To The Point Blog

Random Drug Testing

Dec 02, 2014

A number of Ohio School Districts are considering whether to pass random drug testing policies.  A random drug testing policy, in general, is a policy testing groups of students, on a random basis, for specific drugs.  If the student tests positive, the student is either suspended or prohibited from participating in the activity and often is referred to a drug counseling program.  Typically, the student is not punished academically for testing positive.  School districts have viewed these policies as a proactive way for students to say no to drugs: a student may avoid peer pressure to use drugs as the student does not want to be suspended from playing on the school’s athletic team. While these policies can be effective, they are complex and raise a number of issues.

We recently presented on the legal issues surrounding random drug testing policies at the Ohio School Boards Association Capital Conference in Columbus.  The presentation explained the legal complexities of drafting, passing, and implementing a random drug testing policy.  We’ve detailed below many of the key issues to consider when implementing a random drug testing policy.

First, the legality of random drug testing policies is a complex issue.  No provision of the Ohio Revised Code specifically states how to conduct a random drug test, so school districts are left to draft their own policies.  When drafting these policies, School Districts must be mindful of a student’s privacy rights under the U.S. Constitution.  The U.S. Supreme Court has upheld two specific policies that test for student athletes and students engaged in “competitive extracurricular activities.” While many practitioners often focus on this “scope” of testing, it is important to note that the Court also discussed the manner of testing, the procedure for testing, and the consequences for testing.  While other schools’ policies have been upheld, courts have acknowledged these policies must fit within a framework.  Seemingly innocuous changes to who you test, how you test, and what you do with the results, may make a policy unconstitutional.  Due to the technicalities and legal aspects, school districts should work closely with their education attorney when drafting their policy. 

Second, random drug testing policies will be controversial and are complex to understand.  We have advised clients to educate their communities before passing and implementing the policy. Depending on your policy’s language, there will be a number of questions relating to issues such as why you are only testing for certain groups of students, why you are not punishing the students academically, and who will have access to the records.  Again, your answers will often come down to case law.  We have found that education is a critical part of gaining public support and confidence in your policy.  In the past, we have drafted FAQs to ensure questions are answered correctly and clearly. 

Finally, the policy should identify the persons and process for implementing the policy.  Typically, a vendor will be selected to do the testing.  It is extremely prudent to develop school specific testing procedures with the vendor and your lawyer. A lawyer can ensure that the process agreed to by the vendor and school will fit within the existing legal framework. 

When drafted, passed, and implemented correctly, random drug policies can be another tool for your school to address drug use.  However, much thought should go into whether your school should adopt a policy and how it will implement the policy.  We are experienced in drafting and implementing drug testing policies for school districts and would be happy to answer any questions you may have. 

The content of this blog is for informational purposes only and is not intended as legal advice for any purpose. This blog is not intended to present an exhaustive summary of all applicable laws, or to take the place of legal advice.  If you have any questions regarding the law, please contact us for assistance.