|Vernonia Sch. Dist. 47J v. Acton (94-590), 515 U.S. 646 (1995). |
[ Scalia ]
[ Ginsburg ]
[ O'Connor ]
VERNONIA SCHOOL DISTRICT 47J, PETITIONER v. WAYNE
ACTON, et ux., etc.
on writ of certiorari to the united states court of appeals for the ninth circuit
But whether a blanket search is "better," ante, at 18, than a regime based on individualized suspicion is not a debate in which we should engage. In my view, it is not open to judges or government officials to decide on policy grounds which is better and which is worse. For most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment. And we have allowed exceptions in recent years only where it has been clear that a suspicion based regime would be ineffectual. Because that is not the case here, I dissent.
In Carroll v. United States, 267 U.S. 132 (1925), the Court explained that "[t]he Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable." Id., at 147. Applying this standard, the Court first held that a search of a car was not unreasonable merely because it was warrantless; because obtaining a warrant is impractical for an easily movable object such as a car, the Court explained, a warrant is not required. The Court also held, however, that a warrantless car search was unreasonable unless supported by some level of individualized suspicion, namely probable cause. Significantly, the Court did not base its conclusion on the express probable cause requirement contained in the Warrant Clause, which, as just noted, the Court found inapplicable. Rather, the Court rested its views on "what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted" and "[what] will conserve public interests as well as the interests and rights of individual citizens." Id., at 149. With respect to the "rights of individual citizens," the Court eventually offered the simple yet powerful intuition that "those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise." Id., at 154.
More important for the purposes of this case, the Court clearly indicated that evenhanded treatment was no substitute for the individualized suspicion requirement:
"It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search." Id., at 153-154.
The Carroll Court's view that blanket searches are "intolerable and unreasonable" is well grounded in history. As recently confirmed in one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken, see W. Cuddihy, The Fourth Amendment: Origins and Original Meaning (1990) (Ph.D. Dissertation at Claremont Graduate School) (hereinafter Cuddihy), what the Framers of the Fourth Amendment most strongly opposed, with limited exceptions wholly inapplicable here, were general searches--that is, searches by general warrant, by writ of assistance, by broad statute, or by any other similar authority. See id., at 1402, 1499, 1555; see also Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 Mem. St. U. L. Rev. 483, 528 (1994); Maclin, When the Cure for the Fourth Amendment Is Worse Than the Disease, 68 S. Cal. L. Rev. 1, 9-12 (1994); L. Levy, Original Intent and the Framers' Constitution 221-246 (1988). Although, ironically, such warrants, writs, and statutes typically required individualized suspicion, see, e.g., Cuddihy 1140 ("Typical of the American warrants of 1761-76 was Starke's `tobacco' warrant, which commanded its bearer to `enter any suspected Houses' ") (emphasis added), such requirements were subjective and largely unenforceable. Accordingly, these various forms of authority led in practice to "virtually unrestrained," and hence "general," searches. J. Landynski, Search and Seizure and the Supreme Court 20 (1966). To be sure, the Fourth Amendment, in the Warrant Clause, prohibits by name only searches by general warrants. But that was only because the abuses of the general warrant were particularly vivid in the minds of the Framers' generation, Cuddihy 1554-1560, and not because the Framers viewed other kinds of general searches as any less unreasonable. "Prohibition of the general warrant was part of a larger scheme to extinguish general searches categorically." Id., at 1499.
More important, there is no indication in the historical materials that the Framers' opposition to general searches stemmed solely from the fact that they allowed officials to single out individuals for arbitrary reasons, and thus that officials could render them reasonable simply by making sure to extend their search to every house in a given area or to every person in a given group. See Delaware v. Prouse, 440 U.S. 648, 664 (1979) (Rehnquist, J., dissenting) (referring to this as the "`misery loves company'" theory of the Fourth Amendment). On the contrary, although general searches were typically arbitrary, they were not invariably so. Some general searches, for example, were of the arguably evenhanded "door to door" kind. Cuddihy 1091; see also id., at 377, 1502, 1557. Indeed, Cuddihy's descriptions of a few blanket searches suggests they may have been considered more worrisome than the typical general search. See id., at 575 ("One type of warrant [between 1700 and 1760] went beyond a general search, in which the searcher entered and inspected suspicious places, by requiring him to search entire categories of places whether he suspected them or not"); id., at 478 ("During the exigencies of Queen Anne's War, two colonies even authorized searches in 1706 that extended to entire geographic areas, not just to suspicious houses in a district, as conventional general warrants allowed").
