Endi starter Packet

Adopting a constitutional standard of probable cause would alleviate two impacts.

First, the reasonable suspicion standard for cell phone searches specifically expands school power.

In effect, Lisa Thurau explains that:

With the passage of the Gun Free School Zones Act of 1990, 23 the merging of school administrators and police as forces of law and order within schools led to complex arrangements, including the delegation and division of authority and labor. The result has been confusion among police and administrators that continues to this day. This confusion focuses on where administrators’ disciplinary roles stop and police powers begin, what conduct should be handled exclusively by school disciplinarians, and what conduct becomes an arrestable offense. Students, parents, teachers, the courts, and legislatures experience this confusion. Massachusetts is no different. Administrators were granted expansive authority, effectively the equivalent of police powers, in the name of safety, order, and discipline to conduct investigations and search students’ property and persons.24 This “Fourth Amendment lite” imposed no obligations on administrators to notify students that the information they collected would be provided to the police and that prosecution could follow.25 The advantage of this approach was that it increased the number of searches and neatly circumvented Miranda v. Arizona.26 Massachusetts’s highest court codified this approach in Commonwealth v. Ira I,27 holding that school administrators who conduct searches of students are not agents of the police—and whatever they obtain in the course of such a search may be turned over to SROs or police officers for prosecution.28 The court also declined the juvenile’s “invitation to overrule the portion of Commonwealth v. Snyder29 that concluded that the Miranda rule does not apply to a ‘school administrator who is acting neither as an instrument of the police nor as an agent of the police.’”30 The court came to this conclusion based on the absence of any record showing that “the police directed, controlled, or otherwise initiated or influenced” the school administrator’s conduct.31 This decision, like so many others across the country, rendered youth who are obligated to attend school by mandatory attendance laws, effectively without constitutional protection to object to a search by a school administrator. It empowered school administrators to serve in both roles—as police and as minister of justice at an intermediate or ultimate level of authority, depending on whether the case is passed off to the police or allowed to result in a school-based disciplinary action.

And, these searches turned out to not be random – the Harvard Law Review concluded in 2015:

[Harvard Law Review, “Policing Students,” APR 10, 2015, 128 Harv. L. Rev. 1747, http://harvardlawreview.org/2015/04/policing-students/ // ENDI-JM ]

The Reasonable Suspicion Standard Interacts Problematically with Criminalized Schools. — As many scholars have described, the burdens of increasingly criminalized public schools fall most heavily on racial minorities, children with disabilities, and children from low-income families. Studies show that racial disparities are largest where the offense — be it a violation of a school rule or a law — requires a subjective determination, that is, something like “Disturbing Schools” rather than weapon possession. That subjective violations are disproportionately enforced against minority students could very well indicate that police in schools are more likely to have their “reasonable suspicion” raised against such students. If police are more likely to view a particular action as disruptive if it is performed by a minority student than if it is performed by a white student, then police may be more likely to view behaviors exhibited by minority students as suspicious, even if no conscious racism is involved. Additionally, minority students are more likely to feel the full weight of student searches’ practical harms because those students are more likely to face criminal charges for anything found [in] incident to those searches.

This is corroborated by the US Department of Education in 2012:

[Adrienne Green, 8-26-2015, "The Feds Want Schools to Practice Race-Based Discipline—and Teachers Aren't Happy," Atlantic, http://www.theatlantic.com/education/archive/2015/08/teachers-say-no-disparate-impact-discipline/402144/ // ENDI-JM]

A growing body of evidence has long revealed discriminatory tendencies in the ways school districts dole out discipline. Black and Latino students are much more likely to be disciplined and suffer greater rates of in- and out-of-school suspensions. Of the 49 million students enrolled in public schools in the 2011-12 school year, close to 7 million were suspended, about half of them out of school. According to the U.S. Department of Education’s Civil Rights Data Collection, black students were suspended and expelled at a rate three times greater than were white students.

