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Tuesday, January 15, 2008
Illinois Joins NJ, FL, and TX With High School Drug Testing

Yesterday, the Illinois High School Association's Board of Directors voted to implement a performance enhancing drug testing program beginning this fall for state championship competitions. The Board's vote came after reviewing the results of a survey sent to all 765 member schools on December 11, 2007. Curiously, only 414 schools (54%) responded to the survey that was due on Sunday, with 294 schools (72%) voting in favor of implementing a testing program.

Illinois becomes the fourth state to implement such testing, following New Jersey, Florida, and Texas. Illinois is unique in that its implementation is not the result of state government action, but rather a voluntary choice by IHSA member schools, albeit with an affirmative response from less than 40% of the membership. The IHSA still has to select a collection agent and lab, determine the exact scope of the testing, select a medical review officer, and determine the relative penalties for the athletes and schools after a positive test. Interestingly, the aforementioned survey reveals that while the schools (the voting was done by either the principal or athletic director) were heavily in favor of making the athlete ineligible for testing positive (97% in favor), the schools were against forfeiting a post-season team award for the same offense (60% against).

See Board of Education v. Earls, 536 U.S. 822 (2002), and Vernonia School Dist. 47j v. Acton, 515 U.S. 646 (1995), for the legality of such testing.


Great topic Tim, I have a question though...

I admit I'm a bit rusty on the subject, but couldn't this still be considered a government action?

In Communities for equity v. MHSAA, the Michigan High School Athletic Association was sued for a number of gender equity violations, and the Michigan courts found that the MHSAA was indeed a state actor because MHSAA was "so entwined with public schools and the state of Michigan as to be deemed a state actor for purposes of equal protection analysis, even though it is a private organization."

Applying that same reasoning here would make IHSA a state actor also would it not?

I suppose this would only matter when an athlete decides to sue IHSA over the drugtesting program...

Blogger Jimmy H -- 1/15/2008 1:04 PM  

Does Connecticut test, too?

Anonymous Anonymous -- 1/16/2008 12:12 PM  

Jimmy H.,

The Northern District of Illinois has found that despite similarities to the NCAA, "the IHSA clearly is a state actor." Libby v. South Inter-Conference Ass'n, 728 F. Supp. 504, 506 (N.D. Ill. 1990).

The IHSA has argued that it is not a state actor based on Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179(1988), in which the US SC held that the NCAA is not a state actor. The IHSA then argued similarities to the NCAA like voluntary membership of both public and private schools, and the absence of "any delegation of any disciplinary power by member schools to IHSA", and, finally, that the IHSA has no governmental powers. However, the Northern District of IL found that there are important differences as well, most siginificantly, that the IHSA is composed entirely of Illinois high schools, the majority of which public. Id. at 507.

As for how the US SC views testing of HS student athletes, Vernonia is instructive, the difference being that the test was administered by the school.

The court was called to determine if the urine test violated the students Fourth Amendment rights, which protects people from unreasonable search and seizures. A determination of whether a search is reasonable is determined “by balancing the intrusion on the individual’s interests against its promotion of legitimate government interests”

The court turned their discussion to three main areas: (1) privacy of the student; (2) intrusion upon the student; and (3) importance of the testing.

The court found little problem with the privacy issues. To begin with, in school settings students have less constitutional and privacy rights then adults. For example, a school can require a student, for the benefit of that student and fellow classmates, to submit to various physical examinations. Student athletes have even less expectations of privacy then the rest of the student body. When a student decides to play on a school sports team they subject themselves to a level of less privacy and more regulation then what students are generally subjected to.

The court also found that the urine test, at most, negligibly intrudes into the privacy of students. Students are impacted in two possible ways. The first is in the administration of the test. The test requires the students to do nothing different then they normally do. The test is administered by the students merely using the bathrooms as they normally would. The second issue is in finding out what is in the student’s body. Since the school is only looking for drugs and the results are only given to limited class of school personnel, there is no real intrusion upon the student’s privacy. Furthermore, even if the student is required to turn over medication they are currently on, the invasion of their privacy is not significant.

The last issue for the court to consider is whether the issue is important enough to justify the testing. The court determined that deterring drug use by students is important, and possibly compelling. The negative effects drugs have on students justify the urine testing. Furthermore, ensuring student athletes do not use drugs helps to address the drug problem that is fueled largely though athletes use of drugs.

The court does warn, however, that other suspicionless drug testing may not pass constitutional muster. Of particular importance here is the fact that a school is a guardian and tutor of the students and that the steps taken by the school are that which a reasonable guardian and tutor may take.

Anon. 2,

To my knowledge, only IL, NJ, FL, and TX have performance enhancing drug testing programs.

Thanks for the response,
Tim Epstein

Blogger Tim Epstein -- 1/16/2008 12:38 PM  

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