In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2261

TIANNA JOY, STEVEN WARD, MARCI STEPHENS, et al.,

Plaintiffs-Appellants,

v.

PENN-HARRIS-MADISON SCHOOL CORPORATION,
DOCTOR VICKIE MARKAVITCH, LARRY BEEHLER, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 98 C 604--Allen Sharp, Judge.


Argued November 12, 1999--Decided May 12, 2000



    Before FLAUM, RIPPLE and ROVNER, Circuit Judges.

  RIPPLE, Circuit Judge. Students at Penn High
School/1 brought this suit against the Penn-
Harris-Madison School Corporation ("PHM" or "the
School") for violating their Fourth Amendment
rights against unreasonable searches and
seizures. This claim arises from PHM’s policy
that allows for random, suspicionless drug
testing of students involved in extracurricular
activities and of students driving to school. The
district court granted summary judgment for the
School on both issues based on this circuit’s
precedent of Todd v. Rush County Schools, 133
F.3d 984 (7th Cir.), cert. denied, 525 U.S. 824
(1998), in which the court allowed suspicionless
drug testing of students participating in
extracurricular activities. The plaintiffs
appealed.

I

BACKGROUND

A.  Facts
  In 1998, PHM instituted a drug testing policy
for its students. The policy, School Board Policy
360: Student Testing for Drugs, Alcohol and
Tobacco, explains its purpose as follows:

The use of tobacco, alcohol and illegal drugs
presents a threat to the safety, health and
welfare of both our employees and our students.
Because of the risks associated with such abuse,
the board is implementing a student testing
program for drugs, alcohol and tobacco.

R.21, Ex.1 at 1. The policy focuses on five
groups of students for drug testing and defines
the groups as follows:

1. All students that participate in
extracurricular activities. Activities will
include all athletic teams, music groups,
academic competitions, clubs and organizations. A
full listing of activities will be provided.
These students will be part of a pool of students
that will be randomly selected for testing.

2. All students who drive to school. These
students will also be part of the random pool.

3. All students and staff who volunteer to be
part of the random pool.

4. All students who are suspended from school
for three consecutive days for student misconduct
or substantial disobedience. These students must
submit to a drug test before being allowed to
return to school.

5. All students for which there is a reasonable
suspicion of being under the influence of drugs
or alcohol must submit to a mandatory test.

Id. Members of the first two groups are the
Plaintiffs-Appellants in this case./2

  In its policy, the School states that
extracurricular activities are a privilege, not a
right. Also, the School explains, students
participating in those activities assume greater
responsibility and make certain sacrifices. These
students, the policy states, are required to
submit to random testing for drugs, alcohol, and
tobacco.

  All students in extracurricular activities must
attend at least one drug education session before
beginning the activity, and all students in
extracurricular activities will receive a copy of
the policy. Also, each participant shall sign and
return a consent form that allows the School to
conduct the drug testing. The consent form must
be signed by the student and by a parent or
guardian and must be returned to the School prior
to the student’s participation in the
extracurricular activity. Failure to return the
consent form results in nonparticipation in the
activity.
  Next, PHM’s policy discusses student drivers. To
receive a permit to park on school grounds, a
student must pay $15.00 and provide proof of a
valid driver’s license. The policy explains that
these students and their passengers are at a
substantial risk for injury when operating
vehicles under the influence of intoxicants.
Also, according to the policy, "Studies indicate
that young drivers have a greater risk of being
involved in vehicular accidents caused by
consumption of intoxicants." R.21, Ex.1 at 2. PHM
partly based its determination to test student
drivers on a newspaper article detailing a
serious car accident involving two Penn High
School students who had been drinking. The other
basis for its policy for student drivers was
several articles about high school students under
the influence of alcohol who were involved in car
accidents. Based on this data and the important
policy interest of protecting student drivers and
their passengers, PHM requires that students
driving to and from school and other activities
sponsored by PHM "must submit to the same random
urinalysis as participants in athletics or
extracurricular activities." Id. at 2-3. That
means that students driving to school are subject
to random testing for the presence of drugs,
alcohol, and tobacco. Student drivers also must
sign the consent form before receiving a parking
permit, and, presumably, a student who does not
return the consent form will not receive a
parking permit./3

  Students who refuse to take the drug test are
deemed to have admitted they are under the
influence of drugs or alcohol, which is a
violation of school rules. The student "will be
dealt with according to the student discipline
policy or student extra-curricular code of
conduct." R.21, Ex.1 at 5. Similarly, a positive
test result will validate usage, and the
consequences of validated usage "will coincide
with the consequences outlined in the student
handbook and school policy." R.21, Ex.1 at 5.
What consequence applies is ambiguous. The
section in the student handbook entitled "Policy
on Alcohol and Other Drugs" discusses protecting
students and prohibiting drug use. A student
under the influence of alcohol or other drugs on
school grounds or at school sponsored activities
will be disciplined, and the discipline could
result in suspension or expulsion./4 Use or
possession of tobacco products is not permitted
on school grounds and discovery of these will
result in suspension from school./5

  Another section, the section pertaining to
student athletics and activities, also discusses
the use or possession of drugs and alcohol. For
drug or alcohol use, the first in-season offense
will result in expulsion from the team or
activity. The first out-of-season offense will
result in a meeting that reviews the penalty and
the guideline for future participation in the
activity. A second violation, in-season or out-
of-season, will result in expulsion from
participation in all athletics and activities for
one school calender year. For the use of tobacco,
in any form, the first in-season offense will
result in probation for one school calender year
for all athletics or activities in which the
student might participate. Also, the student will
be subject to any penalties given by the office
of student affairs. The second in-season offense
will result in expulsion from the team for the
remainder of the season.

