LC /4; \/§iz3"~ ,0 I ever H <;t,- qsa A Congressional Research Service The Library of Congress Washington, D.C. 20540 CONFRONTING STUDENTS CONCERNING SUSPECTED DRUG USE: POTENTIAL LIABILITY OF EDUCATORS M. Maureen Murphy Legislative Attorney American Law Division September 23, 1986 Govennnent Pubficafiane Unit AUG 01 ‘£994 Washington University Ubrarima St. Louis, M0 63§.3® nivers Missouri Imii Iiiuiili 010-103941 O C Iumbia N Nlliliii 1 7 5 CONFRONTING STUDENTS CONCERNING SUSPECTED DRUG USE: POTENTIAL LIABILITY OF EDUCATORS Introduction. This report will briefly discuss the legal implications of confrontations between students and school authorities concerning suspected drug use. Both private and public schools are having to develop policies to deal with poten- tial drug use by students. School regulations may provide for various disci- plinary measures for students found to have used, distributed, or possessed drugs; parents and students adversely affected by such measures may attempt to look for recourse in the courts. Because we could locate no reported cases touching on these issues directly, the discussion will be general. The legal principles that govern the authority of schools over students differ according to whether a public or private school is involved. Public schools are subject to the strictures of the Constitution of the United States, and to state constitutions as well as to state laws that directly regulate state agencies. Private schools,i absent federal or state involvement, are likely to be subject to whatever state laws directly apply as well as to the provisions of the contract between them and the parents of their students. In processing disciplinary actions, public schools are bound by the Due Process Clause of the United States Constitution and by court decisions that specify procedural requirements of the particular situation; private schools are bound by the contract with the parents, which may or may not incorporate existing school rules. CRS~2 Generally, if legal action is taken on behalf of a student adversely affected by a drug related decision on the part of a school official that action will be directed against the school, either for redress of the grievance or for damages, under various state or federal laws allowing individuals to sue state officials. Some suits may be directed personally against the individual school official or teacher involved in the incident. This report will, therefore, discuss: (1) possible actions against public school systems; (2) possible actions against private school systems; and (3) possible actions against individual school officials or teachers. Possible Actions Against Public Schools. A federal civil rights statute, 42 U.S.C. 1983, allows private parties injured by state action to bring suits for damages for deprivation of constitutional rights under color of state law. To succeed in such a suit against a school system for an adverse action based on interaction between a student and a school official or teacher because of illegal drug use, distribution, or possession, the student or student's parents would have to show deprivation of a constitutional right. This might be difficult because of the limited rights the courts have recognied for students. One right that might be cited is the Fourth Amendment's protection against unreasonable search and seizure. lhere is, however, considerable doubt as to the extent of protection this guarantee provides students. The Supreme Court has recently extended the meaning of what is a reasonable, and hence, a constitutional, search in the school context. In New Jersey v. T.L.O., U.S. , 103 S.Ct. 733 (1985), the Court ruled that the Amendment did extend to the school situation; it found, however, that searching a purse of a student observed smoking cigarettes in violation CRS-3 of a school rule was not an unreasonable search. In this case a teacher who had observed the cigarette smoking, escorted the student to the principal's office, where the purse search was conducted by the vice-principal. Subse- quently, the student was charged with delinquency and adjudged delinquent. Compulsory drug testing of students is the kind of public school program that might involve violation of Fourth Amendment rights. The federal courts have upheld compulsory random drug testing by the government only in very limited situations since urinalysis testing involves a Fourth Amendment search.l/ The situations that have been approved for government drug testing are: military service members (Murra v. Haldeman, 16 M.J. 74 (C.M.A. 1983); Committee for GI Rights v. Callaway, 518 F.2d 466 (D.C. Cir. 1975); jockeys, as being in a heavily regulated industry (Shoemaker v. Handel, 619 F.Supp. 1089 (D. N.J. 1985); and prisoners (Storm v. Coughlin, 600 F.Supp. 1214 (S.D.N.Y. 1984)). Random compulsory tests have been disallowed in the following situations: school teachers (Potchogue Medford Congress of Teachers v. Board of Education, 55 L.W. 2114 (N.Y. Sup. Ct. Aug. 26, 1986); prison employees (McDonnell v. Hunter, 612 F.Supp. 1122); police and fire fighters (Capua v. City of Plainfield, D.N.J. (No. 