Perhaps most telling of all, as reflected in the text of the Warrant Clause, the particular way the Framers chose to curb the abuses of general warrants--and by implication, all general searches--was not to impose a novel "evenhandedness" requirement; it was to retain the individualized suspicion requirement contained in the typical general warrant, but to make that requirement meaningful and enforceable, for instance, by raising the required level of individualized suspicion to objective probable cause. See U. S. Const., Amdt. 4. So, for example, when the same Congress that proposed the Fourth Amendment authorized duty collectors to search for concealed goods subject to import duties, specific warrants were required for searches on land; but even for searches at sea, where warrants were impractical and thus not required, Congress nonetheless limited officials to searching only those ships and vessels "in which [a collector] shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed." The Collection Act of July 31, 1789, §24, 1 Stat. 43 (emphasis added); see also Cuddihy 1490-1491 ("The Collection Act of 1789 was [the] most significant [of all early search statutes], for it identified the techniques of search and seizure that the framers of the amendment believed reasonable while they were framing it"). Not surprisingly, the Carroll Court relied on this statute and other subsequent ones like it in arriving at its views. See Carroll, 267 U. S., at 150-151, 154; cf. Clancy, supra, at 489 ("While the plain language of the Amendment does not mandate individualized suspicion as a necessary component of all searches and seizures, the historical record demonstrates that the framers believed that individualized suspicion was an inherent quality of reasonable searches and seizures").
True, not all searches around the time the Fourth Amendment was adopted required individualized suspicion--although most did. A search incident to arrest was an obvious example of one that did not, see Cuddihy 1518, but even those searches shared the essential characteristics that distinguish suspicion based searches from abusive general searches: they only "affec[t] one person at a time," Krull, 480U. S., at 365 (O'Connor, J., dissenting), and they are generally avoidable by refraining from wrongdoing. See supra, at 1-2. Protection of privacy, not evenhandedness, was then and is now the touchstone of the Fourth Amendment.
The view that mass, suspicionless searches, however evenhanded, are generally unreasonable remains inviolate in the criminal law enforcement context, see Ybarra v. Illinois, 444 U.S. 85 (1979) (invalidating evenhanded, nonaccusatory patdown for weapons of all patrons in a tavern in which there was probable cause to think drug dealing was going on), at least where the search is more than minimally intrusive, see Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (upholding the brief and easily avoidable detention, for purposes of observing signs of intoxication, of all motorists approaching a roadblock). It is worth noting in this regard that state compelled, state monitored collection and testing of urine, while perhaps not the most intrusive of searches, see, e. g., Bell v. Wolfish, 441 U.S. 520, 558-560 (1979) (visual body cavity searches), is still "particularly destructive of privacy and offensive to personal dignity." Treasury Employees v. Von Raab, 489 U.S. 656, 680 (1989) (Scalia, J., dissenting); see also ante, at 11; Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 617 (1989). We have not hesitated to treat monitored bowel movements as highly intrusive (even in the special border search context), compare United States v. Martinez Fuerte, 428 U.S. 543 (1976) (brief interrogative stops of all motorists crossing certain border checkpoint reasonable without individualized suspicion), with United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (monitored bowel movement of border crossers reasonable only upon reasonable suspicion of alimentary canal smuggling), and it is not easy to draw a distinction. See Fried, Privacy, 77 Yale L. J. 475, 487 (1968) ("[I]n our culture the excretory functions are shielded by more or less absolute privacy"). And certainly monitored urination combined with urine testing is more intrusive than some personal searches we have said trigger Fourth Amendment protections in the past. See, e. g., Cupp v. Murphy, 412 U.S. 291, 295 (1973) (Stewart, J.) (characterizing the scraping of dirt from under a person's fingernails as a "`severe, though brief, intrusion upon cherished personal security'"). Finally, the collection and testing of urine is, of course, a search of a person, one of only four categories of suspect searches the Constitution mentions by name. See U. S. Const., Amdt. 4 (listing "persons, houses, papers, and effects"); cf. Cuddihy 835, 1518, 1552, n. 394 (indicating long history of outrage at personal searches before 1789).