And Donna Lieberman finds in 2007 that

Donna Lieberman, 2007, "The Impact of School Suspensions, and a Demand for Passage of the Student Safety Act," No Publication, http://www.nyclu.org/content/impact-of-school-suspensions-and-demand-passage-of-student-safety-act // ENDI - DY

Testimony Of Donna Lieberman On Behalf Of The New York Civil Liberties Union before The New York City Council Committees On Education And Civil Rights Regarding The Impact Of Suspensions On Students’ Education Rights Council Member Jackson and members of the City Council’s Education and Civil Rights Committees: My name is Donna Lieberman, and I appear before you today on behalf of the New York Civil Liberties Union (“NYCLU”) and its 48,000 members statewide. Since 1951, the NYCLU has been the state’s leading advocate on behalf of New Yorkers’ civil rights and civil liberties. In March 2007, the NYCLU released a report on the impact of DOE and NYPD disciplinary and safety policies on the educational environment in the schools. The report examined the origins and the consequences of the city's aggressive policing operation in the schools, and provided analyses of the results of a broad student survey performed by the NYCLU and profiles of individual students whose experiences illuminate the problems with policing in schools. The report included numerous stories of instances in which school and police personnel meted out harsh punishment in situations that should have been resolved through counseling, conflict mediation, and similar supportive methods. The report included an analysis of student suspension practices, and found that the length and duration of student suspensions had increased significantly, under circumstances where school officials were failing to adhere to their obligation to provide suspended students with alternative educational services that were real and meaningful. Students and teachers are entitled to a safe educational environment that is conducive to both teaching and learning. A school’s authority to suspend a student plays an important role in securing such an environment. Yet too often suspensions also serve as a quick fix for student disciplinary problems that demand a more supportive response. In the long term, many student suspensions hamper, rather than improve student safety. Such suspensions impact students long after the suspension has been served. I testify today to urge the City Council to closely examine suspension practices in the city’s public schools and to create mechanisms for greater accountability and oversight of school disciplinary practices, including suspensions. As my testimony will indicate, student suspensions play a pivotal role in perpetuating the “School to Prison Pipeline,” both nationally and in New York City. It is time for the City Council to stem the flow of students into the criminal justice system, and support corrective measures, such as those contained in the Student Safety Act1. Suspensions Perpetuate the School to Prison Pipeline The School to Prison Pipeline describes local, state and federal education and public safety policies that operate to push students out of school and into the criminal justice system. This system disproportionately impacts youth of color and youth with disabilities. Inequities in areas such as school discipline, policing practices, and high-stakes testing contribute to the pipeline. The School to Prison Pipeline operates directly and indirectly. Schools directly send students into the pipeline through zero tolerance policies that involve the police in minor incidents, which too often lead to arrests, juvenile detention referrals, and even incarceration. Schools indirectly push students into the criminal justice system by excluding them from school through suspension, expulsion, discouragement and high stakes testing requirements. Suspensions, often the first stop along the pipeline, play a crucial role in pushing students from the school system and into the criminal justice system. Research shows a clear correlation between suspensions and both low achievement and dropping out of school altogether2. Such research also demonstrates a link between dropping out of school and incarceration later in life. Specifically, students who have been suspended are three times more likely to drop out by the 10th grade than students who have never been suspended3. Dropping out in turn triples the likelihood that a person will be incarcerated later in life4. In fact, in 1997, 68 percent of state prison inmates were school dropouts5. Despite the poor outcomes associated with suspensions, schools across the nation have seen an explosion in the number of suspensions and expulsions, mainly due to zero tolerance policies that rely heavily on harsh disciplinary practices. Originally meant to address only the most serious violent behavior, zero tolerance policies now too often target normal, non-violent behavior, even though schools nationwide continue to benefit from a fourteen year steady decrease in violent and non-violent crime in public schools6. In 2006, the American Psychological Association found that zero tolerance policies have been ineffective in reducing violence in schools and have instead increased disciplinary problems and dropout rates in middle schools and high schools, as well as the number of referrals to the juvenile justice system for minor infractions once handled by educators in the schools7. The report also found that zero tolerance policies have led to an over-representation of students of color in school discipline processes. The national racial disparities in school discipline are indeed profound. [and that] Nationwide, black students are 2.6 times more likely to be suspended than white students8. Black students, who make up only 17 percent of the nation’s student population, account for 36 percent of out of school suspensions and 31 percent of expulsions9. This disparity has been on the rise during the recent ascendancy of zero tolerance, with 6 percent of black students and 3 percent of white students being suspended at least once in 1973 compared to 14 percent of blacks and 5 percent of whites in 200310. Black students with learning disabilities are even more vulnerable to both suspension and incarceration. They are three times more likely than white students with learning disabilities to be removed from school and four times more likely to be placed in a correctional institution11. Our nation’s over-reliance on suspensions and other exclusions from school continues to limit the futures of our most vulnerable youth – students of color, low income students, and students with special need

