Joye v. Hunterdon Central Regional High School Board of Education , 353 N.J. Super. 600 ( 2002 )

EICHEN, J.A.D.,

dissenting.

I respectfully dissent and would affirm the late Judge Guterl’s order granting a permanent injunction¹ enjoining Hunterdon Central High School Board of Education from continuing its program of random drug testing essentially for the reasons given by Judge Guterl in his well-reasoned, thoughtful, and comprehensive single-spaced, ten-page decision issued on October 18, 2000, which was based solely on the New Jersey State Constitution. I agree with Judge Guterl that all of the targeted students had an undiminished privacy expectation in their excretory functions and that in the absence of any showing of a particularized special need for the testing, Hunterdon’s random drug testing program is unreasonable and therefore violates Article I, Paragraph 7 of the New Jersey Constitution.

The majority believes that it is bound by Board of Education, Independent School District No. 92 of Pottawatomie County v. Earls, — U.S. -, 122 S.Ct. 2559, 153 L. Ed.2d 735 (2002), to decide this case under the Fourth Amendment of the United States Constitution. The majority perceives nothing in the history or background of the State Constitution that would allow our courts to interpret the constitutionality of the random drug testing program differently from that of the United States Supreme Court under the Fourth Amendment. The majority also feels constrained by the fact that the issue does not arise in the context of a criminal case involving traditional search and seizure issues, but instead arises in the civil or administrative context, in an area where the expectation of privacy is already diminished because the rights affected are those of school children.

I believe the majority’s view is too restrictive and would rely on the inherent authority of our Supreme Court that encourages judges to find greater protection where the search and seizure at. issue is clearly unreasonable as it is here. For purposes of this opinion, I incorporate the recitation of the factual background set forth by Judge Guterl in his written decision.

Hunterdon Central Regional High School Board of Education is responsible for the operation of Hunterdon Central High School under the immediate supervision of the Acting Superintendent of Schools, Judith Gray. Hunterdon Central High School is located on Route 31 in Flemington, New Jersey, and provides secondary education to approximately 2,500 students enrolled in grades 9-12. Since 1987 Hunterdon Central has been actively involved in efforts to deter student use of illegal drugs and alcohol as well as counseling and assisting students who have become victims of drugs and alcohol abuse. Hunterdon Central also provides anti-drug awareness programs in classes and through student assemblies, has established a program for professional counseling of students and their families, has from time to time cooperated with the Hunterdon County Prosecutor’s Office in the conduct of searches aided by drug sniffing dogs and has implemented suspicion-based drug testing.

Notwithstanding those efforts, there was a perception by school authorities in 1995 that the use of illegal drugs and alcohol by Hunterdon Central students remained a significant problem which initially lead [sic] to the administration of the American Drug and Alcohol Survey ² to the school population and, thereafter, to the establishment of a program of random drug testing for athletes. That program has been conducted without prior challenge for the last three years, during which time Hunterdon Central has continued to examine the subject of drug abuse among its students. The results of those continued studies have recently motivated Hunterdon Central to expand the random drug testing program to include all students involved in extra-curricular activities or authorized to park an automobile on school properly. Hunterdon Central does not contend that any of its studies have shown that the students singled out for random testing are more likely than other students to be abusing drugs.³ (Emphasis added)

In State v. Hempele, 120 N.J. 182, 196-97, 576 A.2d 793 (1990), our Supreme Court explained our responsibility as judges to determine the rights of our citizens independently under our own constitution when confronted with a decision under the Fourth Amendment that detracts from our strong tradition of protecting privacy rights against unreasonable searches and seizures:

In interpreting the New Jersey Constitution, we look for direction to the United States Supreme Court, whose opinions can provide “valuable sources of wisdom for us.” State v. Hunt, 91 N.J. 338, 355, 450 A.2d 952 (1982) (Pashman, J., concurring). But although that Court may be a polestar that guides us as we navigate the New Jersey Constitution, we bear ultimate responsibility for the safe passage of our ship. Our eyes must not be so fixed on that star that wo risk the welfare of our passengers on the shoals of constitutional doctrine. In interpreting the New Jersey Constitution, we must look in front of us as well as above us.