Thus, it remains the law that the police cannot, say, subject to drug testing every person entering or leaving a certain drug ridden neighborhood in order to find evidence of crime. 3 W. LaFave, Search and Seizure §9.5(b), pp. 551-553 (2d ed. 1987) (hereinafter LaFave). And this is true even though it is hard to think of a more compelling government interest than the need to fight the scourge of drugs on our streets and in our neighborhoods. Nor could it be otherwise, for if being evenhanded were enough to justify evaluating a search regime under an open ended balancing test, the Warrant Clause, which presupposes that there is some category of searches for which individualized suspicion is non negotiable, see 2 LaFave §4.1, at 118, would be a dead letter.
Outside the criminal context, however, in response to the exigencies of modern life, our cases have upheld several evenhanded blanket searches, including some that are more than minimally intrusive, after balancing the invasion of privacy against the government's strong need. Most of these cases, of course, are distinguishable insofar as they involved searches either not of a personally intrusive nature, such as searches of closely regulated businesses, see, e. g., New York v. Burger, 482 U.S. 691, 699-703 (1987); cf. Cuddihy 1501 ("Even the states with the strongest constitutional restrictions on general searches had long exposed commercial establishments to warrantless inspection"), or arising in unique contexts such as prisons, see, e. g., Wolfish, supra, at 558-560 (visual body cavity searches of prisoners following contact visits); cf. Cuddihy 1516-1519, 1552-1553 (indicating that searches incident to arrest and prisoner searches were the only common personal searches at time of founding). This certainly explains why Justice Scalia, in his dissent in our recent Von Raab decision, found it significant that "[u]ntil today this Court had upheld a bodily search separate from arrest and without individualized suspicion of wrong doing only with respect to prison inmates, relying upon the uniquely dangerous nature of that environment." Von Raab, supra, at 680 (citation omitted).
In any event, in many of the cases that can be distinguished on the grounds suggested above and, more important, in all of the cases that cannot, see, e.g., Skinner, supra (blanket drug testing scheme); Von Raab, supra (same); cf. Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967) (area wide searches of private residences), we upheld the suspicionless search only after first recognizing the Fourth Amendment's longstanding preference for a suspicion based search regime, and then pointing to sound reasons why such a regime would likely be ineffectual under the unusual circumstances presented. In Skinner, for example, we stated outright that "`some quantum of individualized suspicion' " is "usually required" under the Fourth Amendment, Skinner, supra, at 624, quoting Martinez Fuerte, 428 U. S., at 560, and we built the requirement into the test we announced: "In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion." Ibid. (emphasis added). The obvious negative implication of this reasoning is that, if such an individualized suspicion requirement would not place the government's objectives in jeopardy, the requirement should not be forsaken. See also Von Raab, supra, at 665-666.
Accordingly, we upheld the suspicionless regime at issue in Skinner on the firm understanding that a requirement of individualized suspicion for testing train operators for drug or alcohol impairment following serious train accidents would be unworkable because "the scene of a serious rail accident is chaotic." Skinner, 489 U. S., at 631. (Of course, it could be plausibly argued that the fact that testing occurred only after train operators were involved in serious train accidents amounted to an individualized suspicion requirement in all but name, in light of the record evidence of a strong link between serious train accidents and drug and alcohol use.) We have performed a similar inquiry in the other cases as well. See Von Raab, supra, at 674 (suspicion requirement for searches of customs officials for drug impairment impractical because "not feasible to subject [such] employees and their work product to the kind of day to day scrutiny that is the norm in more traditional office environments"); Camara, supra, at 537 (suspicion requirement for searches of homes for safety code violations impractical because conditions such as "faulty wiring" not observable from outside of house); see also Wolfish, 441 U. S., at 559, n. 40 (suspicion requirement for searches of prisoners for smuggling following contact visits impractical because observation necessary to gain suspicion would cause "obvious disruption of the confidentiality and intimacy that these visits are intended to afford"); Martinez Fuerte, supra, at 557 ("A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens"); United States v. Edwards, 498 F. 2d 496, 500 (CA2 1974) (Friendly, J.) (suspicion based searches of airport passengers' carry on luggage impractical because of the great number of plane travelers and "conceded inapplicability" of the profile method of detecting hijackers).
