Student Review:

        The central question this law review article attempts to answer is "whether the United States Supreme Court's acceptance of suspicionless drug testing of student athletes is a hysterical overreaction or whether this crisis serves as a compelling state interest justifying a measured intrusion on constitutional rights.
      In Acton, the Court noted that generally a warrant and probable cause are required for a search to be reasonable.
However, the Court went on to say that these requirements do not apply to an administrative search when "special needs"
make them impractical. Because a school setting is different and the state has a compelling interest in maintaining order,
"special needs" exist and therefore a warrant and probable cause are not needed in these situations. In fact, the Court
emphasized that the school district acted in its "custodial and tutelary" capacity often acting in the place of parents.
        The author argues that the Acton Court sidestepped much of the holding of New Jersey v. TLO. In TLO, the Court held that school officials "act as representatives of the state...and they cannot claim the parents' immunity from the strictures of the Fourth Amendment." Instead, the Acton Court chose to focus on the states custodial and tutelary" role. By using these terms, the Court was able to establish that students have an even further reduced expectation of privacy.
        The author also disputes the majority's rejection of a suspicion-based test. The Court stated that it was concerned about an accused student having to wear his own scarlet letter. However, the author points out that a student who tests positive would be subjected to this same fate.
        The note leaves us with two additional questions. First, is there adequate support for singling out student athletes? The second question is whether Acton sets the stage for random drug testing of all students? The Court is unclear in answering these questions. On one hand, the Court says "We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts." However the Court later says "the most significant element in this case is that the policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and  tutor of children entrusted to its care." The Supreme Court has not given us a definitive answer.

Article Summary by: Marc Sneed
Wake Forest University School of Law 1996