Marcella Dianda concluded in 2008:

[Marcella Dianda, “Preventing Future High School Dropouts An Advocacy and Action Guide for NEA State and Local Affiliates”, http://www.nea.org/assets/docs/HE/dropoutguide1108.pdf // ENDI-JM]

Dropouts Earn Less and Contribute Fewer Tax Dollars to the Economy. The lifetime income difference between high school graduates and dropouts is estimated to be $260,000; the difference in lifetime income tax payments is $60,000. The combined lifetime earning losses of one group of 18-year-olds that never completes high school (about 600,000 students) is $156 billion or 1.3 percent of Gross Domestic Product. If the U.S. could cut the number of high school dropouts in a single cohort of 20-year-olds (approximately 700,000 individuals) in half, the country would gain $45 billion through extra tax revenue and reduced public health, crime and justice, and welfare payment costs—and the $45 billion would accrue for each successive cohort of 20-year-olds. Dropouts Have Increased Health Costs. Conservatively, each and every cohort of high school dropouts (based on 600,000 students) represents $23 billion in public health costs and $110 billion in forfeited health and longevity. Compared to high school graduates, dropouts are more likely to suffer from illness or disability and to die prematurely from cardiovascular disease, cancer, infection, injury, and diabetes. If half of the 600,000 students who drop out each year graduated from high school, the lifetime savings in health costs would be $11,700,000.

Second, the reasonable suspicion standard crushes students’ rights. James Spung of Emory University explains in 2011:

[A. James Spung, Emory Law School, FROM BACKPACKS TO BLACKBERRIES: (RE)EXAMINING NEW JERSEY V. T.L.O. IN THE AGE OF THE CELL PHONE, 2011, http://law.emory.edu/elj/_documents/volumes/61/1/comments/spung.pdf // ENDI-JM]

Realistically, of course, these two arguments may ignore some situations in which a school administrator is faced with searching a cell phone for evidence of drug activity, such as a few incriminating text messages, a photo of an item of drug paraphernalia, or perhaps a personal note stored on the phone listing individuals that owe money to the cell phone’s owner.191 Here, it seems, neither of the arguments posited above apply. As T.L.O. arguably emphasizes schools’ need to quell drug use, the school officials’ legitimate interests recognized in T.L.O. do not seem to be mitigated in a search of a cell phone’s contents for exactly that purpose. Moreover, searches for evidence of drugs, according to the T.L.O. majority, seemed a sufficient government purpose to justify an immediate intrusion of the baseline level of privacy expectations students maintain in their tangible belongings.192 Thus, it is difficult to argue that a school’s interests have diminished when searching cell phones for evidence of drug use, possession, or dealing. The fact that schools maintain an important interest in this situation, however, does not repair the damage cell phones work to the T.L.O. balance. While schools’ interests may not have decreased in investigating drug use, these interests have also not increased to match the heightened expectations of privacy students enjoy in their cell phones and the more significant intrusion upon those expectations that a search of the devices would entail. Indeed, the governmental interest in searching cell phones for evidence of drug activity is the same specific interest considered in T.L.O. Though this interest then exceeded students’ privacy expectations in their tangible belongings, thus justif[ies]ying a standard far less than the normal Fourth Amendment requirements, the interest now falls short of the heightened privacy students expect in their cell phones, and the reduced Fourth Amendment standard remains inadequate to protect students’ altered privacy expectations in these devices. Ultimately, even in drug-investigation scenarios, schools’ interests do not justify the low standards established by the T.L.O. Court. The balance has changed, and the T.L.O. standard is insufficient to protect students’ rights.193