Moreover, an individualized suspicion requirement was often impractical in these cases because they involved situations in which even one undetected instance of wrongdoing could have injurious consequences for a great number of people. See, e.g., Camara, supra, at 535 (even one safety code violation can cause "fires and epidemics [that] ravage large urban areas"); Skinner, supra, at 628 (even one drug or alcohol impaired train operator can lead to the "disastrous consequences" of a train wreck, such as "great human loss"); Von Raab, supra, at 670, 674, 677 (even one customs official caught up in drugs can, by virtue of impairment, susceptibility to bribes, or indifference, result in the noninterdiction of a "sizable drug shipmen[t]," which eventually injures the lives of thousands, or to a breach of "national security"); Edwards, supra, at 500 (even one hijacked airplane can destroy " `hundreds of human lives and millions of dollars of property' ").
The instant case stands in marked contrast. One searches today's majority opinion in vain for recognition that history and precedent establish that individualized suspicion is "usually required" under the Fourth Amendment (regardless of whether a warrant and probable cause are also required) and that, in the area of intrusive personal searches, the only recognized exception is for situations in which a suspicion based scheme would be likely ineffectual. See supra, at 9-10. Far from acknowledging anything special about individualized suspicion, the Court treats a suspicion based regime as if it were just any run of the mill, less intrusive alternative--that is, an alternative that officials may bypass if the lesser intrusion, in their reasonable estimation, is outweighed by policy concerns unrelated to practicability.
As an initial matter, I have serious doubts whether the Court is right that the District reasonably found that the lesser intrusion of a suspicion based testing program outweighed its genuine concerns for the adversarial nature of such a program, and for its abuses. See ante, at 17-18. For one thing, there are significant safeguards against abuses. The fear that a suspicion based regime will lead to the testing of "troublesome but not drug likely" students, id., at 17, for example, ignores that the required level of suspicion in the school context is objectively reasonable suspicion. In this respect, the facts of our decision in New Jersey v. T. L. O., 469 U.S. 325 (1985), should be reassuring. There, we found reasonable suspicion to search a ninth grade girl's purse for cigarettes after a teacher caught the girl smoking in the bathroom with a companion who admitted it. See id., at 328, 345-346. Moreover, any distress arising from what turns out to be a false accusation can be minimized by keeping the entire process confidential.
For another thing, the District's concern for the adversarial nature of a suspicion based regime (which appears to extend even to those who are rightly accused) seems to ignore the fact that such a regime would not exist in a vacuum. Schools already have adversarial, disciplinary schemes that require teachers and administrators in many areas besides drug use to investigate student wrongdoing (often by means of accusatory searches); to make determinations about whether the wrongdoing occurred; and to impose punishment. To such a scheme, suspicion based drug testing would be only a minor addition. The District's own elaborate disciplinary scheme is reflected in its handbook, which, among other things, lists the following disciplinary "problem areas" carrying serious sanctions: "DEFIANCE OF AUTHORITY," "DISORDERLY OR DISRUPTIVE CONDUCT INCLUDING FOUL LANGUAGE," "AUTOMOBILE USE OR MISUSE," "FORGERY OR LYING," "GAMBLING," "THEFT," "TOBACCO," "MISCHIEF," "VANDALISM," "RECKLESSLY ENDANGERING," "MENACING OR HARASSMENT," "ASSAULT," "FIGHTING," "WEAPONS," "EXTORTION," "EXPLOSIVE DEVICES," and "ARSON." Record, Exh. 2, p. 11; see also id., at 20-21 (listing rules regulating dress and grooming, public displays of affection, and the wearing of hats inside); cf. id., at 8 ("RESPONSIBILITIES OF SCHOOLS" include "To develop and distribute to parents and students reasonable rules and regulations governing student behavior and attendance" and "To provide fair and reasonable standards of conduct and to enforce those standards through appropriate disciplinary action"). The high number of disciplinary referrals in the record in this case illustrates the District's robust scheme in action.
In addition to overstating its concerns with a suspicion based program, the District seems to have understated the extent to which such a program is less intrusive of students' privacy. By invading the privacy of a few students rather than many (nationwide, of thousands rather than millions), and by giving potential search targets substantial control over whether they will, in fact, be searched, a suspicion based scheme is significantly less intrusive.
In any event, whether the Court is right that the District reasonably weighed the lesser intrusion of a suspicion based scheme against its policy concerns is beside the point. As stated, a suspicion based search regime is not just any less intrusive alternative; the individualized suspicion requirement has a legal pedigree as old as the Fourth Amendment itself, and it may not be easily cast aside in the name of policy concerns. It may only be forsaken, our cases in the personal search context have established, if a suspicion based regime would likely be ineffectual.
