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Hugh and Lee Hageman, As Parents and Next Friends of C and Lh; Dewey v. the Goshen County School District No. 1; Ray Schulte

June 6, 2011

HUGH AND LEE HAGEMAN, AS PARENTS AND NEXT FRIENDS OF C AND LH; DEWEY AND DINELLE HAGEMAN, AS PARENTS AND NEXT FRIENDS OF T, M AND WH; ROBERT AND JOHANNA ABERNATHY, AS PARENTS AND NEXT FRIENDS OF TA; CHAD AND SANDY ARNETT, AS PARENTS AND NEXT FRIENDS OF K, T AND TA; GREG AND JOLENE BEBO, AS PARENTS AND NEXT FRIENDS OF N, J AND MB; MARK AND ROSE BEBO, AS GRANDPARENTS AND NEXT FRIENDS OF N, J AND MB; TODD AND ANNE BERRY, AS PARENTS AND NEXT FRIENDS OF L AND CB; RICHARD AND LUCINDA BREEDLOVE, AS PARENTS AND NEXT FRIENDS OF RWB; JERRY AND KIM BREMER, AS PARENTS AND NEXT FRIENDS OF CB; ERIC AND SHELLY DUNCAN, AS PARENTS AND NEXT FRIENDS OF J AND ID; DAN ELLIS, AS THE PARENT AND NEXT FRIEND OF ZE; CORY AND DAWN GILCHRIEST, AS PARENTS AND NEXT FRIENDS OF C AND SG; EDDIE AND TAMI GREENWALD, AS PARENTS AND NEXT FRIENDS OF K AND MG; SHAWN AND MARLISA HALL, AS PARENTS AND NEXT FRIENDS OF H AND JH; J.L. AND SHERRI HERBST, AS PARENTS AND NEXT FRIENDS OF BH; BYRON AND DONNA JUMA, AS PARENTS AND NEXT FRIENDS OF B, S, C AND TJ; SHANE AND CHERIE LIMMER, AS PARENTS AND NEXT FRIENDS OF C AND ML; JEFF AND KARI MCCLUN, AS PARENTS AND NEXT FRIENDS OF K, K AND KM; MARLA MCNEES, AS PARENT AND NEXT FRIEND OF PM; BRETT A. MEYER, AS PARENT AND NEXT FRIEND OF G, K, AND TM; PAUL AND CHRISTINE MILLER, AS PARENTS AND NEXT FRIEND OF P, S AND PM; JEFF MUELLER, AS PARENT AND NEXT FRIEND OF C AND TM; LOIS A. PAULES, AS GRANDMOTHER OF J AND DG; ALVIN AND RENNAE RUIZ, AS PARENTS AND NEXT FRIENDS OF LR; TIM AND MICHELE TOEDTER; ROCKY AND PAULA VAUGHN, AS PARENTS AND NEXT FRIENDS OF C AND MV; TERRY AND MARY VIKTORIN; SHANE VIKTORIN; DAVID AND SUSAN WALKER; AS PARENTS AND BEST FRIENDS OF T AND EW; RUSSELL AND JOANNE WALTER, AS PARENTS AND NEXT FRIENDS OF KW; MICHAEL AND GRETCHEN WOLLERT, AS PARENTS AND NEXT FRIENDS OF C, T G, AND GW, APPELLANTS (PLAINTIFFS),
v.
THE GOSHEN COUNTY SCHOOL DISTRICT NO. 1; RAY SCHULTE, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF GOSHEN COUNTY SCHOOL DISTRICT NO. 1; LINDA KESSLER, LINDA JOHNSON, CLARK HOUSE, BRENT KAUFMAN, JIM EDDINGTON, ED JOLOVICH, CHARLIE HARSHBERGER, AND ROB BRANHAM, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD OF TRUSTEES OF THE GOSHEN COUNTY SCHOOL DISTRICT NO. 1, APPELLEES (DEFENDANTS).



Appeal from the District Court of Goshen County The Honorable Wade E. Waldrip, Judge

The opinion of the court was delivered by: Burke, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT,*fn1 and BURKE, JJ.

