CAUSE NO 07C01-9710-CP-0328 STATE OF INDIANA

COUNTY OF BROWN

ROSS VOLBRECHT and
RONALD VOLBRECHT

Plaintiffs

vs

BROWN COUNTY COMMUNITY
SCHOOL CORPORATION

Defendant

PLAINTIFFS’ BRIEF

Statement of Facts

The Defendant has instituted a policy which allows testing of students' urine for the presence of drugs without the issuance of a search warrant nor particularized suspicion that any given student possesses such drugs. If a student tests "positive" for the presence of such drugs, including nicotine, the defendant may impose penalties upon that student. Ross Volbrecht, an 18 year old senior athlete at Brown County High School tested positive for the presence of nicotine, and as such, the defendant's agents forbad him to play in the high school's sectional football game, which the high school subsequently lost.

Statement of Law

The fourth amendment to both the federal and state constitutions forbid "unreasonable searches". Indiana courts have recently held that, "The article of the State Constitution governing searches and seizures must receive liberal construction in its application to guarantee people against unreasonable search and seizure." Moran V State, 644 N.E. 2d 536, 1994. With specific reference to student searches such as is present in this case, the Indiana courts have said: "First, the search must be justified at its inception. Under ordinary circumstances, a student search will be justified at its inception when there are reasonable grounds for suspecting that The search will turn up evidence that the student is or has violated either the law or a school rule. Second, the search must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." D. I. R. v State, 683 N.E.2d 251, 1997. The most comprehensive statement to date from the federal system regarding this type of school search can be found in Veronia School District 47J v Acton, 515 U.S. 646, 1995. Here Justice Scalia, writing for the majority, with a strong dissent from Justice O'Connor, found that random urine screens administered only to student athletes passed constitutional muster. The Court confirmed that absent exigent circuinstances, warrants are required for searches. It also confirmed that testing students' urine is a search. However, the majority found that schools, in order to combat a perceived "drug problem" can perform strictly controlled urine screens for illegal substances on student athletes. In her dissent, Justice O'Connor noted: "For most of our constitutional histoty, mass, suspicionless searches have been generally considered per se unreasonable with the meaning of the Fourth Ainendnient. And we have allowed exceptions in recent years only where it has been clear that a suspicion-based regime would be ineffectual."

ARGUMENT

The drug testing regime instituted by the defendant here fails the tests outlined above in the following manner:

1. Nicotine is not an illegal substance, either by possession or use, for people over the age of 18 years. In fact, in Indiana, the government collects large suns of money, through taxes and permits, from the sale of nicotine products.

2. All defendants' students (not just athletes) who participate in extracurricular activities, including utilizing the defendants' parking lots, are subject to random drug screens

This Court may note that the originial version or the Vernonia School District's drug testing policy would have tested all students at Vernonia who were involved in extracuricular activities. This undoubtedly would have included more students in the testing pool and indicates that the district's concern was broader than eliminating drug use among athletes alone. Justice O'Connor focused on this point, stating: "I find unreasonable the school's choice of student athlete's as the class to subject to suspicionless testing - a choice that appears to have been driven more by a belief in what would pass constitutional muster - than by a belief in what was required to meet the District's principal disciplinary concern. Therefore, both the U.S. Supreme Court and the Indiana appellate courts have made it clear that drug testing regulations must bear a reasonable relationship to legitimate goals and needs. The defendant here cannot point to a legitimate goal in testing for nicotine in those over the age of 18 years. Nor can the defendant justify on any " loco parentis" or safety grounds the random testing of all students, rather than only student athletes.

CONCLUSION

The drug testing program as instituted by the defendant violates the Fourth Amendment of the federal and state constitution1 is unconstitutional and should be enjoined.


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