However, Kendell Coker finds in 2011 that:

Kendell L. Coker, 2011, The Application of the Fourth Amendment in the School Context May Create a Safe Learning Environment for Some but Creates the School-to-Prison Pipeline for Others: The Challenges of Inner City School Violence By: http://www.luc.edu/media/lucedu/law/centers/childlaw/childed/pdfs/2011studentpapers/coker_fourth_amendment.pdf // ENDI -DY

In T.L.O., Justice White commented, “[T]he difficulty of maintaining discipline in the public schools today…is not so dire…[t]he prisoner and the schoolchild stand in wholly different circumstances.”32 However, it seems as though much has changed since Justice White made this statement in T.L.O. School violence has become so much of a problem that schools have taken drastic measures to protect their students.33 Ironically, the measures taken by school administrators have given some schools a striking resemblance to prison. In what appears to be acts of desperation to combat violence and protect students, school officials have instituted metal detectors and broad searches of weapons. These are sometimes referred to as administrative searches in that the search is [and become] aimed at a group or class of people rather than a particular person under the theory that a member of that group or class might pose a threat to safety. 34 The application of these types of searches (typically used at airports, border patrols, DUI checkpoints, jails) to the school context raises an interesting point of irony and makes Justice White’s comment in T.L.O. seemingly a distant memory and a legal fiction.

She furthers that:

Kendell L. Coker, 2011, The Application of the Fourth Amendment in the School Context May Create a Safe Learning Environment for Some but Creates the School-to-Prison Pipeline for Others: The Challenges of Inner City School Violence By: http://www.luc.edu/media/lucedu/law/centers/childlaw/childed/pdfs/2011studentpapers/coker_fourth_amendment.pdf // ENDI -DY

The real dangers of violence in schools, particularly inner city, predominately minority schools, have caused school officials to use “prison-like” search procedures.49 The challenging issue is that students must feel safe in school, but common sense also dictates that it can be psychological distressing for a young child to have to walk through a metal detector to enter school every day. As mentioned earlier, commentators argue that these tactics help facilitate the pipeline to prison. One expert noted that “administering carceral treatment on students, such as subjecting students to search and seizures…and socializing students into acting defiantly through exposure to carceral school environments and treatment.”50

Thankfully, Spung argues that a probable cause standard would:

[A. James Spung, Emory Law School, FROM BACKPACKS TO BLACKBERRIES: (RE)EXAMINING NEW JERSEY V. T.L.O. IN THE AGE OF THE CELL PHONE, 2011, http://law.emory.edu/elj/_documents/volumes/61/1/comments/spung.pdf // ENDI-JM]

The virtue of requiring probable cause is that it forces the school official to justify the cell phone search on more than the amorphous reasonable suspicion test set out in T.L.O., thus ostensibly requiring a stronger, more articulated government interest to match the degree to which the search may intrude upon students’ privacy expectations. This higher safeguard, therefore, would better reflect the shift that cell phones have caused in the T.L.O. balancing equation. Moreover, courts are likely to find probable cause a more feasible safeguard than a warrant; unlike the warrant requirement, probable cause is not necessarily unsuited for the school environment. While T.L.O. rejected such a requirement for school administrators, it did so after determining that the school’s interest needed to meet only a heavily reduced expectation of privacy203 and did not—and perhaps could not—explain why the probable cause standard was inappropriate to the school environment in general.204 With a new evaluation of students’ privacy expectations, however, comes a new evaluation of the standard the government must meet to match them, and it is reasonable to believe that school officials (perhaps with training) could understand and apply the standard in justifying a cell phone search.205 Arguably, however, probable cause still provides an unclear standard that may fail to protect students’ rights to any greater degree based, perhaps, on the willingness of school administrators to make the circumstances fit the standard. Indeed, LaFave has observed that, even in T.L.O., Choplick would likely have been able to justify the search under a probable cause standard.206 Consider again the model case.207 Principal had information from an ostensibly reliable source (a student in good standing at the school) that Pupil was sending harassing material to another student through the communication modes available on his iPhone. When asked, Pupil denied the accusations. Principal undoubtedly had reasonable suspicion to justify the search under T.L.O.208— but if her legal judgment were ever questioned, it would be difficult to conclude that she did not have probable cause, as well. Principal had knowledge based on the reliable third-party report that was arguably sufficient to justify a belief that Pupil had violated City High School’s antibullying policy. It is a close call, and as courts allow substantial deference to school officials’ decisions,209 Principal could argue that she was justified even under a higher standard. As the scenario demonstrates, it is unclear in which situations the probable cause standard would actually provide greater protection for students’ privacy expectations in their cell phones. While probable cause could repair the disparity between schools’ interests and students’ privacy expectations, the fact-intensive inquiry it requires and the deference inherent in courts’ evaluation of school officials’ decisions could often render probable cause an illusory safeguard.

