BRADY EUGENE TANNAHILL, a Minor, by His Father and Next Friend LARRY EUGENE TANNAHILL, Plaintiff, v. LOCKNEY INDEPENDENT SCHOOL DISTRICT, et al., Defendants.  

Civil Action No. 5:00-CV-0073-C 

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, LUBBOCK DIVISION 

March 1, 2001, Decided 

March 1, 2001, Filed, Entered 

DISPOSITION:

 [*1]  Plaintiffs' Motion for Summary Judgment GRANTED. Defendants' Motion for Summary Judgment DENIED. Judgment for the Plaintiff entered. All relief not expressly granted is denied.  

COUNSEL:

For LARRY EUGENE TANNAHILL, plaintiff: Michael F Linz, Attorney at Law, Law Office of Michael F Linz, Dallas, TX USA.

For LARRY EUGENE TANNAHILL, plaintiff: Graham A Boyd, Attorney at Law, American Civil Liberties Union, Drug Policy Litigation Project, New Haven, CT.

For LOCKNEY INDEPENDENT SCHOOL DISTRICT, BERNIE HON. BERNIE FORD, JOHN QUEBE, DAN SMITH, LOUIE BYBEE, JESSE GARZA, JIM MARTIN, MIKE MATHIS, RAYMOND LUSK, defendants: Donald G Henslee, Attorney at Law, Henslee Fowler Hepworth & Schwartz, Austin, TX USA.

For LOCKNEY INDEPENDENT SCHOOL DISTRICT, BERNIE HON. BERNIE FORD, JOHN QUEBE, DAN SMITH, LOUIE BYBEE, JESSE GARZA, JIM MARTIN, MIKE MATHIS, RAYMOND LUSK, defendants: Hermon L Veness, Jr, Attorney at Law, Henslee Fowler Hepworth & Schwartz, Dallas, TX USA.  

JUDGES:

SAM R. CUMMINGS, UNITED STATES DISTRICT JUDGE.  

OPINIONBY:

SAM R. CUMMINGS 

OPINION:

MEMORANDUM OPINION

On this day the Court considered Plaintiffs', Brady Eugene Tannahill's ("Tannahill") and Larry Eugene Tannahill (collectively,  [*2]  "Plaintiffs"), Motion for Summary Judgment, filed December 15, 2000. Defendants, Lockney Independent School District ("the District") and members of the District's Board of Directors (collectively, "Defendants"), filed a Response on January 5, 2001.

Also before the Court is Defendants' Amended Motion for Summary Judgment, filed January 2, 2001. Plaintiffs filed a Response to the District's Motion on January 5, 2001. After considering all relevant arguments and evidence, the Court GRANTS Plaintiffs' Motion for Summary Judgment and DENIES Defendants' Motion for Summary Judgment.

I.

BACKGROUND

The facts that comprise this lawsuit are largely stipulated by the parties. Lockney Independent School District is an independent school district established and organized under the laws of the State of Texas. Tannahill was a sixth-grade student at the District at the time this lawsuit was filed; he is presently enrolled in the seventh grade at the District.

For a number of years, the District maintained what the parties identify as a "Reasonable Suspicion Drug Testing Policy" for its students. Staff members of the District, upon having a reasonable suspicion n1 that a student [*3]  is under the influence of a drug or alcohol while at school or a school-related activity, were authorized to require the student to submit to drug or alcohol testing. No student was ever tested under the Reasonable Suspicion Drug Policy.

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n1 According to the policy, reasonable suspicion appears to exist when a student exhibits "at-risk" behaviors or when a drug dog "alerts" to the presence of drugs.

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In addition, the District also maintained a voluntary drug testing policy by which a parent and/or student could request that the student be tested for drug use. One paragraph of the policy notes that the District's School Board "affirms the fact that parents are the main force in influencing their children and should bear the primary responsibility in controlling their children in relation to drug use outside of school hours." (Emphasis in original). According to the parties' stipulations, no parent took advantage of the voluntary drug testing policy, and no student was ever tested under the policy.

