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Two recent drug testing cases have asked the court to examine current drug testing policies.

1) In Willis v. Anderson Community Sch., Willis, a freshman high school student, was suspended for fighting. The school's policies indicated that upon Willis' return to school he would have to submit to a drug test. The school's policy mandated testing for any student who possesses or uses tobacco, is suspended for fighting, or violates other identified school rules. Willis refused to undertake the test and was informed that he would then be considered to have engaged in drug use and would again be suspended. Willis brought an action against the school claiming that the policy violated his Fourth and Fourteenth Amendment rights.

The school asserted that this policy was necessary because research data demonstrated a "causal nexus" between drug use and violent behavior, such as fighting with classmates. The appeals court did not agree.

On appeal, the court distinguished this case from other cases involving drug testing policies in high school, those involving student athletes. For example, in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), the court identified differences in the privacy interest involved, between drug testing of student athletes and the general student population, which made testing more acceptable in the case of student athletes. First, the very nature of participation in sport requires a greater compromise of privacy given the factor of communal undress in the locker room. Second, and more significantly, drug testing of student athletes is more acceptable as student athletes choose to play sports and thus submit to greater regulation, including like drug testing. The court followed this rationale in allowing the drug testing policy in, Todd v. Rush County Schools, 133 F.3d 984 (7th Cir. 1998) (found in You Make The Call. . ., Vol. 1, Iss. 1).

In this case the court rejected Anderson's policy primarily because the school's data did not support the policy reasons identified, that is, there was not a strong casual link between behaviors like fighting, and drug use. Finally, the court stated that it was important to prohibit this type of policy, and as a result to prevent routine drug testing of all students.

2) In Walton-Floyd v. U.S. Olympic Comm. (USOC), an athlete banned from competition for failing a drug test brought an action against the USOC for breaching its duty of care.

The athlete was issued a card that listed several banned substances and a phone number to call for a complete list of banned substances. The instructions on the card directed that it was the responsibility of the athlete to call the hotline and to be aware of all the banned substances included. The athlete and her husband both claimed that they called the number numerous times to check on a particular substance, Sydnocarb. The hotline operator told them on each call that the substance was permitted. The drug test that disqualified the athlete indicated the presence of amphetamines which were produced by Syndnocard.

The athlete asserted that the USOC was negligent because of the erroneous information provided to her via the hotline. She also suggested that the USOC breached its duty by not keeping hotline officials up to date on the status of Syndnocard. The USOC countered stating that the Amateur Sports Act 36 U.S.C.A. §§ 371-396, did not create any legal duty of care for the USOC to protect a governed athlete. In other words, the USOC had no mandated responsibility to athletes to make them aware of banned substances. Additionally, the USOC claimed that as a charitable organization it was not liable for damages.

The court held that there was no cause of action allowed under the Amateur Sports Act in this situation, and that the USOC assumed no duty of care toward the athlete under the Amateur Sports Act.

These decisions indicate that drug testing can still be required at the high school and Olympic level. In general, a policy applying to students-athletes is likely to be permitted, if it is not administered arbitrarily and categorically. If students are involved in an activity that already compromises their privacy interest, such as athletics, drug testing is usually allowed. However, merely testing all students is still too extreme. Additionally, the administration of a policy will be evaluated on a case by case basis. In the case of organizational policies, like the USOC's drug testing policy, those who must submit bare the responsibility of compliance to the standards set forth in the policy. Misinformation, seemingly, is not excuse to policy standards clearly set out beforehand.

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