[¶1] In an effort to address a perceived drug and alcohol problem among its students, Goshen County School District No. 1 adopted a policy requiring all students who participate in extracurricular activities to consent to random testing for alcohol and drugs. Appellants initiated litigation, claiming that the Policy is unconstitutional. The district court granted summary judgment in favor of the School District. Appellants challenge that decision in this appeal. We affirm.

ISSUES

[¶2] These issues were raised by the Appellants and adopted by the Appellees:

1. Whether the district court erred in refusing to declare that the District's "Mandatory Drug Testing for Students Involved in Extracurricular Activities" violates [the prohibition against unreasonable searches and seizures of] Article 1, § 4 of the Wyoming Constitution.

2. Whether the district court erred in refusing to declare that the District's Drug Testing Policy violates Article 1, §§ 2 and 3 of the Wyoming Constitution, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

3. Whether the district court erred in refusing to declare that the District's Drug Testing Policy violates Article 1, § 6 of the Wyoming Constitution, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

4. Whether the district court erred in refusing to enjoin the District from implementing the Drug Testing Policy.

5. Whether the district court erred in granting the District's Motion for Summary Judgment.

FACTS

[¶3] For the past several years, Goshen County School District No. 1 has participated in surveys of its students, known as the "Wyoming Youth Risk Surveys." According to the affidavit of the School District's Superintendent, the surveys revealed "a serious prevalence of alcohol and drug use among Goshen County School District No. 1 students.

Goshen County has ranged at or near the top for alcohol and drug use for several of those surveys." The School District participated in another statewide survey in 2008, the "Wyoming Prevention Needs Assessment State Profile Report." This survey indicated that:

[I]n 2008 26% of our sixth graders had used alcohol at some point, 10% had used cigarettes; and 6% inhalants, with 4% of the sixth graders having used inhalants within the past 30 days; 3% of our sixth graders reported binge drinking; 33% of Goshen County eighth graders were perceived to be at risk [of] harm [from] drug use; 41% of tenth grade students were perceived to be at risk [of] harm [from] drug use; 47% had friends who use drugs; . . . 44% were deemed to have favorable attitudes toward drug use; 52% of twelfth grade students were at risk [of] harm [from] drug use; 40% expressed an intent to use; 43% had friends who used drugs; . . . 50% were classified as at risk for early initiation of drug use.

Concern over the pervasiveness of drug and alcohol use among its students prompted the School District to hold a public forum on February 2, 2009, to discuss the possibility of requiring students to take random drug and alcohol tests. Following that forum, on April 14, 2009, the School District's Board of Trustees adopted a new policy requiring all students in grades 7 through 12 who participate in extracurricular activities to consent to random testing for drugs and alcohol. According to the School District's Superintendent:

The policy recognizes that many of the students participating in extracurricular activities are viewed as role models to other students and that it is important that they avoid drug and alcohol use in their position as role models. It is also the position of the Board that to achieve the goal of reducing risks of alcohol and drug abuse and to maximize the skills and talents participating in extracurricular activities, it is important that participants refrain from drug and alcohol use. It is the belief of our school district that this policy will assist in that endeavor.

Testing is done chiefly through urinalysis, although testing may also be done with saliva or breath samples.

[¶4] Appellants, referred to collectively as the Coalition, are a group of students and their parents or guardians*fn2 who filed a declaratory judgment action in district court seeking to have the School District's Policy declared unconstitutional. After briefing and argument, the district court concluded that the drug testing program did not violate either the Wyoming Constitution or the United States Constitution. It granted summary judgment in favor of the School District, and the Coalition appealed.

STANDARD OF REVIEW

[¶5] We review a district court's decision granting summary judgment using this standard of review:

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c); Metz Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9, 39 P.3d 1051, 1055 (Wyo. 2002). "A genuine issue of material fact exists when a disputed fact, if it were proven, would establish or refute an essential element of a cause of action or a defense that the parties have asserted." Id. Because summary judgment involves a purely legal determination, we undertake de novo review of a trial court's summary judgment decision. Glenn v. Union Pacific R.R. Co., 2008 WY 16, ¶ 6, 176 P.3d 640, 642 (Wyo. 2008).