  The section governing student drivers only
states that "Abuse of a student’s driving
privileges will result in the forfeiture of the
parking permit and may result in further school
discipline." R.29, Ex.C at 3. The consequences
for a student driver over 18 whose test results
reveal the presence of nicotine are not
mentioned.

  David Wade Risner, Director of Pupil Personnel
at PHM, developed and implemented the drug
testing policy. In his deposition, he averred
that students participating in extracurricular
activities and student drivers, if receiving a
positive test result, may be subject to exclusion
from any extracurricular activities and/or to
revocation of parking privileges. However, he
claims that they will not be subject to
suspension, expulsion, or any discipline in
connection with the academic school day for
receiving a positive test result. See R.37 at 2.

  The policy also discusses the testing procedure.
Students are selected on a random basis without
advance notice. First, they fill out paperwork
and list any over-the-counter or prescription
medications that they are taking. Next, they
remove all outer garments and leave all bags and
purses outside the collection facility. Then they
are asked to wash their hands with water only,
and the collector checks the stall visually for
anything unusual, flushes the toilet, and treats
the water with dye. While the student is
producing the sample, the collector remains
outside the facility and notes any unusual
circumstance, behavior, or appearance of the
student or of the specimen. Also, the collector
checks the specimen for signs of contamination
and notes the temperature of the bottle. Both the
student and the collector sign the chain-of-
custody form.

  The test checks for the presence of alcohol,
nicotine, and any drug listed as a controlled
substance. The results will be provided to the
designated school official who always shares the
results with the student’s parents. For the first
and second positive test, the result is shared
with the parents and an attempt is made to
provide evaluation and/or treatment. For the
third positive test, the parents are required to
pay for the test. Again, the results are shared
with the parents and the school, and an attempt
is made to provide evaluation and/or treatment.

  As to confidentiality, the policy states that
the results will always be shared with the
student and a parent or guardian. Thereafter,
information regarding the positive test result
will be shared on a "need to know" basis with
school staff. Under the program, any staff
member, employee, coach, or sponsor of PHM with
knowledge of a student’s positive test result
shall not reveal the information to anyone other
than the student or the parents unless under
order of a court.

B.   District Court Opinion

  As mentioned above, several PHM students filed
suit against the School. In their suit, they
alleged that the School’s suspicionless drug
testing of students involved in extracurricular
activities and of student drivers violated their
Fourth Amendment rights against unreasonable
searches and seizures.

  In response to the School’s motion for summary
judgment, the district court followed this
circuit’s opinion in Todd v. Rush County Schools,
133 F.3d 984 (7th Cir.), cert. denied, 525 U.S.
824 (1998), which allows random drug testing for
students participating in extracurricular
activities, and upheld the extracurricular
activities prong of PHM’s policy.

  For the students who possessed parking passes
and who were subject to the random drug testing,
the district court stated that, except for those
students close enough to school to walk and "a
limited category of students otherwise," PHM
provides public transportation. Therefore,
students do not have a compulsion to drive
themselves to school. The court explained that
students sign a consent form in exchange for the
privilege of parking on school premises and that
the safety issues evolving from students driving
to and from school while under the influence of
illegal substances justifies the testing./6

II

DISCUSSION
A.   Background

1.

  The Fourth Amendment to the Constitution
protects individuals from unreasonable searches
and seizures by the government./7 The Supreme
Court has held that the Fourth Amendment protects
students from unreasonable searches and seizures
by school officials. See New Jersey v. T.L.O.,
469 U.S. 325, 341-42 (1985). The Court also has
held that random drug testing through urinalysis
constitutes a search and seizure within the
meaning of the Fourth Amendment. See Skinner v.
Railway Labor Executives’ Ass’n, 489 U.S. 602,
617-18 (1989); see also Chandler v. Miller, 520
U.S. 305, 313 (1997); Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646, 652 (1995); National
Treasury Employees Union v. Von Raab, 489 U.S.
656, 665 (1989); Willis v. Anderson Community
Sch. Corp., 158 F.3d 415, 417 (7th Cir. 1998),
cert. denied, 526 U.S. 1019 (1999).

  Under the Fourth Amendment, a search usually is
not reasonable unless the government obtains a
warrant issued upon probable cause; there are,
however, certain limited exceptions. See Skinner,
489 U.S. at 619. To be a reasonable search
without a warrant and probable cause, the
government must show a "special need," beyond the
normal need for law enforcement, that makes the
warrant and probable cause requirement
impracticable. See id. The Supreme Court in
Skinner explained that, when such a special need
exists, courts should "balance the governmental
and privacy interests to assess the practicality
of the warrant and probable-cause requirements in
the particular context." Id.

2.