Contention 2: Mary Jane Goes to School

Amy Vorenberg explains in 2012:

Amy Vorenberg, Indecent Exposure: Do Warrantless Searches of a Student's Cell Phone Violate the Fourth Amendment?, 17 Berkeley J. Crim. L. 62 (2012). Available at: http://scholarship.law.berkeley.edu/bjcl/vol17/iss1/2

While T.L.O. was a case in which individualized suspicion of a particular student justified the search, there are a number of cases where the search was premised on general concerns.39 School-wide searches of lockers and backpacks are increasingly routine in public schools, as is random drug testing.40 These searches are not targeted at any one individual, but instead seek to root out contraband by searching all students. Increased drug use, violence, or other unauthorized conduct usually prompts the search.41 The Court has issued a broad test to justify general searches. School administrators must have a basis similar to that for a particularized search, but must additionally show the presence of a “compelling governmental interest” in deterring drug use or demonstrate an “interest that appears important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy.”42

And these general drug searches only need reasonable suspicion in schools – Vorenburg continues that:

Amy Vorenberg, Indecent Exposure: Do Warrantless Searches of a Student's Cell Phone Violate the Fourth Amendment?, 17 Berkeley J. Crim. L. 62 (2012). Available at: http://scholarship.law.berkeley.edu/bjcl/vol17/iss1/2

In 1989, the Supreme Court ruled in favor of suspicionless random drug testing of adults after government employers began to institute random drug testing for workers.44 When schools began to institute random drug testing on minors as a safety and prevention program in the mid-nineties, the Supreme Court weighed in on the practice. In Vernonia School District v. Acton, the Supreme Court upheld mandatory random drug testing for student athletes. Noting that the factors permitting a lawful search in T.L.O. were not exactly applicable to circumstances involving a generalized search, the Court allowed for a “reasonableness” standard even in the absence of any individualized suspicion.45 In Vernonia School District, the drug testing was prompted by concerns that student athletes were highly involved in the school’s drug culture.46 The Court articulated a new test loosening the requirement of individualized suspicion where governmental interests outweigh the level of intrusion. The Court set out three factors to consider in applying the balancing test: 1) the nature of the privacy interest upon which the search at issue intrudes; 2) the character of the intrusion; and 3) the nature and immediacy of the governmental concern and the efficacy of the means utilized to address that concern.47

Samantha Shutler of Northwestern wrote in 1996:

Samantha Elizabeth Shutler, Random, Suspicionless Drug Testing of High School Athletes, 86 J. Crim. L. & Criminology 1265 (1995-1996) // ENDI-JM