For most of our country’s history, the primary source of protection of individual rights has been state constitutions, not the federal Bill of Rights. See Abraham-son, Reincarnation of State Courts, 56 Sw.L.J. 951 (1981). The genius of federalism is that the fundamental rights of citizens are protected not only by the United States Constitution but also by the laws of each of the states. The system may be untidy on occasion, but that untidiness invests it with “a vibrant diversity.” Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Tex. L.Rev. 977, 979 (1985). “As tempting as it may be to harmonize results under the state and federal constitutions, federalism contemplated that state courts may grant greater protection to individual rights if they choose.” Id. at 980.

When the United States Constitution affords our citizens less protection than does the New Jersey Constitution, we have not merely the authority to give full effect to the State protection, we have the duty to do so. Every judicial officer in New Jersey takes an oath to “support the Constitution of this State____” N.J.S.A 41:2A-6. Bound to fulfill our covenant with the people of New Jersey, we must “respectfully part company” with the Supreme Court when we find that it has provided our citizens with “inadequate protection against unreasonable searches and seizures____” State v. Alston, 88 N.J. 211, 226, 440 A.2d 1311 (1981). In so doing, we manifest no disrespect for the nation’s highest court but merely honor our “obligation to uphold [our] own constitution.” State v. Bund, 119 N.J. 35, 38, 573 A.2d 1376, (1990) (Pollock, J., concurring).

Cognizant of the diversify of laws, customs, and mores within its jurisdiction, the United States Supreme Court is necessarily “hesitant to impose on a national level far-reaching constitutional rules binding on each and every state.” Hunt, supra, 91 N.J. at 358, 450 A.2d 952 (Pashman, J., concurring). That Court establishes no more than the floor of constitutional protection. State v. Gilmore, 103 N.J. 508, 524, 511 A.2d 1150 (1986).

[Hempele, supra, 120 N.J. at 196-97, 576 A.2d 793 (parallel citations omitted); cf Hon Dennis J. Braithwaite, An Analysis of the “Divergence Factors”: A Misguided Approach to Search and Seizure Jurisprudence Under the New Jersey Constitution, 33 Rutgers L.J. 1, 23-26 (2002).]

While Hempele is of course a search and seizure criminal case, its precepts deal broadly with the power of our courts to reach a different conclusion under the State Constitution where, as here, a governmental authority intrudes impermissibly into areas affecting personal liberty, whether that authority be the police or a public official with parens patrie responsibility. This should be the case irrespective of the context in which the case arises so long as the issue involves a claim of illegal search and seizure that threatens our cherished privacy rights under our State Constitution.

In my view, there is nothing that our Supreme Court stated in N.J. Transit PBA Local 304 v. N.J. Transit Corp., 151 N.J. 531, 701 A.2d 1243 (1997), that suggests that, because the Court employed the so-called federal “special needs” analytical framework to decide whether a random drug testing program passed constitutional muster, that the decision limits our courts’ inherent authority to decide a ease brought under the New Jersey Constitution differently from that of the United States Supreme Court under the Fourth Amendment.⁴

“Special needs” in the context of student searches by school officials has its roots in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L. Ed.2d 720 (1985), where the United States Supreme Court held for the first time that the Fourth Amendment’s customary probable cause standard should not apply in a school setting. Instead, the Court announced a “reasonableness standard” which it believed would “ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools.” T.L.O., supra, 469 U.S. at 341-42, 105 S.Ct. at 733, 83 L. Ed.2d at 734-35. The phrase “special needs” was introduced by Justice Blackmun in his concurring opinion in T.L.O. because of his concerns about rejecting the probable cause standard solely because it was impracticable to obtain a warrant in the school environment. T.L.O., supra, 469 U.S. at 351, 105 S.Ct. at 733, 83 L. Ed.2d at 741 (Blackmun, J., concurring) (“Only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement make the warrant and probable cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the framers”).