Jacobs Ranch Coal Co. v. Thunder Basin Coal Co., LLC, 2008 WY 101, ¶ 8, 191 P.3d 125, 128-29 (Wyo. 2008). In the case before us now, the Coalition and the School District agree that there are no genuine issues of material fact. They disagree, however, about whether the district court correctly applied the provisions of the Wyoming and United States Constitutions to the undisputed facts. "Issues arising under the constitution are questions of law which we review de novo." Bush v. State, 2008 WY 108, ¶ 48, 193 P.3d 203, 214 (Wyo. 2008); Wilkening v. State, 2007 WY 187, ¶ 6, 172 P.3d 385, 386 (Wyo. 2007).

DISCUSSION

Search and Seizure

[¶6] The Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming Constitution prohibit unreasonable searches and seizures. See Pena v. State, 2004 WY 115, ¶ 29, 98 P.3d 857, 870 (Wyo. 2004). The parties agree, as do we, that the drug tests mandated by the Policy are searches for purposes of constitutional analysis. See ALJ v. State, 836 P.2d 307, 311 (Wyo. 1992) ("[T]he testing of urine is a search."); Doles v. State, 994 P.2d 315, 318 (Wyo. 1999) ("Obtaining a blood or saliva sample is a search and seizure implicating Fourth Amendment privacy rights."). Generally, the Coalition contends that the searches at issue here are unreasonable, and therefore unconstitutional.

[¶7] The Coalition concedes that the Policy does not violate the Fourth Amendment to the United States Constitution. It contends, however, that Article 1, § 4 of the Wyoming Constitution provides greater protections, under the facts of this case, than those afforded by the Fourth Amendment. In support of this contention, the Coalition relies heavily on Vasquez v. State, 990 P.2d 476 (Wyo. 1999) and O'Boyle v. State, 2005 WY 83, 117 P.3d 401 (Wyo. 2005). In Vasquez, we considered the United States Supreme Court's decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which established a rule "that when a police officer has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Vasquez, 990 P.2d at 480. Applying Belton, we concluded that the search of Mr. Vasquez's vehicle satisfied the Fourth Amendment to the United States Constitution. That did not end our analysis, however, because we also recognized that Article 1, § 4 of the Wyoming Constitution provided a separate and independent source of state constitutional rights. Id. at 486. We rejected the bright-line rule of Belton, and instead held that the Wyoming Constitution "requires a search be reasonable under all of the circumstances." Id. at 489. "Is this result a narrower application than Belton?" we asked. "We think so." Id.*fn3

[¶8] In O'Boyle, we observed that, "[i]n the specific context presented in Vasquez, i.e. a vehicle search incident to an arrest, we said Wyoming's search and seizure provision provided greater protection than the federal provision" because the Wyoming Constitution "requires that searches and seizures be reasonable under all the circumstances." Id., ¶¶ 30-31, 117 P.3d at 410. We then extended the same "reasonable under all the circumstances" analysis to a traffic stop and detention, and concluded that Mr. O'Boyle's lengthy detention and "extensive questioning" were unreasonable under the circumstances, and therefore contrary to Article 1, § 4 of the Wyoming Constitution. Id., ¶ 32, 117 P.3d at 410-11.

[¶9] Both Vasquez and O'Boyle dealt with searches by police in the criminal law context. We have never before considered what limitations the Wyoming Constitution may place, in the context of an administrative search, on a school's testing of students for alcohol and drugs. This "is a matter of first impression in Wyoming, so we therefore look to other jurisdictions for guidance." Hofstad v. Christie, 2010 WY 134, ¶ 10, 240 P.3d 816, 819 (Wyo. 2010); Taylor v. Schukei Family Trust, 996 P.2d 13, 18 (Wyo. 2000); Edwards v. Fogarty, 962 P.2d 879, 882 (Wyo. 1998).