But having misconstrued the fundamental role of the individualized suspicion requirement in Fourth Amendment analysis, the Court never seriously engages the practicality of such a requirement in the instant case. And that failure is crucial because nowhere is it less clear that an individualized suspicion requirement would be ineffectual than in the school context. In most schools, the entire pool of potential search targets--students--is under constant supervision by teachers and administrators and coaches, be it in classrooms, hallways, or locker rooms. See T. L. O., 469 U. S., at 339 ("[A] proper educational environment requires close supervision of schoolchildren").
The record here indicates that the Vernonia schools are no exception. The great irony of this case is that most (though not all) of the evidence the District introduced to justify its suspicionless drug testing program consisted of first or second hand stories of particular, identifiable students acting in ways that plainly gave rise to reasonable suspicion of in school drug use--and thus that would have justified a drug related search under our T. L. O. decision. See id., at 340-342 (warrant and probable cause not required for school searches; reasonable suspicion sufficient). Small groups of students, for example, were observed by a teacher "passing joints back and forth" across the street at a restaurant before school and during school hours. Tr. 67 (Apr. 29, 1992). Another group was caught skipping school and using drugs at one of the students' houses. See id., at 93-94. Several students actually admitted their drug use to school officials (some of them being caught with marijuana pipes). See id., at 24. One student presented himself to his teacher as "clearly obviously inebriated" and had to be sent home. Id., at 68. Still another was observed dancing and singing at the top of his voice in the back of the classroom; when the teacher asked what was going on, he replied, "Well, I'm just high on life." Id., at 89-90. To take a final example, on a certain road trip, the school wrestling coach smelled marijuana smoke in a hotel room occupied by four wrestlers, see id., at 110-112, an observation that (after some questioning) would probably have given him reasonable suspicion to test one or all of them. Cf. 4 LaFave §10.11(b), at 169 ("[I]n most instances the evidence of wrongdoing prompting teachers or principals to conduct searches is sufficiently detailed and specific to meet the traditional probable cause test").
In light of all this evidence of drug use by particular students, there is a substantial basis for concluding that a vigorous regime of suspicion based testing (for which the District appears already to have rules in place, see Record, Exh. 2, at 14, 17) would have gone a long way toward solving Vernonia's school drug problem while preserving the Fourth Amendment rights of James Acton and others like him. And were there any doubt about such a conclusion, it is removed by indications in the record that suspicion based testing could have been supplemented by an equally vigorous campaign to have Vernonia's parents encourage their children to submit to the District's voluntary drug testing program. See id., at 32 (describing the voluntary program); ante, at 19 (noting widespread parental support for drug testing). In these circumstances, the Fourth Amendment dictates that a mass, suspicionless search regime is categorically unreasonable.
I recognize that a suspicion based scheme, even where reasonably effective in controlling in school drug use, may not be as effective as a mass, suspicionless testing regime. In one sense, that is obviously true--just as it is obviously true that suspicion based law enforcement is not as effective as mass, suspicionless enforcement might be. "But there is nothing new in the realization" that Fourth Amendment protections come with a price. Arizona v. Hicks, 480 U.S. 321, 329 (1987). Indeed, the price we pay is higher in the criminal context, given that police do not closely observe the entire class of potential search targets (all citizens in the area) and must ordinarily adhere to the rigid requirements of a warrant and probable cause.
The principal counterargument to all this, central to the Court's opinion, is that the Fourth Amendment is more lenient with respect to school searches. That is no doubt correct, for, as the Court explains, ante, at 8-10, schools have traditionally had special guardian like responsibilities for children that necessitate a degree of constitutional leeway. This principle explains the considerable Fourth Amendment leeway we gave school officials in T. L. O. In that case, we held that children at school do not enjoy two of the Fourth Amendment's traditional categorical protections against unreasonable searches and seizures: the warrant requirement and the probable cause requirement. See T. L. O., 469 U. S., at 337-343. And this was true even though the same children enjoy such protections "in a nonschool setting." Id., at 348 (Powell, J., concurring).
