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Could all public school students soon be subject to random, suspicionless drug testing? According to dissenting Judge Kenneth F. Ripple, without further clarification and refinement of the Vernonia standard applied in Todd, the Seventh Circuit Court of Appeals grant of summary judgment for Rush County Schools could be a step in just that direction. Todd v. Rush County Schools, 139 F.3d 571 (7th Cir. 1998). January 12, 1998, the Seventh Circuit used the Vernonia standard in holding that the Rush County Schools District's drug testing program was not a violation of the students Fourth or Fourteenth amendment constitutional rights.

The drug testing program requires students wishing to participate in extracurricular activities to consent to random suspicionless urine testing for nicotine, alcohol and unlawful drug use. Any student failing the drug test is given the opportunity to retest or explain the result by showing that they are lawfully taking medication, or that they have some other lawful excuse. After failing two tests or without satisfactory explanation, the student is barred from participating in extracurricular activities.

The court relied heavily on the decision in Vernonia which held that random drug testing of interscholastic athletes was not in violation of the constitution in reaching it's holding. According to Vernonia, the reasonableness of drug testing was to be determined by balancing the legitimate governmental interests with the intrusion of the persons Fourth Amendment rights.

The Seventh Circuit points out the similarities of Vernonia and the present case by indicating that successful extracurricular activities require healthy students. Further, the court points out that these activities, like organized athletics, are a privilege. Where the student is benefited from participation in the activities, the court found that bearing the burden of this additional obligation is not unreasonable, especially where these students have voluntarily chosen to participate.

In his dissent, Ripple, joined by Judge Rovner, emphasized the fact that athletes generally expect a lesser degree of privacy, that the Vernonia School District was facing a drug crisis, and that drug influenced athletic participants pose a threat of physical harm to the other participants. The dissent also points out that under the logic given by the majority, there appears to be no principled limitation for extending Vernonia student drug testing in public schools where academic pursuits also require healthy students.

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