86-2992, Sept. 18, 1986); Tompkins v. City of Plainfield, F.Supp. (D.N.J. Sept. 18, 1986). When there is reasonable cause to suspect drug use the courts have upheld government testing of municipal workers whose job involved public safety, Allen v. City of Marietta, 601 F.Supp. 482 (N.D. Ga. 1985); bus drivers involved in accidents, Division 241 Amalgamated Transit Union (APL-C10) v. Suscy, 538 F.2d 1264 (7th Cir. 1976), cert. denied, 429 U.S. 1029 (1976). if Schmerber v. California, 384 U.S. 757 (1966). McDonnell v. Hunter, 612 F.Supp. 1122 (S.D. To. 1985). CRS-4 The one case that involved a mandatory drug test for public school children ruled that such tests were unconstitutional. It involved a Bergen County, N.J. high school and was decided by Judge Peter Ciolino of N.J. Superior Court in Hachensack. N.Y. Times, B-7, col. 1 (Dec. 11, 1985), avail- able in Lexis Infobank Library, N.Y. Times file, August 15, 1986. The Supreme Court has yet to address the question of whether inspection of student lockers by school authorities is a search within the meaning of the Fourth Amendment. It acknowledged the split of authority on the issue in foot- note S of T.L.O. V. New Jersey, U.S. , 105 S.Ct. 733, 741-742, as follows: We do not address the question, not presented by this case, whether a schoolchildthas a legitimate expectation of privacy in lockers, desks, or other school property provided for the storage of school supplies. Nor do we express any opinion on the standards (if any) governing searches of such areas by school officials or by other public authorities acting at the request of school offi- cials. Compare Zamora v. Pomeroy, 639 F.2d 662, 670 (CA1O 1981)('Inasmuch as the school had assumed joint control of the locker it cannot be successfully maintained that the school did not have a right to inspect it.'), and People v. Overton, 24 N.Y.2d 522, 249 N.E.2d 366, 301 N.Y.S.2d 479 (l969)(school administrators have power to consent to search of a student's locker), with State v. Engerud, 94 N.J. 331, 348, 463 A.2d 934 (1983)('We are satisfied that in the context of this case the student had an expectation of privacy in the contents of his locker.... For the four years of high school, the school locker is a home away from home. In it the student stores the kind of personal "effects" protected by the Fourth Amendment‘). Another right that students might invoke is the right to due process provided by the Fifth Amendment and the Fourteenth Amendment. To come within the protection of the Due Process Clause, there must be some form of adverse action by government (state, local, or federal) or one of its agencies and some inhibition of personal liberty or property. Thus, public schools must provide students due process if they take some action adverse to the liberty or property interests of the students. In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme CRS-5 Court ruled that public schools may not suspend students for 10 days without informing them of the charge in advance, if possible, and allowing them the opportunity to respond to those charges: i.e., without providing advance notice and opportunity for a hearing. It, thus, would seem that there might be situations in which schools could confront students over drug use and be required to comply with notice and hearing requirements. It might be said, however, that the Supreme Court is seeming to become more sympathetic to the requirements of discipline and administration in schools and might uphold programs imposing various kinds of discipline on students for drug use or drug-related activity. In a recent case, for example, Bethel School District No. 403 v. Fraser, U.S. , lOS S.Ct. 506 (1986), the Supreme Court upheld a school regulation that permitted a three-day suspen- sion and elimination from the list of graduation speakers for anyone engaging in disruptive conduct and defined disruptive conduct to include making speeches with sexual innuendo despite a challenge that such a regulation was unconsti- tutional as inhibiting freedom of speech. In upholding the regulation and the sanctions it imposed the Court endorsed a broad reading of the school's role in maintaining discipline and order to fulfill its role of educating for civic responsibility: We have recognized that ‘maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student- teacher relationship.’ New Jersey v. T.L.O., 469 U.S., at . Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. . . Two days suspension from school does not rise to the level of a penal sanction calling for the full panoply of procedural due process protections applicable to a criminal prosecution. Bethel School Dist. No. 403 v. Fraser, U.S. , lO5 S.Ct. 506. CRS-6 There is also the possibility that drug confrontations will violate confidentiality provisions of federal law. In Merriken v. Cressman, 364 F.Supp. 913 (E.D. Pa. 1973), a federal district court ruled that a high school could not inaugurate a psychological testing program that was designed to detect potential drug abusers. The court granted an injunction against the program's use because of lack of full, voluntary, and knowing consent by the parents to what the court saw as a potential invasion of privacy protected by the Constitution. The test included questions involving the students’ intimate family relationships, one area that the Supreme Court has indicated as being protected by a constitutional right to privacy emanating from various provisions of the Constitution. Griswold v. Connecticut, 381 U.S. 479 (1965). Since that case was decided, Congress has enacted a privacy provision that protects students from being required to take, without parental consent, psychological tests to detect various conditions including some that might be pertinent to drug abuse or participation in drug offenses. Section l232h of title 20, United States Code, enacted in 1978, Pub. L. 95-561, 92 Stat. 2353, prohibits educational agencies receiving federal funding from subjecting students to psychological tests without parental consent if the tests are designed to detect, inter alia, "mental and psychological problems . . ." and "illegal, antisocial, self-incriminating and demeaning behavior." Both of these conditions might be argued to be implicated in programs designed to detect drug abuse or drug offenders. Another section, § l232g of title 20 prohibits use of federal funds for educational agencies or institutions that permit the release of education records except under circumstances prescribed so as to protect the privacy of the individual. Should school drug confrontations between teachers and CRS-7 administrators involve violations of the statute, there is the possibility of a cut off of federal funds. The statute cannot, however, be used to bring a private suit against the school. Giradier v. Webster College, 563 F.2d 1267 (8th Cir. 1977). Possible Actions Against Private School Systems. Private schools are not subject to the federal Constitutional restrictions imposed upon governmental agencies, such as public schools. Private schools, have begun to adopt measures to confront the possibility of drug use or sale within their confines.2/ Since the Constitution does not offer an avenue of redress for persons offended by practices of purely private parties, other legal rights must be invoked. In the private school context, the likeliest action against the school would be based on contract, since the education of students is considered to be grounded in the contract between the parents and the school. Thus, if the school's regulations include a provision for suspension, expulsion, or treatment for students using or selling drugs, those regulations would be deemed part of the contract and parents would be held to have acquiesced to them as conditions of entering their children in the school. On the other hand, if a school unilaterally dismissed a student for drug use without being able to invoke a rule to that effect, the parents may have a breach of contract suit against the school. Thus, it has been held, in a case that did not involve drugs, that if the student is dismissed without justification, the parents are not liable for the tuition and the school 3/ The New York Times, p. 54, col. 3 (June 8, 1986), available in Lexis, Infobank Library, NYT file, carried a story of drug testing at Choate Rosemary Hall, in Wallingford Conn.; a May 26, l985, p. 1, col. 3 New Jersey Weekly Desk, New York Times article (available in Lexis, Infobank Library, NYT file), details increasing expulsion policies of private schools in their confrontation with the drug problem. CRS-8 may be liable for breach of contract. Miami Military Institute v. Leff, 129 Misc. 481, 221 N.Y.S. 799 (1926). Possible Actions Against an Individual Teacher. Many public schools are immunized from liability for negligent torts suffered by students because of the doctrine of sovereign or municipal immunity by which suits against a public entity are barred unless there is a statute granting the right to bring a suit. If a child suffers a serious injury at the hands of a teacher or other employee of the school, under certain circumstances, it might be possible to bring suit against that individual in his private capacity. We could find no reported decisions of/such cases involving drug related situa- tions and pblic school employees.2! There may be some suggestion that teachers who know students are using drugs or who should have known that students are using drugs should be liable in tort for not doing something about it. No decisions on such a theory could be located. The only analogous situation that could be identified involved a theory of educational malpractice: a theory under which suits are brought attempting to hold teachers liable for not providing an education of a certain quality. Such suits have uniformly failed. See, Loscalzo, T.E., "Liability for Malpractice in Education," 14 Journal of Law and Education 393 (1985). Holding teachers to standards involving failure to fulfill a duty as amorphous as educating adequately or counseling adequately has been held to be against public policy. Hoffman v. Board of Education, 49 N.Y. 2d l2l, 400 3/ The only case we could find of personal accountability for an encounter concerning drugs and a teacher