  The Supreme Court has "found such ’special
needs’ to exist in the public school context,"
because "the warrant requirement ’would unduly
interfere with the maintenance of the swift and
informal disciplinary procedures [that are]
needed,’ and ’strict adherence to the requirement
that searches be based on probable cause’ would
undercut ’the substantial need of teachers and
administrators for freedom to maintain order in
the schools.’" Vernonia, 515 U.S. at 653 (quoting
T.L.O., 469 U.S. at 340, 341). This finding of a
"special need" in T.L.O. meant that school
officials could justify a search of a student
upon reasonable and individualized suspicion
"that the search [would] turn up evidence that
the student has violated or is violating either
the law or the rules of the school." T.L.O., 469
U.S. at 342. In Vernonia, the Court found a
special need in preventing student athletes from
using drugs and upheld the legitimacy of
suspicionless drug testing of the athletes. The
Court previously had upheld suspicionless
searches and seizures, by drug testing, of
railroad employees involved in train accidents,
see Skinner, 489 U.S. at 634, and of federal
customs officers who carry arms or who are
involved in drug interdiction, see Von Raab, 489
U.S. at 677.

  When the Court allows suspicionless drug testing
based upon a special need, the Court engages in a
balancing test between the "intrusion on the
individual’s Fourth Amendment interests" and the
search’s "promotion of legitimate governmental
interests." Vernonia, 515 U.S. at 653 (quoting
Skinner, 489 U.S. at 619). The factors to
consider are: (1) the nature of the privacy
interest upon which the search intrudes, see
Vernonia, 515 U.S. at 654; (2) the character of
the intrusion on the individual’s privacy
interest, see id. at 658; (3) the nature of the
governmental concern at issue, see id. at 661;
(4) the immediacy of the government’s concern,
see id. at 662; and (5) the efficacy of the
particular means in addressing the problem, see
id. at 663.

  In Vernonia, the Court upheld random,
suspicionless drug-testing of student athletes.
The school had presented evidence of a sharp
increase in drug use at the school, which
resulted in an increase in disciplinary problems,
and the district court had found that the
athletes were the leaders of the drug culture.
See id. at 648-49. The drug testing policy
instituted by the school required all students
wishing to participate in interscholastic sports
to sign a consent form permitting random,
suspicionless drug testing. Students’ names were
chosen at random to undergo the test, and, during
the test, a monitor stayed in the restroom to
listen for signs of tampering as the student
produced the sample. See id. at 650. A student
wishing to play on the football team refused to
sign the consent form and filed suit against the
school for equitable relief. See id. at 651.

  The Court considered first the nature of the
students’ privacy interest. In doing so, it paid
particular attention to the facts in the record
relating to the specific students being tested.
Minors, the Court explained, are subject to the
control of their parents or guardians, and, when
they attend school, they are temporarily in the
custody of the school. See id. at 654-55.
Furthermore, the Court stated, students routinely
are required to undergo physical examinations and
vaccinations. See id. at 656-57. The Court
concluded that these facts show that students
generally enjoy a lesser expectation of privacy
than the public at-large. In the context of
student athletes, the Court explained, the
expectation of privacy is even less. Athletes
undergo a state of communal undress when, daily,
they change in a common locker room and shower in
a community shower. See id. at 657. The athletes
voluntarily subject themselves to regulation by
signing up for the sport. They must submit to a
preseason physical examination, obtain insurance
coverage, sign an insurance waiver, maintain a
minimum grade point average, and comply with
rules on dress, training hours, and conduct. See
id. Therefore, the Court held that "students who
voluntarily participate in school athletics have
reason to expect intrusions upon normal rights
and privileges, including privacy." Id.

  Next, the Court discussed the character of the
intrusion. It focused on the manner in which the
production of the urine sample is monitored. See
id. at 658. Because having a monitor present to
listen for sounds of tampering presented
conditions nearly identical to conditions
encountered in public restrooms, the Court found
the intrusion to be negligible. The Court also
noted that the information disclosed by the drug
test about what the student had ingested or about
the student’s physical conditions was not
disclosed to law enforcement personnel and was
provided to only a limited number of school
personnel. The limited dissemination, in turn,
limited significantly the intrusion on the
student’s privacy interest. See id. Finally, the
Court determined, the revelation of any
medications the student was taking was not per se
unreasonable nor was it a significant invasion of
privacy. See id. at 659.

  The Court then focused on "the nature and
immediacy of the governmental concern at issue"
and "the efficacy of this means for meeting it."
Id. at 660. The Court determined first that the
nature of the concern, deterring drug use by
schoolchildren, was obviously important,
especially given that "[s]chool years are the
time when the physical, psychological, and
addictive effects of drugs are most severe." Id.
at 661. Also, the Court stated that drug use by
students affects the whole student body because
it disrupts the educational process. Finally, the
Court explained that athletes are particularly
subject to risk from drug use because of the
physical harm to the individual or to his peers
that may result from the use of drugs. See id. at
662. As the Court concluded: "Finally, it must
not be lost sight of that this program is
directed more narrowly to drug use by school
athletes, where the risk of immediate physical
harm to the drug user or those with whom he is
playing his sport is particularly high." Id.
(emphasis supplied). The Court detailed the
psychological effects of drug use, including
impairment of judgment, slower reaction time, and
a lessening of the perception of pain, and the
physical risks of drugs to athletes, such as
increased heart rate, higher blood pressure, and
a masking of normal fatigue. See id. These
effects of drug use on student athletes created a
significant governmental interest in deterring
drug use by student athletes. Next, the Court
determined that the immediacy of the school’s
concerns in that case was unquestionable given
the finding by the district court that the
student body was in a state of rebellion, fueled
by alcohol and drug use, and that the school’s
athletes were the leaders of the drug culture.
See id. at 662-63.

