Earls v. Board of Education: A timid attempt to limit special needs from becoming nothing special

INTRODUCTION

In Earls v. Board of Education,' the Court of Appeals for the Tenth Circuit held that the suspicionless drug testing of public school students participating in extracurricular activities was unconstitutional.2 The Tecumseh School District in Tecumseh, Oklahoma implemented a policy that required students participating in extracurricular activities to submit to urine drug testing, regardless of any suspicion that a particular student was using illegal drugs.3 Two students challenged the testing policy on the grounds that it violated the Fourth Amendment.4 The school district defended the policy asserting that the drug testing was constitutional under the "special needs" doctrine5 developed by the Supreme Court6 In contrast to the Tenth Circuit, other courts of appeals have held that similar drug testing schemes are constitutional.7 Furthermore, in 1995, the Supreme Court

upheld a testing program that required student athletes to undergo suspicionless drug testing.8

This Comment agrees with the Earls court that the Tecumseh School District's testing policy was unconstitutional. It argues, however, that the rationale of the Earls court was erroneous and its analysis and application of the facts too timid. Furthermore, this Comment contends that the special needs doctrine deserves judicial clarification so that it may remain a limited exception to the Fourth Amendment.

Part I of this Comment briefly outlines the United States Supreme Court cases that established the contours and scope of the special needs doctrine. It also examines some of the dissenting opinions and scholarly criticisms of the special needs doctrine. Part II discusses and analyzes the Tenth Circuit's opinion in Earls. Finally, Part III suggests a more cogent special needs test.

I. ESTABLISHING THE SPECIAL NEEDS DOCTRINE

The Fourth Amendment of the United States Constitution affords the American populace protection from unreasonable searches and seizures conducted by the government.9 The full text of the Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.10

Both scholars and the Supreme Court have debated the exact meaning and interpretation of the Fourth Amendment.li

In recent years, the...