspicion-less drug testing of student athletes in this limited context is a reasonable search.

863 P.2d at 929.

The efficacy of the Colorado case has been weakened by Vernonia.1 We are also persuaded, as were the Colorado dissenting justices, that conditioning a benefit upon a consent to a search (in this case, participation in intercollegiate athletics) is not a Fourth Amendment violation. The most analogous case is Wyman v. James, 400 U.S. 389 (1971). In Wyman, the Supreme Court held that public assistance benefits may be conditioned upon the recipient's consent to a home search. The court noted that:

the visitation in itself is not forced or compelled, and the beneficiary's denial of permission is not a criminal act. If consent to the visitation is withheld, no visitation takes place. The aid then never begins or merely ceases, as the case may be. There is no entry of the home and there is no search.

Id. at 317-318.

The court in Wyman was fully cognizant of the fact that the plaintiff in Wyman and her family were dependent upon public assistance for life's necessities. Yet, the court was not sympathetic to the plaintiff's claim and concluded that the Fourth Amendment was not a shield against the caseworker's visitation. Applied to a random drug testing program, we conclude that a student-athlete who declines to sign a consent form is in the same position as the public assistance beneficiary; he or she will not receive the benefit (participation in a public university's athletic program), but that does not create a constitutional issue. As the Court in Wyman concluded, "[T]he choice is entirely [theirs], and nothing of constitutional magnitude is involved." Id. at 324.

The consent form that will be part of the program creates a scenario analogous to the consent that was at issue in Wyman. Accordingly, the revised program in our opinion, passes constitutional muster.

In arriving at the foregoing conclusion, we have relied upon four factors:

First, the Director of Athletic Medicine and the Athletic Director have stated that drug use is, in their opinion, a significant problem in the student-athlete population. They have discussed several specific incidents and circumstances that support that opinion, and we have found their statements to be reasonable.

Second, the Director of Athletic Medicine has made an assessment that the probable cause program is not a credible deterrent to drug use, as set forth at page two of his proposal.

Third, we accept the opinion of the Director of Athletic Medicine that drug use in this population poses particular risks, based upon the effect of drugs on judgment, reaction time and level of aggression. Evidence of those risks was a significant part of the court's reasoning process in Vernonia.2

Fourth, we expect the details of a random drug testing program will contain significant safeguards against errors and minimize, to the extent possible, the intrusiveness inherent in testing urine samples. The existing protocols for dual specimens and the appeal process for a positive result, are well thought out. The manner in which the testing is performed should respect an individual's privacy without compromising the integrity of the test.

We trust that this is responsive to your inquiry.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Paul M. Shapiro
Assistant Attorney General

RB:PMS:1


Footnote:

1 We recognize that the Colorado Supreme Court, by a divided margin, recently held that Vernonia could not be extended to authorize random, suspicionless drug testing of secondary school students who participate in nonathletic extracurricular activities. Trinidad School District No. 1 v. Lopez, ___ P.2d _____ (June 29, 1998). In so ruling, the court declined to follow the Seventh Circuit's holding in Todd v. Rush County Schools, 133 F.3d 984 (7th Cir. 1998), cert. denied, 67 U.S.L.W. 3031 (1998). The court also chose not to reexamine its holding in Derdeyn, in light of Vernonia. This recent decision does not affect our conclusion, because a testing program for non-athletes is distinguishable.

2 There is a particular risk associated with athletic competition in the National Collegiate Athletic Association (NCAA). A student-athlete who tests positive for a banned substances will be declared ineligible for post-season competition and for one year thereafter until he or she tests negative. NCAA By-Law, 18.4.1.5. It is in the interest of the University of Connecticut to have a program in place that will increase the likelihood that its student-athletes will not be disqualified from post-season competition.


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