  Finally, in discussing the efficacy of the
means, the Court held that employing random drug
testing to address the problem of rampant drug
use by athletes ensured that the athletes did not
use drugs. See id. Therefore, after weighing the
individuals’ Fourth Amendment interests against
the governmental concern, the Court upheld the
random, suspicionless drug testing of student
athletes by the school. See id. at 665.

  The other recent Supreme Court case to address
suspicionless drug testing is Chandler v. Miller,
520 U.S. 305 (1997). In Chandler, the government
attempted to require drug testing for all
candidates for public office. The Court
acknowledged that the character of the search was
not intrusive, and, thus, if the government could
show a special need for drug testing these
individuals then the search was reasonable. See
id. at 318. The Court examined first the
immediacy of the governmental concern and noted
that there was no demonstrated problem of drug
abuse by the targeted group. See id. at 318-19.
Although proof of a drug problem was not
determinative, the Court explained that it would
help clarify and substantiate the hazards of drug
use in the particular context. See id. at 319.
The Court distinguished the drug testing in
Chandler from the allowance of suspicionless drug
testing in Von Raab, which had allowed
suspicionless drug testing of customs agents,
even though there was no evidence of a
demonstrated drug problem, because of the
difficulty in subjecting the employees in Von
Raab to day-to-day scrutiny. The Court stated
that, in contrast to the customs agents,
candidates for public office were subject to
relentless scrutiny by their peers, the public,
and the press. See id. at 321. Next, the Court
discussed the efficacy of the means chosen and
stated that requiring a candidate to schedule his
own appointment for a drug screen did not
identify well who was violating the anti-drug
laws nor did it perform credibly as a deterrent.
See id. at 319. Finally, the Court explained that
candidates for public office were not required to
engage in high-risk, safety-sensitive tasks that
would justify suspicionless drug testing, i.e.,
no special need existed. See id. at 321-22. The
Court concluded by stating:

[W]here the risk to public safety is substantial
and real, blanket suspicionless searches
calibrated to the risk may rank as "reasonable"--
for example, searches now routine at airports and
at entrances to courts and other official
buildings. But where, as in this case, public
safety is not genuinely in jeopardy, the Fourth
Amendment precludes the suspicionless search, no
matter how conveniently arranged.

Id. at 323 (citation omitted).

3.

  The question whether random drug testing of high
school students involved in extracurricular
activities is an unreasonable search and seizure
under the Fourth Amendment was presented to this
court in Todd v. Rush County Schools, 133 F.3d
984 (7th Cir.), cert. denied, 525 U.S. 824
(1998)./8 In Todd, the school presented evidence
that cigarette and alcohol use was higher than
the state average, although marijuana use was
lower. Also, witnesses testified that drug use at
the high school had been increasing and had
caused a drowning of one student and a car crash
involving other students. See id. at 985. The
school’s drug testing policy required all
students desiring to participate in
extracurricular activities or planning to obtain
a parking permit to consent to random drug,
alcohol, and tobacco testing. See id. at 984.
Also, a student could be tested if school
officials had a reasonable suspicion that the
student was using drugs, alcohol, or tobacco. See
id. at 985.

  Without employing the methodology presented by
the Supreme Court in Vernonia, the court in Todd
stated that the reasons compelling random drug
testing for student athletes applied to students
participating in extracurricular activities
because "[c]ertainly successful extracurricular
activities require healthy students." Id. at 986.
Also, the court stressed that, similar to
athletics, extracurricular activities are a
privilege and that students must voluntarily
choose to participate. See id. Because students
in extracurricular activities, like athletes, can
assume leadership roles, the court determined
that it was not unreasonable to subject those
students to drug testing in exchange for enhanced
prestige and status in the student community. See
id. Finally, the court stated that the crux of
the program was to protect the health of the
students involved and to deter drug use.
Therefore, the court concluded that the drug
testing program was reasonable under the Fourth
Amendment. See id. at 986-87.

  This circuit, in Willis v. Anderson Community
School Corp., 158 F.3d 415 (7th Cir. 1998), cert.
denied, 526 U.S. 1019 (1999), clarified its
holding in Todd. In Willis, the school
implemented its policy because of growing
disciplinary problems and because of the
perception that drug and alcohol use had
increased. See id. at 417. Before making its
decision, the school district had reviewed the
policies of other Indiana school districts, the
results of tests administered pursuant to those
policies, and literature discussing the
connection between drug use and disruptive
behavior. See id. Thereafter, the school
instituted a drug testing policy that required
drug testing for, among others, any student who
was suspended from school for 3 or more days for
fighting. See id. The student who brought the
suit had been suspended for fighting but had
refused to consent to the drug test. See id.