On or about [*4]  September 8, 1997, officials from the City of Lockney and Floyd County and school officials met at Lockney City Hall to discuss what they perceived to be community and school drug problems. Three days later, the District's Board of Trustees ("the Board") met to discuss the alleged drug problem in the district; the Board addressed drug testing as a viable option. n2 The District's superintendent then prepared letters to parents and churches, encouraging community members to attend a meeting on September 30, 1997, to discuss and address drug issues. On September 30, 1997, the Lockney community met in the District's high school gymnasium to discuss the perceived drug problems. Audience members posed approximately sixty questions to a panel composed of a drug counselor, juvenile authorities, law enforcement officials, a judge, and a district attorney.

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n2 The Board met again on September 22, 1997, to discuss the perceived drug problems and address the viability of a drug testing policy.

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The Board met again on October 9, 1997, one [*5]  week after the District received a letter from its attorney advising against a mandatory drug testing program in Lockney schools, and voted on whether to approve a mandatory drug testing program for all extracurricular activities. The proposal was defeated by a 4-3 vote; Board members voting against the policy apparently made it clear they would support only a drug testing policy that applied to all students. On October 21, 1997, the Board passed a resolution offering students and parents the opportunity to participate in a voluntary drug testing program.

A bi-annual survey administered to more than 200 students in ninth through twelfth grades in the spring of 1998, the Texas School Survey, n3 concluded that "overall, the use of illicit drugs, and of marijuana in particular, among Lockney ISD secondary students in 1998 was lower than that reported by their counterparts statewide." n4 That same year, on September 29, 1998, nine Lockney residents were arrested and charged with delivery of a controlled substance. Fourteen indictments on a total of eleven individuals were handed down by the Grand Jury. None of those charged or arrested were students of or employed by the District. n5 [*6]  

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n3 The Texas School Survey "is an annual collection of self-reported tobacco, alcohol, inhalant, and substance use data from elementary and/or secondary students in individual districts throughout the State of Texas." It is conducted by the Public Policy Research Institute in conjunction with the Texas Commission on Alcohol and Drug Abuse.

n4 Results of the survey indicate that Lockney students' use of particular substances in their lifetime is slightly higher than the state average in only two categories: tobacco (66% of Lockney students versus 60% state average) and inhalants (22% of Lockney students versus 20% state average). The drug screen used in the District's plan does not test for inhalants.

n5 One witness, however, did testify that the drug dealers were selling to 14-year-olds.

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According to the summary judgment evidence, the Board again discussed a drug testing program in September of 1999. After a survey given to the District's teachers showed a strong desire to implement a mandatory drug [*7]  testing program for students, n6 the Board initially voted on November 2, 1999, to implement a mandatory drug testing plan for all students in the District in grades 6 through 12. A final copy of the policy was approved on December 16, 1999, with implementation scheduled for the first week in February 2000. The parties agree that drug use had not increased in Lockney schools during the period leading up to adoption of the District's drug policy.

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n6 It is not clear how many surveys were distributed. The Court finds that of the 69 respondents who returned the survey, 51 (73.9%) indicated an unequivocal "yes" or similar response to the question, "Do you believe the problems are severe enough to warrant mandatory drug testing?"; 10 (14.5%) indicated an unequivocal "No" answer; 5 (7.2%) indicated they were undecided or equivocated in their answers; and 3 (4.3%) provided no response to the question. However, when asked, "What is your perception of student drug use? (i.e., what is your opinion of percentage of students in Lockney Schools who use some form of drugs)," the estimates varied widely: from 85% to 5% of high school students and 60% to 3% of junior high students. Furthermore, the Court finds that 57 (82.6%) of the respondents replied that "rumor," "hearsay," "gut feelings" or "just guessing" provided some basis for their opinions. Some respondents indicated they included alcohol or tobacco use in estimating their percentage of drug users.

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The District's rationale for the new policy reads as follows:

Based on input from staff, students, community members, parents, and law enforcement officials, it has been determined that there is a significant drug and alcohol use (and possibly abuse in some instances) among students, to a point that warrants implementation of a drug testing program.

