Summary Legal Opinion on Drug Testing and Searches in Schools March 2003 This document is a summary of a legal opinion drafted by YOUTHLAW TINO RANGATIRATANGA TAITAMARIKI on the subject of the legality of drug testing and searching students in schools. For a more in-depth analysis of these issues, including an examination of relevant statutory and case law from New Zealand and abroad, we urge you to consult the full opinion, which is available from us upon request. Drug testing and searches in schools is an issue that has attracted recent media attention, and since 1997 many New Zealand schools have adopted drug search and testing policies. However, these policies are of dubious legality, as they raise serious legal questions which this summary will briefly address. In addition drug searches and testing of school students remains unregulated by the Education Review Office and the Ministry of Education. Even the New Zealand Police has not provided our office with information on the nature and number of searches they undertook in schools in the last year. I. A. PROCEDURES FOR DRUG TESTING Available Tests and Methods
There are many methods available to test a student for drugs. These range from simple patdown body searches to requiring the student to produce a urine sample for chemical analysis. Despite its intrusiveness, urinalysis remains by far the most frequently used testing method. Urinalysis is particularly intrusive, as test subjects are frequently required to disrobe and urinate under direct supervision by a monitor of the same sex. According to numerous reports, the subjects nearly always find this experience humiliating and degrading. B. Accuracy of the Test Results
Even when monitors follow the strictest collection procedures, there are questions concerning the accuracy of the test results. This is so because many students try to get a negative result by adding adulterants to the sample. This can be done simply by adding eye drops, dish soap, bleach, vinegar, or drain cleaner. In response to these attempts, monitors may wish to observe the student closely as he or she urinates. Likewise, monitors frequently resort to requiring the students to disrobe to ensure they do not possess any adulterating substances. Sometimes, however, adding these substances will return not only a false negative, but a false positive as well. Even more startling, there are several common, legal substances which may trick a test into returning a false positive. Among these are chemicals found in certain eye drops, antihistamines, and the over-the-counter drug ibuprofen, available in Aspirin-like substances. Interpreting a test result, even if accurate, may prove difficult. For instance, a negative result does not necessarily mean that the student has not used the drug. It may mean that he or she has used the drug, but not frequently enough or in a great enough quantity to be detectable by the test. Likewise, a positive result is often not very informative. If accurate, a positive result means
only that a student has consumed an unknown quantity of the drug at an unknown time in the past. A test cannot determine when the drug was used. This is problematic, because traces of drugs such as cannabis can remain in the system for up to 3 ½ weeks after consumption. Similarly, if a person had just consumed cannabis immediately before the taking of a sample, the test would be incapable of detecting that consumption. Even more important, a drug test cannot measure the impairment of the student. In fact, someone who has tested negative may actually suffer from greater impairment than someone who tests positive. C. School Policies on Drug Testing and Searches
There is a lack of information held nationally about individual schools’ policies on student drug testing and drug searches. Accordingly public information on policies usually becomes available when there is media interest in the issues. This does not however provide a muchneeded overview of the policies. In 1997 one school publicly declared its intention to test students with a ‘testing kit’ despite allegations that the kit was inaccurate. Any student testing positive would be automatically suspended. According to the school, refusal to consent to the test would lead to a negative inference being drawn about the student’s drug use. Our client case work informs us that police sniffer dogs search students and school premises for illegal drugs but the police have not provided us with data on the number and location of such searches. II. A. AUTHORITY OF SCHOOLS UNDER THE EDUCATION ACT 1989 Extent of Managerial Authority of Principals and Boards
Sections 72, 75 and 76 of the Education Act 1989 give the Principal and Board of a state or integrated school very wide latitude to direct the control and management of the school. Nonetheless, the Act makes very clear that this power is subordinate to the “general law” of New Zealand as well as any other statutory enactment. Thus, a school may not adopt or enforce any policy contrary to laws such as the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, the common law, or New Zealand’s obligations under the U.N. Convention on the Rights of the Child. These laws confer on all students a set of rights and freedoms, which the school cannot undermine. B. Managerial and Disciplinary Jurisdiction
The authority of the school is also limited to matters which reasonably relate to the control or management of the school. To that end, if a school were to carry out a drug testing program, it would need to establish that the drug use occurred on school property, in school time, or in a manner which affected the learning environment of the school. This jurisdictional approach is clearly supported by guidelines issued by the Ministry of Education. However, a positive result, as we have seen, will not disclose when the consumption of the drug occurred. Therefore, on the basis of a positive result alone, it will be impossible to establish that the school has jurisdiction over the student. After all, a positive result can mean that the student consumed the drug nearly a month prior to the test. If that consumption took place at a Saturday-night party with friends, the school would not be able to assert jurisdiction over the student. Again, a positive result will not show impairment, but only past use of a drug. If the student
