Theodore v. Delaware Valley School District, 761 A. 2d 652 (Pa. Cmwlth. 2000)

The Delaware Valley School District enacted Policy 227 which required all middle and high school students participating in extra-curricular programs or using driving/parking privileges to sign a contract (or have a parent sign for minor children) consenting to testing of the student for alcohol and controlled substances. Policy 227 was to aid in the prevention of accidents and injuries resulting from the use of alcohol and controlled substances. A further purpose was to discourage the use of controlled substances and to provide assistance programs for students who were found to be using controlled substances illegally. Therefore, the purpose of Policy 227 was preventative and remedial, not punitive and, as an indication of this intent, there were no criminal sanctions, juvenile action, or school disciplinary actions as a result of the testing. Tests were administered by a certified breath alcohol technician and trained medical personnel in the nurse's office. Positive tests resulted in parent notification, student notification, and the opportunity to opt out of the activity or activities that required the testing protocol to be used. If the student did not opt out, a series of required actions followed, including a drug/alcohol assessment with a certified evaluator, participation in a drug/alcohol assistance program, weekly testing for six weeks, and suspension from all covered activities. A negative test result was required prior to ending the suspension from participation. A second offense resulted in a suspension from participation for one calendar year and a third offense resulted in permanent suspension from participation for the remainder of his/her years in the district.

The appellants contended that Policy 227 unconstitutionally deprived them of their right to privacy, violated their protection from unreasonable searches and seizures, which is provided by PA Constitution (article 1 section 8). They sought injunctive relief to prevent the school district from testing. The court of common pleas Pike County dismissed the complaint resulting in the appeal to Commonwealth Court.

Decision of the court

The court affirmed the decision of the trial court in its dismissal of the parents' claims of violation of parental rights and privacy interests. The court vacated that portion of the trial court's order dismissing the students cause of action and remanded for proceedings consistent with the court's opinion.

Basis for the Decision

The portion of the decision that was vacated and remanded was based on the failure of the school district to demonstrate a special need to test only those students engaged in optional activities. The district stated its purpose for Policy 227 was to protect the health of students by preventing accidents and injuries, and providing assistance programs, but did not establish a special need differentiating the students participating in optional activities from the general population of the school. The Court made an analogy to the offering of a polio vaccine only to those students participating in optional activities: if the purpose of Policy 227 is student health and welfare, why shouldn't it apply to all students? The court vacated based on the school district's failure to establish special need as the Vernonia School District in Vernonia School District 47J v. Acton, 515 U.S. 646 115 S. Ct. 2386, 132 L.Ed.2d 564 (1995) had demonstrated special need.

The portion of the decision affirmed by the court was based on the lessened right to privacy once a positive test for illegal substance occurred. Secondly, the Constitutional question was limited because disclosing information and counseling of students was at the parents' option in the case of a minor student. Finally, the student's privacy rights were protected in that positive test results were only provided to those who need to know and then only if the student chose to continue participation. The court found that no cognizable privacy right had been violated by the dissemination of materials at the request of the student and that the parents could protect the child's privacy rights by removing the child from the activity or relinquishing his/her driving/parking privileges.

Written by J. Michael Carson, Erik Berthold and Jay Barton. Summer 2001.