THE LEGAL DEPARTMENT The Fourt Amendment and Student Drug Testing Policies: A Split Decision in the Federl Courts Todd A. DeMitcbel Assistant Prfessor of Educationa Astrtion Colege of Libe Arts Univerity of New Hampshir Durham, NH 03824 The schoolhouse gate once served as a boundary marker identifing an ofen troubled society outside the gate and a protected environment inside the gate. This oasis in a culture of violence is being increasingly encroached upon by the presence of drugs, alcohol, and weapons in our schools' corridors. Drug use and violence in our schools have become major prblems prompt ing parents, educators, and politicians to demand that our schools be made saf. A study conducted by the Univer sity of Michigan's Institute fr Social Research fund that illegal drug use by junior and senior high school students increased in 1993 over 1992 reversing a decreasing usage trend that extended back to 19 (Bjorklun, 1994). A 1993 Harvard School of Public Health survey fund that one in twenty-fve children age ten to nineteen had taken a handgun to school during the school year (Sommerfld , 1993). A 1993 survey by the Centers fr Disease Con trol and Prevention fund that 24 % of the 16,00 high schol students sur veyed said that they were ofered, sold, or given an illegal drug at school in the previous year (Hostetler, 1995) . In re sponse to the prvalence of drugs and weapons in our schools, Congress, in 1986, passed the Drug-Free Schools and Community Act, gun-fee zones were established around schools by many states as well as by the federal goverent, and the national Goals 362 20 stated that every school in Amer ica will be fee of drugs and violence. Zirkel (1994) has pinted out that society's response has been "a warlike view of alcohol, drugs, and violence in the schools" (p. 729) . Some school districts have re sponded to this demand fr security by using canine drug snifng teams, 1 in stalling magnetometers, 2 conducting locker searches, 3 and testing students fr drug use. All fur of these tactics used to combat drug, alcohol, and weapon possession at school involve the Fourth Amendment's restriction on unreasonable search and seizure. This discussion will fcus on the constitu tionality of student drug testing poli cies fr two reasons: 1) two fderal courts of appeal have arrived at two diferent conclusions on the same issue of constitutionality, thus the issue of constitutionality is contested; and 2) combating drug use in our schools is a major challenge fcing educators. Search and Seizure in t he Schools Search and seizure of public school students by school of fcials implicates United Sttes constitutional protec tions under the Fourth Amendment. The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and ef- fcts, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported b Oath or Afirma tion, and particularly describing the place to be searched , and the persons or things to be seized. Fourth Amendment protection is triggered when goverent officials, which in our case are public school of fcials, intrude upon an individual's reasonable expectation of privac. The United States Supreme Court noted that "[t]he basic purpose of this Amendment . . . is to safguard the privacy and seurity of individuals against arbitrary invasions ly govern mental ofcials" (Camara v. Muni cipal Cour, 1967, at 523) . The Furth Amendment contains two important clauses: the Reasonable ness Clause and the Warrant Clause. The Reasonableness Clause applies to all searches and seizures, in other words, all searches and subsequent sei zures must be reasonable. The Warrant Clause applies to those searches where prior approval b a judge is required. The standard used is probable cause. The warrant clause does have some ex ceptions. These include: "(a) exigenc (the search must be conducted imme diately or the evidence will be lost) ; () consent (the accused person gives the government ofcial permission to search) ; (c) plain view (the items were in clear sight of the government of-