  The court in Willis examined first whether the
school had reasonable suspicion to believe that
Willis was using drugs. The school’s principal
admitted that he had observed Willis immediately
after the incident and that, at that time, he did
not have reasonable suspicion to believe that
Willis was under the influence of drugs or
alcohol. The school claimed, however, that the
fight itself constituted reasonable suspicion
that Willis was using drugs. The court rejected
this argument by stating that such a blanket rule
would belie the concept of individualized
suspicion, which requires a case-by-case
determination. See id. at 418.

  Next, the court asked whether the school had
demonstrated a special need for suspicionless
drug testing of students suspended for more than
3 days for fighting. See id. at 420. The court
acknowledged the school’s concerns justifying the
search: deterring drug use, disciplining its
students, and protecting the health of children.
However, the court concentrated on whether a
suspicion-based search was practical and stated
that "it may be that when a suspicion-based
search is workable, the needs of the government
will never be strong enough to outweigh the
privacy interests of the individual." Id. at 421.
  The court found that the nature of the privacy
interest of students suspended for fighting was
similar to that of the student athletes in
Vernonia because school children enjoy a lesser
expectation of privacy than the general public.
See id. However, the privacy interest differed in
significant respects. First, there was no aspect
of communal undress as in Vernonia, and, second,
the students did not voluntarily choose to
participate in the activity as in Vernonia and
Todd. See id. at 422.

  Next, the court considered the nature and
immediacy of the drug problem. The court refused
to allow mere deterrence to justify suspicionless
drug testing because that would "sanction[ ]
blanket testing of all children in public
schools." Id. The court explained that the
Supreme Court had had the opportunity to allow
for suspicionless drug testing for all students
in Vernonia but had refused to do so. See id. The
court cautioned against dividing students into
broad categories and drug testing on a category-
by-category basis because then "all but the most
withdrawn and uninvolved students [would] fall
within a category that is subject to testing."
Id. at 423. Although deterrence did not suffice,
the court held that the nature and immediacy of
the school’s concern was sufficiently similar to
the schools’ concerns in Vernonia and Todd. The
nature of the concern was narrowly targeted at
the group of students the school perceived to be
at risk for drug use, and the immediacy of the
concern, although not as high as in Vernonia, was
to reduce the perceived increase in drug use at
the school. Therefore, the court found that the
nature and immediacy of the school’s concern was
not meaningfully less than in Vernonia. See id.

  Finally, the court turned to the efficacy of the
policy in question. The court recognized that, in
Vernonia, drug testing based on individualized
suspicion presented substantial difficulties;
however, no evidence of similar difficulties had
been presented in Willis. Given that every
student must meet with the principal prior to
suspension, the court determined that requiring
the school to find individualized suspicion of
drug use before testing the student for drugs was
both feasible and practical. See id. at 423-24.
Therefore, based on the lack of efficacy of the
means for addressing the problem and on the
nature of the privacy interest involved, the
court determined that the governmental concern
did not outweigh the individuals’ Fourth
Amendment interests and, thus, that suspicionless
drug testing of students suspended for more than
3 days for fighting was unreasonable under the
Fourth Amendment. See id. at 424.
B.   Application

  To justify its policy, PHM relies properly on
this court’s decision in Todd. We do not believe
that the result in Todd is compelled by the
Supreme Court’s decision in Vernonia. Therefore,
as we explain below, if we were reviewing this
case based solely on Vernonia and Chandler, we
would not sustain the random drug, alcohol, and
nicotine testing of students seeking to
participate in extracurricular activities./9
Nevertheless, we believe that the doctrines of
stare decisis and precedent require our adherence
to Todd, and we affirm the judgment under review
on that basis. Also, on the basis of Vernonia and
Chandler, we uphold the drug and alcohol testing-
-but not the nicotine testing--of students
desiring to drive to school.

1.   Nature of the privacy interest

  Public high school students have a lesser
expectation of privacy than the general public.
However, students do not shed their
constitutional rights at the schoolhouse door.
See Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503, 506 (1969). Similar to the
students in Vernonia, PHM students are in the
temporary custody of the School. Also, students
in general are subject to routine physical
examinations and vaccinations. However, unlike
the athletes in Vernonia, PHM students who
participate in extracurricular activities or who
drive to school do not subject themselves to more
explicit and routine loss of bodily privacy as a
necessary component of their participating in the
activities in question.

  Indeed, unlike the student athletes in Vernonia,
these students otherwise do not subject
themselves, by virtue of their participation in
these activities, to regulations that further
reduce their expectation of privacy. For example,
as the Supreme Court noted in Vernonia, the
athletes in that case were required to submit to
a physical examination before the beginning of
the season. Also, the athletes needed to obtain
insurance coverage and they agreed to abide by
rules on conduct, dress, and training hours.
Finally, they also expected a degree of "communal
undress" not experienced by other public school
students. See Vernonia, 515 U.S. at 657. Although
PHM students in extracurricular activities, other
than athletics, also volunteer to join a
particular group and to subject themselves to the
rules of that organization, those rules do not
require the same surrender of physical privacy as
required of the student athletes in Vernonia. In
the case of students driving to school, the
contrast is even more stark. Overall, the
expectation of privacy for students in
extracurricular activities or with parking
permits, although less than the general public,
is still greater than the expectation of privacy
for athletes.