was reported only in a newspaper, the New York Times, sec. 2, p. 1, col. 1 (March 27, 1981), Lexis, lnfobank Library, NYT file, available August l3, 1986. It reported that a New Jersey judge was considering compelling a faculty advisor of a school newspaper to reveal the name of a student who had interviewed a drug dealer for the newspaper. Such compulsion could Lwvolve jailing the faculty advisor for contempt. CRS-9 N.E. 2d 317 (1979). Expecting teachers and school administrators to identify and treat students with drug problems that their parents have not identified or treated, one might expect would meet with the same result. If private schools are involved, and teachers are alleged to have negli- gently caused drug use or to have caused serious illness of the students, it is possible that both the school and the teachers would be liable. (Such situa- tions might involve teachers who have actually introduced students to drugs, allowed comatose students to die untreated, or ignored serious drug-induced illnesses, but probably would not extend to teachers who reasonably failed to identify drug users among the student body.) There are no reported cases that could be found involving such situation. The basic standard for negli- gent liability for private schools has been stated as follows: Where the liability of the school is sought to be predi- cated on the alleged negligence of teachers, employees, or agents of the school, it is generally recognized that liability on the part of the school may be established under the doctrine of respondeat superior if negligence within the scope of their employment is shown, and the usual legal rules are applied in specific cases for determining whether a particular activity took place within the scope of employment. 68 Am Jur 2d § 321 (l973)(footnote omitted) Another situation that might occur between student and teacher is an exchange in which the teacher develops a judgment that the student is using or selling drugs. The question might arise as to the liability of the teacher for spreading suspicion concerning that judgment to others. Again, we have found no reported cases on point. There is a body of law concerning informational privacy within the school context that might afford some guidance. The crucial question to be answered might be what the duty of the teacher is with regard to that information: school regulations may afford an answer CRS-10 to that question. If selling drugs or violation of school rules is involved, communication to authorities is probably required and, thus, may be undertaken without liability.é/ One federal case, Einhorn v. gags, 300 F.Supp. 1169 (E.D. Pa. 1969), involving student records, may shed some light on the situation involving suspicion of drug use. That case held that if a school has a duty to main- tain student records accurately, for example, it has a duty to convey the information in those records accurately to an inquiring third party who has a right to inquire about the conduct that is the subject of the records. By analogy, if a school has a duty to be aware of student drug use, e.g., for example to maintain order in the classroom or to maintain an atmosphere con- ducive to educating the entire group of students, it has a duty to convey information about such drug use to inquiring parties, parents, police, and medical personnel, who may have a legitimate interest in having access to the information. It thus would seem that if the school or school staff member conveyed information about a student's drug use to a person having the right to know about that drug use, there wouldn't be liability for invasion of privacy. 4/ The federal educational privacy statute, 20 U.S.C. § 1232g, applies to "educational records," and, thus, may not afford any kind of protection to information about discovering drug use or distribution by students. There are, moreover, exceptions that may apply to such a situation; e.g., information re- quired to be provided state or local authorities by state statute adopted prior to November 19, 1974, 20 U.S.C. § l232g(b)1(E); information supplied to parents 20 U.S.C. § l232g(b)l(H), and such information as may be released subject to regulations of the Secretary, in connection with an emergency, to appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons. 20 U.S.C. § l232g(b)(l)(I). CRS-ll Conclusion, The dearth of case law makes difficult any generalization other than the obvious one--that public school students are protected by the federal Constitution; private school students, in the school context, are generally without that protection. The courts have upheld searches of public students suspected of violating school rules; one court has invalidated a mandatory public high school drug testing program; courts have entertained breach of contract suits by parents of private school students but have yet to report one involving dismissal for drug use; and teachers, so far, have not been reported to have been held liable for counseling students or identi- WWW M. Maureen Murphy Legislative Attorney American Law Division September 23, 1986 fying students involved in drug abuse.