is not impaired in a way that affects his or her school performance or the learning environment of the classroom, a school would lack jurisdiction to discipline a student for a positive test result. III. A. NEW ZEALAND BILL OF RIGHTS ACT 1990 Applicability of the Bill of Rights to the School
Under section 3(b), the rights contained in the Bill of Rights Act apply only to acts done by the state or other agencies performing public functions and duties pursuant to law. This clearly includes state and integrated schools, which exercise authority pursuant to the Education Act 1989. In our view it also applies to private schools, as they are registered under the Act to perform a public function and receive government funding. B. Unreasonable Search and Seizure
Section 21 of the Bill of Rights Act provides that everyone has the right to be secure against unreasonable searches and seizures. The Court of Appeal has ruled that a “search” is an examination of a person or property, and that a “seizure” is a taking of what is discovered. Given this definition, it is clear that compelled collection and testing of an intimate bodily fluid falls within the meaning of section 21. Likewise, relying on bodily searches and “sniffer dogs” to search for evidence of wrongdoing also fits this definition. The legality of any search depends on its reasonableness. Many Courts have developed a “balancing test” to determine whether a search is reasonable. On one hand, courts will assess the need or justification for the search. This interest will be balanced against the extent to which the search intrudes upon the student. The first part of the test – the need for a search – will focus on factors such as whether there is a widespread problem of drug abuse at the school. The need for the search may also depend on whether there are reasonable grounds for suspecting that a particular student has used drugs at school. Thus, if a school cannot satisfy either of these inquiries and relies on random and suspicionless tests, the equities will likely tip against the school. Even if there is a genuine problem, other disciplinary measures exist for school authorities, which may undermine the need for the test. Of course, if a student’s behaviour is sufficiently disruptive as to satisfy section 14(1) of the Education Act 1989, a Principal may decide to stand-down or suspend the student, without subjecting him or her to an intrusive drug test. Thus, such testing may be wholly unnecessary. This need for a search will be balanced against the intrusiveness of the test. The focus of this inquiry may centre on the “reasonable expectations of privacy” of the student as well as the physical intrusiveness of the test. Given the expectation of students that their privacy interests will be secure at school, the intrusive nature of procedures such as urine testing, as well as the unreliability of the information obtained, the balance of interests would likely tip in favour of the student. Police Searches Some schools have tried to circumvent section 21 by contacting the police to have them carry out searches of students. Under the Misuse of Drugs Act 1975, the police are given very broad powers of search and seizure. Notwithstanding, sections 18(2) and 18(3) of this Act require that the police have reasonable grounds for suspecting that a person is in possession of an illegal drug before a search can
be carried out. Therefore, if the school does not have reasonable suspicion, it will certainly not be able to provide the police with the statutory grounds for carrying out a search. Even if a school possesses the requisite reasonable suspicion, it should be cautious about calling the police into the classroom. Clearly, the presence of police constables and sniffer dogs is highly disruptive and would seriously undermine the learning environment at the school. Some police searches with drug sniffer dogs are carried out pursuant to a warrant issued under section 18(1) of the Misuse of Drugs Act. However, warrants should not be issued unless the police reasonably believe they will find illegal drugs on the premises. Accordingly media reports of “drug raids” producing no illicit substances raise the possibility that the warrant was in fact issued without sufficient grounds. It is important to note that there is no provision in law for police to carry out “deterrent” searches. When a warrant is issued to search premises, the Police are entitled to search anyone on the premises at the time the warrant is executed. Of course this would include students in a school. However, if the warrant were to be examined later in court proceedings, the court might properly enquire into the chosen time to exercise the warrant (i.e. was it deliberately timed to ‘net’ as many students as possible) in addition to the validity of its issue. Consent to Search Schools may wish to try to obtain the student’s consent to search. However, it is often difficult to obtain a consent which is legally valid. Many courts, including the House of Lords, have ruled that a valid consent must evidence a sufficient understanding and appreciation of the nature, implications, and consequences of consenting (i.e. Gillick competence must be assessed). When consent issues are addressed by a health professional, that person will need to inform the student of the benefits of the proposed procedure (in addition to other matters, in accordance with the Code of Health and Disability Services Consumers’ Rights). This may well require the practitioner to stray into the area of the legal sanctions available to Principals and Boards pursuant to the Education Act 1989. By way of analogy, the Criminal Investigations (Blood Samples) Act 1995 provides that a person who consents to giving a blood sample may withdraw the consent at any time. Also, the Act directs the police to inform the subject that he or she is under no obligation to consent. The Act also establishes that any person under 14 years of age can never give a valid consent, thus evidencing Parliament’s concern over the ease with which young persons might be misled into consenting without a sufficient appreciation of the consequences. Schools must therefore take all measures necessary to ensure that a student is informed of all the consequences of consenting to a drug test. In addition, a student should be informed that he or she does not have to consent and that the consent may be withdrawn at any time. Of course, the school should make sure that the student actually understands the implications and consequences of consenting. If consent is to be freely given, no negative inferences can attach to a student’s decision not to consent to the test. Such a policy would operate as a penalty on the exercise of that student’s right not to take the test, and would clearly invalidate the consent. C. Arbitrary Detention