2.   Character of the intrusion

  The Supreme Court in Vernonia held that the
presence of a monitor in the bathroom who
listened for signs of tampering was a comparable
condition to the experience of a public restroom.
Therefore, the Court held that the intrusion was
negligible. See Vernonia, 515 U.S. at 658. As to
the information disclosed by the test, the Court
stated that the test only looked for drugs and
not for physical conditions and that the test was
standard: it checked for the same substances for
all students. See id. Finally, the Court
explained that the results were disclosed to only
a limited number of school personnel who had a
need to know and were not provided to law
enforcement officials or used for any internal
disciplinary function. See id. at 658-59. The
combination of these factors, according to the
Court, made the character of the intrusion
minimal. See id. at 660.

  The conditions at PHM parallel those in
Vernonia; therefore, we conclude that the
character of the intrusion is not overly
invasive.

3.   Nature of the governmental concern

  According to the Supreme Court’s methodology in
Vernonia, we should assess the government’s
interest from two perspectives--whether there is
any correlation between the defined population
and the abuse, and whether there is any
correlation between the abuse and the
government’s interest in protecting life and
property.

  We turn first to whether there is any
correlation between the defined student
population and the abuse. Here, however, the
School has not proven, or even attempted to
prove, that a correlation exists between drug use
and those who engage in extracurricular
activities or drug use and those who drive to
school. Indeed, at oral argument, counsel for PHM
admitted that there is no correlation between
students involved in extracurricular activities
and drug abuse. Counsel also stated that student
drivers do not differ from the general school
population based on its statistical abstract.
Finally, counsel conceded that the lack of such
relationship distinguished this case from the
facts in Vernonia in which the evidence
demonstrated that the athletes were the leaders
of the drug culture. Thus, counsel for PHM is
admitting that, at least in this respect, the
district is attempting to do what this court in
Willis admonished against: dividing the students
into broad categories and drug testing on a
category-by-category basis, which allows for drug
testing for all but the most uninvolved and
isolated students. See Willis, 158 F.3d at 423.
In fact, at oral argument, counsel announced that
the goal is to test all students on a random,
suspicionless basis.

  We now turn to whether there is any correlation
between the abuse and the government’s interest
in protecting life and property. We have no doubt
that a legitimate and pressing need for drug and
alcohol testing of students driving vehicles on
school property stems from the ability of one
student under the influence of drugs or alcohol
to injure seriously another student. With the
mass exit of students after classes into the
relatively close confines of a student parking
lot, one student under the influence of drugs or
alcohol could cause serious injury or death.

  On the other hand, the decision of PHM to test
student drivers for the presence of nicotine is
not so easily justified. Tobacco use is legal if
a person is over 18 years of age. PHM’s school
policy validly prevents use of tobacco products
on school grounds. However, if a student smokes
at home, leaves the cigarettes at the house,
drives to school, and is drug tested, the results
would reveal the presence of nicotine. This
student could be subject to sanctions under PHM’s
policy for a perfectly legal activity. In the
absence of supporting data, this expansive view
of the School’s interest goes too far.
Furthermore, PHM simply has not documented any
serious risks associated with a student driving
while using a tobacco product.

  Finally, although PHM may have justified the
risk of injury associated with student drivers
under the influence of drugs or alcohol, PHM has
not explained how drug use affects students in
extracurricular activities differently than
students in general.

4. The immediacy of the governmental
concern

  PHM presented evidence regarding its general
student population that shows that, in some
categories, especially for gateway drugs such as
alcohol, nicotine, and marijuana, PHM’s average
use is greater than the national average. This
situation would appear to justify PHM’s taking
action with respect to activities that pose a
special risk of injury or death when drug or
alcohol abuse is present. Just as such a case was
established in Vernonia for athletic activities,
it also can be established for driving in the
relatively close confines of the school premises.

  However, PHM has not shown the same possibility
of immediate danger from students participating
in extracurricular activities. PHM simply has not
established that any immediate problem with drugs
or alcohol exists for its students in
extracurricular activities.

  The Court in Chandler did not require proof of
drug use by the candidates for public office but
it stressed that such proof would help in finding
a special need. In the circumstances here, we
think that PHM was required to show a correlation
between drug use and students in extracurricular
activities, or other evidence of a particularized
special need, before implementing its
suspicionless drug testing policy for those
particular student groups.

5.   The efficacy of the means

  In Vernonia, the Court noted that it is
difficult to use individualized suspicion to drug
test a broad population of students, such as
athletes. Read in isolation, this comment in
Vernonia would permit a school district to
implement a random program on a suspicionless
basis as long as it would test a large subset of
the entire school population. In Chandler,
however, the Court stressed that suspicionless
drug testing without evidence of a drug problem
by the targeted group should not be used if
suspicion-based drug testing is possible. See 520
U.S. at 321. We emphasized this restriction in
Willis.