The instant case, however, asks whether the Fourth Amendment is even more lenient than that, i.e., whether it is so lenient that students may be deprived of the Fourth Amendment's only remaining, and most basic, categorical protection: its strong preference for an individualized suspicion requirement, with its accompanying antipathy toward personally intrusive, blanket searches of mostly innocent people. It is not at all clear that people in prison lack this categorical protection, see Wolfish, 441 U. S., at 558-560 (upholding certain suspicionless searches of prison inmates); but cf. supra, at 10 (indicating why suspicion requirement was impractical in Wolfish), and we have said "we are not yet ready to hold that the schools and the prisons need be equated for purposes of the Fourth Amendment." T. L. O., supra, at 338-339. Thus, if we are to mean what we often proclaim--that students do not "shed their constitutional rights . . . at the schoolhouse gate," Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969)--the answer must plainly be no. [n.1]
For the contrary position, the Court relies on cases such as T. L. O., Ingraham v. Wright, 430 U.S. 651 (1977), and Goss v. Lopez, 419 U.S. 565 (1975). See ante, at 8-10. But I find the Court's reliance on these cases ironic. If anything, they affirm that schools have substantial constitutional leeway in carrying out their traditional mission of responding to particularized wrongdoing. See T. L. O., supra (leeway in investigating particularized wrongdoing); Ingraham, supra (leeway in punishing particularized wrongdoing); Goss, supra (leeway in choosing procedures by which particularized wrongdoing is punished).
By contrast, intrusive, blanket searches of school children, most of whom are innocent, for evidence of serious wrongdoing are not part of any traditional school function of which I am aware. Indeed, many schools, like many parents, prefer to trust their children unless given reason to do otherwise. As James Acton's father said on the witness stand, "[suspicionless testing] sends a message to children that are trying to be responsible citizens . . . that they have to prove that they're innocent . . . , and I think that kind of sets a bad tone for citizenship." Tr. 9 (Apr. 29, 1992).
I find unpersuasive the Court's reliance, ante, at 10, on the widespread practice of physical examinations and vaccinations, which are both blanket searches of a sort. Of course, for these practices to have any Fourth Amendment significance, the Court has to assume that these physical exams and vaccinations are typically "required" to a similar extent that urine testing and collection is required in the instant case, i.e., that they are required regardless of parental objection and that some meaningful sanction attaches to the failure to submit. In any event, without forming any particular view of such searches, it is worth noting that a suspicion requirement for vaccinations is not merely impractical; it is nonsensical, for vaccinations are not searches for anything in particular and so there is nothing about which to be suspicious. Nor is this saying anything new; it is the same theory on which, in part, we have repeatedly upheld certain inventory searches. See, e.g., South Dakota v. Opperman, 428 U.S. 364, 370, n. 5 (1976) ("The probable cause approach is unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions"). As for physical examinations, the practicability of a suspicion requirement is highly doubtful because the conditions for which these physical exams ordinarily search, such as latent heart conditions, do not manifest themselves in observable behavior the way school drug use does. See supra, at 14.
It might also be noted that physical exams (and of course vaccinations) are not searches for conditions that reflect wrongdoing on the part of the student, and so are wholly nonaccusatory and have no consequences that can be regarded as punitive. These facts may explain the absence of Fourth Amendment challenges to such searches. By contrast, although I agree with the Court that the accusatory nature of the District's testing program is diluted by making it a blanket one, any testing program that searches for conditions plainly reflecting serious wrongdoing can never be made wholly nonaccusatory from the student's perspective, the motives for the program notwithstanding; and for the same reason, the substantial consequences that can flow from a positive test, such as suspension from sports, are invariably--and quite reasonably--understood as punishment. The best proof that the District's testing program is to some extent accusatory can be found in James Acton's own explanation on the witness stand as to why he did not want to submit to drug testing: "Because I feel that they have no reason to think I was taking drugs." Tr. 13 (Apr. 29, 1992). It is hard to think of a manner of explanation that resonates more intensely in our Fourth Amendment tradition than this.
I do not believe that suspicionless drug testing is justified on these facts. But even if I agreed that some such testing were reasonable here, I see two other Fourth Amendment flaws in the District's program. [n.2] First, and most serious, there is virtually no evidence in the record of a drug problem at the Washington Grade School, which includes the 7th and 8th grades, and which Acton attended when this litigation began. This is not surprising, given that, of the four witnesses who testified to drug related incidents, three were teachers and/or coaches at the high school, see Tr. 65; id., at 86; id., at 99, and the fourth, though the principal of the grade school at the time of the litigation, had been employed as principal of the high school during the years leading up to (and beyond) the implementation of the drug testing policy. See id., at 17. The only evidence of a grade school drug problem that my review of the record uncovered is a "guarantee" by the late arriving grade school principal that "our problems we've had in '88 and '89 didn't start at the high school level. They started in the elementary school." Id., at 43. But I would hope that a single assertion of this sort would not serve as an adequate basis on which to uphold mass, suspicionless drug testing of two entire grades of student athletes--in Vernonia and, by the Court's reasoning, in other school districts as well. Perhaps there is a drug problem at the grade school, but one would not know it from this record. At the least, then, I would insist that the parties and the District Court address this issue on remand.