The original plan then implemented the following:

All students [in grades six through twelve] and their parents will sign a consent form agreeing to be a part of the drug testing program for Lockney ISD. During initial implementation, all students will take a mandatory drug test, and all students will be involved in random testing equivalent to a minimum of 10% of the group per month. In subsequent years, incoming sixth graders will take a mandatory drug test, and all students, grades six through twelve, will be involved in random testing at an equivalent to a minimum of 10% of the group per month. Students entering the district after the first day will be given the test at the next random testing date. Parental consent for a student to submit to biological testing is required as a condition, grades six through  [*9]   twelve, to be in good standing as a student at Lockney ISD and to be able to participate in activities. Any refusal by the student and/or parent, to sign the consent form will be treated as a positive test, and subject the student to consequences set forth in this policy, and in accordance with [the] student handbook and the Student Code of Conduct.

At the discretion of the principal, superintendent and board of trustees, a mandatory testing of all students may be conducted at any time. n7

(Emphasis in original; alterations added). When a student is tested, he or she is required to produce a urine sample in two bottles. Students and their parents have the opportunity to provide information concerning any prescription medication being taken by the student. Parents may also request to be in attendance during the specimen collection.

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n7 The District deleted all language beginning with the boldfaced type through the remainder of the section when it recently amended its drug testing policy.

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In the [*10]  event that a student tests "positive," n8 the parents or guardians of the student have an opportunity to request a second test using the second bottle. Parents may also choose the certified lab to perform the second test. If the retest results are also "positive," the parents or guardians are financially responsible for the cost of the retest, and the student will be subject to the consequences of the policy, the student code of conduct, and the student handbook.

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n8 In addition to a screen for tobacco use, the drug screen also tests for opiates, cocaine, amphetamines, cannabinoids. phencyclidine, barbiturates, methaqualone, benzodiazepines, methadone, and propoxyphene.

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Pursuant to the drug testing policy, a parent's refusal to consent to drug testing n9 is construed as the equivalent of a "positive" test. With the exception of students testing positive for tobacco, n10 the student's first offense subjected him to, inter alia, suspension from participation in all extracurricular activities for 21 days n11 [*11]  and removal to in-school suspension for a minimum of 3 days. Continued refusal of a parent to consent to the child's being tested for drugs would, as with continued positive test results, result in escalation of the aforementioned punishments, up to placing the child in alternative school and disqualifying him from participating in any activity or receiving any honors for the year. The parties agree that a student removed from extracurricular activities under the policy would be excluded from the activity itself (e.g., school band at football games), as well as enrollment in any academic course offered for credit which the student is required to attend in order to participate in the activity (e.g., band class).

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n9 The parties agree the same consequences would occur for parents or students who withdraw their original consent to the test.

n10 Students testing positive for tobacco are subject to the following consequences:

1. Parents will be notified that their child has tested positive for tobacco use.

2. Sponsors of appropriate extra-curricular activities will be informed of the positive test. This information should be utilized primarily as a mechanism for counseling in the first positive test. For subsequent positive tests, the sponsor may apply consequences as outlined in guidelines for that activity and the Student Code of Conduct.

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n11 The parties stipulate to the following statement:

When a positive drug test causes a student's removal from extracurricular activities, it would be apparent to the activity coach and participants in the activity that the child has tested positive for drugs, since the only reason for a sudden 21-day removal from the activity is the fact that the student tested positive.

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In mid-January of 2000, the parental consent forms were distributed to students. With the exception of the Plaintiffs, all parents consented to have their children submit to the drug test; testing of students and staff occurred February 2-4, 2000. The drug tests indicated that five students or staff members tested positive for marijuana use. Plaintiffs objected and refused to consent to the drug testing policy and properly followed the administrative appeals requirements of the District. Their appeals were denied. Plaintiffs then filed suit for injunctive and declaratory relief.

In all, during the course of drug testing a pool of approximately 400 junior high and senior high students, including the mandatory and [*13]  random drug tests under the District's drug policy, a total of eleven students have tested positive for marijuana use. No students have tested positive for alcohol or any other drugs.

In July of 2000, the District revised its drug testing policy by eliminating the requirement that sixth grade students submit to the mandatory drug tests. In addition, rather than treating a refusal to consent to a drug test the same as a positive test result, the consequence for refusing to consent to a drug test results in "removal from participation in all extracurricular activities until participation in the drug testing program." Furthermore, the parties have stipulated to staying enforcement of the District's drug policy until such time as this dispute is resolved in the courts.