  Here, there is no showing that the students
subject to testing are the ones that must be
tested to resolve the perceived problems. There
simply is a lack of a correlation between drug
use and either students in extracurricular
activities or student drivers. Given the variety
of circumstances under which students enter and
exit school premises, it is reasonable to
conclude that individualized suspicion of drug
and alcohol use by student drivers is not
feasible. It would be impossible for the school
to determine whether each student driver was drug
and alcohol free. However, PHM has made no
showing that teachers, staff and sponsors of
extracurricular activities would not be able to
observe the students for suspicious behavior.
  Accordingly, we conclude that PHM has
demonstrated a sufficient government need to
overcome the students’ Fourth Amendment rights
and to administer random drug testing to students
who wish to drive on school property. The danger
is well-defined, and the efficacy of testing on
individualized suspicion is hardly an adequate
preventive measure against the possibility of
real and immediate injury. On the other hand,
with respect to testing student drivers for
nicotine, PHM has not demonstrated a sufficient
government need to justify this intrusion. With
respect to random testing of those who
participate in extracurricular activities, we
believe that, according to the methodology
employed by the Supreme Court in Vernonia, there
has been an inadequate showing that such an
intrusion is justified. However, as we discuss in
the paragraphs that follow, another
consideration--stare decisis and precedent--
dictates a contrary result.

C.   Stare Decisis

  "Stare decisis is the preferred course because
it promotes the evenhanded, predictable, and
consistent development of legal principles,
fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity
of the judicial process." Payne v. Tennessee, 501
U.S. 808, 827 (1991). However, the Supreme Court
has stated that the doctrine of stare decisis has
less force in the constitutional context because
the interpretation may be altered only by a
constitutional amendment or by overruling
precedent. See Agostini v. Felton, 521 U.S. 203,
235 (1997). Therefore, the Court has overruled
prior decisions concerning constitutional
questions when there has been "a significant
change in, or subsequent development of, our
constitutional law." Id. at 236. In Agostini, the
Establishment Clause jurisprudence underlying the
case had changed significantly over the 12 years
since the Court had first decided the
constitutional question at issue. Therefore, the
Court overruled its prior decision to the extent
that it contradicted the intervening doctrine.
See id./10

  As the previous sections make clear, the judges
of this panel believe that students involved in
extracurricular activities should not be subject
to random, suspicionless drug testing as a
condition of participation in the activity.
Nevertheless, we are bound by this court’s recent
precedent in Todd. Given that the opinion in Todd
was issued only two years ago, that the facts of
our case do not differ substantially from the
facts in Todd, that the court in Willis
reaffirmed the basic principles in Todd, and that
the governing Supreme Court precedent has yet to
address the matter, we believe that we must
adhere to the holding in Todd and affirm the
district court’s grant of summary judgment for
the School as it relates to testing students
involved in extracurricular activities.

  However, we caution against reading the opinion
in Todd too broadly. At oral argument, counsel
for PHM expressed the desire to use our holding
in this case as a transition toward allowing
suspicionless testing of all students. Counsel
admitted that drug testing the entire student
population on a suspicionless basis was the
ultimate goal. After the School conceded that no
correlation existed between drug or alcohol use
and extracurricular activities, the panel
expressed concern about this slippery slope. The
relevant dialogue unfolded as follows:

THE COURT: So the slippery slope argument ought
to be very much in our minds. I mean, you’ll be
back here in another year with another school
district who wants to test everybody. And you
will say there is no principled distinction
between the holding you get today and the next
case. It’s just a matter of time till it gets
here. Right?

COUNSEL:   Absolutely, your honor.

Thereafter, counsel attempted to backtrack and to
stress the importance of voluntariness in the
discussion because students are consenting to
drug testing in exchange for a privilege.
However, later in oral argument, counsel again
agreed that schools should be allowed to drug
test everybody. If schools tested all students on
a suspicionless basis, the element of
voluntariness obviously would not be present.

  The danger of the slippery slope continues to
haunt our jurisprudence./11
  The scope of Vernonia remains undecided today.
Until we receive further guidance from the
Supreme Court, we shall stand by our admonishment
in Willis that the special needs exception must
be justified according to the methodology set
forth in Vernonia. Under that approach, the case
has yet to be made that a urine sample can be the
"tuition" at a public school.

Conclusion

  On the basis of the doctrines of stare decisis
and precedent, we are constrained to affirm the
judgment of the district court insofar as it
permits the use of random drug testing of
students who desire to engage in extracurricular
activities. We also affirm the judgment insofar
as it permits the random testing of student
drivers for drugs and alcohol. We reverse the
judgment of the district court insofar as it
sanctions the random testing of student drivers
for nicotine. The Defendants-Appellees may
recover their costs.

AFFIRMED in part; REVERSED in part


/1 The students who filed the original suit are:
Tianna Joy, an 18 year old who drives and has
participated in extracurricular activities and
who is subject to the random drug testing; Steven
Ward, the parent of a child who attends Penn High
School and whose child drives to school and is
subject to the random drug testing; Marci
Stephens, a student who has been subjected to the
random drug testing; Candace Petill, who is
similarly situated to Tianna Joy; Tiffany Petill,
a minor child who attends Penn High School, by
her mother Linda Petill.

  As explained at oral argument, only Steven
Ward’s child and Tiffany Petill remain enrolled
at Penn High School.