Even if student drug use generally qualified as a compelling government interest, the Court mistakenly upheld Vernonia School District's random, suspicionless drug testing as a means to eradicate the alleged drug problem. The Vernonia decision is contrary to the majority of cases mandating that government actions in nearly all contexts rest upon, at the very least, individualized suspicion, if not probable cause. 222 Within the school context, courts have consistently stated that students do not "shed their constitutional rights.., at the schoolhouse gate."2 23 The Supreme Court has repeatedly emphasized that, although school officials enjoy some latitude in enforcing standards of conduct, they must exercise this authority in comportment with constitutional safeguards. 224 As the Court has stated, ... state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are 'persons' under the Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. Along these lines, the Vernonia majority incorrectly stated that because school officials act in loco parentis, courts owe them a greater degree of constitutional leeway and should not hold them to the individualized suspicion standard. This proclamation contradicts the Court's prior discussion defining the relationship between school officials and schoolchildren in New Jersey v. T.L.O.: "In carrying out searches and other disciplinary functions . . . school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim parental immunity from the strictures of the Fourth Amendment."2 26 Therefore, in T.L.O., the Court squarely held that school officials must fully comply with Fourth Amendment strictures whenever they search students on school grounds.2 27 As interpreted in T.L. 0., the Constitution specifies that under ordinary circumstances, school officials searching a student must have an individualized suspicion and belief that the search will reveal evidence of wrongdoing. 22 8 Bare individualized suspicion, however, is not enough. The T.L.O. Court further constrained the actions of school officials by stating that an individualized suspicion requirement can only pass constitutional muster if prompted by "exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable."2 29 Consequently, in order for the Vernonia Policy to pass constitutional muster, the District must have tested only those students who they reasonably suspected had used or were using drugs. Moreover, even if the District could show "extraordinary" circumstances, T.L.O. dictates it may not dilute students' Fourth Amendment rights anymore than is necessary to preserve school order. Along these lines, the Court has emphasized that, "where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained.”

Due to the low standard, Ryan Grim noted in 2006:

Ryan Grim, 3-21-2006, "Drug testing doesn't reduce student drug use.," Slate Magazine, http://www.slate.com/articles/health_and_science/science/2006/03/blowing_smoke.html //ENDI-DY

Drug testing of the American public has been steadily broadening over the past 20 years, from soldiers to grocery baggers to high-school and middle-school students. In its 2007 budget, the Bush administration asks for $15 million to fund random drug testing of students—if approved, a 50 percent increase over 2006. Officials from the federal drug czar's office are crisscrossing the country to sell the testing to school districts.

A decade later, The Washington Post notes that:

Washington Post, 4-27-2015, "School drug tests: Costly, ineffective, and more common than you think," https://www.washingtonpost.com/news/wonk/wp/2015/04/27/schools-drug-tests-costly-ineffective-and-more-common-than-you-think/ //ENDI-DY

But schools are increasingly pushing further. For instance, a nationally-representative survey of 1,300 school districts found that among the districts with drug testing programs, 28 percent randomly tested all students -- not just ones participating in after-school programs. These schools are opening themselves up to a legal challenge.

Drug testing students has two impacts.

First, drug testing increases drug use. The Washington Post explained in 2015:

Washington Post, 4-27-2015, "School drug tests: Costly, ineffective, and more common than you think," https://www.washingtonpost.com/news/wonk/wp/2015/04/27/schools-drug-tests-costly-ineffective-and-more-common-than-you-think/ //ENDI-DY

But in the years since the Supreme Court ruling, numerous studies have shown little evidence of effectiveness among these programs. To wit: A 2013 study looked at 14 years of data on student drug use and found that school drug testing was associated with "moderately lower marijuana use," but increased use of other, more dangerous illicit drugs. A 2014 study concluded that drug testing was "was not associated with changes in substance use." A 2013 study comparing drug use rates among schools with and without drug testing programs found some short-term deterrent effect among students who were tested, but no effects among students who weren't tested, and no long-term effects on either drug use or intention to use drugs in the future.

In fact, Ryan Grim furthered that:

Ryan Grim, 3-21-2006, "Drug testing doesn't reduce student drug use.," Slate Magazine, http://www.slate.com/articles/health_and_science/science/2006/03/blowing_smoke.html //ENDI-DY