Despite the lessened expectation of privacy afforded school children under the United States Constitution, New Jersey has a long tradition requiring some quantum of individualized suspicion as a prerequisite to a constitutional search and seizure. See State v. Smith, 134 N.J. 599, 616, 637 A.2d 158 (1994). I believe that the principle of “individualized suspicion” has been transmuted into the “special needs” requirement adopted by our Supreme Court in N.J. Transit, supra, and that that requirement must be met to justify the governmental purpose of initiating random drug testing programs in this state. See N.J. Transit, supra, 151 N.J. at 531, 701 A.2d 1243.

The United States Supreme Court employed the phrase “special needs” after T.L.O. in Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 2391, 132 L. Ed.2d 564, 574 (1995). There, the Court used the concept in determining to uphold random drug testing of athletes by an Oregon school district. However, in Vemonia, a “special need” was found on the facts presented due solely to “an alarming situation”: “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion ... fueled by alcohol and drug abuse as well as the students’] misperceptions about the drug culture.” See Earls, supra, — U.S. at-, 122 S.Ct. at 2575, 153 L. Ed.2d at-(Ginsburg, J., dissenting opinion) (quoting Vernonia, supra, 515 U.S. at 649, 115 S.Ct. at 2388, 132 L. Ed.2d at 572) (internal quotation marks omitted). In upholding the policy of random drug testing of athletes as “reasonable,” in Vemonia, the United States Supreme Court found, on the facts presented, an “immediate crisis” in the school which impacted the teachers’ custodial responsibilities, thus creating a “‘substantial need of teachers and administrators for freedom to maintain order in the schools.’” Vernonia, supra, 515 U.S. at 653, 115 S.Ct. at 2390, 132 L. Ed.2d at 574 (quoting T.L.O., supra, 469 U.S. at 341, 105 S.Ct. at 742, 83 L. Ed.2d at 734). Accordingly, the Court found “the severity of the need” justified the random drug testing of athletes in light of “the decreased expectation of privacy” of the student athletes and “the relative unobtrusiveness of the search.” Vernonia, supra, 515 U.S. at 657, 115 S.Ct. at 2396, 132 L. Ed.2d at 577.

Thereafter, in Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L. Ed.2d 513 (1997), the United States Supreme Court found unconstitutional a Georgia policy requiring certain candidates for public office to submit to drug testing. There, Justice Ginsburg, writing for an eight-member majority, explained that to successfully make the case that a “special need” exists, the government must demonstrate a “concrete danger demanding departure from the Fourth Amendment’s main rule.” Chandler, supra, 520 U.S. at 319, 117 S.Ct. at 1295, 137 L.Ed.2d at 526 (emphasis added).

Despite those precedents, in a five-four decision delivered by Justice Thomas, the United States Supreme Court in Earls interpreted the “special needs” requirement as satisfied without a showing of the severity of the need in the particular school based solely on the “nationwide epidemic of drug use” among the student population. Earls, supra, — U.S. at-, 122 S.Ct. at 2568, 153 L. Ed.2d at-. The Court concluded that the need to prevent and deter students from taking drugs, irrespective of the level of drug problem in the targeted group was a special need. Writing for the Court, Justice Thomas stated that the difference in the levels of expectation of privacy in Vemonia (athletic extra-curricular activities) and Earls (non-athletic extra-curricular activities) was “not essential” to the Court’s decision in Vemonia because that decision depended on “the school’s custodial responsibility and authority” not on the diminished expectation of privacy of athletes. Ibid. According to the majority, the intrusiveness is the same irrespective of the nature of the student activities.

In an insightful dissenting opinion, Justice Ginsburg, joined by Justices Stevens, O’Connor and Souter, criticized the majority’s approval of the program in the absence of any demonstrated “special need ... [to maintain] ... swift and informal disciplinary procedures ... [and] order in the schools.” Earls, supra, — U.S. at-, 122 S.Ct. at 2565, 153 L. Ed.2d at-(Ginsburg, J., dissenting) (quoting Vernonia, 515 U.S. at 653, 115 S.Ct. at 2386, 132 L. Ed. 2d at 574) (internal quotation marks omitted). Justice Ginsburg explained that in Vemonia the “Court concluded that a public school district facing a disruptive and explosive drug abuse problem sparked by members of its athletic teams had ‘special needs’ that justified suspicionless testing of district athletes as a condition of their athletic participation.” Earls, supra, — U.S. at -, 122 S.Ct. at 2572, 153 L. Ed.2d at - (Ginsburg, J., dissenting). But she also stated that Vemonia “cannot be read to endorse invasive and suspieionless drug testing of all students.” Ibid.