/2 The fourth prong of the policy, regarding
suspended students, is not enforced pursuant to
this circuit’s opinion in Willis v. Anderson
Community School Corp., 158 F.3d 415 (7th Cir.
1998), cert. denied, 526 U.S. 1019 (1999), which
struck down an analogous policy that allowed drug
testing of students suspended for more than 3
days for fighting. See R.24, Ex.J.

/3 The policy does not state explicitly that a
student driver must sign and return the consent
form, nor does it clarify that failure to return
the form results in not receiving the parking
permit; however, the policy does explain that any
reference to an athlete or extracurricular
participant in the policy also includes student
drivers. Therefore, because extracurricular
participants must return the consent form and
because the consequence for extracurricular
participants of not returning the consent form is
nonparticipation, presumably the same
requirements apply to student drivers.

/4 The student handbook states:

Selling/providing/transmitting/intending
to sell or transmit/manufacturing/
using/possessing/purchasing alcohol
and other drugs or possession of drug
paraphernalia will result in the following:

1. Notification of parents/guardians.

2. An immediate student/principal due process
hearing as prescribed by law prior to any
recommendation for suspension/expulsion.

3. A report to local law enforcement officials by
the school’s administration as required by I.C.
35-48-5-1.

4. A report to the local Child Welfare/Protection
Service as required by law.

5. If disciplinary due process provisions result
in a recommendation for suspension/expulsion, it
will be recommended that documented proof of an
interview assessment by a certified drug
treatment expert be provided to the principal
prior to readmittance to school.

6. Provisions to benefit the student readmitted
after expulsion will include a conference with
the parent/guardian, building principal, and the
at-risk counselor.

R.29, Ex.C at 6.

/5 The policy states:

Smoking by students or possession of tobacco
products is not permitted on school property at
any time. Use or possession of tobacco products
will result in the following:

a. First offense--A three day suspension from
school.

b. Second offense--A five day suspension from
school.

c. Third offense--A five day suspension from
school and a recommendation for expulsion.

R.29, Ex.C at 7.

/6 The district court noted that Tiffany Petill has
not consented to the random drug testing in
exchange for the privilege of parking.

/7 The Fourth Amendment reads as follows:

  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.

U.S. Const. amend. IV.

/8 Although the drug testing policy in Todd also
covered drug testing for students driving to and
from school, the court reached its decision only
in regards to student participation in
extracurricular activities. See 133 F.3d at 985
n.1.

/9 The term "extracurricular activities," as used in
this opinion, refers only to non-athletic
extracurricular activities.

/10 According to Justice Powell, stare decisis is
premised on three basic concepts: (1) it
facilitates the judicial task by obviating the
need to revisit each issue every time it comes
before the courts; (2) it enhances the stability
in the law and establishes a predictable set of
rules on which the public may rely in shaping its
behavior; and (3) it legitimates the judiciary in
the eyes of the public because it shows that the
courts are not composed of unelected judges free
to place their policy views in the law. See Lewis
F. Powell, Jr., Stare Decisis and Judicial
Restraint, 47 Wash. & Lee L. Rev. 281, 286-87
(1990).

/11 Since Vernonia, the allowance of drug testing in
other contexts than school students has expanded.
In these cases, a special need has been shown,
due to the high-risk position the employee holds,
that justifies the suspicionless drug testing.
See Knox County Educ. Ass’n v. Knox County Bd. of
Educ., 158 F.3d 361 (6th Cir. 1998) (permitting
suspicionless drug testing of school teachers and
employees), cert. denied, 120 S. Ct. 46 (1999);
Aubrey v. School Bd. of Lafayette Parish, 148
F.3d 559 (5th Cir. 1998) (allowing suspicionless
drug testing of school custodian and safety
sensitive employees); Stigile v. Clinton, 110
F.3d 801 (D.C. Cir. 1997) (upholding random drug
testing of employees with permanent passes to the
Old Executive Office Building due to the
government’s interest in protecting the President
and Vice President), cert. denied, 522 U.S. 1147
(1998); see also Loder v. City of Glendale, 927
P.2d 1200 (Cal. 1997) (permitting suspicionless
drug testing of prospective city employees but
not allowing suspicionless drug testing of all
current employees offered a promotion), cert.
denied, 522 U.S. 807 (1997); cf. Wilcher v. City
of Wilmington, 139 F.3d 366 (3d Cir. 1998)
(upholding direct observation drug testing of
firefighters as a reasonable intrusion on their
privacy interests). Compare United Teachers of
New Orleans v. Orleans Parish Sch. Bd., 142 F.3d
853 (5th Cir. 1998) (striking down mandatory,
suspicionless drug testing for all school
teachers and employees injured in the course of
employment because the school did not show a
special need that justified foregoing
individualized suspicion).

  Other courts have addressed suspicionless drug
testing for students. In Miller v. Wilkes, 172
F.3d 574 (8th Cir. 1999), before vacating the
decision as moot, the court upheld suspicionless
drug testing of all students where the
consequence of refusing to consent to drug
testing was not being allowed to participate in
any school activity outside the regular
curriculum. However, in Trinidad School District
No. 1 v. Lopez, 963 P.2d 1095 (Colo. 1998), the
Colorado Supreme Court struck down suspicionless
drug testing of extracurricular activities
because in that case the category also included
some co-curricular classes.