Section 22 of the Bill of the Rights provides that every person has the right not to be arbitrarily detained. Obviously, compelling a student to take a drug test will involve some form of detention. It is arguable, and the Court of Appeal has suggested, that unless a school reasonably suspects that there is a widespread drug problem at the school or with a particular student, detaining a student for testing would be “arbitrary” and thus prohibited by this section. D. Degrading and Inhumane Treatment
Sections 9 and 23(5) of the Bill of Rights provide that all persons have a right not to be subjected to cruel, degrading, or disproportionately severe treatment, and that anyone deprived of liberty must be treated with humanity and respect for the inherent dignity of the person. As we have outlined above, compelling a student to urinate under direct observation by a same-sex monitor quite possibly will amount to cruel, degrading, or disproportionately severe treatment, manifesting little respect for the inherent dignity of the person. E. Self-Incrimination
Sections 23 and 25 of the Bill of Rights Act provide a general right against self-incrimination, which reiterate the right that existed at common law before the enactment of the Bill of Rights. Being suspended or expelled from school is a serious civil penalty, which leads to the forfeiture of the student’s statutory right to attend the school of his or her choice. Thus, being forced to take the test is the equivalent of compelling the student to turn over to authorities evidence which may be used to establish the grounds for severe civil penalties. Likewise, under New Zealand law, use or possession of illegal drugs constitutes a serious crime punishable by fine and imprisonment. Thus, compelling a student to submit to a test, the results of which could establish his or her criminal culpability, would impermissibly jeopardize the student’s right against self-incrimination. By analogy, under the New Zealand Sports Drug Agency Act 1994, Parliament has provided that test results obtained from an athlete may not be used against him or her in subsequent criminal proceedings. No such safeguards exist to protect the student. F. Natural Justice
Section 27 of the Bill of Rights Act requires that a student be treated in accordance with the principles of natural justice when his or her rights are determined. This clearly includes the right of the student to be treated in a manner which is fundamentally fair. However, there are questions about the fairness of using drug test results as a basis for disciplinary action. As we have seen, the results may be inaccurate, and nonetheless will be susceptible to many scientifically valid interpretations. Of course, natural justice will also place the burden of proof on school authorities to show that the student has consumed drugs within the school’s jurisdiction and in contravention of the school’s stated policy. Parliament has clearly been concerned about the fairness of such testing. Both the New Zealand Sports Drug Agency Act 1994 and the Criminal Investigations (Blood Samples) Act 1995 provide extremely rigid procedural safeguards for taking and using samples of bodily fluids. Unfortunately, no such safeguards exist with respect to drug testing in schools.
G.
Justified Limitations
Section 5 of the Bill of Rights Act specifies that the rights discussed above may be subject to reasonable limits which are prescribed by law and demonstrably justifiable in a free and democratic society. The onus would be on the school to show that a limitation applied, instead of the right. The school would also need to show that the limitation was necessary for a free and democratic society. This would undoubtedly be a difficult task, especially if the school could not demonstrate a necessity for drug testing, as discussed above in Part III-B. Of course, a limitation would need to be reasonable as well. This inquiry might require a balancing of the need for the limitation against the right of the student to be secure in his or her rights. Any limitation would also need to be authorized by law, as evidenced from the text of the section. However, as we have seen, under the Education Act 1989, the school’s power is expressly subordinate to enactments such as the New Zealand Bill of Rights Act 1990. Thus, it is arguable that New Zealand law does not authorize schools to limit any of the provisions of the Bill of Rights. Therefore, it is questionable whether a school could assert a “justified limitations” defence. This is especially so in light of the courts’ reluctant to narrow or limit the Bill of Rights, unless clearly mandated to do so by law. IV. UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
New Zealand has not incorporated the provisions of this Convention into a statutory enactment, but it is obliged, by virtue of its ratification of the agreement, to give effect to these provisions. Many of the articles of the Convention are directly relevant to the issue of testing in schools. For instance, article 3.1 provides that the best interests of the child must be given primary consideration by a school. Thus, the most important consideration for the school must be, not the school’s reputation or the importance of “sending a message” to the community or the students, but rather whether subjecting a student to a degrading and intrusive test is truly in that student’s best interests. Article 19 provides that countries must protect children from all forms of maltreatment. Article 37 similarly requires that no child be subjected to inhuman or degrading treatment. This article also provides a guarantee against arbitrary detention. Also, if the child is detained, he or she must be treated with humanity and respect for the inherent dignity of the human person. Article 28 mandates that school discipline be administered consistently with the child’s human dignity. As we have discussed above, there are serious questions about the dignity and humanity of requiring students to urinate into a vial under direct observation by a same-sex monitor. Likewise, in the absence of an identified need for the testing, detention for drug testing might be considered arbitrary. V. PRIVACY ACT 1993
A.