The facts in Earls and the instant case are essentially the same: that is, there was no “immediate crisis,” in either case and, therefore, no need for the immediate exercise of the “school’s custodial responsibility and authority” justifying intrusion into the students’ personal privacy; there was only a generalized showing that the entire student body’s involvement with drugs and alcohol was basically comparable to that of the national average. Nonetheless, the Earls Court decided that it was acceptable to suspend our children’s rights in the name of waging war on drugs. We should not follow this unprecedented lead.

In her dissent, Justice Ginsburg explains the flaw in the majority’s view in Earls. Basically, she maintains that the anti-drug message and “the desire to augment communication of this message [should] not trump the right of persons — even of children within the schoolhouse gate — to be “secure in their persons ... against unreasonable searches and seizures.” She emphasizes the importance of teaching students by example, distinguishing the “custodial” responsibility from the “tutelary” responsibility of teachers for their students. Earls, supra, — U.S. at-, 122 S.Ct. at 2577, 153 L. Ed.2d at-(Ginsburg, J., dissenting). Her argument is powerful and has persuaded me that the New Jersey Constitution must be interpreted to afford greater rights to students than the Fourth Amendment in these circumstances where no crisis exists and no safety concerns have been demonstrated. This is what Justice Ginsburg stated:

In Chandler, the Court referred to a pathmarking dissenting opinion in which Justice Brandéis recognized the importance of teaching by example: Our Government is the potent, the omnipresent teacher. Por good or for ill, it teaches the whole people by its example. That wisdom should guide decision-makers in the instant case: The government is nowhere more a teacher than when it runs a public school.

It is a sad irony that the petitioning School District seeks to justify its edict here by trumpeting the schools’ custodial and tutelary responsibility for children. In regulating an athletic program or endeavoring to combat an exploding drug epidemic, a school’s custodial obligations may permit searches that would otherwise unacceptably abridge students’ rights. When custodial duties are not ascendant, however, schools’ tutelary obligations to their students require them to “teach by example” by avoiding symbolic measures that diminish constitutional protections. That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

[Earls, supra, — U.S. at-, 122 S.Ct. at 2577, 158 L. Ed.2d at-(Ginsburg, J., dissenting) (emphasis added) (internal quotations and citations omitted).]

For the reasons stated herein, I would adopt Justice Ginsburg’s analysis in Earls as New Jersey’s constitutional law in the circumstances of this case and affirm the trial court’s order declaring Hunterdon Central Board of Education’s random drug testing program unconstitutional under Article I, Paragraph 7 of the New Jersey Constitution.

1 We reviewed this case on the trial court’s grant of a permanent injunction, treating the matter as a grant of summary judgment by consent of the parties.

2 The survey of students who "have ever tried a drug” showed that Hunter-don’s percentages are, in most instances, less than the national average, and where they are not the percentages are not so diverse.

3 The Hunterdon drug testing program is similar to the program in Earls, supra. Hence, in the words of dissenting Justice Ginsburg, it is not just "[unreasonable,” but "capricious, even perverse" for it "targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects." Earls, supra,-U.S. at-, 122 S.Ct. at 2572, 153 L. Ed.2d at -— (Ginsburg, J., dissenting). As for the testing of the athletes, there has been no showing of any special drug abuse problems in this student population to justify random drug testing of them. Cf. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L. Ed.2d 564 (1995).

4 To the extent Desilets v. Clearview Bd. of Educ., 265 N.J.Super. 370, 627 A.2d 667 (App.Div.1993), concludes otherwise, I disagree with it. The fact that our Supreme Court analyzed the search and seizure issue under the Fourth Amendment in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L. Ed.2d 720 (1985), is not dispositive of the question whether our constitution or even our common law would protect against the search and seizure in this random drug testing case as there is no indication the T.L.O. Court was even called upon to address the issue there under our constitution. Moreover, Desilets was decided before N.J. Transit applied the "special need" analytical framework to the issue.