II.

SUMMARY JUDGMENT STANDARDS

Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). [*14]  A dispute about a material fact is "genuine" if the evidence is such that a reasonable factfinder could return a verdict for the non-moving party. Id. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party.  Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED.R.CIV.P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial.  Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion [*15]  for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a factfinder could reasonably find in the non-movant's favor. Id.

III.

ANALYSIS

The Court begins with a recent and straightforward statement by the U.S. Supreme Court regarding suspicionless searches: "The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing." City of Indianapolis v. Edmond,     U.S.    , 148 L. Ed. 2d 333, 121 S. Ct. 447, 451 (2000) (O'Connor, J.) (citing Chandler v. Miller, 520 U.S. 305, 308, 137 L. Ed. 2d 513, 117 S. Ct. 1295 (1997)). The Court encounters such allegations in the case at bar. Although the Supreme Court has upheld the constitutionality of some suspicionless searches which are designed to serve "special needs, beyond the normal need for law enforcement," the Court does not find that such special needs exist in the present case.

A 1989 district court case affirmed by the [*16]  Fifth Circuit Court of Appeals, Brooks v. East Chambers Consol. Indep. Sch. Dist., 730 F. Supp. 759 (S.D. Tex. 1989), aff'd, 930 F.2d 915 (5th Cir. 1991) appears to be controlling on the question at bar. In Brooks, the U.S. District Court for the Southern District of Texas examined a school district's mandatory, suspicionless drug testing program for all students in grades 7-12 who participated in extracurricular activities. n12 Much like the facts presented in the present case, there existed "very little evidence that drug or alcohol abuse by [the district's] students constituted a major problem in the operation of the schools." Id. at 761. (Alterations added). Furthermore, "the school district evidently is responding with its program to a perceived public demand that the schools 'do something' about the general societal problem of substance abuse." Id.

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n12 Interestingly, the district court observed the following about the drug testing program:

The testing program in place at [the District] is the most intrusive of any school district in Texas. It tests the widest range of students, grades seven through twelve -- originally grades six through twelve -- participating in extra-curricular activities. In the [District], that is over half the student body . . . . It is an across-the board, eagle eye examination of personal information of almost every child in the school district. It is difficult to imagine any search of school children being more intrusive.

In the case at bar, this Court is faced with a drug search policy even more intrusive than that addressed in Brooks.

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After determining that a "search of students for drugs by school officials is considered state action," n13 the court analyzed the district's policy to determine whether it violated the Fourth Amendment. At that time, the Supreme Court had previously held that "reasonableness" -- not probable cause -- was the proper standard of determining whether a public school official's search of a student was constitutional under the Fourth Amendment. See New Jersey v. T.L.O., 469 U.S. 325, 343, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985). In other words, the district court required the school district to show either (1) the actions were "based on individualized suspicion that the search will discover evidence of wrongdoing," or (2) the testing program was prompted by the existence of extraordinary circumstances, satisfying a compelling interest analysis.  730 F. Supp. at 764.

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n13 See id. at 762.

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The school district admitted that the general testing program was not based on individual suspicion of drug use. Furthermore,  [*18]  the court found that the district failed to show "that participants in extra-curricular activities are much more likely to use drugs than non-participants, or that drug use by participants interfered with the school's educational mission much more seriously than does drug use by non-participants." Id.

In conclusion, the court found the school district's drug testing policy was unconstitutional:

The intrusion on personal privacy that the school child must undergo in the East Chambers County school system cannot be justified by the global goal of prevention of substance abuse. The urinalysis program is unsupported by the compelling interest the school authorities must have before they can implement the warrantless searches of the pupils.

 Id. at 766. The Fifth Circuit Court of Appeals affirmed the district court without opinion in 1991.

As noted above, Brooks appears to be dispositive of the main question in this case. The District, however, argues that Brooks has been overruled by the United States Supreme Court and subsequent Fifth Circuit authority. The Court declines at this time to make such a determination, however, as the District has failed to [*19]  make the requisite showing of "special needs" under these subsequent cases.

The U.S. Supreme Court examined the constitutionality of suspicionless drug testing four years after Brooks was affirmed, in Vernonia School Dist.