[¶10] In Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), the United States Supreme Court rejected a Fourth Amendment challenge to a school district policy requiring drug testing for high school athletes. The Court declared that "the ultimate measure of the constitutionality of a governmental search is 'reasonableness.'" Id. at 652, 115 S.Ct. at 2390. To determine the reasonableness of these random, suspicionless searches, the Court applied a balancing test, weighing three factors: the nature of the privacy interest at issue, id. at 654, 115 S.Ct. at 2391; the character of the intrusion, id. at 658, 115 S.Ct. at 2393; and the nature of the governmental concern and the efficacy of the policy in addressing that concern. Id. at 660, 115 S.Ct. at 2394. The Court concluded that public school students have a lower expectation of privacy than citizens in general, and that the expectation of privacy is even lower for student athletes. It found the search relatively unobtrusive. It determined that the school had a legitimate interest in deterring drug use, and noted that the school had presented evidence of a serious drug problem in the school, particularly among the student athletes. The drug testing program was considered an efficacious way to address the problem because it was aimed directly at the student athletes who were a major part of the problem.

[¶11] Seven years later, the Court decided Board of Education of Independent School Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002), again applying the basic standard of "reasonableness." This drug testing policy was not targeted at a specific group of problematical students with documented drug problems. Rather, like the Policy before us now, it subjected all students involved in extracurricular activities to random, suspicionless testing for drugs. The Court stated that all participants in extracurricular activities had a diminished expectation of privacy, and that the intrusion on that privacy was not significant. The Court concluded that the school's interest in deterring drug use prevailed over the insignificant intrusion on privacy, and thus rejected the constitutional challenge to the drug testing policy.

[¶12] In addition to Vernonia and Earls, we have reviewed decisions from several state courts. The majority of such cases have applied some version of the reasonableness test, and concluded that random, suspicionless drug testing of students involved in extracurricular activities did not violate the provisions of their respective state constitutions. In Joye v. Hunterdon Central Regional High School Board of Education, 176 N.J. 568, 618-19, 826 A.2d 624, 655 (2003), the New Jersey Supreme Court gave detailed consideration to both federal and New Jersey precedent, and concluded that "there is room in our State's constitution for school officials to attempt to rid Hunterdon Central of illegal drugs and alcohol in the manner sought here." In Linke v. Northwestern School Corp., 763 N.E.2d 972, 985 (Ind. 2002), the Indiana Supreme Court ruled that its state constitution "does not forbid schools from taking reasonable measures to deter drug abuse on their campuses but they must do so with due regard for the rights of students." It held that a drug testing policy similar to the one before us now did not violate the rights of the students. See also Marble Falls Independent School Dist. v. Shell, 2003 Tex. App. LEXIS 2845 (2003); Weber v. Oakridge School Dist. 76, 184 Ore. App. 415, 56 P.3d 504 (2002) (drug testing for student athletes); State v. Jones, 666 N.W.2d 142 (Iowa 2003) (random, suspicionless searches of student lockers).

[¶13] The Coalition cites York v. Wahkiakum School Dist. No. 200, 163 Wn.2d 297, 316, 178 P.3d 995, 1006 (2008), in which the Washington Supreme Court concluded that random, suspicionless testing of student athletes violated their rights under Article I, § 7 of the Washington Constitution. Article I, § 7 of the Washington Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Id. at 299 n.1, 178 P.3d at 997 n.1. The Washington Supreme Court acknowledged that this language differs markedly from the Fourth Amendment to the United States Constitution, which 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.

The court noted that, under the Fourth Amendment to the United States Constitution, "the ultimate measure of the constitutionality of a governmental search is 'reasonableness,'" id. at 305-06, 178 P.3d at 1001, citing Vernonia, 515 U.S. at 652, 115 S.Ct. at 2390. In contrast, analysis under the Washington Constitution "hinges on whether a search has 'authority of law' -- in other words, a warrant." York, 163 Wn.2d at 306, 178 P.3d at 1001. The Washington Supreme Court declined to follow the United States Supreme Court's analysis as reflected in Earls, and instead decided that, under "our ...


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