Yet, according to the two major studies that have been conducted on student testing, it doesn't actually reduce drug use. "Of most importance, drug testing still is found not to be associated with students' reported illicit drug use—even random testing that potentially subjects the entire student body," determined the authors of the most recent study. It seems like common sense that if students are warned they could be caught getting high any day in school, they'd be less likely to risk it. And principals and the drug czar's office argue that this random chance "gives kids a reason to say no." But teens are notorious for assuming that nothing bad will happen to them. Sure, some people get caught, but not me. In addition, a student who chooses to do drugs already has more than a random chance of getting caught—adults are everywhere in this world. Someone could see her, smell smoke, see her bloodshot eyes, or wonder what the hell is so funny. And since most schools test only students who do something more than just show up for class—like join an after-school club, park on campus, or play a sport—kids can avoid the activities rather than quit puffing. Testing may not change much more of the equation than that. Such are the findings of two major studies. The first study, published in early 2003, looked at 76,000 students in eighth, 10th, and 12th grades in hundreds of schools, between the years 1998 and 2001. It was conducted by Ryoko Yamaguchi, Lloyd Johnston, and Patrick O'Malley out of the University of Michigan, which also produces Monitoring the Future, the university's highly regarded annual survey of student drug use, which is funded by the National Institute on Drug Abuse and whose numbers the White House regularly cites. The early 2003 Michigan study compared the rates of drug use, as measured by Monitoring the Future, in schools that did some type of drug testing to schools that did not. The researchers controlled for various demographic differences and found across the board that drug testing was ineffective; there was no statistically significant difference in the number of users at a school that tested for drugs and a similar school that didn't. The White House criticized the Michigan study for failing to look at the efficacy of random testing. So, Yamaguchi, Johnston, and O'Malley added the random element and ran their study again, this time adding data for the year 2002. The follow-up study, published later in 2003, tracked 94,000 middle- and high-school students. It reached the same results as its precursor. Even if drug testing is done randomly and without suspicion, it's not associated with a change in the number of students who use drugs in any category. The Michigan follow-up found one exception: In schools that randomly tested students, 12th-graders were more likely to smoke marijuana.

Second, random drug testing destroys student success. David Heitz argues in 2015:

David Heitz, 3-27-2015, "Pediatricians Say No to Random Drug Testing in Schools," Healthline, http://www.healthline.com/health-news/pediatricians-say-no-to-random-drug-testing-in-schools-033015 //ENDI-DY

Moreover, random drug tests can lead to a lack of trust among students, parents, and schools, the AAP report cautions. The tests can have additional unwanted consequences when positive results are false or when school discipline and legal punishments interrupt a child’s education, ultimately harming their chances of success. “The original intent of school-based drug testing was to identify students with possible substance use to intervene with early treatment,” the authors of the AAP report wrote.

In fact, in 2013 Celia Vimont finds that

Celia Vimont, 9-6-2013, "Study Finds Random Drug Testing Doesn’t Deter High School Students’ Substance Use," Partnership for Drug-Free Kids, http://www.drugfree.org/join-together/study-finds-random-drug-testing-doesnt-deter-high-school-students-substance-use/ //ENDI DY

Random drug testing in schools does not reduce students’ substance use, a national survey of high school students concludes. The study found students who attend schools where they feel treated with respect are less likely to start smoking cigarettes or marijuana. Students who attend schools where they feel respected, who have already started smoking, escalate their smoking at a slower rate than their peers at schools with less positive atmospheres, the study also found. Neither random drug testing nor a positive school climate was associated with a reduction in alcohol use, according to researcher Dan Romer, PhD, Director of the Adolescent Communication Institute of the Annenberg Public Policy Center at the University of Pennsylvania. He and lead author Dr. Sharon Sznitman, currently at the School of Public Health at Haifa University in Israel, spoke about the findings at the recent American Sociological Association annual meeting. The researchers interviewed 361 high school students twice, one year apart. They asked them about their use of cigarettes, alcohol and marijuana. If they had not started using these substances at the beginning of the year, the researchers asked whether they had started to do so a year later. If they already had started using any of these substances, the students were asked whether they increased their use. Dan Romer, PhD Dan Romer, PhD Students were asked whether their school had a random drug testing program and what the social climate was in their school. “We measured this by whether students think the rules in their school are fairly administered, whether they feel they have a say in how the rules are developed and if they feel they are treated with respect,” Romer said. He found students attending school with positive school climates were 15 percent less likely to start smoking cigarettes, and 20 percent less likely to start using marijuana, compared with students at schools without positive climates. Students at schools with positive climates who already smoked had a much smaller increase in the number of cigarettes they smoked, compared with those in schools with less positive climates. In 1995, the U.S. Supreme Court held that random drug tests of student athletes do not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures

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