Second, even as to the high school, I find unreasonable the school's choice of student athletes as the class to subject to suspicionless testing--a choice that appears to have been driven more by a belief in what would pass constitutional muster, see id., at 45-47 (indicating that the original program was targeted at students involved in any extracurricular activity), than by a belief in what was required to meet the District's principal disciplinary concern. Reading the full record in this case, as well as the District Court's authoritative summary of it, 796 F. Supp. 1354, 1356-1357 (Ore. 1992), it seems quite obvious that the true driving force behind the District's adoption of its drug testing program was the need to combat the rise in drug related disorder and disruption in its classrooms and around campus. I mean no criticism of the strength of that interest. On the contrary, where the record demonstrates the existence of such a problem, that interest seems self evidently compelling. "Without first establishing discipline and maintaining order, teachers cannot begin to educate their students." T. L. O., 469 U. S., at 350 (Powell, J., concurring). And the record in this case surely demonstrates there was a drug related discipline problem in Vernonia of " `epidemic proportions.' " 796 F. Supp., at 1357. The evidence of a drug related sports injury problem at Vernonia, by contrast, was considerably weaker.
On this record, then, it seems to me that the far more reasonable choice would have been to focus on the class of students found to have violated published school rules against severe disruption in class and around campus, see Record, Exh. 2, at 9, 11--disruption that had a strong nexus to drug use, as the District established at trial. Such a choice would share two of the virtues of a suspicion based regime: testing dramatically fewer students, tens as against hundreds, and giving students control, through their behavior, over the likelihood that they would be tested. Moreover, there would be a reduced concern for the accusatory nature of the search, because the Court's feared "badge of shame," ante, at 17, would already exist, due to the antecedent accusation and finding of severe disruption. In a lesser known aspect of Skinner, we upheld an analogous testing scheme with little hesitation. See Skinner, 489 U. S., at 611 (describing " `Authorization to Test for Cause' " scheme, according to which train operators would be tested "in the event of certain specific rule violations, including noncompliance with a signal and excessive speeding").
It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis. But we must also stay mindful that not all government responses to such times are hysterical overreactions; some crises are quite real, and when they are, they serve precisely as the compelling state interest that we have said may justify a measured intrusion on constitutional rights. The only way for judges to mediate these conflicting impulses is to do what they should do anyway: stay close to the record in each case that appears before them, and make their judgments based on that alone. Having reviewed the record here, I cannot avoid the conclusion that the District's suspicionless policy of testing all student athletes sweeps too broadly, and too imprecisely, to be reasonable under the Fourth Amendment.
1 The Court says I pay short shrift to the original meaning of the Fourth Amendment as it relates to searches of public school children. See ante, at 19, n. 4. As an initial matter, the historical materials on what the Framers thought of official searches of children, let alone of public school children (the concept of which did not exist at the time, see id., at 6, n. 1), are extremely scarce. Perhaps because of this, the Court does not itself offer an account of the original meaning, but rather resorts to the general proposition that children had fewer recognized rights at the time of the framing than they do today. But that proposition seems uniquely unhelpful in the present case, for although children may have had fewer rights against the private schoolmaster at the time of the framing than they have against public school officials today, parents plainly had greater rights then than now. At the time of the framing, for example, the fact that a child's parents refused to authorize a private schoolmaster's search of the child would probably have rendered any such search unlawful; after all, at common law, the source of the schoolmaster's authority over a child was a delegation of the parent's authority. See id., at 8. Today, of course, the fact that a child's parents refuse to authorize a public school search of the child--as James Acton's parents refused here--is of little constitutional moment. Cf. Ingraham v. Wright, 430 U.S. 651, 662, n. 22 (1977) ("parental approval of corporal punishment is not constitutionally required").
2 Because I agree with the Court that we may assume the District's program allows students to confine the advanced disclosure of highly personal prescription medications to the testing lab, see ante, at 13-14, I also agree that Skinner controls this aspect of the case, and so do not count the disclosure requirement among the program's flaws.