Applicability of the Privacy Act to Drug Testing in Schools
The Privacy Act 1993 covers the collection of personal information by an agency. Because of its broad definition of the terms “agency” and “personal information”, it is clear that these provisions apply to drug testing in schools. B. Relevant Privacy Principles
Principle I prohibits information from being taken unless it is necessary for a lawful purpose connected with an activity of the agency. Since the Education Act 1989 defines a school’s authority in terms of controlling the management and administration of the school, this is presumably the authority a school would assert to collect information. However, a school must establish that the collection of information is necessary for that purpose. If it cannot be shown that a serious problem of drug abuse exists which affects the control and management of the school – a problem that cannot be addressed without drug testing – collection of this information could be deemed unnecessary. Likewise, the questionable reliability of test results would undermine the need for their use. Principle 3 imposes many procedural obligations on the collection of information. For instance, before the information can be collected, a school must inform the student of the purpose for which he or she is being tested, the recipients of the information, the consequences of failing to provide the information, as well as the rights of access to the information. Principle 4 provides that information may not be taken from an individual by unlawful means, or by methods which are unfair, or unreasonably intrude upon the personal affairs of the individual. There are questions about the fairness of using ambiguous test results as the basis for disciplinary action. As we have seen, some test procedures are highly intrusive, and may also be barred by this principle. Similarly, if a competent authority determined drug testing to be unlawful, under the Bill of Rights Act for instance, this principle would impose a further ban on collecting information by those means. Principle 8 requires that an agency take reasonable steps to ensure that the information collected is accurate, relevant, and not misleading. As examined above, there are many ways to adulterate urine samples, which may result in false negative and false positive results. This principle may impose an obligation on a school to have results verified by an independent agency before using them. This principle also prohibits an agency from using irrelevant information. Since a positive test result will not show the variables that the school needs to look for (such as impairment or time of drug use), the information may be irrelevant. Likewise, this principle prohibits an agency from using misleading information. Because of ambiguity in interpretation, test results may be considered misleading, the use of which would be prohibited by this principle. Principles 10 & 11 limit the disclosure and use of personal information. Principle 10 provides that information may not be used for purposes other than those for which the information was collected. Likewise, principle 11 forbids the disclosure of information, except in narrow circumstances. Both principles, however, envisage exceptions to these rules if disclosure is necessary for law enforcement reasons. Given the broad powers of search and seizure that the police enjoy pursuant to the Misuse of Drugs Act 1975, the normal route of law enforcement seems sufficient to detect and punish those who use illegal drugs. Therefore, it is arguable that disclosure of this information is not necessary. CONCLUSION
It is clear that under New Zealand law, drug testing is the exception and not the rule. Parliament has authorized such tests only in the narrowest of circumstances and has enacted strict safeguards to protect many of the rights we have discussed above. Drug testing policies will be likely to infringe students’ rights under the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, as well as the U.N. Convention on the Rights of the Child, and are illegal in all but the most extreme circumstances. Such circumstances might include cases in which there is a serious and widespread problem of drug abuse at the school. Also, limited testing might be permissible if there are reasonable grounds to suspect that a particular student’s drug use is such that it interferes with his or her activities at school or the learning environment of the school. School Principals and Boards must be mindful that express authority to test and search students clearly does not exist for schools. Thus until this area is regulated, be it as a result of litigation or inquiry, Principals and Boards need to keep statutory rights and freedoms firmly to the forefront of their minds. For a more comprehensive look into the legal ramifications of drug testing policies, we strongly urge you to read the full opinion drafted by YOUTHLAW TINO RANGATIRATANGA TAITAMARIKI, which is available from us upon request. We will be happy to discuss these matters with you further. Please feel free to contact our lawyers at your convenience by email at info@youthlaw.co.nz or by phone at (09) 309 6967 or by fax at (09) 3075243.
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